U.S. v. Bangert
| Decision Date | 01 April 1981 |
| Docket Number | No. 80-1276,80-1276 |
| Citation | 645 F.2d 1297 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Richard Lane BANGERT, and Alan Harold Kandel, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Allen I. Harris and Lawrence P. Katzenstein, St. Louis, Mo., for defendants-appellants.
Robert D. Kingsland, U. S. Atty., Edward L. Dowd, Jr., Asst. U. S. Atty., St. Louis, Mo., for plaintiff-appellee.
Before HENLEY, McMILLIAN, Circuit Judges, and BECKER, Senior District Judge. *
Appellant Richard Lane Bangert (Bangert) appeals from judgments of conviction and sentences based on jury verdicts finding Bangert guilty, as charged in Count I, of violating § 641, Title 18 U.S.C. (stealing government property valued at less than one hundred dollars), and guilty, as charged in Count II, of violating § 1361, Title 18 U.S.C. (destruction of government property valued at less than one hundred dollars).
On Count I, Bangert was sentenced by the court to imprisonment for six months and a fine of one thousand dollars was imposed. On Count II, Bangert was sentenced to imprisonment for one year and a fine of one thousand dollars was imposed. Bangert was ordered to serve these two sentences of imprisonment consecutively.
Appellant Alan Harold Kandel (Kandel) appeals from a judgment of conviction and sentence based on a jury verdict finding him guilty, as charged in Count II only, of violating § 1361, Title 18 U.S.C. (destruction of government property valued at less than one hundred dollars). On Count II, Kandel was sentenced by the court to imprisonment for one year and a fine of one thousand dollars was imposed.
The appellants were charged in a single indictment, and tried jointly on Count II.
Appellant Bangert contends that the district court erred: (1) in allowing the witnesses to identify Bangert in court at trial, contending that the earlier out-of-court identification procedures used by the Federal Bureau of Investigation (FBI) before indictment were impermissibly suggestive, causing the in-court identifications of him to be tainted by the earlier out-of-court identification of him from a display of photographs; (2) in not granting the motion of Bangert for a directed verdict, contending that the evidence was insufficient to sustain a verdict of guilty on Count II of the indictment; (3) in not granting a mistrial or continuance because of the contention of both defendants that they were greatly prejudiced by publicity unconnected with the defendants that inflamed the nation and the jury panel; (4) in abusing its discretion by imposing excessive sentences; (5) in sentencing Bangert to two terms of imprisonment to run consecutively; and (6) imposing the sentences of such severity for political acts that exercise of basic constitutional rights was chilled and others deterred from taking political stands opposing policies of the government.
Appellant Kandel contends that the district court erred: (1) in not granting the motion of Kandel for a directed verdict, contending that the evidence was insufficient to sustain a verdict of guilty on Count II of the indictment; (2) in not granting a mistrial or a continuance because of the defendants' contentions that they were greatly prejudiced by publicity unconnected with the defendants that inflamed the nation and the jury panel; (3) in abusing its discretion by imposing an excessive sentence; and (4) when imposing sentence, in considering impermissible criteria, which infringed upon Kandel's basic constitutional rights as claimed by Bangert above.
For the reasons stated hereinafter, we affirm the judgments and sentences of the district court.
In the following discussions the evidence and reasonable inferences therefrom are reviewed in the light most favorable to the prosecution, in accordance with the principles enunciated in Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942); United States v. Berry (C.A.8 1979) 599 F.2d 267, cert. denied, 444 U.S. 862, 100 S.Ct. 129, 62 L.Ed.2d 84 (1979).
On November 27, 1979, at approximately 7:50 A.M., a United States flag was stolen from the flagpole of the Federal Building at 1520 Market Street in St. Louis. (Tr. 70). The flag was replaced with a banner on which appeared a slogan that read "U. S. Keep Your Bloody Hands Off Iran." (Tr. 70). Approximately four hours later a United States flag was burned at a demonstration on the campus of Washington University, in which Bangert and Kandel participated. (Tr. 168, 254, 285). Apparently, the purpose of the demonstration was to protest involvement of the United States in the internal affairs of Iran. (Tr. 261, 293-294). Banners, with the same slogan that appeared on the banner that replaced the United States flag taken from the Federal Building, were displayed at the demonstration on the campus. (Tr. 261, 279, 294).
