United States v. Milby

• Decision Date: 25 September 1968
• Docket Number: No. 18176.,18176.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Leroy MILBY and Andy K. McClellan, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

400 F.2d 702 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Leroy MILBY and Andy K. McClellan, Defendants-Appellants.

No. 18176.

United States Court of Appeals Sixth Circuit.

September 25, 1968.

Terrence R. Fitzgerald, Louisville, Ky., for Joseph Leroy Milby.

Jack M. Lowery, Jr., Louisville, Ky., for Andy K. McClellan.

John L. Smith, Asst. U. S. Atty., Louisville, Ky., for appellee; Ernest W. Rivers, U. S. Atty., Louisville, Ky., on brief.

Before O'SULLIVAN, McCREE and COMBS, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Joseph Leroy Milby and Andy K. McClellan appeal from judgments convicting them, upon jury trial, of "assault with intent to commit a felony, that is, sodomy" upon a named person (Count I of the involved indictment) and the taking of a wrist watch from said person "by force, violence and intimidation" (Count II of the indictment), in violation of 18 U.S.C. §§ 113(b) and 2111, respectively.¹

They were tried in the United States District Court for the Western District of Kentucky, jurisdiction under the mentioned statutes being grounded on the special territorial jurisdiction of the United States, 18 U.S.C. § 7 — the crimes having taken place on the United States Military Reservation at Fort Knox, Kentucky. Appellant Milby received consecutive sentences of five years on each count; McClellan was sentenced to ten years on Count I and five years on Count II, said sentences to run consecutively. A third defendant, one Hayes, also involved in the conduct hereinafter described, was found guilty under Count I of the lesser included offense of simple assault, and guilty under Count II. He was sentenced under the Youth Corrections Act, 18 U.S.C. § 5005, et seq. He has not appealed. A fourth participant in the affair, one Edwards — later apprehended — was separately indicted for the same two offenses as appellants, pleaded guilty to both counts, and was also sentenced under the Youth Corrections Act.

Three questions are presented: 1) Were the appellants, or either of them, entitled to direction of acquittal as to one or both of the counts because of insufficiency of the evidence? 2) Did the trial judge commit reversible error as to appellant Milby in his instructions on aiding and abetting? and 3) Was the sentence of ten years imposed upon appellant McClellan under Count I illegal?

We affirm and discuss the questions before us as follows:

1) Sufficiency of evidence.

The District Judge denied each appellant's timely motion for judgment of acquittal, made upon the ground of insufficiency of evidence. The criminal enterprise here involved, as told by the complaining witness, was a revolting affair during which four young men sexually assaulted a 15 year old boy. Appellant McClellan was 25 years of age and Milby was 20; a third defendant, Hayes, was 18 and the fourth participant, Edwards, was also a minor.

Dealing first with the sexual assaults, appellants charge that the testimony of the complaining witness — the victim of the assaults — was inherently incredible, weakened by cross-examination, and its probative worth destroyed by testimony offered to oppose it. Appellant Milby urges as an additional proposition that if the evidence relevant to the Charges of Count I substantiates anything at all, as to him, it is that he committed an act of sexual perversion on the victim which was not an act of sodomy under the applicable law — in this case that of Kentucky.² Concededly, by virtue of Commonwealth v. Poindexter, 133 Ky. 720, 118 S.W. 943 (1909), in order for the act of sodomy to be committed by one person on another, under Kentucky law, it is necessary that there be anal penetration. He says this was not accomplished or attempted by him.

Avoiding, where possible, recital of loathsome details, we set out the facts contained primarily in the testimony of the complaining witness, whom we shall herein refer to as the victim or the boy. On the afternoon of January 14, 1967, he was hitchhiking down a Kentucky highway on his way to a youth dance to be held that evening. He was picked up by a vehicle driven by appellant McClellan, containing also Milby, Hayes and Edwards. There was evidence that the occupants of the car had no particular destination. It was a Saturday afternoon and the young men had supplied themselves with a couple of bottles of wine which they were consuming. There was evidence also that one of the group was inhaling glue fumes, and the occupants of the car were spraying each other with a bottle of cologne that was in the possession of the boy later assaulted. The victim said he had one drink of the wine. When it appeared that the car was going to change its direction, the boy sought to leave but was not allowed to get out. Thereafter, McClellan turned off onto a gravel road. After finding a parked bus at his first chosen destination, he turned the car around and drove to a secluded spot at the end of a gravel road.

