Petition — Neville v. United States

Supreme Court, we |

U.

FILED

sur Ao 1975

In THE

Supreme Court of the United States

Octoser Term, 1974

No. 75-56 ‘

CLARENCE EDWARD NEVILLE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

EDWARD M. GENSON

THEODORE M. BECKER

134 N. LaSalle Street F

Suite 306

Chicago, Illinois 60602

(312) 726-9015

Attorneys for Petitioner

TT AS SS A a SASS

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

PAGE

OPINION BELOW ~ 00 -. eceeeeessneeeeeeee 1

IIS cliislons SencieteenstNheinkincnansqsicincennaceseeccespoceapions _

QUESTIONS PRESENTED 2

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED ..... vs va 4+

STATEMENT OF THE CASE ................2.22.-...2.20--00000 eo

REASONS FOR GRANTING THE WRIT 11

I.

The District Court’s Instruction, Permitting

The Jury To Find Petitioner Guilty Of Trans-

porting Stolen Vehicles [If The “Major Parts” Of

A Stolen Vehicle Were Found To Have Been Com-

bined With Parts Of One Or More Other Legit-

imately Acquired Motor Vehicles Into One Rebuilt

Motor Vehicle, Is Prejudicial Error Where:

(A) The District Court Refused To Define, In

Any Manner, The Term “Major Parts”;

(B) The Instruction, Given The Circumstances

Of This Case, Permitted The Jurors To Con-

vict Petitioner Even If They Believed His

Theory Of Innocence, Because Of The Lack

Of Guidelines As To What Constitutes

“Major Parts” Of A Motor Vehicle;

(C) The Instruction Given In This Case Conflicts

Squarely With The Law Of Other Circuits . 11

ii

II

Petitioner’s Fourth Amendment Rights Were

Violated By A Missouri Highway Patrolman’s

Warrantless Seizure Of Four Trucks Petitioner

Had Consigned To A St.-Louis Auto Auction,

Where:

(A) The Trucks Were Secure In The Possession

Of The Auction, And Were Thereby Effec-

tively Immobilized ;

(B) The Highway Patrolman, Without Any At-

tempt To Obtain Judicial Approval, Seized

The Trucks, Transported Them From The

Auction Premises, Held Them Impounded,

Inspected Them, Invited Numerous Civilians

And Other Law Enforcement Officers To In-

spect Them, Disassembled Parts From Them,

Seratched Paint From Them, Ete., And Sub-

sequently Introduced Evidence Derived From

The Seizure At A Trial On Charges Filed

Ten Months After The Seizure ......................

Il.

‘he Admission, In This Federal Trial, Of Evi-

dence Procured By Illinois State Law Enforcement

Officers Through Illegal Eavesdropping and Wire-

tapping, Violated Petitioner’s Due Process Rights

And The Fourth, Ninth And Tenth Amendments,

Where The Illinois Law Enforcement Officers Com-

mitted A Crime In Procuring The Evidence Con-

trary To Explicit Illinois Statutory Prohibition ..

IV.

Where Possession Of Recently Allegedly Stolen

Property Is Explained, No Instruction Permit-

14

16

iii

ting An Inference Of Knowledge To Be Drawn

From Possession Of Recently Stolen Property

Should Be Given, And The Holding Below Con-

flicts With That Of Other Circuits Concerning

The Constitutional Propriety Of Such An Instruc-

EE EL Ae RO EL? EE OE SORT, CE 17

APPENDICES:

Opinion and Judgment of Court of Appeals

cn hiathiasiiadpinininaiinnainmminiiliiebunbigitidastinitans App. A-la

Order of Court of Appeals Denying Rehear-

ing and En Banc Suggestion ........ App. B-l4a

Order of Court of Appeals Staying Mandate

Pending Application for Certiorari .. App. C-15a

Constitutional and Statutory Provisions In-

WUE . cncasiiiceistlaiectibicteatesinnnteandaidientinn App. D-17a

CITATIONS

Cases

Barnes v. United States, 412 U.S. 837 (1973) 00000000... 18

Cardwell v. Lewis, 417 U.S. 583 (1974) 15

Chambers v. Maroney, 399 U.S. 42 (1970) ... 15

Chimel v. California, 393 U.S. 752 (1969) 0.000 .. 15

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ........ 15

Cooper v. California, 386 U.S. 58 (1967) - 17

Freije v. United States, 386 F.2d 408 (1st Cir. 1967) .... 18

Gilbert v. Minnesota, 254 U.S. 325 (1920) 0. 16

iv

Goodman v. United States, 362 F.2d 965 (D.C. Cir.

BOG) ceccscsscwsinitsciicernsctisinisiimsinsnitiinnmimaaa 18

Lee v. Florida, 392 U.S. 378 (1968) .......2..20....-..-.ec-eeceeeeeee 17

McBoyle v. United States, 283 U.S. 25 (1931) -............... 12

People v. Richardson, 328 N.E.2d 260 (S.C.Tll. 1975) . 16

Rea v. United States, 350 U.S. 214 (1956) -..................- 17

United States v. Bishop, 434 F.2d 1284 (6th Cir. 1970) 12

United States v. Casey, 428 F.2d 229 (5th Cir. 1970)

earemnnesititintssiaitinjatacineniiititidainmana 13, 18

United States v. Lofty, 455 F.2d 506 (4th Cir. 1972) ... 13

United States v. Turley, 352 U.S. 407 (1957) -.............. 12

United States v. Wallace, 254 F. Supp. 653 (E.D. Tenn.

1965), aff’d 361 F.2d 494 (6th Cir. 1966) -.................... 12

United States v. Wooten, 239 F.Supp. 123 (E.D. Tenn.

TTD © wxsiscssisesstticstpesincecsitebiaimain enemas silathaaagediadivenestnaahian 13

Statutes

pS FoR S| RS Sa enon n ene 12

BO UBL. 9 TREE wiccrssstennnrevisiinticnititianciatiniuinisstipiamiii se

SB DERE. 4 SRD 00) cccectcttnetimmnnmaie 16

Re Oe Fee ere TE 16

Illinois Revised Statutes, Chapter 38, § 14-1(b), 142

Cad, BBD cccensermenicemecsssnsdinensintninninnimemiina 16

Missouri Revised Statutes, § 301.390 — 0. 15

Miscellaneous

Senate Report, No. 1097, 90th Cong., 2d Sess., at 98... 17

In Tue

Supreme Court of the United States

Ocroser Term, 1974

No.

CLARENCE EDWARD NEVILLE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The petitioner, Clarence Edward Neville, respectfully

prays that a writ of certiorari issue to review the judgment

and opinion of the United States Court of Appeals for the

Eighth Circuit entered in this proceeding on May 20, 1975.

OPINION BELOW

The opinion of the Court of Appeals, not yet reported,

appears in Appendix A hereto. No opinion was rendered

by the District Court for the Eastern District of Missouri.

—>-

JURISDICTION

The judgment of the Court of Appeals for the Eighth

Circuit was entered on May 20, 1975. A timely petition for

rehearing with en banc suggestion was denied on June 11,

1975, and this petition for certiorari was filed within thirty

days of that date. The Court of Appeals, on June 17, 1975,

entered an order staying the mandate pending application

for certiorari. This Court’s jurisdiction is invoked under

28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether the District Court’s instruction, permitting the

jury to find petitioner guilty of transporting stolen ve-

hicles if the “major parts” of a stolen vehicle were

found to have been combined with parts of one or more

other legitimately acquircd motor vehicles into one re-

built motor vehicle, is prejudicial error where:

(A) The District Court refused to define, in any man-

ner, the term “major parts”;

(B) The instruction, given the circumstances of this

case, permitted the jurors to convict petitioner

even if they believed his theory of innocence, be-

cause of the lack of guidelines as to what consti-

tutes “major parts” of a motor vehicle;

cnliien

(C) The instruction given in this case conflicts square-

ly with the law of other circuits?

Whether petitioner’s fourth amendment rights were vio-

lated by a Missouri highway patrolman’s warrantless

seizure of four trucks petitioner had consigned to a St.

Louis Auto Auction, where:

(A) The trucks were secure in the possession of the

auction, and were thereby effectively immobilized;

(B) The highway patrolman, without any attempt to

obtain judicial approval, seized the trucks, trans-

ported them from the auction premises, held them

impounded, inspected them, invited numerous ci-

vilians and other law enforcement officers to in-

spect them, disassembled parts from them, scratch-

ed paint from them, etc., and subsequently intro-

duced evidence derived from the seizure at a trial

on charges filed ten months after the seizure?

Whether the admission, in this federal trial, of evidence

procured by Illinois state law enforcement officers

through illegal eavesdropping and wiretapping, violated

petitioner’s due process rights and the Fourth, Ninth,

and Tenth Amendments, where the Illinois law enforce-

ment officers committed a crime in procuring the evi-

dence contrary to explicit Illinois statutory prohibition?

Whether, where possession of recently allegedly stolen

property is explained, an instruction permitting an in-

ference of knowledge to be drawn from possession of

recently stolen property should be given, and whether

the holding below conflicts with that of other circuits

concerning the constitutional propriety of such an in-

struction?

~

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED 3

The Fourth, Fifth, Ninth and Tenth Amendments to the

United States Constitution; Title 18, United States Code,

Sections 2311, 2312, 2516(2), 2518(7) and 3231; Illinois

Revised Statutes, Chapter 38, Sections 14-1(b), 142(a)

and 14-4; and Missouri Revised Statutes, Section 301.390

are involved herein and are set forth in Appendix D.

