522 F.2d 661 (D.C. Cir. 1975), 73-1921, United States v. Peterson

Docket Nº:73-1921.
Citation:522 F.2d 661
Party Name:UNITED STATES of America v. Marzell PETERSON, Appellant.
Case Date:July 18, 1975
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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522 F.2d 661 (D.C. Cir. 1975)

UNITED STATES of America

v.

Marzell PETERSON, Appellant.

No. 73-1921.

United States Court of Appeals, District of Columbia Circuit

July 18, 1975

Judgment June 30, 1975.

Argued Nov. 22, 1974.

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Bradley G. McDonald, Washington, D. C. (appointed by this Court) for appellant.

E. Lawrence Barcella, Jr., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and John O. Clarke, Jr., Asst. U. S. Attys., were on the brief for appellee. Harold H. Titus, Jr., U. S. Atty., at the time the record was filed, also entered an appearance for appellee.

Before BAZELON, Chief Judge, DANAHER, Senior Circuit Judge, and JUSTICE, [*] United States District Judge for the Eastern District of Texas.

Opinion for the Court filed by Senior Circuit Judge DANAHER.

DANAHER, Senior Circuit Judge:

This appellant, jointly tried before a jury with co-defendants Carter and Patterson, was convicted of unlawful receipt and possession of property of the United States. 1 The appeals of the several accused have been consolidated by order of this court. The opinion 2 of Judge Justice has set forth in detail the circumstances predicating the several indictments. We need now only to recapitulate such facts as bear upon Peterson's claims of error.

I

The burglary of the Arms Room at the Walter Reed Hospital on June 29, 1971, had resulted in the theft of some fifteen M-14 rifles, ten shotguns and other Government property of a total value in excess of $1800. The perpetrators had left on a desk in the Arms Room a drawing of a face with wording "King Kong is Black." A jury might reasonably deduce that such a legend intentionally projected symbolic significance. Guards at the Walter Reed reservation had seen two automobiles being rapidly driven from the premises by two men accompanied, perhaps, by a third companion. No other substantial evidence as to the identity of the perpetrators was then or thereafter available until February 9, 1972, when we first learn of this appellant Peterson.

II

Metropolitan Police Officer Bennett alone in a scout car was patrolling the 16th Street area about 1:30 a. m. on February 9, 1972. He then sighted two men, one carrying a .12-gauge shotgun and the other armed either with a rifle

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or a small-bore shotgun. Officer Bennett attempted to apprehend the pair but they opened fire on him and fled in a Pontiac car. The officer radioed for help, engaged in pursuit and was joined by police reinforcements as the Pontiac drew up in front of a house at 1318 Farragut Street. Peterson left the Pontiac, in his haste fell while crossing to the house and there was quickly subdued. At his side was a shotgun later to be identified as one which had been stolen from the Arms Room the previous June 29th. Peterson's companion, still armed, later to be identified as one Gantt, 3 fled to the rear of the house. Pursuing officers presently found that a forcible entry there had been made. There was testimony at trial that a police officer, scanning the house by flashlight, had caught a glimpse of a man with a long-barreled rifle standing at the window of an upstairs bedroom. In hot pursuit, officers invaded the Farragut Street house. It developed that Peterson's companion, Gantt, was found changing his clothes in a pantry. Concerned that yet other armed persons might be present, the officers undertook security steps. In plain view near an open closet on the second floor Officer Bennett sighted a shotgun. Additionally there were shoulder holsters, one containing a weapon, bayonets, ammunition, a number of live and some spent rounds of .12-gauge ammunition and other military-type items which, it later developed, had been part of the Government property stolen from the Walter Reed Arms Room on the night of the June 29, 1971, burglary. In the closet itself, a partially opened trap door yielded a view of the butts of two rifles protruding from a sack in which also were three M-14s, two being fully loaded. Not unexpectedly under the circumstances, the shoot-out on 16th Street, the flight of Peterson and Gantt, the hot pursuit leading to the Farragut Street house and the seizure there of evidence as above described, intensified developments of the case.

III

The shoot-out previously described, 4 the flight of Peterson and Gantt, the hot pursuit by the officers, the possession by Peterson of the shotgun stolen at the Walter Reed Arms Room, and the discovery of the stolen property at the Farragut Street house gave rise to the first real break leading to the solution of the burglary and theft. Thereupon, further investigation produced the trial evidence of the inculpation of the various hitherto unidentified culprits who had participated, in greater or less degree, in the common enterprise.

For example, it developed that one Robert Marshall 5 and this appellant Peterson were lessees of the Farragut Street house. By May, 1971 one Arrindell and one Parker 6 had joined Marshall and...

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