U.S. v. Moss, 83-5301

Decision Date07 March 1985
Docket NumberNo. 83-5301,83-5301
PartiesUNITED STATES of America, Appellee, v. John David MOSS; and Corvette Center, Inc., Appellants.
CourtU.S. Court of Appeals — Fourth Circuit

Clifford R. Weckstein, Roanoke, Va. (Lichtenstein, Weckstein & Thomas, Roanoke, Va., on brief), for appellants.

Karen B. Peters, Asst. U.S. Atty., Roanoke, Va. (John P. Alderman, U.S. Atty., Roanoke, Va., on brief), for appellee.

Before ERVIN and WILKINSON, Circuit Judges, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation.

ERVIN, Circuit Judge.

The defendants, John David Moss and Corvette Center Inc., were jointly indicted, tried, and convicted by a jury for various offenses involving the interstate purchase and sale of stolen automobiles in violation of 18 U.S.C. Secs. 2, 371, 2312 (1982). Moss was given a sentence that included five years of imprisonment, personal restitution, and a fine. Corvette Center also received a fine. Moss and Corvette Center appeal their convictions alleging that the district court committed several errors requiring reversal. We affirm.

Specifically, the defendants raise three issues on appeal that require our examination. First, they argue that the United States ("government") abused the grand jury process through its post-indictment use of the grand jury as a discovery mechanism. Second, they assert that any attempt by the trial court to explain the reasonable doubt standard constitutes reversible error per se, and alternatively, that the jury instruction in this case was misleading enough to require reversal. Finally, they contend that the district court's jury instruction that the mere number of witnesses testifying for either side was not conclusive on any issue constituted reversible error because no witnesses testified for the defendants. Although sympathetic to some of defendants' concerns on appeal, we conclude that the grand jury was not used improperly and that neither of the alleged instructional errors were sufficiently prejudicial to merit reversal.

I. Factual Background

After an initial investigation by the grand jury, Moss, an automobile dealer and his Virginia corporation, Corvette Center, were indicted along with others for conspiracy regarding the interstate transportation of stolen automobiles. Moss and Corvette Center were also charged with substantive counts concerning the theft and receipt of stolen parts and the sale of stolen automobiles. The defendants were, however, only convicted of selling and conspiracy to sell a stolen 1981 Corvette.

The evidence revealed that Moss ordered specific stolen automobiles from Dennis Murray, a Kentucky car thief. Moss ordered and obtained the 1981 Corvette from Murray to combine it with another stolen automobile he had already procured. The purpose of combining these two stolen vehicles was to produce a single saleable automobile that could not easily be traced to any outstanding stolen automobiles being sought by law enforcement officials. Such a process is known as vehicle or salvage "switching," and for those who regularly engage in this criminal endeavor, it is often very profitable.

Although the indictment was returned on May 12, 1983, the trial did not commence until November 7, 1983 because several continuances were granted. After the second trial continuance was granted, the government's attorney questioned two individuals before the grand jury: Donald Mason, an automobile rebuilder and salvage seller from North Carolina, and Bobby Clark, a North Carolina Division of Motor Vehicles Inspector. This inquiry concerned their apparent involvement in the defendants' conspiracy to sell stolen automobiles. According to the affidavit of John P. Alderman, the government's co-counsel, after the May indictment the government learned that Mason was a possible accomplice or co-conspirator of Moss. Continuing investigation by the FBI revealed that Mason appeared in the chain of title of the stolen Corvette and that he had obtained a "clean" North Carolina title for Moss. It thus became apparent that not only had the Corvette been stolen and its numbers switched, but the original Michigan salvage title had also been "laundered" and upgraded quickly in North Carolina. The laundering of title in North Carolina permitted the easy change in title back into saleable Virginia title. To accomplish this laundering of title, Mason misrepresented to the Division of Motor Vehicles in North Carolina that he was the true owner of the Corvette.

Mason and Clark's involvement in the conspiracy was not known until the FBI interviewed them on July 29th and August 1st of 1983. The information obtained in these interviews demonstrated Mason's responsibility for the laundering of title to numerous automobiles for Moss. With this information, the government ordered Mason and Clark before the grand jury to explore their involvement in Moss's auto theft scheme. In his affidavit, government co-counsel Alderman stated that he intended to supersede the Moss indictment by adding Mason as a co-conspirator thereby making him a co-defendant in the Moss trial. The Moss indictment, however, was never superseded because the government's evidentiary case against Mason was too weak to bring him to trial. Nevertheless, Mason and Clark did testify for the government at trial regarding the necessary salvage title trial although neither witness was impeached by any prior inconsistent statements made in their grand jury testimony.

