Petition — Reed v. United States

‘| Office Supreme Court, U.S.

B QO - 2 1 9 8 i )

JUN 2 9 1981

No.

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es WE sicitihee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

HUGH L. REED

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

H. LOUIS SIRKIN

105 West 4th Street — Suite 832

Cincinnati, Ohio 45202

Telephone (513) 721-4876

Counsel of Record for Petitioner,

and

HOWARD M. SCHWARTZ

105 West 4th Street — Suite 832°

Cincinnati, Ohio 45202

Telephone (513) 721-4876

Of Counsel

COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 46202 — (513) 241-1450

QUESTION PRESENTED FOR REVIEW

Does Prosecutorial Misconduct In The Repetitious

Utilization Of Generalized Bad Act Evidence By The

Government For The Sole Purpose Of Impugning A

Defendant’s Character Warrant A Retrial When There

Is No Justifiable Evidentiary Purpose Served By Such

Testimony.

PARTIES TO THE PROCEEDING

Although the Parties to this proceeding are only the Peti-

tioner, Hugh L. Reed, and the Respondent, United States

of America, this matter was consolidated in the Sixth Circuit

with the appeals of Jay D. Hatton (No. 80-5042), Kerry

M. Martin (No. 80-5043), Thomas C. Lawson (No. 80-5044)

and Charles M. Terrell (No. 80-5072).

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ I

PARTIES TO THE PROCEEDING .................- I

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TABLE OF AUTHORITIES .......ccccccccccccccces IV

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CONSTITUTIONAL PROVISION ...........0-00000 2

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REASONS RELIED ON FOR THE ALLOWANCE

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APPENDIX A (Opinions And Judgments Below) .... 1a-23a

APPENDIX 3 (Constitutional And Statutory Provisions) 24a

IV.

TABLE OF AUTHORITIES

Cases Cited: Page

Michelson v. United States, 335 U.S. 469, 69 S.Ct.

OSS UO Oe CIE) ooo ss ouases less 5

United States v. Blanton, 520 F. 2d 907 (CA 6,1975).. 5

United States v. Carter, 482 F. 2d 738 (CA-DC, 1973) %

United States v. Dean, 435 F. 2d 1 (CA 6, 1970) ...... 5

United States v. Phillips, 599 F. 2d 134, 137 (CA 6,

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Constitutional And Statutory Provisions Cited:

Fifth Amendment, United States Constitution ...... 2

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Federal Rules of Evidence 404(b) ........ bhevcstes 5

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

HUGH L. REED

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR CERTIORARI

OPINIONS BELOW

The opinion and judgment of the United States Court of

Appeals for the Sixth Circuit appear as Appendix A. No

written opinion or judgment was rendered by the District

Court on this issue.

JURISDICTION

The judgment of the United States Court of Appeals for

the Sixth Circuit was filed on April 29, 1981, and affirmed

in part and reversed in part the judgment of the District Court

and remanded the case for merger of Counts 1 and 2.

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1254 (1), a copy of which is contained in Appendix

B herein.

2

CONSTITUTIONAL PROVISION

The constitutional provision which is involved herein is

the Fifth Amendment to the United States Constitution, a

copy of which is contained in Appendix B herein.

STATEMENT OF THE CASE

Petitioner, Hugh L. Reed, was indicted on October 24,

1979, by a Grand Jury of the United States District Court for

the Southern District of Ohio, Western Division. That indict-

ment, No. CR-1-79-75-5, alleged three (3) violations by

Petitioner of 18 U.S.C. § 2315 and 2, receiving and concealing

stolen goods and wares having a value in excess of $5,000.00

which were moving as, were a part of, and constituted inter-

state commerce into the State of Ohio, knowing the same to

have been stolen. Petitioner was jointly charged in all three

Counts with Kerry M. Martin, in Counts I and II with Thomas

C. Lawson and Charles M. Terrell, in Count II with Dock M.

Gibbs, and Count III with Jay D. Hatton. On December 3,

1979, a jury was impaneled and trial began. While no criminal

conspiracy count was included in the Indictment, the Gov-

ernment’s prosecution proceeded on the theory that each of

the Defendants were participants in a joint burglary and

fencing operation.

The evidence at trial showed that during the months from

February, 1978 through December, 1978, special agents of

the F.B.L., in cooperation with the local police of Middletown,

were involved in an operation referred to by the code-name

of HAMFAT, Hamilton and Middletown Fences and Thieves.

An undercover agent of the F.B.I., Richard Dorton, and a

paid Government informer, Robert Miller, who was a con-

victed felon, initiated numerous contacts with a group of

individuals in the Hamilton-Middletown, Ohio, area for the

purpose of negotiating the sale of stolen property.

3

The evidence disclosed that certain sterling silver and

jewelry during this time period came into the possession of

one or more of the six co-defendants in this matter. No evi-

dence was offered or admitted as to the identity of the

individuals who committed the burglary or when any of the

Defendants initially received the stolen goods. The evidence

further showed that certain of this property on one or more

occasions was purchased by the informer, Miller, or agent,

Dorton.

During the Government’s case in chief the character of

Petitioner and the other Co-Defendants was impugned and

their way of life was subjected to ridicule. Specifically, the

Government’s witnesses, Miller and Dorton, prompted by

improper questions, over objections, gave testimony concern-

ing the Defendants’ past generalized associations with known

thieves and their frequenting the Office II Bar, which was

described for the jury as a hangout for thieves.

Specific testimony elicited at the outset of Miller's testimony

was as follows:

At page 177:

Q. What kind of work did you do with Mr. Martin?

A. I burglarized homes.

At page 180:

Q. Do you know, of your own knowledge, what kinds of

work, if any, Mr. Hatton does?

Attorney: Objection

Court: He may answer.

A. The only kind of work that I know of him doing is

burglarizing houses and selling the merchandise to

fences.

A limiting instruction was then given by the Court:

The Court: The jury will please disregard the answer.

These are discretionary rulings, you all recognize, based

on value. The prejudice exceeds the value, so the jury

will please disregard the question and answer,

4

The witness then continued at page 181:

Q. Do you have knowledge of all kinds and types of work

that Hughie Reed has done?

