United States v. Edwin Clay and Arthur John Sweeney, Jr.

495 F.2d 700, 1974 U.S. App. LEXIS 9844

• Court: Court of Appeals for the Seventh Circuit
• Decided: March 1, 1974
• Docket: 73-1090
• Status: Published

Opinions

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 Boe-decker 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, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (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, 88 S.Ct. 1868, 20 L. Ed.2d 889 (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, 361 U.S. at 100, 80 S.Ct. 168. Neither rumor, report nor suspicion is adequate to support an arrest; “[p]robable 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, 80 S.Ct. at 171. 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 noticed 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 6f 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 ease, 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 tools¹ 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.² 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, 12 S.Ct. 292, 35 L.Ed. 1077 (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, 63 S.Ct. 99, 87 L.Ed. 23 (1942); Bannon v. United States, 156 U.S. 464, 468-469, 15 S. Ct. 467, 39 L.Ed. 494 (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 cheeks; 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:

evidence of other criminal acts has been held admissible by this court when they are so blended or connected with the one on trial as that proof of one incidentally involves the other; or explains the circumstances thereof; or tends logically to prove any element of the crime charged. Such evidence is admissible if it is so related or connected with the crime charged as to establish a common scheme or purpose so associated that proof of one tends to prove the other, or if both are connected with a single purpose and in pursuance of a single object; as well as to establish identity, guilty knowledge, intent and motive. United States v. Wall, 225 F.2d 905, 907 (7th Cir. 1955), cert. den., 350 U.S. 935, 76 S.Ct. 307, 100 L.Ed. 816 (1956).

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. Pull-ings, 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 crimes. If there is no resulting prejudice in the Pullings context, it would be hard to imagine prejudice resulting from the mere introduction of proof of overt acts where the government has not associated such acts with criminal sanctions.

In conference, counsel for Clay and Sweeney tendered an instruction to the court, stating, “The word ‘attempt’ used in my instructions means a substantial step toward the completion of an act. Merely preparing to do something is not an attempt.” The court indicated. that the instruction would be given to the jury. Subsequently, the court instructed the jury, in pertinent part: “The word ‘attempt’ used in this instruction means a substantial step toward the completion of an act.” Clay and Sweeney contend that the instruction failed to present fairly the law regarding their theory of the case, because the jury was not specifically informed of the distinction between “preparation” and “attempt.” Clearly, Clay and Sweeney were entitled to have the question of an attempt to enter the Argo Savings and Loan Association submitted to the jury with appropriate instructions covering whether the conduct of the men had reached the point where an overt act directly tending to effect the commission of the substantive offense, Mims v. United States, 375 F.2d 135, 148 (5th Cir., 1967), and strongly corroborative of criminal purpose, United States v. Butler, 204 F.Supp. 339, 344 (S.D.N.Y. 1962); A.L.I. Model Penal Code, had been committed. But this test need not be phrased in terms of an attempt-preparation dichotomy. In fact, the utility of such a distinction is questionable. Mr. Justice Holmes succinctly comprehended the difficulties in the distinction in Commonwealth v. Peaslee, 177 Mass. 267, 59 N.E. 55, 56 (1901), “Preparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree.” The Fifth Circuit has noted, “Much ink has been spilt in an attempt to arrive at a satisfactory standard for telling where preparations end and attempts begin.” Mims v. United States, supra,. Clay and Sweeney’s theory was simply that their conduct did not amount to an attempt. By properly instructing the jury on the standard of conduct which constitutes attempt (while avoiding the quagmire created by the preparation-attempt distinction), the court correctly permitted the jury to evaluate Clay and Sweeney’s assertion that their conduct was legally insufficient to warrant a determination that they attempted to enter the building.

Clay and Sweeney next contend that the court erred in failing to give their tendered instruction after notifying counsel that the instruction would be read to the jury. The men base this argument on rule 30 of the Federal Rules of Criminal Procedure, which provides inter alia: “The court shall inform counsel of its proposed action upon the requests [for jury instructions] prior to their arguments to the jury.” As three circuits have recognized, “The obvious object of the rule in point is to require the judge to inform the trial lawyers in a fair way what the charge is going to be, so that they may intelligently argue the case to the jury.” Ross v. United States, 180 F.2d 160, 165 (6th Cir. 1950); Downie v. Powers, 193 F.2d 760, 766-767 (10th Cir. 1951); Wright v. United States, 339 F.2d 578, (9th Cir. 1964). The degree of specificity required by the rule, however, need not be great. “The court may inform counsel in general terms suitable to this purpose [stated above] and need not, and we think, should not, do so in a sentenee-by-sentence outline.” Martin v. United States, 404 F.2d 640, 643 (10th Cir. 1968). The court here informed counsel of his proposed action on the tendered instructions and read to the jury the instruction defining attempt. He deleted as preemptory and argumentative only the sentence relating to preparation, apparently recognizing that the semantic overlap suggested by Holmes might preclude the jury from considering Clay and Sweeney’s liability for conduct which might be legally sufficient to constitute attempt even though factually described as preparation. Because the trial court’s announcement permitted counsel to make intelligent presentations to the jury predicated on the standard of liability subsequently enunciated for the jury, the court satisfied the rule.

