United States v. Patrick W. McCann III and Jon Joseph Kelly
465 F.2d 147
5th Cir.
1972
Check Treatment

*3 RIVES, аnd Before COLEMAN DYER, Judges. Circuit Judge: COLEMAN, Circuit Joseph appellants, Jon and charged III, McCann, Patrick were both in each count a four count indictment unlawfully intercepting en- and deavoring intercept wire communica- December, 1969, tions November and originating January, 1970, and from tele- phones residences, at four area all Dallas 2511(1) (a). violation of U.S.C. § guilty appellants pleaded Both not jury United were tried before Northern District Court for the States They found of Texas. District guilty indict- on all four counts of the ment. appellants September On years imprison- to three

were sentenced indictment. ment on each count imposed to run con- All sentences currently with one another. (1) Appellants the trial contend denying appellants’ mo- court erred in admitting suppress and in tion resulting products of and evidence illegal in violation seizures searches and rights Fourth their under the the Constitution Fifth Amendments to States; (2) evidence that the the United support the convic- was insufficient tion; given by (3) that instructions jury were to the court the trial (4) erroneous; court erred that the trial indictment to dismiss the when failed against appellants not it did since negate statutory exceptions listed all (5) (a); 2511(1) in 18 U.S.C. § government’s showed evidence any, committed, if offense 2511(1) (a) of U.S.C. § violation indictment; (6) that January given 5, 1970, court to admit de- trial where he had failure of the his local erroneous. address as the Hilton Inn on fendants’ Exhibit 1-A was Expressway. Central any con- merit in of these We find no judgments Sanders then Hilton Inn of conviction called tentions and Expressway Central discovered are affirmed. Kelly” Joseph no one with the name “Jon challenged appellants have Because registered had been there. sufficiency to sustain of the evidence January 12, 1970, On was told jury Sanders and the correctness verdict Agency Hertz returned their motion trial court’s denial of produced Ford Torino rented blue 1970 suppress, evidence wagon, Mercury station Texas License suppress trial will motion to No. was also told that FKW 929. He discussed in some detail. that he had advised the sales clerk Holiday moved Inn North. I *4 Investigation Holiday at Inn North given Testimony pre-trial hear- at Kelly in had checked on revealed that ing suppress disclosed motion to on the registered January 10,1970, and was still arrest led to the that the events which manager told there. motel Sanders Friday, began Kelly on and McCann Kelly clerk not that instructed desk 9, 1970, January when Mrs. Dorothea registered that he was there. to reveal Jamison, Grandview a resident of 2405 registration, Kelly his his listed home On Richardson, Texas, telephoned in Street Houston, Briarhurst, address as Department to com- Richardson Police Texas, he was self-em- stated that Torino, plain Ford a 1970 blue about ployed. had License No. FLM Texas neighborhood January 13, 1970, a On overnight parked her home. near been Mercury reported that blue resident police neither Mrs. Jamison told the that wagon, No. FKW License Texas station neighbors whom the her knew to nor she parked in of 2410 front had been belonged. night during sometime Grandview response complaint, Police to her ap- January until remained there Investigator determined Sanders Jerrold p. man proximately m. when a 12:30 by Hertz Rent- car was owned Ford, riding Texas in a blue 1970 Agency its on which had office A-Car 822, stepped of the No. License RSR had in and that it Preston Road Dallas wagon got Ford, into the station Kelly Joseph on Janu- rented to been ary 6, Jon away. drove agreement In the rental registration of Ford A check Kelly home his address listed by a Hertz owned that was revealed Briarhurst, Texas, local Houston, and his Agency Field at Love located Rent-A-Car Holiday Inn Central. address as the agency Inquiry revealed at the Dallas. Kelly that when also discovered Sanders Joseph by rented car was Jon riding arrived to Torino he was rent the 5, 1970, January listed his on Ryder driven an- in a Rent-A-Truck on Hilton Inn Central local address as the Expressway. other white male. Holiday Subsequent Inn at inquiry suspicious nature of of the Because revealed that had checked Central activitiеs, De- Police Houston these January 5, 1970, and had checked in on partment its assistance. asked for registration January out on 10. On January 14, 1970, Police the Houston On address as card, he had listed last name with the that no one told Sanders Expressway Hilton Inn on Central Kelly” at 2744 Joseph lived ever “Jon Dallas. in Houston. Briarhurst determined that Sanders also Officer Holiday Inn with the contact Further panel from truck had rented a 14, Kelly January on Agency North revealed Ryder in Dallas Rent-A-Truck January 15, a friend On next his for reserved room afternoon of telephone separate check- Sanders When Adams received named Ron Adams. calls in, employed Margot he ed stated Mrs. Jamison Mrs. Bunday, Enterprises, Post B a resident & South of 2406 “A Grandview. ladies, Houston, Street, reported Both Sanders Oak Texas”. that a white male Mustang man, had left neither told another red was also Grandview at paid approximately p. Adams, motel m. their 4:15 and had nor away driven with another bill cash. white male wagon. Mercury station Subsequent inquiry revealed Enterprises A Information B which had & was located been collected concerning the different than that cars was discussed address Houston given by several occasions Ron Adams. detectives Department. They Richardson Police Holiday Inn Random checks at possibility had discussed the cars North Mercury also revealed Sanders being used as drop narcotics wagon parked there station might possibility that cars be ‍‌​​​‌​‌‌‌​​​‌​​​​‌​​​​​​​​​‌‌​​​‌‌​​​​​​‌‌​​‌‌​​‍con- periodically. nected with thefts which had occurred driving January 15, On while they parked. the area where been Mercury Grandview, spotted the Sanders morning January 16, 1970, On