Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Swygert, Chief Judge, Castle, Senior Circuit Judge, and Sprecher, Circuit Judge. Swygert, Chief Judge, dissenting.
CASTLE, Senior Circuit Judge.
Defendants Edwin Clay and Arthur John Sweeney, Jr., appeal their jury convictions for conspiring to attempt to enter and attempting to enter a savings and loan association. On appeal, the men contend that the police lacked probable cause to arrest them, that evidence regarding prior criminal conduct was erroneously admitted, and that the court's instruction improperly failed to distinguish between "mere preparation" and "attempt." Clay and Sweeney also assert that they were deprived of the opportunity to interview accomplice witness Kelly and denied material relating to whether leniency was offered to Kelly. Finally, they raise the question of whether a conspiracy indictment may properly charge a conspiracy to attempt a crime. We have considered these issues, and we affirm the convictions.
The criminal activity in question grew out of a romance between Sweeney and Miss Charlotte Boedecker, a cashier in the Argo Savings and Loan Association in Summit, Illinois, which began in July 1972. Shortly thereafter, Sweeney began to pressure Miss Boedecker to embezzle travelers checks from the savings and loan. On Sweeney's assurance that the checks would be covered, Miss Boedecker took checks from Argo on two occasions in early August. On August 16, Clay, Sweeney's friend, offered some of the embezzled checks to Kelly. He also asked Kelly to assist Sweeney and him in "sticking-up" the source of the checks. The following day, the foursome met and discussed a daylight robbery of Argo. Kelly questioned Miss Boedecker on the layout of the building, and Miss Boedecker asked Kelly to scatter the travelers checks during the robbery. On the afternoon of August 18, Kelly and Clay appeared outside the savings and loan building. However, they decided to postpone their proposed action because of their visibility to passersby. After work, Miss Boedecker was picked up by Sweeney, and she gave him the key to her cash drawer in the Argo vault as they drove to a rendezvous with Kelly and Clay. At that meeting, the four decided to burglarize the savings and loan that evening. The three men proceeded to the building; en route, Sweeney told the other two men that Miss Boedecker had left the vault open to permit the cover-up of the checks. Kelly removed a sledge hammer from the car trunk on arrival, while Sweeney took out a hand drill, pry-bar, screwdriver, gloves and a flashlight. Most of the tools were placed near a guard rail bordering the savings and loan's adjacent parking lot. Sweeney unsuccessfully attempted to drill a hole in the back door of the building. When he reported his failure to Kelly and Clay, Kelly decided to inspect the door, leaving Clay and Sweeney sitting on the guard rail. When Kelly returned to speak with the two men, he dropped a screwdriver at their feet as a police car approached. To mask the enterprise as simply horseplay, Kelly grabbed one of the men's hats and began running. The police, who had observed Clay and Sweeney sitting on the guard rail next to the closed building an hour earlier, became suspicious and decided to investigate. While speaking with the two men, the officers noticed burglary tools strewn at the men's feet and arrested them.
Following their arrest, Clay and Sweeney were escorted to the police station where they were asked to empty their pockets. Clay had drill bits in his possession, while Sweeney surrendered a Mosler safe key. This key was subsequently identified as the one opening Miss Boedecker's cash drawer in the vault. Following an evidentiary hearing on a motion to suppress, the trial court admitted the key into evidence. It is well established that "a search without a warrant is, within limits, permissible if incident to a lawful arrest; if an arrest without a warrant is to support an incidental search, it must be made with probable cause." Henry v. United States, 361 U.S. 98, 102, 4 L. Ed. 2d 134, 80 S. Ct. 168 (1959). Clay and Sweeney assert that because no probable cause existed to support their arrests, the fruits of the search were inadmissible into evidence. See, e.g., Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The authority of police officers to make felony arrests without a warrant is restricted to offenses committed in their presence or to situations where the officers have reasonable grounds to believe that the person to be arrested has committed or is committing a crime. Henry v. United States, supra, at 100. Neither rumor, report nor suspicion is adequate to support an arrest; "probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense had been committed." Id. at 102. The facts and circumstances which confronted the officers were clearly sufficient for them to believe prudently that Clay and Sweeney were engaging in criminal activity. At 9:30 in the evening of August 18, 1973, the police noticed Clay and Sweeney sitting on a guard rail at the north corner of an empty parking lot adjacent to the closed savings and loan, approximately 140 feet from the building's rear doors. About an hour later, the officers saw the two men still sitting on the guard rail, only now at the south corner, about 48 feet from the rear doors. The officers then observed a third man walk from the direction of the rear of the bank toward the seated men, drop or place something at their feet, grab one of the men's hats, and begin running in a direction away from the police. When neither man appeared to object to the loss of the hat, the officers became suspicious about this pattern of behavior and appropriately decided to inquire about the men's identities and their purpose for remaining near the rear of the building at such a late hour. While speaking with the two, an officer holding a flashlight notice a pistol lying a foot behind Sweeney, and a crowbar, a screwdriver and a pair of gloves lying just to the right of Clay. The arrests followed.
Clay and Sweeney contend the only suspicious conduct the officers observed was that of Kelly. Yet, the officers testified that their suspicions were initially aroused by two men remaining near a closed savings and loan building for over an hour with no apparent purpose, while progressively moving along the guard rail closer to the rear doors of the building. Clay and Sweeney also contend that Kelly's conduct was extraneous to a finding of probable cause, since the police had no knowledge that Kelly was not a stranger to the men. However, it was the men's reaction to Kelly's acts, not merely his conduct, which heightened police suspicion. The officers had observed that Kelly's actions brought no apparent response from the men. Surely, if Kelly were a stranger, the "theft" of the hat would not have been calmly tolerated, and the dropping or placing of a screwdriver of a size useful in breaking into a building might have engendered surprise. This conduct plainly justified the officers' initial inquiry.
