U.S. v. Asher, 98-1700

• Decision Date: 21 May 1999
• Docket Number: No. 98-1700,98-1700
• Citation: 178 F.3d 486
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tommy ASHER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

178 F.3d 486

UNITED STATES of America, Plaintiff-Appellee, v. Tommy ASHER, Defendant-Appellant.

No. 98-1700.

United States Court of Appeals Seventh Circuit.

Argued Feb. 9, 1999.

Decided May 21, 1999.

Charles Goodloe, Jr. (argued), Judith A. Stewart, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

William E. Marsh (argued), Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellant.

Before CUDAHY, RIPPLE and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

On July 14, 1997, a jury found Tommy Asher ¹ guilty of switching the Vehicle Identification Number ("VIN") from a wrecked red and black 1992 GMC Jimmy to a stolen blue and khaki 1992 Chevrolet Blazer, ² operating a chop shop, ³ possessing a motor vehicle with an altered VIN, ⁴ and transporting a stolen vehicle across state lines. ⁵ Judgment was imposed on March 12, 1998, and Mr. Asher was sentenced to 84 months of imprisonment followed by 3 years of supervised release and was assessed $250 and fined $70,000. Mr. Asher appeals his conviction, claiming that the district court abused its discretion by admitting evidence at trial of his prior bad acts under Federal Rule of Evidence 404(b) and by denying Mr. Asher's Motion for a New Trial based on a lack of materiality. Upon review of the record and consideration of the arguments of counsel on each issue, we affirm the judgment of conviction.

I BACKGROUND

A. Facts

This case centers around Tommy Asher's involvement with a vehicle labeled "vehicle 111" by federal agents. It requires a tortuous route through the record to show Mr. Asher's relationship to vehicle 111. As the reader will see, there is a shadowy history in these facts, one that the jury needed to assess. The facts, taken in the light most favorable to the government, ⁶ show that Mr. Asher was involved with the alteration of a stolen vehicle that became vehicle 111. Mr. Asher's link to vehicle 111 must be considered in determining the appropriateness of the Rule 404(b) evidence in this case.

On January 26, 1993, Mr. Asher and his son, James Asher, purchased a wrecked salvage red and black 1992 GMC Jimmy from G.W. Pierce Auto Parts. A check to G.W. Pierce Auto Parts for $4,200, drawn on an FAS Auto Sales account, paid for the Jimmy, and Mr. Asher took possession of the vehicle. Although there is a dispute concerning Mr. Asher's operation of FAS Auto Parts, there is no dispute that Mr. Asher negotiated for the purchase of the Jimmy; Mr. Asher admits that he may have written the check, but that James Asher would have signed the check. G.W. Pierce Auto Parts had purchased the Jimmy from Meridian Insurance Company, which had obtained an Indiana Salvage Certificate of Title after it had acquired the totaled vehicle from its insured. Following Mr. Asher's purchase of the Jimmy, G.W. Pierce Auto Parts secured and retained an Ohio salvage title to the Jimmy, and thus Mr. Asher's name was kept out of the chain of title.

On February 4, 1993, Ricky Cantrell and Dion Staten stole a blue and khaki 1992 Chevrolet Blazer from Stanley King. The two men disassembled the Blazer in Cantrell's garage where he ran his chop shop. ⁷ Cantrell and Staten removed the transmission and engine from the Blazer, and Cantrell, Staten, and David Sloan loaded parts of the body of the Blazer into a rental truck. Staten then delivered and sold parts of the body of the Blazer to Mr. Asher in Greenwood, Indiana.

At this point, the assembly of a hybrid sports utility vehicle, later labeled vehicle 111, began. Mr. Asher had the body of the stolen Blazer assembled onto the running gear of the wrecked Jimmy, and the Blazer body was painted to resemble the red and black Jimmy. The VIN from the Jimmy was affixed to the dash of this hybrid vehicle and thus the VIN matched the frame, engine, and transmission numbers. This transformation, maintains the government, took place at Mr. Asher's residence and at Griffin's Auto Body. The new hybrid vehicle, vehicle 111, is at the center of this case. ⁸

On June 18, 1993, Mr. Asher instructed his son, James Asher, to present the hybrid vehicle for a salvage inspection at the Ohio State Highway Patrol Inspection Station. The vehicle was presented for inspection on behalf of G.W. Pierce Auto Parts. The inspection was terminated when the inspection team found suspicious defects in the vehicle. The inspection team discovered that the vehicle did not have the required federal identification decal on the door post, and James Asher was unable to provide parts invoices for the allegedly repaired door post. Following the inspection, Mr. Asher telephoned Trooper Simms at the Inspection Station to find out what the problem had been during the inspection.

