John L. Bailey v. United States

BAILEY, Appellant, L. John America,

UNITED STATES Appellee.

No. 21428. Appeals States Court Circuit. District Columbia

Argued June 7, 1969.

Decided March

lili ing robbery1 employee of an of the Cen- ter Company. Market Provision The prosecutive theory was that he aided principal assailant, abetted the who unknown, remains of commission the crime. At the of close the Govern- chief, appellant ment’s case in moved unsuccessfully for acquit- of ground tal on proof that the did not prima against establish a facie case him. This motion hе renewed, and the court again denied, after all the evidence was jury in. The finding returned a verdict appellant guilty charged, and from appeal conviction this was taken. Appellant among contends, other things,3 that the of denial his motion was error. He insists anew that the evidence legally insufficient to enable beyond to conclude a reasonable doubt participated in the commission agree and, of the offensе. We without reaching any by app other issue tendered Washington, Campbell, Mr. Alan C. ellant,4 accordingly reverse the convic Long, Bernard Mr. J. C., with whom D. tion. by (both appointed Washington, D. C. appel- brief, for court) this I lant. Appellant spent of the afternoon some 1966, Atty., Phelps, U. S. September 26, Asst. Mr. James R. the date Bress, U. vicinity Messrs. David G. robbery,

with whom the Center Q. Atty., Earl J. Company, Frank Nebeker S. Market Provision a wholesale Silbert, Attys., on U. were S. Asst. meat He first seen distributor. brief, appellee. for company’s across the street from the place “shooting craps” of business short, stocky man—the man” in “other Judge, BAZELON, Before Chief BAS- case, who was the actual to become Judge, TIAN, and ROB- Senior Circuit point appellant robber. one At left Judge. INSON, Circuit man returned minutes later. Appellant again subsequently him left III, ROBINSON, W. SPOTTSWOOD join game men in several of “five- Judge: Circuit crap” parking and ten-cent on lot Appellant District building. wаs tried front Center Market charg- single-count game indictment on terminated, When the by violence, 29(a). whether force or 1. “Whoever 2. F.It.Crim.P. stealthy by against sudden or resistance by snatching, putting fear, judge seizure 3. He also maintains the trial person prejudicial by permitting from the or immediate shall take committed error anything possession prior of another actual value, Government to use two crim- any per robbery, guilty purpose inal conviсtions im- impris peachment, thereof shall suffer son convicted and in his instructions to the jury. unnecessary nor less than six months onment AVe find it to reach years.” fifteen D.C.Code these § more than issues. ed.), (1967 amended since (Supp. supra. I See note joined man, street, mean- who in the other the curb then and was street, away. while remained across about ten feet had man who yelled they “Look, later over walked conversed Lawson somewhat him,” рarking they’re robbing appel- lot and stood a truck and both owned The offense Center lant the other man ran Market. prosecuted for which took same direction. two truck drivers place shortly attempted Ap- thereafter. to follow but lost them. pellant subsequently apprehended, was Lawson, part-time Jr., Wilson a C. but the other man was never identified bookkeeper Market, the for Center caught. or robbery. day victim of the Each he receipts checked in the cash of Center prepared Market’s and com- drivers the II pany’s deposit. regular bank His routine must Appellant’s conviction deposit towas take him when the he premise stand, all, on the if at bank, he left and to deliver it to a robber, unknown and the aided abetted employed full-time, which he was proof ap record barren the is for following day. perpetrator of the pellant an active Sep on Center Market As left Lawson sufficiency the the And offense.7 bag paper con tember he carried con to sustain Government’s $4,~ approximately taining deposit of premise issue on became viction the 200.5 He noticed by the familiar rules tested to be sig truck, attached the man acquittal judgment motion While nificance circumstance. to that * * * is rule “The true made. loading platform lock stood on a Lawson passing motion judge, a trial recog ing door, driver whom acquittal,8 must for directed verdict building and another nized came out upon the determine whether briefly. him A second conversed with right jury giving play to the of the full sitting parked car in a truck driver credibility, weigh evi to determine facing platform. justifiable dence, inferences and draw fairly might platform fact, a reasonable Lawson down the walked parked guilt beyond car, a reasonable steps which was conclude toward his judge purpose, truck doubt.”9 For that where

