United States v. Lee

• Decision Date: 24 June 1970
• Docket Number: No. 19849.,19849.
• Citation: 428 F.2d 917
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lester Clifford LEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

428 F.2d 917 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Lester Clifford LEE, Defendant-Appellant.

No. 19849.

United States Court of Appeals, Sixth Circuit.

June 24, 1970.

David K. Purkey, Columbus, Ohio, for appellant; William J. Abraham, Columbus, Ohio, on brief.

James F. Cook, Asst. U. S. Atty., Lexington, Ky., for appellee; Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., on brief.

Before WEICK, PECK and BROOKS, Circuit Judges.

WEICK, Circuit Judge.

Lee was convicted by a jury in the District Court on two counts of an indictment which charged him in the first count with transporting a firearm in interstate commerce after having been convicted of a crime punishable by more than one year, 15 U.S.C. § 902(e)¹, and in the third count with possessing and concealing counterfeit money with intent to defraud, 18 U.S.C. § 472. He was sentenced to five years on each count, to run concurrently, from which judgment he appeals.

While stationed in Okinawa, Japan, with the United States Air Force, Lee was convicted in 1949 of rape and sodomy by a General Court Martial of the Air Force, and was sentenced to a term in excess of one year, which sentence was subsequently served in military prisons.

During May, 1968, Area Supervisor Baker, of the Alcohol, Tobacco and Firearms Division of the Internal Revenue Service, received a tip from an informant that Lee would at some time in the future be traveling from Columbus, Ohio, through Cincinnati, on his way to North Carolina, and that he would be carrying with him a firearm. The informant told Supervisor Baker that he would contact him or another agent on the exact day of the trip. Supervisor Baker told the Investigators serving under him that they would receive a call from an informant, who would not identify himself but who would be reliable, and that he would give them information concerning Lee upon which they were to act.

At 10:15 a. m. of June 12, 1968, Special Investigator Stocking received a call in his Cincinnati office from the informant. Although Baker was present, neither he nor anyone else listened in on the conversation. The informant told Stocking that Lee had left Columbus approximately thirty minutes before, driving a 1968 Buick Electra two-door hardtop with brown bottom and light-colored top, bearing Ohio license number 30197. The informant said that Lee was accompanied by one, Tommy Stilson, also known as Tommy Tucker, and that they would make a stop in Dayton, Ohio, where he would pick up "four articles" before proceeding farther.

The United States Commissioner was not available when the call was received, and the nearest Commissioner was some distance away in Lexington, Kentucky. The agents did not believe that they had adequate time in which to secure a warrant².

Surveillance was immediately set up on Interstate 75 which runs from Dayton to Cincinnati and into Kentucky. Supervisor Baker and Investigator Rowe observed the described car passing through Cincinnati at approximately one o'clock p. m. They followed the car into Kentucky where Investigator Stocking, in the company of Sergeant Pat Ryan of the Kenton County, Kentucky Police, also joined, following it in a police car. Sergeant Ryan turned on the siren and red light to signal Lee to the side of the road. When this occurred, a member of the Kentucky State Police who was travelling beside appellant in an unmarked car, observed the person on the passenger's side of the car, bend over. It was subsequently determined that Lee was driving and that Stilson was sitting on the passenger's side.

Investigators Rowe and Stocking immediately conducted a search of the trunk of the car which was owned by Lee. In the trunk they discovered among other things, a suitcase belonging to Lee which contained a loaded .38 caliber "Colt" revolver. Investigator Rowe searched the interior of the car and discovered four counterfeit $100-Federal Reserve Notes under the floormat on the passenger's side of the car.

Prior to and again during the trial a motion was made by Lee to suppress the use of the revolver and the counterfeit bills as evidence, which motion was denied. In a voir dire hearing on the motion, Supervisor Baker, who was the only person who knew the identity of the informant, testified that he (Baker) had told the investigators "to act upon the information because it would be reliable." Agent Baker did not testify that he had relied on this informant previously, or what the circumstances were which led him to believe that the information was credible.

The District Court ruled that Baker knew that the informant was reliable. The evidence was permitted to be introduced over the continuing objection of Lee.

The testimony of Robert Trowbridge was also admitted over objection. Trowbridge testified that he had previously owned the revolver and that it had been stolen from his sporting goods store on December 20, 1966.

