U.S. v. Leslie, 76-1498

• Decision Date: 12 November 1976
• Docket Number: No. 76-1498,76-1498
• Parties: 2 Fed. R. Evid. Serv. 614 UNITED STATES of America, Plaintiff-Appellee, v. Robert Wade LESLIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 285

542 F.2d 285

2 Fed. R. Evid. Serv. 614

UNITED STATES of America, Plaintiff-Appellee, v. Robert Wade LESLIE, Defendant-Appellant.

No. 76-1498.

United States Court of Appeals, Fifth Circuit.

Nov. 12, 1976.

William Northington Clark (Court-appointed), Birmingham, Ala., for defendant-appellant.

Wayman G. Sherrer, U. S. Atty., George C. Batcheler, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before RIVES, GEWIN and MORGAN, Circuit Judges.

GEWIN, Circuit Judge:

Appellant was convicted of transporting a stolen 1972 Chevrolet Vega from Indianapolis, Indiana, to Huntsville, Alabama, and of feloniously selling and disposing of it there. ¹ He was represented by court-appointed counsel and was tried by a jury. The district court sentenced him to two years' imprisonment. Appellant urges numerous grounds for reversal, but primarily emphasizes insufficiency of the evidence and the government's examination of three witnesses called by the court. After detailed consideration of the facts in the record, we affirm.

On June 6 or 7, 1974, Michael G. Noblitt, a special agent of the Federal Bureau of Investigation ("FBI"), received information from a confidential source that a stolen 1972 Vega would be delivered to Pogue's Body Shop in Huntsville at about 9:00 a. m. on June 8, 1974. Noblitt and two other agents began surveillance of Pogue's shop at approximately 8:00 a. m. on June 8, and 15 minutes later four men in a Buick Riviera arrived at the shop. They left shortly thereafter with an Alabama license tag for use on the Vega. About five minutes later the men, including the appellant, returned in the Buick and talked with Pogue. Again they left, but they returned 15 minutes later with both the Buick and the Vega. They left the Vega at the shop, driving away in the Buick. Noblitt then checked the vehicle identification number on the Vega and reported it to the National Crime Information Center. Shortly thereafter he received a response that a car with that number had been reported stolen on June 3 to the sheriff's office in Marion County, Indiana. Ten minutes later the four men returned in the Buick and talked with Pogue. Pogue left the lot in the Vega, and the agents arrested the four men.

Soon after their arrests the four men, identified as Robert Wade Leslie, Cornelius Gayle, ² Charles Lynch, and Donnie Rogers, gave statements to the FBI. All four were convicted on guilty pleas in September, 1974, but the subsequent vacation of appellant's conviction resulted in the proceedings below and this appeal. The statements of Gayle, Lynch, and Rogers to the FBI indicated that the four men left Indianapolis in the Vega and Buick around midnight prior to the day of their arrests, that they changed drivers in Nashville, and that they met for breakfast at the Elks Club in Huntsville before the conversations and delivery of the Vega observed by the agents. The statements did not directly implicate Leslie as having knowledge that the Vega was stolen. However, they tended to support the inference that Leslie promoted the trip and that he was the "ringleader." Rogers said that Leslie had invited him to travel to Huntsville for the weekend, and all three told the FBI that Leslie was the only one of the four who rode the entire way to Huntsville in the Vega. Gayle told the agents that he thought the Vega belonged to Leslie, and all three thought that the Buick belonged to Leslie's girlfriend.

The government based its case primarily on the testimony of Eddie Pogue and agent Noblitt. Pogue testified that he knew Leslie as "Dave" from prior dealings and that Dave had arranged by telephone on June 7, 1974, the day before the arrests, to sell a 1972 Vega to Pogue for $400, to be delivered on June 8. Noblitt testified regarding the call he had received, the FBI surveillance, and his observations at the time the Vega was delivered.

