U.S. v. Williams, 81-1211

• Decision Date: 20 August 1981
• Docket Number: No. 81-1211,81-1211
• Citation: 657 F.2d 199
• Parties: 8 Fed. R. Evid. Serv. 1391 UNITED STATES of America, Appellee, v. Thomas J. WILLIAMS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 199

657 F.2d 199

8 Fed. R. Evid. Serv. 1391

UNITED STATES of America, Appellee, v. Thomas J. WILLIAMS, Appellant.

No. 81-1211.

United States Court of Appeals Eighth Circuit.

Submitted June 19, 1981.

Decided Aug. 20, 1981.

Amanda M. Darr (argued), Roxanne Barton Conlin, U. S. Atty., Des Moines, Iowa, for appellee.

John R. Hearn, Garry M. Cox, Des Moines, Iowa, for appellant.

Before LAY, Chief Judge, and BRIGHT and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

Appellant Thomas J. Williams seeks to overturn his conviction for transportation and sale in interstate commerce of stolen goods, in violation of 18 U.S.C. §§ 2314, 2315, and conspiracy to commit these offenses in violation of 18 U.S.C. §§ 2, 371. Williams raises two alleged errors concerning the admission of evidence, challenges three jury instructions given by the district court ¹ and claims the evidence was insufficient to support the jury conviction.

I. FACTUAL BACKGROUND ²

Williams was convicted on all counts of an eleven-count indictment. In the first five counts the grand jury charged Williams with the knowing transportation of stolen soybean meal in interstate commerce on five different occasions in 1979. The next five counts charged the defendant with the sale of the same soybean meal. The eleventh count alleged that Williams was part of a conspiracy to transport and sell soybean meal in interstate commerce during the period 1975 to and including September 1979.

The government's key witness was Wayne Moorehead, an unindicted co-conspirator in this case. Moorehead, formerly an employee of Cargill, Inc., testified that he cooperated with the defendant to unlawfully procure soybean meal from the Cargill plant in Des Moines, Iowa. At the time of the thefts, Moorehead was the soybean meal loader at the Cargill storage facility. ³

The scheme devised by Moorehead and Williams was not a complicated one. Williams paid Moorehead in cash at Moorehead's home or at other pre-arranged places. Williams would then drive his truck to the Cargill plant late in the evening near the end of Moorehead's shift. This usually occurred on Mondays and Thursdays. Moorehead would signal to Williams when it was time to back under the spout at the Cargill plant and Moorehead would then simply load the defendant's truck with soybean meal. This was done without any authorization from Cargill and afterwards Moorehead would destroy the records of the loading.

At first, in 1974, the defendant asked Moorehead to put extra meal on his truck when he picked up an authorized load. Eventually, the defendant asked Moorehead to load his entire truck. The operation stopped for a brief period in 1976. Apparently, the defendant's truck was too long to be driven in Iowa. However, the conspiracy to steal the soybean meal was renewed in 1977, and continued until Moorehead's arrest in September 1979.

The government's evidence indicated that Williams would often sell the meal to the Central Nebraska Co-op Company in Gibbon, Nebraska. An employee of the co-op testified that he had a series of transactions with Williams starting in September 1977. The defendant would usually arrive on the morning of a Tuesday or Friday. He also stated that Williams never produced a bill of lading or a weigh ticket to document the source of the meal.

Each load was approximately 50,000 pounds of high protein soybean meal. Williams received varying amounts for delivering the meal, usually somewhere between $3,500 and $5,500. ⁴ Moorehead at first received $800 to $1,000 for his part of the scheme. Later, Moorehead demanded more money and eventually received $2,000 a load. Moorehead testified that he provided approximately 200 loads to Williams and another truck driver.

Moorehead's testimony was corroborated on a number of points. The government produced telephone records which supported Moorehead's claim that he received calls from Williams, at his home, to arrange the delivery of the meal. The records showed a number of calls from several different locations that were charged to the defendant's home phone and made to Moorehead's residence. Also, video tapes made by Cargill supported Moorehead's testimony on how the meal was stolen. These tapes were reviewed when Cargill management became suspicious about losing meal in September 1979. A review of the tapes demonstrated that on a number of Monday and Thursday nights of July, August and September one more truck was loaded than was reported by the meal loader. The person in charge of the meal loader on those nights was Wayne Moorehead. Further, the time of delivery and the size of the shipments that went to the co-op in Nebraska correlate to the thefts as described by the prosecution's chief witness.

Testimony by James Witt also supported the government's case. He testified that in 1974, he paid the defendant $1,000 in exchange for Moorehead's telephone number in Des Moines. Witt testified that he followed through on the information and picked up a load from Moorehead, apparently as part of the same type of scheme with which the defendant is convicted. Immediately after this testimony was given, the district court cautioned the jury that this evidence was not to be considered as evidence of guilt or innocence regarding the first ten counts of the indictment but that it was only to be used to show a purpose, motive, intent or plan with regard to those charges.

II. ANALYSIS

A. Witt's Testimony

The defendant challenges the admission of the Witt testimony. He seemingly concedes that the testimony was permissible under Rule 404(b), Fed.R.Evid., but claims that its "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Rule 403, Fed.R.Evid. See United States v. Headid, 565 F.2d 1029, 1031 n. 6 (8th Cir. 1977). The defendant primarily asserts that Witt's testimony to events in 1974 is too remote in time from the charges made in the indictment. While it is true that the first ten counts refer to incidents occurring in 1979, the conspiracy charge of count XI is alleged to have begun in late 1974. The defendant responds that Moorehead testified the conspiracy ended in 1976. However, the conspiracy did not end but was only temporarily suspended. The scheme was renewed the following year and continued until Moorehead's arrest in September 1979.

Thus, appellant's argument ignores the facts of this case. The district court carefully cautioned the jury immediately after the testimony was admitted, consistent with the terms of rule 404(b). Any conclusion that the probative value of the evidence was outweighed by prejudice is within the sound discretion of the trial court. It is clear that here there was no abuse of discretion. United States v. Adcock, 558 F.2d 397, 402 (8th Cir.), cert. denied, 434 U.S. 921, 98 S.Ct. 395, 54 L.Ed.2d 277 (1977). See United States v. Lowe, 569 F.2d 1113, 1116 (10th Cir.), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978).

B. Instructions

The first ten counts of the indictment charged violations of 18 U.S.C. §§ 2314, 2315. Both sections require that the property involved have a value of $5,000 or more. The defendant claims that the district court improperly instructed on this element of the crime. The questioned instruction, number 15, stated:

In Counts 1 through 10 the government must establish that the value of the property described therein exceeds $5,000. Value in either case means market value or cost price, whichever is greater. The value of the property is a question of fact to be determined by the jury.

The defendant asserts that this instruction misstates the proper standard. It is uniformly held that the statutory term "value" means market value. See United States v. Wigerman, 549 F.2d 1192, 1193 (8th Cir. 1977); Anderson v. United States, 406 F.2d 529, 534 (8th Cir. 1969). Williams asserts that instruction number 15 diminished the government's burden of proof by suggesting that the amounts paid for the soybean meal by the Central Nebraska Co-op were dispositive on the jurisdictional amount issue. He states that cost price is only a factor which should be considered when determining market value.

Williams' argument is not persuasive. The only evidence on this issue was the amounts paid by the Central Nebraska Co-op, all of which were over $5,000. See n.4 supra. The appellant does not point to any testimony which...