U.S. v. Smith, 73-2158

• Decision Date: 17 October 1974
• Docket Number: No. 73-2158,73-2158
• Citation: 502 F.2d 1250
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl Hunter SMITH a/k/a 'Smitty', and Elmer Louis Posick, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1250

502 F.2d 1250

UNITED STATES of America, Plaintiff-Appellee, v. Carl Hunter SMITH a/k/a 'Smitty', and Elmer Louis Posick,

Defendants-Appellants.

No. 73-2158.

United States Court of Appeals, Fifth Circuit.

Oct. 17, 1974.

Richard M. Gale, Miami, Fla., for Smith.

Maynard A. Gross, S. Miami, Fla., for Posick.

Robert W. Rust, U.S. Atty., J. Daniel Ennis, Harold F. Keefe, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Before BROWN, Chief Judge, and WISDOM and MORGAN, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Appellants Carl Hunter Smith, a/k/a 'Smitty', and Elmer Louis Posick ¹ were jointly indicted and convicted on two counts of receiving, concealing, storing, bartering, and selling seven diesel engines, and conspiring to do so knowing the engines were stolen in violation of 18 U.S.C.A. 2315 and 371 ² On appeal Smith and Posick argue two grounds for reversal: (i) there was insufficient evidence to support their convictions, and (ii) the District Judge committed plain error in his charge to the jury.

As to both appellants we find, without considering any trial court error, that there was sufficient evidence to sustain their convictions on both counts. We also find that the Court's charge was indeed erroneous. The evidence against Appellant Amith, however, although substantial enough to support a guilty verdict standing alone, is not so overwhelming that a significantly erroneous jury charge could not have seriously prejudiced the verdict. We conclude therefore that this was plain error requiring reversal as to him. Although the evidence against Appellant Posick was very substantial so that there is not much likelihood that the instruction error induced the verdict of guilt, we find it unsatisfactory to condemn the charge, allow one to be retried because of it, while holding other to the verdict which impliedly responded to the Court's charge. We therefore reverse and remand as to each.

On November 25, 1972, several persons ³ furtively stole from the Ingersoll-Rand Company in Clarksville, West Virginia, eight new diesel engines having a total cost value to Ingersoll-Rand of approximately $38,000 or about $4,640 per engine. The theft was not discovered nor the police notified until two days later after a stock inventory had been taken. ⁴

The next event that took place occurred on November 28, 1972, three days after the theft, in Hallendale, Florida at the Terrace Paint & Body Shop. Appellant Smith, owner of the Shop, was asked by his friend and employee, Appellant Posick for a short-term loan of $8,500 with which to purchase some diesel engines. Posick stated that he already possessed $5,500 but that he needed the additional $8,500 to complete the transaction. Appellant Smith had on two other occasions loaned his friend Posick moderate sums of money for various reasons both personal and business and had always been repaid promptly. In addition, Appellant Smith was a man of some means operating a $300,000 a year business, and a loan of $8,500 to someone he knew and trusted was not excessive.

Approximately three weeks after the theft, a second conversation took place in Hallendale, Florida, between Kenneth Jones ⁵ and his employer, Leo Giuliano owner of a boat shop. Jones asked Giuliano if he would be interested in purchasing a diesel engine for a 32-foot boat Jones knew Giuliano was constructing or if Giuliano knew someone interested in buying seven diesel engines for a total purchase price of $19,500. Although the price was right, Giuliano had no use for the engines but suggested Jones contact a friend of his, Mr. Herbert Vandervan, a General Motors dealer in diesel engines. After being contacted and quoted the asking price, Mr. Vandervan was indeed interested and a meeting was arranged for the following day.

When Vandervan arrived at the meeting the following day, present were not only Jones and Giuliano but also Appellant Posick. When asked to see the engines, Smith and Appellant Posick took Mr. Vandervan to a storage yard for damaged cars and exhibited one of the engines being kept in a U-haul trailer. Vandervan asked for and received the engine's serial number in order to floor-plan the sale. Several days later, when attempting to arrange a buy-back agreement with General Motors, Vandervan was told that an engine bearing the serial number in question had been stolen. Vandervan was then contacted by FBI agents and told to say nothing concerning his knowledge of the stolen nature of the engine.

On December 20, 1972, FBI Special Agent Walton entered the fray posing as an acquaintance of Mr. Vandervan and a wealthy South American buyer of diesel engines. After being introduced to Jones and engaging in some preliminary negotiations, it was agreed that Jones would deliver seven of the diesel engines to Agent Walton that afternoon for a total price of $22,000. That afternoon, however, Agent Walton was informed by Jones through Giuliano that the deal was off because he was being followed by what he suspected were federal agents.

In an apparent attempt to obtain more information as to why the sale was cancelled, Giuliano attempted to telephone Appellant Posick at the Terrace Paint & Body Shop. Jones had previously given Giuliano the Shop's telephone number through which Giuliano was told he could reach Appellant Posick. Being unable to locate Appellant Posick by telephone, he then drove to the Shop in an effort to talk with him in person. Posick was not to be found. Giuliano did, however, find Appellant Smith who reiterated that Jones had been followed by several agents in telephone company vehicles and that the sale was cancelled. Appellant Smith also stated that he had a friend in the local police department who would trace license plate numbers for him which is how he knew federal agents using telephone company vehicles had been follwoing Jones.

The next morning after talking with Agent Walton (in his undercover capacity) who indicated he still wished to consummate the sale, Giuliano again telephoned the Terrace Paint & Body Shop. He told Appellant Smith that Agent Walton was still interested in the sale and Appellant Smith gave Giuliano a telephone number through which Agent Walton was to contact Appellant Smith for further negotiations. Appellant Smith also stated that the engines were his and he could do with them as he liked.

On December 22, 1972, Agent Walton dialed the telephone number given him by Giuliano and made contact with Appellant Smith. Smith told Agent Walton he was the owner of the engines, that Agent Walton should deal directly with him, and that he could furnish Agent Walton with the proper transfer papers. It was arranged that the transaction should be consummated on December 26.

On December 26, Agent Walton met Appellants Smith and Posick a the Terrace Paint & Body Shop and was told they would have to proceed to a separate location to view the engines. During their conversation, Agent Walton inquired of Appellants Smith and Posick if there was any area in the country where the engines should not be sold. Appellant Smith replied that they should not be sold 'up North'. Appellant Posick and Agent Walton then departed for the location of the engines in separate cars, Appellant Posick stopping to pick up Jones on the way. The stolen engines were located approximately eight miles from the Shop in a King Rental Truck that had been leased by Jones. The property where the truck had been parked was owned by a friend of Appellants Smith and Posick who had given Appellant Smith permission to use the lot for storing what Appellant Smith represented would be an empty pick-up truck. Soon after Appellant Posick, Jones, and Agent Walton arrived to inspect the engines, federal agents moved in and made their arrests. Found on Appellant Posick at the time of his arrest was a piece of paper upon which was written the name 'Slim, W. Va.'.

Sufficiency Of Evidence

The appellants first assert that there was insufficient evidence presented by the Government under the substantive count to prove that the appellants knew the engines were stolen, and, under the conspiracy count, to prove the appellants knew the engines had been stolen from interstate commerce.

In reviewing sufficiency of the evidence, we must, of course, examine the evidence, taking a view most favorable to the Government, Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353, 1355. Moreover, since much of the evidence presented supporting the guilty verdicts was circumstantial, the inferences reasonably to be drawn by the jury from such evidence must be consistent with guilt as well as inconsistent with every reasonable hypothesis of innocence. Montoya v. United States, 5 Cir., 1968,402 F.2d 847.

With these considerations in mind, we think that there was more than ample evidence to prove Appellant Posick had the requisite guilty knowledge as to the substantive count of the offense. In Appellant Posick's case, his claim of insufficiency of the evidence to prove such knowledge could be rejected simply on the basis of the long established rule that:

Possession of the fruits of crime, recently after its commission, justifies the inference that the possession is guilty possession, and, though only prima facie evidence of guilt, may be of controlling weight, unless explained by the circumstances or accounted for in some way consistent with innocence.

Wilson v. United States, 1896, 162 U.S. 613, 619, 16 S.Ct. 895, 898, 40 L.Ed. 1090, 1095; see Barnes v. United States, 1973, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380; United States v. Sellers, 5 Cir., 1973, 483 F.2d 37, petition for cert. filed, 417 U.S. 908, 94 S.Ct. 2604, 41 L.Ed.2d 212 (1973); United States v. Gordon, 5 Cir., 1970, 421 F.2d 1068, cert. denied, 1970, 398 U.S. 927, 90 S.Ct. 1816, 26 L.Ed.2d 89; Hale v. United States, 5 Cir., 1969, 410 F.2d 147, cert. denied, 1969, 396...