STATEMENT OF THE CASE

A. The Proceedings Below

Petitioner Clarence Edward Neville was indicted on seven

counts in the United States District Court for the East-

err District of Missouri for violations of the Dyer Act,

18 U.S.C. §2312 (1970). Each count concerns a separate

allegedly stolen truck. Following a jury trial, the petitioner

was convicted and sentenced to concurrent terms of five

years in prison on counts 1, 3, 5, 6 and 7; and to five yeare

imprisonment on counts 2 and 4, consecutive to the other

counts but concurrent with each other, for an aggregate of

ten years, and fined $35,000.00. On appeal, because of the

form of sentence, the Court of Appeals considered the suf-

ficiency of evidence only as to Counts 1 and 2.

oe

B. The Evidence

Petitioner owns and operates Neville Auto Sales, a sal-

vage yard and rebuilding operation in Springfield, Illinois,

covering forty-eight acres (Tr. 1186).

Generally, petitioner buys, by check, a wrecked truck

from an insurance pound or other salvage dealers, obtain-

ing title to the salvage truck. Petitioner also purchases vast

quantities of used and salvage parts at bulk sales and

auctions, which comprise his inventory. He then replaces

the wrecked cab, box, bed and front end with used replace-

ments in good condition drawn from his inventory. The

engines, transmissions and major running parts of the

salvage trucks generally are in working order and remain

in the rebuilt trucks, unless replaced from petitioner’s in-

ventory of used parts. Petitioner then paints, cleans and

repairs the rebuilt trucks as required and sells them at

auction or at his own place of business.

Petitioner installs the Vehicle Identification Number

plate of the salvage truck on the door of the replacement

cab, as the major parts correspond to those of the salvage

truck. Accordingly, title to the rebuilt truck is under the

salvage truck’s I.D. number.

It is uneontested that Neville Auto Sales submitted the

seven rebuilt trucks to a Missouri auto auction for sale

to dealers and the public. The three trucks comprising the

last three counts of the indictment were sold at the auction

on March 9, 1973 (Tr. 377).

The four trucks comprising the first four counts of the

indictment were examined at the auction by a Missouri

highway patrolman, seized without warrant, and retained

for inspection over a ten-month period.

a

The proof was similar as to each of the seven trucks. The

evidence presented at trial falls inte three general catego-

ries.

CATEGORY OF PROOF: (1)

Certain non-running, non-:iajor parts of each of

petitioner’s rebuilt trucks were identified by per-

sons who had owned trucks that had been stolen

from them. These witnesses were unable to iden-

tify major, running parts. Petitioner accounted for

the legal acquisition of the major running parts.

These seven prior owners of trucks had been chosen by

state police from law enforcement agency lists of stolen

vehicles (Tr. 487). For all but the Count 2 truck, these

witnesses testified that they had viewed one of the trucks

and were able to identify certain non-running, non-major

parts. They were in each case unable to pict -yt,

ity of running, major parts. Petitioner accounted for the

legal acquisition of the major running parts. [See CAT-

EGORY OF PROOF (III), below.] The Count 2 truck at

no time was viewed by an alleged prior owner (Tr. 495-97,

870). The parts identified and those that remain uniden-

tified as to each truck are as follows:

Truck

Parte identified

Parts Witnesses Testified They

Were Unable to identify

Count 1

Improperly closing door, drill-

ed holes, wiring, left taillight.

smudge on door, child’s hoat

(Tr. 822-23).

Engine, differential, steering

mechanisn, brakes, front sus-

pension, rear end, frame, bum-

per (Tr. 479, 824-34).

Repeinted cab top (Tr. 493-

Engine, frame (Tr. 495-97).

Drilled holes, alternating back-

up lights, tailpipe extension,

horn wire and hole, front seat

stain, a shock absorber, dents

and scratches (Tr. 868-72).

Engine, transmission, .steering

wheel, brake and drum assem-

bly, suspension unit, front end

springs, air conditioner com-

pressor, tires, wheels, frame,

bumper (Tr. 635-40, 877-90).

Count 4

A piece of tape, tailpipe modi-

fication, strip of caulking on

door, paint on bumper, creo-

sote in bed, dents (Tr. 904-07).

Engine, transmission, differen-

tial, steering unit, suspension

unit, front end housing, rear

end, wheel housing, wheels,

tires, frame (Tr. 643-45, 905-

19).

Count 5

Filled dent in hood, drilled

holes, missing seat belt em-

blems, glue on dashboard, hood

discoloration, key for glove

compartment, drug store re-

ceipt (Tr. 922-27).

Engine, differential, steering

wheel, brake drums, springs,

front end assembly, top of the

cab, rear end, wheel housing.

grill work, frame, bumper (Tr.

434-36, 922-46).

Wax under hood, tailgate in-

sulation, wiring on underside

of hood, holes in bed rail,

scratches on tailgate, paint on

dash (Tr. 957-61).

Engine, transmission, differ-

ential, steering wheel, power

steering unit, brake assembly,

power brake unit, front end

assembly, rear springs, rear

end, compressor, wheels, wheel

housing, tires, frame, radio

(Tr. 660-66, 960-73).

Drilled holes in bed and side of

cab, dash and step bumper,

worn spot on hood, wiring on

sunvisor, turned antenna (Tr.

976-88).

Engine, transmission, power

brake unit, brake assembly,

drum housing, brakes, front

end assembly, front springs,

leaf springs, air conditioner,

a tires (Tr. 672-77, 990-

-

Summarizing the above table, certain minor portions or

contents of the cabs and beds’ or modifications thereto

were identified by these government witnesses. None were

able to identify positively any major parts of any of the

trucks. Petitioner accounted for the legal acquisition of the

major running parts.

CATEGORY OF PROOF: (II)

The Government showed certain parts of peti-

tioner’s rebuilt trucks were similar to those of

stolen trucks, but could not positively identify

these parts as stolen.

This was circumstantial evidence, in the form of testi-

mony by the Missouri highway patrolman, concerning sim-

ilar engine sizes, paint colors, models, options and model

years (Tr. 398-402, 454, 463, 476, 480, 493-94, 501-02, 513-

14, 525-29, 535-42, 543-45). None of this evidence was con-

elusive or constituted positive identification.

1 For the information of automotive laymen, as were the jurors,

it might be well to define the terms ‘‘cab’’ and ‘‘bed’’, which were

used frequently at trial. The ‘‘cab’’ is the enclosed compartmen’

on a pick-up truck having a windshield at the front and seats for

the driver. The term ‘‘bed’’ refers primarily in the sense used at

trial to the box on a pick-up truck used for carrying goods.

~~ we

CATEGORY OF PROOF: (III)

Petitioner Neville accounted for the lawful acqui-

sition and use in the rebuilding process of the

major and running parts of each of the seven re-

built trucks.

It was uncontested that petitioner Neville held legal title

to the salvage trucks that constitute the foundations of the

rebuilt trucks. The government itself proved these facts

(Tr. 130, 172, 198, 212-16, 244-46, 251-55, 286-90, 296-305,

319-20, 333-40). 7

Petitioner rebuilt all but the Count 1 truck, which he

took in trade from a party known to him, who he had some

months before helped procure a bank loan on the same

truck (Tr. 1188, 1199-1204). This testimony was corrobo-

rated by the bank’s assistant cashier.

As to each of the Count 2-7 trucks, petitioner explained

his rebuilding process (Tr. 1205-1208, 1224-27, 1238-39,

1241-42, 1243-44, 1244-47).

Petitioner’s inventory of cabs, beds and other used parts

in good condition is acquired primarily through bulk pur-

chases (Tr. 1188-91). Petitioner proved various bulk pur-

chases across the United States in which he had bought

large quantities of salvage truck parts (Tr. 1253-57). Sev-

eral witnesses testified to the extensive quantity of used

parts in inventory at petitioner’s salvage yard (Tr. 1120,

1137, 1142). Witnesses testified they had seen petitioner

rebuild trucks (Tr. 1137, 1148). One witness testified to

having seen petitioner buy four to five hundred salvage

trucks at one auction (Tr. 1156-57), and testified that Ne-

ville Auto Parts is the largest salvage truck dealer in cen-

tral Illinois (Tr. 1157).

—

= SS

C. An Uncorroborated, Impeached Witness

Harold Stewart, a convict whose major source of income

over the past fourteen years has been derived from steal-

ing motor vehicles (Tr. 718), testified that he had partici-

pated with petitioner in alleged uncharged acts concerning

unspecified vehicles (Tr. 721-22). He also claimed to have

knowledge that parts of the Count 1 and Count 3 trucks

were stolen (Tr. 739-40). He was impeached on cross-exam-

ination (Tr. 761-70, 1031, 1045-46, 1050-51, 1055). Petitioner

explicitly denied the truth of Stewart’s testimony (Tr.

1211-21).

D. Eavesdropping Evidence

In rebuttal, over objection, Decatur, Illinois Police Of-

ficer Donald Brooks testified concerning portions of a tele-

phone conversation between petitioner and Stewart. Brooks

had overheard this conversation while in Stewart’s home

on December 2, 1973.

E. The Seizure of Four Trucks

On April 20, 1973, the Missouri highway patrolman seized

and impounded for ten months, without search warrant,

the Counts 1-4 trucks from a Missouri auto auction. He

had inspected them pursuant to the auction’s request, but

had no knowledge they were stolen (Tr. 4-14). He observed

what he thought to be indicators causing him to become

suspicious, but also noted that the vehicle identification

numbers on the trucks matched the titles (Tr. 11-12). He

questioned petitioner, who was present at the auction, and

testified that he did not suspect petitioner of the theft of

the trucks (Tr. 26-27).

~~

REASONS FOR GRANTING THE WRIT

I,

THE DISTRICT COURT’S INSTRUCTION, PERMITTING

THE JURY TO FIND PETITIONER GUILTY OF TRANSPORT-

ING STOLEN VEHICLES IF THE ‘‘MAJOR PARTS’ OF A

STOLEN VEHICLE WERE FOUND TO HAVE BEEN COM-

BINED WITH PARTS OF ONE OR MORE OTHER LEGITI-

MATELY ACQUIRED MOTOR VEHICLES INTO ONE RE-

BUILT MOTOR VEHICLE, IS PREJUDICIAL ERROR WHERE:

(A) THE DISTRICT COURT REFUSED TO DEFINE, IN ANY

MANNER, THE TERM ‘‘MAJOR PARTS’’;

(B) THE INSTRUCTION, GIVEN THE CIRCUMSTANCES OF

THIS CASE, PERMITTED THE JURORS TO CONVICT

PETITIONER EVEN IF THEY BELIEVED HIS THEORY

OF INNOCENCE, BECAUSE OF THE LACK OF GUIDE-

LINES AS TO WHAT CONSTITUTES ‘‘MAJOR PARTS’’

OF A MOTOR VEHICLE;

(C) THE INSTRUCTION GIVEN IN THIS CASE CONFLICTS

SQUARELY WITH THE LAW OF OTHER CIRCUITS.

