U.S. v. Blanton

• Decision Date: 29 July 1975
• Docket Number: No. 74-2113,74-2113
• Citation: 520 F.2d 907
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Allen BLANTON, Jr., Defendant-Appellant.

Page 907

520 F.2d 907

UNITED STATES of America, Plaintiff-Appellee, v. James Allen BLANTON, Jr., Defendant-Appellant.

No. 74-2113.

United States Court of Appeals Sixth Circuit.

July 29, 1975.

James Allen Blanton, Jr., pro se.

H. Fred Hoefle, Cincinnati, Ohio (Court-appointed), for defendant-appellant.

Eugene E. Siler, Jr., U. S. Atty., James E. Arehart, Lexington, Ky., for plaintiff-appellee.

Before PECK, McCREE and ENGEL, Circuit Judges.

ENGEL, Circuit Judge.

Appellant James Allen Blanton, Jr. was convicted by a jury in the District Court for the Eastern District of Kentucky, at Covington, of both counts of an indictment which charged him with willful possession of an unregistered semi-automatic rifle with a barrel of less than the statutory length, in violation of 26 U.S.C. §§ 5861(d) and 5871, and with unlawful possession of a .38 caliber revolver in violation of 18 U.S.C. App. § 1202(a)(1), Blanton having previously been convicted of armed robbery.

Blanton was arrested on August 22, 1973, just as he was about to enter a 1973 Ford Gran Torino parked across the street from The Pad, a bar in Covington. A search of the car, owned by Blanton's companion, Deborah Locke, produced the two weapons which led to Blanton's conviction.

Of the four issues raised by Blanton on his direct appeal, we reverse and remand for new trial on his claim that his right to a fair trial was violated by the deliberate injection by a government witness of inferences that Blanton was also involved in a recent armed robbery.

During the trial, a special agent of the Bureau of Alcohol, Tobacco and Firearms testified before the jury concerning Blanton's apprehension and the search of his companion's car.

On redirect examination, the following colloquy took place:

"Q Mr. Howell asked you the reason you all were there was looking for guns, is that correct? Did he ask you that?

A I believe so, yes.

Q Now, is that the only reason that you all were there, to look for guns, or for some other purpose?

A Well, there were a few reasons. Mr. Blanton was under investigation for bank robbery and we were and I was also assisting Agent Glossup with his investigation. There was supposed to be $50,000.00 in bank robbery

MR. HOWELL: Objection.

THE COURT: Objection sustained.

A (continuing) he was under investigation for bank robbery and we were coordinating the investigation together."

Later, in the direct examination of Special Agent Glossup of the FBI, the assistant United States Attorney questioned him as follows:

"Q Did you have an occasion in August of 1973 to conduct an investigation of James Allen Blanton, Jr.?

A Yes, sir.

Q What was the purpose of the investigation?

A In connection with a bank robbery.

MR. HOWELL: Objection.

THE COURT: Overruled."

Blanton did not testify at trial in his own defense. The record of the suppression hearing held outside the presence of the jury shows that the officers were led to investigate Blanton on reports from an informer that Blanton had admitted involvement in a bank robbery and had $50,000 of the proceeds in the 1973 Gran Torino. Outside of this hearsay evidence from an informer whose identity was never disclosed, there was no evidence whatever to indicate Blanton's involvement in a specific robbery, and indeed no evidence of the robbery itself. The deliberate injection of testimony concerning another wholly unrelated offense in which Blanton was allegedly involved was error. United States v. Perry, 512 F.2d 805 (6th Cir. 1975); United States v. O'Donnell, 510 F.2d 1190 (6th Cir. 1975) (concurring opinion); United States v. Calvert, 498 F.2d 409 (6th Cir. 1974); United States v. Nemeth, 430 F.2d 704 (6th Cir. 1970); United States v. Smith, 403 F.2d 74 (6th Cir. 1968). We find it difficult to perceive how both the Assistant United States Attorney and the witnesses could not have understood the impropriety, and we find even more flagrant the conduct of the agent in the first cited instance who overrode not only the defense counsel's objections, but the trial judge's ruling itself to re-emphasize the objectionable evidence.