the wagon. Investigating, he looked station through parked remained at 2405 the car and ob- a window of Ray Grandview. Sanders and Detective nothing in the served that there was *5 Pennington looking investigated and, wagon newspapers except station some through car, a window the both of- right completely the which covered car’s ficers observed that the did not vehicle noticed that frоnt floorboard. Sanders anything except newspapers contain lying directly on the floor- instead of arranged approximately which were the papers board, were level the way newspapers the same as the had been hump the which divides transmission arranged Mercury wagon station the seat driver’s side of the front preceding day. It the seemed passenger’s that seat. side of being newspapers the used station, returning police After conceal some article from view. Mrs. Jami- received call from Sanders time, the At that members of Richard- Mercury reported that son who began Department Police a con- son wagon in front had remained station Mustang. tinuous surveillance of the night during 2410 Grandview January Pennington parked car on Detective his p. on the m. until about 12:15 from where some distance Grandview Mustang, Texas License a red 15th when Mustang parked. was an His car. and down block LYK came No. police with a unmarked four door sedan wagon. She stoppеd station beside spotlight. antenna and stopped, a the car reported that after Pennington got noon, Shortly ob- hair after white male with blond wagon, occupied Mercury on the tires checked the served a by station car and the station along wagon. males, Grand- After he checked drive two white got passed reported tires, man as it view slow down she Pennington wagon Mustang. reported the cars and both the station wagon to away. of the station license number driven its license determined Sanders who red Mus- registration check A station matched that of number owned tang it was revealed by Kelly. wagon car drove The rented at Budget located Rent-A-Car time, passed again, at on Inquiry Mockingbird in Dallas. Lane Pennington. glanced at men agency been revealed wagon III, McCann, station Sanders observed rented Patrick W. Expressway travelling Little south on Central as 8319 home address listed his About 1:30 it into Dallas. Houston, and followed Drive, Texas. p. Agency m. Hertz on Preston Road dress different from hе had been using Kelly informed appeared Sanders had returned on the license. wagon. the station Taylor explained Kelly stop- that he approximately p. At 4:00 on Janu- m. ped him suspicious because of activities ary 16, Investigator George Taylor came concerning cars rented him in the area duty day’s and was briefed on the stop because he failed stop at a developments. He then relieved Pen- sign. He then ques- asked several nington permission and obtained of a tions. Mustang response, Kelly stated that the neighborhood carport resident use her rented, that a friend at the corner of Grandview and Little brought get car, him to and that he Creek, approximately yards one hundred did not know where or who the friend Mustang, place south as a for was. Taylor parked surveillance. car in his began carport Taylor to observe the Mustang looked into the Mustang. newspapers observed the which covered right the car’s Taylor front floorboard. approximately m., p. At 5:10 a white asked if he could look He inside. male, Joseph later identified as Jon stated were, he believed his exact words Kelly, appeared near As the automobile. “You your car, don’t mind if look I do Taylor watched, Kelly looked around the you?” Kelly “No, sir, said, I don’t”. neighborhood, pulled up socks, ad- justed again. Taylor opened coat and looked around door on the left side got Mustang pro- car, He then into the reached across the seat front right ceeded drive south down Grandview. and unlocked the door on the side. time, Taylor stop Kelly, At this decided to the With he walked around to the door question right car and its car, opened driver. side of door, newspapers looked underneath the past Taylor’s drove ob- green where he found briefcase. point servation end of the block where intersects with Fall Grandview Taylor asked what proceeded Creek and west. enter- briefcase. said idea. no *6 Grandview, lights ed turned on his red Taylor opened the briefcase and found Creek, approached as he through Fall and ran radio, tape recorder, tape an FM one sign stop and the at Grandview equipment. and other electronic up Fall with the Creek order to catch placed and was under arrest Mustang. police station. taken to the Richardson Mustang Creek to The drove down Fall among possessions was a sales Found his Parkway. with where intersects Custer reflecting purchase of three ticket tapes approached As it intersection it slow- this January 15, 1970, of from one approximately speed five miles ed to a of stores Electronics the Crabtree right stop- per hour and turned without Dallas area. sign ping stop at the at the intersection. As a then The contacted. F.B.I. was Mustang Taylor stopped Agent result, Special Holloman William of north of the intersection first block police station went to the Richardson Parkway, approxi- Fall and Creek Custer portion of to a where he listened point mately mile from Mustang. one-half Holloman tape taken from Taylor his ob- had maintained where identify voices two of able to was post. servation Mrs. Paul of and Mr. those Little Rothermel, Jr., of residents Mustang Kelly stepped and in Richardson. Creek point the two to a between walked back evening, identi- Holloman’s Later that Taylor met him. cars where Rothermel Mrs. was verified fication and asked himself identified police contents told who tape Kelly produced a valid driver’s license. telephone conversations recent bearing name “Jon Texas license participated. However, which she ad- Kelly”. a home Joseph Clyde firm of Houston, After Mrs. Rothermel identified her Wilson and Associates tape, Jr., Mooney Schell, voice on the Pete Texas. Miss testified o,f manager Telephone Company Bell Southwestern W. Everett was J. repair supervisor, appellants, firm and arrived and removed Jon Joseph employed