Moody v. United States

• Decision Date: 10 May 1967
• Docket Number: No. 23588.,23588.
• Parties: Patricia Louise MOODY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

377 F.2d 175 (1967)

Patricia Louise MOODY, Appellant, v. UNITED STATES of America, Appellee.

No. 23588.

United States Court of Appeals Fifth Circuit.

May 10, 1967.

John J. Sullivan, Savannah, Ga., for appellant.

Donald H. Fraser, U. S. Atty., Savannah, Ga., for appellee.

Before BROWN, GOLDBERG and AINSWORTH, Circuit Judges.

GOLDBERG, Circuit Judge:

Appellant, Patricia L. Moody, and one co-defendant, her husband, were convicted of a violation of the Dyer Act, 18 U.S.C. § 2312, to-wit, that they transported a stolen 1959 Ford automobile from Chatham County, Georgia, to Jackson County, Mississippi, knowing the same to have been stolen.¹ The third co-defendant, James Marshall Johnson, was granted a Motion for Judgment of Acquittal at the conclusion of the evidence.

The car, with the owner's title papers and golf clubs in it, was stolen in Savannah, Georgia, either February 1st or 2nd, 1963. Prior thereto, on January 31st, appellant applied for license tags and registered a similar car, using a spurious bill of sale which stated that the car had been bought on that same day from one Richard Jones of Alma, Georgia.² The testimony concerning acquisition of the vehicle was, to say the least, conflicting. J. H. Applegate, the F.B.I. agent who first investigated the suspected Dyer Act violation, testified that appellant gave him the fictitious bill of sale and told him that her husband had obtained the car in Savannah some time early in 1963 and that she did not know where he obtained it, although it was registered in her name. Later, according to the testimony of another F.B.I. agent, appellant said that while separated from her husband, she had contacted an individual advertising a 1959 Ford, knowing that her husband was interested in the car, and that she referred this person to her husband who purchased the automobile. Appellant's husband gave a statement in which he pled guilty to transporting a stolen vehicle, and alleged that his wife helped him prepare the fictitious bill of sale two days prior to the actual theft, that she suggested that he remove the serial plate from a wrecked 1959 Ford to use on the car which they would later steal, and that she accompanied him while they drove around looking for a 1959 Ford to match the description on the bill of sale. At trial, however, he controverted his prior statement and said that appellant had no knowledge that the car was stolen and that he had told her he was buying the car.³

In any case, shortly after the theft of the automobile, appellant, her husband, and James Marshall Johnson, who was acquitted, made a trip in the car from Savannah, Georgia, to Pascagoula, Mississippi, going to the home of relatives there, and later returning to Savannah. The automobile was abandoned in Brooket, Georgia, and was recovered by the sheriff of Bulloch County, Georgia, in connection with a bank robbery. The Dyer Act investigation followed. After the car was impounded, appellant tried to have it released to her but was unsuccessful and settled for removing her personal belongings.

At trial, appellant's motion for acquittal was denied, whereupon the case was submitted to the jury, who returned a verdict of guilty. Appellant filed a timely motion for new trial, which was denied, and this appeal is taken therefrom.

For a reversal of her conviction, appellant relies on four points of error: (1) that the evidence is insufficient to sustain her conviction; (2) that the court, in its charge to the jury, made prejudicial comments bearing on appellant's guilt; (3) that the court erroneously admitted the fictitious bill of sale into evidence; and (4) that a golf club bearing the automobile owner's name and found in the car was wrongly admitted.

I. Insufficiency of the evidence.

"The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 1941, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704, * * *. In reviewing the case, moreover, this Court must assume that the jury resolved conflicting evidence in such a way as to sustain the verdict and must accord the government the benefit of all reasonable inferences which may be drawn from the proven facts. Harding v. United States, 8 Cir. 1964, 337 F.2d 254; Rua v. United States, 5 Cir. 1963, 321 F.2d 140; Riggs v. United States, 5 Cir. 1960, 280 F.2d 949.

In this case, the government had the burden of proving (1) that the car was stolen, (2) that appellant transported it in interstate commerce, and (3) that she had the requisite knowledge. The evidence, we believe, amply supports the guilty verdict.

