United States v. Barber

Decision Date20 July 1970
Docket NumberNo. 18308.,18308.
Citation429 F.2d 1394
PartiesUNITED STATES of America v. James Allen BARBER et al. Appeal of Calvin Jerome LOPER.
CourtU.S. Court of Appeals — Third Circuit

Richard E. Poole, Potter, Anderson & Corroon, Wilmington, Del., for appellant.

Norman Levine, Asst. U. S. Atty., Wilmington, Del. (F. L. Peter Stone, U. S. Atty., Wilmington, Del., on the brief) for appellee.

Before HASTIE, Chief Judge, and MARIS and ADAMS, Circuit Judges.

OPINION OF THE COURT

HASTIE, Chief Judge.

The appellant Calvin Loper was tried jointly with twelve other defendants under an indictment charging him with assaulting, or aiding and abetting an assault on Frank Grant, an F. B. I. agent, with a dangerous weapon, namely a shoe, in violation of 18 U.S.C. § 111 (1964); with assaulting or aiding and abetting an assault on James Snyder, an F. B. I. agent, also in violation of 18 U. S.C. § 111; with conspiring to prevent by force, intimidation, and threats the two agents from performing their official duties, in violation of 18 U.S.C. § 372 (1964); and with aiding and assisting the escape of the prisoner, in violation of 18 U.S.C. § 752(a) (Supp. I, 1965). At the conclusion of a three week trial, Loper was found guilty on all four counts and sentenced to prison terms aggregating fifteen years.1 On this appeal it is contended that the trial court erred in denying appellant's motion for acquittal notwithstanding the verdict or for a new trial. D.Del.1969, 303 F.Supp. 807.

The record shows that during the afternoon of October 29, 1968 special agents Frank Grant and James Snyder of the Federal Bureau of Investigation engaged in a search for an army deserter in Wilmington, Delaware. The alleged deserter was apprehended in the home of his mother at 2209 Pine Street, Wilmington at approximately 3:30 p. m. As the agents left the house with their prisoner and turned up Pine Street toward their car on Twenty-second Street, a group of approximately fifteen men walked down Pine Street toward them and came face to face with them at or near the corner of Twenty-second and Pine. The agents walked to within five feet of the group and stopped briefly. Grant removed his credentials from his pocket, held them out before him and stated, "F. B. I. We have a man in custody. Make room for us to pass." The group was informed that the prisoner was a deserter being returned to the army, and warned that anyone interfering would be arrested for assaulting a Federal officer. Immediately after saying this, the agents proceeded forward and were attacked by several individuals from the group.2 In the course of the affray, which lasted only a few minutes, agent Grant was knocked down and kicked severely in the side of the face and the prisoner escaped.

We consider first whether there was any evidence from which the jury might properly have found that Loper assaulted either of the F. B. I. agents. Only two witnesses, Catherine Butler Wright and Deborah Price, gave testimony that could be thought to lend any support to such a finding.

Catherine Wright, a passerby at the time of the affray, testified that one of the persons she saw on top of an agent was "a guy by the name of Loper." However, she then stated that "Loper's" first name was "Marvin" and described the individual to whom she was referring as a light-skinned Negro, in contrast to the appellant who is very dark. On cross examination, when shown a group of photographs in which appellant Calvin Loper's was prominently displayed, Miss Wright stated emphatically that a photograph of the "Marvin" to whom she had referred was not included. Moreover, she did not recognize the appellant in the courtroom. We must conclude, as the prosecutor conceded during a side-bar conference, that "Catherine Butler Wright did not identify defendant Loper." Rather, she incorrectly used the name Loper in an effort to identify a person other than the appellant.

The one other witness who in any way implicated the appellant in the fighting was a 15 year old girl, Deborah Price, who first named three persons other than the appellant as persons who were holding one of the agents. She then changed her story and named "Calvin Loper" as one of the three. However, Miss Price failed to identify the appellant either from photographs or in the courtroom. Indeed, on cross examination she positively identified the photograph of another individual, Bootsie Burton, as that of the "Calvin Loper" she had seen holding one of the agents. It is not surprising, therefore, that on argument of a post-trial motion the prosecutor remarked that the jury "probably placed very little reliance on the testimony of Miss Price." But whatever the jury may have done, it is clear on the record and we now hold that the testimony of Deborah Price had no probative value as evidence that the appellant assaulted either of the agents.

We also have observed that in sentencing Loper, the court said to him: "there is evidence that you kicked the agent." At the argument of this appeal the government conceded that there was no such evidence, and we have found none. The understandable mistake of the able and conscientious trial judge serves merely to show how confusing it is when many defendants are subjected to a long mass trial throughout which bits and pieces of evidence about different defendants are scattered in a disorganized way. Even an experienced trial judge finds it very difficult accurately to marshal and weigh the proof against each of the accused.

Since the record does not justify a finding that Loper joined in the criminal attack upon the F. B. I. agents, we must consider whether the record shows that he did anything short of physically assaulting the agents that justifies his conviction.

Although even the appellant's alleged presence at the scene of the crime was disputed, three witnesses did identify him as a member of the group of about fifteen persons that confronted the agents just before the attack upon them. Thus, the jury could properly find that Loper was then present. But beyond that, there is no evidence...

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    ...The kinds of conduct which can constitute aiding and abetting are many and varied. Former Chief Judge Hastie, in United States v. Barber, 429 F.2d 1394, 1397 n. 4 (3d Cir.1970), listed several which have applicability to this .. The fact that an individual has served as a lookout during the......
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