U.S. v. Shackelford, 81-2217

• Decision Date: 01 June 1982
• Docket Number: No. 81-2217,81-2217
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas P. SHACKELFORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 422

677 F.2d 422

UNITED STATES of America, Plaintiff-Appellee, v. Thomas P. SHACKELFORD, Defendant-Appellant.

No. 81-2217.

United States Court of Appeals, Fifth Circuit.

June 1, 1982.

Roland E. Dahlin, II, Federal Public Defender, Karen K. Brown, Asst. Public Defender, George McCall Secrest, Jr., Houston, Tex., for defendant-appellant.

James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before RUBIN and REAVLEY, Circuit Judges, and HUNTER ^*, District Judge.

EDWIN F. HUNTER, Jr., District Judge:

Thomas P. Shackelford was charged by indictment with the theft of a Nagra Recorder, the property of the United States, of a value in excess of $2,000, in violation of Title 18 U.S.C. 641. ¹ He was tried by a jury and found guilty. A sentence of five years imprisonment was imposed. This appeal followed.

The major attack is on the sufficiency of the evidence and we conclude that there was adequate basis in the record for the verdict. Because, however, we find that the trial judge erroneously refused to give the substance of one jury instruction requested by the defendant, we reverse the judgment of conviction and remand for a new trial.

This is a tale of cross and double cross. The weaving of this tangled web began in September of 1980, when Nueces County deputy constables, among them one Rick Miller, searched the apartment of Timothy Bielert. Although no arrest was made, seven or eight pounds of marijuana and $1,600 in cash were seized. Miller endeavored to have Bielert cooperate with the police by naming his drug sources; Bielert refused to do so.

The plot thickens. Enter the defendant, Thomas P. Shackelford, a sometime informant for Deputy Miller and an acquaintance of Bielert. Miller requested the assistance of Shackelford in discovering the source of Bielert's supply of marijuana. Shackelford agreed to help. Shackelford contacted Bielert.

Shackelford had good news and bad news for Bielert. The bad news was that Shackelford had seen arrest warrants for Bielert and his wife at the Corpus Christi police station. The good news was that Bielert could "get off the hook" for a price of $500. Shackelford himself testified that this story was entirely the product of his own imagination, designed to gain Bielert's attention in the hope of discovering his marijuana supply.

Upon hearing Shackelford's proposition, Bielert informed him that he would take the matter under advisement. Shackelford's troubles began. Bielert contacted Captain Glorfield from the Corpus Christi Police Department and related the sequence of events. Captain Glorfield referred Bielert to the Federal Bureau of Investigation. Bielert contacted the FBI, and they arranged to obtain the Nagra device and a brief case for use in the investigation, together with $350 in marked bills. Thus equipped, Bielert arranged to meet with Shackelford on the evening of October 20, 1980. The recording device was so arranged that it could be turned on from the outside of the brief case. It was to be activated only in the event of a meeting with Miller. The scheme quickly went awry. Shackelford insisted upon a "pat down" search, according to Bielert's testimony, because "he wanted to search me for wires, see if I am wired, because he didn't want me to bring the FBI in on this." Shackelford opened the brief case, spilling its contents, and pulled back the lining of the brief case, revealing the hidden recorder. When this occurred, Bielert "jumped out of the car and took off running-and jumped the fence." Bielert then called Captain Glorfield and alerted him that the plan had gone awry. The police picked up Bielert and conducted a cursory search the following day. The tape recorder was never discovered.

Defendant argues that his brief contact with the Nagra Recorder never amounted to possession sufficient to constitute theft under the statute, and that Bielert abandoned the recorder when he precipitously left the car without it. The trial judge denied his motion for judgment of acquittal, which was renewed at the close of testimony. Although the trial judge gave the pattern jury instructions of theft, ² he refused to give the requested instructions on abandonment, because he concluded that there was insufficient evidence to support such a defense. The jury instruction proposed by defendant, and declined by the Court, was to the effect that if the tape recorder allegedly stolen was actually abandoned in the defendant's car by the government's agent, they might then find that the property had in fact been abandoned, and that therefore there was no intent to steal, or that the abandonment of the property did, in effect, constitute a complete defense. We have often held that if there is any evidentiary support whatsoever for a legal defense, and the trial court's attention is specifically directed to that defense, the trial judge commits reversible error by refusing to so charge the jury. United States v. Goss, 650 F.2d 1336, 1344 (5th Cir. 1981). In Goss the defendants were convicted of mail fraud based on the sale of crude oil residium. They presented evidence that their mailed representations were mailed in good faith, a complete defense to the specific intent requirement for conviction. The trial judge refused to give a good faith instruction, ruling that the charge on specific intent encompassed the defense. This court reversed, finding that the general instruction did not direct the jury's attention to the defense of good faith with sufficient specificity. See Goss, 1344-45. If abandonment is a valid defense to 18 U.S.C. 641, and if there is any factual support for that defense in this case, the judge erred in failing to give Shackelford's requested instruction.

Abandonment is a defense to a prosecution brought under 18 U.S.C. § 641. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). In Morissette, the defendant discovered some spent bomb casings on government property while on a hunting trip. Hoping to defray the cost of his unsuccessful expedition, Morissette hauled away the casings to sell them for scrap. The Supreme Court held that one of the necessary elements of the crime in question was the intent to deprive the Government of its property, thereby distinguishing the crime from the civil tort of conversion. Therefore, where defendant asserts that he believed the property to be abandoned, proof of this allegation would defeat the requisite intent to knowingly and willfully deprive the Government of the use of such property. ³

We must determine whether, construing the evidence most favorable to the defense, there was an underlying evidentiary foundation to support the abandonment claim, regardless of how weak or dubious that evidence may have been. On the record presented, we cannot say that there was no evidentiary basis upon which the defendant could rest an abandonment defense.

Under the Court's charge, the jury, in order to convict, had to find that Shackelford stole or converted the property, "knowingly with intent to deprive the owner of the use or benefit" of it. He could not have knowingly converted property which he did not know could be converted, as would be the case if it was in fact abandoned or if he truly believed it to be abandoned. The jury may have considered his testimony that he believed the recorder belonged to Bielert's drug suppliers as being nothing more than an incredible afterthought. But, they might have concluded that under the bizarre circumstances he may have truly believed that the recorder has been abandoned.

The Government's position seems to be that no instruction on abandonment was required because Bielert had no power to...