Brinlee v. United States

• Decision Date: 01 May 1974
• Docket Number: No. 73-1340.,73-1340.
• Citation: 496 F.2d 351
• Parties: Garland Rex BRINLEE, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

496 F.2d 351 (1974)

Garland Rex BRINLEE, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 73-1340.

United States Court of Appeals, Eighth Circuit.

Submitted January 18, 1974.

Decided May 1, 1974.

Albert A. Wolf, Bismarck, N. D., for appellant.

Counsel for appellee waive oral argument. Brief was filed.

Harold O. Bullis, U. S. Atty., Fargo, N. D., Nathan G. Graham, U. S. Atty., Ben F. Baker, Asst. U. S. Atty., Tulsa, Okl., for appellee.

Before MATTHES, Senior Circuit Judge, HEANEY, Circuit Judge, and TALBOT SMITH, Senior District Judge.^*

TALBOT SMITH, Senior District Judge.

The defendant, Garland Rex Brinlee, Jr., was convicted by a jury of conspiracy¹ to violate firearm statutes² and 18 U.S.C. § 844(h),³ which prohibits carrying an explosive during the commission of a felony, as well as of the substantive offenses of the possession of unregistered firearms (a bomb and a sawed-off shotgun) and of making a firearm (a bomb) without paying the required tax.⁴

By way of background, and we here adopt the unchallenged statement contained in defendant's brief to us:

Defendant had been previously convicted in Oklahoma State Court of first degree murder and is serving a life sentence on that conviction arising out of the death of Mrs. Don Bolding at Barstow,⁵ Oklahoma following the possession, making and transportation of the bomb and planting it in the Bolding pickup at Barstow. The Judgment from which this appeal is taken is based on that sic making and possession of the bomb and the conspiracy to make and possess a bomb, which was set in the Bolding pickup where Mrs. Bolding was killed.

Subsequent to indictment the action was transferred from Tulsa, Oklahoma, to Bismarck, North Dakota, for trial because of the extensive publicity the case had had in Oklahoma.

A co-conspirator and co-defendant, Archie Dale Miller, pled guilty to the conspiracy count and was sentenced. Brinlee, upon conviction, was sentenced to a total of 12 years of imprisonment, to "be consecutive to any other lawful sentence of confinement which has heretofore been imposed upon this defendant."

On appeal Brinlee has raised a series of questions, ranging a wide field. We have considered each of the issues raised but will discuss only those having sufficient merit to warrant such discussion.

The proofs adduced at trial may be very simply stated. In January of 1971 the defendant came to the Tahlequah, Oklahoma, apartment of Ralph Lee Hinkle, a local college student who had been employed by defendant and who lived in an apartment house owned by the defendant. Hinkle, a named co-conspirator, testified that defendant at this time brought with him four blocks of plastic explosives, identified as C-4, and some blasting caps, which were left in Hinkle's closet. Shortly thereafter Hinkle, at defendant's request, borrowed a 1969 Chevrolet pickup so that he (defendant) could "see how he could wire up some blasting caps to it." Defendant, Hinkle, and Miller drove to an abandoned house north of town. There Miller, a Viet Nam veteran who had had experience with plastic explosives, instructed defendant on how to wire the car so that the blasting caps could be detonated through use of the ignition switch. Defendant also investigated under the pickup to see if he could remove "one of those rubber grommets that are under the body of a car." Subsequently, at Hinkle's apartment on February 1, 1971, defendant and Hinkle attached clamps to the blasting cap lead wires and taped the wires. Defendant had previously purchased these "alligator clips,"⁶ and it was later testified by an expert witness that "the lead wires or the leg wires of an electric blasting cap and two alligator clips * * * were recovered" by him at the scene of the explosion on February 2.

That night defendant and Hinkle drove to Bristow, Oklahoma, to the Bolding residence where defendant, with Hinkle standing nearby armed with a sawed-off shotgun, wired the Bolding truck and placed two blocks of the explosives beneath its seat. The resulting explosion resulted in the death heretofore described. Defendant's defense was an alibi, rejected by the jury.