As a result of the refusal of the District Court to define

“major parts” in any manner (Tr. 1231, 1417), in the cir-

cumstances of this case, the law, in effect, was whatever

the jury decided it to be. The jurors were allowed to create

law to fit the facts.

Petitioner Neville, a volume salvage truck dealer, ac-

counted for the lawful acquisition of the frames, founda-

tions and running parts of the seven rebuilt trucks. The

government generally proved certain minor, non-running

parts and contents of the cabs and beds of the rebuilt trucks

to have emanated from stolen trucks. Petitioner Neville

proved that he buys huge quantities of truck parts and

==

bodies in bulk sales from legitimate dealers across the

United States. It certainly is possible that the allegedly

stolen parts were sold to petitioner, without his knowledge

of their stolen nature, as part of these bulk acquisitions.

In the circumstances of this case, the jurors could have

believed petitioner’s account in entirety and still have been

compelled to find him guilty because they believed that

minor parts of cabs, beds and boxes (all non-running parts)

comprised “major parts” of a truck. It is impossible to dis-

cern the meaning of the verdict because of the erroneous

instruction.

Petitioner recoguizes that convictions under the Dyer

Act have been held to be proper where major parts of

a motor vehicle in question are stolen, although the 18

U.S.C. § 2311 definition of “motor vehicle” makes no refer-

ence to “major parts” as falling within the prohibition.

Petitioner seeks no loophole in Congress’ effort, through

the Dyer Act, to curb auto theft. cf. United States v. Tur-

ley, 352 U.S. 407 (1957).

Petitioner does, however, urge this Court to consider

how far the instant case strays from accepted notions of

the meaning of “motor vehicle”. cf. McBoyle vy. United

States, 283 U.S. 25 (1931).

In the other cases in which similar situations have arisen

concerning rebuilt motor vehicles, other courts have pro-

ceedet ‘lifferently and with utmost caution. In United

States \. Bishop, 434 F.2d 1284 (6th Cir. 1970), while the

court was able to affirm the conviction because the evidence

was sufficient to show that the entire motor vehicle was

transported interstate and thereafter split into two pieces

found near each other, the court mandated a “major parts”

instruction given in United States v. Wallace, 254 F. Supp.

_ =

653 (E.D. Tenn. 1965), aff'd 361 F. 2d 494 (6th Cir. 1966).

This Sixth Circuit instruction requires the court to charge

the jury that a “motor vehicle” must have “an engine, frame

and wheels,” and “that the body does not constitute a motor

vehicle” within the intendment of the Dyer Act. (434 F. 2d

at 1288). See also United States v. Wootén, 239 F. Supp.

123 (E.D. Tenn. 1965); United States v. Lofty, 455 F. 2d

506 (4th Cir. 1972) (truck trailer not a “motor vehicle,”

but “goods”) ; United States v. Casey, 428 F. 2d 229 (5th Cir.

1970), cert. denied 400 U.S. 839 (held: the fact that parts

of a stolen vehicle were found in an automobile in which

defendant was riding was insufficient to support the con-

viction of interstate transportation of a motor vehicle).

The Eighth Circuit Court of Appeals in this case implicitly

recognized the important conflict that exists concerning

“major parts” instructions by its grant to petitioner of

a stay of mandate.

In direct conflict with the Sixth Cireuit’s holdings, the

Eighth Circuit in the instant case has approved an instruc-

tion that allows the jury to decide for itself what con-

stitutes “major parts” of a motor vehicle within the in-

tendment of the Dyer Act. The Eighth Cireuit of Appeals

below expressed its fear that the jury would be confused

by guidelines as to what constitutes “major parts.” Peti-

tioner contends, on the contrary, that the jury was con-

fused by the total lack of guidelines. Moreover, it is impos-

sible to discern whether, in fact, the jurors found peti-

tioner guilty based on non-major, non-running parts, or

whether they disbelieved his account of his lawful acquisi-

tion of the major-running parts of each rebuilt vehicle.

Therefore, the instruction given effectively vitiated peti-

tioner’s defense to the charges.

~~

Petitioner prays this Court to resolve the important con-

flict between the circuits and set forth guidelines concern-

ing the propriety and contents of “major parts” instruc-

tions in Dyer Act prosecutions.

II.

PETITIONER’S FOURTH AMENDMENT RIGHTS WERE

VIOLATED BY A MISSOURI HIGHWAY PATROLMAN’S

WARRANTLESS SEIZURE OF FOUR TRUCKS PETITIONER

HAD CONSIGNED TO A 8T. LOUIS AUTO AUCTION, WHERE:

(A) THE TRUCKS WERE SECURE IN THE POSSESSION

OF THE AUCTION, AND WERE THEREBY EFFEC-

TIVELY IMMOBILIZED ;

(B) THE HIGHWAY PATROLMAN, WITHOUT ANY AT-

TEMPT TO OBTAIN JUDICIAL APPROVAL, SEIZED

THE TRUCKS, TRANSPORTED THEM FROM THE AUC-

TION PREMISES, HELD THEM IMPOUNDED, IN-

SPECTED THEM, INVITED NUMEROUS CIVILIANS

AND OTHER LAW ENFORCEMENT OFFICERS TO IN-

SPECT THEM, DISASSEMBLED PARTS FROM THEM,

SCRATCHED PAINT FROM THEM, ETC., AND SUBSE-

QUENTLY INTRODUCED EVIDENCE DERIVED FROM

THE SEIZURE AT A TRIAL ON CHARGES FILED TEN

MONTHS AFTER THE SEIZURE.

The Missouri highway patrolman, by seizing these ve-

hicles, exceeded the scope of his lawful authority and ex-

ceeded any authority the auction owner could have pur-

ported to impute to him. Petitioner does not contest that

the patrolman, at the request of the auction owner to whum

the trucks had been consigned for the purpose of sale, had

authority to inspect the trucks. Petitioner contends that,

pursuant to that initial inspection, even if the patrolman

observed facts that constituted probable cause for his be-

lief that the trucks were stolen, the seizure and impound-

- =

ment of the trucks could not lawfully be accomplished with-

out judicial process.

There was no showing by the Government that there was

any threat of the trucks being moved from the auction

premises, which was secure, guarded, locked and under the

control of an impartial third party. This Court has held

consistently that the “general requirement that a warrant

be obtained is basic to the Amendment’s protection of pri-

vacy, and the burden is on those seeking [an] exception

to show the need for it.” Chimel v. California, 395 U.S. 752,

762 (1969). The Government failed to meet that burden in

the instant case.

The Court of Appeals below has cited only (in cf. form)

Chambers v. Maroney, 399 U.S. 42, 51-52 (1970). Petitioner

contends that the Chambers decision cannot support this

seizure. The panel notes its opinion that the patrolman

acted pursuant to Missouri statutory authority. Petitioner

respectfully submits that the Missouri statute cannot be

read to authorize this conduct, and further that if it can

be so read it is unconstitutional. The portion of the statute

omitted in the Court of Appeals’ Opinion explicitly requires

the peace officer to immediately commence judicial pro-

cess.’

Recently, in Cardwell v. Lewis, 417 U.S. 583 (1974), this

Court distinguished its holding therein from Coolidge v.

New Hampshire, 403 U.S. 443 (1971), noting that the Cool-

tdge search was extensive. The seizure and subsequent in-

spection in the instant case far exceeds the scope of per-

missible activity defined in Cardwell.

2 Missouri Revised Statutes, Section 301.390: set forth in Appen-

dix D hereto.

= =

ITI.

THE ADMISSION, IN THIS FEDERAL TRIAL, OF EVI-

DENCE PROCURED BY ILLINOIS STATE LAW ENFORCE-

MENT OFFICERS THROUGH ILLEGAL EAVESDROPPING

AND WIRETAPPING, VIOLATED THE PETITIONER’S DUE

PROCESS RIGHTS AND THE FOURTH, NINTH AND TENTH

AMENDMENTS, WHERE THE ILLINOIS LAW ENFORCE-

MENT OFFICERS COMMITTED A CRIME IN PROCURING

THE EVIDENCE CONTRARY TO EXPLICIT ILLINOIS STAT-

UTORY PROHIBITION.

The Illinois Revised Statutes* prohibit any person, in-

cluding a law enforcement officer, from eavesdropping un-

less he does so with the consent of one party to the conver-

sation and at the request of a State’s Attorney. A violation

of these statutes carries with it criminal and civil liability.

The Illinois Supreme Court recently upheld this require-

ment in People v. Richardson, 328 N.E.2d 260 (S.C. Ill.

1975).

In the instant case, the Government not only used tran-

scripts of unlawfully monitored conversations between

Petitioner and witness Stewart, but called a Decatur, Illi-

nois Police Officer to testify concerning a conversation he

overheard.

It has long been recognized that, consistent with the

Ninth and Tenth Amendments, persons are citizens of both

the United States and the state in which they reside. Both

may enact criminal statutes for mutual protection unless

Congress has otherwise provided. Gilbert vy. Minnesota,

254 U.S. 325 (1920). In the area of eavesdropping, the fed-

eral statute welcomes state legislation. 18 U.S.C. §$ 2516

(2), 2518(7). See esnecially 18 U.S.C. $3231.