next of the Lawson Govern man “must assume the truth the other were. When give car, took the the Govern the other man evidence and ment’s reached his Ap- legitimate bag deposit gunpoint. all infer benefit of ment the with the holdup, just prior pellant, ences to be drawn therefrom.” Should prudent jurors gunman judge away from toward determine that walked easb, prerequisite $1,900 of the aider аnd about to conviction 5. Lawson carried Gray change. $2,300 checks, 104 U. and some abettor. S.App.D.C. 153, 154, any prosecutions offense ‍​‌‌​‌‌‌​​​​‌​​​‌‌​​​‌‌‌​​‌​​​​​‌‌​​‌‌‌‌​​​‌‌​​​​‍6. “In criminal persons advising, inciting, or conniv- all abetting 29(a) ing offense, the mo- has abolished F.R..Crim.P. charged offender, principal verdict in criminal cases be tion for directed shall accessories, principals the motion for as and substituted and not acquittal. being all as to of this section intent here- before the fact the law accessories Curley applicable misdemeanor tofore in cases of 389, crimes, apply cert. all shall whatever punishment denied 331 22- § be.” D.C.Code (1967 ed.). L.Ed. 10. Id. See also Columbia, & Nissen v. United an aider In the District of 613, 618-620, prosecuted principal. D. as a abettor (1967 ed.). The con- L.Ed. 919 C.Code § principal not viction of the offender might doubt, ture, participate dis- no such that he have in it as some- thing bring agree existence, about, matter lies that he wishes its province jury’s the motion he seek action to make it within suc- ”16 importantly, But, very ceed.’ inquiries crucial must be denied.11 in this legal capabilities case relate according principle “Guilt, a basic jury evidence to sustain a determination jurisprudence, be estab- must our degree collaborated to that And, beyond a reasonable doubt. lished robbery. possible on the evi- unless result judge dence, let must not par An inference of criminal act; on let act what he must ticipation merely cannot drawn be necessarily would surmise presence;17 culpable purpose is essent conjecture, evidence.” without States,19 ial.18 In Hicks v. United recognized the ac conduct, por Appellant’s presence cused’s is a circumstance trayed favorable the view most guilt may pres which if deduced presence Government, at аmounted to ence is meant assist the commission of crime, slight prior associa scene pursuant the offense or is to an under perpetrator, and tion with the actual sub standing that he is on the scene flight.13 qua sequent non A sine of aid purpose. And we have had occasion to guilty ing abetting,14 however, and say presence “[m]ere would be or participation15 “In the accused. enough if it is intended to and does aid 20 abet another dеr to to commit aid primary actors.” Presence is thus necessary ‘in crime it is that a defendant equated aiding abetting when it is designedly the ven- encourages associate himself with shown some sort Cooper States, (1952); States, 11. v. United 94 Johnson United 195 (1954) ; 343, 39, 346, 673, (8th 1952). 218 F.2d 42 F.2d 675-676 Cir. See 9, Curley States, supra, note 81 also v. United the cases cited note 39. infra U.S.App.D.C. 392-393, F.2d at at 160 232-233, States, therein cited. 16. supra eind authorities & Nissen v. United 10, 619, 769, note quoting 336 U.S. at S.Ct. at 69 11, Cooper States, supra, Peoni, note 12. v. United United States 100 F.2d U.S.App.D.C. 346, 401, (2d 1938). at 42. 218 F.2d 94 at 402 Cir. evidentiary Williams, 58, 13. We hereinafter examine the United States v. 341 U.S. significance 4, 595, 64 n. of each these circumstanc- es, singly (1951) ; States, supra both and in combination. Hicks v. United 15, 449-451, note 150 U.S. at 14 S.Ct. making party 144, 1137; Kemp one a to crime 14. Conduct 37 L.Ed. v. United (a) inciting, “advising, supra 15; consist of or note United States v. “aiding conniving (b) Minieri, 550, (2d Cir.), offense” or or at the 303 F.2d 557 abetting principal 847, 79, offender.” D.C.Code cert denied 371 U.S. S.Ct. 83 9 ed.). (1967 Clearly (1962) ; there was no § 22-105 L.Ed.2d 81 Newsom v. United penetrate 237, (5th that could 335 F.2d here 239 Cir. category, 1964) ; Carengella, supra first nor did the Government United States v. ly upon any theory 15, 7; other than 198 F.2d at Ramirez v. abetting. 