U.S. v. Casey

• Decision Date: 15 October 1976
• Docket Number: No. 75-1728,75-1728
• Citation: U.S. v. Casey, 540 F.2d 811 (5th Cir. 1976)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bobby Gene CASEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 811

540 F.2d 811

UNITED STATES of America, Plaintiff-Appellee, v. Bobby Gene CASEY, Defendant-Appellant.

No. 75-1728.

United States Court of Appeals Fifth Circuit.

Oct. 15, 1976.

C. H. Hollingsworth, Jr., Rome, Ga. (court appointed), for defendant-appellant.

John W. Stokes, U. S. Atty., William F. Bartee, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

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

Before BROWN, Chief Judge, and GOLDBERG and RONEY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

This is a case under the Dyer Act for the transporting ¹ and concealing ² of a stolen motor vehicle moving in interstate commerce. ³ Several points of error were urged on appeal but only the first merits extended discussion: (i) whether the evidence was sufficient to support the jury's verdict of guilty under § 2312 and § 2313, (ii) whether the Trial Court properly denied Defendant's motion for continuance for the purpose of allowing him to shave, shower and put on a different set of civilian clothes to stand trial, (iii) whether the allegation of ineffective assistance of counsel, presented in Defendant's separate pro se brief is properly presented for decision in this appeal, and (iv) whether the search and seizure of the vehicle the Defendant was driving at the time of his arrest violated the Fourth Amendment. Because we find that the evidence was insufficient to support the jury's verdict of guilty under § 2313, we reverse the conviction as to that count. The conviction under § 2312 is affirmed.

From Alabama To Georgia

Martin Blalock, who owned the 1972 Chevrolet pickup which was stolen, lived on Route 1, Mentone, Alabama. On September 27, 1974, Mr. Blalock left his home to attend a church convention in St. Petersburg, Florida, and he did not return until about October 9 or 10. He last saw his truck parked in his front yard along with a jeep. Blalock had left the keys to the truck in a table drawer inside his house and had given no one but his daughter permission to use the truck while he was gone.

When he returned home from the Florida trip he found that someone had been in his house and rummaged through his drawers and had stolen his shotgun and his pickup. He also noticed that the ignition switch to the jeep had been damaged as if someone had tried to turn it with a screw driver.

Mack Blalock, the victim's uncle, testified that he also lived in Mentone, Alabama close to Martin Blalock's house and on October 5, 1974 had driven by the victim's house about 5:00 or 5:30 in the afternoon and had seen both the truck and the pickup parked in the front yard as they had been left when Martin departed for the church convention.

On October 5, 1974, at about 9:45 p. m. Corporal Stamey and his partner were on routine patrol near Rome, Georgia when they noticed a pickup truck, traveling in the opposite direction, which was impeding traffic and had several cars behind it. Officer Stamey turned around and after several minutes got close enough to the pickup truck to notice that it had Alabama plates and was weaving slightly on the road and accordingly stopped it for a routine investigation.

Casey's Stories

Upon Officer Stamey's request the driver, Casey the Appellant, got out of the truck but could not produce a driver's license or other identification, ownership papers or a vehicle registration certificate. During their discussion, Officer Stamey smelled alcohol on Casey's breath and so he made the decision to take him to the county seat for an intoximeter breath test. This test showed that although Casey had been drinking, the alcohol content of his blood was below the minimum necessary for prosecution for driving while intoxicated.

When Casey stopped the pickup on the side of the highway he had left the wheels on the shoulder of the road and consequently Stamey told his partner, Officer Baker, to move the truck off the road into a nearby service station since the truck in its position on the shoulder of the road presented a hazard. However, Officer Baker was unable to get the pickup started. When Stamey walked over to help him he saw that the ignition switch was hanging down below the dash and looked as though it had been "straight wired", which is a method often used by car thieves to start a vehicle without an ignition key.

At the time of his arrest Casey attempted to explain his possession of the stolen vehicle by saying that he had purchased the truck at a cattle sale in Rome, Georgia where other merchandise including vehicles is frequently sold.

