U.S. v. Terry, s. 83-5280

• Decision Date: 18 April 1984
• Docket Number: 83-5281,Nos. 83-5280,s. 83-5280
• Citation: 729 F.2d 1063
• Parties: 15 Fed. R. Evid. Serv. 466 UNITED STATES of America, Plaintiff-Appellee, v. James Ray TERRY, Gordon Lynn Peeler, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1063

729 F.2d 1063

15 Fed. R. Evid. Serv. 466

UNITED STATES of America, Plaintiff-Appellee, v. James Ray TERRY, Gordon Lynn Peeler, Defendants-Appellants.

Nos. 83-5280, 83-5281.

United States Court of Appeals Sixth Circuit.

Argued Nov. 9, 1983.

Decided March 16, 1984.

Rehearing Denied April 18, 1984.

Don W. Poole, Chattanooga, Tenn., for defendants-appellants in No. 83-5281.

Michael S. Prichard, Chattanooga, Tenn., for defendants-appellants in No. 83-5280.

John W. Gill, Jr., U.S. Atty., Charles Fels, Asst. U.S. Atty. (argued), Knoxville, Tenn., for plaintiff-appellee.

Before ENGEL and CONTIE, Circuit Judges, and GIBSON, Senior Circuit Judge. ^*

FLOYD R. GIBSON, Senior Circuit Judge.

The defendants appeal from a criminal conviction and judgment entered by the district court. ¹ We affirm.

I.

Defendants James Ray Terry and Gordon Lynn Peeler were convicted by a jury of conspiring to conceal a stolen truck which had moved in interstate commerce and was worth $5,000 or more, in violation of 18 U.S.C. Secs. 2, 371 and 2313. The defendants were also convicted of conspiring to receive and conceal a stolen diesel engine which had moved in interstate commerce and was worth $5,000 or more, in violation of 18 U.S.C. Secs. 2, 371 and 2315. The bulk of the evidence against the defendants came via a confederate of theirs, Eddie Harrill, who had agreed to be a witness for the government in exchange for a recommendation of leniency. Harrill had tape-recorded conversations between himself and each of the defendants, during which both defendants made self-incriminating remarks. An undercover government agent was present when Harrill had, and recorded, the conversation with Peeler. Neither Terry nor Peeler testified at trial. Both defendants appeal, alleging that errors which occurred at trial warrant reversal.

II.

(1) The motions in limine.

Prior to trial, both Peeler and Terry made motions in limine to suppress evidence of prior convictions in the event that either defendant might choose to testify at trial. The trial court denied these motions. Neither Terry nor Peeler testified at trial and their prior convictions were not introduced into evidence at trial. Neither defendant stated what his testimony would have been had the motion in limine been granted.

For various reasons, both Peeler and Terry argue that the trial court's ruling was erroneous. We do not reach the issue. In the recent decision of United States v. Luce, 713 F.2d 1236, 1238 (6th Cir.1983), this court held that a preliminary ruling on admissibility is not reviewable on appeal when a defendant fails to testify at trial and prior convictions are not offered into evidence by the prosecution. Pursuant to Luce, we dismiss the defendants' arguments regarding the motions in limine.

(2) The value of the stolen engine.

Peeler and Terry argue that the government failed to prove the value of the stolen diesel engine. Under Title 18 U.S.C. Sec. 2315, the stolen goods must have a threshold value of $5,000 at the time and place of taking. ² Stern v. United States, 204 F.2d 647, 649 (6th Cir.1953). The value of the property is a question of fact to be determined by a jury. See United States v. Williams, 657 F.2d 199, 202 (8th Cir.1981); Kowalchuk v. United States, 176 F.2d 873, 876 (6th Cir.1949). On appeal from a criminal conviction, this court views the evidence in the light most favorable to the government when determining whether the jury's finding was supported by substantial and competent evidence. Kowalchuk, 176 F.2d at 876.

The government adduced evidence that the value of the stolen engine, prior to its theft, was between eight and ten thousand dollars and that the current value of the engine was between six and eight thousand dollars. Also, the government's principal witness, Harrill, testified that he had agreed to give Peeler five thousand dollars plus an old engine if Peeler put the stolen engine in Harrill's truck. Witnesses for the defense, neither of whom inspected the engine, testified that the value of the engine would be between twenty-five and thirty-five hundred dollars. We hold that the jury's finding is supported by substantial and competent evidence.

