U.S. v. Anderson

• Decision Date: 26 November 1979
• Docket Number: 79-5093,Nos. 79-5092,s. 79-5092
• Parties: UNITED STATES of America, Appellee, v. Graham Franklin ANDERSON, Appellant. UNITED STATES of America, Appellee, v. Claude Vance COOLEY, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 504

611 F.2d 504

UNITED STATES of America, Appellee, v. Graham Franklin ANDERSON, Appellant.

UNITED STATES of America, Appellee, v. Claude Vance COOLEY, Appellant.

Nos. 79-5092, 79-5093.

United States Court of Appeals Fourth Circuit.

Argued Oct. 2, 1979.

Decided Nov. 26, 1979.

William L. Sitton, Charlotte, N. C., Irving B. Tucker, Jr., Raleigh, N. C., Michael Bailey, Charlotte, N. C. (Allan A. Bailey, Charlotte, N. C., on brief), for appellants.

Harold J. Bender, Asst. U. S. Atty., Charlotte, N. C. (Harold M. Edwards, U. S. Atty., Asheville, N. C., on brief), for appellee.

Before FIELD, Senior Circuit Judge, and HALL and MURNAGHAN, Circuit Judges.

MURNAGHAN, Circuit Judge:

Graham Franklin Anderson and Claude Vance Cooley were jointly tried on a two count indictment and convicted by a jury on count one for violating 18 U.S.C. § 2113(b) (bank larceny) and on count two for violating 18 U.S.C. § 371 (conspiracy). Anderson and Cooley each received the maximum term of imprisonment under each count, with the sentences under count two to be served consecutively to those imposed under count one. Appellants contend the trial judge erred in overruling motions for judgment of acquittal on both counts and, alternatively, in not requiring the government to elect as between multiple conspiracies proved at trial.

Evidence adduced at trial tended to establish the following:

Between July 2, 1976 and February 19, 1977, "trapping devices" were discovered inside the night depositories of eight banks in the state of North Carolina. The trapping devices consisted of rectangular plastic slings and weights either rolls of pennies or lead fishing weights. By use of metal strips, and in at least one instance a hacksaw blade, and cellulose tape, the device was attached to the interior of the depository chute in such manner that it "caught" a deposit which was subsequently retrieved by the person or persons responsible for attaching the device. In some instances the trapping device was discovered by bank patrons about to make or having made a night deposit. In other instances the device was discovered by bank personnel in the course of normal procedures for clearing the night depository vaults during normal banking hours. Most of the trapping devices were inserted during weekends.

Count one of the indictment charged appellants with the larceny of bank deposits in the manner described above from a branch of the Northwestern Bank in Lenoir, North Carolina, on December 11, 1976. Count two, the conspiracy charge, alleged as overt acts the commission of the Lenoir larceny charged in count one and six additional larcenies or attempted larcenies:

                OVERT
                 ACT   DATE               BANK AND LOCATION
                -----  ----               -----------------
                  1    7/2/76-7/6/76      First Citizens Bank and
                                            Trust Co
                                          New Bern
                  2    9/3/76-9/7/76      Southern National Bank
                                          Charlotte
                  3    9/4/76             Northwestern Bank
                                          Statesville
                  4    9/24/76-9/25/76    Northwestern Bank
                                          Mt. Airy
                  5    11/20/76-11/21/76  Northwestern Bank
                                          Shelby
                  6    12/11/76           Northwestern Bank
                                          Lenoir
                  7    2/18/77-2/19/77    First Union National Bank
                                          Charlotte
                

The evidence at trial established that the seven larcenies or attempted larcenies actually occurred. Additionally, there was proof of the commission of a larceny similar to those alleged in count two of the indictment of the Southern National Bank branch in Rockingham, North Carolina, during the weekend of December 4-5, 1976. The issue central to the contention of both defendants is whether their respective connections with the Lenoir larceny and with the conspiracy to steal from the eight banks were sufficiently established to permit jury conclusions beyond a reasonable doubt.

Expert opinion testimony tended to prove that:

(1) All eight of the trapping devices introduced at trial (as well as twenty-two other devices, or parts of devices which had been recovered from other banks in North Carolina, Alabama, Florida, Louisiana and Mississippi) were "designed by the same person or persons working together"; ¹

(2) The metal strips incorporated into the devices recovered from the Northwestern Bank in Mt. Airy (overt act # 4), the Northwestern Bank in Lenoir (count one and overt act # 6) and the Southern National Bank in Rockingham were cut by the "exact same tool" ;

(3) A hair from a human head recovered from the tape used to attach the trapping device inside the night depository of the First Citizens Bank and Trust Company in New Bern (overt act # 1) exhibited the same microscopic characteristics as hair samples taken from Anderson;

(4) Anderson's fingerprints were lifted from two penny wrappers which were recovered from the night depository of the Northwestern Bank in Mt. Airy (overt act # 4);

(5) Cooley's left index fingerprint was lifted from beneath the tape and off the metal strip used to secure the trapping device inside the depository of the First Union National Bank in Charlotte (overt act # 7).

