U.S. v. Radtke

• Decision Date: 18 August 1986
• Docket Number: No. 85-2292,85-2292
• Citation: 799 F.2d 298
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry R. RADTKE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 298

799 F.2d 298

UNITED STATES of America, Plaintiff-Appellee, v. Larry R. RADTKE, Defendant-Appellant.

No. 85-2292.

United States Court of Appeals Seventh Circuit.

Argued Jan. 22, 1986.

Decided Aug. 18, 1986.

Charles E. Ruch, Kankakee, Ill., for defendant-appellant.

Frances Hulin, U.S. Attys. Office, Danville, Ill., for plaintiff-appellee.

Before COFFEY and FLAUM, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

COFFEY, Circuit Judge.

The defendant-appellant, Larry Radtke was convicted of four counts of receiving stolen motor vehicles, five counts of concealing stolen motor vehicles, and one count of selling stolen motor vehicles moving in interstate commerce all in violation of 18 U.S.C. Sec. 2313. ¹ Radtke appeals his convictions and we affirm.

I

Larry Radtke was charged in a thirteen count indictment with violating 18 U.S.C. Sec. 2313. Count I charged Radtke with knowingly receiving a stolen 1979 Ford truck and Count II charged Radtke with knowingly concealing this truck knowing the same to have been stolen. Counts III and IV charged Radtke with knowingly receiving (III) a stolen 1983 GMC van and knowingly concealing (IV) this van knowing the same to have been stolen. Counts V and VI alleged that Radtke knowingly received (V) and knowingly concealed (VI) a stolen 1979 Dodge truck. Radtke was charged in Counts VII and VIII with knowingly receiving (VII) and knowingly concealing (VIII) a stolen 1979 Chevrolet "Suburban." Counts IX and X alleged that Radtke knowingly received (IX) and knowingly concealed (X) a stolen 1979 Pontiac. Counts XI and XII charged Radtke with knowingly receiving (XI) and knowingly concealing (XII) a stolen 1982 GMC van. Counts I-XII alleged that the respective vehicles were stolen and were moving in interstate commerce between the States of Indiana and Illinois. Count XIII charged Radtke with selling a stolen motor vehicle, a 1980 Chevrolet pick-up truck, moving in interstate commerce between the State of Illinois and the State of Michigan.

The evidence at Radtke's trial revealed that in early 1984, agents of the Illinois State Police and the Illinois Department of Law Enforcement commenced an investigation of the defendant-appellant, Larry Radtke. As part of the investigation, in June, July, and August of 1984 the agents conducted surveillance of Radtke's business, Sollitt Sandblasting and Painting located in Sollitt, Illinois, as well as Radtke's residence and the residences of two of his acquaintances. During the investigation, agents observed six of the seven vehicles that formed the basis of Radtke's indictment for knowingly concealing and selling stolen vehicles at Sollitt Sandblasting and at various other locations. The seventh stolen vehicle, the 1979 Dodge truck, was observed at Radtke's residence in Beecher, Illinois. As a result of the investigation and surveillance, the agents obtained search warrants and executed them on August 30, 1980, resulting in the seizure of six of the stolen vehicles--the subjects of Counts I through XII. The seventh stolen vehicle, the 1980 Chevrolet pick-up truck, the subject of Count XIII of the indictment, was subsequently obtained in the State of Michigan in October 1980 from the person who purchased the truck from Radtke.

Following the seizure of the six stolen vehicles on August 30, Trooper Robert Cluver of the Illinois State Police inspected these vehicles, located and compared the public vehicle identification number ("VIN") ² with the confidential VIN. ³ This comparison revealed that for each of the six vehicles inspected, the public VIN did not match the confidential VIN. Subsequent investigation revealed that the confidential VIN's on the six stolen automobiles corresponded to the VIN's of other vehicles that had been stolen in the State of Indiana, while the public VIN's matched vehicles titled in the State of Illinois to Radtke's wife, his girlfriend, and the girlfriend of one of his employees.

The seventh stolen vehicle in question, a 1980 Chevrolet pick-up truck (the subject of Count XIII of the indictment), was observed at Sollitt Sandblasting in early June of 1984 where the vehicle was repainted and fitted with a new topper or cap for the pick-up truck cargo box. On June 16, agents observed two individuals arrive at Sollitt Sandblasting and drive the stolen Chevy pick-up truck away from the shop and out of the State of Illinois. Subsequent investigation revealed that Radtke sold the stolen truck to a resident of the State of Michigan. In October 1984, an officer of the Michigan State Police inspected the stolen pick-up truck in Michigan and discovered that the confidential VIN on the frame of the stolen truck did not match its public VIN, but did match the VIN of a truck stolen in Illinois on June 8, 1984.

