Shibley v. United States

• Decision Date: 15 October 1956
• Docket Number: No. 14465.,14465.
• Citation: 237 F.2d 327
• Parties: George E. SHIBLEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

237 F.2d 327 (1956)

George E. SHIBLEY, Appellant, v. UNITED STATES of America, Appellee.

No. 14465.

United States Court of Appeals Ninth Circuit.

March 19, 1956.

Rehearing Denied May 9, 1956.

Certiorari Denied October 15, 1956.

COPYRIGHT MATERIAL OMITTED

Daniel G. Marshall, A. L. Wirin, Morris Lavine, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Manley J. Bowler, James R. Dooley, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before STEPHENS, FEE and CHAMBERS, Circuit Judges.

Certiorari Denied October 15, 1956. See 77 S.Ct. 94.

JAMES ALGER FEE, Circuit Judge.

The indictment in this case was returned on June 25, 1953, against Shibley and Charles Raymond Thompson, and was in four counts. Count 1 charged violation of 18 U.S.C.A. §§ 7,¹ 13,² and California Penal Code §§ 459-460³ namely, that Thompson entered a building on lands reserved for the exclusive use of the United States at El Toro Marine Air Station in Orange County, California, with intent to commit larceny therein. Shibley was charged with aiding and abetting Thompson in this offense. Count 2 set up a violation of 18 U.S.C.A. § 641,⁴ in that appellant and Thompson stole and knowingly converted to their own use property of the United States valued in excess of $100.00. Count 3 charged the violation of 18 U.S. C.A. § 641, whereby Shibley and Thompson received, concealed and retained with intent to convert to their own use and gain property of the United States which the parties knew had theretofore been stolen from the United States, said property having a value in excess of $100.00. Count 4 charged a violation of the conspiracy statute, 18 U.S.C.A. § 371. This count charged that Shibley and Thompson conspired to (a) enter a building on lands reserved for the exclusive use of the United States with intent to commit larceny therein, in violation of 18 U.S.C.A. §§ 7, 13 and California Penal Code, §§ 459-460, (b) steal, purloin and knowingly convert to their own use property of the United States of a value in excess of $100.00, and (c) conceal and retain with intent to convert to their own use and gain certain property of the United States which had been stolen from the United States, as each defendant then and there well knew, said property valued in excess of $100.00.

Thompson entered a plea of guilty to Counts 1 and 4 of the indictment before trial, and Counts 2 and 3 were dismissed as to him. Count 2 was also dismissed as to Shibley before trial. The cause was tried before a jury with Hon. Ben Harrison presiding. The jury failed to return a verdict on Count 1 as to Shibley, but did find him guilty on Counts 3 and 4. The jury also found the property involved had a value of less than $100.00. This appeal is from the judgment of conviction entered against Shibley on the verdicts returned.

Shibley, a lawyer, was employed as counsel for one Bennette in a court-martial proceeding. Prior to the termination of the pre-trial investigation therein, and on August 26, 1952, Shibley wrote a letter to the Commandant of the Marine Corps, complaining of the method by which the court-martial was conducted at El Toro Marine Base. As a result of this incident and in connection therewith, a Court of Inquiry was convened at the Base, at which Shibley was summoned to testify. At these proceedings, Shibley was asked to detail the matters of which he had written the Commandant. He refused upon various grounds, the validity of which are not in question in this appeal. A copy of the official transcript of these proceedings is the subject matter of the crimes herein charged. A corporal in the Marine Corps, working as a clerk-typist and court reporter, offered to help Shibley, and the latter said Thompson, the co-defendant, would contact the corporal. Thompson found out from the corporal where the completed transcript would be placed and by use of false identification cards entered the base and stole the transcript of the Court of Inquiry. Thompson had several photographic copies made, for which he paid $200.00, which he claimed he got from Shibley's secretary. Thompson testified that, at the direction of Shibley, he mailed the original to a news commentator in Washington, D.C., the copy to the attorney who represented Shibley at the trial and the negatives to Shibley himself. There was independent evidence of the mailing of these three parcels, as directed, and of the payment of $200.00 for the photographing. The main framework of the case was laid by the testimony of Thompson, the co-defendant. He testified that he talked with Shibley about the matter every day and acted under the direction of Shibley. There was considerable corroboration in the testimony of the corporal, the photographer, the postal inspector, and other witnesses.

