Newman v. United States

• Decision Date: 26 June 1964
• Docket Number: No. 17467.,17467.
• Citation: 331 F.2d 968
• Parties: Joseph Francis NEWMAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

331 F.2d 968 (1964)

Joseph Francis NEWMAN, Appellant, v. UNITED STATES of America, Appellee.

No. 17467.

United States Court of Appeals Eighth Circuit.

May 20, 1964.

Rehearing Denied June 26, 1964.

Eugene A. Matthews, Jr., of Wootton, Land & Matthews, Hot Springs, Ark., made argument for appellant and filed typewritten brief.

Charles M. Conway, U. S. Atty., Fort Smith, Ark., made argument for appellee and filed printed brief.

Before VAN OOSTERHOUT, RIDGE and MEHAFFY, Circuit Judges.

MEHAFFY, Circuit Judge.

Defendant, Joseph Francis Newman, has appealed a jury verdict finding him guilty of six counts of an indictment in which he was charged with one count of conspiring with eight, named, co-defendants, as proscribed by 18 U.S.C.A. § 371, to violate the federal automobile theft statutes, 18 U.S.C.A. §§ 2312 and 2313, and five counts alleging separate, substantive offenses under § 2312 for stealing and transporting automobiles in interstate commerce.¹

Newman received a sentence of three years imprisonment on the conspiracy charge and two years on each of the remaining five substantive counts ordered to run concurrently inter se, but consecutively with the three year sentence for conspiracy, making a total sentence of five years.

Prior to and during the course of trial, six co-defendants being tried jointly as co-conspirators with appellant pleaded guilty, while another defendant was granted a separate trial. Thus, of the original eight defendants, only appellant Newman and defendant Cason were convicted in the instant proceeding below, and the latter has abandoned appeal of his conviction.

The alleged conspiracy involved an interstate, automobile, theft ring headquartered in Hot Springs, Arkansas. Its modus operandi followed a pattern. In most instances the conspirators operating in Arkansas would obtain a wrecked automobile from a salvage company in Hot Springs, procuring the vehicle's title papers from an insurance company or from the original owner. The Hot Springs organization then instructed one of its confederates in the Akron, Ohio area to steal a vehicle identical with the make, model, and color of the procured wrecked vehicle. The stolen vehicle would be driven by a conspirator from Akron to Hot Springs where, after transferring the serial number plate of the wrecked vehicle to the stolen vehicle, the latter was sold by one of the defendants who operated a used car lot to a legitimate dealer in the area by what appeared to be a bona fide transfer of title. The jury found that appellant had participated in the overall conspiracy and had transported vehicles stolen in Akron, Ohio on five separate occasions to Hot Springs, Arkansas.

Appellant relies on three alleged instances of prejudicial error occurring during the trial below as bases for reversal of his conviction. Firstly, he maintains that the district judge erroneously instructed the jury on the conspiracy charge by prohibiting them from considering acts done or statements made by any of the alleged conspirators subsequent to April 10, 1963, the date the indictment was returned, as evidence of appellant's participation in the alleged conspiracy. Appellant argues that the termination of the conspiracy was a factual question for the jury's determination which the court's instruction preempted from their consideration by fixing its termination coextensive with return of the indictment. The first paragraph of the challenged instruction on conspiracy merely paraphrases the well settled rule that declarations of a co-conspirator are admissible as substantive evidence of guilt of an alleged conspirator when made in furtherance of an existing conspiracy. Logan v. United States, 144 U.S. 263, 309, 12 S.Ct. 617, 36 L.Ed. 429 (1892); Lutwak v. United States, 344 U.S. 604, 617-618, 73 S.Ct. 481, 97 L.Ed. 593 (1953). Appellant's argument goes to the last paragraph of the instruction which in effect precludes the jury from considering as evidence of a conspiracy against appellant any statements made by an accomplice subsequent to April 10, 1963, the date the indictment was returned.