But at trial Casey took the stand and told quite a different story. He testified that on the evening of October 5, he was drinking beer at the Funny Face Tavern when an acquaintance of several years past, named Red King, drove up in the stolen truck. King asked Casey if he would take the pickup and go to a liquor store to get a pint of liquor and Casey obliged although he had no money at that time. He was on his way to pick up some money at his apartment and then go to the liquor store when he was stopped en route by the patrolmen. He insisted he had never seen the truck before or after and likewise had never seen Red King after that occasion. In attempting to reconcile his inconsistent stories he said he told the patrolmen that he bought the truck in order to protect Red because he knew the law was already looking for Red although he denied knowing that the pickup truck was stolen.

Sufficiency Of The Evidence

We must adhere to the well established rule in this Circuit that in the absence of a timely motion for judgment of acquittal made at the close of all the evidence, the question of the sufficiency of the evidence is not presented for appellate review unless to deny the appeal of this issue would foster a manifest miscarriage of justice. See United States v. Perez, 5 Cir., 1976, 526 F.2d 859, 864 n. 7 and cases cited therein. Here, although there was no motion for judgment of acquittal made (R. at 80, 100), we find that to deny our review of the sufficiency of the evidence under the § 2313 conviction (receiving and concealing a stolen motor vehicle) would foster a manifest miscarriage of justice. As to the conviction under § 2312 (transportation of a stolen motor vehicle), on the other hand, no manifest miscarriage of justice would result, in view of the quantum of evidence of transportation of a stolen vehicle which Casey practiced.

Since this case went to the jury, in ruling on Defendant's sufficiency of the evidence argument, we must review the evidence through Glasser glasses most favorably to the Government, Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704; United States v. Gomez, 5 Cir., 1976, 529 F.2d 412. And in a case based largely on circumstantial evidence such as this one, the inference drawn from such evidence must also be inconsistent with every reasonable hypothesis of innocence. Hale v. United States, 5 Cir., 1969, 410 F.2d 147, 149.

The Government does not argue that Casey both transported the stolen vehicle in interstate commerce in violation of 18 U.S.C.A. § 2312 ⁴ and received it in violation of § 2313. ⁵ Rather, the Government has limited itself to the argument that the specifically enumerated offenses in § 2313 ⁶ are to be read in the disjunctive and it is sufficient if the defendant is proven guilty of any one or more of the acts set out in the statute. ⁷ United States v. McGlamory, 5 Cir., 1971, 441 F.2d 130, 134; United States v. Lee, 5 Cir., 1970, 422 F.2d 1049. Thus, the prosecution's case under § 2313 turns on whether the Defendant concealed the stolen motor vehicle within the broad definition of that word as delineated by the cases interpreting this statute. ⁸

Although the term "conceal" as used in § 2313 is not limited to physically secreting the vehicle, all of the cases which have found sufficient evidence to sustain a conviction for concealment have involved some overt physical act on the part of the Defendant. For example, this Circuit, ⁹ as others, ¹⁰ has held that acts such as altering title papers, changing vehicle identification numbers, changing license plates, or making false statements on title applications, fall within the broad definition of the term.

The difference between oral deception and physical deception is a distinction with a difference under § 2313. All of the overt physical acts in other cases affirming § 2313 convictions operated in some sense to conceal the stolen vehicle as well as to conceal the crime. ¹¹ Changing a car's license plates, like painting it a different color, is a deliberate and premeditated physical attempt to disguise the vehicle to make it seem to be one other than the one which was stolen. A spontaneous verbal denial that one has stolen the car one is driving simply does not rise to this level of "concealment." ^11.1 The stolen vehicle is there, in its original form, for all the world to see through verbalization, the miscreant can only hope to conceal the fact that a crime has occurred.

In the case at bar, the only evidence of "concealment" was Casey's story to Officer Stamey about purchasing the truck at a cattle auction. R. at 43, 49. Since no evidence of physical deception or concealment was alleged or proved by the Government, we must reverse Casey's conviction under § 2313, for the evidence is insufficient to support the jury's verdict of guilty as to that count.

We have no difficulty in finding sufficient evidence to support the Defendant's conviction under § 2312 for transporting the motor vehicle in interstate commerce. ¹² Citation of authority is hardly necessary to support the familiar proposition of law under the Dyer Act that unexplained possession ¹³ of a recently stolen vehicle gives rise to a permissible inference of transportation and knowledge of its stolen character. See, e. g., Barnes v. United States, 1973, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380; United...