United States v. Bryant

Decision Date16 April 1974
Docket NumberNo. 73-2257.,73-2257.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Charles Daryll BRYANT and James Bob Impson, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

COPYRIGHT MATERIAL OMITTED

Melvyn Carson Bruder, Dallas, Tex., for defendants-appellants.

Roby Hadden, U.S. Atty., Dennis R. Lewis, Asst. U.S. Atty., Tyler, Tex., for plaintiff-appellee.

Before COLEMAN, AINSWORTH and GEE, Circuit Judges.

Rehearing and Rehearing En Banc Denied April 16, 1974.

AINSWORTH, Circuit Judge:

Bryant and Impson were jointly charged and tried on a three-count indictment for violations of 18 U.S.C. §§ 2312, 2313 and 2314, respectively, relative to transporting and receiving a vehicle — a front-end loader — in interstate commerce.1 Bryant was found guilty on Count 2, Impson on Counts 1 and 2, Count 3 having been dismissed by the Government against both defendants. Both defendants appeal.

On July 15, 1970, Road Machinery, Inc. purchased from Allis-Chalmers Manufacturing Company a front-end loader bearing the following identifying numbers: Model No. 645, Serial No. 24SO2984, Transmission No. 26624, Axle No. 3-70-0006. The vehicle was assembled at the Allis-Chalmers plant at Deerfield, Illinois, and shipped to Road Machinery, Inc. at Doraville, Georgia. On October 12, 1970, an Allis-Chalmers front-end loader, Model No. 645, was determined to be missing from the Road Machinery plant at Macon, Georgia. Fresh wheel tracks indicated that the vehicle had been driven from the front yard area where it had been previously placed. The local police were notified that the vehicle was missing. On May 12, 1971, an Allis-Chalmers front-end loader, bearing the same transmission and axle numbers as those on the vehicle sold to Road Machinery in July 1970 but with the serial number missing, was recovered in a rural area in the vicinity of McKinney, Texas, when a Texas highway patrolman stopped a large truck in which appellant Bryant was a passenger. The reason for stopping the truck was that it was pulling a trailer carrying an excessive and oversized load, an Allis-Chalmers front-end loader, and the trailer lacked the requisite motor vehicle inspection certificate. Just minutes prior to this incident the same highway patrolman had stopped appellant Impson who was driving a Lincoln Continental automobile. The front-end loader was later determined to be the same vehicle stolen from Georgia. Both appellants were subsequently arrested and charged.

At the trial Impson presented no testimony nor did he elect to testify. Bryant, however, testified and introduced testimony of several witnesses in an attempt to establish that he was unaware that the front-end loader had been stolen.

Appellants make numerous contentions on appeal, none of which warrants the granting of new trials or reversal of their convictions.2 We affirm.

The evidence was sufficient to prove identity of the stolen vehicle.

In order to sustain a conviction under the pertinent statutes the stolen vehicle and the vehicle found in possession of the accused must be identical. While there must be some evidence of common characteristics other than color, make and model of the vehicle, in order to establish proof, identity of the engine serial number is not required. United States v. Johnson, 5 Cir., 1969, 413 F.2d 1396; Watkins v. United States, 5 Cir., 1969, 409 F.2d 1382. The Government's evidence showed that in the place where the engine serial number plate would normally be affixed there were instead four holes and that the number plate is easily removable with a screwdriver or tin snips, as are the axle and transmission number plates. The axle serial number plate is affixed to the rear face of the main housing and is accessible only by crawling beneath the vehicle; the transmission serial number plate is similarly affixed to the lower outside face of the transmission. Although the serial number plates could conceivably be interchanged, this is not probable; it would result in damage to the light aluminum plates which are fastened by metal drive screws that tap themselves as they are driven in. A jury could reasonably have concluded that the less accessible, less obviously placed axle and transmission number plates were inadvertently overlooked by the person or persons who removed the engine serial plate. The make and model as well as the axle and transmission numbers of the recovered vehicle were identical to those of the stolen vehicle. Under the circumstances, we consider this ample proof of identity.

