U.S. v. Forbrich, 84-3557

• Decision Date: 18 April 1985
• Docket Number: No. 84-3557,84-3557
• Citation: U.S. v. Forbrich, 758 F.2d 555 (11th Cir. 1985)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernst Ludwig FORBRICH, Defendant-Appellant. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 555

758 F.2d 555

UNITED STATES of America, Plaintiff-Appellee, v. Ernst Ludwig FORBRICH, Defendant-Appellant.

No. 84-3557

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

April 18, 1985.

Mark A. Pizzo, Asst. Federal Public Defender, Ronald K. Cacciatore, Tampa, Fla., for defendant-appellant.

George E. Tragos, Asst. U.S. Atty., Tampa, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, KRAVITCH and HATCHETT, Circuit Judges.

HATCHETT, Circuit Judge:

In this case, we review the government's evidence to determine whether it is sufficient to prove that the appellant "attempted to ... deliver and transmit ... to a foreign government ... information relating to the national defense." We find the evidence sufficient and affirm the convictions.

Federal Bureau of Investigation (FBI) agents arrested Ernst Ludwig Forbrich, a West German national, in the hallway of a motel in Clearwater Beach, Florida. The arrest followed Forbrich's purchase, from an undercover FBI agent, of the Defense Intelligence Agency Register publication, a classified United States document. A jury convicted Forbrich of knowingly attempting to "communicate, deliver and transmit, directly and indirectly to a foreign government ... writings and information relating to the national defense" in violation of 18 U.S.C.A. Sec. 794(a) (1976) (Count 1), and of taking documents connected with the national defense knowing that they would be used to injure the United States by a foreign nation in violation of 18 U.S.C.A. Sec. 793(b) (1976) (Count 2). Forbrich appeals his conviction for attempting to deliver a national defense document (Count 1).

Forbrich argues that his conviction should be reversed because the government produced insufficient evidence to prove beyond a reasonable doubt that his conduct constituted a substantial step towards the commission of the crime charged. Forbrich concedes that the government proved that he had on several occasions received military information from U.S. personnel in West Germany, obtained military information from two Americans in the United States, delivered military information to an intelligence agent of the German Democratic Republic ("East Germany"), met with an undercover FBI agent to discuss the purchase of the classified document, purchased the classified document, and exited the hotel room with the document concealed.

In reviewing challenges to sufficiency of evidence, this court must view the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), and must affirm a conviction if a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt. United States v. Figueroa, 720 F.2d 1239, 1243 (11th Cir.1983); United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). The evidence may be sufficient though it does not "exclude every reasonable hypothesis of innocence or [is not] wholly inconsistent with every conclusion of guilt.... A jury is free to choose among reasonable constructions of the evidence." Bell, 678 F.2d at 549. To be convicted of attempt:

first, the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting....

Second, the defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative...