United States v. Skillman

• Citation: 442 F.2d 542
• Decision Date: 30 April 1971
• Docket Number: No. 19978.,19978.
• Parties: UNITED STATES of America, Appellee, v. Bill Miles SKILLMAN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

442 F.2d 542 (1971)

UNITED STATES of America, Appellee, v. Bill Miles SKILLMAN, Appellant.

No. 19978.

United States Court of Appeals, Eighth Circuit.

April 30, 1971.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kenneth K. Simon, Kansas City, Mo., for appellant.

Calvin K. Hamilton, First Asst. U. S. Atty., Bert C. Hurn, U. S. Atty., Kansas City, Mo., for appellee.

Before MATTHES, Chief Judge, HEANEY, Circuit Judge, and VAN PELT, Senior District Judge.

VAN PELT, Senior District Judge.

Defendant, Bill Miles Skillman, appeals from a judgment of conviction upon three counts of an indictment charging in separate counts a violation of 18 U. S.C. § 371¹ (conspiracy to receive and dispose of stolen U. S. Postage Stamps) and two violations of 18 U.S.C. § 641² (receiving and disposing of U. S. Postage Stamps). The trial judge imposed a sentence of five years on the conspiracy count and separate sentences of seven years upon each of the other two counts, all sentences to run concurrently. We affirm the trial court.

I — SUFFICIENCY OF THE EVIDENCE

The evidence established two post office burglaries. In the burglary of the Station C Branch in Atlanta, Georgia, on February 20, 21, 1967, there was a shortage of stamps and money of $56,717.18. In the burglary of the Florence, Alabama, post office on March 7 and 8, 1967, there was a shortage in stamps and money of $107,630.42. Included in the stamps stolen was $3500.00 in 30¢ special delivery stamps.

Knight,³ who had pled guilty, was a principal witness against the defendant. He testified that he and one Bernie Lewis had been involved in several previous burglaries, and that the two men had driven to Atlanta, Georgia, on February 20, 1967, for the purpose of burglarizing the Station C Branch Post Office. He testified to the details of the burglary, which are unimportant to this appeal, and that after the burglary he and Lewis returned to the motel in Chamblee, Georgia, a suburb of Atlanta, where they had checked in previously. There they sorted the articles stolen and placed certain articles in a trunk purchased for that purpose and some green army laundry bags. Knight then called Bob Matthews in Omaha, Nebraska, to discuss the sale of the stolen postage stamps. Matthews informed Knight that he had a "drop" south of him (Matthews). Knight advised Matthews he had about $25,000 worth of stolen stamps, and Matthews informed Knight he would see what he could do.

Knight and Lewis started for Omaha. While en route, they again contacted Matthews and were instructed to proceed to Kansas City, Missouri, and advise him when they arrived. Another call was placed from Columbia, Missouri, and Matthews instructed the two men to proceed to Chicago, Illinois, since the party in Kansas City was not in town.⁴ Knight and Lewis proceeded on to Chicago and there disposed of some $3500.00 worth of stolen stamps after a call to Matthews. Another call was placed to Matthews, and the two men were again told to proceed on to Kansas City. Upon their arrival, and checking in at a motel, they again placed a call to Matthews who instructed them to wait and that he would get in touch with the party in Kansas City.

Later, Knight again telephoned Matthews, and was instructed to call VIctor 2-1777⁵ and ask for "Bill". Knight called the number and defendant answered. After introducing himself, Knight informed defendant a party in Omaha had given him his number, and defendant told him to come to his office, Room 707, Rialto Building, at Ninth and Grand, Kansas City, Missouri. After Knight arrived, he informed defendant he had approximately $50,000 worth of stolen stamps, to which defendant replied that he had been told that there was only $25,000 worth of stamps, and that he wasn't prepared to buy $50,000 worth. Knight replied that when he talked to Matthews he had not completed counting the stamps and had told Matthews he had only $25,000 worth. A sale was consummated on the basis of 20% of the face value of the stamps. Half of the money was paid at that time and half was to be paid after Skillman and his partner had made a final count.

The stamps were delivered to defendant's office later that day in a footlocker and in green army bags. Skillman had requested that delivery be delayed until everyone was out of the building. Skillman also arranged for Knight to get his car fixed, and Lewis took the car to the Shepherd Motor Company in North Kansas City. The two men then left Kansas City via airplane. Knight returned in a few days and was given the rest of the money due from the sale of the stamps. It was agreed between Knight and defendant at Skillman's office, that before any more stamps were brought to Kansas City, Knight would call defendant in advance and inform him of his impending arrival and the quantity of stamps to be purchased.