A. Yes.

At page 182:

Q. Mr. Miller did you ever work at any time with Tommy

Lawson?

A. Yes, sir.

Q. Doing what kind and type of work?

Attorney: Objection.

A. (Answered at side bench.) The only kind of work I

did with him was housebreaking.

Court: Objection sustained.

Q. One final question in this area, Mr. Miller. Of your

own knowledge, do you know the kinds and type of

work, if any, that Tommy Lawson does? Answer the

question, please, just yes or no.

A. Yes, I do.

On December 14, 1979, the jury returned its verdict finding

all Defendants guilty on all charges. Subsequently, on Janu-

ary 22, 1980, Petitioner was ordered committed to the custody

of the Attorney General for imprisonment of thirty (30)

years, ten (10) years on each Count to run consecutive to

each other, and a fine of Thirty Thousand ($30,000.00) Dol-

lars, Ten Thousand ($10,000.00) Doilars on each Count.

On appeal, the Sixth Circuit reversed in part, ordering a

merger of Counts I and II, and affirmed on the remaining

issues. The appellate court found that the Government's

persistent conduct in impugning the Defendants’ characters

was objectionable and improper, but ruled that it was harm-

less error based upon all evidence offered.

5

REASONS RELIED ON FOR THE ALLOWANCE

OF THE WRIT

This case presents squarely the due process issue of a

Petitioner's right to a fair and impartial trial before a jury

who has not pre-judged him based upon allegations of general-

ized bad character. As this Court said in Michelson v. United

States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948),

evidence of a defendant’s evil character to establish a proba-

bility of his guilt,

“is not rejected because character is irrelevant; on

the contrary, it is said to weigh too much with the jury

and to so overpersuade them as to prejudge one with a

bad general record and deny him a fair opportunity to

defend against a particular charge. The overriding

policy of excluding such evidence, despite its admitted

probative value, is the practical experience that its

disallowance tends to prevent confusion of issues, unfair

surprise and undue prejudice.” 335 U.S. at 475

Although the Government attempted to justify this bad

character evidence on the basis of Fed. R.. Evid. 404(b), to

establish intent, these references were solely of a general

nature with no specific substantive or temporal relationship

to the offense charge. As stated in United States v. Phillips,

599 F. 2d 134, 137, (CA 6, 1979), “There was no justifiable

evidentiary purpose served by general testimony . . .” about

Defendants’ prior bad acts.

While objections to the government's tactics were generally

upheld, and limiting instructions frequently given, the pre-

judicial impact on the jury of the impression of the Defen-

dants’ collective bad character cannot be questioned. See:

United States v. Carter, 482 F. 2d 738 (CA-DC, 1973);

United States v. Dean, 435 F. 2d 1, (CA 6, 1970); and United

States v. Blanton, 520 F. 2d 907 (CA 6, 1975). Furthermore,

the prosecutor’s continuing efforts to elicit bad character evi-

dence after the Court’s admonitions, was an improper ploy

6

which succeeded in taking advantage of implications from

previously expunged testimony.

The Sixth Circuit found that the prosecutor's actions con-

stituted misconduct but found such error did not affect the

outcome of the trial. Petitioner respectfully submits that

such a position ignores the seriousness of the prejudicial

impact on the jury as a result of this inadmissible evidence

being continually placed before them. The prosecutor’s de-

liberate injection of the testimony left such prior unrelated

conduct of Defendants indelibly etched in the minds of the

jurors. This issue is substantial and requires further con-

sideration since the failure to review this matter would allow

such conduct by the prosecutor to remain all to the prejudice

of Petitioner.

CONCLUSION

Petitioner respectfully submits that his Petition for a Writ

of Certiorari should be granted.

Respectfully submitted,

H. LOUIS SIRKIN

Attorney for Petitioner

and

HOWARD M. SCHWARTZ

Of Counsel

APPENDIX A

OPINIONS AND JUDGMENTS BELOW

Nos. 80-5041, 5042, 5043, 5044, and 5072

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UniTep STATES OF AMERICA,

Plaintiff-Appellee,

. APPEAL from the

United States District

Hucu Reep, Jay D. Hatron, Kerry| (Court for the South-

M. Martin, Tuomas C. Lawson,| ern District of Ohio.

and Cuarves M. TERRELL,

Defendants-Appellants. |

Decided and Filed April 29, 1981.

Before: Ence., Kerru and Merritt, Circuit Judges.

Encz., Circuit Judge.

Defendants Hugh L. Reed, Jay D. Hatton, Kerry M. Mar-

tin, Thomas C. Lawson, and Charles M. Terrell were charged

jointly in a three count indictment with receiving and con-

cealing stolen goods and wares having a value in excess of

$5,000 and traveling through interstate commerce, in viola-

tion of 18 U.S.C. §§ 2315 and 2 (1976). Count 1 involved cer-

tain property stolen from Dr. Randolph and Ruth Anderson and

transported from West Virginia to Ohio. Count 2 involved prop-

la

2a

erty stolen from Carl and Helen Helman in Kentucky and

to Ohio. Count 3 involved property stolen from

Lloyd and Doris Rosenbaum and Fred Bose in Indiana and

transported to Ohio.

Martin and Reed were charged in all three counts; Lawson

and Terrell were charged in counts 1 and 2; and Hatton was

chargee in count 3 only. Jury trial commenced on December

3, 1979, and on December 14, after approximately one day of

deliberations, the jury returned a verdict of guilty against

all defendants on all charges. Thereafter the trial court im-

posed the maximum sentence of 10 years imprisonment and

$10,000 fine on each defendant for each count. The trial judge

ordered the sentences to run consecutively. All defendants

appeal.

While no criminal conspiracy count was included in the

indictment, the government's prosecution of the substantive

offenses proceeded on the theory that the defendants were

participants in a burglary and fencing operation which cen-

tered in Middletown, Ohio. The operation was broken when

a convicted Middletown burglar, one Robert Miller, agreed

to cooperate with federal authorities in exchange for possible

lenient treatment on a number of outstanding charges against

him. FBI special agent Richard Dorton, using the name Dick

Dalton and posing as a Floridian dealer in stolen property,

was brought in as an undercover agent to work with Miller

and infiltrate the Middletown burglary and fencing ring.

