Gilbert v. United States

Citation307 F.2d 322
Decision Date08 August 1962
Docket NumberNo. 17244.,17244.
PartiesGeorge GILBERT and Jess Brown, Appellants, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

H. Stanton Orser, San Francisco, Cal., for appellant.

Cecil F. Poole, U. S. Atty., William J. Cooney, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before HAMLIN and DUNIWAY, Circuit Judges, and ROSS, District Judge.

HAMLIN, Circuit Judge.

After a jury trial in the United States District Court for the Northern District of California, Southern Division, George Gilbert, Jr., and Jess Brown, appellants herein, were convicted of aggravated mail robbery and possession of stolen mail under 18 U.S.C.A. §§ 2114 and 1708, respectively. They were each sentenced to a mandatory 25 years imprisonment for the aggravated mail robbery and 5 years for possession of stolen mail, the sentences to run concurrently. They filed a timely appeal to this court which has jurisdiction under 28 U.S.C.A. § 1291.

On brief appellants make three specifications of errors: (1) The court erred in its instruction to the jury with respect to the crime proscribed by 18 U.S.C.A. § 2114 (aggravated mail robbery); (2) the arrest of appellants was unlawful, the search of the dwellings of each appellant was unlawful, and therefore the fruits of such search were improperly received into evidence; and (3) the evidence was insufficient to justify the conviction.

The facts taken in the light most favorable to the government are summarized below. On November 1, 1960, the Federal Reserve Bank of San Francisco prepared six registered parcels containing currency and coin to be sent to the Bank of America N.T. & S.A., Half Moon Bay, California. These six pouches were dispatched with other mail from the United States Post Office, Rincon Annex, San Francisco, at about 5 a. m. on November 2, 1960, for transportation by the San Francisco-Santa Cruz Star Route Trip No. 1. The mail truck driver was Floyd Bateman. En route to Half Moon Bay Bateman stopped at the post office in Moss Beach, California, at approximately 6:30 a. m. After parking his truck in front of the post office he took four pouches of first class mail from the truck for delivery to the Moss Beach post office. As he unlocked the door to the post office two men rushed at him with drawn pistols and one said, "Get back in there. We want the dope on this stuff." Bateman instinctively turned around and swung, hitting one man on the side of his neck. One of the men stated, "We ought to kill the son-of-a-bitch." Bateman dropped the mail pouches and put up his hands. One of the men said to Bateman, "We don't want to hurt you. There is no sense in your getting killed over something that doesn't belong to you." They then forced Bateman to go to a corner of the post office and lie down, whereupon they proceeded to tie his hands and legs and put a mail sack over his head. Both men were wearing masks, hats and white gloves. One of them had on a dove-colored raincoat. The other was wearing a brown sport coat. A government witness, Mrs. Crowley, stated that she could see the Moss Beach post office from the front window of her house, and that a little after 6:30 on the morning in question she noticed a car at the post office with a dark body and a light top. She also saw two people get into the car, one dressed in light clothing and the other in darker clothing. One of the men had on white gloves.

On November 3, 1960, an inspector Birdsall of the San Francisco Police Department received information from a reliable informant that the participants in the mail truck robbery were Brown and Gilbert.1 Photographs of them were obtained. Information was received that Brown was living at 915 Fulton Street, San Francisco, with another person. The police were also informed that Brown had given his parole officer a different address and that his parole officer had been looking for him. The officers went to the vicinity of the Fulton Street address and found parked on that block a Cadillac automobile with a dark lower portion and a light top. It was learned that this automobile was registered to Jess Brown at 915 Fulton Street, San Francisco. They were informed that the owner of the premises, one Peggy Armstrong, would be home at 8 o'clock in the evening. The officers returned about that time, talked to Peggy Armstrong, and asked her if there was a person residing there by the name of Jess Brown. She replied, "Yes, in Apartment 4." Peggy Armstrong said that she was in charge of the premises and that the people residing there were friends and relatives. When asked whether it was possible for the officers to go to Apartment 4, she replied, "Yes, by all means; I will go up there and let you in." She told the officers that Gilbert and Brown were in the room at that time. They went to Apartment 4 with Peggy Armstrong who placed a key in the lock and called, "Jess". At the same moment the door opened and Brown was standing by the side of the door when the officers entered. They also saw George Gilbert, and both men were placed under arrest.

