U.S. v. Bakken, s. 83-1178

• Decision Date: 24 May 1984
• Docket Number: 83-1179,Nos. 83-1178,s. 83-1178
• Citation: 734 F.2d 1273
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald BAKKEN and Robert Balok, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1273

734 F.2d 1273

UNITED STATES of America, Plaintiff-Appellee, v. Donald BAKKEN and Robert Balok, Defendants-Appellants.

Nos. 83-1178, 83-1179.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 7, 1983.

Decided May 24, 1984.

Michael B. Brohman, Jenner & Block, Chicago, Ill., for defendants-appellants.

L. Felipe Sanchez, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUDAHY, ESCHBACH, and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

The defendants, Donald Bakken ("Bakken") and Robert Balok ("Balok"), appeal their conviction in the United States District Court for the Northern District of Illinois of knowingly transporting stolen goods valued at over $5,000 through interstate commerce in violation of 18 U.S.C. Sec. 2314. ¹ The appellants were each sentenced to five years probation and fined $2,000 apiece. We affirm.

I. FACTS

On June 20, 1979, at approximately 11:00 a.m., the defendant Donald Bakken ("Bakken"), a truck driver for Transport Service Company, entered the property of Pet Lot Petroleum Company, a distributor of antifreeze, located in Summit, Illinois, with a tanker truck containing 4,828 gallons of Prestone II antifreeze. Bakken met with the co-defendant Robert Balok ("Balok") and Peter Lotus ("Lotus"), the owner of Pet Lot Petroleum and intended purchaser of the antifreeze. As Bakken and Balok were unloading the antifreeze from the Transport Service Company tanker, they were arrested by Chicago police officers who were investigating the case, and were subsequently indicted for transporting at least $5,000 worth of stolen antifreeze in interstate commerce. ²

The facts preceding their arrest indicate that in May of 1979, Balok was introduced to Lotus. At the time, Lotus was purchasing approximately one million gallons of Wyandotte antifreeze per year from Lake River Terminal at $3.00 per gallon for resale to gasoline stations and warehouses. Lake River Terminal produced only Wyandotte antifreeze. Balok offered to sell Wyandotte antifreeze to Lotus at $1.82 per gallon. Lotus, Lake River Terminal's largest purchaser of Wyandotte antifreeze, called Lake River Terminal and informed them that he had a new supplier. Lake River Terminal, because the price offered to Lotus was less than the price at which it could manufacture its antifreeze, suspected that the antifreeze was stolen from its tanks. At this time, it requested and Lotus agreed to cooperate with an investigation with Lotus agreeing to purchase antifreeze from Balok for $1,000. Lotus subsequently purchased ten 55-gallon drums of antifreeze from Balok for $1,000. This antifreeze was later determined to be Lake River Terminal's product. Balok and Lotus then entered into negotiations for the delivery of 5,000 gallons of antifreeze for a $9,000 purchase price. It was at this time that Balok told Lotus the delivery would be a Prestone II shipment. The original date for the delivery to Lotus was scheduled for June 18, 1979, but at the last minute it was set back two days until June 20, 1979. Balok instructed Lotus to be at the Pet Lot Petroleum warehouse in Summit, Illinois on June 20th at approximately 11:00 a.m. and to be prepared to pay $9,000 in cash upon delivery.

The two defendants, Bakken and Balok, were well acquainted prior to June 19, 1979. The record reveals that in the months prior to the date of the alleged crime there had been numerous telephone calls between their two homes. On June 19 alone, there were four phone calls between the Bakken and Balok telephone numbers. On that date, Bakken was assigned to drive a load of Wyandotte antifreeze from the Lake River Terminal to a Chrysler Corporation plant located in Warren, Michigan. He loaded the Wyandotte antifreeze at Lake River Terminal and left for Warren, Michigan at 2:30 p.m. that afternoon. At 9:09 p.m., Bakken checked into the Sands Motel in Detroit, Michigan. He checked out a few hours later at 1:45 a.m. on June 20, 1979. At 2:18 a.m., Bakken arrived at the Chrysler plant in Warren, Michigan where he proceeded to unload the antifreeze that he had transported from Illinois. He departed from the Chrysler's Warren plant with an empty tanker at 4:02 a.m. At 5:04 a.m. that morning, Bakken entered the Chrysler Lynch Road plant in Detroit, Michigan through the main gate providing access to the tank farm. The Lynch Road facility is an automobile assembly plant with two 12,000 gallon antifreeze storage tanks on its grounds. In June of 1979, Prestone II antifreeze was being used in the new cars rolling off the assembly line at the Lynch Road plant. Neither Bakken's daily log book, the Transport Service Company's weigh bill, nor the driver control sheet indicated that Bakken was authorized to make the stop at the Lynch Road plant. Drivers entering the plant were issued a vehicle pass which required the signature of a person to authorize the entry. This pass was checked for authorization by a guard when departing from the plant. While it was a routine practice for the guards at the plant to check the pass, it was not their practice to inspect the vehicle for load capacity since it was presumed that trucks leaving the plant with passes marked "empty" were in fact empty. Gerald Fraker, a pipefitter at the Lynch Road plant, signed Bakken's vehicle pass authorizing Bakken's presence at the plant. The evidence presented at trial showed that Fraker was previously acquainted with both Bakken and Balok, as demonstrated by a phone call made from Bakken's home to Fraker's home in Michigan in May of 1979 as well as three other phone calls from Balok's home to Fraker's also in May of 1979.