Kelly, devicе attached to the as one of its been investigators. telephone line from also testified that Rothermel She McCann, although employed by located their house. terminal behind investigator, firm as an came Special Agent presented an Holloman during firm’s office November summarizing information affidavit this participated December Commissioner who United States Kelly. or conferences with Everett authorizing the issued a search warrant Kelly’s Holiday Mooney her Inn Miss testified that one of search of room at the yielded record North. search room maintain a this duties was to large parapher- spent particular quantity matter an a nalia, of electronic time investigator. Beginning in Mid-Novem- various notes and records. through continuing December ber and Investigation days the next few over employ- her she terminated when revealed similar devices had been Mooney firm, testi- with ment Miss telephone attached to lines of John ledger fied entitled she maintained Brown, George Cunyus, H. Curington. W. John Matter”, spent time “Hunt and that the away from the office both May On as the result sub- posted early December was Everett investigation, sequent Mc- Patrick W. ledger. charged Cann, III arrested also Houston after When returned to (a). violating 2511(1) 18 U.S.C. § periods away from the of- one of these trial, Kelly and McCann Prior Mooney fice, testified she observed Miss suppress filed a motion to all evidence including unloading equipment, him small directly indirectly from the obtained or tape recorders, from car. from search of the Mooney testified, After Miss Kelly’s Holiday Inn search of room at the eight witnesses who called Government They there contended that North. employees of were or been probable no Mustang cause for the search agencies in Dallas. various ear rental therefore, evidence and that all search, testimony in- obtained as the result of established that: Their cluding the search of from obtained 1969, Kelly rent- 1. On December Kelly’s warrant room under the search Ryder ed truck a Ford Econoline Tree”. “fruit of the Poison Texas, Dallas, Rental, which was Truck They facts stated contended that the also *7 day. the same returned the war- in the affidavit used to obtain Kelly 5, a January 1970, rented 2. On probable but cause rant not show automobile, License Texas Ford two door missing suspicion only the a created Rent-A-Car, from Hertz RSR 822 No. tapes there. were located Dallas, Field, Texas. Love hearing Kelly pre-trial 1970, motion a January rented 6, After a 3. On suppress, that Mustang automobile, trial court found No. the License Texas Field, probable search Econo-Car, cause existed Love from LZZ 755 Mustang the search and that Dallas, Texas. Kelly’s authorizing the search warrant Kelly a 6, 1970, rented January 4. On motel room was valid. Ryder Truck from truck Ford Econoline was Rental, Dallas, This truck Texas. presented trial, Government At day. next returned the eight twenty first witnesses. Kelly a 6,1970, rented January Mooney, 5. On Mary Kay who Miss these was Rent-A-Car from a Hertz Torino during Ford employed months of was Agency, and Northwest Road 1969, Preston December, as a November Dallas, This car was investigative Highway, Texas. private secretary for the by Kelly January 13, 1970, returned on Mercury wagon parked station was where Mercury at which time he rented Wednesday Ford been on left wagon, station Texas evening. License No. FKW day, About noon that she ob- by 929. Kelly This car was returned on Mustang, served reda Texas License No. January 16, 1970. 591, LYK stop drive down the street and wagon. (A Mustang beside the station January 1970, 6. 6, On Mc- Patrick with the same license number was rented Cann Mustang, rented a Texas License by 6, January 1970). McCann on She 591, Budget Rent-A-Car, No. LYK young saw the same man she ob- Field, Love Dallas, This Texas. sitting Wednesday, served in the Ford on stopped car De- get Mustang and check the 16, January tective on 1970. rear wagon. tires of the station Both January 7,1970, 7. On McCann rented away. cars were then driven Chrysler what was to be believed auto- Hayes mobile from Earl Car Rental Com- Bunday Friday, Mrs. testified on pany, Dallas, re- Texas. This car was January 16, Mustang 1970, the red January 16, turned on 1970. wagon parked where station had been parked Thursday. About noon at As its next witnesses the Government which time members of Richardson Margot Bunday called and Mrs. Mrs. M. maintaining Department Police were neighbors Vaden, Laura L. two Mustang, continuous surveillance of the Rothermels, Paul victims by in the she two men drive observed alleged of the of the offense Count 1 wagon, they passed station slow down as Bunday indictment. Mrs. and Mrs. Mustang, Mrs. and then drive on. Vaden lived at and 2407 2406 Grandview Bunday appeared to her testified it respectively. Grandview Their houses police spotted men two faced the which ran one-half block street surveillance. testified She behind Rothermel home. Mustang after- remained there until late Bunday Mrs. testified that Janu- away noon, haste. driven when was 9, ary a blue auto- she observed testimony corroborated Vaden’s Mrs. parked in the street front mobile given by addition, Bunday. Mrs. occupied who sat her home a man positively Mrs. Vaden identified long bent down there for time and who involvеd of the men who were something”. “doing testi- She at times moving testimony also Her cars. man that later that afternoon fied departed, parked indicated that leaving re- the automobile to January overnight morning, Tuesday there until main January 13, 1970. Sugar Mill Levin of Mrs. Charlotte Texas, Road, Dallas, January as a was then called Wednesday, Mrs. On Ford, faced Levin’s house Bunday License witness. Mrs. Texas observed Brown home rear of the John H. (the rented No. RSR January The Browns Gulfstream. Rent-A-Car on from Hertz oc- the offense Count 1970), parked victims of her home near testified Mrs. Levin young cupied man with blond indictment. a tall January, early during part (It is a that 1970, was established hair. *8 strange park- hair.) cars she two young As