33, (9th United 363 F.2d 34-35 Cir. See also United States v. 442, Re, 581, 593, 587, 150 U.S. Di 15. Hicks United 222, 449-451, L.Ed. 1137 92 S.Ct. L.Ed. 210 And see the (1893) ; Long v. 124 U. cases cited note 39. infra S.App.D.C. 20-21, 360 F.2d (1 966) ; Stevens v. United 18. See the cited cases note 15. U.S.App.D.C. 332, 334, ; Kemp (1963) Supra 447-450, U.S. U.S.App.D.C. S.Ct. 37 L.Ed. 1137. Carengella, (1962) ; States v. Cir.), (7th Long ‍​‌‌​‌‌‌​​​​‌​​​‌‌​​​‌‌‌​​‌​​​​​‌‌​​‌‌‌‌​​​‌‌​​​​‍States, supra cert. denied 344 S.Ct. L.Ed. 682 360 F.2d at 835. or on the street robber occurred the unlawful perpetrator,21 facilitates others, parking open lot in the view as a acts accused when the deed22—as including men with whom others it stimulates where lookout23—or dice for some time in a fraternized act.24 the criminal to render assistance becoming game27 more even at presence these or similar But without —evidence light identify eloquent when scrutinized insufficient tributes criminality.25 not The Gov shown trial. party to what as a accused appel prоof expose did not ernment’s be devoid And this robbery, planner or previous lant as acts yond associative what the consummation,28 in its flight an aide lookout subsequent them proceeds, appellant’s presence on as one who shared in its reflect, that selves designed any way to in the scene was knew unidentified even as one who robbery. promote circumstances, sanction or In can robber. these we jurors say that reаsonable could find criminality appellant’s lim taint of Ill ited association with him. urges ef Government final Government contends it is presence ficacy ly strength against that the its case per coupled association was enhanced the fact shortly prior petrator date of appellant the crime fled after the scene prior robbery. an accused’s But evidentiary of value committed. a to become one whо is with association depreciated flight, however, has substan coupled offender, when even criminal tially in of de the face presence at the accused’s later with the delineating dangers cisions inherent the offense, does not warrant the scene of unperceptive upon flight reliance as guilty collaboration.26 an inference Moreover, longer guilt.29 no an indicium of We uncontradicted evi here the hold notion wicked appellant’s tenable the that “the that each of shows dence meetings pursueth, the with eventual no man brief flee when several Cal.App.2d Villa, 128, Compare Re, supra People 318 v. 156 Di 21. 27. United States v. 828, (1957). 17, 593, 222. P.2d 332 U.S. at 68 S.Ct. note States, App.D.C. abetting Story 28. 57 22. v. United The Government’s 343, 342, theory, jury, argued 246 53 A.L.R. as to 739, planned robbery (1926), appellant 47 cert. denied 274 U.S. either 576, 1318 as a But record 71 L.Ed. functioned lookout. S.Ct. disclosing is devoid of evidence circum- Cal.App.2d Ellhamer, 777, People give v. 199 23. stances that could sort color Cal.Rptr. 905, appellant’s 908 18 There no trust- conduct. worthy appellant indication Garguilo, 249, party rob, States v. 310 United to the scheme to and the Gov- eyewit- (2d 1962). any 253 Cir. did ernment not ask its try be- nesses to elucidate States, supra away g., E. Stevens United as he from the un- havior walked 334, immediately 115 319 note identified robber before the Kemp 735; States, place. United F.2d at crime took supra note 15. Stаtes, Wong 371 v. United U.S. Sun States, supra 483-484, 441 26. Hicks v. United note 9 L.Ed.2d 83 S.Ct. 449-451, (1963) ; 150 U.S. at S.Ct. v. United