The government seeks to justify the questions on two grounds: (1) that defense counsel had invited the questioning by making repeated references to the number of agents who descended upon Blanton at the time of his apprehension and, (2) that the government was simply trying to amplify Agent Early's previous testimony that there were "several reasons why we were following Mr. Blanton." Our review of the testimony in its entirety shows that there was no justification for the line of inquiry pursued by the government.

The government claims further that the introduction of the evidence was harmless because the jury necessarily had before it the evidence of Blanton's 1960 felony conviction, an element of proof necessary to conviction on Count II, and because the proof of guilt was overwhelming. Both claims are without merit. It is one matter to present evidence of conviction of a felony thirteen years past, and quite another to infer that the accused had only recently engaged in similar conduct. Neither can we agree that the evidence of guilt was so overwhelming that the error could not possibly have influenced the jury's decision or affected the substantial rights of the defendant. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); United States v. Hurst, 510 F.2d 1035 (6th Cir. 1975); United States v. Ortiz, 507 F.2d 1224 (6th Cir. 1974). The car did not belong to Blanton, but to his girlfriend. His possession of the guns was constructive, and guilt thus depended upon the jury's believing that he knew of their presence in the car. The evidence of guilt was strong, it is true, but we cannot say the error was harmless. Thus, the judgment must be reversed and the case remanded for new trial.

Since the case must be remanded for retrial, we deem it appropriate to deal with appellant's other claims of error. Appellant contends that the search of the 1973 Gran Torino, made without warrant, and the seizure of the semi-automatic rifle and pistol found therein, were violative of Blanton's Fourth Amendment rights and thus the evidence obtained therefrom should have been suppressed.

At the suppression hearing James Mercer, a Covington police officer, testified that on August 16, 1973, he received word from a confidential informant that Blanton had approximately $50,000 in the trunk of his automobile. The informant stated that he had personally seen the money in the trunk and that Blanton had told him at the time that the money came "from a bank heist or a bank holdup somewhere in the South". The automobile was supposed to have been in the approximate area of The Pad nightclub at 4th and Madison in Covington, Kentucky. Mercer passed this information on to Special Agent Glossup of the FBI on August 17, but the vehicle was not located.

Late in the evening of August 20, Mercer received information that the confidential informant had observed a "machine gun" in the trunk of the automobile Blanton was using at the time. The informant described the car as a beige 1973 Ford Gran Torino bearing Kentucky license plates, and said that he had observed the gun in the trunk again while the car was around The Pad. Again Mercer relayed this information to Agent Glossup on August 21. Mercer's testimony at the suppression hearing indicated that he had dealt with the informant for several years and that the information he provided was generally accurate and reliable.

Special Agent Glossup testified that, in following up on the information he had received from Mercer, he had sent teletype inquiries throughout the South concerning any recent large bank robberies. A reply from Columbia, South Carolina indicated that a $147,000 bank robbery had occurred there on July 12, 1973, and that a Ford Torino had been used in the robbery. Glossup also received a teletype from the Cleveland Police Department reporting that Blanton had been seen driving the same automobile in the Cleveland, Ohio area on August 18th or 19th, but that while police were attempting to get a search warrant for the car, it had disappeared.

After receiving Mercer's phone call concerning the machine gun on August 20, federal agents on August 21 staked out The Pad looking for Blanton, but their surveillance failed. Agent Glossup testified that after the information concerning Blanton first reached him, he contacted Assistant United States Attorney DeFalaise who advised him that if time permitted and the car was not in a mobile state, he should try to get a "John Car warrant" before searching the car after it was located. If time did not permit, however, DeFalaise "felt it would be proper under the circumstances to conduct a Carroll rule search with the understanding that the car contained contraband or fruits of the crime".

Finally, at 6:22 p. m. on August 22nd, Glossup and another agent spotted the Ford parked in the driveway of a residence on Casino Avenue, later identified as the residence of ...