she observed man with blond tall neighborhood car, for extended Mrs. in the ed continued to observe Bunday Mustang sitting red periods a man of time. One saw testified she car, Chrysler. other, Levin Mrs. of a red a driver and the to the wave particularly Bunday saw stopped. her attention Mrs. stated then which they were get out and cars sitting to the because Ford attracted man houses car, parked drove street in between then step red on into the them, is usual as of in front instead of away. particu- to a a visit makes when someone on Bunday testified Mrs. 1970, lar home. a January Thursday morning, police officer, P. of the went Jerrold Rothermel Detective Sanders they Schell, home Department where met testi- Pete an Police then Richardson employee Telephone January 15, of 1970, in Southwestern Bell re- fied that on Company, neighborhood removed a sponse small device complaints telephone alley from the residents, terminal inspected Mercury a station he behind the wagon Rothermel home. The device parked at He 2410 Grandview. had been attached to the Rothermel tele- of the recorded Texas License number phone line. being car as FKW and noted that the passenger front side floorboard was called testi- Schell as a witness and completely the car with covered January 17, 1970, fied that on he dis- newspapers spread which were from the covered similar attached devices right hump to front transmission telephone Curington, lines John W. day, door. Later he observed alleged victim the offense Count 2 wagon Holiday parked station at the Inn indictment, of the and John Brown. H. Expressway North on in Dallas. Central Leroy employee D’Spain, another (A wagon station the same license with Bell, Southwestern testified that he January by Kelly was rented number found a similar device attached 1970.) George telephone Cunyus, M. lines Sanders testified next victim of the offense Count January 16, morning, inspected he of the indictment. Mustang, a red Texas License No. LYK telephone al- lines were The men whose parked at He testi- 2410 Grandview. legedly tapped as witnesses. were called newspapers spread fied that were also John H. himself a Brown identified right floorboard, car’s across front self-employed manu- food broker approximately or four inches from three been, representative, facturer’s who had the floorboard. November, 1969, employed as a until manager Products, a sub- sales for HLH George Taylor Detective sidiary Company. He identi- Oil of Hunt Department Richardson testified Police telephone line fied the number of that he of the took over the surveillance upon his was found as which the device Mustang p. approximately red m. 4:15 Kelly or Mc- and stated he not know Friday, parked his unmarked con- also stated had never He Cann. police carport nearby ear of a anyone tapping telephone his sented residence from he could observe where line. Taylor p. m. ob- vehicle. About 5:00 who, Jr., prior Rothermel, M. standing Mustang. Paul a near the served man employed as a November, had been time, got man into the After a brief Hunt, special H. L. Mustang Taylor assistant away. and drove Company, testified president Hunt Mustang Oil pursued a blocks few appellants and not know the he did stopped con- and then it. After brief telephone line right not consented to versation, Taylor opened had being front tapped. also identified Mustang He the news- door of the removed segment recorded conversation papers and discovered briefcase being tape running found in the it from wire and radio cable and a wife between Taylor a conversation opened the under the dashboard. friend who tape a mutual friend about a small and discovered brief case segment obtaining another divorce and place, a voice recorder with him and his microphone, as a conversation between radio and an FM controlled Taylor speaker to it. wife. with a attached man, George Cunyus later determined Curington arrested the W. John Joseph Kelly. Curington Jon em- had been testified. then Company until evening, ployed by Hunt Oil that on testified *9 employed Cunyus November, along Agent 1969. Special he, William President Company as a Vice F.B.I., Oil Hunt and another Holloman of and both at the Director time of of- “Is to meet with Sam tomorrow A.M. (Wed fense 1-7) Count 4 of the indict- they and will call John — ment and at the time of the Both getting trial. to talk $55,000 about their telephone men identified their lines of the deal—” corresponded numbers which to the num- was also introduced into evidence. ber lines identified the tele- The Government also introduced a phone being tapped. linemen as Both number of Crabtree Electronics sales Curington Cunyus they and testified reflecting purchase tickets of various not know either or McCann and had equipment supplies. electronic and One anyone tapping consented their tickets these sales was seized from telephone lines. Kelly’s person arrested, after Agent William Holloman of F.B.I. while others taken from his then testified. Holloman had obtained motel room. and executed a warrant for the search apparatus taken electronic Various Kelly’s search of motel room at Holi- Kelly’s intro- also from motel room day Inn North in Dallas. After Hollo- among duced into evidence. Included it, spiral man found identified notebook camouflaged apparatus green this awas Kelly’s motel room was introduced containing radio; briefcase an FM Pages into notebook evidence. microphone; tape voice re- actuated expenses period reflected incurred over a ; corder batteries miscellaneous January 16, January until components; tapes; fourteen cassette recording tape boxes, six reel-to-reel five entry in the notebook read The first ‍‌​​​‌​‌‌‌​​​‌​​​​‌​​​​​​​​​‌‌​​​‌‌​​​​​​‌‌​​‌‌​​‍Craig tapes; of which contained four “Sunday 1-4 McCann”. Dinner —16.00 P. Craig tape microphones; recorder two succeeding days for reflected ex- Entries microphones; voice actuated one bulk Clothes”, penses “Meals”, “Work magnetic eraser; Craig tape three cas- Rental”, “Equipment”, “Truck “Car recorders; tape sette Telefun- and three Rental”, Many of the sums “Hotel”. tape ken reel-to-reel recorders. adjacent cor- written to these