Petition — Driver v. United States

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IN THE

Supreme Court of the United States

OcTOBER TERM, 1979

No. @ 9-6 Qt

THOMAS BENNETT DRIVER,

VIRGINIA RUTH Brown, and HAROLD REECE,

Petitioners,

vs.

THE UNireED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTORARI

To The United States Court of Appeals

For the Sixth Circuit

Cecit D. BRANSTETTER

200 Church Street

Nashville, Tennessee 37201

Attorney for Petitioner Driver

T. ARTHUR JENKINS

Odd Fellows Building

Manchester, Tennessee 37255

Attorney for Petitioners Brown

OF COUNSEL: & Reece

CARROL D. KILGORE

200 Church Street

Nashville, Tennessee 37201

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

TABLE OF CONTENTS

Page

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Questions Presented for Review...............0e00e 2

Constitutional Provisions and Statutes

Fourth Amendment, Constitution of the United

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Fifth Amendment, Constitution of the United

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Authorities Cited

Cases

Braverman v. United States,

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Bumper v. North Carolina,

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Chambers v. Maroney,

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Fiswick v. United States,

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G. M. Leasing Corp. v. United States,

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Jackson v. Virginia,

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Krulewitch v. United States,

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Proctor v. Warden,

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Schneckloth v. Bestamonte,

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Silverthorne Lumber Co. v. United States,

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United States v. Chadwick,

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United States v. Davis,

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United States v. Kim,

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United States v. Rothman,

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United States v. Ruiz-Estrella,

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United States v. Shanks,

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United States Constitution

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Statutes

18 U.S.C

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28 U.S.C.

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Miscellaneous

Rule 29, Federal Rules of Criminal Procedure.........

TABLE OF CONTENTS OF APPENDIX

Sixth Circuit Court of Appeals Order

affirming conviction, May 8, 1979 ..............

Sixth Circuit Court of Appeals Order

denying rehearing, September 13, 1979 ..........

District Court Memorandum Opinions and Orders:

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No.

THOMAS BENNETT DRIVER,

VIRGINIA RUTH Brown, and HAROLD REECE,

Petitioners,

vs.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTORARI

To The United States Court of Appeals

For the Sixth Circuit

Petitioners, Thomas Bennett Driver, Virginia Ruth Brown,

and Harold Reece, pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for the

Sixth Circuit affirming the convictions of the Petitioners in the

United States District Court for the Eastern District of Ten-

nessee, Winchester Division.

OPINIONS BELOW

None of the opinions of the Courts below have been reported.

Opinions and orders in the nature of opinions of the courts

below are printed in Appendix A.

aa, ee

JURISDICTION

The judgment sought to be reviewed, affirming the judgment

of the District Court, was entered May 8, 1979, and the Order

denying the Petition for Rehearing was entered September 13,

1979.

This Court has jurisdiction to review the judgment by Writ of

Certiorari under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. When the F.B.I. set out after several days’ surveillance to

conduct warrantless searches in hopes of obtaining the consent

of the owners, and assembled at least a dozen F.B.I., State,

County, and City officers to search Petitioner Driver’s auto

junk yard and Petitioner Brown’s fenced and wooded residen-

tial property —

(a) Was a near-illiterate junk dealer’s signature of a

consent to search form involuntary where the F.B.I. seized

control of his premises, caused his employee to summon

him by telephone, misstated to him the nature of the search

and alternatives to consent, and demanded that he sign the

form while he was closeted in a tiny room with an F.B.I.

agent and the sheriff?

(b) Was a warrantless search of Petitioner Reece’s

Volkswagen lawful where movement of the vehicle was

rendered impossible by the F.B.I. taking Petitioner into

custody when he drove up to a junk yard being searched?

fruits of an illegal search of Petitioner Brown’s residential

property, by which search the F.B.I. recovered four recent-

ly stolen motor vehicles identified by their imprinted

numbers, and such was the means of locating the owners,

does the Fourth Amendment require the exclusion of

owners’ testimony (i) identifying telephotographs of their

automobiles and (ii) affirming that the vehicles had been

returned to them?

2. Under an indictment charging Petitioner Driver (seller)

and Petitioner Reece (purchaser) with the substantive offense of

receiving and concealing a stolen Volkswagen in interstate com-

merce contrary to 18 U.S.C. § 2313 and charging the same con-

duct as an overt act pursuant to a conspiracy, are such charges

proven beyond a reasonable doubt by proof merely that Driver

sold Reece a legally-owned Volkswagen seven months before

theft of the Volkswagen described in the indictment and that the

pan and possibly the motor from the after-stolen Volkswagen

was subsequently incorporatged into Reece’s Volkswagen?

3. In aconspiracy prosecution under 18 U.S.C. § 371, if there

is a failue of proof as to all but one of the alleged overt acts and |

that act has no apparent tendency to aid in achieving the objec-

tives of the conspiracy, does the standard of proof of guilt

beyond a reasonable doubt require the government to offer

some evidence that the alleged overt act was done for the pur-

pose of achieving an objective of the conspiracy?

CONSTITUTIONAL PROVISIONS AND STATUTES

Fourth Amendment, Constitution of the United States:

‘‘The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no warrants shall

issue, but upon probable cause, supported by oath or affir-

mation, and particularly describing the place to be search-

ed, and the persons or things to be seized.”’

Fifth Amendment, Constitution of the United States:

‘‘No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

aay

dictment by a grand jury, except in cases arising in the

land or naval forces, or in the militia, when in actual ser-

vice in time of war or public danger; nor shall any person

be subject for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal case

to be a witness against himself; nor be deprived of life,

liberty, or property, without due process of law; nor shall

private proprty be taken for public use, without just com-

pensation.’’

18 U.S.C. § 2312:

‘““Whoever transports in interstate or foreign com-

merce a motor vehicle or aircraft, knowing the same to

have been stolen, shall be fined not more than $5,000 or

imprisoned not more than five years, or both.’’

18 U.S.C. § 2313:

‘““Whoever receives, conceals, stores, barters, sells, or

disposes of any motor vehicle or aircraft, moving as, or

which is a part of, or which constitutes interstate or foreign

commerce, knowing the same to have been stolen, shall be

fined not more than $5,000 or imprisoned not more than

five years, or both.”’

18 U.S.C, § 2:

**(a) Whoever commits an offense against the United

States or aids, abets, counsels, commands, induces or pro-

cures its commission, is punishable as a principal.

**(b) Whoever willfully causes an act to be done

which if directly performed by him or another would be an

offense against the United States, is punishable as a prin-

cipal.’’

28 U.S.C. § 371:

‘*If two or more persons conspire either to commit any

offense against the United States, or to defraud the United

States, or any agency thereof in any manner or for any

purpose, and one or more of such persons do any act to ef-

fect the object of the conspiracy, each shall be fined not

more than $10,000 or imprisoned not more than five years,

or both.

‘“*If, however, the offense, the commission of which

is the object of the conspiracy, is a misdemeanor

only, the punishment for such conspiracy shall not exceed

the maximum punishment provided for such misde-

meanor.”’

STATEMENT OF THE CASE

The jurisdiction of the United States District Court was based

upon an indictment returned by its Grand Jury, charging defen-

dants with violations of 18 U.S.C. §§ 371, 2313 and 2.

Motions to suppress evidence were filed and testimony heard

thereon. The things searched were a large junk yard owned by

the Petitioner Driver and surrounded by a fence which shielded

it from public view; the residential property of petitioner Brown

located several miles away; and the Volkswagen automobile of

petitioner Reece who drove up to the junk yard while it was be-

ing searched. The general circumstances of the search were that

the F.B.I. had been conducting surveillance, including aerial

photography of vehicles located on Mrs. Brown’s residential

property, for several days before the search and the F.B.I. ad-

mitted it did not seek a warrant because it hoped the owners

would consent to searches. In searching, they maintained radio

contact with central computer records of stolen vehicle reports,

ry aa

learned immediately from vehicle identification numbers

whether the vehicles had been reported stolen, and upon such

basis seized vehicles and parts of vehicles.

The Driver Junk Yard Search: About 12 law enforcement of-

ficers assembled by the F.B.I. converged on Driver’s junk yard

in Manchester, Tennessee on the morning of July 2, 1976, and

finding Petitioner Driver absent, required his employee to sum-

mon him by Telephone and then to break off the telephone con-

nection. Petitioner arrived to find armed law enforcement of-

ficers in charge of his property, checking and recording

numbers from vehicles and doors, with employees and

customers restricted to his garage building; the leading F.B.I.

agent presented a consent to search form and informed peti-

tioner that he needed this so that the F.B.I. would know what it

was doing, that it desired to inventory the property, which peti-

tioner viewed as referring to a counting rather than a search for

vehicle identification numbers (hereinafter, VINs) and in-

testimony, the F.B.I. agent throughout referred to the two-day

search as an “‘inventory.’’ The F.B.I. informed petitioner if he

did not sign the consent form they would have to get a search

warrant, but he never answered the Court’s questions as to

whether he informed petitioner there would be no search of his

property in the absence of execution of the consent form, and

the only response given to the Court’s questions as to whether

petitioner understood that he was not required to sign was that

the printed statement contained a statement that the signer

understood the form. After petitioner signed the form, the

F.B.I. informed him that it intended to send him to prison, and

petitioner asked that searching be withheld until he consulted

his lawyer. Upon arrival of the lawyer, the lawyer was informed

that petitioner had signed a consent form, concluded “‘That was

about it.’’, but was not told that the F.B.I. claimed to have

respected petitioner’s withdrawal of the consent, so the search

proceeded and numerous vehicles and parts were seized.

~~ Po

Petitioner Brown’s Residential Search: The F.B.I. proceeded

to Mrs. Browp’s property after commencement of the junk yard

search, requested and were refused permission to search without

a warrant. They nevertheless searched, found the VINs on four

vehicles stored on petitioner’s property, determined them to

have been stolen, and seized and took the vehicles to the local

sheriff’s office. Mrs. Brown’s motion to suppress such search

evidence was sustained by the District Court by ruling handed

down three business days prior to commencement of the trial.

Mrs. Brown consented to the search of a small outhouse on her

property, in which the F.B.I. found a large number of

automobile license tags and other items taken from vehicles,

and a large number of those license tags were from vehicles

which had been reported stolen.

