Bendelow v. United States

• Decision Date: 29 September 1969
• Docket Number: No. 25551.,25551.
• Citation: 418 F.2d 42
• Parties: Robert William BENDELOW, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

418 F.2d 42 (1969)

Robert William BENDELOW, Appellant, v. UNITED STATES of America, Appellee.

No. 25551.

United States Court of Appeals Fifth Circuit.

September 29, 1969.

Thomas S. Biggs, Jr., Jacksonville, Fla., for appellant.

Edward F. Boardman, U. S. Atty., Gary B. Tullis, Asst. U. S. Atty., Jacksonville, Fla., for appellee.

Before WISDOM, GODBOLD and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

Bendelow appeals from a judgment of conviction and sentence to confinement for five years following a jury verdict of guilty. He was charged by a single count information with violation of the Dyer Act, Title 18, U.S.C. § 2312, for the interstate transportation on or about September 16, 1967, of a stolen 1960 white Cadillac convertible, from Emigrant Gap, California to the Middle District of Florida.

He seeks reversal of his conviction on several grounds of asserted error: (1) failure of the government to prove the essential elements of the offense, (2) because the jury was allowed to consider evidence which was not the best evidence as to identification of the vehicle, as well as evidence which resulted from an "in-custody interrogation" in which Bendelow was not warned of his rights, (3) because the government was permitted over objection to cross-examine him improperly concerning prior felony convictions and (4) finally, because his representation by court-appointed counsel was so ineffective as to deprive him of his constitutional right to counsel.

We are not persuaded that prejudicial error occurred in any or either of the particulars claimed and accordingly affirm the judgment below.

Inasmuch as the sufficiency of the evidence to sustain conviction is involved in appellant's first point, we state the facts brought out in the evidence in the light most favorable to the appellee. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

Mrs. Maria Lekas during the late summer of 1967 was temporarily taking care of a retail grocery store and filling station for her hospitalized brother, and for this reason residing temporarily in Emigrant Gap, California, deep in the Sierra Nevada Mountains between Sacramento and Reno. About a block from her abode was the Rancho Sierra Lodge, a small hotel. It contained a bar where she frequently spent the evening hours. The recreational facilities of Emigrant Gap appear to have been severely limited. After such evenings, Lekas often walked home and left her 1960 white Cadillac convertible in the well-lighted lodge parking lot to be retrieved the following morning.

Bendelow came to work at the lodge bar as bartender the last week in August, 1967. He worked five evenings that week, during three of which Lekas was a customer in the bar. Such conversations as she had with Bendelow were casual, and she never gave him permission to use her car.¹ Thursday night, August 31, 1967, while Lekas was talking to friends at the bar, Bendelow picked up her car keys which lay on the bar counter. Bendelow at trial insisted that he returned the keys, but Lekas testified that he kept them and that she received them from Florida when her car was returned to her.

On Saturday night, September 2, Lekas parked her car in the Lodge parking lot as usual. She left her purse, containing a second set of keys in the car. At trial Lekas testified that she asked Bendelow Saturday night for the keys picked up from the counter earlier, and that he said he had returned them Thursday night. His trial testimony appears to be to the same effect. Saturday night Lekas again walked home, leaving the Cadillac in the lot. The following morning about eleven when she returned for it, the car was gone. Bendelow was also missing from the Lodge. She reported the car stolen to California authorities immediately. She next saw the car when it was returned to her from Florida. On September 16, 1967, Patrolman Hart of the Florida Highway Patrol stopped Bendelow on U.S. Highway 17 near Yulee, Florida. He was driving the Lekas Cadillac.² When the trooper asked for identification, Bendelow displayed a California driver's license identifying him as Mario Persudo. The trooper's testimony as to what occurred at the time is detailed in Part II of this opinion.

I.

Bendelow argues that the trial judge should have granted his motions for judgment of acquittal because the government failed to prove each element of the offense, specifically that there was no evidence which connected him with Lekas' car. The facts recited above, in the text and in footnote 2, put this contention to rest. Despite the earnestness with which it is argued, it is groundless.

