U.S. v. Speir, s. 75-1807

• Decision Date: 10 November 1977
• Docket Number: 75-1808,Nos. 75-1807,s. 75-1807
• Citation: 564 F.2d 934
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard SPEIR and Gary Puffer, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 934

564 F.2d 934

UNITED STATES of America, Plaintiff-Appellee, v. Richard SPEIR and Gary Puffer, Defendants-Appellants.

Nos. 75-1807, 75-1808.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Sept. 21, 1976.

Submitted En Banc Sept. 12, 1977.

Decided Nov. 10, 1977.

John S. Castellano of Holland & Hart, Denver, Colo., for defendants-appellants Speir and Puffer.

Max D. Wheeler, Asst. U. S. Atty., Salt Lake City, Utah, for plaintiff-appellee.

Before LEWIS, Chief Judge, and SETH, HOLLOWAY, McWILLIAMS, BARRETT and DOYLE, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendants Speir and Puffer were convicted under 18 U.S.C. § 641 (1970) of stealing Government property, approximately 250 Christmas trees allegedly worth approximately $1,250, from a national forest. A co-defendant, Vernon Black, was convicted of wilfully and knowingly receiving the stolen trees under the same statute. All three defendants appeal their convictions and sentences, one year each for Speir and Puffer and five years for Black, whose appeal is decided in a separate opinion. ¹ They essentially argue that the Government proof was insufficient, that conduct of the trial court denied them a fair trial, and that the instructions and proof omitted the essential element of knowledge that the trees were Government property.

The challenge to the sufficiency of the evidence presents serious problems. After a jury conviction we must consider the record to determine if there is sufficient substantial proof, direct and circumstantial, together with reasonable inferences to be drawn therefrom, on which the jury could find the defendants guilty beyond a reasonable doubt. United States v. Twilligear, 460 F.2d 79, 81-82 (10th Cir.). With that standard in mind we turn to proof in the record.

The Government's proof tended to show these facts: At about 9:00 a. m. on November 27, 1974, a clerk in the Forest Ranger's office in Beaver, Utah, received a telephone call from the town marshal of Marysvale, Utah, a town approximately sixty miles from Beaver. The marshal advised the clerk that a blue, late model pickup truck with white racks, "probably a Chevrolet", had just been observed coming from the Fishlake National Forest with a load of Christmas trees. (R. I, 10, 25, 40). The clerk then repeated the information to the ranger, who testified about the matter at trial. ²

Forest Ranger Floyd H. Bartlett, who was in the office at the time of the call, suspected that the truck described by the marshal was owned by defendant Speir. Bartlett sent one of the other forest rangers to Speir's residence in Beaver to see if his truck was there. It was not. Bartlett and another ranger then left for Marysvale.

After Bartlett had proceeded a short way from Beaver, he telephoned the ranger's office and requested that his wife be contacted and asked to watch the Christmas tree lot of defendant Black which was located about a half block from Bartlett's home. Bartlett had seen Speir's truck deliver several loads to Black's lot in the past. When Bartlett was approximately 20 miles north of Beaver, he telephoned the ranger's office again and was advised that Speir's truck had entered Black's lot and that trees were being unloaded from it.

Bartlett proceeded to Marysvale and then into a canyon outside of the town where he followed tire tracks to an area in the National Forest where trees had been freshly cut along the side of the road. (R. I, 14, 17-18). The trees that had been cut were "almost entirely" Alpine fir though there were a "few" spruce. Bartlett and the other forest ranger began to cut off the top sections of the tree stumps. (Id. at 15). Bartlett left his partner to complete the cutting and returned to Beaver with the initial stump cuts and obtained a warrant to search Black's tree lot.

In the meantime Bartlett's wife had been asked by John Osborn, a Forestry Technician assigned to the Beaver office, to watch Black's lot for the delivery and unloading of any trees. (R. I, 55, 71). About 9:30 a. m., Mrs. Bartlett observed a blue GMC truck with white racks, which she had seen Speir drive on prior occasions, loaded with trees. (Id. at 55, 57). She identified Speir as the driver and defendant Puffer as the passenger. (Id. at 57). When the truck arrived at Black's tree lot, Mrs. Bartlett then telephoned Osborn.

After entering the lot Speir and Puffer unloaded the trees and stacked them on the north side of the fence surrounding the lot. (R. I, 58-59). While the trees were being unloaded Osborn drove by the lot and observed that the trees were "basically Alpine fir." (Id. at 71-72). The trees were not moved for the rest of the day. (Id. at 60).

