Alvin Eugene Baker v. United States
395 F.2d 368
8th Cir.
1968
Check Treatment

*1 law, fully appellate reviewable Equip. court. Monroe Auto Co. v. Eugene BAKER, Alvin Appellant, Mfg. Supply Co., Heckethorn 1964, & 6 Cir. v. 406, 332 F.2d America, UNITED STATES Appellee. position taken, This has been without discussion, extensive in at least four No. 19073. 17 (i. Sixth, other circuits e. other than Appeals States Court of Seventh, Ninth). ad- Commentators Eighth Circuit.

vocated it.18 find no We recent decision 5, June holding otherwise. II.

Our conclusion that the ulti

mate one of issue under section 103 is approval law carries our district issue, having

court’s withdrawn having independently de repeat cided it. need not here the We below;

facts nor found the court necessary do we feel it to summarize the legal application

court’s standard nonobviousness facts. to those judge district withheld his Memorandum until de Order after Graham was

cided and light. in its reviewed opinion find cor We that his

rectly applies set in Graham. the law out adopt portion

We therefore relevant opinion.

of the district court’s Swofford W, Inc., 1966,

Bv. 251 F. & S.D.Tex. 811, Supp. 815-819. dispose appeal on Since we unnecessary

validity issue, it is for us to infringement question

consider pass upon Swof- B & defense that W’s patent.

ford misused judgment Court of the District plaintiff’s patent invalid affirmed.

therefore g., Hygienic Spe 1956, 913, Cir. Second Circuit: E. 236 F.2d 916. Accord: Salzman, Inc., Sporck, 1962, 6S6, H. In re cialties Co. G. 301 F.2d 6; 1039; 1962, 614, Eller, 1962, Tatko F.2d n. COPA In re Hannon, Contra, Bros. Slate Co. 49 CCPA 897. D.C. Circuit: g., Watson, U.S.App. E. Schafer 270 F.2d 572. Third Circuit: Corp., Briggs 144, 145; Stratton D.C. Packwood & C. H. Boehr inger Watson, 1958, Fourth Sohn v. 973-974. Heyl Patterson, App.D.C. 158, g., Inc. v. Circuit: E. & 256 F.2d 713. Co., 4 Cir. McDowell g., 18. E. Deller’s Walker on Patents § v. Oil 722. Tenth Circuit: Griswold (2d 1964); Comment, Appellate at 67 ed. Capital Co., 10 Cir. Valve Review of Determinations of Patentable 538; Blish, & Hard Inventions, Mize Silliman 29 U.Chi.L.Rev. 197-99 Tools, Inc., (1961). Co. v. Time Saver ware

369. August evening on the parked Buick a 1967 at Arkansas, Street, Rock, Louisiana Little evening, stolen. same was pellant That entered stolen testified that he at in Little car Fourteenth and Chester Pip- Rock. James Rideout Kenneth appellant pins in were the car when it, immediately upon enter- entered ing apparently appellant the car learned Appellant it was stolen. years age money any and without Appellant he car. the time entered the directly rode in the car as it was driven Louis, Rock, Little Arkansas, from to St. Missouri, latér, where, was. six hours he Jr., Mo., Homire, Louis, James L. St. Maryland, let out at his at 4355 home appellant. for in Louis. St. Atty., Shoemake, J. Jim Asst. U. S. Appellant did he Louis, Mo., testified that appellee; Veryl further L. St. gas bought car, Riddle, not drive he no U. Atty., S. brief. car, expenses paid and he no VOGEL, Judge, Before Senior Circuit suggestion appel- trip. no There is LAY, BLACKMUN Circuit helped car lant stole steal the Judges. suggestion that is no evidence or conspiracy with entered into a VOGEL, Judge. Senior Circuit occupants car two other transportation St. a car for Defendant-appellant herein was con- only evidence, Thus, as testi- Louis. by jury victed violation of FBI fied to U.S.C.A. 2312 and thereafter sentenced § against Agent, period years. to confinement for a of two car. in the stolen admission he rode appeals judgment He from the of convic- tion and raises of suffi- the sole issue instructed trial court ciency support of the evidence infer guilty. verdict of by possession1 further of the Viewing light as to what constitutes in instructed most possession. government, active or favorable to the constructive it discloses given property intention time to exercise at a “Possession in one state thing recently is then state, over a dominion or control not if possession satisfactorily explained, it. constructive is a circumstance posses- recognizes jury might reasonably law also that “The from which the joint. person may find, light If be sole or sion draw the inference and in the posses- circumstances, surrounding constructive has actual or alone possession person possession thing, If two of a sole. sion not it to knew persons property, actual or construc- more share be stolen but also possession thing, possession of a caused it tive inter- joint. state commerce.” beyond you find the evidence “If recognizes pos- law two kinds “The accused a reasonable doubt possession jointly session: actual others actual construc- had. alone possession. person knowingly possession of auto- tive A who or constructive physical thing indictment, direct then has over a control described mobile given posses- may you at a then automobile was actual find that possession it. accused within sion of person although ‘possession’ meaning who, “A actual word possession, knowingly power has instructions.” used these government argues ger may moving the ease a stolen automobile theory. req-

