U.S. v. McCullah

• Decision Date: 27 September 1984
• Docket Number: 82-5235 and 82-5237,Nos. 82-5222,82-5223,s. 82-5222
• Parties: 16 Fed. R. Evid. Serv. 1017 UNITED STATES of America, Plaintiff-Appellee, v. Glen McCULLAH, Willard Petrey, James Tankersley, and Ewell Scott, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 350

745 F.2d 350

16 Fed. R. Evid. Serv. 1017

UNITED STATES of America, Plaintiff-Appellee, v. Glen McCULLAH, Willard Petrey, James Tankersley, and Ewell

Scott, Defendants-Appellants.

Nos. 82-5222, 82-5223, 82-5235 and 82-5237.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 24, 1983.

Decided Sept. 27, 1984.

Peter Alliman, argued, John K. Harber, Pryor, Flynn & Priest, Richard R. Baumgartner, argued, Kerr & Ray, Robert C. Edwards, argued, Knoxville, Tenn., for defendants-appellants.

John W. Gill, U.S. Atty., Robert E. Simpson, Asst. U.S. Atty., argued, Knoxville, Tenn., for plaintiff-appellee.

Before JONES and WELLFORD, Circuit Judges, and RUBIN, District Judge. ^*

WELLFORD, Circuit Judge.

Defendants appeal their convictions in this case involving stolen vehicles. Defendant McCullah raises one set of objections to the proceedings below; defendants Petrey, Tankersley, and Scott raise another; and all defendants challenge the admission of certain hearsay statements. We affirm the convictions.

I.

Glen McCullah, Bruce North, Willard Petrey, Jr., Ewell Scott, James Tankersley, and James Veach were charged in a four-count indictment in the Eastern District of Tennessee on November 20, 1981. The indictment charged a scheme to deal in stolen vehicles. All defendants were originally named in count I, which alleged a conspiracy to transport stolen vehicles in violation of 18 U.S.C. Sec. 2312 ¹ and to receive or sell stolen vehicles in violation of 18 U.S.C Sec. 2313; ² prior to trial, however, the government moved that a nolle prosequi be entered without prejudice on the conspiracy charge as to all defendants but Veach and McCullah, and the motion was granted. Count II charged each defendant, aided and abetted by all others, with transporting a stolen Caterpillar D8H tractor from Kentucky to Tennessee in violation of 18 U.S.C. Sec. 2312. Count III charged each defendant but McCullah with aiding and abetting the sale of the tractor in violation of 18 U.S.C. Sec. 2313. Count IV charged defendant McCullah with concealing the tractor in violation of 18 U.S.C. Sec. 2313.

The jury acquitted defendant Veach on all counts in which he was named. Defendant McCullah was found guilty on counts I and IV, but was acquitted on count II. Defendants North, Petrey, Scott, and Tankersley were found guilty on counts II and III. Each of the convicted defendants appealed, but North's appeal was voluntarily dismissed. The appeals of McCullah, Petrey, Scott, and Tankersley have been consolidated and are now before the court.

At trial, the government sought to prove a relatively simple scheme involving a Caterpillar tractor. As it pertained to the defendants currently before the court, the government's theory and proof was to the effect that defendants Petrey, Scott, and Tankersley arranged to steal the tractor in Kentucky. They then purportedly transported the tractor to Tennessee, where it was purchased by defendant McCullah.

II.

Defendant McCullah challenges the nature of certain testimony against him, the judge's response to a jury question, the government's conduct regarding the identity of a potential witness, and the sufficiency of the evidence to support his conviction.

A.

McCullah raises two issues that do not require extended discussion. First, he disputes the propriety of government agent Cloninger's testimony. In describing the location of the stolen tractor on July 7, 1981, Cloninger testified that the tractor was "hidden" under some trees. McCullah objects that this constituted the forbidden expression of an opinion. But Fed.R.Evid. 701 permits nonexpert opinion testimony when the opinion, as here, is "rationally based on the perception of the witness" and "helpful to a clear understanding of his testimony." See United States v. Skeet, 665 F.2d 983, 985 (9th Cir.1982); Stone v. United States, 385 F.2d 713, 716 (10th Cir.1967), cert. denied, 391 U.S. 966, 88 S.Ct. 2038, 20 L.Ed.2d 880 (1968). The testimony was therefore proper. Second, McCullah objects to the trial court's statement in response to a question from the jury. However, he made no objection at the time to the court's statement, and the statement was not plain error. McCullah is thus precluded from raising this issue on appeal. See Fed.R.Crim.P. 30; Hamling v. United States, 418 U.S. 87, 135, 94 S.Ct. 2887, 2916, 41 L.Ed.2d 590 (1974).

B.

