U.S. v. Wasson
| Decision Date | 06 March 1978 |
| Docket Number | No. 76-4503,76-4503 |
| Citation | 568 F.2d 1214 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Garnette WASSON and George Lee Littrell, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kenneth J. Mighell, U. S. Atty., R. H. Wallace, Jr., Ronald C. H. Eddins, Asst. U. S. Attys., Fort Worth, Tex., Shirley Baccus Lobel, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Northern District of Texas.
Before GOLDBERG, AINSWORTH and FAY, Circuit Judges.
George Lee Littrell and Garnette Wasson appeal their convictions for knowingly having in their possession Radio Shack electronic calculators valued at more than $100 that had been stolen while being transported in an interstate shipment. 18 U.S.C. § 659. Both appellants were sentenced to two years incarceration with the execution of their sentences suspended and were placed on probation for three years. In addition to the substantive counts, Littrell and Wasson were found guilty by the jury of conspiracy to possess the same Radio Shack calculators. 18 U.S.C. § 371. After the verdict was returned, the trial court granted both appellant's motions for judgment of acquittal on the conspiracy count. 1
Appellants raise numerous issues on appeal. Of particular importance was whether the trial court should have granted severances from their co-defendants and each other due to misjoinder or, in the alternative, prejudicial joinder. For the following reasons, we reverse the judgments of conviction and remand for separate new trials.
On August 15, 1975, General Instruments of Canada shipped twenty-four cases of electronic calculators from Ontario, Canada, to Radio Shack in Fort Worth, Texas. Each case contained twenty-four calculators. This was the first shipment of this type of calculators to Radio Shack, and each calculator was marked with a particular serial number. Although the exact serial numbers could not be determined, based on production records, an approximate range for the serial numbers was C-100000 to C-101265. Several calculators obtained from Wasson, Littrell and other defendants were identified by a representative from General Instruments as being part of the August 15th shipment.
Eastern Airlines' records from the Dallas-Fort Worth Regional Airport indicated that the 24 cases were received by Eastern in two separate shipments. Twenty-one cases were received by the airline on August 21, 1975, and were turned over to Regional Air Cargo that day at 2:00 P.M. Because this was not the complete shipment, Eastern prepared a "dummy" air bill to cover it. Eastern's records also reflect that they received the remaining three cases at the same airport and turned them over to Regional Air Cargo for delivery to Radio Shack at 6:30 A.M. the next morning. Signatures on both the "dummy" air bill and the original air bill indicated that all twenty-four cases were delivered to Regional Air Cargo by Eastern.
The terminal manager for Regional testified that Regional normally kept their own records of shipments from the various airlines but that upon searching for them was unable to locate the records for August 21st or 22nd of 1975. He indicated it was easy for the records to be lost, and, therefore, placed no particular significance on their loss.
The delivery of the calculators was made by Clarence Smith, an employee of Regional. He recalled that although both the "dummy" and the original air bill were signed by Radio Shack employees indicating receipt of all twenty-four cases, he did not remember making a delivery of the twenty-one cases to the Radio Shack warehouse but did remember delivering the three cases. Smith also indicated he knew one of the co-defendants, Joseph Weldon Kennedy, and had on occasion visited his place of business, Kennedy Sausage, in Weatherford, Texas.
The receiving clerk at the Radio Shack warehouse, Michael James, testified that his signature was on both air bills, again reflecting receipt of twenty-four cases of calculators on August 22, 1975. However, he also testified that he had no independent recollection of receiving them. On cross-examination by defense counsel, the witness admitted it would be possible for him to sign for portions of shipments not actually received. It was customary, however, when shipments were received at the Radio Shack warehouse that the employees, in addition to signing air bills indicating receipt, would also fill out a daily receiving summary and a daily receiving report both of which would indicate what was actually received through an actual count of the merchandise. This information was later transferred to another report called a "Keyrec" for the computer records. These records of the pertinent dates were introduced at trial, and they indicated Radio Shack received the three cases but not the twenty-one cases of calculators.
David Johnson, office manager of the Radio Shack warehouse, testified that on September 5, 1975, he personally conducted a physical search in the warehouse for the twenty-one cases but was not able to find them. He also indicated that due to security precautions taken by Radio Shack it was extremely unlikely that twenty-one cases of calculators could be removed from inside the warehouse. The cost to Radio Shack of the calculators was established at $25.80 each with a retail price of.$59.95 per calculator.
The government's next witness, Gary Reader, testified that he saw Radio Shack calculators of the type introduced at trial at Kennedy Sausage Company in Weatherford, Texas, in August or September, 1975. Reader also testified that he recognized the calculators as those from Radio Shack and subsequently telephoned Charles Tandy, President and Chairman of the Board of the Tandy Corporation which owns Radio Shack, to report what he saw. Tandy's testimony indicated he received a telephone call in September, 1975, which prompted him to contact his security chief with regards to the alleged missing calculators.
Jay Miller, Special Agent with the Federal Bureau of Investigation, learned that appellant Wasson carried Radio Shack calculators at her place of business, the Colonial Steak House, in Weatherford, Texas. Miller went to the Steak House in an undercover capacity on October 22, 1975. There, he observed Radio Shack calculators in a display case near the cash register priced at $19.95. Posing as a traveling salesman, Miller spoke with Wasson who told him the calculators were "a very good deal" because they normally sold for.$59.95. Miller asked Wasson where she got the calculator to which she replied that one had to know the right people. She also stated that she had already sold many calculators and she could get more. At the time of this first meeting Wasson sold Miller the two Radio Shack calculators she had in stock and provided Miller with the requested sales receipt showing a price of $19.95 plus $1.00 state sales tax per calculator. Miller also asked if he could purchase thirty more calculators for his boss to distribute as Christmas gifts. Wasson gave Miller her name and telephone number and told him to contact her the next day.
The next morning when Miller contacted Wasson, she told him she could probably have the calculators later that day. He called back later that day and Wasson informed him she only obtained four but could get twenty-six more within a few days. Miller went to the restaurant that day and purchased the four calculators for the same price and again obtained a sales receipt. Wasson also calculated for him the price of the additional twenty-six calculators and gave Miller her calculations. Miller asked if she would take a check but she indicated she would prefer cash.
On October 27, 1975, Miller called Wasson twice and both conversations were recorded and played for the jury at trial. The first, in pertinent part was as follows:
(TR. 507-509).
The second call, placed within an hour, proceeded, in pertinent part, as follows:
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