The undisputed evidence shows that the car was stolen in Savannah, Georgia, and that appellant rode in it from Savannah to Pascagoula, Mississippi, and back again to Savannah. As to appellant's knowledge that the car was stolen, the jury would have been justified in finding her a party to the whole scheme. She admitted registering the car with a fictitious bill of sale, which her husband, in his earlier statement, alleged she helped to prepare. Moreover, her conflicting stories concerning her husband's manner of obtaining the vehicle and her husband's earlier statement that she had suggested he switch serial plates and that she was with him when he stole the car are substantial facts from which the jury could reasonably conclude that she knew the car was stolen. This Court has said, in a Dyer Act prosecution, that "possession itself of the stolen vehicle, under proper circumstances, may be sufficient for the jury to draw the inference of guilty knowledge." Barfield v. United States, 5 Cir. 1956, 229 F.2d 936, 939. Parenthesis added. See also Pilgrim v. United States, 5 Cir. 1959, 266 F.2d 486, 488; Schwachter v. United States, 6 Cir. 1956, 237 F.2d 640, 643. Appellant does not quarrel with this rule, but she seems to contend that her explanation and protestations of innocence coupled with her husband's testimony at trial that she did not have the requisite knowledge had the effect of overriding the effects of possession. However, inconsistent statements made by her and her husband cast doubt upon their explanations and their credibility; and it is particularly within the province of the jury to believe or disbelieve her claims of innocence. There was substantial evidence from which the jury could and obviously did infer that she transported the vehicle with knowledge of its stolen character.

II. Prejudicial comments.

Appellant contends that the court below, in its charge, prejudicially influenced the jury on the issue of her guilt and erred in not granting a mistrial. The following language, which refers to the Mississippi relative whom appellant, her husband, and Johnson visited in Pascagoula, forms the basis of appellant's contention.

The Charge of the Court.

"Now, Members of the Jury, there is one thing that struck me, and that was this old gentleman. They came to stay with him. He was not the kind of a person you would read about in the New York Times, or some of the New York papers, living in Mississippi. Here he comes all the way back over here and brings that stick. (golf club) He wasn\'t going to countenance anybody coming into his house with stolen goods. He came all the way back here from Mississippi to testify against his own kinsman, because he knew he was wrong. A man that does that is a real man. Now, three of them came up to his house there way down in the Delta in Mississippi, where they say all these unjust people live down there, I mean what the newspapers say about them in these present times. Now, here is a man — I would like to see some of them up there do that, coming all the way over here with a golf stick to incriminate and help convict and make a felon of his own kinsman. I thought that was good. I just looked at that old man and I said `Well, old man, you are a good man to do that.\' He just didn\'t countenance anything like that. He was law abiding and I think that was great on his part." parenthesis and emphasis added

A motion for mistrial followed, and the Court stated that he "didn't say the defendants were guilty or innocent."⁴ We agree with appellant, however, that these words were at most a mild antiseptic with no curative effect, and reverse because of the prejudicial comments.

A judge is not an automaton. He sees, he hears, and he is not commanded to be silent or sterile in reaction. He must, however, exercise care lest he be overtly and overly reactive, thus communicating to the jury prejudicial partisanship. Federal court decisions recognize the power of the judge, within limits, to comment on the evidence and to express opinions. See Quercia v. United States, 1933, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321; Ray v. United States, 8 Cir. 1966, 367 F.2d 258; Woodring v. United States, 8 Cir. 1963, 311 F.2d 417, cert. denied 373 U.S. 913, 83 S.Ct. 1304, 10 L.Ed.2d 414; Lott v. United States, 5 Cir. 1956, 230 F.2d 915; cert. denied 351 U.S. 953, 76 S.Ct. 848, 100 L.Ed. 1477; Texarkana Bus Co. v. Baker, 5 Cir. 1944, 142 F.2d 491; 9 Wigmore, Evidence § 2551 (3d ed. 1940). In Hellman v. United States, 5 Cir. 1964, 339 F.2d 36, 37, a tax case where appellant alleged, inter alia, that the trial court excessively questioned witnesses and conveyed an impression to the jury that he was prejudiced against the witness, this Court, speaking through Judge Gewin, said:

"While the trial judge in a criminal case must be abundantly careful to refrain from becoming an advocate for the Government or from indicating a dislike or disbelief of any witness, particularly the defendant, he also has the prerogative — often the duty — to insure that the facts are accurately brought out."

This privilege, however, has been severely restricted, and the federal judge is under strict duty to direct the jury clearly that they are the sole judges of fact and are not bound by the judge's comments. Questions of fact...