United States v. Love

• Decision Date: 23 July 1973
• Docket Number: No. 71-2393.,71-2393.
• Citation: 482 F.2d 213
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Curtis Leroy LOVE and Alto Oglesby, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

482 F.2d 213 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Curtis Leroy LOVE and Alto Oglesby, Defendants-Appellants.

No. 71-2393.

United States Court of Appeals, Fifth Circuit.

July 23, 1973.

Curtis Leroy Love, pro. se.

Fletcher N. Baldwin, Jr., University of Fla., Gainesville, Fla. (Court Appointed), for Oglesby.

John L. Briggs, U. S. Atty., Alan C. Todd, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and TUTTLE and INGRAHAM, Circuit Judges.

INGRAHAM, Circuit Judge:

Labor problems between Overland Hauling Company and Teamsters Local 385 are not new to this court. See NLRB v. Overland Hauling, Inc., 461 F.2d 944 (5th Cir., 1972). The instant criminal case grows out of an incident of violence during a 1969 labor dispute between Teamster Local 385 and Overland Hauling. The issues on this appeal arise from convictions for violation of 18 U.S.C. § 844(i)¹ and 26 U.S.C. § 5861(d)² and present questions of constitutional dimension, the resolution of which require a detailed recitation of facts.

Overland Hauling's Jacksonville, Florida terminal had been on strike for several weeks when its management became concerned for plant security. Its urgings and some underground rumblings of the violent eruption to come brought federal, state and local law enforcement officials to the Overland terminal. A twenty-four hour stake out of the terminal began.

On April 16, 1971, at approximately 10:30 P.M. the waiting officers saw a car approach an isolated area of the Overland Terminal — a spot where the main building was also close to the road. As the car slowed to a stop the officers observed a big man jump from the passenger side of the car and lob a package trailing sparks onto the roof. The observing agents quickly radioed what they had seen to other agents in cars patrolling the access roads to the terminal. Even as the suspect car pulled away from the building, federal, state and local units were converging. They stopped the car containing defendants Love and Oglesby which had then traveled less than two-tenths of a mile from the building. The defendants were under arrest within sixty seconds of the bomb being tossed.

On radio confirmation of the bombing other agents began to clear the Overland Hauling terminal. The principal agent on the scene warned the occupants of the building by firing his carbine several times and by shouting. The bomb exploded some five minutes after it was tossed, causing property damage but without loss of life or personal injury. Three members of the Teamsters Local 385 on picket line duty at the time of the blast were stopped and searched. After having been detained for some thirty minutes, they were released to continue picketing. It is undisputed in the record that these pickets were stopped and frisked solely as a precaution against further acts of violence and not because they were suspects to the bombing itself.

Love and Oglesby were taken to the local police station where their hands were swabbed with an acetone solution and the swabs preserved for chemical analysis. Their clothing was also searched and crumbs removed from the pockets. The time was approximately midnight. At the arraignment the following morning they appeared with retained counsel. On counsel's learning of the swabbings, the attorney procured the services of a chemical analyst. The chemistry expert made his presence in the case known to police laboratory officials.

Tests were conducted more than ten days after the arrests and confirmed the presence of nitrate on defendants' hands, as well as traces of straight dynamite in their clothing. The material on the acetone swabs was consumed in the testing process.

Defendants sought discovery of the government's scientific evidence under Federal Rules of Criminal Procedure 16(a). The government agreed not only to disclose the report of the acetone tests, but permitted the defendants' expert to examine the surviving samples of straight dynamite, perform his own tests on the material and examine the government's scientific methodology of the acetone tests. Due to the consumption of the acetone swabbings, the defendants' expert was unable to duplicate tests of the swabbings of defendants' hands.

At trial the prosecution introduced the chief chemist, who testified to the procedures used on the swabs and other trace materials. His testimony showed the presence of nitrate on the hands and straight dynamite in the pockets and on the clothing of the defendants. He also testified that residual traces of straight dynamite were found at the Overland Hauling bomb site. Defendants testified that they worked as truck drivers on a job using nitrate fertilizer, and defendants' expert testified that the nitrate found by the acetone swabbings could have been from that source. No rebuttal of the straight dynamite found in and on the clothing was presented. Indeed, the defendants' expert concurred in the prosecution's expert witness's analysis of the material he was able to test and the procedures used in the testing of the acetone.

