United States v. McGlamory

• Decision Date: 08 April 1971
• Docket Number: No. 30077.,30077.
• Citation: 441 F.2d 130
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Gordon McGLAMORY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

441 F.2d 130 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. John Gordon McGLAMORY, Defendant-Appellant.

No. 30077.

United States Court of Appeals, Fifth Circuit.

April 8, 1971.

COPYRIGHT MATERIAL OMITTED

James M. Prestwood, Andalusa, Ala., Euel A. Screws, Jr., Richard H. Glu, Montgomery, Ala., for defendant-appellant; Hobbs, Copeland, Franco, Riggs & Screws, Montgomery, Ala., of counsel.

Ira DeMent, U. S. Atty., D. Broward Segrest, Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee.

Before RIVES, THORNBERRY and CLARK, Circuit Judges.

CLARK, Circuit Judge:

The genesis of this direct criminal appeal was the disappearance of a bulldozer in Covington County, Mississippi, during the night of October 27, 1969. The machine was subsequently found near Red Level, Alabama, in the possession of the Defendant-Appellant, John Gordon McGlamory, who was indicted, convicted and sentenced to three years for receiving and concealing the bulldozer, a stolen motor vehicle, which was moving in interstate commerce, knowing the same to be stolen, in violation of 18 U.S.C.A. § 2313 (1970). Since we find sufficient bases to establish each of the essential elements of this offense and since we find that the admission of evidence of another offense claimed to have been committed was not prejudicial, we affirm.

I. BACKGROUND AND ISSUES

The facts, highly capsulated but sufficient to frame the issues confronting this court, are as follows. During the night of October 27, 1969, a bulldozer, together with a low-boy trailer upon which it was stored, was taken from its location in the vicinity of Collins, Mississippi. The same bulldozer was subsequently found in Alabama on the property of Appellant McGlamory, about a quarter of a mile from a road in a position where it could not readily be seen.

In response to inquiries made by investigating officials and in his testimony at trial, McGlamory sought to explain the presence of the bulldozer in the following manner. On a morning when he was pouring some concrete for a silo (later established to be the morning after the theft in Mississippi), a total stranger named Jim Johnson came up to the McGlamory residence near Red Level, Alabama, and stated that he had run out of gas. When McGlamory accompanied Johnson outside, he saw a white pick up truck and a maroon truck-tractor pulling a low-boy with a bulldozer on it. In the conversation which followed this chance meeting, Johnson agreed to lease the bulldozer to McGlamory for one month for 2,250 dollars. McGlamory paid Johnson an initial 1,000 dollars in cash, with the remaining 1,250 dollars to be paid at a later date. McGlamory did not know Johnson's address and did not obtain any writing evidencing this rental agreement.

The significant procedural aspects were as follows. During the course of the trial, the United States was permitted to introduce, over McGlamory's objection, evidence to the effect that on December 18, 1969, the morning after the bulldozer had been located on McGlamory's property, he was also found to be in possession of a Ford tractor recently stolen from a tractor dealership in Kentucky, and that McGlamory told an investigating officer "he figured the tractor was hot, might — must be hot." Before any of this testimony was admitted, the trial judge instructed the jury that McGlamory was not charged with regard to the tractor and that the testimony was admitted and should be considered only for the restricted purpose of showing intent or knowledge. McGlamory, through his attorney, moved for a verdict of acquittal at the end of the government's case, but failed to renew this motion at any later time. The instant appeal follows a jury verdict of guilty and a sentence of three years.

McGlamory's appellate contentions are prolific. He contends that 18 U.S.C.A. § 2313 (1970) establishes five essential elements, each of which must be proved. These elements must show that he: (1) received and/or concealed (2) a stolen (3) motor vehicle (4) which was moving in interstate commerce (5) knowing the same to have been stolen. It is contended that the requisite direct evidence was employed to prove at most that a bulldozer was stolen, with the government relying upon the possession of stolen property presumption to prove the other elements. McGlamory also contends that reversible error was committed by the trial court in allowing the admission of evidence of another offense alleged to have been committed, i. e., the Ford tractor theft.

