United States v. Hearn, 73-1603

• Decision Date: 07 May 1974
• Docket Number: No. 73-1603,73-1604.,73-1603
• Citation: 496 F.2d 236
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lendale HEARN and Murray Taylor, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

496 F.2d 236 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Lendale HEARN and Murray Taylor, Defendants-Appellants.

Nos. 73-1603, 73-1604.

United States Court of Appeals, Sixth Circuit.

Argued December 4, 1973.

Decided May 7, 1974.

Edward Witt Chandler, McKenzie, Tenn. (Court Appointed), for Lendale Hearn.

Allen J. Strawbridge, Jr., Martin, Tenn., for Murray Taylor.

Glen Reid, Jr., Asst. U. S. Atty., for plaintiff-appellee; Thomas F. Turley, Jr., U. S. Atty., Memphis, Tenn., on brief.

Before CELEBREZZE, Circuit Judge, McALLISTER, Senior Circuit Judge, and WILSON, District Judge.^*

FRANK W. WILSON, District Judge.

Lendale Hearn and Murray Taylor were convicted of having engaged in a criminal conspiracy to receive and conceal stolen goods moving in interstate commerce in violation of 18 U.S.C. § 371. In addition, Taylor was convicted of the substantive offense of receiving and concealing stolen goods moving in interstate commerce in violation of 18 U.S.C. § 2315. Hearn received a three year sentence, with all but six months having been suspended, and with 30 months probation to follow. Taylor received two concurrent sentences of a year and a day, together with a fine of $500.00 upon each of the two counts upon which he was convicted. The principal contentions of error made by each appellant in these appeals, which have been consolidated for hearing, center around the admissibility of evidence obtained in the course of certain searches and seizures and the sufficiency of the evidence to warrant their respective convictions.

The record upon these appeals reflects that the appellants were indicted jointly with two other individuals, L. J. Griffin and Dewey Berryhill, in a four-count indictment. The first count charged all four defendants with having engaged in a conspiracy to transport, receive and conceal stolen property and stolen motor vehicles moving in interstate commerce. The second and third counts charged the co-defendant Griffin with the substantive offense of receiving and concealing stolen property moving in interstate commerce. The fourth count charged the appellant Taylor with the substantive offense of receiving and concealing stolen property moving in interstate commerce. Upon the trial of the case the jury found Hearn, Taylor and Griffin guilty upon the conspiracy count but acquitted the co-defendant Berryhill on that count. In addition, Griffin was found guilty upon the second and third counts and Taylor was found guilty upon the fourth count. No appeal was taken by the co-defendant Griffin in regard to his convictions.

The appellants, Hearn and Taylor, contend, among other matters, that the evidence was insufficient to support their respective convictions. The settled rule, in this regard, is that in reviewing the sufficiency of the evidence to support a conviction this Court ". . . cannot weigh the evidence but we must take the view of it, and the inferences reasonably and justifiably to be drawn from it, most favorable to the Government and determine therefrom whether a verdict against the appellant might have been lawfully rendered . . ." United States v. Wolfenbarger, 426 F.2d 992 (6th Cir. 1970).

When all reasonable inferences are accorded and the evidence is viewed in the light most favorable to the Government, the jury could have found the following facts, having reference to the charges in the first count of the indictment, to have been established beyond a reasonable doubt. Sometime during the evening of Sunday, October 3, 1971, a Model #2200 Massey-Ferguson tractor, having a front end loader on one end and a backhoe on the other and having a value of $5,500.00 (which equipment will hereinafter be referred to simply as a backhoe), was stolen from the premises of its owner, the McBride Construction Company, in Paris, Tennessee. The backhoe, which was painted yellow and had certain distinctive features, including plastic sleeves placed over the hydraulic lines by the owner to afford additional protection to those lines, was loaded at the time of the theft upon a yellow 3-axle metal trailer, which in turn was hitched to a yellow truck. All three pieces of equipment were stolen upon the occasion of October 3, 1971.

Sometime during the first part of October, 1971, the defendant Hearn, accompanied by the co-defendant Berryhill, was observed driving a truck and trailer loaded with a backhoe, all of the equipment being of the same description as the stolen equipment, in Weakley County, Tennessee, which adjoins Henry County where Paris, Tennessee is located. Upon this occasion the defendant Hearn was observed making a delivery of the backhoe to the co-defendant Griffin at his farm in Weakley County, Tennessee. Hearn and Griffin conversed for some 30 minutes at the time of this delivery and then Hearn left, driving the truck and trailer, but leaving the backhoe with Griffin. About a week after the theft occurred, the truck and trailer were discovered abandoned along the highway in Weakley County, Tennessee, and were returned to their owner.

