Robinson v. United States, 11523

• Decision Date: 29 June 1949
• Docket Number: No. 11523,11524.,11523
• Citation: 175 F.2d 4
• Parties: ROBINSON v. UNITED STATES. BLEKER v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

175 F.2d 4 (1949)

ROBINSON v. UNITED STATES.

BLEKER v. UNITED STATES.

Nos. 11523, 11524.

United States Court of Appeals Ninth Circuit.

May 26, 1949.

Rehearing Denied June 29, 1949.

Morris Lavine, Los Angeles, Cal., for appellant Robinson.

Kenny & Cohn, Robert W. Kenny, Morris E. Cohn and Robert S. Morris, Jr., Los Angeles, Cal., for appellee Bleker.

James M. Carter, U. S. Atty., Ernest A. Tolin and Ernest J. Zack, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before MATHEWS and HEALY, Circuit Judges, and BLACK, District Judge.

BLACK, District Judge.

The two appellants above-named were convicted at San Diego, California by a jury of charges of violation of Title 18 U.S.C.A. § 80 now §§ 287, 1001, the appellant, John S. Bleker, Jr., having been convicted under count 3 of the indictment and the defendant, Ralph L. Robinson, having been convicted of counts 2, 3 and 4 thereof. The indictment was returned by the grand jury at Los Angeles against the above-named appellants and also against an additional defendant, Robert S. Gleason. Gleason just before the trial had changed his plea as to counts 2 and 3 from not guilty to guilty. Following the jury's verdict the above-named appellants moved for a new trial, which was denied. The appellant Bleker was sentenced to pay a fine of $5,000 upon his conviction on count 3 and the appellant Robinson was sentenced to pay a fine of $5,000 on count 2, to a year's imprisonment on count 3, and to pay a fine of $5,000 on count 4. They there upon respectively appealed to this court.

The indictment against the above-named appellants and said Gleason contained four counts. The first count charged a conspiracy under Title 18 U.S.C.A. § 88 now § 371 on the part of the three and others unknown. The appellant Bleker was a major in the United States Marine Corps Reserve at Camp Pendleton, Oceanside, California. The appellant Robinson was a captain in the United States Marine Corps Reserve and assistant to the appellant Bleker at Camp Pendleton Post Exchange, and the defendant Gleason was a civilian employed at such post exchange as office manager. He had previously been a sergeant serving under Major Bleker.

Count 1 charged that such conspiracy was to defraud the United States of the honest, conscientious, faithful and disinterested service of the defendants, Bleker and Robinson, in discharge of their duties and functions as aforesaid and to embarrass the lawful functions of the Army, Marine Corps and Navy in supervising the sale of merchandise of post exchanges and to violate Title 18 U.S.C.A. § 80 by concealing and covering up material facts within the jurisdiction of such departments and agencies of the United States by trick, scheme and device and by making and causing to be made false statements and representations in matters within the jurisdiction of such departments and agencies.

Counts 2, 3 and 4 charged substantive offenses in violation of Title 18 U.S.C.A. § 80. Both appellants were acquitted of the conspiracy count, appellant Bleker being convicted of count 3, as above, and appellant Robinson being convicted of counts 2, 3 and 4, as previously stated.

The appellant Bleker in his brief urges these two points:

1. That the evidence was insufficient to support a conviction of Bleker as to count 3.

2. That the court erred both in the admission and rejection of various items of evidence which it is argued prejudiced the appellant Bleker.

The brief of the appellant Bleker clearly and concisely states the two points raised on his appeal and the reasons therefor. His thirteen specifications of error can fairly be applied to one or the other of such two points. The same cannot be said as to the brief of appellant Robinson. Fifteen specifications of error are set forth in appellant Robinson's brief but by subdivision such fifteen specifications of error become apparently thirty-eight. The brief itself more or less argues each of such fifteen specifications and each of such subdivisions and in addition argues many other alleged errors under such specifications or subdivisions as well as noting in the brief proper and appendix additional alleged errors, totaling for brief and appendix more than one hundred.

