United States v. Maffei, 71-1343.

• Decision Date: 02 November 1971
• Docket Number: No. 71-1343.,71-1343.
• Citation: 450 F.2d 928
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward Phillip MAFFEI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

450 F.2d 928 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Edward Phillip MAFFEI, Defendant-Appellant.

No. 71-1343.

United States Court of Appeals, Sixth Circuit.

November 2, 1971.

Joe C. Savage, Lexington, Ky., for appellant.

James E. Arehart, Asst. U. S. Atty., Lexington, Ky., Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., on brief, for appellee.

Before WEICK, McCREE, and KENT, Circuit Judges.

PER CURIAM.

This appeal presents the sole question whether the Government presented sufficient evidence to warrant submission of the case to the jury. The District Court denied appellant's motions for a directed verdict of acquittal at the close of the Government's proofs and at the close of all proofs, and it is from the latter ruling that this appeal has been prosecuted. We affirm.

Appellant was indicted on June 17, 1970, for violation of the Dyer Act, 18 U.S.C. § 2312, which proscribes the interstate transportation of a motor vehicle with knowledge that the vehicle is stolen.

At trial, the Government presented four witnesses. Mr. Richard Trimble was the first to testify. He stated that he was employed on March 15, 1970, as rental agent for Brooks Rent-A-Car Company in Phoenix, Arizona, and on that date he rented a 1969 Chevrolet, Nevada License No. 324-247, to a Robert Franzman. Under the terms of the rental agreement, the car was to be returned on March 18. Mr. Trimble testified that he did not have authority to allow a rented car to be taken into any state other than Nevada, and that he did not give Franzman permission to take the vehicle to Kentucky. He stated that Franzman paid for the vehicle with a Diner's Club credit card, subsequently honored by Diner's Club, and that the vehicle was never returned to him.

The Government then called Henry Hess, who was at that time serving a federal sentence for an unrelated violation of the Dyer Act. Mr. Hess announced before taking the stand that he had been advised by counsel not to testify. Nevertheless, he was told to take the stand and was questioned by the Government attorney about his activities in March 1970 and his associations with appellant. Hess declined to answer any of these questions on the ground that the answers might tend to incriminate him. Defense counsel objected to the propounding of several questions to this witness and moved for a mistrial on the ground that this procedure had a tendency to inflame the jury and prejudice appellant. His objections and motion were overruled by the trial judge, and the issue whether those rulings were erroneous has not been raised on appeal. We observe, however, that, although the tactic employed by the Government in calling this witness has been approved in this circuit, United States v. Compton, 365 F. 2d 1 (6th Cir.), cert. denied, 385 U.S. 956, 87 S.Ct. 391, 17 L.Ed.2d 303 (1966), the trial judge should closely scrutinize the practice because of its potential for unfair prejudice.

The third witness called by the Government was Frank Triplett, a Fayette County, Kentucky police officer. He testified that on April 5, 1970, he stopped a 1969 Chevrolet that was being driven in a reckless manner by one William Koonce. Appellant was a passenger in the right front seat of the car. The vehicle bore Illinois license plates. When Officer Triplett asked the occupants for proof of ownership of the vehicle, appellant responded that the car belonged to his wife or his girlfriend (the officer was not certain of his answer) and that the registration certificate was in a nearby motel room. Officer Triplett then arrested the pair.

The final witness for the Government was Sergeant Richard Arnette of the Fayette County Police Department. He testified that at some later time he searched the car...