United States v. Butler

• Citation: 494 F.2d 1246
• Decision Date: 04 April 1974
• Docket Number: 73-1362 and 73-1363.,73-1360,No. 73-1359,73-1359
• Parties: UNITED STATES of America, Appellee, v. Tommy L. BUTLER et al., Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

494 F.2d 1246 (1974)

UNITED STATES of America, Appellee, v. Tommy L. BUTLER et al., Appellants.

Nos. 73-1359, 73-1360, 73-1362 and 73-1363.

United States Court of Appeals, Tenth Circuit.

Submitted January 7, 1974.

Decided April 4, 1974.

Rehearing Denied May 31, 1974.

Arthur S. Bay, of Bay, Hamilton, Renegar & Lees, Oklahoma City, Okl., for appellant, Tommy L. Butler.

Gene Stipe, of Stipe, Gossett, Stipe & Harper, Oklahoma City, Okl., for appellant, Phillip Leonard Gregg.

Paul A. Mancino, Jr., Cleveland, Ohio, for appellant, Wayne Herbert Reinke.

Mac Oyler, Oklahoma City, Okl., for appellant, Ronald James Slomkowski.

John E. Green and Susie Pritchett, Asst. U.S. Attys. (William R. Burkett, U.S. Atty., with them on the brief), for appellee.

Before SETH and HOLLOWAY, Circuit Judges, and BRATTON, District Judge.

SETH, Circuit Judge.

The indictment originally charged twenty-three defendants in one count of conspiracy to convert Government property in violation of 18 U.S.C. § 641 and to commit depredation against Government property in violation of 18 U.S.C. § 1361, and charged various combinations of these defendants in forty additional counts alleging substantive violations of these statutes. The individual motions to sever were denied, and the consolidated trial took slightly more than one week. We have before us the appeals of four defendants.

All twenty-three persons originally indicted were military and civilian employees of the United States Air Force working at Tinker Air Force Base, Oklahoma. The military defendants were members of either the 3d Mobile Communications Group or the 1984th Telecommunications Squadron, while the defendant Gregg, a civilian, was employed in the Redistribution and Marketing (R & M) facility at Tinker. R & M is basically a storage facility and clearinghouse for obsolete or unserviceable Air Force equipment. By following appropriate procedures Air Force personnel can withdraw items of equipment from R & M for use by their units. Such equipment is often "cannibalized" to provide needed repair parts or components which are not available through normal supply channels. Equipment which cannot be reintroduced to Government use is eventually sold for salvage value to private buyers. Although R & M houses various classes of equipment, this case primarily involves radio and electronic related items.

During the period between August 1971 and January 1972, the defendants allegedly conspired to and did obtain numerous items of equipment from R & M to be converted to their own use or destroyed. Sergeant Greene, who entered a guilty plea, and Sergeant Johnson appear to have been the key figures in the operation and the persons responsible for obtaining most of the equipment. The appellant Gregg, in his capacity as a clerk at R & M, allegedly assisted the two sergeants in procuring the equipment and concealing its disposition. The remaining appellants were recipients of equipment thus obtained. In addition, the appellant Slomkowski, in concert with certain other members of the 1984th Squadron allegedly conspired to and did destroy some component parts to a teletype test unit which had originally been obtained from R & M.

Although these appeals were consolidated for purposes of argument, the number and variety of issues asserted in each necessitates their separate, individual consideration.

No. 73-1359 — Tommy L. Butler:

Appellant Butler was convicted under the general conspiracy count and under count 22 for having received a stolen radio in violation of 18 U.S.C. § 641. The record discloses that he was assigned to the 3d Mobile, and was a member of the same section as Sergeant Greene during a portion of the period during which the alleged conspiracy existed. Some time during November 1971 Sergeant Greene acquired a number of Jeep radios from R & M. After deciding that he personally could not use them, he apparently brought a number of them to the shop where he and Airman Butler worked and left them there with the understanding that anyone who wanted one could have one. Butler was apparently fairly new in the unit. Sergeant Greene, according to the record, may have indicated at the time that they were salvage and not accountable to the Air Force. Airman Butler carried one of the radios to his quarters on base, where he uncrated it, examined it briefly, recrated it, and placed it in his locker. Shortly thereafter Airman Butler was reassigned to the Philippines. Upon his departure he left the radio behind in his military locker. His roommate testified that he left no instructions as to its disposition.