The bill of sale delivered to McCullah with the stolen tractor listed the seller as Ray Garland. McCullah's defense at trial was that he had not conducted business with the other individuals charged in this conspiracy, but had instead dealt with someone using the name "Garland" concerning purchase of the tractor. Prior to trial, McCullah requested information from the prosecution; the request could be construed as a request for any information regarding an individual who had met with McCullah in the circumstances described. The government revealed no information. At trial, however, the government called Bob Draughn to the stand. Draughn, who matched the description given for the man who had allegedly used the name Ray Garland, testified that he had indeed met with McCullah prior to the delivery of the tractor in this case. While Draughn agreed with McCullah's story that the two had met at a machinery and parts concern in Corbin, Kentucky, during the latter part of December 1980 or early January 1981 and discussed the sale of a truck, Draughn denied that he had ever discussed selling McCullah a Caterpillar tractor. Draughn further stated that he had never used the name Ray Garland. McCullah argues that the government's failure to inform McCullah of Draughn's identity prior to trial violated his Sixth Amendment right to cross-examine Draughn and his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (imposing obligation on prosecutor to reveal evidence favorable to defendants in some circumstances).

By failing to reveal Draughn's identity prior to trial, McCullah argues, the government impermissibly handicapped McCullah's ability to cross-examine Draughn. This court, however, has firmly established that defense counsel is not entitled to know in advance of trial who will testify for the government. See United States v. Dark, 597 F.2d 1097, 1099 (6th Cir.1979) (per curiam) (citing United States v. Conder, 423 F.2d 904, 910 (6th Cir.), cert. denied, 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d 267 (1970)), cert. denied, 444 U.S. 927, 100 S.Ct. 267, 62 L.Ed.2d 183 (1979). Even if one argues that broader discovery rules in this area "might be desirable, the Constitution surely does not demand that much." United States v. Agurs, 427 U.S. 97, 109, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976).

McCullah's Brady claim must also fail. The Brady doctrine concerns "the discovery, after trial, of information which had been known to the prosecution but unknown to the defense." Agurs, 427 U.S. at 103, 97 S.Ct. at 2397 (emphasis added). Brady imposes an obligation of disclosure on the prosecution only when the information in the prosecutor's possession is favorable to the defendant. See, e.g., Agurs, 427 U.S. at 112 n. 20; 96 S.Ct. at 2401 n. 20, Brady, 373 U.S. at 87, 83 S.Ct. at 1196. The information possessed by the government prior to trial concerning Draughn, while largely detrimental to McCullah, nevertheless did include arguably favorable information. The existence of Draughn, who admitted meeting McCullah at the time and place McCullah had claimed and who matched the description McCullah had given, perhaps lends some support to McCullah's story. But McCullah has identified no other information in the prosecutor's possession that would have benefitted McCullah's case; and the corroborative aspects previously mentioned were fully disclosed when the government called Draughn to the stand to testify. ³ This is not a case in which the testimony at trial was so complicated that its exculpatory aspects could not be readily identified by defense counsel, explored on cross-examination, and argued to the jury. Nor was the prosecutor's decision to present Draughn's testimony justified solely by a desire to delay defendant's access to its exculpatory aspects; rather the decision was supported by the substantially damaging nature of Draughn's testimony. McCullah characterizes the prosecution's conduct in this case as amounting to bad faith. Given the vagueness of defendant's request for material, one cannot say with assurance that the defendant's contention is true. True or not, the contention is irrelevant. See, e.g., Agurs, 427 U.S. at 110, 96 S.Ct. at 2400; Brady, 373 U.S. at 87, 83 S.Ct. at 1196. Nor do the cases cited by defendant support his arguments here. United States v. Esposito, 523 F.2d 242 (7th Cir.1975), cert. denied, 425 U.S. 916, 96 S.Ct. 1517, 47 L.Ed.2d 768 (1976), United States v. Bryant, 439 F.2d 642 (D.C.Cir.1971), United States v. Armigo-Martinez, 669 F.2d 1131 (6th Cir.), vacated, 459 U.S. 810, 103 S.Ct. 34, 74 L.Ed.2d 47 (1982), and United States v. Caldwell, 543 F.2d 1333 (D.C.Cir.1974), cert. denied, 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976), did not involve exculpatory material that was disclosed at trial. McCullah therefore was not deprived of his rights under Brady.

C.

In evaluating a claim that the evidence is insufficient to support a conviction, the court must weigh the evidence in the light most favorable to the prosecution and determine whether a reasonable mind might fairly find guilt beyond a reasonable doubt. United States v. Gibson, 675 F.2d 825, 829 (6th Cir.1982), cert. denied, 459 U.S. 972, 103 S.Ct. 305, 74 L.Ed.2d 285 (1982). The evidence to be considered may include circumstantial proof and reasonable inferences drawn from the evidence. United States v. Flaherty, 668 F.2d 566, 579 (1st Cir.1981). McCullah argues that the evidence was insufficient to establish his knowledge that the Caterpillar tractor was stolen. He therefore contends...