U.S. v. Petersen, s. 78-1649

• Decision Date: 15 November 1979
• Docket Number: Nos. 78-1649,s. 78-1649
• Citation: 611 F.2d 1313
• Parties: 5 Fed. R. Evid. Serv. 9 UNITED STATES of America, Plaintiff-Appellee, v. Ronald K. PETERSEN, Joel Lee Mitchell, Richard Igo, Dee Duncan, a/k/a Dee Duncan Mitchell, James Franklin Dixon, Joe Wilson, Robert Leonhardt, Aaron Keith Stevens, James Balloue, Jodie Stewart Malone, Richard Carlson, Johnny Miller, Defendants-Appellants. to 78-1660.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1313

611 F.2d 1313

5 Fed. R. Evid. Serv. 9

UNITED STATES of America, Plaintiff-Appellee, v. Ronald K. PETERSEN, Joel Lee Mitchell, Richard Igo, Dee Duncan, a/k/a Dee Duncan Mitchell, James Franklin Dixon, Joe Wilson, Robert Leonhardt, Aaron Keith Stevens, James Balloue, Jodie Stewart Malone, Richard Carlson, Johnny Miller, Defendants-Appellants.

Nos. 78-1649 to 78-1660.

United States Court of Appeals Tenth Circuit.

Argued Sept. 10, 1979.

Decided Nov. 15, 1979.

Rehearing Denied in Nos. 78-1649, 78-1652 through 78-1659

Feb. 14, 1980.

Rod W. Snow, Asst. U. S. Atty., Denver, Colo. (Joseph F. Dolan, U. S. Atty., Denver, Colo., with him on the brief), for plaintiff-appellee U. S.

George W. Dixon of George W. Dixon, Inc., P.S., Tacoma, Wash., for defendant-appellant Ronald K. Petersen.

Sylvian R. Roybal of Martinez & Mendez, P.C., Denver, Colo., for defendant-appellant Jodie Stewart Malone.

Stephen A. Ware, Denver, Colo., for defendant-appellant Richard Carlson.

Wayne E. Griffin, Denver, Colo., for defendant-appellant Johnny Miller.

J. Terry Wiggins, Denver, Colo., for defendant-appellant Joe Wilson.

Harry L. Zimmerman, Dallas, Tex. (Donald G. Martin, Wichita Falls, Tex., with him on the brief), for defendant-appellant Dee Duncan a/k/a Dee Duncan Mitchell.

Donald G. Martin, Wichita Falls, Tex., for defendant-appellant Joel Lee Mitchell.

Gary J. Ceriani, Denver, Colo. (John B. Moorhead, Denver, Colo., with him on the brief), of Davis, Moorhead & Ceriani, P.C., Denver, Colo., for defendant-appellant James Franklin Dixon.

Robert T. Page, Denver, Colo., for defendant-appellant Richard Igo.

Richard D. Torpy, Denver, Colo., for defendant-appellant James Balloue.

Valentine W. Logan, Denver, Colo., for defendant-appellant Robert Leonhardt.

Jerry C. Connell of Bohm, Connell & McLellan, Lakewood, Colo., for defendant-appellant Aaron Keith Stevens.

Before BARRETT and McKAY, Circuit Judges, and BRIMMER, District Judge. ^*

BARRETT, Circuit Judge.

Appellants are among twenty-four defendants who were charged in an indictment with wilfully and knowingly conspiring with each other, several unindicted co-conspirators, and other unknown persons to transport in interstate or foreign commerce, motor vehicles, knowing the same to have been stolen. Twenty-five overt acts were specified in the indictment.

The indictment also charged, in separate counts, four substantive violations of 18 U.S.C. § 2312. These counts were severed prior to trial and are not before us on this appeal.

At trial, the Government established its case primarily through the immunized testimony of Ronnie, Jimmy and JoAnn Adams. The evidence presented, viewed in the light most favorable to the Government, indicated a number of diverse activities which were performed to achieve a single goal that of the theft and interstate transportation of certain motor vehicles. Basically, the evidence suggested that salvage dealers sold specific parts of automobiles, trucks and campers to car thieves. These parts included the vehicle identification number plate, the stamped vehicle number on the frame rail, and title work. Another group of individuals acted as "spotters" who searched out vehicles similar to those from which the vehicle identification numbers had previously been obtained in various salvage yards. Once "spotted" those cars would be marked for theft. Still another group of individuals, utilizing specialized tools, would steal the vehicles. The stolen vehicles were then taken to garages, where the vehicle identification numbers from the salvaged vehicles were splice-welded into the recently stolen cars. The vehicles were then transported in interstate commerce and sold to both knowledgeable and innocent customers. The conspiracy was carried on primarily in California, Colorado, Nevada, and Texas.

At the conclusion of a two week trial, the Jury rendered verdicts of guilty as to Defendants Balloue, Carlson, Dixon, Igo, Leonhardt, Malone, Miller, Dee Duncan Mitchell, Joel Mitchell, Clarence Morrison, Judy Morrison, Petersen, Stevens and Wilson. All Defendants have appealed, with the exception of Clarence and Judy Morrison.

The primary issues raised on appeal are: (1) whether there was sufficient evidence introduced to sustain the Jury's determination of guilt as to each Defendant; (2) whether the evidence presented at trial established the existence of a single conspiracy; (3) whether the Court properly applied the co-conspirator exception to the hearsay rule; and (4) whether the District Court abused its discretion in refusing to grant Appellants' motions for relief from prejudicial joinder. Various secondary challenges have also been raised.