Mr. Asher then instructed James Asher and Jeannie Berkowitz to return for a second inspection and to sign an Ohio State Highway Patrol Vehicle Identification Inspection Form to acquire clean title to the hybrid vehicle. On June 23, 1993, Berkowitz, Mr. Asher's sister-in-law, presented the vehicle at another Ohio Inspection Station armed with bogus parts invoices to substantiate the repairs. The inspection team determined that the vehicle was stolen and impounded the vehicle.

There was substantial evidence presented at trial that the hybrid vehicle was comprised of the salvage Jimmy and the stolen Blazer. After the hybrid vehicle was impounded, examination by the authorities revealed that under the repainted red and black paint there was blue paint. The vehicle did not have the required federal identification decal on the door post and there was no evidence that the door post had been replaced, as Mr. Asher claimed. Furthermore, the hybrid vehicle revealed repairs to the right rear of the body, repairs consistent with the repairs that Stanley King had performed on his Blazer prior to its theft. In addition, the date stamp on the doors and the SPID label in the glove box of the vehicle were consistent with the manufacture of the Blazer rather than the Jimmy. There was also evidence that someone had tampered with the VIN on the dashboard of the hybrid vehicle, and the original manufacturer's identification number on the body of the hybrid vehicle matched the VIN of the stolen Blazer rather than the salvage Jimmy.

After vehicle 111 was impounded, Mr. Asher traveled to Ohio and attempted to gain return of his hybrid vehicle. Mr. Asher asked Dean Griffin to come along with him to Ohio to provide any necessary testimony regarding the repairs to the vehicle. Mr. Asher also telephoned Sergeant Monte McGowen and threatened him with a lawsuit if his vehicle was not returned to him.

Mr. Asher maintains that vehicle 111 was actually the Jimmy and was legitimately repaired with parts purchased from Hubler Chevrolet and G.W. Pierce Auto Parts. Mr. Asher testified to the grand jury that he did some of the unbolting of the damaged parts of the Jimmy and performed some of the bolt-on work at his residence on County Line Road. Mr. Asher then sent the more detailed repair work on the Jimmy to Mr. Griffin. Mr. Asher testified to the grand jury that he had the body work done at Griffin's Auto Body and had the frame work done at Autorama.

Mr. Asher provided invoices to the grand jury in an attempt to support his story. The invoices that Mr. Asher provided to the grand jury were shown to be false, ⁹ and the invoices failed to document Mr. Asher's version of the repair and reconstruction of the Jimmy. ¹⁰

B. Proceedings in the District Court

The government initially proffered prior act evidence involving 49 other vehicles under Federal Rule of Evidence 404(b). Pursuant to supplemental proffers by the government, this number was reduced to 26. Thereafter, the district court admitted evidence at trial regarding Mr. Asher's uncharged criminal conduct involving 13 cars during the 1980s. ¹¹ The district court required that the government prove its prima facie case on the charged crimes before the court permitted any Rule 404(b) evidence. The district court determined that the Rule 404(b) evidence was probative of Mr. Asher's motive for purchasing a salvage vehicle, showed Mr. Asher's intent to seek financial gain, demonstrated Mr. Asher's knowledge and absence of mistake, and showed Mr. Asher's distinctive method of operation. The court also concluded that the probative value of the evidence outweighed any potential unfair prejudice to Mr. Asher. Furthermore, the court twice gave limiting instructions to the jury to ensure that the jury properly used the prior bad acts evidence, and the court reserved the right to reassess the evidence should the evidence become cumulative, a waste of time, or confusing to the jury or should the probative value of any of the evidence be outweighed by unfair prejudice.

Also at trial, David Sloan testified that Cantrell ¹² had told Sloan that Cantrell and Dion Staten had stolen a blue and khaki Blazer and sold part of the body of the Blazer to a former race car driver in Greenwood who lived one-half mile from a church. ¹³ The government possessed copies of written summaries of three interviews conducted by the FBI with Cantrell. In the FBI interviews, Cantrell stated that the Blazer was not stolen "on order" for Mr. Asher, that the stolen Blazer was gray rather than blue, and that Cantrell had stolen the Blazer with Sloan, rather than with Staten. Mr. Asher did not request and the government did not provide copies of these summaries to Mr. Asher prior to trial. Mr. Asher was not informed by the government that Cantrell had made these statements.

Following the trial, Mr. Asher requested copies of these statements in preparation for sentencing, and the government complied with this request. Mr. Asher then filed a motion for a new trial based on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), alleging that the interview statements contained information favorable to Mr. Asher. The district court denied the motion...