Embree v. United States, 18393.

• Decision Date: 27 June 1963
• Docket Number: No. 18393.,18393.
• Citation: 320 F.2d 666
• Parties: Melvin Belton EMBREE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

320 F.2d 666 (1963)

Melvin Belton EMBREE, Appellant, v. UNITED STATES of America, Appellee.

No. 18393.

United States Court of Appeals Ninth Circuit.

June 27, 1963.

Edgar Paul Boyko, Los Angeles, Cal., and Leroy Donkin, Santa Monica, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section, Russell R. Hermann, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before POPE, HAMLEY and MERRILL, Circuit Judges.

HAMLEY, Circuit Judge.

Under the first count of a four-count indictment, Melvin Belton Embree and Charles Franciscos Llopis, Jr., were charged, tried, convicted and sentenced for receiving and possessing goods stolen from interstate commerce in violation of 18 U.S.C. § 659. Under the second count of that indictment Embree, Llopis, Adkins Taylor and James Clark were charged and tried, and Embree and Llopis were convicted and sentenced, for engaging in a conspiracy to sell goods stolen from interstate commerce in violation of 18 U.S.C. § 371. The trial was to the court sitting without a jury.

Embree appeals, contending that on neither count is the finding of this guilt supported by substantial evidence.

Count one pertained to eighty-four cases of Grand McNish Scotch whiskey and several cartons of radio equipment and other goods which were stolen in Los Angeles while in transit by truck from points in Texas and Oklahoma to consignees in Los Angeles. Count two pertained to the same eighty-four cases of whiskey. The violations were alleged to have occurred in January, 1962.

The evidence relied upon by the Government as proving that Embree knowingly received or possessed some of these stolen goods, and engaged in a conspiracy to sell some of the whiskey, knowing it to have been stolen, considered in the light most favorable to the Government, tended to establish these facts:

(1) Early in January, 1962, Embree had a conversation with one David Schuman from whom he was in the process of purchasing a car. During this conversation Embree mentioned that he knew someone who had twenty or thirty cases of whiskey for sale and that he would find out how much that person wanted for it.

(2) On the following day Embree called Schuman on the telephone to discuss the automobile transaction. During that conversation Schuman asked Embree about the price of the whiskey to which the latter had referred on the previous day. Embree gave Schuman a price but Schuman told Embree that it was too much "and I didn't want to fool with it."

(3) On the late morning of January 24, 1962, for the purpose of arresting Embree, a police officer of Vernon, California, and three agents of the Federal Bureau of Investigation went to Embree's home in Los Angeles. Two of the F.B.I. agents went to the front door and the other agent and the police officer took positions on opposite sides of the house, towards the rear. One of the agents "banged" on a door, and the F.B.I. agent on the opposite side of the house shouted that he was an F.B.I. agent and to "halt." Embree then "came running around the corner of the house," where the police officer was standing. This officer, who had his gun out, cried, "Police officer, you are under arrest. Halt." Embree then stopped running, backed up two or three feet or went around the corner of the house, put his hands on the wall and called out to a woman in the house, "Call my attorney." The record does not indicate whether there was a warrant for Embree's arrest, and, if so, whether it was displayed to Embree.¹

The facts stated above, considered separately or...