United States v. Schorr
| Decision Date | 20 June 1972 |
| Docket Number | No. 71-2669.,71-2669. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Thomas Neil SCHORR and Richard Alan Rosenbaum, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Pat W. Davis (Court Appointed), Allen, Bowles & Davis, Dallas, Tex., for defendants-appellants.
Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Jack Shepherd, Chief Asst. U. S. Atty., Ellis C. McCullough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
Before DYER, Circuit Judge, SKELTON,* Judge, and INGRAHAM, Circuit Judge.
The facts in this case are set forth in the brief of appellee and we reproduce them as there detailed with certain modifications and additions as follows.
The appellants, Thomas Neil Schorr and Richard Alan Rosenbaum, together with one Clyde Edward Newell, III, were charged in the Brownsville Division of the Southern District of Texas in an indictment of four counts with offenses involving a quantity of one thousand three hundred pounds (1,300 lbs.) of marihuana. The first count charged a conspiracy, the second the smuggling, the third the knowing receipt and concealment, and the fourth the knowing transportation of this lot of marihuana, all in violation of Title 21 U.S.C. § 176a. The third defendant, Newell, pled guilty to the fourth count of the indictment, but he was tried together with the appellants on the remaining counts. The appellants were found guilty on all four counts and Newell on the three counts on which he was tried. Appellant Rosenbaum received sentences of seven years on each count, to be served concurrently, and the other defendants received sentences of five years on each count, to be served concurrently.
The evidence tended to show the following:
At about 10:30 p. m. on December 25, 1970, United States Patrolman Gilbert Lee received information from a confidential source that there was some unusual activity at a place called "Midway Crossing" on the Rio Grande River between Roma and Rio Grande City, Texas. Lee then advised Patrolman Don Daniels of this information and requested his assistance. Shortly thereafter, Lee and Daniels, each in a government vehicle, began watching Midway Crossing. About 12:15 a. m. on the following morning, December 26, 1970, Lee and Daniels saw a pickup truck turn south from U.S. Highway 83 onto Midway Road and proceed toward the Rio Grande River. Daniels saw the pickup stop at a gate near the Boone LaGrange farmhouse, and its headlights were turned off. A few minutes later, he observed the headlights come on and saw the pickup start back toward U.S. Highway 83, followed by a tank truck about 200 yards to the rear. Lee attempted to block the pickup while Daniels attempted to halt the tank truck. However, the pickup drove around Agent Lee's marked government vehicle, turned onto U.S. Highway 83, and proceeded east at a high rate of speed. Lee noted that the pickup was a red 1959 Ford model, bearing Texas license 1C716, that it had a cattle rack on the bed, and that it was occupied by three males. Lee could not halt the vehicle with his siren or red light, and he lost it after it turned north on a dirt road at the western limits of Rio Grande City, Texas.
In the meantime, Daniels had halted the tank truck after it had tried to turn around. Daniels identified himself to the driver and required him to leave the cab. The driver identified himself as Clyde Edward Newell, III. After getting Newell out of the truck, Daniels found two Browning 9mm automatic pistols (one in a holster) and two Lafayette two-way radios on the seat. A pair of coveralls (with a sweatband in a pocket) was on the floorboard, and three master keys were on the seat. The truck was a 1962 Model 600 Dodge truck with yellow cab and black water tank, bearing 1970 Texas license 6M9608, and it was equipped with a General Electric two-way radio. A search of the vehicle revealed thirty-one cloth-wrapped bundles, each containing paper-wrapped bricks of marihuana, weighing about one thousand and three hundred pounds gross weight. Daniels placed Newell under arrest and then notified Senior Resident Customs Agent Joseph J. Rizzo, Jr. of the arrest and seizure by radio. Certain items in the truck were seized and held as evidence. These were:
At about 12:05 a. m. on December 26, 1970, Senior Resident Customs Agent Joseph Rizzo was advised by the Starr County Sheriff's Department that an accident had occurred at the intersection of U.S. Highway 83 and Midway Road about 9:30 p. m. the previous evening and that the driver of the vehicle, a green 1970 Chevrolet Nova, bearing 1970 Texas license BJV 139, had taken something from the car and then had abandoned the car and fled into the brush. Agent Rizzo recognized the vehicle as being one usually operated by Samuel Franklin Vale. About ten minutes later, Agent Rizzo received a radio transmission from Agent Lee regarding the arrest of Newell and the seizure of the marihuana.
