U.S. v. Mayes
| Citation | 512 F.2d 637 |
| Decision Date | 25 February 1975 |
| Docket Number | Nos. 73-1988-1992,s. 73-1988-1992 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Billy MAYES, et al., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. L. C. COOK, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ernest Frank FOWLER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Chester CRAWLEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Donald NEWBERRY, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
E. R. Gregory, Bowling Green, Ky., Philip Huddleston, Huddleston Brothers, Bowling Green, Ky., Don H. Major, Louisville, Ky., William C. Wilson, Nashville, Tenn., Jerry F. Safford, Bowling Green, Ky. (Court-appointed), Bob Scott, Sarver, Scott & Nussbaum, Little Rock, Ark., for defendants-appellants.
George J. Long, U. S. Atty., James H. Barr, C. Fred Partin, Richard A. Dennis, Louisville, Ky., for plaintiff-appellee.
Before PHILLIPS, Chief Judge, and LIVELY and ENGEL, Circuit Judges.
In this case, nineteen defendants appeal from judgments entered upon a jury verdict, in which they were found guilty of violating the federal criminal conspiracy statute, 18 U.S.C. § 371. 1 Their appeals raise a number of issues, including whether the government proved a single conspiracy, the sufficiency of the evidence as to certain defendants, the propriety of the judge's jury instructions, peremptory challenge of jurors, severance, double jeopardy, and right of confrontation.
On August 15, 1972, a grand jury empanelled in the United States District Court for the Western District of Kentucky, returned an indictment, count one of which charged 28 persons with conspiracy to violate the Dyer Act (18 U.S.C. §§ 2312, 2313 2). The indictment charged that the named defendants and thirteen others (named but unindicted) conspired to transport, receive, conceal, store, barter, sell and dispose of stolen motor vehicles, moving in interstate commerce. The multi-state stolen car operation was alleged to have been based in Kentucky, and to have involved activities in a total of at least ten states including Tennessee, Indiana, Ohio, Alabama, North Carolina, Arkansas, Georgia, Missouri, and Mississippi. The thirty-seven page indictment generally outlined the elements of the alleged illegal arrangement, and included in its original form a list of seventy-one overt acts allegedly On April 2, 1973, twenty-four of the named defendants came on for trial to a jury. One of the defendants, William Belvy Barbee, pled guilty during the trial, and another, Charlotte Mayes, was acquitted by direction of the trial judge at the conclusion of the government's proofs. On May 23, 1973, after eight weeks of trial, and consideration of the testimony of several hundred witnesses, the jury returned a verdict acquitting defendants Billy D. Miller, Charles Adams and Ronald Kinser, and finding the remaining ninteen defendants guilty as charged. They appeal.
taken in furtherance of the conspiracy.
In our review of a case involving so many individuals claimed to have participated in so many incidents covering a broad geographical area, it has been particularly necessary to examine the trial as a whole for any errors which might affect the fairness of the entire proceedings. Similarly, it has been necessary to examine closely the specific evidence which is claimed to support the conviction of each individual defendant. Thus, our review has included a complete examination of more than 9,000 pages of transcript, keeping in mind the admonition of Justice Rutledge in Kotteakos v. United States, 328 U.S. 750, 772, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946):
The government alleged that the named defendants were all a part of a conspiracy wherein certain co-conspirators would either steal or cause to be stolen automobiles in the ten-state area. 3 In certain instances wrecked automobiles or parts thereof were purchased, the registration papers and other indicia of vehicle identification so obtained being then transferred to the similar stolen autos. The original identification of the stolen autos would then be destroyed or altered so as to provide a completely new and apparently legitimate identity to the stolen vehicles. In addition to such alteration and substitution, the conspiracy involved a complicated scheme to obtain false motor vehicle registration certificates and bills of sale.
The success of the conspiracy was largely due to the participants' ability to sell stolen cars which appeared, on all but the closest examination, to have been legitimately acquired and registered. Thus, the papers of a wrecked automobile as well as the forged papers purportedly issued elsewhere were presented to a county clerk to obtain new and seemingly valid papers matching the numbers and description of the stolen vehicle. This was made possible by the decentralized nature of the Kentucky registration system, whereby registrations were issued out of each of some 35 different county clerks' offices. By constantly moving from county seat to county seat and appearing at rush hours, the possibility of detection was minimized. Further laundering was accomplished by having the newly created vehicle subjected to a vehicle safety inspection usually at the automobile agency of acquitted defendant Billy D. Miller, thus providing additional evidence of legitimate identification.
Evidence at the trial indicated that as many as 1800 stolen automobiles may have been involved during the period of Evidence as to each overt act generally included the testimony of the original owner, testimony regarding the particulars of the theft, followed by testimony by the ultimate and usually innocent purchaser of the stolen and altered vehicle. The chain of evidence of ownership was carefully presented through presentation of the certificates filed with the county clerks, and was then shown to be authentic or forged. Evidence was introduced, as to forged vehicles, showing that the serial number assigned was issued to the owner of a completely different automobile.
the claimed conspiracy. Most proof at trial was confined to evidence of the overt acts included in the indictment, originally seventy-one, but later reduced to sixty-five.
In this manner, the government took the jury step-by-step through the maze of facts which were to prove the overt acts and the existence of a conspiracy.
While all nineteen appellants were tried together, four separate appeals were docketed, reflecting appellants' representation by four separate counsel or groups of counsel. To avoid repetition, while assuring careful attention to the claims of each individual, we have reorganized the issues and will treat, first, those of a general nature which could, if meritorious, affect the right of all defendants. We shall then proceed to those issues which are claimed to affect particular defendants.
It is claimed that the government failed to prove the existence of a single conspiracy of which all of the defendants were a part, but in fact proved two or more conspiracies, in consequence denying the defendants' right "not to be tried en masse for the conglomeration of distinct and separate offenses committed by others". Kotteakos v. United States, supra, 328 U.S. at p. 775, 66 S.Ct. at p. 1253.
While we treat later in this opinion the question of the sufficiency of the evidence to connect each defendant with the conspiracy alleged, we conclude that the existence of a single conspiracy was in fact proved.
The government established the formation of a central organization, master-minded by such individuals as Billy Mayes, Shirley Basham and William Albert Hudson. It further proved that these leaders secured the services of car thieves, such as co-conspirator James Cecil Wilson, defendant William Henry Wilson, co-conspirator Claude Dillon and others. The interstate transportation of the cars, the forging and alteration of identification, and the fencing of the cars were proved. These activities were shown to involve both the unindicted co-conspirators and the defendants.
While the government did not prove that each defendant knew or was involved with all of the activities of all other defendants, this is not an essential element of proving a single conspiracy. United States v. Levinson, 405 F.2d 971 (6th Cir. 1968). Indeed in any large organization, legal or illegal, it is common for willing participants not to be acquainted with all the members of the organization, or even to know the nature of every aspect of the operation. Nor does the fact that the conspiracy continued over a long period of time and contemplated the commission of many illegal acts transform the single conspiracy into several conspiracies. Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942); United States v. Goble, et al., 512 F.2d 458 (). A conspiracy is completed when the intended purpose of the conspiracy is accomplished. But where a conspiracy contemplates a continuity of purpose and continued performance of acts, it is presumed to exist until there has been an affirmative showing that it has terminated; and its members continue to be conspirators until Ap...
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