U.S. v. Bess, 78-5095

• Citation: 593 F.2d 749
• Decision Date: 11 April 1979
• Docket Number: No. 78-5095,78-5095
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Earl BESS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 749

593 F.2d 749

UNITED STATES of America, Plaintiff-Appellee, v. Robert Earl BESS, Defendant-Appellant.

No. 78-5095.

United States Court of Appeals,

Sixth Circuit.

Argued Oct. 13, 1978.

Decided Feb. 28, 1979.

As Amended April 11, 1979.

Thomas L. Osborne, Osborne, Deatherage & Fletcher, Hopkinsville, Ky., for defendant-appellant.

Albert Jones, U. S. Atty., James H. Barr, Asst. U. S. Atty., Louisville, Ky., for plaintiff-appellee.

Before CELEBREZZE and KEITH, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

KEITH, Circuit Judge.

A jury convicted appellant Robert Earl Bess, of concealing and retaining United States Government property worth over $100 while knowing that the property had been unlawfully converted. 18 U.S.C. § 641. As this case presents yet another instance of prosecutorial misconduct by the United States Attorney's office for the Western District of Kentucky, we reverse and remand for a new trial.

I

The facts of this case are strikingly similar to the facts in the famous case of Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). The Fort Campbell Military Reservation encompasses several thousand acres in Tennessee and Kentucky. This area is used by the military for maneuvers and gunnery practice. When not used as an artillery range, the area is open to the public. Local residents hunt, fish, picnic and, apparently, occasionally pick up shells and scrap metal in the area. It was this last activity, the picking up of shells and scrap metal, that gave rise to the prosecution which results in this appeal.

For over twenty (20) years various members of appellant's family, including children, would go to Fort Campbell on a regular basis to pick up shells and scrap metal. These "junking trips" were family affairs. The family would spend a pleasant day picnicking and relaxing and would then return home with metal which could be sold for scrap. The scrap mental was primarily debris from old military vehicles which had been used for target practice by the military.

Although appellant made a number of "junking trips," this prosecution emanates from two of them. On July 4, 1977, appellant and a large number of family members went to Fort Campbell. Appellant brought his truck and, with the assistance of various friends and family members, picked up 4,510 pounds of aluminum and other scrap metal. The metal was taken home for cleaning and eventual sale to a junk dealer. On July 31, 1977, appellant loaded his truck with metal a second time; the weight of this load was approximately 5,060 pounds.

An ever vigilant Deputy Sheriff, Herman Epley, got wind of the Fort Campbell "junking trips" and notified the F.B.I. The F.B.I. investigated and received the full cooperation of appellant. He openly admitted taking the metal from the reservation, and told the entire story behind the "junking trips." Appellant maintained that the scrap metal had been abandoned by the United States Government and was lawfully his property. When threatened with prosecution, however, appellant agreed to return the metal to Fort Campbell. Accordingly, 5,060 pounds of the metal were returned to Fort Campbell on August 5, 1977, three days after the initial interview with the F.B.I.

On September 17, 1977, Deputy Sheriff Epley executed a search warrant issued by a state judge on appellant's home. ¹ During the search, Epley observed scrap metal and shells in appellant's garage. The F.B.I. was again called in.

Upon being interviewed a second time, appellant explained that scrap metal and shells had been taken on or about July 4, 1977, but that he had not returned them out of foolish fear resulting from the agent's earlier threat of prosecution. Appellant explained that he had intended all along to return the scrap to Fort Campbell on his own but that he had had difficulty finding someone to help him.

Apparently miffed at finding that appellant had retained some scrap, the United States Attorney's office for the Western District of Kentucky, in its wisdom, determined that it had to prosecute, and sought a grand jury indictment, which was handed down.

The government's case consisted almost entirely of appellant's own admissions to the F.B.I. as to what he had done. Appellant's defense was that the property had been abandoned by the government and that he had a lawful right (or at least he thought that he did) to take the scrap and sell it for junk. The jury acquitted appellant of stealing the scrap metal and ammunition but convicted him of retaining the scrap metal knowing that it was stolen.

