U.S. v. Loder

• Decision Date: 03 March 1994
• Docket Number: No. 92-2067,92-2067
• Parties: UNITED STATES, Appellee, v. Paul LODER, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 586

23 F.3d 586

UNITED STATES, Appellee, v. Paul LODER, Defendant, Appellant.

No. 92-2067.

United States Court of Appeals First Circuit.

Heard March 3, 1994.

Decided May 11, 1994.

Charles W. Rankin with whom Rankin & Sultan, Boston, MA, was on brief for appellant.

James F. Lang, Asst. U.S. Atty., with whom Donald K. Stern, U.S. Atty., Boston, MA, was on brief for appellee.

Before BOUDIN, Circuit Judge, COFFIN, Senior Circuit Judge, and PETTINE, ^* Senior District Judge.

PETTINE, Senior District Judge.

Defendant Paul Loder appeals his conviction for aiding and abetting mail fraud in violation of 18 U.S.C. Secs. 2 and 1341. He asserts that the trial court erred in denying his Motion for a Judgment of Acquittal in that the government presented insufficient evidence at trial to prove that he aided and abetted mail fraud. Furthermore, he asserts that the trial judge erred in admitting into evidence under Rule 801(d)(1)(B) certain conversations between a government witness and another party. We REVERSE the conviction, finding the evidence insufficient. Therefore, we do not reach the Rule 801(d)(1)(B) issue.

I.

In September of 1987, David Morrison, who at the time resided in a halfway house in Roxbury, Massachusetts, contacted his brother, James Morrison, a captain in the Boston Fire Department. David wished to purchase a new car, but was unable to obtain credit, so he asked James to purchase and register the car in his own name, using money supplied by David both for the down payment and for all subsequent car payments. James agreed, and purchased the car, a 1987 Chevrolet Caprice ["the Caprice" or "the car"], in the manner outlined. General Motors Acceptance Corporation ("GMAC") financed the purchase, and the car was insured, in James Morrison's name, through Aetna Insurance Company ("Aetna"). David Morrison took possession of the car.

One night in the following month, October 1987, James Morrison was at work at a firehouse on Oliver Street in Boston. His brother, David Morrison, appeared at the firehouse in an intoxicated condition, and informed him that something had happened to the car, that it was in the middle of an intersection close to the firehouse, and that it "won't go." [Tr. 2: 129] James went to look at the car, realized that the frame appeared to be broken, and had it towed to a lot beside the firehouse. A few days later, David again visited James at the firehouse, and later on the same day the brothers communicated by telephone. On the following day, a tow truck showed up at the firehouse, the driver asking for James Morrison. James provided him with the keys to the Caprice, after which the driver towed the car away.

A day later, James Morrison reported to the Boston Police that the car had been stolen from outside the firehouse on Oliver Street. He also filed an insurance claim with Aetna, again claiming that the car had been stolen. Aetna allowed the claim and issued two checks dated December 12, 1987. Both checks were sent by mail to the designated payees, the first in the amount of $14,545.05 to GMAC (the basis of Count 3 of the indictment) and the second in the amount of $1,750.95 to James Morrison (the basis of Count 4 of the indictment).

The story now shifts to a United States government facility in Watertown, Massachusetts, where the Chevrolet Caprice next appeared. This facility was run by the General Services Administration ("GSA") and consisted of a large field and a number of warehouses. GSA operated a firing range at the Watertown facility which was used by a number of federal law enforcement agencies and which was staffed by Justin Gleason, a Federal Protective Services ("FPS") Sergeant. The warehouses were used by several federal agencies (IRS, DEA, Customs, GSA), primarily for storage. Some space at the Watertown facility was leased to private companies, among them Warner Brothers, which used the space to store vehicles used in the filming of the television series Spenser for Hire ("SFH"). Pursuant to lease agreements with GSA, Warner Brothers rented Building 236 from October 1985 through June 1987; upon the expiration of the lease GSA informally extended the tenancy until November 1987. Building 236 was used by the SFH special effects and transportation crews. The transportation crew, which transported cars, trucks, and trailers between Building 236 and filming locations around the Boston area, was comprised of members of Local 25 of the Teamsters Union. These members included defendant Paul Loder, who worked as a driver, and his co-defendant, Richard Murray, who worked as a "co-captain" of the transportation crew. Murray also owned Star Auto Parts in Somerville, Massachusetts, a company that was licensed to buy and sell auto parts and to operate a junkyard, and, prior to the events of this case, Loder had worked there for Murray.

