United States v. Sorrells

• Decision Date: 19 September 1983
• Docket Number: No. 81-5829,81-5829
• Citation: 714 F.2d 1522
• Parties: 14 Fed. R. Evid. Serv. 306 UNITED STATES of America, Plaintiff-Appellee, v. Charles George SORRELLS, Glen Ray Bartley, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1522

714 F.2d 1522

14 Fed. R. Evid. Serv. 306

UNITED STATES of America, Plaintiff-Appellee, v. Charles George SORRELLS, Glen Ray Bartley, Defendants-Appellants.

No. 81-5829.

United States Court of Appeals Eleventh Circuit.

Sept. 19, 1983.

Neil H. Jaffee, Fort Lauderdale, Fla., for Charles George Sorrells.

John P. Tynan, Jupiter, Fla., for Glen Ray Bartley.

Stanley Marcus, U.S. Atty., Bruce A. Zimet, Paul A. DiPaolo, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before HILL and HATCHETT, Circuit Judges, and HAYNSWORTH ^*, Senior Circuit Judge.

JAMES C. HILL, Circuit Judge:

Charles George Sorrells, Glen Ray Bartley and two co-defendants were charged in a twenty-one count indictment with conspiracy to possess and transfer illegal firearms, in violation of 18 U.S.C.A. § 371. ¹ The indictment further charged Sorrells and Bartley with various substantive offenses of possessing, transferring, and aiding and abetting the possession and transfer of automatic weapons, firearms and silencers in violation of 26 U.S.C.A. § 5861(d)(e) and 18 U.S.C.A. §§ 922(b)(5), 2(a). ² The defendants received a jury trial and were found guilty. Sorrells and Bartley filed timely notices of appeal. ³ For the reasons stated below we affirm.

FACTS

In December, 1980, Gary Peacock, a confidential informant/special employee for the Bureau of Alcohol, Tobacco & Firearms [hereinafter ATF], obtained information that Conrad Uttall was engaged in the illegal sale of explosives, silencers and automatic weapons. Peacock arranged a meeting with Uttall to discuss the sale of some automatic weapons. Peacock informed Uttall that he was involved in smuggling weapons to various generals in Central and South America. Peacock stated that his main interest was in weapons that could be converted to fully-automatic. Uttall informed Peacock that he could supply various automatic weapons and hand grenades for this purpose. Thereafter, between December 18, 1980, and January 13, 1981, Peacock, Uttall, and Goelet (another co-worker of Uttall), occasionally accompanied by Bartley, met weekly to discuss the sale of various automatic firearms and explosives.

On December 23, 1980, Uttall showed Peacock a Valmet semi-automatic rifle and told Peacock that Bartley, an owner of a lawnmower repair shop, could convert the rifle into a fully-automatic weapon. One week later, Uttall also agreed to produce silencers for the automatic weapons he offered to sell Peacock. On January 8, 1981, Uttall gave Peacock the fully-automatic Valmet rifle which he represented to be a prototype of the weapons he could manufacture and furnish.

During a telephone conversation on January 14, 1981, Uttall told Peacock that others were working with him on the conversions. Two days later, Uttall introduced Sorrells to Peacock as one of the people working with him on the conversions. After Uttall left the meeting, Sorrells and Peacock test-fired a fully-automatic carbine, and Sorrells transferred the weapon to Peacock for $300. In a January 17, 1981, telephone conversation, Uttall advised Peacock that Sorrells and Bartley "ought to be able to build anything" and that he had given Sorrells the funding to begin manufacturing operations. ⁴ Uttall further stated during the phone conversation that Sorrells was going to give him his opinion regarding the feasibility of converting a certain firearm into a fully-automatic weapon.

Peacock met with Uttall and Sorrells later that week in a West Palm Beach restaurant to discuss the possibility of obtaining a certain type of machine gun equipped with a silencer and capable of being fired from within a briefcase. Such a weapon is commonly referred to as an "assassination kit." Peacock testified that Uttall and Sorrells agreed to accompany him to Atlanta in order to view the factory where the kits were produced. Peacock further testified that an unidentified juvenile was present at the meeting because, according to Uttall and Sorrells, the child's presence would divert attention from their conversation.