3 Illinois Revised Statutes, Chapter 38, Sections 14-1(b), 14-2(a)

and 14-4: set forth in Appendix D hereto.

ees

= =

The question thus posed is whether the federal govern-

ment can use, in federal prosecutions, evidence and the

fruits thereof obtained by the criminal activity of state

agents. Petitioner vigorously contends it cannot, since the

power to create authorization procedures is reserved to the

states and such procedures are permitted to be more strin-

gent than federal rules. Senate Report, No. 1097, 90th

Cong., 2d Sess., at 98; Cooper v. California, 386 U.S. 58, 62

(1967); cf. Lee v. Florida, 392 U.S. 378 (1968); Rea v.

United States, 350 U.S. 214 (1956).

IV.

WHERE POSSESSION OF RECENTLY ALLEGEDLY STOL-

EN PROPERTY IS EXPLAINED, NO INSTRUCTION PERMIT-

TING AN INFERENCE OF KNOWLEDGE TO BE DRAWN

FROM POSSESSION OF RECENTLY STOLEN PROPERTY

SHOULD BE GIVEN, AND THE HOLDING BELOW CON-

FLICTS WITH THAT OF OTHER CIRCUITS CONCERNING

THE CONSTITUTIONAL PROPRIETY OF SUCH AN IN-

STRUCTION.

The Court of Appeals recognized that petitioner “is an

experienced automobile and truck salvage dealer and re-

builder who has operated for fifteen years in the Spring-

field, Illinois, area. He concentrates on late model trucks

and carries a large inventory of new and used parts and

used trucks.”

Petitioner’s defense, as reviewed above in the Statement

of the Case, consisted in large part of his explanation of

the lawful acquisition of salvage trucks and parts. He buys

large quantities of salvage, pays with checks, and titles

trucks in his own name. Certainly this is adequate expla-

nation of his unknowing possession of stolen parts.

—18—

In the instant case, the instruction allowing the jury to

infer petitioner’s knowledge that parts incorporated in the

rebuilt trucks were allegedly stolen had the effect of con-

verting petitioner’s exculpatory testimony in his defense

into inculpatory statements. The Eighth Circuit Court of

Appeals’ holding below conflicts with the holdings of the

First and District of Columbia Circuits. Goodman v. United

States, 362 F.2d 965 (D.C. Cir. 1966); Freije v. United

States, 386 F.2d 408 (1st Cir. 1967). See also United States

v. Casey, 428 F.2d 229 (5th Cir. 1970). This Court’s recent

holding in Barnes v. United States, 412 U.S. 837 (1973) is

not read by petitioner as authorizing the instruction’s con-

stitutionality in the circumstances of the instant case.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Eighth Circuit.

Respectfully submitted,

EDWARD M. GENSON

THEODORE M. BECKER

134 N. LaSalle Street

Suite 306

Chicago, Illinois 60602

(312) 726-9015

Attorneys for Petitioner

<>

—j1e-—

APPENDIX A

Ix Tue

UNITED STATES COURT OF APPEALS

For THe Eicutx Circuit

No. 74-1708

UNITED STATES OF AMERICA, 7

Appellee,

vs Appeal from the United

; . States District Court

for the Eastern Dis-

C.ARENCE EDWARD NEVILLE, trict of Missouri

Appellant. J

Submitted: March 31, 1975

Filed: May 20, 1975

Before Grsson, Chief Judge, Lay, and Ross, Circuit Judges.

Gisson, Chief Judge.

Defendant Clarence Edward Neville appeals his jury

convictions on seven counts for violations of the Dyer Act.’

- 18 U.S.C. § 2312 (1970). That section reads:

Whoever transports in interstate or foreign commerce a

motor vehicle or aircraft, knowing the same to have been

stolen, shall be fined not more than $5,000 or imprisoned not

more than five years, or both.

alta:

He was sentenced by the District Court? to concurrent terms

of five years in prison on counts i, 3, 5, 6 and 7 and to five

years imprisonment on counts 2 and 4, consecutive to the

other counts but concurrent with each other, for an ag-

gregate of ten years, and fined $35,000.

On appeal the defendant challenges (1) the court’s in-

struction permitting the jury to convict him for knowingly

transporting rebuilt trucks containing undefined “major

parts” of stolen vehicles; (2) the sufficiency of the evidence

to identify the stolen trucks, to prove they were “motor

vehicles,” or to prove defendant’s knowledge that they were

stolen; (3) the court’s instruction permitting the jury to

infer guilty knowledge from defendant’s unexplained pos-

session of recently stolen property; (4) the admission of

evidence of other crimes; and (5) the admission of evidence

allegedly obtained unconstitutionally. We affirm.

Neville is an experienced automobile and truck salvage

dealer and rebuilder who has operated for fifteen years in

the Springfield, Illinois, area. He concentrates on late

model trucks and carries a large inventory of new and used

parts and used trucks. In March and April of 1973 he at-

tempted to sell through a St. Louis auto auction seven

stolen pickup trucks disguised to appear as used vehicles

legitimately titled. A total of fourteen trucks were involved

in the scheme. Seven “clean” trucks were legally obtained

by Neville—one purchased new through an accomplice,

the other six in wrecked condition. He removed their fac-

torv marked frames and all other identification markings

and transferred them to seven stolen trucks whose frames

2 The Honorable John K. Regan, United States District Judge

for the Eastern District of Missouri, passed sentence September

13, 1974.

alii»

and identification markings he had removed and destroyed.

He and his employees then drove four of the trucks from

Illinois to St. Louis, Missouri, and consigned them to the

Floyd Hauhe Auto Auction for sale.

The auction company guarantees title to all truc’» sold

by it and reserves the right to inspect the vehicles before

they are sold. Suspicious of the legitimacy of the titles to

the trucks, the manager of the auction contacted the Mis-

souri State Highway Patrol. On April 20, 1973, Sergeant

Mudd of the Missouri State Highway Patrol received the

keys and titles to the four late model trucks and proceeded

to inspect them.

Inspection revealed that the frames (which contain con-

fidential or hidden identification numbers) had all been

changed. Also, the federal warranty sticker was missing

on each truck, even though one truck showed only 594 miles

on its odometer. The trucks were seized and subsequent

investigation revealed them to be stolen trucks disguised

with lawfully obtained frames and markings. Three other

stolen trucks previously sold by Neville through the auction

in March, 1973, were similarly traced.

Neville claimed to have purchased six of the seven trucks

in wrecked condition and rebuilt them for sale. The seventh

he claimed to have received in trade. All seven appeared

to be lawfully registered in Neville’s name but none showed

any signs of repair or body work; none was properly iden-

tified with all factory and registration markings; none

matched the description of the original truck registered

with the same identification numbers; and two of the seven

carried no identification numbers at all. At trial the owners

of six of the seven stolen trucks positively identified them

as their own, and government witness Harold Stewart,

—S

Neville’s accomplice, admitted stealing the remaining truck

and delivering it to Neville in 1972.

I. The defendant’s primary challenge is to the court’s

instruction permitting the jury to convict as to each count

if it found that the defendant transported rebuilt trucks

in interstate commerce knowing that they had been recon-

stituted by combining the “major parts” of stolen vehicles

with parts of other vehicles.’ Relying on United States v.

Bishop, 434 F.2d 1284 (6th Cir. 1970), and United States

v. Wallace, 361 F.2d 494 (6th Cir. 1966), defendant argues

that he was prejudiced by the court’s failure to define

“major parts” to guide the jury in determining whether

the trucks Neville was accused of transporting contained

’ The court instructed the jury in pertinent part as follows:

The term ‘‘motor vehicle’’ includes an automobile, truck, or

any self-propelled vehicle designed for running on land but

not on rails.

* s *

It is an essential element of the crime charged that the

pickup trucks involved had been ‘‘stolen.’’ In determining

whether the pickup trucks had been stolen, the Court in-

structs the Jury that whenever one person’s motor vehi¢le

is acquired or is thereafter possessed * * * with the intent

to deprive the owner of the right and benefits of ownership,

s ch motor vehicle is ‘‘stolen’’ as that term is used in these

instructions.

In this connection you are instructed that if you find as

to any count that the motor vehicle described therein was

stolen and that thereafter the major parts of said stolen

motor vehicle were combined with the major parts of one

or more other motor vehicles into one rebuilt motor vehicle

which was thereafter transported in interstate commerce, then

you may find that the rebuilt motor vehicle is the stolen

motor vehicle described in said count which the defendant is

charged with transporting * * *. (Emphasis added.)

—Hg—

the requisite stolen parts to constitute them stolen “motor

vehicles” within the meaning of the Act.

18 U.S.C. § 2311 (1970) provides that “motor vehicle in-

cludes an automobile, automobile truck, automobile wagon,

motorcycle, or any other self-propelled vehicle designed for

running on land but not on rails.” “Major parts,” however,

are not independently defined in the Act. The District

Court’s charge to the jury tracked the statutory definition

of “motor vehicles,” but did not independently define or

list their “major parts.” The Government submits, and we

agree, that no further definition of the term “major parts”

is required. It is sufficient to show under the statute “that

only some of the major parts of the vehicle in question

were stolen.” United States v. Stettmeier, 465 F.2d 436, 437

(9th Cir. 1972) (major parts of stolen aircraft). Once the

trial judge delivers a legally accurate jury charge, as here,

“the extent of its amplification must rest largely in his

discretion.” United States v. Bayer, 331 U.S. 532, 536 (1947).

We find no evidence that the jury misunderstood the charge

and no abuse of discretion in this case.

“Major parts” is a commonly used conversational term

without a technical meaning in this statutory context; it

is not a word of art. Its meaning is within the jury’s knowl-

edge and experience and need not be explained. Indeed,

as we have recognized in other contexts, to indulge in vari-

ations of statement in order to define otherwise under-

standable language might well confuse as much as help

the jury. Guon v. United States, 285 F.2d 140, 142 (8th Cir.

1960). Moreover, excessive definitions of secondary, non-

statutory concepts might often because of imprecise lan-

guage contain technical deficiencies that for lack of com-

pleteness would enable criminals to argue compliance with

—_fa—

the definition, though in actuality violating the statute and

its spirit.

