United States v. Nall

• Decision Date: 20 January 1971
• Docket Number: No. 29432.,29432.
• Citation: 437 F.2d 1177
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alice Durlene NALL, Mahlon E. Faust, and Robert Hise Sportsman, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

437 F.2d 1177 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Alice Durlene NALL, Mahlon E. Faust, and Robert Hise Sportsman, Defendants-Appellants.

No. 29432.

United States Court of Appeals, Fifth Circuit.

January 20, 1971.

COPYRIGHT MATERIAL OMITTED

Travis C. Johnson, El Paso, Tex., for Alice Durlene Nall; Calamia & Fashing, El Paso, Tex., on appeal only.

Wayne Windle, Peticolas, Luscombe, Stephens & Windle, El Paso, Tex., for Mahlon E. Faust and Robert Sportsman.

Seagal V. Wheatley, U. S. Atty., El Paso, Tex., Jeremiah Hardy, Asst. U. S. Atty., James W. Kerr, Jr., Asst. U. S. Atty., W. D. Tex., San Antonio, for plaintiff-appellee.

Before RIVES and SIMPSON, Circuit Judges, and NICHOLS,^* Judge of Court of Claims.

RIVES, Circuit Judge:

Alice Durlene Nall,¹ Robert Hise Sportsman, Mahlon E. Faust, and Joseph Cecil Frazier² were indicted in two counts. The second count charged them with the unlawful transportation in interstate commerce of stolen securities, that is, approximately 900,000 shares of stock in North American Cigarette Manufacturer's, Inc., of the value of more than $5,000 in violation of 18 U.S.C. § 2314.³ The first count charged them with conspiracy in violation of 18 U.S.C. § 371⁴ to commit the substantive offense charged in the second count. The jury found them guilty under the first (conspiracy) count but not guilty under the second (substantive) count.

The indictment alleged that the conspiracy commenced on or about September 13, 1965 and continued until on or about September 16, 1965. The overt acts in furtherance of the conspiracy were alleged to have been committed on September 13, 14 and 16, 1965.

The evidence established that on September 14, 1965, the Mesa Hotel in El Paso, Texas, was burglarized and some papers, including the securities named in the indictment, were stolen. On about April 14, 1966, some seven months after the burglary, the securities were mailed back to their owner, Newell Raymond Hays, after he had paid a thousand dollars for their return. The payment and return of the papers were accomplished as the result of telephone conversations to Hays from a man who gave his name as Jim Smith. "Jim Smith" continued his efforts to get more money. Mr. Hays testified:

Mr. Smith called me, wanted some more money. I said `Well I\'ll give you five hundred dollars if you will write to the best of your knowledge how all this happened\', and he finally agreed to do so, and he did send me a letter, and then after he sent me the letter, then I send him the five hundred dollars." App. p. 184.

The letter was postmarked September 19, 1966 App. 157 and was introduced over the defendants' objections as Government Exhibit 3. It reads as follows:

"Newell,

"This will be the information to the best of my knowledge, however, all of my information is here say sic. Approximately one month prior to the robbery Joe Frazier contacted a pilot and owner of a twin engine aircraft by the name of Sportsman. A female from California by the name of Durlene Nall and another guy by the name of Mahlon Faust convinced them there was approximately 80 to $100,000.00 kept in your safe at your motel to which you could not report as stolen because it was not claimed on your income tax reports. Telling them that the money was derived from the sale of gold and silver, Joe Frazier producing documents proving that you and he were operating and dealing in gold and silver.

"After convincing them to join him and stealing the money they flew to El Paso to plan the robbery. They planned it pretty much as it occurred, to send Durlene into the motel, telling the night manager that she had just had a fight with her husband and to entice the night manager to go to the room with her for the purpose of a little free sex. The girl went to the room first with the night manager agreeing that he would meet her there in approximately thirty minutes, during which time she let Frazier and Faust into the room. They were waiting in the closet when the night manager came in. They acosted sic him, taped and gagged him and left him there with Faust while Durlene and Frazier went to get the safe. They took the safe from the office along with some travelers checks & money. With the use of same a cutting torch they cut the safe open in a motel approximately a block & a half from your motel on the way out of town. Finding the safe not overflowing with money they were all disheartened with the exception of broth sic Frazier. They remained in the motel for four days during which time Faust called you and attempted to sell you the papers. When they saw you were going to call the police, they tried to sell the papers to a gambler in Louisiana for $30,000.00. His name was Ted, who is now dead. I do not know his last name. He is the one who called you and threatened your life however he didn\'t come up with the money and the papers lay dorment sic for approximately ten months. When they were sold to a Las Vegas business people sic for $8,000.00 and I was subsequently commissioned by them to make contact with you — The rest of which you know.

