United States v. Billy Ray McCrary

FRANK M. JOHN Before HILL and SCOTT,* Jr., SON, Judges, and Dis Circuit Judge. trict SCOTT, Judge: District R. CHARLES McCrary was Appellant Billy Ray indictment with fed- charged in an 11-count I and II firearms violations. Counts eral 922(h)(1), of 18 U.S.C. § violations for a convicted felon which makes it a crime firearm that has moved any to receive interstate commerce.1 U.S.C.App. XI of 18 charged violations a crime for a 1202(a)(1), which makes it § receive, possess, felon to or trans- convicted firearm that has moved in inter- port any state commerce.2 * Florida, 1202(a)(1) provides perti- Judge 2. 18 of Middle District of sitting by designation. part: nent 1. 18 part: (h) (1) ishable ing to receive been convicted in has been foreign U.S.C. § who is under indictment It shall be unlawful for by imprisonment year; shipped commerce. 922(h)(1) provides firearm or ammunition which or any transported court of a crime for a term exceed- for, any person— in interstate or pertinent pun- has both. shall be fined not more than prisoned and who date of enactment of this commerce or subdivision thereof of a (1) (a) Any person who— United State or of a State or has been convicted sjt receives, for not more than two sfc affecting possesses, ^[*] commerce, felony, ^[*] Act, any a court of the or $10,000 ^[*] transports any political . .. years, or after the firearm ^[*] or im- relayed be seized. from the seizure on should Duke this infor- charges stemmed (i. e. rifles 17,1979, shortly of 15 before left August mation appel- a trailer where contends shotguns) the warrant. Smith execute wife, Joyce McCrary, resided with his lant he learned that this was first time marriage. prior aby her two children long-guns by receipt of led to the following of events sequence The To the felon was a federal crime. convicted seizure: appellant argues that contrary, Smith and the the confidential informant cocted 7, 1979, of Captain Keith Smith May On as a to arrest drug story pretext Scottsboro, Police Department Alabama Appellant claims long-gun charges. on the at appellant’s executed a search warrant against vendetta him that Smith carried a The authorized him to trailer.3 “get” long him for a and had been out to handguns. certain seize search found, time. although they were handguns Three sought.4 particular being not the ones were 1979, 17, August of On the afternoon home, Smith observed appellant’s While in Smith, accompanied by deputies of the them, long-guns. He did several not seize Department, County exe- Jackson Sheriff’s

however, of them possession because search warrants. Al- cuted the and arrest a violation of state law and up any the search failed to turn though receipt or possession unaware drugs, officers observed and illegal a by a felon constituted long-guns convicted long-guns. 15 seized federal violation. in appeal issues Appellant raises four 17, 1979, hearing a August day of On through III from his conviction of 7th arising May out search. Smith XI of the indictment. appel- warrant to search obtained another a lant’s residence. This warrant authorized search for certain controlled substances. I. set the warrant supporting The affidavit pertains claim to the Appellant’s primary by a confidential supplied forth information of the trial impropriety, propriety, appel- he was informant who stated inside consecutive two- imposition of two judge’s 72 previous lant’s residence within of year imprisonment. sentences counting large him hours and observed on Counts two-years sentenced set quantities drugs. of illicit affidavit years VII to two on Counts previously forth that the informant had XI, terms to be the two VIII addition supplied reliable information. In to one another. served consecutive warrant, an to the search Smith obtained the trial appellant’s It is contention charge arrest warrant for sen- imposing court erred consecutive concealing van. stolen appellant was for the tences reason 17, told August morning On 18 under possession convicted of Duke, Dwight Attorney State 1202(a)(1). agree. We U.S.C.App. § Scottsboro, going that he was to obtain with ques dealt circuits have Several appellant’s