entries recording tape plas- boxes and the responded by Kelly expenses incurred tic cases listed above bore cassette receipts reflected sales McCann as initials, handwritten in- dates and other invoices which were introduced example, formation. For exhibits evidence. listed below bore the notations indicated: Another sheet of notes found “clean”; 17-A; Government’s Exhibit expenses under motel reflected room pm “B 1/14 headings various such as “Hotel Rev.” Mileage”. “Meals”, Tele”, and “Auto “ “ 17-C; “clean— headings, sums were Under various these R 2:50 1/10 adjacent entered and sums these pm” ap- “J. K.” “P. M.” so as initials or “ “ 17-D; “B 1/15 parently the ex- who incurred indicate pm” 11:00 pense. “clean” “ “ expenses for Another exhibit reflected E; “JC 17— “Mustang” “Torino”, “Galaxie”, 10:00” 1/14 “ “ “Chrysler”. Copies and truck of car 16-C; “JB 1/9 agreements signed by rental either p” 5:30 “ “ into evi- or McCann also introduced 16-E; “Cur- dence. ington 1/8 pm” 7:30 Kelly’s A handwritten note found “ “ 16-1; “JC-1-14 motel room read pm” 10:15 “1-6-69— Agent Following testimony of talking the introduction of the “Brown Holloman and to Sam— *10 located near parapher- his records, fact that home notes, and electronic room, spot re- Kelly’s where this broadcast was motel from nalia taken corded. Electron- from Crabtree salesmen three explained Crabtree’s testified and ics oc- testified Mrs. that other Work types all sold store which a retail Kelly casions, parked she in other with equipment. supplies and electronic of neighborhoods periods of residential for Kelly McCann identified of them All twenty thirty response minutes. or they frequently that and testified shopped par- inquiries, Kelly pointed her during together De- store in ones ticular houses these areas January, 1970. 1969 and cember in in which was interested connection he investigator. private a more with work one or identified Each salesman being in slips as sales of the Crabtree Hopper Penelope told testified McCann they handwriting and testified her he a custom electronics busi- owned ap- of purchases one reflected ness in Houston. testified that sev- She They Kelly pellants, or McCann. either eral times when and McCann she large quantities also identified Kelly, she with Rita observed Work Kelly’s apparatus from taken Kelly having electronic very private and McCann being with items identical motel room as conversations. She also testified that on Kelly or McCann. sold them either occasion, she a observed briefcase containing tape a in recorder McCann’s called two then Government telephoned motel room and once appellants had dated women during and told her he would late date they a for al- period in which tape. he had to listen to a because legedly telephones the vic- tapping that she testified Agent tims. Rita Work Special Joseph Parsons, an years Kelly and that several known for expert last F.B.I. and the electronics November, in to Dallas came when he witness, de- identified Government frequently. 1969, they had dаted She telephone vices from lines removed Kelly in Dallas for testified that Rothermel, Curington, Brown, in November and or weeks two three Cunyus He as FM radio transmitters. December, 1969, and that he returned coming identified one of the wires January, dur- 1970. She testified antenna, each as an and the other device November, 1969, ing part the last two as leads the source of the wires days her after called few after audio. Parsons testified that he arranged arriving Dallas, a date she tested and all them the transmitters friend, Penelope Hopper, between her were functional. testified that He with Kelly’s friend, Patrick McCann. fully charged battery, each transmitter range approximately had a broadcast times Rita testified several Work 1,050 neighborhood. feet in a residential early December, 1969, she and devices, Parsons testified if evenings in a car around in rode equipped equipped battery, op- awith would new which was a second radio voltage days erate fifteen for before glovе compartment under n drain inoperable. made the device feet. recorder was near her She occasions testified that on one of these II they parked in a residential area off justify Mustang, To the search of the Highway Abrams and near Northwest Shopping the Government contends that con- Dallas, the Medallion Center search, or, sented the alterna- and on occasion this recorded the tive, probable that Detective lady making arrangements voice of cause to search the car. a church function. Mrs. testified Work recognized conversation broadcast over the It has been testimony George ensuing second stop radio. The limited in detention of Cunyus, the victim permitted the offense dividuals must be under cer indictment, 4 of the Count established tain circumstances if law enforcement *11 (2) carry Kelly, probable functions their search officers are cause to prevention to and detection. search. crime must exist before circumstances which Tay- stopping car, After the Detective stopped enable an be must individual can Mustang lor was met between the suspect police reasonably to officer police by Kelly. looking car After into particular involved individual is that the through window, the car its back De- activity. Terry Ohio, 392 in criminal v. Taylor tective if asked would he 1, U.S. 20 L.Ed.2d 889 88 S.Ct. mind if re- he looked in his car. Beto, Cir., 1970, (1968); Dodd v. 5 “No, searching sir, plied, I In don’t”. 