U.S. v. Howell, 80-7660

• Decision Date: 18 December 1981
• Docket Number: No. 80-7660,80-7660
• Citation: 664 F.2d 101
• Parties: 9 Fed. R. Evid. Serv. 825 UNITED STATES of America, Plaintiff-Appellee, v. Eddie HOWELL and Wayne E. Kittle, Defendants-Appellants. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 101

664 F.2d 101

9 Fed. R. Evid. Serv. 825

UNITED STATES of America, Plaintiff-Appellee, v. Eddie HOWELL and Wayne E. Kittle, Defendants-Appellants.

No. 80-7660.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Dec. 18, 1981.

Roland L. Enloe, Jr., Fort Oglethorpe, Ga., (court-appointed), for howell.

Jack T. Edmund, Bartow, Fla., for Kittle.

Charles Saphos, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Georgia.

Before FRANK M. JOHNSON, Jr., HENDERSON and THOMAS A. CLARK, Circuit Judges:

PER CURIAM:

The appellants, Eddie Howell and Wayne E. Kittle, were convicted in a jury trial of conspiracy to steal, transport and dispose of a motor vehicle and to transport and dispose of goods valued in excess of $5,000.00, 18 U.S.C. § 371; interstate transportation and sale of a stolen motor vehicle, 18 U.S.C. §§ 2, 2312 and 2313; and interstate transportation and sale of stolen goods valued in excess of $5,000.00, 18 U.S.C. §§ 2, 2314 and 2315. Both appellants contend that tape recordings of wire and oral communications admitted into evidence were obtained in violation of the federal wiretapping statute, 18 U.S.C. §§ 2510-2520. Kittle maintains further that hearsay evidence of his reputation was improperly admitted when his character had not been placed in issue, that the evidence was insufficient to support a guilty verdict, and that the evidence sustained his defense of entrapment as a matter of law. Howell claims that the hearsay evidence introduced to rebut Kittle's defense prejudiced his right to a fair trial, and compels separate trials. Finding no reversible error, we affirm.

In October 1977, Richard Allen Davey, an independent trucker, visited the Sand Mountain Farmer's Co-op in Henegar, Alabama, in the quest for work. Kittle, Davey's acquaintance from several years before, was the dispatcher for the co-op, which was owned by David Storey. Kittle told Davey that he was in a position to steal valuable truckloads of carpet anytime he wished. After procuring and hauling a load of chickens, Davey returned to his home in Jacksonville, Florida, and reported this conversation to the Federal Bureau of Investigation (FBI). The FBI had Davey telephone Kittle and tell him of a man in Chicago who was interested in stolen carpet. On December 1, 1977, Davey returned to the co-op at Kittle's invitation to discuss the load of carpet which Kittle had mentioned earlier. When he arrived, Kittle told him that government agents were present at the co-op, and that they would have to wait until things "cooled off" before Kittle could sell a load.

In early January 1978, Kittle made a telephone call to Davey in Florida, and reported that they were ready to deal and that Davey should contact Tom, the buyer from Chicago. On January 17, 1978, Davey called Kittle back, and told him that Tom was ready to purchase the load of stolen carpet. On January 19, 1978, Davey came to north Georgia and again telephoned Kittle. Kittle told him that he had "a boy named Jimmy" out looking for a load to steal. Two days later, Davey and Special Agent Tom Sobolewski met with Kittle at the co-op. Kittle directed them to rent a truck tractor and to return to their motel. ¹ He said that Howell (to whom he referred as "Eddie") would locate a load of carpet and take it from the manufacturer's lot. He explained that Howell would be able to remove the carpet with an unmarked truck because he was well known in the area.

Howell and Davey drove around the area looking for a load of carpet. Because it was a weekend, they were unable to find one, and after checking several mill lots Davey suggested that they might be able to steal the carpet from the co-op lot. When they returned to the hotel room, Howell repeated this suggestion to Sobolewski, and proposed also that Davey and Sobolewski should deal directly with him and cut Kittle out of the transaction. When Sobolewski pointed out that this might anger Kittle, it was agreed that Kittle should remain privy to the transaction, but that Howell might work with Sobolewski on another deal later.

After Kittle arrived, Davey, Sobolewski, Howell, and Kittle discussed further the logistics of stealing a load of carpet. Davey observed that it would be difficult for Howell to drive a stolen load past a guard, because he might be recognized later. Sobolewski then stated that they could possibly take a load of carpet from the co-op lot. Kittle assented to this idea. They discussed price. Kittle said that he would sell a tractor for $5,000.00, and a trailer loaded with carpeting for another $5,000.00. He stated that he would "go back to the yard (to) take inventory, find out who's going where and when," and then call Sobolewski and Davey. Davey and Sobolewski agreed to wait for the telephone call.

