U.S. v. Polasek
| Decision Date | 11 December 1998 |
| Docket Number | No. 97-20724,97-20724 |
| Citation | 162 F.3d 878 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joyce Elaine POLASEK, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Paula Camille Offenhauser, Asst. U.S. Atty., Houston, TX, Kenneth Lewis Jost, Douglas William Stearn, U.S. Dept. of Justice, Office of Consumer Litigation, Washington, DC, for Plaintiff-Appellee.
Donald Winford Rogers, Jr., Richard Haynes & Associates, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas.
Before KING, GARWOOD and HIGGINBOTHAM, Circuit Judges.
Defendant-appellant Joyce Elaine Polasek appeals her conviction and sentence for conspiracy, making false statements relating to mileage registered on odometers, mail fraud, and utterance and possession of counterfeited and forged securities. We reverse.
Joyce Elaine Polasek operated a service in Houston, Texas that transferred motor vehicle title and registration documents from automobile dealers to car purchasers. An indictment filed on December 16, 1996 in the Southern District of Texas charged her with altering the mileage on titles and related documents for vehicles sold at Montgomery Motors Express, a Houston used car dealership. Specifically, Count One of the indictment accused Polasek of conspiracy to violate the laws of the United States, Counts Two through Twelve of false odometer certification, Counts Thirteen through Nineteen of mail fraud, and Counts Twenty through Twenty-four of making, uttering, and possessing forged securities. Polasek pleaded not guilty to all twenty-four counts.
At trial, a number of individuals formerly associated with Montgomery Motors Express testified that they had seen Polasek altering titles or heard her bragging that she had done so. John Richard Hubert, who had owned the dealership during Polasek's tenure there, stated that he rolled back odometers on the cars he sold and that he hired Polasek, an independent contractor, to alter the paperwork associated with such vehicles. 1 He also claimed that he witnessed Polasek scraping off mileage numbers on titles. Similarly, Scott Vaughan, a car buyer for Montgomery Motors, told the jury that he saw Polasek altering a title reflecting mileage in excess of 100,000 miles by changing the first digit to the letter "A." Vaughan recounted that Polasek even asked him how the alteration looked. He described Polasek's title work as "sloppy" and "ridiculous," observing that some of the titles appeared as though they had been altered five or ten times. Gregory Hall, a title clerk for Montgomery Motors in the late 1980s and early 1990s, testified that he saw Polasek alter a title by scratching it with a pick. Once, while delivering a title to the courthouse as a favor to Polasek, he noticed that the old odometer numbers had been "carved" out of the paper; when the courthouse clerk subsequently rejected the title, Polasek became angry and insisted on seeing the clerk's supervisor. William David Bolton, a closer for the dealership, testified that Polasek had told him that she had found a better way to alter titles using stencils and typewriter correction tape and described how she demonstrated her new technique. According to Bolton, Polasek kept a number of title-altering instruments, including colored pens and pencils, erasers, and a tool resembling a dental pick, in a special pouch. He also claimed to have once seen her scratching at the odometer reading on a title with the pick. Finally, Lisa Walling testified that she worked for Polasek at Montgomery Motors for a short while and that some of Polasek's titles looked as though numbers in the odometer box had been changed or erased. Walling also told the jury that she had seen Polasek alter a title by erasing something from the odometer box and that, on other occasions, she had observed Polasek using a light to trace a signature from one document to another. Walling testified further that Polasek had numerous titles sent to Walling's address rather than directly to the car buyers.
In addition to this eyewitness testimony, the government offered evidence of bad acts outside the scope of the indictment. National Highway Traffic Safety Administration Special Agent Robert Eppes testified that early in 1990, in the course of a Nebraska odometer fraud investigation that turned up documents bearing her signature, he warned Polasek against submitting titles with false odometer statements and obtaining duplicate vehicle titles, which are often used for the purpose of odometer fraud. In addition, the prosecution showed that Polasek had been convicted in the United States District Court for the District of Nebraska for conspiracy to transport in interstate commerce false motor vehicle titles. It also introduced a portion of her petition to enter a guilty plea in that case, including her statement that "I helped Janzen and Brown get certified copies of automobile titles so they could turn the cars back on the odometers." After the admission of this evidence, the district court instructed the jury that it could consider the evidence of acts outside the scope of the indictment only for limited purposes.