Subsequently, on March 7-8, 1967, Knight, Lewis, and one Smith burglarized the Post Office at Florence, Alabama. Knight again contacted Matthews, and was advised to proceed to Kansas City. Upon arriving they checked into a motel, where the stamps were put into two footlockers and green army laundry bags. Knight then telephoned defendant and the three men went to defendant's office where the stamps stolen in the second burglary were purchased by defendant after some negotiation. Late in the afternoon the footlockers and laundry bags containing the stamps were placed in a storage room in the basement of the Rialto Building, the use of which Skillman had obtained from the building manager, where they remained for several days.

Only defendant and the building manager had keys to the storage room. The footlockers eventually disappeared. The building manager found empty green bags in the room. Defendant told the manager he could do anything he wanted with the bags. They were turned over to the postal inspector, and upon examination, it was discovered that they contained perforations or punchouts identical in size and texture to those from genuine United States postage stamps. A portion of a thirty cent special delivery stamp was also found.

Various telephone, motel, credit card, and other records were identified in the stipulations filed in this case which sufficiently corroborate the travel and phone calls of Knight, Lewis, and Smith, as well as the travel and calls of the defendant.

Appellant challenges the sufficiency of the government's evidence to establish a conspiracy. In considering this question, we must view the evidence in the light most favorable to the jury's verdict. United States v. Marttila, 434 F.2d 834 (8th Cir. 1970); United States v. Bennett, 428 F.2d 772 (8th Cir. 1970); United States v. Warner, 428 F.2d 730 (8th Cir. 1970); United States v. Fryer, 419 F.2d 1346 (8th Cir. 1970), cert. denied, 397 U.S. 1055, 90 S.Ct. 1399, 25 L.Ed.2d 672 (1970). We must accept as true and established all reasonable inferences that tend to support the jury's actions and conclusions. United States v. Marttila, supra; United States v. Fryer, supra; Peterson v. United States, 405 F.2d 102 (8th Cir. 1968), cert. denied, 395 U.S. 938, 89 S.Ct. 2003, 23 L.Ed.2d 453 (1969), rehearing denied, 396 U.S. 870, 90 S.Ct. 43, 24 L.Ed.2d 128 (1969); Cave v. United States, 390 F.2d 58 (8th Cir. 1968), cert. denied, 392 U.S. 906, 88 S.Ct. 2059, 20 L.Ed.2d 1365 (1968); Phelps v. United States, 160 F.2d 858 (8th Cir. 1947), rehearing denied, 161 F.2d 940 (8th Cir. 1947).

The offense of conspiracy consists of an agreement between the conspirators to commit an offense, attended by an act of one or more of the conspirators to effect the object of the conspiracy. United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 85 L.Ed. 128 (1940); Kirschbaum v. United States, 407 F.2d 562, 565 (8th Cir. 1969); Cave v. United States, 390 F.2d 58, 69 (8th Cir. 1968), cert. denied, 392 U.S. 906, 88 S.Ct. 2059, 20 L.Ed.2d 1365 (1968). In order to establish a conviction under 18 U.S.C.A. § 371, the government must prove (1) an agreement, (2) a combination of two or more persons, (3) an unlawful purpose, and (4) an overt act committed by one of the conspirators in furtherance of the conspiracy. Cross v. United States, 392 F.2d 360, 362 (8th Cir. 1968).

Recognizing that proof of a conspiracy is seldom, if ever, established by a formal statement of such a conspiracy,⁶ defendant asserts there must be some deliberate participation in furtherance of a common goal. Defendant contends that the evidence here establishes at best only a mere sale, and does not sufficiently establish any agreement to support a conspiracy conviction. Defendant relies principally upon United States v. Ford, 324 F.2d 950 (7th Cir. 1963):

"The relationship of buyer and seller absent any prior or contemporaneous understanding beyond the mere sales agreement does not prove a conspiracy to sell, receive, barter or dispose of stolen property although both parties know of the stolen character of the goods. In such circumstance, the buyer\'s purpose is to buy; the seller\'s purpose is to sell. There is no joint objective." Id. at 952.

See also United States v. Varelli, 407 F.2d 735 (7th Cir. 1969).

Taking the evidence in the light most favorable to the jury's verdict, we think there was sufficient evidence to establish more than a mere buyer-seller arrangement. Knight's testimony indicated that he made several calls to Matthews in Omaha, who eventually told Knight to proceed to Kansas City, call defendant's telephone number, and ask for Bill, in order to dispose of the stolen stamps. From this it can be inferred that Matthews and Skillman worked together in the disposition of the stolen stamps, with Matthews acting as a go-between. When Knight told Skillman he had $50,000 worth of stolen stamps, defendant's response was that he had been told only half that amount would be delivered. This testimony, if believed, clearly established a prearranged sale of the stamps, and thus meets the requirements of (1) a prior agreement...