United States v. Johnson

• Decision Date: 07 February 1974
• Docket Number: No. 72-3794.,72-3794.
• Citation: 489 F.2d 139
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Oscar JOHNSON, Defendant-Appellant.

489 F.2d 139 (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.

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 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 by the person charged with knowledge that it is stolen and is hence wrongfully in his possession. Appellant seeks reversal of his conviction because of the insufficiency of the government's evidence to prove guilty knowledge on his part of the stolen nature of the Pontiac automobile, admittedly moving in interstate commerce, and admittedly in his possession.

We review the verdict of the jury below taking that view of the evidence most favorable to the government. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704. The appellant's conviction is due to be sustained if the jury was reasonably entitled on this basis to find guilt beyond a reasonable doubt. United States v. McGlamory, 5 Cir. 1971, 441 F.2d 130, 134; United States v. Warner, 5 Cir. 1971, 441 F.2d 821, 825, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58. There is a rebuttable presumption that one in possession of recently stolen property knows the property to have been stolen. Barnes v. United States, 1973, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380. This presumption may be overcome if the accused offers an explanation of his possession inconsistent with knowledge that the property is recently stolen,⁴Id., the reasonableness of such explanation being for the jury. Our consideration of the evidence is against this backdrop.

The undisputed fact of appellant's possession of the recently stolen vehicle is the most important single piece of evidence. This alone was all that was required to give rise to the presumption of guilty knowledge, and sufficiently supported denial of the motion for a directed judgment of acquittal. There are additional factors present which the jury was entitled to consider as probative of defendant's knowledge that the automobile in question was stolen.

First, the government argues that the upturned end on the labelling tape used to conceal the stolen automobile's true VIN was open and apparent to the appellant or anyone driving the Pontiac and supports the theory that appellant knew that the automobile was stolen. The appellee argues in the second place that the suspicious circumstances under which the automobile was delivered were inconsistent with a legitimate sale and delivery of an automobile, and should have alerted Johnson to the fact that he was dealing with a stolen car. The appellee points out that the vehicle was to be delivered in the nighttime behind the barrier at the end of an uncompleted interstate highway. Finally, the government urges that the jury was entitled to accept Hill's version that Johnson overheard the conversation between Hand and "Ray" which disclosed the unreasonably low purchase price to be paid by "Ray" for the car. It is argued that this evidence, individually and collectively, afforded the jury a sufficient basis for concluding that the appellant knew the automobile in his possession was stolen.

In his defense Johnson testified that it had been his understanding that Hand was a dealer in used cars; further that he did not know Hand well but that, through a mutual friend, Hand had obtained appellant's name as one who might be interested in driving an automobile to Autaga County for $25. Appellant testified that he accepted Hand's offer because he was temporarily out of work and needed money. He denied any knowledge that the automobile to be transported was a stolen vehicle.

We find that the jury was reasonably entitled to conclude from Johnson's possession and the other circumstances in evidence that he knew the car was stolen on the night that he drove it to Autaga County. The credibility of Johnson's version of the facts and the reasonableness vel non of his explanation of his possession of the stolen car were typical jury questions, put at rest by its verdict.

III. Failure to Declare a Mistrial

Appellant's second contention is that the trial judge should have ordered a mistrial when the prosecuting attorney began a question on cross-examination of the appellant as follows: "About two months prior to this the arrest for possession of the stolen vehicle were you arrested in Birmingham. . . .?" (Question interrupted by objection from appellant's counsel below).

At this point, appellant's counsel and the prosecuting attorney engaged in a side bar conference out of the hearing of the jury. When this discussion ended, the prosecuting attorney withdrew his proposed question and continued his cross-examination. The record does not indicate any motion for mistrial at this point or later, nor that the trial judge gave or was requested to give a cautionary instruction to the jury not to consider this incomplete question. Appellant argues that the content of this uncompleted question was so prejudicial as to constitute the failure to declare a mistrial "plain error", Rule 52(b), F.R. Crim.P.

We note that appellant's counsel failed to move for a mistrial when the incident occurred or later. If the prejudice flowing from it was as grave as he now asserts, he has apparently formed this conclusion after the event.⁵ Appellant's counsel did not specify for the record the grounds for his generalized objection to the prosecuting attorney's uncompleted question that the remarks would be prejudicial to the defendant. We...