The proof showed that in October 1978, Miller met with

defendant Reed at the Office II Bar in Middletown and at that

time Miller agreed to buy sterling silver from Reed at $55

per pound. Four days later, defendant Martin telephoned

Miller informing him that he had some merchandise for sale.

The next day Miller again met with Reed who described the

silver and jewelry that Martin had procured and wished to sell.

On that same day Miller went to defendant Lawson’s home

and there met with Lawson, Martin and Terrell. Silverware

3a’: 4

and jewelry were exhibited. Miller tested, weighed, sorted and

eventually purchased the silver; however, the jewelry was not

purchasd. The silver alone constitutes the property forming

the basis for count 1.

On October 31, 1978, Miller met Martin at Lawson’s resi-

dence where the jewelry which had been exhibited earlier

was inventoried and given to Miller who was to show it to

Dorton. The defendants all knew and apparently trusted

Miller but were less certain about Dorton. When Miller de-

livered the jewelry to Dorton, he photographed it and gave it

back to Miller who, in turn, returned the jewelry to Martin.

On November 20, 1978, Miller and Dorton traveled to

Terrell’s residence where Martin produced a bag containing

twenty-six jewelry pieces, all of which had been seen and

photographed by Dorton on October 31. Four other pieces

also previously seen and photographed by Dorton were later

revealed. An agreement to sell the twenty-six pieces was con-

cluded and Dorton made a $2,000 down payment. The next

day Dorton met with Martin and Lawson and paid an addi-

tional $6,500, receiving the four additional pieces of jewelry

in return. These thirty pieces of jewelry constitute the stolen

property described in count 2 of the indictment.

On December 11, 1978, Dorton and Miller met Reed and

defendant Hatton to discuss another transaction. The follow-

ing day Dorton met Hatton and Martin at Miller’s home and

there purchased an additional lot of jewelry and silverware.

This property, as well as some ceramic “Toby” mugs which

Hatton revealed at that time, constitute the property described

in count 3 of the indictment.

Two principal issues are presented on appeal: (1) whether

tne offenses described in counts 1 and 2 were in fact one

offense for which only one sentence ought to have been im-

posed, rather than the consecutive sentences handed down,

and (2) whether the defendants were prejudiced by certain

prior “bad act” evidence brought to the attention of the jury.

4a

The first question raises the issue of what Congress intended

to be the “appropriate unit of prosecution” for violations of

18 U.S.C. § 2315. In its brief, the government relies upon

Gore v. United States, 357 U.S. 386 (1958), and argues that

since different evidence supports and proves each count,

separate offenses properly were charged. Specifically, during

oral argument the government referred to Blockburger v.

United States, 284 U.S. 299 (1932), and argued that the stolen

property forming the basis for counts 1 and 2 was obtained

from separate burglaries; therefore, the court could presume

that the property was received at different times, thereby

constituting separate violations of the statute. Moreover, the

government contends that although both the jewelry and sil-

verware were concealed and then revealed to Miller on Oc-

tober 30th, the jewelry was reconcealed and again revealed

on October 3lst and November 30th. Finally, at oral argu-

ment, the government suggested that the source of the stolen

property provides the appropriate unit of prosecution under

18 U.S.C. § 2315; therefore, proof of different sources (i.e.

separate burglaries) would justify separate counts.

We think it rather clear that Gore involved a different ques-

tion: whether the Double Jeopardy Clause precludes separate

convictions under two separate statutes for the same criminal

act. We are not concerned with such a situation here, but

rather with the narrower question of what operative facts

Congress intended to form the basis for a separate and dis-

tinct violation of 18 U.S.C. § 2315.

We also observe at the outset, as did Judge Weick in United

States v. Jones, 533 F.2d 1387 (6th Cir. 1976), cert. denivd,

431 U.S. 964 (1977), that Blockburger’s “same facts test”

does not apply to multiple counts under a single statutory pro-

vision where the offense involves a course of criminal conduct.

Thus in United States v. Woods, 568 F.2d 509 (6th Cir.),

cert. denied, 435 U.S. 972 (1978), we observed:

5a

Here we are not concerned with whether a single act

violates a multiplicity of statutes as in Gore and Block-

burger. Rather, we face what the Supreme Court has

recognized to be a different issue: whether a course of

conduct — here, possession [of narcotics] with intent to

distribute — can result in multiple violations of the same

statute. . . . Our court has held that the “same facts”

test in Blockburger is inapplicable to offenses charging a

course of conduct, at least where Congress has not indi-

cated the appropriate unit of prosecution.

Woods, supra, 568 F.2d at 514 n.1 (citations omitted )."

' The government's brief also cites to Hackett v. United States, 348

F.2d 883 (6th Cir. 1965), cert. denied, 382 U.S. 1029 (1966), and

United States v. Noel, 490 F.2d 89 (6th Cir. 1974). In Hackett, the

defendant was convicted on four counts of unlawful possession and sale

of heroin, the transactions occurring on two separate dates. The posses-

sion and sale of the heroin on each date formed the basis for two

separate counts, one for possession and the other for sale. On appeal

the defendant argued that counts 1 and 2 for possession and sale on

a particular date should have been merged, as should counts 3 and 4

pertaining to the possession and sale of heroin at the later date. Our

court upheld the convictions and the separate counts finding that posses-

sion and sale of heroin were separate offenses under separate sections of

the federal narcotics laws. Hackett is distinguishable from the present

appeal inasmuch as two statutes were involved (as in Gore), whereas

here only one statute is alleged to have been violated. Somewhat closer

is the per curiam opinion of our court in Noel. There the defendant

was charged with two counts of aiding and abetting in the sale of 104

grams of a substance containing heroin and another count of aiding and

abetting in the sale of .76 grams of a substance containing heroin, both

on the same day and through the same agent. Our court in that case,

however, distinguished the two counts on the basis that the proof showed

that the two “spoons” of heroin were obtained for two separate indi-

viduals, although the sale of each was made on the same day and

through the same agent. Whatever may be the precedential value of

this opinion, it is worth noting in any event the court specifically took

notice of the fact that the sentences on all three counts were designated

to run concurrently.

