U.S. v. Phillips, 75-1044

• Decision Date: 26 August 1975
• Docket Number: No. 75-1044,75-1044
• Parties: UNITED STATES of America, Appellee, v. Carl Eugene PHILLIPS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 388

522 F.2d 388

UNITED STATES of America, Appellee, v. Carl Eugene PHILLIPS, Appellant.

No. 75-1044.

United States Court of Appeals,

Eighth Circuit.

Submitted May 15, 1975.

Decided Aug. 26, 1975.

Herbert A. Kasten, Jr., St. Louis, Mo., for appellant.

Richard D. Billeaud, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before GIBSON, Chief Judge, HEANEY, and STEPHENSON, Circuit Judges.

GIBSON, Chief Judge.

Carl Eugene Phillips was indicted in three counts, tried to a jury and convicted of (I) knowingly receiving and possessing stolen property (firearms) in violation of 18 U.S.C. §§ 2 and 659 (1970), (II) dealing in firearms without a license in violation of 18 U.S.C. §§ 2, 922(a)(1) and 924(a) (1970), and (III) receiving and possessing firearms after having been convicted of a felony in violation of 18 U.S.C.App. § 1202(a)(1) (1970). He was sentenced to concurrent terms of three years in prison on counts I and II and to a consecutive term of three years probation on count III. He appeals, contending (1) that the trial court ¹ should have given a cautionary instruction on the testimony of government witness Robert O'Rourke, whom the defendant characterizes as an interested witness comparable to an informant, and (2) that the indictment improperly pyramided offenses beyond what the defendant characterizes as "the comprehensive scheme" of the Gun Control Act of 1968, Pub.L. No. 90-618 (Oct. 22, 1968). We affirm.

All three charges against the defendant arose from a single sale of five shotguns stolen from a St. Louis, Missouri, freight yard in April, 1970. The guns were stolen out of a shipment of 240 destined from their New York manufacturer to a Missouri dealer. The issues at trial were narrowed by a stipulation that the shotguns were stolen from an interstate shipment and were valued at more than $100, that the defendant had no license to deal in firearms, that he was under a disability resulting from a 1965 felony conviction, ² and that he had not been relieved of the disability pursuant to 18 U.S.C. § 925(c) (1970).

Proof that the defendant received stolen property and possessed firearms after a felony conviction (counts I and III) rested, therefore, on common issues of fact whether on or about September 1, 1970, Phillips received and possessed shotguns knowing them to have been stolen. Additional evidence that the defendant engaged in selling the five shotguns in a manner making him a dealer, completed proof of the offense of dealing without a license (count II). The sole evidence linking Phillips to the stolen shotguns was the testimony of government witness Robert O'Rourke. Several other witnesses testified that they bought shotguns from or through O'Rourke and that O'Rourke reported buying them from Phillips. But the only link to Phillips came through O'Rourke. Phillips offered no evidence and did not take the stand.

O'Rourke testified that he met Phillips in 1970 or 1971 at the Fenton, Missouri, Chrysler plant where they both worked. Phillips, he stated, approached him in the summer or fall of 1970 to inquire whether O'Rourke was interested in purchasing a shotgun for $150. O'Rourke agreed to buy five at $125 each, paying $200 down and the balance of $425 later. A day or two later Phillips delivered the guns to the home of O'Rourke's mother. He carried the guns from the trunk of a car into the house in five factory shipping crates. Robert's brother, James O'Rourke, was present when the guns were delivered. He testified that he helped carry two of the boxes from the car into the house but could not recall how many guns were delivered, nor identify the car or the person who delivered them. Robert O'Rourke later sold three of the guns to a friend for $175 each, one to another friend for $150, and kept the fifth. The new shotguns were worth between $300 and $500 each.

I. The defendant contends that the trial court erred in failing to give, upon request, the following instruction:

The testimony of an informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the informer's testimony has been affected by interest, or by prejudice against defendant.

1 E. Devitt & C. Blackmar, Federal Jury Practice & Instructions § 12.02 (1970).

Although the defendant refrains from strictly characterizing government witness O'Rourke as an informant, he requested the above cautionary informer instruction, contending that O'Rourke's interest in the case arising from his expectation of leniency for testifying affected his credibility. O'Rourke testified that if he hadn't provided the name of the seller of the guns he would have been charged and understood that upon supplying the name he would not be prosecuted for possessing or dealing in stolen firearms. Consequently, as the Government's entire proof of Phillips' possession of firearms rested on O'Rourke's implication of him, the defendant contends he was entitled to a cautionary informer instruction.

