U.S. v. Anderson

• Citation: 574 F.2d 1347
• Decision Date: 15 June 1978
• Docket Number: No. 77-5015,77-5015
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Newton Wilkerson ANDERSON, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1347

574 F.2d 1347

UNITED STATES of America, Plaintiff-Appellee, v. Newton Wilkerson ANDERSON, Jr., Defendant-Appellant.

No. 77-5015.

United States Court of Appeals, Fifth Circuit.

June 15, 1978.

Frank K. Martin, Columbus, Ga., for defendant-appellant.

D. L. Rampey, Jr., U. S. Atty., Joseph M. Lawless, Richard E. Nettum, Asst. U. S. Attys., Macon, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before COLEMAN, HILL and RUBIN, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Newton Wilkerson Anderson, Jr. appeals from a judgment of conviction entered on a jury verdict. Anderson and his co-defendant, who did not appeal, were tried on a one count indictment charging that they conspired with others to violate Title 18, United States Code, Section 2312, Transportation of stolen vehicles, and Title 18, United States Code, Section 2313, Sale or receipt of stolen vehicles. 18 U.S.C.A. § 371. Appellant Anderson was a used car dealer in La Grange, Georgia. Another used car dealer in La Grange, Joe Edward Roberts, who was a professional and personal friend of Anderson, introduced him to Charles Landon Gardner and Joseph Edward Rose. Anderson bought ten stolen vehicles from Gardner and Rose over a six week period during the term of the alleged conspiracy. The government successfully contended that Anderson knowingly participated in the conspiracy.

On this appeal, Anderson asserts: (1) the evidence against him at his trial was insufficient to find him guilty beyond a reasonable doubt, and (2) the district court erred by denying the defense motion to dismiss the indictment with prejudice because the government failed to comply with the discovery requirements of the district court's order, the Jencks Act, 18 U.S.C.A. § 3500, and the doctrine of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Finding no merit in these contentions, we affirm. ¹

I.

The initial contention Anderson raises on this appeal is that the evidence against him at trial was insufficient to sustain the jury's finding that he was guilty beyond a reasonable doubt. This contention cannot succeed.

Several recent decisions of this Court have reviewed proof of the essential elements of a criminal conspiracy in the context of a challenge to the sufficiency of the evidence. See, e. g., United States v. Evans, 572 F.2d 455 (5th Cir. 1978); United States v. Becker, 569 F.2d 951 (5th Cir. 1978); United States v. Caro, 569 F.2d 411 (5th Cir. 1978); United States v. Pruett, 551 F.2d 1365 (5th Cir. 1977). In United States v. Gutierrez, 559 F.2d 1278 (5th Cir. 1977), this Court listed the essential elements:

The essential elements of criminal conspiracy are an agreement to commit a crime followed by an overt act in furtherance of the agreement. There must be proof beyond reasonable doubt that a conspiracy existed, that the accused knew of it, and that the accused with that knowledge, voluntarily became a part of it. Id. at 1280 (citations omitted).

Anderson does not contend, nor could he successfully contend, that the existence of this conspiracy was not adequately established. Indeed, the existence of this conspiracy was clearly established through the testimony of several of its members, most notably Rose and Gardner, who testified in great detail concerning the various stages of this criminal enterprise, including: stealing cars, changing vehicle identification numbers, acquiring false paper work, interstate transportation, and ultimate resale. Rather than challenge the sufficiency of the proof of the conspiracy itself, Anderson urges that the evidence was insufficient to establish his knowing participation in the conspiracy. In conspiracy cases, the issue whether a particular defendant culpably participated in the conspiracy is a question of fact to be determined by the trier of fact. A finding that Anderson was a knowing and willing participant in the conspiracy was implicit in the jury's finding of guilt here. On appeal, we must affirm a jury's finding of guilt if our review of the record discloses at least slight evidence of a particular defendant's knowing participation in a conspiracy which has been established by other independent evidence. See generally, e. g., United States v. Bass, 562 F.2d 967 (5th Cir. 1977); United States v. Alvarez, 548 F.2d 542 (5th Cir. 1977); United States v. Morrow, 537 F.2d 120 (5th Cir. 1976); United States v. McGann, 431 F.2d 1104 (5th Cir. 1970), cert. denied sub nom., Pruitt v. United States, 401 U.S. 919, 91 S.Ct. 904, 27 L.Ed.2d 821 (1971); Lopez v. United States, 414 F.2d 909 (5th Cir. 1969). Here, viewing the evidence in the light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), there was more than slight evidence of Anderson's knowing and willing participation in the conspiracy.