6a

Considering how long 18 U.S.C. § 2315 has been on the

books, we are surprised to uncover no published decisions

applying the merger doctrine to this act. A careful exami-

nation of Supreme Court decisions, the legislative history of

the statute, and decisions of our circuit in other similar cases,

however, persuades us that upon the alsgations set forth in

counts 1 and 2 and the proofs adduced in support thereof, the

two offenses should be merged and only one sentence ought to

have been imposed against each defendant convicted on counts

1 and 2.

In Bell v. United States, 349 U.S. 81 (1955), the Supreme

Court reversed a decision of our circuit and held that an in-

dividual transporting two women across state lines for im-

moral purposes could be found guilty of only one single act

of transportation in violation of the Mann Act. In so ruling,

the Court examined the statutory language in its entirety, and

articulated the following rule of statutory construction which

guides us here:

When Congress has the will it has no difficulty in ex-

pressing it — when it has the will, that is, of defining what

” it desires to make the unit of prosecution and, more par-

ticularly, to make each stick in a faggot a single criminal

unit. When Congress leaves to the Judiciary the task of

imputing to Congress an undeclared will, the ambiguity

should be resolved in favor of lenity. . . . It may fairly be

said to be a presupposition of our law to resolve doubts

in the enfircement of a penal code against the imposition

of a harsher punishment. . . . /I]f Congress does not fix

the punishment for a criminal offense clearly and without

ambiguity, doubt will be resolved against turning a single

transaction into multiple offenses. . . .

Bell, supra, 349 U.S. at 83-84 (emphasis added ).?

2 Again in Ladner v. United States, 358 U.S. 169 (1958), the de-

fendant was charged in two separate counts of an indictment with

violation of 18 U.S.C. § 254 prohibiting assault on a federal officer in

7a

Thus, we first turn to the language and legislative history

of 18 U.S.C. § 2315. This provision of the criminal code pro-

vides:

Whoever receives, conceals, stores, barters, sells, or

disposes of any goods, wares, or merchandise, securities,

the performance of his duty. Proofs there showed that the defendant

had discharged a shotgun into the front seat of an automobile thereby

wounding two federal officers. This posed the question whether Con-

gress meant that a single discharge of a shotgun would constitute one

assault and thus only one offense regardless of the number of officers

who had been injured, or whether Congress intended to define a

separate offense for each federal officer affected by the shotgun blast.

Relying upon Bell, supra, and upon United States v. Universal CIT

Credit Corporation, 344 U.S, 218 (1952), the Supreme Court held that

a general judicial policy of lenity prohibits interpreting a federal criminal

statute to increase the penalty “it places on an indvidual when such an

interpretation can be based on no more than a guess as to what Congress

intended.” Ladner, supra, 358 U.S. at 178.

After examining the statutory language and relevant legislative history,

the Court stated:

If Congress desires to create multiple offenses from a single act

affecting more than one federal officer, Congress can make that

meaning clear. We thus hold that the single discharge of a

shotgun alleged by the petitioner in this case would constitute

only a single violation of § 254.

Id. See also United States v. Woods, 568 F.2d 509 (6th Cir.), cert.

denied, 435 U.S. 972 (1978), where the defendant had been found

guilty on four separate counts of an indictment charging violations of

the narcotics laws. On appeal, our court merged counts 1 and 2 which

essentially charged Woods with possession of specific but different

amounts of the same drug at the same time. Examining the legislative

history of the narcotics laws in issue, we observed:

However, as long as the statute does not graduate the gravity

of the crime of possession of heroin by the quantity possessed,

we see no indication that Congress intended to permit a mul-

tiplication of the offenses of possession at any given time by a

defendant upon evidence that the heroin may merely have been

separately packaged or stashed.

Id., at 513.

8a

or money of the value of $5,000 or more, or pledges or

accepts as security for a loan any goods, wares, or mer-

chandise, or securities, of the value of $500 or more, mov-

ing as, or which are a part of, or which constitute inter-

state or foreign commerce, knowing the same to have

been stolen, unlawfully converted, or taken; or

Whoever receives, conceals, stores, barters, sells, or

disposes of any falsely made, forged, altered, or counter-

feited securities or tax stamps, or pledges or accepts as

security for a loan any falsely made, forged, altered, or

counterfeited securities or tax stamps, moving as, or

which are a part of, or which constitute interstate or

foreign commerce, knowing the same to have been so

falsely made, forged, altered, or counterfeited; or

Whoever receives in interstate or foreign commerce, or

conceals, stores, barters, sells, or disposes of, any tool,

implement, or thing used or intended to be used in falsely

making, forging, altering, or counterfeiting any security or

tax stamp, or any part thereof, moving as, or which is a

part of, or which constitutes interstate or foreign com-

merce, knowing that the same is fitted to be used, or has

been used, in falsely making, forging, altering, or coun-

terfeiting any security or tax stamp, or any part thereof—

Shall be fined not more than $10,000 or imprisoned not

more than ten years, or both.

There is scant legislative history on 18 U.S.C. § 2315. The

forerunner of this provision is § 4 of the National Motor Ve-

hicle Theft Act, ch. 89, 41 Stat. 324, enacted October 29,

1919 (hereinafter “NMVTA”). This statute, now emboided

as amended in 18 U.S.C. § 2311, et seq. (1976), originally pro-

vided in Sections 3 and 4 thereof;

That whoever shall transport or cause to be transported

in interstate or foreign commerce a motor vehicle, know-

ing the same to have been stolen, shall be punished by a

fine of not more than $5,000, or by imprisonment of not

more than five years, or both.

9a

That whoever shall receive, conceal, store, barter, or dis-

pose of any motor vehicle . . . knowing the same to be

stolen, shall be punished by a fine of not more than $5,000,

or by imprisonment of not more than five years, or both.