When the vehicle and its occupants reached this spot, and before the occupants alighted, one of the boys (Edwards) reached over from the back seat and pulled the boy backwards, causing his back to be arched over the front seat. There was evidence that all of the occupants then joined in attacking the boy, while someone in the back seat stripped off his wrist watch and McClellan, from the front seat, took his wallet and searched it, but replaced it after finding no money. The theft of the wrist watch is the basis of the charge in Count II.

The assailants and the victim then alighted from the vehicle and he attempted to escape, but was restrained. From this point on the witness recounted the process by which all of the four — Milby, McClellan, Hayes and Edwards — cooperated in forcing him to submit to various sexual assaults, including that of sodomy. He testified definitely that each of the four committed at least one of the acts and, on direct, described both McClellan and Milby as performing sodomy. On cross-examination, the victim was not clear as to whether Milby's activity actually met the Kentucky definition of sodomy. During the entire activities, the appellants, with Hayes and Edwards, were congregated in an area not more than twenty or thirty feet from the parked car, and at times were all immediately present while one of their number took his turn at sexually assaulting the victim. At the end of the affair, one of the assailants told the boy that he would kill him if he told what had happened. When he was finally released, he was advised to say that he had been in a fight, thus to explain his bruised and battered condition.

We need not detail the events which followed the victim's call to the police. The subsequent investigation by federal as well as state police authorities, in some substantial respects, corroborated the victim's account and in other respects would, to a degree, cast doubt on his story. None of the police discoveries, however, was of conclusive probative force. The appellants and Hayes took the stand and denied the crimes charged to them. They admitted that they did pick up the complaining witness at the time alleged, but claimed they let him out of the car without abusing him.

It was the jury's function to resolve the issues of credibility and any conflicts in the evidence. United States v. Hoffa, 349 F.2d 20, 38 (6th Cir. 1965); United States v. Kessler, 352 F.2d 499 (6th Cir. 1965); United States v. Conti, 339 F.2d 10, 13 (6th Cir. 1964). In testing whether there is sufficient evidence to allow a case to be submitted to the jury, the trial judge must view the evidence in a light most favorable to the government. United States v. Decker, 304 F.2d 702, 705 (6th Cir. 1962); United States v. Berkley, 288 F.2d 713, 716 (6th Cir. 1961), cert. denied, 368 U.S. 822, 82 S.Ct. 41, 7 L.Ed.2d 27 (1961). And it is this Court's duty to take a like view of the evidence,

"and determine therefrom whether the finding was supported by substantial and competent evidence, and where there is substantial and competent evidence, which if believed, supports the conviction, the appellate court can not weigh the evidence or determine the credibility of witnesses." Battjes v. United States, 172 F.2d 1, 5 (6th Cir. 1949).

In this case there was direct evidence of the criminal conduct charged, and the jury obviously found such evidence credible. The District Judge, who saw and heard the witnesses, denied the motion for judgment of acquittal.

We still must deal with appellant Milby's contention that, in all events, the evidence as to him disclosed only a form of sexual perversion that did not come within Kentucky's definition of sodomy. The victim, on direct, gave several accounts of Milby committing the act of sodomy, but on cross-examination agreed that the act of perversion committed by Milby was not such as would meet Kentucky's specific definition of such offense, although it was equally odious. But even assuming the insufficiency of the evidence in this respect, if Milby aided and abetted the specific conduct described in the indictment, he may be punished as a principal. 18 U.S.C. § 2. We are of the view that regardless whether or not Milby committed the technical act of sodomy, there is substantial evidence that others of the defendants did do so, including appellant McClellan, and that Milby was indeed an aider and abettor of these others.

Like reasoning compels us to find that whether or not Milby or McClellan actually took the victim's watch, the evidence may be fairly viewed as showing that both participated actively in the whole criminal affair in such a way as to aid and abet the theft. We agree that in order to aid and abet one must do more than be present at the scene of the crime and have knowledge of its commission. See, e. g., United States v. Luxenberg, 374 F.2d 241, 249-250 (6th Cir. 1967); United States v. Garguilo, 310 F.2d 249, 253-254 (2d Cir. 1962). The Supreme Court in Nye & Nissen v. United States, 336 U.S. 613, 619, ...