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United States v. Miller

decided: December 18, 1974.


Appeal from the United States District Court for the Eastern District of Illinois - No. 73 39 E Judge James L. Freman, Presiding.

Pell, Circuit Judge, Campbell and Steckler, District Judges.*fn*

Author: Campbell

CAMPBELL, Senior District Judge.

Defendants Davis, Miller and Jordan were named as co-defendants in Counts I, III and V of a six count indictment charging violations of the Dyer Act and conspiracy to violate the Dyer Act. Counts I and III charged violations of 18 U.S.C. § 2312 and § 2313, respectively, alleging that defendants had transported a certain 1963 Chevrolet in interstate commerce, knowing the vehicle to have been stolen, in violation of § 2312, and alleging that defendants concealed or disposed of the same vehicle in violation of § 2313. Count V charged that defendants, in violation of 18 U.S.C. § 371, conspired to transport the vehicle in interstate commerce.

Counts II, IV and VI charged defendant Miller with similar violations of §§ 2312, 2313 and 371, respectively, the vehicle in question being identified as a Ford Pinto belonging to Thomas Locke.

Defendants were convicted after a jury trial on all six counts. Their appeals have been consolidated for the purposes of briefing, oral argument and decision. The issues raised by Defendants Miller and Davis are identical. In addition to these issues, Jordan asserts that he was denied the effective assistance of counsel because his attorney was appointed only two days prior to trial, and further that he was denied a fair trial by virtue of the district court's refusal to grant his motion for severance.

We affirm the convictions of Miller and Davis and reverse the conviction of Jordan.

The evidence showed that both vehicles were stolen and transported across state lines. Verlanda Barnes, after being granted immunity by the government, testified as a government witness. Her testimony disclosed that on January 26, 1973, she, Fronie Mae Evans and the appellants left Memphis, Tennessee in the Chevrolet referred to in Counts I, III and V, and that everyone in the car knew the vehicle had been stolen. She stated that the evening prior to their journey, the defendants had agreed to drive the Chevrolet to Illinois for the express purpose of robbing a certain bank.

Barnes, Illinois State Police Officers Schrader and Mitchell, and a tow truck operator by the name of Bielong testified regarding the events that transpired after the Chevrolet arrived in Ashley, Illinois. According to their testimony, the Chevrolet was observed by Officer Schrader as it pulled into the driveway of the Ashley Motel and became stuck in the mud. Shortly thereafter, Bielong and Officer Mitchell arrived at the scene. In the interim, Jordan left the car and walked toward the Ashley Motel.

At this point, Davis pointed a gun at Mitchell, and Miller disarmed the two policemen. Evans, Barnes and Miller then departed the area in Schrader's police car. Mitchell was placed in the trunk of the other police car, and Schrader and Bielong were ordered by Davis to drive that vehicle west on U.S. Route 460.

Barnes testified that the police car in which she, Evans and Miller were riding slid off the road and into a ditch a few miles outside of Ashley. When Thomas Locke and his wife, driving their Ford Pinto, observed the police car in the ditch, Mr. Locke stopped his car to offer assistance. Miller pointed two guns at Locke and ordered him and his wife to exit their vehicle. Barnes, Evans and Miller then drove off in the Pinto in the direction of St. Louis. According to Barnes, they eventually returned to Memphis, kept the Pinto for a few days and disposed of it after attempting to wipe off their finger prints.

The Pinto was eventually recovered by FBI agents in Memphis, as was certain personal property belonging to Mrs. Locke which had been left in the Pinto at the time it was stolen by Barnes, Evans and Miller.

Officer Schrader testified that after Mitchell had been placed in the trunk of the second police vehicle, Schrader was ordered to drive west on U.S. Route 460. A few miles outside of Ashley, they came upon Schrader's police car and Mr. and Mrs. Locke, who stated that their car had been stolen at gun point. The second police vehicle was then driven for an additional one and three-fourths hours in an effort to avoid road blocks, and after a high speed chase, Davis was apprehended.

In addition to the foregoing, evidence was introduced over defendants' objection that Davis had threatened to kill Officers Schrader and Mitchell after disarming them, and that ammunition was found in Barnes' Memphis apartment after her arrest. Evidence was also ...

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