U.S. v. Bailey
| Decision Date | 06 October 1987 |
| Docket Number | Nos. 85-4048,85-4055 and 87-3225,s. 85-4048 |
| Citation | 831 F.2d 297,1987 WL 44974 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Michael BAILEY (85-4048), Richard Ferguson Flynn (85-4055, 87-3225), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before LIVELY, Chief Circuit Judge, MILBURN and RYAN, Circuit Judges.
Defendants Michael Bailey and Richard Ferguson Flynn appeal their convictions arising from a conspiracy to transport stolen stained and beveled glass in interstate commerce in violation of 18 U.S.C. Secs. 2314, 371 and 2. For the reasons that follow, we affirm in part and reverse in part.
In June 1985, defendants Flynn and Bailey, together with coconspirator Tyrone Mitchell, were indicted on three counts of causing the interstate transportation of stolen glass in violation of 18 U.S.C. Secs. 2314 and 2. They were also indicted on one count of conspiring to transport stolen glass in interstate commerce in violation of 18 U.S.C. Sec. 371. Tyrone Mitchell pled guilty to the conspiracy count prior to trial. James Harrell was an unindicted coconspirator whose cooperation led to the indictment of the defendants.
The enterprise forming the basis for the indictment involved a series of transactions in which Harrell and Mitchell stole panes of stained and beveled glass from residences and business establishments in and around Cincinnati, Ohio. Through Bailey, they arranged for the sale and delivery of the glass to defendant Flynn.
Harrell began delivering glass to Flynn in 1983. Harrell told Flynn that the glass was 'hot,' and Flynn paid him only in cash. Flynn 'educated' Harrell with regard to the proper manner of removing and transporting glass. In this connection, Flynn told Harrell to prepare a fake receipt for each shipment of glass in case he should be stopped by the police en route to Flynn's home in Huntington, West Virginia. On one occasion, when Harrell was stopped by police during the course of transporting a load of stolen glass, Flynn appeared on the scene and informed the authorities that the glass was his.
In November 1983, Harrell stole glass from two residences in the Cincinnati area and sold it to Flynn at his home in West Virginia. Again, in June 1984, Harrell sold Flynn glass that he had stolen from a residence in Cincinnati.
On or about December 12, 1984, Harrell removed five panels of glass from a residence located at 830 Academy Avenue in Cincinnati. Through Bailey, Harrell arranged a delivery to Flynn.
In January 1985, Mitchell and Bailey 'checked out' two residences in Covington, Kentucky, for purposes of evaluating whether they were potential burglary sites. On January 15 and 16, 1985, Mitchell and Harrell burglarized these homes. Once again, Harrell arranged for delivery of the glass to Flynn through Bailey.
In early 1985, Flynn informed Harrell that he would be interested in purchasing glass from the Cincinnati Club, which had been closed for renovation. On February 5, 1985, Harrell broke into the Cincinnati Club and determined that it would be possible to remove the windows. Two days later, Mitchell and Harrell returned to the Cincinnati Club and removed the glass. Again, Harrell arranged delivery to Flynn through Bailey. Harrell testified that he and Mitchell each received $500 for the glass worth between $20,000 and $30,000.
During the night of February 20, 1985, Harrell broke into the offices of Ohio Labor Council Eight and stole three large panes of glass, religious in nature, valued at $11,000. The same night, Harrell and Mitchell stole door panels from the Itkoff residence in Cincinnati.
Early on the morning of February 22, 1985, Mitchell and Harrell returned to the union hall to steal some of the glass left after the first break-in. Harrell was arrested by Cincinnati police, and he subsequently agreed to assist them in their efforts to apprehend his coconspirators.
Thereafter, Harrell participated in a series of monitored telephone calls with Bailey, Flynn, and Mitchell. On February 22, 1985, Harrell and Flynn discussed a possible sale of the union hall glass. At that time, Flynn made a statement indicating that he had sold the glass stolen from the Cincinnati Club.
On February 25, 1985, Harrell again spoke with Flynn regarding the union hall glass. Flynn agreed to come to Cincinnati and look at the glass that day or the following day.
On the same date, Harrell also spoke with Mitchell regarding the union hall glass. They discussed a price, and complained that Flynn was not paying a high enough price for their services. Later that day, Harrell had a similar conversation with Michael Bailey.
