U.S. v. Durcan

• Decision Date: 22 July 1976
• Docket Number: No. 76-1113,76-1113
• Parties: UNITED STATES of America, Appellee, v. Eric Paul DURCAN, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 29

539 F.2d 29

UNITED STATES of America, Appellee, v. Eric Paul DURCAN, Appellant.

No. 76-1113.

United States Court of Appeals Ninth Circuit.

July 22, 1976.

Thomas W. Hillier, Asst. Federal Public Defender, Spokane, Wash., for appellant.

Stan Pitkin, U. S. Atty., Seattle, Wash., for appellee.

OPINION

Before ELY and CHOY, Circuit Judges, and ORRICK, ^* District Judge.

ELY, Circuit Judge:

The trial of the present appellant was severed from that of his co-defendant, one Spodnick, and Durcan was convicted by a jury of violations of 18 U.S.C. § 542, entry of goods into the United States by means of a false statement, and of 18 U.S.C. § 545, smuggling goods into the United States. He was also convicted of having transported a firearm in interstate or foreign commerce while a fugitive from justice, a violation of 18 U.S.C. § 922(g)(2). Prior to trial the Government dismissed a charge against Durcan of transporting stolen goods in interstate or foreign commerce. Durcan was sentenced to concurrent terms of 2 years' imprisonment on count I and 5 years' imprisonment on count II. On his conviction for transporting a firearm while a fugitive, a 5-year sentence was imposed, and the sentencing judge prescribed that the latter sentence should run consecutively to the 5-year term of imprisonment resulting from the conviction on count II. Durcan appeals on two grounds: (1) That the trial court committed reversible error in admitting evidence relating to burglaries that had been committed in the United States and Canada and (2) that the prosecution failed to prove that he was a "fugitive from justice" within the meaning of 18 U.S.C. § 922(g)(2).

On August 22, 1975, Durcan, Spodnick, and two others entered the United States from Canada at Blaine, Washington. Durcan was driving his car and towing a "U-Haul" trailer. He told Customs inspectors that he and his passengers were from Florida and had been in Canada six days. In response to routine inquiries, all denied acquiring any goods in Canada that should be declared. However, Spodnick admitted that he had a shotgun with him, and the inspectors sent the vehicle to a secondary inspection point where the car and trailer were searched. The search revealed several guns, a sizable quantity of camera equipment, jewelry, credit cards, lockpicks, and personal effects. The Vancouver, B.C. police department advised United States Customs officers that one of the cameras had been reported stolen. Spodnick claimed ownership of the camera and was arrested for smuggling.

While the search was in progress, the American authorities learned that there was an outstanding warrant for Durcan's arrest, issued in Dade County, Florida. Durcan told the officers that he had just learned of the warrant the previous day and was en route to Miami to resolve the matter. He was taken into custody. Officials subsequently learned that many of the items found in the trailer and trunk of the car had been taken in burglaries in California and Washington in July and August, 1975, and in the area of Vancouver between August 19-22, 1975.

At trial, Durcan offered to stipulate that the articles in question had been acquired in Canada. But the prosecution refused to accept the stipulation, leading the trial court to allow the prosecution to introduce testimony that the goods had been stolen in burglaries in Canada and the United States.

Durcan here argues quite forcefully that there was no need to prove how the items were acquired and that the introduction of the evidence concerning the burglaries was error. We agree. In the majority's view ¹ it was error to allow the introduction of this testimony. In the interest of fairness the trial court should have compelled the prosecution to accept the pertinent stipulation proffered by refusing to allow into evidence testimony concerning how the items were acquired. Certainly the evidence was not admissible on the ground that it tended to show common purpose, scheme or design. The offense of burglary is far removed, in its nature, from the offense of smuggling. Nor was the evidence necessary to prove Durcan's knowing possession of the property. Our court has held repeatedly that, absent special circumstances, a jury may reasonably infer that the driver of a vehicle has knowledge of the vehicle's contents. United States v. Westover, 511 F.2d 1154 (9th Cir. 1975), cert. denied, 422 U.S. 1009, 95 S.Ct. 2633, 45 L.Ed.2d 673 (1975); United States v. Dixon, 460 F.2d 309 (9th Cir. 1972), cert. denied, 409 U.S. 864, 93 S.Ct. 157, 34 L.Ed.2d 112 (1972). Even if there were any conceivable reason for admitting the evidence, the prejudice to Durcan in the context of this case so far outweighed the proof's probative value that the evidence should have been excluded.

However, despite this indefensible admission of irrelevant testimony, we do not reverse Durcan's conviction on the false statement and smuggling counts. There was overwhelming evidence of Durcan's guilt on these counts. Thus, the error was harmless and the judgments of conviction on the smuggling and false statement charges are therefore affirmed.

Durcan next contends that his conviction for transporting a firearm must be reversed because the prosecution failed to prove he was a "fugitive from justice" within the meaning of the statute. This contention,...