II. IS A BULLDOZER A MOTOR VEHICLE?

McGlamory, while acknowledging that the government successfully proved that the bulldozer was stolen, points out that proof of this one element left the four remaining essential elements unproved. Since the trial court should have granted a motion for acquittal if any essential element of the government's case was missing, he seeks to point to a lack of proof on each of the remaining four essential elements.

McGlamory's first onslaught is directed to the issue of whether a bulldozer is within the contemplation of the Code section under which McGlamory was convicted and sentenced. McGlamory's argument goes like this. While motor vehicles have diverse purposes, § 2313 was not designed to embrace industrial machinery which normally operates at industrial, road building and construction sites. He contends that his position is aided by the language of 18 U.S.C.A. § 2311 (1970), which provides:

"Motor vehicle" includes an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle designed for running on land but not on rails; * * *.

Support for McGlamory's position is also allegedly drawn from the language of 1 U.S.C.A. § 4 (1927), which reads:

The word "vehicle" includes every description of carriage or other artificial contrivance used, or capable of being used, as a means of transportation on land.

McGlamory feels that the clear intendment of these Code sections is that a "motor vehicle" must be a means of transportation or must be designed to operate on a highway. Since a bulldozer meets neither of these criteria, it is not a motor vehicle within the contemplation of the National Motor Vehicle Theft Act. We disagree that the Code sections contain the meaning which McGlamory seeks to impute.

While a crime under § 2313 requires that a motor vehicle be moved in interstate commerce, these are two distinct elements of the crime. The interstate commerce feature does not imply that the motor vehicle be used exclusively for transportation or upon the highways. "Motor vehicle" is after all merely a descriptive or generic term. The only qualifications placed upon this machine by the definition of § 2311 is that the motor vehicle must be capable of traveling on land but not on rails. Neither § 2311 nor 1 U.S.C.A. § 4 contain the requirement that a vehicle must be used for transportation of passengers or that the motor vehicle must operate on the highways. A bulldozer is a motor vehicle designed for running on land and § 2311 therefore places it within the contemplation of § 2313.

That a bulldozer is a motor vehicle within the contemplation of the Act has been given tacit approval by this Circuit. In United States v. Jones, 421 F. 2d 175 (5th Cir. 1970) the court sustained a conviction under § 2313 when the stolen property was a bulldozer. This panel's language expressly made clear it was dealing with a bulldozer and not the automobile type of motor vehicle involved in most Dyer Act violations.

III. CONCEALMENT

McGlamory next contends that the government made no effort to prove the concealment aspect of the charge. It is contended that the government showed no affirmative acts on the part of McGlamory to hide or to withdraw the bulldozer from observation. It is pointed out that the bulldozer was being openly used to clear land, its loan had been solicited by a neighbor, and it was parked in an open field. The government, however, indicated that when discovered the bulldozer had been placed a quarter of a mile from McGlamory's house and that it was not visible from any road.

It is hornbook law that an appellate court must sustain a conviction if, taking the view most favorable to the government, the evidence was sufficient to have withstood a motion for directed verdict of acquittal. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L. Ed. 680 (1942); United States v. Kershner, 432 F.2d 1066 (5th Cir. 1970). Although McGlamory proffered testimony to support the hypothesis that he took no affirmative actions to conceal the bulldozer, the government presented ample evidence from which the jury could have concluded beyond a reasonable doubt that McGlamory actively concealed the stolen bulldozer on his property.

If there could be said to have been doubt as to whether the government proved concealment, there is no doubt that proof was offered that McGlamory received the machine. The government may charge in the conjunctive and convict in the disjunctive where a statute specifies several alternative ways in which an offense may be committed. A conviction will stand if proof of any one means of commission is sufficient to support a jury verdict. United States v. Lee, 422 F.2d 1049 (5th Cir. 1970). In the instant case, McGlamory was charged with receiving and concealing a stolen motor vehicle. If the government proved either receipt, which it clearly did, or concealment, which we have already indicated was proved, the conviction will not fall because of the lack of this particular essential element.

IV. SCIENTER

McGlamory sets into motion a dual sortie against the government's proof of requisite guilty knowledge on his part. McGlamory's first contention here begins with the acknowledgment that there exists within current criminal jurisprudence the proposition that possession of stolen goods requires an explanation, failing in which an inference of theft arises. This, he asserts, is merely another way of saying...