United States v. Francisco (410 F.2d 1283, 1969)

MEHAFFY, Circuit Judge.

Richard William Francisco and Melvin LeRoy Francisco, brothers, were tried to a jury and found guilty under a two-count information charging a violation of 18 U.S.C. § 659, possession of goods (18 snowmobiles) of a value of more than $100.00 stolen from an interstate shipment, and for violation of 18 U.S.C. § 371, a conspiracy to possess the goods stolen from said interstate shipment. We affirm the convictions.

Richard John Grunau was also charged with the commission of these crimes, but Grunau pleaded guilty prior to the trial of this case and did not testify at the trial.

Defendants assign as error (1) that the evidence was insufficient to support the convictions; (2) that the trial court erred in refusing to grant a mistrial after an elderly witness voluntarily mentioned Grunau’s guilty plea in a statement which was possibly inaudible to the jury; (3) that the trial court’s instructions with regard to circumstantial evidence were erroneous; (4) that the trial court’s instructions concerning aiding and abetting and the essential elements of proving the offense of possession of stolen chattels were erroneous and confusing; and (5) that the court improperly instructed the jury with regard to the standards to be applied to the eyewitness identification of a defendant.

It is not disputed that the snowmobiles were part of a shipment from Polaris Industries in Roseau, Minnesota to Anchorage, Alaska, that their value exceeded $100.00, and that they were stolen from a lot at 2669 Territorial Road in St. Paul, Minnesota belonging to the interstate carrier which was transporting them, K & W Trucking Company, the theft being discovered on the morning of October 19, 1967. Sixteen of the snowmobiles, the K & W flatbed trailer on which they were loaded, and a green GMC single-axle tractor which was stolen the same night from a business located about seven blocks from K & W Trucking Company in St. Paul, were found in a secluded area in Lebanon Township, Dakota County, Minnesota, and the 18 here involved were found in a garage located at 4532 Oliver Avenue North in Minneapolis, all of said snowmobiles being identified by serial number as a part of the interstate shipment.

The facts disclosed that at approximately 3:30 a.m. on the morning of October 19, 1967, three men appeared at Driv-Ur-Self Systems, Inc., a Hertz licensee on Nicollet Island near downtown Minneapolis, and rented one black and two yellow vans, 14, 20 and 22 feet long, identifying themselves as Melvin Francisco, Richard Francisco, and R. J. Gru-ñau, and each man signing for one of the trucks. Grunau paid the $85.00 deposit on the trucks, and Melvin Francisco furnished his driver’s license for identification to insert on the lease agreements and explained to the rental agent that they wanted to “move this house all in one trip.” When the trucks were returned to Hertz about noon on the same day, the 19th, one had been driven 55 miles and the other two had been driven 56 miles. The two yellow trucks had wavy scratches on the sides, and some yellow paint matching the paint on one of the trucks was found on some tree branches near the secluded area in Dakota County where the 16 snowmobiles, the K & W flatbed trailer, and the green GMC single-axle tractor stolen from another company were found.

Numerous witnesses testified that they observed three men unloading crated snowmobiles from one black and two yellow Hertz vans into a garage located at 4532 Oliver Avenue North in Minneapolis about 8:00 o’clock on the morning of October 19. After the men had finished unloading, they covered the windows of the garage and left. Mrs. Cecelia Engstrom, an elderly lady who owned the garage, testified that she had advertised her garage for rent and that on or about October 9, 1967, a man identifying himself as John Grunau, accompanied by two other men, came to her home and rented the garage. At the trial, she was unable to identify any of the men by sight but testified that Grunau had given her his name and telephone number at the time the garage was rented and that she had later called the number and talked with him on the telephone. The Government called as witnesses several employees of Hertz and numerous neighbors of Mrs. Engstrom who described for the jury their recollection of what the three men looked like, and stated whether they thought the men were the Francisco brothers and Grunau. This testimony, which will be more particularly discussed later, was sufficient to convince the jury of defendants’ guilt, but defendants contend that it was insufficient as a matter of law and that the question should not have been submitted to the jury, and that even after conviction they were entitled to acquittal because of insufficiency of the evidence.