Lee contends that he has not been convicted of a crime punishable by imprisonment for a term exceeding one year within the meaning of 15 U.S.C. § 902(e), which provides as follows:

"It shall be unlawful for any person who is under indictment or who has been convicted of a crime punishable by imprisonment for a term exceeding one year or who is a fugitive from justice to ship, transport, or cause to be shipped or transported in interstate or foreign commerce any firearm or ammunition."

He argues that a court martial is not a part of the judicial branch of the Federal Government and, therefore, judgments rendered by military tribunals are not within the contemplation of the statute. This contention is without merit.

The only case directly in point involved the defendant Lee³. United States v. Lee, 227 F.Supp. 450 (D.N.D., 1964), held that a court martial conviction does come within the meaning of 15 U.S.C. § 902. We see no reason to construe the statute differently than did the District Court in that case.

The language of the statute is not limited to judgments rendered by Article III courts. Courts martial are authorized under Article I of the Constitution. Osborn v. United States, 322 F.2d 835, 838-839 (5th Cir. 1963); cf. United States ex rel. Thompson v. Price, 258 F. 2d 918, 922 (3rd Cir. 1958), cert. denied, 358 U.S. 922, 79 S.Ct. 295, 3 L.Ed.2d 241.

In cases in which courts martial have jurisdiction, their judgments are to "be accorded the finality and conclusiveness as to the issues involved which attend the judgments of a civil court in a case of which it may legally take cognizance." Grafton v. United States, 206 U.S. 333, 345, 27 S.Ct. 749, 51 L.Ed. 1084 (1907).

Jurisdiction of the military court is not challenged in this case. The finding of the court martial that Lee had committed a crime, and the judgment of sentence in excess of one year, are entitled to the conclusiveness of a judgment of an Article III court.

Gubbels v. Hoy, 261 F.2d 952 (9th Cir. 1958), relied on by Lee, does not dictate a result different from the one we have reached. That case is inapposite because its holding that a sentence of a court martial could not be the basis of deportation under 8 U.S.C. § 1251(a) (4), was based on the fact that administratively it is impossible for a court martial to comply with all the requirements of that Act. No such difficulty is present here. The military court has decided Lee's guilt and has rendered judgment. Lee stands "convicted of a crime punishable by imprisonment for a term exceeding one year * * *."

Lee argues that it was error for the District Court to deny his motion to sever Count I of the indictment, charging transportation of the firearm, from Count III of the indictment, charging possession of counterfeit money. Rule 8 (a) of Federal Rules of Criminal Procedure permits joinder of separate offenses in an indictment if they "are based on the same act or transaction * * *." Rule 14, however, provides for severance of separate counts of an indictment where the defendant can demonstrate that prejudice will result from a joint trial⁴. The granting of a motion for severance under rule 14 is within the sound discretion of the trial judge and his ruling will not be reversed unless there is a showing of abuse of discretion. See, e. g., United States v. Vida, 370 F.2d 759 (6th Cir. 1966); cert. denied, 387 U.S. 910, 87 S.Ct. 1695, 18 L.Ed.2d 630 (1967); Anderson v. United States, 270 F.2d 124 (6th Cir. 1959).

Lee contends that he wanted to testify on the count charging possession of counterfeit money but not on the charge of interstate transportation of the firearm, which would have permitted the Government to cross-examine him concerning his previous conviction for rape and sodomy. The evidence of the previous conviction was not admissible with respect to Count III, and therefore he claims that he was prejudiced because he had to decide not to testify on Count III. We disagree with Lee's contention that the District Court abused its discretion in denying the motion for severance.

This case is not like the cases where the court held that it was an abuse of discretion not to grant a severance of trials of crimes arising out of totally separate transactions. See, e. g., Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964). The crimes contained in the counts of the indictment here were not "clearly distinct in time, place and evidence." Cross v. United States, 118 U.S.App.D.C. 324, 335 F.2d 987, 989 (1964). Both counts in the indictment were the result of a common occurrence, i. e., the search of Lee's car after it crossed the Ohio-Kentucky border.

In addition to the fact of a common occurrence, the evidence in this case was uncomplicated and the jury, under proper instructions, would have no difficulty in considering the evidence only in connection with the crime of which it was probative. We note that there was no objection made to the form of the instructions given by the District Judge.

We find that there was no abuse of discretion...