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United States v. Barbour

decided: February 16, 1967.

UNITED STATES OF AMERICA,
v.
SYLVESTER N. BARBOUR, APPELLANT



Staley, Chief Judge, and McLaughlin and Forman, Circuit Judges.

Author: Mclaughlin

Opinion OF THE COURT

McLAUGHLIN, Circuit Judge.

Appellant, a United States Post Office employee, was indicted for embezzlement of mail. (18 U.S.C. ยง 1709). He and his lawyer, together with the district attorney waived a jury trial and submitted the cause "for hearing and decision by the Court." After a trial appellant was found guilty. Imposition of prison sentence was suspended and he was placed on probation for one year. Because the decisional elements of this appeal are factual, including warranted conclusions from the facts, it is needful to set out the testimony in considerable detail.

It is undisputed that for some time prior to September 1965, appellant had been working for the Post Office Department as a New York mail distributor clerk on a postal railroad car between Washington and New York City. It is not controverted that prior to September 1, 1965 the Postal Inspectors' Office had received complaints concerning missing New York mail and was investigating the matter.

At the trial there was uncontradicted evidence from J. J. McNabb, Jr., a Senior Postal Inspector in charge of the Post Office inquiry, that he had prepared a test special delivery post card and two special delivery letters. In the first letter he placed $25 in currency and in the second $20 in currency. The series numbers and the serial years of the bills, etc. were noted. On September 1, 1965, Inspector McNabb turned those three communications over to H. V. Miller who was the Postal Supervisor on the particular train out of Washington that morning that, among other postal cars, carried the New York mail car in which appellant worked. He put the particular special delivery letters and card in front of appellant's "case where he works". There were four other postal employees on the train working with the New York mail delivery and other postal employees on the train sorting other mail. Mr. Gonzales a postal employee at the Pennsylvania Railroad Station, New York City testified that he met the train when it arrived in New York. Acting under instructions from Inspector McNabb, he picked up all the special delivery pouches for New York City and brought them to the Inspector at the New York General Post Office which is adjacent to the station. The Inspector stated that he unlocked the pouches, found the post card but as to the special delivery letters he said, "I did not recover them, they were not in the pouches." Appellant, after arriving in New York City, boarded a train to go to Philadelphia where he lived. The Inspector stated that he called Postal Inspector Osgood at the Pennsylvania Station, Trenton, New Jersey and he, himself caught an 11:00 A.M. train from New York and went to Philadelphia and on to his office in the 30th Street Philadelphia Post Office. Postal Inspector Osgood testified that after he talked with Inspector McNabb he boarded the New York 8:00 A.M. Philadelphia train. He met Postal Inspectors Rutledge and Carroll who had taken the train from New York and who had appellant, also on the train, under surveillance. Inspector Osgood said that at the North Philadelphia railroad station he identified himself to appellant. He was asked "What did he [appellant] say?" He answered "I wanted him to go down to the 30th Street station with me, and he said, well, he had to go downtown anyways and he was perfectly willing to go." The witness continuing said, "At 30th Street station, Mr. Barbour accompanied me over to the Post Office" and in to Mr. McNabb's office. At the latter, Inspector Rutledge and Mr. Brown, a Post Office investigator, were present. Mr. Osgood asked as to the conversation answered:

"The conversation consisted of Mr. Rutledge informing Mr. Barbour that we were investigating the theft of certain mails and he advised him at that time that he had the right to not say anything, that if he did say anything it might be used against him in a court of law and that if he wanted an attorney he had a right to have an attorney and that if he wanted anybody else to talk to, why, he was eligible to do that, too."

The witness stated that appellant didn't express any desire to have an attorney. Inspector Osgood said, "Then I asked him to produce the contents of his pockets and he did so and in his billfold that he took from one of his pockets was the test money that was contained in the test letters." On cross-examination appears the following regarding appellant going to Inspector McNabb's office:

"A. I identified myself to Mr. Barbour at the North Philadelphia Station and I asked him if he would go with me to the post office and he said --

Q. You asked him or you told him that you wanted him?

A. I asked him if he would go to the post office with me."

The witness was queried regarding his testimony at the preliminary hearing where it was appellant's attorney who made the affirmative statement to Inspector Osgood, i.e. "Q. Therefore [stet], he was placed in custody at the 30th Street Station of the Pennsylvania Railroad?" Then appears "A. Yes." Asked about this Mr. Osgood stated, "I don't recall saying I took him into custody." Asked the same sort of question re appellant's brief case "Q. And when he arrived at the 30th Street Post Office, that brief case was searched, was it not?" The witness replied:

"A. It was opened and looked through.

A. Eventually, I don't recall it was right away. I know it wasn't right away, because we asked him where his gun was and he said, 'It is in the brief case.' And we wanted to get that gun out of his possession. That is when we opened the brief case and went through it.

A. We asked him where his gun was first and he said 'In the brief case.' So we opened it and took the gun out."

In answer to the Court's query whether appellant had been arrested at the 30th Street ...


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