U.S. v. Miller

• Decision Date: 18 December 1974
• Docket Number: Nos. 73-1759,73-1864 and 73-1865,s. 73-1759
• Citation: 508 F.2d 444
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Glenn Edward MILLER et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 444

508 F.2d 444

UNITED STATES of America, Plaintiff-Appellee, v. Glenn Edward MILLER et al., Defendants-Appellants.

Nos. 73-1759, 73-1864 and 73-1865.

United States Court of Appeals, Seventh Circuit.

Argued April 2, 1974.

Decided Dec. 18, 1974.

William L. Gagen, Lebanon, Ill., Michael Weininger and Elliot Samuels, Chicago, Ill., for defendants-appellants.

Henry A. Schwarz, U.S. Atty., William C. Evers, III, Asst. U.S. Atty., E. St. Louis, Ill., for plaintiff-appellee.

Before PELL, Circuit Judge, and CAMPBELL and STECKLER, District judges. ^*

WILLIAM J. CAMPBELL, Senior Distirct Judge.

Defendants Davis, Miller and Jordan were named as co-defendants in Counts I, III and V of a six count indictment charging violations of the Dyer Act and conspiracy to violate the Dyer Act. Counts I and III charged violations of 18 U.S.C. 2312 and 2313, respectively, alleging that defendants had transported a certain 1963 Chevrolet in interstate commerce, knowing the vehicle to have been stolen, in violation of 2312, and alleging that defendants concealed or disposed of the same vehicle in violation of 2313. Count V charged that defendants, in violation of 18 U.S.C. 371, conspired to transport the vehicle in interstate commerce.

Counts II, IV and VI charged defendant Miller with similar violations of 2312, 2313 and 371, respectively, the vehicle in question being identified as a Ford Pinto belonging to Thomas Locke.

Defendants were convicted after a jury trial on all six counts. Their appeals have been consolidated for the purposes of briefing, oral argument and decision. The issues raised by Defendants Miller and Davis are identical. In addition to these issues, Jordan asserts that he was denied the effective assistance of counsel because his attorney was appointed only two days prior to trial, and further that he was denied a fair trial by virtue of the district court's refusal to grant his motion for severance.

We affirm the convictions of Miller and Davis and reverse the conviction of Jordan.

The evidence showed that both vehicles were stolen and transported across state lines. Verlanda Barnes, after being granted immunity by the government, testified as a government witness. Her testimony disclosed that on January 26, 1973, she, Fronie Mae Evans and the appellants left Memphis, Tennessee in the Chevrolet referred to in Counts I, III and V, and that everyone in the car knew the vehicle had been stolen. She stated that the evening prior to their journey, the defendants had agreed to drive the Chevrolet to Illinois for the express purpose of robbing a certain bank.

Barnes, Illinois State Police Officers Schrader and Mitchell, and a tow truck operator by the name of Bielong testified regarding the events that transpired after the Chevrolet arrived in Ashley, Illinois. According to their testimony, the Chevrolet was observed by Officer Schrader as it pulled into the driveway of the Ashley Motel and became stuck in the mud. Shortly thereafter, Bielong and Officer Mitchell arrived at the scene. In the interim, Jordan left the car and walked toward the Ashley Motel.

At this point, Davis pointed a gun at Mitchell, and Miller disarmed the two policemen. Evans, Barnes and Miller then departed the area in Schrader's police car. Mitchell was placed in the trunk of the other police car, and Schrader and Bielong were ordered by Davis to drive that vehicle west on U.S. Route 460.

Barnes testified that the police car in which she, Evans and Miller were riding slid off the road and into a ditch a few miles outside of Ashley. When Thomas Locke and his wife, driving their Ford Pinto, observed the police car in the ditch, Mr. Locke stopped his car to offer assisstance. Miller pointed two guns at Locke and ordered him and his wife to exit their vehicle. Barnes, Evans and Miller then drove off in the Pinto in the direction of St. Louis. According to Barnes, they eventually returned to Memphis, kept the Pinto for a few days and disposed of it after attempting to wipe off their finger prints.

The Pinto was eventually recovered by FBI agents in Memphis, as was certain personal property belonging to Mrs. Locke which had been left in the Pinto at the time it was stolen by Barnes, Evans and Miller.

