Peterson v. United States

• Decision Date: 08 July 1969
• Docket Number: No. 19369.,19369.
• Parties: Gerald D. PETERSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

411 F.2d 1074 (1969)

Gerald D. PETERSON, Appellant, v. UNITED STATES of America, Appellee.

No. 19369.

United States Court of Appeals Eighth Circuit.

June 11, 1969.

Rehearing Denied July 8, 1969.

Robert G. Duncan, of Pierce & Duncan, Kansas City, Mo., for appellant.

Calvin K. Hamilton, U. S. Atty., Kansas City, Mo., for appellee.

Before VOGEL, Senior Circuit Judge, and MATTHES and BRIGHT, Circuit Judges.

MATTHES, Circuit Judge.

Gerald D. Peterson was found guilty as charged by an indictment of entering the Sturgeon State Bank, Sturgeon, Mo., on or about October 1, 1967, with intent to commit a felony in the bank, that is, larceny of money and property, in violation of 18 U.S.C. § 2113(a). From the ensuing judgment of conviction entered on June 21, 1968, the appellant has appealed.¹

Appellant was represented in the district court by a retained lawyer experienced in the trial of criminal cases. After denial of post-trial motions, appellant's application for permission to appeal in forma pauperis was granted by the district court and appellant's trial lawyer was appointed and has represented him in this appeal.

Notwithstanding counsel's demonstrated ability in the trial, in the preparation of brief on appeal and oral argument, appellant has also filed a pro se brief in this court in which he presents contentions not raised by his attorney in the trial or here.

We first consider the assertions of error relied upon by appellant's counsel: (1) the evidence was insufficient as a matter of law to warrant submission of the case to the jury; (2) the court erred in allowing the admission of testimony and exhibits which were "fruits of the poisonous tree" in that such evidence emanated from a search which the district court earlier had invalidated on motion to suppress; (3) the Government failed to reveal evidence favorable to the appellant.

We review the pertinent evidence in sufficient detail to demonstrate that it was sufficient to present issues of fact for the jury's determination. Significantly, the case was tried on the uncontradicted testimony of Government witnesses, stipulations and documentary evidence. The appellant, offering no evidence, unsuccessfully attempted through cross-examination to cast doubt on the veracity of some of the Government's key witnesses.

The State Bank of Sturgeon is in the relatively small town of Sturgeon, Mo. (Population approximately 1,000). The deposits of the bank were federally insured. The bank was unlawfully entered on Saturday or Sunday night, September 30 or October 1, 1967. The entry was not detected Saturday night by the deputy sheriff who patrolled the area, but he did make the discovery at about 1:00 a. m. on Monday, October 2. The doors to two vaults had been "peeled" or pried open, and $1,406.09 in coins and currency belonging to the bank had been purloined. Additionally, 79 safety deposit boxes kept in one of the vaults had been opened, and money and other property valued at $4,100 were taken from the boxes. Among the stolen coins were 40 quarters, each of which bore the letters "D.F.C." on the tail side.²

These identification letters had been placed on the quarters with invisible ink by a representative of the F.B.I. The letters would become visible under an ulra-violet light. This practice of placing identification insignia on coins had been adopted by the F.B.I. as part of its efforts to combat the large number of bank robberies and burglaries occurring throughout the nation. After marking the 40 quarters they were wrapped and the bank tellers of the Sturgeon State Bank were given definite instructions never to use the marked quarters in the regular course of banking. However, in the event of a holdup an effort should be made to give the marked quarters to the robber. These instructions were complied with. The teller in charge of the marked quarters testified they were in her metal tray which was placed in the vault at approximately the time she left the bank at the closing hour on Saturday, September 30. These quarters, along with other coins and currency, were taken in the burglary.

We turn now to the evidence which incriminated the appellant.

According to a written stipulation signed by the appellant and his lawyer, Missouri automobile license No. PT1272 was issued on August 11, 1967, for a 1967 Plymouth two-door hardtop automobile. The title to the automobile was in the name of Geneva L. Bishop, 3241 McGee Street, Kansas City, Mo. Geneva L. Bishop is the mother of Delores Ann Lane, who is the common-law wife of appellant.

