U.S. v. Larson, 76-2003

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: Before LAY and HENLEY, Circuit Judges, and NANGLE; NANGLE
• Citation: U.S. v. Larson, 555 F.2d 673 (8th Cir. 1977)
• Decision Date: 26 May 1977
• Docket Number: No. 76-2003,76-2003
• Parties: 2 Fed. R. Evid. Serv. 49 UNITED STATES of America, Appellee, v. Thomas Alvin LARSON, Appellant.

Page 673

555 F.2d 673

2 Fed. R. Evid. Serv. 49

UNITED STATES of America, Appellee, v. Thomas Alvin LARSON, Appellant.

No. 76-2003.

United States Court of Appeals Eighth Circuit.

Submitted April 11, 1977.

Decided May 26, 1977.

Ronald L. Haskvitz, Minneapolis, Minn., for appellant.

Richard E. Vosepka, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Robert G. Renner, U. S. Atty., Minneapolis, Minn., on brief.

Before LAY and HENLEY, Circuit Judges, and NANGLE, District Judge. ^*

NANGLE, District Judge.

Thomas Alvin Larson appeals his conviction of transportation of a stolen automobile in interstate commerce. 18 U.S.C. § 2312. On appeal, he contends that (1) the evidence was insufficient to support his conviction; (2) pre-indictment and pre-trial delay denied him due process of law; (3) there was an improper search and seizure; (4) the trial court erred in admitting certain testimony; (5) appellant was prejudiced by the failure of the government to comply with the trial court's order to disclose the names of witnesses; (6) certain statements were erroneously not revealed to defendant; and (7) the jury was improperly instructed. We affirm.

Viewing the evidence in the light most favorable to the government, United States v. Joyner, 539 F.2d 1162 (8th Cir. 1976); United States v. Oliver, 525 F.2d 731 (8th Cir. 1975), the following was adduced at trial: defendant owned an auto salvage company in Minnesota. On April 25, 1974, he placed a deposit on a 1973 Oldsmobile Cutlass Supreme which was cranberry in color and had a wrecked front end. On April 30, 1974, an undamaged 1973 green Oldsmobile Cutlass Supreme was stolen from the Kline Oldsmobile lot in Roseville, Minnesota. On May 11, 1974, one of defendant's employees paid the remainder of the money due on the cranberry Cutlass and brought it to defendant's place of business. On May 15, 1974, defendant attempted to sell a green Cutlass at an auction near Milwaukee, Wisconsin. The vehicle identification number on the dash of this green Cutlass belonged to the cranberry Cutlass; the title was also from the cranberry Cutlass. The manager of the auction became suspicious when defendant stated that he had rebuilt the Cutlass which he was attempting to sell. The manager felt that the car could not have been rebuilt, as defendant represented, in such a short time period. The manager contacted the Federal Bureau of Investigation but defendant left before an agent arrived. On May 24, 1974, defendant sold the green Cutlass in Minnesota to Richard Major, using the cranberry Cutlass' title and dash number. The green Cutlass had a confidential vehicle identification number which revealed that it was in fact the automobile which had been stolen from Kline Oldsmobile.

At trial, defendant contended that the green Cutlass was rebuilt from the cranberry Cutlass. He also presented evidence that he had purchased the green Cutlass from an individual named Anderson although Anderson was not called to testify. Defendant admitted at trial that he had caused the green Cutlass to be transported from Minnesota to the auction in Milwaukee, Wisconsin.

It is our conclusion that the evidence was clearly sufficient to warrant submission to the jury. There was sufficient proof that the green automobile had been stolen and that defendant transported it to another state. The circumstantial evidence was sufficient to warrant a conclusion by the jury that defendant knew that the vehicle was stolen.

Although the automobile in question was alleged to have been in defendant's possession on May 15, 1974, he was not indicted until May 25, 1975. Trial commenced on August 23, 1976. Defendant contends that he was denied due process because of the pre-indictment delay; he also contends that he was denied a speedy trial. In order to determine whether there has been a denial of due process due to the delay between the date of offense and the date of indictment, the Court must balance "the reasonableness of the delay against the prejudice to the accused * * * " United States v. Washington, 504 F.2d 346 (8th Cir. 1974). Cf., United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

Defendant's assertion of prejudice is that the green Cutlass, which had been in FBI custody, had been released, and at the time of indictment, was located in the state of Washington. Defendant argues that the government had a duty to preserve the automobile. See United States v. Bryant,142 U.S.App.D.C. 132, 439 F.2d 642 (1971). We fail to see the prejudice under the circumstances herein. Defendant was able to inspect the vehicle before trial and presented expert testimony on the question of whether the vehicle had been rebuilt as defendant asserted. Moreover, we conclude that the delay between the date of offense and the date of indictment was reasonable. It was some time before the FBI was able to inspect the automobile initially as the man who then had possession of it was frequently away from home. Once an initial inspection had been made, the FBI had to trace the multiple identification numbers located on the vehicle. Since defendant has failed to show prejudice and the delay was reasonable under the circumstances, this claim must fail.

Factors to be considered in determining whether defendant has been denied a speedy trial are length of delay, reason for delay, defendant's assertion of right, and prejudice. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); United States v. Dowl, 394 F.Supp. 1250 (D.Minn.1975). Although the delay herein is questionable, United States v. Washington, 504 F.2d 346 (8th Cir. 1974), the delay was occasioned in part by extensive motions filed by defendant. In addition, we fail to see any prejudice which defendant suffered as a result. Balancing these factors, we conclude that defendant was not denied his constitutional right to a speedy trial.

Defendant contends that the trial court erred in refusing to suppress evidence obtained through an allegedly illegal search and seizure. A review of the transcript establishes that the government did not introduce any evidence resulting from said search; it was defendant who introduced such evidence. Under these circumstances, we will not review the trial court's ruling on the validity of the search and subsequent seizure, since the rule excluding the admissibility of such evidence relates to its use by the prosecution. Cf., Davis v. Mississippi, 394 U.S. 721, 724, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

Defendant also contends that he was denied due process because the government failed to comply with a pre-trial order to disclose the names of witnesses one day before trial. The list was not produced until the morning of trial and three witnesses were called who were not on the list. It is clear that defendant is not...