U.S. Starr 1137; Kemp 627, 631-632, L.Ed. v. United 17 S.Ct. 15; supra (1897) ; Newsom v. United Allen v. 164 U.S. supra 238-239; 492, 498-499, 154, 41 F.2d at L.Ed. 528 ; Alberty (1896) Glenn (6th 499, 511, 16 40 L.Ed. See also United S.Ct. Cir. U.S. Hickory Re, (1896) ; v. Di States 416-421, S.Ct. 92 L.Ed. 210. L.Ed. note 39. And see the cases cited infra anything more, nowas more righteous as a lion.” Absent there are as bold attributing shortly flight to com- flees basis proposition “one who robbery purpose plicity than to a criminal act is committed after committing it consistent with innocence. is accused when he guilt con some he feels does so because presence, If we association consider ” 31 cerning not absolute that act flight separately, the Government’s legal it a matter doctrine “since quite obviously qualify did knowledge men are who of common jury. submission to “the And while fly entirely from sometimes innocent do jury must take case as the Government’s through fear scene a crime a whole and determine whether as guilty parties, being apprehended proves beyond guilt it whole a reasona- unwillingness appear as doubt,”36 any repair ble effort witnesses.” fragmented Government’s case still leaves prosecution application ap constructed from With cautious preciation shortcomings, pregnant probability which is with of its innate flight may particular bystander. under conditions was an innocent all, openly After for an inference of conscious it shows basis gambled guilt.33 guilt, robber, de ness of But as a factual eventual talked him, duction, predicated must be a firm stood him beside periods during er un truck intermittent foundation than a combination of Suddenly presence robbery afternoon. elucidated unelucidated flight. evidentiary appeared victim Here on the scene there was with the bag money, was the manifestation unidentified gun pointed grab- prompted subjective man who considerations re at him and bag. any Appellant, prompted by bed the lated wise crime.34 More over, disclosed, speculation reasons which random as the evidence summon, prior could ran several convictions to the af the midst suit,35 “they” fair in shouts that and these well have committed a rob- bery.37 The admonition dictated what to him seemed to be best. “innocent Alberty permitted 30. v. 1962. The United Government was to grand larceny and did 162 U.S. at S.Ct. use the at- 16 at 868. tempted housebreaking convictions for purposes impeachment. U.S.App. 31. of Miller 116 such 45, 48, (1963). D.C. 320 F.2d 770 36. Hunt v. United 115 Alberty 1, 3, States, supra 32. 316 F.2d 654 511, 16 162 U.S. at S.Ct. at dissenting colleague emphasizes 37. Our “they” States, supra 33. See Miller v. United word in shout but un- we are U.S.App.D.C. particular 48-49, significance to able attach to it. outcry The witness 770-771. who made that testi- fied that ‍​‌‌​‌‌‌​​​​‌​​​‌‌​​​‌‌‌​​‌​​​​​‌‌​​‌‌‌‌​​​‌‌​​​​‍had walked things gunman prior holdup There no evidence of from the such to the cooperation, explained appellаnt’s thusly: as manifest division role spoils, like, Bailey any or the Did Q. activities which have Mr. time ever reaching go been factors in decisions over to Mr. Lawson? contrary particular Only thing conclusion their under A. Not as I knows of. I running circumstances. seen was both down the street. during colloquy Bailey any- came This out to You ever Q. see Mr. do thing whether the Government would be al- Mr. Lawson? No, impeach lowed to use the convictions A. sir. appellant, Bailеy anytime who testified in his own be- You Q. ever see Mr. anything half. See Luck v. United snatch Law- out of Mr. U.S.App.D.C. 151, 348 F.2d 763 son’s hands? Appellant grand larceny No, of convicted A. sir. police you Bailey in thing assault on a in Q. officer saw Mr. attempted housebreaking up do was run the street? judgment caught circumstances for of people