Testimony at trial tended to prove that Anderson had a conversation in February or March 1976 with a professional locksmith, Harry Driver, during which Anderson "expressed a desire to learn something about locksmithing and bank security equipment." Driver did not give any information to Anderson but he did advise Anderson of a correspondence school through which an appropriate course of study could be pursued.

Eleanor Tucker lived with Anderson during 1976 and 1977. ² She testified that appellants took frequent weekend trips together although Anderson never revealed to her the purpose or destination of any of such trips. She further stated that Anderson saved and rolled pennies and that for a part of the time they lived together, including 1976, Anderson was unemployed.

On November 29, 1976, Anderson purchased for $3901 in cash a 1973 Cadillac automobile. On January 13, 1977, Anderson purchased for $5950 in cash a Ford van. In the course of the latter purchase, which occurred in New Orleans, Louisiana, Cooley, who was accompanying Anderson, actually retrieved from the trunk of the Cadillac the cash used to consummate the transaction. Five days later, on January 18, 1977, in Greenville, Mississippi, Anderson paid cash for two mobile CB units which were installed in the Cadillac and van, respectively.

With Anderson's consent FBI agents searched Anderson's residence and Cadillac automobile on March 7, 1977, and they observed but did not seize two CB Handi-Talkie radios, six rolls of pennies and several unused penny wrappers. A consent search on the same day of Anderson's mother's residence, next door to that of Anderson, revealed a key duplicating machine and several blank keys. Also on March 7, 1977, after waiving his Miranda rights, Anderson gave a statement to investigators in which he denied any involvement in any scheme of larcenies from bank night depositories. He stated he was unemployed; he could not recall being in Mt. Airy, North Carolina, within the past ten to fifteen years and did not know how his fingerprints could have been found on penny wrappers recovered from the Mt. Airy depository. He at first stated that the Cadillac automobile belonged to his girlfriend's father but subsequently admitted purchasing the car for cash. He also admitted purchasing a CB radio in Rockingham, North Carolina on December 4, 1976.

James Mackey Green had a conversation with Cooley in the spring of 1977 in which bank night depositories were discussed and in which Cooley stated "he had heard" how to get into such depositories. ³

Cross-examination by defense counsel elicited from several witnesses plausible explanations consistent with the defendants' innocence of the transactions and incidents described in the course of the government's direct examination of such witnesses. Motions for judgment of acquittal made at the close of the government's evidence were denied by the trial court. Neither appellant adduced any evidence.

Two issues are before us on appeal. The first is whether the government's accumulation of largely circumstantial evidence was sufficient to permit the jury to find appellants guilty beyond a reasonable doubt. The second is whether the government's proof established the existence of two or more conspiracies rather than the one conspiracy charged in the indictment and, if so, whether either appellant was thereby prejudiced.

We stated in United States v. Sherman, 421 F.2d 198, 199 (4th Cir.), Cert. denied 398 U.S. 914, 90 S.Ct. 1717, 26 L.Ed.2d 78 (1970):

In considering the sufficiency of the evidence, we do not determine whether it convinces us of guilt beyond a reasonable doubt, but only that the evidence would permit the triers of fact to find the defendant guilty beyond a reasonable doubt. United States v. Ragland, 306 F.2d 732 (4th Cir. 1962) cert. den. 371 U.S. 949, 83 S.Ct. 504, 9 L.Ed.2d 498. The verdict of the jury must be sustained if there is substantial evidence, taking the view most favorable to the government, to support the findings of guilt.

We agree with appellants that the evidence was insufficient as a matter of law to sustain their convictions as to count one of the indictment and that judgments of acquittal as to count one should have been entered at the close of the government's case. However, in so agreeing with appellants we reach that conclusion by a different route than that suggested by appellants.

In U. S. v. Corso, 439 F.2d 956 (4th Cir. 1971) (Per curiam ), the defendant appealed his conviction under 18 U.S.C. § 2113(a) for entering a Federal Credit Union with intent to commit larceny. The most damaging evidence against defendant in that case was the presence of his fingerprints on the cover of a matchbook. The matchbook had been folded...