Babb v. United States

• Citation: 351 F.2d 863
• Decision Date: 27 October 1965
• Docket Number: No. 17839.,17839.
• Parties: James Carlock BABB, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

351 F.2d 863 (1965)

James Carlock BABB, Appellant, v. UNITED STATES of America, Appellee.

No. 17839.

United States Court of Appeals Eighth Circuit.

October 27, 1965.

Kenneth Coffelt, Little Rock, Ark., for appellant.

James W. Gallman, Asst. U. S. Atty., Little Rock, Ark., Robert D. Smith, Jr., U. S. Atty., Little Rock, Ark., for appellee.

Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.

MEHAFFY, Circuit Judge.

Defendant, James Carlock Babb, was tried to a jury, convicted and sentenced to a term of five years' imprisonment under a single count indictment charging him with receiving and concealing a stolen 1962 model Oldsmobile, which was moving in interstate commerce, knowing that said vehicle had been stolen.¹

For reversal of his conviction, defendant argues in this appeal that (1) there is insufficient evidence to support the verdict; (2) the District Court's rulings on the admissibility of certain evidence were erroneous; and (3) the United States Attorney made prejudicial remarks which deprived him of a fair trial.

We have scrutinized these contentions and for the reasons hereinafter stated affirm the conviction.

Sufficiency of Evidence. The Oldsmobile was stolen without license plates from a dealer's lot in Kansas City, Missouri on the weekend of May 12, 1963 — either late Saturday night or on Sunday — and was recovered from the possession of defendant at Alexander, Arkansas, a suburb of Little Rock, on June 15, 1963.

When apprehended by federal agents, Babb gave the name of Ted Barker and said he had obtained the car from Roger Bennett in Alabama.² Babb produced an Alabama registration certificate indicating that a John Baird owned the car. Also, a bill of sale, purportedly notarized by Carl Brown of Vernon, Alabama, reflected that Baird had purchased the car from a Vernon dealer. The public vehicle identification number had been altered and a search of the Oldsmobile revealed a case of current license plates from Alabama, California, Washington, Oregon and Montana. Miscellaneous items found in the trunk included telephone directories of various cities, magnetic license plate holders, the Carl Brown notary seal, and blank bills of sale identical in form with that offered by defendant.

Roger Bennett was an associate of the defendant and had traveled with him from Washington State to California and thence to Kansas City, Missouri, arriving in late March or early April, 1963. The two separated in Kansas City and met again in Little Rock some time after the middle of May, 1963. They had other associates in Little Rock and stayed in various motels until Bennett finally rented an apartment. Neither was visibly gainfully employed.

About May 27, 1963, defendant and Bennett went to Alabama and procured license plates for several cars, including the Oldsmobile. They used the Carl Brown notary seal on the documents and purchased the license plates in various names picked at random from the collection of telephone directories. It is unclear whether or not defendant and Bennett drove the Oldsmobile to Alabama.

The testimony varied as to when the Oldsmobile was first seen in Little Rock, but it was prior to the Alabama trip. The date was most reasonably narrowed to May 26 or 27. Although "associates" were seen to drive the Oldsmobile during the first week of June, Babb came into sole possession on June 14, the day before his apprehension. On that day, June 14, the car bore California license plates which at defendant's request were removed by a friend's son. Alabama license plates were then affixed to the car. The date of departure is unknown but Babb planned a "business trip" to California with a witness' wife who wanted to visit her California relatives.

The defendant did not take the witness stand at the trial nor offer any evidence in his behalf.

Defendant's only challenge to the sufficiency of the evidence is that the Government failed to prove that the car was in interstate commerce at the time it was received and concealed.³ This, however, is a factual question for the jury's determination and we must affirm if the verdict is based on substantial evidence. Pilgrim v. United States, 266 F.2d 486, 488 (5th Cir. 1959).

There were no facts or inferences to be drawn that the interstate movement of the stolen car had ceased, but the contrary clearly appears. The recent trip to Alabama to procure license plates, the switching of license plates immediately after coming into possession, the numerous license plates and paraphernalia found in the car, and the intended trip to California, are, we think, sufficient to support the jury's conclusion that the car was still a part of interstate commerce when Babb took possession.

