United States v. Kaylor

• Decision Date: 15 October 1973
• Docket Number: Docket 73-1530.,No. 1048,1048
• Citation: 491 F.2d 1127
• Parties: UNITED STATES of America, Appellee, v. James KAYLOR and Willie Glen Hopkins, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

491 F.2d 1127 (1973)

UNITED STATES of America, Appellee, v. James KAYLOR and Willie Glen Hopkins, Appellants.

No. 1048, Docket 73-1530.

United States Court of Appeals, Second Circuit.

Argued July 17, 1973.

Decided October 15, 1973.

Michael J. Gillen, Brooklyn, N. Y., for appellant Kaylor.

Mark A. Landsman, Brooklyn, N. Y. (Lawrence Stern, New York City, of counsel), for appellant Hopkins.

Kenneth J. Kaplan, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty. E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty.), for appellee.

Before MOORE and OAKES, Circuit Judges; GURFEIN,^* District Judge.

OAKES, Circuit Judge:

This appeal arises out of convictions for the theft of a tractor-trailer containing a shipment of 49 head of hung beef valued on July 20, 1972, the time of the theft, at $22,000. The convictions were on a substantive count of stealing, with intent to convert to appellants' own use (18 U.S.C. § 659), the tractor-trailer, which was traveling in interstate commerce from Dakota City, Nebraska, to the Jamaica Wholesalers in Jamaica, Queens. Appellant Kaylor was sentenced to a term of imprisonment of ten years and appellant Hopkins to one of seven years.

Appellant Kaylor claims that the trial court's conduct deprived him of a fair trial, that there was not competent evidence before the grand jury identifying him so as to support an indictment, that the trial court erred in not suppressing the testimony of two witnesses who refused to identify him in court and that the trial court improperly received in evidence certain admissions by appellant. Appellant Hopkins argues that an in-court identification of him by the driver of the tractor-trailer was tainted by the fact that it had occurred after the witness had testified and when he was recalled after having seen appellant at the counsel table, and that the court erred in refusing to sentence appellant pursuant to the Youth Corrections Act and in refusing to consider possible recommendations of the sentencing panel which is operative in the Eastern District of New York.

Carl Wolverton, an over-the-road tractor-trailer driver, was the lucky fellow who arrived in Jamaica with the 49 beef carcasses all the way from Dakota City, Nebraska. He parked his truck, and at about 11 o'clock that night went for a few minutes to get a sandwich. When he returned to the truck, as he was about to "pick a little" at his guitar and lock the door to the cab, someone opened it, pointed a gun at his head and told him to get in the bunk at the back of the cab. One man held a gun in his ear and a second tied his arms and legs with rope and subsequently put white tape over his eyes and over the top of the rope. One of them roughed him up by hitting him "a few good clips" with the gun on his head, and after being driven around for a couple of hours and stripped to his underwear, Wolverton was thrown out of the cab of his tractor like a "sack of taters" into a Dodge van, and then hit, kicked and urinated upon. He was abandoned in the van and worked himself free during the following morning.

The Dodge van had been stolen in Brooklyn the morning of the hijacking, and when found, the inside of the left front door bore the fingerprints of the appellant Hopkins. About 7:00 a.m. an alert New York City detective, John Flynn, saw a tractor-trailer at Hegeman and Logan Streets in Brooklyn and began to follow it, his suspicions aroused. He stopped it and asked for and received identification from the driver, but still was suspicious, so he followed the truck to a meat market. There five men in butcher's jackets were directing the vehicle into an alleyway. At this point Flynn called for assistance and proceeded toward the vehicle when the two people in the tractor-trailer broke and ran. Sure enough, the tractor-trailer turned out to be Wolverton's with the Dakota City load of beef. At trial Flynn identified appellant Hopkins as the helper he had observed in the truck. The other individual, the driver of the truck, has, however, never been apprehended.

The proprietors of the meat market to which the truck was being delivered were Charles Simonian and Nicholas Stolfi. While the tractor-trailer was approaching the entrance of the meat market, Simonian was standing at the back with an individual he knew as "Shorty," which also happens to be a nickname for appellant Kaylor. This individual was black and described by Simonian as about 5' 5" to 5' 8" with a stocky build and short cropped hair, 30 to 35 years old, and having no beard or moustache. "Shorty" had been around before to see if these butchers wanted to buy some meat. On that very morning "Shorty" had telephoned Simonian and told him that he had some meat for him, and the two had met in a luncheonette a few doors down the street and gone to the meat market when Simonian opened it. Simonian did not want the whole trailer load of meat because it was "too much."

