U.S. v. Dunigan

• Decision Date: 08 September 1989
• Docket Number: Nos. 88-2788,88-2817,s. 88-2788
• Citation: 884 F.2d 1010
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel DUNIGAN and John Berry, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1010

884 F.2d 1010

UNITED STATES of America, Plaintiff-Appellee, v. Daniel DUNIGAN and John Berry, Defendants-Appellants.

Nos. 88-2788, 88-2817.

United States Court of Appeals Seventh Circuit.

Argued Feb. 6, 1989.

Decided Sept. 8, 1989.

James R. Ferguson, Asst. U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Carl P. Clavelli, Schiller Park, Ill., for Daniel Dunigan.

Luis M. Galvan, Office of the Federal Defender Program, Chicago, Ill., for John Berry.

John G. McKenzie, Asst. U.S. Atty., Rockford, Ill., for petitioner-appellee.

Before BAUER, Chief Judge, and EASTERBROOK and MANION, Circuit Judges.

BAUER, Chief Judge.

The appellants in this case are two civilians who were found by a jury to have participated in a surgical strike upon a supply building at the Glenview Naval Air Station: the objective of the mission was to steal factory sealed air conditioners being stored there. After a three day trial, the jury found Dunigan and Berry guilty of conspiring to steal the air conditioners, entering a United States building with intent to commit a theft, and knowingly converting United States property for their own use. We affirm.

I. Background

In the early morning hours of November 22, 1983, a supply specialist at Glenview Navel Air base in Glenview, Illinois, called the sentry's station to report that the Public Works Center had been broken into. A subsequent investigation revealed that ten factory sealed air conditioners had been stolen from the building. Michael Seaman, a petty officer who was on duty as one of the sentries that evening, recalled seeing Don Allen, a jet mechanic shop supervisor, hastily leave the base in a Ford containing a large box in its trunk. Seaman recalled stating to the other sentry on duty, "if that T.V. falls out its mine." Allen was arrested the next day and agreed to cooperate in the investigation and prosecution of his cohorts.

At the appellants' trial, Allen testified that on the evening of November 21, 1983, Dunigan and Berry were waiting outside of his apartment in Dunigan's van. Dunigan asked Allen if he could provide them with an additional vehicle so that they could steal some air conditioners from the base. Dunigan sweetened the proposition by offering to cancel the $300 gambling debt Allen owed him if he participated. Allen agreed, but since his car was having mechanical problems, he borrowed his friend's Ford Torino. He followed Dunigan and Berry in the van to the Public Works Center. Allen testified that when they arrived, the door of the Center had already been broken into and two air conditioners were sitting outside the structure. Allen forced the door open further, and all three men loaded four air conditioners into the van and three into the Torino and took them to Dunigan's house. They then returned to the Center in the Torino and loaded up three more air conditioners, again taking them to Dunigan's house.

At that point, the three discussed "distribution or sale" of the goods. They agreed to load up the van with four air conditioners and travel to Chicago to Anthony Haywood's house in an attempt to hash out a sale. Upon arriving at Haywood's house, Dunigan and Berry waited in the van parked at the corner of 68th and Blackstone while Allen went upstairs to discuss the transaction. Soon thereafter, at approximately 3:30 a.m., Chicago Police Officers Thompson and Jones responded to a radio dispatch concerning a van with two male occupants parked at the intersection. Officer Thompson testified that they pulled up to the corner facing the van and parked approximately ten feet in front of it. Dunigan and Berry then exited the van and met the officers halfway between vehicles. The officers requested that the two produce their driver's licenses and asked what they were doing in the area. Berry responded that they had given a friend from Kankakee a ride to Chicago to get some money, and that he was in one of the apartment buildings, but they were unsure which building it was. Nor were they able to tell the officers the last name of their friend.

While Officer Jones called in to check the status of Berry's and Dunigan's driver's licenses, Officer Thompson shined his flashlight through the front windshield of the van. He observed large cardboard boxes stacked behind the seats. At that point, Thompson walked over to the vehicle, opened the passenger door, and shined his flashlight into the back of the van. He saw that the boxes were labeled "Air Conditioner" and that they were still factory sealed. He then reached inside the van and pushed one of the boxes to test whether it was full. Thompson walked back over to Dunigan and Berry and inquired about the air conditioners. Dunigan told Thompson that he and Berry were subcontractors and that they had bought the air conditioners that day at an auction; they were en route to Kankakee to install them in a building they were working on. When asked if he had a receipt of purchase, Dunigan said he did not. When asked for proof that they were subcontractors, Dunigan said they had none.