House Report No. 66-312, dated September 12, 1919, and

accompanying H.R. 9203 (which was later enacted as the

NMVTA), was relatively brief. It discussed the magnitude

of the stolen vehicle problem, the impact of this problem on

insurance rates and availability, and noted that stolen vehicles

were transported in interstate commerce in order to facilitate

their subsequent sale. The report evidences considerable

concern with the constitutionality of the Act, referring spe-

cifically to the Supreme Court's decision in the Lottery Case,

188 U.S. 321 (1903). There, by a 5-4 majority, the Court up-

held the authority of the Congress under the Commerce Clause

to regulate interstate traffic in lottery tickets. House Report

No. 66-312, on page 4, stated:

The purpose of the proposed law is to suppress crime in

interstate commerce. . . . No good reason exists why

Congress invested with the power to regulate commerce

among the several States, should not provide that such

commerce should not be polluted by the carrying of

stolen property from one State to another. Congress is

the only power competent to legislate upon this evil, and

the — of this bill is to crush it, with the penalties

atta ,

The NMVTA, of course, applied only to stolen automobiles,

After two earlier unsuccessful efforts to amend the statute, the

Congress on May 22, 1934, enacted the National Stolen Prop-

erty Act, ch, 333, 48 Stat. 794 (the “NSPA”), which amended

the NMVTA by extending its coverage to all types of stolen

property and securities. A further amendment on August 3,

1939, ch. 413, 53 Stat. 1178, extending coverage to forged

securities, was accompanied by House Report No. 76-422,

dated April 18, 1939. That report merely observed that the

10a

purpose of Section 4 of the NSPA (codified as 18 U.S.C.

§ 2315 with which we are concerned on this appeal) was to

deter the receipt of stolen property transported in interstate

commerce. None of the legislative history specifically reflects

any precise congressional concern with determining what the

appropriate unit of prosecution should be in such cases other

than that its total value must of course exceed $5,000. Based

upon the paucity of guidance from the legislative history, Bell

would dictate that the statute be construed in favor of lenity.

As we noted at the outset, we have found no cases that have

examined 18 U.S.C. § 2315, with a view to resolving the issue

before our court today. However, we note that in 1961 the

Supreme Court vacated per curiam the Fifth Circuit’s decision

in Castle v. United States, 287 F.2d 657 (5th Cir. 1961). See

Castle v. United States, 368 U.S. 13 (1961). There the pe-

titioner was convicted on five separate counts of violating

18 U.S.C. § 2314, which prohibits the interstate transportation

of forged or altered securities. Petitioner had transported

five forged money orders across state lines, but all at the same

time. Relying upon Bell and the rule of lenity for construing

ambiguous statutes, the Court found that petitioner could be

convicted of only one offense even though he had transported

five separate forged securities. It is of some note that 18

U.S.C. § 2314 is very similar to 18 U.S.C. § 2315, the provision

under review today. In fact, both provisions are based upon

the same original legislation — the NMVTA.

We believe that recent decisions in our circuit support our

decision to merge counts 1 and 2. In United States v. Jones,

supra, the defendant was convicted on three counts of a five

count indictment charging him with possession of a firearm as a

convicted felon in violation of 18 U.S.C. app. § 1202/a) (1976).

The three counts of the indictment involved the same firearm,

but entailed three different occasions when the police observed

the weapon in the defendant’s possession. On appeal, Jones

contended that the multiple convictions violated the Double

Jeopardy Clause of the Fifth Amendment since only one of-

fense had been committed under the statute. Writing for the

lla

majority, Judge Weick relied upon Crepps v. Durden, Cowper

640 (K.B. 1777), for the proposition that a series of acts con-

stituting a course of conduct are not punishable separately if

the legislature intended to punish the course of conduct alone:

Possession is a course of conduct, not an act; by pro-

hibiting possession Congress intended to punish as one

offense all of the acts of dominion which demonstrate a

continuing possessory interest in a firearm. If Congress

had wished to punish each act of dominion it could have

done so easily by forbidding the acts of dominion instead

of the course of conduct.

Jones, supra, 533 F.2d at 1391. Judge Weick then relied upon

Bell, as authority for construing an ambiguous statute in

favor of lenity.

Again, in United States v. Rosenbarger, 536 F.2d 715 (6th

Cir. 1976), cert. denied, 431 U.S. 965 (1977), the defendant

was convicted in a three count indictment charging him with

receiving and possessing firearms after having been convicted

of a felony, in violation of 18 U.S.C. app. § 1202(a)(1). Dur-

ing a single search of his home, the police discovered three

weapons; his possession of each was the subject of a separate

count. Once more our court held that under the circumstances

only one offense was charged under Section 1202(a)(1),

regardless of the number of firearms involved and absent a

showing that the firearms were stored or acquired at different

times or places. Relying upon Bell, the court found that 18

U.S.C. app. § 1202(a)(1) was ambiguous as to the appropriate

unit of prosecution and therefore should be construed in favor

of lenity. Noting that 18 U.S.C. app. §1202(a)(1) refers to

the possession of “any” firearm, Judge Weick observed “If

Congress had desired to create a separate offense on the basis

of each firearm possessed, this could have been easily written

into the statute.” Id., at 721.3 In like fashion, 18 U.S.C.

3 Recent decisions in this and other circuits have cited Rosen-

barger with approval. See United States v. Hickman, 592 F.2d

12a

§ 2315 prohibits the receipt or concealment of “any” property

having a value in excess of $5,000 and traveling in interstate

commerce.

Somewhat akin to Rosenbarger, the government here

claims that separate offenses are stated in counts 1 and

2 because the property forming the basis for those two counts

was obtained from separate and distinct sources. The count

1 property was taken from the home of Dr. Ralph and Ruth

Anderson in West Virginia while the count 2 property was

taken from the home of Carl and Helen Helman in Kentucky.

Since the merchandise was acquired from different sources at

presumably different times, the government suggests that the

defendants received the property at different times; therefore

no injustice exists in treating the two counts as entirely sep-

arate offenses.

Yet, the defendants were not in fact charged with theft of

the property involved but rather its receipt and concealment

on a given date. While it is true that there was evidence con-

cerning the different dates the property was stolen it is not

alleged that the defendants themselves actually stole or re-

ceived the property on those dates. That this is true is made

manifestly clear from the government's own brief:

On October 30, 1978, (A.90-92) witness Miller viewed,

examined, tested and agreed to purchase the Count I

sterling silver which was stolen on October 21, 1978 in

Charleston, West Virginia, (A.238-240). Miller also saw,

at this time, the Count II jewelry (A.94) which was stolen

on October 14, 1978 in Louisville, Kentucky, (A.242-246),

and “ae was retained and reconcealed by Appellants.