The defendants did not take the stand and the only witness who testified in their behalf was Orrie W. Thompson who admitted that Melvin Francisco went with Grunau and another man, whom he said he could not see because it was dark, to rent the trucks, but Thompson attempted to provide Melvin with an alibi for the early morning hours of October 19. Thompson’s testimony was to the effect that he, Melvin Francisco, and Jack Walker were together on the evening of October 18 and until about 6:30 or 7:00 a.m. on the 19th. He testified that they had a couple of drinks about 7:00 p.m. on October 18, then went to Tex’s On & Off Sale, played pool for about an hour and a half, went to the C & D Tap where they stayed about a half hour, then to Howie’s Bar and stayed until nearly 1:00 a.m., then to a restaurant where they stayed until about 2:30, and from there went to Jack Walker’s place. Grunau and another man whom Thompson could not see in the dark were there and Melvin Francisco left with them, returning in about 35 minutes with three Hertz trucks, Melvin driving a yellow one. Thompson testified that Melvin got out of the truck, leaving Gru-nau, the other driver and the three trucks there, and went with him and Walker to his (Thompson’s) place where they played cards until 6:30 or 7:00, when Melvin and Walker left, saying they were going home. He did not know whether they went home or not but saw Melvin at his home that afternoon. This was the entire testimony which the defense offered, so, for all practical purposes, the Government’s evidence stands undisputed.

Defendants’ first contention is that the evidence is insufficient to sustain the convictions. We cannot agree. In a criminal case where there has been a conviction resulting from a jury verdict of guilty, the appellate court must accept as established all reasonable inferences that tend to support the action of the jury, and any conflicts in the evidence are resolved in favor of the jury verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Latham v. United States, 407 F.2d 1, 2 (8th Cir.1969); Hanger v. United States, 398 F.2d 91, 108 (8th Cir.1968); McClard v. United States, 386 F.2d 495 (8th Cir.1967); Koolish v. United States, 340 F.2d 513, 519 (8th Cir.1965), cert. denied, 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed.2d 724 (1965); Smith v. United States, 331 F.2d 265, 278 (8th Cir. 1964), cert. denied, 379 U. S. 824, 85 S.Ct. 49, 13 L.Ed.2d 34 (1964); Koop v. United States, 296 F.2d 53, 54 (8th Cir.1961). In determining the sufficiency of the evidence, we must view it most favorably to sustain a jury verdict. Teel v. United States, 407 F.2d 604 (8th Cir.1969); Moodyes v. United States, 400 F.2d 360, 363 (8th Cir. 1968); Meyer v. United States, 396 F.2d 279, 283 (8th Cir.1968); Burke v. United States, 388 F.2d 286, 288 (8th Cir. 1968); Terlikowski v. United States, 379 F.2d 501, 511 (8th Cir.1967).

Defendants contend that they were convicted on circumstantial evidence only, that there can be no conviction of a crime on circumstantial evidence unless the only possible inference to be derived from it is that of guilt, that there must be evidence which forecloses and makes impossible any other conclusion, and that the court erred in failing to instruct the jury to this effect, citing Maryland & Virginia Milk Producers Ass’n v. United States, 90 U.S.App.D.C. 14, 193 F.2d 907, 917 (D.C. Cir. 1951). This rule is no longer followed. In Holland v. United States, 348 U.S. 121, 139-140, 75 S.Ct. 127, 137-138, 99 L.Ed. 150 (1954), the Supreme Court said:

“The petitioners assail the refusal of the trial judge to instruct that where the Government’s evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt. There is some support for this type of instruction in the lower court decisions, (citing cases) but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect. (Citing cases.)

“Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.”

The Supreme Court’s teachings in Holland set at rest any previous conflict within or between the circuits and must be henceforth followed.

