United States v. Metcalf

• Decision Date: 10 December 1970
• Docket Number: No. 24632.,24632.
• Citation: 435 F.2d 754
• Parties: UNITED STATES of America, Appellee, v. Walter METCALF, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

435 F.2d 754 (1970)

UNITED STATES of America, Appellee, v. Walter METCALF, Appellant.

No. 24632.

United States Court of Appeals, Ninth Circuit.

December 10, 1970.

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 incident involved here, Metcalf paid the remaining $300 balance on the purchase price and received a record title from the State of Oregon.

Nicholls further testified that Metcalf was nearby when he made the telephone call to Mrs. Herr, but that he had no way of knowing whether Metcalf was in position to have overheard the conversation. He was certain, however, that Metcalf had not taken the telephone to speak to Mrs. Herr. On this latter point, Mrs. Herr testified that the voice with which she was threatened over the telephone when Nicholls called was probably not the voice of Metcalf, with whom she had spoken over the telephone after Metcalf arrived in Spokane. The voices, according to her testimony, were different.¹

Metcalf was tried on two theories, either of which might have been the basis for his conviction. The first theory, as embodied in the court's instructions to the jury, was that "any article, purchased in whole or in part with money obtained from the commission of a crime is evidence of that crime." The jury was charged that Metcalf should be convicted if he had attempted to secure possession of evidence with the intent of obstructing the due administration of justice. The indictment also alleged that Metcalf had threatened a potential material witness when he allegedly spoke to Mrs. Herr over the telephone. The jury was instructed, in effect, that it could return a verdict of guilt if it were convinced beyond a reasonable doubt that Metcalf had committed either of the two acts.

In reviewing a conviction, we look at the evidence in the light most favorable to the Government, drawing all reasonable inferences that tend to support the conviction. United States v. Glasser, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Viewing the evidence in this light, we think it not unreasonable that the jury, by rejecting part of the testimony of the prosecution's key witness, Nicholls, could have inferred that Metcalf knew that the car had been purchased with stolen money. The jury might have inferred that the purported sale transaction was a sham and that Metcalf was attempting to obtain the automobile for Nicholls' purposes. Upon those assumptions, our question is whether Metcalf's activity fell within the prohibitions of section 1503.

The statute in question is designed to achieve the twin goals of protecting the participants in a specific proceeding and of preventing a miscarriage of justice in a case pending in a federal court. Catrino v. United States, 176 F.2d 884, 887 (9th Cir. 1949). For this reason, it is well settled that the statute is not applicable until, at the earliest, a complaint has been filed with a United States Commissioner. E. g., United States v. Perlstein, 126 F.2d 789 (3d Cir.), cert. denied, 316 U.S. 678, 62 S.Ct. 1106, 86 L.Ed. 1752 (1942).

In Haili v. United States, 260 F.2d 744 (9th Cir. 1958), we dealt with one's conviction, under the statute, for merely having associated with a previously convicted offender. One of the conditions of probation of the earlier convicted party was that she not associate with Haili, and her probation had been revoked. Haili was then convicted of obstructing justice. Our court noted that section 1503 deals with several specific acts, all of which are of the nature of exerting influence or coercion against individual participants in judicial proceedings. The statute then contains a general...