Appendix — Patterson v. United States

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF ) No. 81-1211

AMERICA, )

) D.C. No.

Plaintiff/Appellee, ) CR-R-80-22, ECR

)

vs. ) OPINION

)

JAMES HENRY )

PATTERSON , )

)

Defendant /Appellant. )

Appeal from the United States District

Court for the District of Nevada

Edward C. Reed Jr.,

District Judge, Pi siding

Argued and Submitted, November 10, 1981

Before: KENNEDY and SKOPIL, Circuit

Judges, and BURNS,* District

Judge

BURNS, District Judge

Defendant James Patterson

appeals his conviction on two counts of

¥The Honorable James M. Burns, Chief

United States District Judge for the

District of Oregon, sitting by

designation.

Page 1 - OPINION

Wik tc

receiving stolen property, 18 U.S.C. 8

2313, and on one count of conspiracy to

transport stolen motor vehicles in

interstate commerce, 18 U.S.C. 88 371

and 2312. He assigns several errors:

1) the grand jury testimony of a witness

was erroneously admitted into evidence;

2) the evidence was insufficient to

prove his knowledge; 3) the conspiracy

conviction should be reversed because

his alleged coconspirators were

acquitted; 4) the jury was improperly

instructed, and 5) the closing argument

of co-defendant's counsel was improperly

limited.

We affirm the convictions

for receiving stolen property and

reverse the conspiracy conviction.

Three forklifts were stolen

from different companies in California

and eventually were recovered in the

Page 2 - OPINION

Reno-Sparks area of Nevada. The first

Was a large, yellow, 1978 Liftall HT 100,

No. 78664. The defendant purchased this

forklift October 30, 1978, from two men

he met at a casino in Sparks. The

second forklift was a small, yellow

1977 Liftall LT 60, No. 77511. It was

purchased from two men outside the

defendant's house in late April 1979 by

Manuel Crummett, a contractor working

for the defendant. The defendant later

lent this forklift to Western Nevada

Supply, which still later sent it to

Reno Forklift for repairs. The third

forklift was a small, green, 1978

Liftall LT 60, No. 78595, which appeared

at the defendant's house at the same

time as the second forklift. Defendant

bought this forklift from two men who

returned the day after they delivered

the forklifts to defendant's house. The

Page 3 - OPINION

two men who sold defendant the third fork-

lift were the same men who sold him the

first one. The government alleged the

sellers were Patterson's codefendants,

Gerald Heidinger and Steve Austin. The

grand jury indicted Heidinger and

Austin for transporting the second and

third forklifts in interstate cummerce

and selling them and for conspiring

with Patterson and unknown other persons

to transport stolen motor vehicles in

interstate commerce. As part of the

conspiracy count Heidinger and Austin

were accused of delivering the first

forklift to Patterson, and Patterson

was accused of receiving the second and

third forklifts from Heidinger and

Austin. Heidinger and Austin were

acquitted by the same jury which

convicted defendant.

Page 4 - OPINION

Mer M *

~~ a

The defendant and James McKay,

defendant's nephew and then an employee of

his, replaced the ignition system on one

of the two forklifts delivered to the

defendant's property in late April 1979.

In addition, they cut off padlocks from

the gas tanks and elsewhere on both

forklifts and removed side panels from

one of them. The grand jury indicted

the defendant May 5, 1980, charging

him with receiving stolen property and

with conspiring to transport stolen

motor vehicles. The defendant was

convicted after a jury trial in July

1980 and was sentenced to three, four-

year jail terms, each to run con-

currently. The trial judge denied

defendant's motion for a new trial

March 23, 1981, and judgment was

entered.

Page 5 - OPINION

ISSUES

I. Grand Jury Testimony

Testifying under a grant of

immunity, James McKay (defendant's

nephew) told the grand jury on

March 10, 1980, the defendant had told

him the forklifts were obtained from a

man in California and they had been

stolen. At trial McKay testified he

could not remember the defendant

telling him about the source or

legality of the forklifts.2/ after

the prosecutor tried without success

to refresh McKay's memory with a

transcript of his grand jury testimony,

the trial judge allowed the pertinent -

portion of the grand jury testimony

to be read into the record as a past

recorded recollection exception to the

hearsay rule.2/

Page 6 - OPINION

A document is admissible as

past recorded recollection if 1) the

witness once had knowledge about the

matters in the document, 2) the

witness now has insufficient recollection

to testify fully and accurately, and

3) the record was made at a time when

the matter was fresh in the witness’

memory and reflected the witness’

knowledge correct ly.=/ United States v.

Edwards, 539 F.2d 689, 691-692 (9th

Cir.), cert. denied, 429 U.S. 984

(1976). Accord, Clark v. City of Los

Angeles, 650 F.2d 10323, 1037-1038

(9th Cir. i981) (stating the rule but

mot reaching the issue of admissibility).

Defendant claims the third

foundation requirement of Fed. R. Evid.

803(5) was not met and thus admission

of the grand jury transcript was error.

Page 7 - OPINION

The defendant specifically contends the

government failed to show 1) the matter

was fresh in McKay's mind when he

testified before the grand jury, and

2) McKay's statements to the grand

jury were an accurate reflection of

his knowledge at that time. We disagree

We start with the proposition

that a district judge’s ruling to

admit evidence will not be overturned

absent abuse of discretion. See, e.g.,

United States v. Cox, 633 F.2d 871,

874 (9th Cir. 1980), cert. denied,

102 S.Ct. 159 (1981); United States v.

Ford, 632 F.2d 1354, 1377 (9th Cir.

1980), cert. denied, 450 U.S. 934

(1981); United States v. Kearney,

560 F.2d 1358, 1369 (9th Cir.), cert.

denied, 434 U.S. 971 (1977). The trial

judge has broad discretion in

Page 8 - OPINION

determining whether evidence is

supported by proper foundation.

United States v. Ford, 632 F.2d at

1377. Assuming foundational require-

ments are met, admission into

evidence of portions of grand jury

testimony as past recorded recollection

is proper use of such testimony.

See United States v. Barrow, 363 F.2d

62, 67 (3rd Cir. 1966), cert. denied,

385 U.S. 1001 (1967). To decide

whether McKay's grand jury testimony

was erroneously admitted, we must

determine whether the trial court

abused its discretion in finding that

the matter was fresh in McKay's mind

when he testified before the grand

jury and that his statements to the

grand jury accurately reflected his

knowledge at that time.

Page 9 - OPINION

—" ah ay) oF

f.

Pe

at

‘

*

A traditional rule, .

commonly applied before adoption of ]

Rule 803(5), was that freshness is 1

defined by contemporaneousness, i.e., ‘

the witness’ recollection must have ,

been recorded at or near the time of

the event. 3 J. Wigmore, Wigmore on

Evidence, 8 745 (Chadbourne rev. 1970).

In this case McKay's grand jury

testimony occurred at least ten months

after the conversation in which the

defendant told him the forklifts were

stolen. Even before the adoption of

Rule 803(5), though, some courts used

a more flexible rule giving the trial

judge discretion to determine freshness

on a "case-by-case basis giving

consideration to all pertinent aspects “4

including the lapse of time which "

reasonably and properly bear upon the

Page 10 - OPINION

likelihood of the statement being an

accurate recordation of the event to

which the memory related." United States

v. Senak, 527 F.2d 129, 141 (7th Cir.

1975), cert. denied, 425 U.S. 907 (1976)

(pre-Rules case) .4/ Broad discretion

for the trial judge is clearly intended

under Fed. R. Evid. 803(5), as the

advisory committee notes indicate:

"No attempt is made in the exception

to spell out the method of establishing

the initial knowledge or the contempo-

raneity and accuracy of the record,

leaving them to be dealt with as the

circumstances of the particular case

might indicate."" 28 U.S.C. app. p. 581

(1976). See United States v. Williams,

571 F.2d 344, 348-50 (6th Cir.), cert.

denied, 439 U.S. 841 (1978) (finding no

abuse of discretion in admitting under

Page 11 - OPINION

igs

Rule 803(5) statement of witness to agent

relating conversation that took place

six months earlier).

