U.S. v. Robertson
| Decision Date | 23 January 1979 |
| Docket Number | 78-1462,Nos. 78-1432,s. 78-1432 |
| Citation | 588 F.2d 575 |
| Parties | 3 Fed. R. Evid. Serv. 1246 UNITED STATES of America, Appellee, v. Donald E. ROBERTSON, Appellant. UNITED STATES of America, Appellee, v. Ronnie LITTLE, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Philip G. Kaplan, St. Louis, Mo., for appellant Robertson; Blumenfeld, Kalishman, Marx, Tureen & Paster, St. Louis, Mo., on brief.
Roy A. Walther of Crouppen, Walther, Swibelman & Walsh, St. Louis, Mo., for appellant Little.
David M. Rosen, Asst. U. S. Atty., St. Louis, Mo., for appellee; Robert D. Kingsland, U. S. Atty., St. Louis, Mo., on brief.
Before BRIGHT, STEPHENSON and HENLEY, Circuit Judges.
Defendants Ronnie Little and Donald E. Robertson appeal from convictions under a two-count indictment. Defendants were convicted on Count I of violating 18 U.S.C. § 2314 by transporting in interstate commerce various stolen goods with a value of more than $5,000, knowing the goods to have been stolen, and on Count II of conspiring to transport the same goods in violation of 18 U.S.C. § 371. 1
The evidence produced at trial disclosed that the defendants, along with coconspirators Charles and Ralph Axelson and Boyd Hicks, broke into a John Deere farm equipment sales and service store, William Nobbe & Company, located in Waterloo, Illinois, late in the evening of June 25, 1975, or early in the morning of June 26, 1975. Various merchandise including lawnmowers, bicycles and mechanics' tools were stolen and transported to St. Louis, Missouri, where they were unloaded and stored at the home of Little. The primary damaging testimony was elicited from coconspirators Charles and Ralph Axelson. In return for their testimony they received immunity from prosecution on these charges and the United States Attorney wrote a letter to the parole board in El Reno, Oklahoma, where they were incarcerated on other convictions, explaining that they had cooperated in the prosecution of the defendants in this case.
On this appeal both defendants argue five identical issues and Little raises two additional claims of error. 2 Initially both defendants contend that the district court should have granted their motions to dismiss because of pre-indictment delay. The crimes occurred approximately 34 months before the indictment. The uncontroverted statement of the government is that the first information about the crime implicating the defendants was received on September 23, 1976, approximately 15 months after the crime. On November 6, 1976, the government was able to confirm some of the information. Active investigation of the case continued until March 1, 1977. At that time the government concluded it was necessary to secure the cooperation of the Axelsons in order to convict the defendants. This cooperation was finally achieved on March 22, 1978. Sixteen days later the defendants were indicted.
Neither the time during which the government was completely unaware of the defendants' involvement in the crime, nor the period of active investigation by the government, should be considered in support of a pre-indictment delay claim. See United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). Thus, only 16 days of the elapsed time are unaccounted for. This is not an impermissible delay. Moreover, no specific incident of prejudice resulting from the delay is even alleged by the defendants. Compare United States v. Naftalin, 534 F.2d 770 (8th Cir.), Cert. denied, 429 U.S. 827, 97 S.Ct. 83, 50 L.Ed.2d 89 (1976), With United States v. Barket, 530 F.2d 189 (8th Cir.), Cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 282 (1976). See generally Preindictment Delay in the Eighth Circuit, 26 Drake L.Rev. 110 (1978).
The next issue raised by the defendants is that the district court erred in not granting their motions for severance of the offenses and for separate trials for the defendants. The defendants filed pretrial motions requesting severance and they were denied. The motions were not renewed at the end of the government's evidence nor at the conclusion of all of the evidence. Therefore, the defendants have waived the right to assert the severance issue. United States v. Pelton, 578 F.2d 701, 711 (8th Cir. 1978). Moreover, examination of the record fails to disclose any prejudice to the defendants as a result of the joinder of offenses and defendants.
Another claim of error asserted by both defendants is the admission into evidence of government's Exhibit 1. Exhibit 1 is a list of the merchandise shipped to William Nobbe & Company from John Deere Company. Also included in the Exhibit is a column specifying the cost of each item to William Nobbe & Company. Another column labeled "Out of Stock" was usually filled out when an item was sold. In Exhibit 1 this column contains the notation "stolen" in connection with several items. These notations were apparently made by the insurance adjustor to indicate merchandise which had been received by William Nobbe & Company and which could not be accounted for after the burglary. It was error to admit Exhibit 1 into evidence in its entirety because the notation "stolen" was not entered on Exhibit 1 in the ordinary course of William Nobbe & Company's business. See Hiram Ricker & Sons v. Students Int'l Meditation Soc'y, 501 F.2d 550, 554 (1st Cir. 1974); Picker X-Ray Corp. v. Frerker, 405 F.2d 916, 922-24 (8th Cir. 1969); Williams v. United States, 323 F.2d 90, 95 (10th Cir. 1963); Hartzog v. United States, 217 F.2d 706, 709-10 (4th Cir. 1954); Fed.R.Evid. 803(6). Compare Cullen v. United States, 408 F.2d 1178, 1179-80 (8th Cir. 1969). However, the Exhibit was admissible in all other respects as a record kept in the regular course of business. It was admissible to show the items which John Deere Company had shipped to William Nobbe & Company. It also provided evidence of which items were on hand as of June 25, 1975, and their value.
The defendants contend that their convictions should be reversed because Exhibit 1 provided the only evidence that the value of the goods exceeded $5,000, as is required by the statute. We conclude, however, that the error was not prejudicial to the defendants. Robert Nobbe, a part-owner of William Nobbe & Company, was allowed without objection to use Exhibit 1 as an aid in his testimony concerning what merchandise was stolen and its value. In response to the prosecuting attorney's question, "Have you been able to establish a total value for the items taken?" Nobbe responded, "Somewhere over $14,000." In addition, defendants' counsel used Exhibit 1 in their...
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