United States v. Harris

• Decision Date: 23 April 1954
• Docket Number: No. 10891.,10891.
• Citation: 211 F.2d 656
• Parties: UNITED STATES v. HARRIS.
• Court: U.S. Court of Appeals — Seventh Circuit

211 F.2d 656 (1954)

UNITED STATES v. HARRIS.

No. 10891.

United States Court of Appeals, Seventh Circuit.

April 1, 1954.

Rehearing Denied April 23, 1954.

Frank W. Oliver, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., Edward Calihan, Jr., Asst. U. S. Atty., Irwin N. Cohen, U. S. Atty., for appellee.

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

DUFFY, Circuit Judge.

Defendant Harris was charged in Count 1 of the indictment with transporting on November 25, 1952, from Kansas City, Missouri, to Chicago, Illinois, a stolen Chevrolet automobile, knowing the same to have been stolen in violation of § 2312, Title 18, U.S.Code. In Count 2, Harris and one Clifford Bauer were charged with transporting the same automobile on January 17, 1953, from Chicago, Illinois, to Indianapolis, Indiana, in violation of the same section of the code. Before trial defendant Harris moved for a severance, and also moved to require the government to elect the count on which it would proceed. These motions were denied.

At the trial, at the close of its case, the government moved to dismiss the charge against defendant Harris as to Count 2. This motion was granted. Motions for acquittal were made and denied, but there was no motion for severance, and the trial proceeded with Harris being charged only under Count 1 and Bauer being charged only under Count 2. Each defendant testified. The jury found Harris guilty as to Count 1 and Bauer as to Count 2. The motions of defendant Harris for a judgment of acquittal, for judgment notwithstanding the verdict, and for a new trial were denied, and judgment of conviction was entered. Defendant Harris appeals.

The Chevrolet automobile described in the indictment was owned by Mrs. Venita Mishler of Kansas City, Missouri, who testified that she parked the automobile in a parking lot in that city on the morning of November 25, 1952; that she gave no permission for anyone to use the car; and that she returned later that day and, upon discovering the car was missing, reported it as stolen to the Kansas City Police Department.

Joseph Young, the operator of the parking lot, testified that on November 25, 1952, he saw defendant Harris in the Mishler automobile at the parking lot; that he got within three feet of the automobile when Harris told him that it belonged to her sister and that she would return later in the day; that before he had a chance to say anything further defendant drove off; and that he did not give defendant permission to take the automobile. In the courtroom Young positively identified defendant Harris as the person who drove the Chevrolet automobile from the parking lot.

On January 25, 1953, the Chicago police received information from the F. B. I. that a stolen Chevrolet automobile with Missouri license plates was parked at a certain location in Chicago. After keeping the car under surveillance for several hours, the officers observed defendant Harris and co-defendant Bauer get into the Chevrolet at about 8:30 p. m. They then questioned defendant Harris, who first stated that the automobile was hers. After being asked for her driver's license and vehicle registration, defendant Harris stated that she had obtained the car from a friend in Kansas City, but refused to identify the friend.

The Chicago police officers placed Harris and Bauer under arrest, taking them first to the 38th District Police Station and, after waiting there for about 2½ hours for transportation, taking them to Chicago Police Headquarters at 11th and State Street, arriving there after 11:00 p. m. During the following morning while still in custody of the Chicago police, Harris and Bauer were each questioned by special agents of the F. B. I., at which time Harris gave the name of a man in Kansas City who, she claimed, owned the Chevrolet and had given her permission to use same. She was questioned again by the F. B. I. agents on January 27, and repeated the story that she had told them the day before. On the 27th Bauer's wife was brought to the station by F. B. I. agents and confronted Bauer. Shortly thereafter Bauer admitted that he knew the Chevrolet automobile had been stolen by Harris. On the morning of the 28th, at the request of F. B. I. agents, Bauer signed a statement covering the admissions made by him on the previous day. At about 10:30 a. m. on January 28, the Chicago police turned the custody of Harris and Bauer over to the F. B. I. and at about 2:00 p. m. they were arraigned before a United States Commissioner.

In connection with the testimony of Special Agent Hogan, and as part of the government's case, Bauer's statement, identified as Exhibit 7, was received into evidence over the objections of counsel for defendant Harris. In admitting Exhibit 7 into evidence, the court said: "It may be received subject to the limitations I imposed upon it; it may be received against the defendant Bauer, and is not admissible as against the defendant Harris, so just disregard it as to the defendant Harris." Included in the statement was, "I met Louise Harris around the early part of December. I knew her casually during the month of December. She had a 1951 Chevrolet, green in color, 1953 Missouri plates, in her possession at the time that I met her. She later told me she stole the 1951 Chevrolet in Missouri before she came to Chicago. * * * On January 18, 1953, I accompanied Louise Harris in the 1951 Chevrolet, green in color, 1953 Missouri license, to Indianapolis, where we stayed at the Harrison Hotel in Indianapolis, returning to Chicago on the 21st of January. * * * I had full knowledge that the car was stolen."

Before Exhibit 7 was offered in evidence, counsel for Harris moved the court to delete the words, "She later told me she stole the 1951 Chevrolet in Missouri before she came to Chicago." The court stated, "No, that will just be — the jury will be instructed that that is not admissible against her. * * *"

As part of the government's case, Billie Paustenbach testified that Mrs. Elaine Bauer in the presence of her husband, Clifford Bauer, said the green Chevrolet had been stolen by Mrs. Harris. Defendant Harris was not present at the conversation and the trial judge told the jury, "Ladies and gentlemen, that conversation is not admissible against the defendant Harris. It is admissible against defendant Bauer."

When defendant Harris made her motion for severance about two months before the trial she was then charged in each count of the indictment with the interstate transportation of a stolen 1951 Chevrolet automobile. In that posture, the denial of the motion was not an abuse of discretion. Rules 8¹ and 13,² Federal Rules of Criminal Procedure, 18 U.S.C.A., contemplate that a joint trial may be had under such circumstances. The authorities are in agreement that the trial court has wide discretion in the matter of granting separate trials for defendants jointly charged. Allen v. United States, 91 U.S. App.D.C. 197, 202 F.2d 329; Ross v. United States, 6 Cir., 197 F.2d 660; Cataneo v. United States, 4 Cir., 167 F.2d 820; United States v. Morabette, 7 Cir., 119 F.2d 986, 989. Refusal of a severance motion can only be a reversible error when there is a clear abuse of discretion. Dauer v. United States, 10 Cir., 189 F.2d 343; United States v. Antonelli Fireworks Co., 2 Cir., 155 F.2d 631; Hall v. United States, 83 U.S.App.D.C. 166, 168 F.2d 161, 4 A.L.R.2d 1193. The rule is similar where the trial court orders a consolidation of indictments for trial. United States v. Rosenblum, 7 Cir., 176 F.2d 321, 324; United States v. Hibbs, 7 Cir., 152 F.2d 269. Likewise, a motion to require the government to elect between counts is addressed to the discretion of the trial court. Randall v. United States, 5 Cir., 148 F.2d 234. In the case at bar there is no showing of a clear abuse of discretion.

Although the court's instructions to the jury are not a part of the record before us, we must assume that the court correctly instructed the jury that in the consideration of defendant Harris' guilt or...