We cannot say the trial

judge abused his discretion in finding

that McKay's memory was fresh at the

time he testified before the grand

jury, although the question admittedly

is a close one. At least ten months

elapsed between McKay's conversation

with the defendant and his ¢rand jury

testimony. McKay admitted he was

angry with the defendant when he

appeared before the grand jury. In

attempting to lay the foundation, the

prosecutor and trial judge asked

ambiguous questions, and McKay

equivocated wherever possible. Still,

the trial judge elicited responses

showing that at trial McKay could not

remember his conversation with the

Page 12 - OPINION

a.

ee:

defendant and that before the grand jury

he had remembered the crucial conversa-

tion. Thus, it was well within the

discretion of the trial judge to determine,

under all of the circumstances, that the

conversation had been fresh in McKay's

mind when he appeared before the

grand jury.

The past recorded recollection

exception also requires a showing that

the record accurately reflected the

witness' knowledge at the time the

record was made. The defendant

characterizes the trial court's inquiry

of McKay on that subject as asking

McKay whether the grand jury transcript

Was accurate rather than whether his

grand jury testimony was accurate. We

reject the defendant's characterization

as frivolous. We deem the trial court's

Page 13 - OPINION

-

question to have required from McKay

a response regarding the accuracy of

his statements to the grand jury (as

embodied in the transcript). McKay told

the trial court he did not think he

had lied to the grand jury. He also

said he had recalled the events in

question better when he testified

before the grand jury. Moreover, the

indications of reliability are stronger

in this case than in United States v.

Edwards, 539 F.2d at 691-692.2/

Therefore, we find no abuse of discretion

in the trial court's determination that

McKay's grand jury testimony was an

accurate reflection of his knowledge at

that time.

In summary, the grand jury

testimony was admissible as past

recorded recollection. In the trial

Page 14 - OPINION

judge's determination that the founda-

tion requirements had been met, we find

no abuse of discretion. Further, even

if the trial court had abused its

discretion, the defendant suffered

no prejudice thereby because the

crucial part of McKay's grand jury

testimony, i.e., defendant had told

hom the forklifts had been stolen, came

into evidence without objection by

other means .2/

Defendant also claims the

damning testimony was inadmissible as

a prior inconsistent statement under

Fed. R. Evid. 801(d)(1)(A). We need

mot reach that issue because of holding

that McKay's grand jury statements were

admissible as past recorded recollection.

Il. Sufficiency of the Evidence

Defendant contends the

Page 15 - OPINION

ae ak |

evidence, even including McKay's grand

jury testimony, is insufficient to prove

the element of knowledge, namely, that

the defendant knew the forklifts were

stolen. Defendant admitted receiving

the forklifts. McKay's grand jury

testimony provided proof that the

defendant knew the forklifts had been

stolen. McKay made the same statement

to law enforcement officers on previous

occasions.—/ Despite McKay's

evasiveness, his selective memory, his

contradictory testimony and his

relationship with the defendant, the

jury was entitled to believe hin.

United States v. Anderson, 642 F.2d

281, 285 (9th Cir. 1981). Further,

the test for sufficiency of the

evidence is whether "after viewing

the evidence in the light most

Page 16 - OPINION

favorable to the prosecution, any rational

trier of fact could have found the

essential elements of the crime beyond

a reasonable doubt," Jackson v. Virginia,

443, U.S. 307, 319 (1979) (emphasis in

original). The findings of the trier of

fact will not be set aside unless clearly

erroneous. Anderson, 642 F.2d at 285.

There was sufficient evidence for the

jury to conclude beyond a reasonable

doubt that the defendant received the

forklifts and that he knew they had

been stolen. Therefore, we uphold the

jury's verdict on the convictions of

receiving stolen property.

III. Conspiracy Count Conviction

‘Defendant urges reversal of

his conspiracy conviction; his co-

conspirators who were named in the

indictment were acquitted and, he claims,

Page 17 - OPINION

'

no evidence was presented to show he

conspired with unnamed persons.

The general rule is that

inconsistent verdicts may stand, even

when a conviction is rationally

incompatible with an acquittal.

United States v. Brandon, 633 F.2d 773,

779 (9th Cir. 1980); United States v.

Dunn, 564 F.2d 348, 360 & n.24 (9th

Cir. 1977). An exception to that rule

is that acquittal of all but one of the

alleged conspirators requires acquittal

of the remaining defendant. Lubin v.

United States, 313 F.2d 419, 423 (9th

Cir. 1963). However, if an indictment

refers to unknown persons as coconspira-

tors and the government supplies

evidence to support a charge that the

defendant conspired with the unknown

persons, a conspiracy conviction will

Page 18 - OPINION

stand even if all other named defendants

are acquitted. Id.

