U.S. v. Shoffner

Decision Date11 August 1987
Docket Number86-1071,86-1226 and 86-1227,Nos. 86-1045,s. 86-1045
Citation826 F.2d 619
Parties23 Fed. R. Evid. Serv. 977 UNITED STATES of America, Plaintiff-Appellee, v. Glen SHOFFNER, Richard Henry Fiedler, and Leonard Michael Stange, Defendants- Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Barry Spevack, Paul Newman and Thomas H. Busch, Monico & Pavich, Chicago, Ill., for defendants-appellants.

John F. Hoehner, Asst. U.S. Atty., James G. Richmond, U.S. Atty., U.S. Atty.'s Office, Hammond, Ind., for plaintiff-appellee.

Before EASTERBROOK and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

These consolidated appeals arose out of a massive conspiracy trial involving a northern Indiana "chop shop" which was involved in stealing motor vehicles, disguising them, and then selling them. The allegations of the indictment, and the convictions resulting after a jury trial, involved: (1) conspiracy to commit offenses against the United States, in violation of 18 U.S.C. Sec. 371; (2) interstate transportation of stolen motor vehicles, in violation of 18 U.S.C. Sec. 2312, 1 (3) receiving stolen motor vehicles which had been transported in interstate commerce, in violation of 18 U.S.C. Sec. 2313, 2 and mail fraud, in violation of 18 U.S.C. Sec. 1341. One of the appeals involves the conviction, following a separate trial, of one defendant for intimidating a witness, in violation of 18 U.S.C. Sec. 1512(a)(2)(A). 3 Appellants, with one exception, were convicted of all counts with which they were charged. 4

As might be expected in a case of this magnitude, there are numerous contentions of error on appeal. The primary contentions in the appeal regarding the conspiracy trial are that: (1) the conduct of the government informant was so outrageous as to violate Due Process; (2) the admission of certain statements made by Stange to a government informant violated Fed.R.Evid. 801(d)(2)(E); and (3) certain evidence gathered pursuant to a search warrant should have been suppressed because the warrant was not sufficiently specific to comply with the Fourth Amendment. The primary contention of error in the witness intimidation trial is that the admission of prior threats Stange had made regarding a witness to a third party violated Fed.R.Evid. 404(b).

For the reasons stated below, we find that there was no error in either of the trials or in the sentences imposed. Therefore, we affirm.

I

Due to the factual complexity of this case (the transcripts of the two trials consume in excess of three thousand pages) and the comparatively straightforward nature of the contentions on appeal, we will endeavor to simplify our recitation of the facts of the case. Accordingly, we will discuss most of the facts in a simplified general fashion, amplifying only those facts necessary to our decision. Additional facts will be discussed, as necessary, in connection with our analysis of each of the contentions made by appellants.

A. Conspiracy Trial

In general terms, the evidence showed a conspiracy to steal cars, mostly from the parking lot of a shopping mall in Orland Park, Illinois, and transport them to a body shop near LaPorte, Indiana. There, the vehicle identification numbers (VINs) of the vehicles were removed and replaced with vehicle identification numbers from wrecked or otherwise junked automobiles which had been purchased by the proprietor of the body shop, Glen Shoffner, at various salvage auctions. Sometimes, this was the only mechanical work done on the stolen vehicles (although they were sometimes painted as well), and sometimes other parts of the stolen vehicles were combined with parts from the salvage vehicles. The resulting "new" vehicle was then sold to a purchaser, with a title bearing the VIN of the salvage automobile. Because those titles were frequently from states other than Indiana, the purchaser was required to have the VIN verified by an Indiana law enforcement officer. Additionally, the purchaser, as is always the case in Indiana when a vehicle changes hands, applied to the Indiana Bureau of Motor Vehicles for a certificate of title in his or her name. Usually, the certificates were mailed to the purchaser from the Bureau of Motor Vehicles.

The government proved its case through several different types of evidence. First, it generally called the victims of the automobile thefts, who each testified as to when and where his vehicle was stolen, and to the type of vehicle stolen. Also, the victims authenticated certified title histories of their vehicles, which bore the VINs of the stolen vehicles. In some cases, the victim witnesses identified photographs taken at the time a search warrant was executed on defendants Shoffner's and Ronald Fee's premises as depicting the vehicles which had been stolen from them.

