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United States v. Spivey

decided: March 16, 1988.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ANTHONY SPIVEY, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 86 CR 665-1 -- Charles R. Norgle, Judge.

Bauer, Chief Judge, Ripple and Manion, Circuit Judges.

Author: Bauer

BAUER, Chief Judge.

Anthony Spivey appeals from his convictions for conspiracy to possess and actual possession of goods stolen from an interstate shipment, knowing that the goods were stolen. 18 U.S.C. ยงยง 371, 659. He contends on appeal that the district court violated his sixth amendment right to confront witnesses against him by limiting the cross-examination of his co-conspirator, and that the district court's treatment of his trial counsel deprived him of a fair trial. We reject both claims and affirm Spivey's conviction.

I.

A.

Spivey and Albert "Rick" Crumble were long-time friends. Both men frequented a tavern on Chicago's West Side called "The Karate Club," which was owned by the family of their mutual friends David, Randy, and Tom Johnson. Spivey apparently worked sporadically as a volunteer bouncer at the club. In September, 1984, Crumble was a truck driver for Cargo, Incorporated, a Chicago trucking company.

On Friday, September 21, 1984, Crumble invited Spivey to join him in looking for a trailerload of goods to steal. Spivey accepted the invitation, so Crumble went to work that night, picked up his tractor, then picked up Spivey. After Crumble delivered one load of goods, the two men drove around the Santa Fe rail yard in Chicago looking for a trailer to steal. Finding nothing that suited their fancy, they drove to the Burlington rail yard. There they found an overseas trailer, which Crumble attached to his tractor.

Crumble and Spivey drove the trailer back to Cargo's yard, parked in a secluded spot, and broke the trailer's seal.*fn1 Inside was a thief's dream: Sharp Electronics calculators, turntables, speakers, receivers, and cassette decks. Spivey and Crumble agreed that it was a good load, then began contemplating what to do with it. Spivey contacted a fence of stolen goods, who met with Spivey and Crumble, then left with Spivey to look for another fence, to whom they would offer the load. Alter nothing came of that idea, Spivey and the fence drove to a warehouse to see if they could hide the stolen goods there. The warehouse door was too low for the trailer, however, and they went back to tell Crumble the bad news. Apparently, they left the trailer at Cargo's yard.

On Saturday, September 22, 1984, Crumble went back to work at Cargo, taking Spivey with him. Alter work, the two men went to the Karate Club Lounge, where they told David Johnson and another friend, Pierre Cameron, of their theft, and recruited Johnson and Cameron to help unload the trailer. The four men then returned to Cargo, got the trailer of stolen goods, stole another empty trailer marked "AVAZ" from the yard across the street from Cargo, and began transferring the goods from one trailer to the other. The four men unloaded all of the Sharp stereo equipment and calculators from the overseas trailer until they reached copying equipment. At that point, the men moved the AVAZ trailer, now loaded with the stolen stereo equipment and calculators, to a secluded spot. Next, they loaded David Johnson's truck with some of the stolen goods, which each would try to sell individually.

Late Sunday or early Monday, during the night of September 23 and 24, 1984, Crumble moved the AVAZ trailer, first to a restaurant parking lot in Chicago and then back to the Cargo yard, while David Johnson and Spivey followed in Johnson's pickup. At the Cargo yard, the three men loaded more of the loot into Johnson's truck and departed. Unfortunately for them, another Cargo employee who was waiting for the return of his tractor saw Crumble, Spivey, and Johnson leave in Johnson's pickup.

B.

FBI Agent Thomas Dillon, brought into the investigation by the Chicago police, spoke to Crumble about the theft on September 28, 1984. Crumble denied everything in a lengthy, elaborate statement, all of it lies. On October 4, 1984, the Chicago police arrested Crumble. While in custody, he asked to speak to Agent Dillon. This time Crumble admitted his participation in the theft and gave Dillon the names of several others he said were involved in taking, unloading, and fencing the merchandise. He also agreed to cooperate with the government. In November, 1984, Crumble was indicted on federal charges of theft and conspiracy.*fn2 On March 8, 1985, he pled guilty pursuant to a plea agreement and the court, aware that Crumble was cooperating with the government, gave him a suspended sentence of five years plus five years probation, the first six months to be spent in custody.

Spivey admitted his participation in the theft in a written statement taken by Agent Dillon on February 22, 1985. Spivey's statement was substantially similar to Crumble's confession, except that Spivey said he thought that the theft of the goods and the subsequent transfer into the empty AVAZ container all may have occurred on Saturday (and not Friday) night, September 22, 1984, although he was not sure. Spivey was indicted in September, 1985. At trial, he proffered an alibi defense. Randy Johnson, one of the Johnson brothers testified that Spivey was working at the Karate Club Lounge on Saturday, September 22, 1984. Johnson said he remembered that night because there was a large birthday party held that evening for one of the club's regulars. Thomas Johnson, the club's manager, testified, however, that ...


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