(A.95).

931 (6th Cir. 1979); United States v. Killebrew, 560 F.2d 729 (6th

Cir. 1977); United States v. Bullock, 615 F.2d 1082 (5th Cir. 1980);

United States v. Causey, 609 F.2d 777 (5th Cir. 1980); United States

v. Smith, 591 F.2d 1105 (5th Cir. 1979); United States v. Powers, 572

F.2d 146 (8th Cir. 1978).

13a

Brief for Appellee at 31. From the very recitation of facts,

it appears that the evidence relates to the presence at the

same time of the silver and jewelry which had been stolen

earlier in West Virginia and in Kentucky. Given that the

unlawful act alleged in each count was that the defendants

“did receive and conceal” on the date in question, thereby

implying a course of conduct, we believe that our prior deci-

sions, especially Rosenbarger, support the merger of counts

1 and 2, especially since the statute itself is ambiguous as to

the appropriate unit of prosecution. There is no indication

that the source of the stolen property was to delineate the

appropriate unit of prosecution. Regardless of where the

property came from or how the defendants came to have it, the

proofs tend to show a course of illegal conduct as to counts

1 and 2. Under such circumstances the ambiguity inherent

in this statute requires the application of Bell’s rule of lenity

and a resulting merger of those counts.

The defendants complain of several instances during the

trial where their character was impugned and their way of

life was subjected to ridicule. Specifically, the defendants

claim the government’s witnesses (in particular collaborator

Miller and agent Dorton), prompted by improper questions,

gave testimony concerning the defendants’ past association

with known thieves and their frequenting the Office II Bar,

which was described for the jury as a “hangout for thieves.”

Moreover, there were numerous references to the “Middle-

town Gang,” as well as the “HAMFAT Operation” which was

described to the jury as an undercover operation aimed at

thieves and fences.

The government seeks to justify these questions and this

testimony on the basis of Fed. R. Evid. 404(b), which permits

evidence of prior misconduct to be used in certain limited cir-

cumstances — namely, when an issue exists as to the defen-

l4a

dant’s intent, motive, guilty knowledge, common plan or

scheme, absence of mistake or accident.*

The government also contends that a conviction under 18

U.S.C. § 2315 requires proof of specific intent; therefore, in

order to carry its burden of proof, the government maintains

it may introduce bad act evidence as part of its case in chief,

whether or not the defendants actually place their character

or intent in issue. The government relies primarily upon

United States v. Weidman, 572 F.2d 1199 (7th Cir.), cert.

denied, 439 U.S. 821 (1978), for this proposition.

Although our decision in United States v. Ring, 513 F.2d

1001 (6th Cir. 1975), noted that receipt of stolen property

(i.e. 18 U.S.C. § 2315) was a specific intent crime, that de-

cision also held that bad act evidence must be substantially

similar and near in time to the crimes being prosecuted before

it can be admitted to show intent, motive, or some other

specific exception under Rule 404(b). See Ring, supra, at

1005. Accord, United States v. Czarnecki, 552 F.2d 698, 702

(6th Cir.), cert. denied, 431 U.S. 939 (1977); United States

v. Largent, 545 F.2d 1039, 1043 (6th Cir. 1976), cert. denied,

429 U.S. 1098 (1977); United States v. Mahar, 519 F.2d 1272

(6th Cir.), cert. denied, 423 U.S. 1020 (1975).

The references to alleged past criminal associations were of

a general nature; there was no testimony as to specific prior

bad acts or their substantive or temporal relationship to the

offense charged. Rule 404(b) and our prior decisions do not

countenance the use of generalized bad act evidence for the

purpose of impugning a defendant’s character. As Judge

Merritt noted in United States v. Phillips, 599 F.2d 134, 137

(6th Cir. 1979), “There was no justifiable evidentiary purpose

4 Rule 404(b) reads:

Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show that he acted in con-

formity therewith. It may, however, be admissible for other pur-

plan,

poses, such as proof of motive, opportunity, intent, preparation,

knowledge, identity, or absence of mistake or accident.

15a

served by general testimony . . .” about defendant's prior bad

acts,

We observe at the outset that there was too much of this

in this trial, and that while the trial judge made a diligent

effort to exclude the evidence or to strike it when it slipped in,

he did not altogether succeed. Thus, the Office II Bar in

Middletown, Ohio, where much of the activity occurred, was

described as a favorite haunt for felons and thieves, impliedly

painting all patrons, including the defendants, with the same

brush. And the most objectionable conduct came in the direct

examination of the government informer, an experienced

burglar who was trying to escape prosecution on a number of

outstanding felony charges by cooperating with the federal

authorities. The technique employed by the prosecutor was

to question Miller concerning his knowledge of the occupation

of each of the defendants, thereby eliciting the fact that each

was a known burglar or fence. While objections to these

questions were generally upheld and the jury was frequently

cautioned to ignore the testimony, it would be idle to believe

that the impression of the defendants’ collective bad character

was not placed before the jury. Further, the prosecutor's

subsequent effort to elicit whether Miller knew the defendants’

occupations, without pursuing the matter further, appears a

cunning ploy to get around the court’s admonition by taking

advantage of implications from the previously expunged

testimony.

We believe the foregoing constituted misconduct, particu-

larly where the prosecution persisted in this subtle method of

impugning the defendants’ characters. However, our role on

appeal is to review the record as a whole and ascertain if this

error so adversely affected the substantial rights of the defen-

dants as to compel reversal, Kotteakos v. United States, 328

U.S. 750 (1946), Fed. R. Crim. Pro. 52, or even if not, whether

the exercise of our supervisory powers requires, as a matter of

sound judicial administration, the deterrent therapy of a new

trial. Each consideration involves separate values; both de-

mand informed appellate judgment.