warrant to search residence appropriate unit tion of what constitutes what he drugs and asked for advice as to federal firearms prosecution under do in he encountered the should the event See, v. Pow e. States g., statutes. United long-guns again. Duke contacted the Unit- (8th 1978); ers, F.2d 146 Cir. United 572 ed for the Northern Dis- Attorney States (6th F.2d 715 Rosenbarger, v. 536 him that States trict Alabama informed denied, 97 1976), cert. consti- U.S. possession would Cir. United 53 L.Ed.2d tute a federal violation and that actually by appellant’s and seized what was Smith also observed 3. The trailer owned drugs quantity to be a of illicit wife. believed proved to later be caffeine. Calhoun, (7th Cir.), established showing weapons v. 510 F.2d 861 that' the States denied, cert. at times or acquired places. different (1975). The was re question Separate possessions can be established by v. solved this circuit showing weapons either Bullock, (5th 1980), 615 F.2d 1082 Cir. places weap- stored in different or that that, given proper where it was held acquired ons were at different times or circumstances, 1202(a)(1) words, In places. sepa- other permits government' prosecute rate receipts automatically sepa- establishes receipt of each of several fire This possessions. apparent rate separately. circumstances were arms Such Gilbert, United States present found to be in Bullock and the 1978). imposed by consecutive sentences the trial Gilbert, the defendant was convicted court were affirmed. of two counts of theft from interstate Bullock, charged In in a defendant was freight shipments and of two counts of five-count indictment with violations of 18 possession goods stolen from those U.S.C.App. 1202(a)(1). Each count § shipments, pursuant to 18 U.S.C. 659. § charged possession receipt separate and of a the counts are relevant Only possession weapon. weapons Four of the were seized our determination in the instant case.5 from the residence and one defendant’s charged galva- of two possession Count II weapon was seized from the defendant’s from nized steel coils that were transit pick-up imposed truck. The trial court two- Tyler, Ohio to Texas. Count IV year sentences of to run con- imprisonment, steel coils possession galvanized four that I, III, secutively, on each of II and Counts being shipped Michigan were from to Hous- probation as well as concurrent sentences ton, imposed The district court con- Texas. on Counts IV and V. seven-year pos- secutive sentences on each On appeal, interpreted this Court motion for re- session count. Defendant’s 1202(a)(1) C.App. permitting divisibility as § sentence, asserting duction of that the con- of a weapons separate collection of into multiple pun- secutive sentences constituted is prosecution units where it shown that the offense, was denied ishment for the same acquired firearms were stored or at differ- the court. by district 1084, citing ent times or 615 F.2d at places. Rosenbarger, panel 536 F.2d at argu- the appeal, rejected On this Court concluded that evidence the the established that, ment because the coils seized were received at different times or weapons from the the same time from defendant at imposition of places, thereby supporting the truck, possession the same that consecutive sentences. occurred. The evidence that the showed separate coils were stolen from interstate

Separate prosecution units under 18 shipments gave This at different times. U.S.C.App. 1202(a)(1) can arise either § posses- showing receipts sep separate from a rise to two and distinct separate possessions. Separate receipts arate can be sions. Gilbert, United States v. The trial court sentenced Gilbert to concur 430 U.S. seven-year rent sentences on I and II 51 L.Ed.2d 578 Counts seven-year and to concurrent sentences Solimine held that convictions and concurrent Counts III and IV. The two sets of concurrent receiving the sentences for theft as well as consecutively. sentences were to run Follow property improper. stolen are held that Gaddis ing affirmance this Court in United States v. robbery convictions and for Gilbert, (5th 1976), Cir. the United possessing robbery proceeds improper. are Supreme granted States Court certiorari remand, convic- On this Court vacated Gilbert’s remanded the case for reconsideration based counts, again affirmed tions on the theft but upon Supreme Court decisions in Solimine possession the consecutive sentences on the States, v. United 429 U.S. Gilbert, 553 counts. United States v. F.2d (1976), United States Gad 1977). 424 U.S. 47 L.Ed.2d 222 dis. 544. 96 S.Ct. 1023. separate guilty neither Counts judice, case sub that the defendant however, Eleven; that’s possessions es- Three