The defendant Taylor also lived on a farm in Weakley County, Tennessee, his farm being some three miles from the farm of the defendant Griffin. During the months of October and November 1971, Taylor was observed to have on his farm a backhoe of the same make, model and description, and having the same distinctive features as the stolen backhoe. He told an acquaintance that he had obtained the backhoe from a certain individual. Upon the trial that individual denied the statement. During the time that Taylor had the backhoe he allowed a neighbor to use it. Several persons who observed the backhoe on this occasion testified that it was the same piece of equipment as the backhoe that they inspected at the McBride Construction Company when the stolen backhoe was recovered. When Taylor retrieved the backhoe from his neighbor, he stated that he had to deliver it to someone else. In February of 1972, after the stolen backhoe had been recovered, Taylor was interviewed by the F.B.I. and denied that he had ever had a backhoe in his possession or on his farm.

In late December 1971, the defendant Griffin delivered the backhoe to an equipment dealer in Marion, Arkansas, with instructions that he rent it or sell it for him. On this occassion, Griffin, quoted such a low price on the equipment that the dealer asked if it were "hot," to which Griffin replied, "It may be a little warm." In another conversation Griffin advised the dealer that he would get rid of the backhoe "if I have to run it off in the river."

On January 8, 1972, Griffin picked up the backhoe in Marion, Arkansas, and transported it back to his farm in Weakley County, Tennessee. On January 14, 1972, the backhoe was found in a tool shed on Griffin's farm by local law enforcement officers in the course of a search of the premises.

In addition to the foregoing evidence regarding the backhoe, evidence was introduced in regard to a motorcycle referred to in one of the overt acts alleged in the conspiracy count. That evidence reflected that a Honda motorcycle, bearing a certain identification number, was stolen in LaFayette, Louisiana, on a date believed by the owner to have been in about October of 1971. The defendant Hearn was shown to have returned from the vicinity of LaFayette, Louisiana, to Weakley County, Tennessee, in an enclosed truck during the latter part of September of 1971. In December of 1971 Griffin traded the Honda for another piece of equipment at a motorcycle shop in Union City, Tennessee.

The fourth count of the indictment charged the appellant Taylor with the substantive offense of receiving and concealing a stolen traxcavator moving in interstate commerce. When the evidence in regard to this count is viewed in a light most favorable to the Government, the jury could find the following facts to have been established beyond a reasonable doubt. Upon March 17, 1971, a new Caterpillar traxcavator, Model No. 955K, bearing a certain identification number and having a value of $31,000 was stolen from the S & W Construction Company in Memphis, Tennessee. Upon October 15, 1971, the traxcavator was recovered by the police in Gary, Indiana. Two days later the traxcavator was again stolen, this time from the lot where the police had stored the equipment. Upon January 12, 1972, the traxcavator was located in a barn upon the farm of the appellant Taylor in Weakley County, Tennessee, during the course of a search of the premises by local law enforcement officers. Bales of hay had been placed around the traxcavator to conceal its presence in the barn. Taylor had purchased the hay some months previous to feed two horses which he kept in the barn lot. When shown the traxcavator following its discovery, Taylor remarked to the officers "You wouldn't believe that somebody could put this in my barn and me not know it."

Upon the foregoing state of the record it is clear that sufficient evidence exists to support the verdict as to both Hearn and Taylor upon the conspiracy count. It is contended that evidence of a conspiratorial agreement is lacking. While the evidence may be insufficient to establish a conspiratorial agreement regarding the transportation of the motorcycle, there is a clear sufficiency of the evidence to establish a conspiratorial agreement regarding the receiving and concealing of the backhoe. It is not necessary that the proof establish a formal agreement in this regard. It is sufficient if the unlawful agreement may be inferred from all of the circumstances. As stated by this Court in the case of Poliafico v. United States, 237 F.2d 97, 104 (6th Cir. 1956):

"Participation in a criminal conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a development and collocation of circumstances."

It is likewise clear that the evidence is sufficient to support the jury verdict finding the appellant Taylor guilty of receiving and...