The Reece Volkswagen Search: Petitioner Reece drove up to

Driver’s junk yard after the F.B.I. had taken control of it. After

he got out of his Volkswagen, the F.B.I. required him to pro-

ceed to the building within the junk yard where he was required

to sit with others in chairs maintained by Petitioner Driver. A

Chattangooga police officer who was aiding the F.B.I. then

stated to an F.B.I. agent that the windshield VIN plate was not

factory-installed. The F.B.I. agent, who did not claim to have

viewed the plate himself, then proceded with the police officer

to search the vehicle and found a different VIN on the pan of

the vehicle beneath the back seat. On this basis, they then an-

nounced to petitioner Reece that he was under arrest and he was

subsequently kept for approximately a week in the local county

jail without any state charge being filed against him, though

after he was released on bond, a warrant was filed in time for his

return court appearance and the state case was dismissed. In

construction, the Volkswagen engine and wheels are attached to

the pan, the body is lowered onto the bolted to the pan, and

VINs appear on the body under the hood and on the pan. The

body VIN was the same as that of the windshield VIN plate

which had been removed and replaced and the body VIN had

not been disturbed. Petitioner Reece’s motion to suppress was

overruled without any evidence being offered to establish the

unavailability of magistrates. :

The evidence and procedure on trial, to the extent material to

the issues raised herein, was as follows:

The District Court granted the petitioners the right to con-

tinuing objections to evidence obtained by the searches and

theretofore subject to motions to suppress. Such was the source

of testimony as to automobiles and automobile parts, including

two truck doors whose possession was alleged to be an Overt

Act, found on Driver’s premises. As to Counts charging Peti-

tioner Brown with possessing stolen vehicles upon her property,

the government produced owners who identified telephoto pic-

tures of the vehicles by identifications ranging from the owner

statements of ‘‘opinion’’ that the pictured vehicle was the stolen

vehicle to statements that the pictured vehicle ‘‘looked like’’ or

“‘resembled’’ the stolen vehicle. Additionally, the owners

testified that their vehicles had been returned to them though

the search held illegal was the means by which such vehicles

were returned. Upon defensive contentions that, with the search

of the Brown property not having been ruled illegal until just

before commencement of the trial, the radio contact with com-

puterized records of VINs obtained to the search was necessarily

the source of this evidence, the government argumentatively

responded that it did not obtain the evidence by illegal search

but did not inform the Court, either by evidence or by represen-

tations of counsel, of any alternative means utilized to locate the

owner-witnesses.

As to petitioner Reece’: Volkswagen, the government’s

evidence established, by F.B.1. testimony as to non-disturbance

of the concealed VIN on the body of the vehicle, that a

nonstolen vehicle had been sold by petitioner Driver to peti-

tioner Reece, that the vehicle was licensed by the State of

Georgia, that 7 months later the Volkswagen discribed in the in-

dictment’s Count II and Count I, Overt Act 2, was stolen and

that its pan had been incorporated into the non-stolen

Volkswagen before the time of the search. The government of-

fered no evidence as to the source of Petitioner Reece’s posses-

sion of the pan from the stolen Volkswagen or that petitioner

Driver had ever had possession either of the pan or of the entire

stolen vehicle. The only evidence in the record as to the source

of petitioner Reece’s possession of the pan was defensive

testimony that he had purchased it and had it installed by a

seller in the State of Georgia and that such purchase included

only the pan and not the motor, though the seller could have left

the motor attached to the stolen pan and to save labor, could

have exchanged motors as well as installing the new pan in place

of Reece’s damaged pan. Such testimony was offered after ad-

mission, over objection, of government-tendered evidence of a

German computer printout without evidence of actual com-

parison of numbers, that the motor in Petitioner Reece’s

Volkswagen had the same motor number as that shown to have

been installed in the vehicle whose pan was incorporated into

Petitioner’s auto.

Count I of the indictment charged conspiracy to willfully and

knowingly transport and receive, conceal and store stolen

vehicles in interstate commerce in violation of 18 U.S.C. §§

2312 and 2313. Four Overt Acts were charged. Act Number

Two charged that petitioner Reece, with the aid of petitioner

Driver, received and concealed the stolen vehicle whose pan

Reece was proven to have possessed; Act #3 was effectively

removed from the Indictment by entry of a directed judgment

of acquittal as to the co-defendant therein charged for lack of

proof that he or any other defendant possessed a second stolen

Volkswagen; Act #4 charges Petitioner Driver possessed auto

parts which were recovered by means of the search whose legali-

ty he questions.

Overt Act #1 charged that Petitioner Brown, aided and abet-

ted by Petitioner Driver, ‘‘possessed license plates belonging to

vehicles which had been stolen . . .’” No evidence was introduc-

ed for the purpose of proving or having the tendency to prove

that the continuing possession of such incriminating evidence —

as distinguished from the intial removal of the license plates —

had any tendency to achieve the purposes of transporting,

receiving, concealing or storing stolen motor vehicles and it was

defensively asserted that such did not constitute an overt act.

Upon conclusion of the government’s proof, each petitioner

moved for entry of verdict of acquittal which the District Court

took under advisement, requiring defendants then to offer

proof if they desired. Subsequently, the learned District Court

refused to consider the motion for acquittal under advisement

on the ground that these petitioners had waived it by offering

evidence, and the Court likewise overruled such motions made

at the close of all the evidence in the case. Upon appeal, peti-

tioners urged the Court of Appeals to hold that the refusal to

rule upon the merits of the motion for judgment of acquittal

was contrary to Rule 29, Federal Rules of Criminal Procedure,

but the learned Court of Appeals made no mention of such issue

in its order disposing of the appeal and the petition for re-

hearing.

sno Oc

REASONS FOR GRANTING THE WRIT

Regarding the Question 1(a) search, the decision of the Court

of Appeals was in conflict with applicable decisions of this

Court, principally the holdings of Schneckloth v. Bestamonte,

412 U.S. 218, that the consent must be truly voluntary and of

Bumper v. North Carolina, 391 U.S. 543, that the burden rests

upon the prosection to prove the lawfulness of the warrantless

search. Such decision is also contrary to decisions of other cir-

cuits in United States v. Ruiz-Estrella, 418 F.2d 723 (2 Cir.,

1973) and United States v. Rothman, 492 F.2d 1260 (9 Circ.,

1973), distinguishing between the friendly atmosphere of the

Schneckloth search and the use of a show of force, apparently

lawful authority, or governmental misrepresentations, to obtain

a consent only nominal in fact.

Upon the Question 1(b) search, the Court’s holding was in

conflict with United States v. Chadwick, 433 U.S. 1, and while

the Court cited no authority for its decision upon this issue, the

prosecution’s reliance in the Court of Appeals upon Chambers

v. Maroney, 399 U.S. 42 would appear misplaced because that

decision was distinguished in Chadwick, supra, by distinction

equally applicable to the instant case.

In regard to the Question 1(c) search, the Court’s decision is

contrary to this Court’s Silverthorne Lumber Co. v. United

States, 251 U.S. 385, and its progeny including G. M. Leasing

Corp. v. United States, 429 U.S. 336.

Under Questions 2 and 3, the learned Court of Appeals’

failure to determine whether guilt had been proven beyond a

reasonable doubt was contrary to the rationale of Jackson v.

Virginia, U.S. , 61 L.Ed.2d 560. In its Question 2

holding that possession of two major component parts of a

stolen vehicle constitute possession of an entire vehicle, the

Court’s holding was contrary to the holding of another circuit in

United States v. Shanks, 521 F.2d 83 (7 Circ., 1975) as well as

being utterly in disregard of the fact that there was no eviden-

lai iii el

tiary basis for assuming that either of the convicted appellants

under Count II had possessed the entire stolen vehicle from

which the pan was taken or that such possession, if assumed,

occurred in Tennessee rather than in Georgia, where the

Volkswagen was stolen. In this regard the learned Court of Ap-

peals’ review of the Count II convictions would appear not even

to come up to the standards of appellate review prevailing

before decision of Jackson v. Virginia, supra. Further, the

Court’s decision sustaining by its silence, the use of a manufac-

turer’s computer printout to prove that the motor of the stolen

Volkswagen actually bore the motor number shown upon the

printout is contrary to the decision of the District of Columbia

Circuit in United States v. Kim, F.2d , 47 U.S.L.W.

1158 (D.C. Cir., April 17, 1979), as well as its own decision,

United States v. Davis, 568 F.2d 514 (6 Cir., 1978).

The Court’s apparent failure to consider whether the posses-

sion by Petitioner Brown of a large number of license plates

from stolen vehicles could possibly be an Overt Act because of

its total lack of capacity to assist in concealing automobiles

would appear in conflict with the legal requisites of the con-

spiratorial Overt Act, stretching back in antiquity to its ap-

pearance in the law of treason, and in apparent conflict with this

Court’s respected holdings in Bravermman v. United States, 317

U.S. 49, Krulewitch v. United States, 336 U.S. 440 and Fiswick

v. United States, 329 U.S. 211. If it be unnecessary to prove that

a questionable Overt Act actually tends in some unknown man-

ner to achieve the purposes of a conspiracy, then the statutory

requisite of an Overt Act as an element of the crime is simply

read out of existence. Hence this issue is a practical issue of

federal law of such importance that if the foregoing authorities

do not decide it, it would appear to merit decision by this Court.

With possession of such license tags having been proven not

merely beyond a reasonable doubt but to an absolute certainty,

such proof may have removed from the jury any pressure to give

serious consideration of whether Overt Act No. 4, the posses-

sion of two vehicle doors, had been proven beyond a reasonable

doubt by mere opinion evidence.

~~ ee

Where appellate review is of right rather than discretionary, it

is a denial of appellate review merely to cite a judicial decision

having no relation to the issues raised upon appeal, Proctor v.

Warden, Maryland Penitentiary, 435 U.S. 559. It is believed to

be equally irrelevant and equally a denial of review of right for

the Order of the Clerk of the Court of Appeals to state, in

regard to the search of Petitioner Driver’s property that there

was ‘‘no privacy interest retained as the issue had appropriately

resolved against appellants on disputed facts.’’ [sic] — in view

of the lack of dispute about those facts summarized herein, and

of the fact that privacy rights were insisted upon by motion to

suppress, by explicit trial objections as well as a continuing

general objection allowed by the Court, and by motions for

judgments of acquittal at the close of the government’s case

(taken under advisement but never decided), at the close of all

the evidence, and after entry of the verdict. When appeilate

counsel can conceive no possible rationale adequate to refute

the Seventh Circuit’s demonstration in Shanks, supra, that

possession of only a constituent part of an automobile does not

consitute possession of the entire automobile, then the failure

even to mention this issue of statutory construction and of ade-

quacy of the evidence in regard to the conviction of petitioner

Reece would appear to be a denial of appellate review. '

' In contrast with the certiorari-like discretion Congress has given this

Court in determining direct appeals, appeals to a Court of Appeals in

criminal cases are appeals of right; and when the issues are vigorously

contested, the judicial opinion has been the accepted means of

deciding appeals. Opinion-writing compels the writer to think more

carefully, United States v. Forness, 125 F.2d 928, 942 (2 Cir., 1942),

approved, United States v. Crescent Amusement Co.. 323 U.S. 173,

184-185, and should diminish the number of petitions for certiorari.

The increasing tendency of Courts of Appeals to exercise power

without an opinion’s justification is a departure from the usual course

of appellate procedure which merits this Court’s supervisory con-

sideration as an occasional alternative to its careful consideration of

issues on which the intermediate appellate judges have written

nothing. Courts of Appeals have opinion-writing facilities not

available to this Court in their power to use District Judges and

Retired Judges to share their burdens, at least when serious constitu-

tional issues are present and are competently briefed.

SOOO)

— oe

By such treatment of this appeal, petitioners respectfully

assert that the learned Court of Appeals so far departed from

the accepted and usual course of judicial proceedings as to call

for the exercise of the traditonal supervisory authority which in-

heres in the writ of certiorari.

