U.S. v. Forrest

• Decision Date: 05 June 1980
• Docket Number: No. 78-5759,78-5759
• Citation: 620 F.2d 446
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Henry FORREST and Maxine Forrest, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 446

620 F.2d 446

UNITED STATES of America, Plaintiff-Appellee, v. William Henry FORREST and Maxine Forrest, Defendants-Appellants.

No. 78-5759.

United States Court of Appeals,

Fifth Circuit.

June 5, 1980.

Rehearing Denied July 3, 1980.

Robert B. Staats, Panama City, Fla., Henry R. Barksdale, Pensacola, Fla., Wes Pittman, Panama City, Fla., Marc Cooper, Miami, Fla., for defendants-appellants.

Nicholas P. Geeker, U. S. Atty., Pensacola, Fla., Donald S. Modesitt, Asst. U. S. Atty., Tallahassee, Fla., for plaintiff-appellee.

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

Before GODBOLD, HILL and POLITZ, Circuit Judges.

POLITZ, Circuit Judge:

William Henry Forrest and his wife Maxine Forrest were convicted by a jury on one count of knowingly buying, receiving and possessing a stolen shipment of eggs in violation of 18 U.S.C. §§ 659 and 2, and on one count of knowingly buying, receiving and possessing a stolen vehicle (containing the eggs) in violation of 18 U.S.C. §§ 659 and 2315. In addition William Henry Forrest was convicted on six counts of knowingly transporting stolen motor vehicles in interstate commerce in violation of 18 U.S.C. § 2312 and on 13 counts of knowingly receiving, concealing and storing stolen motor vehicles, in violation of 18 U.S.C. § 2313.

Maxine Forrest was sentenced to five years' imprisonment on each count, with the sentences to run concurrently. William Henry Forrest also was sentenced to five years' imprisonment on each count. The court collated the 21 counts on which he was convicted into five groups and ordered that the sentences in each group run concurrently with each other but consecutively with the sentences imposed in the other groups, for an effective sentence of 25 years.

This appeal presents four issues: (1) whether there was sufficient evidence to support the conviction of Maxine Forrest, (2) whether the searches and seizures of the vehicles involved violated the Fourth Amendment, (3) whether the prosecutor made impermissible comments about William Henry Forrest's failure to testify and (4) whether the trial court took sufficient steps to safeguard against the effects of an attempt to tamper with the jury. We reverse the convictions of Maxine Forrest. We reject the challenges of William Henry Forrest based on the searches and seizures and the prosecutorial comments. We remand for a limited purpose.

I. SUFFICIENCY OF THE EVIDENCE

Maxine Forrest was convicted with her husband of knowingly buying, receiving and possessing a tractor-trailer rig and its contents, a load of eggs. Our review of the record convinces us that the government failed to prove the charges beyond a reasonable doubt.

William Henry Forrest was the proprietor of Forrest Mobile Homes, a company that rented out more than 50 mobile homes at a trailer park in Panama City, Florida. Over the years his activities extended to truck-leasing and used-vehicle sales. In 1977, the Federal Bureau of Investigation became suspicious about the ownership of the trucks Mr. Forrest was leasing. An investigation culminated in the arrests of Mr. and Mrs. Forrest and several employees of the truck-leasing operation. The evidence established that William Henry Forrest had been leasing trucks ¹ with the knowledge that they were stolen and indeed that he had been involved in the theft of most of them. Mr. Forrest makes no challenge to the sufficiency of the evidence against him.

The Forrests' business operations were conducted from an office next door to the Forrests' home. Mrs. Forrest worked in the mobile home rental office. At trial, she denied any involvement in the truck-leasing operation other than occasional telephone-answering and message-taking. She also had signed, at the direction of her husband, several applications for certificates of title to trucks used in the leasing business. Those trucks were stolen, but there was no evidence showing that she knew of the thefts, and she was not convicted with respect to those trucks.

All the events upon which Mrs. Forrest's conviction is based occurred between Friday, June 16, 1978, and Tuesday, June 20, 1978. On June 16 or June 17, Mr. Forrest arrived home driving a new tractor and a trailer containing 850 cases of eggs. He had stolen the tractor in Raleigh, North Carolina, and the trailer with its load from a truck stop in Atlanta, Georgia. He contacted several Panama City businessmen who agreed to buy some of the eggs, but before he could deliver them he was called away to Denver on other business. He left the task of selling the eggs to an employee, Edwin Ring Hodge.