This represents one of those point appeals where lawyers urge each of the incidents of a hard fought criminal trial in the hope that the cumulative effect will convince an appellate court that the trial was unfair and the trial judge partial to the government. At the outset, it may be said that, after a review of the record with the utmost care, this Court has come to the conclusion that the trial was fair and impartial. The cause was properly submitted to the jury for resolution of questions of fact involving direct and circumstantial evidence and depending upon the credibility which the jury chose to give to the witnesses, including the defendant.

The original brief of Shibley raises questions as to the validity of the judgment as follows: (a) No probative or substantial testimony in support of the judgment, so that the trial court erred in failing to grant motions for dismissal of the indictment and for acquittal; (b) Error in denying new trial on the suggestion of newly discovered evidence; (c) Exclusion of evidence claimed to show motive; (d) Refused instructions and instructions given in reference to the right of Shibley in re a transcript of a Naval Court of Inquiry; and (e) Denial of a right to fair trial and due process of law in that the trial court coerced the jury into a verdict of guilty. These will be discussed in the order set up.

A review of the record as a whole does not convince this Court that injustice was done by the conviction of defendant on Counts 3 and 4. The only question is the presence of substantial evidence in the record from which the jury could reach the conclusions it did. There can be no doubt that such was the case here. There was substantial evidence from which the jury could conclude beyond a reasonable doubt that defendant received, concealed and retained, with intent to convert to his own use and gain, the transcript of the Court of Inquiry, property of the United States, which had been stolen therefrom as defendant well knew. There was substantial evidence of an unlawful agreement between Thompson and defendant to enter a building on lands reserved for the exclusive use of the United States, with intent to steal and convert to their own use property of the United States and thereafter to conceal and retain that property with intent to convert it to their own use and gain, then knowing it to have been stolen. There was unlawful concert of action toward the consummation of this criminal design, and several overt acts were committed in furtherance of the conspiracy. It is true the testimony of Thompson, as a co-conspirator and the chief actor, was necessary to give continuity to the circumstances and was the sole support of a considerable portion of the case for the prosecution. By attacking the credibility and competence of this witness in this Court, appellant seeks to vitiate the evidentiary basis for the verdict of the jury.

In the briefs, appellant has tried to point up certain minor inconsistencies in the testimony of Thompson, as if this Court were concerned with credibility. Of course, we are not. Gage v. United States, 9 Cir., 167 F.2d 122, 124. This argument might have had weight with the jury, but it is out of place in an appellate brief. The jury apparently found Thompson credible or, at least, corroborated. And "where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable." Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916. Belated attack is made also upon the competence of Thompson to testify at all. This aspect is dealt with below.

The experienced trial judge ruled several times that the evidence was sufficient and refused to set aside the verdict or to grant a new trial. While this circumstance does not bind this Court, yet as the attitude of the trial judge was fair and impartial throughout and since he heard the evidence and observed the demeanor of the witnesses, including defendant, great weight must be accorded thereto.

A motion for new trial was made after verdict, based upon evidence which was claimed to be newly discovered. The trial court denied the motion. This is usually conclusive, as the only inquiry on the review of such a denial is whether or not there was a manifest abuse of discretion on the part of the trial judge. Rule 33, Federal Rules of Criminal Procedure, 18 U.S.C.A. Banks v. United States, 9 Cir., 147 F.2d 628, 629; Gage v. United States, 9 Cir., 167 F.2d 122, 125. The new witness, Yvonne Fuller, was living in the home of defendant as a parolee to his wife from the Youth Authority, as a juvenile delinquent, at the time of the incidents related at the trial. Prior to the trial, the girl had given a statement to the government which tended to corroborate the other evidence in the case of the government. After the trial, she gave another statement to the attorneys for defendant, which apparently...