"As to the whereabouts of these people I have no definite information but with the information supplied here within I\'m sure you won\'t have any trouble locating them.

"As to the whereabouts of these people I have no direct part in the robbery — I\'m sending you a self addressed envelope and will call you upon your receipt of this letter and am hoping that you will keep your part of the bargain as well —"

The first and principal witness for the Government was a former Las Vegas, Nevada, policeman named Robert Lee Cleveland, who identified himself as the "Jim Smith" who had the telephone conversations with Hays and who received the $1000 and the $500 which Hays had paid. Cleveland testified that the $1000 first paid was divided between Sportsman and himself, Sportsman receiving $450 and Cleveland keeping $550, and that the last payment of $500 was kept by Cleveland alone. Cleveland testified that he first heard of the burglary in February 1966 when Sportsman approached him about negotiating with Hays for the sale of the stolen securities. Cleveland had never met any of the other defendants. He testified that all of the information he had about the burglary was related to him by Sportsman. The letter Government Exhibit 3 which has been quoted was introduced in evidence, over the defendants' objections, on the Government's redirect examination of Cleveland and substantially summarizes his testimony on direct examination.

Sportsman, testifying in his own behalf, denied any connection with or knowledge of the burglary and denied having made the statements to which Cleveland had been permitted to testify.

On appeal the defendants urge more than twenty issues for reversal. We discuss only a few of those issues which do necessitate reversal, in the belief and hope that the issues not discussed will most likely not recur on any retrial of the defendants.

I.

Hearsay Testimony Inadmissible Against Nall and Faust.

The district court erred in overruling Nall's and Faust's objections to Cleveland's testimony as to what he claimed Sportsman had told him in February of 1966 about their involvement in a burglary which had taken place in September of 1965. As against Nall and Faust, Cleveland's testimony was inadmissible hearsay. The Government urges that Nall and Faust were parties with Sportsman to a conspiracy which extended beyond the burglary and to the efforts to sell the stolen securities back to Hays.

A conviction for conspiracy cannot be sustained unless there is proof of an agreement, express or implied, to commit an offense against the United States. Pereira v. United States, 1954, 347 U.S. 1, 12, 74 S.Ct. 358, 98 L.Ed. 435; Ingram v. United States, 1959, 360 U.S. 672, 677, 678, 79 S.Ct. 1314, 3 L. Ed.2d 1503. The effect of such an agreement is aptly described as constituting a "partnership in crime." United States v. Socony Vacuum Oil Co., 1940, 310 U.S. 150, 253, 60 S.Ct. 811, 84 L. Ed. 1129; Pinkerton v. United States, 1946, 328 U.S. 640, 644, 66 S.Ct. 1180, 90 L.Ed. 1489; Fiswick v. United States, 1946, 329 U.S. 211, 217, 67 S.Ct. 224, 91 L.Ed. 196. Thereby a conspirator becomes responsible for the acts, statements and declarations of each of his coconspirators made while the conspiracy is pending and in furtherance of its object. For that reason, it is firmly established that out-of-court statements of one conspirator where made in furtherance of a going conspiracy are admissible in evidence against a coconspirator. Krulewitch v. United States, 1949, 336 U.S. 440, 443, 69 S.Ct. 716, 93 L. Ed. 790. That case, however, teaches that the courts should be reluctant to expand this "narrow exception" to the hearsay rule and hold admissible a declaration not made in furtherance of the conspiracy charged but made in furtherance "of an alleged implied but uncharged conspiracy aimed at preventing detection and punishment."

"The rule contended for by the Government could have far-reaching results. For under this rule plausible arguments could generally be made in conspiracy cases that most out-of-court statements offered in evidence tended to shield co-conspirators. We are not persuaded to adopt the Government\'s implicit conspiracy theory which in all criminal conspiracy cases would create automatically a further breach of the general rule against the admission of hearsay evidence." 336 U.S. at 444, 69 S.Ct. at 718. ⁵

True, a conspiracy may have multiple objectives and the conspiracy continues through the primary objective and through subsequent minor subsidiary objectives. Ingram v. United States, 1959, 360 U.S. 672, 679, 680, 79 S.Ct. 1314, 3 L.Ed.2d 1503.

The statements which Cleveland claimed were made to him by Sportsman did not in any way purport to connect Nall and Faust with any conspiracy which would extend months beyond the burglary to Cleveland's efforts to sell the stolen securities...