Respectfully submitted,

CECIL D. BRANSTETTER

200 Church Street

Nashville, Tennessee 37201

Attorney for Petitioner Driver

T. ARTHUR JENKINS

Odd Fellows Building

Manchester, Tennessee 37355

Attorney for Petitioners Brown

& Reece

OF COUNSEL:

CARROL D. KILGORE

200 Church Street

Nashville, Tennessee 37201

APPENDIX

—

APPENDIX A

United States Court of Appeais

For The Sixth Circuit

United States of America 7

Plaintiff-Appellee

v. No 78-5211

Thomas Bennett Driver, Virginia

Ruth Brown, Harold Reece,

Defendants-Appellants |

ORDER

(Filed May 8, 1979)

| Before EDWARDS, Chief Judge, KEITH, Circuit Judge and

PECK, Senior Circuit Judge.

On August 26, 1977, appellants and a fourth defendant were

indicted under a ten-count indictment charging a conspiracy

and nine substantive offenses relating to the receipt and con-

cealment of stolen motor vehicles in interstate commerce, in

violation of 18 U.S.C. §§371 and 2313. After a jury trial beginn-

ing January 31, 1978, appellants were convicted on the con-

spiracy count and various other counts charging substantive of-

fenses. Concurrent sentences were imposed upon each appellant

on each count which resulted in a conviction.

The evidence adduced at trial established that appellants were

tied into a large-scale auto theft operation. Appellants would

acquire stolen vehicles with the purpose of disassembling them

and reselling their various component parts. In addition to the

selling of the mechanical parts, appeallants also disassembled

the bodies of the vehicles for the purpose of resale after being

reassembled in what would appear to be entirely different

vehicles. To make the scheme effective, appellant Driver also

och ii ccs

bought wrecked or recovered stolen vehicles from their owners

or from insurance companies for the purpose of acquiring new

and different identification numbers and frames on to which

components of the stolen vehicles could be reassembled. The

frames from the stolen vehicles were cut into two-foot lengths

and then sold for scrape metal.

Appellants’ primary appellate arguments relate to claimed

Fourth Amendment abuses. Analysis of each must be rejected

either because there was consent to the search, or there was no

privacy interest retained as the issue had appropriately resolved

against appellants on disputed facts.

Upon due consideration of the record on appeal, the briefs

and oral arguments of counsel for the parties and being fully ad-

vised in the premises, the Court is of the view that appellants’

allegations of error are all without merit.

Therefore, it is ORDERED that appellants’ convictions be,

and the same hereby, are affirmed.

ENTERED BY CRDER OF THE

COURT

/s/ JOHN YY. HEHMAN

Clerk

APPENDIX B

United States Court of Appeals

For The Sixth Circuit

United States of America 7

Plaintitf-Appellee

v. No 78-5211

Thomas Bennett Driver, Virginia

Ruth Brown, Harold Reece,

Defendants-Appellants ;

ORDER

(Filed September 13, 1979)

BEFORE: Edwards, Chief Judge, Keith, Circuit Judge, and

Peck,

Senior Circuit Judge

No judge in the active service of this Court having requested

that a vote be taken on the suggestion that the petition for

rehearing filed in this cause be heard en banc, said petition for

rehearing was referred to the hearing panel for consideration.

Upon consideration of the petition for rehearing filed herein

by appellants, we conclude that the issues raised therein were

fully considered upon the original submission and decision of

this case.

It is therefore ORDERED that the petition for rehearing be,

and the same hereby is, denied.

ENTERED BY ORDER OF THE

COURT

/s/ JOHN P. HEHMAN

Clerk

0 OGQ,QG,)QGQG,, eee

an Bo

APPENDIX C

In The United States District Court For The

Eastern District of Tennessee

United States of America

Plaintiff,

Vv. > No CR-4-77-7

Thomas Bennett Driver, et al

Defendants. 7

Memorandum and Order

(Filed September 21, 1977)

The defendant Mr. Thomas Bennett Driver moved for a con-

tinuance of the trial herein which is now assigned to commence

Tuesday, October 4, 1977. The Court hereby FINDS that the

ends of justice which will be served by granting such conti-

nuance outweigh the best interest of the public and the respec-

tive defendants herein in a speedy trial. 18 U. S. C. § 3161 (h) 8

(a).

Four defendants are indicted herein. A grand jury charged in

court one of such indictment that all such defendants conspired

to violate certain federal laws and committed four overt acts in

furtherance of the purpose thereof. Substantive violations of

federal law are charged against one or two of such defendants in

the latter nine counts of the indictment.

The aforementioned indictment was returned on August 26,

1977. The defendants Messrs. Driver and Harold Reece have

been arraigned herein, and each entered a plea of not guilty to

each count of such indictment under which the defendant is

charged. The Court is advised that the defendant Mr. William

Prescott Talbert may have been placed under arrest, but he

a. poe

has not yet been presented for arraignment. Where an indict-

ment has charged two or more defendants with a conspiracy and

also with substantive offenses, all defendants and all counts are

ordinarily tried together. Cf. Opper v. United States (1954), 348

U. S. 84, U. S. 84, 94-95, 75 S Ct. 158, 99 L. Ed. 101, 109-110

(headnotes 6, 7).

Mr. Driver claims that the unavailability of his counsel

threatens to deprive him of his right to counsel of his choice;

that mature investigation may reflect that he has been deprived

of his right to due process of law, Constitution, Fifth Amend-

ment; and that he requires considerable additional time to in-

vestigate the viability of certain pre-trial motions and to have

them determined by the Court to narrow his defenses ‘‘*** to

manageable proportions.***’’ The choice by Mr. Driver of

counsel to represent him herein is certainly part and parcel of his

right to counsel under the Constitution, Sixth Amendment.

United States v. Seale, C. A. 7th (1972), 461 F. (2d) 345,

358-359 [12]. Additional time to prepare adequately for trial,

when it is needed to properly prepare and try his case, is likewise

certainly the right of a defendant. Everitt v. United States, C.

A. 5th (1960), 281 F. (2d) 429, 434 [4].

There are specified defenses capable of determination

without the trial of the general issue which must be raised by

motion before trial. Rule 12 (b), Federal Rules of Criminal Pro-

cedure. The Court has a responsibility to set a time for the mak-

ing of pretrial motions and, where required, a later date of hear-

ing. Rule 12 (c), Federal Rules of Criminal Procedure.

As Mr. Driver’s counsel will not be available to client for

meaningful consultation until October 5, 1977, the Court

hereby SETS midnight, December 5, 1977 as the time by which

each defendant herein must make any and all pretrial motions.

Idem. The motion of the defendant Mr. Driver for a conti-

nuance of trial herein hereby is GRANTED; and this action

—_"

hereby is REASSIGNED for trial upon all pleas of not guilty to

the indictment herein to commence at 9:00 o’clock, a. m., Mon-

day, January 9, 1978.

After reviewing any such pretrial motions which may be filed,

the Court will assign a time for any hearing thereon as may ap-

pear to be required. Each defendant, enlarged upon bail bond,

will stand upon that bond until time of trial.

ENTER:

/s/ C. G. NEESE

United States District Judge

=. oo

APPENDIX D

In The United States District Court For The

Eastern District of Tennessee

‘

United States of America

Plaintiff,

v. P No CR-4-77-7

Thomas Bennett Driver, et al

Defendants. |

Memorandum Opinion and Order

(Filed December 6, 1977)

This is a criminal action against four defendants. The motion

of the defendant Mr. Driver for a continuance of the trial herein

assigned to commence Tuesday, October 4, 1977 was granted,

and trial of all the defendants was reassigned to commence

January 9, 1978. See memorandum and order herein of

September 21, 1977.

On November 30, 1977, the other defendants, Ms. Virginia

Ruth Brown and Messrs. Harold Reece and William Prescott

Talbert, moved for a further continuance on the ground that

their common retained counsel is ill and, in the estimation of his

attending surgeon, will be unable to resume his professional ac-

tivities until about January 18, 1978. The illness of counsel or-

dinarily constitutes good cause for the continuance of trial. A

United States v. Tramunti, C. A. 2d (1975), 513 F. (2d) 1087,

1116-1118 [40-41], [42], [43], [44], [45], certiorari denied (1975),

423 U.S. 832, 96 S. Ct. 54, 55, 46 L. Ed. (2d) 50.

FINDING that the ends of justice which will be served by

granting the further continuance requested by three of the four

defendants outweigh the best interest of the public and the

— "on

respective defendants herein in a speedy trial, 18 U, S. C. § 3161

(h) (8) (a), the Court hereby SETS midnight, January 18, 1978

as the time by which each defendant herein must make any and

all pretrial motions, Rule 12 (c), Federal Rules of Criminal Pro-

cedure. Any evidentiary hearing found to be indicated as a

result thereof will be conducted on January 23, 1978, commenc-

ing at 1:00 o’clock, p.m. or as soon thereafter as such may be

reached on the Court’s calendar. This action is further

REASSIGNED for trial upon all pleas of not guilty herein to

commence at 9:00 o’clock, a.m., Tuesday, Janaury 31, 1978.

Each defendant, enlarged upon bail, will stand on his or her

present bond until time of trial.

ENTER:

/s/ (C. G. NEESE)

United States District Judge

— © pe

APPENDIX E

In The United States District Court For The

Eastern District of Tennessee

‘

United States of America,

Plaintiff,

v. r No. CR-4-77-7

Thomas Bennett Driver, ET AL.,

Defendants.

Memorandum Opinion and Order

(Filed December 8 1977)

The defendants Mr. Driver and Ms. Brown seprately moved

the Court to order the government to produce for purposes of

their discovery and inspection certain categories of documents

and other tangible evidence. Such motions are premature, and

thus lack merit at this time.

The defendants have no general constitutional right to

discovery in a criminal case, Weatherford v. Bursey

(1977), U.S. ; , 97S. Ct. , 51 L.Ed. (2d) 30, 42

[6]; but rather, any such discovery is governed by the provisions

of Rule 16, Federal Rules of Criminal Procedure. ‘‘***The

language of Rule 16, as amended in 1975, has been recast from

‘the court may order’ or ‘the court shall order’ to ‘the govern-

ment shall permit’ ***in order to make clear that discovery shall

be accomplished by the parties themselves. Only if there is a

failure to comply should the court have to interfere. ***’’ 1

Wright, Federal Practice and Procedure: Criminal 221 (1976

Suppl.), § 258; accord: 8 Moore’s Federal Practice (2d ed.)

16-48, paragraph 16.03 [1].

In considering the aforementioned amendments, as proposed

by the Supreme Court, the Committee on the Judiciary of the

— A-10 —

House of Representatives noted that, thereunder, ‘‘***the par-

ties themselves will accomplish discovery—no motion need be

filed and no court order is necessary. The court will intervene

only to resolve a dispute as to whether something is discoverable

or to issue a protective order.***’’ Notes on Committee on the

Judiciary House Report No. 94-247, Historical Note, Rule 16,

Rules of Criminal Procedure, 18 U. S. C. A. page 358. Such

committee ‘‘***agree[d] that the parties should, to the max-

imum possible extent, accomplish discovery themselves *** {and

that] *** [t]he court should become involved only when it is

necessary to resolve a dispute or to issue an order pursuant to

Subdivision (d). ***’’ Idem.