Later that afternoon, the three men went to Bartley's shop where Uttall introduced Bartley as one of his assistants in the conversion project. At trial, Bartley testified that he had been involved in converting weapons prior to the time of this meeting. Peacock told Bartley he was interested in obtaining silencers and, according to Bartley's testimony, Bartley knew that Peacock intended to export the weapons to South America. On a work table in Bartley's shop, Peacock observed a box for a Charter Arms semi-automatic pistol and several tools used for grinding. Bartley testified that he, Uttall, and Sorrells had converted the Charter Arms pistol into a fully-automatic weapon but that he needed to convert another to perfect the conversion technique for mass production. Thereafter, Uttall, Sorrells, and Peacock went to Uttall's shop where Uttall, in Sorrells' presence, gave Peacock the Charter Arms weapon to take to South America as a prototype machine pistol. At the same meeting, Uttall handed Peacock a pipe bomb. As Uttall handed Peacock the bomb, Sorrells explained how to detonate it. Sorrells, who at trial admitted designing the bomb, also stated at the meeting that if Peacock needed anything destroyed, he would design a bomb.

During a telephone conversation with Peacock the following day, Bartley stated that making silencers was not difficult. He also cautioned Peacock that Uttall's phone might be tapped. During another telephone conversation between Sorrells and Peacock, Sorrells stated that he wanted to "talk turkey" and that he desired to deal directly with Peacock rather than going through Uttall. The men discussed price and quantity in connection with the sale of automatic weapons and silencers. Sorrells mentioned that he was in the process of converting two firearms and discussed the possibility of mass production of guns and silencers. In two subsequent meetings with Peacock, Sorrells explained the conversion process and reported on his progress in converting particular weapons. Uttall was present on both occasions and each time transferred weapons to Peacock.

The record also indicates that during a February 4, 1981, telephone conversation with Peacock, Bartley stated that he had obtained the parts to produce 175 silencers and commenced plans to obtain parts for an additional 175. In determining whether Peacock desired a 100-unit per month deal, Bartley noted that he would obtain his own pipe cutting machine to facilitate speedier production of the silencers. The men agreed that in the future Peacock would front the production money directly to Bartley.

On February 5, 1981, Peacock and ATF Special Agent Chuck Hudson met Sorrells, Goelet and Uttall at the Ft. Lauderdale Executive Airport while other ATF agents surveyed the area. The group had planned to fly prototype weapons to the Bahamas to show Peacock's "buyers." Sorrells rode in the back of Goelet's car with thirteen silencers, forty-three boxes of ammunition, a sawed-off shotgun, numerous conventional handguns and long guns, and a roll of explosive detonation cord. After Uttall opened the car door to show Peacock the various weapons inside, ATF agents arrested Uttall, Goelet, and Sorrells, and seized the above mentioned items, which were later introduced at trial. That afternoon, ATF Special Agents Hudson and Robert Smith applied for, received, and executed a search warrant on Bartley's premises where they discovered 101 silencers and components for several more. Samples of these silencers were also introduced at trial. The evidence at trial further showed that neither Bartley nor Sorrells had any firearms registered in their names and had not applied for transfer with the Secretary of Treasury. ⁵

After the jury returned guilty verdicts against Sorrells and Bartley, the district court sentenced Bartley to concurrent sentences of two years imprisonment on the conspiracy and possession counts, with three months to be served and the remainder suspended. The court sentenced Sorrells to concurrent sentences of fifteen months imprisonment on the conspiracy count, and three years imprisonment on the remaining possession counts, with all but six months suspended.

ISSUES ON APPEAL

On appeal, Sorrells and Bartley challenge the sufficiency of the evidence to support their convictions on the conspiracy and substantive counts. Sorrells further assigns error to the district court's refusal to give a requested "theory of defense" instruction. In conjunction with his challenge to the sufficiency of the evidence, Bartley contends that the affidavit of ATF Special Agent Smith provided an insufficient basis upon which to establish probable cause to issue a search warrant. Thus, according to Bartley, the evidence obtained under the authority of the warrant was improperly introduced at trial.

Prior to resolving appellants' sufficiency of the evidence claims, we must first address Bartley's claim of insufficient probable cause to justify the granting of a search warrant.

I. VALIDITY OF THE SEARCH WARRANT

(a) Establishing probable cause

Bartley argues that the trial court erroneously denied his motion to suppress the evidence seized pursuant to the search warrant. The affidavit for the warrant was filled out and signed by ATF Special Agent Smith. The affidavit recounted the events and information which Peacock provided. Bartley argues that the affidavit was incomplete in that it was totally based on the hearsay of Peacock and that the statements made by Peacock to Agent Smith failed to meet the two pronged test established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); see also, United States v. Flynn, 664 F.2d 1296, 1301 (5th Cir.1982), cert. denied, 456 U.S. 930, 102 S.Ct. 1979, 72 L.Ed.2d...