Lott v. United States

• Citation: 218 F.2d 675
• Decision Date: 20 January 1955
• Docket Number: No. 15033.,15033.
• Parties: John Thomas LOTT, Johnnie Lee Reed, Larry Pearce, Joe Melvin Shaw and Doris Jeane Miller, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

218 F.2d 675 (1955)

John Thomas LOTT, Johnnie Lee Reed, Larry Pearce, Joe Melvin Shaw and Doris Jeane Miller, Appellants, v. UNITED STATES of America, Appellee.

No. 15033.

United States Court of Appeals, Fifth Circuit.

January 20, 1955.

John E. McLean, Fort Worth, Tex., for appellants.

Cavett S. Binion, Asst. U. S. Atty., Heard L. Floore, U. S. Atty., Fort Worth, Tex., for appellee.

Before HOLMES and TUTTLE, Circuit Judges, and ALLRED, District Judge.

ALLRED, District Judge.

Appellants were convicted by a jury upon the first count of an indictment charging them with conspiracy to violate the narcotic laws. Appellants Lott, Reed, Pearce and Miller, were also convicted on substantive counts charging violation of the narcotic laws.

Although appellant Doris Jeane Miller gave notice of appeal, no judgment of conviction or sentence appears in the record. Upon this being called to the attention of counsel after submission here, a stipulation has been filed reciting that Doris Jeane's appeal had been dismissed by the trial judge upon motion of her attorney. We find no authority in the Federal Rules of Criminal Procedure, 18 U.S.C.A., for such action. Rule 39(a) lodges supervision and control of proceedings in criminal cases in the appellate court from the time notice of appeal is filed with the clerk, except as otherwise provided. By clear implication, authority to dismiss is denied the trial court by the provision appearing in the second sentence of the rule: "The appellate court may at any time entertain a motion to dismiss the appeal * * *."¹ We treat the stipulation as a motion to dismiss here. The motion is granted.

Appellants' principal complaints here are: (1) that the conspiracy count fails to state an offense; (2) that the evidence is insufficient to support the verdict; (3) that the trial court erred in admitting certain evidence obtained without a search warrant, and in his remarks to the jury; and (4) alleged conflict of interest between appellants Reed, Pearce and Shaw, who were represented by the same court-appointed counsel.

The conspiracy count charged that appellants conspired to violate sections 2591(a), 2593(a), 2553(a) and 2554(a), of Title 26, by agreeing to unlawfully transfer and deliver marihuana, and sell, dispense and distribute various narcotics to Floyd Luke Watkins and appellants Reed, Pearce and Shaw, not in pursuance of written orders therefor. Seventeen overt acts were charged as having been done to effect the objects of the conspiracy. Appellants moved to "quash" the indictment on the ground that it merely charged them with conspiracy to sell, transfer, etc. marihuana and narcotics to, and among, themselves, thus amounting to no more than a buyer-seller relationship which, appellants say, is not sufficient to support a conviction for conspiracy.² This overlooks the fact that Watkins, one of those to whom it is alleged the marihuana and narcotics were to be sold, transferred, etc., is not named as a defendant or co-conspirator; and that the indictment, together with the overt acts, charges more than a mere seller-purchaser relationship. The conspiracy count, therefore, was sufficient.

Sufficiency of the evidence to support the convictions was raised by proper motion for judgment of acquittal on all counts. While for reasons hereafter stated the case must be reversed, we believe the evidence is sufficient to sustain a conviction on the conspiracy count. As between Lott and Reed, it clearly shows more than a seller-buyer relationship and, circumstantially, that Shaw and Pearce assisted Reed in making sales to Watkins.³

Appellant Lott challenges the admissibility of evidence obtained without a search warrant, upon which his conviction on count four rests. That count charged that he unlawfully acquired 198 grains of marihuana, in violation of section 2593(a), Title 26. This marihuana was found by a deputy United States marshal in a shed built on the back of a garage at the rear of Lott's residence. Two deputy marshals had gone there with two narcotic agents and a Ft. Worth city officer, armed with a federal warrant for Lott's arrest. Three of them went to the front door, entered and made the arrest without difficulty. One of the deputy marshals and a narcotic agent had gone around to the rear, where the yard was enclosed by a wooden fence. The yard gate at the side was locked, so the deputy marshal went to the rear of the garage and, after waiting a while to give the other officers time to apprehend Lott,⁴ he "pulled off two boards that were nailed on (the door) and started searching the place." He found the marihuana in a paper bag under an old automobile cushion.