Neither of the moving defendants claim to have made any

previous request of the plaintiff for the discovery or inspection

of any of the materials sought by such motions. Neither does

the same appear from the record herein. The Court notices

judicially that the United States attorney for this district com-

plies ordinarily with the request of a criminal defendant for the

discovery of any materials which are permitted by Rule 16,

supra, thus making unnecessary generally motions such as the

instant one. Under those circumstances, the Court feels that any

intervention by it into the parties’ extrajudicial discovery pro-

cess at this time would be contrary to the policy expressed by the

Congress and the Supreme Court in promulgating and enacting

the 1975 amendments to Rule 16, supra.

Accordingly, the defendants’ aforementioned motions hereby

are DENIED without prejudice to their renewal of the same

upon any failure of the plaintiff to comply with the provisions

of Rule 16, supra.

ENTER:

/s/ (C. G. NEESE)

United States District Judge

— :

APPENDIX F

In The United States District Court For The

Eastern District of Tennessee

United States of America,

Plaintiff,

v. > No. CR-4-77-7

Thomas Bennett Driver, ET AL.,

Defendants.

Memorandum Opinion and Order

(Filed January 19, 1978)

The defendants Ms. Brown and Messrs. Reece and Tolbert

moved the Court on January 17, 1978 for additional time within

which to file pre-triai motions herein and also for a continuance

of the evidentiary hearing scheduled for January 23, 1978 and

the trial hereof assigned to commence on January 31, 1978.

The indictment herein was returned by a grand jury of this

district on August 26, 1977 and, subsequently, the defendants

were arraigned, at which time trial hereof was assigned to com-

mence on October 4, 1977. On motion of the defendant Mr.

Driver, such trial date was reassigned to January 9, 1978, and

the Court set midnight, December 5, 1977 as the time by which

each defendant herein would be required to make any and all

pretrial motions, Rule 12 (c), Federal Rules of Crimina Pro-

cedure. Memorandum and order herein of September 21, 1977.

The Court further continued the trial of this action until

January 31, 1978 on the motion of the aforenamed 3 defendants

due to the illness and hospitalization of their counsel T. Arthur

Jenkins, Esq. Memorandum opinion and order herein of

December 6, 1977. At that time, the time by which each defen-

dant must make any and all pretrial motions was reassigned to

January 18, 1978.

— A-12 —

The affidavits and other documents submitted in support of

the present motion indicate that Mr. Jenkins is still in the pro-

cess of slow recovery from his surgery of November 23, 1977,

and that his professional activities have been, and will continue

to be, somewhat curtailed as a result thereof. Nevertheless,

these defendants make no claim of having attempted to secure

substitute counsel. If Mr. Jenkins is not able physically to effec-

tively represent them, the defendants or Mr. Jenkins should ar-

range for other counsel who is able physically to do so.

Under less extraordinary circumstances, the Court would be

better able to accommodate to Mr. Jenkins’ indisposition and

his clients’ loyalty to counsel of their choosing. It is represented

that Mr. Jenkins’ health will not permit his appearance until the

middle of April. The requirements of the Speedy Trial Act and

other responsibilities require the presence of the presiding judge

of this division in the Northeastern Division of this Court in the

period after February 8 and beyond April, next.

Ms. Brown and Messrs. Reece and Tolbert also moved

separately for a dismissal of the indictment herein on the ground

that they have been ‘‘***denied a speedy trial in compliance

with 18 U. S. C. § 3161 (b)***”’ and the Constitution, Fifth and

Sixth Amendments. If that be the case, then, certainly, any con-

tinuance herein would further impinge upon such respective

defendants’ claimed rights to a speedy trial herein. Under such

circumstances, the Court does not find that the ends of justice

served by a continuance outweigh the best interest of the public

and the defendants in a speedy trial. 18 U. S. C. § 3161 (h) (8)

(A).

Accordingly, the aforementioned motion hereby is DENIED,

in its entirety; except that the Court hereby SETS midnight,

Saturady, January 21, 1978 as the time by which each defendant

must make any and all pretrial motions. Rule 12 (c), supra.

ENTER:

/s/(C. G. NEESE)

United States District Judge

— A-13 —

APPENDIX G

In The United States District Court For The

Eastern District of Tennessee

United States of America,

Plaintiff,

v. 7 No. CR-4-77-7

Thomas Bennett Driver, ET AL.,

Defendants. |

Memoranda Opinions and Orders

(Filed January 20, 1978)

A United States magistrate of this district recommended that

certain motions herein of the defendant Mr. Driver be denied.

28 U. S. C. § 636 (b) (1) (B). Such defendant served and filed

timely written objections to such recommendation, and the

undersigned judge has considered de novo those portions of the

magistrate’s recommendation to which objection was made. 28

U.S. C. § 636 (b) (1).

Mr. Driver is not entitled to a dismissal of the indictment

herein on the ground that the copy thereof furnished to him

does not contain thereon the signature of the grand jury

foreman. The indictment filed herein is properly signed. See

Rule 6 (c), Federal Rules of Criminal Procedure. The plaintiff

hereby is ORDERED to furnish to such defendant a signed copy

of the indictment herein of August 26, 1977.

Such defendant is not entitled to a dismissal of the indictment

hereon on his claim that same was based upon evidence illegally

obtained. Such a motion is not the proper vehicle to raise this

contention. Brothers v. United States, C. A. 9th (1970), 431 F.

(2d) 644, 645 [1]; see also: United States v. Isaacs, D. C. Ill.

—

(1972), 347 F. Supp. 743, 757 [26] and United States v. Markey,

D. C. N. Y. (1975), 405 F. Supp. 854, 863.

Mr. Driver also contends that preindictment delay requires

the dismissal of the indictment herein. ‘‘***If a defendant can

show actual substantial prejudice to his right to a fair trial and

[emphasis supplied] that the delay was deliberately created to

gain an unfair tactical advantage for the government, he is en-

titled to dismissal [of the indictment] for violation of the Fifth

Amendment due process rights.***’’ United States v. Swainson,

C. A. 6th (1977), 548 F. (2d) 657, 663 [14]. Mr. Driver makes no

claim of any prejudice because of any delay in the return of the

indictment herein, much less any claim that such was deliberate-

ly created to gain an unfair tactical advantage for the govern-

ment.

‘“***(T]o prosecute a defendant following investigative delay

does not deprive him of due process.***’’ United States v.

Lovasco (1977), wu. &. : , 97S. Ct. 2044, 2052 [9],

52 L. Ed. (2d) 752. Certainly Mr. Driver has not demonstrated

‘“***actual substantial prejudice to his right to a fair trial.***”’

United States v. Swainson, supra, 548 F. (2d) at 663 [14].

The indictment herein is not overbroad or vague, and it is

otherwise sufficient. Hamling v. United States (1974), 418 U. S.

87, 117-118, 94S. Ct. 2887, 41 L. Ed. (2d) 590, 620-621 [25-27];

United States v. Debrow (1953), 346 U. S. 374, 74S. Ct. 113, 98

L. Ed. (2d) 92; United States v. Brannan, C. A. 6th (1972), 457

F. (2d) 1062, 1063-1065 [1,2]; Rule 7 (c) (1), Federal Rules of

Criminal Procedure; see also Forms 6 and 7, Federal Rules of

Criminal Procedure, Appendix of Forms.

Mr. Driver is mistaken in his contention that 18 U.S. C. §§ »

2312 and 2313 are unconstitutional. Brooks v. United States

(1925), 267 U. S. 432, 45 S. Ct. 345, 69 L. Ed. 699; Williams v.

United States, C. A. 4th (1971), 443 F. (2d) 1151, 1155 [11];

United States v. Hooper, C. A. 6th (1970), 438 F. (2d) 969, cer-

— | on

tiorari denied (1970), 400 U. S. 929, 91S. Ct. 189, 27 L. Ed. (2d)

190; United States v. Newson, D. C. La. (1956), 144 F. Supp.

464, 466 [3].

Accordingly, the objections of Mr. Driver to the magistrate’s

aforementioned recommendation hereby are OVERRULED;

such recommendation hereby is ACCEPTED, 28 U. S. C. § 636

(b) (1); and Mr. Driver’s motion (no. 1) herein of September 19,

1977 for a dismissal of the indictment herein hereby is DENIED

in its entirety.

The magistrate also recommended that the motion (no. 5)

herein of the defendant Mr. Driver for relief from prejudicial

joinder, Rule 14, Federal Rules of Criminal Procedure, be

denied. The unsupported allegations made by Mr. Driver in

support of such motion are not sufficient to require such relief.

United States v. Armocida, C. A. 3d (1975), 515 F. (2d) 29, 46

[32].

‘**** [T]he general rule in conspiracy cases is that persons

jointly indicted should be tried together and that this is par-

ticularly true where the offenses charged may be established

against all of the defendants by the same evidence and which

result from the same series of acts. ***’’ United States v. Dye,

C. A. 6th (1974), 508 F. (2d) 1226, 1236 [21], certiorari denied

(1975), 420 U. S. 974, 95 S. Ct. 1395, 43 L. Ed. (2d) 653. It not

appearing that Mr. Driver is, or will be, prejudiced by a joinder

of offenses herein or by such joinder for trial together, the

Court hereby ACCEPTS the magistrate’s recommendation, and

in its discretion, ibid., 508 F. (2d) at 1236 [20], hereby DENIES

such motion.

The magistrate also recommended that Mr. Driver’s motion

(no. 4) herein of Septemberr 19, 1977 for certain discovery be

denied as having been rendered moot. The Court having

previously denied such motion as being premature, memoran-

dum opinion and order herein of December 8, 1977, and the

government having apparently fully responded to an apparent

— A-16 —

subsequent request for the production of the materials sought

thereby, the magistrate’s recommendation hereby is AC-

CEPTED and such motion hereby is

DENIED

Mr. Driver also moved for a bill of particulars.* Rule 7 (f),

Federal Rules of Criminal Procedure. It appearing that the in-

dictment herein is not too vague nor indefinite to inform such

defendant of the nature of the respective charges against him

herein with sufficient precision to enable him to prepare for

trial, to avoid or minimize the danger of surprise at the time of

trial, and to enable him to plead his acquittal or conviction in

bar of another prosecution for the same offenses, United States

v. Brimley, C. A. 6th (1976), 529 F. (2d) 103, 108 [12], in the

discretion of the Court, Will v. United States (1967), 389 U. S.

90, 98-99, 88 S. Ct. 269, 275 [13], 19 L. Ed. (2d) 305, such mo-

tion hereby is

DENIED

The aforementioned magistrate also recommended on

January 5, 1978 that certain motions herein of the defendant

Ms. Brown be denied, 28 U. S. C. § 636 (b) (1) (B), and a copy

of such recommendation was mailed to counsel for such defen-

dant on the same date, 28 U. S. C. § 636 (b) (1). No timely writ-

ten objections thereto have been served and filed. Jdem. The

undersigned judge hereby ACCEPTS such recommendation in

its entirety. Jdem.

The motion of Ms. Brown for a separate trial, Rule 14,

Federal Rules of Criminal Procedure, hereby is

Hi The magistrate did not make a recommendation as to the Court’s

disposition of this motion, so the Court will consider such motion de

novo.

—.

DENIED. United States v. Armocide, C. A. 3d (1975), 515 F.