It would serve no useful judicial purpose to recount the evidence in this one thousand one hundred and sixty-one page transcript. However, one illustrative example of the evidence of Anderson's knowing participation stands out. On or about February 3, 1976, Anderson obtained a 1973 Ford LTD from Gardner and Roberts. This was only the second or third car Anderson had bought from Gardner. At the time the car was delivered to Anderson, a discrepancy existed between the public vehicle identification number plate, the so-called VIN plate, on the car and the vehicle identification number appearing on the paper work. About two days after Anderson obtained the Ford LTD from Gardner and Roberts he was aware of the fact that the numbers on the paper work did not match the LTD's stamped metal VIN plate, for he called Roberts's wife to ask her if that was the reason she and her husband did not keep the car. The discrepancy was cleared up by changing the stamped metal number on the automobile so that it corresponded with the numbers shown on the paper work! While the car was on Anderson's lot, Gardner removed the dashboard, took the VIN plate from the dashboard, and carried the VIN plate and a scrap of paper bearing the vehicle identification number as it appeared on the paper work to Rose, who arranged to have the VIN plate changed to correspond with the paper work. Rose and Gardner then returned to Anderson's lot where they replaced the altered VIN plate in the dashboard of the car.

Whether or not Anderson actually saw Rose and Gardner change the VIN plate is immaterial, for the jury was fully warranted in concluding that Anderson was aware that the VIN plate on the automobile was being changed to conform to the paper work. Neither Rose nor Gardner had the Alabama paper work on the car when they made the change, so the jury could conclude that the paper work remained in Anderson's possession. Since the VIN plate eventually matched the unchanged paper work, the jury could conclude that Anderson knew the plate had been altered, which knowledge was more than enough to put him on notice early in February of 1976 that he was dealing with thieves who were selling him stolen automobiles. ²

In addition to the events surrounding the identification number discrepancy on the 1973 Ford LTD, there were numerous other factors and circumstances which warranted the jury's conclusion that Anderson was a purposive participant in the conspiracy to deal in stolen automobiles. After careful consideration of the alleged weaknesses in the proof asserted in Anderson's brief, the government's contentions, and our own independent review of the record, we hold that there was more than sufficient evidence of Anderson's knowing and willing participation in this conspiracy to uphold the jury's verdict.

II.

Anderson's second legal argument concerns the scope of defense discovery. Prior to trial, Anderson filed a Motion for Discovery and Inspection requesting the right and opportunity to inspect and copy or photograph several "items." Among other requests, he sought access to the following:

3. The recorded testimony of any co-defendant or alleged unindicted co-conspirator before the grand jury which relates to the offense charged in the indictment against the Defendant. Rule 16(a);

5. All books, papers, documents, photographs, tangible objects, buildings or places in the control or possession of the Government which are material to the defense or intended for use by the Government in its case in Chief or any such items obtained from the Defendant. Rule 16(c);

At a hearing on pretrial motions, the government took the position that the request for grand jury testimony in paragraph three was controlled by the Jencks Act but, for the sake of convenience, as the trial progressed the government would provide Jencks Act material at the conclusion of the proceedings on the day before a particular witness was to be called. The government also agreed to comply with the request in paragraph five, quoted above. See Fed.R.Crim.P. 16(a)(1)(c). In return, the defense agreed to comply with the government's request for reciprocal discovery. See Fed.R.Crim.P. 16(b)(1)(A).

Anderson argues that the dismissal of the indictment with prejudice was the only proper sanction available to the district court in this case because the government failed to comply with various discovery requirements. We have carefully reviewed the record of the procedures followed at trial. We do not find any reversible error.

A.

Initially, Anderson contends that the government did not timely disclose information in Rose's grand jury testimony which suggested that Frank Simpson may have been an unindicted coconspirator involved or implicated in the theft of two Cadillac automobiles. As a prosecution witness, Simpson testified that the two leased Cadillacs had been stolen. Rose, a key member of the conspiracy, testified concerning all phases of the criminal enterprise, including the deals involving the two Cadillacs which were eventually sold to Anderson's co-def...