Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 73 CR 838 Richard B. Austin, Judge.
Hastings, Senior Judge, and Swygert and Stevens, Circuit Judges. Swygert, Circuit Judge, dissenting in Part.
Appellant participated in three purchases of stolen Cadillacs. A jury found him guilty on three substantive counts charging violations of the Dyer Act and on a conspiracy count charging that he and six other defendants were members of a single conspiracy to dispose of stolen motor vehicles moving in interstate commerce.*fn1 On the conspiracy count the government's proof fell far short of its charge since the evidence linked appellant to only one of his co-defendants and placed the others in what we must assume to have been an entirely separate conspiracy. Inasmuch as the consequences of the variance were not adequately explained to the jury, the principal question on appeal is whether the error requires reversal. In addition, appellant challenges both the admissibility and the sufficiency of evidence of his knowledge that the Cadillacs were stolen, and criticizes the instructions to the jury.
The evidence which was admissible against appellant related to three stolen Cadillacs. Appellant acquired one for his own use in November, 1970, and sold the other two to Vincent Maltese in December, 1970, and January, 1971, respectively. One digit of the registration number of all three cars had been altered by the same tool; the application for an Illinois title for each car was supported by a false New York registration. Maltese paid a bargain price for both cars as measured by the wholesale and retail values listed in the "Red Book" published by National Market Reports.*fn2
A government agent testified that appellant told him that all three Cadillacs had been obtained from John Dennis, a name which appeared on one of the New York title registrations. Maltese testified that defendant Altvare was present when he purchased one car from appellant and that appellant had introduced Altvare "as being the man that he got the car from."*fn3
This evidence was sufficient to prove that appellant knew the Cadillacs were stolen. We reject appellant's argument that the testimony about "Red Book" values was inadmissible hearsay.*fn4 We also reject the argument that the jury was erroneously permitted to rely on appellant's possession of recently stolen property as a circumstance from which it might infer that he knew the property had been stolen.*fn5 It is true, as appellant argues, that the record contains an "explanation" of his possession,*fn6 but the law does not require the jury to credit his explanation or to accept it as satisfactory.*fn7
The findings of guilt on the three substantive counts are supported by the record.*fn8
We may assume that the evidence which we summarized above would be sufficient to support a finding that appellant conspired with defendant Altvare to violate the Dyer Act. Plainly, however, it did not prove that appellant participated in a conspiracy with any of the other five co-defendants, or in the separate conspiracy between Altvare and those other defendants. Most of the government's evidence related to activities of Altvare, who, in cooperation with other defendants, disposed, or attempted to dispose, of five Cadillacs and a Buick through the so-called A&J used car lot. There is no evidence that appellant had any connection with any of those six vehicles or with the A&J lot. The two operators of that lot pleaded guilty and testified for the government. Their testimony related entirely to activities of Altvare and other co-defendants. Neither they, nor any other witness, implicated appellant in the sales made through A&J or gave any testimony implying that appellant knew about the A&J activities or that the A&J participants (other than Altvare) ever heard about appellant, let alone knew of his business transactions with Maltese and Altvare. We therefore agree without reservation with appellant's argument that the evidence was insufficient to establish his participation in the single overall conspiracy charged in the indictment.*fn9
It necessarily follows that appellant was entitled to have the jury instructed that evidence which related only to the A&J transactions was not admissible against him.*fn10 It was plain error to fail to give such an instruction. Moreover, in the absence of such an instruction, we cannot possibly be sure that the jury's verdict on the conspiracy count was unaffected by that evidence.*fn11 Both the quality and the character of that evidence unquestionably increased the likelihood that the jury would find appellant guilty of conspiracy with Altvare.*fn12 For, under the court's instructions, the jury may have inferred that appellant and the A&J defendants were members of the same conspiracy simply because they both obtained stolen Cadillacs from Altvare. With the A&J evidence excluded, the jury might not even have been persuaded beyond a reasonable doubt that Altvare was the source of appellant's contraband.
Nevertheless, for two reasons the government argues that reversal is not required. First, relying on Berger v. United States, 295 U.S. 78, 79 L. Ed. 1314, 55 S. Ct. 629, the government contends that a variance involving only two conspiracies instead of one is not fatal, at least if the facts are so well defined that there is little or no risk of confusing the jury. Second, since appellant objected to an instruction proposed by the government which, if it had been given, would have allowed the jury to disregard the A&J evidence if it found two separate conspiracies, the government claims that the error was waived. Neither argument is persuasive.
Of course, every variance is not fatal. In Berger the Court held that proof of two conspiracies instead of one was harmless, and in Kotteakos the Court held that proof of eight conspiracies instead of one was prejudicial. It is not correct, however, to interpret these cases as requiring the question of prejudice to be answered simply by counting the number of conspiracies proved. For it is clear that there are cases in which a variance involving only two conspiracies is sufficiently prejudicial to require reversal,*fn13 and it is equally clear that the adequacy of the trial judge's instructions are of critical importance in evaluating the likelihood of confusion or prejudice. In Blumenthal v. United States, 332 U.S. 539, 92 L. Ed. 154, 68 S. Ct. 248, for example, the Court's determination of no prejudice in a case arguably involving two conspiracies relied heavily on the assumption that the jury faithfully followed the Court's direction not to consider the admissions of Goldsmith and Weiss when passing on the guilt or innocence of Blumenthal, Feigenbaum and Abel.*fn14 The Court plainly stated, however, that a failure to instruct the jury to disregard the evidence which was not admissible against Blumenthal, Feigenbaum and Abel would have required reversal as to them.*fn15 We think the failure in this case to instruct the jury to disregard the evidence concerning Altvare's activities with other defendants, summarized in our quotation from the government brief in n. 12, supra, likewise requires reversal of appellant's conspiracy conviction. The Supreme Court's analysis of the prejudice question in both Kotteakos and Blumenthal forecloses an interpretation of Berger that would treat every two-conspiracy variance as harmless error.
Nor do we believe that the fact that appellant objected to the two-conspiracy instruction tendered by the government constitutes a waiver of this plain error. The proposed instruction was not adequate because it would have permitted the jury to consider the A&J evidence admissible against appellant if the jury found one single overall conspiracy.*fn16 But there was not sufficient evidence in the record to justify a finding of a single conspiracy, and, therefore, the court should have told the jury unequivocally that the evidence relating to the A&J lot was not to be considered against appellant. Moreover, appellant's counsel did repeatedly argue that the record disclosed two conspiracies instead of one, and that appellant was therefore entitled to an acquittal as a matter of law. Although counsel was asking for too much, the fact that he vigorously brought the variance to the court's attention forecloses a holding that appellant has waived the plain error disclosed by the record.
We conclude that the judgment on the conspiracy count must be set aside. We are not persuaded, however, that this error tainted the verdict on the substantive counts. The defect in the conspiracy conviction does not affect the joinder of substantive counts, see Schaffer v. United States, 362 U.S. 511, 4 L. Ed. 2d 921, 80 S. Ct. 945; the evidence pertaining to the A&J lot was therefore properly before the jury. That evidence was relevant to the charges against appellant only to the extent that it shed light on Altvare's status as the probable source of the stolen cars. Altvare's status was of critical importance in the conspiracy count because he was the only defendant with whom appellant even arguably might have conspired. But Altvare's status was a matter of indifference in connection with the proof of appellant's guilt on the substantive counts. For there was ample proof that appellant knew the Cadillacs were stolen, regardless of whether or not Altvare played any significant part in appellant's purchases. Indeed, Altvare was not even named as a defendant in two of the substantive counts against appellant, and with respect to the ...