On the contrary, the Dyer Act is not to be construed so

narrowly as to disregard the paramount congressional pur-

pose of curbing commercial interstate traffic in stolen motor

vehicles. See United States v. Turley, 352 U.S. 407, 413-14

(1957). Without “major parts” of a vehicle being encom-

passed within the definition of “motor vehicles,” enforce-

ment of the Act might be foreclosed simply whenever a

thief swaps stolen parts before being caught. We believe

Congress intended no such impediment to enforcement.

United States v. Stettmeier, supra at 437.

In this case we are far from a marginal situation in

which only one major part, i.e., a set of wheels, is proved

to be stolen. Here, the subject vehicles themselves were all

proved stolen and identified. The basic changes made by

the defendant on the stolen vehicles were some repainting

and substitution of the frames and clean identification

plates and numbers of totally wrecked vehicles. Titles from

the wrecked vehicles were then used to merchandise the

stolen vehicles. Such an obvious loophole need not be pro-

vided for fences and dealers in stolen vehicles. The au-

* In many situations a comprehensive definition is impossible to

fashion :

Human language is not so constructed that it is possible to

prevent people from misunderstanding it if they are deter-

mined to do so, and overdefinition for that purpose is like

the attempt to rid a house of dust by mere sweeping. You

make more dust than you remove. If too fine a point is put

upon language you suggest a still greater refinement in quib-

bling.

3 J. Stephens, A History of the Criminal Law in England 305-06

(1883).

=

thorities cited by the defendant do not hold to the con-

trary.

Il. Neville also challenges the sufficiency of the evidence

to identify the stolen trucks, to prove they were “motor

vehicles,” and to prove his knowledge that they were stolen.

However, after a careful review of the record in a light

most favorable to the Government, granting it the benefit

* In United States v. Bishop, 434 F.2d 1284 (6th Cir. 1970), the

Sixth Circuit affirmed a Dyer Act conviction for iF

a stolen auto from Ohio to Kentucky. Although the auto was

disassembled when finally discovered by federal agents, all of its

major parts were found near the defendant’s Kentucky home.

He admitted carrying the engine block across the state line but

claimed to have purchased it. The court noted that:

|The Act only] makes unlawful the transportation of a ‘‘mo-

tor vehicle.’’ It does not separately make unlawful the trans-

portation of one of the parts of such a vehicle, knowing it

to have been stolen. * * * Even considering the broad con-

gressional purposes of the Dyer Act, * * * it cannot be said

that an engine block taken by itself may be fairly encompassed

within the wording of [the Act].

434 F.2d at 1287. ‘

The court held, however, that the evidence as a whole was suffi-

cient for the jury to find the defendant guilty and approved the

inference from his admitted possession of the engine block that

meds x a party to the interstate transportation of the entire stolen

e,

In United States v. Wallace, 361 F.2d 494 (6th Cir. 1966), four

years before Bishop, the same court summarily affirmed a convic-

tion for the theft and transportation of a reconstituted auto

whose major parts were stolen. Appellant Wallace’s counsel did

not appear for argument. The trial court’s opinion recounts the

jury instruction that a ‘‘motor vehicle’? must have an engine,

frame and wheels capable of travelling on land and that the body

alone is not a ‘‘motor vehicle’’ within that definition. The court

of ——, asst rE: not comment on the charge or otherwise

require a definition of ‘‘major parts’’ as part of the jury charge.

United States v. Wallace, 354 F.Supp. 653, 654 (E.D.Tenn. 1965),

aff'd, 361 F.2d 494 (6th Cir. 1966).

_

of all factual inferences, Whiteside v. United States, 3A6

F.2d 500, 502 (8th Cir.), cert. denied, 384 U.S. 1023 (1965),

we conclude that there was not only substantial, but over-

whelming, evidence to support the verdict. Moody v. United

States, 477 F.2d 548 (8th Cir. 1973).

The first count of the indictment concerned a red 1973

Chevrolet pickup containing a V-8 engine and most avail-

able options. Its coded identification number and warranty

card, however, indicated that it should have contained only

a six cylinder engine and very few optional features. A truck

of that description, orange in color, bearing the same iden-

tification number, had in fact been purchased from a St.

Louis dealer by one Evans in December, 1972. Neville

claimed he obtained it from Evans in a trade.

Harold Stewart, however, testified that Neville admitted

he and Evans stole the fully equipped red truck and re-

placed its frame and identifiable parts with those from the

less expensive orange truck purchased by Evans. Thus,

Neville boasted, they “owned” a fully equipped stolen truck

with a legitimate identification number and bill of sale. At

trial the true owner of the red truck positively identified

his custom camper modifications and wiring installed on

the truck before it was stolen. Thus, as to the first count

in the indictment, there was adequate evidence for the jury

to identify the truck as stolen, to find that even rebuilt it

retained enough original major parts to remain a statutory

“motor vehicle.” and to conelude that Neville knew it was

stolen.

The second count of the indictment identified a maroon

1972 Ford pickup containing a V-8 engine. Its coded serial

number, however, also represented a different truck—a

green 1971 Ford pickup with a smaller engine salvaged to

—

Neville after being wrecked in a fatal collision in 1972.

Harold Stewart identified the maroon 1972 Ford pickup

as one he had stolen for Neville from an Illinois Ford

dealer in September, 1972, and delivered to Neville after

removing and destroying its marked frame and identifying

numbers. Thus, as to the second count. there was sufficient

evidence for conviction.

In sum, as to both counts there was ample evidence from

which the jury could find that Neville, an experienced and

successful purveyor and fence of stolen trucks and major

truck parts, knowingly transported stolen vehicles in inter-

state commerce. The evidence against the defendant is

equally persuasive and damaging on the other five counts.*

III. Neville also challenges the court’s instruction per-

mitting the jury to conclude that he knew the vehicles were

stolen by virtue of the inference raised by his unexplained

possession of the recently stolen property. The Government

offered proof that defendant Neville employed parts from

salvage vehicles to camouflage and title stolen trucks for

resale. Neville’s explanation was that he legitimately re-

built wrecked trucks and claimed not to have known the

trucks he sold were stolen. The court instructed the jury

that possession of recently stolen property, if not satis-

factorily explained, is ordinarily a circumstance from which

° Because we find the evidence of Neville’s guilt sufficient to

support the aggregate ten year sentence on counts one and two,

and because the sentences passed on connts three through seven

are effectively concurrent with those of the first two, it is un-

necessary for us to consider the sufficiency of the evidence re-

lating to the remaining counts. Barnes v. United States, 412 US.

837, 848 n. 16 (1973); United States v. Leach, 429 F.2d 956, 960

(8th Cir. 1970), cert. denied, 402 U.S. 986 (1971); see Benton v.

Maryland, 395 U.S. 784, 788-90 (1969).

oo

one may reasonably infer that the person in possession

knew the property was stolen, but that no such inference

can be drawn if the possession is explained in a manner

consistent with the defendant’s innocence.’

We have recognized the evidentiary rule permitting such

an inference as “factually sound and necessary.” Aron v.

United States, 382 F.2d 965, 970 (8th Cir. 1967). The in-

struction was a correct statement of the law, see Earnhart

v. United States, 417 F.2d 547 (D.C. Cir. 1969), cert. denied,

397 U.S. 1068 (1970), properly given in the instant circum-

stances. Harding v. United States, 337 F.2d 254, 256 (8th

Cir. 1964).

IV. At trial Neville objected to testimony by state po-

lice officers describing the proper Illinois and Missouri

procedures for affixing vehicle identification plates onto

rebuilt trucks on the ground that the challenged testimony,

by inference, accused Neville of violating state registra-

tion procedures, another crime. We find no error in the

admission of the evidence. The testimony was not calculated

to infer that the defendant committed another crime but

was relevant to the jury’s understanding of the crime

charged. Rule 401, Fed. R. Ev.;* Babb v. United States, 351

F.2d 863, 867 (8th Cir. 1965). Furthermore, the defendant

proceeded to develop the matter more extensively in his

cross-examination of one of the officers and cannot now

be heard to complain that the Government led the jury

* The challenged instruction is substantially similar to that ap-

proved in Barnes v. United States, 412 U.S. 837, 840 n. 3 (1973).

® Although the Federal Rules of Evidence, Pub. L. No. 93-595

(Jan. 2, 1975), are not effective until July 1, 1975, we feel it ap-

propriate to cite them as a primary source of evidentiary rules

where not contrary to caselaw.

—lla—

astray by first mentioning it. Moreover, the defendant

failed to object to being cross-examined by the Government

as to his own knowledge of the lawful identification proce-

dures.

His objection to being cross-examined regarding threats

made against government witness Stewart and Stewart’s

alleged admission of perjury is similarly without merit.

It also passed without defense objection at trial and merely

developed material which was introduced by the defendant

in his direct testimony. It was relevant for his impeach-

ment, Rule 611(b), Fed. R. Ev.; United States v. Olsen,

487 F.2d 77, 82 (8th Cir. 1973), cert. denied, 415 U.S. 993

(1974), and was well within the discretionary limits for

cross-examination. United States v. Vaughn, 486 F.2d 1318,

1321-22 (8th Cir. 1973).

V. The defendant argues that the warrantless seizure

of the four consigned trucks from the St. Louis auction

by Sergeant Mudd of the Missouri State Highway Patrol

on April 20, 1973, was unreasonable and violated his Fourth

Amendment rights. He does not, however, challenge the

officer’s initial inspection of the trucks at the auction. We

find Officer Mudd’s subsequent seizure of the trucks to

have been reasonable, based upon probable cause to believe

that they were stolen, and find no error in the admission

of evidence developed from them.

Neville surrendered possession of the trucks to the

auction for public sale and “assumed the risk” of official

examination. Frazier v. Cupp, 394 U.S. 731, 740 (1969).

