U.S. v. Uder, 95-3513

• Citation: 98 F.3d 1039
• Decision Date: 25 November 1996
• Docket Number: No. 95-3513,95-3513
• Parties: UNITED STATES of America, Appellee, v. Scotty Joe UDER, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1039

98 F.3d 1039

UNITED STATES of America, Appellee, v. Scotty Joe UDER, Appellant.

No. 95-3513.

United States Court of Appeals,

Eighth Circuit.

Submitted March 15, 1996.

Decided Oct. 18, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 25, 1996.

Michael Baker, argued, Springfield, MO, for appellant.

Richard E. Monroe, Asst. U.S. Atty., argued, Springfield, MO, for appellee.

Before McMILLIAN, BEAM and HANSEN, Circuit Judges.

McMILLIAN, Circuit Judge.

Scotty Joe Uder appeals from a final judgment entered in the United States District Court ¹ for the Western District of Missouri, upon a jury verdict finding him guilty on one count of conducting operations in a chop shop, in violation of 18 U.S.C. § 2322(a)(1). The district court sentenced Uder to twenty-one months imprisonment, three years supervised release, and special assessment of $50.00. For reversal, Uder argues that the district court (1) erred in informing the jury that some of the government witnesses had pled guilty; (2) erred in denying his motion for judgment of acquittal based upon insufficiency of the evidence; (3) committed plain error in failing to enter judgment of acquittal based upon a double jeopardy violation; (4) clearly erred in finding that Uder's role in the offense was not minor under U.S.S.G. § 3B1.2; (5) abused its discretion by failing to depart downward based upon an overstated criminal history under U.S.S.G. § 4A1.3; and (6) abused its discretion by failing to depart downward based upon extraordinary physical impairment under U.S.S.G. § 5H1.4. For the reasons discussed below, we affirm.

Background

On October 20, 1994, Uder, along with seven other individuals, was charged in an eight-count indictment. Uder was charged in two of the counts, one alleging that he and his co-defendants knowingly operated a chop shop in violation of 18 U.S.C. § 2322(a)(1), ² (b), ³ and the other alleging that he and four of his co-defendants knowingly tampered with and altered the vehicle identification number on a stolen car, in violation of 18 U.S.C. § 511. By the time of trial on July 19, 1995, all of Uder's co-defendants had entered into plea or cooperation agreements with the government, and Uder was the only defendant left to stand trial.

The government called ten witnesses for its case in chief, including several of Uder's former co-defendants. According to the government witnesses, Uder worked at an auto body shop in Fair Grove, Missouri, which operated under the name Heavy Truck and Car Sales and was owned and operated by an individual named Lloyd Dale Hightower. In November of 1993, Hightower was serving time in a federal prison for possession of methamphetamine with intent to distribute and conspiracy to transport stolen cars. Nevertheless, Hightower was able to direct illegal operations and related activities at the shop through an associate, Robert Moon, and Hightower's wife, Margaret Eaves (formerly Margaret Hightower), who lived next door to the shop. Hightower would allegedly purchase a salvaged vehicle at minimal cost, have the car cut up for parts while keeping the frame, then have the body of a stolen car assembled on the frame of the salvaged car, and have the vehicle identification number plates from the salvaged car switched to the stolen car. He would then sell the rebuilt car at a substantial profit. (This practice is referred to as "body swinging" or "swinging.") The government's evidence indicated that during the winter of 1993-1994, as part of Hightower's operation, a salvaged 1993 Suburban was legitimately purchased in Louisiana. The 1993 Suburban was cut up for parts at Hightower's shop and the frame salvaged. Then, a stolen 1994 Suburban was rebuilt on the salvaged frame and was retagged to bear the vehicle identification number and other identifying parts from the 1993 model.

One of the government witnesses, Mike Willis, testified that he worked at Hightower's shop but did legitimate body work. He testified that, on January 1, 1994, he was visiting in Eaves' home. Based upon his observations and what he heard, he became suspicious of the activities that were taking place next door at the shop. The next day he left a message with FBI agent Al Stiffler to report that a "swing" of a Suburban was in progress at Hightower's shop. Willis implicated Hightower, Eaves, and Moon, and testified that a man referred to as "Robert" was apparently also involved in the "swing." The following day, Willis saw Stiffler and a state patrol officer at the shop.

