Richardson v. United States

• Decision Date: 12 May 1966
• Docket Number: No. 22784.,22784.
• Citation: 360 F.2d 366
• Parties: Norton Edward RICHARDSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

360 F.2d 366 (1966)

Norton Edward RICHARDSON, Appellant, v. UNITED STATES of America, Appellee.

No. 22784.

United States Court of Appeals Fifth Circuit.

May 12, 1966.

Barry Hess, Mobile, Ala., for appellant.

D. Broward Segrest, Asst. U. S. Atty., Vernol R. Jansen, Jr., U. S. Atty., for appellee.

Before TUTTLE, Chief Judge, THORNBERRY, Circuit Judge, and LYNNE, District Judge.

LYNNE, District Judge:

Convicted under a two-count indictment charging him with unlawful possession of fifty gallons of nontaxpaid whiskey (26 U.S.C. § 5205(a) (2)) and the unlawful removal or concealment thereof (26 U.S.C. § 7206(4)), appellant is here insisting that the trial court erred in refusing to suppress and in permitting the introduction of evidence relating to the discovery by officers Treherne and Willemoes of contraband liquor in the trunk of an automobile.

On the night of August 26, 1964, these officers, while positioned in the vicinity of a vacant house in Mobile, Alabama, observed an automobile, occupied by two men, being driven upon the premises. The driver, Salisbury, a co-defendant who entered a plea of guilty, proceeded to remove two packages, wrapped in paper and having the general shape of one-gallon jugs, from the trunk of the car and to place them on the ground. Appellant, who was well-known to and recognized by Treherne when he flashed a light in his face, fled and was not apprehended until the next day. Salisbury ran when Treherne started toward him and was immediately arrested by Willemoes. Treherne tripped over the two packages on the ground and, by tasting, identified their contents as moonshine whiskey.

The lid of the trunk had been left up, and there were exposed to plain view forty-eight one-gallon glass jugs full of whiskey bearing no tax stamps. These were promptly seized by the officers after Salisbury had been placed under arrest. Appellant, testifying at the trial as a witness in his own behalf, denied that he was present at the scene and asserted that he neither owned nor possessed the automobile involved and that he had no interest in or connection with the whiskey seized.

On its facts, this case is an inappropriate vehicle for re-examination of the rationale of cases holding that one who disclaims ownership or possession of, or connection with the premises searched or the property seized, lacks standing to complain of an unlawful search or seizure. Parr v. United States, 255 F.2d 86, 89 (5th Cir. 1958); Lovette v. United States, 230 F.2d 263, 264 (5th Cir. 1956).

Clearly, the search and seizure here complained of was valid as incident to the arrest of Salisbury which was lawful under the provisions of 26 U.S.C. § 7608(b) (2) (B). Moreover, there was nothing unreasonable about observing the whiskey which was plainly visible to the naked eye and thereafter seizing it. United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Nicholson v. United States, 355 F.2d 80 (5th Cir. 1966); Petteway v. United States, 261 F.2d 53 (4th Cir. 1958); Haerr v. United States, 240 F.2d 533 (5th Cir. 1958).

There remains for consideration appellant's contention that the trial court erred in denying his verified motion for a new trial without a hearing thereon. Chronology is important in the ensuing discussion. The trial jury returned a general verdict of guilty on May 13, 1965. On May 18 judgment of conviction was entered and sentence imposed. On May 21 appellant filed his motion for a new trial and contemporaneously therewith filed his notice of appeal from the judgment of conviction. On May 27 the trial court, without affording any hearing, entered an order denying such motion. No appeal was taken from such order.

Appellant's motion for a new trial contained four grounds. The first two related to the sufficiency of the evidence to sustain a conviction. The fourth has been abandoned. The third ground asserted that during the course of the trial, Treherne, principal witness for the prosecution, engaged in a private conversation with a member of the trial jury in a corridor adjacent to the courtroom, which fact was not discovered by him until after the verdict and judgment.

Notwithstanding the fact that appellant's motion and the order denying it were physically brought up in the record on appeal, a threshold inquiry, divisible into two parts, must be made. The first relates to the jurisdiction of the district court to enter such order during the pendency of the appeal. By necessary implication Rule 33 of Federal Rules of Criminal Procedure confers jurisdiction upon the trial court to hear a motion for a new trial on the ground of newly discovered evidence while the case is on appeal from the judgment of conviction. Asserting improper communication by the principal prosecuting witness to a member of the jury, the third ground of appellant's motion rests squarely upon newly discovered evidence...