The arrests, however, were predicated on the observance of the burglary tools which lay at the men's feet, for possession of burglary tools is a crime in Illinois. Ill. Rev. Stat., ch. 38, sec. 19-2. Clay and Sweeney argue that an essential element of the crime is knowledgeable possession, and nothing indicated to the police that the two men were aware of the tools which lay in their proximity. See, Illinois v. Cogwell, 8 Ill. App. 3d 15, 288 N.E.2d 729 (1972). The Illinois Criminal Code provides the following definition of possession:
Possession is a voluntary act if the offender knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient time to be able to terminate his possession. Ill. Rev. Stat. ch. 38, sec. 4-2.
When Kelly dropped or placed something at the feet of Clay and Sweeney, the police observed that the two men did not disassociate themselves from the object, though obviously aware of their control over it. When the police shined their light at the men's feet, they viewed an array of burglary tools. The officers could therefore reasonably infer that Clay and Sweeney had knowingly received at least one of the tools from Kelly. Even if the evidence may have been insufficient to sustain convictions, the standard for probable cause has never been equated with the standard for conviction. E.g., Lewis v. United States, 135 U.S. App. D.C. 187, 417 F.2d 755 (1969); Locke v. United States, 11 U.S. (7 Cranch.), 339, 348, 3 L. Ed. 364 (1813) (Marshall, C.J.). In the circumstances of this case, the finding of burglary tools adjacent to two men who had remained suspiciously close to a closed savings and loan association for more than an hour was sufficient to give the officers reasonable grounds for believing that Clay and Sweeney knowingly possessed burglary tools*fn1 and, hence, for the arrests.
Clay and Sweeney contend that the court erroneously permitted the government to introduce evidence of prior crimes not charged in the indictment. The evidence consisted of Miss Boedecker's embezzlement of travelers checks from Argo at Sweeney's behest and of the agreement among Miss Boedecker, Clay, Kelly and Sweeney to rob the savings and loan during daylight hours. Clay and Sweeney assert that the evidence prejudicially caused the jury to convict them for unrelated crimes not charged in the indictment.*fn2 While proof of prior unrelated crimes may not be introduced to imply guilt respecting the crime charged, United States v. Boyd, 142 U.S. 450, 35 L. Ed. 1077, 12 S. Ct. 292 (1892), proof of criminal conduct may be introduced when a conspiracy is alleged if such proof establishes any act to effect the object of a conspiracy, Braverman v. United States, 317 U.S. 49, 53, 87 L. Ed. 23, 63 S. Ct. 99 (1942); Bannon v. United States, 156 U.S. 464, 468-469, 39 L. Ed. 494, 15 S. Ct. 467 (1894); and such acts need not involve more than one of the charged conspirators. In the present case, Clay and Sweeney were charged with a conspiracy beginning on August 1, 1972 to enter the Argo Savings and Loan Association with the intent to commit larceny. Subsequent to the date on which the conspiracy was formed, Sweeney persuaded Miss Boedecker to embezzle checks by promising to cover the resulting shortage through a later robbery. Kelly was enticed into the conspiracy through the use of these checks; he was offered some of the checks and asked to help "stick-up" the savings and loan. Miss Boedecker gave detailed information on the building's floor plan to facilitate the daylight robbery designed to effect the cover-up for the embezzled checks. Thus, both the embezzlement and the agreement to rob the savings and loan contributed to achieving the object of the charged conspiracy by providing the means both for inducing the necessary participation and for obtaining essential building information. That these overt acts provided at trial were not alleged in the conspiracy indictment is of no consequence on the facts presented here. Brulay v. United States, 383 F.2d 345 (9th Cir. 1967), cert. den., 389 U.S. 986, 88 S. Ct. 469, 19 L. Ed. 2d 478 (1967); Finley v. United States, 271 F.2d 777 (5th Cir. 1960). Because these events, obviously relevant to the object of the conspiracy charged, transpired after the date on which the indictment alleged the conspiracy was formed, Clay and Sweeney received adequate notice that evidence of these events might be presented to the court.
We need not rest on the ground alone, however, in holding that evidence of the embezzlement and agreement to rob was properly admitted. The use of prior criminal conduct to prove intent or motive is a well-established exception to the general rule. C. McCormick, Law of Evidence, § 157 (1954). Proof of the embezzlement established in a rather emphatic manner at least one motive for the attempted burglary -- the need to shield Miss Boedecker's pilfering. Further, proof of the attempted robbery was inextricably linked to proof of the attempted burglary and was therefore properly admitted. As this court has stated:
Proof of the attempted robbery explains both how the necessary information on the building layout was obtained and why the mode of nighttime entry was chosen. It also tends to prove the identity of the participants.
Clay and Sweeney's claim of prejudice arising from the introduction of evidence of criminal conduct to establish overt acts pursuant to the conspiracy is strikingly similar to that asserted by the appellant in United States v. Pullings, 321 F.2d 287 (7th Cir. 1963). In that case, it was argued that the jury had heard evidence of charges unrelated to the conspiracy, as a result of the joining of counts alleging both narcotics sales and conspiracy to violate the narcotic laws with narcotic sales listed as overt acts. The court found that a substantive count in an indictment may relate to an overt act in a conspiracy count in the same indictment and concluded that the appellant's claim of prejudice lacked merit. Here, the possibility of prejudice is far more remote, for the jury is not presented with the nexus of criminality apparent when it is asserted that acts in furtherance of a conspiracy are in themselves legally sufficient to constitute ...