U.S. v. Hines

• Decision Date: 09 January 1978
• Docket Number: No. 76-1665,76-1665
• Citation: 564 F.2d 925
• Parties: 2 Fed. R. Evid. Serv. 1166 UNITED STATES of America, Plaintiff-Appellee, v. Coy HINES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 925

564 F.2d 925

2 Fed. R. Evid. Serv. 1166

UNITED STATES of America, Plaintiff-Appellee, v. Coy HINES, Defendant-Appellant.

No. 76-1665.

United States Court of Appeals, Tenth Circuit.

Submitted Sept. 27, 1977.

Decided Nov. 3, 1977.

Certiorari Denied Jan. 9, 1978.

See 98 S.Ct. 748.

Betty Outhier Williams, Asst. U.S. Atty., Muskogee, Okl. (Richard A. Pyle, U.S. Atty., Muskogee, Okl., on the brief), for plaintiff-appellee.

Sheldon K. Ginsberg, Denver, Colo., for defendant-appellant.

Before McWILLIAMS, BREITENSTEIN and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

Coy Hines appeals his jury conviction on five counts of selling stolen motor vehicles transported in interstate commerce knowing the same to have been stolen, in violation of 18 U.S.C. § 2313. He received identical concurrent sentences on all five convictions. On appeal, Hines challenges (1) the sufficiency of the evidence, and (2) the trial court's denial of his motions to quash a search warrant and suppress evidence obtained in the search.

The vehicle thefts occurred in Texas and the five vehicles were sold in Oklahoma following the thefts. Inasmuch as Hines was sentenced to serve concurrent sentences, we need only hold that one of the five guilty verdicts is without reversible infirmities. Barnes v. U.S., 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); U.S. v. Gamble, 541 F.2d 873 (10th Cir. 1976). We decline to consider the contentions relating to counts other than Count I, and we, accordingly, affirm Hines' conviction on that count.

Count I charged the theft of a 1975 Lincoln Continental Mark IV. The vehicle's owner, Gladys Ritchie, testified that she had reported to the Ft. Worth Police Department that it was stolen from a parking lot at Will Rogers Coliseum in Ft. Worth, Texas, on October 28, 1975. Her report was, in turn, communicated by the Ft. Worth Police Department to the National Crime Information Center (NCIC).

In November, 1975, Hines sold a 1975 Lincoln Continental Mark IV to David Cribbs in Milburn, Oklahoma. Cribbs was not provided a certificate of title to the car. On December 11, 1975, FBI Agent Danzer examined Cribbs' car at his residence, with his permission. The examination revealed a discrepancy between the public vehicle identification number (VIN) and the confidential VIN. After discovering this discrepancy, Danzer "ran" the confidential VIN through the NCIC computer and received a "hit"; that is, the VIN on the Lincoln sold to Cribbs by Hines was identical to the VIN on the Lincoln belonging to Ritchie. Hines was subsequently arrested and indicted.

I.

Hines attacks his conviction on the basis that there is insufficient evidence to support it. In assessing the merits of his contention, we must be guided by the often-expressed principle that, following a conviction, the evidence must be viewed in the light most favorable to the Government. U.S. v. Gamble, supra; U.S. v. Yates, 470 F.2d 968 (10th Cir. 1972). In determining whether there is substantial evidence, the appellate court must consider both direct and circumstantial evidence, together with all reasonable inferences to be drawn therefrom, from which a jury might find guilt beyond a reasonable doubt. U.S. v. Crocker, 510 F.2d 1129 (10th Cir. 1975); U.S. v. Downen, 496 F.2d 314 (10th Cir. 1974), cert. denied, 419 U.S. 897, 95 S.Ct. 177, 42 L.Ed.2d 142 (1975); U.S. v. Yates, supra.

In order to sustain a conviction for violation of 18 U.S.C. § 2313, it must be proved that: (1) the vehicle was stolen; (2) the vehicle was transported in interstate commerce; and (3) the defendant had knowledge that the vehicle was stolen when he received, concealed, stored, bartered, sold or disposed of it. U.S. v. Smith, 461 F.2d 246 (10th Cir. 1972); Phillips v. U.S., 206 F.2d 923 (10th Cir. 1953). Hines contends that there was not sufficient evidence to prove that the Lincoln sold to Cribbs by Hines was, in fact, the car that was stolen from Ritchie. The basis for this challenge is that hearsay evidence was improperly admitted to establish this nexus.

It is basic, of course, that the stolen vehicle and the one in the buyer's possession must be one and the same vehicle. U.S. v. Bryant, 490 F.2d 1372 (5th Cir. 1972). It then follows that the Government must prove this fact.

Hines alleges that the Government failed to prove this essential element because its witnesses relied upon information gathered from the NCIC computer bank and an invoice in testifying about the theft.

Hines relies on U.S. v. Johnson, 413 F.2d 1396 (5th Cir. 1969), in challenging the use of NCIC information, wherein testimony of an FBI agent relating to information received from the NCIC network was deemed to be double hearsay. In that case, unlike the instant case, the owner of the vehicle did not appear to testify as to the vehicle stolen. The Government tried, unsuccessfully, to introduce NCIC data as direct evidence of the theft. Here, however, testimony by FBI Agent Danzer as to information received from the NCIC computer bank was offered to corroborate that presented by the vehicle's owner; the NCIC information was not offered as direct evidence that the theft had occurred.

There are very few decisions where the reliability of NCIC reports has been challenged. However, information received from the NCIC computer bank has been routinely accepted in establishing probable cause for a valid arrest. See, e.g., U.S. v. Smith, supra. It logically follows, we believe, that if an NCIC "hit" is deemed adequate to establish probable cause for a valid arrest, it certainly possesses a sufficient degree of reliability and trustworthiness to qualify as corroborative evidence of a vehicle theft. Because of this reliability, NCIC information has also been admitted for the purpose of refreshing an FBI agent's recollection about identification of a stolen vehicle. U.S. v. Godwin, 522 F.2d 1135 (4th Cir. 1975). Additionally, when used to corroborate the true owner's testimony concerning a theft, a...