Just before midnight on Monday, June 19, Mr. Forrest telephoned from Denver. Mrs. Forrest told him that Hodge and other employees were still delivering the eggs. Mr. Forrest told his wife to have Hodge call him as soon as possible. She sent an employee named Don Wayne Barnes to get Hodge, who then telephoned her husband in Denver. There is no evidence that Mrs. Forrest was privy to the conversation between her husband and Hodge. According to Hodge, Mr. Forrest was concerned that the efforts to dispose of a large quantity of eggs significantly below wholesale price in an area as small as Panama City would arouse suspicion. Mr. Forrest told Hodge to abandon the trailer and the remaining eggs at a truck stop in a neighboring county. While carrying out this order, Hodge and Barnes were arrested by FBI agents and local police who had been maintaining a surveillance of the trailer for several hours because of their suspicion that Mr. Forrest had stolen the egg shipment.

Maxine Forrest was convicted of violating 18 U.S.C. §§ 659 and 2315, ² which provide in pertinent parts:

§ 659 Interstate or foreign shipments by carrier; State prosecutions

Whoever embezzles, steals, or unlawfully takes, carries away, or conceals, or by fraud or deception obtains from any . . . motortruck, or other vehicle . . . with intent to convert to his own use any goods or chattels moving as . . . an interstate . . . shipment . . . ; or

Whoever buys or receives or has in his possession any such goods or chattels, knowing the same to have been embezzled or stolen . . .

Shall in each case be fined not more than $5,000 or imprisoned not more than ten years, or both . . .

§ 2315 Sale or receipt of stolen goods, securities, moneys, or fraudulent State tax stamps

Whoever receives, conceals, stores, barters, sells, or disposes of any goods, wares, or merchandise . . . which are a part of . . . interstate . . . commerce, knowing the same to have been stolen . . .

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

Knowledge that the goods were stolen is an essential element of the offenses. The government bears the burden of proving this element of the crime, as well as all others, beyond a reasonable doubt. United States v. Barrera, 547 F.2d 1250 (5th Cir. 1977).

In reviewing the sufficiency of evidence in criminal cases, we are to view the evidence and all inferences that reasonably may be drawn from it in a light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Having viewed the evidence in that light, if we find that a reasonably minded jury must have had a reasonable doubt as to an essential element, we must reverse. Barrera, supra.

Mrs. Forrest contends that the government did not establish beyond a reasonable doubt that she knew the tractor, trailer and eggs were stolen. The government points to testimony, together with inferences to be drawn therefrom, that it The government contends the jury could have inferred the guilty knowledge from the fact that Mrs. Forrest was married to the kingpin of a large-scale illegal operation ³ and was an agent of his company. That one is married to, ⁴ associated with, ⁵ or in the company of ⁶ a criminal does not support the inference that that person is a criminal or shares the criminal's guilty knowledge.

claims satisfies that burden of proof. We are referred to Hodge's testimony that Mr. Forrest instructed him to give Mrs. Forrest the proceeds of the egg sales and that he gave her $75 in cash and a check, the amount of which was never stated. There is no evidence that Hodge told Mrs. Forrest that the money was the proceeds of illegal activity, and neither the jury nor this court may infer that knowledge from her acceptance of the money. United States v. Ramirez, 441 F.2d 950 (5th Cir. 1971).

The government relies heavily on the testimony of Hodge. One statement, highlighted as proof that Mrs. Forrest had knowledge that the truckload of eggs was stolen, was Mr. Forrest's comment that the egg truck was the "easiest one he had ever gotten because the keys were in it." However, on cross-examination Hodge testified that only he and Mr. Forrest were present when this statement was made, and there is no evidence that Mrs. Forrest overheard or had any knowledge of this comment.

The only direct evidence bearing on Mrs. Forrest's knowledge of the reason for the egg sales came from Dennis James Barfield, a Forrest employee. Barfield testified that Mrs. Forrest was told the same thing that the people who bought the eggs were told, i. e., that the eggs were being sold to offset Mr. Forrest's losses caused by the owner's refusal to pay his freight charges. The government offered no countervailing evidence.

We conclude that the evidence of Mrs. Forrest's guilt of the offenses charged is insufficient to sustain her convictions.

II. SEARCHES AND SEIZURES

Forrest ⁷ challenges the legality of the searches and seizures of all vehicles identified in the indictment. There were nine separate searches and seizures. All were executed without a search warrant. We assume, without deciding, that Forrest has standing to make a Fourth Amendment challenge.

Forrest mounts a Fourth Amendment attack on five grounds:

1. There was no probable cause to justify the stop, seizure and...