We do not believe the court's instruction on conspiracy led the jury into error. Contrary to appellant's contention here and the government's allegation in its original indictment, the instruction did not direct the jury that they must find the conspiracy ended upon return of the indictment. The instruction simply set a time limit beyond which the jury could not find the conspiracy existed insofar as it related to the admissibility of any acts done or statements made by alleged co-conspirators in proof of defendant's guilt. Theoretically, the jury could have, within the bounds of the instruction, found that the conspiracy in fact ended prior to return of the indictment and before the statements, giving vent to the alleged prejudice under the challenged instruction, were made to the Federal Bureau of Investigation on February 14 and 15, 1963 by the original co-defendants Woody and Imhoff, who also testified for the government at length implicating defendant Newman in the conspiracy. The evidence indicated that the conspiracy existed subsequent to February 7, 1963, for it was stipulated during trial that one of the illegally transported automobiles was stolen in Ohio on that date. This car was not recovered until sometime thereafter from a parking lot in Hot Springs. Nevertheless, assuming arguendo, the conspiracy in fact terminated upon the arrest of defendant Imhoff on February 14 before either his statement or that of Woody was made to the F.B.I., their statements were used only for the limited purposes of impeaching the credibility of these two government witnesses by the defense attorney on his cross-examination made possible by the Jencks Act (18 U.S.C.A. § 3500) or by the government on redirect examination under the doctrine of "verbal completeness". Therefore, any error in the court's instruction on conspiracy which may have failed to fully explain the jury's prerogative to determine from the evidence the date the conspiracy ended was cured by the restricted use of the statements, not as evidence of defendant's involvement in the alleged conspiracy, but only to fairly test the credibility of the affiants by putting before the jury a complete picture of their prior consistent as well as inconsistent remarks. Speaking through the late Judge Sanborn, this Court held in Affronti v. United States, 145 F.2d 3, 7 (8th Cir. 1944):

"(T)hat if some portions of a statement made by a witness are used on cross-examination to impeach him, other portions of the statement which are relevant to the subject matter about which he was cross-examined may be introduced in evidence to meet the force of the impeachment."

We are not alone in our belief that the government is entitled to use on redirect examination other portions of its witnesses' prior statements first referred to by the defense upon cross-examination in order to place in context the witness' prior remarks under the rule of "verbal completeness". See United States v. Agueci, 310 F.2d 817 (2nd Cir. 1962), cert. denied 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963); United States v. Lev, 276 F.2d 605 (2nd Cir. 1960), cert. denied 363 U.S. 812, 80 S.Ct. 1248, 4 L. Ed.2d 1153 (1960); Short v. United States, 271 F.2d 73 (9th Cir. 1959). Conceding their inadmissibility for any purpose, we would still be hard pressed to reverse on the basis the impact of their erroneous consideration by the jury as a result of the incomplete instruction on conspiracy prejudiced the defendant, in view of the respectable authority establishing the admissibility of these two witnesses' direct testimony concerning the operation of the conspiracy, its members, and the key role the defendant played in its unlawful execution. E. g., Smith v. United States, 224 F.2d 58, 60 (5th Cir. 1955), cert. denied 350 U.S. 885, 76 S.Ct. 138, 100 L.Ed. 780 (1955).

In short, the conspiracy instruction did not confuse the jury in their consideration of the statements made by an accomplice as possible substantive evidence of appellant's guilt. The statements were properly admitted bearing on the limited question of credibility, and, therefore, whether the conspiracy instruction forewarned the jury their use as substantive evidence of appellant's guilt was proper only if given before a finding the conspiracy was still in existence is unimportant. We have canvassed the court's entire charge and note the jury was admonished membership in a conspiracy must be established by evidence of the defendant's own conduct, what he himself did or said — not what others did or said, that a witness' testimony might be discredited or impeached by proof of conviction for a felony and that testimony of an accomplice should be considered with care and caution. The charge in its entirety is predicated upon an accurate appraisal of the applicable law, and is free of prejudicial error. See e. g., Anderson v. United States, 262 F.2d 764, 773 (8th Cir. 1959), cert. denied 360 U.S. 929, 79 S.Ct. 1446, 3 L.Ed.2d 1543 (1959), reh. denied 361 U.S. 855, 80 S.Ct. 43, 4 L.Ed.2d 94 (1959).

Corollary to argument that the court's instruction on conspiracy erroneously permitted the jury to consider the questioned statements as substantive evidence of appellant's guilt, appellant also maintains that if the statements were utilized only for credibility purposes, the court erred in failing to instruct the jury to this effect. We recognize that a cautionary instruction limiting consideration of the statements to issues of credibility would have been proper under the circumstances. However, this is not to say, that failure to so instruct constituted prejudicial error. We recently reaffirmed this Circuit's understanding of Rules 30 and 52, Fed.R.Crim.P., in finding that absent a request for a specific charge, a reversal is justified only if the failure to instruct represents "a basic and highly...