Rizzo then requested Customs Agents Richard E. Braziel and Jack L. Pitts to assist in the investigation and asked them to go to the United States Border Patrol office in Rio Grande City. Rizzo then drove to Midway Road, where the Border Patrolmen Lee and Daniels were waiting with Newell and the Dodge truck.
When Rizzo arrived there, he requested that the prisoner and the truck be taken to the U.S. Border Patrol office in Rio Grande City while Rizzo inspected the abandoned vehicle at the Starr County Courthouse.
Rizzo then drove to the courthouse, where the 1970 Chevrolet was parked. He noted that the car contained an empty radio bracket installed beneath the dashboard. Agent Rizzo also found a U-Haul Company rental contract number 51495290 made out to Edward Hartman, 3501 East 31st Street, Austin, Texas, and a Capitol Chevrolet, Inc. Buyer's Order and receipt made out to John Neil, 500 W. 10th Street, Austin, Texas, telephone number 385-3058. These documents were seized for evidence. Subsequent investigation in Austin, Texas, revealed that the two Browning 9mm pistols seized from Newell had been purchased by Edward Hartman.
At the United States Border Patrol office in Rio Grande City, Texas, Agent Braziel questioned Newell after reading to him his constitutional rights regarding self-incriminating statements and rights to counsel. Newell told Braziel that his full name was Clyde Edward Newell, III; that his address was 205 E. Main Street, Rio Grande City, Texas; that he was born on May 17, 1948, in Abbeville, Louisiana; and that he was at the time absent without leave from the United States Army. He would not comment on the marihuana found in the truck which he had been driving. Agent Braziel and Patrolman Daniels then took Newell to the Hidalgo County Jail, Edinburg, Texas, where he was turned over to the custody of the chief jailer.
Border Patrolman Lee turned over the truck and the seized marihuana to Agent Rizzo, who followed the truck, driven by Agent Pitts, to Roma, Texas. Before leaving the Border Patrol office, Rizzo asked Lee to send a Border Patrol unit to the A. F. Vale Ranch north of Rio Grande City in order to try to locate the 1959 Ford pickup which had escaped. Lee sent Patrolman Robert Wooten and Barry Dixon to the Vale Ranch, where they found a 1963 Dodge Model 600 truck with a yellow cab and a black tank, bearing 1970 Texas license 6N41, a vehicle almost identical to the 1962 Dodge truck driven by Newell. The appellants, Thomas Neil Schorr and Richard Alan Rosenbaum, were standing outside the ranchhouse when the agents arrived. This information was relayed by radio to Agent Rizzo, who at that time was securing the 1962 Dodge truck in Roma, Texas.
Agent Rizzo and Agent Pitts arrived at the Vale Ranch about 3:00 a. m., where they inspected the truck with the Border Patrolmen Lee, Dixon, and Wooten, and found a welded compartment in the center of the truck, identical to a compartment welded into the water tank on the 1962 truck which Newell was driving which had contained the thirteen hundred pounds of marihuana. Agent Rizzo then asked Schorr and Rosenbaum for their names. Schorr said his name was Thomas Schorr, and Rosenbaum would say only that his name was Richard. Rizzo then advised Schorr and Rosenbaum that they were under arrest, administered a constitutional warning to them, and requested Border Patrolman Wooten to take the prisoners to the Border Patrol office in Rio Grande City, Texas.
A search of the cab of the 1963 Dodge truck by Agents Rizzo and Pitts revealed a green Airway suitcase containing one pair of black boots, a black "T" shirt, a gold shirt with blue stripes, a pair of Levis, a pair of green trousers, a pair of blue socks, a green sock, a brown sock, a slate-colored sock, and a jar of Old Spice Short Cut. Also lying on the seat was an Enco Sales ticket listing 20.0 gallons of gas purchased at Emede Canales' service station at Hebbronville, Texas, dated December 25, 1970. The suitcase was seized for evidence. Also seized from the cab was a white...
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