of acquittal motions in web of emphatically car- I dis- frequently was error. becometerror-stricken” agree. here. its usual force ries legal applicable principles are law find case we Several In annals of the court, appellate exonerating is that from The first decisions reasoned well viewing persons of in circum- assailed because accused conviction conviction evidence, insufficiency divergent significantly from of must view stances not light appearing con- favorable here.39 We hold evidence most those ambigu- cordantly to the and make full allow- Government the Government’s jury’s right against ance for the too assess ous evidence left credibility justi- engage for witnesses and draw room much speculation, mo- fiable from inferences the evidence. with the result that judgment acquittal er- Glasser United for tion (1942); totality roneously of that S.Ct. Craw- denied. U.S.App.D.C. conjecturally support ford could finding [d] “associate venture, himself [criminal] Equally applicablе to case the instant something participate he in it as in [d] legal appropriate govern is the standard bring about, wish[ed] [and] ing appellate review aof denied motion [sought] by that he to make action judgment acquittal. ju In this succeed.”40 The circumstances clearly risdiction that standard has been suspicions but, arouse seled, as we have coun- leading Curley delineated case of “grave suspicion even enough.” denied, сert. appel- (1947), judgment S.Ct. L.Ed. reverse the We to follows: and remand the lant’s conviction District Court with direction rule, therefore, is that The true acquittal entered. judge, passing a motion trial acquittal, must remanded. Reversed and directed verdict evidence, upon the determine whether Judge (dis- BASTIAN, Circuit right Senior giving play full senting) weigh credibility, : jury to determine justifiable in- and draw I from a different obtain the record fact, reasonable ferences might fairly perсeived by picture my col- beyond guilt a conclude leagues. They agree appellant’s he concludes that legally If reasonable doubt. that contention evidence was the upon such be the there must evidence jury insufficient to a to enable conclude mind, in must a a reasonable he doubt beyond a that reasonable doubt motion; or, grant to it an- state the participated of- in the the commission of upon way, nо Thus, there is evidence they if that denial fense. decide the 31, Paige, 324 F.2d 39. United States A. is That all. 1963) ; (4th v. United Vick Cir. with all else said trial. This coincides at 1954) ; (5th 228, weight Cir. give to We due admis otherwise 370, Commonwealth, spontaneous 208 Va. for what Jones sible exclamations they also Wil See can make. S.E.2d ever factual contributions F.2d 281- v. United liams v. United Jackson (5th 276, 277-278, Cir. D.C. F.2d 261- witness’ testi 262 mony But here the supra “they Nye v. United & Nissen bares his exclamation that personal at robbing at him” are character appellant’s 93 L.Ed. 919. ization of conduct which our view does not fit the actual facts. U.S.App. States, 98 41. Scott Cooper F.2d at 218 F.2d at fairly supra, In Crawford a reasonable which that, doubt, in order guilt beyond we to withstand stated reasonable conclude government acquittal, granted. If he motion for “the motion must the enough results, only to evidence need introduce that either the two concludes conviction, e., such ‘sustain’ a or no reasonable i. reasonable doubt guilt persons could find doubt, fairly possible, must let reasonable he is beyond given not a It jury reasonable doubt. In a the decide matter. compel, requirement particularly the evidence case, one of circumstan- capable it is of or sufficient evidence, that determination tial persuade to reach a verdict depend between difference guilt by requisite speculation legitimate standard.” Id. pure infer- and inquiry does our 334. Thus on the proven