Only twenty-four of the more than 1,200 pages of testimony given at trial pertain directly to Airman Butler. His involvement in the events leading to this prosecution was apparently confined to the incident described above. Nowhere in the record can we find testimony implicating him in a conspiracy. This court has often noted that the essence of the crime of conspiracy is an agreement to violate the law. Carter v. United States, 333 F.2d 354 (10th Cir.). While the agreement need not take any particular form, there must at some point be a meeting of the minds in the common design, purpose, or objects of the conspiracy. One cannot become a conspirator until he has entered such an agreement, and, of course, such entry can be after the conspiracy is formed, but we find no evidence that Airman Butler ever became a conspirator. Appearing as a Government witness, Sergeant Greene testified that Airman Butler, as well as other members of their section, was aware of the arrangement between himself and Sergeant Johnson for procuring equipment from R & M. Assuming this conclusion to be correct, mere knowledge or approval of or acquiescence in the object and purpose of a conspiracy without an agreement to cooperate in achieving such object or purpose does not make one a party to a conspiracy. Jones v. United States, 365 F.2d 87 (10th Cir.). There is no suggestion that Airman Butler was ever aware of any specific plan to obtain the radios from R & M, much less that he cooperated in such a plan. Rather, the clear inference is that Sergeant Greene appeared with the radios, and left them at the shop for whomever might want one as unaccountable salvage. It was not until that point that Airman Butler decided to take one to his quarters. Such an action alone simply cannot be interpreted as a decision to join a conspiracy. See United States v. Varelli, 407 F.2d 735 (7th Cir.).

We find the evidence equally insufficient to support conviction of the substantive offense of receiving stolen Government property in violation of 18 U.S.C. § 641. After taking the radio to his military quarters and examining it, Airman Butler placed it in his locker and apparently never again disturbed it. When he departed Tinker a few weeks later, it was left behind in the locker with no instructions as to its disposition. Nowhere does it appear that he attempted to remove it from the base or otherwise dispose of it to his advantage. In the plain language of the statute, knowledge that the property is stolen and intent to convert it to one's own use or gain are essential elements of the offense. Making the questionable assumption that Airman Butler knew that the radio had been stolen, his conduct, when viewed in the light of the other circumstances of this case, fails to carry sufficient suggestion of an intent to convert it to his own use or gain. It might even be argued, at least in a figurative sense, that the radio never left Government control.

We have evaluated the evidence, as we must, in the light most favorable to the Government and allowed it the benefit of every reasonable inference. Even so, we find the case against Airman Butler inadequate to support either conviction. We therefore reverse his conviction with instructions that the charges against him be dismissed.

No. 73-1360 — Phillip L. Gregg:

Although originally charged in sixteen counts of the indictment, appellant Gregg was acquitted of all but the conspiracy charge. Our review of the record fails to uncover adequate support for that conviction as well.

During the period of the alleged conspiracy, Mr. Gregg was employed as a civilian clerk at the R & M facility. He was assigned as a utilization specialist, responsible for a particular series of federal stock numbers consisting primarily of electronic communications equipment. His principal function was to process requests from various Government agencies for equipment within that series which might be in storage at R & M. While many of these requests were either by letter or the appropriate Department of Defense form, it was not unusual for Air Force personnel from the various units at Tinker to "shop" at R & M for items which their units might need or be able to use. When such an item was located Mr. Gregg, or other clerks holding similar positions, would assist the "customer" in completing the official requisition form, and then direct him to the appropriate agency to have the form approved. In most cases this would be the Depot Supply Officer, who would retain copies of the approved form for accounting purposes. The customer would then return to R & M with the approved requisition and would be issued the item. Mr. Gregg would also retain various copies of the approved requisition for R & M records and subsequent distribution. In some cases such distribution may have included the supply officer of the unit drawing the equipment. However, due to the volume of transactions at R & M, distribution of the retained copies did not always follow a consistent pattern, and reliance was placed on the Depot Supply Office to maintain accountability for the equipment after it left R & M. It appears there was also a requirement that "shoppers" from the units at Tinker have a letter of authorization from their unit on file at R & M. Again, because of the heavy volume of business, this requirement was not vigorously...