Loftus v. United States, 4412.

• Decision Date: 26 March 1931
• Docket Number: No. 4412.,4412.
• Citation: 46 F.2d 841
• Parties: LOFTUS v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

46 F.2d 841 (1931)

LOFTUS v. UNITED STATES.

No. 4412.

Circuit Court of Appeals, Seventh Circuit.

January 15, 1931.

Rehearing Denied March 26, 1931.

O. J. C. Wray, of Chicago, Ill. (Frank E. Encell, of Chicago, Ill., of counsel), for appellant.

George E. Q. Johnson, U. S. Atty., and James C. Leaton, Asst. U. S. Atty., both of Chicago, Ill., and Albert Ward, Sp. Asst. to Atty. Gen.

Before ALSCHULER, SPARKS, and PAGE, Circuit Judges.

SPARKS, Circuit Judge.

Appellant, with Albert Hoffman, Barney Levin, Roy Mack, Guy Powell, George D. Cherones, Ted Baldwin, Leo Baldwin, Achilles Balalas, John Balalas, and Frank P. Bullard, was charged by grand jury indictment with having unlawfully, feloniously, and knowingly conspired, confederated, arranged, and agreed with Thomas Shea and other unknown persons, from on or about January 1, 1926, to and including July 1, 1929, to unlawfully transport stolen automobiles in interstate commerce, and to receive, conceal, store, barter, sell, and dispose of such stolen automobiles while thus moving in interstate commerce. This charge is hereinafter referred to as count 1.

Appellant was further charged by separate indictment with having, on or about January 16, 1927, unlawfully, feloniously, and knowingly received, concealed, stored, bartered, sold, and disposed of a Hudson automobile in Chicago while it was moving in and was a part of interstate commerce, and which had theretofore been stolen from one Dodd at Detroit, Mich. This charge is hereinafter referred to as count 2.

Appellant was further charged by indictment with having, on or about June 14, 1927, unlawfully, feloniously, and knowingly received, concealed, stored, bartered, sold, and disposed of another Hudson automobile in Chicago while it was moving in and was a part of interstate commerce, and which had been stolen from Arthur C. McCormick in Detroit, Mich. This charge is hereinafter referred to as count 3.

Arthur Hoffman, Barney Levin, Roy Mack, Guy Powell, and George D. Cherones, separately, were also charged with substantive offenses similar to those with which appellant was charged. On motion of all the defendants thus charged all of these causes were consolidated and tried at the same time. The two Baldwins and Bullard pleaded guilty; the two Balalases were not found; Levin, Mack, Powell, and Cherones were found not guilty; and appellant and Hoffman were found and adjudged guilty as charged, and from such judgment appellant presents this appeal.

The statute under which count 1 is drawn is as follows: "If two or more persons conspire * * * to commit any offense against the United States, * * * and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined * * *, or imprisoned * * *, or both." Section 88, title 18, USCA.

The offense which is charged to be the object of the conspiracy in count 1, and upon which counts 2 and 3 are based, is the violation of the National Motor Vehicle Theft Act, section 408, title 18, USCA, which provides that whoever shall transport or cause to be transported in interstate commerce a motor vehicle, knowing the same to have been stolen, shall be punished, etc. It further provides that whoever shall receive, conceal, store, barter, sell, or dispose of any motor vehicle moving as, or which is a part of, or which constitutes, interstate commerce, knowing the same to have been stolen, shall be punished, etc.

The evidence in this cause is voluminous, due to the fact that seven causes were consolidated and tried at the same time. It is not necessary to set forth a résumé of all the evidence which tends to prove that a conspiracy existed among certain of the defendants, other than appellant, to do the things as charged in the first count. The evidence shows beyond a reasonable doubt that the defendants Ted Baldwin and Leo Baldwin, and one Thomas Shea, who died before the filing of this count, not only conspired to do the things as charged, but at the time referred to in the count were, and had been, carrying out these plans on a very extensive scale. They were and had been moving stolen cars back and forth from Detroit to Chicago, and from other states to these cities, with great frequency. They had employed Louis Windt of Chicago to make, and he did make, dies and plates for them by means of which they could change the original numbers of the stolen engines and cars, and also the manufacturers' name plates, thus rendering detection very difficult.

