United States v. Barlow

• Decision Date: 17 November 1972
• Docket Number: No. 71-1333.,71-1333.
• Citation: 470 F.2d 1245
• Parties: UNITED STATES of America v. Walter J. BARLOW, Jr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

470 F.2d 1245 (1972)

UNITED STATES of America v. Walter J. BARLOW, Jr., Appellant.

No. 71-1333.

United States Court of Appeals, District of Columbia Circuit.

October 2, 1972.

As Amended November 17, 1972.

Mr. Richard J. Hopkins, Washington, D. C. (appointed by this court), was on the brief for appellant.

Mr. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry, John G. Gill, Jr., and Robert Richard Chapman, Asst. U. S. Attys., were on the brief, for appellee.

Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges.

MacKINNON, Circuit Judge:

In a three-count indictment appellant Barlow and three others — William Blackwell, Thomas Fench, and Robert Brown — were charged with (1) theft of United States Government property (18 U.S.C. § 641); (2) receiving, concealing, or retaining stolen United States Government property (18 U.S.C. § 641); and (3) second-degree burglary (D.C. Code § 22-1801(b)). After a jury trial,¹ appellant was found guilty of theft of Government property and second-degree burglary,² and was ordered committed for an examination pursuant to Title II of the Narcotic Addict Rehabilitation Act, 18 U.S.C. § 4252. Upon completion of the N.A.R.A. examination he was sentenced to concurrent prison terms of one to three years on each of the two counts. The court ordered appellant to serve six months of his sentence with the remainder of the sentence suspended and appellant placed on three years' probation.

On January 29, 1970, F.B.I. agents were conducting surveillance of William Blackwell. At about 5:25 A.M. on that date, they observed him drive his truck, a white Ford panel truck with "Service" printed on the door on the driver's side,³ from Glen Arden, Maryland, to his place of business at 617 Rhode Island Avenue, N.E., in the District of Columbia, where he arrived at approximately 6:30 A.M. Shortly thereafter, agents followed Robert Brown as he drove Blackwell's panel truck to the Department of Labor building in the District of Columbia, where Brown parked the truck and entered the building. An F.B.I. agent observed Brown inside the Labor Department building "moving very fast from one door to the next attempting, trying knobs on each door, and as he would try a knob and push on the door, he would quickly move to the next door."

Approximately ten minutes after Brown entered the Department of Labor building, two F.B.I. agents observed him leave the building, carrying one or possibly two cardboard boxes that appeared to contain heavy items. It was subsequently learned that an I.B.M. typewriter and a Sony tape recorder were missing from two Labor Department offices. These articles were later found where Brown took them.

Brown drove Blackwell's truck back to 617 Rhode Island Avenue, arriving between 8:00 and 8:30 A.M. As soon as the truck pulled into the parking lot, appellant Barlow and William Blackwell appeared at the top of the stairs in front of the building. Brown immediately alighted from the vehicle, walked up the stairs and conversed with them. This conversation was significant and is described later. Thereafter, agents observed Blackwell motion Barlow and Brown down the stairs, and all three "hurried" toward Blackwell's panel truck which was parked within 8 or 10 feet of Barlow's white Pontiac. Barlow proceeded directly to the Pontiac and opened its left rear door, while Brown proceeded to the truck, opened one of its doors, took out a box, carried it to Barlow's car and placed it in the rear seat of that car (the Pontiac). Brown then returned to the truck for the other box. Halfway back to appellant's car, Brown was assisted by Blackwell who appeared to be in an agitated state. Blackwell quickly grabbed one of the flaps on the box Brown was carrying and helped him place it in Barlow's car. Barlow then closed the rear door of his car and became involved in an argument with Brown that lasted two or three minutes. Appellant then got into his car and drove it out of the lot onto the public street at a normal rate of speed and Brown and Blackwell went back into the building.

Appellant's car was followed by two unmarked vehicles driven by F.B.I. agents. They observed Barlow drive out Rhode Island Avenue toward the Maryland state line. As the agents followed appellant, at times Barlow traveled at high rates of speed, and at one point, without signalling, made a left-hand turn at an intersection and narrowly missed an oncoming dump truck. Agent Goldberg noticed appellant looking in his rear-view mirror several times, apparently aware of the fact that he was being followed. The agents continued to follow appellant and he thereafter turned back toward 617 Rhode Island Avenue. At one corner he drove through a red traffic light. Eventually he drove the car back to the lot at 617 Rhode Island Avenue at a higher than normal rate of speed. He parked his car and entered the building.

