United States v. Acosta, 73-1732.

• Decision Date: 22 April 1974
• Docket Number: No. 73-1732.,73-1732.
• Citation: 495 F.2d 60
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Valasquez ACOSTA, Defendant-Appellant.

495 F.2d 60 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. David Valasquez ACOSTA, Defendant-Appellant.

No. 73-1732.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted March 21, 1974.

Decided April 22, 1974.

E. Edward Johnson, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., and Thomas A. Hamill, Asst. U. S. Atty., on the brief), for plaintiff-appellee.

Lynn R. Johnson, Kansas City, Kan., for defendant-appellant.

Before BREITENSTEIN, SETH, and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

David Velasquez Acosta was charged with unlawfully conveying from place to place within the United States Penitentiary at Leavenworth, Kansas, a thing designed to kill, injure or disable an employee, officer, agent or inmate thereof, to wit: a homemade knife, in violation of 18 U.S.C. § 1792. His first trial on that charge ended in a mistrial as the result of a hung jury.

Acosta was then tried six months later on the same charge, and this time the jury convicted. On appeal Acosta now asserts that the trial court erred in three particulars: (1) in refusing to grant his motion for acquittal made at the close of the Government's case and renewed at the close of all the evidence, which motion was based on the alleged lack of evidence that he, Acosta, conveyed a knife from "place to place" within the penitentiary as contemplated by 18 U.S.C. § 1792; (2) in denying his request for a copy of the transcript of the testimony given at the first trial of his case; (3) in sentencing him to a three-year term of imprisonment to be served consecutively with any other sentence he was then serving, when he had previously received administrative punishment for the same transaction, all of which, according to Acosta, constitutes double jeopardy.

In our view, the failure of the trial court to give Acosta a copy of the transcript of the testimony given at his first trial constitutes reversible error. Since our disposition of the matter may conceivably result in a third trial on this matter, we shall consider all matters raised on appeal. Brief reference to the evidence adduced upon trial will place this appeal in context.

The Government's evidence showed that Acosta walked from a point within and somewhere near the center of the west storeroom of the penitentiary to a point at the rear of the storeroom where a latrine area had been partitioned off from the rest of the storeroom by a five-foot partition. More particularly, three employees of the penitentiary went to the west storeroom for the purpose of escorting Acosta, who was assigned to work in the west storeroom, to the administrative office for questioning. When they confronted Acosta inside the west storeroom, Acosta was carrying a gallon jar filled with ice in each hand. When informed that he was to go to the administrative office, Acosta asked if he could "put the jars away?" When told that he could, Acosta walked some fifteen feet towards the latrine area, with one of the penitentiary employees, Carl Mills, at his elbow. Going inside the partitioned latrine area, Acosta, according to the penitentiary employee who had followed him, placed the jars of ice on a table, and then reached into his rear pocket and took out a homemade knife and dropped it into a cardboard box filled with toilet tissue. The employee thereupon told Acosta to "step away" and he then retrieved the knife. Thus, the Government's case was based entirely on the testimony of these three penitentiary employees, with particular reliance on the testimony of Carl Mills, who was the one who actually followed Acosta into the latrine area and was the only one who saw Acosta take the knife from his pocket and drop it into the box.

Acosta testified in his own behalf, and the gist of his testimony was that he was being framed. Acosta denied having a knife on his person or dropping one into the box, and it was his belief that the penitentiary employee actually had the knife in question on his own person, and falsely accused him of carrying the knife into the latrine area and then dropping it into the box. Several fellow inmates supported, in varying degrees, Acosta's version of the incident. With this background we shall now examine each of the matters urged on appeal.

In our view the Government's evidence is sufficient to show that there was a conveying of the knife from "place to place" within the penitentiary to bring the instant case within the purview of 18 U.S.C. § 1792. Accordingly, the trial court did not err in denying Acosta's motion for acquittal made at trial. The Government's evidence tended to show that Acosta conveyed a knife some fifteen feet, at least, into and inside a partitioned latrine area in the rear of the west storeroom where he attempted to unload the weapon by dropping it into a box filled with toilet issue. Such evidence is sufficient to establish a violation of 18 U.S.C. § 1792. We believe our conclusion in this regard is in accord with the rationale of our prior decisions relating to the meaning to be given the phrase "place to place." See United States v. Swindler, 476 F.2d 167 (10th Cir. 1973), cert. denied, 414 U.S. 837, 94 S.Ct. 183, 38 L.Ed.2d 72 (1973); United States v. Hedges, 458 F.2d 188 (10th Cir. 1972); United States v. Meador, 456 F.2d 197 (10th Cir. 1972); and United States v. Bedwell, 456 F.2d 448 (10th Cir. 1972).

In Swindler, for example, a conveyance from a sanding machine in the carpenter's shop to an office some fifty feet away was held to be conveyance from "place to place." In Swindler, we indicated a conveyance from "place to place" need not necessarily be for a long distance, and could be for even a "short space." In Meador, a conveyance of a knife from a cell to the front of the cell house, a distance of 100 yards, was held to be a conveyance from place to place.

Counsel's reliance on Bedwell as dictating a reversal is misplaced. In Bedwell we held that the act of running a blade across a sander and then allowing the blade to drop to the floor was not conveying the blade from place to place within the penitentiary. We also held in Bedwell that the "other" evidence in that case was insufficient to permit the inference that, based on "present" possession, there had been a "prior" or "earlier" conveying of the blade in question. The present case is factually dissimilar from Bedwell in important particulars. Here, the Government's evidence, which the jury chose to believe, showed that Acosta, with a gallon jar of ice in each hand and with a knife in his hip pocket, which knife necessarily had been placed there sometime before he was first confronted by the prison authorities in the west storeroom, walked some fifteen feet into and inside the partitioned latrine area where he attempted, unsuccessfully, to unload the knife. Such constitutes a conveyance from place to place within the meaning of 18 U.S.C. § 1792.

We shall next consider Acosta's claim that the penalty imposed in the instant case constitutes double jeopardy since he had already suffered administrative punishment at the hands of prison officials for the same transaction. This argument has been considered by us before and rejected. It is well established in this Circuit that administrative punishment imposed by prison officials does not render a subsequent judicial proceeding, criminal in nature, violative of the Fifth Amendment prohibition of double jeopardy.

We now come to Acosta's contention that the trial court erred in denying his request for a free transcript of his first trial, which, as mentioned earlier, resulted in a mistrial when the jury was unable to agree. The facts concerning this particular phase of the case should be developed a bit. The first trial ended in a mistrial on December 14, 1972. On January 12, 1973, counsel for Acosta filed a motion for a transcript of the testimony given at the first trial. This motion was denied by the trial court, without comment, on January 22, 1973. The case thereafter came on for a second trial on June 11, 1973, which resulted in a verdict of guilty returned by the jury on June 12, 1973.

In his motion for a new trial made after his conviction in the second trial, Acosta, through his attorney, asserted that the key Government witness, Carl Mills, had committed perjury, and that accordingly it was error for the trial court to have previously denied his motion for a transcript. This motion was denied.

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