U.S. v. Brown, 79-1046

• Decision Date: 08 August 1979
• Docket Number: No. 79-1046,79-1046
• Citation: 603 F.2d 1022
• Parties: 4 Fed. R. Evid. Serv. 1362 UNITED STATES of America, Appellee, v. John T. BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1022

603 F.2d 1022

4 Fed. R. Evid. Serv. 1362

UNITED STATES of America, Appellee, v. John T. BROWN, Defendant-Appellant.

No. 79-1046.

United States Court of Appeals First Circuit.

Argued June 6, 1979.

Decided Aug. 8, 1979.

James B. Krasnoo, Boston, Mass., by appointment of the Court, with whom Norris, Kozoday & Krasnoo, Boston, Mass., was on brief, for defendant-appellant.

Paul E. Troy, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Defendant-appellant, John T. Brown, appeals from a jury conviction of stealing sixteen birds in violation of 18 U.S.C. § 659 ¹ and 18 U.S.C. § 2. ² Appellant assigns six errors to the district court which we treat seriatim.

1. Whether Appellant's Motion for Judgment of Acquittal Should Have Been Granted.

In assessing a motion for judgment of acquittal, we must examine the evidence as a whole and all legitimate inferences to be reasonably drawn therefrom in the light most favorable to the government. United States v. Gabriner, 571 F.2d 48, 50 (1st Cir. 1978); United States v. Scibelli, 549 F.2d 222, 229 (1st Cir.), Cert. denied, 431 U.S. 960, 97 S.Ct. 2687, 53 L.Ed.2d 278 (1977); United States v. Canessa, 534 F.2d 402 (1st Cir. 1976); United States v. Doran, 483 F.2d 369, 372 (1st Cir. 1973), Cert. denied,416 U.S. 906, 94 S.Ct. 1612, 40 L.Ed.2d 111 (1974). The government here had to prove beyond a reasonable doubt that on or about April 27, 1977, the defendant stole sixteen birds worth more than $100 from the Delta Airlines air freight terminal at Logan Airport which had been shipped from Virginia to Massachusetts. The evidence, which has a Damon Runyon flavor, viewed from the government's vantage, was as follows. Nancy Pancoast who, along with her husband, operates Blue Ridge Aviaries in Lowesville, Virginia, received an order from a pet store in Somerville, Massachusetts, called Big Fish Little Fish for eight male and four female cockatiels and one yellow headed Amazon parrot. A cockatiel is a small Australian parrot. The value of the birds was in excess of $100.

Appellant and two friends, Roland Coyne and Jerome Proulx, went to Big Fish Little Fish sometime during the evening of April 27, 1977. Proulx was a frequent visitor to the store and was called Gerry the Canary. While at the store, appellant was in a position to hear a clerk, Lester Thomson, acknowledge a telephone message from Delta Airlines that a shipment of birds addressed to the store had arrived at the airport. The clerk put the information down on paper and then called the owner of the store and repeated the message. Appellant was also in a position to hear this. The message could be understood to state that the birds were cockatoos, a variety of parrot, described accurately, if not scientifically, at the trial as the kind that sits on Baretta's shoulder in the TV show of the same name. A cockatoo is much larger and more expensive than a cockatiel. Appellant sometime later asked Proulx if he would be interested in some cockatoos and said that he would have no trouble picking them up.

After leaving the store, the three men, accompanied by Proulx's wife, went to appellant's home from where he made a phone call. Appellant then suggested to Proulx and his wife that they take a ride with him and his wife to the airport. On the way, appellant borrowed $20 from Proulx. Coyne did not go to the airport. At the airport, appellant, his wife, and Proulx's wife got out of the station wagon and went into one of the buildings. When they returned, appellant had a box with him that he put in the back of the station wagon. Appellant laughed all the way home. Proulx testified that he did not see what was in the box or hear any chirping.

Appellant later gave Proulx three albino cockatiels to care for, which appellant subsequently took back. The shipment from Blue Ridge contained three albino cockatiels. Appellant also gave Proulx outright an Amazon parrot which he turned over to the F.B.I. agents when they interviewed him during their investigation of the theft. When appellant was told by Proulx that he had given the parrot to the F.B.I., appellant told Proulx that he was stupid, or words to that effect. A caged Amazon parrot was brought to the trial, but no one was able to identify it as either being the one shipped by Blue Ridge Aviaries or the one Proulx gave to the F.B.I. The parrot did not talk, at least at the trial. After appellant was indicted, he told the F.B.I. that Coyne had taken the birds.