16a

By far the most important consideration is the impact of any

error upon the right of the defendants to a fair trial. The ad-

mission of evidence of other wrongful acts, prior miscon-

duct or bad reputation in these circumstances was fraught

with great risk to the fairness of the trial. In this respect we

agree with the Second Circuit’s observation in United States

v. DeVaughn, 601 F.2d 42, 45 (2d Cir. 1979), that “‘[cJaution

and judgment are called for, and a trial judge faced with an

other crimes problem should require the Government to ex-

plain why the evidence is relevant and necessary.’”

We have reviewed the entire transcript of the case because

of the potential seriousness of the error. As frequently hap-

pens, such an examination tends to place the error in better

perspective and to provide the reviewer with a more accurate

evaluation of the actual impact of the error upon the outcome

of the case. Such a review here leads us to conclude that the

error was harmless.

We observe first that there is no clear-cut constitutional rule

to be applied. Rather, courts historically have differed on

this issue, interpreting and applying the federal rules of evi-

dence to the peculiar facts of each appeal. Thus, Rules 403

and 404 very frequently call for the introduction of evidence

far more damning than that here without any constitutional

implications. And as we noted in Czarnecki, “the legislative

history of [Rule 40(b)] suggests that there be greater em-

phasis on admissibility of [bad act] evidence.” Czarnecki,

supra, 552 F.2d at 702.

Most important, however, is the overwhelming strength of

the government's case. If the evidence properly admitted at

trial were otherwise equivocal it might be necessary to reverse.

The evidence, however, was not equivocal; on the contrary,

it was exceptionally conclusive. The defendants point to

Miller’s unreliability as a witness, claiming he had every

reason to testify favorably for the government in order to

save his own skin. Yet, his testimony was thoroughly corrobo-

rated by independent and trustworthy evidence in the form

of agent Dorton’s testimony, surveillance photographs and tape

17a

recordings of several incriminating conversations. Moreover,

the government introduced the stolen property itself. This

consisted of a virtual mountain of glittering jewelry and silver-

ware. Some of the defendants sought to put themselves as

far from the stolen goods as they could. However, the absence

of any persuasive explanation for their presence and conduct

when the stolen goods were displayed strongly demonstrated

their involvement in the course of criminal conduct for which

they were convicted. We are left with the unswerving con-

clusion that had the wrongful misconduct never occurred the

result would have been the same, and therefore any error was

harmless. See United States v. Hurst, 510 F.2d 1035 (6th

Cir. 1975); United States v. Ortiz, 507 F.2d 1224 (6th Cir.

1974).

Even though we may find that the error was harmless

and would not have affected the outcome of the trial, we

must still consider whether the exercise of our supervisory

responsibilities calls for reversal. Upon consideration, we

conclude that it does not.

We observe first that such questions ought in the first in-

stance to be left to the wise discretion of the trial judge. It is

he who has an opportunity to observe at first hand the impact

of the error and the nature of the conduct and the motivations

behind it. While the trial judge might more carefully have

required the government to explain fully the basis for the

questioning, there appears to have been a colorable claim of

right here. At least three defense counsel during opening

argument apparently raised issues of their clients’ intent and

participation in the criminal activity.’ While this does not

5 For example, during defense counsels’ opening arguments, the

following remarks were made to the jury:

I think what the evidence will show, the credible evidence,

is that Mr. Hatton is being charged here because he was in the

18a

open the door to generalized bad act evidence, under these

circumstances the government may have had a good faith be-

lief that the objectionable evidence, was necessary and ad-

missible.¢ Moreover, given the possibility of the government's

good faith, we must consider. the great expense to the court

and the public of requiring a new trial. Finally, our review of

the entire record indicates the constant fairness ‘of ‘the trial

judge and the evenhandedness with which he presided over the

trial. He frequently addressed the jury concerning the manner

in which it was to receive and consider evidence. He did not

hesitate to upbraid the prosecutor when he believed that the

government had overstepped its bounds, or to criticize wit-

nesses who, from excessive zeal, sought to volunteer more in-

I believe they call that guilt by association, which certainly is

not sufficient to sustain criminal conviction in our system.

Trial Transcript at 113.

The evidence of that transaction will show that Mitchell

Terrell got nothing, did nothing and was merely at a house

where this transaction took place. We don’t dispute he was

here. He was there, and we don’t dispute that he knows these

other individuals. The question is, was he involved in any

way? That's the way we view the evidence on the first count

on Micky Terrell.

Trial Transcript at 117. Other remarks by defense counsel for Messrs.

Terrell, Reed, and Hatton also denied involvement in the criminal

activity charged in the indictment. See generally Trial Transcript

at 112-118.

6 We observe that in United States v. Danzy, 594 F.2d 905, 913 (2d

Cir.), cert. denied, 441 U.S. 905 (1979), the court acknowledged that

relevant bad act evidence could be used when the defendant denies his

involvement in the crime charged. See also 2 J. Wigmore, Evidence

§ 304, at 202-204 (3d ed. 1940). Since we have found that the

evidence in this case was not substantively or temporally relevant to

the crimes charged in the indictment, we need not discuss the wisdom

of this interpretation of the Rule 404(b) exceptions. We merely

point out the existing authority as — support for the govern-

ment’s good faith in this case.

19a

formation and opinion than was required by a particular ques-

tion. Our review convinces us that the trial judge preserved

the essence of a fair trial.

Il

Several additional errors are asserted by the defendants,

none of which, however, we find of sufficient merit to warrant

extended discussion.

A great deal of argument both at trial and in the briefs

went to the accuracy of tape recordings admitted into evi-

dence, and of transcripts of these tapes that were given to

the jury while in court but not admitted into evidence. The

trial judge in all instances was particularly careful to caution

the juzy that the transcript employed was but a tool to assist

them in listening to the tapes, and that in all events the tape

recordings were the only relevant evidence which the jury

was to consider and weigh. Again, the trial judge’s decision

to admit the tapes into evidence was not eroneous and the

use of the transcripts, with the appropriate cautionary instruc-

tions, was not an abuse of discretion.

