Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. H CR 78-73 -- Phil M. McNagny, Jr., Judge.
Before Castle, Senior Circuit Judge, and Sprecher and Wood, Circuit Judges.
The defendants-appellants appeal their convictions for violations of 18 U.S.C. § 2313.*fn1 They attack the convictions for various reasons including, inter alia, the sufficiency of the evidence, admission of prejudicial evidence, and the district court's refusal to suppress evidence seized by government agents. We find these contentions to be generally without merit and affirm all of the convictions except for that of Robert White on Count II of the indictment.
In July, 1977 Eugene Klisiak, a former policeman, leased a warehouse in Hammond, Indiana to defendant Wendell Thomas. In April, 1978, while attempting to collect the rent from Thomas, Klisiak noticed Thomas and two other men cutting apart an automobile. Klisiak then notified authorities and FBI agents began surveillance of the warehouse on May 25. Between May 25 and June 8 agents observed the defendants driving several stolen cars into the warehouse. On June 8 the agents executed a search warrant for the warehouse and found engine blocks, transmissions, other auto parts, tools, and one partially disassembled car. The auto parts found were identified as having been taken from thirteen different automobiles, including the autos which agents witnessed being driven into the warehouse. Each of the defendants was subsequently charged with eleven counts of violating 18 U.S.C. § 2313, each count representing a different stolen auto.
The defendants were tried jointly. Before the start of the trial the district court granted the Government's motion to dismiss Count VII of the indictment. Following the conclusion of the Government's case, the trial court dismissed Count VI. The dismissal of Count VI was based on the government's failure to produce the owner of the vehicle upon which the count was based and the resulting failure to prove that the vehicle was indeed stolen. The jury then convicted all four defendants on eight of the remaining nine counts and acquitted them on Count III. The acquittal was apparently based on the failure of the FBI agents to recover any parts traceable to that car from the warehouse. The district court then sentenced the defendants for their convictions on Counts I, II and IV and granted defense motions for acquittal on Counts V and VIII through XI.
All four defendants attack the sufficiency of the government's evidence. Maddox, Roberts and Thomas challenge the sufficiency on all three counts for which they were convicted, while White only contests the sufficiency of the evidence against him on Count II. We find that White's claim is the only valid one raised.
The claims raised by Thomas, Maddox and Roberts are generalized attacks on the Government's evidence. These attacks, however, overlook the evidence presented at trial. The warehouse in which the stolen cars were taken apart was leased to Thomas. Each of these defendants spent varying amounts of time in the warehouse on the days that the three cars in question arrived. Although White drove the car upon which Count I is based (a 1977 Pontiac), Thomas and Roberts accompanied the car into the warehouse and Thomas then closed the door. Maddox arrived later that day. Agents eventually recovered the engine block and transmission of the Pontiac. Similar evidence was presented on Count II. Roberts drove the car (a 1976 Cadillac) to the warehouse. Maddox arrived with Roberts (in a separate car) and accompanied the Cadillac into the warehouse. Thomas arrived soon thereafter and all three then stayed in the warehouse for several hours. Agents recovered the Cadillac's transmission and engine during their search. The car upon which Count IV is based (a 1978 Mercury) was also driven by White. Maddox arrived contemporaneously, in a separate car. All four defendants were in the warehouse during the course of the day and at 3:00 P.M. agents, executing the search warrant, found the Mercury partially disassembled.
In reviewing the sufficiency of the evidence we must determine whether, viewing the evidence in the light most favorable to the Government, there is substantial evidence to support the verdict. United States v. Castenada, 555 F.2d 605, 608 (7th Cir.), cert. denied, 434 U.S. 847, 98 S. Ct. 152, 54 L. Ed. 2d 113 (1977). We conclude that there was sufficient evidence presented to support the verdict against Thomas, Maddox, and Roberts for each of the three counts in question. The Government, to prove a violation of Section 2313, must demonstrate that "(1) the motor vehicle involved was stolen; (2) the defendant knew that the motor vehicle had been stolen; (3) the defendant concealed (or stored or received) the motor vehicle; (4) the motor vehicle involved was moving in interstate traffic at the time of the defendant's activities." United States v. Brady, 425 F.2d 309, 311 (8th Cir. 1970). All three cars in question were registered and owned in Illinois, were taken from Illinois without their owners' permission, and arrived at the warehouse within two days of their theft. Thus, the Government had no difficulty in proving the first and fourth elements of a Section 2313 violation. Moreover, the jury could properly conclude beyond a reasonable doubt that the second and third elements were proven. The jury was properly instructed that the unexplained possession of recently stolen property is a proper basis for inferring knowledge that the property is stolen. The jury was also given instructions on joint and constructive possession and on aiding and abetting. The evidence presented, coupled with these instructions, more than adequately supports the jury's findings as to each defendant for each of the three counts in question. See United States v. Wisniewski, 478 F.2d 274 (2d Cir. 1973); United States v. Stanley, 433 F.2d 637 (5th Cir. 1970). Accordingly, the attacks by Thomas, Maddox and Roberts against the sufficiency of the evidence are without merit.
White's claim differs from those of Maddox, Thomas, and Roberts. Although he drove the cars involved in Counts I and IV, White was not seen either in or near the warehouse on the day that the car involved in Count II arrived (May 31). His total absence on this day strains the Government's claim of joint and constructive possession too far. The contrast between White's activity relating to Counts I and IV and his absence from the warehouse on May 31 serves to highlight the weakness of the case against him on ...