435 F.2d 868. car, Taylor the discovered the electronic Mustang, stopped At the time he gear which briefcase cars, Taylor alia, knew, that certain inter Mustang newspapers. was concealedbeneath one, of.which had been was neighbor- parked Appellants argue same residential that such an answer eight days; by Kelly period Taylor’s request equiv- hood for a that to was daily appeared different had almost ocal in that it could be construed to mean neighborhood; permission only no one that to look inside the auto- standing. Taylor car had been allowed to remain mobile from where neighborhood However, period. Taylor’s request, an extended made after He through also that men had knew had its he looked the car acquaintances rented had only these cars no request back to window, be could neighborhood; or connection with the search. The under circumstances which them, Kelly, Joseph that one of Jon had a statement is made must be considered given information to determining false motels and equivo- that statement’s agencies concerning car rental cality. his home address; prior address and a motel although nothing addition, In Holiday had also asked the Kelly’s consent record indicates that Inn North not disclose fact that involuntary, appellants was coerced or registered he was there. contend also that a waiver of the con Taylor police knew that officers had right to refuse consent to stitutional seen newspapers arranged to cover search it is cannot be unless established right cars, front floorboard in two to the search shown given consent Mercury wagon station and the Mus- knowledge with it could tang, and newspapers in both They withheld. contend that cars were three or four inches above means that af the officer must state apparently as floorboard so con- firmatively per that he will search if ceal some article. He also knew sev- refused, mission is or that he cannot and burglaries eral had occurred in area They will not without search consent. past that on occasions under similar argue that said this Court much has conditions, vehicles had been used as Henderson, its decision in v. Perkins drops”. “narcotic Cir., However, 5 418 F.2d Therefore, based on the information reading recently such a of Perkins was pulled he had when the rejected by a of this decision Court. away spot from the where it had been Resnick, Cir., See United States v. 5 parked on Grandview, we think Detective see, also, 1133; 455 F.2d Cocker Taylor grounds stop reasonаble Wainwright, Cir., v. ham 5 general investigative car and make a F.2d 438. inquiry of its driver. See United States West, Cir., 460 F.2d conclusion, In we hold (1972). Mustang, consented to the search stopped, After the car was and that certain under such circumstances events justify he occurred which existed and with such information as search grounds: (1) two Taylor consent the had, Detective would have been trying pro- duty opened apparently the whom he not derelict tect, illegal activity. were involved in briefcase. belief, It follows such a reasonable having obtained addition to knowledge when combined car, think we search of consent separate on two occasions cars with probable cause Detective Joseph Kelly, apparent which Jon result, the that as a search car and car, driver of the connected had finding that he District Court *12 containing newspapers been observed ar- Assuming clearly was not erroneous. ranged something right to conceal arguendo proba not hаve did that car, front floorboard of furnishes each at the time he to the car ble search cause probable cause to that or believe stolen it, Kelly’s stopped conduct we think goods contraband are concealed the Tay questions which his answers to the Moreover, probability car. the that such asked, in lor when combined the goods were concealed beneath the news- the time of the formation he had at stop, gave papers Kelly’s response by is enhanced probable search cause to him Taylor’s ques- of “I don’t to remember” the car. tion to the as what news- beneath right valid- to search and the “The papers. dependent ity not are seizure authority Appellants cite to us no right They de- are arrest. to the pro- which that holds bizarre answers pendent cause on the reasonable by investigative a in- duced quiry (permitted reasonable seizing has the belief that officer for Terry) may pro- not offend the automobile the contents of together information, vide, with other against v. United the law.” Carroll probable to or cause search for stolen 158-159, States, 45 267 S.Ct. U.S. goods. contraband 280, 287, (1925), quot- L.Ed. 69 543 as emphasize We that lawfulness Maroney, ed v. U.S. 399 Chambers Taylor’s dependent upon the search is not 419 90 26 L.Ed.2d S.Ct. having probable to cause believe (1970). recording tape car contained a device Taylor did not have fact The tape telephone with a conver- on which spe- knowledge ‍‌​​​‌​‌‌‌​​​‌​​​​‌​​​​​​​​​‌‌​​​‌‌​​​​​​‌‌​​‌‌​​‍a of the commission of illegally It sations been recorded. cific with which could connect crime he enough probable he had cause question the vehicle not answer does carrying to believe that the he had cause to whether reasonable goods stolen or contraband. “that the of the automo- believe contents having carefully After reviewed against bile offend law.” testimony presented that was on mo- stopping an auto- When an officer suppress tion that was the evidence under mobile circumstances similar obtained of the warrantless result illegal activity which has those under Mustang, hold that the search of the we conducted, including activities been those violate search of the automobile not involving “drop” of a use vehicle as a appellants’ rights under Fourth narcotics, driver of a is told Fifth Amendments Constitution pick up dropped car that he was off to of the United States. name or whose friend allegations Appellants whereabouts he does remember or contend know, think, paragraphs has, of the affidavit reason to believe of seven we magistrate give attempting protect probable driver failed to is recording tapes being apprehend- or cause himself others from to believe paraphernalia other associated were ed. Kelly’s motel room. clumsy patently From and in- such evasion, war- attempt used obtain search the of- Affidavits credible at such interpreted common reasonably in a be ficer could rants are believe probable associates, and realistic manner with driver and or sense his associate 160 States, Cir., 1969, when issuance of a warrant v. F.2d