receipts separate nor counts, of those that each on the basis Turning question first to the tablished. being receiving worded as although has noted that receipts, it been separate fact, finding by that possessing, acquitted counts particu- possessed he jury is that 922(h)(1). of 18 U.S.C. charging § violations in the weapon lar Northern stated, under an offense that previously As Alabama, that them not he received receipt by to the limited statute (T. Alabama. District of the Northern has firearm that trav- victed felon of added). 471). (Emphasis Acquit- interstate commerce. eled leads to the charges necessarily jury tal of these found then is clear that It proved that the conclusion prosecution within the as weapons weapons did receive had received 922(h)(1). possessed find meaning charged, of 18 U.S.C. did § but to be resolved question The final weapons. 1202(a)(1), it true As to a finding supports evidence is whether the re- covers statute to justify separate possessions sufficient Nevertheless, of the record a review ceipt. consecutive sentences. outset, it was that, pre- reveals involved, attorneys, noted, can be es- by everyone separate possessions As sumed I either jurors, tablished evidence judge and were at different weapons received violations of U.S.C. (charging II the weapons showing times or or that receipt places 922(h)(1)) were limited § The first places. were in different stored violations (charging XI Counts disposed been aspect already test has of this 1202(a)(1)) were limited U.S.C.App. of 18 § appellant jury that was of. Since the found Thus, argument, opening in possession. weapons, it fol- receiving guilty stated: government for counsel finding no that was lows fortiori there basically, charged, is ... The defendant he them times that received at different version, I’m giving you shorthand places. counts, in two basically with charged he’s Neither do the facts establish that counts, the other receipt and weapons were stored places. in different It added). 25) (T. (Emphasis firearms.... is true that some of the firearms were ****** The first two counts of the indictment in an outbuilding employed by appel- lant as charged weap- ... that he received these a storage/laundry facility while the remaining weapons ons the Northern of Alabama. were discovered in the bedroom of the remaining charged The counts trailer. Those weapons that found in the outbuilding were possessed weapons charged in the Northern III, Counts IV Alabama, is, V. The trial judge District of Counts that sentenced appellant to years two (T. 28) Three Counts (Empha- Eleven. III through VII and to years two added). sis Counts VIII through Thus, XI. it obvious that That view of jury adopted this the judge did not base the consecutive sen- charges is from the verdict: evident tences upon the theory separate that stor- We, defendant, the jury Billy find the R. age established two separate possessions. McCrary, guilty as Moreover, the not support facts would indictment, Three through Eleven of the such a conclusion. outbuilding The excluding long- of these practical all purposes a part residen- (T. added). guns. 471) (Emphasis tial dwelling. It would be untenable to verdict, attempting clarify contend objects kept in different rooms judge trial commented: sepa- same residence could constitute Now, what I jury understand possessions. rate fact the out- The intended to finding reflect a building physically separated from the 408, 17 (1966); this result. change L.Ed.2d 374 Jackson v.

