U.S. v. Cobb, 78-1563

• Decision Date: 12 January 1979
• Docket Number: No. 78-1563,78-1563
• Parties: UNITED STATES of America, Appellee, v. Dewey Lawrence COBB, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 607

588 F.2d 607

UNITED STATES of America, Appellee, v. Dewey Lawrence COBB, Appellant.

No. 78-1563.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 17, 1978.

Decided Dec. 7, 1978.

Rehearing and Rehearing En Banc Denied Jan. 12, 1979.

Scott B. Tinsley, Springfield Mo., argued; William H. Wendt, Springfield, Mo., filed brief, for appellant.

Michael A. Jones, Asst. U. S. Atty. (argued) Springfield, Mo., Ronald S. Reed, Jr., U. S. Atty., Kansas City, Mo., filed brief, for appellee.

Before BRIGHT, STEPHENSON, and HENLEY, Circuit Judges.

BRIGHT, Circuit Judge.

Dewey Lawrence Cobb appeals from his convictions after a jury trial for transporting a stolen motor vehicle in interstate commerce (count I) and knowingly concealing said stolen motor vehicle (count II), in violation of 18 U.S.C. §§ 2312 and 2313 (1976). The district court ¹ sentenced Cobb to four years' imprisonment on count I and four years' additional probation on count II. Cobb attacks as error the district court's pretrial rulings which (1) permitted the prosecutor to introduce evidence that Cobb had altered the title certificates of other vehicles in Cobb's possession, (2) allowed the admission into evidence of Cobb's 1966 felony conviction for interstate transportation of a stolen motor vehicle, and (3) permitted the use for impeachment of Cobb's 1949 conviction for that same offense. We affirm the convictions.

I. Factual Background.

Cobb operated a business, under the name of Allstate Truck & Equipment Company, in which he purchased and resold used automobiles, trucks, and other motor vehicles. He also purchased vehicles for salvage and engaged in the automobile and truck parts business.

Acting on information that Cobb had altered some motor vehicle title certificates, officers of the Missouri State Highway Patrol and agents of the Federal Bureau of Investigation (FBI) investigated the ownership status of certain motor vehicles in Cobb's possession. The officers discovered that a 1976 Winnebago motor home which Cobb kept at his home in Seneca, Missouri, carried a vehicle identification number (VIN) belonging to a different motor vehicle.

The VIN plate affixed to the Winnebago belonged to a wrecked 1975 Dodge truck which had been purchased for salvage by Tom Gill Truck Parts Company of Houston, Texas. The evidence indicates that some unknown person removed the VIN plate from the 1975 Dodge truck while it was on the Tom Gill Truck Parts lot, between February 28 and April 11, 1977. Cobb had attempted to buy the truck and had access to the lot where it was stored while the truck was in Tom Gill Truck Parts' possession.

The Winnebago motor home in question here was stolen from the residence of Joseph A. Jones at St. Ann, Missouri, on August 21, 1976. Cobb told FBI agents that he purchased the Winnebago around February 1977 from Ron Woods, a friend who was selling it for an unnamed truck driver. Cobb indicated the transaction took place in a motel parking lot near Fort Leonard Wood, Missouri. He testified that, in exchange for the 1976 motor home which was valued between $7,500 and $10,000, he gave Ron Woods a $2,000 cashier's check, $1,000 in cash, and a 1969 truck. Cobb possessed no record of payment except the cashier's check for $2,000, which had been endorsed by both Cobb and Woods. Cobb did not receive a bill of sale or title certificate for the vehicle. Woods, although located by the FBI in Houston, Texas, did not testify in the case.

After acquiring it, Cobb kept the Winnebago behind his house for a week or two, and, although the vehicle's original paint job was in good condition, he had it repainted twice. The false 1975 VIN plate was affixed to the Winnebago by aluminum pop rivets, instead of by the stainless steel rivets with a rosette design with which VIN plates are normally manufactured, indicating that the plate had been "reinstalled." A federally required decal, similar to a city sticker and containing the vehicle's date of manufacture and VIN, was missing from the Winnebago. Identification numbers normally found on the frame, engine and transmission of a vehicle could not be found on the motor home.

After his purchase of the Winnebago in Missouri, Cobb drove the motor home to the State of Texas and then returned with it to his home in Seneca, Missouri.

At trial, the Government introduced evidence that Cobb had altered the title certificates on seven vehicles in his possession, although none of those vehicles were established as stolen. Cobb admitted, on direct examination, that he was convicted in 1966 of interstate transportation of a motor vehicle and that he was charged with a similar crime in 1949. On cross-examination by the Government, Cobb admitted that the 1949 charge led to a conviction.