The undisputed evidence shows that appellant and two male companions were seen in the above described automobile in Sturgeon near the bank, first at approximately 9:00 p. m. Saturday night, September 30, and the second time a short while thereafter. An occupant of another automobile, who had a verbal altercation with the appellant around 9:00 p. m. over a minor incident, recorded the number of the license plate, which conformed to the one issued to Mrs. Bishop. This party identified appellant during the trial as the driver of the Plymouth automobile at the time and place stated above.

On the afternoon of October 2, 1967, the day the burglary was discovered, a lady teller of the Jackson County State Bank, Kansas City, Mo., sold bank money order No. 29115 in the amount of $7.44 and money order No. 29117 for $125.³ Both money orders were sold to a man who paid for them with ten rolls of quarters and 17 rolls of nickels. The purchaser also had a "wad" of currency and wanted to exchange the currency for bills of larger denominations. The teller could not accommodate him because she did not have the larger denominations available. The lady who handled the money order transactions was not able to positively identify the appellant during the trial as the man who purchased the money orders but stated that he "looked familiar."

In connection with the sale of the money orders the teller inserted the date of issuance and the amount of each, but the names of the payees and the names and addresses of the remitters were left blank. In the stipulation referred to above appellant admitted that "City of Kansas City" and "Harold E. Thornton," the names of the payees in money orders 29115 and 29117, respectively, and "A. S. Nickerson, 4259 E. 60 Terr." and "D. A. Lane, 4259 E. 60 Terr.", names and addresses of remitters appearing in 29115 and 29117, respectively, were in the handwriting of the appellant. Nickerson was the owner of the property at 4259 E. 60 Terrace which had been leased to D. A. Lane, appellant's common-law wife. Appellant and D. A. Lane resided at those premises. Harold E. Thornton was Nickerson's rent collecting agent.

On October 4, 1967, two F.B.I. agents, acting upon information received from Thornton on October 3, in accordance with a prearranged understanding, went to the Jackson County State Bank in Kansas City. After conversing with the cashier and the teller who had sold the money orders, they obtained the bank's two copies of the money orders and also all but one of the quarters used in part payment for the money orders. Upon exposing the quarters to the rays of an ultra-violet light, the letters "D.F.C." on the tail side of the quarters stolen from the bank were plainly revealed. The agents knew from the information received from Thornton that the $125 money order was in payment of one month's rent on the premises occupied by appellant. They also learned on October 4 that the $7.44 money order was in payment of water used on the same premises. The foregoing constitutes the relevant facts.

We are of the firm view that contrary to appellant's assertion his conviction did not result from "the piling of inference upon an inference." We have here an unbroken chain of telling circumstances, which tended to prove essential facts relating to the offense, from which the jury was duly warranted in inferring that appellant was the guilty party.

It is firmly settled that a conviction may rest upon circumstantial evidence. In Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), the Court considered a challenge to the instructions relating to circumstantial evidence. In affirming the conviction, Mr. Justice Clark, in speaking for a unanimous Court, held:

"Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more." Id. at 140, 75 S.Ct. at 137.

This and other courts have sustained convictions which rested upon circumstantial evidence. Doss v. United States, 355 F.2d 663, 667 (8th Cir. 1966); Sadler v. United States, 303 F.2d 664, 665 (10th Cir. 1962). See also United States v. Kye, 411 F.2d 120 (8th Cir. May 29, 1969); Wood v. United States, 361 F.2d 802 (8th Cir. 1966). For a clear exposition of the rule see DeVore v. United States, 368 F.2d 396, 399 (9th Cir. 1966), where the court stated in part:

"It is no objection that the evidence was circumstantial, and only tended to prove the fact of possession, rather than demonstrating it. * * * `The acceptability of the inference drawn turns on whether it has been founded upon "fact" regardless of whether such fact has been arrived at by direct or circumstantial evidence.\' (citation omitted) `The rule is not that an inference, no matter how reasonable, is to be rejected if it, in turn, depends upon another reasonable inference; rather the question is merely whether the total evidence, including reasonable inferences, when put together is sufficient to

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