cause for the United 5 413 and circumstances shown the facts 1121. a man of warrant affidavit would in the scheme McCann’s involvement believing that caution in reasonable reasonably could be inferred from the place seized items to following (1) tape facts: which v. named in warrant. United States the Rothermel’s conversations were re- 102, 108-109, Ventresca, 85 380 U.S. corded found in car rented (1965); L.Ed.2d Unit- S.Ct. McCann; (2) Penelope Rita Work Lucarz, Cir., 1970, ed States Hopper testified that McCann and F.2d together frequently while in Dallas during case, the affidavit set forth November and late December by Kelly 1969; purchase Hopper (3) items Mrs. also testified intercep- containing could be used in unlawful that she case observed brief tion of communications. The fact wire recorder in room and McCann’s interceptions apparent *13 that wire that on another occasion McCann called being made in the communications were and told her he would late for a date be pointed probability tape; (4) Dallas area to because he to listen to a Kelly keep tapes by Clyde that would in the McCann had come the office of tapes Dallas area. The been Wilson and Associates times to several person on found either or in the car. talk Everett with and who were Therefore, working matter”; (5) common dictated in sense on the It “Hunt probability tapes all reasonably be found would could be inferred from the staying place at the where was evidence that the matter” “Hunt lo- was Dallas; Dallas. (6) reasonably cated in It could be inferred from the evidence that Mc- considering After the facts and cir- during January, Cann was Dallas by set cumstances forth the affidavit 1970; (7) McCann and were to- giving weight pref- and due to the after gether they purchased when electronic magistrate’s find- erence accorded to the apparatus Electronics; from Crabtree ing marginal cases, in doubtful or we (8) Large quantities appa- of electronic validly think that the warrant is- was Kelly’s ratus found room were identi- Ventresca, sued. United See States being fied pur- identical with items supra. by chased McCann at Elec- Crabtree ; (9) Kelly’s tronics A notebook found in Ill room was introduced into evidence con- taining entry follows, an which read as Appellants contend the evidence “Sunday 1-4 P. Dinner —16.00 McCann support was insufficient their con —”, Copies agree- (10) and of rental showing The viction. evidence ments for the rental of the appellants intercept either endeavored Chrysler another believed be a originat intercepted or communications signed by McCann were also found ing telephones belonging to Paul Kelly’s room. Rothermel, Brown, Curington, John John George Cunyus largely was circum That and McCann endeavored to stantial, especially intercept so as to McCann. or did wire communications Therefore, we must telephones determine if the alleged over owned vic- jury reasonably every hy could following exclude tims can be inferred from the pothesis guilt, viewing (1) tape but facts: The that was found in evidence Mustang; and the (2) reasonable inferences devices used Similar light therefrom tap most telephones favorable on were found the tele- government. phone alleged See United States v. of each lines of the vic- Glasser, tims; (3) alleged 315 U.S. 62 S.Ct. Each of the victims (1932); Sykes L.Ed. 680 v. United employed been or were with Hunt States, Cir., 1966, 607; Company; (4) Kelly working Smith Oil F.2d court trial failure of the matter”; (5) contend match- Initials “Hunt charge conspiracy clearly Curington, limit Rothermel, and to ing those may al- evidentiary have issue recording tape found on the Brown conspir- jury on the cases; convict (6) lowed the tape Cur- cassette boxes and ington’s best, con- acy only, and, so issue on one also found name misleading fusing suffi- as to create cases; (7) Numbers cassette require a reversal. ciеnt harm to dates indicated could have place tapes had been in hours when the considering possibility, such a monitoring tele- equipment pointed no refer out that it should be found phones of the victims con criminal ence to the offense boxes; testified (8) Rita Work these presence spiracy made was ever when heard a conversation she any jury or trial court parked Kelly off Abrams with court trial. The with one connected Highway near the Medallion Northwest only dis very that was made it clear Shopping in which The manner Center. cussing pointing out when conspiracy in George Cunyus location described the made between certain conversations im- his home indicated that it was appellants out and one of someone vicinity spot where mediate con appellant could other side of the heard over second conversation jury. as evidence sidered Kelly’s car; (9) note was radio in A thoroughly explained and court also Kelly’s which read: fоund motel room carefully pointed offenses “1-6-69 charged. appellants had been which the appel talking cautionary statement A “Brown to Sam *14 charged criminal not with the lants were A.M. “Is to meet with tomorrow Sam been, conspiracy have of would offense they (Wed. 1-7) John— will call best, repetitious. at getting $55,000 out to talk about their of the deal.—” response appellants’ con to viewing the the evidence and After repeat appropriate to it is tention in the inferences therefrom reasonable light by Car made Mr. Justice admonition favorable, must, we most as we Massachusetts, Snyder 291 in v. dozo jury rea- conclude that could have 674, 330, 97, 54 78 U.S. S.Ct. L.Ed. sonably every hypothesis but excluded danger the criminal is that “There guilt. that brought contempt law will be * * * gossamer possibilities of if prejudice nulli to a defendant are to IV by pronounced fy court sentence Appellants that the instruc- contend * * * jurisdiction competent given by tions trial court to 122, at 338. 291 U.S. 54 S.Ct. jury respects: in three were erroneous (A) the trial court’s instructions on appellants trial contend that the erroneous; (B) conspiracy law court error in fail- committed reversible trial court’s failure to submit ing they jury to instruct if jury issue of consent errone- to found from the or had rea- evidence ous; (C) failure the trial court’s any party to the con- sonable doubt charge endeavoring to limit in- to intercepted had versations which were 3, tercept 2, in- in 4 of the Counts interception consented to there their dictment was erroneous. acquittal an offense must be alleged in count. Appellants contend that the court charge clearly should have limited the A defendant in a case criminal conspiracy is- pre law sole is trial entitled to have the court of whether jury sue or not certain statements sent instructions to relate appellant and acts theory of each admis- to a of defense for which there against They appellant. sible the other is in some foundation the evidence. See

