U.S. v. Henneberry, s. 82-1829

• Decision Date: 27 October 1983
• Docket Number: 82-1830,Nos. 82-1829,s. 82-1829
• Parties: 14 Fed. R. Evid. Serv. 820 UNITED STATES of America, Appellee, v. Daniel R. HENNEBERRY and William A. Youngerman, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 941

719 F.2d 941

14 Fed. R. Evid. Serv. 820

UNITED STATES of America, Appellee, v. Daniel R. HENNEBERRY and William A. Youngerman, Appellants.

Nos. 82-1829, 82-1830.

United States Court of Appeals,

Eighth Circuit.

Submitted April 11, 1983.

Decided Oct. 27, 1983.

Martin, Bahn & Cervantes, James M. Martin, St. Louis, Mo., for appellant Henneberry.

Robert A. Hampe, St. Louis, Mo., for appellant Youngerman.

Thomas E. Dittmeier, U.S. Atty., Mitchell F. Stevens, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before LAY, Chief Judge, and McMILLIAN and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

The sale of a truckload of Panasonic electronic equipment to an FBI sting operation resulted in the indictment of William Youngerman and Daniel Henneberry for conspiring to receive and possess stolen goods in violation of 18 U.S.C. Sec. 371, and for receiving and possessing those goods in violation of 18 U.S.C. Sec. 659. Youngerman was convicted of both counts and Henneberry the Sec. 659 count. The district court ¹ sentenced Youngerman to fifteen years' imprisonment, and Henneberry to thirty months' imprisonment. Both appeal, primarily contesting the sufficiency of the evidence underlying their convictions. They also challenge the stolen character of the goods in their possession, the admission of a bill of lading into evidence, the transcripts of voice recordings to the jury and numerous other claimed trial errors. We affirm the convictions.

Between July 1980, and March 1982, the Federal Bureau of Investigation conducted a "sting" operation in southeast Missouri to purchase stolen property. Two undercover FBI agents, Richard Heideman and Ray Christopher operated an automobile salvage yard called Leblanc Auto Sales, in Benton, Missouri.

On January 7, 1982, Youngerman telephoned special agent Heideman and said that a 45-foot trailer loaded with televisions, video cameras and other electronic equipment had been stolen approximately two weeks before, that the value of the articles was approximately $320,000, and that if he and Mr. LeBlanc were interested in purchasing the goods they could probably buy them for $40,000. A series of telephone calls ensued between the agents and Youngerman. Finally, it was agreed that the agents would meet with Youngerman and that they would view the trailer and its contents, with the idea of possibly buying it.

On January 9, 1982, both undercover agents met with Youngerman at a tavern in St. Louis. There Youngerman introduced Larry Dryden to the agents and instructed the agents to follow them to a location in Mexico, Missouri. Upon arriving at the parking lot of J.C. Truck Repair, the agents were directed to a trailer truck which Henneberry was operating. The agents, Youngerman, and Dryden, approached the truck, and Henneberry was introduced to the agents. All five then proceeded to the back of the trailer. While Heideman stood outside with Henneberry and Dryden, Christopher and Youngerman entered the trailer and inventoried the Panasonic equipment it contained.

When the inventory was completed, all five met at the "Attic Lounge" in Mexico, Missouri. Following discussions concerning price, it was agreed that the agents would buy the trailer load for $32,000, and that the agents would bring their own tractor-truck to haul away the equipment.

On January 11, 1982, the agents met Youngerman at a prearranged location and proceeded to J.C. Truck Repair. There Youngerman and the agents were met by Dryden and Henneberry. With the assistance of Henneberry, the tractor-truck driven by the agents was hooked to the stolen trailer and the appropriate mechanical and electrical connections made. Agent Christopher, Youngerman, and Dryden entered Youngerman's car, and Christopher handed $32,000 in cash to Youngerman, who handed it to Dryden. The agents then left Mexico, Missouri, with the stolen load.

Later the FBI inventoried the load and determined that this was the same equipment that had been stolen from a Panasonic warehouse on December 23, 1981.

I.

A.

Youngerman and Henneberry contend that the trial court erred in denying their motion for acquittal because the evidence was insufficient to sustain their convictions under 18 U.S.C. Sec. 659.

When an attack is made upon the sufficiency of the evidence, the jury's verdict must be sustained if there is substantial evidence, viewed in the light most favorable to the Government, to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Abernathy, 688 F.2d 576, 581 (8th Cir.1982). The Government is entitled to the benefit of all reasonable inferences. United States v. Steffen, 641 F.2d 591, 597 (8th Cir.), cert. denied, 452 U.S. 943, 101 S.Ct. 3091, 69 L.Ed.2d 959 (1981).

