U.S. v. Humphrey, s. 81-2233

• Decision Date: 27 December 1982
• Docket Number: Nos. 81-2233,81-2286 and 81-2287,s. 81-2233
• Citation: 696 F.2d 72
• Parties: UNITED STATES of America, Appellee, v. William M. HUMPHREY, Appellant. UNITED STATES of America, Appellee, v. Robert L. GETHERS, Appellant. UNITED STATES of America, Appellee, v. William E. MARSHALL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 72

696 F.2d 72

UNITED STATES of America, Appellee, v. William M. HUMPHREY, Appellant.

UNITED STATES of America, Appellee, v. Robert L. GETHERS, Appellant.

UNITED STATES of America, Appellee, v. William E. MARSHALL, Appellant.

Nos. 81-2233, 81-2286 and 81-2287.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 14, 1982.

Decided Dec. 27, 1982.

Elliott, Kaiser & Freeman by Mark G. Flaherty and Petra T. Tasheff, Kansas City, Mo., for appellants Gethers and Humphrey and on the brief for appellant Marshall.

Robert G. Ulrich, U.S. Atty., Linda L. Sybrant, Mark J. Zimmermann, Asst. U.S. Attys., Kansas City, Mo., for appellee.

Before HEANEY and ROSS, Circuit Judges, and HENLEY, Senior Circuit Judge.

HENLEY, Senior Circuit Judge.

Appellants challenge their convictions for possession of, and conspiracy to possess, goods stolen from interstate shipment. We affirm the judgments of the district court. ¹

A trailer loaded with thirteen-speed truck transmissions, parts, and men's jackets was stolen from a Yellow Freight terminal in Shenandoah, Iowa, on August 22 or 23, 1980. On or about August 25, Dennis Braidick asked George Lutz and William Learn to help him move some transmissions. At some point during the last week of August, Braidick, Lutz, Learn, and appellant William Humphrey drove from Kansas City to a farm near Maysville, Missouri. There was evidence that appellant William Marshall, who managed the farm which was owned by his mother, was present when the men arrived sometime after midnight. The five men proceeded to unload a Yellow Freight trailer which was parked in a grove of trees. Some boxes of transmissions were loaded onto a flatbed truck; others were left on the ground. Lutz and Learn drove the flatbed truck back to Kansas City and parked it in Humphrey's garage at his residence in Grandview, Missouri. During the first week of September, Lutz returned to the farm in a rental truck. He loaded a number of transmissions, drove back to Kansas City, and parked the truck near an apartment belonging to appellant Robert Gethers.

On September 4 Humphrey attempted to sell some transmissions to undercover FBI agents, but negotiations broke down and the sale was not completed. Meanwhile, a second rental truck was obtained by Lutz with money furnished by Gethers. Braidick, Lutz, and Gethers used this second truck to transport four transmissions, which had been transferred from the first rental truck, to St. Joseph, Missouri, where Gethers contacted Thomas Custer and arranged a sale to Custer's employer Gerald Warner. Upon delivery of the transmissions to his shop, Warner tendered $4,000.00 to Gethers but was told to give the money to Braidick. Lutz testified that Braidick later gave Gethers $1,000.00.

Two days later Braidick and Lutz returned to St. Joseph with fourteen additional transmissions. Warner, who had become alerted to the theft, subsequently contacted the authorities and instructed Braidick to pick up the transmissions. Braidick and Lutz were arrested on September 17 as they returned from St. Joseph with the transmissions. They directed the FBI to the farm in Maysville where, on the following day, agents found Marshall driving a tractor which was loaded with several transmissions. Marshall cooperated by showing where the remaining goods were located. On this same day, Gethers called Warner. During the conversation, which Warner taped, Gethers asked whether a Yellow Freight dock foreman named Davis had been "smelling around." Gethers later called Custer and told him to "play it cool" if the FBI came to see him.

Gethers, Humphrey and Marshall were tried before a jury and convicted of possession of, and conspiracy to possess, goods stolen from interstate shipment in violation of 18 U.S.C. Secs. 659 and 371. ²

Appellants' first arguments on appeal concern the sufficiency of the evidence. Gethers asserts that there was insufficient evidence that he was in possession of the goods. All appellants contend that there was insufficient evidence that they knew the goods were stolen. They also attack the sufficiency of the evidence supporting the findings of the existence of a conspiracy and of their participation in it. We find these contentions meritless.

All appellants demonstrated the dominion and control over the goods necessary to establish possession, either by physically handling or transporting the goods, or by engaging in negotiations for their sale. See United States v. Anderson, 552 F.2d 1296, 1301 (8th Cir.1977); United States v. Dugan, 477 F.2d 140 (8th Cir.1973). Possession of recently stolen goods gives rise to a permissible inference of knowledge that the goods are stolen unless possession is otherwise reasonably explained. United States v. Hardesty, 645 F.2d 612, 614 (8th Cir.1981). This inference is strengthened in the present case by the clandestine nature of the midnight transfer of goods from the trailer hidden in a grove of trees and by certain statements allegedly made by appellants indicating that they knew the goods were stolen. ³ As for the conspiracy, we think the evidence of appellants' cooperative efforts to transfer and to sell the goods demonstrates both the existence of an agreement and appellants' participation in attempting to carry it out. See United States v. Brown, 584 F.2d 252, 262 (8th Cir.1978), cert. denied, 440 U.S. 910, 99 S.Ct. 1220, 59 L.Ed.2d 458 (1979).

Appellants next contend that the trial court erred in sending certain isolated instructions to the jury without rereading all the instructions. Specifically, the court sent, at the jury's request, a copy of the instruction containing the indictment. The objection was raised that the indictment would confuse the jury and prejudice them against defendants. The jury then asked for a copy of all instructions. Due to the condition of the instructions after numerous handwritten changes, the court responded that the full text could not be provided for at least an hour. The court added that the jury could rehear the instructions, but reminded them that a rereading would take about forty-five minutes, whereupon the jury requested the definition of possession which the court supplied over objection.

This court, in United States v. Wedelstedt, 589 F.2d 339 (8th Cir.1978), cert. denied, 442 U.S. 916, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), held that submission of the indictment to the jury was within the discretion of the trial court as long as the jury was instructed that the indictment is not evidence. Id. at 350. It is not apparent from the record whether the instruction submitted to the jury included such an admonition. However, the court emphasized during oral instruction after arguments that the indictment was merely a formal charge and was not evidence in any way of the guilt of defendants. Although such an instruction...