On February 1, 1980, Bangert was arrested by FBI agents on charges of the theft and destruction of the United States flag owned by the United States government that had been taken from the Federal Building. (Tr. 222). On the same day, Kandel was arrested by FBI agents on a charge of destruction of the United States flag owned by the United States government that had been taken from the Federal Building. (Tr. 242).
On March 10, 1980, prior to trial, Bangert filed a Motion to Suppress Identification in the district court. The motion urged the district court judge to suppress the out-of-court identifications of him previously made, and also any later in-court identifications, on the grounds that the identification procedures before indictment were suggestive and improper and would therefore taint any later identifications. (Record on Appeal, 4-5). A pretrial evidentiary hearing was held on the Motion to Suppress Identification at which Julian Stackhaus, an FBI agent, and three eyewitnesses to the theft of the United States flag, Michelle Owens, John McHale, and Roland Reeves testified. (Tr. 2-32).
Julian Stackhaus testified at the pretrial hearing that he was the FBI investigating officer in the case involving the theft of a United States flag from the Federal Building in St. Louis (Tr. 4); that, as part of the investigation, he interviewed Michelle Owens, John McHale, and Roland Reeves, eyewitnesses to the theft of the United States flag (Tr. 4); that Michelle Owens described one of the people she observed at the Federal Building as a tall, white male with a beard (Tr. 6); that John McHale described one of the people he observed at the Federal Building as a white male, five feet eight inches tall, with a full beard, high forehead, and curly hair, wearing a green jacket, blue pants, and soft soled shoes (Tr. 12); that Roland Reeves described the person he observed at the Federal Building as a white male, five feet nine inches to five feet ten inches tall, of medium build, with a receding hairline, full beard, wearing glasses and a short-length coat (Tr. 15); that after giving the descriptions to agent Stackhaus, the eyewitnesses were shown a series of photographs, consisting of eleven photographs that included three females, two black males, and six white males, only four of whom had facial hair of any kind, and only one, that of Bangert, with a full beard (Tr. 8, 9, 13, 14, 15, 16); and, that agent Stackhaus was aware prior to showing the photographs that the person the FBI was looking for was a white male with a full beard. (Tr. 9).
Witnesses Michelle Owens, John McHale, and Roland Reeves each testified separately at the hearing that each gave a description to Stackhaus of one of the persons observed by each witness at the Federal Building on the morning of November 27, 1979 (Tr. 24, 27, 29); that each was shown a series of photographs from which each one picked out the person observed (Tr. 25, 28, 30); and, that none were told anything, prior to viewing the display of photographs, concerning the political beliefs of the individuals or whose photograph to pick out. (Tr. 25, 28, 29). These witnesses were not asked to identify anyone in court at the hearing on the Motion to Suppress Identification.
Following this testimony, the district court ruled that the display of photographs used in the identifications procedures was not impermissibly suggestive; that the inclusion of the photographs of the black males and the females did not create a substantial likelihood of improper suggestions made by the FBI agent to the witnesses while showing the photographs; that there was no evidence of tainting but that this finding could be reconsidered during the trial. (Tr. 31-32). Then, the district court denied the Motion to Suppress Identification of the defendant Bangert. (Tr. 32).
At the trial, the three eyewitnesses to the taking of the United States flag, Michelle Owens, John McHale, and Roland Reeves, were called by the prosecution as witnesses. Owens and Reeves testified to observing the lowering of the United States flag, and the substitution of the banner on the flagpole in front of the Federal Building. (Tr. 78, 107). McHale testified that he saw Bangert run through a nearby parking lot with a black plastic trashbag containing something. (Tr. 124-127, 134-137). After giving descriptions to police of the person these witnesses saw at the Federal Building, each then identified Bangert from a display of photographs as one of the individuals engaged in taking the United States flag. (Tr. 184, 111, 128, 221). Reeves and Owens each testified to observing the United States flag coming down from the flagpole in front of the Federal Building. (Tr. 79, 56, 107, 112, 120). Owens testified that she was only a few inches away from Bangert on the building steps...
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