II. The Evidence of Alteration of Other Title Certificates.

Prior to the beginning of trial, Cobb filed a "Motion in Limine" asking that the trial court instruct the United States Attorney to refrain from introducing any evidence of Cobb's admissions to FBI agents that he altered certificates of Missouri titles to fit certain motor vehicles in his possession. The district court denied this motion stating that the pretrial conference and statements of defense counsel had shown that Cobb's principal defense was lack of knowledge that the Winnebago was stolen, and evidence of altering titles bore on Cobb's knowledge of the stolen character of the vehicle. The court also stated that this evidence was relevant to show the reason for the investigation that led to the discovery of the stolen mobile home in Cobb's possession.

During the course of trial the Government introduced the testimony of a Missouri State Highway Patrol officer that Cobb had altered approximately seven title certificates. Cobb did not object to any of this evidence except to request, after the agent had testified, that

the Court instruct the attorney for the government not to go into this history, that is, why the agents approached my client (defendant Cobb), because that has now been covered and testified to by Sgt. Murphy, so it would be repetitious and highly inflammatory to the jury.

The prosecutor indicated he would not ask the history of any additional agent, and the court denied Cobb's request.

Because Cobb failed to object during trial to the use of the altered title evidence, we have before us on this appeal only the district court's pretrial ruling refusing to instruct the United States Attorney not to inquire about the altered title certificates. ² We examine that ruling only on the basis of the information available to the district court at that time.

Although evidence of other crimes or criminal conduct is generally inadmissible, such evidence may be admissible in limited circumstances to establish, for example, motive, intent, knowledge, or absence of mistake or accident. See Fed.R.Evid. 404(b); United States v. Jardan, 552 F.2d 216, 218 (8th Cir.), Cert. denied, 433 U.S. 912, 97 S.Ct. 2982, 53 L.Ed.2d 1097 (1977).

At the time of the pretrial ruling at issue, the trial court knew only the general nature of the Government's case, that the Government possessed evidence that Cobb altered title certificates for vehicles in his possession, and that Cobb's primary defense would be lack of knowledge that the Winnebago was stolen. Clearly, evidence that Cobb was sufficiently concerned and knowledgeable about motor vehicle titles to alter several such titles to correspond to vehicles in his possession may be probative of Cobb's intent and knowledge at the time he purchased another motor vehicle without such a title certificate or any other indicia of the seller's ownership. Moreover, we cannot say the trial court erred in its preliminary evaluation that the probative value of the alteration of title evidence was not substantially outweighed by its prejudicial impact. ³ See Fed.R.Evid. 403.

On this appeal, Cobb apparently does not dispute the relevance of the evidence of his altering titles on the issue of whether he knew the motor home in his possession was stolen. However, he now asserts that such evidence was inadmissible under United States v. Clemons, 503 F.2d 486 (8th Cir. 1974), because the Government failed to establish with clarity and certainty that Cobb participated in and knew the wrongfulness of the title alterations. The record does not support that argument. Cobb in his own testimony admitted he knew the titles were altered in his office and that altering titles was illegal in Missouri. In any event, Cobb failed to preserve any objection to the Government's foundation for the admission of this evidence. Cobb never made such an objection during trial, and his pretrial "Motion in Limine" cannot be said to have raised the foundation issue, which the trial judge could not decide at that stage of the proceeding.

Accordingly, we hold that the trial court did not err in its preliminary ruling allowing the introduction of evidence that Cobb altered certain title certificates.

III. The Admission of Cobb's Prior Felony Convictions.

The pretrial record shows that the Government filed a list of Cobb's prior felony convictions and requested that it be allowed to use those convictions as evidence of Cobb's knowledge and intent in purchasing the stolen Winnebago. ⁴ Cobb filed suggestions in opposition to the Government's request. At a conference prior to trial, the district court ruled that the Government could use Cobb's 1966 conviction under the Dyer Act for interstate transportation of a motor vehicle in its case-in-chief. The court also ruled that the Government could use Cobb's 1949 Dyer Act conviction for impeachment purposes if the defendant took the stand.

A. The 1966 Conviction.

Cobb again relies upon United States v. Clemons, supra, in attacking the trial court's ruling that Cobb's 1966 Dyer Act conviction was admissible. ⁵

The 1966 conviction for the same offense charged in count I of the indictment here is clearly...