At approximately 5:00 p. m., Bartlett, Osborn and several other forest rangers and law enforcement officers arrived at Black's lot with a search warrant. Osborn directed Bartlett to the stack of trees that he had seen unloaded from Speir's truck. The stack consisted of 200-300 trees, most of which were Alpine fir. (R. I, 20-21). Bartlett pulled two Engelmann spruce trees from this stack and matched them up with two of the stump cuts that he had made in the National Forest near Marysvale. (Id. at 21-22). At about this time Speir told Mr. Osborn that if one of the limbs were broken on the trees, they would have to pay for it. (Id. at 76). Bartlett had the stack of trees seized and removed to the Forest Service warehouse where additional stump cuts were matched. Defendants were thereafter charged with the violations of § 641 described above.

In their defense, Speir and Puffer testified that on November 26 they had been cutting pinyon pines in Hamlin Valley, an area approximately 90 miles west of Beaver. Speir testified that on the morning of November 27, he left his house at about 7:30 a. m., purchased gas at a service station in Beaver at 8:00 a. m. which was paid for with a check introduced into evidence at the trial, and picked Puffer up at his house at about 8:30 a. m. to help him unload at Black's lot a load of pinyon trees which had been cut in Hamlin Valley. Pinyon pine was the only type of tree unloaded by them at the lot. (Id. at 97-99).

An attendant from the gas station verified Speir's stop at the station in Beaver at about 8:00 a. m. and said Speir's truck was loaded with pinyon pine. (Id. at 111-12). Speir testified that his arrangement with Black was by consignment and he was paid if Black sold the trees. Speir said he also supplied other people with trees. He said Black had 8 or 10 cutters working for him who supply him and other people. (Id. at 105-06). Puffer's testimony corroborated that of Speir and made a similar defense.

Black testified that he had delivered a load of trees to Ogden, Utah, on the night of November 26 and returned to Beaver at about 6:00 a. m. the following morning. He then went to bed until the early afternoon. At about 4:00 p. m. he began loading his truck in preparation for another trip to Ogden. When Speir and Puffer drove past his lot, he asked them to assist him with the loading. He testified that they told him the trees they had cut were from Pine

Valley. A. The proof connecting Speir and Puffer to theft of

trees from the National Forest

Defendants Speir and Puffer first contend the Government's proof was insufficient to establish that the trees seized from Black's lot were the same trees unloaded by Speir and Puffer earlier that day. They say there was a break in Mrs. Bartlett's observation, that the trees were not watched all day by Osborn and Mrs. Bartlett, and that her son who watched some of the time did not testify.

We cannot agree. Mrs. Bartlett watched the unloading except for about one minute while she changed her vantage point. (R. I 63, 70). Osborn also testified he saw where Speir and Puffer were stacking the trees. (Id. at 71). Osborn was there when the rangers went to the lot with the search warrant and testified that "they were loading that particular pile of trees." (Id. at 74). Moreover, an admission of some interest in these particular trees was made by Speir when he told Osborn that if they broke a limb off the trees, they would have to pay for it. (Id. at 76).

The weighing of the evidence was for the jury and it was clearly sufficient for the jury to infer the trees which were seized were those brought in by Speir and Puffer.

Defendants Speir and Puffer next argue that the proof failed to establish that the trees seized in Black's lot had been taken from the National Forest. Despite numerous arguments on the weakness of the matching process, Ranger Bartlett testified that he was directed by Osborn to the bunch of trees Osborn saw unloaded and Bartlett made a match of two Engelmann spruce stumps taken from the National Forest to two spruce trees in Black's lot. (Id. at 20-22). The trees taken from the forest and the pile of trees Bartlett was directed to by Osborn were both largely Alpine fir. (Id. at 20). Bartlett also said that in all some 115 or 176 such matches were made by him or under his supervision. (Id. at 18, 20, 22, 45-47).

We have discussed the main portions of the Government proof and the principal arguments challenging it, which we find unpersuasive. We feel that additional points require no further discussion and are convinced that the evidence amply supports the inference that the trees brought in by Speir and Puffer were taken

from the National Forest. B. The requirement of knowledge

that the trees were property of the Government

Further, defendants Speir and Puffer argue that their convictions must be reversed under Findley v. United States, 362 F.2d 921 (10th Cir.) and United States v. Baltrunas, 416 F.2d 401 (10th Cir.). Specifically they contend that it was necessary for the Government to prove that they "knew that the property involved belonged to, and was stolen from, the government." Id. at 402. They say that this required proof was lacking and that the trial court erred by not instructing the jury that...