Orser v. United States, 22919

• Decision Date: 23 June 1966
• Docket Number: No. 22919,22900.,22919
• Citation: 362 F.2d 580
• Parties: Charles Edwin ORSER, Appellant, v. UNITED STATES of America, Appellee. Johnny Lee PARKER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

362 F.2d 580 (1966)

Charles Edwin ORSER, Appellant, v. UNITED STATES of America, Appellee.

Johnny Lee PARKER, Appellant, v. UNITED STATES of America, Appellee.

Nos. 22919, 22900.

United States Court of Appeals Fifth Circuit.

May 6, 1966.

Rehearing Denied June 23, 1966.

No. 22919:

Donald G. Nichols, Jacksonville, Fla., for Orser.

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

No. 22900:

Adam G. Adams, II, Jacksonville, Fla., for Parker.

Thomas M. Baumer, Asst. U. S. Atty., Jacksonville, Fla., for appellee.

Before PHILLIPS,^* RIVES, and COLEMAN, Circuit Judges.

Rehearing Denied in No. 22900. June 23, 1966.

COLEMAN, Circuit Judge:

Orser and Parker were charged in the same indictment, composed of two counts. A severance was granted Parker. They were each convicted after separate jury trials and their appeals were heard together at the recent session of this Court in Jacksonville. We therefore decide both cases in one opinion.

As to Orser, the government, being required to elect between the two counts, chose to stand on count 1, charging transportation of a stolen Cadillac automobile in interstate commerce from Jekyll Island, Georgia, to Jacksonville, Florida, in violation of Title 18, United States Code, Section 2312.

As to Parker, the trial court granted a directed verdict of not guilty as to count 1. The jury found him guilty on count 2, which charged receiving and concealing the same motor vehicle in violation of Title 18, Section 2312, United States Code.

I ORSER'S APPEAL

Orser was tried first. The prosecution presented strong evidence of guilt. The defendant, represented by counsel, offered no evidence in his own behalf, and the record shows that the jury returned its verdict after deliberating for fifteen minutes. Upon careful consideration we can see no justification for a reversal of this conviction. Accordingly, it must be affirmed.

Orser attacks the Judge's charge to the jury that his unexplained possession of a recently stolen automobile was a circumstance from which the jury could infer his guilt. In support of his position, he cites Bollenbach v. United States, (1946), 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350.

For future reference, the carefully drawn charge, which we hereby approve, will be set forth in the margin.¹

In Bollenbach the Supreme Court held that it was reversible error to charge the jury that they should presume guilt under the federal statute from possession of recently stolen securities. After being out for seven hours, the jury reported that it was "hopelessly deadlocked" as to the defendant's responsibility for the interstate transportation of the securities. One of the jurors asked, "Can any act of conspiracy be performed after the crime is committed?" Without answering this question, the trial judge for the first time charged the jury that unexplained possession "raises a presumption that the possessor was the thief." Since the jury returned a guilty verdict within five minutes it was clear that they took this charge on presumption as an answer to their question.

The error attacked in Bollenbach is a charge that leaves the jury with the idea that they must assume guilt unless the defendant proves to the contrary. Bollenbach, therefore, dealt with the layman's understanding of the term "presumption" under the circumstances of that case.

It is clear that in the case at bar Judge Allgood's charge told the jury that they must decide as the triers of fact whether an inference of guilt should be drawn from Orser's unexplained possession. Moreover, at all points his charge was couched in terms of "inference" and not "presumption". Although laymen, as well as judges, may be confused when asked to distinguish inferences from presumptions, Judge Allgood's charge, taken in context, makes clear that the jury need only consider this as circumstantial evidence for whatever value it may have.

In Barfield v. United States, 229 F.2d 936 at 939 (5 Cir. 1956), this Court said:

"This brings us then to the issue of Appellant\'s knowledge that such transportation was of a stolen vehicle. Possession itself, under proper circumstances, may be sufficient for the jury to draw the inference of guilty knowledge. Considering that it was for the jury to accept or reject his explanation the main theme of which was that he was a hitchhiker only, we hold that there was a basis for the inference here."

In that case the trial judge had charged in terms of presumption. We said (229 F.2d at 940):

"We think too, that the use of the words `presumption\' and `presume\' in the instruction was misleading. What the court was dealing with was an inference rather than a presumption. * * *

"* * * The use of the word `inference\' has had the approval of this court in cases where like questions were presented as the one which is now before us.7

"7. Levi v. United States, 5 Cir., 1934, 71 F.2d 353; Janow v. United States, 5 Cir., 1944, 141 F.2d 1017; Yielding v. United States, 5 Cir., 1949, 173 F.2d 46."

