420 F.2d 889 (9th Cir. 1969), 23835, United States v. De Georgia

Docket Nº:23835.
Citation:420 F.2d 889
Party Name:UNITED STATES of America, Appellee, v. Richard Allen DE GEORGIA, Appellant.
Case Date:December 11, 1969
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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420 F.2d 889 (9th Cir. 1969)

UNITED STATES of America, Appellee,


Richard Allen DE GEORGIA, Appellant.

No. 23835.

United States Court of Appeals, Ninth Circuit.

December 11, 1969

Page 890

Philip Fahringer (argued), Tucson, Ariz., for appellant.

JoAnn Diamos (argued), Rubin Salter, Jr., Asst. U.S. Attys., Edward E. Davis, U.S. Atty., Tucson, Ariz., for appellee.

Before HAMLEY, BROWNING and ELY, Circuit Judges.

HAMLEY, Circuit Judge.

Richard Allen De Georgia appeals from a judgment of conviction, entered on a jury verdict, for violating 18 U.S.C. § 2312 (Dyer Act). The offense involved a 1968 Mustang automobile allegedly stolen from the Hertz Corporation, in New York City, and thereafter driven to Tucson, Arizona. The car was recovered from De Georgia on September 9, 1968.

Defendant first contends that his written confession, which was received in evidence, should have been excluded because prior to making that confession he was not properly advised of his rights under Miranda v. Arizona,384 U.S. 436, 474, 86 S.Ct. 1602, 16 L.Ed.2d 694.

The facts pertaining to the warning given defendant before he confessed and the voluntariness or involuntariness of his confession were developed at a hearing held in the absence of the jury. Upon the basis of the evidence so received, the trial court found that defendant had been fully advised as to his rights and that the confession was given voluntarily.

Our examination of the record convinces us that defendant was given the full benefit of Miranda, and that the trial court's finding that the confession was given voluntarily is adequately supported by the evidence.

Defendant also argues that the evidence is insufficient to establish the essential element that the Mustang was a stolen vehicle at the time it was transported across state lines. 1 Accordingly, he in effect urges, the trial court erred in denying his motion for judgment of acquittal made at the close of the Government's case and renewed at the close of all the evidence.

Defendant confessed in writing that he stole the automobile from the vicinity of John F. Kennedy Airport, New York, on or about July 2, 1968. 2 However a confession does not constitute adequate proof of an element of an offense unless, as to that element, the confession is corroborated by other admissible evidence. 3 While the Government did produce other evidence designed to corroborate the confession with regard to the element in question, defendant contends that this other evidence was inadmissible

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hearsay and his trial objection thereto should have been sustained.

The evidence offered by the Government in corroboration of defendant's confession that the Mustang was a stolen vehicle consisted of the testimony of Tony Gratta, the Hertz security manager for the company's New York zone. Gratta produced documentary evidence establishing that the Mustang was owned by Hertz, that it was rented to Edward P. Sweeney from John F. Kennedy Airport on June 28, 1968, and that Sweeney returned it to a Hertz station at the airport on June 30, 1968.

Gratta testified, in effect, that the vehicle was not rented or leased by Hertz after that date and therefore was a stolen vehicle when it was taken from the Hertz lot at the airport sometime after June 30, 1968. Gratta based his testimony that the Mustang had not been rented or leased by Hertz after June 30, 1968, upon information he obtained from the Hertz master computer control in Gratta's New York office.

According to Gratta, Hertz does not keep a running written business record of its rental and lease transactions but maintains this information in a computer system. Information concerning all automobile rental and lease agreements is fed into computer consoles located at each Hertz terminal and may be retrieved at the master computer control in Gratta's New York office. He explained that, under this system, one can check the master control to determine when and where a particular vehicle was last rented and when it was returned. 4

On July 26, 1968, Gratta received information from the Hertz office in Lincoln, Nebraska, that led him to believe that the Mustang might have been stolen. He thereupon checked the master computer control in his office and ascertained that the automobile in question had been returned to the Hertz office at the New York airport on June 30, 1968, and that there was no subsequent rental or lease activity recorded. Gratta testified that this indicated that the vehicle had been stolen.

Counsel for defendant objected to the admission of this evidence upon the ground that it was hearsay. As amplified in his motions for judgment of acquittal and in his briefs on appeal, counsel believes that the evidence was hearsay because it amounted to an assertion by those who placed rental and lease information into the Hertz computer system (and who were not called as witnesses) that no such transaction involving the Mustang occurred after June 30, 1968. 5

This view finds support in the writings of Professor Wigmore. He has expressed the view that the absence of an entry concerning a particular transaction in a regularly-maintained business record of such transactions, is equivalent to an assertion by the person maintaining the record that no such transaction occurred. 5 Wigmore, Evidence (3dEd.) §§ 1531, 1556, pages 392, 410.

But, assuming that the evidence was hearsay, this does not conclude the matter. There are many exceptions to the hearsay rule, one of which is the business records exception which, in the federal courts, is legislatively declared in the Business Records Act, 28 U.S.C. § 1732. See Phillips v. United States, 356 F.2d 297, 307 (9th Cir.1965). Professor

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Wigmore believes that negative testimony of the kind described above, based upon what regularly-maintained business records do not show, is admissible hearsay as a corollary to the exception that records made in the regular course of business are admissible. Wigmore, ibid.

A contrary view was stated in Shreve v. United States, 77 F.2d 2, 7 (9th Cir. 1935), as one of several alternative reasons for reversing a district court judgment. We there acknowledged that the decisions were not entirely in accord on the point, but cited decisions from five states in support of the rule against the admission of such negative testimony. No federal decisions were cited. As to one of these states, Vermont, Shreve was in error in implying that the then prevailing rule was against admissibility, and in another, California, the rule was later changed in...

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