Polasek took the stand in her own defense. She admitted to the Nebraska conviction and acknowledged that her signature appeared on various government exhibits but insisted that she neither altered titles at Montgomery Motors nor knew of any odometer tampering during most of the time that she worked there. Her testimony contradicted that of several government witnesses, each of whom she accused of lying for various reasons. She blamed a "little short fat" man for the altered titles, claiming that she left Montgomery Motors upon discovering the alterations but returned after receiving false assurances that odometers no longer were being altered. No other witness was asked about or testified to the existence of the short, fat man.
On cross-examination, Polasek admitted that she understood the logistics of odometer tampering and knew that titles had to be altered in such schemes. She acknowledged telling the Federal Bureau of Investigation that she was aware of another dealership that rolled back odometers but nevertheless did their title work. She also admitted falsely listing Walling's address on titles. She denied, however, that she had admitted to law enforcement personnel that she had participated in odometer tampering for various other dealers; when asked whether she was aware that other dealers for whom she had worked had been convicted for odometer fraud, she replied that she was not. Specifically, she acknowledged that she had done work for Kenny Smith, but denied knowledge of his conviction for odometer tampering; acknowledged that she had done work for Dwayne Hutchins, but denied knowledge of his odometer tampering conviction; acknowledged that she had worked for William Witlow, but denied knowledge of whether he had altered odometers; denied both doing any work for Travis Barnes and knowledge of any convictions related to him; acknowledged doing title work for Danny Coker, but denied knowledge that he had been convicted for odometer tampering; and acknowledged that she had worked in Mississippi for a company named S & S Auto, but denied knowledge of any convictions for odometer tampering related to that establishment.
In rebuttal, the government recalled Special Agent Eppes. Eppes testified that he had been investigating Lebanon, Missouri car dealers, that Polasek had obtained some of the titles processed by these dealers, and that this led him to speak with Polasek. According to Eppes, Polasek admitted that her signature appeared on one document, but when he told her it had been fraudulently obtained, she retorted, "You can't prove that." Eppes testified again, as he had on direct examination, that he warned Polasek to stop handling altered documents and getting duplicate titles for dealers involved in odometer fraud, but that he succeeded only in angering her. The prosecutor then asked Eppes specific questions about each of the car dealers with whom Polasek had been associated:
Q Now, you heard Mr. Stearn ask the Defendant about a number of people that the Defendant did business with?
A Yes.
Q Are you familiar with a man by the name of Coker?
A Yes.
A Dan Gallant Coker (phonetic spelling).
Q Did you, during the course of your investigation, find paperwork handled by the Defendant?
A Yes.
Q What happened to Mr. Coker?
A Mr. Coker was convicted.
Q You mentioned a Mr. Witlow?
A Yes, I'm familiar with Mr. William Witlow.
Q Did you do an investigation of Mr. Witlow?
A Yes, I did.
Q And during the course of that investigation, did you find paper handled by the Defendant?
A During the course of that investigation, I did.
Q What happened with Mr. Witlow?
A Mr. Witlow was convicted.
Q And again, what was he convicted for?
A Odometer fraud.
Q Would that be the same for Mr. Coker?
A Yes.
Q What about a man by the name of Travis Barnes, did you investigate him?
A Yes, I did.
Q And during the course of your investigation, did you find paperwork? When I say, "paperwork," I'm talking about odometers that had been tampered with in that investigation.
A Yes, we did.
Q And did you--who handled some of the paper in that investigation?
A Ms. Polasek.
Q What happened to Travis Barnes? Was he prosecuted?
A Yes, he was.
Q And what was he convicted for?
A Odometer fraud.
A Dennison Barnes is the son of Travis Barnes.
Q Was he also investigated?
A Yes, he was.
Q Was he also convicted?
A Yes, he was.
Q For what?
A Odometer fraud.
Q Again, did you see...
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