U.S. v. Bullock, 78-5252

• Decision Date: 21 February 1979
• Docket Number: No. 78-5252,78-5252
• Citation: 590 F.2d 117
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gene Grady BULLOCK, a/k/a Grady Gene Bullock, Defendant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 117

590 F.2d 117

UNITED STATES of America, Plaintiff-Appellee, v. Gene Grady BULLOCK, a/k/a Grady Gene Bullock, Defendant-Appellant.

No. 78-5252

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

Feb. 21, 1979.

Stuart R. Thomson, Lewis O. Unglesby, Baton Rouge, La., for defendant-appellant.

Donald L. Beckner, U. S. Atty., C. Michael Hill, Asst. U. S. Atty., Baton Rouge, La., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Louisiana.

Before GOLDBERG, AINSWORTH and HILL, Circuit Judges.

AINSWORTH, Circuit Judge:

Gene Grady Bullock appeals his conviction on five counts of possession of a firearm by a convicted felon in violation of 18 U.S.C.App. § 1202(a)(1). ¹ He contends that the firearms in question were discovered and seized by government agents as the result of an unconstitutional search and, furthermore, that he never had an adequate opportunity to present and argue his fourth amendment claim. We reject his contentions and affirm his conviction.

In March of 1977 the Bureau of Alcohol, Tobacco and Firearms began surveillance of appellant Bullock when an anonymous telephone caller stated that Bullock, a convicted felon, was in possession of firearms. After periodic surveillance of Bullock's home from March until August of 1977 yielded no evidence of firearms, an undercover agent, Lloyd Grafton, contacted Bullock under the pretense of interest in joining the Ku Klux Klan, in which both Bullock and his wife were participating at the time. Grafton arranged a meeting which ultimately took place on August 15, 1977, in the parking lot of a shopping center. Bullock took Grafton in his pickup truck from the parking lot to his home, where they went into the den area. There, according to Grafton's testimony, Bullock opened a wooden cabinet, displaying several firearms, including two automatic weapons, in response to Grafton's comment that Bullock needed "protection." According to the testimony of Bullock's wife, however, the undercover agent opened the cabinet on the pretense of admiring it. In either event, uncontradicted testimony indicated that the cabinet was opened in the presence of the defendant, without any coercion by the undercover agent and without any objection by the defendant or his wife.

After spending approximately an hour in the Bullock residence, Bullock drove Grafton back to the parking lot where they met. As they were leaving, according to Grafton's uncontradicted testimony, Bullock took a pistol from under the seat of his pickup truck and displayed it to Grafton. When they reached the parking lot, Grafton gave a prearranged signal to surveillance agents who immediately arrested Bullock and took the pistol from the car. Subsequently, the agents returned with a warrant to Bullock's house and seized four weapons from the gun cabinet.

On October 12, 1977, the Government indicted Bullock on five counts of possession of a firearm by a convicted felon, referring to the four weapons seized from the cabinet and the pistol seized from the pickup truck. On October 31, 1977, counsel for Bullock filed motions to suppress and to quash the arrest or dismiss the indictment, claiming that the firearms in the cabinet were discovered in an unconstitutional search by the undercover agent, that the pistol was discovered in a search pursuant to an unlawful arrest, and that the arrest was made on probable cause predicated upon the fruits of an illegal search. On joint motion of the parties, a suppression hearing before a magistrate originally scheduled for November 18, 1977, was rescheduled for December 1, 1977. ² On December 1, when the motions were called, neither the defendant nor his counsel appeared. As a result, in a report dated December 7 and filed December 9, the magistrate recommended to the district court that the defendant's motions be considered abandoned or, in the alternative, that they be denied for failure of the defendant and his counsel to appear at the suppression hearing scheduled for December 1. On December 9, at a hearing on an order to show cause why Bullock's bond should not be revoked, Bullock's counsel explained that on December 1 he was trying another case and that, although his office received notice of the rescheduled suppression hearing, the new date had not been marked on his calendar. After modifying the terms of Bullock's bond, the magistrate expressly informed counsel of the right to file objections to his report with the district court within ten days. No such objections were filed, and, on December 28, the district court denied defendant's various motions, adopting the findings and reasoning of the magistrate.

On February 14, at the start of trial (immediately prior to the Government's opening statement), counsel for Bullock again moved to suppress the evidence (the firearms) seized from his home and car. The motion was summarily denied, without discussion, apparently on the ground that equivalent motions had been previously denied on account of the defendant's failure to appear at the suppression hearing before the magistrate. Subsequently, after direct and cross-examination of the undercover agent, Grafton, Bullock's counsel objected to the introduction of the firearms into evidence. At that point, the district judge sent out the jury and allowed Bullock's counsel to argue that the seizure of the weapons resulted from an unconstitutional search. The gist of the argument was that Grafton acted illegally in discovering the firearms because he never identified himself as an undercover agent and therefore tricked Bullock into revealing the guns. Bullock's counsel made no offer of additional proof of illegality, relying solely on the testimony, on both direct and cross-examination, of Grafton. In particular, counsel made no attempt to contradict Grafton's testimony that Bullock opened the cabinet.

At the conclusion of counsel's argument, the trial judge denied the motion to suppress on two independent grounds. First, reaffirming his earlier decisions on the issue, he concluded that under the Federal Rules of Criminal Procedure the defendant had waived his right to object to the introduction of the firearms by failing to appear at the scheduled suppression hearing. ³ Second, reaching the merits of the fourth amendment argument, he concluded that the discovery of the weapons was not tainted by the mere fact that Grafton acted as an undercover agent and, furthermore, that Bullock had waived his fourth amendment rights when he voluntarily permitted the agent into his home and voluntarily showed him the guns. After denial of the motion to suppress, the trial continued. The defendant's counsel made no further motion for suppression of the firearms and made no further motion for acquittal at the conclusion of the trial.

In his brief on appeal, Bullock (represented by new counsel) argues that he deserves another chance to present his fourth amendment claim for consideration by the trial judge. If given that opportunity, he claims that he can establish that Grafton, the undercover agent, had been informed that the guns were in the cabinet, that he denied to Grafton any knowledge of the weapons, and that Grafton opened the gun cabinet under the pretense of acting curious as to how it opened. Furthermore, he claims that he can establish that he never showed Grafton the...