U.S. v. Short, s. 92-3100

• Decision Date: 24 August 1993
• Docket Number: Nos. 92-3100,92-3062,s. 92-3100
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Danny SHORT and David S. Bittis, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 475

4 F.3d 475

UNITED STATES of America, Plaintiff-Appellee, v. Danny SHORT and David S. Bittis, Defendants-Appellants.

Nos. 92-3100, 92-3062.

United States Court of Appeals, Seventh Circuit.

Argued June 4, 1993.

Decided Aug. 24, 1993.

James L. Santelle, Asst. U.S. Atty., Office of the U.S. Atty., Milwaukee, WI (argued), for plaintiff-appellee.

Kirsten K. McWilliams, Michael A. Yamat (argued), Jones & Associates, Milwaukee, WI, for defendant-appellant Danny B. Short.

Michael B. Sandy, Milwaukee, WI (argued), for defendant-appellant David S. Bittis.

Before CUMMINGS, FLAUM and EASTERBROOK, Circuit Judges.

FLAUM, Circuit Judge.

From the fall of 1985 through the spring of 1988, Danny Short and David Bittis bought junk cars at local auctions, but instead of restoring the cars, they used their vehicle identification numbers (VINs) in a scheme to sell stolen cars without getting caught. They, or car thief George Van Trece, stole new cars of the same model as the salvaged cars, and then Short and Bittis replaced the stolen cars' VINs with those of the salvaged cars. After preparing fake title documents, the defendants sold the stolen cars to unsuspecting buyers. On June 3, 1992, a jury found Short and Bittis guilty of conspiring to remove, obliterate, tamper with, and alter the VINs. Short was also convicted of four counts of knowing and unlawful possession of, with the intent to sell, motor vehicles bearing altered VINs. We affirm the convictions, but vacate Short's sentence and remand to the district court for resentencing.

I.

Short and Bittis made their money on the difference in value between the older, worn-out cars or trucks they purchased at auctions or salvage yards and the newer cars or trucks they stole. To conduct their scheme, the defendants would buy an older vehicle in the legitimate market and then look for a car of the same make and model on the street, in a parking lot, or on a car dealer's lot. Next, they would steal, or arrange for the theft of, the newer car and bring both cars either to Short's farmhouse or to a local auto body shop. They would replace the vehicle identification number on the new car with the VIN on the legitimately-purchased older car. After Kristie Hartung, Short's wife at the time, prepared fraudulent title, registration, and transfer documents, the defendants looked for a buyer or contacted the buyer they had already located. The subsequent sale looked perfectly legitimate to an unsuspecting buyer, with all of the paperwork seemingly in order.

At trial, Kristie Hartung, who by then was Short's ex-wife and who had been given a grant of immunity, testified extensively about both defendants' criminal activity. She described the cars and trucks they stole and the methods they used to steal the vehicles, from stripping the steering column with a screwdriver to having an extra set of keys made while test driving a car. Hartung's close proximity to the criminal planning and activity, much of which took place at her house, and her occasional participation in the crime allowed her to testify in detail about the entire course of the conspiracy. George Van Trece also testified, pursuant to a plea agreement. Judging from Van Trece's testimony, he seemed to be more of a freelance car thief than a true coconspirator; Short and Bittis described the make and model they needed, Van Trece delivered the vehicle, and they immediately paid him from three hundred to eight hundred dollars. He confirmed his theft, on behalf of Short and Bittis, of several of the specific vehicles involved in the conspiracy.

John T. Armfield, an investigator for the National Auto Theft Bureau, also testified on behalf of the government. He told the jury that every car in the United States can be identified through its vehicle identification number, a seventeen-character sequence of number and letters. Armfield described the routine placement of the public VIN where the left side of the dashboard and the windshield meet and the additional tagging of each car with the same VIN or a nine-character derivative of it on either the transmission, the engine block, or another location. Cars also bear confidential VINs, stamped on substantial, difficult-to-remove parts of the car. As part of his job locating and investigating stolen motor vehicles, Armfield checks the confidential VIN against the public VIN. While he conceded on cross-examination that the use of spare parts can sometimes lead to mismatched numbers, an investigator can determine whether any of the numbers come from stolen vehicles through a national computer system that keeps track of the numbers. Armfield examined nine vehicles identified in the indictment, and he linked the mismatched VINs with cars reported stolen. He also traced the cars back to the defendants.