(2d) 29, 46 [32]; United States v. Goble, C. A. 6th (1975), 512

F. (2d) 458, 465-466 [4]; United States v. Franks, C. A. 6th

(1975), 511 F. (2d) 25, 30 [3], certiorari denied (1975), 422 U. S.

1042, 1048, 95 S. Ct. 2654, 2656, 2667, 45 L. Ed. (2d) 693, 701;

United States v. Dye, supra, 508 F. (2d) at 1236 [20], [21].

The Court having previously denied the motion of the

aforenamed defendant for discovery and inspection as being

premature, memorandum opinion and order herein of

December 8, 1977, such motion is MOOT and hereby is

DENIED.

The government moved the Court for certain discovery and

inspection as to the defendants Mr. Driver and Ms. Brown, see

Rule 16 (b) (1) (A), (B), Federal Rules of Criminal Procedure.

For the reasons stated in this Court’s memorandum opinion and

order herein of December 8, 1977, such respective motions are

premature, and for such reason hereby are DENIED without

prejudice to the government’s renewal of the same upon any

failure of such respective defendants to comply with the provi-

sions of Rule 16 (b) (1) (A), (B), supra.

ENTER:

/s/ C. G. NEESE

United States District Judge

— A-18 —

APPENDIX H

In The United States District Court For The

Eastern District of Tennessee

United States of America,

Plaintiff,

Vv. No. CR-4-77-7

Thomas Bennett Driver, ET AL.,

Defendants.

Memorandum Opinion and Order

(Filed January 26, 1978)

The defendant Ms. Virginia Ruth Brown moved the Court to

suppress as evidence herein all property seized from her residen-

tial premises on July 2, 1977 (sic: 1976) by law enforcement of-

ficers. Rule 41 (f), Federal Rules of Criminal Procedure. Items

of property were taken from the curtilage of her premises as well

as from within a locked outbuilding. An evidentiary hearing

thereon was conducted pretrial on January 24, 1978, Rule 12

(e), Federal Rules of Criminal Procedure.

Ms. Brown returned to her trailer-home near Manchester,

Tennessee on July 2, 1976 in a pickup truck. Her trailer is

located about 300 feet off the nearest main road, and there is a

“no trespassing’’ sign implaced at the entrance of her residential

premises.

Mr. Donald W. Aaron and other special agents of the Federal

Bureau of Investigation arrived and identified themselves as

such to Ms. Brown in her backyard and advised her that they

knew the blue pickup truck parked in the front of her home was

stolen, and that they assumed four other trucks parked nearby

were stolen also. Ms. Brown replied that she knew nothing

about such matters and desired to talk with her attorney.

— A-19 —

When it was determined that Ms. Brown’s attorney was T.

Arthur Jenkins, Esq., Mr. Aaron suggested she might be able to

locate him at Driver’s Garage and Junkyard. In due time, Ms.

Brown advised Mr. Aaron that Mr. Jenkins wished to speak

with him on the telephone. In the ensuing telephone conversa-

tion, Mr. Jenkins gave Mr. Aaron permission ‘‘***to go ahead

and search***’’ Ms. Brown’s premises and stated he had advis-

ed Ms. Brown to give her permission; however, it is not claimed

that Ms. Brown, herself, gave the government agents her con-

sent to search her premises.

Mr. Aaron conceded that he was not authorized by any war-

rant to search Ms. Brown’s premises and to seize anything

therefrom, see and cf. Rules 41 (a), (b), (c), Federal Rules of

Criminal Procedure. The officers had no information of the

presence of exigent circumstances involving the 5 trucks men-

tioned which would have justified their proceeding without a

search warrant.

A few hours after the aforementioned Jenkins-Aaron

telephone conversation, Mr. Jenkins, Esq. came to the scene of

the search and seizure. Ms. Brown gave him the key to an out-

building on her property; Mr. Jenkins opened the lock and

door; and the officers entered it and searched and seized items

therefrom.

The salient question is whether consent given by one’s at-

torney to search his client’s premises without a search warrant is

to be deemed the consent of the occupant of those premises.

The Court, at the hearing herein and without the full benefit of

briefs from counsel, was of the mistaken view that the waiver of

a Fourth Amendment right against unreasonable search and

seizure required ‘‘***an intentional relinquishment or abandon-

ment of a known right.***’’ Johnson v. Zerbst (1938), 304 U.S.

458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461. However, the

Sureme Court, in a 6-3 decision, has rejected the contention that

the Zerbst rule should be extended to the constitutional

— AD.

guarantee against unreasonable searches and _ seizures.

Schneckloth v. Bustamonte (1973), 412 U.S. 218, 241, 93S. Ct.

2041, 2055, 36 L. Ed. (2d) 854.

‘The right of the people to be secure in their *** houses,

Papers, and effects, against unreasonable searches and seizures,

shall not be violated. ***” Constitution, Fourth Amendment.

The right given by the Constitution, Fourth Amendment, is per-

sonal. United States v. Strouth, D.C. Tenn. (1970), 311 F.

Supp. 1088, 1090 [3]. ‘**** [A] search conducted without a war-

rant issued upon Probable cause is ‘per se

unreasonable . . . subject only to a few specifically establish-

ed and well-delineated exceptions.’*** One of the specifically

established exceptions *** js a search that is conducted Pursuant

to consent. ***’ Schneckloth v. Bustamonte, supra, 412 U.S. at

219, 93 S. Ct. at 2043-2044 [1,2], cited in United States Vv.

Matlock (1974), 415 U. S. 164, 165-166, 94S. Ct. 988, 990, 39

L. Ed. (2d) 242.

The Court has discovered only one case in which a court has

validated the search of his client’s property on consent of an at-

torney, after the attorney had consulted with his client. Brown

v. State (1965), 81 Nev. 397, 404 P. (2d) 428. This adjudication

appears to run counter to the latest expression of our Circuit,

finding it ‘‘***well settled that a third person, other than the

defendant, can consent to a search of a defendant’s premises or

effects if that third person has common authority over the

premises [emphases supplied] or effects.***”’ United States v.

Sumlin, C. A. 6th (1977), F. (2d) ; {[ ] (No.

77-5076 decided and filed December 14, 1977). It also appears to

this Court to run counter tO expressions from the Supreme

Court.

That Court reversed a state judgment of conviction wherein a

night clerk had given law enforcement Officers permission to

search the room of the defendant who was a guest in that hotel.

The reasoning of Mr. Justice Steward is instructive herein:

Se ee 0 anit esl

— A-21 —

*e eke Et

***(T]here *** [is no] *** substance to the claim that

the search was reasonable because the police, relying upon

the night clerk’s expressions of consent, had a reasonable

basis for the belief that the clerk had authority to consent

to the search. Our decisions make clear that the rights pro-

tected by the Fourth Amendment are not to be eroded by

strained applications of the law of agency or by unrealistic

doctrines of ‘‘apparent authority.’’***

It is important to bear in mind that it was the

petitioner’ sconstitutional right which was at stake here, and not the

night clerk’s nor the hotel’s. /t was a right, therefore,

which only the petitioner [defendant] could waive by word

or deed, either directly or through an agent. *** [Emphasis

supplied .]***

Stoner v. State of California (1964), 376 U. S. 483, 488-489, 84

S. Ct. 889, 892-893, 11 L. Ed. (2d) 856, rehearing denied (1964),

377 U. S. 940, 84S. Ct. 1330, 12 L. Ed. (2d) 303.

Neither can rights protected by the Fourth Amendment be

eroded because the person giving consent to a search happens to

be the attorney for the person searched. ‘‘Attorney has express

authority to do all those acts which he has been expressly

authorized to do by the client; and, in addition, he has, by vir-

tue of the retainer or employment alone, the general implied

authority to do on behalf of the client, in or out of court, all

acts necessary or incidental to the Prosecution or management

of the suit, or the accomplishment of the purpose, for which he

was retained, and apparent authority to exercise those powers

which the client has held him Out to third persons as

possessing.’’ 7C. J. S. 896, Attorney and Client, § 79 (emphasis

supplied). But, ‘‘*** [t]he implied authority of an attorney or-

dinarily does not extend to the doing of acts which will result in

the surrender or giving up of any substantial right of the

chem. °°" i. 7 C. 5. S. at 897, citing inter alia , Holt v.

— A-22 —

State (1930), 160 Tenn. 366, 24 S. W. (2d) 886. Again: ‘‘The

employment or retainer of any attorney ordinarily gives him the

implied or apparent authority to waive mere informalities and

technicalities, but not the substantial legal rights of the client.’’

Ibid., 7 C. J. S. at 922, § 100c.

Holt, supra, deait with the unauthorized action of an at-

torney in connection with the conduct of a criminal trial itself.

In the absence of the defendant, his counsel undertook to waive

his client’s presence and to agree to a mistrial. The Tennessee

Supreme Court ruled that those actions by the attorney were

beyond his authority; that the attorney could not waive his

client’s constitutional rights to be present all the while deter-

minative steps in a felony prosecution were being taken against

him, and his right not to be put in jeopardy a second time for

the same offense. The highest court in this stae asserted that the

latter right ‘‘***js as important as the right to be tried by jury,

and is guarded with as much care.’’ Ibid., 24S. W. (2d) at 887.

Certainly, Ms. Brown’s federal right to be secure in her home

and effects against unreasonable search and seizure was equally

important and to be guarded with as great care. This guarantee

‘“***marks the right of privacy as one of the unique values of

our civilization and, with few exceptions, stays the hands of the

police unless they have a search warrant issued by a magistrate

on probable cause supported by oath or affirmation.***”

McDonald v. United States (1948), 335 U.S. 451, 453, 69S. Ct.

191, 93 L. Ed. 153, 157.

The government law-en forcement officers had no search war-

rant for the property of Ms. Brown; there was no reason why

they could not have obtained one. They searched her property

and seized vehicles therefrom without Aer consent. *

*It is of some significance that officers engaged in the same in-

vestigation of crime obtained the written consent of a codefendant of

Ms. Brown before searching his commerical Property and seizing ar-

ticles therefrom.

— A-23 —

To protect this valuable right for all citizens of this nation and

others within its jurisdiction, Ms. Brown’s motion to suppress

the evidence of the five vehicles seized unlawfully from her pro-

perty must be, and it hereby is GRANTED, and such evidence

hereby is SUPPRESSED.

A different rule applies with regard to the search of Ms.

Brown’s outbuilding and the seizure of items therefrom. Even

‘though she had posted her premises against trespassers and had

given the government agents who intruded thereon no permis-

sion to be upon them, once they were there, by her actions, she

withdrew her expectation of privacy as to the property within an

Outbuilding upon her premises.

When she provided her attorney with the key thereto and

allowed him to unlock the door and admit the officers, she ex-

posed knowingly that portion of her premises to the view of the

officers. Thus, the inside of her Outbuilding was no longer a

subject of the protection afforded by the Constitution, Fourth

Amendment. Katz v. United States (1967), 389 U. S. 347, 351,

88 S. Ct. 507, 511 19 L. Ed. (2d) 576, 582. As to the search and

seizure of items therefrom, accordingly, Mr. Brown’s motion to

suppress the evidence provided thereby hereby is OVERRUL-

ED.

