United States v. Fench

• Citation: 470 F.2d 1234,152 US App. DC 325
• Decision Date: 22 January 1973
• Docket Number: No. 71-1086,71-1149.,71-1086
• Parties: UNITED STATES of America v. Thomas E. FENCH, Appellant. UNITED STATES of America v. William H. BLACKWELL, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

152 US App. DC 325, 470 F.2d 1234 (1972)

UNITED STATES of America v. Thomas E. FENCH, Appellant.

UNITED STATES of America v. William H. BLACKWELL, Appellant.

Nos. 71-1086, 71-1149.

United States Court of Appeals, District of Columbia Circuit.

October 2, 1972.

As Amended October 5, 1972.

Certiorari Denied January 22, 1973.

COPYRIGHT MATERIAL OMITTED

Mr. Irving R. M. Panzer, Washington, D. C. (appointed by this court), was on the brief for appellant in No. 71-1086.

Mr. John A. Shorter, Jr., Washington, D. C., was on the brief for appellant in No. 71-1149.

Mr. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, with whom Messrs. John A. Terry, John G. Gill, Jr. and Robert R. Chapman, Asst. U. S. Attys., were on the brief for appellee.

Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges.

Certiorari Denied January 22, 1973. See 93 S.Ct. 964.

MacKINNON, Circuit Judge:

In a three-count indictment appellants Thomas Fench and William Blackwell, and two others — Robert Brown and Walter Barlow, Jr.—were charged with theft of United States Government property (18 U.S.C. § 641); receiving, concealing, or retaining stolen United States Government property (18 U.S.C. § 641); and second-degree burglary (22 D.C.Code § 1801(b)). After a jury trial¹ both appellants were convicted of receiving, concealing, or retaining stolen Government property.² Appellant Fench was sentenced to a term of imprisonment for one to three years, while appellant Blackwell was sentenced to two to six years. On this appeal we reject their contentions that certain evidence was improperly admitted and that the court failed to provide an adequate precautionary instruction.

On January 29, 1970, F.B.I. agents were conducting surveillance of appellant Blackwell. At about 5:25 A.M. on that date, they observed him drive his panel truck³ from Glen Arden, Maryland, to his place of business at 617 Rhode Island Avenue, N.E.,⁴ in the District of Columbia, where he arrived at approximately 6:30 A.M. Shortly thereafter, agents followed Robert Brown as he drove appellant Blackwell's truck to the Department of Labor Building, where he proceeded to park the vehicle and enter the building. Brown was observed inside the Labor Department Building "moving very fast from one door to the next attempting, trying knobs on each door, and as he would try a knob and push on the door, he would quickly move to the next door."

Approximately ten minutes after Brown entered the Department of Labor Building, he exited carrying one or possibly two cardboard boxes which appeared to contain heavy items. It was subsequently learned that an I.B.M. typewriter and a Sony tape recorder were missing from two Labor Department offices.

Brown drove the panel truck back to 617 Rhode Island Avenue, arriving between 8:00 and 8:30 A.M. As soon as the truck pulled into the parking lot, appellant Blackwell and Walter Barlow, Jr., appeared at the top of the stairs in front of the building. Brown immediately alighted from the vehicle and walked up the stairs to converse with them. Thereafter, Blackwell motioned Brown and Barlow down the stairs, and all three "hurried" to Blackwell's truck. Brown proceeded to the rear of the truck, while appellant Blackwell and Barlow went to the left side of Barlow's car which was parked eight to ten feet from the panel truck. Brown transferred one box from the truck to the back seat of the automobile, and he returned to the truck for the other box. Halfway back to the car with the second box, Brown was assisted by appellant Blackwell, who appeared to be in an agitated state. Agents saw Blackwell rush over and grab one of the flaps on the top of the box, and help Brown place it in the automobile. Thereafter, Brown and appellant Blackwell returned to the building, and Barlow got into his car, which contained the two boxes, and he drove off. The F.B.I. agents who followed Barlow indicated that he drove in an evasive manner, apparently aware of the fact that he was under observation.

Shortly after Barlow left the building at 617 Rhode Island Avenue, he returned. He parked his car and immediately proceeded into the building. Thereafter, Brown and appellant Fench approached Barlow's car. Appellant Fench reached into the automobile and removed a cardboard box, and Brown removed a similar box. Both Fench and Brown then hurried along as they carried the two boxes to a large abandoned warehouse which was adjacent to the office building used by Blackwell.⁵ As soon as the two placed the cardboard boxes on the ground, they were arrested.