Later that evening, Howell called Sobolewski to say that he was at the co-op and that he would leave when the other employees departed the premises. Still later, Kittle called Davey to report that they could not get the truck started because of the temperature. He advised Davey and Sobolewski to return home, and that he would procure a load and send it down "that way" on Monday or Tuesday. Kittle said that he would call first. On January 25, 1978, Kittle called Davey saying that they had a load ready to deliver to the Twin-Six truck stop in Atlanta. He stated that Howell would make the delivery. Howell was to receive the payment at that time and then so inform Kittle. Davey agreed to contact Sobolewski and proceed to Atlanta. He asked Kittle to contact him and Sobolewski the next day in Atlanta.

The following day, Sobolewski telephoned Kittle, who related that the deal was definitely on and that carpet from World Carpet would be delivered after midnight. Later, Kittle told Sobolewski that delivery would be delayed. When Sobolewski insisted on a prompt conclusion of the transaction, Kittle became angry and offered to cancel the deal. Sobolewski managed to relieve the tension, and Kittle promised that the load would be delivered at about 3:00 o'clock a. m. at the Twin-Six truck stop in Atlanta, on January 28, 1978.

When Davey and Sobolewski went to the Twin-Six truck stop, they met Howell, who was driving a co-op truck and a trailer loaded with carpeting. They inspected the goods which Howell confirmed had come from World Carpet. Sobolewski then paid Howell $5,000.00. Howell protested that he had expected $10,000.00. Howell called Kittle, and both Howell and Sobolewski discussed the problem with him. Kittle agreed to accept $5,000.00 at that time and the remaining $5,000.00 later. Sobolewski and Kittle spoke several times after January 28, 1978, and eventually agreed to meet at the Days Inn motel in Ringgold, Georgia, for the final payoff. When Kittle entered the room, Sobolewski identified himself as an FBI agent.

During the course of the FBI investigation, numerous oral and telephone conversations were recorded by means of telephone pickups and Nagra body recorders. All of these conversations were attended by either Davey or Sobolewski, or both, and were party or consensual recordings within the meaning of 18 U.S.C. § 2511(2)(c).

Early during the trial Kittle's attorney questioned Special Agent Millard, who was in charge of the investigation, with respect to the purpose of the investigation. ² Later in the trial the government also introduced evidence on this point. Millard testified that he had information that the Sand Mountain Farmer's Co-op was the site for rebuilding stolen truck tractors for reuse in the co-op trucking business. He stated that other individuals told him that Kittle was David Storey's "right-hand man," and that this meant that he was the "middle man" for Storey. ³ Kittle objected to this evidence on the ground that reputation is not admissible as a rebuttal to the defense of entrapment, and further that "there has been an adequate explanation in the record as to why this investigation was commenced on the Mountain at that particular time." The district court admitted the testimony with the limiting instruction that the testimony "is admitted only for the purpose of explaining, if it does, conduct of other law enforcement officers or agents of other law enforcement officers or to explain, if it does, the conduct of this law enforcement officer. And, it is further admitted only as it may go, if it does, to any issue of entrapment."

When the government proffered its evidence concerning Kittle and the co-op, Howell moved for a severance. At that time Howell had not raised his entrapment defense, and he assigned as grounds for the motion the defendants' inconsistent defenses and undue prejudice to him as a result of the rebuttal evidence. The district court denied the motion subject to subsequent reconsideration.

The appellants urge that a warrant was required to record the conversations between them and the informant and the government agents, notwithstanding the fact that either Davey or Sobolewski was a party to or consented to the recording of each conversation. This argument is frivolous. United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); United States v. Shedan, 651 F.2d 336, 337 (5th Cir. Unit B 1981); United States v. Mendoza, 574 F.2d 1373 (5th Cir. 1978), cert. denied, 439 U.S. 988, 99 S.Ct. 584, 58 L.Ed.2d 661 (1978). The contention that consent only legitimates the interception, and not the reception into evidence of such conversations, is similarly without merit. 18 U.S.C. § 2515; see id. § 2511(1)(a), (2)(c).

The admission of Special Agent Millard's testimony respecting the reputation of Sand Mountain Farmer's Co-op as a center for the theft, refitting, and subsequent use of truck tractors and trailers was not error. Kittle first inquired as to the reason for the investigation, and he may not now complain that the answers resulted in a response from the...