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United States v. Kidding

decided: July 20, 1977.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOSEPH KIDDING AND EARL BROWN, DEFENDANTS-APPELLANTS



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 75-CR-746 - John F. Grady, Judge.

Fairchild, Chief Judge, Cummings, Circuit Judge, and A. Sherman Christensen, Senior District Judge.*fn*

Author: Fairchild

FAIRCHILD, Chief Judge.

Defendants Joseph Kidding and Earl Brown appeal their convictions under 18 U.S.C. §§ 2313 and 2315. 18 U.S.C. § 2313 provides:

Whoever receives, conceals, stores, barters, sells or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

18 U.S.C. § 2315 provides in pertinent part:

Whoever receives, conceals, stores, barters, sells, or disposes of any goods, wares, or merchandise, securities, or money of the value of $5,000 or more, or pledges or accepts as security for a loan any goods, wares, or merchandise, or securities, of the value of $500 or more, moving as, or which are a part of, or which constitute interstate or foreign commerce, knowing the same to have been stolen, unlawfully converted or taken . . . Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

We affirm the convictions.

I. The Nature of Defendants' Offense

Defendants Earl Brown, a/k/a Earl Trent, and his half-brother Joseph Kidding, were charged in a two-count indictment with having received, concealed and stored (1) a stolen tractor moving in interstate commerce, and (2) a stolen trailer, worth more than $5,000, moving in interstate commerce.

The 1974 Peterbilt tractor and 1973 Timpte trailer in question belonged to Allen J. Herink of Pewaukee, Wisconsin. On November 1, 1974, Mr. Herink left the tractor-trailer with the Peterbilt-Timpte Truck Service Company in Waukesha, Wisconsin for servicing. Sometime late on November 11, 1974, or early on November 12th, the Service Company was broken into and the tractor-trailer stolen. Phone company records show that at 11:08 p. m. on November 11, 1974 a telephone call was made from the Chicago home of Joseph Kidding to the Peterbilt-Timpte Service Company.

On November 13, 1974, Earl Brown brought the stolen tractor-trailer to the Artco Trailer Repair Shop in Chicago. Mrs. Genola Veal, the wife of the shop's owner, later made an in-court identification of Earl Brown as the man who had brought the tractor-trailer into the shop to have it repainted. Mrs. Veal wrote out a work order which provided for brown stripes to be painted on the white trailer. Brown returned to the Artco shop that same day, accompanied by a man who claimed to be the owner of the tractor-trailer. They discussed the work to be done on the vehicle with Arthur Veal, Sr., the shop's owner, and Arthur Veal, Jr. At trial, Arthur Veal, Jr. would identify the purported "owner" of the tractor-trailer as Joseph Kidding. Though at trial Mrs. Veal could not positively identify Joseph Kidding as the individual who accompanied Earl Brown to the shop on his second trip, she did recall that the individual's name was "Joe" and that he was missing front teeth. The record indicates that defendant, Joseph Kidding, was missing front teeth. Arthur Veal, Sr. did not testify at trial because he was in jail for receiving and altering stolen tractors and trailers for resale in a different case.

Brown and Kidding and Brown's wife, Barbara, returned to the Artco shop several times in the next few weeks. It was decided during this time that the whole trailer should be painted brown with white stripes instead of merely adding brown stripes as originally ordered.

On November 27, 1974, federal and state authorities recovered the tractor-trailer from the Artco shop. The fingerprints of Earl and Barbara Brown were found on a temporary Indiana license located in the tractor. FBI agents took pictures of the tractor-trailer, which had by this time been repainted. At this time agents also showed photographs of the defendants to Mrs. Veal and Arthur Veal, Jr. They both identified Earl Brown as the man who had brought the tractor-trailer into their shop and ordered it repainted. Though Arthur Veal, Jr. simultaneously identified a photograph of Joseph Kidding as that of the man who claimed to own the tractor-trailer, it was not until June 23, 1976 that Mrs. Veal identified the picture of Kidding as that of the man who accompanied Earl Brown to the Artco shop.

On November 25, 1975, Joseph Kidding was indicted. Trial counsel was appointed on December 22, 1975. Shortly thereafter counsel, pursuant to Rule 2.04 of the Local Rules of Criminal Procedure and Rule 16(a)(1)(C) of the Fed.R.Crim. P., requested discovery material from the government.

Some months later, Earl Brown was also indicted. Trial counsel was appointed on May 24, 1976. On May 26, 1976, counsel was allowed to withdraw and leave was granted for the attorney representing Joseph Kidding also to represent Earl Brown. Counsel again requested discovery of the government.

At a bench trial, defendants were found guilty of both counts of the indictment. They were sentenced to serve three years incarceration on Count I and a consecutive three year term on Count II. The sentence on Count II was suspended and a five-year period of probation imposed to begin at the expiration of the sentence imposed in Count I.

II. Joint Claim That There Was Only One Offense

Defendants both challenge their convictions under 18 U.S.C. § 2315 on the grounds that such convictions are in fact duplicative of their convictions under 18 U.S.C. § 2313. The government has charged defendants with two violations because it has treated the tractor stolen as a "vehicle," the receipt or concealment of which is prohibited by section 2313, and the trailer stolen as a "good," the receipt or concealment of which is prohibited by section 2315. Defendants argue that since the tractor and trailer were hooked together as part of a single unit before the theft, the "vehicle" for purposes of the 2313 count should be the tractor-trailer unit. We cannot agree with the defendants.

The government cites us to the Sixth Circuit's decision in United States v. McCoy, 472 F.2d 704 (6th Cir. 1973), as supporting a two-count indictment in the concealment of a tractor-trailer. Admittedly, that case is somewhat different from the one before us. In McCoy, the trailer at issue was the subject of a separate theft from the tractor. See also United States v. Pichany, 490 F.2d 1073 (7th Cir. 1973). In the instant case, there was but one theft, that of a tractor-trailer unit. We note, however, that in the hands of the defendants the tractor-trailer did not remain a unit. Defendant Brown admits in his brief that on his first visit to the Artco Repair ...


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