As the government concedes in its brief, the jury's verdict reveals that it concluded that defendant believed that the scrap metal was abandoned by the government when the defendant took it from the reservation, but that he had been subsequently put on notice that the scrap was not abandoned property. The jury must have determined that appellant was thus guilty of converting the unreturned scrap to his own use when he retained and concealed it in his garage where it was discovered during the execution of the search warrant.

II

Appellant's first contention is that he was entitled to a judgment of acquittal because the evidence indisputably showed that he himself had taken the property, and that a person cannot be guilty of both stealing certain property and receiving the same stolen property. ² It is unquestionably true that the jury thought that appellant did not initially remove the scrap metal and ammunition from the military reservation with the intent to steal it. However, the jury could reasonably have found on these facts that appellant's failure to return the scrap metal after the F.B.I. put him on notice that the property was not abandoned, amounted to a violation of 18 U.S.C. § 641. ³

Appellant secondly claims that the shell casings, scrap and ammunition were abandoned by the government and that therefore, he could not be convicted of concealing government property, as a matter of law. This argument gives us pause because the evidence shows that the scrap had been left out in an area open to the public and was so mangled that it could never be reused for its original purpose. In addition, the military authorities apparently, never acted to prevent people from carrying it off. ⁴ However, we must review motions for judgment of acquittal in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Green, 548 F.2d 1261, 1266 (6th Cir. 1977). The metal had a scrap value of approximately 161/2 cents per pound. More important, the metal was indisputably on government property. Further, there was evidence that appellant had made unsuccessful efforts to obtain a government contract to haul away the scrap metal and ammunition. The district judge gave defendant's requested instruction on abandoned property. ⁵ A jury could reasonably have found, as this jury implicitly did, that the property was not abandoned. ⁶

III

As is apparent, this was a close case. There was no dispute as to what had transpired, the sole question was whether the jury would be willing to find criminal intent. The jury's verdict indicates that it did not think that defendant took the scrap metal from the military reservation with the specific intent to steal it. Instead, the jury apparently compromised and found the defendant culpable under 18 U.S.C. § 641 because he did not return a load of scrap after the F.B.I. requested him to so so.

Credibility was the key issue. The government's case was based on admissions made by the defendant. Similarly, the cornerstone of the defense was the defendant's credibility on the witness stand when he testified that he had never intended any wrongdoing and that his failure to return the second load of scrap resulted from foolhardy timidity.

Defendant's case was well presented and well argued by able defense counsel. In his eagerness to convict, the prosecutor attempted to tip the scales in his favor by making the following statement during his closing argument:

If the United States did not believe the defendant was guilty of committing these charges in the indictment, based on the evidence that has been presented to you, this case, of course, would have never been presented to you in the first place. It never would have been presented to you.

Defense counsel promptly objected and moved for a mistrial, but was overruled. Defense counsel then spent a large portion of his closing argument emphasizing to the jury that they alone were the fact finders in the case and that whether a person is indicted is irrelevant to the final determination of guilt or innocence; that a person is presumed innocent until proved guilty beyond a reasonable doubt. After defense counsel presented his closing argument to the jury, the Assistant United States Attorney rose to make his rebuttal. He opened with the following statement:

Ladies and Gentlemen, my concluding remarks in this case in response to the defendant's statement that I have decided the defendant's guilt or innocence, I merely told you in my argument based on the evidence that has been presented to you in this trial, I believe beyond a reasonable doubt that the defendant unlawfully took or concealed the metal or ammunition. (Emphasis added)

Defense counsel immediately objected and again moved for a mistrial, but again was overruled.

We can only express our astonishment that a prosecutor could make the statements quoted above. We join the Fifth Circuit in expressing our dismay at the continuing problem with improper statements in summations by counsel. See United States v. Morris, 568 F.2d 396, 401-403 (5th Cir. 1978). Cf. Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir. No. 78-3040, Decided Dec. 29, 1978) (Improper prosecutorial comment on defendant's failure to take the stand). An attorney's job arguing a case before a jury is to persuade that body, based solely on the...