Three Delta employees testified that a man, accompanied by two women, came to the air freight terminal, stated that he was from Big Fish Little Fish and had come for the birds, paid the shipping charges of $14.90, signed the air receipt bill as James Larson, and took the birds shipped by Blue Ridge and consigned to Big Fish Little Fish. None of the employees could identify appellant as the man who took the birds. One said that the man limped. Appellant knew at the time he went to the airport that Coyne had been in a rather serious automobile accident. One of Delta's employees, George Morris, received a telephone call from an unidentified male sometime prior to the time the birds were picked up asking if there was a shipment in for Big Fish Little Fish. Morris responded to the call by giving the air freight charges and also told the caller that Delta had notified Big Fish Little Fish earlier that the birds had arrived. The caller stated, in effect, that that was fine and the shipment would be picked up shortly.

The fact that appellant was not identified by any of the Delta employees as the one who picked up the birds is not fatal to the government's case.

The prosecution may prove its case by circumstantial evidence, and it need not exclude every reasonable hypothesis of innocence so long as the total evidence permits a conclusion of guilt beyond a reasonable doubt. United States v. Concepcion Cueto, 515 F.2d 160, 162 (1st Cir. 1975); United States v. Currier, 454 F.2d 835, 838 (1st Cir. 1972); Dirring v. United States, 328 F.2d 512, 515 (1st Cir. 1964). See also Parker v. United States, 378 F.2d 641, 644-45 (1st Cir. 1967). The trier of fact is free to choose among various reasonable constructions of the evidence. United States v. Klein, 522 F.2d 296, 302 (1st Cir. 1975).

United States v. Gabriner, supra, 571 F.2d at 50.

Based on the evidence, the jury could find beyond a reasonable doubt that appellant overheard at least one of the telephone conversations relative to the arrival of the birds at Delta's air freight terminal. There was evidence from which it could find that appellant decided to steal the birds and that he called Delta to confirm the shipment and ascertain the shipping charges. There is little question that appellant went to the airport and picked up a box there. The jury was not bound to believe Proulx's testimony that he did not see what was in the box or hear any chirping; it could have found that he was given three albino cockatiels and a parrot from the shipment. Coyne testified consistently on both direct and cross-examination that he did not go to the airport at any time and knew nothing about the birds. Although Coyne was an unsavory character with a criminal record and was, in fact, under prison sentence at the time he testified, his credibility was for the jury to determine. Proulx, the chief witness for the government, was a hesitant, confused and very reluctant witness, but the jury had the right to pick and choose from what he said, and he said enough to make the picking and choosing easy. The government forged a chain of circumstantial evidence strong enough for the jury to find appellant guilty beyond a reasonable doubt.

2. Whether It Was Error to Admit in Evidence Testimony of a Phone Call by an Unidentified Male to the Delta Air Freight Terminal.

Appellant misunderstands the reason for the admission of the phone call. The question of voice identification was not in issue. ³ There was testimony by Proulx that appellant made a phone call prior to the trip to the airport. Witness Morris was properly allowed to testify that, prior to the time the birds were picked up, he received a phone call from an unidentified male inquiring about the shipment and that he responded by giving the shipping charges. On the way to the airport, appellant borrowed $20 from Proulx. The jury could find, without any identification as to the voice, that appellant called Delta to check the information he had overheard at the pet store and to obtain the shipping charges. The phone call, although not critical by itself, was another link in the chain of circumstantial evidence tending to prove that appellant stole the birds. The identity of a person making a phone call can be proven by circumstantial evidence. United States v. Carrion, 463 F.2d 704, 706 (9th Cir. 1972); Grogan v. United States, 394 F.2d 287 (5th Cir. 1967), Cert. denied, 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 100 (1968); United States v. Stein, 327 F.2d 657, 658 (2d Cir. 1964). It was not error to admit the testimony as to the phone call received at the Delta air freight terminal inquiring about the shipment of birds for Big Fish Little Fish.

3. Whether the District Court Abused Its Discretion in Ruling That Jerome Proulx Should Be Treated As Hostile Pursuant to Federal Rule of Evidence 611(c). ⁴

It has long been established that in the use of leading questions "much must be left to the sound discretion of the trial judge who sees the witness and can, therefore, determine in the interest of truth and justice whether the circumstances justify leading questions to be propounded to a witness by the party producing him." St. Clair v. United States, 154 U.S. 134, 150, 14 S.Ct. 1002, 1008, 38 L.Ed. 936 (1894). See Nutter v. United States, 412 F.2d 178, 183 (9th Cir. 1969), Cert....