Hansberry v. United States

• Decision Date: 06 October 1961
• Docket Number: No. 16810.,16810.
• Citation: 295 F.2d 800
• Parties: Dean R. HANSBERRY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

295 F.2d 800 (1961)

Dean R. HANSBERRY, Appellant, v. UNITED STATES of America, Appellee.

No. 16810.

United States Court of Appeals Ninth Circuit.

October 6, 1961.

Henry V. Cleary, Palm Springs, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Division, Los Angeles, Cal., Elmer Enstrom, Jr., Asst. U. S. Atty., San Diego, Cal., for appellee.

Before BARNES and HAMLEY, Circuit Judges, and MURRAY, District Judge.

BARNES, Circuit Judge.

This is an appeal from a jury verdict and judgment of the district court adjudging appellant guilty of embezzling public funds while he was a disbursing officer of the United States in violation of 18 U.S.C. § 653. Jurisdiction below rested on 18 U.S.C. § 3231, and here rests on 28 U.S.C. §§ 1291 and 1294.

Appellant was charged with embezzling $63,000 on unknown dates "between December 1955 and June 24, 1957."

Five errors are asserted:

(1) Insufficiency of the evidence.

(2) Error in refusing to strike all evidence of appellant's financial condition prior to June of 1957.

(3) Error in permitting the government to "prove" embezzlement by use of the "net worth theory."

(4) Insufficient instructions with respect to "net worth theory."

(5) Error in instructing the jury on reasonable doubt.

Appellant conceded at oral argument that none of these points were urged below, or protected in the trial court. Appellant thus relies upon a showing of plain error. (Fed.R.Crim.P. 52(b), 18 U.S.C.A.)

An appellate court need not review an alleged error not urged below, Lawn v. United States, 1957, 355 U.S. 362, note 16, 78 S.Ct. 311, 2 L.Ed.2d 321, in the absence of extraordinary circumstances, particularly where the court is not convinced an injustice was done a defendant. Lohmann v. United States, 9 Cir., 1960, 285 F.2d 50, 51; Ryan v. United States, 9 Cir., 1960, 278 F.2d 836, 841; Grant v. United States, 9 Cir., 1961, 291 F.2d 746, 748.

I — The Facts.

Appellant enlisted in the Marine Corps as a private in 1936. At the time of the offense charged, he had by successive promotions reached the rank of Captain.

On July 1, 1957, he was to retire from the Service. His assignment in early 1957 was disbursing officer of the 2nd Infantry Training Regiment. A Captain Pross was to relieve appellant in that capacity. The changeover was to take place on June 25, 1957.

The disbursing officer had his private office in a Quonset hut. In it was a safe in which the disbursing officer's cash was kept. The disbursing officer alone, according to regulations, knew the combination of this safe.

Within the same Quonset hut was a partitioned shower. At 10:00 P.M. on June 24, 1957, hours before the changeover in disbursing officers was to take place, appellant left his minor children, without a baby-sitter, at his home in Oceanside and drove twenty-one miles to his office at the base. An armed guard, Corporal Tetems, was on duty. Appellant gave this guard a slip of paper, and requested the Corporal to obtain a certain enlisted man's pay record. This required the Corporal to leave the premises. At 10:30 P.M., another guard (Corporal Goggins) came from the movies to relieve Corporal Tetems. The disbursing office was empty save for someone taking a shower. At 11:00 P.M., while sweeping the floor, Goggins noticed the safe door was open. Tetems shortly thereafter returned, being unable to obtain the pay records. The two Corporals called the Corporal of the Guard and endeavored to reach appellant at home by telephone. Within three hours the remaining cash in the safe was counted, and found to be $63,000 short of the $201,667.53 for which appellant was accountable.

The assistant disbursing officer, that same morning of June 25th, commenced balancing the cash book. It was from this balance that the shortage was determined.¹ This shortage was acknowledged by appellant that same June 25th, 1957. (Exhibit 11.) Meanwhile, Captain Hansberry's actions on the night of June 24th, 1957, are described in Appellant's Brief (pp. 28-30) as follows:

"On June 24th, 1957, the Captain returned from work in the afternoon, had dinner, then he and Freeman Dougherty went to 704 No. Strand Street, where they did manual labor on the house for approximately three hours. He returned home and was in the process of cleaning up when he received a telephone call. The caller represented himself to be the officer of the day, and stated that he wanted an emergency leave payment made to a man whose family had been involved in an automobile accident. The caller asked if the Captain would come out to the base and make the payment. The caller gave the Captain the name, serial number, and outfit of the man involved. (R.T. pp. 769, 770)

