U.S. v. Pruett
| Decision Date | 13 May 1977 |
| Docket Number | No. 76-2825,76-2825 |
| Citation | 551 F.2d 1365 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gerald Leon PRUETT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Peter F. K. Baraban, No. Miami, Fla., George D. Gold, Miami, Fla., for defendant-appellant.
John W. Stokes, U.S. Atty., Jerome J. Froelich, Jr., Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before COLEMAN, MORGAN and HILL, Circuit Judges.
Appellant and his wife were indicted on October 7, 1975, on six counts:
Count I: Conspiracy to import cocaine in violation of 21 U.S.C., § 963; Count II: Importation of cocaine in violation of 21 U.S.C., § 952(a);
Count III: Possession with intent to distribute cocaine in violation of 21 U.S.C., § 841(a)(1);
Count IV: Possession of methaqualone in violation of 21 U.S.C., § 844(a);
Count V: Possession of marijuana (by Mrs. Pruett alone) in violation of 21 U.S.C., § 844(a);
Count VI: Possession with intent to distribute marijuana in violation of 21 U.S.C., § 841(a)(1).
Prior to trial the government withdrew Count IV. Count V was dismissed during the trial when the Court suppressed the marijuana evidence involved in that Count.
Two additional motions to suppress were filed by the appellant prior to trial, the first was directed to the Count VI marijuana which was found in two suitcases in an automobile seized at the house and the second aimed at evidence obtained by wiretap. These motions were denied by the magistrate, whose decision was affirmed by the District Judge.
At the close of the government's case in chief and again at the close of all the evidence the appellant unsuccessfully moved for judgments of acquittal as to all pending counts. The jury acquitted Mrs. Pruett of all charges and convicted the husband on Counts I, II, III, and VI. Motions for judgment notwithstanding the verdict and for a new trial were denied, hence this appeal.
We find the evidence insufficient to sustain the convictions on Counts I, II, and III. We further hold that the evidence found in the seized automobile should have been suppressed. The result is that the convictions on all Counts are reversed.
Viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the material facts were as follows:
On May 16, 1975, a small parcel arrived in the United States at the Post Office in Miami, addressed to:
The return address which appeared at the top left-hand corner in small letters, read "Bogota, Colombia".
Agent Hanson, of the United States Customs Service, was "working the international mail" with a narcotic detector dog when the dog "stopped and alerted him" to the package from Colombia. After taking the parcel aside and removing the exterior wrapping, Hanson found a small box, encapsulating yet a smaller box. The smaller box housed a "powder puff" cannister, the contents of which revealed some loose white powder and a plastic bag containing a "brownish white substance".
The substance in the plastic bag was field-tested positive for cocaine and weighed at 84 grams.
After the initial confirmation of the contraband cocaine, Agent Hanson contacted the Drug Enforcement Administration which decided to make a "controlled delivery" of the parcel. It was rewrapped and forwarded by mail to Atlanta where Customs and DEA Agent Goodowens opened it and for the second time field-tested the contents.
After a second test proved positive, Goodowens substituted the cocaine contents of the bag with baking soda, leaving only what cocaine residue remained on the inside of the bag after it was initially emptied.
On July 10, 1975, Goodowens personally carried the package to its intended destination in Mableton, Georgia, placed it in the post office, and began surveillance operations. A notice slip was placed in Box 373, to inform the addressee that a package waited at the pick-up window.
At approximately 2:25 P.M. on July 14, 1975, Mrs. Cheryl Pruett arrived at the post office, removed the call notice from Box 373, presented it at the window, and received the package.
Agent Goodowens trailed her to her residence at 6806 Temple Circle in Mableton, where she was observed carrying the package into the house at 2:55 P.M.
At this point, he radioed this information to other agents, so that a search warrant could be issued. After about an hour and twenty minutes had elapsed, Goodowens received word that the warrant had issued. He and several narcotics agents from the Cobb County Police Department then approached the residence and knocked on the door. A Mr. Langford opened the door and shortly thereafter Mr. Pruett was observed coming up a flight of stairs from a "basement area". Goodowens identified himself and told Pruett that he had a search warrant covering his residence. He then became aware of the presence of Mrs. Pruett and her small daughter in the living room area. While the other agents fanned out to search various rooms in the house, Goodowens and Mr. and Mrs. Pruett remained in the living room. Several minutes later, one of the Cobb County Detectives called from the downstairs area "I think I have found it". Goodowens then went downstairs where he found the package on a desk in a work office area.
He returned to the upstairs living room with the package, placed it on a table in front of the Pruetts, and informed them that it contained cocaine. He advised them that they were under arrest for the possession of cocaine and read them their rights.
Goodowens observed that "the outer wrapper had been opened or at least had been torn and masking tape had been put on it . . .". The outer box .
As Goodowens and the other agents were preparing to leave, a decision was made to seize the vehicle which transported the controlled substance. Goodowens testified that the normal procedure for such a seizure involved an inventory search, whereby possessions of the owner are returned to him "if it is not considered a part of the vehicle".
A search was conducted of the Pruett vehicle. Two suitcases were found in the trunk. Goodowens asked Mr. Pruett if they were his, to which he replied "yes". The suitcases were then opened revealing slightly over a pound of marijuana.
Evidence indicated that Pruett intended to distribute the marijuana. Goodowens testified that, in his experience, that quantity of marijuana, would not be obtained simply for personal use. Additionally, Detective Brice, also present during the opening of the suitcase, testified that the defendant stated in his presence that "he was going to take the marijuana to friends in Blue Ridge".
Mrs. Pruett was the only witness called by the defense. Her basic contention was that neither she nor her husband had any knowledge of the contents of the package received at the post office.
Mrs. Pruett's testimony regarding what transpired after she returned home with the package is as follows:
.
According to Mrs. Pruett's testimony at no time were she and her husband aware of the contents of the package. She further denied any knowledge on her part of the marijuana found in the suitcases pursuant to the search of the automobile.
An integral part of the government's case concerned the highly controversial admission of testimony regarding a conversation between the defendant Mr. Pruett and one Toney Davis, gleaned through a wiretap of Davis' telephone. The actual tape recording was not introduced as evidence at trial.
The substance of a recorded conversation of March 31, 1975, between Mr. Pruett and Davis was recounted by James Strayhorn, a narcotics detective for the Cobb County Police Department and a key government witness. Strayhorn had been privy to the conversation as the officer in charge of conducting the wiretap in question. Strayhorn's testimony was as follows:
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