162 States, Cir., Strauss v. United 5 V 416; 376 v. 5 States, F.2d Perez United Appellants contend that the court com- Cir., 297 F.2d dismissing mitted reversible error not against appellants the indictment be- Therefore, ab because there was negate statutory cause it not all the solutely no foundation evidence exceptions listed 18 U.S.C. 2511. § supporting a based on consent defense necessary It and, later, because, not to recite bewill discussed interceptions the indictment that the necessary it the Govern were made ap If without consent. prove party ment that no the conver pellants they believed that came intercepted with sations which were consented exception in the consent interception, was incum to their it hold we upon bent prove refusing them to this fact. As grant court correct in States, McKelvey was said in relating proposed United instruction con 260 U.S. 43 S.Ct. sent. ** (1922), L.Ed. 301 “an indictment Appellants also contend that the trial general provision defining founded on a erred it court charge when fаiled to limit the * * offense, *, elements of an 3,2, in Counts in- negative need not ex matter an endeavoring intercept dictment ception proviso made or other dis wire communications. clause, tinct whether section same * * * or elsewhere and it in is many words, appellants In so claim upon cumbent who relies an such duplicitous indictment is exception up to set it it.” establish charges (cid:127) count, the defendant in one See 1971, Ramzy, Cir., also United States v. conjunctive endeavoring to inter- 1184; 446 F.2d Tritt v. United cept intercepting wire communica- States, Cir., 1970, 421 F.2d 928. 2511(1) tions violation of 18 U.S.C. § (a). Their contention was overruled VI presented trial court when mo- judgment ‍‌​​​‌​‌‌‌​​​‌​​​​‌​​​​​​​​​‌‌​​​‌‌​​​​​​‌‌​​‌‌​​‍Appellants acquittal tion for made contend that the evidence presented by appellants. government at the trial *15 prove

failed to a violation of 18 U.S.C. 2511(1) (a). result, they § As a con- specifies Where statute sev tend that there was a fatal be- variance ways eral alternative an offense which alleged tween the offenses in each сount may committed, may be the indictment proof indictment and the allege adduced ways conjunc the several at the trial. tive, and this fact neither renders duplicity indictment pre bad for nor above, As has been stated we think only cludes a conviction if of proof was sufficient to show violation allegations conjunc several linked in the Moreover, of 2511(1) (a). 18 U.S.C. § proven. tive indictment is Fields circumstances, entirely under the it was States, v. Cir., 1969, United 5 F.2d 408 appropriate charge appellants 885; Cunningham States, v. United 5 with the violation of that statute. Cir., 1966, 356 F.2d cert. denied 384 Assuming appellants U.S. 86 S.Ct. 16 L.Ed.2d 548 (1966). charged appropriately could have been with the violation of either 18 § U.S.C. before, viewing As stated the evidence 2511(1) (b), 2511(1) (a) or U.S.C. § and light the inferences therefrom in ap decision to as which statute most government, favorable to the it is pellants charged violating be would support sufficient guilty a verdict of wholly is a matter within the discretion one, both, at least if of the acts prosecution. of See United v. States alleged in each count of Hancock, the indictment. Cir., 1971, 441 F.2d 1285. 1A, copy of com- Exhibit fendants’ plaint VII Company into Oil filed Hunt for trial, appellants offered At the evidence. evidence, com- introduction judgment Having purpose error The found no plaints from two lawsuits. is allegedly admitting show of District Court them was for part three of and interest bias Affirmed. Curing- witnesses, Rothermel, John Paul ton, and Brown. John REHEARING FOR PETITION ON REHEAR- FOR PETITION AND complaints filed first of these The BANC ING EN against Kelly, Mc- by Rothermel’s wife Adams, Hunt, Cann, Ronald W. Herbert CURIAM: PER Hunt, Everett, Watson, H. L. Carl W. J. Rehearing denied is for Petition The Company. com- In her and Hunt Oil Judge panel nor no member and prayed dam- plaint, for Mrs. Rothermel Court regular service active ages $1,600,000 which in the amount polled having requested Court wiretap- caused she claimed was (Rule rehearing banc, Federal en activity ping is basis for Procedure; Local Appellate Rules against McCann criminal action 12) Petition Rule Fifth Circuit complaint (defendant’s Ex- Kelly. This Rehearing is denied. En Banc 1) evidence. admitted into hibit complaints was these second against Company John Hunt Oil filed Brown, Curington, others. It John Curington alleged had Brown obligations em- breached their trust ployees Company Hunt Oil

personally profited trans- from various expense of Hunt Com- at the Oil actions Harry FOILES, H. Plaintiff-

pany. Appellee, nothing absolutely This lawsuit v. activity wiretapping do with the America, UNITED STATES defend- Third-Party and made reference to either no Defendant Plaintiff-Appellant, ant. also settled and dis- been It prior missed the commencement Considering these all trial of this case. factors, Third-Party INDRELUNAS, Alphonse T. crim- think its we relation Defendant-Appellee. showing prosecution in- inal bias No. 71-1515. *16 Curing- part terest on the of Brown Appeals, States Court of United was, ton minimal. most Seventh Circuit. A trial court has considerable Argued April 25, 1972. may bias discretion as how when July 5, Decided 1972. proved collateral evi to what ‍‌​​​‌​‌‌‌​​​‌​​​​‌​​​​​​​​​‌‌​​​‌‌​​​​​​‌‌​​‌‌​​‍purpose. is material for Mut dence Rehearing 22, Aug. Denied Cir., 1969, States, ter United 9 412 v. 927, denied, F.2d cert. U.S. 90 397 (1970); S.Ct. L.Ed.2d Unit 25 107 Higgins, Cir., ed States denied, F.2d cert. U.S. (1966).

S.Ct. 17 L.Ed.2d 224 circumstances, we

Under judge

hold that the trial abuse refusing discretion to admit de-