U.S. v. Hines, 82-2334

Decision Date14 February 1984
Docket NumberNo. 82-2334,82-2334
Citation728 F.2d 421
CourtU.S. Court of Appeals — Tenth Circuit
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert Earl HINES, Defendant-Appellant.

James F. Blackmer, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty., Albuquerque, N.M., with him on the Richard M. Borchers, Westminster, Colo., for defendant-appellant.

brief), of the District of New Mexico, appearing for plaintiff-appellee.

Before BARRETT and LOGAN, Circuit Judges, and CHILSON *, District Judge.

CHILSON, District Judge.

The appellant will be referred to herein as "the defendant" or "Hines".

On February 28, 1982, the United States Post Office in Tijeras, New Mexico, was burglarized.

On June 3, 1982, a grand jury returned an indictment charging the defendant, Hines, and one, Fernando Herrera, with the commission of twelve crimes committed in the course of and after the burglary.

The indictment charged:

In Count I, a conspiracy to burglarize the post office in violation of 18 U.S.C. Sec. 371 (1982);

Count II: Breaking and entering into the post office to commit larceny in violation of 18 U.S.C. Sec. 2115 (1982);

Count III: Stealing a letter containing a credit card and other letters containing United States Treasury checks in violation of 18 U.S.C. Sec. 1708 (1982)

Count IV: Stealing approximately 800 blank United States Postal Money Order forms in violation of 18 U.S.C. Sec. 500 (1982);

Count V: Stealing a United States Postal Money Order imprinter Serial No. 807590, an instrument designed to be used in preparing and filling out blank United States Money Order forms in violation of 18 U.S.C. Sec. 500 (1982);

Count VI: Stealing approximately $1,835.15 in United States postage stock consisting of stamps and stamped envelopes in violation of 18 U.S.C. Sec. 641 (1982);

Count VII: Altering a blank United States Postal Money Order by imprinting on a blank money order, the amount of $275.00 in violation of 18 U.S.C. Sec. 500 (1982).

Count VIII: Passing and uttering the money order described in Count VII in violation of 18 U.S.C. Sec. 500 (1982);

Count IX: Altering a blank United States Postal Money Order by imprinting thereon the amount of $500.00 in violation of 18 U.S.C. Sec. 500 (1982);

Count X: Passing and uttering the altered money order described in Count IX, in violation of 18 U.S.C. Sec. 500 (1982);

Count XI: Altering a blank United States Postal Money Order by imprinting thereon the amount of $500.00 in violation of 18 U.S.C. Sec. 500 (1982);

Count XII: Passing and uttering the money order described in Count XI in violation of 18 U.S.C. Sec. 500 (1982);

Each of the counts with the exception of Count One, also charged Hines and Herrera with aiding and abetting in the commission of the crimes charged in violation of 18 U.S.C. Sec. 2 (1982).

On June 10, 1982, Hines and Herrera appeared before a United States Magistrate and entered pleas of not guilty to all charges, and the charges were set for trial commencing on July 12, 1982. On motion of Hines' counsel, the trial was postponed to August 9.

On August 6, Herrera entered a plea of guilty to Counts VIII, X, and XII, and the remaining counts against Herrera were later dismissed by the United States.

Trial of the charges against Hines commenced on September 27, 1982, and the jury found Hines guilty on all twelve counts. The Court sentenced Hines to five years imprisonment on Count VI, suspended imposition of sentence on the other counts, and placed him on five years probation on each of these counts. The court ordered the probation on all eleven counts to run concurrently, the probationary periods to commence

upon Hines' release from confinement.

SUMMARY OF EVIDENCE

The United States Post Office at Tijeras, New Mexico, is a rural post office, located east of Albuquerque, New Mexico.

At trial, a postal clerk at the Tijeras Post Office, Simone Platt, and the postmistress in charge of this post office, Rose Morris, testified that they had seen the defendant make a couple of purchases at the post office in the last few weeks of February 1982. Once he was alone, and once he was in the company of another man whose face they did not see.

Platt testified that after closing the post office the previous evening, she returned on the morning of Sunday, February 28, 1982, to turn off the outside lights. When she arrived, she saw a car parked behind the building, with its hatchback open. Several objects wrapped in white towels were plainly visible inside. Standing near the car was a man she recognized as Hines. When he approached her, she asked him if he needed anything. He said no and inquired in turn if she planned to enter the building. Although that had been her initial intention, Platt said no, and left. Approximately twenty minutes later, another postal employee entered the building and saw that it had been burglarized.

This employee, and others who were summoned to the scene, saw that many envelopes and packages had been removed from post office boxes, slit open and thrown on the floor. Some of these envelopes were subsequently found to have contained missing credit cards and government checks.

Other items stolen included seven to eight hundred blank postal money orders, eighteen hundred dollars worth of stamps, numerous stamped envelopes, and an imprinter that prints the dollar amounts and dates on blank postal money orders. A list which contained the serial numbers of the money orders was missing although copies of it were available.

The stamps, stamped envelopes and money orders had been in a safe which the evidence indicated had been opened by a crowbar and an acetylene torch.

