U.S. v. Sherriff, No. 76-1904

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore AINSWORTH and RONEY; AINSWORTH
Citation546 F.2d 604
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Benjamin Franklin SHERRIFF, Harles Junior Fyffe, a/k/a Joe Fyffe, Randall Guy Brady and Albert Mason, Defendants-Appellants.
Decision Date26 January 1977
Docket NumberNo. 76-1904

Page 604

546 F.2d 604
UNITED STATES of America, Plaintiff-Appellee,
v.
Benjamin Franklin SHERRIFF, Harles Junior Fyffe, a/k/a Joe
Fyffe, Randall Guy Brady and Albert Mason,
Defendants-Appellants.
No. 76-1904.
United States Court of Appeals,
Fifth Circuit.
Jan. 26, 1977.
Rehearing and Rehearing En Banc Denied March 4, 1977.

Page 605

J. Richard Young (Court-appointed), Atlanta, Ga., for Sherriff.

Marvin S. Arrington (Court-appointed), Joseph M. Winter, Atlanta, Ga., for Fyffe.

J. Hue Henry, Athens, Ga., P. Bruce Kirwan, Federal Public Defender, Atlanta, Ga., for Brady.

Ralph Washington, Asst. Federal Public Defender, Charles R. Smith, Atlanta, Ga., for Mason.

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

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

Page 606

Before AINSWORTH and RONEY, Circuit Judges, and ALLGOOD, * District judge.

AINSWORTH, Circuit Judge:

Appellants Sherriff, Fyffe, Brady and Mason were indicted for conspiracy to violate the Dyer Act, pertaining to interstate theft of motor vehicles, in violation of 18 U.S.C. § 371, and for a number of substantive violations of the Act, pursuant to 18 U.S.C. §§ 2312, 2313. They were each convicted by a jury under various counts of a 35-count indictment. We dispose of appellants' jury-selection challenge under the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq. by incorporating herein the reasoning of our opinion in United States v. Davis, 5 Cir., 1977, 546 F.2d 583, in which we today have rejected the same contention. Appellants raise several other issues which we also find to be without merit, and we therefore affirm.

Appellant Fyffe first specifies as error the trial court's refusal to grant certain requests in his motion, pursuant to Fed.R.Crim.P. 7(f), for a bill of particulars. Fyffe sought "(t)he exact location, including the street address, of the alleged illegal sale, receipt, transportation, and concealment of automobiles charged in all counts of the indictment." He claimed that he needed the information to prepare his defense. The decision whether to grant a motion for a bill of particulars is within the sound discretion of the trial court, and will not be disturbed on appeal absent a showing of prejudice or a clear abuse of discretion. United States v. Tucker, 5 Cir., 1976, 526 F.2d 279, cert. denied, 425 U.S. 958, 96 S.Ct. 1738, 48 L.Ed.2d 203; United States v. Baggett, 5 Cir., 1972, 455 F.2d 476; United States v. Bearden, 5 Cir., 1970, 423 F.2d 805, cert. denied, 400 U.S. 836, 91 S.Ct. 73, 27 L.Ed.2d 68; Downing v. United States, 5 Cir., 1965, 348 F.2d 594, cert. denied, 382 U.S. 901, 86 S.Ct. 235, 15 L.Ed.2d 155. The function of such a bill is to inform the defendant of the charge against him with enough precision that he can prepare his defense, and to avoid or at least minimize surprise at trial. Bearden, supra, 423 F.2d at 809; see Downing, supra, 348 F.2d at 599. The purpose is not to provide detailed disclosure before trial of the Government's evidence. United States v. Anderson, 4 Cir., 1973, 481 F.2d 685, 690, affirmed, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974); Downing, supra, 348 F.2d at 599. Appellant's request went beyond the information necessary to enable him to prepare for trial and to avoid surprise. The indictment adequately informed Fyffe of the charges against him. Thus, we find that the denial of appellant's motion was neither prejudicial nor was it an abuse of the trial court's discretion. Therefore, this contention is without merit.

