542 F.2d 285 (5th Cir. 1976), 76-1498, United States v. Leslie

Docket Nº:76-1498.
Citation:542 F.2d 285
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert Wade LESLIE, Defendant-Appellant.
Case Date:November 12, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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542 F.2d 285 (5th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert Wade LESLIE, Defendant-Appellant.

No. 76-1498.

United States Court of Appeals, Fifth Circuit

November 12, 1976

Page 286

William Northington Clark (Court-appointed), Birmingham, Ala., for defendant-appellant.

Wayman G. Sherrer, U. S. Atty., George C. Batcheler, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before RIVES, GEWIN and MORGAN, Circuit Judges.

GEWIN, Circuit Judge:

Appellant was convicted of transporting a stolen 1972 Chevrolet Vega from Indianapolis, Indiana, to Huntsville, Alabama, and of feloniously selling and disposing of it there. 1 He was represented by court-appointed counsel and was tried by a jury. The district court sentenced him to two years' imprisonment. Appellant urges numerous grounds for reversal, but primarily emphasizes insufficiency of the evidence and the government's examination of three witnesses called by the court. After detailed consideration of the facts in the record, we affirm.

On June 6 or 7, 1974, Michael G. Noblitt, a special agent of the Federal Bureau of

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Investigation ("FBI"), received information from a confidential source that a stolen 1972 Vega would be delivered to Pogue's Body Shop in Huntsville at about 9:00 a. m. on June 8, 1974. Noblitt and two other agents began surveillance of Pogue's shop at approximately 8:00 a. m. on June 8, and 15 minutes later four men in a Buick Riviera arrived at the shop. They left shortly thereafter with an Alabama license tag for use on the Vega. About five minutes later the men, including the appellant, returned in the Buick and talked with Pogue. Again they left, but they returned 15 minutes later with both the Buick and the Vega. They left the Vega at the shop, driving away in the Buick. Noblitt then checked the vehicle identification number on the Vega and reported it to the National Crime Information Center. Shortly thereafter he received a response that a car with that number had been reported stolen on June 3 to the sheriff's office in Marion County, Indiana. Ten minutes later the four men returned in the Buick and talked with Pogue. Pogue left the lot in the Vega, and the agents arrested the four men.

Soon after their arrests the four men, identified as Robert Wade Leslie, Cornelius Gayle, 2 Charles Lynch, and Donnie Rogers, gave statements to the FBI. All four were convicted on guilty pleas in September, 1974, but the subsequent vacation of appellant's conviction resulted in the proceedings below and this appeal. The statements of Gayle, Lynch, and Rogers to the FBI indicated that the four men left Indianapolis in the Vega and Buick around midnight prior to the day of their arrests, that they changed drivers in Nashville, and that they met for breakfast at the Elks Club in Huntsville before the conversations and delivery of the Vega observed by the agents. The statements did not directly implicate Leslie as having knowledge that the Vega was stolen. However, they tended to support the inference that Leslie promoted the trip and that he was the "ringleader." Rogers said that Leslie had invited him to travel to Huntsville for the weekend, and all three told the FBI that Leslie was the only one of the four who rode the entire way to Huntsville in the Vega. Gayle told the agents that he thought the Vega belonged to Leslie, and all three thought that the Buick belonged to Leslie's girlfriend.

The government based its case primarily on the testimony of Eddie Pogue and agent Noblitt. Pogue testified that he knew Leslie as "Dave" from prior dealings and that Dave had arranged by telephone on June 7, 1974, the day before the arrests, to sell a 1972 Vega to Pogue for $400, to be delivered on June 8. Noblitt testified regarding the call he had received, the FBI surveillance, and his observations at the time the Vega was delivered.

Upon the government's request, the court called Gayle, Lynch, and Rogers to testify as court witnesses. Gayle testified that he stole the Vega and, using the name Dave, made arrangements with Pogue for its disposition. He stated that only Rogers knew the car was stolen. Lynch and Rogers testified that Gayle had invited each of them to travel with him to Huntsville and that they had no knowledge of Leslie's involvement in the car theft. Finally, all three testified that Leslie rode in the Buick, not in the Vega, during the entire trip to Huntsville. The government used the prior statements and guilty pleas of Gayle, Lynch, and Rogers in an attempt to impeach their credibility. All three admitted signing a form waiving specified rights, including the right to remain silent. Lynch and Rogers admitted making the written statements introduced by the government, and Gayle admitted making most of the statements he was examined about. By way of explanation of the inconsistency between the FBI statements and their trial testimony, the three witnesses denied the truth of parts of their statements and had failures of memory about the truth of other parts. Gayle testified that he was under the influence of "speed," "acid," and barbiturates

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when he gave the FBI his statement, and Lynch testified that he had smoked marijuana during the car ride to Huntsville. Further, all three said that they were under the impression that they would perhaps receive more favorable disposition of the charges against them if they would give statements and cooperate. The government offered testimony from agents Noblitt and Kennedy to show that the FBI statements were given freely, without any promise or hope of reward, and uninfluenced by the effects of drugs. The trial court instructed the jury that prior inconsistent statements could be used only in determining credibility, not as substantive evidence. The prosecutor was also allowed to question Gayle, Lynch, and Rogers briefly about their guilty pleas.

I. Sufficiency of the Evidence.

On appeal from a conviction courts are to view the evidence and the...

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