U.S. v. Johnson

• Decision Date: 28 June 1985
• Docket Number: Nos. 84-2002,84-2048,84-2049 and 84-2050,s. 84-2002
• Parties: 18 Fed. R. Evid. Serv. 625 UNITED STATES of America, Appellee, v. Morris Junior JOHNSON, Appellant. UNITED STATES of America, Appellee, v. Charles David BAILEY, Appellant. UNITED STATES of America, Appellee, v. Leonard Allen BREEDLOVE, Appellant. UNITED STATES of America, Appellee, v. Lee H. MORGAN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1259

767 F.2d 1259

18 Fed. R. Evid. Serv. 625

UNITED STATES of America, Appellee, v. Morris Junior JOHNSON, Appellant.

UNITED STATES of America, Appellee, v. Charles David BAILEY, Appellant.

UNITED STATES of America, Appellee, v. Leonard Allen BREEDLOVE, Appellant.

UNITED STATES of America, Appellee, v. Lee H. MORGAN, Appellant.

Nos. 84-2002, 84-2048, 84-2049 and 84-2050.

United States Court of Appeals Eighth Circuit.

Submitted March 13, 1985.

Decided June 28, 1985.

Rehearing Denied in No. 84-2050 Aug. 2, 1985.

Philip Moomaw, Michael Baker and Donald Cooley, Springfield, Mo., for appellants.

Michael Jones, Asst. U.S. Atty., Springfield, Mo., for appellee.

Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BOWMAN, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

A brown 1981 Cadillac was stolen from a dealership in St. Louis, apparently given new vehicle identification numbers in southwest Missouri, and falsely titled in Oklahoma. These events led to the convictions of Morris Junior Johnson, Charles David Bailey, Leonard Allen Breedlove, and Lee H. Morgan of conspiring to transport in interstate commerce stolen property valued at $5,000 or more, and knowingly concealing and transporting such property from Oklahoma to Missouri in violation of 18 U.S.C. Secs. 2, 371, and 2314-2315 (1982). On appeal the primary issues are whether the district court ¹ erred in rulings concerning the defense that the property lost its stolen character when a federal agent examined it, in admitting evidence of similar crimes, in overruling various objections relating to the admission of taped conversations, and in ruling an assortment of other procedural matters. Having carefully considered all of these arguments, we affirm the convictions of each of the appellants.

The events giving rise to the convictions are best understood with some background on the role that "retagging" plays in car theft organizations, which was explained at trial by FBI Agent Tom DenOuden. A salvage vehicle and title are purchased and the small metal vehicle identification number (VIN) plate ² is removed from the vehicle. The salvage title is then processed through a state with lax titling requirements so that a non-salvage title is issued. This processing is termed "title washing." Shortly after the salvage vehicle is obtained, a car is stolen that matches the vehicle and washed titled as to engine size, upholstery, color, and accessories. The characters on the salvage VIN and washed title will thus closely correspond to the appearance of the stolen car. The true VIN is removed from the stolen car and replaced with the salvage VIN. Derivative VINs are ground off the motor, transmission, and frame, and new derivative numbers that match the salvage VIN are stamped over the old numbers. Once a stolen car has been retagged the stolen car appears to be legitimate.

FBI Agent Roy Christopher testified that in 1980 the FBI began an undercover operation located in the Cape Girardeau area. Operating under a used car dealer's license, agents purchased and resold salvage vehicles. In November 1981, the agents acquired as salvage a burned 1981 Cadillac. They removed the VIN plate, for which Morgan had offered to pay $4,500. Christopher sold Morgan the VIN plate 1G6AD6992B9161884 (1884), and the matching Louisiana title, insurance company power of attorney, and bill of sale. Morgan paid Christopher $4,000 cash and promised to pay the balance later. ³ Christopher testified that between October 1980 and March 1982 he had sold Morgan twenty-nine VIN plates and corresponding titles at prices ranging from $800 to $4,500 apiece. Further testimony and stipulations showed that on February 9, 1982, five days after Morgan purchased the salvage 1981 Cadillac VIN plate, a brown 1981 Cadillac Sedan DeVille, VIN 1G6AD6990B9104034 (4034) was stolen from Lindburg Cadillac Company, St. Louis. ⁴

Meanwhile, the FBI had set up another undercover operation in Lebanon, Missouri. Ronald Schlup, a paid informant, and FBI Agent Richard Rindt were running a salvage yard. Their goal was to expose retaggers by selling them salvage that would presumably be used to refit stolen cars. On February 18, 1982, defendants Breedlove and Bailey met with Schlup at his salvage yard. Breedlove asked Schlup to pick up a 1981 Cadillac Sedan DeVille from a Surf 99 service station in Springfield, explaining that the police had taken the car from a motel and impounded it. Breedlove gave Schlup a Louisiana title and told him to tell the police that the car was owned by a Louisiana car dealer. Schlup was to say that he was to repair the car for the owner. Breedlove and Bailey paid Schlup $100 for this service. Schlup agreed to deliver the car to a rest area on I-44 between Springfield and Lebanon and to call Commercial Motors upon his arrival.

