United States v. Metcalf, 20098.
| Citation | 430 F.2d 1197 |
| Decision Date | 02 September 1970 |
| Docket Number | No. 20098.,20098. |
| Parties | UNITED STATES of America, Appellee, v. Richard Dale METCALF, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Murray L. Randall, St. Louis, Mo., for appellant; Richard L. Daly, St. Louis, Mo., on brief.
Peter T. Straub, Asst. U. S. Atty., St. Louis, Mo., for appellee; Daniel Bartlett, Jr., U. S. Atty., St. Louis, Mo., on brief.
Before VAN OOSTERHOUT, Circuit Judge, JOHNSEN, Senior Circuit Judge, and HEANEY, Circuit Judge.
The appeal is by Richard Dale Metcalf from convictions of (1) possessing goods stolen from an interstate shipment, 18 U.S.C. § 659, and (2) having conspired with others to effect the possession, 18 U.S.C. § 371.
The violations were made the subject of joint indictment charges against appellant, one Sheppard, his brother-in-law, and one Stackhouse, a friend of both. The indictment also alleged that one James had participated in the conspiracy, but it did not make him a defendant. Stackhouse pleaded guilty to the charges; dismissal was made on motion of the Government as against Sheppard; and appellant alone was tried. He was sentenced to five years imprisonment on each count, with the sentences to run concurrently.
There is no contention here that the evidence is insufficient to sustain appellant's conviction, nor on the record before us would it be possible to urge such a contention. In fact, the proof of his guilt is so strong that it would be difficult to see how any jury could reasonably reach a different result. While we need not in this situation detail all the evidence, a statement of some of the facts which the jury could properly find will help to put into proper perspective and significance the single contention of error which appellant's experienced counsel has been able to construct out of the whole of the trial proceedings.
The single contention made is that the convictions should be reversed for the admission of a bit of testimony on the part of a witness as to a converation which she had overheard between Sheppard and appellant regarding Stackhouse. We find, as discussed later, that the contention is devoid of any substance, and we affirm the convictions.
The stolen goods consisted of 45 boxes of trousers or "Levi's" in interstate shipment, which were contained in a trailer standing at the freight dock of a trucking company in St. Louis, Missouri. The theft was effected by Stackhouse's procuring a tractor somewhere, driving it to the freight dock at night and hauling the van away. He proceeded from there to Beeleman's Lounge, a tavern, where he and the other three alleged conspirators had been assembled and conferring together for a time until he left the group to set out on the theft venture. Another such meeting had also been held earlier in the day at the Oasis Bar, a tavern owned by appellant.
When Stackhouse returned to Beeleman's Lounge, as indicated, appellant directed him to take the truck to the Oasis and unload it. Stackhouse double-parked in the street in front of the Oasis and began to unload the cartons onto the sidewalk with assistance from the tenant of an apartment above the tavern. Upon appellant's barmaid at the Oasis observing the truck's parking position and the sidewalk unloading, she telephoned to Beeleman's Lounge and suggested that appellant get back immediately to the Oasis.
Appellant did so and ordered Stackhouse to get the truck away from the front of the tavern, exclaiming in angry tone, "Are you crazy or something?". Stackhouse thereupon drove to the alley behind the tavern where he and the upstairs tenant unloaded the cartons into a garage across from the rear of the Oasis. Following this, he took the tractor and trailer out to the stockyards area of St. Louis, where he abandoned them, and rode back to the Oasis with a woman companion from the tavern, who had driven behind him in a car.
Upon returning to the Oasis, the two went to appellant's...
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U.S. v. Murray
...and integrated" conversation with appellant, see United States v. Lemonakis, supra, 485 F.2d at 948 (quoting United States v. Metcalf, 430 F.2d 1197, 1199 (8th Cir. 1970)). Moreover, unlike such affidavits, Parrot's statements were expressly offered not for their own truth, but to provide t......
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