U.S. v. Davis, No. 77-5652

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore TJOFLAT and HILL; PATRICK E. HIGGINBOTHAM
Citation582 F.2d 947
PartiesUNITED STATES of America, Plaintiff-Appellee, v. H. P. DAVIS, Arnold Harkless, Jr., and Billy Earl Clayton, Defendants-Appellants.
Docket NumberNo. 77-5652
Decision Date25 October 1978

Page 947

582 F.2d 947
UNITED STATES of America, Plaintiff-Appellee,
v.
H. P. DAVIS, Arnold Harkless, Jr., and Billy Earl Clayton,
Defendants-Appellants.
No. 77-5652.
United States Court of Appeals,
Fifth Circuit.
Oct. 25, 1978.

Page 949

Arnold Harkless, Jr., pro se.

H. P. Davis, pro se.

Billy Earl Clayton, pro se.

Donald O. Ferguson, San Antonio, Tex. (Court-appointed), for Davis.

Raul Rivera, San Antonio, Tex. (Court-appointed), for Clayton.

J. Douglas McGuire, San Antonio, Tex. (Court-appointed), for Harkless.

Jamie C. Boyd, U. S. Atty., LeRoy M. Jahn, Asst. U. S. Atty., Robert S. Bennett, Trial Atty., San Antonio, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before TJOFLAT and HILL, Circuit Judges, and HIGGINBOTHAM, * District Judge.

PATRICK E. HIGGINBOTHAM, District Judge:

Defendants H. P. Davis, Billy Earl Clayton, and Arnold Harkless, Jr. were convicted in the Western District of Texas of conspiracy to possess heroin with the intent to distribute, in violation of 21 U.S.C. § 846, and possession with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Each received sentences of ten years on each charge to be served consecutively. 1 They join in this appeal. 2 The defendants' complaints fall into three groups: (1) failure of the prosecution to disclose a plea agreement with its chief witness; (2) the denial of four pretrial motions; and (3) evidentiary rulings. For the reasons that follow, we reject these claims of error and affirm.

The three defendants were indicted on May 10, 1977, and all entered pleas of not guilty on May 20, 1977. Defendants later filed numerous pretrial motions. The parties appeared on June 1 and the trial was scheduled for July 11, 1977. On July 11 the case was called to trial, a jury was selected, and the case was commenced two days later on July 13. After a trial of less than one day and jury deliberations of less than one hour, the defendants were found guilty on both counts.

One of the government's key witnesses was a 61-year old male named Kinslo Davis. He testified that on Sunday, April 17, 1977, he received a telephone call from a man who identified himself as "Hawk's cousin." Hawk had purchased heroin from Kinslo Davis at other times. Hawk's cousin asked and Kinslo Davis answered that he could furnish heroin if "the man" was available. It later developed that "Hawk's cousin" is the defendant, H. P. Davis.

The following Tuesday morning Kinslo Davis received a second call from H. P.

Page 950

Davis asking if he had the heroin. On learning that Kinslo Davis had made contact with "the man", H. P. Davis stated that he would come to San Antonio from Houston that day. H. P. Davis arrived in San Antonio and telephoned Kinslo Davis at the Hackberry Street Bar. Kinslo Davis instructed the defendants to meet him at a certain washateria and learned that he could identify H. P. Davis as the driver of a black and gold pickup truck. Unknown to Kinslo Davis, and unfortunate for H. P. Davis and his compatriots, D.E.A. agents had the Hackberry Street Bar under surveillance. The agents observed Kinslo Davis leave the bar. Following Kinslo Davis, the agents observed him pull his Cadillac behind the black and gold pickup. While the surveillance continued, H. P. Davis got out of the pickup and joined Kinslo Davis in the Cadillac. H. P. Davis asked Kinslo Davis if he had "the stuff." Kinslo Davis said that he did. H. P. Davis had the money. The pickup and the Cadillac departed to a nearby park where the vehicles were parked side by side. There defendants Clayton and H. P. Davis left the pickup and joined Kinslo Davis in the Cadillac, tendering the purchase money for two ounces of heroin; Kinslo Davis immediately found it $50 short of the agreed upon $1,200. H. P. Davis left the Cadillac, returned to the pickup, obtained the additional $50 from the defendant Harkless, and returned to the vehicle. The money delivered to Kinslo Davis was in small denominations, mostly $10's, but none larger than a $50 note. All parties left the park, followed by the same D.E.A. agents. Kinslo Davis then delivered $1,200 he had just received from defendants to Rogelio Galindo, his source. Kinslo Davis had been a heroin runner for Galindo for some period of time during which he had been entrusted with substantial quantities of drugs and money. After he handed the money over to Galindo, Kinslo Davis was arrested at a supermarket.