Between Harrell's February 22, 1985, apprehension and March 4, 1985, the glass stolen from the union hall and the Itkoff residence was held by the government in storage. On March 4, 1985, FBI agents in Cincinnati and Huntington, West Virginia, prepared an affidavit to support a request for a search warrant for Flynn's garage. The affidavit was based largely upon information from Harrell and corroborated by the monitored telephone calls. The affidavit contained general information regarding the ongoing criminal activity and specific information concerning thefts from the union hall, the Itkoff residence, and the Cincinnati Club.
On March 4, 1985, Harrell and Cincinnati Police Officer Harry Frisby, posing as Harrell's brother-in-law, delivered the union hall and Itkoff glass to Flynn in West Virginia. Flynn purchased the load for $200. Immediately thereafter, FBI agents executed the search warrant. They found thirteen pieces of stolen glass, all of which had been purchased from Harrell. They also found a receipt bearing the name 'Michael Bailey.' Although the Cincinnati Club glass was not recovered, it appeared in the hall outside the courtroom at Flynn's direction on the last day of the trial.
Beginning on October 8, 1985, defendants Bailey and Flynn were tried in a joint bench trial. After six days of testimony, the district court found both defendants guilty of all counts in the indictment. Bailey was sentenced to consecutive terms of two years on Count I and one year on each remaining count. Flynn was sentenced to consecutive terms of five years on Count I, two years on Count II, three years on Count III, and four years on Count IV.
On November 6, 1986, defendant Flynn filed a motion for a new trial. The basis for this motion was the recantation of trial testimony by Harrell and Mitchell and the discovery of documents pertaining to the rental of the U-Haul truck used in the burglary of the Cincinnati Club. A hearing on the motion was held on January 23, 1987. On February 27, 1987, the motion for a new trial was denied.
In this consolidated appeal, the defendants present numerous issues for review. They will be discussed seriatim.
Defendant Bailey argues that the district court committed reversible error in refusing to grant his motion for a severance because 'the evidence adduced against the defendant Flynn was so massive and cumulative that it flowed over the defendant Bailey like a river overflowing its banks.' We disagree.
The district court's refusal to sever the trials of codefendants will be reversed only for abuse of discretion. See, e.g., United States v. Lawson, 780 F.2d 535, 545 (6th Cir. 1985) (per curiam). This court has consistently recognized a preference for joint trials of individuals who are indicated together, United States v. Stull, 743 F.2d 439, 446 (6th Cir. 1984), cert. denied, 470 U.S. 1062 (1985), and 'a showing of compelling prejudice' must be made before an appellate court will find that denial of a severance motion constitutes abuse of discretion, United States v. Warner, 690 F.2d 545, 552 (6th Cir. 1982); see also United States v. Swift, 809 F.2d 320, 322 (6th Cir. 1987).
Our reading of the transcript of this bench trial reveals that the judge was sensitive to the need for separate consideration of the evidence against each defendant. Under these circumstances, we are unwilling to conclude that Bailey suffered 'compelling prejudice' as the result of the district court's refusal to sever the trials. See Warner, 690 F.2d at 553 (). Accordingly, we find no abuse of discretion.
In Count IV of the indictment, defendants were charged with causing the interstate transportation of the glass stolen from the union hall. They argue that the district court erred in refusing to dismiss Count IV, because our decision in United States v. Monasterski, 567 F.2d 677 (6th Cir. 1977), dictates the conclusion that the property lost its character as stolen before it was transported in interstate commerce.
In Monasterski, three youths agreed to steal tires from a railroad boxcar. In the process, they were arrested by Conrail police. After the FBI became involved in the incident, the youths agreed to effectuate delivery of the tires so that law enforcement officials might apprehend their 'fence.' The tires were delivered to one James Logan, who in turn delivered them to the defendant Monasterski.
Logan and Monasterski were arrested for their roles in the enterprise. Logan pled guilty to possession of stolen goods, and Monasterski went to trial. He was convicted of violating 18 U.S.C. Sec. 659, which proscribed receipt or possession of stolen goods with knowledge that they are stolen.
On appeal, Monasterski argued that his conviction could not be upheld because the goods had lost their character as stolen by the time he received them. This court agreed.
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