United States Court of Appeals Tenth Circuit

238 F.
2d 766
David Randolph CLEAVER, Appellant,

v.
UNITED STATES of America, Appellee.
Louis Jess CITO, Appellant,
v.
Billy Leonard SKOOG, Appellant,
v.
Ernest Henry COLOSACCO, Appellant,
v.
Lucille MOYA, alias Lucille Moya Sanders, Appellant,
v.
Nos. 5404-5408.
United States Court of Appeals Tenth Circuit.

Nov. 8, 1956.
Joseph N. Lilly, Denver, Colo., for appellant David Randolph Cleaver.

Francis P. O'Neill, Denver, Colo., for appellants Louis Jess Cito, Billy
Skoog, Lucille Moya, alias Lucille Moya Sanders, and Ernest Henry
Colosacco.
Donald E. Kelley, Denver, Colo., U.S. Atty., for the Dist. of Colorado
(Robert Swanson, Asst. U.S. Atty., for the Dist. of Colorado, Denver,
Colo., was with him on the brief), for appellee.
Before BRATTON, Chief Judge, and PHILLIPS and LEWIS, Circuit
Judges.
LEWIS, Circuit Judge.
On the night of September 18-19, 1955, between the hours of 10:15 P.M. and
7:15 A.M. the Iliff Drug Store, a contract post office in Denver, Colorado, was
forcibly entered and a safe containing postage stamps and postal equipment,
cash, and 380 United States postal money orders was removed. On September
20, the safe was discovered in a creek under a bridge in the Denver vicinity.
Nearby, investigators retrieved a pick, sledge hammer, big screwdriver and a
white canvas glove. The safe had been forced and the contents taken.
Shortly after the burglary, the stolen money orders, filled out, signed, and
stamped with the validating stamp taken from the Iliff store, began to appear in
Tulsa, Oklahoma, El Paso, Texas and elsewhere. Arrests and convictions in
those states followed.
Appellants-defendants, together with Kenneth Blaylock, were arrested, indicted

and tried in Colorado, the two count indictment charging violation of the
provisions of 18 U.S.C. 371 and 18 U.S.C. 2115 in that they conspired to
and did burglarize the Iliff store. The substantive charge contained in count 2
was dismissed on motion as against the defendant Colosacco and he was
convicted under Court 1 of conspiracy to break and enter the post office.
Blaylock pleaded guilty to the charges and a jury found each of the other
defendants guilty on both counts. They appeal, alleging the trial court denied
them reasonable opportunity to direct motions to the indictment, admitted
incompetent evidence, and gave faulty instructions.
On October 21, 1955, defendants entered pleas of not guilty to the charges
contained in the indictment and the trial court granted them ten days within
which to file motions directed to the indictment. On October 31st the
defendants requested an extension of this time which was denied by the court
and they now cite such denial as error. Rule 12(b)(3) of the Federal Rules of
Criminal Procedure, 18 U.S.C. provides that such motions should be made
before the plea is entered, but the court may permit them to be made within a
reasonable time thereafter. Although defendants concede in making their motion
for extension of time that they gave no specific grounds in support thereof they
now allege that the court abused its discretion in failing to grant such motion.
The defendant Cleaver, who filed a separate brief on this appeal, asserts that
had he been allowed to do so he would have entered a motion to strike Overt
Act No. 7.1
Generally, as he avers, an overt act must be one in furtherance of the conspiracy

and not one which occurs after the conspiracy has ended. But the termination of
the conspiracy need not coincide with the completion of the crime nor even
with the arrest of a conspirator. Ferris v. United States, 9 Cir., 40 F.2d 837. The
time when a continuing conspiracy terminates depends upon the particular facts
and purposes of such conspiracy. Completion of the object of the conspiracy
completes the conspiracy. This varies with different offenses but a conspiracy to
commit a crime of stealth for material gain usually has a minimum routine
development from plan to commission to division of fruits, if any, among the
conspirators. Such was the government's theory in the instant case and the overt
act set forth in the indictment so alleged. It follows, therefore, that a motion to
strike Overt Act 7 would not have been effectual and no prejudice resulted to
the defendants. Nor do we see any merit in the contention that the facts alleged
in the indictment were so profound or difficult that counsel needed an unusual
length of time within which to peruse them. The court granted ten days within
which to make motions directed to the indictment after the plea was entered and
nothing in the record reveals an abuse of discretion in denying further
extensions.
6
During the course of the trial testimony was received of certain admissions of
the defendant Moya made to the witness Marragos, a deputy sheriff of
Arapahoe County, Colorado. Her statements were made subsequent to her
arrest and not in the presence of the other defendants. Appellants cite the
receipt of this testimony as error requiring reversal, nothing that timely
objection was made that her admissions were hearsay as to the other
defendants.
Where it appears that two or more persons have conspired to commit an

offense, anything said or done by one of them during the conspiracy and in
furtherance of the conspiracy is admissible in evidence against all. Bartlett v.
United States, 10 Cir., 166 F.2d 920; United States v. Dennis, 2 Cir., 183 F.2d
201, affirmed 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. However, after the
conspiracy has come to an end, the admissions of one conspirator, by way of
narrative of past facts, are not admissible in evidence against the others. Logan
v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429. The conspiracy is
ended, except in most unusual instances such as the Ferris case, supra, by the
arrest of one of the confederates and hence his declarations to arresting officers
are not admissible, since they do not partake of the singleness of purpose which
marks the conspiracy, and are hearsay in the trial of the others. Holt v. United
States, 10 Cir., 94 F.2d 90; Graham v. United States, 8 Cir., 15 F.2d 740;
Mayola v. United States, 9 Cir., 71 F.2d 65.
This testimony was offered by the government and objected to by appellants

