United States v. Briddle

• Decision Date: 25 June 1971
• Docket Number: No. 20274.,20274.
• Parties: UNITED STATES of America, Appellee, v. Russell Eugene BRIDDLE, John Russell Brown, William Edward Mourey, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

443 F.2d 443 (1971)

UNITED STATES of America, Appellee, v. Russell Eugene BRIDDLE, John Russell Brown, William Edward Mourey, Appellants.

No. 20274.

United States Court of Appeals, Eighth Circuit.

June 3, 1971.

Rehearing and Rehearing Denied June 25, 1971.

COPYRIGHT MATERIAL OMITTED

Murry L. Randall, St. Louis, Mo., for appellants.

Allen L. Donielson, U. S. Atty., Des Moines, Iowa, John B. Grier, Asst. U. S. Atty., Des Moines, Iowa, for appellee.

Before CLARK, Associate Justice,^* MATTHES, Chief Judge, and BRIGHT, Circuit Judge.

Rehearing En Banc Denied and Rehearing Denied June 25, 1971.

BRIGHT, Circuit Judge.

Appellants Russell Eugene Briddle, John Russell Brown and William Edward Mourey were convicted by a jury of conspiring to break into the United States Post Office at Fort Madison, Iowa, in violation of 18 U.S.C. § 371 (Count I); of forcibly breaking into that post office with intent to commit larceny therein, in violation of 18 U.S.C. § 2115 (Count II); and of willfully damaging property of the United States there in excess of $100 in value, in violation of 18 U.S.C. § 1361 (Count III). The federal district court, Chief Judge Stephenson, sentenced each defendant to maximum terms of five years on Count I, five years on Count II, and ten years on Count III, providing, however, that the sentences on Counts II and III would run concurrently, for a total of fifteen years imprisonment. The defendants appeal, claiming insufficiency of the evidence, errors committed by the trial court in admitting evidence and instructing the jury, and abuse of discretion by the trial court in denying the defendants' request for a continuance. After carefully reviewing the record, we affirm the convictions.

The record of the proceedings, including the transcripts of the trial and hearings on pretrial motions, discloses that postal authorities learned through four informants, described as reliable, that Briddle, Brown and Mourey planned a major burglary for the weekend of Thanksgiving, November 27, 1969. Commencing about November 16, postal authorities, assisted by other law enforcement officers, conducted extensive surveillance of each defendant. The three defendants were observed meeting together before noon, November 26, at Brown's residence. That afternoon, Brown drove to Kansas City, Missouri, where he purchased welding and cutting equipment, including a striker, used to ignite the cutting torch, which bore the marking "Hohenschield Welding Supply." Similar equipment of the same brand, including a striker with the same marking, was found at the scene of the Fort Madison post office burglary. Hohenschield Welding Supply Company is a local Kansas City firm which sells welding supplies within a hundred-mile radius of Kansas City. The other equipment was of a brand sold nationwide. After purchasing the equipment, Brown transported it in the trunk of his car back to St. Louis, where he stopped in the driveway of Mourey's residence.

At about 10:00 a. m. the next day, November 27, Briddle visited Brown's residence. Later, Briddle purchased six pairs of brown cotton gloves, one metal cold chisel and a punch at a nearby Arlan's department store. At the store checkout counter, he dropped a note which read: "Service Car. Pick up chisel and punch and gloves at Arlan's on the way. License plate, nuts and bolts." A cold chisel and a punch found at the scene of of the burglary were similar to tools available at the Arlan's store, even to the extent of markings left by plastic tape used to attach the tools to display cards for retail sale. Later in the afternoon, Brown and Briddle left Brown's residence in a 1965 lavender-colored Chevrolet bearing no license plates. They had the car serviced at a Standard Oil station in St. Louis and then drove the car to Mourey's residence. At this time, the automobile displayed a Kansas license plate, number WY27175, which had been stolen earlier in the week from a used car lot in Kansas City.

The three defendants were then observed driving north on U.S. Highway 61 out of the St. Louis area, Briddle and Brown in the 1965 Chevrolet followed by Mourey in a 1965 Buick. At Bowling Green, Missouri, and again at Hannibal, Missouri, the drivers drove around in different directions upon the streets in an apparent attempt to confuse followers. Mourey parked the Buick automobile in a residential area of Hannibal and apparently joined Briddle and Brown in the Chevrolet. The Chevrolet was seen about 6:45 p. m., November 27, going north out of Hannibal on Highway 61, which leads to Fort Madison, Iowa. That night, a Fort Madison police officer observed a 1965 Chevrolet, described as silverish-colored, bearing a Kansas license plate with a "WY" prefix and a trailer hitch similar to the one on the defendants' Chevrolet. Sometime between 10:30 p. m. that night and 2:00 a. m. the next morning, unseen persons broken through the front doors of the Fort Madison post office, cut their way into the main vault and took stamps, cash and other items, valued at approximately $65,000.