Roger Blisset, a friend and employee of Radtke, testified at Radtke's trial about the alterations that had taken place on certain vehicles while stored at Sollitt Sandblasting. Blisset's girlfriend, Paula DiCicco, owned a 1975 Pontiac Firebird that was in poor condition. Blisset testified that in August of 1984 he brought DiCicco's Firebird to Sollitt Sandblasting and Radtke supplied him with a 1979 Firebird (that had recently been stolen in Indiana) to replace DiCicco's automobile. Blisset replaced the hood, bumper and grillwork of the stolen auto with parts from DiCicco's 1975 Firebird. Radtke's brother painted the stolen car and Radtke himself replaced the public VIN in the stolen 1979 Firebird with the VIN from DiCicco's 1975 Firebird. Blisset also testified that he assisted Radtke in removing the grill bearing a GMC emblem from a 1982 GMC van, replacing it with a grill bearing a Chevrolet emblem. According to Blisset, he and Radtke also replaced the square headlight assembly of the 1982 GMC van with a round headlight assembly to conceal the year and model of the van. Blisset further testified that he assisted Radtke in changing the grillwork of the 1983 GMC van, again replacing it with a different grill bearing a Chevrolet emblem. Blisset further testified that he assisted in the painting of the 1979 Chevrolet pick-up truck that Radtke subsequently sold to the Michigan resident.

At the conclusion of the government's evidence, the court granted the defendant's motion for acquittal on Counts V and VI (the 1979 Dodge truck) on the grounds that the government had failed to establish that the vehicle involved in those two counts had ever been present in the Central District of Illinois. At the conclusion of the trial, the jury returned verdicts of "guilty" on Counts I through IV, "guilty" on Counts VII and VIII, "guilty" on Counts X through XIII and "not guilty" on Count IX. The court sentenced Radtke to terms of four years concurrently on Counts I through IV. On Count VII and Count VIII and Count X through Count XIII, the court suspended sentence and on each count placed Radtke on probation five years, to be served concurrently. The court further ordered Radtke to pay restitution in the amount of $2,664.00 to the owners of the stolen 1979 Chevrolet Suburban named in Counts VII and VIII. Radtke appeals his convictions, raising three separate issues: (1) whether the government presented sufficient evidence to prove that the vehicles were moving in interstate commerce at the time of his activities; (2) whether the trial court erred as a matter of law in failing to hold an evidentiary hearing on the defendant's motion to suppress evidence and thus erroneously failed to suppress illegally seized evidence; and (3) whether the trial court erred in denying the defendant's motion for a mistrial based on the allegedly improper comments of the government's attorney during closing argument.

II

In order to sustain a conviction under 18 U.S.C. Sec. 2313, the government must prove, inter alia, that "the motor vehicle involved was moving in interstate traffic at the time of the defendant's activities." United States v. Thomas, 676 F.2d 239, 242 (7th Cir.1980) (quoting United States v. Brady, 425 F.2d 309, 311 (8th Cir.1970)). See also United States v. Thornley, 707 F.2d 622, 625 (1st Cir.1983); United States v. Browning, 439 F.2d 813, 815 (1st Cir.1971). "The question of interstate commerce is for the jury, and we must affirm if substantial evidence exists in the record to support the jury's verdict," United States v. Pichany, 490 F.2d 1073, 1077 (7th Cir.1973). Thus, as with all claims regarding the sufficiency of evidence in criminal cases, we must determine "whether, after reviewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); United States v. Chu, 779 F.2d 356, 361 (7th Cir.1985). In making this determination, we must also bear in mind that "[t]he fact finder [the jury] may draw reasonable inferences based upon the evidence presented." Bujol v. Cain, 713 F.2d 112, 115 (5th Cir.1983). Further, "circumstantial evidence is of equal probative value to direct evidence ... [and] may be the sole support for a conviction." United States v. Marquardt, 786 F.2d 771, 780 (7th Cir.1986). See also United States v. Vretta, 790 F.2d 651, 656 (7th Cir.1986). "If the government proves its case by circumstantial evidence, 'it need not exclude every reasonable hypothesis of innocence so long as the total evidence permits a conclusion of guilt beyond a reasonable doubt.' ... The trier of fact is free to choose among various reasonable constructions of the evidence." Thornley, 707 F.2d at 625. In the present case, the trial judge properly instructed the jury, "you should consider [the] evidence in the light of your own observations and experiences in life. You may draw such reasonable inferences as you believe to be justified from proved facts."

Radtke presents two separate and distinct arguments...