As previously noted, the auction company guaranteed title

to all vehicles it sells and reserved the right to inspect the

trucks before selling them. It therefore had requisite con-

trol over the vehicles to request official inspection and to

—12a—

consent to their search. Thereafter, Officer Mudd’s seizure

of the vehicles was reasonable under the circumstances

revealed by the officer’s unchallenged initial inspection. Cf.

Chambers v. Maroney, 399 U.S. 42, 51-52 (1970). The trucks’

federal safety stickers and identification plates were loose

and appeared not to have been factory attached; there

were discrepancies between the trucks’ actual engines, op-

tions and color characteristics and the characteristics de-

scribed by their coded serial numbers; the trucks seized

were easily moveable and situated at a public auction; and

the officer had a statutory duty to impound them.’

The defendant also challenges the admission of evidence

of overheard telephone conversations consisting of testi-

mony of government witness Stewart recalling telephone

conversations he had with the defendant, government cross-

examination of the defendant using transcripts of moni-

tored telephone conversations, and testimony by a Decatur,

Illinois, police officer reporting a telephone conversation

between Stewart and the defendant that he overheard with

Stewart’s consent. The defendant argues that the officer

* Mo. Rev. Stat. § 301.390 (1969) provides in pertinent part:

1. No person shall sell, or offer for sale, or shall own or

have the custody or possession of a motor vehicle * * * on

which the original manufacturer’s number or other distin-

guishing number has been destroyed, removed, covered, al-

tered or defaced, and no person shall sell, offer for sale, own

or have the custody or possession of a motor vehicle * * *

having no manufacturer’s number or other original number,

or distinguishing number.

2. Every peace officer who has knowledge of a motor ve-

hicle * * * the number of which has been removed, covered,

altered, destroyed or defaced, and for which no special num-

ber has been issued, shall immediately seize, [and] take pos-

session of such motor vehicle * * *.

> eo >

—_

violated the Illinois anti-eavesdropping statute, Ill. Rev.

Stat. ch. 38, §§ 14-1 and 14-2 (1973), in overhearing the con-

versation, and that admission of any of the telephone evi-

dence was constitutionally improper. The transcripts of

the conversations, however, were not admitted into evi-

dence.

We find no error in the admission of any of the evidence

of telephone conversations between defendant Neville and

government witness Stewart. Gathering evidence by over-

hearing a telephone conversation with the consent of one

party does not violate the other party’s Fourth Amend-

ment rights. United States v. White, 401 U.S. 745, 752 (1971)

(plurality opinion). Misplaced expectations of confidence

or trust in an accomplice are not constitutionally protected.

Hoffa v. United States, 385 U.S. 293, 302 (1966). Moreover,

wiretap or other evidence obtained without violating the

Constitutional or federal law is admissible in a federal

criminal! trial even though obtained in violation of state

law.*° On Lee v. United States, 343 U.S. 747, 754-55 (1952);

United States v. Keen, 508 F.2d 986, 989 (9th Cir.), petition

for cert. filed, 43 U.S.L.W. 3374 (U.S. Dee. 26, 1974) (No.

74-806).

The judgments of conviction are affirmed.

A true copy.

Attest:

Clerk, U.S. Court of Appeals, Eighth Circuit.

%° We intimate no view of the propriety of the Decatur, Illinois,

police officer’s conduct under state law.

= | —l5a—

APPENDIX B APPENDIX C

United States Court of Appeals

For the Eighth Circuit

St. Louis, Mo. 63101

In THE

UNITED STATES COURT OF APPEALS

For Tue Erents Circuit

June 17, 1975

No. 74-1708 September Term, 1974

' Robert C. Tucker, Clerk

THE UNITED STATES, Aaadlies ) Mr. Edward M. Genson

o ; = .- LJ United 134 North LaSalle Street, Suite 306

4 for the Eastern Dis- Chicago, Illinois 60602

trict o ssou

CLARENCE E. NEVILLE, Mr. Theodore F. Schwartz

Appellant. 7701 Forsyth

The Court having considered petition for rehearing en Clayton, Missouri 63105

banc filed by counsel for appellant, and being fully advised Hon. Donald J. Stohr

in the premises, it is ordered that the petition for rehear- U.S. Attorney

ing en banc be, and it is hereby, denied. St. Louis, Missouri

Considering the petition for rehearing en banc as a peti- Mr. William D. Rund, Clerk

tion for rehearing, it is ordered that the petition for re- U.S. District Court

hearing also be, and it is hereby, denied. St. Louis, Missouri

June 11, 1975 Re: No. 74-1708. The U. S. v. Neville.

Dear Sirs:

Enclosed herewith to each of you is copy of order entered

by us today in the above case at the direction of the Court.

Very truly yours,

/s/ Robert C. Tucker,

Clerk

os

In THE

UNITED STATES COURT OF APPEALS

For THe Eieunts Circuit

No. 74-1708 September Term, 1974

THE UNITED STATES,

Appellee,

vs.

CLARENCE E. NEVILLE,

Appellant.

On motion of Appellant, it is now here ordered that the

issuance of the mandate herein be, and the same is hereby,

stayed for a period of thirty days from this date. If within

that time there is filed with the Clerk of this Court a cer-

'tificate of the Clerk of the Supreme Court of the United

States that a petition for writ of certiorari has been filed,

the stay hereby granted shall continue until the final dis-

position of the case by the Supreme Court.

—l17a—

APPENDIX D

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States of America

AMENDMENT [TV.]

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable canse, supported by Oath or af-

firmation, and particularly describing the place to be search-

ed, and the persons or things to be seized.

AMENDMENT [V.]

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indictment

of a Grand Jury, except in cases arising in the land or naval

forces, or in the Militia, when in actual service in time of

War or public danger, nor shall any person be subject for

the same offence to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property be

taken for public use, without just compensation.

AMENDMENT [IX.]

The enumeration in the Constitution, of certain rights,

shall not be construed to deny or disparage others retained

by the people.

AMENDMENT [X.]

The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are re-

served to the States respectively, or to the people.

—]18a—

STATUTORY PROVISIONS INVOLVED

Federal

18 U.S.C. § 2311:

Definitions

As used in this chapter:

“Aircraft” means any contrivance now known or here-

after invented, used, or designed for navigation of or for

flight in the air;

“Cattle” means one or more bulls, steers, oxen, cows,

heifers, or calves, or the carcass or carcasses thereof;

“Money” means the legal tender of the United States or

of any foreign country, or any counterfeit thereof;

“Motor vehicle” includes an automobile, automobile truck,

automobile wagon, motorcycle, or any other self-propelled

vehicle designed for running on land but not on rails;

“Securities” includes any note, stock, certificate, bond,

debenture, check, draft, warrant, traveler’s check, letter of

credit, warehouse receipt, negotiable bill of lading, evidence

of indebtedness, certificate of interest or participation in

any profit-sharing agreement, collateral-trust certificate,

preorganization certificate or subscription, transferable

share, investment contract, voting-trust certificate; certifi-

cate of interest in property, tangible or intangible; instru-

ment or document or writing evidencing ownership of goods,

wares, and merchandise, or transferring or assigning any

right, title, or interest in or to goods, wares, and merchan-

dise; or, in general, any instrument commonly known as a

“security”, or any certificate of interest or participation in,

temporary or interim certificate for, receipt for, warrant,

or right to subscribe to or purchase any of the foregoing,

or any forged, counterfeited, or spurious representation of

any of the foregoing;

“Tax stamp” includes any tax stamp, tax token, tax

meter imprint, or any other form of evidence of an obliga-

—19a—

tion running to a State, or evidence of the discharge there-

“Value” means the face, par, or market value, whichever

is the greatest, and the aggregate value of all goods, wares,

and merchandise, securities, and money referred to in a

single indictment shall constitute the value thereof.

June 25, 1948, c. 645, 62 Stat. 805; Oct. 4, 1961, Pub.L.

_ 87-371, 75 Stat. 802.

18 U.8.C. § 2312:

Transportation of stolen vehicles

Whoever transports in interstate or foreign commerce a

motor vehicle or aircraft, knowing the same to have been

stolen, shall be fined not more than $5,000 or imprisoned

not more than five years, or both.

June 25, 1948, c. 645, 62 Stat. 806.

18 U.S.C. § 2516(2):

Authorization for interception of wire or oral communica-

tions

. * -_

(2) The principal prosecuting attorney of any State, or

the principal prosecuting attorney of any political subdi-

vision thereof, if such attorney is authorized by a statute

of that State to make application to a State court judge of

competent jurisdiction for an order authorizing or approv-

ing the interception of wire or oral communications, may

apply to such judge for, and such judge may grant in con-

formity with section 2518 of this chapter and with the ap-

plicable State statute an order authorizing, or approving

the interception of wire or oral communications by investi-

gative or law enforcement officers having responsibility for

the investigation of the offense as to which the application

is made, when such interception may provide or has pro-

vided evidence of the commission of the offense of murder,

kidnapping, gambling, robbery, bribery, extortion, or deal-

ing in narcotic drugs, marihuana or other dangerous drugs,

—0a—

or other crime dangerous to life, limb, or property, and

punishable by imprisonment for more than one year, desig-

nated in any applicable State statute authorizing such in-

terception, or any conspiracy to commit any of the forego-

ing offenses.

Added Pub.L. 90-351, Title III, § 802, June 19, 1968, 82

Stat. 216.

18 U.8.C. § 2518(7):

Procedure for interception of wire or oral communications

(7) Notwithstanding any other provision of this chap-

ter, any investigative or law enforcement officer, specially

designated by the Attorney General or by the principal

prosecuting attorney of any State or subdivision thereof

acting pursuant to a statute of that State, who reasonably

determines that—

(a) an emergency situation exists with respect to

conspiratorial activities threatening the national secu-

rity interest or to conspiratorial activities characteris-

tic of organized crime that requires a wire or oral

communication to be intercepted before an order au-

thorizing such interception can with due diligence be

obtained, and

(b) there are grounds upon which an order could

be entered under this chapter to authorize such inter-

ception,

may intercept such wire or oral communication if an ap-

plication for an order approving the interception is made

in accordance with this section within forty-eight hours

after the interception has occurred, or begins to occur. In

the absence of an order, such interception shall immediate-

ly terminate when the communication sought is obtained

or when the application for the order is denied, whichever

is earlier. In the event such application for approval is

denied, or in any other case where the interception is ter-

minated without an order having been issued, the contents

—

of any wire or oral communication intercepted shall be

treated as having been obtained in violation of this chap-

ter, and an inventory shall be served as provided for in

subsection (d) of this section on the person named in the

application.

