U.S. v. Gunter

• Decision Date: 15 October 1980
• Docket Number: No. 79-2039,79-2039
• Citation: 631 F.2d 583
• Parties: UNITED STATES of America, Appellee, v. Louie Co GUNTER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 583

631 F.2d 583

UNITED STATES of America, Appellee, v. Louie Co GUNTER, Appellant.

No. 79-2039.

United States Court of Appeals,

Eighth Circuit.

Submitted April 18, 1980.

Decided Oct. 15, 1980.

Wilfred C. Rice, Detroit, Mich., for appellant.

Kenneth F. Stoll, Asst. U. S. Atty., Little Rock, Ark., for appellee.

Before STEPHENSON, Circuit Judge, KUNZIG, ^* Court of Claims Judge, and McMILLIAN, Circuit Judge.

McMILLIAN, Circuit Judge.

Louie Co Gunter appeals from a final judgment entered in the District Court ¹ for the Eastern District of Arkansas upon a jury verdict finding him guilty of two counts of interstate transportation of a stolen motor vehicle (counts I and III) in violation of 18 U.S.C. § 2312 and two counts of selling and disposing of a stolen motor vehicle (counts II and IV) in violation of 18 U.S.C. § 2313. The trial court sentenced appellant to three terms of six months imprisonment on counts I, II and III, to be served concurrently. The trial court suspended sentence as to count IV and placed appellant on thirty months probation to begin on the expiration of the prison terms.

For reversal appellant argues that the trial court erred in (1) refusing to dismiss the indictment, (2) improperly assuming the role of an advocate during the course of the trial, (3) granting the prosecution a continuance in order to develop additional evidence, (4) refusing to grant appellant's motion for judgment of acquittal, and (5) improperly conducting an evidentiary hearing in the absence of appellant. Appellant further argues that the evidence was insufficient to support the verdict.

For the reasons discussed below, we affirm the judgment of the trial court.

FACTS

This case involves the sale and delivery of two 1977 Lincoln Continental Mark V automobiles. The theory of the prosecution was that the cars were stolen in Michigan and that appellant then sold the cars through a third party, A.L. Scott, to individuals in Arkansas and drove the cars from Michigan to Arkansas.

Car # 1, VIN (Vehicle Identification Number) 7Y89A970966, was the car involved in counts I and II. Bobby Gene Davis bought this car from a Lincoln dealership in Detroit, Michigan, on September 2, 1977. Davis, an Oklahoma resident, was in Detroit visiting his brother. Davis reported the car was stolen from his brother's driveway on September 6, 1977. Davis had left the car papers in the glove compartment but obtained photocopies from the dealership. The car's VIN was written on the saleslip from the dealership.

At the end of September 1977, in Arkansas, Roger Burke bought car # 1 from a man who identified himself as "Mr. Gunter." Burke testified that appellant looked like "Mr. Gunter." The sale had been arranged through A.L. Scott. Gunter knew Scott because they had worked together on a construction project in Arkansas in 1975; Scott was a business acquaintance of Burke's. "Mr. Gunter" gave Burke a Michigan certificate of title which indicated the owner was a Michael Gunter, of 6148 Commonwealth, Detroit, Michigan. Burke attempted to register the car in Arkansas and discovered that the Michigan title was invalid. An Arkansas State Police investigation revealed that the car's VIN was 7Y89A970966, matching the VIN of the car stolen from Bobby Davis.

Car # 2, VIN 7Y89A852467, was a Ford Motor Company car assigned to company executive John Sattler for his personal use. Sattler had made arrangements to pick up the car at the Detroit airport upon his return from a business trip to California in July 1977. Sattler arrived at the airport but was unable to find his car.

In late August 1977, Beverly Yates purchased car # 2 in Detroit. Yates testified that she purchased the car from a black man in his late 20's, about 5'8 tall and weighing about 145 pounds. She further In early October 1977, Boyce Cranford purchased car # 2 from a man who identified himself as "Robert Young." Cranford was a business partner of Roger Burke and similarly acquainted with A.L. Scott. Cranford was interested in the same kind of car deal. The sale was arranged through Scott. Cranford testified that a man who identified himself as "Robert Young" gave him a Michigan registration, a Michigan certificate of title and a no-fault insurance form. The VIN on these papers was 7Y89A848547. Cranford was unable to identify the man who sold him the car but, in response to questions asked by the trial court, described the man as black, 5'10 tall, rather thin, relatively small and very nervous.

testified that she had never seen appellant and was unable to remember the name of the man who sold her the car. Yates' car registration papers reflect that the car's VIN was 7Y89A848547. She further testified that the car was stolen on September 29, 1977.