ENTER:

/s/{C. G. NEESE)

United States District Judge

ii sisi‘ ( ‘( i!

—_—

APPENDIX I

In the United States District Court for the

Eastern District of Tennessee

United States of America,

Plaintiff,

No. CR-4-77-7

Thomas Bennett Driver, et al.,

Defendants.

Memorandum Opinion and Order

(Filed January 26, 1978)

The defendant Mr. Driver, aggrieved by an allegedly unlawful

search and seizure of items of his property, moved the Court for

the return thereof on the ground that he is entitled to lawful

Possession thereof, Rule 4] (e), Federal Rules of Criminal Pro-

cedure, and to suppress the evidence resulting from such search

and seizure, Rule 41 (f), Federal Rules of Criminal Procedure.

An evidentiary hearing thereon was conducted pretrial on

January 23-24, 1978, Rule 12 (e), Federal Rules of Criminal

Procedure.

Agents of the Federal Bureau of Investigation and Tennessee

bureau of criminal identification and the Sheriff of Coffee

County, Tennessee and his deputies examined and seized certain

automotive portions and Parts as evidence of crime from the

premises of Mr. Driver on July 2, 1976. None of them acted at

the pertinent times under the authority of a warrant to search

such premises and seize such property, cf. Rules 4] (a), (b), (c),

Federal Rules of Criminal Procedure.

The aforementioned articles of property were seized by the

Officers indicated after Mr. Driver had signed a form, which

Stated:

— A-25 —

July 2, 1976

(Date)

Manchester, Tenn.

(Location)

I, Thomas Bennett Driver, having been informed

of my constitutional right not to have a search made of the

premises hereinafter mentioned without a search warrant

and of my right to refuse to consent to such a search,

hereby authorize Sheriff Bobby McCullough, and John D.

Jones, Special Agents of the Federal Bureau of Investiga-

tion, United States Department of Justice, to conduct a

complete search of my premises located at Drivers Garage

& Junkyard, Route 4, Woodbury Highway, Manchester,

Tenn. These agents are authorized by me to take from my

premises any letters, papers, materials or other property

which they may desire.

This written permission is being given by me to the

above named Special Agents voluntarily and without threats or

promises of any kind.

(SIGNED) /Thomas S. Driver

WITNESSES: John D. Jones, Special Agent, FBI

Bobby McCullough, Sheriff

‘*The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall no be violated. * * * ”’ Constitution, Fourth Amendment.

The right given by the Constitution, Fourth Amendment, is per-

sonal and may be waived. United States v. Strouth, D. C. Tenn.

(1970), 311 F. Supp. 1088, 1090 [3]. ‘** * * Consent that is une-

quivocal, specific and voluntarily given without duress or coer-

cion, actual or implied, is effective as waiver of any objection to

the admission of evidence so obtained. United States v. Strouth,

[supra], * * * 1094. * * * * United States v. Ward, D. C. Tenn.

(1973), 365 F. Supp. 1342, 1344 [3].

— A-26 —

Mr. Driver testified that he understood he was giving the of-

ficers permission to “‘inventory”’ the articles on his premises,

that he understood *”’inventory’’ to imply “‘counting’’, and

that he ‘‘* * * really * * * ’ didn’t know what he was signing. He

operated a sole proprietorship in the automotive junk-parts

business in this same location for 24 years, and the Court

FINDS that his foregoing consent was unequivocal, specific,

voluntary, and given without actual or implied duress or coer-

cion. His chief complaint is that some of the officers in this

joint-enterprise examination commenced their search before he had

signed the foregoing consent-form.

His premises constituted a business operation, open to

members of the general public, with various automotive parts,

Portions of vehicles, and related articles lying, stacked, and

leaning against other objects. These premises had formerly con-

stituted Mr. Driver’s family home, in addition to his garage and

junkyard premises. When government laws and regulations re-

quired him to erect a solid fence to conceal it from the members

of the public Passing along the adjacent roadways, his family

moved elsewhere, although Mr. Driver continued to use the

residence on these premises as a part-time residence. Thus it

was, that Mr. Driver utilized knowingly the entire out-of-doors

portions of this garage-junkyard, part-time-residence complex

for commercial purposes.

In Katz v. United States (1967), 389 U. S. 347, 88S. Ct. 507,

19 L. Ed. (2d) 576, the Supreme “‘ * * * Court stressed that

‘[w]hat a person knowingly exposes to the public . . .is not a

subject of Fourth Amendment protection.’ Jd. 389 U. S., at

351, 89S. Ct., at 511, 19 L.Ed.2d, at 582. * * *** United States

Vv. Miller (1976), 425 U. S. 435, , 96S. Ct. 1619, 1623, L.Ed.

(2d). Mr. Driver’s premises, being open to the public, he is not

in position to object to information obtained by officers who

entered those premises within the scope of the permission ex-

tended to the public generally. United States v. Harris, C. A.

A ae oh oe a,

Amare

—_<

10th (1975), 534 F. (2d) 207, 210 [1], certiorari denied (1976),

U.S. , 97S. Ct. 359, 50 L. Ed. (2d) 311; United States v.

Agrusa, C. A. 8th (1976), 541 F. (2d) 690, 697-698 [9-11];

United States v. Various Gambling Devices, C. A. Sth (1973),

478 F. (2d) 1194, 1200 [6]; United States v. Berkowitz, C. A. 1st

(1970), 429 F. (2d) 921, 925 [3].

His motion to suppress evidence thus obtained, ‘therefore,

hereby is

OVERRULED.

ENTER:

me. 1 G. Neese

United States District Judge

ee! ML

— A-28 —

APPENDIX J

In the United States District Court for the

Eastern District of Tennessee

United States of America,

Plaintiff,

Vv. No. CR-4-77-7

Thomas Bennett Driver, et al.,

Defendents.

Memorandum Opinion And Order

(Filed January 27, 1978)

The defendant Mr. Harold Reece moved the Court to sup-

press evidence of an automobile seized from him herein on July

2, 1976 after a warrantless search by an agent of the Federal

Bureau of Investigation and a police inspector of Chattanooga,

Tennessee. Rule 4] (f), Federal Rules of Criminal Procedure.

An evidentiary hearing thereon was conducted pretrial on

January 24, 1978, Rule 12 (e), Federal Rules of Criminal Pro-

cedure.

Mr. Joseph M. High, a special agent of the Federal Bureau of

Investigation, and Inspector Donaldson, of the Chattanooga

police department, observed a Volkswagon automobile parked

publicly on a road shoulder 4 or 5 feet from the fence of a com-

mercial enterprise in or neer Manchester, Tennessee on July 2

1976, bearing 1976 Georgia automobile license plate no. EPC

192 reflecting its issuance in Cobb County, Georgia, Messrs.

Donaldson and High had prior information that an automobile

of similar description had been stolen earlier in Cobb County

Georgia.

— A-29 —

Mr. Donaldson examined through the windshield of the vehi-

cle the plainly-visible identification plate, such as those placed

upon motor vehicles by their manufacturers. He observed that

the original plate had been removed and replaced by another.

This suspicious circumstance prompted Mr. Donaldson to enter

the vehicle, lift the rear seat thereof, and inspect the ‘‘true’’

identification number, to enable the officers to make a positive

identification of the status of the vehicle. Mr. Donaldson ob-

tained the ‘“‘true’’ identification number of the vehicle.

Reference of that number to the National Crime Information

Center resulted in information that a vehicle bearing the same

number had been reported stolen in Cobb County, Georgia on

December 7, 1975. The officers, thereupon seized the vehicle.

‘‘The right of the people to be secure in their * * * effects,

against unreasonable searches and seizures shall not be

violated. * * *’’ Constitution, Fourth Amendment. The

foregoing activities of the law-enforcement officers did not con-

stitute an unreasonable search within the meaning of that

amendment, however.

“* * * It is not a search [within the meaning of the Constitu-

tion, Fourth Amendment] to observe that which occurs openly

in a public place and which is fully disclosed to visual observa-

tion. * * * ’’ United States v. Williams, C.A. 6th (1963), 314 F.

(2d) 795, 798 [6], cited in Caldwell v. United States, C.A. 6th

(1964), 338 F. (2d) 384, 388. These officers, having reasonable

cause, after discovering the original identification number on

the vehicle had been replaced, to believe that the vehicle had

been stolen, and having a legitimate reason to search for the

“‘true’’ identification number, were authorized to check that

number in order to more positively identify the vehicle. Neither

was this latter activity a search within the prohibitions of the

Constitution, Fourth Amendment. United States v. Williams,

C.A. Sth (1970), 434 F. (2d) 681, 684 [1], citing inter alia United

— A-30 — — A-31 —

States v. Graham, C.A. 6th (1968), 391 F. (2d) 439; accord: APPENDIX K

Cotton v. United States, C.A. 9th (1967), 371 F. (2d) 385, 394

(22,23). In The United States District Court for the

Eastern District of Tennessee

Motion DENIED.

ENTER: | United States of America,

| Plaintiff,

/s/ C. G. NEESE | v. No. CR-4-77-7

United States District Judge | Thomas Bennett Driver, ef al.,

| Defendants.

Memorandum Opinion And Order

am nambvetsheioens

(Filed January 27, 1978)

| The defendants Messrs. Harold Reece and William P. Tolbert

| moved the Court to dismiss the indictment herein, as to each of

them, on the ground that each is deprived herein of a speedy

trial under the Constitution, Sixth Amendment,' the due pro-

| cess clause of the Fifth Amendment thereto,’ and the provisions

of 18 U. S. C. § 3161 (6). There is no merit to either such mo-

tion.

“** * * The limitations of the Due Process Clause of the Fifth

Amendment, and of those portions of the Bill of Rights which it

has been held to incorporate, come into play only when the

government activity in question violates some protected right of

the defendant. * * *’’ Hampton v. United States (1976), 425

U.S. 484, __, 96 S. Ct. 1646, 1650 [3], __ L.Ed. (2d) ___,

' “In all criminal prosecutions, the accused shall enjoy the right to

a speedy * * * trial. * * * ’’ Constitution, Sixth Amendment.

7 ““No person ***shall***be deprived of * * * liber-

ty * * * without due process of law. * * * ’’ Constitution, Fifth

| Amendment.

— A-32 —

—— (per Mr. Justice Rhinequist with the Chief Justice and one

Justice concurring and two Justices concurring in the

judgment.)

‘* * * * If a defendant can show actual substantial prejudice

to his right to a fair trial and that the delay was deliberately

created to gain an unfair tactical advantage for the government,

he is entitled to a dismissal [of the indictment] for violation of

the Fifth Amendment due process rights. * * * ’’ United States

v. Swainson, C.A. 6th (1977), 548 F. (2d) 657, 663 [14]. But,

““ * * * to prosecute a defendant following investigative delay

does not deprive him of due process. * * * ’’ United States v.

