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United States v. Perry

decided: March 30, 1987.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
LARRY DEAN PERRY, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Central District of Illinois, Springfield Division, No. 85 CR 30097 -- Richard Mills, Judge.

Author: Wood

Before WOOD, JR., and POSNER, Circuit Judges, and WILL, Senior District Judge.*fn*

WOOD, JR., Circuit Judge. On December 17, 1985, a three-count indictment was filed charging the defendant, Larry Dean Perry, with breaking into a post office in violation of 18 U.S.C. § 2115 (1982), stealing mail from the post office in violation of 18 U.S.C. § 1708 (1982), and receiving and possessing stolen mail in violation of 18 U.S.C. § 1708. The indictment stemmed from a break-in which occurred at the Findlay, Illinois, Post Office sometime between 5:00 p.m. May 22, 1984, and 5:30 a.m. May 23, 1984. A superseding indictment was filed March 24, 1986, charging Perry with the original three offenses and adding a fourth count charging defendant with breaking into a mail collection box in violation of 18 U.S.C. § 1705 (1982).

Perry moved to dismiss the indictment for pre-indictment delay and to suppress evidence. The district court denied these motions.

After a jury trial, Perry was found guilty of counts I, II, and IV of the superseding indictment,*fn1 and was sentenced to five years imprisonment for each of counts I and II, and three years imprisonment for count IV, all sentences to be served consecutively.

Perry appealed the judgment and sentence. We affirm.

I. FACTUAL BACKGROUND

The Findlay, Illinois, Post Office was burglarized sometime between 5:00 p.m. May 22, 1984, and 5:30 a.m. May 23, 1984. The front door, which was plate glass, was broken. The collection box in front of the post office also had been pried open. Mail had been stolen from each location.

Findlay Police Chief John Love arrived at the post office at about 5:30 a.m. May 23, 1984, and began to investigate the break-in. When he came to the rear of the post office, he saw the defendant Perry burning trash in the alley not far from the post office. Perry and his girlfriend, Debra Fairbanks, lived in a house four doors away from the post office. Postal Inspector Kenneth Cope soon arrived to investigate as well. Inspector Cope found footprints near the post office and shoe impressions on broken glass inside the door.

A witness reported to Chief Love that he saw Perry load his trash barrel into the trunk of Perry's car and drive away with it. When Perry returned, Chief Love, Inspector Cope, Shelby County Sheriff Robert Collins, and another county officer, Jim Giles, questioned him at his residence. The officers explained to Perry that they were investigating a break-in at the post office. When asked where he had taken his trash, Perry told the officers that he had dumped it in a creek southeast of Findlay. He agreed to take them to the location. Perry drove his car accompanied by Fairbanks and her daughter; the officers followed.

Perry stopped along the way to put gas in his car. As Perry knelt to pump gas into the rear of the car, Inspector noticed that the tread on Perry's tennis shoes was very similar to the shoe impressions left on broken glass found inside the post office. Perry then led the officers to the spot where he had dumped the trash on a dead-end road. Contrary to what Perry had told the officers, the site was not near any water.

When the officers found partially burnt mail that did not belong to either Perry or Fairbanks, they advised Perry of his Miranda rights. Perry agreed to answer questions about the post office burglary. Inspector Cope showed Perry a piece of the class with a shoe impression on it. The officers noticed that Perry, who was wearing shorts, had scratches on the back of his right leg. When asked about the scratches, Perry said that a cat had scratched him.

Perry and the officers returned to Perry's residence. Sheriff Collins questioned Fairbanks's nephew, Jimmy Minch, who was staying at the house, then the officers searched the house with Fairbanks's permission. Perry also consented to a search of his car, but neither search produced any evidence. While at the house, Perry changed into some long pants and gave his tennis shoes to Inspector Cope. Inspector Cope again asked Perry about the scratch on his leg, and Perry attributed it to a falling glass, then to his action in picking up the pieces of the glass after it broke. Perry agreed to accompany the officers to the Shelby County Sheriff's Office. On the way to the Sheriff's Office, Perry told Officer Love that the scratches on his leg were not from a cat but were instead from a piece of glass. At the Sheriff's Office, Inspector Cope gave Perry a receipt for his tennis shoes and took some pictures of Perry's leg.

Inspector Cope sent Perry's shoes and some of the broken glass to the Postal Inspection Service Laboratory in Washington, D.C. The lab reported that the tread pattern on Perry's shoes matched that found on the broken glass inside the post office, and glass fragments found in ...


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