United States v. Soares, 71-1153.

• Decision Date: 01 March 1972
• Docket Number: No. 71-1153.,71-1153.
• Citation: 456 F.2d 431
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Edwards SOARES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

456 F.2d 431 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. John Edwards SOARES, Defendant-Appellant.

No. 71-1153.

United States Court of Appeals, Tenth Circuit.

March 1, 1972.

William R. Burkett, U. S. Atty., for plaintiff-appellee.

Philip Deitch, Los Angeles, Cal., for defendant-appellant.

Before LEWIS, Chief Judge, and McWILLIAMS and BARRETT, Circuit Judges.

McWILLIAMS, Circuit Judge.

By indictment John Edwards Soares and Larry D. Lee were jointly charged with causing to be transported in interstate commerce from Oklahoma City, Oklahoma, to Palm Springs, California, certain prints of Pablo Picasso etchings of a value of more than $5,000, knowing the same to have been stolen, in violation of 18 U.S.C. § 2314. A few days before trial Lee changed his not guilty plea to one of guilty as charged. Soares' trial by jury resulted in a guilty verdict and he was sentenced to seven years imprisonment. He now appeals and we affirm.

The Government's case established that an art gallery in Oklahoma City was burglarized and some fifty-one Picasso etchings were stolen therefrom; that Soares transported, or caused to be transported, the same from Oklahoma to California via Las Vegas, Nevada; and that thirty-one of the etchings were thereafter sold to an art collector in Palm Springs through a California art dealer for $35,000. Since the sufficiency of the evidence is not in issue, additional detailing of the evidence will be made only as is necessary to an understanding of the matters raised on appeal.

I.

As indicated, Soares' codefendant, Lee, changed his plea to one of guilty a few days prior to trial. In the process of empaneling the jury, the jurors were apprised that Lee and Soares had been jointly indicted. After the jury was sworn, on request of the Government, the trial court advised the jury that only Soares was on trial; that Lee had pleaded guilty and accordingly would not stand trial; and that the fact that Lee pleaded guilty created "no inference at all" as to the guilt of Soares. Counsel moved for a mistrial, which motion was denied. It is argued that the trial court erred in refusing to declare a mistrial and that this error requires reversal.

In Richards v. United States, 193 F.2d 554 (10th Cir. 1951), cert. denied, 343 U.S. 930, 72 S.Ct. 764, 96 L.Ed. 1340 (1951), three defendants were about to go on trial and one changed his plea to guilty. We held that there was no error in the trial court's apprising the jury that one of the three had thus changed his plea. In so holding we observed that the "court did no more than make a statement of fact as to the condition of the record."

Counsel would distinguish the instant case from Richards on the ground that here Lee changed his plea several days before the commencement of the trial, whereas in Richards the change of plea occurred during the empaneling of the jury. We do not deem this distinction to be a significant one.

In Wood v. United States, 279 F.2d 359 (8th Cir. 1960), two defendants changed their plea to that of guilty two days before trial. During the empaneling of a jury to try the remaining defendants, the trial court advised counsel that he proposed to inform the jurors that the two had thus changed their pleas, on the ground that the "jury has a lot of common sense and they are entitled to know where they the defendants who pleaded guilty are." The trial court then did instruct along the lines indicated, and on appeal it was held that in so doing "the trial court did what it should have done."

We find no error in the trial court advising the jury that Lee had changed his plea to one of guilty. Though Lee did not testify at Soares' trial, he was present at the trial and was identified by several witnesses during the course of the trial. The jury under such circumstances should be apprised why Lee, who was mentioned throughout the trial, was not himself standing trial, in order to keep straight the "condition of the record."

As an additional facet of this argument counsel asserts that the trial court did not go far enough in its cautionary instruction. As indicated, the trial court instructed the jury that the fact that Lee had changed his plea created no inference at all as to the guilt of Soares. In the trial court, counsel simply objected to informing the jury that Lee had pleaded guilty and no objection was made to the form of the cautionary instruction. However, in this court counsel, relying on such cases as Davenport v. United States, 260 F.2d 591 (9th Cir. 1958), cert. denied, 359 U.S. 909, 79 S.Ct. 585, 3 L.Ed.2d 573 (1959), as well as Wood v. United States, supra, argues that the trial court should have instructed the jury that the fact that Lee had pleaded guilty was not only no evidence of Soares' guilt, but was no evidence that a crime had been committed by anyone. We do not agree that the cautionary instruction need go that far. In the first place, such instruction would not be entirely accurate, since Lee's plea of guilty is certainly some evidence that he committed a crime. We agree of course that Lee's plea of guilty is no evidence as to Soares' guilt. And the jury was so instructed in language which is in accord with that suggested in Richards v. United States, supra. Accordingly, we find no deficiency in the instruction given the jury in the instant case and conclude that the instruction given adequately covered the situation.

II.

A key witness for the Government was one Clifford Isbell, a paid informer of the FBI who had one prior felony conviction. He testified that he saw Soares in Las Vegas, Nevada, with some Picasso prints and that Soares informed him that he (Soares) and Lee had stolen the prints in a burglary of an Oklahoma City art store. Isbell promptly informed the FBI of his conversation with Soares.

In preparation for trial, counsel for Soares, who is not present counsel, journeyed to Las Vegas to interview Isbell. Counsel apparently first conversed with Isbell in a coffee shop of a Las Vegas Casino at which time Isbell denied that he ever saw Soares with any Picasso prints or that Soares had ever admitted to him that he (Soares) had stolen some Picasso prints in an Oklahoma City burglary. As a follow-up to that conversation, Isbell apparently also gave some sort of a sworn statement to the same effect in counsel's Las Vegas hotel room. Counsel in his cross-examination of Isbell brought out the foregoing, all of which incidentally was freely admitted by Isbell. On redirect, Isbell declared that his testimony in open court under oath represented the truth, and that his statements to counsel did not represent the truth. He explained his conduct on the ground that he was in fear.

Concerning the manner in which the jury should handle Isbell's testimony, the trial court in line with Todd v. United States, 345 F.2d 299 (10th Cir. 1965), instructed the jury as follows:

"You are instructed that the testimony of an informer who provides evidence against a defendant for pay, or for personal advantage or vindication, must be

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