U.S. v. Ransom

• Decision Date: 09 July 1975
• Docket Number: No. 74-3754,74-3754
• Citation: 515 F.2d 885
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Elbert RANSOM and Joe Pat DeMour, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 885

515 F.2d 885

UNITED STATES of America, Plaintiff-Appellee, v. John Elbert RANSOM and Joe Pat DeMour, Defendants-Appellants.

No. 74-3754.

United States Court of Appeals, Fifth Circuit.

July 9, 1975.

Joe Salem, Atlanta, Ga., for Ransom.

Joseph E. Wilkerson, Tucker, Ga., for DeMour.

John W. Stokes, U. S. Atty., Jerome J. Froelich, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Georgia.

Before BROWN, Chief Judge, and GEWIN and THORNBERRY, Circuit Judges.

GEWIN, Circuit Judge:

John Elbert Ransom and Joe Pat DeMour appeal from judgments of conviction for possession of an unregistered machine gun in violation of 26 U.S.C. § 5861(d) ¹ and for violations of 18 U.S.C. App. § 1202(a)(1), which makes it unlawful for a convicted felon ² to receive, possess, or transport a firearm in or affecting commerce. They raise several challenges to the convictions: probable cause for their arrest, the government's dilatory response to motions to suppress, the admissibility of a tape recorded conversation between an informant and Ransom, correctness of the jury charge on possession and on circumstantial evidence, sufficiency of the evidence, and the constitutionality of 18 U.S.C. App. § 1201 et seq. ³ We find no merit in any of these contentions and affirm.

In early December, 1972, a private detective named Dennis Key arranged a meeting between Cobb County (Georgia) police officers Brice and Mull, who were working undercover, and Sidney Cecil Puett concerning the purchase of a truckload of stolen televisions. Puett claimed that the police found the truck and the sale never took place. Then around December 27, Puett contacted Brice and offered to sell some 9,000 pills. This deal never materialized because officer Brice did not think that the place chosen for the transaction was secure. Several days later, Puett approached Brice, showed him some amphetamines, and offered to sell 1,000 pills for $450. After giving Puett $450 for the pills, officers Brice and Mull arrested Puett.

After being advised of his rights at the police station, Puett told Major William Padgett that John Ransom had provided him with the pills. Puett agreed to set up a meeting with Ransom, ostensibly so that he could pay Ransom his share of the profits and so that Ransom might restock Puett's inventory of pills. From Major Padgett's office at the police station, Puett called Ransom's home at about 11 p. m.; he spoke with Mrs. Ransom and left Major Padgett's private office number so that the unsuspecting Ransom might return the call. About a half hour later, Ransom called and Puett arranged to meet him at a telephone booth in a certain trailer park. These telephone conversations were recorded, and officer Brice and Major Padgett testified at the suppression hearing that Puett knew that the calls were being recorded and that he consented thereto and spoke freely and voluntarily.

At approximately midnight, officers Brice and Mull, accompanied by Puett, drove to the trailer park and parked beside the telephone booth. Shortly thereafter, a pickup truck drove up and Puett got out, went over to the truck, and spoke to its occupants. He then came back to the officers' car and told them that payment had been made. When the pickup truck in which Ransom was riding began to back out of the parking lot, a police car containing Major Padgett pulled up and blocked it. The occupants were ordered out of the truck; Ransom got out on the passenger's side and DeMour on the driver's side. Both Ransom and DeMour were searched and DeMour, who could produce no identification, was recognized by Major Padgett as being wanted by federal authorities for failing to turn himself in after his appeal was terminated. A pistol was found on Ransom, carried in a makeshift case tucked in the back of his trousers. A search of the truck's cab ensued after one of the arresting officers noticed the barrel of a rifle protruding from under the front seat. The rifle was an M-2 and beside it was a .32 Smith & Wesson pistol. A Browning automatic pistol was also found under the seat and a double barrel sawed-off shotgun was on the seat partially wrapped in a towel. The testimony supports the reasonable inference that at least one of the weapons was in plain view. Collidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v. Wysocki, 457 F.2d 1155 (5th Cir. 1972).