For a conviction under 18 U.S.C. Sec. 659 the government must prove (1) that the chattels were stolen, (2) that they had a value in excess of $100, (3) that defendants had possession of the chattels, (4) that possession was with knowledge that the chattels were stolen, and (5) that the chattels were part of an interstate shipment. United States v. Beck, 659 F.2d 875, 877 (8th Cir.1981). In this appeal the only issues concern the evidence supporting the possession, knowledge, and interstate elements of the offense.

Evidence of actual possession is not necessary to sustain a conviction under the statute; constructive possession is sufficient. United States v. Beck, supra, 659 F.2d at 877; United States v. Dugan, 477 F.2d 140, 141 (8th Cir.1973); United States v. Stephenson, 474 F.2d 1353, 1355 (5th Cir.1973); Sewell v. United States, 406 F.2d 1289, 1293 (8th Cir.1969). To be in constructive possession, a person must knowingly have both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons. Sewell v. United States, supra, 406 F.2d at 1293 n. 3.

The evidence is sufficient to support a finding that Youngerman and Henneberry were in constructive possession of the goods in question. On two separate occasions on January 7, 1982, and on one occasion on January 8, 1982, Youngerman spoke with the agents about buying the stolen property. On January 9, 1982, Youngerman spoke on the telephone on three occasions with the undercover agents regarding viewing and inventorying the load. That same day both Youngerman and Dryden met the agents for the purpose of directing the agents to the stolen load. After the agents followed Youngerman and Dryden to Mexico, Missouri, Youngerman physically got into the stolen trailer and conducted an inventory of goods along with the agent. After inventorying the load, the agent had a conversation with both Youngerman and Dryden as to whether or not he would take the load that night. Both Henneberry and Youngerman accompanied Dryden and the agents to the lounge in Mexico, Missouri, where the inventory and sales price were discussed. On January 11, 1982, Youngerman met the agents at a prearranged location along Highway 70 on the way to Mexico, Missouri. There Youngerman, Henneberry and Dryden accompanied the agent to the back of the trailer to view the contents once again.

As with Youngerman, Henneberry's actions during this period demonstrated a directive role in the delivery and concealment of the stolen property. Upon arrival at the location of the stolen tractor on January 9, the agents initially observed Henneberry in a tractor-trailer truck, which was running and attached to the stolen trailer. While Youngerman and one of the agents were in the trailer conducting inventory, Henneberry was at the back of the trailer with his son who had what appeared to be a weapon projecting from his coat. Dryden told Henneberry at this time that if the agents were to take the load that night Henneberry would have to drive it immediately.

In addition to Henneberry's actions on January 9, and January 11, his conversations with the agents at the Attic Lounge indicated his possessory interest in the stolen goods. At the Attic Lounge when the discussion centered on the quantity of goods left in the trailer, Henneberry admitted to having previously counted the stolen goods, and further indicated that he previously tried to paint the trailer to hide its true nature, but the paint would not hold in cold weather.

The record provides direct evidence that the defendants knew the goods were stolen at the time of possession. During his initial conversation with Agent Heideman on January 7, 1982, Youngerman asked the agent whether he would be interested in a trailer loaded with electronic equipment and went on to elaborate that the goods and trailer were stolen two weeks earlier; this same information was related to Agent Christopher by Youngerman the same day. Henneberry admitted during his testimony at trial that he told Agent Heideman at the Attic Lounge on January 9, that Larry Dryden had stolen the trailer and that he did so by crashing the gates.

Henneberry contends, however, that he cannot be convicted of a possession offense because he had no knowledge that the goods inside the trailer were stolen at the time Dryden brought them to the area of Mexico, Missouri. Henneberry testified that Dryden, who was having marital problems, was hiding household furniture from his wife and that at the time the trailer was brought on the premises of J.C.'s Truck Repair, Henneberry had no idea that stolen property was inside the trailer. The short answer to Henneberry's argument is that section 659 does not require that knowledge exist from the incipiency of possession. During the time period charged in the indictment--January 9, 1982, to January 11, 1982--Henneberry admittedly did have knowledge that the goods were stolen.

To establish the interstate nexus requirement of section 659, there must be evidence that the stolen chattels or goods were "moving as or which are a part of or which constitute an interstate or...