Shortly thereafter, Brown and Thomas Fench went to appellant's car and they removed the two boxes — one of which contained the Sony tape recorder and the other the I.B.M. typewriter. They carried the two boxes to a large abandoned warehouse, which was located next to the office building used by Blackwell, where they were arrested. One of the boxes was open, and a typewriter was visible, to which was attached a label bearing a Department of Labor room number and the name of a secretary. The tag read, "Room 222, Labor, Carrico." Appellant was subsequently arrested in front of the 617 Rhode Island Avenue building.

At the trial of appellant, the F.B.I. agents recounted the above-described occurrences.⁴ Thereafter, the court denied appellant's motion for acquittal, and the defendants presented their evidence.

Blackwell denied knowledge of any plan or scheme to steal Government property. He testified that on the morning of January 29, 1970, after Brown drove into the lot, Brown indicated that he had stolen something. (Note Proctor's testimony, infra.) Although Blackwell admitted that he became agitated, he denied that he helped move the boxes containing the stolen articles from his truck to appellant's car.

Fench also took the stand. He said that on January 29, 1970, he was an employee of Blackwell. Although he admitted helping Brown carry the two boxes to the abandoned warehouse, located adjacent to Blackwell's place of business, he denied any knowledge of their contents.

Appellant Barlow testified substantially as follows: That on January 29, 1970, he stopped by Blackwell's place of business on Rhode Island Avenue at approximately 7 or 7:30 A.M., to have his car's (Pontiac) brakes repaired by Thomas Fench, one of Blackwell's employees. He said that while he was in Blackwell's office later, Brown entered and stated that "he had done something or something had happened." (Note Proctor's testimony, infra.) Appellant asked Brown what the problem was, and Brown responded: "There is nothing to worry about; everything is all right." Appellant surmised that Brown was in trouble. Brown asked appellant if he could use his car to deliver some boxes, and appellant testified that he responded that he would first have to test the condition of his brakes before he could allow Brown to use the vehicle. Appellant said that Brown then transferred the two boxes to the floor of his automobile. Appellant indicated that he asked Brown, "will these boxes get me into any kind of trouble or anything," and Brown responded in the negative. Appellant then drove his car out of the lot, but he denied driving in an evasive manner. He further testified that he could not have exceeded twenty miles per hour on his short trip, due to the condition of his automobile. He also denied that he failed to stop at a red traffic light. When appellant returned to the lot at 617 Rhode Island Avenue, a few minutes after he left, he informed Brown that he had been followed by a strange car and he asked Brown to remove the two boxes from his vehicle. Appellant testified that he told Brown that he did not want to get involved with anything Brown had committed. Appellant refused to move his car to the rear of the building when requested to do so by Brown, but he admitted giving his keys to Brown so that he could get someone else to move the automobile.⁵

James Proctor, a truck driver employed by Blackwell, testified that on January 29, 1970, he observed Brown drive the panel truck into the lot at 617 Rhode Island Avenue sometime between 7:00 and 7:30 A.M. He said that Brown thereafter entered the room in which he and Barlow were located. Brown exclaimed: "They got me." (Weber, Tr. 15, 25). Proctor claimed not to know what Brown was talking about and testified that a short time later Brown asked him to move appellant's car, but he refused to do so.

The sole point raised by appellant on this appeal is that:

The evidence . . . was insufficient to show that he aided and abetted a second degree burglary and theft of government property because it could only be reasonably inferred from the government\'s evidence that the Appellant might have committed an act to help the principal offender hide evidence after the crime was completed, thus possibly making the Appellant an accessory after the fact but not an aider or abettor. (Barlow brief, p. 6)

In support of this point appellant argues:

It is submitted that under the facts presented by this Case, it was critical for the government to present evidence of a prior agreement between Barlow and Brown to steal government property, and not merely present evidence from which it could be inferred that Barlow attempted to help Brown hide evidence of a crime that had been committed earlier. Otherwise the distinction between committing the crime of aiding and abetting a principal and committing the crime of being an accessory after the fact (D.C.Code § 22-106) is blurred and confused. This distinction is of critical importance because of the different penalties involved. The District of Columbia Code

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