Adolfson v. United States, 11181.

• Decision Date: 05 May 1947
• Docket Number: No. 11181.,11181.
• Citation: 159 F.2d 883
• Parties: ADOLFSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

159 F.2d 883 (1947)

ADOLFSON v. UNITED STATES.

No. 11181.

Circuit Court of Appeals, Ninth Circuit.

February 6, 1947.

Rehearing Denied March 4, 1947.

Writ of Certiorari Denied May 5, 1947.

Leo R. Friedman, of San Francisco, Cal., for appellant.

Frank J. Hennessy, U. S. Atty., and Daniel C. Deasy, Jr., Asst. U. S. Atty., both of San Francisco, Cal., for appellee.

Before DENMAN, HEALY, and BONE, Circuit Judges.

Writ of Certiorari Denied May 5, 1947. See 67 S.Ct. 1307.

BONE, Circuit Judge.

Appellant was indicted and convicted on a jury trial for alleged violation of Section 87 of Title 18, U.S.C.A. From the judgment and sentence this appeal is prosecuted. The charging part of the indictment reads:

"That Eric Adolfson and Ben Amdursky (hereinafter called `said defendants'), did, on or about the 18th day of May, 1945, in the City and County of San Francisco, State of California, in the Southern Division of the Northern District of California, and within the jurisdiction of this Court, unlawfully, wilfully and knowingly apply to their own use property of the United States of America furnished and to be used for the armed services, to-wit: 24 Elgin wrist watches, 100 Parker 51 fountain pens, and 56 Shaeffer fountain pens, of a market value in excess of the sum of $50.00, said defendants then and there well knowing the said property was the property of the United States of America furnished and to be used for the armed services."

Scott (a private in the United States Marine Corps) and Seelye (a civilian mechanic working at Encinal Terminal in Alameda County, California) were two witnesses who testified to stealing the Government property described in the indictment and to the sale of the stolen watches and fountain pens to appellant. They testified that they had pleaded guilty to a charge of larceny of the property prior to the trial of appellant, and were at the time awaiting imposition of sentence. Scott specifically denied (on cross examination) that leniency in the matter of his sentence had been suggested in case he testified in this case and Seelye stated that the fact that he was awaiting sentence did not influence his testimony in respect to a certain matter concerning which he was questioned. Both stated that they had discussed the facts of the case with Government agents on various occasions.

There was evidence also tending to establish the following facts:

During the months of March to May, 1945, the United States Navy Department maintained a shipping and storage plant known as the Encinal Terminal (where Seelye worked). During these months a shipment of fountain pens was made to this plant for further shipment overseas from the Naval Supply Depot in San Francisco. Also, a shipment of Elgin wrist watches made to Marine Corps specifications, was sent to Encinal Terminal from the Marine Corps Supply Depot in San Francisco for further shipment overseas. These articles had been purchased by and were the property of the United States and were stored in what was known as the Radar Corral at the Encinal plant. Scott was assigned to guard duty at that place and while performing this duty he and Seelye stole about 158 of these fountain pens and 24 of these watches, they being taken from the Encinal Terminal enclosure by Seelye. On May 17, 1945 Scott and Seelye sold these pens and watches to appellant, Adolfson, who made the purchase at a cigar store he operated on Market Street in San Francisco, California.

The pens (similar to those sold in civilian stores) were intended for sale in Navy ships' stores to any person in the Navy who cared to buy them. They were not issued to the enlisted men as part of the equipment of the Marine Corps. A watch of the kind here involved was issued to enlisted men and non-commissioned officers only in case where a watch was required in an assigned "job" or work. They might not purchase it but were required to return it when the requirement had been completed. Where commissioned officers required a watch permanently they were compelled to purchase it. All such purchases of pens and watches were coupled with a restriction that such articles might not be shipped back to civilians in the United States.