Thomas Shea was shot to death at Detroit while riding with the Baldwin brothers in an automobile which had been stolen in Michigan. In his effects were found many keys which fit the locks of different makes of automobiles. Various automobile keys and dies for changing numbers were also found in possession of the Baldwins, and one of them told Windt they were using the dies on "hot" cars. Many forged bills of sale and assignments of title were introduced, most of which were proved to have been executed in whole or in part by Shea or one of the Baldwins.

The evidence shows that in 1927 these three men when in Chicago frequented a place known as the Uptown Fur Company, where they drank and played cards. This was a corporation of which appellant was president and a director from March, 1926, to November, 1927, during which time appellant says he visited the company's place of business every second day or so. The capital stock consisted of fifty shares, of which appellant owned forty-six, Alex Balalas two, and George D. Cherones two. In 1927 Achilles and John Balalas assisted their brother Alex in running the Uptown Fur Company. All three brothers at the time of the trial were in Europe. The evidence further shows that these Balalas brothers were friends and associates of Thomas Shea and Ted and Leo Baldwin. Appellant was one of the original incorporators of the Uptown Fur Company, and three stolen automobiles were traced to him; the defendant Cherones was also an original incorporator, and he received one stolen automobile; defendant Guy Powell was the attorney who incorporated the association, and he received a stolen automobile; and all of these automobiles last above referred to were traced to Ted and Leo Baldwin and Thomas Shea. These facts, with many others shown by the record, fully support the charge of conspiracy as to the Baldwins and Shea. This is evidently the conclusion at which the defendants Bullard and the Baldwins arrived, for each of them pleaded guilty.

The evidence upon which the government relies to connect appellant with this conspiracy is, in substance, as follows: On April 13, 1927, Mr. Mueller, of Detroit, Mich., became the owner of a Cadillac automobile bearing the original motor No. 146178. On August 13, 1927, this automobile was seen in front of the Twenty-Ninth District Police Station, known as Hudson Avenue Station, Chicago, and being the station in which appellant at that time worked. The machine was examined by Officer McDonald, and it was found that it bore the initials "J. W. L." in a light yellow paint on each door. It also bore a Hudson, Ill., 1927 license plate 264090, and the motor number had been changed to 146787. At this time Officer Cox asked appellant where he had obtained this car, and he replied that he had bought it about two or three months before from a man around Wilson and Broadway, and that he did not know anything about this man; but, upon being asked if it was the same fellow who had sold the cars to the Balalases, appellant replied that he guessed it was.

On August 17, 1927, Officers McDonald and Vaughan interviewed appellant. Vaughan said to appellant: "Lieutenant, you have a Cadillac coupé that bears your license. I understand it is your car. We would like to see that car." Appellant answered: "You can't see the car." "Why?" asked Vaughan. "I sold it yesterday," replied appellant. "You sold it! Tell us the party to whom you sold it. We will see the car," said Vaughan. "The party does not live here in Chicago." "Well," asked Vaughan, "where does he live?" "He lives out of town," answered appellant. "Where out of town? What's his name?" asked Vaughan. Appellant replied, "Dan Carlton. I don't know where he lives, but I will try to get hold of the car for you." "Well," said Vaughan, "Lieutenant, if you don't know now, or didn't know before, now you know it's a stolen car. What we want to do is to get hold of it. We have to trace that down." Appellant said, "I can't do anything for you at this time."

On the following morning appellant was interviewed by Chief Hughes. The chief said, "Lieutenant, where is this car that these officers are looking for?" Appellant replied, "Chief, I will tell you the story about the car. A fellow that I had seen with it around Wilson and Broadway for quite a while was going to Europe and didn't want to put it in storage. He said that he had a Cadillac coupé and another car and that he didn't want to put the Cadillac in storage where it would be railroaded, knocked and smashed. He also stated that he would like to have a nice place to put it and thought that I might be able to help him. I told him that I had a big garage in back of my home and that there was no reason why he couldn't put it there. I also assured him that nobody would bother it. He said that that was very nice and kind of me, and that in order to show me how much he appreciated it I could have the use of the car." Then the Chief asked, "Who is this man?" "A fellow I know as Dan Carlton," replied appellant. The Chief continued, "Where did this Dan Carlton live?" "At the Chelsea Hotel," answered appellant. "And you had the car?" "Oh! yes, Chief, I had the car three or four months." Cox then asked, "Why were your initials on the car?" "Oh!" replied appellant, "they were put on with only light paint." At this point Officer McDonald spoke, "License plates for a Hudson car were on that car." "That was in case of an...