We turn first to the claim of double jeopardy. The defendant cites to us such cases as In re Pratt, 66 Cal.2d 154, 56 Cal.Rptr. 895, 424 P.2d 335 (1967); Heldenbrand v. Mills, 476 P.2d 375 (Okl.Cr.1970), and Ex parte Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1888), each of which expressed the principle that "The state will not be permitted to split or divide up an offense into divers parts and punish each moiety."⁷ Such cases are inapposite to the situation before us. Here we have separate offenses: the elements of proof are dissimilar, and the proscriptions emanate from different sovereigns. Ferina v. United States, 340 F.2d 837, 839 (8th Cir.), cert. denied, 381 U.S. 902, 85 S. Ct. 1446, 14 L.Ed.2d 284 (1965). The Oklahoma state case involved both premeditation and death, but the federal, lack of registration, together with illegal possession and making. We find no element of double jeopardy in such disparate charges made by different sovereigns. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959).

After Hinkle's direct examination defendant requested that the government produce all statements made by the witness at any time. In response the government produced statements made on March 31, 1972 and April 5, 1972 but stated that these statements contained not only information "about a number of other state offenses," but privileged matter as well, the statements, in fact, going "from horizon to horizon about a world of things." Accordingly the court was requested to examine them in camera and excise matter unrelated to the testimony of the witness. The court did so, made certain excisions, and the full and extire texts of the statements were sealed and form part of this record on appeal. We have examined the full texts of the statements. The excised materials do not relate to the events and activities testified to, but rather concerned other unlawful activities of Hinkle and Brinlee which we need not set forth here. The trial court did not commit error in either the procedure adopted⁸ or in the determinations made. It was held in Scales v. United States, 367 U.S. 203, 258, 81 S. Ct. 1469, 1501, 6 L.Ed.2d 782 (1960), that "there can be no complaint by a criminal defendant that he has been denied the opportunity to examine statements by government witnesses which do not relate to the subject matter of their testimony * * *." See also Hance v. United States, 299 F.2d 389, 397 (8th Cir. 1962). The argument of defendant that he must be allowed "to participate in the determination of what is relevant or irrelevant" has no support in statutory authority or case precedent.

Defendant urges also that Hinkle's testimony was improperly received because, at the time he testified, "there was no evidence of a conspiracy and Hinkle was an admitted co-conspirator who was then allowed to testify to the various acts of himself and the Defendant which would establish the alleged conspiracy." Essentially the same argument is made with respect to the need for severance of the substantive charges, namely, that otherwise the government may "introduce evidence on the substantive charges by an alleged co-conspirator, which evidence has a tendency to establish the conspiracy, before it was established by other evidence."

The problem presented is framed in terms of order of proof. The order of proof in a conspiracy case need not follow a predetermined pattern. Often it is only after considerable testimony that the various factual elements form a discernible pattern. It is for this reason that we have held that the order of proof is a matter within the discretion of the court, with safeguards as to "connecting up." Fabian v. United States, 358 F.2d 187 (8th Cir.), cert. denied, 385 U.S. 821, 87 S.Ct. 46, 17 L.Ed. 2d 58 (1966). It is, of course, settled as well that in order that declarations of alleged co-conspirators may be admissible against a defendant, there must be independent evidence showing that there was, in fact, a conspiracy and the defendant's participation in it. Rizzo v. United States, 304 F.2d 810, 826 (8th Cir.), cert. denied, 371 U.S. 890, 83 S.Ct. 188, 9 L.Ed.2d 123 (1962); Ferina v. United States, 302 F.2d 95, 104-105 (8th Cir.), cert. denied, 371 U.S. 819, 83 S.Ct. 35, 9 L.Ed.2d 59 (1962). This rule must not, however, be confused. It applies only to out-of-court (hearsay) declarations of a co-conspirator. E. g., Glasser v. United States, 315 U.S. 60, 73-75, 62 S.Ct. 457, 86 L.Ed. 680 (1942). It does not exclude proof of a conspiracy by the direct testimony under oath of the parties to it, here Hinkle and Miller. Laughlin v. United States, 128 U.S. App.D.C. 27, 385 F.2d 287, 292 (1967), cert. denied, 390 U.S. 1003, 88 S.Ct. 1245, 20 L.Ed.2d 103 (1968); Smith v. United States, 224 F.2d 58, 60 (5th Cir.), cert. denied, 350 U.S. 885, 76 S.Ct. 138, 100 L.Ed. 780 (1955).

We do not find abuse of the discretion of the court as to the order of proof. The motion for severance of the substantive charges, asserted, as noted, on substantially identical grounds, was likewise subject to...