Lovasco (1977), __ U.S. » 97S. Ct. 2044, 2052 [9], 52

L. Ed. (2d) 752.

The only claim of any ground of these defendants of a due

Process violation relates to their claims that government activity

herein violated their protected right to a speedy trial. The con-

stitution guarantee to a speedy trial ‘‘ * * * has been universally

thought essential * * * ‘[1]to prevent undue and oppressive in-

carceration prior to trial, [2] to minimize anxiety and concern

accompanying public accusation and [3] to limit the possibilities

that long delay will impair the ability of an accused to defend

himself.’ * * * Smith v. Hooey (1969), 393 U.S. 374, 377-378,

89 S. Ct. 575, 577 [2], 21 L. Ed. (2d) 607. None of these essen-

tials are implicated by the claims of the movants. Thus, only a

consideration under the pertinent provisions of the Speedy Trial

Act is involved.

That Act specifies in this connection:

*e e248

** * Any * * * indictment charging an individual with

the commission of an offense shall be filed within thirty

days from the date on which such individual was arrested

Or served with a summons in connection with such

charges. * * *

ee ee ee

a ESOS

—_—

18 U. S. C. § 3161 (b). The indictment herein was returned by a

grand jury on August 26, 1977. Mr. Reece was arrested in con-

nection with such charges on September 7, 1977, and Mr.

Tolbert was arrested in connection with such charges on

September 15, 1977.

Both movants were charged in count I of such indictment

with conspiring between themselves and with others to willfully

and knowingly transport in interstate commerce stolen motor

vehicles and to receive, conceal and store motor vehicles which

were moving in interstate commerce between on or about

November 6, 1974 and July 2, 1976.

Mr. Reece was charged additionally in court II thereof with

the substantive offense of having received and concealed be-

tween July 7, 1975 and July 2, 1976 a certain stolen 1972

Volkswagen automobile moving in interstate commerce, know-

ing such vehicle to have been stolen, and Mr. Tolbert was

charged additionally in count III thereof with the substantive

offense of having transported in interstate commerce on or

about July 2, 1976 a certain 1975 Volkswagen automobile from

Georgia to this district, knowing such vehicle to have been

stolen. Both of the movants contend each was arrested in con-

nection with those respective substantive charges on July 2,

1976.

Mr. Tolbert testified that he was arrested on July 2, 1976 by a

Mr. Wickes, an agent of the Tennessee bureau of criminal iden-

tification, and Mr. John D. Jones, a special agent of the Federal

Bureau of Investigation, for the interstate transportation of a

stolen car. He testified he was enlarged on an appearance bond

on July 6, 1976.

Exhibits in Mr. Tolbert’s hearing reflect that his appearance

bond ran to the state of Tennessee ‘‘ * * * but to be void on the

condition that * * * [he] * * * shall make his personal ap-

pearance before the Judge of the G.S.C. & Circuit Court for

said [Coffee] County [Tennessee], at a court to be held at the

~ Ad

Courthouse in the town of Manchester * * * ” ona certain date

and at a certain hour, ‘‘* * * to answer the State of Tennessee

on a charge of Rec. & Conc. stolen goods. * * *” They reflect

also that on July 10, 1976 a justice of the peace of Coffee Coun-

ty, Tennessee issued a warrant for the arrest of Mr. Tolbert for

the offense of ‘‘* * * Receiving and concealing Stolen property

one Volkswagon automobile. * * * ”? Mr. Tolbert was arrested

under that warrant on July 26, 1976, and on the same date that

charge was dismissed.

Mr. Reece testified that he was arrested on July 2, 1976 by

two special agents of the Federal Bureau of Investigation. Ex-

hibits in his hearing reflect the same information as hereinabove

as to his appearance bond, the issuance of a warrant of the state

of Tennessee for his arrest on an identical charge, his arrest (at

his home in Georgia) thereunder, and the dismissal of the state

charges. The aforementioned FBI agent Mr. Jones testified that

neither Mr. Reece nor Mr. Tolbert was arrested on July 2, 1976

on a charge connected with a federal criminal offense.

‘“* * * * (C}harging an individual with the commission of an

offense, * * * ’’ as utilized in 18 U. S. C. § 3161 (b), means

charging an individual with the commission of “ * * * any

Federal criminal offense which is in violation of any Act of

Congress and is triable by any court established by Act of Con-

gress. * * * ’ 18 U.S. C. § 3172 (2). The fact that a federal of-

ficer made, or participated in making, the respective arrests of

Messrs. Tolbert and Reece did not convert the state offenses,

with which each was charged, into federal offenses.

The federal officers were permitted to effect as private citizens a

warrantless arrest of the movants for offenses against the state

of Tennessee under the circumstances of these arrests. Cf.

United States v. Carter, C.A. 8th (1975), 523 F. (2d) 476, 478

[3].

Each such motion, therefore, hereby is DENIED.

— A-35 —

The defendant Ms. Virginia R. Brown moved for a dismissal

of the indictment against her herein on the same grounds as the

foregoing. She claimed that, if the prosecution is predicating the

right of the officers upon a search of her premises incidental to a

lawful arrest, then the provisions of 18 U. S. C. § 3161 (b) are

applicable herein.

The prosecution did not so predicate its claim; accordingly,

there is no merit to Ms. Browii’s contentions, and her motion to

dismiss the indictment herein hereby is

DENIED.

ENTER:

/s/ C.G. NEESE

United States District Judge

— A-36 —

APPENDIX L

In The United States District Court for the

Eastern District of Tennessee

United States Of America,

Plaintiff,

Vv. No. CR-4-77-7

Thomas Bennett Driver, et al.,

Defendants.

Memorandum To Counsel

(Filed January 31, 1978)

The defendants Messrs. Reece and Tolbert moved for recon-

sideration of earlier actions of the Court herein involving them,

in which they appear to take issue with the Court’s recollection

of certain facts testified to on the hearings herein. Obviously,

this Court relied on his recollection of the testimony and, if a

defendant recalls Otherwise, the pertinent portions of the

transcript should be provided to obviate all doubt as to what a

witness may have testified.

FILE:

C. G. NEESE

United States District Judge

en ee

— AST —

APPENDIX M

In The United States District Court for the

Eastern District of Tennessee

United States Of America,

Plaintiff,

Vv. No. CR-4-77-7

Thomas Bennett Driver, er ai.,

Defendants.

Memorandum Opiition

(Filed February 1, 1978)

The defendants Mr. Driver and Ms. Brown moved for a fur-

ther hearing to suppress evidence utilized by the grand jury in

returning an indictment herein. The motion lacks merit.

The motion is untimely, Rule 12 (b)(2), (3), Federal Rules of

Criminal Procedure. The indictment is not subject to challenge

on the ground that the grand jury acted on the basis of incompe-

tent evidence. United States v. Calandra (1974), 414 U.S. 338,

344-345, 94 S. Ct. 613, 618 [3], 38 L. Ed. (2d) 561; see also

United States v. Blue (1966), 384 U.S. 251, 255, 86S. Ct. 1416,

1419, n. 3, 16 L. Ed. (2d) 510.

The motion was denied properly.

FILE:

/s/ C. G. NEESE

United States District Judge

— A-38 —

APPENDIX N

In The United States District Court for the

Eastern District of Tennessee

United States Of America,

Plaintiff,

Vv. No. CR-4-77-7

Thomas Bennett Driver, et al.,

Defendants.

Memorandum Opinion

(Filed February 2, 1978)

The defendants Mr. Driver and Ms. Brown objected to

evidence by exhibits offered by the prosecution in the form of

aerial photographs of Ms. Brown’s house and surrounding pro-

perty showing inter alia a number of motor vehicles parked

there. These photographs were taken with a long-range camera

by Mr. Micheal Waguespack, a special agent of the Federal

Bureau of Investigation, from a helicopter. Ms. Brown claims a

violation thereby of her rights secured by the Constitution,

Fourth Amendment.

“The right of the people to be secure in their

* * * houses * * * against unreasonable searches and seizures

Shall not be violated. * * * ” Constitution, Fourth Amend-

ment. Thereunder: ‘* * * * A search is a probing or exploration

for something that is concealed or hidden from the searcher.

***” United States v. Haden, C.A. 7th (1968), 397 F. (2d)

460, 465 [4], certiorari denied (1970), 396 U. S. 1027, 90S. Ct.

574, 24 L. Ed. (2d) 523. It “«*** implies invasion and quest,

which in turn implies some sort of force, actual or constructive,

much or little. * * * ’ United States v. Cook, D. C. Tenn.

— A-39 —

(1962), 231 F. Supp. 568, 571 [2], citing State v. Quinn (1913),

11S.C. 174, 97S. E. 62,3 A. L. R. 1500. It is not a search when

““* * * the officer merely saw what was placed before him in

full view. * * * ’’ Kerv. State of California (1963), 374 U.S. 23,

43, 83 S. Ct. 1623, 1635, 10 L. Ed. (2d) 726.

In the short time available for research, the Court has

discovered no decision as to the operative effect of the Fourth

Amendment on photographs taken from above a person’s

dwelling, and none is called to the Court’s attention. The late

Mr. Justice Holmes long ago sanctioned the use of a searchlight,

a marine glass or a field glass by law enforcement officers to

observe what is going on on a citizen’s property. Hester v.

United States (1924), 265 U.S. 57, 58, 44S. Ct. 445, 446, 68 L.

Ed. 898, cited in United States v. Lee (1927), 274 U.S. 559, 563,

47 S. Ct. 746, 748 [5,6], 71 L.Ed. 1202. As the equipment

available to government agents becomes more sophisticated and

instrusive within the homes of the people, there may be dif-

ferent rules applied; but, that is not a matter for this Court to

determine at this time.

The objection was overruled, and the exhibits of the aerial

photographs were admitted into evidence.

FILE:

/s/ C. G. NEESE

United States District Judge

—. van

APPENDIX O

In The United States District Court for the

Eastern District of Tennessee

United States Of America,

Plaintiff,

Vv. No. CR-4-77-7

Thomas Bennett Driver, et ai.,

Defendants.

Ruling On Objection

(Filed February 4, 1978)

The prosection objected to the Court’s consideration of any

motion by a defendant herein for the entry of a judgment of ac-

quittal who had introduced any evidence while the prusecution

was introducing its evidence. Such motion was held under ad-

visement; it lacks merit and herby is DENIED.

‘“ * * * The Court on motion of a defendant or of its own

motion shall order the entry of a judgment of acquittal of one

Or more offenses charged in the indictment * * * after the

evidence on either side is closed if the evidence is insufficient to

Sustain a conviction of such Offense or offenses. If a

defendant’s motion for a judgment of acquittal at the close of

the evidence offered by the government is not granted, the

defendant may offer evidence without having reserved its

right.’’ Rule 29 (a), Federal Rules of Criminal Procedure.

It is only ‘* * * * the introduction of evidence by [a] defen-

dant after his motion * * * ”” made at the close of the evidence

offered by the government ‘‘ * * * has been denied [that] is a

waiver of that motion. * * * ’’ 2 Wright, Federal Practice and

Procedure: Criminal 246-247, § 463. At that point in the trial, a

ceed ae ta ee ee

— A-41 —

defendant ‘‘ * * * must decide whether to stand on his motion

or put on a defense, with the risk that in so doing he will bolster

the Government case enough for it to support a verdict of guil-

ty. * * * ”* McGautha v. California (1971), 402 U.S. 183, 215,

91S. Ct. 1454, 1471, 28 L. Ed. (2d) 711.