The other two defendants

charged with conspiracy, Heidinger and

Austin, were acquitted. Although the

indictment refers to other unknown

persons, the government's only

evidence to support the involvement

of unknown persons with defendant in

a conspiracy was that defendant had

told McKay that he had a friend working

at a truck line or forklift business

who would steal the forklifts and

bring them to him. This, even

together with the proof that defendant

knowingly received stolen property, was

not swfficient to support a reasonable

inference that defendant had engaged in

a conspiracy to transport stolen motor

vehicles in interstate commerce with an

Page 19 - OPINION

FS -..

_. —

unknown person. United States v. Gardner,

475 F.2d 1273, 1278 (9th Cir. 1973),

cert. denied, 414 U.S. 835; see

United States v. Espinosa-Cerpa, 630

F.2d 328, 330 n.2 (5th Cir. 1980); cf.

United States vy. Allen, 613 F.2d 1248,

1253 & n.6 (3rd Cir. 1980) (evidence

sufficient to show defendant conspired

with some other person); Didenti v.

United States, 44 F.2d 537, 538 (9th

Cir. 1930) (evidence sufficient to

show defendant conspired with persons

unnamed in indictment). Therefore,

Patterson's conspiracy conviction cannot

stand.

IV. Jury Instructions

Defendant objects to jury

instructions 19 and 23 on grounds they

are contradictory on the issue of intent.

Defendant's counsel did not object to

Page 20 - OPINION

/

either instruction when the trial judge

reviewed each proposed jury instruction

with both counsel. Defendant 's counsel

also did not request additional

instructions on the issue of intent.

In the absence of a showing that

substantial rights of the defendant

were affected, the appellate court is

not requires to consider objections to

the instructions for the first time on

appeal. United States v. Alvarez, 469

F.2d 1065, 1067 (9th Cir. 1972). There

*

is no showing here that substantial

rights of the defendant were affected.

Therefore, we decline to consider

the defendant's objections to jury

instructions for the first time on

appeal. If we were to consider the

objections made, however, we would find

them without merit. Considered in their

Page 21 - OPINION

entirety, the instructions adequately

explain the issue of intent.

V. Closing Argument

Finally, defendant contends

that the trial judge abused his discretion

by limiting to 50 minutes the closing

argument of defendant's counsel. The

trial judge notified counsel a few days

in advance that he intended to limit

the length of closing arguments. He

extended the time allotted to defendant's

counsel by five minutes when requested.

During argument the trial judge gave

counsel a two-minute warning but did not

interrupt again. We find no abuse of

discretion. United States v. Jones,

534 F.2d 1344, 1346 (9th Cir.), cert.

denied, 429 U.S. 840 (1976); United

States v. Salazar, 425 F.2d 1284, 1287

(9th Cir. 1970).

AFFIRMED IN PART AND REVERSED IN PART

Page 22 - OPINION

FOOTNOTES

1/ Knowledge that the property in

question has been stolen is one of the

essential elements of the crime of

receiv stolen property. 18 U.S.C.

§ 2313 (1970).

2/ The government first attempted

to refresh McKay's memory by showing

him a transcript of his testimony before

the grand jury:

McKay : I get a recollection in my

memory saying that I

might have said that. But

as I sit here right now I

cannot say that I can

remember Mr. Patterson

or him saying this to me

at that time. It's been

a tong time, you know.

This is almost two years

ago, and I've got to

swear under oath right

now, and I can't say that

I can actually remember

him saying that. If I

can say that, I can go

off with that and say --

The testimony continued:

Q. As you sit here today, you

can't remember what Mr.

Patterson said to you

about where he got the

forklifts?

A. Right.

Page 23 - OPINION

Q. But at the time you

before the Grand Jury

ck

in March and testified to

what he said, at that time

apparently you were able |

to recall; is that correct?

A. Yeah, I was a lot madder

at him then.

Q. Well, were you eble to

|

“fA

recall a little bit better?

A. I must have been.

You say you were mad at

them (sic) then. Were you

lying before the Grand

Jury

A. No, I don't think so.

The government then offered a portion

of the grand jury transcript into evi-

dence. After defense counsel objected,

the following exchange occurred:

THE COURT:

THE WITNESS:

THE COURT:

THE WITNESS:

Page 24 - OPINION

I think this is

admissible. You

can’t remember this

at this time; is that

true?

