Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 83 CR 27 -- Michael S. Kanne, Judge.
Before BAUER, EDWARDS,*fn* and ESCHBACH, Circuit Judges.
ESCHBACH, Circuit Judge. Daniel Bonnets was convicted of transporting, storing, and concealing stolen motor vehicles in violation of 18 U.S.C. §§ 2312 and 2313. On appeal, he challenges the use of a jury instruction concerning the permissible inference from possession of recently stolen property and the sufficiency of the evidence. Finding no error, we affirm.
On March 14, 1982, Donald Basista, an Indiana police officer, photographed several automobiles parked in front of defendant's home in Gary, Indiana. Basista checked the license plates on the cars and determined that the Illinois license plates on a 1979 Ford Thunderbird were registered to the defendant's 1968 Cadillac. Basista took no further action at that time, but returned in November 1982. The Thunderbird was still parked in front of defendant's house, as was a 1981 Pontiac. Basista determined that the Pontiac had been reported stolen three days earlier in Chicago, and contacted the FBI. An FBI agent confirmed that the Pontiac had indeed been reported stolen, and attempted to check the vehicle identification number ("VIN") on the Thunderbird. The public VIN (located on the car's dashboard) was obscured by papers, so the agent copied the VIN located inside the door on the driver's side of the car and determined that the Thunderbird was also stolen.
The cars were impounded and processed for evidence. Examination of the cars revealed that the public VIN had been removed from the Thunderbird's dashboard and the driver's door lock on the Pontiac had been pulled. Photographic negatives found in the Thunderbird were processed and produced pictures of Bonnetts' wife and children. No fingerprints identifiable as the defendant's were found in the cars.
In the interim between the visits to the defendant's home, Bernard Stahl, a Chicago police officer, observed a tow truck pulling a Ford Bronco driving in the direction of Indiana on the Chicago Skyway. Both the tow truck and the Bronco bore Illinois license plates, and Stahl thought it unusual that they should be traveling to Indiana. He radioed the Bronco's license number to the police dispatcher but was told that the Bronco had not been reported stolen. Soon after Stahl exited from the Skyway, however, the dispatcher radioed that the Bronco had been reported stolen. Stahl got back on the Skyway and stopped the tow truck, which was being driven by the defendant, one mile inside Indiana. When the defendant stated that he had no papers authorizing the tow, he was arrested. An examination of the Bronco by its owner revealed that the ignition lock had been broken.
Bonnetts was charged in a four-count indictment with transporting the stolen Bronco in interstate commerce, 18 U.S.C. § 2312 (Count I), storing the stolen Pontiac, 18 U.S.C. § 2313 (Count II), storing the stolen Thunderbird, 18 U.S.C. § 2313 (Count III) and concealing the Thunderbird, 18 U.S.C. § 2313 (Count IV). Bonnetts' primary defense at trial was that he lacked knowledge that the automobiles were stolen because he had received them in the course of his employment with R & R Auto Repair ("R & R") in Chicago. R & R's secretary testified that the Thunderbird had been brought to the defendant at R & R by a man she identified as "Mike" for a paint job. Thereafter, the defendant told her to give the car to his wife to drive, and she complied. The secretary also testified that she had received a tow request for the Bronco from a man identified as "Mike" and had dispatched Bonnetts to tow the truck.
Bonnetts was convicted by a jury of Counts I, III, and IV, and acquitted of Count II. The government moved to dismiss Count III at sentencing, and the defendant was sentenced to five years imprisonment on Count I and a consecutive three years imprisonment on Count IV.
In order to sustain its burden of establishing the defendant's guilt under 18 U.S.C. §§ 2312 and 2313, the government was required to prove that the defendant knew the Bronco and Thunderbird were stolen. United States v. Madison, 689 F.2d 1300, 1312 (7th Cir. 1982) (§ 2312 -- transporting), cert. denied, 459 U.S. 1117, 103 S. Ct. 754, 74 L. Ed. 2d 971 (1983); United States v. Thomas, 676 F.2d 239, 242 (7th Cir. 1980) (§ 2313 -- concealing), cert. denied, 450 U.S. 931, 67 L. Ed. 2d 364, 101 S. Ct. 1392 (1981). The Bronco was recovered from the defendant within hours of being reported stolen and the Thunderbird was first delivered to R & R three weeks after its theft. Accordingly, the trial judge instructed the jury that it might infer the defendant's knowledge that the cars were stolen from the defendant's unexplained possession of recently stolen property.
The defendant takes issue with the instruction, arguing that it was erroneous as given and that in any event it was not warranted by the facts of this case. We will examine these arguments in turn.
A. Contents of Instruction
The instruction given in this case was taken almost verbatim from the instruction on the permissible inference from possession of recently stolen property approved for use in this circuit. See II Fed. Crim. Jury Instructions of the 7th Cir. at (1984). The defendant does not argue that any part of the instruction incorrectly states the law.*fn1 Rather, he argues that such an instruction is only correct if it contains an explicit statement that the jury is never required to draw the inference.*fn2 Without such a statement, the defendant reasons, a jury might believe that it is required ...