U.S. v. Reed, s. 80-1671

• Decision Date: 10 September 1981
• Docket Number: Nos. 80-1671,80-1672,s. 80-1671
• Parties: UNITED STATES of America, Appellee, v. Orrin Scott REED, Appellant. UNITED STATES of America, Appellee, v. Albert J. BIBBY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 624

658 F.2d 624

UNITED STATES of America, Appellee, v. Orrin Scott REED, Appellant.

UNITED STATES of America, Appellee, v. Albert J. BIBBY, Appellant.

Nos. 80-1671, 80-1672.

United States Court of Appeals,

Eighth Circuit.

Submitted April 16, 1980.

Decided Sept. 10, 1981.

James R. Britton, U.S. Atty., James S. Hill (argued), Lynn E. Crooks, Asst. U.S. Attys., Bismarck, N.D., for appellee.

Carl O. Flagstad (argued), Kenner, Halvorson & Sturdevant, Minot, N.D., for Bibby.

Collin P. Dobrovolny, Minot, N.D., (argued), for Reed.

Before LAY, Chief Judge, ROSS, Circuit Judge, and ROBINSON, Senior District Judge. ^*

ROSS, Circuit Judge.

Orrin Scott Reed appeals his conviction on one count of transporting stolen goods in interstate commerce and conspiracy to transport such goods in violation of 18 U.S.C. §§ 2314 and 2. Albert J. Bibby, a codefendant, appeals his conviction on two counts of transporting stolen goods in interstate commerce. ¹ We affirm.

The evidence introduced at trial by the government established that a number of persons had conspired to transport machinery which had been stolen in Indiana to the Minot, North Dakota, area for sale. The main government witness at trial was Dale Linn Johnson, who had been indicted as a coconspirator. ²

Johnson testified that prior to 1979 he had operated a trucking business and through that business had become acquainted with James Thompson, a mechanic from Chicago, Illinois. In September 1979, Thompson came to Velva, North Dakota, to visit Johnson. Thompson during his visit discussed with Johnson the types and brands of tractors used by farmers in the area. Thompson asked Johnson if there was anyone Johnson knew who needed tractors. Johnson told Thompson that a person he knew wanted a payloader. Thompson then left Velva.

On September 15, 1979, a payloader arrived in Velva on a truck driven by Albert J. Bibby. Bibby testified that he was asked to transport the payloader to Velva by a truck driver named Jerry. Bibby stated that he met Jerry at a truckstop and Jerry was looking for an acquaintance of Bibby's, James Thompson. Bibby picked up the payloader at a truck stop in Lake Station, Indiana, and delivered it to Johnson in Velva. Other evidence established that the payloader had been stolen about September 5, 1979, from a tractor company in Fort Wayne, Indiana, and had a value of $5,000 or more. See 18 U.S.C. § 2314.

Johnson testified that in subsequent phone conversations with Thompson there was discussion of the price to be asked for the payloader. Also, Johnson told Thompson that the payloader would be difficult to sell because it did not have a cab or bucket. In a later phone call, Thompson informed Johnson that he had found a cab and bucket for the payloader and, in addition, had obtained a small loader. Johnson testified that he then flew to Chicago and met Thompson. Thompson then had Johnson follow him in a truck to pick up the parts and the small loader. Thompson led Johnson to a junkyard located in Rochester, Indiana, which belonged to Orrin Scott Reed. Reed helped Johnson and Thompson load the cab and bucket and small loader in Johnson's truck. Johnson testified that he asked Reed whether there was a bill of sale for the loader and Reed responded, "How stupid are you." Other evidence established that the small loader had been stolen from an equipment company in Wabash, Indiana, on September 23, 1979.

Johnson testified that as he left the Rochester area with the parts and loader, he observed Reed and Thompson on a highway refueling a tractor which was very similar to a JI Case Model 2090 tractor. A tractor of this type had been stolen from the same equipment company and on the same date as the small loader.

About October 3, 1979, Bibby delivered two more pieces of machinery to Johnson and Thompson who had returned to Velva. Bibby testified that he had picked up the machinery from Jerry at the same truckstop in Lake Station, Indiana. The two machines were the Case tractor that had been stolen September 23, 1979, from the equipment company in Wabash, Indiana, and a JI Case Model 2670 tractor which had been stolen from an equipment company in Valparaiso, Indiana, on September 29, 1979.

The final two machines transported by Bibby were stolen from an equipment company in Warsaw, Indiana, on November 26, 1979. Bibby testified that he picked up the machines, a tractor and a dozer, from "Jerry" at the Lake Station truckstop on November 26, 1979, and arrived in Velva the next day.