Appellants Ransom and DeMour moved to suppress evidence obtained from the arrest and search and seizure. They argued that there was not sufficient probable cause to arrest without a warrant and claimed that the subsequent search and seizure was unlawful. The district court, finding sufficient probable cause for the arrests, denied the motion to suppress and appellants contend on appeal that this was error. Considering Puett's arrest barely two hours earlier and his statements implicating Ransom, the monitoring of the calls between Ransom and Puett, and the appearance of Ransom and DeMour shortly afterwards at the trailer court parking lot, we think that there were ample grounds to believe Ransom and DeMour had been and were at that time committing violations of the Georgia narcotics law. Moreover, at the time of the arrest, Ransom and DeMour were leaving the scene. It would have been totally unreasonable to require the police officers to have obtained an arrest warrant in view of these circumstances. There was probable cause to arrest, and the search and seizure incident thereto did not violate the Fourth Amendment. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Terry v Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

The facts of United States v. Johnson, 456 F.2d 295 (5th Cir. 1972), are particularly analogous to the facts of this case. Langner was arrested when customs agents found thirty-one pounds of marijuana in his camper van. He implicated the Johnson brothers of San Antonio in a scheme to import the marijuana from Mexico. After Langner agreed to cooperate with the federal agents, he telephoned Kenneth Johnson and arranged to meet him and his brother at a hospital parking lot. The meeting took place as planned and, from the parking lot, Langner and the Johnson brothers proceeded to the Johnson home, followed by customs and narcotics agents. There the agents arrested Kenneth in the driveway. In a motion to suppress, Kenneth contended that the seizure of the marijuana and his warrantless arrest were without probable cause. This court disagreed and held that, in view of the circumstances, there was probable cause for the arrest. See also United States v. Doyle, 456 F.2d 1246 (5th Cir. 1972); Rocha v. United States, 387 F.2d 1019 (9th Cir. 1967); United States v. Santiago, 327 F.2d 573 (2d Cir. 1964). The motion to suppress was properly denied. We reject the contention of the appellants that probable cause for the arrest and search and seizure should be governed by state rather than federal standards. It is clear that federal constitutional standards are applicable. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). This conclusion should not be understood as the slightest intimation that a different result would be reached if Georgia law was applied.

Appellants further contend that the district court erred in failing to grant their motions for suppression and for dismissal of the indictment on the ground that the government failed to respond to these motions within the time allowed. The original indictment was returned on July 10, 1973; appellant Ransom moved to dismiss the indictment and suppress evidence on September 21, 1973. Upon its motion stating that its response would be delayed while it sought a superceding indictment, the government was granted an extension of time to January 15, 1974, in which to file its responses. No response was filed within that period. Again, on March 22, 1974, Ransom moved for dismissal of the indictment as well as an order of suppression. On April 3, 1974, the superceding indictment was returned. Both appellants then moved for dismissal of the indictment and suppression of the evidence. These motions were denied following an evidentiary hearing held on August 9. As we stated above, we find no error in the district court's denial of the motion to suppress. While we do not approve of the government's dilatory actions, we do not think that this situation demands the harsh remedy of dismissing the indictment. In the first place, appellants have shown no prejudice because of the delay. Furthermore, the government has offered a reasonable explanation: it was delayed in obtaining the superceding indictment by difficulties in locating Puett and determining whether he would testify for the government. See generally Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

Appellants Ransom and DeMour argue that transcripts of the recorded telephone conversation between Ransom and Puett were inadmissible in evidence at the suppression hearing because the police officers who recorded the conversation did not comply with applicable state and federal law. The contention of appellant DeMour can be dealt with summarily. DeMour lacks standing to contest the admissibility of the transcripts since he was not a party to the conversation and had no legitimate expectation of privacy either through participation in the conversation or through a possessory interest in the tapes. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); United States v. Hunt, 505 F.2d 931 (5th Cir. 1974); United States v. Groner, 494 F.2d 499 (5th Cir. 1974). Ransom was a party to the conversation...