United States v. Guinn, No. 71-1398 Summary Calendar.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: PER CURIAM
• Citation: 454 F.2d 29
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Lee GUINN, Jr., et al., Defendants-Appellants.
• Docket Number: No. 71-1398 Summary Calendar.
• Decision Date: 08 March 1972

454 F.2d 29 (1972)

UNITED STATES of America, Plaintiff-Appellee,
v.
Lawrence Lee GUINN, Jr., et al., Defendants-Appellants.

No. 71-1398 Summary Calendar.*

United States Court of Appeals, Fifth Circuit.

January 5, 1972.

Rehearing and Rehearing Denied March 8, 1972.

454 F.2d 30

COPYRIGHT MATERIAL OMITTED

454 F.2d 31

William F. Walsh, Houston, Tex., Charles W. Tessmer, Dallas, Tex., James A. Moore, Houston, Tex., for defendants-appellants

Anthony J. P. Farris, U. S. Atty., James R. Gough, Edward B. McDonough, Jr., Joe Doucette, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied March 8, 1972.

WISDOM, Circuit Judge.

This case involves the use in interstate commerce of a trailer as a gambling house.

On April 20, 1964, defendant-appellant Billy Ray Grimes, accompanied by defendant-appellant, Jere Bedford Jordan, ordered a specially constructed mobile home from a manufacturer in Roanoke, Texas. The mobile home contained two bedrooms, a kitchen modified into a bar, and a large room that could be expanded from common highway dimensions to a width of 24 feet and a length of 54 feet Grimes told the manufacturer that the mobile home was to be used for business entertainment. For the next three years the business entertainment turned out to be gambling. About May 26, 1964, Grimes and Jordan had the trailer set up by Grapevine Lake near Fort Worth, Texas. A witness at the trial testified that he "could hear people making bets" while employed as a bartender in the mobile home at Grapevine Lake. Early in 1965, Cullen James Rowan moved the trailer to Fort Worth at the request of Grimes, and, during July 1965, Rowan, assisted by a Mr. Chapman, moved the trailer to Forney, Texas. A witness who worked for Grimes while the trailer was in Forney and folded it for its next journey testified that he saw Jordan at the trailer and that he may have seen defendant-appellant, Lawrence Lee Guinn. There was no evidence of gambling in the trailer at Forney. In June 1966, Rowan and William A Chapman, the brother of the earlier Chapman, moved the trailer to a site near Checotah, Oklahoma. Grimes, Jordan, and defendant-appellant, Mrs. Jessie Jewell Jordan were convicted of gambling offenses in Oklahoma state court while they were in Checotah. There was no evidence that Guinn was in Oklahoma.

About January 12, 1967, Rowan and Chapman, at the request of Grimes, moved the trailer to Rowan's mobile home lot in Fort Worth, Texas. There was contradictory testimony as to whether the stop in Fort Worth was caused by engine trouble in the tractor which was pulling the mobile home or was for the purpose of selling the mobile home,¹ but about February 9, 1967, Rowan and Chapman moved the trailer to a site on the Brazos River near Sealy, Texas. Grimes, Jordan, and Mrs. Jordan were in Houston before the arrival of the trailer, and Guinn, a native of Houston, had leased the land where the trailer was to be set up, ostensibly for a hunting and fishing club.

During March, April, and May, Guinn directed the gambling in the mobile home. On May 5, 1967, Texas Rangers,

454 F.2d 32

acting under a search warrant, searched the trailer. A state court convicted Guinn of gambling offenses. The evidence gained as a result of the search was turned over to federal officials. On December 6, 1967, F.B.I. agents, under a search warrant, found that the serial number of the trailer had been changed

Grimes, Guinn, Jordan, and Mrs. Jordan were indicted on July 2, 1968, for traveling in interstate commerce with intent to carry on a gambling enterprise in violation of 18 U.S.C. § 1952² and for conspiracy to violate that statute in violation of 18 U.S.C. § 371.³ A jury found all four defendants guilty on the substantive and conspiracy counts, except Mrs. Jordan who was granted a directed verdict of acquittal on the substantive offense. The trial judge denied a motion for a new trial.

I. Sufficiency of the Evidence

The appellants contend, first, that the evidence was insufficient as a matter of law to show that the intent of the interstate travel was to promote a gambling enterprise. An essential element of the offense defined by 18 U.S.C. § 1952, and derivatively 18 U.S.C. § 371, is travel in interstate commerce "with intent to" promote a gambling enterprise. The appellants contend that the interstate travel was from Checotah, Oklahoma to Fort Worth, Texas, where the interstate journey ended. This portion of the Oklahoma to Sealy, Texas, trip, they contend, was made without the requisite intent. The Fort Worth to Sealy portion of the trip, they argue, was a separate journey, and, even if made with the requisite intent, did not violate the statute because of the absence of interstate travel.

