United States v. Hamilton, 17573.

• Decision Date: 12 February 1970
• Docket Number: No. 17573.,17573.
• Citation: 420 F.2d 1096
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elmer G. HAMILTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

420 F.2d 1096 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Elmer G. HAMILTON, Defendant-Appellant.

No. 17573.

United States Court of Appeals Seventh Circuit.

January 15, 1970.

Rehearing Denied February 12, 1970.

David B. Keller, Livingston, Dildine, Haynie & Yoder, Fort Wayne, Ind., for defendant-appellant.

Alfred W. Moellering, U. S. Atty., Fort Wayne, Ind., for plaintiff-appellee.

Before HASTINGS and KNOCH, Senior Circuit Judges, and DILLIN, District Judge.^*

DILLIN, District Judge.

Defendant Hamilton has appealed from his conviction, by a jury, on each count of a two count indictment charging him with conspiracy to receive, conceal and possess stolen mail,¹ and with the substantive offense of knowingly having stolen mail in his possession.² We affirm.

Turning our attention first to the substantive count, and considering the evidence in the light most favorable to the government, as we must, United States v. Bruni, 7 Cir., 1966, 359 F.2d 807, cert. den. 385 U.S. 826, 87 S.Ct. 59, 17 L.Ed. 2d 63, it is apparent that the evidence was more than ample to justify the verdict of the jury, and indeed the defendant does not contend to the contrary. According to the evidence, thus considered, a bag of mail was stolen from a United States mail relay station in Hammond, Indiana, on March 11, 1968, and on the evening of the same day defendant arranged a meeting with one Allen, displayed to him checks and other items which he stated he had "snatched" from the mail, and agreed to meet with Allen on the following day to cash the checks, which he then divided with Allen. On the following day the two met in Munster, Indiana, at an agreed site and were sitting in an automobile holding a portion of the stolen checks in their hands when they were arrested by postal inspectors who had been alerted to the plan by Allen. Other stolen checks were on the seat of the automobile between the two men. Certain of the checks were received in evidence on proof of their having been placed in the mail and not delivered according to the address on the envelopes in which they were contained.

The defendant testified in his own behalf to the effect that it was Allen, not he, who arranged the first meeting, that Allen then declined to discuss the purpose of the meeting but instead arranged for the second meeting at Munster, that only at such second meeting was he aware that any checks were to be discussed, and only then when Allen produced them a few moments before the arrest. In short, his contention is that he was "framed" by Allen, and that he never had any knowing or unlawful, as distinguished from a mere fleeting, momentary and innocent possession of the checks. His sole ground for appeal on the possession count is that the trial court's instruction No. 23 did not adequately advise the jury of his theory of the case, and permitted the jury to find him guilty on the basis of his mere presence in the vicinity of the stolen matter.³

Instruction 23 reads as follows:

"The Defendant Hamilton has been indicted for the crime of possession of stolen mail. To convict Defendant Hamilton of the crime charged in the Indictment, the Government must prove beyond a reasonable doubt that such defendant bought, received, concealed or unlawfully had in his possession any mail matter, or any article contained therein, which was stolen or embezzled from the mail, with knowledge that such mail matter was unlawfully taken. It is not necessary that the Government prove who stole the mail matter, or how it was stolen."

We observe at once that the instruction was taken from the manual on jury instructions in criminal cases heretofore approved by this Court.⁴

Jury instructions are to be considered together as a connected series, without undue emphasis given to any of them.⁵ The trial court so advised the jury in its instruction No. 2. Thereafter, in its instruction No. 20, the court, after defining possession, instructed the jury as follows:

"Mere presence in the vicinity of the contents of letters which have been stolen, taken, embezzled and abstracted from a mail bag on a U. S. mail route, or mere knowledge of their physical location, however, does not constitute possession under the statute."

Also, at the conclusion of its instruction No. 22, the following was given:

"It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in the case warrant any inference which the law permits the jury to draw from possession of recently stolen property. If any possession the accused may have had of recently stolen property is consistent with innocence, the jury should acquit the accused."

Instructions No. 20 and No. 22 were read immediately following the complained of No. 23.

We think that the instructions, taken as a whole, fully expressed the legal principles applicable to the defense that the defendant was, in effect, victimized by Allen, and the record discloses that defendant's trial counsel⁶ vigorously argued such theory in summation. The jury could not have been misled. There is no error under such circumstances. United States v. Napue, 7 Cir., 1968, 401 F.2d 107, cert. den. 393 U.S. 1024, 89 S.Ct. 634, 21 L.Ed.2d 568, reh. den. 393 U.S. 1112, 89 S.Ct. 858, 21 L. Ed.2d 813; United States v. Mullins, 7 Cir., 1966, 355 F.2d 883, cert. den. 384 U.S. 942, 86 S.Ct. 1465, 16 L.Ed.2d 540; United States v. Doran, 7 Cir., 1962, 299 F.2d 511, cert. den. sub nom. Abbrescia v. United States, 370 U.S. 925, 82 S.Ct. 1563, 8 L.Ed.2d 504.

Moreover, the defendant did not tender any instructions, as it was his right to do.⁷ This is a further indication that no special instruction on defendant's theory — a theory quite easy to understand — was required. United States v. Roviaro, 7 Cir., 1967, 379 F.2d 911; United States v. Phillips, 7 Cir., 1967, 375 F.2d 75.

The defendant has devoted the greater part of his brief to a multi-pronged attack upon the verdict and judgment of conviction on the...