U.S. v. Robertson, 82-2335
| Decision Date | 11 May 1983 |
| Docket Number | No. 82-2335,82-2335 |
| Citation | 706 F.2d 253 |
| Parties | UNITED STATES of America, Appellee, v. Frank J. ROBERTSON, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James R. Wyrsch, Charles E. Atwell, Koenigsdorf, Kusnetzky & Wyrsch, Kansas City, Mo., for appellant.
Robert G. Ulrich, U.S. Atty., Kansas City, Mo., Linda M. Betzer, Atty., U.S. Dept. of Justice, Washington, D.C., for appellee.
Before BRIGHT and FAGG, Circuit Judges, and JONES, United States District Judge. *
Frank J. Robertson appeals his conviction by a jury on four felony counts. Count I charged Robertson with willfully and knowingly making an extortionate extension of credit in violation of 18 U.S.C. Sec. 892(a). Count II charged that Robertson willfully participated in the use of an extortionate means to collect an extension of credit, in violation of 18 U.S.C. Sec. 891(7). Count III charged Robertson with carrying a firearm in the commission of a felony relating to extortionate extension of credit and collection of extension of credit by extortionate means, in violation of 18 U.S.C. Sec. 924(c)(2). Count IV charged that Robertson received a firearm that had travelled in interstate commerce after having been convicted of a felony, in violation of 18 U.S.C. Secs. 922(h) and 924(a). We affirm the conviction on counts I, II, and IV, and reverse on count III.
The Government's case established that Robertson loaned Roy Holloway the sum of $3,000 in November 1981, to be repaid at the rate of $300 per week. Holloway testified that these payments represented interest only, at a rate of ten percent per week. When Robertson did not receive payments promptly, he threatened and physically beat Holloway. In April 1982, Holloway contacted federal law enforcement agents for help. Holloway agreed to tape-record his future conversations with Robertson and carried a tape recorder supplied him by the federal agents.
At trial, the Government played for the jury six tape recordings of conversations between Holloway and Robertson from meetings they held between April 19, 1982 and May 17, 1982. The Government also introduced into evidence a .357 magnum revolver seized on May 20, 1982, during a warranted search of Robertson's automobile. Holloway testified that on three or four occasions in 1981, he had seen a gun in a desk drawer in the office at Robertson's used car lot. Holloway did not state that he saw Robertson carrying the gun, or that Robertson had threatened him with it, but merely that he had seen the gun in Robertson's office.
Robertson raises four contentions on appeal: 1) The trial court erred in refusing to give a cautionary instruction regarding the credibility of Holloway's testimony as an informer rather than a general instruction on credibility; 1 2) The trial court erred in refusing to acquit on count III, because the Government failed to establish that Robertson did unlawfully "carry" a firearm in the commission of a felony; 3) Count IV, charging possession of a firearm by a defendant who has been convicted of a felony, should have been severed from the other counts; and 4) The trial court erred in refusing to suppress the handgun as evidence in the case. 2
Appellant's contentions, save that regarding count III, essentially lack merit. The trial court did not abuse its discretion by refusing to give a special instruction on the credibility of an informer. Holloway was not an accomplice or coconspirator, and the prosecutor presented substantial independent evidence of Robertson's guilt. See Jones v. United States, 396 F.2d 66 (8th Cir.1968), cert. denied, 393 U.S. 1057, 89 S.Ct. 695, 21 L.Ed.2d 697 (1969) (). Based on these circumstances, Robertson established no right to a special instruction.
Nor did the trial court err in refusing to sever count IV from the other counts. As the Government notes, Robertson did not himself move for severance. The motion for severance was submitted by Robertson's codefendant, Rosario Lochiano, and was construed by all concerned as only requesting severance for Lochiano from Robertson. Robertson did not join in this motion or move for severance at the close of the testimony. Accordingly, Robertson is not entitled to appellate review on this issue. See United States v. Steffen, 641 F.2d 591 (8th Cir.), cert. denied, 452 U.S. 943, 101 S.Ct. 3091, 69 L.Ed.2d 959 (1981).
The record is equally devoid of a basis for suppressing the handgun seized by police pursuant to a warranted search of Robertson's automobile. The warrant authorized the agents to search for "U.S. Currency," among other things. During the search, the agents found the handgun in a bank bag in Robertson's automobile. Clearly, the warrant authorized the police to open the bank bag. The gun, therefore, was subject to seizure under the plain view doctrine and was properly admissible at trial.
Finally, we turn to Robertson's conviction on count III of the indictment, which recites that Robertson "did unlawfully carry a firearm * * * during his commission of the offense of making an extortionate extension of credit * * * and the offense of collection of an extension of credit by extortionate means * * * [a]ll in violation of [18 U.S.C. Sec. 924(c)(2) ]." Section 924(c)(2) provides:
shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years.
The Government argues that sufficient evidence supports the jury's conclusion that Robertson "carried"...
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