Over objection, this evidence was admitted by the trial court. Government counsel say this was a proper search of premises under the immediate control of defendant, reasonably incident to his arrest. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399. We do not think so. The facts here are more clearly akin to those in Drayton v. United States, 5 Cir., 205 F.2d 35. The deputy marshal's testimony clearly shows, and all the circumstances indicate, that the search was purely exploratory and unreasonable. The garage and shed was not a part of the house. The warrant of arrest was issued by the United States Commissioner on September 30, 1953, based upon an alleged sale of narcotics on February 20, 1953, more than seven months before. The warrant was not executed until October 5, 1953. The officers had plenty of time to secure a search warrant. No reason is given for their failure to secure one. All that was said by Judge Strum in the Drayton case, as well as the authorities cited there, applies here with equal force. This is to be distinguished from United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, where the search was confined to a room, open to the public, being unlawfully used, under the immediate and complete control of the defendant and in his presence. Rather it is the type of unreasonable, general exploratory search condemned in Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 and other cases cited in Drayton, supra. The trial judge erred in admitting this testimony and Lott's conviction on count four cannot stand.

Lott next complains of testimony by a city police officer as to having "handled," and having a picture of, him at the Bureau; and of remarks of the court in first overruling, then sustaining, appellants' motion that the jury be instructed not to consider; and in failing to declare a mistrial. While city officer Baker was testifying as a witness for the prosecution the following transpired:

"Q. Mr. Baker, you have stated very definitely that on at least one occasion there that you did see — two occasions, I believe, that you did see the defendant Johnnie Lott, and named him by name. How did you happen to be so familiar with the appearance of Johnnie Lott? A. Sir, being familiar with Johnnie Lott, I have handled him, I have seen him, I have a picture of him in the Bureau, as an officer.

"Mr. McLean: Just a minute.

"Your Honor, the question and answer elucidated by the District Attorney is of such nature and of such prejudice to the defendant, that this officer has handled the defendant, and in face of the instructions handled and given to the District Attorney by the Court before this trial started, and the instructions of the Court given the District Attorney, we now ask, in all fairness to the defendant John Thomas Lott, that the Court now declare a mistrial.

"The Court: We don\'t think that any inference of conclusion could yet be drawn that would be — that could be reasonably drawn, that would be prejudicial to the defendant to that degree, and we will direct the District Attorney not to — to be careful, and not to do so.

"Mr. McLean: Now, Your Honor, further, we would like at this time an instruction from the Court for the jury to disregard the question and the answer given by the witness Baker.

"The Court: I think that he might state that he did recognize the defendant.

"Mr. McLean: That is correct, Your Honor.

"The Court: And then, if that is to be questioned, let the defendant take him and he can give such information as he desires.

"Mr. McLean: I think if it was brought out on cross examination, sir, it would, sir. May I have my instruction from you, Your Honor, for the jury to disregard the question and the answer given, sir?

"The Court: I don\'t think that it is necessary on that point to instruct the jury to disregard it, I think that the entire case is before the jury, and the rulings of the Court is very clear. You would be more or less in the attitude of a fellow who was before me the other day and wanted all record of the fact he had ever been convicted of a crime expunged from the record, a crime that had taken place 30 or 40 years ago, and I told him the order expunging it from the record would recite as much as the record itself. So, I mention that, just as a parallel to the situation here. I think that there has been no harm done, and I will instruct the jury, if they have drawn any inference from the question that there has been wrongdoing of any kind or character on the part of the defendant for which he might have been handled, that there is no proof to that effect, and just what was meant by it will be withdrawn from you, and any inference you might draw from it will be withdrawn from you.

"Mr. McLean: Your Honor, with all respect to the Court, but in protection to my client, I would like at this time to take exception to the Court\'s remarks made concerning another case. I am doing it solely, Your Honor, to protect Mr. Lott, whether I am doing it justifiably, or not, but any reference to a man who had been convicted and ask that that not be brought out, I respectfully except to the remarks.

"The Court: Gentlemen, the Court meant no

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