18 U.8.C. § 3231:

District courts

The district courts of the United States shall have orig-

inal jurisdiction, exclusive of the courts of the States, of

all offenses against the laws of the United States.

Nothing ip this title shall be held to take away or im-

pair the jurisdiction of the courts of the several States

under the laws thereof.

June 25, 1948, c. 645, 62 Stat. 826.

State

Illinois Revised Statutes,

Chapter 38, §§ 14-1(b), 14-2(a) and 14-4:

14-1. Definition.}

(b) Eavesdropper.

An eavesdropper is any person, including law enforce-

ment officers, who operates or participates in the operation

of any eavesdropping device contrary to the provisions of

this Article.

14-2. Elements of the Offense.] A person commits

eavesdropping when he:

(a) Uses an eavesdropping device to hear or record all

or any part of any conversation unless he does so with the

consent of any one party to such conversation and at the

request of a State’s Attorney; or

—_— =

144. Sentence.) Eavesdropping is a Class A misde-

meanor.

Amended by P.A. 77-2638, § 1, eff. Jan. 1, 1973.

[Note: Legislation in Illinois has been introduced to in-

crease the classification to a felony.]

Missouri Revised Statutes,

Section 301.390:

“1. No person shall sell, or offer for sale, or shall own

or have the custody or possession of a motor. vehicle,

trailer or motor vehicle tire on which the original manu-

facturer’s number or other distinguishing number has been

destroyed, removed, covered, altered or defaced, and no

person shall sell, offer for sale, own or have the custody

or possession of a motor vehicle or trailer having no manu-

facturer’s number of other original number or distinguish-

ing number.

“2. Every peace officer who has knowledge of a motor

vehicle, trailer or motor vehicle tire, the number of which

has been removed, covered, altered, destroyed or defaced,

and for which no special number has been issued, shall

immediately seize, take possession of such motor vehicle,

trailer or motor vehicle ture, arrest the supposed owner or

custodian thereof, and cause prosecution to be begun in

a Court of competent jurisdiction.”

Suce “~ C yurt, U. S.

ae

AUG 20 1975

Supreme Court of the United States

Ocroszr Term, 1975

No. 75-56

CLARENCE EDWAED NEVILLE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

SUPPLEMENTAL PETITION FOR A WRIT

OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

EDWARD M. GENSON

THEODORE M. BECKER

134 N. LaSalle Street

Suite 306

Chicago, Illinois 60602

(312) 726-9015

Attorneys for Petitioner

—————— EE ——EEEE

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

In Tue

Supreme Court of the United States

Ocroser Term, 1975

No. 75-56

CLARENCE EDWARD NEVILLE,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent.

SUPPLEMENTAL PETITION FOR A WRIT

OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

This Supplemental Petition addresses the point and

argument raised in pages 11-14 of the Petition (Point I)

and is necessitated by the Seventh Circuit’s issuance of

an important opinion that conflicts directly with the

Eighth Circuit’s opinion in Petitioner’s case.

callie

I.

THE DISTRICT COURT’S INSTRUCTION, PERMITTING

THE JURY TO FIND PETITIONER GUILTY OF TRANSPORT-

ING STOLEN VEHICLES IF THE ‘“‘MAJOR PARTS’’ OF A

STOLEN VEHICLE WERE FOUND TO HAVE BEEN COM-

BINED WITH PARTS OF ONE OR MORE OTHER LEGITI-

MATELY ACQUIRED MOTOR VEHICLES INTO ONE RE-

BUILT MOTOR VEHICLE, IS PREJUDICIAL ERROR WHERE:

(A) THE DISTRICT COURT REFUSED TO DEFINE, IN ANY

MANNER, THE TERM ‘‘MAJOR PARTS’’;

(B) THE INSTRUCTION, GIVEN THE CIRCUMSTANCES OF

THIS CASE, PERMITTED THE JURORS TO CONVICT

PETITIONER EVEN IF THEY BELIEVED HIS THEORY

OF INNOCENCE, BECAUSE OF THE LACK OF GUIDE-

LINES AS TO WHAT CONSTITUTES ‘‘MAJOR PARTS’’

OF A MOTOR VEHICLE;

(C) THE INSTRUCTION GIVEN “N THIS CASE CONFLICTS

SQUARELY WITH THE LAW OF OTHER CIRCUITS.

In its very recent opinion, [United States v. Shanks,

No. 74-1697 (7th Cir. slip op., July 8, 1975) (appended

hereto)] the Seventh Circuit has ruled in direct conflict

with the Eighth Circuit opinion from which Petitioner

seeks relief. The Seventh Circuit relied upon the Sixth

Circuit’s opinions in two cases entitled United States v.

Bishop, 434 F. 2d 1284 (6th Cir. 1970); 437 F. 2d 97 (6th

Cir. 1971).

Although the Seventh Circuit apparently was not ap-

prised of the Eighth Circuit opinion below, the Shanks

decision reflects a thorough, careful analysis of the prior

decisions of other Circuits concerning which parts, if

any, constitute a “motor vehicle” within the intendment

of the Dyer Act.

—3—

The Seventh Circuit, in Shanks, reversed a Dyer Act

conviction for receiving a stolen motor vehicle, holding

that the evidence showed only that defendant Shanks

received certain stolen parts of a tractor trailer which

were assembled, with a lawfully obtained “glider kit”

(front axle, cab and frame), into a single truck. The

stolen parts in Shanks included the engine, transmission

and double axle rear end. The allegedly stolen parts in

Petitioner’s case below were of a nature far less “major”,

as demonstrated by the Table that appears on page 7 of

the Petition (reproduced on the following page). Despite

the “major” nature of the Shanks parts, the Seventh Cir-

cuit found the instruction permitting the jury’s verdict

of guilty to be plain error, in view of the failure of the

evidence to satisfy the statutory definition.

Given the Sixth and Seventh Circuit law holding that

parts do not constitute a self-propelled motor vehicle

and requiring appropriate instructions, the conflicting

Eighth Circuit law! places Petitioner, a salvage parts

' The Eighth Circuit below held that to instruct the jury con-

cerning the quantum and nature of stolen parts necessary to

constitute the ee Act violation of transporting a motor vehi-

cle would “confuse the jury.” The Sixth Circuit, in United

States v. Wallace, 254 F. Su p. 653 (E.D. Tenn. 1965), aff.d

361 F. 2d 494 (6th Cir. 1966), and the two United States v.

ishop cases, supra, requires an explicit, careful instruction

that provides that it is necessary for a motor vehicle to have

an engine, frame and wheels. With the Seventh Circuit’s

Shanks decision, the prejudicial impact of the Eighth Circuit’s

holding is exacerbated.

Truck

Parts Identified

PARTS WITNESSES

TESTIFIED THEY WERE

UNABLE TO IDENTIFY

Count 1

Improperly closing door, drill-

ed holes, wiring, left taillight.

smudge on door, child’s hoat

(Tr. 822-23).

Engine, diffeiential, steering

mechanism, brakes, front sus-

pension, rear end, frame, bum-

per (Tr. 479, 824-34).

Count 2

Repainted cab top (Tr. 493-

94).

Engine, frame (Tr. 495-97).

Count 3

Drilled holes, alternating back-

up lights, tailpipe extension,

horn wire and hole, front seat

stain, a shock absorber, dents

and scratches (Tr. 868-72).

Engine, transmission, steering

wheel, brake and drum assem-

bly, suspension unit, front end

springs, air conditioner com-

pressor, tires, wheels, frame,

bumper (Tr. 635-40, 877-90).

Count 4

A piece of tape, tailpipe modi-

fication, strip of caulking on

door, paint on bumper, creo-

sote in bed, dents (Tr. 904-07).

Engine, transmission, differen-

tial, steering unit, suspension

unit, front end housing, rear

end, wheel housing, wheels,

tires, frame (Tr. 643-45, 905-

19).

Count 5

Filled dent in hood, drilled

holes, missing seat belt em-

blems, glue on dashboard, hood

discoloration, key for glove

compartment, drug store re-

ceipt (Tr. 922-27).

Engine, differential, steering

wheel, brake drums, springs,

front end assembly, top of the

cab, rear end, wheel honsing.

grill work, frame, bumper (Tr.

434-36, 922-46).

Count 6

Wax under hood, tailgate in-

sulation, wiring on underside

of hood, holes in bed rail,

scratches on tailgate, paint on

dash (Tr. 957-61).

Engine, transmission, differ-

ential, steering wheel, power

steering unit, brake assembly,

power brake unit, front end

assembly, rear springs, rear

end, compressor, wheels, wheel

housing, tires, frame, radio

(Tr. 660-66, 960-73).

Count 7

Drilled holes in bed and side of

cab, dash and step bumper,

worn spot on hood, wiring on

sunvisor, turned antenna (Tr.

976-88).

Engine, transmission, power

brake unit, brake assembly,

drum housing, brakes, front

end assembly, front springs,

leaf springs, air conditioner,

frame, tires (Tr. 672-77, 990-

95).