II. Propriety of the Post-Indictment Grand Jury Testimony
A. The Sole or Dominant Purpose Test

The defendants argue that the government abused the grand jury process by bringing Mason and Clark before the grand jury after Moss had already been indicted. The district court concluded that there was no abuse of the grand jury process because it was not used as a method of discovery by the government against Moss. We agree.

To protect the investigative function of the grand jury, we have recognized that "courts should not intervene in the grand jury process absent [a] compelling reason." In Re Grand Jury Subpoenas, 581 F.2d 1103, 1108 (4th Cir.1978) cert. denied, 440 U.S. 971, 99 S.Ct. 1533, 59 L.Ed.2d 787 (1979); see also United States v. (Under Seal), 714 F.2d 347, 350 (4th Cir.), cert. dismissed, --- U.S. ----, 104 S.Ct. 1019, 78 L.Ed.2d 354 (1983). It thus follows that "[a] presumption of regularity attaches to a grand jury's proceedings and appellants have the burden of demonstrating that an irregularity occurred." United States v. Woods, 544 F.2d 242, 250 (6th Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 787, 50 L.Ed.2d 778 (1977). Although the courts firmly safeguard the investigatory power of the grand jury, it is the universal rule that prosecutors cannot utilize the grand jury solely or even primarily for the purpose of gathering evidence in pending litigation. (Under Seal), 714 F.2d at 349; In re Grand Jury Proceedings (Johanson), 632 F.2d 1033, 1041 (3d Cir.1980); United States v. Zarattini, 552 F.2d 753, 756 (7th Cir.), cert. denied, 431 U.S. 942, 97 S.Ct. 2661, 53 L.Ed.2d 262 (1977); United States v. Sellaro, 514 F.2d 114, 121-22 (8th Cir.1973), cert. denied, 421 U.S. 1013, 95 S.Ct. 2419, 44 L.Ed.2d 681 (1975); United States v. George, 444 F.2d 310, 314 (6th Cir.1971); United States v. Dardi, 330 F.2d 316, 336 (2d Cir.1964). Once a defendant has been indicted, the government is precluded from using the grand jury for the "sole or dominant purpose" of obtaining additional evidence against him. (Under Seal), 714 F.2d at 350; see also (Johanson), 632 F.2d at 1041.

On the other hand, the government's " 'good faith inquiry into other charges [not included in the indictment] ... is not prohibited even if it uncovers further evidence against an indicted person.' " Id. (quoting (Johanson ), 632 F.2d at 1041; accord Sellaro, 514 F.2d at 122; see also United States v. Braasch, 505 F.2d 139, 147 (7th Cir.1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975). Because the "grand jury's investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed," United States v. Dionisio, 410 U.S. 1, 13, 93 S.Ct. 764, 771, 35 L.Ed.2d 67 (1973), the sole or dominant purpose test is necessary to prevent any undue intrusion into the investigatory power of the grand jury. Zarattini, 552 F.2d at 757. Lacking clairvoyance, grand juries must be allowed to investigate freely individuals suspected of involvement in crimes for which indictments have already been issued. When applied correctly, the sole or dominant purpose test plainly permits grand juries to investigate additional individuals who become suspects only after an indictment has been returned, while precluding improper use of the grand jury for discovery. Unless the government's sole or dominant purpose in this case was to use the grand jury as a substitute for discovery when it questioned Mason and Clark before the grand jury, we cannot conclude that the grand jury process was abused.

B. Applying the Sole or Dominant Purpose Test

The district court determined that the defendants failed to satisfy their burden of demonstrating that the sole or dominant purpose of the government in questioning Mason and Clark before the grand jury was to discover additional evidence against Moss. To the contrary, the district court found that the government's purpose for bringing Mason and Clark before the grand jury was to obtain sufficient evidence to prosecute Mason along with Moss. Like questions involving intent, the finding of a district court regarding the sole or dominant purpose of the government in bringing additional witnesses before the grand jury for post-indictment questioning may be reversed only if it is clearly erroneous. See Pullman-Standard v. Swint, 456 U.S. 273, 289-90, 102 S.Ct. 1781,...

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