Odom v. United States

• Decision Date: 02 May 1967
• Docket Number: No. 23464.,23464.
• Citation: 377 F.2d 853
• Parties: Eddie ODOM, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

377 F.2d 853 (1967)

Eddie ODOM, Appellant, v. UNITED STATES of America, Appellee.

No. 23464.

United States Court of Appeals Fifth Circuit.

May 2, 1967.

Jack F. Wayman, Jacksonville, Fla., for appellant.

William J. Hamilton, Jr., Asst. U. S. Atty., Edward F. Boardman, U. S. Atty., Middle District of Florida, Jacksonville, Fla., for appellee.

Before TUTTLE, Chief Judge, and BELL and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge.

Appellant, Eddie Odom, was charged and convicted by a jury of violating the Dyer Act, 18 U.S.C.A. § 2313¹ in that he received a 1964 Chevrolet convertible which vehicle was moving as, was part of, and which constituted interstate commerce between Lincolnwood, Illinois, and Duval County, Florida, knowing the same to have been stolen. Tried along with Odom, but acquitted by the jury, was the alleged transporter of the car, one Raymond Stewart.

The automobile, owned by Jerry Potter, was stolen sometime between 4:00 p. m. on September 17, 1964, and 2:00 a. m. on September 18, 1964, from its parking place in front of Potter's place of employment in Lincolnwood, Illinois. Potter testified that he had given no one permission to drive the car, that he reported the loss to the police, and that he next saw his car fifteen days later at the Chicago garage where it was being repaired.

Two police officers out of uniform and in unmarked cars, saw appellant Odom driving a car of similar description in Jacksonville, Florida, on the evening of October 2, 1964. One of the officers, a Sergeant Johnson who knew Odom, pulled alongside and said "Eddie, pull over," at which point Odom accelerated and a high speed chase ensued. After traversing about fifteen blocks, Odom lost control of the car, jumped out, and began to run, but was apprehended at gunpoint by Johnson, the appellant saying, "Okay, you got me." Odom was arrested on minor local charges and for investigation of auto theft, since the vehicle number matched that of Potter's car and there was a 1964 Georgia license in the trunk.

Special Agent Zigrossi of the Federal Bureau of Investigation testified that he interviewed Odom while the latter was in custody concerning the automobile. No federal charge was lodged against appellant at that time. Odom stated that he had obtained the Chevrolet from an unknown man at Al's Drive-in in Jacksonville on Friday night, October 2, 1964, that he was trying out the car with a view toward purchasing it for $800.00 cash, and that he had first seen the car and its seller on the evening of his arrest. Although he claimed that four persons were witnesses to the manner in which he had obtained possession of the car, he declined to identify them and never produced them at trial.

Odom's statement that he had first seen the car on the night of his arrest was contradicted by two persons. His cousin, Barbara Nell Eaton, testified that she had seen him in a Chevrolet of the same description at least one day prior to his arrest; and a truck driver, Ronald Meisenzahl, further refuted Odom's story. Meisenzahl claimed that he had met with Odom, a man named Jordan, and the co-defendant Stewart at the drive-in one night before Odom's arrest and that Stewart told them he had a car, "hid away." The car, a 1963 Chevrolet, was stuck in the mud, and Stewart said he feared it would be gone since it had been there for several days. According to Meisenzahl, the four men then traveled in Stewart's car to a rather remote area of a nearby county, where they pushed the car out of the mud. Odom drove the car back to Jacksonville and the next day prevailed upon Meisenzahl to allow him to use a license tag from Meisenzahl's car, since the Chevrolet had no tag on it. It was this license plate that was on the car when Odom was arrested. Meisenzahl further testified that he overheard Odom arguing with Stewart about wanting to keep the car, to which Stewart finally agreed. On the basis of this evidence, Odom was convicted of receiving a stolen car which had been transported interstate and which Odom knew to have been stolen.

For a reversal of his conviction, Odom relies on three points of error: (a) that that the evidence is insufficient to sustain his conviction; (b) that the verdicts returned by the jury were prejudicially inconsistent; and (c) that the representation afforded by his court-appointed counsel was so inadequate as to result in denial of "effective assistance" and deprivation of a fair and impartial trial vouchsafed by the constitution. We reject all three, but reverse because of testimonial error.