At the time Scott and Seelye sold these stolen pens and watches to appellant, Scott was wearing his uniform as private first class in the United States Marine Corps and was to some degree under the influence of liquor. The sale included approximately 100 Parker fountain pens each having a then retail value of $15.00, and 56 or 58 Shaeffer fountain pens each having a then retail value of $12.50. At the time and in the same transaction they sold and delivered to appellant 24 of the stolen Elgin wrist watches, each watch having a then retail value of $47.50. For all of this property the appellant paid something over $1,000 in cash to Scott. During the negotiations and before completing the purchase, appellant left his place of business twice for brief periods (Scott and Seelye remaining in his store) stating at the time that he had to "see a friend." The name of this friend was Ben Amdursky and on one of these visits to him appellant took a pen, or pens, and one watch as "samples". He returned from these "trips" with a sum of money procured from Amdursky and paid Scott for the stolen property. The pens were enclosed in lots of 12 in small boxes marked in a way to identify them as Government property used in the Navy. Shortly after the purchase, appellant sold all except 4 of the pens and 4 of the watches to Amdursky. (See confession set out in footnote 1.)

The verdict indicates that the jury did accept the facts outlined above as having been established in the evidence beyond a reasonable doubt. To these facts should be added a certain written confession of appellant, hereafter referred to and admitted in evidence.

Appellant asserts a fatal variance between the allegations of the indictment and the proof, in that the indictment charged an unlawful application of the property to appellant's own use (18 U.S.C. A. § 87) while the proof merely attempted to establish the receipt of stolen goods (18 U.S.C.A. § 101) or the unlawful purchase of naval or military property (18 U.S.C.A. § 86). His argument is that section 87 "is purely an embezzlement statute" (referring to its title); that the indictment charges embezzlement and nothing more and that to "apply the property of another to one's own use" is to embezzle it. The simple language of section 87 refutes that argument for it covers several specifically named offenses wholly apart and divorced from the technical offense of embezzlement. One of these specifically and separately named offenses is that of knowingly applying to one's own use property "furnished or to be used for the military or naval service". The prohibition against knowingly applying Government property appears in the text of section 87 after the word "or" which follows the reference to the offense of embezzlement. The use of the word "or" clearly indicates alternative circumstances (cf. Barkdoll v. United States, 9 Cir., 147 F.2d 617, 618) and was obviously intended to identify and define a wholly separate and distinct offense, and we so hold. Appellant would have us read out of section 87 a meaning, a purpose, a definition and a protection of public property which to us clearly appears to speak the plain intent of the lawmakers.

Appellant advances four other grounds for reversal: (1) The trial court misdirected the jury by stating that the jury could find that the appellant knew of the stolen character of the goods solely on the fact that he purchased or sold such goods at a price disproportionate to their value; (2) that, as a matter of law, the offense charged could not have been committed, as the evidence failed to establish that the goods were of the character as defined in the statute; (3) the evidence was insufficient to establish the charge in that it failed to establish (a) that appellant knew the goods were property of the United States and (b) furnished or to be used for the military or naval service, or (c) that appellant knew the goods were stolen at all; (4) the trial court erred in failing to grant appellant's motion for a new trial. Our disposition of the appeal disposes of this fourth ground.

We consider the other three grounds. The instruction condemned by appellant reads as follows:

"You are instructed that if you find that the defendant Eric Adolfson sought to purchase or to sell the watches or fountain pens at a price disproportionate to the value of said watches or fountain pens, this fact may be considered by you as a circumstance from which you may infer that said defendant knew the watches and fountain pens were stolen."

Appellant contends, first, that it told the jury that knowledge of the stolen character of the property could be inferred from the bare fact that appellant bought or sold the pens and watches at a price disproportionate to their value, thus, in effect, telling the jury that a verdict of guilt could be predicated on such fact alone; second, it omitted the necessary element that appellant must have known the value of them. Corpus Juris is cited as stating the correct rule applicable to this situation.

"Inadequacy of Price Paid. Guilty knowledge cannot be inferred merely from the inadequacy of the price paid by accused for the property. Nevertheless, it is a material fact bearing upon the presence of guilty knowledge, and in connection with other facts in evidence * * * may be sufficient to show guilty knowledge." 53 Corpus Juris, p. 537, Sec. 94 (3).

Standing alone, the criticized instruction might be regarded as substantial error. But an examination of the entire record persuades us that the compelling force and significance of the entire body of evidence in this case justifies the conclusion that the giving of this instruction was harmless error. Appellant argues that a purchase of stolen property at a price...