decided: February 13, 1976; As Amended May 12, 1976.
Appeals by Gary Singleton, William M. Kirby and William Elmore from judgments of conviction of possession of stolen mail with the knowledge that the mail was stolen, entered by the United States District Court for the Eastern District of New York after a jury trial before the Honorable John R. Bartels, District Judge. All of the appellants seek reversal of their convictions and judgments of acquittal on the ground that there was insufficient evidence to sustain their convictions. In the alternative, they seek a new trial on the ground that the district court failed to charge the jury with respect to every element of the crime, improperly charged the jury with respect to the knowledge which might be inferred from aiding and abetting someone in possessing recently stolen goods, and prejudiced their trial by improperly and unduly interfering with the presentation of their cases. In addition, appellants Singleton and Kirby attack the district court's decision to sentence them under the Narcotics Addict Rehabilitation Act rather than the Youth Corrections Act.
Waterman, Oakes and Meskill, Circuit Judges.
Appellants Gary Singleton, William M. Kirby and William Elmore appeal from judgments of conviction entered by the United States District Court for the Eastern District of New York (Bartels, D.J.) after a jury trial. All three appellants, challenging the sufficiency of the evidence to sustain their convictions of unlawful possession of stolen mail in violation of 18 U.S.C. §§ 1708 and 2,*fn1 seek reversals of their convictions and judgments of acquittal. They also argue in the alternative that they should be granted a new trial because the district court failed to charge the jury with respect to every element of the crime, improperly charged the jury that guilty knowledge might be inferred from aiding and abetting someone possessing recently stolen goods, and prejudiced their trial by improperly and unduly interfering with the presentation of their cases by their counsel. Appellants Singleton and Kirby further allege that the district court abused its discretion by sentencing them under the Narcotics Addict Rehabilitation Act rather than under the Youth Corrections Act. Because we find that the jury charge had the effect of removing a disputed issue from the jury, we reverse the convictions and remand for a new trial.
I. Sufficiency of the Evidence.
We turn first to the appellants' contention that the evidence was insufficient to sustain their convictions. At the outset, it should be made clear that, in light of our determination in part II of this opinion, we discuss this issue only insofar as it applies to the appellants' demands for judgments of acquittal. The pertinent facts elicited at the trial, viewed in the light most favorable to the government, begin with the testimony of George Atmore, a letter carrier employed by the Postal Service. On June 17, 1974, Atmore was delivering mail in a residential area of Jamaica, Queens. At approximately noon, Atmore parked his mail jeep on 146th Street at the corner of 130th Avenue. He delivered the mail on foot to each house on his route. When he completed a section of his route, he would return to his jeep to pick up another bundle of mail to be delivered on the next section. After he had completed the first section of the route, Atmore noticed a 1968 or 1969 green Ford Falcon with a black vinyl top so closely double parked next to his jeep that "there was no room to walk between the two." He observed two individuals inside and one outside of the car.
While Atmore delivered the next section of his mail route, he kept the car under observation. Atmore testified that he got a good look at the two individuals inside the car but that he could not see the face of the other because that person suddenly bent over and leaned his head into the driver's side window of the car.
Atmore made an in-court identification of Singleton as the person who was seated in the driver's seat and of Kirby as the person in the front passenger seat. He further testified that he had identified both Singleton and Kirby from an array of photographs shown to him by postal inspectors on June 25, 1974, and that he had seen Kirby on several occasions prior to June 17, 1974. Atmore was not able at any time to identify appellant Elmore, but he did describe the individual outside of the car as having been wearing a soft-brimmed cap, a multi-colored shirt and dark trousers. Elmore was wearing clothes matching that description when he was arrested about an hour after Atmore had seen the individual outside of the car. In his summation to the jury, Elmore's counsel conceded that Elmore was the third individual seen near the jeep by Atmore.
When Atmore finished the second section of his mail route, he again returned to his jeep. As he approached the jeep, the car moved slowly away and parked on the other side of the intersection. During the time that the car was moving away from the jeep and through the intersection, Elmore continued to keep his head inside the car's window. When the car came to rest, Elmore remained in that position. At this point, Atmore, his suspicions aroused, wrote down the car's license plate number.
At about 12:30 p.m., the mail carrier removed the next bundle of mail to be delivered, examined the jeep to satisfy himself that it was well locked, and set off again on his pedestrian rounds. When he returned to the jeep some twelve minutes later, he discovered that the rear door had been pried open and that approximately five hundred pieces of mail were missing.*fn2 The appellants and the green Ford Falcon were no longer in sight.
Atmore immediately called postal inspectors and gave them the license plate number of the car and descriptions of the appellants and the green Falcon. It was later discovered that the car was registered to Singleton. After searching the Jamaica, Queens area for some time, postal inspectors O'Neill, Cole and Renzulli came upon the car at about 1:30 p.m. at a location approximately 15 to 20 blocks from where the jeep had been parked. The inspectors followed the car for a short distance until it turned a corner and came to a stop at the curb; they then parked their vehicle at an angle in front of the Falcon. Cole and Renzulli immediately got out of their vehicle, identified themselves and ordered the appellants out of the car. Kirby and Elmore got out voluntarily, but, as they were being informed of their rights and searched for weapons, Singleton, who had remained in the driver's seat, drove up onto the curb, around the inspectors' vehicle, and sped off. As he drove away, Singleton threw a jacket out of the passenger window of the car. Inspector O'Neill gave chase after Singleton, who was captured when he lost control of his car after a short high speed chase through the city streets.
As soon as Kirby and Elmore had been handcuffed, Inspector Renzulli picked up the jacket, which had landed on the sidewalk about six feet from where Elmore had been standing. Inspector Renzulli discovered an open envelope containing four checks rolled up in the jacket. He also discovered a wallet containing identification belonging to Elmore in the pocket of the jacket. At the scene of the arrest, both Elmore and Kirby denied ownership of the jacket. Later, after having been taken to the inspectors' office, Elmore admitted that the jacket belonged to him, but continued to deny any knowledge of the checks.
The four checks which Inspector Renzulli discovered in the jacket were payable to residents who lived on Mr. Atmore's mail route. Three of the checks were issued by the State of New York and the fourth one by the American Express Company. Counsel at the trial stipulated that the checks had been duly issued by the payors, that they had been placed in separate envelopes and properly placed in the mail, that they had never been received by the payees, and that the payees had never authorized any other person to receive the checks for them. The rest of the mail was never recovered.
The indictment upon which the appellants were tried charged them with unlawfully possessing and aiding and abetting the unlawful possession of the four checks which were the contents of letters stolen from the United States mail. Each of the appellants now claims that there was insufficient evidence to support a finding that he had possessed, either actually or constructively, or had aided and abetted one of the others in the possession of the checks.
The district court instructed the jury that it could find a defendant guilty by determining that he possessed the checks with the knowledge that they were stolen or that he aided and abetted one of the others in the unlawful possession of the checks.*fn3 Because we have concluded that the evidence was sufficient to show that each of the defendants possessed the stolen checks, we need not test the ...