United States v. Johnson

• Decision Date: 23 July 1969
• Docket Number: No. 27025.,27025.
• Citation: 413 F.2d 1396
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Leland JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

413 F.2d 1396 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. James Leland JOHNSON, Defendant-Appellant.

No. 27025.

United States Court of Appeals Fifth Circuit.

July 23, 1969.

Jack W. Torbert, Gadsden, Ala., Nabors & Torbert, Gadsden, Ala., for defendant-appellant.

Macon L. Weaver, U. S. Atty., R. Macey Taylor, Melton L. Alexander, Asst. U. S. Attys., Birmingham, Ala., for plaintiff-appellee.

Before COLEMAN and SIMPSON, Circuit Judges, and MEHRTENS, District Judge.

COLEMAN, Circuit Judge:

A jury found James Leland Johnson guilty on four counts of receiving, concealing, etc., stolen motor vehicles, knowing the same to have been stolen and to have been transported in interstate commerce. The trial court imposed two years confinement sentences on each count, the sentences to be served consecutively. We affirm the convictions on Counts Two, Three, and Four. We reverse as to Count One.

1. Count One. The 1966 Blue Chevrolet Corvette

Joseph Haney testified that a 1966 blue Chevrolet Corvette was stolen from his automobile lot in Detroit, Michigan, in the early part of 1968. He had no notations of the serial number of the automobile, nor did he have any registration papers showing title to the motor vehicle. He testified that Michigan was a title state, but the papers on the automobile stolen from him were in the custody of an insurance company. He, therefore, was unable to testify that the automobile stolen from him bore the same serial number as that found in the possession of James Leland Johnson. He could only say that the automobile stolen from him was similar in color, make, and model to that named in the indictment.

The prosecution sought to bridge this deficiency by the testimony of a special agent of the Federal Bureau of Investigation. This agent had the serial number and the motor number of Johnson's blue Corvette, taken from a confidential location on the frame of the vehicle. By the use of gasoline he cleaned off the numbers, rubbed fingerprint ink over them, laid over a piece of scotch tape, picked up the ink, laid it across a white piece of paper, and by that method could read the number, which was 6111619. He sent an inquiry to the computerized center operated by the F.B.I. in Washington, which immediately responded that the car had been stolen on February 29, 1968, from the Haney Sports Car Company, Inc., of Detroit, Michigan.

Counsel for the defendant vigorously objected to the admission of this testimony on the ground that it was hearsay. As a matter of fact, it was double hearsay. The special agent was allowed to testify as to what he had heard from the computer center and the computer center relayed to him what it had heard from others, very likely the Detroit police department. The District Judge expressed grave doubts about the admissibility of this testimony but ultimately decided "under the circumstances of the case" to admit it. The first impresssions of the District Judge were correct. This testimony was incompetent, under the hearsay rule, and should not have been admitted.

With this testimony excluded, the Government utterly failed to make a case under Count One. We had identically the same situation in Watkins v. United States decided March 28, 1969 409 F.2d 1382. We held, "at most the Government's proof shows that a car of common make, color, and design was stolen from a used car lot in Portsmouth, Virginia and that appellant was later arrested in Jacksonville, Florida in possession of a car of like make, color, and design. * * * Since Cox v. United States, 96 F.2d 41 (8th Cir., 1938), it has been well established that such evidence will not pass muster * * *". See, also, the other cases cited in Watkins.

In this case, however, we do not do as the Watkins court did and remand to the District Court for its determination of whether in light of any new evidence which the Government might bring forth a retrial is warranted. The prosecution had every opportunity to have obtained the title papers from the insurance company. It elected to go to trial without them, apparently relying on the thought that it could cure the defect by the testimony of the F.B.I. agent. Under these circumstances, and in view of the substantial sentences imposed under Counts Two, Three and Four, we are not disposed to authorize retrial under Count One.

Therefore, the conviction on this count is reversed, with instructions to dismiss the count.

2. Count Two. The 1966 Chevrolet Pick-up Truck.

The testimony showed that this vehicle was stolen May 7, 1968, from a lot in Nashville, Tennessee. When stolen, the color of the pick-up was black. It bore serial number C-1446A167646.

The special agent for the F.B.I. located this vehicle at the residence of the defendant. He observed the truck parked in the yard. He wrote down the license plate number as he drove by. The tag number was 8T-192645. He testified, over objection, that he went to the courthouse, examined the public records, and these records reflected that the tag was registered to the defendant. The registration, however, as shown by the serial number 3 C-143A125111, would be for a 1963 Chevrolet pick-up truck, rather than for a 1966 model. From this he knew that the serial number was wrong or that the license plates had been unlawfully switched. He went back to the Johnson residence. Johnson was absent. He talked to Johnson's wife and asked permission to look at the truck more closely, at the serial plate, and she gave permission. Again over objection that this constituted an illegal search, the agent further testified that he made a list of the hidden confidential serial number of this vehicle, and that the number was 6A-16746, which tallied with the number from Nashville, and which was a different number to that shown on the registration.

There being no dispute that the defendant-appellant had the truck in his possession soon after it was stolen, the sole issue as to this count is whether the agent's inspection of the hidden serial number, on the defendant's premises, without his consent, constituted an illegal search and rendered inadmissible the serial number testimony.

We have already had this issue before us, Weaver v. United States, 5 Cir., 1967, 374 F.2d 878. A local officer saw a motor vehicle in what he considered to be suspicious circumstances. The car was searched without a warrant and burglary tools were found and seized. The defendant was put in jail and booked for the possession of burglary tools. Later, an F.B.I. agent questioned the defendant, after warning him of his constitutional rights. This aroused the further suspicion of the agent. He went to the scene, where a local police officer, who had no search warrant, opened the door, allowing the F.B.I. agent an opportunity to inspect the public identification number of the car, which appears on a plastic sheet on the door post. This number tallied with a duplicate Georgia registration certificate in the possession of the defendant. Two months later, the defendant was arrested in Georgia, by local police, accompanied by an F.B.I. agent. Search and arrest warrants were served on the defendant. While Weaver was thus in custody, the agent took an impression of the confidential number of the vehicle, appearing immediately adjacent to the radiator. The confidential number did not tally with the public identification number on the door post, although both numbers should have been the same.

There was no challenge to the taking of the confidential number, since there was a search warrant, but the attack was leveled against the observation of the door post number, which would not have been visible had the local officer not opened the door. We held that evidence of the door post number came from an independent, lawful source, i.e., the papers given the agent by the defendant. We did go on to say,

"His the agent\'s subsequent checking of the number of the vehicle was mere routine. In this highly motorized age with millions of vehicles traversing the nation\'s highways and the mounting number of automobile

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