Small v. United States

• Decision Date: 20 June 1968
• Docket Number: No. 25353.,25353.
• Citation: 396 F.2d 764
• Parties: Marshall SMALL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

396 F.2d 764 (1968)

Marshall SMALL, Appellant, v. UNITED STATES of America, Appellee.

No. 25353.

United States Court of Appeals Fifth Circuit.

June 20, 1968.

Arturo C. Gonzalez, Del Rio, Tex., for appellant.

Ted Butler, Asst. U. S. Atty., Andrew L. Jefferson, Jr., Asst. U. S. Atty., Ernest Morgan, U. S. Atty., San Antonio, Tex., for appellee.

Before GOLDBERG and CLAYTON, Circuit Judges, and HANNAY, District Judge.

PER CURIAM:

The appellant, Marshall Small, was tried by a jury and found guilty under an indictment charging him with violation of 18 U.S.C. § 1465.¹ The substance of the charge was that Small had transported in interstate commerce several film strips which were allegedly pornographic in content.

During the course of the trial, Small's counsel asked for the introduction of a signed statement given by Small to law enforcement officials. The statement purported to circumstantiate Small's defense that the films were purchased for his personal eroticism, rather than for resale in an underground market.

Although Small's statement clearly indicated that he acknowledged possession of the films and that certain segments of the community might label them salacious as opposed to artistic, his counsel sought to suppress the introduction of the films into evidence on the theory that they were obtained as the result of an illegal search and seizure. The Motion to Suppress, however, was submitted for the first time when the government offered the various reels for examination by an agent of the Federal Bureau of Investigation. The district court held that Small had not met the requirements of Rule 41(e) of the Federal Rules of Criminal Procedure² and consequently could not object to the admission of the films. We affirm.

The purpose of Rule 41(e) in requiring Motions to Suppress to be introduced prior to trial is to facilitate a uniform presentation of the facts and law to the jury with as few disruptive intervals as possible. Although the trial judge is free to exercise judicial discretion when a motion is offered for the first time during the trial where there would be obvious prejudice to the defendant, the granting of such a motion is disfavored where counsel was fully aware of the facts prior to trial and had ample opportunity to present the motion. Anderson v. United States, 5 Cir. 1966, 355 F.2d 928; Birdsell v. United States, 5 Cir. 1965, 346 F.2d 775, 782, cert. den., 382 U.S. 963, 86 S.Ct. 449, 15 L.Ed.2d 366; and Garcia v. United States, 5 Cir. 1963, 315 F.2d 133, 135-136, cert. den., 375 U.S. 855, 84 S.Ct. 117, 11 L. Ed.2d 82. Cf. Barba-Reyes v. United States, 9 Cir. 1967, 387 F.2d 91, 93, and United States v. Weldon, 2 Cir. 1967, 384 F.2d 772, 775. Without positing a rigid and absolute requirement that a Motion to Suppress be presented in limini, we hold that the trial court did not err in overruling the motion for the following reasons: (1) counsel had complete knowledge of the facts in ample time to present the motion prior to trial; (2) the delay was apparently part of counsel's trial stratagem; and (3) counsel invited any possible error when he asked for the introduction of the written statement, but did not object to several references to the film.

We...