U.S. v. Thompson, 78-5400

• Decision Date: 08 April 1980
• Docket Number: No. 78-5400,78-5400
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James McClellan THOMPSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 233

612 F.2d 233

UNITED STATES of America, Plaintiff-Appellee, v. James McClellan THOMPSON, Defendant-Appellant.

No. 78-5400.

United States Court of Appeals Sixth Circuit.

Argued Feb. 21, 1979.

Decided June 15, 1979.

On Rehearing Jan. 15, 1980.

Rehearing Denied April 8, 1980.

William H. Fortune, Federal Defender, Eldon L. Webb, Lexington, Ky., for defendant-appellant.

Patrick H. Molloy, U. S. Atty., Joseph L. Famularo, John A. West, Asst. U. S. Attys., Lexington, Ky., for plaintiff-appellee.

Before CELEBREZZE, KEITH and MERRITT, Circuit Judges.

MERRITT, Circuit Judge.

On November 3, 1977, the defendant allegedly stole and slaughtered a "bull cow" from a neighbor's pasture in rural Bath County in the hills of eastern Kentucky. The next day his girl friend, with whom he had been living, told an officer of the Kentucky state police about the crime and also told the officer that the defendant kept an illegal sawed-off shotgun at his house trailer. A warrant was issued authorizing a search of the house trailer for the cow and the firearm. The girl friend let the officers into the trailer pursuant to the warrant where they found the firearm but not the cow. On the basis of this and other evidence, the defendant was convicted in state court of stealing the cow and given a sentence of five years' imprisonment, and he was convicted in federal court of possession of an illegal gun under the National Firearms Act, 26 U.S.C. §§ 5861(d), 5871 (1976), for which he received a sentence of eight years' imprisonment to run consecutively and in addition to the five year state sentence a total of thirteen years imprisonment.

The defendant appeals the federal judgment of conviction entered on the jury verdict for the firearms offense. His basic defense before the jury was that his girl friend was lying and that he knew nothing of the firearm. The case made a jury issue, and we cannot reverse on grounds that the evidence was insufficient. Neither can we reverse on grounds that three prior felony convictions were improperly admitted under Rule 609, Fed.Rules Evid. One of the convictions was for stealing the cow. Another was another firearm conviction in 1974 and the third was for attempted burglary in Oregon in 1967, for which he was discharged from prison there in 1970. Under Rule 609(a), the District Judge need not specifically find on the record, as defendant argues, that the probative value of the convictions outweighs their prejudicial effect when the government uses them to attack the defendant's credibility on cross-examination. The rule requiring a special finding of probative value does not apply to recent convictions under 609(a), although it does apply to old convictions under 609(b).

Neither can we find a defect in the search warrant. Technically it was adequate. There was probable cause to believe the firearm would be found, as it was, and the fact that police included the cow in the warrant, an item they should have known was not at the trailer, does not invalidate the warrant. The erroneous inclusion in the warrant of the cow, in addition to the gun, does not broaden the intrusion on defendant's fourth amendment privacy and property interests.

We are seriously disturbed by this case, however, even though we do not find a basis for reversal. Although the sentence is within the law, and we do not have jurisdiction to reverse because we disagree with the sentence, it seems unduly harsh and unjust eight years for the firearm plus the five years for stealing the cow. The defendant may or may not be a "bad man," but the...