United States v. Bedwell, 71-1341.
| Citation | 456 F.2d 448 |
| Decision Date | 27 March 1972 |
| Docket Number | No. 71-1341.,71-1341. |
| Parties | UNITED STATES of America, Appellee, v. Earl Claudis BEDWELL, Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
James A. Pusateri, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., on the brief), for appellee.
Hartzell J. Whyte, Kansas City, Kan., for appellant.
Before LEWIS, Chief Judge, and McWILLIAMS and BARRETT, Circuit Judges.
Earl Claudis Bedwell, a prison inmate at the federal penitentiary at Leavenworth, Kansas, was convicted of violating that part of 18 U.S.C. § 1792 which makes it unlawful to convey into a penal institution, or "from place to place therein, any firearm, weapon, explosive, or any lethal or poisonous gas, or any other substance or thing designed to kill, injure, or disable any officer, agent, employee or inmate thereof * * *." Specifically, the charge against Bedwell was that he did knowingly and wilfully convey 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 knife, in violation of the aforesaid 18 U.S.C. § 1792. Trial by jury resulted in a guilty verdict and Bedwell was thereupon sentenced to a maximum period of five years to run consecutive to the sentence he was then serving. Bedwell now appeals and his only argument goes to the sufficiency of the evidence.
The Government's evidence against Bedwell is summarized as follows: (1) Bedwell, an inmate in the federal penitentiary at Leavenworth, was assigned to work on the first floor of the prison's shoe factory; (2) on the first floor of the shoe factory is an area designated as the carpenter shop and within the carpenter shop area is a belt sander; (3) during the noon hour a shoe factory foreman observed Bedwell running the edge of a metal object across the belt sander; (4) as the foreman approached Bedwell the latter dropped the object to the floor behind a box next to the sander; (5) the foreman retrieved the object thus dropped by Bedwell, the object being described as a knife or a "shiv"; and, (6) the knife was "home-made," with the metal portion thereof not being normally stored in the shoe factory, though the wooden handle and the rivets were from the carpenter shop area.
At the conclusion of the Government's case, Bedwell moved under Fed.R.Crim. P. 29 for a judgment of acquittal on the grounds that there was insufficient evidence to support the charge that he "conveyed from place to place" within the penitentiary a knife. The trial court denied the motion. Bedwell thereupon took the witness stand and testified in his own behalf. His testimony was that he found what he called a "tool" lying on a bench located in the carpenter area on the first floor of the prison shoe factory and that he picked up the tool and was edging it on the belt sander when the shop foreman came upon him.
At the conclusion of all the evidence Bedwell again moved for a judgment of acquittal on the ground that there was insufficient evidence that he conveyed a knife from place to place within the prison. This motion was denied. As indicated, the jury returned a guilty verdict and Bedwell now appeals.
On appeal Bedwell's position necessarily has to be that the entire record considered, there is simply insufficient evidence to sustain a conviction. See United States v. Greene, 442 F.2d 1285 (10th Cir. 1971), where we declared that a defendant by offering evidence after a denial of a motion for acquittal waives that motion and thereafter the question of the sufficiency of the evidence to sustain a conviction is to be determined by an examination of the entire record. So, our precise task is to determine from the entire record whether there is sufficient evidence to support the jury's determination that Bedwell had conveyed a knife from "place to place" within the institution. Let us first examine the statute in question.
As we read it,...
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...States v. Kirkland, 637 F.2d 654, 656 (9th Cir.1980); United States v. Jasper, 523 F.2d 395, 397 (10th Cir.1975); United States v. Bedwell, 456 F.2d 448, 450 (10th Cir.1972). This court has held that the government must present "independent evidence of the 'conveying' beyond the actual poss......
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