U.S. v. Reed

• Decision Date: 29 April 1981
• Docket Number: Nos. 80-5041,s. 80-5041
• Citation: 647 F.2d 678
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hugh REED, Jay D. Hatton, Kerry M. Martin, Thomas C. Lawson, and Charles M. Terrell, Defendants-Appellants. to 80-5044, and 80-5072.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 678

647 F.2d 678

UNITED STATES of America, Plaintiff-Appellee, v. Hugh REED, Jay D. Hatton, Kerry M. Martin, Thomas C. Lawson and Charles M. Terrell, Defendants-Appellants.

Nos. 80-5041 to 80-5044, and 80-5072.

United States Court of Appeals Sixth Circuit.

Argued Dec. 18, 1980.

Decided April 29, 1981.

H. Louis Sirkin, Cincinnati, Ohio (Court-appointed) for defendant-appellant in No. 80-5041.

Martin S. Pinales, Cincinnati, Ohio (Court-appointed) for defendant-appellant in No. 80-5043.

Jack T. Schwarz, Dayton, Ohio, for defendant-appellant in No. 80-5042.

Henry E. Sheldon, II, Cincinnati, Ohio (Court-appointed) for defendant-appellant in No. 80-5072.

Robert Good (Court-appointed), J. Murphy, Shelbyville, Ind., for defendant-appellant in No. 80-5044.

James C. Cissell, U. S. Atty., Bernard J. Gilday, Cincinnati, Ohio, for plaintiff-appellee in all cases.

Before ENGEL, KEITH and MERRITT, Circuit Judges.

ENGEL, Circuit Judge.

Defendants Hugh L. Reed, Jay D. Hatton, Kerry M. Martin, Thomas C. Lawson, and Charles M. Terrell were charged jointly in a three count indictment with receiving and concealing stolen goods and wares having a value in excess of $5,000 and traveling through interstate commerce, in violation of 18 U.S.C. §§ 2315 and 2 (1976). Count 1 involved certain property stolen from Dr. Randolph and Ruth Anderson and transported from West Virginia to Ohio. Count 1 involved property stolen from Carl and Helen Helman in Kentucky and transported to Ohio. Count 3 involved property stolen from Lloyd and Doris Rosenbaum and Fred Bose in Indiana and transported to Ohio.

Martin and Reed were charged in all three counts; Lawson and Terrell were charged in counts 1 and 2; and Hatton was charged in count 3 only. Jury trial commenced on December 3, 1979, and on December 14, after approximately one day of deliberations, the jury returned a verdict of guilty against all defendants on all charges. Thereafter the trial court imposed the maximum sentence of 10 years imprisonment and $10,000 fine on each defendant for each count. The trial judge ordered the sentences to run consecutively. All defendants appeal.

While no criminal conspiracy count was included in the indictment, the government's prosecution of the substantive offenses proceeded on the theory that the defendants were participants in a burglary and fencing operation which centered in Middletown, Ohio. The operation was broken when a convicted Middletown burglar, one Robert Miller, agreed to cooperate with federal authorities in exchange for possible lenient treatment on a number of outstanding charges against him. FBI special agent Richard Dorton, using the name Dick Dalton and posing as a Floridian dealer in stolen property, was brought in as an undercover agent to work with Miller and infiltrate the Middletown burglary and fencing ring.

The proof showed that in October 1978, Miller met with defendant Reed at the Office II Bar in Middletown and at that time Miller agreed to buy sterling silver from Reed at $55 per pound. Four days later, defendant Martin telephoned Miller informing him that he had some merchandise for sale. The next day Miller again met with Reed who described the silver and jewelry that Martin had procured and wished to sell. On that same day Miller went to defendant Lawson's home and there met with Lawson, Martin and Terrell. Silverware and jewelry were exhibited. Miller tested, weighed, sorted and eventually purchased the silver; however, the jewelry was not purchased. The silver alone constitutes the property forming the basis for count 1.

On October 31, 1978, Miller met Martin at Lawson's residence where the jewelry which had been exhibited earlier was inventoried and given to Miller who was to show it to Dorton. The defendants all knew and apparently trusted Miller but were less certain about Dorton. When Miller delivered the jewelry to Dorton, he photographed it and gave it back to Miller who, in turn, returned the jewelry to Martin.

