United States v. Cameron, 71-3138.

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: GOLDBERG, DYER and SIMPSON, Circuit
• Citation: United States v. Cameron, 460 F.2d 1394 (5th Cir. 1972)
• Decision Date: 01 June 1972
• Docket Number: No. 71-3138.,71-3138.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles D. CAMERON, Defendant-Appellant.

460 F.2d 1394 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Charles D. CAMERON, Defendant-Appellant.

No. 71-3138.

United States Court of Appeals, Fifth Circuit.

June 1, 1972.

COPYRIGHT MATERIAL OMITTED

Samuel L. Egger, San Antonio, Tex., for defendant-appellant.

Seagal V. Wheatley, U. S. Atty., Henry J. Novak, Jr., Asst. U. S. Atty., William S. Sessions, U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Before GOLDBERG, DYER and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

Charles D. Cameron, a practicing attorney of San Antonio, Texas, was tried before a jury below on his not guilty plea to an indictment in two counts. Count 1¹ charged a violation of Title 18, United States Code, Section 2113(c),² and Count 2³ alleged a violation of Title 18, United States Code, Section 1510.⁴ Upon a verdict of guilty as charged, he was adjudged guilty and concurrent eighteen months confinement sentences were imposed. This appeal is from that judgment and sentence. We reverse and remand the judgment under Count 1 and reverse and render the judgment under Count 2.

I. THE EVIDENCE

At trial, the evidence introduced and reasonable inferences therefrom, viewed most favorably to the prosecution, Glasser v. United States, 1944, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, warranted belief by the jury that substantially the following occurred.

At 2:30 P.M., June 1, 1971, three men armed with revolvers robbed a facility of the Brooks Field National Bank at Brooks Air Force Base, San Antonio, Texas, an FDIC insured bank, of about $27,000 in currency. The robbers left the location in a stolen automobile provided them by Willie Turner. Following their escape, the robbers gave $2,000 of the stolen money to Turner for furnishing them the get away car.

Willie Turner placed the $2,000 in a paper bag and took it to Larry Washington's house. At Turner's request Washington took possession of the bag for safekeeping and placed it on a closet shelf in his house. The following day Turner went to Washington's house and removed $1,000 of the money. After Turner left Washington returned the bag with the remaining money to the closet. Later that day Washington examined the bag and saw the money.

Turner was arrested by agents of the Federal Bureau of Investigation on Friday, June 4, 1971, and lodged in the Bexar County Jail. The day following Turner's mother, Mrs. Estella Lilly, visited her son at the jail. While there Mrs. Lilly met her son's friend, Richard Dukes, who told her he knew of a lawyer who might represent her son, a Mr. Cameron. Mrs. Lilly stated that she had no money, whereupon Dukes told her that he thought Washington had some money she could use for a retainer fee. Mrs. Lilly and Dukes then proceeded to Washington's house.

When Mrs. Lilly and Dukes reached Washington's house, Washington got the bag of money, which had remained in the closet at his house since Wednesday, and gave it to Dukes, who withdrew some bills which he put in his pocket. Dukes then gave the bag to Mrs. Lilly. She took the bag home and counted the contents: $590.00 in ten-dollar bills.

The following Monday, June 7, Dukes called Cameron's law office and spoke to Nile Wright, Jr., an associate who was handling Cameron's business while the latter was on vacation. Following this conversation, Wright and an investigator named Ralph Buller left the office and went to meet Dukes.

Wright and Buller met Dukes, who was with Mrs. Lilly, and the four sat in Wright's car and talked. Dukes said that Mrs. Lilly needed the appellant to represent her son. Mrs. Lilly told Wright that an F.B.I. agent had called her earlier and had told her that the money Washington gave her came from the bank robbery. She also related that the agent asked her to bring the money to his office the next day. Wright told Mrs. Lilly to wait until she talked to the appellant before she did anything. The four individuals then drove to Mrs. Lilly's house to get the $590.00. Mrs. Lilly gave the money to Wright, who put it in his pocket. It may be inferred that Mrs. Lilly believed Wright intended to turn the money over to the federal agents whereas Wright took the money as a retainer for Cameron to represent her son Willie Turner.