Even assuming that the failure to inform Clay and Sweeney’s counsel of the intended deletion prior to counsel’s argument before the jury constituted error, it lacked the prejudice necessary to constitute reversible error. “The standard [which] is usually described is whether the party was unduly and unfairly prevented from making his argument to the jury or was substantially misled by the court’s action or inaction in formulating his argument.” Whitlock v. United States, 429 F.2d 942, 946 (10th Cir. 1970). Clay and Sweeney assert that they were misled by the court’s ruling and as a consequence argued the distinction between attempt and preparation to the jury. Because the distinction was not drawn in the charge to the jury, they contend, the jury could have concluded that it was immaterial to their determination of issues of fact. The precise theory of the defense was that Kelly, not Sweeney, drilled the hole in the lock of the building’s back door and that Clay and Sweeney’s presence adjacent to the building, coupled with their placing burglary tools in nearby bushes, was legally insufficient to constitute attempt. The defense argued to the jury, “A person can be ready to do something, but unless he actually tries to make the entry, that is not an attempt. . And I submit to you that when you think about what was actually done here, you will see that unloading the tools was not any more than getting ready, preparation.” The defense argument thus paraphrased the defendant’s instruction which was read to the jury. This instruction provided that attempt meant a substantial step toward the completion of an act and that, by negative implication, any conduct short of this standard, whatever its denomination (e. g., “getting ready” or “preparation”), would not give rise to legal liability. Because the court clearly instructed the jury on the proper standard of liability, the jury could not have ignored as immaterial respective counsel’s characterization of the facts with regard to that standard, even if it could have ignored labels for insufficient evidence to meet the required burden of proof for conviction. It is therefore inconceivable that notification of the alteration in the instruction would have affected the tenor of thé defense argument.

The cases on which Clay and Sweeney rely are inapposite. In Wright v. United States, 339 F.2d 578 (9th Cir. 1964), the court found reversible error where the trial court answered counsel’s request for information on the content of instructions with “go ahead and argue the case any way you want to argue it . . . [,and] I will instruct the jury as to the law involved in this case.” Id. at 579. The trial court then ignored the defense theory that defendant was acting within the scope of permission in this Dyer Act prosecution. The court, however, expressly distinguished this refusal to provide any guidance for counsel from Carbo v. United States, 314 F. 2d 718, 745-746 (9th Cir. 1963), and Watada v. United States, 301 F.2d 869 (9th Cir. 1962), in which the court had found that the trial court’s refusal to comply with rule 30 did not appear to affect the content of counsel’s argument. This latter finding is applicable here, where the court accepted the standard of liability proposed by the defense, deleting only a term describing nonculpatory conduct, and counsel then proceeded to shape his closing argument toward characterizing the pertinent facts as insufficient to meet the standard. Loveless v. United States, 104 U.S.App.D.C. 157, 260 F.2d 487 (1958), is also not in point. There, trial counsel was told that the jury would be instructed on second degree murder; however, the jury was instructed on manslaughter. In Loveless, the defense protested that in reliance on the court, he had refrained from arguing the manslaughter issue to the jury, and the case was properly reversed. Here, the reliance of counsel on the court was not substantially misplaced. The court gave the promised instruction on the standard for criminal conduct to the jury, implying that lesser conduct was not inculpatory, and counsel relied on the distinction in conduct created by the standard. In a similar situation where the trial court failed to inform counsel of its proposed action on a requested intrapment instruction but subsequently issued its own instruction, the First Circuit, in language equally applicable here, decided that as “the court below adequately covered the ground . . . [,w]e fail to see how counsel in this case would significantly have changed the thrust of his argument had the court specifically stated that it would not give the instructions in the form requested.” Carrigan v. United States, 405 F.2d 1197, 1198 (1st Cir. 1969).

Prior to arraignment, Kelly was incarcerated at the Milwaukee County Jail on an unrelated state charge of burglary. Subsequent to arraignment, Miss Boedecker filed a “Motion to Interview Accomplice Witness,” which sought to have the United States Attorney produce Kelly, “who is presently in the custody of the Government [,] for an interview.” Clay and Sweeney were granted leave to join the motion, which was denied. Clay and Sweeney now assert that the trial court and the U. S. government interfered with their right of access to government witnesses and thus abridged their right to effective representation by counsel, secured by the sixth amendment, and their right to a fair trial, secured by the fifth amendment. Miss Boedecker’s motion, however, failed to properly recognize the structure of our federal system. While it is true that Kelly was in the custody of “the government,” he was being held by Wisconsin state authorities at all pertinent times rather than by the United States government, which prosecuted this case. Because of this distinction, it was necessary for the United States Attorney to seek district court orders for a writ of habeas corpus and prosequendum to secure Kelly’s presence at the trial. As the government had no more control over the presence of Kelly than did Clay and Sweeney, the court properly denied the motion. Nothing in the record suggested that Clay and Sweeney were unable to locate Kelly or that Kelly was forbidden by the prosecution from speaking with the defense.