affirmed under We dis terstate commerce does not agree. suggesting give possession There is uisite so as rise even presumption the barest elements of either actual knowl- edge.”) or constructive of this car *3 appellant. appropriately an As noted in The trial court also instructed other context Barnes they guilty that could return a Cir., 1965, 5 341 F.2d 189, 191: they verdict if found that had “ * * * charge The effect of aided and abetted in the in the instant case to shift was of this car.3 These instructions proof to burden of to properly required “participation” prima of overcome a facie inference because, as noted crime guilt possession, from of when the fact by Judge discussing Learned Hand in clearly possession been estab- of various definitions abet the evidence. There lished was ting: testimony Barnes direct that defendant “It will be all observed that these possession vehicle, ever had but nothing definitions have whatever to circumstantial probability do with that the forbid- which the conclu- draw the upon den result ac- would follow sion been cessory’s conduct; they all possession.” demand that he in some associate sort jury would is obvious here venture, par- himself with the that he appellant’s possession by have to infer ticipate something in it as presence mere car. The constitu- bring about, he wishes to seek that he of inference tional such an infirmities his action make All to it succeed. already suggested in United have been the words used —even most color- Romano, 1965, less, 382 U.S. carry implication an of ‘abet’ — 279, 15 210. Even 86 S.Ct. L.Ed.2d purposive it.” attitude towards Unit- accepting appropriateness this of Cir., Peoni, ed States v. inference, however, initial to further or caus- infer Nye Accord: Nissen United & ed to be this car from the States, 1949, 619-620, possession of of the car ference (aiding S.Ct. speculation to involves such as obvious abetting responsi- is “a criminal rule of totally require- be inconsistent with the bility for acts one assists process. agree, to due ments We performing.”); Pereira United extent, with the Julian States, 1954, 1, 10-11, S.Ct. February 9 Cir., 358, 98 L.Ed. 435. that “where convict- ing posses- presumptions projected This court has had to occasion sion, ought to sufficiency question consider guilt very satisfy be clear to the test guilty the evidence to a defendant find beyond See, a reasonable doubt.” as a because he and abet aided Cir., Wheeler v. United ted the In a criminal acts another. (Appellants “cor- involving in case facts similar being rectly passen- case, contend that a mere stated, stant this court Johnson against voluntarily Participation an “Whoever commits offense if done willful counsels, aids, abets, purposely specific intent with commands, induces, procures forbids, its com- act law do some mission, punishable principal. specific as intent to fail to do some act “Every person willfully par- done; say, requires who thus law ticipates disobey purpose the commission of a or to with bad may guilty disregard found offense. the law.” an park- pellant States, Cir, 1952, waited at the corner of a ing lot lot as his entered the friend 675: “ * * Orleans. and stole a in New *. aider and abetter To be an Birmingham, Alabama, two then drove par- appear far it must operator testi- station service appellant ticipates commission passenger fied that still charged present, actual- as to be crime ly occupants in the car when thereof purpose constructively, * gasoline * * drove tank had the filled Generally assisting therein. paying. The crucial dis- off without prin- speaking, to find one tinction case is that ground cipal on the that he pellant actually participated in steal- proven must be and abetter it aider ing by acting car, possibly intent that he in the criminal shared *4 companion, the lookout for or that his a the and there must