U.S. v. Strauss

• Decision Date: 11 June 1982
• Docket Number: No. 81-5357,81-5357
• Citation: 678 F.2d 886
• Parties: 10 Fed. R. Evid. Serv. 1556 UNITED STATES of America, Plaintiff-Appellee, v. Robert J. STRAUSS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 886

678 F.2d 886

10 Fed. R. Evid. Serv. 1556

UNITED STATES of America, Plaintiff-Appellee, v. Robert J. STRAUSS, Defendant-Appellant.

No. 81-5357.

United States Court of Appeals Eleventh Circuit.

June 11, 1982.

Paul B. Johnson, Tampa, Fla., for defendant-appellant.

Manuel Menendez, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before FAY, JOHNSON and HENDERSON, Circuit Judges.

JOHNSON, Circuit Judge:

Robert J. Strauss appeals his criminal convictions for receiving in interstate commerce motor vehicles and a boat, knowing that the goods were stolen.

I. FACTS

Daniel Ott stole a boat and trailer in his home state of Ohio. ¹ He called his friend Lester King to say that he would like to bring the boat to Florida. King offered to let Ott store the boat on his property in Florida and told Ott that he could be contacted at the home of appellant Strauss, a Florida deputy sheriff whom Ott had not yet met. Ott altered the boat's identification numbers, using tools that King had given him. An associate, James Riggleman, Sr., towed the boat to Florida with a truck Ott had stolen and whose identification numbers Ott had also altered. Riggleman stopped to register the boat, trailer, and truck in Alabama while on his way south. Ott meanwhile flew to Florida, where he was picked up at an airport by Strauss' wife.

After spending several days using the boat with Strauss, King, and Strauss' friend Don Whitmer, Ott returned to Ohio. He gave Strauss permission to use the boat during his absence, although Strauss apparently never took advantage of that permission. Strauss initially stored the boat on his property. Later he, with King, moved the boat from place to place. Strauss also sought a buyer for the boat. At one point, thinking he had found one, he had Riggleman renew the boat's Alabama registration as preparation for a sale. ² Strauss admitted at trial that he used the truck when Ott was not present, an admission confirmed by FBI agents who saw the truck at Strauss' home on one day and observed Strauss and King using the truck when they moved the boat.

Ott's original alteration of the boat's identification numbers proved inadequate. By his next visit, Riggleman had altered them again. King showed Ott the numbers and complimented Riggleman for his fine workmanship. Strauss was present, overheard the remarks, and shook his head.

As Strauss' relationship with Ott blossomed, he told Ott that he would like to own a motor home but that he had little money and "didn't want to have any troubles with it." Ott and his associates obtained fraudulent documentation for a motor home, stole one, and altered its identification numbers. Ott then drove the home to Florida. He showed Strauss the home's options and specifications list, which stated that the home was worth $25,000, and said that Strauss could have it for $10,000. Strauss expressed concern about using the registration documents for obtaining a loan and title and for inspection. Ott assured him that the identification number had been changed and that there would be no difficulties. Although Strauss never actually bought the home, he did use it. He also paid Riggleman about $200 for the costs of registering the home in Florida under a pseudonym. Riggleman, at Strauss' request, gave as his address on the registration form apartments that Strauss owned. ³

Strauss next began to consider whether to develop a new business with the aid of Ott's unusual skills. He asked Ott about obtaining some construction equipment, which he would buy with money loaned by his friend Whitmer. Whitmer, according to an FBI agent, recalled having Strauss seek his opinion about going into the construction business with "hot" equipment. ⁴ Before the sale was completed, Ott was indicted on an unrelated stolen property charge. On Strauss' inquiry, Ott assured him that Florida and Strauss were not mentioned in the indictment and that the construction equipment deal could go through. Despite the assurance, the deal never actually was completed.

The FBI had come to suspect Strauss of illegal activities and kept his property, as well as King's, under surveillance. Agents eventually obtained a search warrant. On searching Strauss' home they found in his bedroom Florida tags, registration, and a sales tax receipt for the motor home; 1979 and 1980 Alabama registration papers for the boat; and a portion of a broadcast sheet for a Chevrolet truck. The motor home was seized at his residence. The truck, with the remaining portion of the broadcast sheet inside, and the boat were seized on King's property.