On the date of the alleged theft, plant time card records indicate that Bakken spent a total of ninety-six minutes at the plant. There was conflicting evidence in the record as to the span of time required to fill a 5,000 gallon tanker. The figures ranged from approximately thirty-five minutes to sixty to seventy-five minutes.

Bakken left the Lynch Road plant at 6:50 a.m. E.D.T. and arrived in Summit, Illinois at 12:00 noon C.D.T. In route, Bakken stopped to make three telephone calls. The first two were placed to Balok's home in Illinois. The initial call was made from Marshall, Michigan at 8:43 a.m. E.D.T., approximately 200 miles from Summit, Illinois. The second call was placed from Watervliet, Michigan, at 11:00 a.m. E.D.T. approximately 107 miles from Summit, Illinois. The third call was also made at approximately 11:00 a.m. E.D.T., to William Berger, the dispatcher for Bakken's employer, Transport Service Company. During that call Bakken told Berger that he was calling from Warren, Michigan, approximately 300 miles away and would arrive in Chicago at 5:00 p.m. He further told Berger that his tanker was empty. Bakken, however, was arrested in Summit, Illinois at approximately 12:00 noon C.D.T. (1:00 p.m. E.D.T.) with a tanker full of antifreeze just two hours after his telephone call to Berger.

Meanwhile, Balok met Lotus at the Pet Lot Petroleum warehouse in Summit, Illinois, at 11:00 a.m. on June 20 as previously arranged. Lotus brought with him $9,000 in cash and displayed it to Balok. Balok advised Lotus at that time that the antifreeze he would be delivering was Prestone II. Balok then made a phone call and several minutes later Bakken appeared at the Pet Lot Petroleum warehouse. As they began to unload the Prestone II shipment, Balok and Bakken were arrested.

At the trial, the parties stipulated that Bakken's tanker contained 4,828 gallons of antifreeze when it was seized on June 20, 1979. It was also stipulated that on June 19, 1979, Bakken drove a tanker containing Wyandotte antifreeze from Illinois to Michigan and that the Wyandotte antifreeze is different from Prestone II antifreeze. In addition to the evidence discussed above, the Government presented several witnesses. However, Mr. Vern Ingram, chief of plant production for the Lynch Road facility, testified under cross-examination that he was not aware of any major shortages in June of 1979 and further stated that he had never observed a truck being loaded with antifreeze at the Lynch Road facility. Another witness, Howard Dodds, a maintenance foreman in charge of the piping system at the Lynch Road plant, testified on cross-examination that he was unaware of any major spillages of antifreeze at Lynch Road (anything over 100-150 gallons) occurring during the summer of 1979. He also testified that reports were prepared twice per day recording the inventory of antifreeze and these reports were based on readings taken by Lynch Road's pipefitters from accurate gauges attached to the antifreeze tanks.

Edwin Traister, an applications engineer employed by Union Carbide, stated that he helped set the specifications for Union Carbide's Prestone II formula. He identified a Government exhibit as a bottle containing the sample of the antifreeze taken from Bakken's tanker. He also identified Government exhibits prepared in connection with the testing of the antifreeze sample. Each report contained values given to certain ingredients which comprised the antifreeze. ³ Traister stated that the values listed were within the minimum-maximum levels which Union Carbide ascribed to Prestone II and, therefore, were consistent with the Prestone II formula. Traister also stated that he was familiar with the Wyandotte antifreeze and that Wyandotte antifreeze was vastly different from Prestone II. Finally, he testified that Prestone II was produced at four Union Carbide locations, including Alsip, Illinois.

The key Government witness, Fred Heinzmann, was the manager of special audits for Chrysler in June of 1979 and had performed audits for Chrysler since 1971. He had a general business degree, but was not certified as a public accountant. He testified that in November of 1982 he performed a number of inventory calculations of the antifreeze stored in the Lynch Road tanks in June of 1979. The...