Postal inspectors continued surveillance on the Buick automobile left in Hannibal by the defendants on November 27. Mourey returned to the vehicle on foot the next afternoon. A short time later, Briddle drove up in the 1965 Chevrolet. Mourey, who apparently could not start the Buick, jumped into the Chevrolet with Briddle. At this time, postal inspectors, on foot and in vehicles, stopped the Chevrolet and arrested Briddle and Mourey. Officers apprehended Brown later. Immediately following the arrest of Briddle and Mourey, the officers searched the Chevrolet automobile. From the trunk, they seized several weapons, a laundry bag containing $345.59 in currency, ski masks and cotton gloves of the same type as those purchased by Briddle the day before. The currency included a dime with a green discoloration on one side. A postal clerk identified this dime as being similar in appearance to one he had placed in a cash drawer at the post office two or three days before the burglary. At the scene of the burglary, investigators found a distinctive leather button top, which matched the buttons and the bottom part of a particular button, on a leather coat taken from Briddle immediately following his arrest.

We now consider the several contentions made by appellants on this appeal.

SUFFICIENCY OF THE EVIDENCE

Appellants claim that the evidence is insufficient to link them with entry and burglary of the post office in question. We think that, although circumstantial in nature, the evidence, taken cumulatively, establishes a strong link connecting the defendants to the Fort Madison post office burglary. As noted above, several items found at the scene of the burglary were of the same type as those purchased earlier by the defendants. These items included gloves, a cold chisel, a punch, and welding and cutting equipment, including a "Hohenschield Welding Supply" striker. The defendants, at the time of their arrest, possessed a dime which was discolored similar to one previously seen in the post office. A unique button top, found in the postal inspector's office, which is not frequented by postal patrons, was shown to have come from the coat worn by Briddle. The Fort Madison police officer's observation of a 1965 Chevrolet, appearing similar to the defendants' Chevrolet, the night of the burglary, also links the defendants to the vicinity of the crime. The officer's characterization of the car color as silver does not negate the inference that the 1965 Chevrolet was present in Fort Madison the night of the burglary.

The evidence affords more than adequate grounds to sustain the jury's verdict and the trial court's denial of defendants' motions for an acquittal. In support of their contention, appellants cite United States v. Jones, 418 F.2d 818 (8th Cir. 1969). In that case, this court specifically noted that except for the defendant's possession of recently stolen money, "no fact or circumstance proves that defendant participated in the actual robbery or acted as an accessory * * *." Id. at 827. The facts and circumstances in the instant case are clearly different.

INSTRUCTION: PROPERTY OF THE UNITED STATES

Appellants contend that the trial court, in an instruction, improperly removed an essential element of one of the offenses from the jury's determination — that "property of the United States" be damaged. The offense is set forth in 18 U.S.C. § 1361, which, in part, states:

Whoever willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof, * * * shall be punished as follows:

If the damage to such property exceeds the sum of $100, by a fine of not more than $10,000 or imprisonment for not more than ten years, or both * * *.

The government occupied the Fort Madison post office building as a lessee under a written lease which was admitted into evidence. During the trial, the defendants argued that only property of the lessor, not of the United States, sustained damage. The trial court advised counsel that it would construe the lease, and subsequently, it instructed the jury as follows:

One of the propositions the Government must establish beyond a reasonable doubt is that the defendants did injure property of the United States, that is, an aluminum door and a walk-in vault located in a building used as a Post Office of the United States, thereby causing damage in excess of $100.00. In this connection you are instructed that the United States had a leasehold interest in the building which it occupied as a Post Office. Therefore, both the building and the vault were property of the United States.

Since the construction of the lease constituted an issue of law for the court, we think the trial court properly instructed the jury. See Magnolia Motor & Logging Company v. United States, 264 F.2d 950, 952-953 (9th Cir.), cert. denied, 361 U.S. 815, 80 S.Ct. 54, 4 L. Ed.2d 61 (1959); ...