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United States v. Dallas Ray Delay

April 8, 1971

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DALLAS RAY DELAY, DEFENDANT-APPELLANT



Swygert, Chief Judge, Knoch, Senior Circuit Judge, and Kerner, Circuit Judge.

Author: Kerner

KERNER, Circuit Judge.

The defendant-appellant, Dallas Ray Delay, was tried by a jury for selling a Pontiac GTO and Chevrolet Camaro which were moving in interstate commerce, knowing them to have been stolen, and of conspiring with a co-defendant, and others, to transport and sell the previously mentioned Camaro. All nine counts of the indictment constituted violations of 18 U.S.C. ยงยง 2312 and 2313. Counts I through IV concerned the codefendant Rogers, to which he pled guilty; Counts V through IX concerned Delay, to which he pled not guilty.

Delay moved for judgment of acquittal at the close of the government's case and the court reserved its ruling. At the conclusion of all the evidence, Delay again moved for judgment of acquittal, and the court also reserved the ruling. The jury returned its verdict finding defendant guilty on Count VI, selling of a 1968 Camaro; guilty on Count VIII, selling of a 1967 Pontiac GTO; and guilty on Count IX, conspiracy. Defendant was found not guilty on Counts V and VII, the transportation counts. All motions previously filed were overruled, as well as the post trial motions for acquittal notwithstanding the verdict and motion for new trial. Judgment was entered on the verdicts and Delay was sentenced to concurrent five-year prison terms on each of the Counts, VI, VIII and IX. Defendant appeals, arguing that there is not substantial evidence in the record to support these convictions. We agree.

I.

Viewing the facts in a light most favorable to the government (Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942), it was proved that a 1968 Chevrolet Camaro was stolen in Missouri, and that Delay's co-defendant had purchased a similar, wrecked Camaro on the previous day. A 1968 Camaro, bearing the serial number of the wrecked Camaro but possessing the hidden identification of the stolen Camaro, was later sold at the Indianapolis Auto Auction in Indianapolis, Indiana. A check was then issued by the Auction to one Boyd Slusher for payment of the Camaro and a Chevrolet Malibu.*fn1 The defendant endorsed "Boyd Slusher"*fn2 and his own name on that check.

The evidence in regard to the 1967 Pontiac GTO is similar except that the defendant endorsed only "Boyd Slusher" and "Slusher Auto Sales" on the check issued by the Auction and that the hidden identification number was not shown to be the same as the stolen Pontias GTO.

The only evidence in the record which connects Delay to his co-defendant, Donald Rogers, is the following testimony by Boyd Slusher:

Q: Do you recall the date you observed Mr. Delay and Rogers, in Mr. Rogers shop?

A: No, I don't.

Q: Recall the approximate date?

A: No.

Q: Was it in the last ...


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