trailer should integral part Denno, outbuilding constituted 84 S.Ct. upon It was constructed unit. dwelling ex rel. was used for lot and residential the same Darcy Handy, 351 U.S. e., i. as a stor- purposes, ordinary household L.Ed. 1331 The trial laundry room. age properly they instructed the must summarize, sentences consecutive To decide whether the statements were ever 1202(a)(1) can violations of made weight and how much should be at separate upon a justified tached to them. jury expressly receipts possessions. the state- argument Appellant’s not received appellant found that suppressed based ments should have been Furthermore, the facts weapons at issue. un- circumstances upon totality pos- separate finding support failed more obtained raises a they der which sepa- were not weapons in that the session most of the Although problem. difficult they nor were received rately issue is with- argument directed toward this places. in different stored merit, discussion. point out warrants II. he never in- at trial Smith conceded challenges the admission at tri- Appellant of the nature of the of- formed allegedly al of statements made to Captain leading to upon questioning fense which the the course of the search of during Smith based, i. incriminating statements appellant’s trailer. He contends alterna- e., long-gun charges. were never made tively that the statements or, made, they if should have they search for Following the unsuccessful totality due to the of cir- suppressed been executing arrest prior to drugs and were obtain- cumstances under which charge, warrant on the stolen van ed. The content of the statements was suspected him of that he told alleged explanation to consist of a detailed Then crimes.” “being involved some appellant acquired as to how and where warnings ap- Miranda6 read the found in the bed- weapons each of several “Keith, I replied, pellant appellant to which room of trailer. appellant’s began then my rights.” Smith understand ap- throughout woven thread A common long-guns. the about questioning appellant an is that argument pellant’s appellant made the point It was at this “get” to out had been who “arch-rival” at issue. statements main- Appellant long time. for a appellant fabri- to led Smith animosity waiver of the this that a tains that undisputed It is this support To right the statements. to coun cate the silent and to remain right testimony upon tention, relies intelligently knowingly, must be made sel would have she claimed of his wife be effective. in order to voluntarily upon such conversation any overheard 218, Bustamonte, 93 412 U.S. v. Schneckloth crim- was a seasoned fact (1973); Miranda 2041, 854 36 L.Ed.2d S.Ct. to confess voluntarily never would inal who 1602, 16 436, Arizona, 86 S.Ct. 384 U.S. v. crime. a Zerbst, v. 304 Johnson state- 1019, (1938). made 1461 458, 82 L.Ed. or not 58 Whether U.S. be decid- matter to not a waiver of is how a to discern ments It is difficult credibility Assessing intelligent knowing, Court. by ed rights could these is witness in a non-bench trial a func- of a totally suspect voluntary where the unaware which the jury. upon of the offense province solely tion within 293, questioning is based.7 States, 87 385 U.S. Hoffa v. United Arizona, determining Miranda v. 384 the voluntariness of a confession 86 S.Ct. 1602, (1966). L.Ed.2d “. . . whether such knew the nature defendant offense”; Comment, generally see 3501(b) provides that 18 U.S.C. § 7. See U.Chi.L.Rev. into factors to be taken account one of the constitutional valid waiver of A sume that crime of suspect- which he is vacuum, a waiv not occur in a rights drugs, does ed involved not firearms. right right to counsel er v. government Brierly, cites Collins partic to a response silent occurs remain denied, (3d Cir.), cert. 419 U.S. of involving particular facts a ular set of (1974), 42 L.Ed.2d 116 warnings given are The Miranda fense. proposition that law enforcement offi suspect aware of solely not to make required suspect cers are not to inform a consequences but also of privilege, prior the nature of the offense to custodial privilege.8 foregoing interrogation. The case stands for no such The court held that a writ principle. Ellsworth, F.Supp. 26 In Schenk ten waiver form executed the defendant granted de- the district court (D.Mont.1968), virtue nullity by was not rendered a writ of habeas for a application fendant’s apprised fact that the defendant was made that statements corpus ground investigation prior the nature of the in- during custodial county attorney to the stressed, signing the form. The court how admitted at improperly terrogation ever, that the defendant had in fact been had not been the defendant trial because being investigated of the offense advised in the mur- suspect was a informed that he prior interrogation. actual though even wife. This was so der of his The holding upon was based the court’s the Miranda given been defendant had notion that: that the coun- warnings. Court ... ‘waiver’in its usual sense does [A] that he wanted statement ty attorney’s not occur actually until witness answers with the “in connection talk with defendant question. when he takes Only such an was insuffi- of his wife” shooting incident affirmative action does the waiver occur. defendant that he apprise cient to Anything preceding step is but a suspected of murder.9 freely revocable statement of intent. similar situa- presents case The instant Id. at 739. suspected of he was knew Appellant tion. effect, sign the court concluded that obviously did crime,” although he “some ing the waiver form did not constitute an The offi-. long-guns. know it involved of any rights actual waiver because the drugs had a search cers merely form is preliminary nature. The buying and warrant for arrest purpose evidentiary, form’s “main to es led a man The search was van. stolen difficulty tablish with a minimum of and a during a ignored who had certainty police gave maximum of that the No trailer. appellant’s previous search warnings suspect and that the firearms to seize was made attempt answer agreed preliminarily questions.” — —to the incrimi- had made appellant until after Id. 10 statements. nating Apparently, the reasoning adopted by the that suspect to reason Third had no Circuit Appellant was that it is sufficient that a regard to an suspect in being questioned was advised of the nature of the of- prior fense involving Indeed, offense the . to a long-guns questioning, although subse- quent person reasonable who is told to that he is execution of a form, waiver be- suspected of “some crime” a man who cause no actual waiver occurs until he an- minutes earlier had handed him a warrant swers the question. first Without accepting authorizing drugs pre- a search for would the wisdom of this reasoning, suffice it to 729-30, 719, Jersey, knowledge U.S. 384 necessity Johnson v. New is a to the free exercise of 1778-79, 1772, right L.Ed. 882 the 86 S.Ct. to F.Supp. counsel.” 293 at 29. “Certainly suspect it to that case, stands reason a 10. In the instant Smith testified that the intelligently Department cannot make the decision as to Scottsboro Police uses a waiver knowledge form, if bring whether he wants counsel of the that he but did not one with him on suspected is day crime withheld from him. This the of the search because “... it would be believe he had even than re- made those state- supports, rather

