U.S. v. Pecina, s. 74-1058 and 74-1059

• Decision Date: 16 December 1974
• Docket Number: Nos. 74-1058 and 74-1059,s. 74-1058 and 74-1059
• Citation: 501 F.2d 536
• Parties: UNITED STATES of America, Appellee, v. Donaciano L. PECINA, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 536

501 F.2d 536

UNITED STATES of America, Appellee, v. Donaciano L. PECINA, Appellant.

Nos. 74-1058 and 74-1059.

United States Court of Appeals, Eighth Circuit.

Submitted June 14, 1974.

Decided Aug. 1, 1974, Certiorari Denied Dec. 16, 1974, See

95 S.Ct 660.

Lewis E. Pierce and William E. Shull, Kansas City, Mo., for appellant.

Bert C. Hurn, U.S. Atty., and Anthony P. Nugent, Jr., Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before GIBSON, BRIGHT, and WEBSTER, Circuit Judges.

GIBSON, Circuit Judge.

Defendant, Donaciano L. Pecina, was charged in two separate indictments; the first charged defendant in four counts with stealing women's clothing, possessing the same clothing, stealing men's coats, and possessing the same coats, ¹ and the second charged defendant with injuring Jerome Daniel (Dan) McFarland, a Government informant in violation of 18 U.S.C. 1510. ² The trial of the two cases was consolidated, and the jury found defendant guilty of stealing and possessing the women's clothing and of injuring the Government informant. The District Court ³ sentenced defendant to concurrent sentences of five years on each of the three counts on which defendant was found guilty.

On appeal defendant advances one argument concerning his conviction for the two counts under 18 U.S.C. 659: 'There was no evidence introduced connecting the defendant with the theft (of the women's clothing) from the truck, nor with any property that was demonstrated to have been stolen from the Yellow Freight Truck Systems.' Second, defendant argues that he cannot be convicted of violating 18 U.S.C. 1510 because the injury of Dan McFarland occurred after judicial proceedings had been instituted.

Defendant was a truck driver for the Yellow Freight Systems, Inc., which the FBI knew had been experiencing theft losses. On January 18, 1971, defendant was driving a truck containing women's clothing which was being transported from a California manufacturer to two retail stores in two Kansas towns. Defendant stipulated that the clothing was moving in interstate commerce and that his 'shipping' sheet for January 18, 1971, reflected $3,800 of missing women's clothing.

On January 20, 1971, Dan McFarland, the Government informant, purchased two dresses bearing the same California manufacturer's labels as the missing dresses from defendant at his home for one-third of the retail price. McFarland showed Special Agent Allen Rotton of the FBI these two dresses, and one of the dresses was admitted into evidence. When McFarland purchased these two dresses, he also noticed a carton with one of the Kansas retailer's name stamped on it and a clothing rack containing similar dresses. Further, McFarland saw another man purchase a similar dress from defendant at the same time.

On January 20, 1971, FBI agents searched defendant's home and seized certain clothing. On February 3, 1971, defendant was charged with stealing and possessing the women's clothing, but these charges were dismissed by the Government after a federal district court on June 11, 1971, suppressed the evidence seized in the January 20th search. The Government did not appeal the adverse suppression ruling. The dress purchased by McFarland and introduced into evidence at trial was not subject to the suppression order. The case remained under investigation, and Dan McFarland during August, 1971, gave the FBI information concerning defendant's connection with the allegedly stolen men's coats.

Defendant tried at different times to find out the identity of the Government informant from Special Agents Rotton and Jack Knox and told Rotton that 'he felt like killing the guy' for informing on him. At defendant's basement garage on January 23, 1972, defendant shot McFarland three times. Defendant claimed that McFarland drew a gun and a struggle occurred resulting in the shots that injured McFarland. McFarland testified that defendant shot him in the back first and a struggle occurred with the two other firings resulting. During his appearance before the United States Magistrate on January 24, 1972, and after defendant's arrest, defendant denied having fired a gun since 1961. A nitrate swab test administered by federal agents on January 24th showed gunpowder traces on defendant's right hand.

Reviewing the sufficiency of the evidence for the convictions of the charges in the first indictment, we hold that there was sufficient evidence for the jury to find that defendant stole and possessed the women's clothing worth over $3,800. ⁴

First, the evidence was sufficient to demonstrate the defendant converted the women's clothing with the requisite intent. Defendant stipulated that his shipping statement showed a large quantity of missing women's dresses. McFarland bought two women's dresses at one-third the market value, noticed a rack of similar dresses at defendant's home, and observed a sale by defendant to another individual. Special Agent Rotton observed the two dresses purchased by McFarland, which bore the same labels as the missing dresses. Such circumstantial evidence is relevant to prove that defendant stole the women's clothing. United States v. Yates, 470 F.2d 968, 970 (10th Cir. 1973); Rice v. United States, 411 F.2d 485, 489 (8th Cir. 1969). The Government also has the benefit of the inference that defendant's possession of recently stolen goods, unless the possession is accounted for in a reasonable and satisfactory manner, indicates that defendant converted the goods with the requisite criminal intent. United States v. McCoy, 472 F.2d 704, 706 (6th Cir.), cert. denied sub nom. Matney v. United States, 412 U.S. 921, 93 S.Ct. 2741, 37 L.Ed.2d 147 (1973). We, therefore, find that there was sufficient evidence for the jury to convict defendant of stealing the women's clothing.

Second, much of the same evidence provides sufficient proof that defendant possessed the stolen women's clothing. In addition, an inference that defendant knew the goods were stolen may be made from the fact that the defendant had in his possession recently stolen goods, unless the possession of those goods is explained in a reasonable and satisfactory manner. United States v. Dugan, 477 F.2d 140, 142 (8th Cir. 1973), citing Aron v. United States, 382 F.2d 965, 970 (8th Cir. 1967). The defendant's shipping statement with the missing dresses was dated January 18, 1971, and McFarland purchased the two dresses with the same labels as the missing dresses on January 20, 1971. Clearly, the inference is allowable under these facts. Also, the fact that the goods were sold cheaply strongly implies that defendant...