United States v. Downen

Decision Date22 May 1974
Docket NumberNo. 73-1974,73-1975.,73-1974
Citation496 F.2d 314
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Larry Eugene DOWNEN, and Keith Paul Smith, Defendants-Appellants.
CourtU.S. Court of Appeals — Tenth Circuit

COPYRIGHT MATERIAL OMITTED

Robert J. Roth, U. S. Atty., E. Edward Johnson, Richard L. Meyer, Asst. U. S. Attys., Topeka, Kan., for appellee.

Thomas C. McKee, Denver, Colo., for appellants.

Before HILL, BARRETT and DOYLE, Circuit Judges.

BARRETT, Circuit Judge.

Larry Eugene Downen and Keith Paul Smith appeal from sentences imposed following jury verdicts of guilty. Downen and Smith were indicted on charges involving transportation of stolen pickup trucks in interstate commerce, concealment and sale of stolen pickup trucks, and conspiracy to commit these offenses, in violation of 18 U.S.C.A. §§ 2, 371, 2312 and 2313. Downen was found guilty on all five counts with which he was charged, i. e., Counts 1, 5, 6, 8 and 9. Smith was found guilty on 8 of the 9 counts with which he was charged, i. e., Counts 1, 2, 3, 4, 5, 6, 8 and 9.

On appeal the appellants claim trial court error: (1) in denying their Motions for Judgment of Aquittal as to Counts 1, 5, 6 and 8, wherein they alleged lack of substantial evidence to support the verdicts of guilty; (2) in allowing a blackboard chart exhibit to remain before the jury during trial, and to be sent to the jury room during deliberations; and (3) in giving Instruction 30 which they allege to be inconsistent with their right to be proved guilty beyond a reasonable doubt.

The trial lasted eight days. Some thirty-eight witnesses testified. Approximately 51 exhibits were admitted in evidence. Counts 1, 5, 6 and 8 are the only counts resulting in convictions challenged on appeal. We shall endeavor to set forth a factual summary of each of the four counts involved in this appeal.

Count 1 involved a brown and white 1968 Chevrolet pickup truck stolen in Roeland Park, Kansas, in October, 1971, owned by a Mr. David Steinle. Its vehicle identification number (hereinafter referred to as VIN) was CE148J143119. Thereafter the vehicle was traded at Ft. Smith, Arkansas, by a man named Keith Paul Smith, whose name was on the title, to one Gary Goodwin, who testified that he knew both Downen and Smith. The vehicle, when traded, bore a different VIN. Ann Fox, formerly married to Downen, testified that she spoke with him before the Steinle vehicle had been stolen and that he stated that he and others wanted to send some mail to her house involving pickup truck and car titles. She also related observing the appellants using a cutting torch on the frame of a late model Ford truck in a garage in Kansas City, Kansas. Smith and Downen were observed by a Bob Williams working on a 1967 to 1969 Chevrolet pickup truck matching the description of the vehicle traded to Gary Goodwin.

Counts 5 and 6 involved charges of concealing and selling a 1970 Ford pickup truck which had been stolen in Joplin, Missouri, and driven to Overland Park, Kansas. It bore VIN F107KG55948. Joe Downing testified that a blue 1970 Ford one-half ton pickup truck owned by him had been stolen at Joplin, Missouri, in late March, 1972, and recovered at Overland Park, Kansas, about three weeks later. Downing's father testified in confirmation of his son's ownership of and the theft of the vehicle. Warsop, a used car dealer in Overland Park, Kansas, testified that a vehicle later identified as Downing's was brought to his place of business by one James Hilt who, throughout the record, is identified as an associate of the appellants in the various transactions. It was ascertained that the VIN plate on this vehicle had been tampered with, i. e., changed to F1OGKJ58951, and that the paint code and body style did not match. Other evidence disclosed that a 1970 Ford pickup truck owned by Mr. and Mrs. Burnfin had been wrecked, sold for salvage through a Missouri used car firm, and thereafter sold to Downen in early March, 1972. The VIN on this vehicle had been transferred to the vehicle brought to Overland Park by Hilt. Ann Fox testified that she had seen Smith driving a late model blue Ford pickup truck into a garage in Kansas City, Kansas, and that Smith had told her that he got the vehicle at Joplin, Missouri. She stated that she had observed cutting activity relating to the vehicle, and that she was thereafter asked to pose as Mr. Burnfin's girl friend in an effort to expedite the sale of the pickup truck. Some of the documents relating to the vehicle involved in the salvage transaction were identified as containing appellant Smith's handwriting.

Count 8 charged appellants with concealing and selling a 1968 Ford pickup truck which had been stolen from John L. Danuser in Fulton, Missouri, on February 17, 1972, bearing VIN F1OYKD33007. Danuser testified that he recovered the vehicle in Kansas City, Kansas, in May, 1972. Although the VIN had been welded over and the other VIN plate removed, he was able to identify the vehicle by reason of certain peculiarities. The vehicle then contained a door plate with a VIN F1OAKDO3261 and a title evidencing assignment to Downen. Roy Hilt, Sr., testified that Jim Hilt, who had been previously identified by Ann Fox as being involved in the illegal transactions of Downen and Smith, had brought the truck to Kansas City, Kansas, where he (Roy Hilt) traded some other vehicles to Jim Hilt for the 1968 pickup truck. There was evidence that when this vehicle was later examined, it was discovered that the true VIN plate had been burnt off of the frame. The false plate was easily removed from the left door. A Robert Guinn, employed by a St. Joseph, Missouri, salvage firm, testified that he sold a salvaged 1968 Ford pickup truck, bearing the exact VIN found on the left door, to Downen a year and a half or two years previously. He identified Downen in the courtroom.

I.

Appellants allege Trial Court error in denial of their Motions for Judgment of Acquittal as to Counts 1, 5, 6 and 8. They contend that there was not substantial evidence to support the verdicts of guilty. We disagree.

The appellants concede that in passing upon the sufficiency of the evidence to support a verdict of guilty, it is well established in this Circuit that the appellate court does not weigh conflicting evidence nor consider the credibility of the witnesses and, further, that it must view the evidence, both direct and circumstantial, in the light most favorable to the prosecution, together with all reasonable inferences that may be drawn therefrom. United States v. Addington, 471 F.2d 560 (10th Cir. 1973); United States v. Ireland, 456 F.2d 74 (10th Cir. 1972); United States v. Weiss, 431 F.2d 1402 (10th Cir. 1970). And in passing on a post-guilty Motion for Acquittal and/or for New Trial, the Trial Court must apply the same tests. Goff v. United States, 446 F.2d 623 (10th Cir. 1971); Lewis v. United States, 420 F.2d 1089 (10th Cir. 1970); Mason v. United States, 408 F.2d 903 (10th Cir. 1969), cert. denied 400 U.S. 993, 91 S.Ct. 462, 27 L.Ed.2d 441 (1971); Mares v. United States, 409 F. 2d 1083 (10th Cir. 1968), cert. denied 394 U.S. 963, 89 S.Ct. 1314, 22 L.Ed.2d 564 (1969).

We have held that a conviction based upon circumstantial evidence only, cannot be objected to on that ground alone. United States v. Brown, 446 F.2d 1119 (10th Cir. 1971); Myers v. United States, 415 F.2d 318 (10th Cir. 1969). Furthermore, we have held that one can be convicted on the uncorroborated testimony of an accomplice or an informer. United States v. Owens, 460 F.2d 268 (10th Cir. 1972); Johns v. United States, 227 F.2d 374 (10th Cir. 1955); Todd v. United States, 345 F.2d 299 (10th Cir. 1965).

Appellants urge us to apply the rule that, in circumstantial evidence cases, the inferences to be drawn from the evidence must not only be consistent with guilt, but inconsistent with every reasonable hypothesis of innocence, or at least the circumstantial evidence must do more than raise a mere suspicion of guilt, citing Davidson v. United States, 411 F.2d 75 (10th Cir. 1969). We observe that this is not exclusively a circumstantial evidence case, but even so, we have reviewed this record mindful of this language in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946):

Guilt . . . . remains individual and personal, even as respects conspiracies. * * * When many conspire, they invite mass trial . . . . Even so, the proceedings are exceptional to our tradition and call for use of every safeguard to individualize each defendant in relation to the mass.
328 U.S. at 772-773, 66 S.Ct. at 1252.

One of the burdens imposed on the government, in keeping with "the call for use of every safeguard", is proof that each defendant charged with conspiracy must have the criminal intent necessary to meet the requirements set forth in the substantive offense. Ingram v. United States, 360 U.S. 672, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959). The essence of the crime of conspiracy as defined in 18 U.S.C.A. § 371 is an agreement between two or more persons to commit an offense against the United States, supplemented with overt action by one or more of the conspirators to effectuate the agreement. Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942); United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). In accordance therewith, we have held that mere knowledge, approval or acquiescence in the object of the conspiracy, without an agreement to cooperate in achieving such object and purpose, does not make one a party to a conspiracy. Jones v. United States, 365 F.2d 87 (10th Cir. 1966).

It would serve no useful purpose to recite in detail the complicated intertwining evidence contained in the long record before us in order to justify the guilty verdicts found by the jury as the sole trier of fact. We hold that there is substantial evidence in the...

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