We turn first to appellant Love. By letter to the clerk of this court dated February 8, 1972, Love elected to proceed in this appeal without counsel even though he was notified that counsel would be appointed by the court to represent him on appeal. Love subsequently failed to file an appellate brief. Since Love is not proceeding in forma pauperis, it is therefore appropriate that his appeal be dismissed pursuant to this court's Local Rule 9(b)³ for failure to prosecute his appeal, and it is so ordered.

Appellant Oglesby has raised the following issues on appeal: (1) that he was entitled to the presence of counsel when the acetone swabs were taken; (2) that his expert witness should have been notified when the swabs were tested because there was a reasonable expectation that the tested material would be consumed in the process; and (3) that the district court erred in imposing maximum consecutive sentences without disclosure of any part of the pre-sentencing report.

Oglesby's Sixth Amendment contention proceeds on the assertion from United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), that counsel is required at critical stages of the criminal process, and, in his view, what could be more critical than the removal of swabbings. There is no doubt that defendants were validly arrested and that the swabbings were a search and seizure incident to that arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). But the presence of counsel at the taking of the samples was not constitutionally required. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). In considering whether Fourth and Sixth Amendment rights were violated by admission into evidence against a defendant of a palm print taken in the absence of counsel, but after counsel had been requested, we said:

"The record reveals, and Appellant admits, that he was legally in the custody of law enforcement officials stemming from arrest on another unrelated matter. It is undisputed, then, that the custodial officers were well within their authority, and not without Appellant\'s rights, to require that he submit to fingerprinting independent of the presence or absence of warnings to accused of his rights to counsel and to remain silent. United States v. Gibson, 5 Cir., 1971, 444 F.2d 275. Neither can it be argued that the Fourth Amendment erected any obstacle to the taking Appellant\'s fingerprint exemplars under the facts present here. The obtaining of physical evidence from a person involved a potential Fourth Amendment violation at two different levels — the `seizure\' of the `person\' necessary to bring him into contact with government agents and the subsequent search for and seizure of the evidence. United States v. Dionisio, 1973, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 1973. Here the fact Appellant was legally under arrest at the time his palmprint exemplar was taken removes the first level of potential Fourth Amendment infringement. As for the second level, the Supreme Court noted in Davis v. Mississippi, 1969, 394 U.S. 721, 89 S. Ct. 1394, 22 L.Ed. 676, that while the seizure of the person is clearly subject to Fourth Amendment `reasonableness\', the taking of physical evidence in the nature of fingerprinting, or as here palmprints, `involves none of the probing into an individuals\' private life and thoughts that marks an interrogation or search.\'

"Appellant, upon being apprised of his constitutional rights, properly invoked his Sixth Amendment right to have counsel present before further questioning. The record shows that the interrogation ceased at that point. The taking of Appellant\'s palmprints in the absence of counsel did not violate his constitutional rights. We have written that `the taking of the fingerprints exemplar is not such a critical stage of the criminal proceedings as would entitle Appellant to the assistance of counsel.\' Pearson v. United States, 5 Cir., 1968, 389 F.2d 684, 686. Furthermore, we think the present appeal analogous to one heard by the D.C. Circuit where they wrote that `Not only is the taking of the exemplars not a critical stage of the proceedings entitling an accused to the assistance of counsel, but appellant has pointed to no function counsel could perform, were he present, save the futile advice not to give the sample.\' Lewis v. United States, 1967, 127 U.S.App.D.C. 269, 382 F.2d 817, 819."

United States v. Sanders, 477 F.2d 112 (5th Cir., 1973). The reasoning of Sanders was re-enforced by the Supreme Court's recent decision in Cupp v. Murphy, supra:

"The inquiry does not end here, however, because Murphy was subjected to a search as well as a seizure of his person. Unlike the fingerprinting

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