Trooper Hart at trial identified Bendelow as the driver of the white 1960 Cadillac convertible stopped by him in Yulee, Florida on September 16. F.B.I. Special Agent King testified that as a result of a communication from the Florida Highway Patrol he examined a car at Yulee, a 1960 white Cadillac convertible, license tag NCZ 333, vehicle identification number 60F025334; that as a result of this examination he communicated with his California office, and as a result of that communication proceeded to the Nassau County Jail (Yulee is in Nassau County, Florida) where he found the appellant Bendelow and interviewed him. The license tag quoted by King differed by one letter, the substitution of Z for V, from the one quoted by Trooper Hart; both the tag number and identification number quoted by King were identical to those shown on the California registration produced by Lekas at trial and received in evidence as a government exhibit.

Bendelow contradicted much of the government testimony. He was insistent in his assertions that he had Lekas' permission to use her car to drive east to New York State. But legitimate credibility choices are for juries, not for appellate courts. Taking the view of the testimony most favorable to the government, as we must,³ we find it amply sufficient to sustain the guilty verdict below.

II.

Bendelow's next contention is that certain evidence submitted to the jury was the result of an "in-custody interrogation" in which the required warnings of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were not given. Upon receiving information from the Georgia Highway Patrol that the driver of a Cadillac convertible with a certain license number had threatened a service station attendant in Georgia when the attendant had refused to honor a credit card, Patrolman Hart stopped the Cadillac near Yulee, Florida, and asked the driver, Bendelow, for his driver's license and automobile registration. After Bendelow got out of the automobile, at Hart's request, Hart noticed that the name on the driver's license had been altered by changing Maria to Mario,⁴ and that the identifying photograph on the license was glued over the picture of a woman. The license data as to age, height and weight also appeared altered. When Bendelow was unable to give a satisfactory explanation of the alteration and pictures, Hart placed him under arrest for unlawfully displaying the driver's license of another and took him to the Nassau County Jail at Fernandina. After the F.B.I. learned that the automobile was stolen, Bendelow was charged with violation of the Dyer Act.

At trial, Hart testified only to the number on the license tag, the presence of Bendelow in the automobile and the name, Mario Persudo, which appeared on the driver's license displayed by Bendelow. At this point in Hart's testimony, the jury was excused. The circumstances of the arrest just set forth were related only as a proffer of proof, in the jury's absence. The trial judge allowed no testimony from Hart concerning the alterations or any statements made by Bendelow concerning them, ruling that such testimony would run afoul of Miranda v. Arizona, supra, and Fendley v. United States, 5 Cir. 1967, 384 F.2d 923. Bendelow contends that testimony concerning the tag number, his presence in the automobile and the name on the driver's license was submitted to the jury in violation of Miranda. We disagree. Our case of Jennings v. United States, 5 Cir. 1968, 391 F.2d 512, is controlling. In Jennings, a Fort Pierce, Florida police officer was informed by someone (reliability not stated) that a certain 1962 Chevrolet Impala with a red stripe painted on it and bearing South Carolina license number E13-133, 1966 was a stolen car. He set out to look for it, and had spotted it near a beer and wine joint called "Across the Ditch" when Jacob Jennings came out of the establishment and asked "What do you want? What's the matter?" When asked by the officer if he was the driver of the car, Jennings said "Yes", and when the officer asked if he had a driver's license he also said "Yes", and handed the officer a South Carolina driver's license bearing the name James Campbell, and describing a man 5 feet 11 inches in height and 49 years of age. Jennings appeared to the officer to be in his twenties and was much shorter than five eleven, so the officer asked for the registration for the car. This was produced and was also in the name of James Campbell, describing the car as a 1962 Chevrolet, South Carolina license number E13-133. The officer then arrested Jennings but told him he would not question him further until he got to the police station. In disposing of a contention that this testimony was custodial interrogation, inadmissible under Miranda, supra, we said:

"It is now urged that before officer Blakely could ask Jennings his name or take his driver\'s license or ask for the automobile registration papers he was required to warn him of his constitutional rights in the manner required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). * * *

"We are of the opinion that under the circumstances of this case Miranda did not require a warning from the officer prior to the arrest. This was not custodial interrogation.

"1 The appellant, a

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