conspiracy formed a there community purpose at the of unlawful companion ear. with his the to steal the is committed. As time the act Moreover, still with was the abetting’ implies, ‘aiding it term day companion in the car next the participation the assumes some after his and remained in car even the the criminal act furtherance filling companion had station with- left design, before or at common paying Thus out for the car’s service. criminal act is committed. the the association, only Lambert involved not implies affirma- of an It some conduct participation but also illegal evidence acquies- negative tive nature and mere act. Here there is is not sufficient.” cence participation. Cir, See, Mays States, 8 v. United 664; government’s 662, the reliance 1958, Mack v. Neither does 261 F.2d United Cir, 1964, States, Cir, 481, 484- 10 States, v. United 326 F.2d Garrison 8 1965, 94, impress because F.2d not sufficient 353 us 486. Mere association is sug- abetting, Ramirez much more circumstantial evidence to establish gesting possession presented 1966, in that was Cir, 9 363 Garrison, 33, 34; by present presence here. In itself not suf- case than is attempted ficient, defendant to sell a tire Hicks v. United car, bought gasoline 442, 450, 37 the 150 1137; 14 S.Ct. U.S. car, Williams, partner directed his United States motel, they left 95 drive the car when n. 71 S.Ct. 747; Minieri, L.Ed. Cir, 1962, and defendant was later found United States partner 550, 557; it is seat of the car while his front knowledge a was the back seat. As court also that that established “certainly noted, presence shows was committed generally by re- Garrison over the at scene of some control crime are cently car was sufficient stolen not sufficient. Ramirez v. United Cir, at supra; Garguilo, Garrison to infer that was in the trans- least an aider and abettor portation such, and, car us This review convinces of the law did.” of it his codefendant government has sustained that evidence of con- No circumstantial proving participation in burden of its present in case. trol is the instant transporting a commerce car interstate proves has someone when it that A facts most recent case in which the being was stolen ridden car as closely parallel Allison facts here transported. Cir, Allison, argues stolen government F.2d 152. In a car was Lambert that night Missouri, States, Cir, Springfield, gov- July morning July authority 13th 11th. The is sufficient occupying position There, identified as Allison was here. ernment’s right-hand (1949); seat car which front United States v. J. R. Wat- City, Co., (D.Minn. parked F.Supp. 97, in a Elk kins was field near 1954). Kansas. This car near was abandoned City July Elk and on the afternoon It seems clear the elements of that City 13th another car Elk was stolen in the crime described § day Pawhuska, and found the next government (a) prove, must that were Oklahoma. Allison and another one; (b) vehicle was arrested several blocks from that it was com- interstate jumper of them cable had a merce; (c) that the was pocket. in his found this court defendant; (d) de- Dyer evidence insufficient to sustain the during transporta- fendant the interstate because, Act Allison tion knew that the vehicle was stolen. fingerprint presence “Neither nor is here defense admitted dominion, control, in the ear shows (a) stolen; (b) authority car.” over the it was driven from Little Rock Louis; (c) to Saint Baker government failed We find that the has long willing occupant drive; on that present sufficient evidence (d) throughout move- interstate or caused ment Baker knew automobile was *5 transported the inter- stolen car Thus, four stolen. three of the essentials appellant’s motion state commerce conceded, namely, of the are for directed verdict have been should vehicle, interstate movement granted. knowledge. vehicle, and This leaves only