Another of the buildings at the Watertown facility, Building 234, contained a fenced off space where a number of new FPS police vehicles were being stored. Justin Gleason, ¹ the FPS Sergeant who staffed the firing range, testified that in the fall of 1987 he became aware that a 1987 Chevrolet Caprice was parked among the FPS vehicles. Running a Vehicle Identification Number ("VIN") check, he learned that the Caprice was registered to Morrison. Asking Murray about the car, Gleason was informed that Murray "had been roped into something that he can't get out of and he was going to get rid of it." [Tr. 2:193] In this conversation and subsequent conversations, Gleason asked Murray repeatedly to remove the car from Building 234. In one of these conversations, Murray told Gleason that the car was registered to "a high official, the captain of a fire department," and that the car was in a damaged condition because "somebody got drunk and ran over a Jersey barrier." [Tr. 2:194] Gleason also testified to having a conversation with Loder about the Chevrolet Caprice, in which Loder said that he was helping Murray get rid of the car and that he had "taken the plate off for insurance." [Tr. 2:195] Finally, Gleason testified that, when he went to the Watertown facility one weekend, he discovered the front gate open. He went to Building 234 and there he saw Murray and a second individual whose face was obscured by a welder's mask cutting the top off the Caprice. He again told Murray to get the car out of the building, and when he returned later the Caprice was gone.

On November 5, 1987, during the course of an investigation into the activities at the Watertown facility, FPS Criminal Investigator William Adams noticed two vehicles in that area that did not belong to FPS--a vehicle belonging to Justin Gleason, and the Chevrolet Caprice registered to James Morrison. Adams and Gleason were long-standing acquaintances, having met in 1978. In a conversation on November 5, Gleason told Adams that he had made arrangements to keep the vehicle in storage for a few weeks until it could be cut up. By running the VIN through the National Crime Information Center ("NCIC") computer, Adams learned that the Caprice had been reported stolen on October 28, 1987. Adams arranged for a special agent of the Internal Revenue Service ("IRS") to come to the site on November 25, 1987 to take pictures of the Caprice. Adams conducted surveillance, and at some point after November 25 he noticed that the car had been removed; however, he did not know precisely when the car was removed from the Watertown GSA facility.

Between December of 1987 and early summer of 1988, Adams, without Gleason's knowledge, tape recorded a number of conversations between Adams and Gleason. In a taped conversation on February 8, 1988, Gleason told Adams that Murray hid the car "until they could get rid of it" and that Murray said he wanted to get the parts from the car. [Tr. 3:112-114] The tapes, however, did not corroborate Gleason's testimony that he had seen Murray and another, unidentified person cutting up the Caprice. Furthermore, Gleason did not say to Adams on tape that Loder admitted to Gleason that he helped Murray to get rid of the car, although Gleason later testified that Loder did indeed admit to this. ²

II.

When a defendant challenges his criminal conviction, claiming that the government failed to present sufficient evidence to prove the defendant guilty of the charged crime, the court is faced with a formidable standard of review. In examining such a challenge, the court must "view the evidence, together with all reasonable inferences that may be drawn therefrom, in the light most favorable to the government," United States v. Campa, 679 F.2d 1006, 1010 (1st Cir.1982), and while so doing, must ask whether "a rational trier of facts could have found guilt beyond a reasonable doubt." United States v. Ingraham, 832 F.2d 229, 239 (1st Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988). See also United States v. Torres Lopez, 851 F.2d 520, 527 (1st Cir.1988), cert. denied 489 U.S. 1021, 109 S.Ct. 1144, 103 L.Ed.2d 204 (1989). The court must apply this standard both to direct and to circumstantial evidence; "[c]ircumstantial evidence is intrinsically no different from testimonial evidence, and is entitled to similar weight." United States v. Van Helden, 920 F.2d 99, 101 (1st Cir.1990) (citations omitted). Thus, the government may use circumstantial evidence to prove its case. However, the total evidence, with all reasonable inferences made in the light most favorable to the government, must be such that a rational trier of fact could have found guilt beyond a reasonable doubt. United States v. Mena, 933 F.2d 19, 23 (1st Cir.1991); United States v. Campa, 679 F.2d at 1006. Furthermore, the government need not present evidence that precludes every reasonable hypothesis inconsistent with guilt in order to sustain a conviction. United States v. Guerrero-Guerrero, 776 F.2d 1071, 1075 (1st Cir.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1233, 89 L.Ed.2d 342 (1986)...