Foston v. United States

• Decision Date: 13 February 1968
• Docket Number: No. 18830.,18830.
• Citation: 389 F.2d 86
• Parties: James FOSTON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

389 F.2d 86 (1968)

James FOSTON, Appellant, v. UNITED STATES of America, Appellee.

No. 18830.

United States Court of Appeals Eighth Circuit.

February 13, 1968.

Gordon G. Hartweger, St. Louis, Mo., for appellant and filed brief.

Robert H. Kubie, Asst. U. S. Atty., St. Louis, Mo., for appellee; Veryl L. Riddle, U. S. Atty., was with Robert H. Kubie, St. Louis, Mo., on the brief.

Before VAN OOSTERHOUT, MEHAFFY and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

The defendant, nineteen years of age, was indicted and tried before a jury on two counts: (1) unlawfully having in his possession a United States treasury check which had been stolen from the United States mails, knowing that the check had been stolen, in violation of 18 U.S.C. § 1708 (1964 ed.); (II) causing the check to be uttered and published as true with intent to defraud the United States, knowing at the time that the check was falsely altered and forged, in violation of 18 U.S.C. § 495 (1964 ed.). He was found guilty and sentenced under the Youth Correction Act, 18 U.S.C. § 5010(b) (1964 ed.).¹ He appeals, contending that the District Court erred in overruling his motion for a judgment of acquittal and that it improperly instructed the jury.

In Kotz v. United States, 353 F. 2d 312 (8th Cir. 1965),² this Court held that a sentence is not invalid under the Youth Correction Act because it may operate to subject a youthful offender to a longer period of restraint (six years) than that provided for the offense statute which he has violated (five years under Count I). Thus if Count I can be sustained, and it can, we need not consider the defendant's objections with respect to Count II. Cf., Isaacs v. United States, 301 F.2d 706 (8th Cir.), cert. denied, 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962); Barnes v. United States, 197 F. 2d 271 (8th Cir. 1952).

We first consider the defendant's contention that the evidence was not sufficient to justify the conviction on Count I.

Annie Underwood, a Social Security recipient, testified as follows. Her Social Security check was regularly delivered and placed in her mailbox at 2131 Division Street, St. Louis, Missouri, on the third day of each month. On returning from work on Thursday, November 3, 1966, she found that her mailbox had been broken open and was empty. She never received the expected check. Neither of the two "Annie Underwood" signatures on the reverse side of the check had been written by her.

Margie Hubbard's testimony may be summarized as follows. She knew the defendant three or four years, and saw him on November 4, 1966, at approximately three o'clock in the afternoon at "Mary's Cafe." At that time, the defendant had in his possession a Social Security check made out to "Annie Underwood." He told her "he broke in a mailbox on Division and got it." He asked her whether she knew where she could cash the check and she answered, "Over on Washington Avenue, over at the Exchange." The defendant then gave her the check which she took to the Service Exchange, accompanied by the defendant, Willie Spence and a third man. Willie Spence and the third man went into the Exchange with her. She signed Annie Underwood's name on the reverse side of the check, and attempted to cash it. She, Willie Spence and the third man were arrested at the Exchange. The defendant ran away before he could be apprehended.

The defendant's testimony may be summarized as follows. He had been in "Howard's Castle," known to Margie Hubbard as "Mary's Cafe," at about 2:15 P. M., on November 4th; and at that time, a man named "Bennie" asked him to cash a check. He looked at the check and told him "no, because it was a woman's check." Bennie then asked him "did I know any woman in the place, a woman. I told him no at first, then I looked around. I looked in the back. Margie and a couple of people was back there, * * * so I called Margie and I told her this fellow wanted to speak to her. Just when they started talking I turned around and looked out the window. A few minutes later I left." He further testified that he did not accompany Margie to the Exchange, but went to the home of a friend.

The friend testified and corroborated the defendant's alibi.

The fingerprints of the defendant were found on the check and were identified by experts as being those of the defendant. Numerous other unidentified fingerprints were also found on the check.

Two bystanders testified that they saw a man running through an adjacent parking lot at about the time that Margie Hubbard and the two other men were arrested. As they were unable to identify the man as the defendant, we do not view their testimony as having any probative value.

The conviction of the defendant on Count I thus rests squarely on the testimony of the accomplice, Margie Hubbard, that the defendant told her that he had stolen the check, and that he had given it to her to have it cashed.

The defendant, recognizing this, attacks the credibility of Margie Hubbard. He urges that her testimony was not subject to belief because: she was promised and given immunity for testifying; she was a woman of low intelligence; she was inconsistent in her testimony; she was motivated to implicate the defendant by a desire to protect Willie Spence.

The defendant also urges that his testimony is entitled to credence because: he had no motive to steal the check as he had quit his job on November 3rd, and had been paid in full; he had an alibi witness to prove that he had not, in fact, been outside the Service Exchange when the check was cashed; the fingerprints on the check were not significant in view of his admission that he had held the check briefly upon being requested to cash it.

The prosecution, on the other hand, attacks the defendant's credibility through the testimony of Secret Service Agents who interviewed him on November 5, 1966. They testified that the defendant then claimed he had never seen the check, that it had been several months since he had seen Margie Hubbard and that he was unable to recognize Margie Hubbard from a picture shown to him. The Agents conceded that the attitude of the defendant during the interrogation had been cooperative, and that he had consented to have his fingerprints taken.

In reviewing the sufficiency of the evidence, we view it, as we must, in the light most favorable to the prosecution. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Whiteside v. United States, 346 F.2d 500 (8th Cir. 1965), cert. denied, 384 U.S. 1023, 86 S.Ct. 1946, 16 L.Ed.2d 1025 (1966); Zacher v. United States, 227 F.2d 219 (8th Cir. 1955), cert. denied, 350 U.S. 993, 76 S.Ct. 542, 100 L.Ed. 858 (1956). It is not for us to determine the credibility of a witness, even though that witness may be an accomplice. Glasser v. United States, supra; Caminetti v. United States, 242 U.S. 470, 495, 37 S.Ct. 192, 61 L.Ed. 442 (1917). While the testimony of an accomplice must be carefully weighed before it is given credence, we cannot substitute our judgment for that of the jury, particularly where, as here, the jury was properly cautioned as to the reliability of such testimony.³

While a careful review of the record supports the defendant's contention that Margie Hubbard was a witness of low intelligence, who was frequently led by counsel for prosecution, the defendant's contentions that her testimony was induced by threats or promises, or that it was motivated by a desire to protect Willie Spence is not supported by substantial evidence. The alleged inducement did not occur until after November 4, 1966, the date she first gave a statement to agents of the Secret Service implicating the defendant, Willie Spence and herself. Her statement on that date closely paralleled her testimony at the trial. She told the Agents: "On 11-4-66 I was sitting in Howard Castle on Franklin Avenue, a restaurant, when a man called James (last name not known) whose sister is Pearlie May who lives at 2210 Cass, Apartment 1101, came into the restaurant and asked if I could get a check cashed for him. I asked him where he got it and he said `a mailbox on Division.' I told him that I would try to cash the check. * * *" Under such circumstances, the jury was justified in accepting her testimony.

On the other hand, we cannot say that the jury erred in refusing to believe the defendant's story as to how his...