Rodgers v. United States

• Citation: 402 F.2d 830
• Decision Date: 28 October 1968
• Docket Number: No. 21543.,21543.
• Parties: William Joseph RODGERS, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

402 F.2d 830 (1968)

William Joseph RODGERS, Appellant, v. UNITED STATES of America, Appellee.

No. 21543.

United States Court of Appeals Ninth Circuit.

October 28, 1968.

Byron M. Meredith (argued), Reno, Nev., for appellant.

Robert S. Linnell (argued), Asst. U. S. Atty., Joseph L. Ward, U. S. Atty., Las Vegas, Nev., for appellee.

Before JOHNSEN^*, BARNES and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge.

Rodgers appeals from a judgment of conviction, upon the verdict of a jury, of a violation of the Dyer Act, 18 U.S.C. § 2313, interstate transportation of a stolen motor vehicle, knowing the same to have been stolen. We reverse.

1. The proceedings before a Commissioner in Colorado.

Rodgers was arrested in Colorado where he was brought before a United States Commissioner. The record shows full compliance with the requirements of Rule 40(b), F.R.Crim.P. Rodgers waived hearing and the appointment of counsel. A warrant of removal issued in due course. It is now urged that the Colorado Commissioner should have gone farther and made sure that Rodgers fully understood what he was doing. We do not decide this question. For all that appears in the record, the Commissioner did what Rodgers says that he should have done. The record does not support the contention. No decided case that we know of supports it either.

2. The voir dire examination of the jury.

Nothing in the record supports the assertions now made that counsel had no basis on which to exercise peremptory challenges because counsel was not permitted to examine each juror individually. Pursuant to Rule 24(a), F.R.Crim.P., the trial judge conducted the voir dire examination of the jury. When he finished, he asked if Rodgers' counsel had any questions that he wanted the judge to ask "as to the jurors' qualifications." The answer was "no." Counsel did not ask leave to put any question to any juror himself and did not object to any of the judge's questions or to the procedure. We have previously refused to hold that the procedure authorized by Rule 24(a) is unconstitutional because it permits the judge to conduct the voir dire examination. Hamer v. United States, 9 Cir., 1958, 259 F.2d 274; Fredrick v. United States, 9 Cir., 1947, 163 F.2d 536.

3. Sufficiency of the evidence.

It is claimed that the evidence is not sufficient to support the verdict. No motion for judgment of acquittal under Rule 29, F.R.Crim.P., or for a new trial under Rule 33 was made. We could treat the claim as waived, but need not do so. Beckett v. United States, 9 Cir., 1967, 379 F.2d 863; Robbins v. United States, 9 Cir., 1965, 345 F.2d 930, 932.

The trial was brief. Hilary E. Bishop of Bethany, Oklahoma, testified that early in May, 1966, he owned a Chevrolet '66 Caprice automobile. He went away on a business trip and left it with his wife Clara. He gave no one but his wife permission to use it. He bought the car, new, in December, 1965, from a Yukon, Oklahoma, Chevrolet dealer. He identified certified and exemplified copies of an application for a certificate of title to the car (exhibit 2) and of the face of a certificate of title (exhibit 1). These were received in evidence without objection. Clara Bishop testified that while Hilary was away the car was put by her in a garage on a Saturday, and that she discovered two or three days later that it was gone. No one had her permission to use it.

Roy S. Vezeris testified that he was sales manager of Gaudin Motor Company in Las Vegas. On May 11, Rodgers sold the Chevrolet car to him.

"A. So I went out and looked at the car. He had a valid Oklahoma title. I checked the motor number of the title against the automobile. He went into our office.

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Q. What was the result of your comparison of the serial number?

A. The title had the proper motor number that the automobile had."

The prosecutor then had him identify the "title" (exhibit 3) and state that the identification number on it was the same as that of the car. This title was offered in evidence by the prosecutor and received without objection. The government rested. Rodgers did not take the stand or offer any evidence.

In his opening argument, the prosecutor made the following statements:

"Now, although it is not necessary for the Government to prove who actually stole the car, I believe His Honor will tell you that if you find as a fact, No. 1, that the motor vehicle described was stolen in one state and recently thereafter was possessed by the defendant, actually possessed in a second state, then you may draw the inference and find as reasonable men and women that the defendant transported it from the first state to the second state knowing that it was stolen.

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"The important thing is that I want to get across to you, to give your utmost attention to His Honor when he is telling you what the law is, because the Government is depending on this inference, and if you don\'t understand it when the Judge tells it to you, you probably never will, because, as a rule, you don\'t get a second chance to have it given to you.

"Again, if you find that the car was stolen in one state, recently thereafter was possessed in the second state, then you may draw the inference and find as a fact, as reasonable people, that the defendant not only transported it from the first state to the second state, but that he knew that it was stolen." Emphasis added.

In its instructions, the court emphasized and re-emphasized the inferences arising from unexplained possession:

"Possession of property recently stolen, if not satisfactorily explained, is ordinarily a circumstance from which the jury may reasonably draw the inference and find, in the light of surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen.

"And possession in one State of property recently stolen in another State, if not satisfactorily explained, is ordinarily a circumstance from which the jury may reasonably draw the inference and find, in the light of surrounding circumstances shown by the evidence in the case, that the person in possession not only knew it to be stolen property, but also transported it, or caused it to be transported, in interstate commerce.

* * *

"If you should find beyond a reasonable doubt from the evidence in the case that the motor vehicle described in the indictment was stolen, and was transported in interstate commerce as charged, and that, while recently stolen, the property was in the possession of the accused in another State than that in which it was stolen, the jury would ordinarily be justified in drawing from those facts the inference that the motor vehicle was transported, or caused to be transported, in interstate commerce by the accused, with knowledge that it was stolen, unless possession of the recently-stolen property by the accused in such other State is explained to the satisfaction of the jury by other facts and circumstances in evidence in the case.

"In considering whether possession of recently-stolen property has been satisfactorily explained, the jury will bear in mind that, in the exercise of Constitutional rights, the accused need not take the witness stand and testify. Possession may be satisfactorily explained through other circumstances, other evidence, independent of any testimony of the accused.

"It is the exclusive province

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