The evidence on this point was contradictory, but taking the view of the evidence most favorable to the government, Glasser v. United States, 1944, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, as we must, there was substantial evidence from which the jury might conclude that this element of the crime was established beyond a reasonable doubt. There was evidence that the move was intended to be from Oklahoma to Sealy, that the stop in Fort Worth was to correct engine trouble, and that the journey from Oklahoma to Sealy was paid for as one unit. The appellants were forced to leave Oklahoma because of discovery of their gambling activities, and they were in the Houston area shortly afterwards preparing to establish operations in Sealy.

The appellants place too much emphasis on the physical movement of the trailer and the fact that the trailer was in Fort Worth for more than three weeks. The gravamen of the offense is not the movement of the trailer in interstate commerce with the requisite intent but rather the travel of the defendants. Admittedly, the movement of the trailer

454 F.2d 33

was, as the indictment alleged, part of the scheme, and the jury was instructed on this alleged aspect of the offense. There was substantial evidence that the defendants traveled in interstate commerce with the requisite intent. This element of the crime could be established on the basis of the movement of the trailer from Oklahoma to Sealy or on the basis of the defendants' travel independent of the trailer

The appellants also contend that the evidence was insufficient to establish venue in the Southern District of Texas. As to the conspiracy count, an overt act in the Southern District of Texas must be proved to establish venue; as to the substantive count, travel in the Southern District of Texas with the requisite intent must be shown. There was ample evidence to support venue. See 18 U.S.C. § 3237.

Finally, the appellants argue that the trial judge erred in failing to rule on their motion for judgment of acquittal because of insufficient evidence at the close of the Government's case. See Jackson v. United States, 5 Cir. 1958, 250 F.2d 897; Montoya v. United States, 5 Cir. 1968, 402 F.2d 847. Their reliance on the deferred-ruling doctrine is misplaced. The doctrine means only that a defendant is entitled to a judgment of acquittal if the evidence at the close of the Government's case is insufficient, and that the trial judge may not, be deferring decision on the defendant's motion, allow sufficient evidence to be supplied by the defense or by the prosecution on rebuttal. If the evidence is sufficient when the prosecution rests, as it is in the instant case, any error in failing to rule promptly on the motion is harmless. See Cooper v. United States, 5 Cir. 1963, 321 F.2d 274, 277.

II. Search Warrant Validity

The appellants object to the introduction of evidence seized in the search by Texas Rangers on May 5, 1967 and in the search by F.B.I. agents on December 6, 1967. Both searches were made on the authority of search warrants, and the appellants direct their attack at the validity of the warrants.

The search warrants issued to Texas Rangers was based on an affidavit executed by a sergeant in the Texas Rangers.⁴ The appellants contend that

454 F.2d 34

the affidavit was insufficient to establish probable cause to support a search warrant. After the Supreme Court decision in United States v. Harris, 1971, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723, we have no doubt that the affidavit was sufficient to support a finding of probable cause

In Harris, a warrant authorizing a search of the defendant's premises was issued on the basis of a federal tax investigator's affidavit.⁵ The Supreme Court held the affidavit sufficient, distinguishing Aguilar v. Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 and Spinelli v. United States, 1969, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and relying on Jones v. United States, 1962, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed. 2d 697. The affidavit submitted in the instant case has the elements found to be important in Harris and more. First, the affidavit in the case at bar contains "ample factual basis for believing the informant," 403 U.S. at 579, 91 S.Ct. at 2080, even though the informant is unnamed. The informants related to the affiant that they had seen gambling tables and gambling equipment on at least three occasions while the informants

454 F.2d 35

were participating in the gambling.⁶ In Harris, the Court relied on "personal and recent observations by an unidentified informant of criminal activity and factor showing that the information had been gained in a reliable manner." 403 U.S. at 579, 91 S.Ct. at 2080. An important factor was the informant's statement that he had personal information of illicit whiskey because he had purchased some. Second, the affiant in the instant case states that his informants had on other occasions given information regarding illicit gambling operations that was found to be accurate. In Harris, the affiant merely stated that the informant was "prudent". See also Aguilar v. Texas, 1964, 378 U.S. 108, 84 S.Ct....