Dolan v. United States

• Decision Date: 21 January 1955
• Docket Number: No. 15079.,15079.
• Citation: 218 F.2d 454
• Parties: Elmer DOLAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

218 F.2d 454 (1955)

Elmer DOLAN, Appellant, v. UNITED STATES of America, Appellee.

No. 15079.

United States Court of Appeals, Eighth Circuit.

January 21, 1955.

Merle L. Silverstein, University City, Mo. (Mark M. Hennelly, St. Louis, Mo., on the brief), for appellant.

Kenneth C. West, Asst. U. S. Atty., Kansas City, Mo. (Edward L. Scheufler, U. S. Atty., Kansas City, Mo., on the brief), for appellee.

Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

Elmer Dolan was convicted on March 31, 1954, by a jury upon an indictment filed December 18, 1953, based on § 1621, Title 18, U.S.C., charging him with having committed perjury on October 30, 1953, when testifying as a witness before the federal Grand Jury for the Western District of Missouri. The District Court, after denying a motion of Dolan for a judgment of acquittal notwithstanding the verdict or for a new trial, imposed sentence, and Dolan has appealed. He challenges the adequacy of the evidentiary basis for his conviction and the fairness of the trial accorded him.

The record shows that Dolan was one of two police officers of the City of St. Louis, Missouri, who, the evening of October 6, 1953, found, arrested and brought by automobile to the Eleventh District Police Station in that city Carl Austin Hall, the man who kidnaped and murdered Robert Cosgrove Greenlease, Jr.; that the two officers arrived with Hall at the police station a few minutes before 9:00 P.M.; and that they had in the police car, in addition to Hall, two large metal suitcases and a brief case which had been in Hall's possession. The suitcases were found to contain large amounts of currency, and on October 7 the suitcases and the currency were delivered to the Federal Bureau of Investigation. The false testimony which the Government alleged that Dolan gave to the Grand Jury related to the time and the manner in which the metal suitcases containing this money were taken into the police station from the police car.

The substance of Dolan's testimony before the Grand Jury was that he first knew of the two suitcases when he got to the police station; that he took one of them out, and that Lieutenant Shoulders, the other police officer, who was with Dolan and was his superior, took out the other suitcase; that right after they got to the station the Lieutenant went into the station with Hall, and Dolan took one of the suitcases and a brief case from the car; that he took them back to Lieutenant Shoulders' office in the station; that Hall was already in the station then; that it was possibly a matter of minutes after Hall was in the station before Dolan went in with the one suitcase and brief case; that he saw Hall in there when he (Dolan) went into the station; that, after taking the cases back to Lieutenant Shoulders' office, Dolan came back to the front office desk where they book prisoners and take from them their personal property; that he there got a number to put in his report; that after that Hall was taken to a cell in the station; that Lieutenant Shoulders brought in the second suitcase right after Dolan came back to the desk and when all the property had been or was being taken from Hall.

The Government sought to prove, and contends that it did prove, that neither of the two metal suitcases was brought into the police station at or within minutes of the time when Hall was taken from the police car into the station; that Shoulders, Hall and Dolan came through the front entrance of the police station together; that they had no suitcases with them; that they came to the booking desk with Hall virtually between the two officers, and that both of them were present at the desk during all the time Hall was being booked and his property was being taken from him; that, aside from money and some personal effects taken from Hall while he was at the booking desk, no other property of his was reported that night to the desk corporal.

In considering the sufficiency of the evidence to support the verdict of the jury, it is elementary that we must give to the Government the benefit of every reasonable inference which can be drawn from the evidence, viewed in the aspect most favorable to the Government. Affronti v. United States, 8 Cir., 145 F.2d 3, 5; Masse v. United States, 5 Cir., 210 F.2d 418, 419.

The Government's case on the issue of falsity of Dolan's testimony before the Grand Jury consisted mainly of the evidence of persons who were in the police station when Hall was brought in and booked.