focus The task facts. ence question government of whether in- judge easy, in such case not enough troduced evidence to frequently “sustain” dif- rule of reason is aiding conviction and apply, no ficult but we know of abetting, difficulty, (foot- such inferences way to avoid that appropriately government’s drawn omitted) favor, persons reasonable could find 232-233. guilt abetting beyond Carrying bag аbout reasonable doubt. which contained checks, $5,100.00 in a book- cash and Judge Hand’s statement in United keeper of Center Market Provision Peoni, (2d States v. office, Company Company intend- left the 1938), requirements necessary Cir. ing deposit Ap- funds bank. for one to be an aider and abettor pellant and man were an unidentified repeated verbatim almost standing Company’s truck and near the & Nissen v. United employee’s the em- As automobilе. bag ployee put was about (1949). There, 69 S.Ct. at car, trunk the unidentified man declared, the Court “In order to aid gun bag. Appel- drew his took abet another to commit a crime it lant, standing time a short at this necessary that a defendant ‘in some sort away, to run distance made move until venture, associate himself with the eyewitness shouted, “They are rob- participate something he it as in bing eye- him!” Thus alerted bring about, he wishes seek he cry robbing they ‍​‌‌​‌‌‌​​​​‌​​​‌‌​​​‌‌‌​​‌​​​​​‌‌​​‌‌‌‌​​​‌‌​​​​‍witness’ were ” by his action to make it succeed.’ victim, gunman both the unidentified away together. They ran case, prior In this the commission pursued (but running kept were to- crime, appellant closely asso- gether) for some three or blocks four perpetrator ciated with the actual they pursuers. outdistanced their immediately was with him before the rob- They during separate did these three bery. Furthermore, pres- Appellant or four blocks. ar- later Finally, ent at the scene the crime. rested, gunman but the unidentified together ran with the man other caught, money never nor recover- robbery. Yet, my colleagues after facts, ed. Added to these record re- only by impermissible conjec- decide that appellant veals had been associated finding ture support could the evidence gunman ap- unidentified for an “in some sort associate preciable period immediately time venture, partici- himself with the that preceding crime. Then pate something it as he wishes joining just seen the robber before the about, bring robbery, he seek and, his action crime, moment of the to make it succeed.” was no & more ten feet Nissen than spot holdup. supra. actual forcefully hand, I, state evidence, when totality of this that the light favorable most considered yea, surely adequate, prosecution, is govern- adequate, to meet more than ing “ * * * rea- standard, [that] guilt fairly conclude sonable beyond ** * [and doubt a reasonable either judge] concludes if trial results, a reasonable doubt of the two fairly possible, he doubt, is no reasonable the matter.” decide let the

must supra. To Curley v. United effect is Crawford same

supra. experienced Court, an District In the appellant’s motions judge denied

trial acquittal allowed go jury. ‍​‌‌​‌‌‌​​​​‌​​​‌‌​​​‌‌‌​​‌​​​​​‌‌​​‌‌‌‌​​​‌‌​​​​‍I submit that properly done and

this was

sulting jury should allowed verdict justification for I see

to stand. setting my colleagues aside

conviction.

ISo dissent. INTER

LOCAL RETAIL CLERKS ASSOCIATION, AFL- NATIONAL CIO, Petitioner, RELATIONS

NATIONAL LABOR BOARD, Respondent.

No. 21911. Appeals

United States Court of of Columbia Circuit.

District

Argued Feb.

Decided March Boston, Mass., Pyle,

Mr. Warren H. Judicial Court the bar vice, by Massachusetts, pro special hac court, with whom leave Messrs. S. G.

Case Details

Case Name: John L. Bailey v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Mar 7, 1969

Citation: 416 F.2d 1110

Docket Number: 21428

Court Abbreviation: D.C. Cir.