U.S. v. Daniel

• Decision Date: 19 March 1992
• Docket Number: No. 91-1739,91-1739
• Citation: 957 F.2d 162
• Parties: 35 Fed. R. Evid. Serv. 302 UNITED STATES of America, Plaintiff-Appellee, v. Charles Ray DANIEL and Patrick Henry Daniel, Defendants-Appellants. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 162

957 F.2d 162

35 Fed. R. Evid. Serv. 302

UNITED STATES of America, Plaintiff-Appellee, v. Charles Ray DANIEL and Patrick Henry Daniel, Defendants-Appellants.

No. 91-1739

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

March 19, 1992.

Mitchell B. Lansden, Michael J. Hinton, Hinton, Sussman & Bailey, Houston, Tex., for C.R. Daniel and P.H. Daniel.

Delonia A. Watson, Asst. U.S. Atty., Dallas, Tex., Marvin Collins, U.S. Atty., Vicki Howard, Asst. U.S. Atty., Amarillo, Tex., for U.S.

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

Before POLITZ, Chief Judge, KING and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

Charles and Patrick Daniel appeal their convictions for possession of goods stolen from an interstate shipment. Charles Daniel also appeals his conviction for structuring transactions to evade reporting requirements. They argue that the evidence was legally insufficient to convict them, that the trial court incorrectly limited their right to cross-examine the government's chief witness, and that the trial court erred in giving one jury instruction and in refusing to give another. Finding no reversible error, we affirm the convictions.

I. BACKGROUND

Charles Daniel and Patrick Daniel, brothers, were convicted by a jury of possessing goods stolen from an interstate shipment, a violation of 18 U.S.C. § 659. Charles Daniel was also found guilty of structuring transactions to evade reporting requirements, a violation of 31 U.S.C. § 5324(1) & (3). Both were sentenced to 12 months imprisonment, 3 years supervised release, restitution of $8576.83 (for which they were severally and jointly liable with each other and William Kunkle), and a $100 mandatory assessment. Both filed timely notices of appeal.

The charges arose out of the following sequence of events: William Kunkle, a truck driver for Covenant Transport, was assigned to transport a truckload of carpet from Georgia to California in February 1990. While en route, Kunkle decided to sell the carpet and keep the proceeds for himself. He first sold two rolls of carpet to the manager of a truck stop in Oklahoma City. When he reached Amarillo, Texas, he went to a bar and inquired whether anyone would be interested in buying the carpet he was hauling. One of the bar patrons informed the Daniel brothers of Kunkle's desire to sell carpet. The Daniels inspected the carpet and the bill of lading, then offered Kunkle $17,500, which he accepted. In order to obtain cash for the purchase, as Kunkle demanded, Charles obtained a loan from their bank for the $17,500, but had the amount issued in two cashier's checks, one for $9000 and one for $8500. He then went to the main branch of another bank to cash one of the checks, and cashed the other at a different branch of that bank, located just across the street. After asking Kunkle whether the carpet was stolen, and being told that it was not, the Daniels met Kunkle at their carpet warehouse to complete the deal. There they gave Kunkle the cash, of which Kunkle returned $1000 to the brothers on being told that that amount was "vacation money." Kunkle also gave $1000 to the bar patron who had contacted the Daniels. The carpet was unloaded from the truck into the warehouse, and Charles Daniel removed the plastic wrapping and manufacturer's tags from the carpet rolls.

II. DISCUSSION

A. Sufficiency of the Evidence

Both appellants challenge the sufficiency of the evidence to convict them. The standard for evaluating the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In viewing the evidence in the light most favorable to the verdict, we afford the government the benefit of all reasonable inferences and credibility choices. United States v. Nixon, 816 F.2d 1022, 1029 (5th Cir.1987), cert. denied, 484 U.S. 1026, 108 S.Ct. 749, 98 L.Ed.2d 762 (1988).

Although both brothers moved for a judgment of acquittal on all relevant counts at the close of the government's case, only Charles Daniel renewed his motion at the close of all the evidence as is required by Fed.R.Crim.P. 29, and then only as to the currency transaction count. Where a defendant fails to renew his motion at the close of all the evidence, after defense evidence has been presented, he waives his objection to the earlier denial of his motion. United States v. Robles-Pantoja, 887 F.2d 1250, 1254 (5th Cir.1989). In this circumstance, appellate review is limited to determining whether there was a manifest miscarriage of justice, that is, whether the record is "devoid of evidence pointing to guilt." Id. (relying on United States v. Ruiz, 860 F.2d 615, 617 (5th Cir.1988)). Here, as in Robles-Pantoja, the evidence is sufficient to sustain the convictions even if all motions for judgment of acquittal had been renewed at the close of the evidence. See 887 F.2d at 1254. We review below the relevant evidence presented as to each count.