An official from the Michigan Department of State testified that Cranford's Michigan title, like Burke's, was invalid. In addition, William T. Bowling, a retired employee of the National Automobile Theft Bureau, testified that he examined car # 2 and found the true VIN was 7Y89A852467, matching the VIN of the company car originally assigned to Sattler. Car manufacturers evidently place a duplicate VIN on a relatively inaccessible part of a car, thus making the location and alteration of this VIN more difficult.

Scott's identification testimony was less than positive. Scott testified that appellant did not look much like Gunter, that he had not seen Gunter for more than two years, that he had worked with Gunter about a year in 1975, and that appellant had changed a lot if he was Gunter. In response to questions asked by the trial court, Scott testified about his work experience with Gunter, the employer (Highway Dump Haulers), and how the sales were arranged.

By this time it was about 3:30 p. m. on the first day of trial. The trial court granted the prosecution a brief continuance until 11:00 a. m. the following day to develop additional identification evidence. At 11:40 a. m. the next morning, the trial court met in chambers with the prosecutor and the defense counsel. The subject of discussion was the additional identification evidence sought to be introduced by the prosecution. Trial resumed at approximately 12:15 p. m. FBI agent Charles Poplinger testified that he had interviewed appellant in Detroit and that during the interview appellant provided his Social Security number (250-46-1843) and his address as 6148 Commonwealth, Detroit, Michigan. This was the address on the invalid Michigan title given by "Mr. Gunter" to Roger Burke. Marilyn Johnson, the secretary-treasurer and accountant of Highway Dump Haulers, testified as the business records custodian of that company and produced a W-4 tax withholding form for "Louie C. Gunter," of a local Arkansas address, Social Security number 250-46-1843.

The jury found appellant to be guilty on all four counts. This appeal followed.

I. Dismissal of Indictment

Appellant argues that the trial court erred in refusing to dismiss the indictment. Appellant argues that the grand jury did not have probable cause to issue the indictment because none of the witnesses before the grand jury identified appellant as the perpetrator of the crimes under investigation. We disagree. Appellant failed to raise this challenge to the indictment before trial as required by Fed.R.Crim.P. 12(b)(2). More importantly, appellant cannot challenge an indictment valid on its face on the ground that the grand jury acted on the basis of inadequate or incompetent evidence. United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974); Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956). Furthermore, A.L. Scott identified appellant by name in his testimony before the grand jury. It cannot be said that the grand jury in the present case indicted "a person totally unknown and as yet unconnected by any known evidence

with the offense." United States ex rel. Curtis v. Warden of Green Haven Prison, 329 F.Supp. 333, 335 (E.D.N.Y.1971), aff'd, 463 F.2d 84 (2d Cir. 1972). Cf. United States ex rel. Mouquin v. Hecht, 22 F.2d 264, 265 (2d Cir. 1927) ("The jurors do not indict the man who committed the crime, but him described in the evidence before them. ... They are to be understood, therefore, as indicting the persons described in the testimony, if doubt arises. Hence, if it be shown that the witnesses described the person arrested, he is the person indicted."), cert. denied, 276 U.S. 621, 48 S.Ct. 301, 72 L.Ed. 736 (1928).

II. Trial Judge as Advocate

Appellant next argues that the trial judge improperly assumed the role of an advocate on behalf of the prosecution during the course of the trial. See United States v. Lanham, 416 F.2d 1140 (5th Cir. 1969). The prosecution contends that the trial judge in questioning the witnesses was merely discharging his duty to clarify the witnesses' testimony. E. g., United States v. Harris, 546 F.2d 234, 238 (8th Cir. 1976); United States v. McColgin, 535 F.2d 471, 474-75 (8th Cir.), cert. denied, 429 U.S. 853, 97 S.Ct. 145, 50 L.Ed.2d 128 (1976); Scruggs v. United States, 450 F.2d 359, 361-63 (8th Cir. 1971), cert. denied, 405 U.S. 1071, 92 S.Ct. 1521, 31 L.Ed.2d 804 (1972); Kramer v. United States, 408 F.2d 837, 841 (8th Cir. 1969); Ray v. United States, 367 F.2d 258, 260-63 (8th Cir. 1966), cert. denied, 386 U.S. 913, 87 S.Ct. 863, 17 L.Ed.2d 785 (1967). Further, the prosecution notes that appellant made no objection to the trial judge's questioning of the witnesses and the trial judge expressly cautioned the jury in the instructions that his comments or questions were not intended to indicate his view of the facts of the case.

We note preliminarily that we must consider appellant's allegation of error under the plain error rule. However, we do understand why defense counsel was reluctant to make objections during trial and thus risk antagonizing the trial court and alienating the jury. Further, we do not consider the giving...