United States v. Vicars, 72-1102.

• Decision Date: 09 August 1972
• Docket Number: No. 72-1102.,72-1102.
• Citation: 465 F.2d 720
• Parties: The UNITED STATES of America, Plaintiff-Appellee, v. J. D. VICARS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

465 F.2d 720 (1972)

The UNITED STATES of America, Plaintiff-Appellee, v. J. D. VICARS, Defendant-Appellant.

No. 72-1102.

United States Court of Appeals, Sixth Circuit.

August 9, 1972.

Ernest Goodman, Goodman, Eden, Robb, Millender, Goodman & Bedrosian, Detroit, Mich., for defendant-appellant.

Richard L. Delonis, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee; Ralph B. Guy, Jr., U. S. Atty., on brief.

Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.

WEICK, Circuit Judge.

Appellant Vicars was charged in the District Court in a two-count indictment with transporting and causing to be transported a Beechcraft airplane No. N9809Z valued at $17,000 from Detroit, Michigan to Palacios, Texas, knowing that the airplane had been taken by fraud in violation of Sections 2314 and 2, Title 18, United States Code (Count 1) and (Count 2) with causing to be transported from Detroit to Fort Worth, Texas, Beechcraft airplane No. N287W knowing that the airplane had been stolen in violation of Sections 2312 and 2, Title 18, United States Code.

He was tried by a jury and at the conclusion of the government's case, the District Court granted defendant's motion for judgment of acquittal on Count 2 and denied his motion as to Count 1. The case was submitted to the jury resulting in a verdict of guilty. Sentence was suspended and defendant was placed on probation for two years. He appealed. We affirm.

In his appeal, Vicars contends (1) that the evidence was insufficient to support the conviction, and (2) that the Government's evidence relating to Count 2 was so prejudicial as to require a trial before another jury.

I

The criminal charges grew out of an agreement to trade airplanes entered into between Vicars who operated Vicars Industries at Meachem Field, Fort Worth, Texas and TRB Flying Service, Inc. (TRB) of Detroit, Michigan, whereby Vicars was to transfer the title to his Beechcraft airplane No. N287W referred to as the "Whiskey" airplane to TRB, and was to receive TRB's Beechcraft airplane No. N9809Z, referred to as the "Zebra" airplane, plus $18,000 in cash within ten days and with all liens free and clear.

The fraud claimed by the Government was Vicars' representations to TRB that (1) the Whiskey airplane was air-worthy when it was not and (2) that the Whiskey airplane was free and clear of all encumbrances when liens in excess of $30,000 existed thereon.

The Whiskey airplane had been acquired by Vicars in 1966 and he undertook to make certain modifications in it, contracting with one Cornstubble to do the work. When Cornstubble became ill, Vicars employed Carl J. Elliot, a licensed airplane mechanic, to complete the work. During the progress of the work, Cornstubble wrote to Federal Aviation Agency (FAA) advising that the modifications were not being made in conformity with approved data or specifications. FAA officials then met several times with Vicars and Elliot. FAA Forms 377 reporting on the progress of the work had been submitted to the agency by Elliot. In one of them was contained false information as to the origin of the flaps put on aircraft No. N287W, which false entry was made at the request of Vicars.

Elliot had made an annual inspection of the Whiskey aircraft and reported to FAA that it was airworthy. This inspection did not, however, return the aircraft to service since FAA had not approved the modifications which was an entirely different matter from an inspection.

Elliot and Vicars met with an FAA inspector at Fort Worth and discussed the modifications. Vicars inquired of the inspector as to when FAA would tell him that the aircraft was airworthy. The inspector responded that the aircraft would have to be opened up and furnishings removed for a thorough inspection of the alterations. Vicars objected to this procedure stating that it would cost him $2,400 to open up the aircraft. Vicars stated that he would furnish FAA more data and left the meeting angry. The next day the aircraft was flown by Vicars to Detroit. When FAA located the aircraft it was immediately grounded.

Vicars had previously endeavored to sell the Whiskey aircraft to TRB Flying Service of Detroit. He talked with Mrs. Fordree, Managing Director of TRB, several times on the telephone in an effort to negotiate a sale. Finally, he told Mrs. Fordree that he would fly the aircraft to Detroit at his own expense so that she could examine it, to which she consented.

Vicars arrived in Detroit with the Whiskey airplane two days after his meeting with the FAA inspector in Fort Worth. TRB pilots made some tests of the aircraft. Vicars represented to Mrs. Fordree that the Whiskey aircraft was airworthy and free from liens. The North Fort Worth State Bank held liens thereon at the time of about $32,000 on which Vicars had made no payments. Vicars did not disclose to Mrs. Fordree his meeting with the FAA inspector in Fort Worth or that FAA had not approved the modifications in the aircraft.

In the agreement Vicars consented to make certain additional modifications on the Whiskey aircraft, install a cargo door on it and loan TRB a suitable plane during the modifications. After the agreement was concluded, Vicars left the Whiskey airplane with TRB in Detroit and flew the Zebra airplane to Texas.

TRB experienced a number of difficulties with the Whiskey airplane and refused to pay the $18,000 cash within the ten-day period. Several days after expiration of the ten-day period, FAA sent a telegram to TRB suspending the airworthiness certificate of the Whiskey aircraft and grounding it until the plane had been reinspected and its airworthiness determined to the satisfaction of the Administrator.

Mrs. Fordree had several telephone conversations with Vicars in which he made proposals which she declined to accept, as she felt she could no longer trust him. She wanted to cancel the transaction restoring each party to the status quo but he refused. He told her: "Baby, you bought yourself an airplane and when I'm through with you, you'll have 30 years of college." Vicars was willing, however, to rescind the deal if he was paid $7,000 for expenses.

Vicars broke into and entered the TRB hangar at the Detroit City Airport early one Sunday morning while it was dark, removed the Whiskey aircraft therefrom and had it flown to Texas. There Vicars completed the modifications and FAA approved the aircraft as airworthy. The North Fort Worth Bank repossessed it and sold the plane for only $7,500. Vicars had removed the Zebra plane to Palacios, Texas and stripped it of its motors and all usable parts leaving only a shell worth about $500 on which there is a lien of about $19,000.

In determining whether the evidence was sufficient to support the judgment of conviction, we must view the evidence as well as the inferences reasonably to be drawn therefrom in the most favorable light to the Government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86...