Tolan v. United States

• Decision Date: 15 February 1967
• Docket Number: No. 20191.,20191.
• Citation: 370 F.2d 799
• Parties: James Bauer TOLAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

370 F.2d 799 (1967)

James Bauer TOLAN, Appellant, v. UNITED STATES of America, Appellee.

No. 20191.

United States Court of Appeals Ninth Circuit.

January 11, 1967.

Rehearing Denied February 15, 1967.

Finton J. Phelan, Jr., Agana, Guam, Willis D. Hannawalt, San Francisco, Cal., for appellant.

James P. Alger, U. S. Atty., Benjamin H. Kelly, Asst. U. S. Atty., Agana, Guam, for appellee.

Before JERTBERG, JOHNSEN^* and MERRILL, Circuit Judges.

JOHNSEN, Circuit Judge.

Appellant Tolan, with a co-defendant named Montanona, was tried and convicted in the District Court of Guam on a charge of stealing personal property of a value in excess of $50.00, belonging to an electrical contracting firm but located on land within the special maritime and territorial jurisdiction of the United States, 18 U.S.C. § 7. Tolan has taken an appeal from his conviction.

The crime involved was one under 18 U.S.C. § 13, on the assimilation made by that statute in respect to such lands of offenses under the Penal Code of Guam (here grand theft from §§ 484 and 487). The trial was the second one to which Tolan and Montanona had been subjected on the grand-theft charge. The first jury had been unable to agree on a verdict as to the theft charge, but it had returned a verdict of acquittal in favor of each of them as to a burglary charge which was included in the information. The offense of burglary alleged (assimilated from § 459 of the Penal Code of Guam) was the entering of a warehouse building located on the land, with intent to commit theft.

The principal question on the appeal is whether the acquittal of Tolan on the burglary charge as to entering the warehouse building precluded a retrying of him on the grand-theft charge as to taking property away from the land, on the basis that res judicata had occurred as to a determination of the alleged theft, within the doctrine of Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180 (1948). Under Sealfon, such res judicata preclusion would exist if the verdict on the burglary charge inherently "was a determination favorable to (Tolan) of the facts essential to conviction" of the grand-theft charge. 332 U.S. at 578, 68 S.Ct. at 239. The situation here cannot in our opinion be contended to be of that nature.

Under assimilated § 459, supra, Tolan would have been guilty of the burglary charge if he entered the warehouse building with intent to commit theft, regardless of whether any property was taken therefrom. And under assimilated §§ 484 and 487, supra, he would be guilty of the grand theft charged if he feloniously participated in having the property involved taken away from the land, irrespective of whether any burglary was involved in the obtaining of possession of it. Neither under the statutes referred to, nor under the instructions given by the court, was it open to the jury to resolve the charge of burglary on whether any taking away of property had occurred, or to resolve the charge of grand theft on whether any burglary had been committed. Thus, a verdict on the burglary charge could not constitute an inherent determination as to whether a subsequent theft had or had not occurred, any more than a verdict on the theft charge could constitute an inherent determination as to whether a preceding burglary had or had not been committed.

It can therefore not be contended that Tolan's acquittal of the burglary charge involved a determination by the jury favorable to Tolan of facts, or of an element of fact, essential to a conviction of him on the grand-theft charge. Indeed, the situation is without room for even an attempted argument that, whether the jury had a right to do so or not, this nevertheless must have been what it actually did — for if its verdict on the burglary charge had in fact involved a consideration and conclusion that Tolan was not a participant in the theft, it would hardly rationally have failed to conformingly close out the theft charge instead of leaving this stand open.

In this connection it further may be observed that while the evidence was in our opinion sufficient to have supported a verdict of guilty against Tolan on the burglary charge, as well as on the grand-theft charge, there existed some probative elements which a jury would be entitled to single out and on which it could make a distinction in respect to Tolan's guilt on the two offenses. More specifically, there was basis on which it might believe that, while Tolan may have joined as a participant in the theft venture, he did not intend, and was not aware until after the commission thereof, that burglary was to be engaged in, and that he therefore was entitled to be regarded as not having had a criminal intent as to this aspect.

Tolan was not present at the scene of the crime while the theft activities were being carried out. His pickup truck, however, was used, both in going to the site and in bringing back the property taken, on each of the trips involved. All of these trips began at and wound up at Tolan's home, with some of the property being placed outside the house as it was brought back, and some of it being placed inside where Tolan assisted in putting it under cover. The truck was driven by a navy serviceman, who had been working for Tolan in his off-duty time and had also been spending his leave-time otherwise at Tolan's place.¹

On the first trip, copper cable was gathered up by the navy serviceman and Montanona, which was located on the jurisdictional land but had been left outside the fenced yard surrounding the warehouse building. On the second trip, the fenced yard (but not the warehouse building...