say that Collins ments, issues of buts, suspect a should be voluntariness aside. principle that (Brief Appellant 14). for at being nature of the offense advised of the interroga- prior to custodial investigated Because there was sufficient evidence in- tion.11 dependent of appellant’s alleged statements to possession convict for Nevertheless, unnecessary it long-guns, we find that admission of the precise pa to explore the instant case statements constituted harmless error. rameters of this issue for we find that III. admission of the statements at trial consti Chapman tuted harmless error. v. Califor of the Au- validity attacks Appellant 824, nia, 87 S.Ct. L.Ed.2d the search that on the basis gust 17 search denied, 987, rehearing 386 U.S. of Ala- in violation was executed warrant (1967). Appellant 18 L.Ed.2d 241 was law. bama acquitted charges receiving of all Alabama of the Code 5-1 Title long-guns. pos He was convicted “an order as warrant a search defines jury session. Twice the returned ask a signed by of the state name writing in the pos additional instructions on constructive by law authorized magistrate byor judge, ample sup session. There was evidence warrants, directed to search to issue e., i. port ground, ample a conviction on this coun- any constable or to the sheriff ” power that had both the evidence (Em- ... to search. commanding him ty, point intention at particular requirement added). This phasis time exercise dominion and control over law county directed to warrant search that, It is had the weapons. likely oth- in two repeated officer enforcement the statements were made and at believed Code. Alabama sections er all, any weight tached to them at Smith, a it contends Appellant would have been convicted war- officer, who executed municipal possessing as well as of them. invalid hence, execution and, rant concedes, argues, even Appellant argument This Alabama law. pursuant point in his brief: decision this Court’s is foreclosed attacked Appellant unsuccessfully Martin, F.2d admissibility of his voluntariness mu- case, an Alabama 1979). In alleged Yet confessory statement. obtain- applied officer police nicipal position vindicated his jury ultimately di- properly search ed a not made such a statement. that the had county said officer lawful “any rected to confession, they had believed they If municipal Although state.” said but had no alternative would have he was investigation, initiated officer counts. Simi- all eleven him on convict deputy by two the search accompanied the trial have asked would not larly, they search wherein county sheriffs explain to further two occasions court on place. took state- his since constructive court, This possession. acknowledging actual munic- admitted ment ipal in that it possessed independent unusual officer no au- particularly verdict was warrant, did not thority to execute a search demonstrates clearly giv- They very warnings up your are either themselves. difficult to fold it and stick it in pocket you’d you, pad given. when take with the note en or are not something.” However, governing the effec- the standards way suggesting appendage We are in no rights are of constitutional tiveness of a waiver warnings. to the traditional Miranda Those rigid the standards and mechanized as not as regarding warnings are well-established and mechanical warnings. giving In the mere of year in nature. Most ten old children who are purported waiver that a absence of a permitted stay up enough po- to late to watch voluntary, intelligent knowing, it is inef- probably lice shows on television can recite J., (Adams, at 741-42 See 492 F.2d fective. dissenting). any police them as well as officer. There is generally question sufficiency no as to the of involvement imposed through for Counts VII presence that the fences eluded XI, execu- respective- and for Counts VIII rendered sheriffs deputy of and REMAND this cause to district Ala- ly,13 pointed court to valid. The tion in accordance with resentencing court for who specifies statutory provision bama opinion. this warrant: a search to execute is authorized by executed may PART, A search warrant IN AFFIRMED IN VACATED it is whom PART, officers to one of the AND REMANDED. directed, person except no other but ON REHEARING being his request, of such at aid officer rehearing. has for Appellee petitioned in its execution. acting present and petition alternatively The seeks modifica- add- Ala.Code, (Emphasis (1976) 15-5-7 opinion. tion of the court’s of the participation ed). degree The found was law enforcement officers county holding opinion The in Part II of the search legitimate the be sufficient to to to a introduc- limited determination effort.12 question tion of the was statements The peculiar harmless. discussion situ substantially the same We have made circumstances under in Mar case as existed ation in the instant the statements is not to be taken as a to directed properly tin. holding suspect to inform failure fact County. The of Jackson the Sheriff the crime with which he is renders force motivating was the that Smith suspect’s rights waiver of his Miranda warrant is irrelevant. obtaining the involuntary. the search various accompanied on County Sheriff’s members of the Jackson observations, With these for Petition in the search participated who Department Rehearing is DENIED. effort. essentially cooperative