The contentions of appellant Robinson cannot be grouped as falling within any reasonably small number of main propositions. However, apparently his main reliance, while without abandonment of the numerous other contentions, seems to be upon the following, although discussed in his brief in a different order:

1. That the evidence was insufficient to sustain the verdicts of guilty on any count.

2. That the admission as against appellant Robinson of the testimony of the witnesses complained of by appellant Bleker under his point two was prejudicial as to Robinson.

3. That counts 2 and 4 were insufficient to state any offense.

4. That the trial judge prevented cross-examination by Robinson's counsel of Colonel Selden except at a time when Colonel Selden's testimony was only admitted as against Bleker.

5. That Robinson was only subject to court-martial and not to grand jury indictment or trial under the indictment.

6. That the acquittal of the conspiracy count made the convictions of the substantive counts void.

None of the numerous other objections of Robinson were abandoned. However, none of them have merit. To discuss them would make this opinion overwhelmingly voluminous. For instance, in the brief and appendix appellant Robinson contends that one short portion of the instructions given by the trial judge was prejudicial error and that the refusal of twenty requested instructions likewise each constituted similar error. However, at the trial no exception was taken to such portion of the instructions given by the court and as to the twenty refusals urged in the brief as prejudicial error there was only exception at the trial to the refusal of four of such twenty.

A reading of the instructions given disclosed that taken as a whole they were adequate and fair and free from prejudicial error. Corroborative of our view of the instructions is the fact that counsel for appellant Bleker took no exceptions at the trial to the instructions given or to the refusal of any requested and makes no mention on this appeal as to any alleged error as to instructions. As to the four instructions requested by Robinson and not given, to which exception was taken, so much of such requests as were proper were included in substance in the charge given. The giving of the short portion of the instructions now complained of and the refusal of sixteen requested instructions not given, concerning which there was no exception taken below, in no event would have constituted prejudicial error even had there been exception thereto taken at the trial.

In the opening and reply briefs in behalf of appellant Robinson alone approximately three hundred fifty cases have been cited as well as approximately fifty textbook and encyclopedic references. Such number prevents any reasonable attempt to here discuss such mass of cited authorities. While many of the contentions urged by appellant Robinson in his opening and reply briefs are based on some of his great number of objections taken at the trial a large part of the contentions now made are presented for the first time on this appeal.

The trial consumed nine long trial days of many more trial hours than would normally be used in that number of days. We have examined the resultant very lengthy record, considering each and all of the respective contentions, whether or not discussed in this opinion, and find no prejudicial error as to either appellant.

While, therefore, the judgments as to Bleker and Robinson should be affirmed as to each it is appropriate that what appear to be the main contentions of respective appellants should be here considered.

First, the contentions of insufficiency of the evidence should be mentioned. Each appellant devotes much of his brief to the contention that the evidence was insufficient to support the verdict or verdicts as to him. An analysis of the evidence introduced during the trial does not support such contentions of either appellant. While much of the government's testimony was contradicted by defendants and their witnesses there was as to each appellant and as to each count an issue of fact for the jury. The direct evidence was considerably less against Bleker than Robinson. However, the jury had the right to draw very damaging inferences against Bleker as to not only count 3 but as to the other counts as well as against Robinson. As to Robinson it may be said that there was a great abundance of evidence to support the verdict as to each count upon which he was convicted. The surprise is not that the jury convicted Robinson of counts 2, 3 and 4. Rather upon the record it is surprising that the jury did not also convict him of count 1 — the conspiracy count.

Without detailing the evidence it may be said that Bleker's first point of insufficiency of the evidence to authorize the jury's verdict of guilt as to him as to count 3 cannot be sustained and, of course, Robinson's similar contentions as to counts 2, 3 and 4 as to him must be rejected.

The remaining point urged by Bleker, as earlier stated, is alleged prejudicial error in admission and rejection of evidence as to Bleker. An analysis of the entire record establishes that all the evidence admitted against him was either unquestionably admissible or at least admissible within the discretion of the trial court in connection with count 1 — the conspiracy count. The evidence admitted was certainly properly admitted against Robinson as acts within the scope and purpose of the conspiracy charged and also to show evil intent or purpose. Aside from such evidence complained of, there was clearly a sufficiency to have justified the jury in finding the existence of the conspiracy charged in count 1 against Robinson, Bleker and Gleason. Therefore, such...