See also Herman v. United States, 289 F.2d 362 (5 Cir., 1961).

Thus, this Circuit has consistently approved charges in terms of "inference" while disapproving charges in terms of presumption. We think Judge Allgood's charge was a model charge. Similar charges have been consistently upheld as proper. United States v. Tremont, 351 F.2d 144, at 147 (6 Cir., 1965); McIntosh v. United States, 341 F.2d 448, at 456, (8 Cir., 1965); cert. den., 381 U.S. 947, 85 S.Ct. 1778, 14 L.Ed.2d 711; Harding v. United States, 337 F.2d 254, at 257 (8 Cir., 1964); Travers v. United States, 118 U.S.App.D.C. 276, 335 F.2d 698 at 700-702 (1964). See also Manual on Jury Instructions — Criminal, 36 F.R.D. 457, at 633-664 (1963).

The Court expresses its appreciation to Donald G. Nichols, Esq., of the Jacksonville Bar, court appointed counsel, for his professional efforts in behalf of Orser.

II PARKER'S APPEAL

As to Parker, the jury verdict indicates the following facts for which there is support in the evidence:

On the morning of April 30, 1965, the Cadillac automobile of Mr. Obie T. Brewer was missing from the motel parking lot at Jekyll Island, Georgia, where he had left it the previous evening at about 11:30 o'clock. Mr. Brewer was the only person having a set of keys to the car and he had given no one permission to move it. The state highway patrol was notified. The next day he was advised of the recovery of his automobile and went to Jacksonville, Florida, where it was delivered to him at the police parking lot. The car was undamaged, and Mr. Brewer did not know how far it had been driven since its disappearance.

In Jacksonville, on April 30, Charles Webber, government informer and witness, received a telephone call from Charles Edwin Orser. Webber went to Orser's house. When he got there Orser came out and they talked. Orser then went back in the house. Webber saw Orser talking to two men in the house. A few minutes later Orser, the appellant, and an unidentified man came out.

Orser went over to his truck and removed a ring of keys and handed them to Parker. Parker removed one key and returned the others to Orser. Orser and Webber then departed in Webber's car. Appellant and the other man "were to follow" to a bowling alley in Orser's truck. When they got there Webber and Orser drove off "to make a phone call". Parker and the other man remained in the truck at the bowling alley. Webber telephoned Zigrossi "for him to meet us * * * to pick up the car and make an arrest". Zigrossi was an undercover agent of the F.B.I., using the alias "Bud Dixon".

After telephoning Zigrossi, Orser and Webber returned to the bowling alley. Parker then got into Webber's car with Webber and Orser. Webber drove them to the parking lot of the Thunderbird Restaurant, where Parker got out of Webber's car, walked over to a "gray Cadillac", got in and cranked it up. Parker then drove the Cadillac behind Webber and Orser to another parking lot. When they got there, Webber parked his car up against the building and appellant parked the Cadillac next to the street which was well lighted. Parker then, pursuant to Webber's instructions, got out of the Cadillac and got in Webber's car.

A few minutes later, Zigrossi came around the corner of the building and Webber and Orser got out of the car to talk with Zigrossi. Webber testified that he introduced Zigrossi to Orser as "Bud Dixon". Webber and Zigrossi both testified to conversations between Zigrossi and Orser to the effect that Orser had gotten the Cadillac in Georgia, that he could get all the clean "Cads" and Thunderbirds Zigrossi could use, and other incriminating remarks. During the course of these conversations Parker was sitting in Webber's car about nine feet away and did not say anything. His name was not mentioned. Parker made no comment on anything that was said, but merely sat in the car. Neither Webber nor Zigrossi were able to say whether Parker was able to hear and/or understand anything that was being said.

It was during the course of these conversations that, in the words of Webber, "two cars come up there pretty fast and a bunch of men got out with guns and arrested us". Zigrossi and Webber were taken to the Police Department with Orser and Parker. Of course, neither was placed in jail and no charges were preferred against them.

The record reveals that court appointed counsel, Adam G. Adams II, Esq., of the Jacksonville Bar, has represented Parker, in the court below and here, as ably and vigorously as if he had been rewarded with an unusually lucrative fee. This is in the best traditions of the American Bar, for which we tender counsel the compliments of the Court. He has raised every possible point in his client's behalf. He has cited no less than forty-one statutes, cases, and commentaries in support of his position. We feel, however, that five of the six points on appeal have...