Strauss was convicted on three counts for violations of 18 U.S.C.A. §§ 2313 & 2315 in receiving in interstate commerce the motor home, the boat, and the truck, knowing that the items were stolen. He raises several issues on appeal.

II. THE TRIAL COURT'S STATEMENT ON THE ROLE OF THE GRAND JURY

Strauss' counsel at trial, ignoring a warning by the court, tried to indicate to the jury that the government, by the use of leading questions during grand jury proceedings, had tried to plant in Ott's mind suitable statements about Strauss' guilt. The court then explained to the jury the role of a grand jury. It stated that a grand jury hears testimony and returns an indictment if it finds probable cause that there has been a violation of the law, that it can hear testimony that a petit jury cannot, and that leading questions are permissible in grand jury proceedings. The court also noted that a person indicted has the right to a presumption of innocence and must be proved guilty beyond a reasonable doubt. During its instructions to the jury, the court repeated its explanation, leaving out the statements that a grand jury can hear testimony that a petit jury cannot and that leading questions are permissible. It also stated that an indictment "constitutes no evidence whatever", that it is not to be considered as evidence, and that the jury should construe no statement by the judge to suggest an appropriate verdict. ⁵ Strauss argues that the court's statements went beyond those necessary to correct any actions by his counsel, that they would lead a jury to believe that it could not find the facts since the grand jury had already done so, and that they were not a sufficiently detailed explanation of the workings of the grand jury.

This Circuit has not ruled on the propriety of explaining to the petit jury the role of the grand jury. Other circuits, however, have considered the matter. In United States v. Garcia, 562 F.2d 411, 416-17 (1977), the Seventh Circuit discussed whether a court, while explaining to the petit jury the role of an indictment, had prejudiced the defendant by its discussion of grand jury procedure. Though questioning the advisability of telling the petit jury that a grand jury could hear evidence that a petit jury could not, the court found the explanation legally correct. It held that giving the instruction was not error. The Seventh Circuit ruled similarly in an earlier case, Brandom v. United States, 431 F.2d 1391, 1397 (1970), cert. denied, 400 U.S. 1022, 91 S.Ct. 586, 27 L.Ed.2d 634 & 401 U.S. 942, 91 S.Ct. 950, 28 L.Ed.2d 223 (1971), in which it approved of a district court's explanation of the limited role of a grand jury and of an indictment as a means of correcting prosecutorial misstatements concerning grand juries and indictments. Finally, the Tenth Circuit has approved of a court's statement that the indictment was merely a charge and was not evidence, despite the complaint of appellants that the explanation would lead the petit jury to believe that the grand jury already had convicted them. United States v. Mackay, 491 F.2d 616, 622 (10th Cir. 1973), cert. denied, 416 U.S. 972, 94 S.Ct. 1996, 40 L.Ed.2d 560 & 419 U.S. 1047, 95 S.Ct. 619, 42 L.Ed.2d 640 (1974). We agree with our sister circuits that an explanation to a petit jury of the role of a grand jury need not be error. We also find no reversible error on the particular facts of this case. Strauss never contends that the information the court provided was incorrect. The court's explanation was not so exhaustive as it might have been, but it did provide a correct and, in the context of the court's instructions to the jury taken as a whole, fair and balanced description of grand jury procedures. The court also gave a more detailed explanation than was absolutely necessary to correct Strauss' counsel's actions, but the scope of the explanation of how a grand jury functions was not inappropriate in the context of a statement that leading questions are permissible under grand jury procedure. ⁶

We do, however, have reservations about two of the court's statements. We share with the court in Garcia a concern about telling a petit jury, as the court did in this case, that a grand jury can hear evidence inadmissible before a petit jury. We also believe that it would have been better if the trial court, when it initially told the jury that a grand jury will issue an indictment if it finds probable cause for a violation of the law, had stated that an indictment is not evidence. Through the course of evidentiary objections by counsel at trial, a jury probably will, of course, become aware that there exists potential evidence that it is not permitted to hear. And the jury must implicitly realize that someone must previously have found a reason to charge the defendant with a crime. Hearing, however, that another jury had heard certain evidence inadmissible before them, had found probable cause, and had issued an indictment, might lead petit jurors to include the potential existence of incriminating but inadmissible evidence and the earlier finding of probable cause as factors when deliberating on the guilt or innocence of a defendant. Nevertheless, in the circumstances of this case there was no reversible error. The court, as noted...