435 F.2d 754 (9th Cir. 1970), 24632, United States v. Metcalf

Docket Nº:24632.
Citation:435 F.2d 754
Party Name:UNITED STATES of America, Appellee, v. Walter METCALF, Appellant.
Case Date:December 10, 1970
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 754

435 F.2d 754 (9th Cir. 1970)

UNITED STATES of America, Appellee,


Walter METCALF, Appellant.

No. 24632.

United States Court of Appeals, Ninth Circuit.

December 10, 1970

Page 755

Reiner E. Deglow (argued), of Fredrickson, Maxey, Bell & Allison, Spokane, Wash., for appellant.

Carroll D. Gray (argued), Asst. U.S. Atty., Dean C. Smith, U.S. Atty., Spokane, Wash., for appellee.

Before HAMLEY and ELY, Circuit Judges, and GOODWIN, District Judge. [*]

ELY, Circuit Judge:

Metcalf was convicted of having obstructed justice in violation of 18 U.S.C. § 1503. The alleged offense centered around an attempt by him to secure possession of an automobile that had been purchased with money obtained in a bank robbery.

Joe Nicholls, who had already pleaded guilty to the offense of bank robbery, was the prosecution's principal witness against Metcalf. As we shall see, however, his testimony actually undermined the Government's case. Nicholls related that he had unlawfully taken approximately $2500 from a bank in Spokane, Washington. The next day he paid $1300 in cash for a 1966 Pontiac Le Mans automobile and signed a note for the remaining $300 owing to the vehicle's seller. He drove the vehicle to the Spokane house of a friend, Robert Herr, Herr and Nicholls then left in Herr's car and visited several places in the western United States. Nicholls eventually arrived in Tacoma, Washington, where Metcalf lived. Herr was not with Nicholls at that time, apparently because he had been arrested earlier for aiding Nicholls' flight.

Nicholls contacted Metcalf and then called Mrs. Herr to inform her that someone would pick up the Pontiac which he, Nicholls, had left at the Herrs' residence. Mrs. Herr contacted the FBI, who arrested Metcalf when he reached the home of the Herrs and undertook to take possession of the automobile. Mrs. Herr testified that when she received the telephone call from Nicholls, a second voice came on the line and that this voice told her, in her words, 'that there had better not be no slip-ups, or I would be sorry.' When Metcalf arrived in Spokane, he called Mrs. Herr and told her that he was on his way to the house. When he came to the door, according to Mrs. Herr's testimony, he asked how much bond was required for Robert Herr's release from custody and indicated to Mrs. Herr that the bond would be arranged. Mrs. Herr handed him the keys to the Pontiac and closed the door to the house. He then walked to the automobile and was arrested when he inserted a key into a door of the vehicle.

Nicholls, the prosecution's witness, testified that he had sold the car to Metcalf for $1000 because he needed money to supply his narcotic habit, which was costing him between $150 and $200 per day. He and Metcalf had gone to a notary public in Tacoma, where title to the vehicle was signed over to Metcalf. Nicholls swore that he never told Metcalf that the automobile had been purchased with stolen money. In December, two months after the...

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