1. Possession of goods stolen from interstate shipment

On appeal, both brothers challenge the sufficiency of the evidence to convict them of possession of goods stolen from an interstate shipment. A conviction of that offense requires proof that (1) someone stole the property while it was moving as part of an interstate shipment of freight, (2) the defendant thereafter possessed the property knowing that it had been stolen, and (3) the property had a value in excess of $100. 18 U.S.C. § 659.

The main issue at trial was whether the brothers knew that the carpet which they purchased from William Kunkle had been stolen. To prove this element of the offense, the government presented the testimony of William Kunkle. Kunkle testified that, on February 14, 1990, he was a truck driver for Covenant Transport assigned to transport a load of carpet from Georgia to California. All of the carpet in the load was wrapped in white plastic and tagged with shipping labels. Kunkle decided to sell the carpet and keep the proceeds because he felt that Covenant was not paying him enough. As part of this plan, he sold two rolls of carpet to the manager of a truck stop in Oklahoma City.

As he continued on his route, Kunkle continued a drinking spree that he had begun prior to the sale of the two rolls in Oklahoma City. When he reached Amarillo, Texas, he went to Earl's Bar and informed one of the patrons of his desire to sell some carpet he was hauling. Willie Turner, who was indicted with the Daniels, walked into the bar and expressed interest in the carpet. Turner made a telephone call and indicated to Kunkle that the people he called were willing to come and look at the carpet. The Daniel brothers, who were carpet dealers who owned their own wholesale carpet business, arrived at Earl's Bar about one hour after Turner's phone call was made. Kunkle initially asked the brothers if they were police officers or if they were affiliated with the police. They indicated that they were not. As the Daniel brothers inspected the carpet, they asked to see the bill of lading, which Kunkle produced. After examining this document, ¹ the brothers calculated a price and offered Kunkle $17,500 for the entire load. Kunkle accepted this offer. Kunkle demanded payment in cash, and the brothers indicated that it would take them a little time to get the money.

After Charles Daniel obtained the cash (the details of which are discussed below), Patrick Daniel telephoned Kunkle, at which time Patrick asked Kunkle if he (Kunkle) was a policeman and whether the carpet was stolen. Kunkle informed Patrick that he was not a police officer, and that the carpet was not stolen. Patrick recorded this conversation on tape. The men convened at the brothers' carpet warehouse to complete the deal, and while Kunkle was counting the money, Charles informed him that $1000 of the money was vacation money. Kunkle handed him back $1000 and told him to have a good vacation. Kunkle also handed $1000 to Turner in the presence of the Daniel brothers.

While the carpet was being unloaded in the warehouse, Charles removed the plastic wrap and the price tags from the carpet. He told Kunkle that he was going to burn the tags in the coal burner. Kunkle then gave $100 to each of the Daniels' employees to hasten their removal of the rest of the rolls of carpet. As Kunkle was shaking hands and preparing to depart, Charles asked him whether he ever had any other things. Kunkle replied that he sometimes got stereos and televisions, and Charles told Kunkle to "look him up." As Kunkle got into the cab of the truck, Charles asked whether he had the bills of lading. Kunkle told Charles, "I'll take care of them and you take care of your part." Kunkle testified that he did not give the Daniels any paperwork on the carpet.

After Kunkle's apprehension following a gambling and cocaine-buying binge, and upon a report of an abandoned Covenant truck at Earl's Bar, authorities contacted Covenant and obtained identification information for the shipment, including numbers located on the backs of the carpet rolls. When authorities went to the Daniels' warehouse, Charles could not produce paperwork for a roll of carpet identified as coming from the Covenant shipment. The roll identified was not wrapped in plastic and bore no manufacturer's label. Charles told the officers that if they came back in an hour, he could produce the documentation. The officers returned and, after giving Charles Miranda warnings, obtained his consent to search the warehouse. None of the carpet identified as coming from the shipment bore any plastic wrapping and none of it had any manufacturer labels. Carpet from the shipment was also retrieved from two other locations, one a subsidiary warehouse in Lubbock and the other a flea market run by...