Sufficiency of the Evidence

With the exception of Joel Mitchell, all Appellants challenge the sufficiency of the evidence underlying their convictions. In reviewing these contentions, we must view the entire record "in the light most favorable to the Government in order to determine whether the evidence, both direct and circumstantial, together with all reasonable inferences to be drawn therefrom, is substantial enough to establish guilt beyond a reasonable doubt." United States v. Hubbard, 603 F.2d 137, (10th Cir., 1979). On appeal, it is not the function of this Court to weigh conflicting evidence or consider the credibility of witnesses. United States v. Gibbons, 607 F.2d 1320, (77-1965, 10th Cir., September 11, 1979). In conspiracy cases, a jury's determination of guilt will not be disturbed where the record shows slight evidence of a particular defendant's connection with a conspiracy that has already been established through independent evidence. United States v. Andrews, 585 F.2d 961 (10th Cir. 1978). With these standards in mind, we now turn to an examination of the evidence regarding each of the Appellants.

A. James Balloue :

Balloue was named in only one overt act in the indictment. In Paragraph 12, the Grand Jury charged:

On May 23, 1977, a 1969 Chevrolet three-quarter ton custom pickup was stolen in California by CLARENCE MORRISON and Ronnie Adams. The vehicle was altered by Adams and driven into Mexico by JAMES BALLOUE. (R., Vol. I, p. 4).

Thus, much of the evidence introduced by the Government concerned the theft, alteration and subsequent sale of the 1969 Chevrolet pickup. Specifically, Ronnie Adams testified that a 1969 Chevrolet pickup was stolen in the latter part of April or early part of May, 1977, from a location in Simi Valley, California. (R., Vol. XVII, p. 1347). Thereafter, the stolen pickup was taken to a garage on Orangethorpe Avenue. (R., Vol. XVII, p. 1348). At the garage, Adams testified that Balloue physically helped him alter the identification numbers on the vehicle. (R., Vol. XVII, pp. 1307-1349). The vehicle was then taken to a One-a-Day paint shop, in Anaheim, California, where it was painted a different color. Later, Balloue drove the stolen pickup truck to Ensenada, Mexico, where it was left. (R., Vol. XVII, pp. 1307, 1348, 1349). Ronnie, and his brother, Jimmy Adams, accompanied Balloue on this trip to Mexico. Ronnie specifically testified that he saw Balloue get in the truck prior to their departure and get out of the truck at Ensenada, Mexico.

As background, Ronnie Adams identified Balloue in court (R., Vol. XVII, p. 1270) and testified that he first met Balloue at Balloue's house in California. (R., Vol. XVII, p. 1292). From there, he accompanied Balloue to a garage rented by Balloue. At the garage, Ronnie Adams discussed with Balloue the fact that one of the campers in the garage had been stolen and that Balloue was afraid to "move it" because he didn't have "paperwork" on it. (R., Vol. XVII, pp. 1292-1293, 1345). Ronnie also testified that Balloue accompanied him on two or three trips to Mexico to take vehicles to Ensenada. (R., Vol. XVII, p. 1293). He also identified photos of a truck stolen by Balloue and another man in Anaheim, California. (R., Vol. XVII, p. 1316).

Jimmy Ray Adams corroborated the testimony of his brother, Ronnie, with regard to Balloue's participation. He identified Balloue in the courtroom (R., Vol. XV, p. 1017). Concerning the alteration and transportation of the 1969 Chevrolet pickup, Jimmy testified that Ronnie, Balloue and he altered the identification numbers in Los Angeles and aided Balloue in sanding the pickup so that it could be painted in Los Angeles at the One-a-Day paint shop. (R., Vol. XV, pp. 1044, 1045, 1064, 1065). Later, Jimmy and Ronnie Adams followed Balloue to Ensenada, Mexico, where they "met a guy named Eddie." (R., Vol. XV, pp. 1045, 1056, 1064, 1080, 1081).

Jimmy also testified that various stolen vehicles were taken to a garage on Orangethorpe Boulevard in California where their identification numbers were changed and stored. Jimmy identified Balloue as one of the individuals who possessed a key to the garage. (R., Vol. XV, pp. 1037-1038).

Eddie Glumac, a car dealer from Ensenada, Mexico, identified James Balloue in the courtroom (R., Vol. XI, p. 551) and testified as to the circumstances surrounding his purchase of a 1969 Chevrolet pickup truck. (R., Vol. XI, pp. 546-551). Glumac identified Balloue as the driver who accompanied Clarence Morrison when Morrison sold the 1969 Chevrolet pickup truck to Glumac in Ensenada, Mexico. (R., Vol. XI, p. 551).

In our view, the evidence of Appellant Balloue's guilt is overwhelming.

B. Richard Carlson :

Ronnie Adams was the sole Government witness to testify against Richard Carlson. Adams testified that in October or November of 1977, Clarence Morrison, Duane Malone, and he participated in the theft of a 1976 Ford pickup truck in LaBrea, California. (R., Vol. XVII, pp. 1297-1298, 1334-1335). Following the theft, Adams followed Morrison and Malone in the stolen pickup to Carlson's house. (R., Vol. XVII, pp. 1298, 1335). Once they arrived at Carlson's house, Adams was introduced to Carlson by Clarence Morrison and asked to pull the truck into the garage at the...