——

dealer and rebuilder, in a position best illustrated by the

map below:

FEDERAL CIRCUITS

(28 U.S.C. 41)

NORTH Daxota

SOUTH OaKOoTa

NESRASKA

Petitioner’s place of business, Neville Auto Parts, is

located in central Illinois. He buys and sells used parts

and rebuilt vehicles on a nationwide scale. Assuming his

most immediate business area to be states surrounding

Illinois, it can be seen that the conflict between the Cir-

cuits carries with it marked consequences. For instance,

had Petitioner offered the rebuilt trucks in question for

auction in Indiana, Kentucky, Michigan or Wisconsin

(all surrounding states in which Petitioner conducts

business), no Dyer Act violation would have been com-

~

mitted under the law of the Sixth and Seventh Circuits.”

In surrounding states Iowa or (as is the case) Missouri,

Petitioner stands convicted and sentenced to ten years

imprisonment and a $35,000 fine.

It is precisely this type of conflict that presents sound

reason for grant of Certiorari. The conflict occasions

confusion, uncertainty and prejudice and calls out for

resolution by this Court.

CONCLUSION

For the reasons presented in the Petition and this

Supplement thereto, a Writ of Certiorari should issue to

review the judgment and opinion of the Eighth Circuit.

Respectfully submitted,

EDWARD M. GENSON

THEODORE M. BECKER

134 N. LaSalle Street

Suite 306

Chicago, Illinois 60602

(312) 726-9015

Attorneys for Petitioner

* In that Circuit Judge Doyle, of the Tenth Circuit, was a

member, by designation, of the Seventh Circuit Shanks panel,

the Tenth Circuit as well may follow the Sixth and Seventh

Circuit reasoning.

wa =

—la—

APPENDIX A

In the

Anited States Court of Appeals

For the Seventh Circuit

No. 74-1697

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

DONALD WAYNE SHANKS,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division,

No. IP 74-42-CR, James FE. Noranp, Judge.

Arcuep Aprit 21, 1975 — Decipep Jury 8, 1975

Before Swycert, Stevens and Dovy.e,* Circuit Judges.

Dove, Circuit Judge. Shanks was convicted of receiving,

concealing and storing a stolen motor vehicle, a White

semi-tractor, knowing the same to have been stolen,

contrary to 18 U.S.C. § 2313. Shanks’ co-defendant, Louis

Horton, was also convicted, but the appeal is that of

Shanks only.

A tandem axle tractor was stolen on August 24, 1973

from the White Truck factory branch at Cincinnati,

Ohio. In early October 1973, Horton received a call from

an unidentified person asking if he was interested in

buying some equipment. Horton and Shanks were in the

* Circuit Judge William E. Doyle of the Tenth Circuit is sitting by

designation.

74-1697 —2a—

posnaee of setting up a business, S & H Transport, and

ad been looking at wrecked trucks for about two years.

Horton agreed to look at the equipment and met the

caller at a truck stop in Logansport, Indiana. The man

showed him the engine, ‘transmission and a few other

parts of a truck. These items were in the bed of another

truck. Horton agreed to buy the “equipment” after view-

ing it. That evening, the man delivered the engine, trans-

mission and the double axle rear end to Horton. The

latter paid $3800 in cash. He received no bill of sale

or other document evidencing the sale. On the same

night or a few days later, Horton showed the parts to

Shanks who event to pay his share of the price. They

then arranged to buy a glider kit (front axle, cab and

frame), into which the parts would be placed. This pur-

chase was from a friend ¢ of Shanks, Wyman Kindermann.

Kinderman knew a mechanic who was willing and able to

install the parts in the kit. Arrangements wére there-

after made through Kinderman with James Summers,

in Tehanon, Indiana, to assemble the truck. Kinderman

had the glider kit delivered to Summers; Horton brought

the parts to Summers sometime in November. Summers

started the assembling of the truck, but became suspicious

hecanse the engine looked newer than Horton had indi-

cated. As a result, Summers contacted his attorne , who

in turn contacted the FBI. The day after the PBI was

contacted, on January 23, 1974, Agent Valentine went

to Summers’ shop. The engine, transmission and rear

end were identified as parts of the tractor stolen in

Cincinnati in August. The remainder of the original White

truck has not been found. Nor has the person who sold

the parts to Horton been identified or found.

Shanks raises two questions on appeal:

1) Whether the White truck parts constituted a motor

—— within the meaning of 18 U.S.C. §§2311 and 2313;

an

2) Whether the evidence was sufficient to support his

conviction.

Did the parts which were purchased constitute a motor

vehicle within the meaning of the statute, 18 U.S.C.

§ 23131 It makes it unlawful to receive, conceal or store a

—3a— 74-1697

motor vehicle which is a part of or which constitutes

interstate commerce knowing it to have been stolen. Sec-

on 2311 defines a motor vehicle as including “an auto-

mobile, automobile truck, automobile wagon, motorcycle,

or any other self-propelled vehicle designed for running

on land but not on rails.”

The trial court instructed the j as to the statutory

definition of a motor vehicle an en stated:

You are further instructed that the purpose of the

statute which these defendants are charged with vio-

lating is to eliminate the interstate traffic in stolen

motor vehicles. This purpose cannot be frustrated by

the dismantling of the parts of a motor vehicle

which has been stolen. us, if you find beyond a

reasonable doubt that the truck involved was stolen,

the fact that it was dismantled and was no longer

in the same precise condition as when it was stolen

does not destroy its characterization as a motor

vehicle.

The government relies on United States v. McKlemurry,

461 F.2d 651 (5th Cir. 1972) and United States v. Wallace,

254 F. Supp. 653 (E.D. Tenn. 1965), aff'd, 361 F.2d 494

(6th Cir. 1966). The court in McKlemurry rejected de-

fendant’s argument that the vehicle involved was not a

motor vehicle within the meaning of the act merely be-

cause as of the time the car was recovered by the police

it had no motor. The court said, “To allow car thieves

to escape prosecution by the simple device of removing

the car’s engine would eviscerate the Act and frustrate

the intent of Congress.” 461 F.2d at 653.

In Wallace, the defendant had purchased a wrecked

automobile in Tennessee and had combined major parts

of that car with major parts from a car stolen in Georgia.

The rebuilt car was then sold. The trial court instructed

the jury that it was necessary for a vehicle to have an

engine, frame and wheels, and that the body alone could

not constitute a motor vehicle. But it then went on to

instruct that if major parts of the car defendant sold

had been stolen, it was no defense that some of the

parts were not stolen parts. The Sixth Circuit affirmed

this without opinion.

74-1697 ———

The opinion in Wallace fails to make clear whether

defendant was charged with transportation of a stolen

vehicle under § 2312 or sale or receipt under § 2313. Nor

does this decision bring out whether the defendant at

any time had possession of the entire vehicle from which

the stolen parts were obtained.

United States v. Bishop, 434 F.2d 1284 (6th Cir. 1970)

is more authoritative. In that case the Sixth Circuit

discouraged the reading of Wallace too broadly. In Bishop,

and in a companion case, United States v. Bishop, 437

F.2d 97 (6th Cir. 1971) in which the first Bishop defen-

dant’s brother was involved, the court held that trans-

portation or receipt or concealment of one part of a

motor vehicle did not constitute a violation of the Dyer

Act. In the Bishop cases a car had been stolen in Ohio

on March 2, 1969. On March 21, 1969, the engine block

was found in Kentucky in the home of Johnny Bishop

and his father. The chassis was found, burned, about

three miles away from the farm. In each case the court

found possession of the engine block alone insufficient to

justify conviction for transportation or receipt of a

stolen “motor vehicle.” But the presence of the burned

chassis only three miles away provided information from

which the jury could reasonably infer that one brother

had transported and the other had received the whole

vehicle.

Here, unlike in the Bishop cases, there is a lack of

evidence that defendants received anything but the parts.

There is a dearth of evidence that the tractor as a

unit ever crossed state lines.

In the first Bishop case it was held that the basic in-

ference from the facts present was sufficient to establish

the elements of the offense there charged. Thus, there

existed a more or less whole vehicle which was in the

actual and constructive possession of the accused. It can-

not be said from the evidence that defendant possessed

a motor vehicle. The deductive process cannot be stretched

far enough to allow a jury to infer that the appellant

received a stolen motor vehicle. The government’s own

evidence established at most that the defendant had re-

ceived certain parts. Accordingly, it would be highly im-

—da— 74-1697

proper to indulge the inference which arises from posses-

sion of stolen property.’

We are cognizant that the federal courts have tended to

construe the D er Act in broad terms. See United States

v. Turley, 352 U.S. 407 (1957).* Regardless of the breadth

of interpretation, transportation or receipt of parts alone

has not been held to be sufficient. The Bits cases,

supra, recognize this. At the same time, we ce clear

our position that a person cannot avoid prosecution and

conviction by the simple subterfuge of taking a vehicle

8

i

tle

i

i

ne

cit

8 fy

yt

239 F. 123 (E.D. Tenn. 1965) (Defendant could not be

6 Sas te Act where he put the body alone of a stolen

on the frame of a legitimately purchased car. The body clone cannot

74-1698 —ba—

The government also complains that the defendant-

appellant failed to raise this issue at trial and failed to

object to the instructions as well. The government asserts

that this constitutes a waiver. We —— that failure

to object to instructions bars the appe t from raising

objections on appeal. Rule 30, Fed. Rules Crim. Proc.

But where an error is plain, notice may be taken of it

under Rule 52, and the failure of the evidence to satis

the statutory definition here is of sufficient plainness an

magnitude to justify its now being considered.

In sum, then: a pellant was indicted for receiving

and concealing a te semi-tractor, knowing it to have

heen stolen. e evidence showed only receipt of cer-

tain parts of the stolen tractor. It was undisputed that the

arts alone did not constitute a self-propelled vehicle.

here was no showing of the receipt or concealment of a

motor vehicle as defined by the statute.

Defendant also argues that the evidence was insuffi-

cient. We need not consider this question.

The judgment is reversed and the cause is remanded

with instructions to dismiss the cause.

A true Copy:

Teste:

COSPOS OOOO OSES OOSE SORE SESSSSDES SONS ESE SCOR SESS OSeOCCSO SSCS OOENSeeoCCS

Clerk of the United States Court of

Appeals for the Seventh Circuit.