Bibby also testified that he knew Reed and during the fall of 1979 stored his truck at Reed's junkyard in Rochester, Indiana.

Other evidence established that Johnson and Thompson had attempted unsuccessfully to sell some of the machines to two different persons during September 1979. In October 1979 Johnson and Thompson transferred those machines, and the ones that later arrived, to Roland Edward Mathis a/k/a Jake Mathis. Mathis, thereafter, made five attempts to sell the machines, two of which were successful. The five persons who were approached by Johnson, Thompson and Mathis, but did not buy any machines, testified at trial regarding the attempts to sell. The two persons who bought machinery from Mathis were each indicted on one substantive count of receiving stolen goods in violation of 18 U.S.C. § 2315. Neither "buyer" was indicted on the conspiracy count, but they were tried together with Reed and Bibby. The jury acquitted one "buyer" and this court has reversed the conviction of the other "buyer" and ordered a new trial. See United States v. Eckmann, 656 F.2d 308 (8th Cir. 1981).

James Ray Thompson had pled guilty to the conspiracy at the time of the Reed-Bibby trial. The plea was later withdrawn and Thompson was tried and convicted on the conspiracy and four substantive counts.

Prior to the Reed-Bibby trial, Jake Mathis was tried separately and convicted on five substantive counts. Mathis was scheduled to be tried on the conspiracy count with Bibby and Reed but Mathis pled guilty to conspiracy a few days before the trial.

Bibby was acquitted on one substantive count which related to his first trip from Indiana to Velva on which he transported a payloader. Bibby was also acquitted on the conspiracy. The two substantive counts on which Bibby was convicted related to his second and third trips with machinery to Velva.

Reed was convicted on one substantive count and the conspiracy count.

I. Denial of a Continuance, Cocounsel and Travel Expenses

Reed and Bibby contend that the trial court abused its discretion in denying their motions for a continuance and for appointment of cocounsel or, in the alternative, travel expenses for their attorneys.

Reed was arraigned in Minot, North Dakota, on April 18, 1980, and was released on bond to return to his home in Rochester, Indiana. On April 29, 1980, counsel who resided in Minot was appointed for Reed and Reed was so notified.

Bibby was arraigned in Fargo, North Dakota, on April 30, 1980, and he was released on bond to return to his home in Cicero, Illinois. Counsel for Bibby was notified of his appointment on April 25, 1980, and met with Bibby for five hours on the day he was arraigned. Counsel for Bibby resided in Minot.

On April 22, 1980, the trial judge entered an order setting June 2, 1980, as the date of trial.

Reed argues that a continuance was necessary because trial counsel had only three weeks to prepare for trial due to an intervening one week trial. Reed concedes that the government followed an open file policy but emphasizes that the government's files contained the results of a major investigation involving seven defendants and there was no government effort to separate the information as to each defendant. Reed also argues that the district court abused its discretion in denying motions for appointment of cocounsel in Rochester, Indiana, or, in the alternative, expenses for counsel to travel to Indiana. Reed states that these expenditures were necessary for counsel to meet personally with him, to investigate the junkyard where the transaction took place, and to interview defense witnesses.

Bibby argues that his motion for a continuance should have been granted because counsel had only about four weeks to prepare and the indictment charged seven defendants in eight counts. Bibby asked that the district court, as an alternative to a continuance, appoint cocounsel in Illinois or that counsel's request for travel expense to Illinois be approved. Bibby argues that such expenditures were necessary so that counsel could meet with him and conduct an investigation.

The district court denied the motions for a continuance noting that both attorneys had been aware of the June 2, 1980 trial date since April 29th or 30th. The district court also denied counsels' request for travel funds or appointment of cocounsel because it had not been established why such expenditures were necessary. The court stated that such expenditures "will not be allowed on the basis of the conclusory statements contained in the affidavits" submitted by counsel.

The denial of a continuance will constitute reversible error only if there was a clear abuse of discretion. United States v. Wolf, 645 F.2d 665 at 667 (8th Cir. 1981). In reviewing the denial of a motion for a continuance which is based on inadequate preparation for trial, the appellate court considers "the amount of time granted for preparation, the conduct of counsel at trial, and whether prejudice appears from the record." United States v. Wolf, supra, at 667, quoting, United States v. Campbell, 609 F.2d 922, 925 (8th Cir. 1979), cert. denied, 445 U.S. 918, 100 S.Ct. 1282, 63 L.Ed.2d 604 (1980).

Our review of the record reveals no prejudice to appellants due to inadequate preparation. Trial counsel for both appellants conducted themselves ably and therefore we find that the preparation time granted was adequate. While appellants argue that the length of the government's...