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. Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have excluded every hypothesis except guilt beyond a reasonable doubt. Rua v. United States, 5 Cir. 1963, 321 F.2d 140; Riggs v. United States, 5 Cir. 1960, 280 F.2d 949. In Judge Thornberry's words,

"* * * the standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences thereform failed to exclude every hypothesis other than guilt, but rather whether there was evidence from which the jury might reasonably so conclude." Williamson v. United States, 5 Cir. 1966, 365 F.2d 12, 14.

A recital of the facts of this case, assuming the jury's verdict rested on those findings which are capable of sustaining the verdict carries conviction. According to the indictment, the government had the burden of proving (1) that appellant received the described vehicle; (2) that such vehicle was moving as interstate commerce at the time it was received; (3) that it had been stolen, and (4) that appellant had the requisite knowledge.

Appellant does not contest the proof that he received the described automobile, since he was undisputedly in possession of the car when arrested in Jacksonville on October 3, 1964. He does, however, contend that the evidence is insufficient to prove that the automobile "was moving as, was a part of and which constituted interstate commerce" at the time he received it. This argument runs afoul of Corey v. United States, 9 Cir. 1962, 305 F.2d 232, where the defendant was prosecuted under the National Stolen Property Act (18 U.S.C.A. §§ 2314 and 2315) which contains a similarly worded interstate commerce provision. In that case, jewelry was stolen in Las Vegas, Nevada, and was shipped from Los Angeles, California, to San Jose, California, the defendant being charged with concealing the jewels, knowing them to be stolen. His contention was that the stolen property had come to rest in California prior to its transportation from Los Angeles to San Jose and that it was therefore no longer a part of interstate commerce. In rejecting this argument, the Court stressed the factual nature of such a determination.

"Once an interstate journey has begun, the question of whether it has come to an end is generally one of fact for the jury. The jury may find that property remained in interstate commerce although it has passed its initial stopping place within the state of destination. This is true despite proof that the goods traveled a circuitous route, or lack of proof as to the precise means of interstate transportation utilized. * * *

"It is immaterial that defendants\' concealment of the property was confined to a portion of the interstate journey which occurred wholly within a single state. And it would have been unnecessary to show that defendants knew that the goods were or had ever been in interstate commerce.

"* * * It is not necessary that the government\'s proof exclude every speculative possibility that the transportation may have been interrupted at some point within the state of destination in such a way as to bring the interstate journey to an end and render subsequent movement within that state local commerce. On the basis of the evidence in the present record and reasonable inferences therefrom the jury could have concluded that at the time the defendants concealed the jewelry it `constituted interstate commerce\' moving without substantial interruption from Las Vegas, Nevada to San Jose, California. The evidence was not insufficient merely because the jury might have drawn different inferences or arrived at a different conclusion." Id. at 236-237.

Schwachter v. United States, 6 Cir. 1956, 237 F.2d 640; Parsons v. United States, 5 Cir. 1951, 188 F.2d 878. See Pilgrim v. United States, 5 Cir. 1959, 266 F.2d 486. Judge Hutcheson has indicated the necessity for holding that interstate movement does not automatically cease when a stolen automobile comes momentarily to rest within a state. In Parsons, supra, a Dyer Act prosecution similar to the one at bar, he said:

"The rule contended for by appellant would nullify the statute. It would afford harborage, to receivers of interstate run cars as soon as the cars crossed a state line, if the evidence showed that the fence operations were to be confined to that state and failed to show that the receiver was selected by the runner before the run began." Id. 188 F.2d at 879.

Appellant next questions the sufficiency of evidence to support a finding that the automobile had in fact been stolen. The evidence presented, however, sustains the conclusion that the vehicle was stolen. Mr. Potter testified that the car was taken without his permission, that he reported its theft to the police, and that he next saw it being repaired in Chicago. Moreover, Stewart allegedly said the car was "hid away", and Meisenzahl testified that the car, without license tags, was in a remote place. The contradictory stories given as to the method of purchase and the small price to be paid for the vehicle are further indicia that the car was stolen and had retained...