United States v. Harvey

526 F.2d 529, 1975 U.S. App. LEXIS 11830
CourtCourt of Appeals for the Second Circuit
DecidedNovember 20, 1975
DocketNo. 1264, Docket 75-1053
StatusPublished
Cited by16 cases

This text of 526 F.2d 529 (United States v. Harvey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Harvey, 526 F.2d 529, 1975 U.S. App. LEXIS 11830 (2d Cir. 1975).

Opinion

MESKILL, Circuit Judge:

This is an appeal by Ernest Harvey, Jr., from a judgment of conviction entered in the United States District Court for the District of Vermont after a jury trial before Albert W. Coffrin, District Judge. The six-count1 indictment upon which Harvey was tried charged, in essence, the following offenses:

Count I—

Conspiracy from on or about July 1, 1973, up to and including August 4, 1973, to (1) transport in interstate commerce goods of the value of $5,000 or more, to wit the proceeds of a burglary, knowing the same to have been stolen, in violation of 18 U.S.C. § 2314, (2) to transport dynamite, knowing that such dynamite was stolen, in violation of 18 U.S.C. § 842(h), and (3) to transport and receive dynamite in interstate commerce with knowledge and intent that the dynamite would be used unlawfully to damage and destroy a building and other real and personal property, in violation of 18 U.S.C. § 844(d);

Count II—

Unlawful, willful and knowing transportation and receipt and attempt to transport and receive in interstate commerce dynamite on or about August 3, 1973, with the knowledge and intent that it would be used to damage [531]*531and destroy buildings and other real and personal property, in violation of 18 U.S.C. §§ 844(d) and 2.

Count III—

Unlawful, willful and knowing shipment and transportation of dynamite in interstate commerce on or about August 3, 1973, by a person having been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. §§ 842(i)(1), 844(a) and 2.

Count IV—

Unlawful, willful and knowing receipt, concealment, transportation and disposal of dynamite on or about August 3, 1973, with knowledge and reasonable cause to believe that the dynamite had been stolen, in violation of 18 U.S.C. §§ 842(h) and 2.

Count VI—

Conspiracy with one Gerald L. Dun-ham, from on or about August 1, 1973, up to and including September 15, 1973, to injure, oppress, threaten and intimidate Byron Nutbrown, III, a citizen of the United States, in the free exercise and enjoyment of a right and privilege secured to him by the Constitution of the United States, and because of his having exercised that right, to wit, the right to give information to the proper authorities concerning the violations alleged in Counts I — V which conspiracy resulted in the death of Byron Nutbrown, III, in violation of 18 U.S.C. § 241.

No motion for severance of the various counts having been made, Harvey’s trial on all counts of the indictment began on October 21, 1974.2 On October 28, 1974, the jury returned a verdict of guilty on all counts and further found that Byron Nutbrown’s death resulted from the Count VI conspiracy. The district court sentenced Harvey to imprisonment for a term of 5 years on Count I, terms of 10 years on each of Counts II, III and IV to run concurrently with each other but consecutively to the term imposed on Count I, and a life term on Count VI to run consecutively to the terms imposed on the other counts. Harvey’s major contention on this appeal is that the introduction into evidence of certain extrajudicial statements of Bryon Nutbrown, III, the deceased victim of the conspiracy charged in Count VI, was prejudicial error which necessitates the reversal of his conviction. He claims that the statements were inadmissible hearsay and that the statements were the only corroborative evidence of the testimony of the government’s chief witness, George Kiblin, an unindicted co-conspirator. He contends that without such corroboration, the jury might well have disbelieved the testimony of such a witness with respect to Harvey’s participation in the underlying conspiracy and dynamite crimes alleged in Counts I-IV of the indictment. Because we hold that the statements in question were not hearsay and because we find no merit in Harvey’s other contentions, we affirm.

I. The Facts

The facts upon which Harvey’s convictions are based were testified to primarily by George Kiblin. His testimony reveals that sometime prior to August 3, 1973, he and Harvey, who had been friends since 1971, discussed plans to burglarize a lumberyard in Newport, New Hampshire. At the time, Kiblin lived in Newport. Harvey resided in Barre, Vermont, about 100 miles from there. On August 2, 1973, Harvey telephoned Kiblin at his mother’s home in Newport, and they agreed to commit the [532]*532burglary on the following night. The target of the burglary was the lumberyard’s safe which allegedly contained more than $10,000. Kiblin described the safe to Harvey and explained that they would need extensive “firepower” to open it. Harvey confirmed that he would arrive the following night and would take care of the needed “firepower.” Later the same evening Harvey again telephoned Kiblin, reconfirmed that he would bring enough “firepower” and explained that he would also be bringing with him Gary Dunham, who resided in Williamstown, Vermont, a town adjacent to Barre.

At about 6:00 p.m. on the evening of August 3, 1973, Byron Nutbrown, a 15 year old high school student and long time friend of Harvey, was dropped off by his mother at Harvey’s house, ostensibly to go camping with Harvey.3 He brought with him a sleeping bag, a knife and a walkie-talkie, two-way radio. At 9:30 p.m. Harvey called Kiblin and notified him that he was “in town,” that everything was “all set,” and that Harvey was prepared to pick up Kiblin immediately. Shortly thereafter, Harvey, Dunham and Nutbrown arrived at Kiblin’s house in Harvey’s automobile. Kiblin was acquainted with both Dunham and Nutbrown and immediately informed Harvey that he was disturbed by Nutbrown’s presence. The group then drove around the area for a while, purchased gasoline, beer and other refreshments and further discussed the problem of Nutbrown’s presence. ■ Kiblin finally accepted the boy’s presence after Harvey declared that he would accept all responsibility for the boy and, further, warned Nutbrown in the others’ presence that if, in the event that they were caught, he talked to the authorities or signed any statement, Harvey would kill him. Nutbrown indicated that he would not talk to authorities.

The ill-fated break-in actually began at about midnight. Harvey gave the instructions.

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526 F.2d 529, 1975 U.S. App. LEXIS 11830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-harvey-ca2-1975.