UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (D.C. Criminal 334-73). 1975.CDC.131
Bazelon, Chief Judge, Danaher, Senior Circuit Judge, and Justice,* United States District Judge for the Eastern District of Texas. Opinion for the Court filed by Senior Circuit Judge Danaher.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DANAHER
This appellant, jointly tried before a jury with co-defendants Carter and Patterson, was convicted of unlawful receipt and possession of property of the United States. *fn1 The appeals of the several accused have been consolidated by order of this court. The opinion *fn2 of Judge Justice has set forth in detail the circumstances predicating the several indictments. We need now only to recapitulate such facts as bear upon Peterson's claims of error. I
The burglary of the Arms Room at the Walter Reed Hospital on June 29, 1971, had resulted in the theft of some fifteen M-14 rifles, ten shotguns and other Government property of a total value in excess of $1800. The perpetrators had left on a desk in the Arms Room a drawing of a face with wording "King Kong is Black." A jury might reasonably deduce that such a legend intentionally projected symbolic significance. Guards at the Walter Reed reservation had seen two automobiles being rapidly driven from the premises by two men accompanied, perhaps, by a third companion. No other substantial evidence as to the identity of the perpetrators was then or thereafter available until February 9, 1972, when we first learn of this appellant Peterson. II
Metropolitan Police Officer Bennett alone in a scout car was patrolling the 16th Street area about 1:30 a.m. on February 9, 1972. He then sighted two men, one carrying a.12-gauge shotgun and the other armed either with a rifle or a small-bore shotgun. Officer Bennett attempted to apprehend the pair but they opened fire on him and fled in a Pontiac car. The officer radioed for help, engaged in pursuit and was joined by police reinforcements as the Pontiac drew up in front of a house at 1318 Farragut Street. Peterson left the Pontiac, in his haste fell while crossing to the house and there was quickly subdued. At his side was a shotgun later to be identified as one which had been stolen from the Arms Room the previous June 29th. Peterson's companion, still armed, later to be identified as one Gantt, *fn3 fled to the rear of the house. Pursuing officers presently found that a forcible entry there had been made. There was testimony at trial that a police officer, scanning the house by flashlight, had caught a glimpse of a man with a long-barreled rifle standing at the window of an upstairs bedroom. In hot pursuit, officers invaded the Farragut Street house. It developed that Peterson's companion, Gantt, was found changing his clothes in a pantry. Concerned that yet other armed persons might be present, the officers undertook security steps. In plain view near an open closet on the second floor Officer Bennett sighted a shotgun. Additionally there were shoulder holsters, one containing a weapon, bayonets, ammunition, a number of live and some spent rounds of.12-gauge ammunition and other military-type items which, it later developed, had been part of the Government property stolen from the Walter Reed Arms Room on the night of the June 29, 1971, burglary. In the closet itself, a partially opened trap door yielded a view of the butts of two rifles protruding from a sack in which also were three M-14s, two being fully loaded. Not unexpectedly under the circumstances, the shoot-out on 16th Street, the flight of Peterson and Gantt, the hot pursuit leading to the Farragut Street house and the seizure there of evidence as above described, intensified developments of the case. III
The shoot-out previously described, *fn4 the flight of Peterson and Gantt, the hot pursuit by the officers, the possession by Peterson of the shotgun stolen at the Walter Reed Arms Room, and the discovery of the stolen property at the Farragut Street house gave rise to the first real break leading to the solution of the burglary and theft. Thereupon, further investigation produced the trial evidence of the inculpation of the various hitherto unidentified culprits who had participated, in greater or less degree, in the common enterprise.
For example, it developed that one Robert Marshall *fn5 and this appellant Peterson were lessees of the Farragut Street house. By May, 1971 one Arrindell and one Parker *fn6 had joined Marshall and Peterson as residents at that location. Together they constituted what they themselves called the Kokayi Family. They shared living expenses. Marshall occupied a front upstairs bedroom in which was located the closet already referred to, in and near which were found some of the weapons and other stolen property. Peterson occupied a first-floor bedroom where, from time to time stolen rifles had been stored.
Parker testified that in the early morning hours of June 29, 1971, he had been awakened by Marshall and then was asked to come downstairs. There, after meeting Carter and Patterson, these four went to an alley near the Farragut Street house and there joined in unloading bags from a blue Falcon, frequently driven by Carter. The bags, containing rifles as it turned out, were placed in another car in the nearby garage.
Later in the morning of June 29th, Marshall, Peterson, Parker and Arrindell scanned a newspaper for a possible news account relating to the theft of the weapons earlier placed in the garage. The next day, Arrindell and Peterson examined the weapons which, Arrindell testified, Peterson described as very accurate and powerful, judging from his experience with such weapons while stationed in Vietnam. Peterson informed Arrindell that he would like to be the owner of one of the rifles, a wish soon to become a reality when Peterson early in July told Arrindell that an agreement had been reached that each of the four roommates was to receive one of the weapons.
Thereafter, from time to time, Carter returned to the Farragut Street house, conferred with Peterson after which Peterson joined Carter in transferring weapons from ...