It is uniformly held "that the interstate movement of a car does not necessarily cease when the car stops and transportation of it into the other state ends" and that "it is a question of fact under the surrounding circumstances in each particular case." Schwachter v. United States, 237 F.2d 640, 644 (6th Cir. 1956). See also United States v. Cioffi, 253 F.2d 494 (2nd Cir. 1958); Williams v. United States, 244 F.2d 303 (4th Cir. 1957); Parsons v. United States, 188 F.2d 878 (5th Cir. 1951); and Seefeldt v. United States, 183 F.2d 713 (10th Cir. 1950).

On this point, defendant relies solely upon our opinion in Davidson v. United States, 61 F.2d 250 (8th Cir. 1932). There a three-count indictment charged (1) a conspiracy in violation of 18 U.S. C.A. § 408;⁴ (2) the transportation in interstate commerce of a stolen vehicle; and (3) that the defendants did "willfully, unlawfully, knowingly and feloniously receive, conceal and store one vehicle * * * which had been stolen * * * and transported in interstate commerce * * *." A conviction under the first and third counts was reversed as to Davidson and one other because of insufficient evidence that they were connected with a conspiracy as charged in the first count. The court conceded that they were coconspirators but pointed out that "there was no evidence nor any circumstance whatsoever which even remotely indicated that these two defendants had any knowledge that this was an interstate car * * *." Id. at 253. Additionally, the third count was fatally defective in failing to charge that the automobile "was moving as or was a part of, or that it constituted, interstate or foreign commerce." Id. at 255. All the testimony and evidence indicated that Davidson was only connected with the "fencing" of the stolen automobiles, that the "fencing" was limited solely to one state, and that Davidson was completely unacquainted with his "coconspirators." Also, he was oblivious as to whether the cars furnished him were of an intrastate or interstate character.

We think a recital of the facts in the case at bar not only distinguishes it from Davidson but is sufficient to show substantial evidence to support the jury verdict.

We must take that view of the evidence that tends to support the prevailing party, and must accept as established all reasonable inferences to be derived from such testimony. Jaben v. United States, 349 F.2d 913 (8th Cir. 1965).

Evidentiary Ruling. During cross-examination of FBI Agent Gehring, defense counsel established that defendant was questioned some three and one-half hours prior to his incarceration. This detention consisted of intermittent queries relative to the various items found in the stolen car. There is no suggestion that defendant was mistreated in any fashion. He was permitted to call his attorney and the interrogation was not immoderate or excessive — neither was it continuous. Such interrogation was proper and amounted to a routine police investigation necessary to determine the facts of the crime for which defendant was arrested and the particeps criminis, if any. See Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1963).

Defendant's counsel laid great stress on this detention and sought to imply that its purpose was to wring a confession from defendant.⁵ Thereafter on redirect examination the government attorney attempted to show that the interrogation was not directed solely to the stolen Oldsmobile or to the defendant, who now assigns as error that the redirect examination was an insinuation of defendant's guilt of other crimes, and, therefore, improper and prejudicial.⁶

We do not agree and there are three reasons for our conclusion. In the first place, the redirect examination was not calculated to and neither did it infer that the defendant was guilty of other crimes. Exploration by the government attorney was to refute the possible inference that defendant had been subjected to intensive badgering calculated to elicit his confession. Secondly, the court sustained defendant's objection and immediately gave a cautionary instruction admonishing the jury not to consider the possible inference that defendant was involved in other crimes. And thirdly, the time consumed during the period of investigation was developed by defendant and having once opened the subject of the time lapse between arrest and incarceration, it was proper for the government attorney to counter under the doctrine of "verbal completeness." Cf. Newman v. United States, 331 F.2d 968, 970-971 (8th Cir. 1964), cert. denied, 379 U.S. 975, 85 S.Ct. 672, 13 L.Ed. 2d 566 (1965); Smith v. United States, 224 F.2d 58, 60-61 (5th Cir. 1955), cert. denied, 350 U.S. 885, 76 S.Ct. 138, 100 L.Ed. 780 (1955). Any relevant and competent evidence of guilt is not rendered inadmissible because it also tends to show the accused committed other offenses. Downey v. United States, 263 F.2d 552 (10th Cir. 1959); Mehan v. United States, 112 F.2d 561 (8th Cir. 1940). Proof of other crimes similar in nature is admissible to show motive and intent. Dranow v. United States, 307 F. 2d 545, 566 (8th Cir. 1962); Rizzo v. United States, 304 F.2d 810 (8th Cir. 1962), cert. denied, 371 U.S. 890, 83 S.Ct. 188, 9 L.Ed.2d 123 (1962).

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