U.S. v. Runge

• Decision Date: 28 March 1979
• Docket Number: No. 77-1315,77-1315
• Citation: 593 F.2d 66
• Parties: 4 Fed. R. Evid. Serv. 103 UNITED STATES of America, Appellee, v. Daniel RUNGE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 66

593 F.2d 66

4 Fed. R. Evid. Serv. 103

UNITED STATES of America, Appellee, v. Daniel RUNGE, Appellant.

No. 77-1315.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 13, 1978.

Decided Feb. 13, 1979.

Rehearing Denied March 28, 1979.

William H. Gilliam (argued), of Gottschalk, Patterson & Gilliam, Waterloo, Iowa, on brief, for appellant.

James H. Reynolds, U. S. Atty., Cedar Rapids, Iowa, argued and on brief, for appellee.

Before GIBSON, Chief Judge, and LAY and HEANEY, Circuit Judges.

PER CURIAM.

Daniel Lee Runge was charged with transporting and causing to be transported in interstate commerce two stolen tractors valued at over $5,000, in violation of 18 U.S.C. § 2 and § 2314, and conspiring with Mahlon Headid, Delores Gregg and David Garritson to commit the illegal transportation, in violation of 18 U.S.C. § 371. ¹ He appeals his conviction pursuant to a jury verdict which followed a joint trial with Gregg, Mahlon Headid and Milo Headid. He also appeals denial of a pro se post-trial Fed.R.Cr.P. 33 motion for new trial. ²

The facts revealed at trial, summarized in the light most favorable to the government, are as follows. On the evening of April 12, 1976, Runge, Garritson, and Danvers Jansen stole a uniloader tractor from an equipment dealership in Sioux Falls, South Dakota, and transported it to Lake Benton, Minnesota. After arranging for its sale to Mahlon Headid, they returned to Sioux Falls and stole a second tractor on April 14, 1976. They transported the second tractor to Headid in Iowa, returned for the first tractor, and delivered it to Headid also.

The theft was Jansen's idea, and he and Garritson elicited Runge's help because he knew how to run the tractors. Runge showed Garritson how to run the tractor, helped load it on a truck, and took it to Minnesota with Garritson and Jansen. Thereafter, Runge rented a U-Haul truck to carry the second tractor, helped to load it and unload it in Iowa, and accompanied the others in retrieving the first tractor from Minnesota and delivering it to Iowa. He was present when the serial numbers were removed and the casting numbers were ground off. Headid paid $1,800 in cash for the tractors, and Runge received $600.

Jansen and Garritson testified against Runge, and their stories coincided on the above particulars. Their implication of Runge in the conspiracy was corroborated by a witness who identified Runge as the person who rented the U-Haul truck on April 14, by a sheriff who saw Runge in the cab of the truck when the threesome removed the first tractor from Minnesota on April 15, and by identification of fingerprints on a bill of sale form as Runge's.

The evidence summarized above clearly is sufficient to uphold the jury's verdict and its implicit rejection of Runge's frame-up and alibi defense.

The Direct Appeal.

We have examined Runge's numerous challenges to the conviction and find them to be generally without merit.

A. Evidence of Other Crimes.

Fourteen items are listed in Runge's brief, most of which simply do not fit within the rule proscribing admission of evidence of other crimes, wrongs, or acts, either because they are not evidence of Runge's involvement in other crimes or were not introduced by the government. They are almost frivolous, both individually and when considered together.

Two of the allegations merit discussion. The first is introduction into evidence of a mug shot of Runge and statements by a sheriff that he had kept the picture in his files. An inference of a prior criminal record could be, but need not necessarily be, drawn from the existence of Runge's mug shot in the sheriff's files, and thus it might be evidence of other crimes or wrongdoing. This court has stated that it does not endorse admission of obvious "mug shots," United States v. Bohr, 581 F.2d 1294, 1299 (8th Cir.), Cert. denied, --- U.S. ----, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978), but has not adopted a per se rule requiring reversal. The picture could be admissible to show identity. See Fed.R.Evid. 404(b). Identity Was an issue, and the picture was used for Garritson and Jansen to establish Runge's appearance in April 1976. More importantly, it was used by a sheriff to identify Runge as being in Minnesota when the first tractor was moved and thereby to corroborate the accomplice testimony. No objection was made to admission of the mug shot on the ground that it was evidence of other crimes. Where it is important proof of identity and a limiting instruction is given, introduction of a mug shot is not plain error. United States v. Bohr, supra,581 F.2d at 1300. No limiting instruction was given or requested here. However, we conclude even if the mug shot should not have been admitted, its admission was harmless beyond a reasonable doubt in light of the evidence of Runge's guilt on the record as a whole.