Defendants’ principal argument concerning the insufficiency of the evidence centers around the testimony of the various witnesses as to the identity of the defendants as being two of the drivers of the Hertz trucks who transported the snowmobiles to the garage and unloaded them. They admit that Melvin Francisco helped lease the trucks but contend that there is no positive proof of the identity of Richard Francisco, even though one of the men represented himself to be Richard Francisco and signed for one of the trucks.

Raymond A. Klennert, who prepared the Hertz lease agreements, positively identified Melvin LeRoy Francisco and Grunau as two of the men who leased the trucks (he had known Melvin before) and pointed out Richard Francisco as looking familiar but noted that he was dressed up in court which he was not the night the trucks were rented. Later, he said that Richard Francisco looked like the man and he was pretty near positive that he was the man. He testified that Melvin furnished him his driver’s license to place the number on the lease agreements for all three trucks, and that Grunau made the initial deposit of $85.00 on them. He further testified that Melvin Francisco signed for truck #404, Richard Francisco signed for truck #562, and R. J. Grunau signed for the third truck.

Charles E. Reinwand positively identified Melvin Francisco and Grunau as being two of the men who returned the trucks and pointed out Richard Francisco as the third man, but said he was not quite sure about him, “the fellow in the blond hair,” stating that the reason he was not sure of his identification was that the third fellow who returned the trucks “had darker hair.” F.B.I. Agent Donald W. Thompson testified that Richard Francisco’s hair was dark brown at the time of his arrest, but lighter at the trial. Jack D. Walker, a friend of the Francisco brothers who was called as a Government witness, first testified that Richard’s hair was lighter at the trial — that it must be dyed — but later retracted the statement. He denied that he had made a statement to F.B.I. agents earlier that it used to be jet black and said he was not positive whether he told them it was black or not. He wound up by saying that it was about the same color as his own hair— brown — and had always been that color, although other witnesses referred to it during the trial as “light” and “blond.” Clarence A. Holman, another employee of the trucking company, testified that he saw a resemblance in Richard Francisco, referring to him as “the man in the light hair,” but that the man he saw at the trucking company had dark hair.

In view of the testimony of these witnesses that, except for his lighter hair, Richard Francisco looked like one of the men who rented the trucks, and the further testimony that his hair had been lightened since that time, coupled with the fact that one of the men represented himself to be Richard Francisco, which was not disproved, together with the other attending circumstances, we think there was sufficient evidence to sustain a finding that Richard Francisco did, in fact, sign for and return one of the trucks.

Defendants contend, however, that even if they did rent the trucks, they were not sufficiently identified as two of the men who delivered the snowmobiles to the garage, and, therefore, it is not shown that they participated in the crime. It is true that the neighbors, in describing the three men who delivered the snowmobiles, did not describe defendants entirely accurately, but neither did all of the witnesses, who each saw the same men, describe them alike. This only points up the fact that it is the rule, rather than the exception, that people do not generally observe closely enough to be positive of all the various characteristics of people whom they only on an occasion see or meet. The testimony as to identification, however, is to be considered as part of all the evidence and it does not have to be positive in order to connect the defendants with the conspiracy and with the crime. If the facts are considered as established that the Francisco brothers and Grunau rented the trucks at 3:30 on the morning of October 19; that Melvin, in the presence of the others, made the statement that they wanted [to use them] to move a house in one trip, which was not substantiated by the evidence, but to the contrary, the evidence showed that at least one of them was at the location where the two stolen trailers and part of the stolen snowmobiles were found; that one black and two yellow Hertz vans were used to deliver 18 of the stolen snowmobiles to the garage rented by Grunau and that according to some of the witnesses, the drivers of the trucks looked like the Francisco brothers and Grunau or fit generally their descriptions (although they were not absolutely positive); that this was at 8:00 a.m. before the vans were returned at noon; that a test run of the distance between the Hertz rental company, the place the snowmobiles were stolen, the secluded area where part of them were found, the garage belonging to Mrs. Engstrom, and back to the Hertz company was 46 miles .and that they had each been driven 55