Fulks v. United States
| Decision Date | 21 November 1960 |
| Docket Number | No. 16475.,16475. |
| Citation | 283 F.2d 259 |
| Parties | Alexander L. FULKS and Oren C. Miller, Appellants, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Sam Houston Allen, Van Nuys, Cal., for appellants.
Laurence E. Dayton, U. S. Atty., San Francisco, Cal., Robert E. Woodward, Asst. U. S. Atty., Sacramento, Cal., for appellee.
Before ORR, HAMLIN and MERRILL, Circuit Judges.
This appeal is taken from judgment of conviction of the crimes of theft of government property exceeding $100 in value, 18 U.S.C. § 641, and bribery of a government employee, 18 U.S.C. § 201. The principal question presented is whether there is evidence to support findings of guilt. The case was tried to the judge without a jury.
Appellant Fulks was a Los Angeles dealer in small airplane parts. Appellant Miller was an employee of a brewing company in Los Angeles and in slack season worked as a truck driver for airplane parts dealers, including Fulks. In the latter part of 1958, Fulks, on a competitive bid, purchased from the United States a substantial quantity of airplane parts located at McLellan Air Force Base in Sacramento.
The charges against Fulks relate to two occasions on which he was present at a base warehouse while his trucks were being loaded. Rose, a warehouseman at the base, was the principal government witness. At the time of the events to which he testified, he was lending undercover assistance to the FBI in its efforts to reduce the incidence of theft at the base. There are serious conflicts between his testimony and that of Fulks, but there is no doubt that the trial judge chose to believe Rose.
He testified that during the loading of Fulks' trucks on December 30, 1958, Fulks arrived at the base and was introduced to Rose, who showed him around the warehouse. During the course of their conversation, Fulks asked Rose whether Fulks' drivers had taken care of him and Rose replied that he had received $5 Fulks stated that it was his practice to give his drivers $100 a trip for expenses, allowing $20 to $30 for the loaders to see that they loaded properly. He then gave Rose $50. Upon returning to the loading area, Fulks saw three stacks of boxes including a crate containing 80 gyro horizon indicators. This material was stacked across the aisle from the material which was being loaded on Fulks' truck. Fulks stated to Rose that the three stacks of boxes were his and should be included in the load. Rose stated to Fulks that they were not his; that they were not included on the list of material to be loaded. He knew that they were not Fulks' since they were on the wrong side of the aisle. Fulks said, nevertheless, he would like to have the extra material. The instruments were then loaded and during the course of the loading Fulks gave Rose an additional $100. These instruments constituted the material which is the subject of the theft charged in the indictment. The indictment specified:
"80 gyro horizon flight type indicators and other aircraft instruments of a value of more than $100.00"
Other witnesses testified that by warehouse procedure material was placed on the north side of the aisle before it went on bid; that after sale the material was transferred to the south side of the aisle under lot number; that two pallets of instruments had disappeared from the north side of the aisle between the time that they had been placed there on December 30 and the time that their disappearance had been noted on January 2.
According to Rose's testimony, Rose and Fulks then conversed respecting Fulks' final truckload, which was to be picked up January 2, the following Friday. Fulks stated that...
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