Certain of the defendants, and particularly Jay Hatton,

claim they should have been accorded a separate trial since

there was no charge of conspiracy and their mutual involve-

ment was insufficient to warrant a joint trial. They assert that

a joint trial in these circumstances seriously endangered their

presumption of innocence and could have led the jury to con-

vict them not on their own involvement but on their associ-

ation with others. Our review of the record satisfies us that

the trial judge did not abuse his discretion in refusing to order

separate trials. Admittedly, no conspiracy was charged. How-

ever, “[t]he fact that no conspiracy was charged does not

indicate that there was a misjoinder.” United States v. Russo,

480 F.2d 1228, 1237 (6th Cir. 1973), cert. denied, 414 U.S.

1157 (1974). Novertheless we note that even had the de-

fendants been granted separate trials, the prosecution could

20a

and would largely have introduced much if not all of the

same testimony against each defendant.

Moreover, it does not appear to be seriously argued that

the government was without power to join the, three counts

in one trial, within the language of Fed. R. Crim. Pro. 8.

Where defendants have been properly joined under Fed.

R. Crim. Pro. 8(b), a “strong showing of prejudice” must be

made in order to obtain a reversal. United States v. Thomann,

609 F.2d 560, 564 (1st Cir. 1979).”7 Furthermore, under Rule

14, the trial judge possesses broad discretion to grant or deny

a motion for severance, and only if an abuse of discretion is

demonstrated will a court of appeals overturn his decision.

See United States v. Jabora, 618 F.2d 1319, 1328 (1st Cir.),

cert. denied, 100 S.Ct. 2973 (1980), United States v. Ortiz,

603 F.2d 76, 78 (9th Cir. 1979), cert. denied, 100 S.Ct. 678

(1980). Given that the evidence against the defendants was

substantially similar as to each defendant, that there was

evidence showing their involvement in a series of acts or course

of conduct, and that the trial judge gave instructions regarding

the specific elements of the crime to be proven for each de-

fendant, we do not find an abuse of discretion in jointly trying

the defendants. See Jabora, supra; United States v. Zozlio,

617 F.2d 314 (1st Cir. 1980); United States v. Jackson, 549

F.2d 517 (8th Cir.), cert. denied, 430 U.S. 985 (1977) ;United

States v. Hamilton, 492 F.2d 1110 (5th Cir. 1974); United

States v. Bedgood, 453 F.2d 988 (5th Cir. 1972); United States

v. Archie, 452 F.2d 897 (3rd Cir. 1971), cert. denied, 405

U.S. 1071 (1972).

Terrell and Lawson claim there was insufficient evidence to

connect them with the crimes charged in counts 1 and 2 and

a similar claim is made by Jay Hatton with respect to count

3. Without reviewing in detail all of the evidence, it is suffi-

7 Rule 8(b) provides that joinder of defendants is proper when

the parties are alleged to have participated “in the same act or trans-

action or in the series of acts or transactions constituting an

offense or offenses.”

2la

cient to observe that in each instance there was adequate

evidence not only to connect the defendants with the crime

charged but to show them actively participating either directly

or indirectly by aiding and abetting in the receipt and conceal-

ment of the stolen property. The claim that their presence

at the scene of the crime alone is insufficient to convict them

is particularly unavailing in view of the role each played,

whether providing a place of operations, inventorying the

stolen goods, transporting them about in the course of nego-

tiations for sale, or posting a look-out to prevent detection.

In each instance there was a solid “business” reason for the

defendant to be present at the scene, to be interested in the

outcome and to have acted to further the course of criminal

conduct.

Finally, some of the defendants claim that the trial judge

erred in admitting certain statements which they claim were

hearsay and ought to have been excluded or the subject of

a cautionary instruction. Although a conspiracy was not

charged, the admissibility of hearsay evidence is governed

by the state of the facts at issue rather than the nature

of the charge. Considered in this light, we find no re-

versible error. The trial judge was indeed uncertain as to

the applicability of United States v. Enright, 579 F.2d 980

(6th Cir. 1978), in the absence of a conspiracy count. The

judge did instruct the jury with respect to their consideration

of hearsay evidence, perhaps with the hope that an Enright

determination would justify the admission of the hearsay evi-

dence and obviate the jury instructions. Although the proce-

dure was somewhat unusual, we are persuaded that the error,

if any, in the trial judge’s handling of this issue was harmless,

especially in the absence of any meaningful objection to the

manner in which he proceeded.

Accordingly, the cause is remanded to the district court

with directions to amend the judgment of conviction by merg-

ing counts 1 and 2, and by merging the consecutive sentences

imposed upon each of the defendants in counts 1 and 2 into

22a

one conviction and one sentence of 10 years imprisonment

and a $10,000 fine, that single sentence to be served consecu-

tive to the sentence imposed upon count 3, as applicable.

Affirmed in part and reversed in part and remanded with

instructions.

23a..°

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 80-5041/2/3/4 80-5072

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

HUGH L. REED, (80-5041),

JAY D. HATTON, (80-5042),

KERRY M. MARTIN, (80-5043),

THOMAS C. LAWSON, (80-5044),

CHARLES M. TERRELL, (80-5072),

Defendants-Appellants.

Before: Ence., Kerru and Merritt, Circuit Judges.

JUDGMENT

(Filed April 29, 1981)

APPEAL from the United States District Court for the

Southern District of Ohio.

THIS CAUSE came on to be heard on the record from the

United States District Court for the Southern District of Ohio

and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here order 1

and adjudged by this Court that the judgment of the said

District Court in this cause be and the same is hereby af-

firmed in part, reversed in part and case remanded with in-

struction consistent with opinion filed this date.

No costs taxed.

ENTERED BY ORDER OF THE COURT

/s/ JOHN P. HEHMAN, Clerk.

24a

APPENDIX B

CONSTITUTIONAL AND STATUTORY

PROVISIONS

UNITED STATES CONSTITUTION,

FIFTH AMENDMENT

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; or shall private property be

taken for public use, without just compensation.

28 U.S.C, 1254(1)

§ 1254. Courts of appeals; certiorari; appeal; certified ques-

tions

Cases in the courts of appeals may be reviewed by the Su-

preme Court by the following methods:

(1) By writ of certiorari granted upon the petition of any

party to any civil or criminal case, before or after rendition

of judgment or decree;