DenOuden instructed Schlup to do as Breedlove and Bailey had directed. On February 19, 1982, Schlup drove his wrecker to Springfield and met with the agent. They went to the Springfield Police Department and secured the release to Schlup of the Cadillac. Schlup signed the release and used the name "Commercial Street Motors, Monroe, Louisiana," as instructed by Breedlove. They proceeded to Surf 99, paid the storage fee for the car, and towed it to another local service station. DenOuden inspected and photographed the car and Schlup stamped the number "511" on the frame rails near the gas tanks. ⁵ Schlup then drove the Cadillac to the rest area and phoned Bailey at Commercial Motors. Bailey told Schlup that "they" would be out to get the car; Johnson and another man soon appeared at the rest area. Johnson drove away in the Cadillac.

On February 25, 1982, Breedlove told Schlup that a salvaged yellow 1981 Sedan DeVille was going to be brought over to Schlup's salvage yard. Breedlove also told Schlup how to "wash" car titles through the State of Oklahoma, that is, to remove the term "salvage" from the title by securing a new Oklahoma title. Later that day, Schlup met with Bailey and Johnson. Bailey told Schlup that "they" would bring in the yellow DeVille that Breedlove had referred to earlier. That evening, Johnson, driving Breedlove and Bailey's two-car hauler, arrived at the salvage yard and unloaded two cars, one of which was a yellow 1981 Sedan DeVille. The next day Breedlove and Bailey returned to Schlup's salvage yard. They told Schlup to remove the VIN plate and the left door of the yellow Cadillac. Schlup was to keep the remainder of the vehicle. The VIN plate, number 1G6AD6998B9192699 (2699), and left door were delivered the following day. A few days later, Bailey told Schlup that the brown Cadillac picked up in Springfield had been sent to Oklahoma. One month later, Breedlove told Schlup that that brown Cadillac was a "sting" car. Breedlove asked him to cut up or "chop" the Cadillac and said that he had a lot of money invested in the car. Following FBI instructions, Schlup refused.

On April 3, 1984, Schlup again met with Breedlove and Bailey at the salvage yard. Breedlove asked him to travel to Tulsa and retrieve the brown Cadillac that Schlup had picked up in Springfield. Breedlove and Bailey told Schlup he was to ride with Carl Griffin. The next evening Griffin drove Schlup to Tulsa to pick up the brown Cadillac. Schlup delivered the car to Bailey and Johnson near Lebanon.

The government introduced evidence of the salvage chain of title for the yellow Cadillac. These records showed that the salvage Cadillac was transferred on February 26 from C & F Auto Sales to "Larry Wilson." On April 14, 1982, it was assigned from Larry Wilson to Polk County Motors, Johnson's dealership. The Texas salvage title was surrendered to Oklahoma and an Oklahoma title was issued on May 13, 1982 in the name of Larry Wilson.

Thomas Arnold, a Lebanon car dealer, testified that in April 1982, Breedlove approached him about washing a title in Oklahoma. After twice refusing these requests, Arnold agreed. He was given the Texas salvage title and the Texas Dealer's Reassignment of Title to take to Oklahoma. Arnold testified that the name "Larry Wilson" was on the dealer's reassignment when that document was given to him. He added the dealer's name and address of "Polk County Motors, Bolivar, Missouri," and signed the name "Larry Wilson" to the document. Arnold went to a titling office in Oklahoma, turned in the Texas papers, and applied for an Oklahoma title for a 1981 DeVille Cadillac. He signed the title application as "Larry Wilson," paid the fee, and was issued a new Oklahoma title bearing the false name. Arnold returned to Commercial Motors and delivered the title to Breedlove and Bailey. He refused their request that he sign the reassignment portion of the title as "Larry Wilson." Arnold also said that he did not sign Johnson's name, or his business name "Polk County Motors," on the back of the new Oklahoma title. Bailey paid Arnold $225 for the cost of the title.

On May 27, 1982, the "washed" Oklahoma title and a brown 1981 Cadillac Sedan DeVille bearing VIN 2699 were transferred to Bill Tandy Motors, Rolla, Missouri. Although the reassignment portion of the title showed the transferor to be Johnson, doing business as Polk County Motors, Tandy testified that actually he had dealt with Kenny Smith at Smith's car lot in Lebanon. Tandy was told, however, that he was buying the car from Polk County Motors.

It was stipulated that a brown 1981 Cadillac, VIN 2699, was eventually recovered on February 4, 1983, from a subsequent buyer in Lake of the Hills, Illinois. Testimony from various witnesses showed the brown 1981 Cadillac stolen from the St. Louis dealership, VIN 4034, was the vehicle recovered in Illinois. A special agent with the National Automobile Theft Bureau, trained in motor vehicle identification and recovery, examined the Cadillac recovered in Illinois. He found that the true confidential numbers (derivatives of the VIN) had been...