U.S. v. Goble

• Citation: 512 F.2d 458
• Decision Date: 05 March 1975
• Docket Number: Nos. 73-1764-73-1767,s. 73-1764-73-1767
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William G. GOBLE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Terry Lee CARTER, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Raymond F. SHAD, Defendant-Appellee, v. Raymond F. SHAD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Walter K. BYRD, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 458

512 F.2d 458

UNITED STATES of America, Plaintiff-Appellee, v. William G. GOBLE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Terry Lee CARTER, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Raymond F. SHAD, Defendant-Appellee, v. Raymond F. SHAD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Walter K. BYRD, Defendant-Appellant.

Nos. 73-1764-73-1767.

United States Court of Appeals, Sixth Circuit.

March 5, 1975.

Raymond Lape, Jr., Newport, Ky. (Court appointed), Andrew B. Dennison, Cincinnati, Ohio (Court appointed), Albert C. Hawes and Edward S. Monohan, Covington, Ky. (both Court appointed), for defendants-appellants.

Eugene E. Siler, U. S. Atty., William Kirkland, Lexington, Ky., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and EDWARDS, Circuit Judge, and O'SULLIVAN, Senior Circuit Judge.

O'SULLIVAN, Senior Circuit Judge.

We consider the appeal of four defendants, William G. Goble, Walter K. Byrd, Terry Lee Carter, Jr., and Raymond F. Shad, from convictions for participation in an automobile theft operation. Jury trial was had in the United States District Court for the Eastern District of Kentucky before the Honorable Mac Swinford.

For reasons stated herein, we affirm.

I. BACKGROUND

A 44-count indictment filed on September 21, 1971, named 24 defendants, including appellants, as having participated in a wide-ranging automobile theft operation involving 50 or more stolen cars. All defendants were charged in Count 1 with having conspired to commit various crimes against the United States, in violation of 18 U.S.C. § 371, which provides:

" § 371. Conspiracy to commit offense or to defraud United States

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor;"

and some of them, including the appellants, were also charged with various substantive crimes in the remaining 43 counts. These counts alleged the transporting of stolen vehicles in interstate commerce, in violation of 18 U.S.C. § 2312:

" § 2312. Transportation of stolen vehicles

Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both;"

the receiving, concealing and disposing of such vehicles, in violation of 18 U.S.C. § 2313:

" § 2313. Sale or receipt of stolen vehicles

Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both;"

the transporting in interstate commerce of false, forged, altered or stolen securities, in violation of 18 U.S.C. § 2314:

" § 2314. Transportation of stolen goods, securities, moneys, fraudulent State tax stamps, or articles used in counterfeiting.

Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; or

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transports or causes to be transported, or induces any person to travel in, or to be transported in interstate commerce in the execution or concealment of a scheme or artifice to defraud that person of money or property having a value of $5,000 or more; or

Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities or tax stamps, knowing the same to have been falsely made, forged, altered, or counterfeited; or ...

Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce, any tool, implement, or thing used or fitted to be used in falsely making, forging, altering, or counterfeiting any security or tax stamps, or any part thereof-

Shall be fined not more than $10,000 or imprisoned not more than ten years or both ...;"

and the aiding and abetting of such acts, in violation of 18 U.S.C. § 2. Twenty-seven stolen cars were identified in the indictment.

While the facts of the case are important to resolution of appellants' claims, a complete recitation of the contents of the 13 volumes of trial transcript, amounting to 2,000 pages, would serve no useful purpose. ¹ We do, however, set out the following background. The indictment alleged that commencing in January of 1969, and continuing until September of 1971, a large auto theft ring operated in several states, including West Virginia, Illinois, Pennsylvania, Ohio, Indiana and Kentucky. The coordinator of the operation was one William Miller, (an unindicted co-conspirator) who, together with other defendants, stole cars from car lots and other locations, including rental agencies. When stealing from car lots their usual procedure was to obtain serial numbers for door and ignition keys, and to have duplicates made for vehicles that they planned to steal. Instruments such as bolt cutters were occasionally used to break through lot barriers, and drivers of the stolen cars were furnished with identification papers, license plates and other such material when necessary. Vehicles stolen from rental agencies were procured by using false identification papers.

After the cars were stolen, they were received by other defendants who either altered the vehicle identification numbers or sold them to still other defendants who performed the alterations. Such alterations were accomplished primarily by two methods: (1) the first involved removal of the stolen vehicle's identification plate and replacement with an identification plate taken from a wrecked vehicle of similar model and year; and (b) the second method involved use of stolen blank registration and title forms on which the vehicle's true identification number and description were entered, after which the falsified documents were used to obtain title and license plates.

Ultimately, the cars which were the subjects of this vast elaborate enterprise were either disposed of by sale to innocent purchasers or were retained for use by the defendants personally.

Of the 24 defendants named in the indictment, only eight were fully tried; the remaining defendants apparently entered guilty pleas prior to or during the trial. Of the eight tried, two were found not guilty on all counts; six were convicted of substantive offenses; and five were found guilty on the conspiracy count. Only the above-named four appellants have sought review of their convictions. Their numerous assignments of error will be discussed below. Each appellant was represented by his own retained counsel at trial and each now appeals, in forma pauperis, by his respective trial attorney.

All four appellants raise issues related to conspiracy and severance, and these issues are treated in Sections II and III, infra ; Sections IV, V, VI, and VII deal with the various separate claims of error raised by Goble, Byrd, Carter and Shad respectively.

II. CONSPIRACY

As to the conspiracy count of the indictment (Count 1) appellants rely upon what has become a popular style of charging error, and assert that while the Government may have offered evidence to prove the existence of numerous, disconnected conspiracies, it failed to show that the indicted defendants were members of a single-or general-conspiracy. It is said that because Count 1 charged appellants with membership in a single conspiracy in violation of 18 U.S.C. § 371, the District Court erred in denying their various motions for judgment of acquittal on that count.

While the testimony of the more than 70 Government witnesses described the car theft activities, most witnesses could relate only isolated acts of the defendants. Only one witness, William Miller, was able to describe the actual scope of the ring's activities and identify the respective appellants as participants. Although Miller (who was the kingpin of the operation) was named as a co-conspirator, he was not a defendant in the case; but at the time of trial, he was serving a three-year prison term on other charges arising from his conduct in the total enterprise.

While the trial was in progress, all of the appellants were seated in the courtroom, and as a preliminary question on direct examination Miller was asked: "First of all, as you look around the courtroom ... do you see anyone that you have known in the car stealing business?" His answer was: "Well, I know all of the defendants, yes" and he added that, "... the activities involving each person varied at times. We did many things together. Sometimes we stole cars, sometimes we sold cars, sometimes we retitled." He was then asked to point out any of his co-conspirators who were present, and in response he named, with others, the four appellants, William G. Goble, Walter K. Byrd, Terry Lee Carter, Jr., and Raymond Shad. He told of the use of fraudulent title papers and when he was asked which of the defendants seated in the courtroom joined in such activity, he answered: "All of the defendants." When asked: "Who else helped you transport interstate stolen cars knowing that those cars were stolen?", Miller first responded by his own question: "Of ...