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Roderick D. Russell and Richard Castoreno v. United States

May 16, 2013

RODERICK D. RUSSELL AND RICHARD CASTORENO, APPELLANTS,
v.
UNITED STATES, APPELLEE.



Appeals from the Superior Court of the District of Columbia (CMD-19838-11 & CMD-19839-11) (Hon. Susan R. Winfield, Trial Judge)

The opinion of the court was delivered by: Ferren, Senior Judge:

Argued February 27, 2013

Before WASHINGTON, Chief Judge, BLACKBURNE-RIGSBY, Associate Judge, and FERREN, Senior Judge.

After a bench trial, appellants Roderick Russell and Richard Castoreno were each convicted on one count of second-degree theft*fn1 and malicious destruction of property (MDP).*fn2 Both convictions were attributable to appellants‟ removal and sale of surplus telephone cable from the Federal Aviation Administration (FAA) building, where they had worked as temporary employees of an independent contractor. Russell and Castoreno each received concurrent 180-day sentences of incarceration on each count, all suspended, followed by one year of supervised probation. Appellants filed timely notices of appeal, challenging their convictions for insufficient evidence and for alleged trial court error in quashing the subpoena of a defense witness.

As to the theft we affirm, rejecting appellants‟ respective contentions that the evidence was insufficient for conviction. The evidence supported the trial court‟s finding that at the time they cut, removed, and sold the telephone cable, appellants each lacked a reasonable belief that they had the required authority to do so. We also affirm appellants‟ MDP convictions, concluding that the evidence was sufficient to prove that they destroyed FAA telephone cable with "malice," as properly defined. Finally, we conclude that the trial court did not abuse its discretion in quashing the defense subpoena. The proffered testimony would not have materially aided appellants‟ defenses and, in any event, would have been cumulative of other defense testimony.

I.

The following statement of facts is attributable to the testimony of appellants and other witnesses from which the trial court made its findings (part II. below), including resolution of the mental states pertinent to the charges at issue.

Appellants had worked as temporary communication technology employees of Information Innovation, Inc. (I.I.I.), a contractor for telecommunications services to the U.S. Department of Transportation (DOT), the parent agency of the FAA. Their last day of work was April 15, 2011,after which they were no longer authorized to enter the FAA building. During the week after their job ended, both appellants were living with Dan Hall, a manager for I.I.I., who brought them back to the FAA building on April 19 to meet with Merryll Campbell, a management analyst in charge of telecommunications for the FAA and I.I.I.‟s main contact there. Campbell offered appellants an opportunity to cut and remove surplus telephone cable from the FAA building and to sell it at a recycling center. When both appellants expressed concern "about being seen in the building," Campbell replied, "just say you work for me." As to compensation, Hall testified that the participants agreed to split the proceeds, less an unspecified share for Campbell.

Appellants then met with Dan Griffith, an independent contractor who worked at the FAA building and showed them the cable that could be removed. (Griffith, Campbell, and an I.I.I. representative had marked cable for removal a few months earlier.) Griffith gave appellants access to the telecommunications closets and told them that Charles Clayton, another independent contractor (and Griffith‟s father-in-law), had previously removed cable.*fn3 Appellant Castoreno therefore asked Clayton to help haul away the cable that he and Russell were to cut. Clayton understood that appellants would test, then cut, the cable, and that he would assist in loading the cable into his truck for transport to the recycling center. Without mentioning Campbell‟s name, appellants told Clayton that they had received the required authorization from their supervisors.

On April 20 and 21, appellants, Clayton, and Clayton‟s assistant, Jeffrey Patterson, cut and hauled away cable, with Clayton collecting the group‟s money from the recycling center. Neither appellant was secretive in doing so. On Saturday, April 23, Griffith signed the group into the FAA building between 6:00 and 6:30 a.m. to finish the job. Altogether, appellants cut and removed from the walls and ceiling of the FAA garage approximately 300 feet of heavy gauge aluminum conduit (pipe) containing 900 pairs of copper wiring -- including (to their later surprise) some wires that had been live when cut. Appellant Castoreno had borrowed equipment to test the cable, and appellants cut and removed what they thought was dead cable.

After appellants and Clayton delivered this last haul to the recycling center, Clayton took $100 of the sale proceeds to cover his cost of equipment. He then gave half the remaining proceeds to Castoreno and kept the other half for himself and Patterson. Appellants never gave the expected sum to Campbell.For all their hauls, Castoreno and Russell each received between $1,400 and $1,500.

On Monday, April 25, workers discovered a widespread telephone outage at the FAA affecting approximately 1,500 employees and eventually costing approximately $38,000 to repair. Campbell denied knowing the source of the outage but testified that he had discovered several severedtelephone cables that had caused the problem. Griffith learned of the outage and met with Campbell, who appeared nervous. Campbell told Griffith and Hall to blame the outage on Clayton.

Special Agent Joshua Henry of the Department of Homeland Security‟s, Federal Protection Service investigated the telephone outage. He spoke over the phone with Russell, who would not answer whether he had been involved in the "conduit thefts" or had "cut the cable," let alone give the name of the person who had "actually authorized" his participation.Moreover, Russell told Henry that he "did not receive any cash for the . . . conduit" but that "Clayton received funds from the scrap metal shop." At trial, however, Russell acknowledged his role. He testified that "removing old cable out of the FAA building" struck him as a "criminal act," unless one had "permission" -- which he said he had received from Campbell. He further acknowledged, however, that even after he had struck the agreement with Campbell, it "didn‟t quite sit right"; he was "concerned that [he] might get in trouble."

Agent Henry also spoke with Castoreno, who said that Clayton and Griffith had given him permission to cut the cable. Castoreno‟s other responses to Henry reflected inconsistencies, and later Castoreno admitted to Henry, and in court, that he had prevaricated because he was "scared and nervous," as he had never before spoken with a federal agent. Castoreno further acknowledged at trial that, "after the fact," he felt as though he had "done something wrong."

II.

A.

This court reviews "claims of insufficiency of the evidence de novo, applying the same standard as the trial court in ruling on a motion for judgment of acquittal."*fn4 The court must give "deference to the factfinder‟s ability to weigh the evidence and make credibility and factual determinations."*fn5 Furthermore, in a bench trial the court will not reverse "unless an appellant has established that the trial court‟s factual findings are plainly wrong, or without evidence to support them."*fn6 Thus, in order to prevail, appellants must establish "that the government presented "no evidence‟ upon which a reasonable mind could find guilt beyond a reasonable doubt."*fn7 However, "[s]light evidence is not sufficient evidence; a "mere modicum‟ cannot "rationally support a conviction beyond a reasonable doubt.‟"*fn8

B.

To establish second-degree theft under D.C. Code § 22-3211 (b),*fn9 the government must prove:

(1) that the accused "wrongfully obtained the property of [another], (2) that at the time he obtained it, he specifically intended "either to deprive [another] of a right to the property or a benefit of the property or to take or make use of the property for [himself] . . . without ...


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