(3) The trial court's denials of the motions to re-open the

case and grant a new trial.

On the third day of trial, after both sides had rested, the government learned that Harrill had come to the courthouse that day in the company of a fugitive and in a truck which had been equipped with stolen parts. The government, in an in camera hearing, brought this to the attention of the court and defense attorneys. Both defense attorneys made motions to re-open their cases for the purpose of recalling and discrediting Harrill. The trial court denied these motions.

Harrill subsequently was indicted on, and pled guilty to, the charge of concealing stolen goods. Defendants moved for a new trial on the basis that Harrill's continued criminal involvement constituted newly discovered evidence. The motions were denied.

During his testimony, Harrill had stated that he agreed to become a government witness because he wanted to come clean. He also testified that he had told the grand jury everything about his criminal activities. However, as the subsequent prosecution revealed, Harrill had been involved in criminal activity up to and including the week before he testified at the defendant's trial.

Fed.R.Evid. 611 provides in pertinent part:

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time ....

Under Rule 611, a trial judge has considerable discretion and a judge's rulings will not be the basis for reversal of a criminal conviction unless a defendant's substantial rights are affected. United States v. Vinson, 606 F.2d 149, 152 (6th Cir.1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980); 3 J. Weinstein & M. Berger, Weinstein's Evidence p 611 at 611-15.

On cross-examination, both defendants extensively impeached Harrill's direct testimony. In the course of his testimony, Harrill admitted to involvement in numerous criminal activities as well as five prior convictions. He also admitted to entering into an agreement with the government in exchange for the government's recommendation of leniency on pending state and federal charges. Finally, on cross-examination, the government agent who had dealt with Harrill testified that he was aware Harrill was a thief.

No purpose would have been served by recalling Harrill for further impeachment; he had already been discredited. We hold that the trial court's denials of the motions to reopen the case were not an abuse of discretion.

Regarding the denials of the motions for new trials, under Fed.R.Crim.P. 33, a trial court may grant a defendant's motion for a new trial if the interests of justice so require. However, these motions are to be addressed to the sound discretion of the trial judge whose decision will not be disturbed absent an abuse of that discretion. United States v. Barlow, 693 F.2d 954, 966 (6th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 2124, 77 L.Ed.2d 1304, (1983). Under the Barlow test, to obtain "a new trial based on newly discovered evidence a defendant must show that the evidence (1) was discovered only after trial, (2) could not have been discovered earlier with due diligence, (3) is material and not merely cumulative or impeaching, and (4) would likely produce an acquittal if the case were retried." Id.

Peeler and Terry fail to meet the last two prongs of this test. Given the substantial evidence adduced against both defendants at trial, it is not likely that further discrediting of Harrill would produce an acquittal if the case was retried. Further, Harrill's continued criminal activity was not material to the issue of the defendants' guilt, and the evidence would have been cumulative as it only could have served the purpose of further impeachment.

(4) Admissibility of the tape recorded conversations.

At trial, the government introduced into evidence two tape recorded conversations. One tape contained a conversation between Peeler and Harrill, and the other contained a conversation between Terry and Harrill. Both defendants had made self-incriminating remarks about their involvement in the crimes for which they were prosecuted. The conversations occurred after Harrill had agreed to cooperate with the government. Both defendants object to the admission of the recordings, albeit for different reasons.

Most of Peeler's objections go to the content of the tape. Those objections will be discussed below. Peeler's objection to the tape, per se, concerns a portion of the tape which Peeler claims was inaudible. In United States v. Robinson, 707 F.2d 872, 876 (6th Cir.1983) this court noted:

It is well settled that the admission of tape recordings at trial rests within the sound discretion of the trial court .... That discretion presumes, as a prerequisite to admission that the tapes be authentic, accurate and trustworthy .... Moreover, they must be audible and sufficiently comprehensible for the jury to consider the contents ....

Robinson, further held that where:

there are inaudible portions of the tape, the court should direct the deletion of the unreliable portion of the transcript. This, however, assumes that the court has predetermined that unintelligible portions of the tape do not render the whole recording untrustworthy.

Id. at 879.

The trial court met the standards set out in Robinson. The record shows that, at a pre-trial hearing, the trial court listened to the questionable portion of the tape and ordered that the part which was inaudible be deleted. The trial court found that the remainder of the questionable portion of the tape was audible. Our review of the transcript produced from the...