914 F.2d 249 (4th Cir. 1990), 90-5752, U.S. v. Moss
| Citation | 914 F.2d 249 |
| Date | 13 September 1990 |
| Docket Number | 90-5752. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John David MOSS, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Page 249
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)
Argued July 17, 1990.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Chief District Judge. (CR-89-21-R)
William H. Cleaveland, Rider, Thomas, Cleaveland, Ferris & Eakin, Roanoke, Va., for appellant.
Karen Breeding Peters, Assistant United States Attorney, Roanoke, Va. (Argued), on brief: John P. Alderman, United States Attorney, Jean M. Barrett, Assistant United States Attorney, Roanoke, Va., for appellee.
W.D.Va.
AFFIRMED.
Before ERVIN, Chief Judge, and PHILLIPS and MURNAGHAN, Circuit Judges.
PER CURIAM:
John Moss appeals from his conviction for theft and conspiracy in connection with his business as a rebuilder of cars from salvaged vehicles. The jury convicted him of knowingly ordering and then purchasing stolen parts or "clips" of cars and then using those parts in his rebuilding business. 1 Moss has questioned the sufficiency of the evidence, an evidentiary ruling by the court, the jury instructions, and several sentencing issues. We affirm.
I.
Prior to the case presently on appeal, Moss was convicted and sentenced for his participation in a "salvage switch" operation. In that scheme, Moss bought late model stolen cars, removed their identifying numbers, and replaced them with the numbers of wrecked or salvaged cars that he bought at auction. While free pending the ultimately unsuccessful appeal of that conviction, Moss went to an auction in Brandywine, Maryland, in November 1984. At that auction ("the Brandywine incident"), police seized a clip from Moss that he had just paid for and received. The clip seized was missing its identifying numbers and thought by the police to be stolen. Moss gave the police his receipt which identified "Willie" of "Foreign Salvage" as the sender. The police questioned Moss at the time. Though he turned over his receipt for the part, Moss gave no information regarding how the police could locate "Willie". The phone number on the receipt was inoperable and there was nothing identifying the address on it. Moss, however, knew how to contact Willie, otherwise known as Mark Williamson, but did not tell the police that information, allegedly because they did not ask. Moss later did call Williamson at home, asking him if Williamson had a salvage certificate for the seized part. As the part was stolen, obviously, no legitimate documentation was available. Williamson told Moss not to worry, that he would replace the clip, which he later did. Though Williamson did not tell Moss that the part was stolen, Williamson, as a cooperating government witness at Moss' trial, testified that Moss "should have known" that the parts were stolen.
When the police visited Moss some six months later to show him a photo spread, they still had not found Williamson. Moss did not tell them about his contacts with Williamson regarding the seized clip and its replacement.
After Moss completed his prison term, he again began to deal with Williamson. No longer engaged in switching numbers, Moss rebuilt cars from supposedly salvaged and wrecked vehicles. According to Williamson, Williamson would steal a car, cut it up and remove the numbers at his place of operation in Pittsburgh, Pennsylvania. He would then send the parts, in separate shipments in order to avoid identification of them as coming from the same auto, to Moss in Danville, Virginia.
Three of Moss' employees testified that they were suspicious of the parts arriving from Williamson's business in Pittsburgh and brought their suspicions to Moss's attention. Moss told the employees that he always got a receipt and paid for the clips by check.
According to Williamson, Moss received hundreds of clips from him from May 1986 until June 1988, when the arrests were made. Moss placed orders with Williamson by phone for specific parts. Some of the conversations with Williamson were taped by the Pittsburgh police who were investigating Williamson. Williamson was arrested in September 1987 on local drug and auto theft charges. Thereafter one of Williamson's associates, Richard Merlo, took over the business of delivering clips to Moss. Merlo testified that Moss did not know that the clips were stolen.
Two days later, the FBI found the stolen Pittsburgh vehicles. One clip was at Moss' main business and the other at Charles' Auto, where Charles Clark rebuilt Hondas for Moss. While seizing the clips from Charles' Auto, the FBI agent noticed two other clips that looked to be in good condition and hence possibly stolen. The agent photographed those two clips, but did not seize them. Later that night and in a rainstorm, Moss removed the clips from Charles' Auto. He lied to both Clark and to the FBI about the disappearance of the clips.
During trial Moss denied that he knew that the parts he was ordering and buying from Williamson were stolen. An auto parts dealer testified that it was not uncommon to buy auto parts without numbers.
On March 17, 1989, Moss and his corporation, Crown Auto, Inc., were indicted for conspiracy to engage in interstate transportation of stolen automobile parts and with two substantive counts of transportation and receipt of stolen goods on June 21, 1988. The date of the earliest overt act was listed as the date of the Brandywine incident. After trial on September 21-26, 1989, Moss was convicted on all counts. At the sentencing hearing on December 21, 1989, Moss was sentenced to 51 months of incarceration to be followed by two years of supervised release as well as to pay a $15,000 fine.
In arriving at the sentence the district judge found the loss from the thefts to be in excess of $500,000. He granted enhancements for obstruction of justice and for Moss' role as a leader or organizer of the organization. The district judge also gave a two-point reduction for acceptance of responsibility, a finding not challenged by the government.
II.
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Sufficiency of the evidence
In reviewing the sufficiency of the evidence on appeal, the evidence must be viewed in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80 (1942). Moss' chief complaint is that there was nodirect evidence that he knew that the parts that he was ordering and receiving were stolen. Indeed, Moss' testimony and that of some of his witnesses would indicate that he did not know. Nevertheless, the jury clearly did not believe that testimony.
The evidence did establish that Moss knew that the parts had no serial numbers on them and that their condition was excellent, in contradiction to what one would expect from a "totaled" car sold as salvage. Several of Moss' own employees brought their suspicions to his attention. Testimony also established that Moss knew that front and rear clips seemed to match; that "Willie" had no office number, but could be reached at home and had previously, in the Brandywine incident, sold Moss a stolen front end which the government had seized.
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