United States v. Bucur, 10436.

• Decision Date: 18 March 1952
• Docket Number: No. 10436.,10436.
• Citation: 194 F.2d 297
• Parties: UNITED STATES v. BUCUR.
• Court: U.S. Court of Appeals — Seventh Circuit

194 F.2d 297 (1952)

UNITED STATES v. BUCUR.

No. 10436.

United States Court of Appeals Seventh Circuit.

January 15, 1952.

Rehearing Denied March 18, 1952.

COPYRIGHT MATERIAL OMITTED

Wm. S. Spangler, Fred M. Stults, Jr., Gary, Ind., for appellant.

James E. Keating, Asst. U. S. Atty., South Bend, Ind., Walter J. Keckich, Asst. U. S. Atty., Hammond, Ind., Gilmore S. Haynie, U. S. Atty., Fort Wayne, Ind., for appellee.

Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

Following a trial by jury defendant was adjudged guilty on four counts of an indictment, one of which charged him with conspiring with Minich and Honea to transport stolen motor vehicles in interstate commerce in violation of Section 371, Title 18 U.S.C., and the other three, with knowingly aiding and abetting in the sale of such vehicles so transported in violation of Section 2313, Title 18 U.S.C. Upon appeal, he asserts that the proof was insufficient to sustain the verdict and that the court erred in admitting and excluding evidence and in charging the jury.

By timely motion for acquittal, defendant challenged the sufficiency of the evidence. In our consideration of the issue thus raised, we have kept in mind the axioms that it is no part of our functions to weigh conflicting testimony, that the evidence must be viewed in the light most favorable to the government, and that, if one count of the indictment is good in law and has been sufficiently proved, if the sentences are concurrent and within the prescribed maximum set out in the statute, as here, the judgment must be sustained, Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, unless prejudicial error was committed at trial.

On or about September 1, 1949, Richard Minich, an employee of Barnett Motors, an automobile dealer in Savannah, Georgia, learning that a certain 1949 DeSoto sedan owned by Barnett bore motor number S-13-57194 and serial number 6225372, passed this information on to Herman Honea, now deceased, who thereupon obtained Georgia license plates for the car. Minich then drove the DeSoto to a location in Savannah, where Honea having received the keys from Minich, shortly thereafter took possession and drove it away. On or about September 1, 1949 Honea placed a long-distance telephone call to defendant in Gary, Indiana. He was heard to say that he and Minich had "gone through with the deal as planned" and that he would bring a 1949 DeSoto to Gary within a short time. On September 3, 1949 Honea and defendant sold the car to Dan Oram, in Gary, who gave Honea a check for $1200 but withheld $500, the balance due, until he could be provided with a certificate of title. Honea then returned to Savannah. About September 10, 1949 defendant called Minich, telling him that he and Honea should obtain the "papers" on the car and send them to Gary; that if they did not do so at once, the purchaser would think the car was "hot." Honea replied that Bucur should not worry, as the car "would not be missed for 15 to 30 days." Shortly thereafter a certificate of registration was sent to defendant, who delivered it to Oram and received from him the final $500 due on the purchase price.

On September 17, 1949 Minich, having ascertained that a 1947 Studebaker owned by Barnett bore motor number H205321, and serial number 4255574, handed the numbers to Honea, who proceeded to procure a Georgia registration certificate for the car. Minich then drove the car to a place in Savannah where Honea, having received the keys from Minich, picked it up. Shortly thereafter Honea took the car to Gary, where he and defendant sold it to one Christoff on September 20, 1949.

On or about October 19, 1949 defendant went to Savannah and there met Minich and Honea. The three discussed a plan whereby they would obtain another DeSoto sedan from Barnett's stock. It was proposed that defendant, using the name of "Dorman," place a $25 cash deposit with Barnett on the car, and, on the day following, tender a check for $2620, purportedly drawn by "Dorman," on a bank in Statesboro, Georgia. Defendant was told that this check would be spurious. Defendant then proceeded to Barnett's place of business and selected the DeSoto which had been discussed, placing a $25 cash deposit thereon. He then left Savannah and returned to Gary. The following day, one Phillips, otherwise unidentified in the record, tendered a check to Barnett in the sum of $2620, purportedly drawn by "Dorman," in payment of the balance due on the 1949 DeSoto, motor number S-13-72053. Honea then received the car and drove it to Gary, where, on or about October 23, 1949, while in the company of Bucur, he sold it to Christoff.¹

On or about November 19, 1949 Minich rented a 1948 Dodge sedan, motor number D24-526042, from Hood's U-Drive-It, an automobile rental agency in Savannah. He again noted the motor number and passed it on to Honea, who subsequently acquired a registration certificate for the car. Minich then gave the keys to Honea who picked the car up at a prearranged location and drove it to Gary, where he and defendant sold it to Christoff on November 21, 1949. Minich then returned the keys to Hood's and reported that the automobile had been stolen. While on a visit to Savannah in October 1949, defendant had talked to Minich about the possibility of his getting a U-Drive-It in the manner subsequently employed by Minich and Honea.