"There are approximately thirty officers in this 2nd Infantry Training Regiment, and the Captain did not recognize the voice of the caller. (R.T. p. 770)

"There were three minor children at home alone at that time; the Captain unsuccessfully sought to obtain a baby sitter, and left the children alone and went to the base. (R.T. p. 771) He drove to the base and arrived there in the neighborhood of 10:00 o\'clock. He walked up to his office in the area between the two disbursing offices, saw three enlisted men on the porch of the enlisted disbursing office, greeted them, and entered the front of his building. (R.T. p. 806)

"He walked in past the partition into the central portion of the office, and asked the guard on duty where the person to be paid was. He gave the guard the slip of paper on which was written the man\'s name, serial number and outfit, and requested that the guard obtain his pay record. As the guard was leaving he was asked for the number of the officer of the day who was stationed in the guard shack. (R.T. p 808) When the guard left he walked back into his own office, started looking through the phone book for the officer of the day\'s number, when he felt a gun in his back, and was told, `never mind the phone\'. He was also told not to turn around, do what he was told, and that the speaker had his girl in the car. (R.T. p. 809) He was instructed to open the safe. He did as he was instructed. He started putting money on top of the safe, was told to speed up when some one outside whispered that the movie was out. The man behind him then told him to leave the building and go straight to his car if he ever wanted to see his girl again. (R.T. p 810)

"He walked straight to his car, seeing no one. When he arrived at his car, someone in the backseat advised him to get in, and to start driving. He drove through the movie crowd, through the Camp San Onofre gate, and was directed to take the road towards Oceanside. When he arrived at the San Onofre Beach Club Road turnoff, he was directed to pull off toward the beach. He pulled into a dirt area and stopped. He was told to get out of the car. He got out, and was told to turn out the lights. He reached in and turned out the lights, turned, took a step, and was hit on the right side of the head. (R.T. pp. 812, 813) After a period of unconsciousness, he tried to get up, made some halfway attempts, and recalls a feeling or a sensation of rolling. (R.T. p. 813) Later he attempted to get up and down several times, and each time he commenced walking he had a tendency to fall off to his right. At this time he was on the sand, and actually did walk and fall in the water. (R.T. pp 813, 814) He called for help, remembers a light coming toward him, and he remembers talking to somebody, asking for the police, and asking if they had his girl. He remembers that they tried to help him up the cliff; he said that he could do it by himself. He got up to the car where he was asked some questions, and whether or not he could identify himself. Thereafter, his memory is not very accurate. The next he clearly remembers is that he was in an ambulance, and that the ambulance driver attempted to put his finger down the Captain\'s throat, pull his tongue out of his throat. (R.T. pp 814, 815)

"He was taken to the Naval Hospital at Camp Pendleton where he was retained one week. The only description of the man who held the gun on him, was that he had a heavyset, fat hand, which held a forty-five automatic, and the man was wearing a utility uniform. (R.T. p 819)."

The foregoing recital obviously represents the testimony most favorable to appellant. We do not propose to go over the more than 1,200 pages of testimony to give examples of this.² But we are required, not to read the evidence in the most favorable way to the appellant, but the most favorable way to support the judgment. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 68 L.Ed. 680; Gilbert v. United States, 9 Cir., 1961, 291 F.2d 586, 592; United States v. Shaffer, 7 Cir., 1961, 291 F.2d 689, 691; Campodonico v. United States, 9 Cir., 1955, 222 F.2d 310.

While no one of the statements or admissions referred to in note 2, supra, had any tremendously devastating effect on appellant's story — they were matters of sufficient evidentiary importance, particularly when viewed accumulatively, to have strongly influenced a jury's thinking. Appellant blithely totally ignores them, and many others of substantial import, in reconstructing the "facts." Typical of the offhand way in which appellant tosses aside certain extremely incriminating evidence against him, in his statement of the facts, is his one paragraph summary of twenty pages of testimony with respect to the $2,000 down payment on the 704 Strand Street property acquired by appellant and his wife. It reads:

"On page 977, in cross-examining the witness about the source of the down payment for the purchase of the property located at 704 Strand Street, the witness testifies that $2,000.00 of the down payment was represented by a money order which was sent to his wife by a relative. The witness is later impeached on this point and it is developed that he wired the $2,000.00 to his wife in September of 1956

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