Appellant Brady complains of the trial court's ruling that he lacked standing to challenge the admission of certain evidence seized in the motel room registered to a co-conspirator, Dye. 1 Brady was arrested, along with Dye and two others, in the act of stealing an automobile on the night before the seizure. At the jail, a detective found a receipt for a motel room in a wallet which the arresting officers had taken from Dye. The detective went to the motel to check further and, when he asked the innkeeper whether anyone was in the room, the latter said, "I don't know. Go up and see." The detective went up and found the door open and a maid inside the room. From the door, he could see that lying on the bed was an open briefcase, inside of which were a keymaking machine, blank keys, and a number of other keys; he also saw part of a towel rack, later identified as part of the towel rack found at the scene of the attempted auto theft, lying on the bed. The trial court denied Brady's motion to suppress the evidence seized in the motel room on the ground that he lacked standing. The "plain view" doctrine plainly validates the admission of the evidence, see, e.g., Ker v. California, 374 U.S. 23, 83 S.Ct.

Page 607

1623, 10 L.Ed.2d 726 (1963); Blassingame v. Estelle, 5 Cir., 1975, 508 F.2d 668; Davis v. United States, 5 Cir., 1969, 409 F.2d 1095, 2 and since Brady cannot prevail on the merits of this issue, we need not determine...

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34 practice notes
  • U.S. v. Elam, No. 81-1042
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 21, 1982
    ...of the government's case with total specificity. United States v. Anderson, 481 F.2d 685 (4th Cir. 1973); United States v. Sherriff, 546 F.2d 604 (5th Cir. 1977). The admission of evidence which has not been properly identified in any pretrial order or other procedure is largely a matter fo......
  • United States v. Thevis, Crim. No. C78-180A.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • June 18, 1979
    ...that a motion for Bill of Particulars is a carte blanche to the defense to investigate the government's case, United States v. Sherriff, 546 F.2d 604, 606 rehearing denied 549 F.2d 204 (5 C.A.1977); United States v. Leonelli, 428 F.Supp. 880 (S.D.N.Y.1977), and the motion is not a discovery......
  • Wood v. State, No. 67486
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 3, 1982
    ...States v. Forrest, 620 F.2d 446 (5th Cir. 1980); United States v. Duckett, 583 F.2d 1309 (5th Cir. 1978); United States v. Sherriff, 546 F.2d 604 (5th Cir. 1977); United States v. Wood, 500 F.2d 681 (5th Cir. 1974); United States v. Faulkner, 488 F.2d 328 (5th Cir. 1974); United States v. B......
  • United States v. Rogers, Crim. A. No. 84-CR-337.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • September 25, 1985
    ...case." Thevis, 474 F.Supp. 117, 123; see also United States v. Litman, 547 F.Supp. 645, 654 (W.D.Penn. 1982); United States v. Sherriff, 546 F.2d 604, 606 (5th Cir.1977); United States v. Leonelli, 428 F.Supp. 880, 882 (S.D.N.Y. 1977). It is well-settled that "a bill of particulars may not ......
  • Request a trial to view additional results
34 cases
  • U.S. v. Elam, No. 81-1042
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 21, 1982
    ...of the government's case with total specificity. United States v. Anderson, 481 F.2d 685 (4th Cir. 1973); United States v. Sherriff, 546 F.2d 604 (5th Cir. 1977). The admission of evidence which has not been properly identified in any pretrial order or other procedure is largely a matter fo......
  • United States v. Thevis, Crim. No. C78-180A.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • June 18, 1979
    ...that a motion for Bill of Particulars is a carte blanche to the defense to investigate the government's case, United States v. Sherriff, 546 F.2d 604, 606 rehearing denied 549 F.2d 204 (5 C.A.1977); United States v. Leonelli, 428 F.Supp. 880 (S.D.N.Y.1977), and the motion is not a discovery......
  • Wood v. State, No. 67486
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 3, 1982
    ...States v. Forrest, 620 F.2d 446 (5th Cir. 1980); United States v. Duckett, 583 F.2d 1309 (5th Cir. 1978); United States v. Sherriff, 546 F.2d 604 (5th Cir. 1977); United States v. Wood, 500 F.2d 681 (5th Cir. 1974); United States v. Faulkner, 488 F.2d 328 (5th Cir. 1974); United States v. B......
  • United States v. Rogers, Crim. A. No. 84-CR-337.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • September 25, 1985
    ...case." Thevis, 474 F.Supp. 117, 123; see also United States v. Litman, 547 F.Supp. 645, 654 (W.D.Penn. 1982); United States v. Sherriff, 546 F.2d 604, 606 (5th Cir.1977); United States v. Leonelli, 428 F.Supp. 880, 882 (S.D.N.Y. 1977). It is well-settled that "a bill of particulars may not ......
  • Request a trial to view additional results

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