II.

Short contests the admission of testimony by his ex-wife, Kristie L. Hartung. Before trial, the government moved in limine for permission to introduce testimony by Kristie Hartung, under three exceptions to the marital communications privilege. First, the privilege does not apply to statements made in the presence of a third party. Second, the privilege does not cover a spouse's observations during the marriage. Third, because Hartung played a limited role in the conspiracy, her testimony was admissible under the "joint participant" exception. Over Short's objection, the district court granted the motion, to the extent that the government could demonstrate the applicability of an exception at trial.

The marital communications privilege reflects the value our society places on uninhibited communication between spouses. We encourage married people to confide in each other by protecting their statements from later scrutiny in court. The cost of the privilege is the reduction in truthful disclosure about criminal activity. See United States v. Byrd, 750 F.2d 585, 589 (7th Cir.1984) (interpersonal relationship privileges "must be narrowly construed because they are in derogation of the search for truth ..."). Exceptions to the privilege result from the tension between the cost of reducing our ability to punish criminals and the value of increased spousal communication. For example, we only protect statements made in absolute confidence; that necessary element is lost when spouses permit third parties to witness their communications. Because testimony about first-hand observations would not affect the decision to confide in one's spouse, the privilege does not extend to descriptions of observations. In addition, we do not value criminal collusion between spouses, so any confidential statements concerning a joint criminal enterprise are not protected by the privilege. See id. (citing cases).

The defendant concedes that most of the testimony by Hartung fell under either the observation exception or the presence of third parties exception. ¹ He argued, however, that the portions of Hartung's testimony that did not involve observations or statements made in front of Bittis, Van Trece, or the children should have been excluded because the government did not show that she was a joint participant in the commission of the crime. As the defendant notes, Hartung was not indicted, nor does the government describe her as an unindicted coconspirator. Her testimony, however, supported the government's theory that she aided and abetted the conspiracy. Hartung testified that she prepared title assignments, registration forms, and other documents necessary for selling the cars to legitimate buyers. Tr. 374-78, 383-85, 433. She aided the defendants in concealing the crime, by making a suggestion about how to paint over an identifying feature of a stolen car. Tr. 411. On another occasion, she even helped her husband replace certain car parts. Tr. 420-21. Furthermore, she testified pursuant to an agreement with the government granting her immunity from prosecution. Tr. 313-16; cf. Byrd, 750 F.2d at 594. These factors confirm the government's theory that, while she played a minor role, she nonetheless aided and abetted the conspiracy to a sufficient extent that the marital communication privilege did not apply to all of her testimony.

The difficulty lies in the timing of her participation. According to her own testimony, Hartung initially prepared title documents under a misconception that the documents were legal (Tr. 365) and witnessed the car theft with approbation. She only gradually became a joint participant, in the sense that she knowingly aided and abetted the conspiracy. Two of the three statements offered under the joint participant exception concern disclosures by her husband which may have occurred before she joined in the crime: Hartung testified that Short explained how he made an extra set of keys during a test drive in order to steal the first car in 1985 (Tr. 322) and Short told her he kept unattached vehicle identification tags, with the title documents, in the house until he needed them. Tr. 358. Just as a marital communications privilege continues to protect pre-divorce disclosures by an ex-spouse, so might the privilege protect disclosures made before the spouse becomes a joint participant in the crime. See Byrd, 750 F.2d at 591 (the survival of the privilege after divorce assures spouses that their marital communications will never be disclosed).

We review a district court's admission of evidence for an abuse of discretion, United States v. Lofton, 957 F.2d 476, 477 (7th Cir.1992), and "[w]e will overturn a conviction on evidentiary grounds only if the erroneous ruling had a 'substantial influence over the jury.' " United States v. Saunders, 973 F.2d 1354, 1359 (7th Cir.1992) (citation omitted). In this case, most of Hartung's testimony was properly admitted under either the observation exception or the presence of third parties exception. Moreover, the government offered enough evidence that Hartung aided and abetted the commission of Short's crime to admit part of her...