Defendant first contends that the evidence does not show that the cars were stolen. He relies on Hite v. United States, 10 Cir., 168 F.2d 973, taking the position that the opinion rightfully interprets "stolen" as meaning common law larceny and that, consequently, absent a trespass to possession, a conviction can not be sustained under the facts presented. However, there is no solace for defendant in the Hite case. There the defendant, by fraudulent misrepresentations, induced the owner to sell a car to him on credit; title passed. The court held merely that when title is intentionally parted with the article is not "stolen." See also, Ex parte Atkinson, D.C., 84 F.Supp. 300. Obviously, therefore, the Hite case is readily distinguishable from the instant proceeding. Here the owners, Barnett and Hood, did not part with their titles. At most, possession was in Minich as agent or bailee, with title and constructive possession remaining in the owners. Assuming, arguendo, that a trespass to possession is essential, when each of these conversions occurred, there was a trespass to the owner's constructive possession. Davilman v. United States, 6 Cir., 180 F. 2d 284; Stewart v. United States, 8 Cir., 151 F.2d 386.

Defendant next asserts that there was no evidence to sustain a finding that he had knowledge that the cars were stolen. Though knowledge is an essential element of the conspiracy as well as of the substantive crime of aiding and abetting, United States v. Gardner, 7 Cir., 171 F.2d 753, it may be inferred from circumstantial evidence. Kowalchuk v. United States, 6 Cir., 176 F.2d 873; McAdams v. United States, 8 Cir., 74 F.2d 37; Bruce v. United States, 8 Cir., 73 F.2d 972; United States v. Vigorito, 2 Cir., 67 F.2d 329; Drew v. United States, 2 Cir., 27 F.2d 715. We are of the opinion that the jury was justified in inferring knowledge on the part of defendant, in view of the following specific evidence: (1) that, following a telephone call to Minich in which defendant stated that additional papers were needed on the first 1949 DeSoto, or the purchaser would think the car was "hot," defendant continued his assistance in the sale by delivering the certificate of title and collecting the final payment on the sale price; (2) that, having been told that final payment on another DeSoto would be made with a spurious check, defendant proceeded to assist in acquisition of its possession by placing a $25 cash downpayment on it, employing a false name; (3) that he discussed the possibility of obtaining a Hood's U-Drive-It rental car in the manner subsequently employed by Minich, and (4) that, simultaneously with or shortly subsequent to these various acts and declarations, he continued to assist Honea in the sale of stolen vehicles which had been shipped in interstate commerce. Other corroborating circumstances appear in the record.

Finally, on the question of proof, defendant urges that there was no showing that he was a party to any conspiracy to transport stolen vehicles in interstate commerce. True, there is no proof of an express agreement among the three alleged coconspirators, but such evidence is not necessary. United States v. Gordon, 7 Cir., 138 F.2d 174. Conspiracy may be inferred from "evidence of relationships and conduct and other probative circumstances." Phelps v. United States, 8 Cir., 160 F.2d 858, 867, certiorari denied Peters v. U. S., 334 U.S. 860, 68 S.Ct. 1525, 92 L.Ed. 1780. Where the evidence shows a general plan or scheme, employed in a number of instances to bring about illegal results, upon a showing that two or more persons engaged in interrelated steps of the plan, an inference of conspiracy is justified. United States v. Gordon, supra. Here the evidence of a concerted scheme, in which Minich, Honea and Bucur each played essential, coordinated roles, was such that it required submission to the jury.

Defendant called as a witness one Bellanger, who, following general testimony as to the reputation of defendant, was asked what Bucur had told him about Honea after he, Bucur, had returned from Savannah. An objection was sustained upon the ground that the declarations were self-serving. Counsel then offered to prove that the witness would testify that Bucur, upon his return from Savannah, in October 1949, had warned the witness to have nothing to do with Honea as the latter was not procuring the cars he was selling in a proper manner. At a later point in the trial defendant took the stand in his own behalf. A question designed to bring out a...