A defendant is not required to offer any evidence at all, and

there must be no fettering of the exercise of his will in the order

in which he presents any evidence he may wish to offer anytime

during the trial, cf. Brooks v. Tennessee (1972), 406 U. S. 605,

610, 92 S. Ct. 1891, 1894, 32 L. Ed. (2d) 358. The question at

the close of the evidence offered by the prosecution is, not

whether a defendant up to that point offered any of it, but

rather whether all the evidence then before the Court is suffi-

cient to sustain a conviction of an offense or the offenses

charged in the indictment or information. If that question is

decided adversely to a defendant, he makes his decision whether

to stand on his contention that the evidence adduced to that

point in the trial is insufficient to sustain his conviction.

If he offers no further evidence, he has the benefit of his mo-

tion on any motion for a new trial or appellate review of his con-

viction. If, on the other hand, he waives reliance on his motion

made at the close of the evidence offered by the prosecution, on

a subsequent motion for a new trial or in appellate review, he

may rely only on the insufficiency of the evidence at the close of

all the evidence to sustain his conviction.

ENTER:

/s/ C. G. NEESE

United States District Judge

—_S Pe

APPENDIX P

In The United States District Court for the

Eastern District of Tennessee

United States Of America,

Plaintiff,

Vv. No. CR-4-77-7

Thomas Bennett Driver, ef al.,

Defendants.

Memorandum And Order

(Filed March 1, 1978)

The defendants filed herein numerous posttrial motions and

requested the Court to permit oral argument on their motion for

a judgment of acquittal notwithstanding the jury verdict and on

their motion for a new trial.' The government failed to make a

timely response to any such motion, local Rule 12 (b), and is

deemed to have waived any Opposition thereto, local Rule 11

(f).

‘* * * * Whether oral argument is heard on a written motion

[in a criminal action] depends on court rule or, in the absence

thereof, on the practice of the individual judge.’’ 8B Moore’s

Federal Practice (2d ed.) 47-4, 5 47.02. In this district it is pro-

vided that all motions will be decided by the Court without a

hearing unless otherwise ordered in the discretion of the Court,

' The defendants’ motion herein of February 13, 1978, for an

enlargement of the time within which they are allowed to file such

posttrial motions, have been rendered moot by their timely filing of

such motions.

en ne is te alll

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——

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provided that, if the motion is determinative of the case on its

merits, the Court will allow an oral haring if requested by either

party. Local Rule 12 (c).

It appearing that the defendants’ motion for a judgment of

acquittal notwithstanding the jury verdict is determinative of

this case on the merits, the movants are entitled to be heard on

Oral argument. /dem. Further, in its discretion, the Court

hereby ALLOWS such oral argument on the defendants’ mo-

tion for a new trial even though such obviously would not be

determinative of the case on the merits.’

Such oral argument hereby is assigned to be heard Wednes-

day, March 8, 1978, at the United States Courthouse in

Greeneville, Tennessee, at 10:00 o’clock in the forenoon.

All other matters hereby are RESERVED.

ENTER:

/s/ C. G. NEESE

United States District Judge

* The defendants cite no authority in support of their conten-

tion that they have a guaranteed right under the Constitution,

Fifth Amendment, due process clause, to have such oral argu-

ment, and the Court’s research has disclosed no such authority.

—. pe

APPENDIX Q

In the United States District Court for the

Eastern District of Tennessee

United States of America

Plaintiff,

Vv. No. CR-4-77-7

Thomas Bennett Driver, et al.,

Defendants.

Memorandum Opinion and Order

(Filed March 15, 1978)

After the discharge of the jury herein, each of the defendants

renewed his or her respective motions wr entry of a judgment of

acquittal as to each count of the indictment herein as to which

he or she was charged. Rule 29 (c), Federal Rules of Criminal

Procedure. Each defendant moved also, in the alternative, fora

new trial. Rule 33, Federal Rules of Criminal Procedure. As re-

quested by the defendants, an oral hearing on such motions was

conducted on March 8, 1978. Thereafter, the motion of the

defendant Mr. Tolbert was granted, a judgment of his acquittal

was entered, and he was released from custody on the charge

herein only.

There is no merit to such motions of the other defendants in

the first aforementioned alternative. The only question thereon

is whether the evidence was sufficient to sustain a conviction of

such defendant under the particular charge(s) in the indictment

against him or her. The evidence and all reasonable inferences

flowing therefrom were construed most favorably to the pro-

secution. United States v. Stroble, C. A. 6th (1970). 431 F. (2d)

1273, 1276 [5].

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‘* * * * The test is the same where the evidence is purely cir-

cumstantial. The verdict of the jury must be maintained if there

is any substantial evidence supporting it. * * *’’ Idem. The

Court is precluded from reweighing the evidence or accrediting

the witnesses, its function being limited to a determination of

whether the government made a sufficient showing to allow the

counts of the indictment which remained for consideration to

go to the jury. United States v. Williams, C. A. 6th (1974), 503

F. (2d) 50, 53 [3]. The respective motions of the defendants

must be overruled, because the Court concluded that reasonable

minds might have concluded fairly guilt on each remaining

charge beyond a reasonable doubt. United States v. May, C. A.

6th (1970), 430 F. (2d) 715, 717 [2].

As to the conspiracy count (I) of the indictment, there was

proof that the defendants arrived at an agreement to act

together in committing an offense charged, and that an overt

act was accomplished in furtherance of the resulting conspiracy.

United States v. Williams, supra, 503 F. (2d) at 54 [6]. A con-

spiracy is an inchoate offense, ‘‘ * * * the essence of which is an

unlawful act. * * * ’’ Jannelli v. United States (1975), 420 U. S.

770, 777, 95 S. Ct. 1284, 43 L. Ed. (22) 616, 622 [3a]. The jury

could have inferred an agreement of the defendants herein from

the facts and circumstances shown by the evidence. /bid., 420

U. S. at 777, 43 L. Ed. (2d) at 623, n. 10 [3b]. Only slight

evidence was required to connect thereafter a particular defen-

dant with it, once the existence of a conspiracy was established

by the evidence. United States v. Smith, C. A. 6th (1977), 561 L.

(2d) 8, 12 [2], certiorari denied (1977), U.S. , 98S. Ct. 487,

L. Ed. (2d)

The Court has adjudicated earlier: the motion of the defen-

dant Mr. Driver to suppress the evidence obtained in the search

of his commercial and semi-residential premises, see memoran-

dum opinion and order of January 26, 1978; the similar motion

of the defendant Mr. Reece regarding the search of an

—_

automobile he had driven, see memorandum opinion and order

of January 24, 1978; the motion of the defendant Ms. Brown as

to the search of her residential premises, see memorandum opi-

nion and order of January 26, 1978; and the joint motion of Mr.

Driver and Ms. Brown as to the aerial photographs admitted in-

to evidence, see memorandum opinion of February 2, 1978. It

would serve no useful purpose to readjudicate those holdings

which this court believes were, and are, correct.

There is no merit either to such motions in the second

aforementioned alternative. The defendant Mr. Driver em-

phasized the purported error of the Court in failing to grant him

a severance of counts and of defendants and a separate trial.

The Court addressed the matter in its memoranda opinions and

orders of January 20, 1978.

Mr. Driver stresses the fact that his co-defendant Mr. Tolbert

could have been known by the jury to have been in custody of

law enforcement officers during the multi-day trial herein, and,

although he (Mr. Driver) was not acquainted with Mr. Tolbert

previous to the events in which they were charged jointly with

crime, the reasonable inference the jury could have drawn from

the fact of their joint trial was that Mr. Tolbert was a convicted

law-breaker, that Mr. Driver was being tried with him for

breaking the law, and that Mr. Driver, thus, must be a violater,

too.

The Court charged the jury carefully on this point; there were

no special requests by any defendant for instructions to the

jury, and there was no objection thereto by any defendant.

Among other things, the Court stated:

see e£ *£

Each offense and the evidence applicable thereto must

be considered and should be considered separately as it

pertains to a particular defendant.

ese ee ¢ ¢

one «ee BT EET

It is your duty to give separate, personal consideration

to the case of each of these 4 defendants. Each of the in-

dividual defendants is entitled to have his or her case deter-

mined from his or her own acts and statements and the

other evidence in the case which may be applicable to him

or her.

The fact that you may find one defendant guilty or not

guilty as to any offense should not control your verdict

with respect to the offense or offenses charged against any

other defendant.

The verdict you return as to each defendant must re-

present the considered judgment of each one of you.* * *

It must be assumed that the jury followed conscientiously these

instructions. Shotwell Mfg. Company v. United states (1963),

371 U. S. 341, 367, 83 S. Ct. 448, 9 L. Ed. (2d) 357, 375 (head-

note 22), rehearing denied (1963), 372 U.S. 950, 83 S. Ct. 931, 9 L.

Ed. (2d) 975. Further discussion of the claims of Mr. Driver and

Ms. Brown for a new trial appear unnecessary in the light of the

full written record this Court has made herein.

The defendant Mr. Reece seeks a new trial on the ground that

he was subjected for the same offense to be twice put in jeopar-

dy, Constitutuion, Fifth Amendment. The record does not

reflect that such defendant was ever in jeopardy in a state court

for the offense charged against him herein; even were the

reverse of that factual situation true, the double jeopardy provi-

sion of the Fifth Amendment, supra, is not violated by suc-

cessive prosecutions in state and federal courts for the same of-

fense. Bartkus v. Illinois (1959), 359 U. S. 121, 136, 79 S. Ct.

676, *% L. Ed. (2d) 684, 694 (headnote 8), rehearing denied

(1955), 360 U. S. 907, 79 s. Ct. 1283, 3 L. Ed. (2d) 1258.

The same defendant moved the Court to vacate his judgment

of conviction herein, dismiss the indictment as it pertains to him

with prejudice, or enter a judgment of acquittal of him not-

—< po

withstanding the verdict. Rules 29 (c), supra, and 48 (b), Federal

Rules of Criminal Procedure. He insists he has been deprived of

a speedy trial, Constitution, Sixth Amendment.

The right thereto does not attach until the formal charge is

made, the trial of which is alleged to have been delayed inor-

dinately and prejudicially. United States v. Marion (1971),404

U. S. 307, 92 S. Ct. 455, 30 L. Ed. (2d) 468, cited in United

States v. Martin, C. A. 6th (1976), 543 F. (2d) 577, 579 [2], cer-

tiorari denied (1977), U.S. ,97S. Ct. 762, L.Ed. (2d)

Under the criteria of Barker v. Wingo (1972), 407 U. S. 514, 92

S. Ct. 2182, 33 L. Ed. (2d) 101, it is obvious that such defendant

was not deprived of his constitutional right to a speedy trial.

The formal charges against Mr. Reece arose with the return of

the indictment herein on August 26, 1977, and Mr. Reece was

arrested thereunder on September 15, 1977. Assuming arguendo

that Mr. Reece had been arrested on July 2, 1976, as he claims,

this Court would be reluctant to hold that a violation of his

claimed right had occurred when the record indicates so

positively that the defendants did not want a speedy trial. /bid.,

407, U. S. at 536, 33 L. Ed. at 120 [39].

Sere

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Each motion of each remaining defendant for the entry of a

judgment of acquittal and for a new trial, for such reasons,

hereby was

DENIED.

ENTER:

/s/ C. G. Neese

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.