The arresting agents observed an open box at the feet of appellant Fench and Brown, containing the missing I.B.M. typewriter, to which was attached a label bearing a Department of Labor room number and the name of a secretary. The agents also saw a closed box at their feet which, it was subsequently learned, contained the missing Sony tape recorder.⁶

At the trial, the F.B.I. agents recounted the above-described occurrences. The Government informed the trial court that it also desired to present evidence in its case-in-chief of other suspicious activities involving Brown, appellant Fench, and appellant Blackwell's panel truck, which had taken place prior to January 29, 1970. All three defendants objected to the introduction of this evidence on the ground that it would be unduly prejudicial, and the trial court sustained these objections. However, the court ruled that if appellant Fench took the stand in his own behalf, the Government would be permitted to use the proffered testimony as rebuttal evidence.

Following the Government's case-in-chief, the trial court denied the three defendants' motions for acquittal, and they presented their evidence. Appellant Blackwell testified that Brown had worked for him for about six months as a truck driver, and he indicated that Brown was frequently gone with his panel truck for extended periods of time. Blackwell denied that any agreement existed between himself and Brown whereby the latter would use his panel truck to carry away items stolen from Government buildings. Blackwell further testified that on the morning of January 29, 1970, Brown approached him outside of the office building at 617 Rhode Island Avenue and stated: "They got me. They got me." He said that Brown explained this statement by stating: "Well, Blackwell, I hate to get you into trouble, but I stole something." Appellant Blackwell said that he became agitated when he heard this news, but he denied that he helped Brown move the boxes, containing the stolen articles, from his panel truck to Barlow's car. He finally testified that he could not remember whether Brown had used his truck on December 8 or 19, 1969, or January 20, 1970.

Barlow testified that he stopped by appellant Blackwell's place of business on Rhode Island Avenue at approximately 7:00 or 7:30 A.M. on January 29, 1970, in order to have his automobile brakes repaired by appellant Fench, one of Blackwell's employees. Barlow said that he had no knowledge of the Labor Department theft or the fact that the boxes which were placed in his car contained stolen property. He further denied that he had driven his automobile in an evasive manner on January 29. He stated that when he returned to the building on Rhode Island Avenue, following his short trip which he indicated was necessitated by his desire to check his brakes, he told Brown that he had been followed by a strange car, and he asked him to remove the boxes. Brown then asked Barlow to drive his car to the rear of the building, but he refused. He then gave the keys to his automobile to Brown, who in turn gave them to appellant Fench. Thereafter, Fench drove the car to the back of the building, where he and Brown subsequently removed the boxes.

Appellant Fench testified that he was employed by Blackwell as a mechanic and truck driver on January 29, 1970. He said that on that date between 8:30 and 9:00 A.M., Brown asked him to drive Barlow's car to the rear of the office building on Rhode Island Avenue, which he did.⁷ Thereafter, when Brown asked him to help remove several boxes from Barlow's car, he "wondered" about it. Fench testified, "I didn't know anybody carried anything around there," and he added, "after we got away I saw somebody behind us and I inquired who is that and he Brown said just come on, follow me."⁸ Fench denied that he knew that the boxes which he helped carry to the abandoned warehouse contained stolen property. He said that he had never stolen anything in his life.

Appellant Fench further testified that at approximately 7:00 A.M. on December 8, 1969, while driving Blackwell's panel truck, he had driven Brown to the Department of Housing and Urban Development Building, so that Brown could visit a friend. He said that after twenty or twenty-five minutes, Brown returned to the truck at a normal pace. Fench indicated that a building guard then approached and requested to see his identification, which he displayed. He stated that he later informed Blackwell of Brown's actions. Fench denied having taken Brown to a Government Building on January 20, 1970.

James Proctor, a truck driver employed by appellant Blackwell, testified that on January 29, 1970, he saw Brown drive the panel truck into the lot at 617 Rhode Island Avenue sometime between 7:00 and 7:30 A.M. He said that Brown entered the room where he was and excitedly said: "They got me." Proctor finally indicated that a short time later Brown asked him to move Barlow's car to the rear of the building, but he refused.

In rebuttal, evidence was introduced of earlier acts of a suspicious nature. Special Police Officer Copeland, from the Department of Housing and Urban Development, testified that at approximately 8:00 A.M. on December 8, 1969, he saw Brown in the H.U.D. Building. He said that as he approached him, Brown exited at a fast pace and entered Blackwell's white panel truck,⁹ in which Fench was sitting. Officer...