Officer Jones responded by using his radio to inquire whether there had been any burglaries in the area. The dispatcher stated that although no burglaries had been reported, Dunigan's license was suspended. At that point, the Officers took Dunigan and Berry to the station in a paddy wagon for questioning. Meanwhile, Allen and Haywood watched from the safe harbor of Haywood's apartment as the police drove off with their compatriots.

Dunigan and Berry were eventually released by the police without incident, and Allen and Haywood caught up with the two later that night at Dunigan's apartment in Glenview. Having regrouped, all four men proceeded to load four more air conditioners into the van and take them to Thomas Moses' apartment in Chicago. Moses was a friend of Haywood's who was willing to store the air conditioners in the basement of his apartment: Haywood had agreed to buy four of the air conditioners for $200 and offered to pay Moses $50 for storing them. Moses testified that after Dunigan and Berry haggled with Haywood over price, they helped to unload the air conditioners and put them in Moses' basement. Haywood then put a lock on the basement door. Moses recalled telling Haywood the next day that he had gotten "a steal of a deal," causing Haywood to smile in agreement.

The benefit of the bargain was fleeting, however, for Allen was arrested that very day. He confessed to his role in the theft and agreed to cooperate with both the police and Naval Investigative Service. Allen led navy investigators to Moses' basement, at which point four of the air conditioners were recovered. Police did not recover any air conditioners from Dunigan's apartment.

The Navy court-martialed Allen and sentenced him to sixty days hard labor, a bad conduct discharge, and a fine of $740 to compensate for the air conditioners which were not recovered. Moses pleaded guilty to a misdemeanor. Dunigan, Berry, and Haywood were indicted by a grand jury. The three-count indictment against Dunigan and Berry charged them with conspiring to steal the air conditioners in violation of 18 U.S.C. Sec. 371, entering a United States building with intent to commit a theft in violation of both 18 U.S.C. Sec. 13 and Ill.Rev.Stat.1987, ch. 38, p 19-1, and knowingly converting United States property for their own use in violation of 18 U.S.C. Sec. 641. ¹

Before trial, Dunigan and Berry moved to suppress the statements and possible testimony of Officers Thompson and Jones. Defendants alleged that the officers unlawfully searched and seized their van. The trial court denied the motion after holding an evidentiary hearing and accepting the government's agreement not to present any evidence or testimony at or after the point that defendants were taken to the police station. At the conclusion of the trial that ensued, the jury found Dunigan and Berry guilty of all three counts. ² The defendants timely filed a notice of appeal from the order of judgment.

II. Analysis

Appellants emphasize that the crux of the government's case consisted of the testimony of Allen, their coconspirator, and Officer Thompson, who provided circumstantial evidence concerning the appellants' possession of the air conditioners and their placement at Haywood's apartment. That being said, they argue that the evidence was insufficient for the jury to find the defendants guilty (although appellants do not say so, we presume that they are raising this claim relative to each of the three counts). The gravamen of this claim is the appellants' contention that Allen's testimony must be discounted because it was incredible as a matter of law. In making this argument, appellants virtually ignore the veritable Maginot Line that stands between the credibility of witnesses at trial and an appellate court's role on review. Appellants seek to charge that line at its highest point: they do not clear the peak.

When assessing a general claim that the evidence at trial was insufficient to allow the jury to reach its verdict, we are constrained to review the evidence in the light most favorable to the prosecution. Our inquiry is limited to a determination of whether any rational trier of fact could have found the elements of the offense charged beyond a reasonable doubt. United States v. Whaley, 830 F.2d 1469, 1472 (7th Cir.1987) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). The jury's verdict must stand unless "the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt." United States v. Bruun, 809 F.2d 397, 408 (7th Cir.1987). Our role is further limited when the credibility of a witness is at issue. This is a matter inherently within the province of the jury, and "absent extraordinary circumstances," this court will not reevaluate the testimony of a witness to...