Officer Bergmeier, the desk corporal at the station, whose hours were from 3:00 to 11:00 P.M., testified in substance that Dolan, Shoulders and Hall came into the station together and walked together to the booking desk; that, as they faced him (Bergmeier), Dolan stood at the right of Hall while he was being booked and his personal property taken from his pockets; that Shoulders was on the other side of Hall and slightly behind him; that Dolan never left the desk while Hall was being booked; that he (Bergmeier) saw nothing brought in that looked like a suitcase, brief case or metal case; that he saw Dolan leave ten or fifteen minutes after the booking, and did not see him again that night; that he (Bergmeier) thinks that a few minutes after the booking Dolan and Shoulders went towards Lieutenant Shoulders' office.

Carl Schottler, a police officer, testified that he was standing at the right-hand corner of the booking desk, telephoning, at the time Hall was brought to the desk; that he saw Hall, Shoulders and Dolan standing to his (Schottler's) left; that Hall was in the center, Shoulders back of Hall, and Dolan to his left; that they were standing at the desk when he (Schottler) first saw them; that he saw no objects in the possession of any of them; that the booking took possibly three minutes; that when it was completed Hall was led away towards the "holdover" or cell block in the station.

Alex Magee, a police officer, testified that he was assigned to the Eleventh District Station on October 6, 1953; that he was in the station shortly before 9:00 o'clock P.M.; that he saw Shoulders and Dolan come there; that when he first saw them they were coming in the door of the station with a prisoner, who he later ascertained was Hall, "the kidnaper"; that the witness thought that Dolan was first, Hall next, and Shoulders behind Hall; that they went to the booking desk; that he saw no luggage in their hands; that, in response to a motion from Shoulders, he (Magee) walked to the entrance of the station; that Shoulders, Hall and Dolan were at the booking desk; that he saw them and saw Schottler using the telephone at the desk, but saw no bulky objects or luggage in their possession; that, after Hall was booked, Shoulders took him to the "holdover"; that Dolan was still at the desk; and that, after Shoulders came from the "holdover", he and Dolan left the station together a few minutes after nine, he (Magee) thinks.

Thomas Crowe, a police officer assigned with officer Magee to a patrol car, testified that he was in the police station while Hall was being booked; that Dolan and Shoulders were with Hall at the booking desk; and that he saw no packages, luggage or bulky objects in the possession of any of them.

Several other eye witnesses were produced by the Government in support of its assertion that the testimony of Dolan before the Grand Jury as to the time and manner in which the suitcases were brought into the station was false. From what has already been said of the Government's case, it is apparent that there was ample evidence, if believed, from a sufficient number of witnesses to sustain a finding by the jury that Dolan had deliberately testified falsely as charged in the indictment. He could not have been at the booking desk with Hall and Shoulders and at the same time have been carrying a large metal suitcase through the station to Shoulders' office.

Dolan contends, however, that, even if there was substantial evidence that his testimony was false, the court was not justified in submitting the case to the jury and in instructing it that Dolan's testimony before the Grand Jury on October 30, 1953, was material to the investigation then being conducted by that body, because the evidence of the Government did not sufficiently establish the materiality of the testimony. It is conceded, as of course it must be, that the issue of materiality was one of law for the court and not one of fact for the jury. Carroll v. United States, 2 Cir., 16 F.2d 951, 954; Sinclair v. United States, 279 U.S. 263, 298, 49 S.Ct. 268, 73 L.Ed. 692; United States v. Moran, 2 Cir., 194 F.2d 623, 626.

The forewoman of the Grand Jury testified that on October 30, 1953, when Dolan appeared as a witness, it was "investigating the Greenlease case and also the missing part of the ransom money * * * it seemed that there was practically half of it missing." She also testified that the Grand Jury returned an indictment in the Greenlease kidnaping case.

No one reading the record in the instant case could have any illusions as to what the Grand Jury was investigating at the time Dolan appeared before that body as a witness on October 30, 1953. We...