Upon the government's request, the court called Gayle, Lynch, and Rogers to testify as court witnesses. Gayle testified that he stole the Vega and, using the name Dave, made arrangements with Pogue for its disposition. He stated that only Rogers knew the car was stolen. Lynch and Rogers testified that Gayle had invited each of them to travel with him to Huntsville and that they had no knowledge of Leslie's involvement in the car theft. Finally, all three testified that Leslie rode in the Buick, not in the Vega, during the entire trip to Huntsville. The government used the prior statements and guilty pleas of Gayle, Lynch, and Rogers in an attempt to impeach their credibility. All three admitted signing a form waiving specified rights, including the right to remain silent. Lynch and Rogers admitted making the written statements introduced by the government, and Gayle admitted making most of the statements he was examined about. By way of explanation of the inconsistency between the FBI statements and their trial testimony, the three witnesses denied the truth of parts of their statements and had failures of memory about the truth of other parts. Gayle testified that he was under the influence of "speed," "acid," and barbiturates when he gave the FBI his statement, and Lynch testified that he had smoked marijuana during the car ride to Huntsville. Further, all three said that they were under the impression that they would perhaps receive more favorable disposition of the charges against them if they would give statements and cooperate. The government offered testimony from agents Noblitt and Kennedy to show that the FBI statements were given freely, without any promise or hope of reward, and uninfluenced by the effects of drugs. The trial court instructed the jury that prior inconsistent statements could be used only in determining credibility, not as substantive evidence. The prosecutor was also allowed to question Gayle, Lynch, and Rogers briefly about their guilty pleas.

I. Sufficiency of the Evidence.

On appeal from a conviction courts are to view the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680, 704 (1942); United States v. Box, 530 F.2d 1258, 1263 (5th Cir. 1976); United States v. Arias-Diaz, 497 F.2d 165, 168 (5th Cir. 1974). The jury found that appellant, aided and abetted by Gayle, Lynch, and Rogers, transported a stolen Vega across state lines knowing it to have been stolen and that he knowingly and feloniously sold and disposed of it. There was evidence that the Vega delivered to Pogue had been stolen, that appellant was known to Pogue as "Dave," that Pogue had previously met and purchased a car from him, thereby becoming familiar with his voice and appearance, that Dave telephoned Pogue on June 7 to arrange a sale of the car, that appellant and three others drove to Huntsville in the Vega and Buick that night, obtained an Alabama license tag from Pogue for use on the Vega, and finally left the Vega at Pogue's garage under suspicious circumstances. Although some of the evidence was conflicting, the jury could reasonably and logically infer from this evidence that Leslie initiated and directed the transaction knowing the Vega to have been stolen. See Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137, 99 L.Ed. 150, 166 (1954); United States v. Warner, 441 F.2d 821, 825 (5th Cir. 1971).

II. Impeachment of the Court's Witnesses.

Appellant's other major contention is that the court erred in calling Gayle, Lynch, and Rogers as court witnesses and in allowing the government to impeach them with their prior inconsistent statements and guilty pleas. After establishing that the Vega had been stolen and after eliciting the testimony of agent Noblitt and Mr. Pogue, the prosecutor requested that the court call Cornelius Gayle as a witness. He explained that the government considered Gayle an "adverse party" and that it did not wish to adopt his testimony. The government considered Gayle adverse or hostile because just prior to trial he told the prosecutor that his testimony would differ considerably from his FBI statement. On that basis the court called Gayle, as well as Lynch and Rogers upon similar representations by the government.

Federal Rule of Evidence 614 provides that a trial court may call witnesses on its own motion or at the suggestion of a party and that "all parties are entitled to cross-examine witnesses thus called." ³ Neither the rule nor the Advisory Committee Note thereto suggest what standards, if any, are to guide a court when requested by a party to call a witness. However, the note does suggest reasons for the court calling a witness Other reasons remain . . . to justify the continuation of the practice of calling court's witnesses. The right to cross-examine, with all it implies, is assured. The tendency of juries to associate a witness with the party calling him, regardless of technical aspects of vouching, is avoided. And the judge is not imprisoned within the case as made by the parties. F.R.Evd. 614, 28 U.S.C.A. at 435 (1975).

Rules 607 and 611 would appear to allow the government to lead, cross-examine, and impeach its own witness in cases like the instant one. ⁴ Yet given the asserted likelihood that Gayle, Lynch, and Rogers would testify adversely to the government, leading to the inevitable government attempt to impeach, the court could properly protect the prosecution from whatever tendency the jury might have had to associate the witnesses with the calling party. It is particularly important in a case such as the instant one that the testimony of material witnesses be presented to the jury. The crucial issues at trial involved appellant's knowledge, not his objective conduct. The best evidence of what appellant knew was in the recollections of his traveling companions. If a trial court could only call a witness in...