Before the grand jury both Simonian and his partner, Stolfi, identified a picture of James Kaylor as the man they knew as "Shorty" when they were shown a spread of photographs. This picture of Kaylor, like their description of "Shorty," was of a man without a moustache or a beard. At the time of trial, however, while both of the butchers thought James Kaylor "looked like" or "resembled" "Shorty," they stated that Kaylor was not "Shorty." At the time of trial Kaylor had grown a moustache and beard, had longer hair and puffier cheeks and was somewhat heavier than the "Shorty" that he "looked like" or "resembled."

On December 15, 1972, after a special FBI agent had warned Kaylor of his constitutional rights, Kaylor told him that "If I get uptight enough about this case I can tell you about it," and that "I know about those two guys in the meat market and they should never have paid the police the $500."

At the trial, the tractor-trailer driver, Wolverton, appeared but during his original testimony was not asked whether he could identify either of the two defendants. When he left the stand, however, he went back to the witness room and told Detective Flynn that he could identify the hijackers. Before permitting him to testify, the court held a hearing on suggestiveness out of the presence of the jury and found that no impropriety or suggestiveness had occurred. The witness was permitted to retake the stand in the presence of the jury and he then identified the two defendants as the hijackers.

We have examined the record with some care in the light of United States v. Friedgoog, 69 Crim. 102 (E.D. N.Y., Dec. 1, 1972) (Rosling, J.), remanded, No. 73-1122 (2d Cir., Apr. 25, 1973) (mem.) and United States v. Nazzaro, 472 F.2d 302 (2d Cir. 1973). We do not find that the trial judge overstepped his duty "as more than a moderator to clarify ambiguous questions and testimony for the jury and to insure that the trial was fairly conducted." See United States v. Pellegrino, 470 F. 2d 1205, 1206 (2d Cir. 1972), cert. denied,, 411 U.S. 918, 93 S.Ct. 1556, 36 L. Ed.2d 310 (1937). See also United States v. Boatner, 478 F.2d 737, 740-741 (2d Cir. 1973). Appellant Kaylor's principal complaint is directed toward the interrogation by the court of the witnesses Simonian and Stolfi after their testimony that Kaylor resembled or looked like the "Shorty" they talked to, but was in fact not him. The court, quite correctly, we think inquired of the witnesses to determine in what respects their memories of the appearance of the "Shorty" they did see differed from that of the defendant Kaylor in court, especially since the photographic identification they had made was of a photograph of the appellant himself. True, the court referred to "the Shorty in the courtroom" but there was subsequent testimony by a New York City police officer that he had asked appellant Kaylor if his name was "Shorty" and Kaylor had replied that he was known by that name. The court did remark about the witness Stolfi's obvious nervousness after he had told the prosecutor he was "very, very nervous" and defense counsel had accused the prosecution of trying to inject "something of fear" into the case. All that the court did was to say that it was obvious that the witness was nervous or afraid, since he was stuttering, repeating himself and hesitating to answer, without in any way indicating any belief as to why the witness was afraid. Lastly, the court's inquiry of Stolfi whether his butcher shop was still in the neighborhood and whether his number was in the phone book would give some explanation for the witness's nervousness, perhaps, but would not necessarily point toward appellant; as any trial judge knows, many witnesses are nervous especially when testifying in a case involving violence. It does not have to be the defendant who frightens the witness; indeed, if in fact there were another "Shorty" as appellant Kaylor claims, then the witness might have been fearful because he did not identify the appellant as "Shorty." In any case, the witness's fear was relevant.

Suffice it to say that the evidence of Simonian and Stolfi identifying Kaylor as "Shorty" from photographs was sufficient to warrant Kaylor's indictment in light of the testimony before the grand jury that "Shorty" had offered to sell the meat in the hijacked trailer. This evidence indicated a "reasonable probability" that the crime of hijacking had been committed by Kaylor, and that is enough to warrant an indictment. See Carrado v. United States, 93 U.S. App.D.C. 183, 210 F.2d 712, 717, cert. denied sub nom. Atkins v. United States, 347 U.S. 1018, 74 S.Ct. 874, 90 L.Ed. 1140 (1954); Shusan v. United States, 117 F.2d 110, 113 (5th Cir.), cert. denied, 313 U.S. 574, 61 S.Ct. 1085, 85 L.Ed. 1531 (1941). Participation in a theft may be inferred from the possession of recently stolen goods. United States v. DeSisto, 329 F.2d 929, 935 (2d Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964). See Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37...