United States v. Shirley, 17492.

• Decision Date: 23 December 1970
• Docket Number: No. 17492.,17492.
• Citation: 435 F.2d 1076
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Lewis SHIRLEY, Defendant Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

435 F.2d 1076 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Charles Lewis SHIRLEY, Defendant Appellant.

No. 17492.

United States Court of Appeals, Seventh Circuit.

December 23, 1970.

Gerald M. Werksman, Chicago, Ill., Joseph T. Garlovsky, Chicago, Ill., of counsel, for appellant.

William J. Bauer, U. S. Atty., Michael B. Nash, Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Jeffrey Cole, Asst. U. S. Atty., of counsel, for appellee.

Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and PELL, Circuit Judge.

PER CURIAM.

The defendant was found guilty by a jury under an indictment charging him with violating 18 U.S.C. § 2312 by causing the transportation of two stolen automobiles from Chicago to Missouri knowing they were stolen. He appeals from the judgment of conviction and sentence imposed. Since the sufficiency of the evidence is not questioned only a brief summary of the facts is necessary.

According to the Government's evidence, the defendant recruited one Wayne Lodygowski to steal two cars in Chicago and aid in their transportation to Missouri. At defendant's behest, Lodygowski induced Raymond Connor to assist in the transportation. Lodygowski, Connor, and the defendant left Chicago as a group, Lodygowski and Connor each driving one of the stolen cars and the defendant driving his own automobile. The Missouri Highway Patrol arrested each of the drivers before they reached their destination.

In sharp contrast to the Government's evidence, the defendant attempted to prove that he did not participate in the theft of the cars, was unaware that they had been stolen, and was traveling with Lodygowski and Connor because of a coincidence. He claimed that they knew that he planned a trip to Missouri to visit his sister and asked to follow him since as an expert mechanic he would be able to assist if the cars developed trouble. Because of the nature of the proof, the defendant's guilt or innocence rested largely on the jury's resolution of credibility questions relating to who arranged the theft of the cars.

During his closing argument, defense counsel emphasized the conflict in the evidence concerning the theft of the cars and argued that whoever arranged their theft was also responsible for the crime charged in the indictment. In effect he told the jury that if it believed the defendant's denial of his involvement in the theft, a not guilty verdict was required.

Following the closing arguments the district judge notified counsel of his intention to add a prefatory sentence to the instruction which informed the jury of the charge. The additional instruction stated: "The defendant is not charged with the theft of the cars in question, he is not charged with arranging the theft of any cars." Over defendant's objection the instruction as modified was given.

Although the defendant concedes that the added sentence was "technically and abstractly" correct, he contends that in the context of the evidence it was prejudicial. He argues that since the Government's evidence tended to show that he arranged for the theft of the cars, he could not be guilty of the crime charged unless the jury believed that evidence; hence, the court's prejudicial error in telling the jury that he was not charged with arranging the theft.

Defense counsel also contends that the modified instruction had a further prejudicial effect because he was not notified until after his closing argument that it would be given. He argues that it drew the jury's attention away from the credibility issue concerning who stole the cars and rendered his closing argument ineffective. He says that his closing argument would have taken account of the added instruction had he known it was to be given.

Rule 30 of the Federal Rules of Criminal Procedure provides in relevant part that, "The court shall inform counsel of its proposed action upon the instruction requests prior to...