in what deputy Martin, the involvement of

As legitimize to was sufficient

sheriffs

search. IV. Roosevelt and Dorothy WILLIAMS final Appellant’s contention Williams, Plaintiffs-Appellees, v. support to evidence was insufficient have already verdict. We jury’s WESTERN PACIFIC FINANCIAL COR evidence, without even consideration PORATION, Defendant-Appellant. alleged made by statements No. 80-7137. Smith, a convic support was sufficient United States Court of Appeals, under tion firearms Fifth Circuit. actual, constructive, posses if not theory Unit B sion. April judgment we AFFIRM Accordingly, through XI.

of conviction for Counts III sen- two-year consecutive

We VACATE the offenses, judgment further suppress and it is the prepared simply are 12. “We custody you At- of such be committed to search on the basis the fruits artificial technicalities whom, torney his United States or as who called General along, respect go representative in the rode with who asked whom to who authorized driving, three, seven, four, five, read the first car and who was who six and counts period where, appellees, years. warrant who found the what, searched of two nine, eight, at 1183. et cetera.” 600 F.2d ten respect to counts And with eleven, years, period to run of two for a 13. trial sentenced in the imposed for to the sentence consecutive following manner: seven, meaning a total three counts to, going now, 1 am hereby having and do years with this in connection sentence of four guilty by been found of counts three sentence. eleven, adjudge you guilty of those

Case Details

Case Name: United States v. Billy Ray McCrary

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 23, 1981

Citation: 643 F.2d 323

Docket Number: 80-7049

Court Abbreviation: 5th Cir.