McGowan, Leventhal and MacKinnon, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
October 2, 1972; As Amended October 5, 1972.
Certiorari Denied January 22, 1973. 1972.CDC.238
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MACKINNON
MacKINNON, Circuit Judge:
In a three-count indictment appellants Thomas Fench and William Blackwell, and two others -- Robert Brown and Walter Barlow, Jr. -- were charged with theft of United States Government property (18 U.S.C. 641); receiving, concealing, or retaining stolen United States Government property (18 U.S.C. § 641); and second-degree burglary (22 D.C.Code § 1801(b)). After a jury trial *fn1 both appellants were convicted of receiving, concealing, or retaining stolen Government property. *fn2 Appellant Fench was sentenced to a term of imprisonment for one to three years, while appellant Blackwell was sentenced to two to six years. On this appeal we reject their contentions that certain evidence was improperly admitted and that the court failed to provide an adequate precautionary instruction.
On January 29, 1970, F.B.I. agents were conducting surveillance of appellant Blackwell. At about 5:25 A.M. on that date, they observed him drive his panel truck *fn3 from Glen Arden, Maryland, to his place of business at 617 Rhode Island Avenue, N.E.,4 in the District of Columbia, where he arrived at approximately 6:30 A.M. Shortly thereafter, agents followed Robert Brown as he drove appellant Blackwell's truck to the Department of Labor Building, where he proceeded to park the vehicle and enter the building. Brown was observed inside the Labor Department Building "moving very fast from one door to the next attempting, trying knobs on each door, and as he would try a knob and push on the door, he would quickly move to the next door."
Approximately ten minutes after Brown entered the Department of Labor Building, he exited carrying one or possibly two cardboard boxes which appeared to contain heavy items. It was subsequently learned that an I.B.M. typewriter and a Sony tape recorder were missing from two Labor
Brown drove the panel truck back to 617 Rhode Island Avenue, arriving between 8:00 and 8:30 A.M. As soon as the truck pulled into the parking lot, appellant Blackwell and Walter Barlow, Jr., appeared at the top of the stairs in front of the building. Brown immediately alighted from the vehicle and walked up the stairs to converse with them. Thereafter, Blackwell motioned Brown and Barlow down the stairs, and all three "hurried" to Blackwell's truck. Brown proceeded to the rear of the truck, while appellant Blackwell and Barlow went to the left side of Barlow's car which was parked eight to ten feet from the panel truck. Brown transferred one box from the truck to the back seat of the automobile, and he returned to the truck for the other box. Halfway back to the car with the second box, Brown was assisted by appellant Blackwell, who appeared to be in an agitated state. Agents saw Blackwell rush over and grab one of the flaps on the top of the box, and help Brown place it in the automobile. Thereafter, Brown and appellant Blackwell returned to the building, and Barlow got into his car, which contained the two boxes, and he drove off. The F.B.I. agents who followed Barlow indicated that he drove in an evasive manner, apparently aware of the fact that he was under observation.
Shortly after Barlow left the building at 617 Rhode Island Avenue, he returned. He parked his car and immediately proceeded into the building. Thereafter, Brown and appellant Fench approached Barlow's car. Appellant Fench reached into the automobile and removed a cardboard box, and Brown removed a similar box. Both Fench and Brown then hurried along as they carried the two boxes to a large abandoned warehouse which was adjacent to the office building used by Blackwell.5 As soon as the two placed the cardboard boxes on the ground, they were arrested.
The arresting agents observed an open box at the feet of appellant Fench and Brown, containing the missing I.B.M. typewriter, to which was attached a label bearing a Department of Labor room number and the name of a secretary. The agents also saw a closed box at their feet which, it was subsequently learned, contained the missing Sony tape recorder.6
At the trial, the F.B.I. agents recounted the above-described occurrences. The Government informed the trial court that it also desired to present evidence in its case-in-chief of other suspicious activities involving Brown, appellant Fench, and appellant Blackwell's panel truck, which had taken place prior to January 29, 1970. All three defendants objected to the introduction of this evidence on the ground that it would be unduly prejudicial, and the trial court sustained these objections. However, the court ruled that if appellant Fench took the stand in his own behalf, the Government would be permitted to use the proffered testimony as rebuttal evidence.
Following the Government's case-in-chief, the trial court denied the three defendants' motions for acquittal, and they presented their evidence. Appellant Blackwell testified that Brown had worked for him for about six months as a truck driver, and he indicated that Brown was frequently gone with his panel truck for extended periods of time. Blackwell denied that any agreement existed between himself and Brown whereby the latter would use his panel truck to carry away items stolen from Government buildings. Blackwell further testified that on the morning of January 29, 1970, Brown approached him outside of the office building at 617 Rhode Island Avenue and stated: "They got me. They got me." He said that Brown explained this statement by stating: "Well, Blackwell, I hate to get you into trouble, but I stole something." Appellant Blackwell said that he became agitated when he heard this news, but he denied ...