Reversed. unadmitted the element Baker’s participation transportation. BLACKMUN, Judge (dissent- Circuit deny validity would Baker the of his ing) : ground on the that he did not defendant-appel- transport I he neces- Instead, must dissent. This the vehicle. sarily majority position that, despite convinced takes the lant and have not his the being passenger, knowledge, despite to me evidence is insufficient his the acquired support jury. very Rock at the a submission to the Little ception drive, car was the charged count indictment willing enjoyment stolen, despite his Rideout, Pippins, appellant Baker and the of Rock, benefit of ride from Little the 2312, that with a violation of 18 U.S.C. § briefly where he had work- been is, wilfully transporting caus with Louis, ing, to his father’s home Saint ing auto a certain only pas- he was six “innocent” hour Arkansas, Rock, to mobile from Little senger in an automobile Missouri, knowing Louis, motor Saint really guilty who ones. others are the It been stolen. is vehicle to have hold, do, majority To as although that, an in course well settled jury much does not create a issue is too not refer to aider dictment does accept. for me to Baker should have proof statute, abetter 18 U.S.C. § easy escape no such avenue of from re- charge abetting sustains the sponsibility participation for in a federal- Moy Fuey act itself. Jin ly proscribed act. 189, 41 S.Ct. (1920); v. Unit 65 L.Ed. 214 Collins Baker was not an innocent hitchhiker (8 passenger ed or invited who was unaware 1927); Provenzano, United States v. or the hot character automobile (3 1964), denied 691 Cir. cert. who became aware of its stolen status L.Ed.2d him to U.S. S.Ct. when late too 544; Nye & Nissen v. United disassociate. He had been He testified: (9 working delivery boy aff’d 1948), as a stock and weeks; he Rock for three S.Ct. about Little things placed have such stress had, however, his co-defendant known gasoline, purchase of is, as the defendant’s good pretty while”, “a Rideout driving, taking his assist- turn got year so”; he into when “a like, tire, changing ance learned Rock in Little he knowledge not all cases stolen, he knew that it was forthwith govern- therefore, conceded; where, rode it from when “it was stolen [he] knowledge; and must Louis”; ment took Little Rock St. and it necessarily upon bear factors where these six hours to make that drive. requisite knowledge Here the issue. he testified that true that Baker also knowledge conceded. drive; funds; no that he did had paid gas; bought no that he that he States, 261 Lambert expense trip; part that help defense (5 1958), which the did not he steal the automobile “close” argument described at oral it; and that he did not see case, me to present seems But, defendant, repeat, he had known authority. car stolen. appropriate That Rideout, he all the that the knew too, car was stolen knew the stolen, purpose car was he had said, p. 802, Fifth Circuit getting Louis, bene- to Saint he reasonably infer that “The willingly of the ride, fit and he sat jointly appellant were Donald for hours. automobile, possession of the stolen abetted me afford It seems to that these facts aided that the adequate support transportation.” conclude in its participated or aided Baker indeed perceive distinction factual I fail to draw, abetted majority would whch - acting stolen automobile “poásibly interstate. reference * * * * * * a lookout regard I would authorities cited *6 * * * conspiracy formed majority quite beside the regard here I point. the car”. Baker’s case is not one of those Lambert. conflict the evidence is that was found in a it was vehicle while af- deserves Baker’s stationary in one state but which firmed. subject- been stolen in state and ed to That is interstate movement. fact situation Julian v. United (9 1968), 891 F.2d 279 Cir. where the

defendant, asleep in who was found

automobile, could have into climbed Plaintiff-Appellant, journey completed. JUAIRE, after the had been David Allison the fact situation (10 Defendant, NARDIN, Terry W. heavily upon by 1965), so relied majority. emphasized in United This Marshak, Inc., Defendant- Walter (N.D. Battles, F.Supp. States v. Miss.1967), Appellee. noted, p. where the court 381, Docket 31646. No. the Allison case “there was Appeals Court put Circuit. Second any Baker, unlike Missouri time”. Allison, Battles, Julian and April like Argued placed at ends of the interstate both 4, 1968. June Decided movement. Dyer cases, Act Those such as Garrison (10 353 F.2d 94 1965), F. Wheeler v. United others, (10 many 2d 1967),