Holden v. United States

• Decision Date: 25 April 1968
• Docket Number: No. 7012.,7012.
• Citation: 393 F.2d 276
• Parties: Frank Leslie HOLDEN, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

393 F.2d 276 (1968)

Frank Leslie HOLDEN, Defendant, Appellant, v. UNITED STATES of America, Appellee.

No. 7012.

United States Court of Appeals First Circuit.

Heard April 3, 1968.

Decided April 25, 1968.

Thomas G. Dignan, Jr., Boston, Mass., by appointment of the Court, for appellant.

Edward F. Harrington, Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

This appeal from a conviction under the Dyer Act, 18 U.S.C. § 2312, raises several questions, all save one of which may be disposed of briefly.

Defendant Holden first urges that there was insufficient evidence to support his conviction, and that his motion for judgment of acquittal should therefore have been granted. This assertion rests on the allegation that, although there was ample testimony that it was he who stole the car in Vermont, his subsequent association with it in Massachusetts was not sufficient to establish the "possession" required to give rise to an inference of Dyer Act violation. We note first that proof of possession alone is sufficient to support inferences not only of interstate transportation, but also that such transportation was made with knowledge that the vehicle was stolen. E. g., Beufve v. United States, 5 Cir., 1967, 374 F.2d 123, cert. denied 389 U.S. 881, 88 S.Ct. 122, 19 L.Ed.2d 175; Reese v. United States, 10 Cir., 1965, 341 F.2d 90; cf. Freije v. United States, 1 Cir., 1967, 386 F.2d 408. Here the only inference that need be drawn was that, having stolen the car, defendant transported it to Massachusetts. There was no testimony that Holden was ever seen driving the car in Massachusetts. However, he was seen in the car by the witness who purchased it, and, more important, the witness testified that Ladeau, the co-defendant, stated he could not sell the car without defendant's approval (the two purportedly being brothers in the "garage business" in Vermont) and that defendant completed and signed, along with Ladeau, the bill of sale. This is sufficient evidence of possession to support the conviction.

Defendant next contends that his conviction should be reversed under our rule in Desmond v. United States, 1 Cir., 1965, 345 F.2d 225, because the prosecuting attorney made statements in argument that amounted to a comment upon the defendant's failure to take the stand. This he rests upon the government's statement that "it is beyond dispute" that the car stolen in Vermont was the same as that sold in Massachusetts.

We have no intention of departing from our decision in Desmond. However, this does not mean that every characterization of the evidence made in the course of advocacy is to be interpreted as a comment upon the defendant's failure to take the stand. In a fashion, every remark of counsel that evidence is clear or persuasive is, and must be, made against the tacitly known background that the defendant had not testified. This cannot mean that the government is to be forbidden to praise its case, or to refer to its compelling character. It would have been better if some expression other than "beyond dispute" had been used. Every portion of the government's case is disputed, whether the defendant takes the stand or not. DeCecco v. United States, 1 Cir., 1964, 338 F.2d 797. The court, however, properly charged the jury, precisely pointing this out. We find no prejudicial error.

The denial of defendant's motion for severance we mention only to observe that it calls for no comment.

A more troublesome matter remains. Immediately prior to trial defendant filed a motion for a writ of habeas corpus ad testificandum to obtain the presence of a certain witness, one Young. He accompanied it with an affidavit of his own, that what Young would testify to was material to his defense, and an affidavit by Young that he was willing to testify and that what he would say would be helpful to the defendant. What this testimony would be, however, was not disclosed. The court conducted a hearing, at which it appeared that what the defendant really sought was a subpoena under F.R.Crim.P. 17(b). Having satisfied itself as to defendant's indigency, the court stated it would hear defendant, who was for this limited purpose appearing pro se, on the merits of his motion. The defendant first replied that the motion "speaks for itself," but on learning that the court wished to satisfy itself that Young's testimony would in fact be...