Officer Schrader testified that after Mitchell had been placed in the trunk of the second police vehicle, Schrader was ordered to drive west on U.S. Route 460. A few miles outside of Ashley, they came upon Schrader's police car and Mr. and Mrs. Locke, who stated that their car had been stolen at gun point. The second police vehicle was then driven for an additional one and three-fourths hours in an effort to avoid road blocks, and after a high speed chase, Davis was apprehended.

In addition to the foregoing, evidence was introduced over defendants' objection that Davis had threatened to kill Officers Schrader and Mitchell after disarming them, and that ammunition was found in Barnes' Memphis apartment after her arrest. Evidence was also introduced that a gun and ammunition were found in the stolen Chevrolet.

On appeal, defendants first contend that since the acts alleged in the indictment as violative of the Dyer Act were identical to those alleged in the conspiracy counts, the conspiracy counts and the substantive counts merged, and it was therefore improper to sentence defendants to consecutive terms in the penitentiary for conspiracy.

A similar contention was rejected by the Supreme Court almost thirty years ago in Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). There, faced with the question of whether the petitioners' convictions for substantive violations of the Internal Revenue Code merged with a single count in the indictment alleging conspiracy to commit the substantive offenses, the Court stated:

'Nor can we accept the proposition that the substantive offenses were merged in the conspiracy. There are, of course, instances where a conspiracy charge may not be added to the substantive charge. One is where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime . . .. Another is where the definition of the substantive offense excludes from punishment for conspiracy one who voluntarily participates in another's crime . . .. But those exceptions are of a limited character. The common law rule that the substantive offense, if a felony, was merged in the conspiracy, has little vitality in this country. It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each a different penalty is well established . . .. A conviction for the conspiracy may be had though the substantive offense was completed . . .

. . . . .

'Moreover, it is not material that overt acts charged in the conspiracy counts were also charged and proved as substantive offenses. As stated in Sneed v. United States, supra, 298 F. (911,) at page 913, 'If the overt act be the offense which was the object of the conspiracy, and is also punished, there is not a double punishment of it.' The agreement to do an unlawful act is even then distinct from the doing of the act.' 328 U.S. 643-644, 66 S.Ct. 1182.

The exceptions noted by the Pinkerton Court are not applicable here. Counts V and VI alleged crimes separate and distinct from those alleged in the substantive counts. 'A conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy . . .. Its distinguishing element is the combination of several persons for an unlawful end. The conspiracy remains none the less a crime because by its success an additional crime has been committed . . .. Consequently, the substantive offense is not merged in the charge of conspiracy, . . . and the parties may be punished for their agreement to commit a crime as well as for the completed crime.' United States v. Bazzell, 187 F.2d 878, 884 (7th Cir. 1951).

Alternatively, the defendants contend that the conspiracy counts cannot stand, asserting that the distinguishing element-- the agreement among the defendants to commit the substantive offenses-- was not proven. The gist of defendants contention in this regard is that no independent evidence was offered to show the existence of an agreement to violate the Dyer Act, and that the government's evidence was limited to proof of substantive offenses alleged in the indictment.

As the defendants readily concede, the existence of an agreement among co-conspirators need not be established by direct proof thereof. The agreement may, and usually is, proven by circumstantial evidence from which the trier of fact may infer a common design to achieve an unlawful end. United States v. Tyminski, 418 F.2d 1060, 1062 (2nd Cir. 1969); United States v. Varelli, 407 F.2d 735, 741 (7th Cir. 1969). The agreement may be inferred from proof of the relationship and conduct of the parties. United States v. Bucur, 194 F.2d 297, 301 (7th Cir. 1952), as well as from the actions of the parties, even though such actions also constitute commission of the substantive offense. Viewing the evidence in the light most favorable to the appellee, we find there was fufficient evidence that defendants agreed to transport the stolen Chevrolet from Tennessee to Illinois, and that Miller agreed with Barnes and Evans to steal and transport the Pinto from Illinois to Tennessee. Barnes testified that the evening before she, Evans and the defendants left Tennesses, they planned to enter Illinois to rob a bank. She also testified that the occupants of the Chevrolet knew it to be a stolen vehicle. On the basis of Barnes' testimony, the jury could properly have inferred that the defendants agreed to travel to Illinois in a stolen vehicle for the purpose of carrying out...