A search was made of Brown's apartment and a cardboard box was found in a dresser drawer which contained a large number of quarters and dimes. In a white cloth under a rug a package was found which contained a large number of $20, $10 and $5 bills. Brown and Gilbert denied any knowledge of the ownership of this money, as did Peggy Armstrong. The total amount of money obtained from the Fulton Street premises was $8,919.03. Brown later changed his story to say that an acquaintance known to him only as "Bob" brought the currency to the apartment and asked Brown to keep it for him, stating that he would return for the money on the following Saturday. Brown further said that he and Peggy Armstrong had helped to wrap and hide the currency. He later made another change in his story concerning this money. Also found in Brown's apartment was a dove-colored raincoat similar to the one worn by one of the men who robbed the post office.

Brown told conflicting stories in explanation of Gilbert's presence in the apartment and of when he had recently seen Gilbert.2 Moreover, Gilbert's story as to his presence in Brown's apartment was at variance with Brown's statement.

Gilbert said that he had no money at his residence, and he gave the officers permission to search the premises. The officers went to Gilbert's home and received permission from Mrs. Gilbert to look for the money that was stolen from the mail truck. A small amount of money was found under the washing machine, and over $9,000 in currency was discovered in the meat freezer compartment of the refrigerator. Mrs. Gilbert denied having any knowledge of this money. Later she testified that a large portion of the money was her savings. Gilbert testified that the money found in his home was the proceeds from gambling. He also testified that he had been unemployed for more than a year prior to the robbery, and he admitted having had a prior conviction for burglary.

At the trial Bateman definitely identified Gilbert as being one of the two men who robbed him, and he stated that Brown "looks like the other man."

It was shown at the trial that the total money lost in the robbery included $12,000 in $20 bills, $7,000 in $10 bills, and $4,000 in $5 bills. In addition there was $1,050 in coin — $500 in quarters, $500 in dimes, and $50 in pennies. The money recovered from Brown's apartment and from Gilbert's residence included $9,740 in $20 bills, $5,450 in $10 bills and $2,815 in $5 bills, as well as $196.75 in quarters, $163.60 in dimes and $8.68 in pennies. The currency recovered from each residence included some new bills in unbroken serial number sequence.

From the above brief summary of the evidence it is clear that there was more than ample evidence to justify the conviction of each of the appellants and that there is no merit to appellants' Specification of Error number 3.3

Concerning Specification of Error number 2 that the arrest of appellants was unlawful, that the search of the dwellings of each of the appellants was unlawful, and that the fruits of such search were improperly received in evidence, it is likewise apparent that this Specification of Error lacks merit. The evidence of the information received by the police prior to the time they went to Brown's apartment (most of which was received in the absence of the jury) clearly shows that the officers had probable cause to make the arrest of Brown and Gilbert at Brown's apartment. In ruling at the time of the trial upon appellants' contention that there was no reasonable or probable cause for the making of the arrest, the district judge, after reviewing all of the information that the officers had prior to the arrest, stated that "any officer who failed to make an arrest after the earliest opportunity would be subject to rather substantial criticism as having been fairly derelict in his duty." We agree.

If the officers had probable cause to arrest Brown and Gilbert, there of course can be no merit to a contention that the search of Brown's apartment was unlawful. It was a search made incident to a valid arrest and was therefore proper, and the fruits of the search were properly admitted into evidence.4

No pre-trial motion to suppress any evidence was made by appellants pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U. S.C.A. The motion to suppress is to be made prior to trial, but in the...

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