Clay and Sweeney assert that the court, erred in denying their post-trial motion based on 18 U.S.C. § 3500 to order the government to furnish them with alleged notes of Kelly’s answers to questions propounded by the prosecutor in a pretrial interview. The statutory purpose of the section is to delimit thé possible reach of Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), by providing for the “[turning] over to the defense at the time of cross-examination [statements of witnesses to government agents] if their contents related to the subject matter of the witness’ direct testimony.” Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). Because the defendants could only properly use such a statement to impeach the testimony of Kelly during cross-examination, the motion for production made at the conclusion of the trial was not timely. Therefore, we find no error in the court’s denial of the motion. United States v. Trigg, 392 F.2d 860 (7th Cir. 1968); cert. den., 391 U.S. 961, 88 S.Ct. 1863, 20 L.Ed.2d 874 (1968).

While the original purpose of the motion for production of the prosecutor’s notes was to elicit information concerning Kelly’s plans and efforts to enter the savings and loan, the men claim on appeal that disclosure of the notes would have permitted them to determine whether Kelly received a promise of leniency in exchange for his testimony, Kelly having denied on cross-examination that he was testifying as part of a bargain to reduce his sentence. If Clay and Sweeney could demonstrate through the use of the notes that Kelly lied under oath and that the government knowingly permitted the perjured testimony to go uncorrected, a new trial would be mandated under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Even if it were procedurally appropriate to use a § 3500 motion to produce post-trial evidence related to the use of perjured testimony, there is no basis to suggest that an evidentiary hearing would be warranted here as nothing has come to light since the defendants filed their post-trial motion to intimate that the prosecutor’s-questions to Kelly related to anything other than Kelly’s plans and efforts regarding the Argo Savings and Loan Association. This sharply contrasts with the facts in Giglio, where the motion for a new trial was grounded on demonstrable new evidence: conflicting affidavits filed by two assistant United States attorneys.

Finally, Clay and Sweeney challenge the sufficiency of the indictment alleging a conspiracy to attempt to enter the Argo Savings and Loan Association on the ground that an attempt is an inchoate offense and cannot properly be the objective of a conspiracy. They assert that if the object of the conspiracy was to be completed when the unsuccessful attempt had been made, then the object of the conspiracy would be fulfilled before any actual threat to the bank’s property had occurred. It is well-settled that a single conspiracy may have a multiplicity of objects, Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), United States v. Manton, 107 F.2d 834 (2d Cir. 1938). All of the multifarious objects of the conspiracy need not be alleged to satisfy the statutory requirement for a criminal conspiracy under 18 U.S.C. § 371; however, the object alleged must be an “offense against the United States.” While entering the savings and loan was obviously an objective of the conspiracy and a federal crime, the men necessarily contemplated their attempting to gain entry into the building, and such attempts are expressly proscribed by 18 U.S.C. § 2113(a). As the pleading thus alleged an “offense against the United States” as the object of the conspiracy, the defendants’ contention is without merit. ■

Affirmed.

1 . There may also have been probable cause to arrest the men for attempted bank robbery in violation of 18 U.S.C. § 2113(a), a question we need not reach because of our holding that probable cause existed to arrest the men for possession of burglary tools, and “in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under the Amendment.” United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477, 38 L.Ed.2d 427 (1973). The facts in our case resemble those in McClard v. United States, 386 F.2d 495 (8th Cir. 1967), cert. den., sub nom., Ussery v. United States, 393 U.S. 866, 89 S.Ct. 149, 21 L.Ed.2d 134 (1968), in which the court found probable cause to arrest a man sitting in a pickup truck parked in front of a bank in the early hours of the morning when a weapon was found lying on the front seat of the truck. As in the present case, the police saw others (previously observed by witnesses “messing with the [bank’s] door”) running from the bank area in a direction away from the police. In finding probable cause, the court stated, “It is common knowledge that burglars and those intent on predatory practices often carry and have at their command loaded guns.” Id. 386 F.2d at 501. While there were no reports of tampering with the doors in this case, the men were found proximate not only to a loaded weapon but also to a whole array of burglary tools. See also, Golliher v. United States, 362 F.2d 594 (8th Cir. 1966).

2 . Clay and Sweeney contend that as the indictment failed to allege embezzlement, conspiracy to conceal embezzlement or conspiracy to rob, though evidence of these crimes was presented as overt acts of conspiracy, they would be liable for subsequent prosecution for these acts, which would subject them to double jeopardy. The prospective risk of double jeopardy, however, does not bar the introduction of relevant evidence em-compassing possibly criminal acts in the first trial, and we need not consider at this time whether a later trial on any of the above charges would violate the constitutional clause.