U.S. v. Ward, 76-2418
| Decision Date | 13 May 1977 |
| Docket Number | No. 76-2418,76-2418 |
| Citation | 552 F.2d 1080 |
| Parties | 1 Fed. R. Evid. Serv. 1017 UNITED STATES of America, Plaintiff-Appellee, v. Wiley Rufus WARD et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard Smoak, Panama City, Fla. (Court-appointed), for W. Ward.
Richard Wayne Grant, Marianna, Fla. (Court-appointed), for A. Ward.
James C. Husbands, Lynn Haven, Fla. (Court-appointed), for L. Ward.
Scott R. Nabors, Panama City, Fla., for Al Lamar Ward and Colon Ward.
W. Fred Turner, Lynn Haven, Fla., for defendants-appellants.
Nicholas P. Geeker, U. S. Atty., Emory O. Williams, Jr., Asst. U. S. Atty., Pensacola, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Northern District of Florida.
Before JONES, COLEMAN and TJOFLAT, Circuit Judges.
The appellants, all members of the same family, 1 were charged in a multi-count indictment with receiving freight and vehicles stolen from interstate commerce and with conspiring to commit those offenses. 2 They were convicted on several counts. In this appeal, they question the sufficiency of the evidence, the trial court's treatment of certain hearsay evidence, and the propriety of some comments made by the prosecutor in closing argument.
Viewed in the light most favorable to the verdict, 3 the evidence adduced at trial disclosed that the appellants were engaged in receiving, leasing and selling trucks, tractors, bulldozers and other heavy equipment stolen from interstate commerce. While appellants argue that the evidence failed to show they actually possessed these vehicles or knew they were stolen, the evidence refutes these contentions. Numerous vehicles were shown to have been hidden on or near property owned or leased by the Wards in rural Washington County, located in the Florida Panhandle. In an adjacent wooded area was a building equipped with a paint sprayer, sanders and other equipment which one might use in repainting vehicles and changing serial numbers. In fact, many of the vehicles found on Ward properties had altered serial numbers, and the license plates had been changed. On one occasion Colon and Wiley Ward had even been observed changing the license plates on a stolen vehicle. On another occasion, Luke, Al Lamar and Colon Ward were involved in guarding the family camp situated on Colon Ward's property, and they actually ran off a state investigator who had their activities under surveillance. Finally, it was shown that some of the vehicles had been sold at prices substantially below the market. In light of all this evidence, and having carefully reviewed the proof applicable to each count, we find that as to each appellant the evidence was more than sufficient to support a conviction.
The first four counts of the indictment involved three Massey Ferguson tractors which were allegedly stolen from a shipment of five tractors bound from the manufacturer in Detroit, Michigan, to buyers in Missouri and Arkansas. To prove that these vehicles were stolen while in interstate transit the Government relied on three witnesses. The first was the manufacturer's distribution coordinator who identified the tractors as part of a shipment sent on October 9, 1974, to buyers in Missouri and Arkansas via Diamond Transportation Company. This witness was followed by the Vice President of Diamond Transportation Company, who acknowledged his company's receipt of the tractors on October 9 and stated that they had been dispatched by a truck driven by one John Hardy on October 11, 1974. The company records indicated that the shipment was lost in route and was never delivered to the buyers. The third witness was Agent Carr of the Federal Bureau of Investigation, who was called to relate the contents of an interview he had had with the driver, Hardy, on October 15, 1974, in Cordova, Alabama. At the time of trial Hardy was a fugitive and consequently unavailable as a witness. 4 Over appellants' hearsay objection, Agent Carr testified that, in Hardy's words, the truck with the Massey Ferguson tractors had been stolen on the night of October 14 from a truck stop in Muscle Shoals, Alabama. Hardy had stopped there for the night while en route to the shipment's destination. He had planned to spend that weekend in Cordova with his new wife and had received his employer's permission to do so. Hardy also told the agent that he had reported the theft to the manager of the truck stop, the highway patrol and his employer.
The trial court admitted the agent's testimony on the theory that it fell within the exception to the hearsay rule created by Rule 804(b)(5) of the Federal Rules of Evidence. 5 Appellants claim that the exception is inapplicable in this case, however, because the hearsay statement does not meet Rule 804(b)(5)'s threshold requirement of "having equivalent circumstantial guarantees of trustworthiness." 6 They submit that the statement was inherently unreliable because it was self-serving, for Hardy had to explain the disappearance of the truck in a manner which would not implicate him in any wrongdoing.
To be sure, Hardy may have considered it expedient to conjure up a story consistent with innocence. But we cannot ignore the fact that his statement is strongly corroborated by a number of factors which, we are convinced, supply "equivalent circumstantial guarantees of trustworthiness." Foremost among the corroborating factors is the testimony of the first two witnesses which clearly established that the tractors in question were dispatched by truck from Detroit to buyers in Missouri and Arkansas and shortly thereafter disappeared. This proof alone may be sufficient to show that the property was stolen. See, e. g., Nakutin v. United States, 8 F.2d 491 (7th Cir. 1925), cert. denied, 269 U.S. 585, 46 S.Ct. 201, 70 L.Ed. 425 (1926). The unexplained reappearance of these tractors several months later in the Florida Panhandle strengthens this inference. The reliability of Hardy's statement was reinforced further by the investigation Agent Carr conducted following the interview. He found that all the details of Hardy's statement, including the places he said he had been while en route, checked out, and nothing was uncovered to refute his version of the events. In sum, whatever measure of untrustworthiness we might give a self-serving statement in determining its admissibility under Rule 804(b)(5), we conclude that under the circumstances of this case a sufficient demonstration of trustworthiness was made to satisfy the rule's threshold requirement.
In his summation the prosecutor made the following statement:
. . . I further anticipate that the Court will charge you that a person who had...
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