Rodgers v. United States
Citation | 402 F.2d 830 |
Decision Date | 28 October 1968 |
Docket Number | No. 21543.,21543. |
Parties | William Joseph RODGERS, Appellant, v. UNITED STATES of America, Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Byron M. Meredith (argued), Reno, Nev., for appellant.
Robert S. Linnell (argued), Asst. U. S. Atty., Joseph L. Ward, U. S. Atty., Las Vegas, Nev., for appellee.
Before JOHNSEN*, BARNES and DUNIWAY, Circuit Judges.
Rodgers appeals from a judgment of conviction, upon the verdict of a jury, of a violation of the Dyer Act, 18 U.S.C. § 2313, interstate transportation of a stolen motor vehicle, knowing the same to have been stolen. We reverse.
Rodgers was arrested in Colorado where he was brought before a United States Commissioner. The record shows full compliance with the requirements of Rule 40(b), F.R.Crim.P. Rodgers waived hearing and the appointment of counsel. A warrant of removal issued in due course. It is now urged that the Colorado Commissioner should have gone farther and made sure that Rodgers fully understood what he was doing. We do not decide this question. For all that appears in the record, the Commissioner did what Rodgers says that he should have done. The record does not support the contention. No decided case that we know of supports it either.
Nothing in the record supports the assertions now made that counsel had no basis on which to exercise peremptory challenges because counsel was not permitted to examine each juror individually. Pursuant to Rule 24(a), F.R.Crim.P., the trial judge conducted the voir dire examination of the jury. When he finished, he asked if Rodgers' counsel had any questions that he wanted the judge to ask "as to the jurors' qualifications." The answer was "no." Counsel did not ask leave to put any question to any juror himself and did not object to any of the judge's questions or to the procedure. We have previously refused to hold that the procedure authorized by Rule 24(a) is unconstitutional because it permits the judge to conduct the voir dire examination. Hamer v. United States, 9 Cir., 1958, 259 F.2d 274; Fredrick v. United States, 9 Cir., 1947, 163 F.2d 536.
It is claimed that the evidence is not sufficient to support the verdict. No motion for judgment of acquittal under Rule 29, F.R.Crim.P., or for a new trial under Rule 33 was made. We could treat the claim as waived, but need not do so. Beckett v. United States, 9 Cir., 1967, 379 F.2d 863; Robbins v. United States, 9 Cir., 1965, 345 F.2d 930, 932.
The trial was brief. Hilary E. Bishop of Bethany, Oklahoma, testified that early in May, 1966, he owned a Chevrolet '66 Caprice automobile. He went away on a business trip and left it with his wife Clara. He gave no one but his wife permission to use it. He bought the car, new, in December, 1965, from a Yukon, Oklahoma, Chevrolet dealer. He identified certified and exemplified copies of an application for a certificate of title to the car (exhibit 2) and of the face of a certificate of title (exhibit 1). These were received in evidence without objection. Clara Bishop testified that while Hilary was away the car was put by her in a garage on a Saturday, and that she discovered two or three days later that it was gone. No one had her permission to use it.
Roy S. Vezeris testified that he was sales manager of Gaudin Motor Company in Las Vegas. On May 11, Rodgers sold the Chevrolet car to him.
The prosecutor then had him identify the "title" (exhibit 3) and state that the identification number on it was the same as that of the car. This title was offered in evidence by the prosecutor and received without objection. The government rested. Rodgers did not take the stand or offer any evidence.
In his opening argument, the prosecutor made the following statements:
In its instructions, the court emphasized and re-emphasized the inferences arising from unexplained possession:
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