Wright and Buller left Mrs. Lilly's house and went to Wright's office where he placed a telephone call to the appellant who was at home. Wright related the day's events and was directed by Cameron to come to his house. Wright arrived about 7:00 P.M., again explained the situation, and gave the money to the appellant. Cameron counted the money and said, "This money is probably stolen". He instructed Wright not to say anything because if the money could not be found nothing could be proved. Cameron then put the money in an envelope which he placed in his desk.

Two days later, June 9, 1971, at approximately 11:30 A.M., an Assistance United States Attorney and two agents of the Federal Bureau of Investigation went to Wright's law office and inquired about the money Mrs. Lilly had given to him. Wright was advised that the money had been stolen from the Brooks Field National Bank, that the robbers had given $2,000 of the money to Turner, that Turner had given the money to Washington, that Washington had given some of the money to Mrs. Lilly, and that Mrs. Lilly had given the money to Wright. Wright was told that he was the only thing standing between the F. B.I. and the money. Advising them that he would call them in one hour, Wright asked the federal agents to leave.

As soon as the agents left his office, Wright called the appellant and told him exactly what the Assistant United States Attorney had said. The appellant told Wright to say nothing, inferentially on the theory that if the federal agents didn't have the bills themselves, with the serial numbers on them, it would be impossible to identify them as part of the bank robbery proceeds. In apparent compliance with Cameron's advice Wright did not call the F.B.I. Special Agents back within an hour. At 4:00 that afternoon F.B.I. Special Agent Dougherty telephoned Wright inquiring about the money. Wright told Dougherty that he did not have the money and that he did not know where it was.

Cameron was arrested on June 30, 1971, by special agents of the F.B.I. At the time of the arrest, one agent asked Cameron if he knew anything about $560.00 or $590.00 in bills which had been stolen from the Brooks Field National Bank. The appellant replied, "Are these the monies which are supposed to have been received from Estella Lilly?" The agent replied affirmatively and the appellant stated, "I don't know anything about it".

II. THE CONVICTION UNDER COUNT 1

Over the objection of appellant's counsel, the district judge charged the jury, in part, as follows:

"Now, there was some evidence here that money taken from the Brooks Field National Bank had been recently stolen. Possession of property recently stolen if not satisfactorily explained is ordinarily a circumstance from which the jury may reasonably draw the inference and find in the light of surrounding circumstances shown by the evidence in the case that the person in possession knew that the property had been stolen. Ordinarily the same inferences may reasonably be drawn from a false explanation of possession of recently stolen property. The term `recently\' is a relative term and has no fixed meaning. Whether property may be considered as recently stolen depends upon the nature of the property and all of the facts and circumstances shown by the evidence in the case. The longer the period of time since the theft, the more doubtful becomes the inference which may be reasonably drawn from unexplained possession.

"Of course, there is no evidence in this case, and the government does not contend, that Mr. Cameron stole any money, that he had anything to do with stealing any money from the Brooks Field National Bank. If you find beyond a reasonable doubt from the evidence in the case that the money described in the indictment was stolen and that while recently stolen the property was in the possession of the accused, you may, from those facts, draw the inference that the money was possessed by the accused with knowledge that it had been stolen, unless possession of the recently stolen property by the accused is explained to the satisfaction of the jury by other facts and circumstances in the case. In considering whether possession of recently stolen property has been satisfactorily explained, you are reminded that in the exercise of Constitutional rights the accused need not take the witness stand and testify. There may be opportunities to explain possession by showing other facts and circumstances independent of the testimony of a defendant.

"You will always bear in mind, ladies and gentlemen, that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in the case warrant any inference which the law permits you to draw from possession of recently stolen property. I don\'t tell you that you have to draw an inference. I simply say that you may do it if you wish to do it. In the final analysis, whether you draw an inference or whether you don\'t draw an inference is exclusively within your province.

"If any possession the accused may have had of recently stolen property is consistent with innocence or if you entertain a reasonable doubt as to the guilt of the defendant, you must acquit the accused. I am not suggesting to you that the defendant had possession of the money. This is also for you to find, but I give you the law for you to use as a guide in making a determination in your own mind as to the guilt or innocence of the defendant under the law."

In the district court, counsel for the appellant argued with persistence and vigor that the above instruction infringed his...