Two Albuquerque women, Natalie Montoya and Lori Hicks, testified that about a week after the robbery, Montoya's cousin, Fernando Herrera, brought a man they later identified as Hines, to their residence, introduced him as "John" and asked if they could both stay there for a few days. Hicks testified that "John" told her that he and Herrera had committed the robbery. She also testified she saw "John" use the imprinter on a money order and then fill in her name, and that "John" then had her pass the money order, which was for $275.00 at a bank and give him the proceeds.

The two men departed the same day, leaving behind two blank money orders, which were each imprinted for $500.00, and a note thanking the women for their trouble, signed by "John". Montoya and Hicks subsequently cashed these money orders at two different banks.

It is admitted that Hines was not in New Mexico at the time these two money orders were cashed.

In early April, a man using the name "John Rankin" tried to pass a money order in San Diego, California. The cashier became suspicious and checked the serial number. It corresponded to that of one of the money orders stolen from Tijeras' Post Office. At trial, the cashier identified the man who attempted to pass the money order as the defendant, Hines.

ISSUES RAISED ON APPEAL

Hines, by this appeal, raises the following issues:

1. Did the trial court err in not dismissing the conspiracy count at the conclusion of all evidence?

2. Did the trial court err in not requiring an election of charges by the prosecution or merger after conclusion of the trial?

3. Did the trial court err in not granting defendant's motion to dismiss for lack of a speedy trial?

4. Did the trial court err in its verdict form given to the jury?

5. Did the trial court err in not dismissing Counts X and XII?

1. DID THE COURT ERR IN NOT DISMISSING THE CONSPIRACY COUNT?

"The gist of the conspiracy offense is agreement among the conspirators to commit the offense, attended by an act of one or more conspirators to effect the object of the conspiracy." U.S. v. McMahon, 562 F.2d 1192, 1196 (10th Cir.1977).

"A mutual implied understanding is sufficient so far as the combination or confederacy is concerned, and the agreement is generally a matter of inference deduced from the acts of the persons accused, which are done in pursuance of an apparent criminal purpose." Colosacco v. U.S., 196 F.2d 165, 168 (10th Cir.1952).

"A conspiracy need not be proven by direct evidence, but may be established by circumstantial evidence and the common purpose inferred from the development or combination of circumstances." U.S. v. Sherman, 576 F.2d 292, 296 (10th Cir.1978).

While "The commission of a substantive offense and a conspiracy to commit that offense are separate crimes." U.S. v. Davis, 544 F.2d 1056, 1058 (10th Cir.1976); "... the same overt acts charged in a conspiracy count may also be charged and proved as substantive offenses, for the agreement to do the act is distinct from the act itself." U.S. v. Bayer, 331 U.S. 532, 542, 67 S.Ct. 1394, 1399, 91 L.Ed. 1654 (1947); citing Pinkerton v. U.S., 328 U.S. 640, 644, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489 (1946).

The evidence amply supports the conspiracy charge. The trial court did not err in not dismissing the conspiracy count at the conclusion of all of the evidence.

II. DID THE TRIAL COURT ERR IN NOT REQUIRING AN ELECTION OR

MERGER OF THE CHARGES?

The defendant contends the indictment contains an unjustifiable multiplicity of charges and that the trial court should have merged Counts II, III, IV, V, and VI into one count of theft; Counts VII, IX and XI into one count of alteration of blank money orders, and Counts X and XII into one count of passing and uttering the money orders described in Counts IX and XI.

Defendant also contends that the trial court should have merged the counts in the same manner for the purpose of imposing sentence.

In Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the United States Supreme Court used the following test to determine whether or not separate counts of an indictment are multiplicitous:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to...

To continue reading

Request your trial
8 cases
  • U.S. v. Felton, s. 85-3303
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 6 February 1987
    ... ... See United States v. Hines, 728 F.2d 421, 426 (10th Cir.), cert. denied, 467 U.S. 1246, 104 S.Ct. 3523, 82 L.Ed.2d 831 (1984); ...         With this partial review of the statute behind us, we look to the facts as they affect the defendants' speedy trial claims ...         We ... ...
  • U.S. v. Savaiano
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 30 March 1988
    ...both conspiracy and attempt were upheld although the courts did not address the issue of multiplicity. See generally United States v. Hines, 728 F.2d 421, 424-25 (10th Cir.), cert. denied, 467 U.S. 1246, 104 S.Ct. 3523, 82 L.Ed.2d 831 (1984). Double jeopardy is not implicated because each o......
  • U.S. v. Willie
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 12 August 1991
    ... ... 18 U.S.C. § 3161(h)(1)(J); see United States ... Page 1388 ... v. Hines, 728 F.2d 421, 426 (10th Cir.), cert. denied, 467 U.S. 1246, 104 S.Ct. 3523, 82 L.Ed.2d 831 (1984) ... However, such deficiencies do not prompt us to automatically reverse the conviction where the surrounding facts and circumstances, including ... ...
  • U.S. v. Broce, s. 83-2558
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 2 January 1986
    ...This court affirmed the jury's factfinding of a single, ongoing conspiracy under the clearly erroneous rule. In United States v. Hines, 728 F.2d 421 (10th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 3523, 82 L.Ed.2d 831 (1984), we held, in the same vein as the Blackledge Court, that vario......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT