U.S. v. Sroka, 80-1024

• Decision Date: 17 July 1980
• Docket Number: No. 80-1024,80-1024
• Citation: 621 F.2d 1012
• Parties: UNITED STATES, Appellee, v. Thomas R. SROKA, Defendant, Appellant. *
• Court: U.S. Court of Appeals — First Circuit

Page 1012

621 F.2d 1012

UNITED STATES, Appellee, v. Thomas R. SROKA, Defendant, Appellant. ^*

No. 80-1024.

United States Court of Appeals First Circuit.

Argued May 9, 1980.

Decided July 17, 1980.

Richard F. McCarthy, Boston, Mass. by appointment of the Court, with whom Willcox, Pirozzolo & McCarthy, Boston, Mass., was on brief, for defendant, appellant.

John W. Laymon, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL and BOWNES, Circuit Judges, and DAVIS, ^* Judge, U. S. Court of Claims.

LEVIN H. CAMPBELL, Circuit Judge.

Defendant Thomas R. Sroka appeals from his conviction on two counts of transporting and selling a stolen automobile in interstate commerce in violation of 18 U.S.C. §§ 2312, 2313. Defendant argues that the evidence was insufficient to support his conviction in that it was not shown beyond a reasonable doubt that the automobile he sold was stolen.

I.

Defendant was originally charged in eight counts with transporting and selling four different described automobiles in interstate commerce. At the close of the government's case, defendant moved for judgment of acquittal on the ground of insufficiency of the evidence. This motion was granted as to six of the counts. Counts four and five, ¹ relating to a 1972 Ford Maverick, Vehicle Identification No. 2X93F226464, were allowed to go to the jury, and defendant was found guilty on both counts. This appeal is from that conviction.

The government's case with regard to the 1972 Maverick rested on the testimony of five witnesses. Wilbur Patch, a used car dealer and resident of Connecticut, testified to the theft on April 6, 1978, of his 1972 Ford Maverick, "midnight blue, just recently painted, pinstripe," with a 302 engine, a gold grill and a black interior. Patch stated he had parked the car while visiting his daughter at the Lawrence Memorial Hospital in New London, Connecticut, and when he came out the vehicle was missing. He testified that he did not know the vehicle identification number and did not presently own the car, having sold it since to another person.

Philip Gross testified that he and two other men Victor Kiendra and Frederick Fraser met during the months of February, March and April of 1978 for the purpose of going out of the state of Rhode Island to steal cars "from Fall River and around New London, Connecticut." When asked if he had taken a car on April 6, 1978, "from the New London Mall," in New London, Connecticut, Gross acknowledged he had been "present when the car was took." He testified that the car was a "really dark, dark blue" 1972 Ford Maverick with two doors. He made no mention of a pinstripe, nor, understandably, did he testify to an ID number. After stealing the car, Gross said, he and the other two men took it on the very same night to defendant's garage in Rhode Island. Defendant was not present at the time. The men removed two radios from the car, and Kiendra, who had a key to the garage, opened the door so they could leave the car inside.

Over defendant's objections Gross also testified that when he and the other two men stole cars during the months of February, March and April, 1978, they took them to a bar in Rhode Island called the Valley Pub. There they were sometimes met by defendant, who would look at the cars and ask that they be left in the parking lot with the driver door unlocked and the keys in the ignition. Gross also testified that after these transactions, he would be given money by the other two men. Gross did not testify as to the content of any conversations between defendant and Kiendra or Fraser.

Daniel Fisher, a North Attleboro, Massachusetts, car dealer, testified that on April 8, 1978 he bought a 1972 Maverick from defendant. Fisher, who said he had bought cars from defendant on other occasions, described the Maverick as being dark blue and having gold pinstripes. Fisher's wife testified that she kept the books for Fisher's business. She produced a bill of sale for a 1972 Maverick, dark blue, with vehicle identification number 02X93F226464. This bill of sale, and a check payable to defendant for $1,225, were introduced into evidence. On redirect examination, Mrs. Fisher responded "Yes" when asked if the 1972 Maverick had some unusual feature on it, and described this feature as "hand painted pinstripes."

Finally, Detective Brian Coyle of the North Attleboro police testified that on May 7, 1978 he and two other officers went to Fisher's car lot where they observed approximately 12 cars, some of which Coyle believed to be stolen. Coyle interviewed the defendant in July 1978, at which time defendant admitted knowing the Fishers and having sold them several cars which he bought from a person by the name of Fraser.

II.

Defendant contends the district court erred in refusing to grant his motion for judgment of acquittal as to counts four and five because the government failed to establish that the 1972 Ford Maverick allegedly stolen in Connecticut was the same car as the one defendant had in his possession and sold to the Fishers two days later in Massachusetts. To prove a violation of 18 U.S.C. § 2312, which prohibits interstate transportation of stolen cars, the government had to show 1) that the vehicle was stolen; 2) that defendant transported the vehicle, or caused it to be transported, in interstate commerce; and 3) that defendant knew the vehicle was stolen when he transported it. United States v. Canessa, 534 F.2d 402, 403 (1st Cir. 1976). To prove a violation of section 2313, the government also had to establish that defendant sold, bartered, or disposed of the vehicle after it had moved, or while it was moving, in interstate commerce.

In the present case, the court instructed, and the government emphasized, that absent a satisfactory explanation, a person in possession in one state of property recently stolen in another may be held to have known that it was stolen, and also to have transported or caused it to be transported in interstate commerce. See Canessa, supra, 534 F.2d at 403. Defendant concedes the propriety of this inference in a proper case, but points out that it can apply only if the prosecution proves that the vehicle found in defendant's possession was stolen. Here, defendant argues, the government's evidence fell short of establishing that the 1972 Maverick, ID No. 2X93F226464, sold to the Fishers by defendant on April 8, 1978, was the same 1972 Maverick stolen from Wilbur Patch on April 6, 1978, at the time Patch was visiting his daughter in the Lawrence Memorial Hospital in New London.

In Cox v. United States, 96 F.2d 41, 42 (8th Cir. 1938), the Eighth Circuit stated:

"Proof that an automobile of a well-known and widely distributed type and model is stolen in one state on Saturday and that a similar car is sold and delivered in an adjoining state on the following day is not sufficient evidence upon which to base a finding that the automobile stolen was the automobile sold . . . ."

While courts have not required the car sold and the car stolen to be identified by serial number in every case, see Welch v. United States, 360 F.2d 164, 165 (10th Cir. 1966), it is well settled that merely showing that a car of a standard make, model, color and year was stolen from one place and a similar car was found in defendant's possession in another place does not suffice to show that the two were one. E. g., United States v. Brazeal, 464 F.2d 1, 2 (10th Cir. 1972); United States v. Turner, 421 F.2d 252, 253 (10th Cir. 1970); Thompson v. United States, 334 F.2d 207, 208-09 (5th Cir. 1964). To surmount this hurdle, courts have generally required some "common identifying characteristics," Watkins v. United States, 409 F.2d 1382, 1384 (5th Cir.), cert. denied, 396 U.S. 921, 90...