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United States v. Pichany

decided: December 19, 1973.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOHN CLIFTON PICHANY, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Eastern District of Illinois. No. 72-61-D HENRY S. WISE, Judge.

Hastings, Senior Circuit Judge, and Cummings and Sprecher, Circuit Judges.

Author: Hastings

HASTINGS, Senior Circuit Judge.

Appellant John Clifton Pichany was convicted after a jury trial on three counts of receiving and concealing stolen motor vehicles moving as interstate commerce, in violation of Title 18, U.S.C. § 2313; and on one count of receiving and concealing stolen goods having a value in excess of $5,000 which were moving as, or which were part of, or which constituted interstate commerce, in violation of Title 18, U.S.C. § 2315.

The four counts correspond to four vehicles discovered on appellant's premises near Momence, Illinois, on July 15, 1972, by Illinois State Police Officers and Kankakee County Sheriff's Deputies who were searching the property pursuant to a search warrant. The vehicles specified in the § 2313 counts (Counts V, VI and VII of the indictment) were a 1971 International Tractor, a 1972 Chevrolet truck and a 1971 Champion Motor Home. The subject of the § 2315 count (Count IV) was a 1971 Tempte Refrigeration Trailer. Counts I, II, III and VIII of the indictment were dismissed on the Government's motion prior to trial. Appellant was sentenced to concurrent terms of five years imprisonment on Counts IV, V and VI; on Count VII, appellant was placed on probation for a period of two years, such period to run consecutively to the five years imprisonment.

On appeal appellant claims that the Government did not prove the elements of a § 2313 or § 2315 violation and thus his timely filed motions for judgment of acquittal and for a new trial were erroneously denied. More specifically, he argues that the Government introduced no evidence that the vehicles were concealed, that appellant knew the vehicles were stolen, or that the vehicles were moving as interstate commerce. Appellant does not contest the evidence that the vehicles were in fact stolen. Appellant also argues that he was denied a fair trial because the trial court did not on its own motion strike certain allegedly prejudicial testimony by a government witness.

I. CONCEALMENT

When discovered on appellant's premises, each of the four vehicles was in plain view. Appellant relies on this fact as conclusively demonstrating that there was no concealment of the vehicles and, hence, no violation of §§ 2313 and 2315.

Such contention is without merit. Concealment is not limited to the hiding away of an entire vehicle. There was substantial evidence that appellant had obtained Alabama license plates for the vehicles, from which a jury might conclude that the vehicles were being concealed. See United States v. Brady, 8 Cir., 425 F.2d 309, 312 (1970); Babb v. United States, 8 Cir., 351 F.2d 863, 864-65 (1965); Phillips v. United States, 10 Cir., 206 F.2d 923 (1953). The jury might also have found concealment from evidence that vehicle identification numbers on the tractor, trailer and motor home had been obliterated or altered. Donaldson v. United States, 7 Cir., 82 F.2d 680, 681 (1936).

II. KNOWLEDGE OF THEFT

Both § 2313 and § 2315 require that the accused have knowledge that the vehicle or goods are stolen. There is substantial evidence in the record from which a jury could conclude that appellant possessed such knowledge with respect to each vehicle charged in the indictment.

As mentioned above, identification numbers were altered on three of the vehicles (the tractor, trailer and motor home). These alterations were obvious to anyone inspecting the numbers. Appellant listed altered or completely false numbers on his applications for Alabama license plates for the three vehicles. In addition, the ignition on the fourth vehicle (the truck) and on the motor home were punched out and hot wired. A jury might reasonably regard the condition of the ignitions both as incapable of escaping notice and as engendering doubts regarding ownership. An accumulation of circumstantial evidence can without more support a jury's finding that a defendant knew a vehicle which he possessed was in fact stolen. See, e.g., United States v. Briddle, 8 Cir., 430 F.2d 1335, 1338 (1970).

In addition, direct evidence on the knowledge issue was supplied by the testimony of Arnold Kuta, an F.B.I. agent who interviewed appellant on July 18, 1972. In the course of that interview, prior to which appellant was fully advised of his rights, Kuta asked appellant whether he knew that the vehicles named in the present indictment were stolen. Appellant answered, "I am not going to say I didn't know they was stolen."

Appellant argues that the trial court committed reversible error in permitting agent Kuta to so testify.*fn1 In support of this contention, appellant argues first, that the statement is "patently ambiguous" in that, by a mere pause after the word "say," the sentence becomes, "I am not going to say. I didn't know they was stolen." Thus transformed, the statement becomes a denial rather than an admission of the element of knowledge. Second, appellant argues that oral admissions cannot be ...


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