Yes.

But is the Grand Jury

transcript which you

read, is it accurate?

I believe so.

ag 2 = y

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5 al pee te, hee uve th

-

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2

.

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2

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,

THE COURT: I'm going to allow this

to be read under Rule

803(5), past recollec-

tion recorded.

3/ Rule 803(5) of the Federal Rules

of Evidence provides:

The following are not excluded

by the hearsay rule, even though

the declarant is available as a

witness:

(5) Recorded recollection.

A memorandum or record concerning

a matter about which a witness

once had knowledge but now has

insufficient recollection to enable

him to testify fully and accurately,

shown to have been made or adopted

by the witness when the matter was

fresh in his memory and to reflect

that knowledge correctly. If

admitted, the memorandum or record

may be read into evidence but may

not itself be received as an

exhibit unless offered by an

adverse party.

4/ In Senak the court rejected

contemporaneousness as the sole test

of whether an event was fresh in a

witness’ mind at the time the record

was made. There, the trial court

admitted a witness’ statement made

three years after the event in question;

here, the period is only ten months.

Page 25 - OPINJON

In Senak, however, the court noted the

existence of unusual circumstances

indicating the witness’ fresh memory

and reliability of her knowledge at tne

time she made the statement. The

recorded statement displayed no lapses

in the witness' memory. The statement

was specific and detailed. The witness

had read her statement and had edited

it before signing it as a true account

of her knowledge at that time. The

court observed that the witness had

been trying to remember not a routine

transaction but arrangements with a

lawyer who was defending her boyfriend

Sonnet criminal charges. Finally, the

tness testified explicitly at trial

that her statement had been true at the

time she made it.

5/ In Edwards this court upheld

admission of a statement made by a

companion of the defendant, describing

events leading to the crime, even though

the companion admittedly was drunk

when he gave the statement to police.

The statement was made the day after

the events in y ets was signed by

the witness and contained an inscription

in his handwriting acknowledging he

had read the statement and it was

correct to the best of his knowledge.

At trial the companion testified he

recalled making the statement. and,

although he had no memory of the under-

lying facts, “he believed the statement

accurately reflected his recollection at

the time it was made." 539 F.2d at 692.

Page 26 - OPINION

te

The indications of reliability

are stronger, we believe, in the instant

case. McKay recalled testifying before

the grand jury, he remembered being under

oath at that time and, although he

admitted aerate his testimony to

the grand jury, he also said he thought

he had told the truth.

6/ Government Proposed Exhibit No.

22, which was not offered into evidence,

was a two-page statement handwritten

by McKay and given to Detective Glenn

Barnes of the Washoe County Sheriff's

Office. Barnes and FBI Agent Carl

Olsen interviewed McKay jointly

about February 12, 1080, at the sheriff's

office. McKay testified, after his

memory was refreshed by reading his

own statement, that he had written in

the statement he had asked the defendant

where he obtained the forklifts. The

essence of McKay's testimony was that

the defendant told him he had a a friend

who stole them from a loading dock at

his place of employment. (RT 157-158)

Detective Barnes testified, after

refreshing his recollection with his

own report, that McKay had told him

the defendant told McKay that he had

a friend working at a truck line or

forklift business who would steal the

forklifts and bring them to Patterson.

(RT 338) Further, Agent Olson testified,

after refreshing his memory with his

own report, that McKay had said Patterson

had told him they were removing padlocks

and side panels from the forklifts

because they were stolen. (RT 391)

7/ See note 6 supra.

Page 27 - OPINION

fe

FILED

July 16, 1982

Phillip B. Winsberry

Clerk, U.S. Court of

Appeals

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,) No.

81-1211

Plaintiff-Appellee,

ORDER

vs.

JAMES HENRY PATTERSON,

)

)

)

)

Defendant-Appellant. )

)

Before: KENNEDY and SKOPIL, Circuit

Judges, and BURNS,* District

Judge.

