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United States v. Wheeler

January 25, 1955


Author: Duffy

Before DUFFY, Chief Judge, and FINNEGAN and SCHNACKENBERG, Circuit Judges.

DUFFY, Chief Judge.

In Counts 2, 3, 4 and 5 of the indictment defendants Wheeler and McGowan were each charged with violating the Dyer Act, 18 U.S.C.A. ยง 2311 et seq., in that each of them transported or caused to be transported in interstate commerce an automobile described in the indictment, knowing the same to have been stolen. Count 6 charged a conspiracy to violate the same statute. Count 2 charged the transportation of a stolen 1950 Chrysler from Chicago to Austin, Minnesota; Count 3, the transportation of a stolen 1950 Pontiac from Chicago to Austin, Minnesota; Count 4, the same offense as to a 1950 DeSoto from Chicago to Mason City, Iowa; Count 5 was dismissed on motion of the government. The jury found each defendant guilty as charged and each was sentenced to imprisonment for 5 years and to pay a fine of $5,000.

The sentence imposed upon the jury verdict of guilty was such that if the evidence is sufficient to sustain the conviction on any one count, the judgment of conviction herein must be sustained, Butler v. United States, 7 Cir., 138 F.2d 977, 981; United States v. Kelley, 7 Cir., 186 F.2d 598, 602, assuming, of course, that the defendants had a fair trial, free from prejudicial error. We shall, therefore, first consider the proof as to Count 2 which refers to the 1950 Chrysler.

Sidney Peven, son of Joe Peven, testified that his father's 1950 four door Chrysler automobile, Motor No. C-4831-166, had disappeared from in front of their home in Chicago on September 20, 1950, and that neither he nor his father had given anyone permission to take or use the automobile.

Witness Harkness also testified with reference to the 1950 Chrysler, and his testimony is vigorously assailed by each defendant. They claim that Harkness testified as an expert witness, but had shown no qualifications therefor. Undoubtedly, his testimony was damaging to each defendant. For more than thirty years Harkness has been a special agent for the National Automobile Theft Bureau. He explained that the Theft Bureau maintained records of practically every automobile reported stolen in the United States, and that his job was to assist law enforcement officers in identification of stolen automobiles where the identification numbers had been altered. Over repeated objections he explained that automobile manufacturers stamp motor and serial numbers in locations in each automobile which are well known, but that they also stamp the same number in each automobile in a secret location so that if the original public numbers are eliminated or changed the automobile can still be identified by him or members of the FBI who know the locations of the secret numbers. He further testified that after a manufacturer once uses a certain number for identification on an automobile, the same number is not again used. Harkness then testified that the 1950 Chrysler described in Count 2 had been examined by him at Brainerd, Minnesota; that the public numbers had been filed off and a new number C-4861744 had been substituted; that his examination showed the secret number was C-4833166 which was proved to be the identifying number of the 1950 Chrysler which had been owned by Joe Peven of Chicago.

All of the foregoing testimony was clearly relevant and admissible and objections thereto were properly overruled. But, say defendants, some of Harkness' expert testimony indicated that the defendants were guilty of the offenses charged. To illustrate, Harkness was asked: "Why would anyone want to disguise the identification of an automobile?" and he answered: "Because if it was a stolen automobile, they would have to change the number in order to get it registered so that they could sell it." Defendants insist that by the use of the word "they" Harkness implied that the two defendants in the case at bar had made the changes in the identification of the numbers of the automobiles described in the indictment. We think the objection is far-fetched and without merit.

Leo Reddington, bookkeeper of B & J Motors, Beloit, Wisconsin, was shown an application for a State of Wisconsin Motor Vehicle Registration dated September 5, 1950 which showed B & J Motors as the seller and one Donald Carter as the purchaser of a 1950 four door Chrysler. The motor number stated on the application was C-4861744. Reddington testified the records of B & J Motors did not disclose the sale of an automobile of that description to Donald Carter or anyone else, and further, that he could not recognize the purported signature of the seller.

The proof further disclosed that Orville Millenacker purchased a 1950 four door Chrysler, Motor No. C-4861744, from the defendant McGowan to whom he paid cash in the sum of $500 and turned over a check for $1300 payable to Shelly Motor Co. Proof further showed that defendant Wheeler endorsed the $1300 check. Defendant's own proof showed that defendant Wheeler owned a used car business operated under the name of Shelly Motor Co., and that defendant McGowan operated same for him on a commission basis.

Because the evidence clearly supports the judgment of conviction on Count 2, detailed evidence need not be stated as to the proofs supporting Count 3 (1950 Pontiac) and Count 4 (1950 DeSoto). Suffice to say, in each case it was proved that the described automobiles were stolen, and that the public numbers had been changed. Proof was then made as to the secret number of each automobile, that sales thereof were made by the defendant McGowan in Minnesota and in Iowa, that checks were taken by McGowan payable to Shelly Motor Co. or Shelly Auto Co., and that said checks were cleared in due course through the banks.

As to Count 6, the conspirary charge, it is sufficient to point out that Wheeler testified that he and McGowan were associated in the purchase and sale of the three automobiles described in the indictment, each of which the government proved was stolen, and shortly thereafter said automobiles turned up in Minnesota and Iowa in the possession of the defendant McGowan.

We think the evidence clearly supports the jury's finding of guilt as to each defendant on Counts 2, 3, 4 and 6. We proceed, therefore, to consider the alleged errors. As we have heretofore discussed the testimony of Harkness, no further reference thereto need be made.

We have considered the claims of the defendants that error was committed because of the receipt of incompetent and prejudicial evidence. The principal objection in this category is with reference to the testimony of Leo Reddington and C. William Bladon. Reddington, the bookkeeper of B & J Motors, testified that B & J Motors did not sell a 1950 Chrysler described in the indictment to one Donald Carter. Bladon, the proprietor of Bladon Motors, testified that his Company did not sell a 1950 Pontiac described in the indictment to any one. Bladon also testified that the purported signature on the application for Wisconsin Motor Vehicle Registration under the typewritten words "Bladon Motors" was not the signature of anyone working for him, and that there was no such person as "J. Bladon, Jr.", which name appeared on the registration application.

Defendants contend that neither Reddington's nor Bladon's testimony should have been received because the books and the records of each company were the best evidence as to whether such sales had been made. This objection clearly has no merit as to Bladon's testimony. While he admitted, on cross examination, that he had examined the books and records of his Company about a week ...

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