Surveillance agents also followed the pickup truck (containing defendants H. P. Davis, Harkless, and Clayton) to Interstate Highway 10 where the agents were satisfied it was heading east towards Houston, Texas. Later that evening, acting on the information of agents in San Antonio, Officer B. J. Gallatin of the Houston Police Department spotted the truck on Interstate 10 and in the city limits of Houston. During an ensuing high speed chase two objects were thrown from the pickup truck by the passenger on its right side. One of the objects struck the windshield of Officer Gallatin's car in a burst of powder. The other object went over the top of the police car. Another police vehicle stopped and recovered the packets thrown from the pickup during the chase. Although the officer recovered only one-third of the packet which struck the windshield, he retrieved the other packet intact. Officer Gallatin succeeded in stopping the vehicle and was joined at the arrest site by Officer Harrison who had recovered the heroin. As he approached H. P. Davis, H. P. Davis volunteered "Officer Harrison, I guess you have me this time." The packets contained 30.5 grams of 1.6% Heroin. According to the testimony of Houston police officials, the quantity could be divided into approximately 110 foil packets or "balloons" with a resale value of approximately $50 each, aggregating a resale price of some $5,000.

The first group of errors urged by defendants revolves around a factual...

To continue reading

Request your trial
93 practice notes
  • United States v. Fischbach and Moore, Inc., Crim. No. 83-98.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 22, 1983
    ...30 L.Ed.2d 812 (1972). See also, Will v. United States, 389 U.S. 90, 99, 88 S.Ct. 269, 275, 19 L.Ed.2d 305 (1967); United States v. Davis, 582 F.2d 947, 951 (5th Cir.1978), cert. denied, 441 U.S. 962, 99 S.Ct. 2408, 60 L.Ed.2d 1067 576 F. Supp. 1389 It is well established that a bill of par......
  • U.S. v. Martinez, Cause No. 3:08-CR-3354-KC.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • February 27, 2009
    ...purposes, the trial court's decision is almost invariably final.21 See Mackey, 551 F.2d at 970; Page 809 see also United States v. Davis, 582 F.2d 947, 951 (5th Cir.1978) (determination of whether bill of particulars is needed is "seldom subject to precise line Having reviewed the Indictmen......
  • U.S. v. Stevens, Cr. Nos. 10–0200–01
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • April 27, 2011
    ...Fed.Appx. 61, 71 (5th Cir.2005) (citing United States v. Montemayor, 703 F.2d 109, 117 (5th Cir.1983)); see also United States v. Davis, 582 F.2d 947, 951 (5th Cir.1978). “A bill of particulars is not required if a defendant is otherwise provided ... with sufficient information to enable hi......
  • State v. Wright, No. 73507
    • United States
    • United States State Supreme Court of Kansas
    • January 26, 1996
    ...of jeopardy). Again, one of the purposes of a bill of particulars is to "illuminate the dimensions of jeopardy." United States v. Davis, 582 F.2d 947, 951 (5th Cir.1978). See State v. Myatt, 237 Kan. 17, 29, 697 P.2d 836 (1985); State v. Henderson, 226 Kan. at 734, 603 P.2d 613; see also U.......
  • Request a trial to view additional results
93 cases
  • United States v. Fischbach and Moore, Inc., Crim. No. 83-98.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 22, 1983
    ...30 L.Ed.2d 812 (1972). See also, Will v. United States, 389 U.S. 90, 99, 88 S.Ct. 269, 275, 19 L.Ed.2d 305 (1967); United States v. Davis, 582 F.2d 947, 951 (5th Cir.1978), cert. denied, 441 U.S. 962, 99 S.Ct. 2408, 60 L.Ed.2d 1067 576 F. Supp. 1389 It is well established that a bill of par......
  • U.S. v. Martinez, Cause No. 3:08-CR-3354-KC.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • February 27, 2009
    ...purposes, the trial court's decision is almost invariably final.21 See Mackey, 551 F.2d at 970; Page 809 see also United States v. Davis, 582 F.2d 947, 951 (5th Cir.1978) (determination of whether bill of particulars is needed is "seldom subject to precise line Having reviewed the Indictmen......
  • U.S. v. Stevens, Cr. Nos. 10–0200–01
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • April 27, 2011
    ...Fed.Appx. 61, 71 (5th Cir.2005) (citing United States v. Montemayor, 703 F.2d 109, 117 (5th Cir.1983)); see also United States v. Davis, 582 F.2d 947, 951 (5th Cir.1978). “A bill of particulars is not required if a defendant is otherwise provided ... with sufficient information to enable hi......
  • State v. Wright, No. 73507
    • United States
    • United States State Supreme Court of Kansas
    • January 26, 1996
    ...of jeopardy). Again, one of the purposes of a bill of particulars is to "illuminate the dimensions of jeopardy." United States v. Davis, 582 F.2d 947, 951 (5th Cir.1978). See State v. Myatt, 237 Kan. 17, 29, 697 P.2d 836 (1985); State v. Henderson, 226 Kan. at 734, 603 P.2d 613; see also U.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT