United States v. Ford, 14163.

• Decision Date: 21 November 1963
• Docket Number: No. 14163.,14163.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Willard FORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

324 F.2d 950 (1963)

UNITED STATES of America, Plaintiff-Appellee, v. Willard FORD, Defendant-Appellant.

No. 14163.

United States Court of Appeals Seventh Circuit.

November 21, 1963.

Robert H. Rice, E. St. Louis, Ill., for appellant.

Carl W. Feickert, U. S. Atty., Robert Quinn, E. St. Louis, Ill., for appellee.

Before SCHNACKENBERG, SWYGERT and MAJOR, Circuit Judges.

SWYGERT, Circuit Judge.

Defendant, Willard Ford, appeals from a judgment sentencing him to a term of imprisonment. He was convicted by a jury on an indictment charging him and two others, James J. Allison and Betty Drake, with conspiring¹ to violate the provisions of 18 United States Code § 2315, by unlawfully receiving, concealing, selling, bartering, or disposing of jewelry valued in excess of five thousand dollars moving as a part of interstate commerce from St. Louis, Missouri, to Collinsville, Illinois, knowing the same to have been stolen.

Defendant contends that the evidence was insufficient to support his conviction, and that the district court erred in instructing the jury, and in permitting a witness to state a narration by one of the conspirators of alleged past events concerning Ford. Consideration of these contentions requires a summarization of the facts.

On the evening of June 8, 1962, Donald Patterson burglarized the A & L Dunn Mercantile and Loan Company in St. Louis, taking a large quantity of jewelry consisting of over two hundred rings and watches of the value of $19,700. That same night he met Judith Heitman, a prostitute, who took him to the residence in Collinsville of James J. Allison, one of the alleged conspirators, and at whose home the girl lived when she was not working. Allison purchased all the jewelry for $400. The burglar had no further contact with Allison.

Judith Heitman testified that she was present at the Allison home on the evening of June 9, 1962, when Allison attempted to sell the jewelry to several people; that Ford was there and took approximately eighteen men's rings and some watches to have them appraised; and that Ford returned the jewelry but purchased a woman's wristwatch for $80.

Edward LeCompte, another member of the group at Allison's home that evening, testified that he saw Ford give Allison $80 but did not see him take any jewelry.

Latona Kouretas testified that Ford was at the Allison home on June 9; that Ford looked at the jewelry, particularly at a diamond watch, and talked to Allison about the price. She did not remember, however, whether they reached any agreement.

Thomas J. Baugh, a named but not-indicted co-conspirator, testified that he was at Allison's home that evening but did not recall seeing Ford there.

Government counsel asked Baugh whether Allison told him to whom he had sold the jewelry. The defendant objected. The trial judge ruled, "It may be received as to defendant Allison, alone, and not as to the other defendants." After the witness had answered a subsequent question by saying, "But he Allison did tell me he gave Mr. Ford a lot of jewelry to sell to a jeweler," Ford's counsel again requested the jury be admonished that this evidence should not be received as to the defendant. The trial judge responded, "Overruled." The witness continued, "Then he Allison said Mr. Ford couldn't sell it and brought it back to him and that Mr. Ford had bought two watches for his wife, Norma."

We are in doubt whether the trial judge meant to deny the request to repeat the admonition to the jury or lift the limitation of Baugh's narration of Allison's statement so as to make it applicable to the question of the guilt of Ford as well as that of Allison. Be that as it may, we are satisfied that it was error to admit Allison's statement to Baugh without such limitation since there was no showing that the statement was made during the course of the alleged conspiracy, Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892), or that it was made by Allison in Ford's presence, Sparf & Hansen v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895).

For these reasons, we disregard Baugh's narration of Allison's statement in our consideration of the evidence that may bear on Ford's involvement in the alleged conspiracy.

We are aware that it is for the jury, not the court, to determine the credibility of the witnesses and to weigh their testimony in light of all the evidence. This court will, however, look to see if there is substantial evidence to support the verdict.

Proof of a formal agreement between conspirators is...