The Government responds that this court's review of the instruction must be limited to a search for plain error because Phillips failed to object to the challenged instruction by stating to the trial court "distinctly the matter to which he objects and the grounds of his objection." Rule 30, Fed.R.Crim.P. The defendant contends that he complied with Rule 30 by tendering to the trial court the standard cautionary informer instruction quoted above and stating that he had no objection to the court's chosen instruction ³ "other than" that the defendant's requested charge "better state(s) the law as regards to credibility of witnesses in this case." ⁴

The defendant's tender of an alternative instruction, without objecting to some specific error in the court's charge or explaining why his requested instruction "better states the law," did not comply with Rule 30. United States v. Brown, 453 F.2d 101, 106 (8th Cir. 1971), Cert. denied, 405 U.S. 978, 92 S.Ct. 1205, 31 L.Ed.2d 253 (1972); Northcraft v. United States, 271 F.2d 184, 189 (8th Cir. 1959). The object of Rule 30 is to afford an adequate opportunity for the trial judge to correct mistakes in his charge and for the opposing party to keep the record clear of error. Armstrong v. United States, 228 F.2d 764 (8th Cir. 1956). No such opportunity was afforded here. It is advisable, if counsel intends seriously to challenge an instruction, to indicate specifically why the court's instruction is erroneous and what should be done to conform the instruction to the law. Phillips' noncompliance with the rule limits our review to whether the court's omission of the instruction affected the defendant's substantial rights and was "so completely erroneous as to result in a miscarriage of justice," Kampmeyer v. United States, 227 F.2d 313, 322 (8th Cir. 1955); Rule 52(b), Fed.R.Crim.P., a standard rarely met. ⁵

O'Rourke was not an informant in any sense of the term. His relationship with the Government was fully explored in cross-examination, yet the record does not suggest that he cooperated in any manner before his possession of stolen firearms came to the attention of the FBI. ⁶ He was merely a witness in the chain of possession, and probably a reluctant one at that, who became enmeshed in the transfer of the stolen guns. He did not receive a formal grant of immunity from prosecution, but thought he had been promised immunity for agreeing to testify against the defendant. ⁷ That limited understanding, however, did not transform him into an informant. United States v. Smith, 464 F.2d 221 (8th Cir. 1972). The fact that O'Rourke thought he had been granted immunity was fully brought to the jury's attention and the trial court adequately instructed the jury to consider the witness' interest. The general instruction on credibility of the witnesses was adequate. The matter of credibility was for the jury's determination.

II. We find no merit in the defendant's contention that he was indicted under the wrong statutes or that he was the victim of a pyramiding of offenses. He was charged in three counts with separate offenses under three statutes. He argues, however, that all three offenses are punishable under individual sections of one statute, Chapter 44 of Title 18, 18 U.S.C. § 921 Et seq. (1970), as amended by the Gun Control Act of 1968, Pub.L. No. 90-618 (Oct. 22, 1968), and that the charges should have been confined to that statute's "scheme." He contends that pyramiding the indictment with offenses from outside the scheme of 18 U.S.C. § 922 contravened congressional intent and denied him due process.

For support, defendant relies on cases applying the federal bank robbery statute, 18 U.S.C. § 2113 (1970). That Act is recognized to have created a comprehensive scheme for punishing persons who rob federally insured banks. United States v. Canty, 152 U.S.App.D.C. 103, 469 F.2d 114 (1972). In drafting § 2113, Congress intended to limit federal bank robbery prosecutions to a single count charging the appropriate level of crime and precluding additional charges for conduct within § 2113's coverage under statutes outside the scheme. United States v. Canty, supra.

As for the Gun Control Act of 1968, however, neither its language nor its legislative history ⁸ indicates congressional intent to create a comprehensive scheme similar to that of § 2113. 18 U.S.C. § 922, unlike § 2113, does not subdivide firearms offenses into a cohesive series of steps displaying a continuum of increasingly serious criminal conduct with increasing penalties for each more aggravated offense. Thus, despite the fact that Phillips' potential punishment in the instant case was increased by the Government's choice of statutes, that choice did not contravene any discernible congressional intent and did not deny the defendant due process.

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