489 F.2d 139 (5th Cir. 1974), 72-3794, United States v. Johnson

Docket Nº:72-3794.
Citation:489 F.2d 139
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles Oscar JOHNSON, Defendant-Appellant.
Case Date:February 07, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 139

489 F.2d 139 (5th Cir. 1974)

UNITED STATES of America, Plaintiff-Appellee,

v.

Charles Oscar JOHNSON, Defendant-Appellant.

No. 72-3794.

United States Court of Appeals, Fifth Circuit.

February 7, 1974

Page 140

J. W. Dinsmore, Birmingham, Ala., for defendant-appellant.

Ira DeMent, U.S. Atty., D. Broward Segrest, Wade B. Perry, Asst. U.S. Attys., Montgomery, Ala., for plaintiff-appellee.

Before BELL, GOLDBERG and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

We review here Charles Oscar Johnson's conviction under the Dyer Act, Title 18, U.S.C. Sec. 2313, for knowingly and willfully receiving, concealing, and disposing of a stolen motor vehicle which was moving in interstate commerce. We affirm.

I. The Facts

The appellant, Charles Oscar Johnson, was arrested on the night of March 23rd or 24th, 1972 (the record is unclear as to which of the two days) in Prattville, Alabama in possession of a 1972 Pontiac Grand Prix automobile, Vehicle Identification Number (VIN) 2K57T2A151947. Evidence indicated that the vehicle had been stolen March 16 from the parking lot at an apartment complex in Roswell, Georgia, where the owner of the car, Ms. Louise Raxter, resided.

The occasion for the arrest was the delivery of the car for sale by one Benny Hand, appellant's codefendant, to Kenneth Ray Hill, a deputy Sheriff of Autaga County, Alabama. Hill was posing as a used car dealer under the assumed name 'Kenneth Ray.' Through prior arrangements, Hand had agreed to supply 'Ray' with thirty to forty stolen, late-model, General Motors automobiles a month. 1 The Grand Prix Pontiac was

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the first and only automobile actually delivered by Hand to 'Ray' pursuant to this agreement.

The automobile to be delivered to 'Ray' was apparently in Birmingham at a time earlier than the scheduled delivery date. Hand, in search of someone to drive the car from Birmingham to Prattville, contacted the appellant. According to appellant's testimony, Hand offered him $25 to drive the car to Prattville. The appellant was to follow Hand, who would lead the way in his pickup truck. 2

On the night of March 23rd or 24th, appellant followed Hand, who led in his pickup truck, from Birmingham to a filling station near the end of an interstate highway in Autaga County. There, Hand made a phone call, presumably to 'Ray' and shortly thereafter, 'Ray' appeared and drove past the filling station and around the barrier at the end of the interstate to a stopping place on the unopened portion of the highway. Appellant testified that upon seeing 'Ray's' car pass by, Hand instructed him to get into the Pontiac and follow 'Ray', as he was the individual to whom the delivery was to be made. Appellant did as instructed with Hand now following in his pickup, as Johnson crossed into the unopened portion of the highway and stopped behind 'Ray's' already parked automobile.

At this point, 'Ray' and Hand entered Hand's pickup to consummate the deal. There is conflicting testimony as to whether appellant overheard conversation between 'Ray' and Hand indicating that the purchase price for the Pontiac was to be $2,200. 3 Once inside the pickup, 'Ray' disclosed his true identity and placed Hand under arrest. Appellant was arrested later the same day by Hill, then accompanied by a special agent of the F.B.I. Examination of the Pontiac disclosed that Alabama license plates had been substituted for the original Georgia plates. In addition, a false VIN (vehicle identification number) had been embossed on a piece of labelling tape and the tape then attached in such a fashion as to conceal the true VIN on the vehicle dashboard. There was testimony by the witnesses for the government that one end of the tape curled upward so as to be clearly visible from the driver's seat.

II. Sufficiency of the Evidence

Proof of violation of Title 18 U.S.C. Sec. 2313 requires two basic elements: (i) a stolen vehicle moving in or as part of interstate commerce and (ii) possession of the vehicle...

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