U.S. v. Beathune, Nos. 74--1677 and 74--1678

• Decision Date: 09 February 1976
• Docket Number: Nos. 74--1677 and 74--1678
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Alexander BEATHUNE and Rudy Rhodes, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 696

527 F.2d 696

UNITED STATES of America, Plaintiff-Appellee, v. John Alexander BEATHUNE and Rudy Rhodes, Defendants-Appellants.

Nos. 74--1677 and 74--1678.

United States Court of Appeals Tenth Circuit.

Argued Aug. 19, 1975.

Decided Dec. 31, 1975.

Rehearing Denied Feb. 9, 1976.

Theodore S. Halaby, Sp. Asst. U.S. Atty. (James L. Treece, U.S. Atty., and Thomas E. Henry, Asst. U.S. Atty., on the brief), for plaintiff-appellee.

E. Michael Canges, Denver, Colo. (James Rollin Miller and Canges & Shaver, Denver, Colo., on the brief), for defendant-appellant John Alexander Beathune.

Sheldon Yavitz, Miami, Fla. (Michael A. Davis, Hochstadt, Straw & Davis, Denver, Colo., on the brief), for defendant-appellant Rudy Rhodes.

Before HILL, SETH and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Beathune and Rhodes were both convicted of conspiracy to knowingly transport and sell in interstate commerce stolen motor vehicles in violation of 18 U.S.C. §§ 2312 and 2313. Beathune was also convicted on three counts charging substantive crimes involving the knowing disposition of particular stolen vehicles and Rhodes was convicted on five such substantive counts. Both now appeal.

Beathune owned Bavarian Motors, a Denver used-car business which specialized in selling used Porsche cars. The Government's evidence showed that numerous Porsche vehicles were stolen in and around the New York area and were thereafter driven to Denver, Colorado, by different persons, including Rhodes, one of the defendants, and were then sold to Beathune, who in turn resold the vehicles to purchasers in the Denver area. One Schmidt, a named defendant in the present case, pleaded guilty and later testified against Beathune and Rhodes. He admitted that he had sold stolen Porsches to Beathune, and his testimony quite definitely incriminated Rhodes in the interstate stolen car operation. One Galligan, who was a named defendant in a separate indictment growing out of this operation, also pleaded guilty and testified as a Government witness. His testimony was that he, in conjunction with Schmidt, had sold cars he knew to be stolen to Beathune. He further testified that on one occasion he told Beathune pointblank that the cars had been stolen in Greater New York and transported to Colorado for sale. According to Galligan, Beathune 'seemed to be aware of the situation and he didn't seem to be surprised.' As indicated, Beathune and Rhodes were convicted by a jury and each now appeals his conviction.

Beathune raises two points on appeal: (1) The trial court erred in denying his motion for a separate trial; and (2) his Fifth and Sixth Amendment rights to due process and effective assistance of counsel were abridged by the fact that the Government failed to preserve the testimony given the Grand Jury by one of its 'key' witnesses, thereby depriving Beathune of what he asserts to be his right to examine such testimony prior to trial. Neither of these matters has merit.

Fed.R.Crim.P. 8(b) provides that two or more defendants may be charged in the same indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. The charge in the instant indictment, as well as the Government's evidence in support of such charge, indicated that Rhodes and Beathune were acting hand-in-glove in an interstate stolen car ring, with Rhodes, as well as others, driving the stolen vehicles cross-country in interstate commerce and selling them to Beathune, who then sold the cars to purchasers in the Metropolitan Denver area. Under Fed.R.Crim.P. 14 a motion for severance is addressed to the sound discretion of the trial court, and in the instant case we find no abuse of discretion. United States v. Davis, 436 F.2d 679 (10th Cir. 1971), and United States v. Fairchild, 435 F.2d 972 (10th Cir. 1970).

FBI agent Norton was indeed a key Government witness. At trial he testified, among other things, that he applied a so-called 'acid' test to certain of the Porsches sold by Beathune and determined by such test that the vehicle identification number (VIN) on some of the vehicles had been altered. By this same test Norton also ascertained the original VINs on the Porsches in question. His testimony before the Grand Jury was not recorded, and hence could not be given defense counsel by way of pretrial discovery. It would appear that though agent Norton's testimony before the Grand Jury was not recorded, testimony of certain other witnesses was recorded, and was apparently given defense counsel by order of court. Counsel in this court attacks what he labels as the 'selective' recordation of the testimony, i.e., recording the testimony of some--but not all--of the witnesses appearing before the Grand Jury. In oral argument we are advised that the Government only recorded the testimony of those appearing before the Grand Jury who conceivably might be inclined to later recant. It was apparently on this basis that agent Norton's testimony before the Grand Jury was not recorded, though the testimony of certain other witnesses was. In our view, the facts of the instant case do not show a violation of Beathune's Fifth and Sixth Amendment rights.

The rule in this Circuit is that there is no requirement that the Grand Jury proceedings be recorded for furnishing to the defense. United States v. Addington, 471 F.2d 560 (10th Cir. 1973); United States v. Cooper, 464 F.2d 648 (10th Cir. 1972), cert. denied, 409 U.S. 1107, 93 S.Ct. 901, 34 L.Ed.2d 688 (1972), and United States v. Goad, 426 F.2d 86 (10th Cir. 1970). Counsel concedes that such is the rule of the Tenth Circuit, but asserts that if the Government in a given case records some of the testimony before a Grand Jury, then it must record all of the testimony, and if it fails to record all of the testimony then the indictment must be dismissed. We reject that argument. See United States v. Antonick, 481 F.2d 935 (9th Cir. 1973), cert. denied, 414 U.S. 1010, 94 S.Ct. 374, 38 L.Ed.2d 248 (1973), where the Ninth Circuit rejected the identical argument. We subscribe to the reasoning of Antonick.

Rhodes raises a variety of other grounds for reversal. The indictment charges a conspiracy between the named defendants, i.e., Beathune, Rhodes and Schmidt, along with other coconspirators who were not named as defendants, the conspiracy commencing on or about January 1, 1972, and extending to on or about April 1, 1973. As indicated, the defendant Schmidt pleaded guilty and at trial testified on behalf of the Government. Schmidt was at one time the owner of Stuttgart East in New York City and as such dealt in the sale of foreign cars. Schmidt testified that he first met both Beathune and Rhodes in late 1969 or early 1970, and that he and Rhodes started selling stolen Porsches to Beathune in 1970 and that the two of them continued selling Porsches until early 1972. According to Schmidt, he and Rhodes discontinued their relationship about that time, though thereafter both he and Rhodes continued to sell Porsches to Beathune on an individual basis. Schmidt testified that he never did tell Beathune that the cars in question had been stolen, though he conceded that he himself knew they had been stolen. Schmidt's testimony, however, did incriminate Rhodes and indicated that Rhodes was fully aware that they were dealing in stolen cars.

Counsel for Rhodes objected to any testimony from Schmidt which related to any event occurring prior to January 1, 1972, the date set forth in the indictment as being the time when the conspiracy came into being. The trial court overruled this objection and permitted Schmidt to develop his relationship with both Beathune and Rhodes from the date he first met each. At the same time the trial court gave the jury a cautionary instruction concerning evidence which tended to show the commission of crimes other than those charged and further instructed the jury as to the limited purpose for which this testimony was being received. We find no error in this ruling or the instruction given.

The general rule is...