451 F2d 158 United States v. Brown

451 F.2d 158

UNITED STATES of America, Plaintiff-Appellee,
v.
Edward BROWN, Defendant-Appellant.

No. 71-1114.

United States Court of Appeals,
Sixth Circuit.

Nov. 24, 1971.

Sanford Rosenthal (Court Appointed), Detroit, Mich., for appellant.

John H. Hausner, Asst. U. S. Atty., Detroit, Mich., Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., on brief, for appellee.

Before PHILLIPS, Chief Judge, and WEICK and EDWARDS, Circuit Judges.

PER CURIAM.

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1

This could be called the case of the loyal mailman. On January 20, 1970, Charles Bartlett, a postal employee engaged in delivering parcel post packages, returned to his truck after delivering a package and saw two men approaching. One put one hand on Bartlett's shoulder and Bartlett testified that he saw a shiny object in this person's other hand. On cross-examination he said he thought it was a knife. Bartlett's reaction was to spray some dog repellant on the man who touched him. Meanwhile, appellant was taking packages out of the mail truck.

2

Upon Bartlett's resistance, both men fled. Bartlett picked up a piece of pipe from the truck and pursued appellant who dropped three postal packages in his flight, but still did not get away. Bartlett caught and, in spite of some resistance, subdued appellant.

3

Appellant was charged in a two-count indictment, 1) with aiding and abetting an assault on a mailman with intent to rob him, and with putting the life of a mailman in jeopardy, in violation of 18 U.S.C. Sec. 2114 (1964),1 and 2) with possession of stolen parcel post packages, in violation of 18 U.S.C. Sec. 1708 (1964). After jury trial he was convicted of Count 2 and the assault count stated in the first paragraph of Count 1, and was sentenced to five years on each count, with the sentences to run concurrently.

4

We believe there is ample proof that appellant aided and abetted in an assault on a mailman. The fact that appellant's confederate put his hand on Bartlett's shoulder while having what appeared to Bartlett to be a knife in his other hand, is ample proof of assault. We find no necessary inconsistency between the jury finding of not guilty on the second paragraph of Count 1 concerning putting life in jeopardy and the guilty verdict against appellant on the first paragraph of Count 1. See Wells v. United States, 311 F.2d 409 (10th Cir. 1962). A conviction under Count 1 (second paragraph) would have required a sentence of 25 years.

5

The judgment of the District Court is affirmed.

1

Count 1 of the indictment is as follows:

"1. That on or about December 22, 1969, at Detroit, in the Eastern District of Michigan, Edward Brown, defendant herein, did knowingly and willfully aid and abet another person, unknown by name to the Grand Jury, to make an assault, by use of a dangerous weapon, on Charles Bartlett, a person having lawful charge, control and custody of United States Post Office truck, No. 450073, with intent to rob, steal and purloin mail matter, money and other property, to wit: three parcel post packages which were then part of the United States mail in the charge, control and custody of the said Charles Bartlett; in violation of Sections 2114 and 2(a), Title 18, United States Code.

"2. That in attempting such robbery, Edward Brown, defendant herein, did knowingly and willfully aid and abet another person, unknown by name to the Grand Jury, to put the life of the said Charles Bartlett in jeopardy by the use of a dangerous weapon, to-wit, a knife; in violation of Sections 2114 and 2(a), Title 18, United States Code."