Moon, who had originally been charged in the indictment, testified under a plea agreement that during 1993 and 1994 he was in the business of stealing cars for chop shops, including Hightower's. He testified that, in October or November of 1993 (before Hightower's incarceration), he saw Hightower obtain the 1993 Suburban and he saw the car chopped up and the vehicle identification number being saved. The frame and engine were taken to an auto frame shop owned by Chris Brown, in Lebanon, Missouri, to have the frame straightened. After Hightower was incarcerated, he allegedly agreed to pay Moon $2,000.00 to steal a Suburban and change the bodies before selling it. Moon further testified that he and Charles Berry Roberson (apparently the person whom Willis heard referred to as "Robert") stole the 1994 Suburban. Moon then hired Mat Lowrance and Uder (who were associated with another auto body chop shop called Auto Mart, which was owned by Kenny Smith), to do the body work on the Suburbans for $600 each. The salvaged frame was brought to Hightower's shop from Lebanon. Over the course of January 1 and January 2, 1994 Uder and Lowrance completed the body work for the "swing," with the exception of a broken distributor that needed replacing, and transferred the vehicle identification number and other identifying plates to the newly rebuilt car. The next day, January 3, 1994, Uder and Lowrance were returning to fix the broken distributor when they were waved off as they approached Hightower's shop, apparently because the police were there. They, in turn, also waved off Moon as he approached the shop. Consequently, Uder and Lowrance did not replace the broken distributor as planned. That evening, Lowrance, Uder, and Moon allegedly met at the Auto Mart in Lebanon, Missouri. Kenny Smith and one of his employees, Frank Rodden, were also present. Afterward, Uder allegedly removed from Hightower's shop some of the parts that had been taken out of the interior of the salvaged Suburban, and he delivered those parts to Kenny Smith, who had bought them from Eaves.

Other witnesses testifying for the government under a plea agreement or a grant of immunity were Roberson (who had allegedly helped steal the 1994 Suburban), Lowrance (who, with Uder, allegedly did the body work for the "swing"), Rodden (an employee of Kenny Smith at the Auto Mart), and Eaves (Hightower's wife). They generally corroborated the story told by Moon. The government also called as trial witnesses the owner of the stolen 1994 Suburban, law enforcement officers who were involved in the investigation (including FBI agent Stiffler), and an expert who testified about how chop shops operate.

After the government rested, Uder moved for a directed verdict or judgment of acquittal on grounds of insufficiency of the evidence. The motion was denied. Uder rested without presenting any further evidence. Uder timely objected to several of the jury instructions given by the district court, including Instruction No. 13. The case was then submitted to the jury following closing arguments. The jury found Uder guilty of knowingly operating a chop shop and not guilty of knowingly tampering with or altering a vehicle identification number.

The presentence investigation report (PSR) determined that Uder's total offense level was 14, his criminal history category III (based upon 5 criminal history points), and the relevant amount of loss between $20,000 and $40,000 (representing the retail value of the stolen 1994 Suburban). Uder filed objections to the PSR, seeking a downward adjustment for minor role in the offense (U.S.S.G. § 3B1.2); a downward departure on grounds that his criminal history was overstated (U.S.S.G. § 4A1.3); and a downward departure on grounds that his cystic fibrosis constituted an extraordinary physical impairment (U.S.S.G. § 5H1.4). The district court rejected Uder's objections and adopted the recommendations in the PSR. Uder was sentenced to twenty-one months imprisonment, three years supervised release, and a $50.00 special assessment. Uder appealed.

Discussion

Jury instruction referring to witnesses' guilty pleas

Uder argues on appeal that the district court erred in giving the following Instruction No. 13:

You have heard evidence that Robert Moon, Charles Barry Roberson, Frank Rodden, and Matthew Lowrance have made plea agreements with the government and that Margaret Eaves has received a promise from the government that her testimony will not be used against her in a criminal case. Their testimony was received in evidence and may be considered by you. You may give their testimony such weight as you think it deserves. Whether or not their individual testimony may have been influenced by the plea agreements or the government's promise is for you to determine.

Each of these witnesses' guilty pleas cannot be considered by you as any evidence of this defendant's guilt. The individual witness's guilty plea or promise from the government can be considered by you only for the purpose of determining how much, if at all, to rely upon the individual witness's testimony.

Uder tendered, as an alternative instruction, his proposed Instruction A, which stated:

You have heard testimony from Robert Moon, Charles Barry Roberson and Matthew Lowrance who stated that they participated in the crime charged against defendant. Their testimony was received in evidence and may be considered by you. You may...