The evidence was sufficient to establish Bryant's guilt.

Appellant Bryant contends that the Government failed to prove his possession, either actual or constructive, of the stolen vehicle, a necessary element for conviction under 18 U.S.C. § 2313. We do not agree. Approximately six weeks prior to the arrest, appellants hauled the No. 645 front-end loader on a truck to the property of James Graham in the vicinity of Branch, Texas, for repairs to be performed by Graham. Bryant rode in the cab of the truck driven by Impson. When they arrived at their destination both Bryant and Impson attempted to unload the vehicle. However, it was necessary to secure additional assistance, and Bryant and Impson were left with the vehicle while Graham telephoned for wrecker service, which arrived about 45 minutes later. When the unloading was eventually accomplished, it was Bryant who paid the mechanic for his services, although Bryant testified that the money was furnished by Impson for that purpose. The loader was eventually repaired by Graham and plans were made to pick it up. On May 12, 1971, Impson in the company of Bryant rented a tractor-trailer and a driver from Karel Pekarek. An arrangement was made for the hired driver, Clifton Eugene Forrest, to follow Bryant and Impson to the vicinity of Branch, Texas, where they would load the vehicle on to the trailer and haul it to Sulphur Springs, Texas. With the assistance of Bryant, Forrest secured the loader to a trailer by the use of a chain and boom. Bryant and Forrest then proceeded toward Sulphur Springs, Texas, but were stopped and arrested when they reached the vicinity of McKinney, Texas. The district court in a very thorough and comprehensive charge properly instructed the jury on the types of possession cognizable under the law in the following language:

"The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly had direct physical control over a thing at a given time is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.
"The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint.
"You may find that the element of possession, as that term is used in these instructions, is present if you find beyond a reasonable doubt that the accused had actual or constructive possession, either alone or jointly with the others."

Viewing the record and inferences in the light most favorable to the Government we cannot say that the evidence was insufficient to convince a jury that Bryant was in possession of the front-end loader. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942). Mere possession, of course, unaccompanied by knowledge of the possessor that the vehicle is stolen, is insufficient to sustain a conviction under 18 U.S.C. § 2313, and the trial court so instructed. In order to show lack of such knowledge Bryant attempted to prove that he relied on Impson's representations that he was the lawful owner of the vehicle, and introduced for that purpose a bill of sale dated March 31, 1971 showing Impson as the purchaser and J. L. Williams and James L. Wilson, partners, doing business as Universal Constructors, as sellers. In rebuttal the Government offered evidence from various sources tending to show that the purported sale was a sham and a fraud and so obviously fictitious that Bryant could not reasonably have been deluded by it. The jury's verdict demonstrates that it did not accept Bryant's explanation of his participation in the handling of the vehicle and thus ascribed guilty knowledge to him.3

Evidence of an extraneous offense relating to a "backhoe" was properly admitted against Impson and Bryant.

The Government's evidence showed that on or about December 12, 1970, a backhoe, a heavy tractor, was stolen from the B & D Company at Dallas, Texas. In late December 1970 or early January 1971, appellant Impson telephoned James R. Graham and informed him that he had a backhoe which he was interested in selling. Graham contacted a friend, Johnny Broyles, who was desirous of purchasing a backhoe, and a meeting between Graham, Broyles and Impson was subsequently arranged by Graham to be held at a cafe in McKinney, Texas. Bryant was also present at the cafe during the meeting. All four men then rode out to where the backhoe was parked, about three miles from McKinney, Texas. Impson drove his car accompanied by Bryant. Impson then drove the truck-trailer on which the backhoe was loaded to Broyles' place of business where the four men again met. Negotiations for the sale were subsequently completed and Broyles purchased the equipment. In May 1971 the backhoe was identified by its rightful owner to be the one stolen from the B & D Company and it was subsequently seized in Denton County, Texas, by a deputy sheriff. Over objection of appellants the district court admitted the evidence pertaining to the backhoe for the limited purpose of showing...

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