Wheeler v. United States, 9388

• Decision Date: 18 September 1967
• Docket Number: No. 9388,9389.,9388
• Citation: 382 F.2d 998
• Parties: Billy Wayne WHEELER and Johnnie Green, Jr., Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

382 F.2d 998 (1967)

Billy Wayne WHEELER and Johnnie Green, Jr., Appellants, v. UNITED STATES of America, Appellee.

Nos. 9388, 9389.

United States Court of Appeals Tenth Circuit.

September 18, 1967.

William L. Fry, Wichita, Kan., for appellant Wheeler.

Karl W. Friedel, Wichita, Kan., for appellant Green.

James R. Ward, Topeka, Kan. (Newell A. George, Topeka, Kan., on brief), for appellee.

Before MURRAH, Chief Judge, and HILL and SETH, Circuit Judges.

MURRAH, Chief Judge.

Appellants Wheeler and Green were jointly tried and convicted by a jury and sentenced for knowingly transporting a stolen vehicle in interstate commerce in violation of the Dyer Act, 18 U.S.C. §§ 2, 2312. In these consolidated appeals both appellants contend (1) that the evidence is insufficient to support the jury's verdict and the trial court should have directed judgments of acquittal; and (2) that the trial court erroneously refused to grant a new trial on the grounds that two of the court's instructions were improper and prejudicial, that prejudicial evidence was improperly admitted, and that the case should have been transferred and tried in the Southern District of California. Wheeler also seeks a new trial on the basis of newly discovered evidence. We agree with the trial court's rulings and affirm the judgments.

It is conceded that on May 26, 1966, a 1959 Ford automobile was stolen from a used car lot in Pacoima, California, and that appellants and their female companion, Wanda Harris, were occupying the vehicle when it was recovered three days later at Goddard, Kansas. The Government introduced unrebutted evidence that Wanda Harris and Wheeler were together with Green in Pacoima early in the evening on May 26 and that Wanda Harris and Wheeler decided to go to Kansas City to get married. At about 9:00 p. m. Wheeler and Green left Miss Harris indicating that they were going to obtain an automobile from one Charles Jackson in Los Angeles. About an hour and a half later, they returned with the 1959 Ford, later identified as the stolen vehicle. Wheeler was driving. Shortly thereafter the three departed on their planned trip to Kansas City and "took turns" driving. When the vehicle was stopped in Kansas, Miss Harris was driving, Wheeler was beside her in the front seat and Green was sitting in the rear seat. Green's undisputed testimony in his own behalf was to the effect that he and Wheeler met Charles Jackson at a "taco stand" in Pacoima where Wheeler, in Green's presence, paid Jackson $30 to rent the Ford for fifteen days and the car was surrendered to him.

Attacking the sufficiency of the evidence appellants contend that the Government failed to prove the necessary elements of the crime, i. e. that appellants knew the car was stolen and that they transported it in interstate commerce, i. e. see Allison v. United States, 10 Cir., 348 F.2d 152. In argument on the motions for acquittal at the close of the Government's evidence and at the close of all the evidence appellants conceded the evidentiary rule that proof of possession of an automobile recently stolen in another state, unless satisfactorily explained, will support an inference that the possessor knew the vehicle was stolen and that he transported it in interstate commerce. See Garrison v. United States, 10 Cir., 353 F.2d 94; Fish v. United States, 10 Cir., 371 F.2d 438, 439; Allison v. United States, supra.; Reese v. United States, 10 Cir., 341 F.2d 90. But, they strenuously argued that the evidence was wholly insufficient to show that at the time the vehicle was stopped and they were apprehended they were exercising "control, dominion or authority" over the vehicle as required to effect the necessary "possession". They correctly contend that being a mere passenger in a stolen automobile moving in interstate commerce does not prove requisite possession so as to give rise to the presumption of guilty knowledge. And, of course, if the premise of possession fails, the presumptions must necessarily fall with it. We think, however, that unlike Allison v. United States, supra, and like Garrison v. United States, supra, the evidence substantially supports an inference either that the appellants were jointly exercising control, dominion and authority over the stolen car or that at least Wheeler was in control and Green was an "aider and abettor" within the meaning of the statute. Moreover, appellants' contention that they rented the car from Jackson and were in possession without guilty knowledge is inconsistent with their denial of requisite possession. The jury was entitled to resolve the inconsistency.

On the motion for new trial appellants complained of the correctness of the court's instructions on possession and particularly on the refusal of the court to instruct on the meaning of possession in terms of control. But no request was made for such an instruction and no objection to the instructions as given was made until the motion for new trial. This, of course, came too late.

This brings to the forefront the question of the propriety of the trial court's refusal to grant a new trial on the basis of the admission of impeaching evidence. Appellants contend that the court should have excluded the testimony of an F.B.I. Agent which was admitted to show that Green had made a prior statement inconsistent with his trial testimony. The Government sought to discredit Green's testimony that he saw Wheeler pay $30 to Jackson by showing that Green had previously told the Agent that he did not see any money change hands between Wheeler and Jackson. The argument for exclusion is that the procedural safeguards set forth in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, are applicable to any custodial statement, inculpatory or exculpatory, no matter how it is used at trial; that the testimony of the Agent was based upon a statement made by Green while under custodial interrogation; and that the Government failed to lay a proper foundation for admission of Green's statement by showing that at the time it was made Green had been fully advised of all of his rights and had voluntarily and understandingly waived them.

It is generally accepted that after a proper foundation has been laid, a witness' testimony may be discredited by showing former inconsistent or contradictory statements, and the jury is entitled to consider such inconsistent statements in determining the weight to be given to the witness' testimony. But, it is universally maintained that unless...