The second issue concerns testimony involving threats against witnesses and whether this evidence should have been admitted. The court sustained defense counsel's objection to admission of letters purportedly written by Runge which the government wanted to use to show Runge's attempts to influence witnesses' testimony. However, some witnesses did testify that they had received threats in attempts to persuade them not to testify. Although no one identified Runge as the person making the threats, it can be argued that the jury could infer that Runge or perhaps Milo Headid made the threats. The threats are evidence of other crimes. See United States v. Weir, 575 F.2d 668 (8th Cir. 1978).

If the person making the threats could have been identified, that might be relevant evidence on the key identity question in Runge's case, as an admission by conduct or as showing knowledge of guilt. No perpetrator was identified by any witness, however, so that the evidence appears irrelevant, somewhat confusing, and prejudicial in that it suggests an improper basis for a guilty verdict. Id. at 671. Also, it does not appear to meet the test that evidence of other crimes be clear and conclusive or not be vague or speculative. United States v. Goehring, 585 F.2d 371, 372 (8th Cir. 1978). It was evidently not clear at the time the testimony came in, however, that the threats could not be linked to a certain defendant.

There was no objection to such testimony when it first came in, and Runge's counsel pursued it on cross-examination to Runge's benefit. Objection was made the second time threats came up. The court noted it had come in earlier without objection, and expressed reservations about hearsay aspects, but allowed the question. Prolonged questioning concerning threats was allowed on direct and cross-examination of defendant Gregg, without objection. Under these circumstances, it is difficult to say the district court committed plain error in allowing the testimony. Cf. United States v. Weir, supra, (proper objection made). Furthermore, we deem any error harmless in that the strongest evidence against Runge was the accomplice testimony, and there was no evidence of threats against Garritson or Jansen. The other identifications and the fingerprints make a strong case.

B. Ineffective Assistance of Counsel.

Runge makes five allegations of ineffective assistance. They are:

1. Inadequate trial preparation time of two weeks allowed counsel.

2. Inadequate investigation by counsel, as revealed by failure to discover material set forth in Runge's pro se Rule 33 motion.

3. Inadequate representation at trial.

4. Failure to object to prejudicial material during trial, mainly the other crimes evidence referred to above, and to the prosecutor's comment during final argument on Runge's failure to testify.

5. Failure to follow Runge's directions, particularly not to waive reporting of final arguments.

The transcript reveals that Runge's attorney was active in making motions, objecting, cross-examining government witnesses, and putting on Runge's alibi and frame-up defenses. Five attorneys represented four defendants, and to reduce confusion the trial court ruled that an objection made by any defense counsel would apply to all defendants, unless a defendant opted out. Also, post-trial motions were applied to all defendants and Uhlir, Runge's attorney, made several. He also made important pretrial motions (Brady, discovery of witnesses, motion in limine, removal of witnesses). He cross-examined nearly every government witness. As effectively as possible, he undermined attempts to identify Runge, and impeached the accomplice testimony through use of prior convictions and suggestions that they were government informers. He was successful in having letters written by Runge to Garritson, which apparently involved threats, suppressed. He also lessened through cross-examination the possibility that the jury would infer that Runge had threatened witnesses. In short, the record does not indicate that the short preparation time (which the government alleges was due to Runge's failure to cooperate with three prior attorneys) prejudiced Runge's defense, and it affirmatively shows adequate representation at trial. Some of the material in Runge's Rule 33 motion, which he alleges his counsel should have discovered earlier, especially that concerning undercover activities of the accomplices, was the subject of Uhlir's cross-examination. It is true that the mug shot and the testimony concerning threats should have been objected to, and cautionary instructions urged. However, given the evidence against Runge, we conclude this failure did not materially prejudice his defense so as to make his representation constitutionally defective.

Of course, Uhlir had a duty to exercise his own judgment and not necessarily acquiesce in all of Runge's demands. The failure to have final arguments recorded may have been a mistake, however, since there is an allegation of improper prosecutorial comment on Runge's failure to testify. Defendant Headid's counsel moved for a mistrial after completion...