U.S. v. Taylor
| Decision Date | 19 February 1980 |
| Docket Number | No. 78-2024,78-2024 |
| Citation | 612 F.2d 1272 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Frank D. TAYLOR, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John Oliver Martin, Asst. U. S. Atty., Kansas City, Kan. (James P. Buchele, U. S. Atty., Topeka, Kan., on brief), for plaintiff-appellee.
William F. Dunn, Pratt, Kan., for defendant-appellant.
Before HOLLOWAY, BARRETT and DOYLE, Circuit Judges.
The question in this case in which the defendant was convicted of violation of the Dyer Act is whether the evidence is sufficient to sustain a conviction of aiding, abetting, counseling, etc. the commission of an offense against the United States. The substantive charge on which a conviction was obtained is Count II, which alleged that on or about February 17, 1978, in the District of Kansas, Dorsey J. Taylor and Frank D. Taylor did unlawfully receive, conceal, sell and dispose of a motor vehicle, to-wit: a 1978 Ford Van, Vehicle Identification Number E15HHAH1046, which was moving as, was a part of, and which constituted interstate commerce, knowing the same to have been stolen, in violation of 18 U.S.C. § 2313.
The facts are somewhat unusual in that they disclose a so-called "sting" operation, an undercover police fencing operation. This is shown to have been a joint activity of the federal government through the FBI and the local police.
The date of the occurrence in question was February 17, 1978. The place was a garage in Overland Park, Kansas, which had been modified as a front for the purchase of stolen goods by the FBI and the local police. On that day the defendant, his brother, Dorsey Taylor, and two other men arrived at the headquarters of the "sting" operation for the purpose of selling a virtually new, recently stolen van, and were also there to sell two fur coats.
The garage had a counter. After the defendant, his brother and the other two men had arrived, they signaled from the outside and were admitted with the car. They then stood outside the vehicle at the counter talking to Officer Lequire. The defendant's brother, Dorsey Taylor, conducted the negotiations. He first demanded $1,000 for the vehicle which was a relatively new one.
The evidence established that on the night of February 17, 1978, the Ford van in question had been stolen from Joe Machens Ford at Columbia, Missouri. The evidence was that the vehicle was last seen at 9:00 p. m. on February 17. It had been left outside of the building with the keys in it.
Officer Falk testified that he was the property officer for the "sting" operation. His duty was to take property purchased in the operation into the property storage area, catalog it, give it a number and transfer it for later use. He identified the vehicle in question as such an item through the photographs which he had made. He was able to state what the identification number was. The officer further explained that some of the vehicles that they purchased were returned to the street so that they could be recovered by a local officer, and some were stored at a site at Fort Leavenworth.
Officer Lequire, a police officer in Overland Park, Kansas, who was assigned to the intelligence unit, testified that at the time in question he was assigned to the antifencing storefront operation. He worked as a counterman inside the building, and he and the other countermen posed as buyers of stolen property or fences. Lequire said that he was familiar with defendant Frank D. Taylor; that he had seen him before; that on February 17, 1978, Taylor arrived with several other people in a van which had been reported stolen. He said that the other members of the party were Dorsey Taylor, who was known as "Sugar," Raymond Ladd and Jimmy Coleman. Lequire said that Taylor was known as "Coke." When the people came in on the 17th, according to the witness, they approached the counter and started negotiating a price for the vehicle. The amount of $400.00 was paid for the van and $100.00 was paid for two fur coats. The $100.00 was given to Jimmy Coleman. After this the officers transported "Coke" and "Sugar" back to Kansas City, Missouri. Coleman and Ladd were transported by two FBI agents.
The witness said that Dorsey and Frank stood at the counter. "Sugar" opened up the negotiations. He said that Taylor wanted $500.00 for the van and finally agreed to take $400.00, which was eventually paid to him. Officer Lequire asked how many miles the van had on it and Frank said "700." Actually it had 900 miles. The $400.00 was then paid over to Dorsey Taylor.
The chief witness for the prosecution was Mr. Lee Roll, an FBI agent who had been assigned to the antifencing operation in Overland Park. He talked to Dorsey Taylor for the most part, but the defendant, Frank Taylor, stood on Dorsey's left side and furnished the information concerning the mileage. Roll also said that there were video cameras monitoring everybody present and what was being said and done. The garage door was electronically operated. Exhibit 2 was examined by him, and he gave testimony that that was the exact vehicle that was presented for sale. Dorsey stood on the right side and Frank, the defendant, on the left. Mr. Roll said that one of the first things that he asked Dorsey Taylor was how much he wanted for the van, and he said that he wanted $1,000.00. After some negotiating, Dorsey agreed to accept $400.00.
When it came to the coats, however, Frank Taylor and Raymond Ladd went to the van, opened a sliding side door and removed a clothing carrier which contained two fur coats. These were brought to the counter and the officer took them. Frank Taylor demanded $600.00 for them. He was told that they were not worth it. Later, however, he cut the amount down to $300.00 and finally accepted $100.00. The $100.00 was paid to Jimmy Coleman for the coats, but, according to Agent Roll, Frank Taylor said that they were actually his coats, and he said that "This is my family." He referred to Mr. Coleman as "my brother." Roll said "You keep everything in the family," and the defendant answered "In fact Raymond Ladd is my brother-in-law." Roll then said he did not call him that. He said "This is my brother-in-law." Roll then said "This is family business," and he said "Yes, family business."
The events that occurred on February 17 were recorded on a videotape contained in Exhibit 3 and described as incidents 131, 132 and 133, recorder no. 49. This videotape was viewed by the jury. It was at that point that the court gave the cautionary instruction regarding the other offenses, that is the sale of the coats, saying that it was received for a limited purpose and describing it. The court instructed the jury that it was impermissible and presumably inconsistent for them to find the defendant guilty on both counts. Based on such an instruction, the guilty verdict was on the second count only.
There was one other similar transaction and that was also described by Agent Lee Roll, Jr. This occurred on February 8. Video copies were made of that incident too. These are exhibits 4 and 5, VTR nos. 47 and 48. The particular incident was described as no. 128. The tapes were received, but were not exhibited to the jury. The government stood on its evidence that the defendant was present at the February 8 sale. Mr. Roll was able to say positively that Frank was present at the February 8 transaction.
It is to be noted that a similar offense, restricting instruction, was included in the court's charge. The jury was told that it was received for a limited purpose to show guilty knowledge, intent, plan, scheme or course of conduct, if any, of the defendant with respect to the offenses charged. The jury was told that such evidence was not to be considered by the jury as proof that the defendant was guilty of the offense charged, but only for the limited purpose stated.
The arguments and contentions of counsel are:
First, that the court erroneously denied defendant's motion for a judgment of acquittal made at the close of the government's evidence and renewed at the close of all of the evidence.
Second, the court erroneously admitted videotape exhibits nos. 4 and 5 pertaining to the February 8 transaction which involved the present defendant.
I.
WHAT THE CASES HOLD ON THE LEGAL ISSUE, THAT IS, THE EXTENT
WAS AN AIDER AND ABETTOR AND NOT A
To be guilty of aiding and abetting, the defendant must be found to have willfully associated himself in some positive way with the criminal venture by showing that he has joined the...
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