early in the trial. The trial court at that time correctly stated the test governing
its admissibility, indicated that it could not then be determined by him whether
the conspiracy had ended with or prior to the arrest of Moya and stated that
since the testimony was clearly competent as against Moya, he would allow the
witness to testify and that a proper instruction could be given if it appeared that
Moya's statements were inadmissible against the others. This is the usual and
proper procedure. Where evidence is admissible as to one of several defendants
it generally must be received and then it becomes the duty of the others to
submit instructions limiting its effect. Dauer v. United States, 10 Cir., 189 F.2d
343. In the instant case no such instruction was given nor was it requested and
it has been held that it is incumbent upon the parties to request such instruction
and a failure so to do precludes review of the question. Troutman v. United
States, 10 Cir., 100 F.2d 628. However, where a serious prejudicial error in the
conduct of a trial affects life or liberty a federal appellate court may notice and
correct the error even though it was not called to the attention of the trial court.
Bogileno v. United States, 10 Cir., 38 F.2d 584; Addis v. United States, 10 Cir.,
62 F.2d 329; Kelly v. United States, 10 Cir., 76 F.2d 847. For this reason, we
examine the evidence given by the witness in relating the statements of
defendant Moya.
9
After her arrest Moya stated (so testified the witness) that on the date of the
burglary she was at home with Louis Cito, with whom she lived, and
defendants Skoog, Cleaver, Colosacco and Blaylock came to the apartment.
Cito told her to go out on the back porch because he didn't want her 'to have
anything to do with anything'. Earlier that morning, she stated, she, Cleaver,
Skoog, Cito and Blaylock were together and questioned by the Denver Police.
On September 21 she and Cito had gone out to Kenneth Blaylock's motel.
10
Although the defendant Colosacco admitted to passing the stolen money orders
there is no evidence tending to connect him with the conspiracy prior to the
burglary other than the statements of Moya. Such statements being incompetent
as to him, and there being no other evidence showing that he conspired with the
others prior to the commission of the crime, his admissions show only that he is
an accessory after the fact. Under the rule of Bollenbach v. United States, 326
U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350, an accessory after the fact cannot be
convicted of a conspiracy to commit a crime where the proof demonstrates only
that he helped dispose of stolen goods after the crime was committed. Although
one who causes an act to be done, aids, abets, induces or procures its
commission is properly prosecuted as a principal, 18 U.S.C.A. 2, Congress
has accorded different punishment for one who is an accessory after the fact, 18
U.S.C.A. 3. Since the substantive charge of burglary was dismissed as to
Colosacco his conviction under the remaining count must be reversed.
11
A similar prejudice does not exist from the admission of Moya's statements
against the other defendants. The record is replete with competent evidence,
some given by the defendants themselves, that Cito, Blaylock, Cleaver, Moya
and Skoog associated together upon numerous occasions and were together on
the night of the burglary. We are thoroughly satisfied that no prejudice resulted
to these defendants and that the admission of Moya's statements was harmless
to them.
12
Defendants next challenge the conviction upon the ground that the trial court
did not adequately charge the jury relative to the law pertaining to the
testimony of accomplices; specific complaint is made that the court did not
inform the jury that two of the government's witnesses, Thomas Sullivan and
James Webster, were accomplices. Sullivan admitted and testified to his
participation in the crime from its inception to his arrest in Tulsa, Oklahoma,
where he passed some of the stolen money orders. He, of course, was an
accomplice. Webster, however, did not participate in the planning or the
commission of the burglary, although he was present during a number of the
conversations among the various conspirators. Mere knowledge, approval of or
acquiescence in the object or the purpose of the conspiracy, without an
intention and agreement to cooperate in the crime is insufficient to constitute
one a conspirator. Thomas v. United States, 10 Cir., 57 F.2d 1039.
13
In its charge the trial court correctly defined an accomplice and the care and
caution with which the jury should consider the testimony of an accomplice.
The charge was given in accord with recent pronouncements of this court in
Johns v. United States, 10 Cir., 227 F.2d 374; and the United States Supreme
Court in Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442.
While the court might have properly directed his charge specifically to the
testimony of Sullivan no prejudice could result from his omitting to do so. The
only witnesses who, under the court's abstract definition, could have been
accomplices were Sullivan and Webster. Sullivan was an admitted accomplice,
convicted, and incarcerated for participation in the offense. If the jury also
applied the court's cautionary instruction to the testimony of Webster it could
not result in prejudice to the defendants.
14
Other assignments of error are made by appellants which we have considered

and find to be without merit.
15
As to the appellants Moya, Cito, Skoog and Cleaver the judgment is affirmed
as to each; as to the appellant Colosacco, the judgment is reversed with
instructions to dismiss the indictment.
'7. That on * * * 20th day of September, 1955, * * * (the defendants) did meet
'7. That on * * * 20th day of September, 1955, * * * (the defendants) did meet
at 4159 Tejon Street, Denver, Colorado, and discuss the disposition of the
articles obtained from the Iliff Drug Store * * *'

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238 F.

David Randolph CLEAVER, Appellant,

United States Court of Appeals Tenth Circuit.

Joseph N. Lilly, Denver, Colo., for appellant David Randolph Cleaver.

Appellants-defendants, together with Kenneth Blaylock, were arrested, indicted

Generally, as he avers, an overt act must be one in furtherance of the conspiracy

Where it appears that two or more persons have conspired to commit an

This testimony was offered by the government and objected to by appellants

Other assignments of error are made by appellants which we have considered

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