On November 20, 1978, Miller and Dorton traveled to Terrell's residence where Martin produced a bag containing twenty-six jewelry pieces, all of which had been seen and photographed by Dorton on October 31. Four other pieces also previously seen and photographed by Dorton were later revealed. An agreement to sell the twenty-six pieces was concluded and Dorton made a $2,000 down payment. The next day Dorton met with Martin and Lawson and paid an additional $6,500, receiving the four additional pieces of jewelry in return. These thirty pieces of jewelry constitute the stolen property described in count 2 of the indictment.

On December 11, 1978, Dorton and Miller met Reed and defendant Hatton to discuss another transaction. The following day Dorton met Hatton and Martin at Miller's home and there purchased an additional lot of jewelry and silverware. This property, as well as some ceramic "Toby" mugs which Hatton revealed at that time, constitute the property described in count 3 of the indictment.

Two principal issues are presented on appeal: (1) whether the offenses described in counts 1 and 2 were in fact one offense for which only one sentence ought to have been imposed, rather than the consecutive sentences handed down, and (2) whether the defendants were prejudiced by certain prior "bad act" evidence brought to the attention of the jury.

I

The first question raises the issue of what Congress intended to be the "appropriate unit of prosecution" for violations of 18 U.S.C. § 2315. In its brief, the government relies upon Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), and argues that since different evidence supports and proves each count, separate offenses properly were charged. Specifically, during oral argument the government referred to Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and argued that the stolen property forming the basis for counts 1 and 2 was obtained from separate burglaries; therefore, the court could presume that the property was received at different times, thereby constituting separate violations of the statute. Moreover, the government contends that although both the jewelry and silverware were concealed and then revealed to Miller on October 30th, the jewelry was reconcealed and again revealed on October 31st and November 30th. Finally, at oral argument, the government suggested that the source of the stolen property provides the appropriate unit of prosecution under 18 U.S.C. § 2315; therefore, proof of different sources (i. e. separate burglaries) would justify separate counts.

We think it rather clear that Gore involved a different question: whether the Double Jeopardy Clause precludes separate convictions under two separate statutes for the same criminal act. We are not concerned with such a situation here, but rather with the narrower question of what operative facts Congress intended to form the basis for a separate and distinct violation of 18 U.S.C. § 2315.

We also observe at the outset, as did Judge Weick in United States v. Jones, 533 F.2d 1387 (6th Cir. 1976), cert. denied, 431 U.S. 964, 97 S.Ct. 2919, 53 L.Ed.2d 1059 (1977), that Blockburger's "same facts test" does not apply to multiple counts under a single statutory provision where the offense involves a course of criminal conduct. Thus in United States v. Woods, 568 F.2d 509 (6th Cir.), cert. denied, 435 U.S. 972, 98 S.Ct. 1614, 56 L.Ed.2d 64 (1978), we observed:

Here we are not concerned with whether a single act violates a multiplicity of statutes as in Gore and Blockburger. Rather, we face what the Supreme Court has recognized to be a different issue: whether a course of conduct here, possession (of narcotics) with intent to distribute can result in multiple violations of the same statute Our court has held that the "same facts" test in Blockburger is inapplicable to offenses charging a course of conduct, at least where Congress has not indicated the appropriate unit of prosecution.

Woods, supra, 568 F.2d at 514 n. 1 (citations omitted). ¹

Considering how long 18 U.S.C. § 2315 has been on the books, we are surprised to uncover no published decisions applying the merger doctrine to this Act. A careful examination of Supreme Court decisions, the legislative history of the statute, and decisions of our circuit in other similar cases, however, persuades us that upon the allegations set forth in counts 1 and 2 and the proofs adduced in support thereof, the two offenses should be merged and only one sentence ought to have been imposed against each defendant convicted on counts 1 and 2.

In Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), the Supreme Court reversed a decision of our circuit and held that an individual transporting two women across state lines for immoral purposes could be found guilty of only one single act of transportation in violation of the Mann Act. In so ruling, the Court examined the statutory language in its entirety, and articulated the following rule of statutory construction which guides us here:

When Congress has the will it has no difficulty in expressing it when it has the will, that is, of defining what it desires to make the unit of prosecution and, more particularly, to make each stick in a faggot a single criminal unit. When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment (I)f Congress does not fix the punishment for a criminal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses

Bell, supra, 349 U.S. at 83-84, 75 S.Ct. at 622. (emphasis added). ²

Thus, we first turn to the language and legislative history of 18 U.S.C. § 2315. This provision of the criminal...