Secondly, the government called witnesses who had purchased vehicles from the defendant Shoffner. These witnesses testified to the circumstances of the purchase and identified certified title histories of the vehicles they had purchased, most of which reflected that the vehicles to which the VINs on the purchased vehicles belonged were salvage vehicles of one type or another (witnesses from various salvage auction businesses and insurance companies also testified to the circumstances under which the salvage vehicles were purchased by Shoffner and their condition at the time of purchase).

The government also called as an expert witness Edward Skworch, a special agent of the National Automobile Theft Bureau ("NATB"). Skworch testified, in general terms, about VINs, stating that there were two types of identification numbers usually associated with a vehicle, a "public VIN" and a "confidential VIN." The public VIN of a vehicle normally appears on a plate in the dash of an automobile, visible through the windshield, and sometimes on a federally required safety sticker on the door or doorpost on the driver's side of the car. The confidential VIN of a vehicle may appear on various parts of an automobile (indeed, generally in more than one place), including the fire wall, engine, transmission, frame, and other places. From the confidential VIN, an expert can derive the "true VIN," that is, the public VIN that was placed on the vehicle by the manufacturer, by checking records maintained by the NATB. Skworch examined several of the vehicles seized on the Shoffner property to make such an analysis. For most of the vehicles, he determined that the true VIN did not match the public VIN that then appeared on the car, and indeed matched the VIN of one of the vehicles that had been stolen. In some cases, he was unable to ascertain the true VIN because confidential VINs had been obliterated. In still other cases, although some confidential VINs had been obliterated, others remained intact allowing ascertainment of the true VIN, which, in most cases, matched that of a stolen vehicle. In addition, he offered an opinion that many of the vehicles had been "retagged" (connoting a mere change in the VIN) rather than "reconstructed" (connoting major mechanical work, usually building a single car from parts of other cars). Skworch testified that the purpose of "retagging" a vehicle was usually to conceal its true identity.

We will not attempt to catalogue the chain of evidence regarding each vehicle, as the government was required to do at trial (and, dismayingly, has done in a twenty-page statement of facts in its main brief), because with one exception, the defendants do not challenge the sufficiency of the evidence to support the verdicts. Instead we shall use two examples: a 1982 green Pontiac that defendant Leonard Michael Stange was convicted of transporting in interstate commerce (a conviction with respect to which he does challenge the sufficiency of the evidence), and one other example, a yellow-over-brown (two-toned) 1979 pickup truck, for purposes of comparison.

A green Pontiac was stolen from Michael Schoeling on March 6, 1984 from a parking lot in Orland Park, Illinois. A vehicle of the same general description, although bearing a different public VIN was seized by the Lake Station, Indiana, police on April 10, 1984. The vehicle seized had been observed parked in front of Stange's residence on March 23, 1984. At the time of the seizure, the vehicle was being driven by one Melvin Smeltzer, who was following a black tow truck being driven by Stange (towing a third vehicle and carrying Norwood Fitzgerald as a passenger). The vehicles had all come from Stange's residence. The truck was stopped by police because it was towing a vehicle without using amber flashing lights required to be used by tow trucks under Indiana law and because it was speeding. Smeltzer stopped the Pontiac to see what the problem was. Upon examining the Pontiac's public VIN through the windshield, a police detective noticed that the VIN appeared to have been freshly painted. Additionally, upon opening the driver's door, the detective noticed that the federal safety sticker was missing. Smeltzer told police that the vehicle belonged to one of the occupants of the tow truck. On the bench seat of the tow truck, police noticed a confidential VIN tag that had been cut from a vehicle. At that point, both the Pontiac and the tow truck were seized.

Subsequent examination of the vehicle disclosed that its confidential VIN matched the stolen Schoeling vehicle, but its public VIN matched a burned salvage vehicle that had been determined "beyond economical repair" and sold to defendant Shoffner for $25. The vehicle was titled to defendant Richard Fiedler on February 9, 1984, and was registered in Fiedler's name at the time it was seized.

Stange's ex-wife, 5 Anita Smith, and a government informant, Ruth Ann Wright, both testified that they had seen the Pontiac in early 1984. (Smith's testimony as to the date seems to have been in error. She claimed to have seen the car in...

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