The opinion of June 2, 1982

is amended by deleting the fifth

sentence of foornote 6, slip op. at

2326 n.6, which reads as follows:

"Detective Barnes testified,

after refreshing his re-

collection with his own

*Honorable James M. Burns, Chief Judge,

United States District Judge for the

District of Oregon, sitting by

designation.

toe

re

is denied,

report, that McKay had

told him the defendant told

McKay that he had a friend

working at a truck line or

forklift business who would

steal the forklifts and

bring them to Patterson.

(RT 338)" ?

The petition for rehearing

ae APPENDIX C

a Verbatim transcript of

___——s Reporter's Transcript on Appeal

_ Trial, July 22, 24, 25, 28 & 29, 1980

‘* - Pages 61-64, 66-76, 160, 1970, 186, 187

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

BEFORE THE HONORABLE EDWARD C. REED, JR.

DISTRICT JUDGE

UNITED STATES OF AMERICA,

Plaintiff,

vs.

GERALD HEIDINGER: STEVEN

CASTRO AUSTIN; and JAMES

HENRY PATTERSON,

Defendants.

ee ee ee ee ee ee ee ee

Case No. CR-R-80-22-ECR

Courtroom No. l

REPORTER'S TRANSCRIPT ON APPEAL

TRIAL

July 22, 24, 25, 28 & 29, 1980

Reno, Nevada

Reported by: Richard L. Molezzo, CSR #40

61

THE CLERK: Speak to the microphone

and state your name.

THE WITNESS: James Edward McKay.

THE COURT: Can you just move it

a little closer. Say something now.

THE WITNESS: James Edward McKay.

THE COURT: You're going to have

to speak right out to us.

THE CLERK: Please spell your

last name.

THE WITNESS: M-c, capital K-a-y.

THE CLERK: What city and state

do you reside?

THE WITNESS: Reno, Nevada.

THE CLERK: Thank you.

JAMES EDWARD McKAY,

called as a witness on behalf

of the Plaintiff, having been

duly sworn, was examined and

testified as follows:

61

DIRECT EXAMINATION

BY MR. PRO:

Q: Mr. McKay, what's your

occupation at the present time?

A: I work for Petroleum

Engineering as a -- a field

62

foreman, I guess.

Q: Field foreman. And how long

have you worked in that particular

capacity?

A: About two months.

Q: Do you know a man by the

name of James Henry Patterson?

A: Yes, I do.

Q: Do you see Mr. Patterson

. in the courtroom?

A: Yes, I do.

| Q: Would you point to him, please,

is and describe what he's wearing?

'

cs

‘ . » } 5

ae ; a

—— ell 5 a Toe ee 98 ts i SAIN ells, ge ‘ a i eas

62

A: Wearing a blue knit shiirt,

they call it, or something.

Q: All right. Is he seated next

to anyone?

A: To Toby Tobeler, I guess.

MR. PRO: Your Honor, may

the record reflect the witness has

identified the defendant--

THE COURT: Yes, the record

will so indicate.

BY MR. PRO:

Q: Mr. McKay, are you related

to Mr. Patterson in any way?

A: Yes, I am.

Q: What is that relationship?

A: He's my uncle.

Q: All right. Have you ever

been employed by your uncle, Mr.

Pattesron?

A: Yes, I have.

si

so 4

tat

63

Q: How many previous occasions

have you been employed by him?

A: Oh, two or three. Two times,

I guess,

Q: All right. And in those

instances, what type of work did you

do for him?

A One time I was driving a truck

for him hauling topsoil, and then

another time I was working in Desert

Springs putting in sep ic tanks and

water lines and stuff like that.

Q: All right. With regard to

your employment at Desert Springs,

could you tell us during what terms

you were working out at Desert Springs?

A: From the start of it till it

was about three-quearters done.

Q: All right. Let's try and

put months or years to that. When did

that project start? When did you start

° r.|

63

working out there, what month, what

year?

A: I think it was about two years

ago. It was in the winter, though.

Q: In the winter about two years

ago?

A: Yes.

Q: And when did you leave the

employment. of Desert Springs project,

the employment of Mr. Patterson?

A: End of last summe-.

Q: Last summer?

A: Yes.

Q: Can you remember a month,

June, July, August, September?

64

A: No, I sure can't.

Q: All right. Last summer, you

mean, 1979; is that correct?

A: Yes.

i it

Lie ome meas

Ph

64

Q: All right. Now, Mr. McKay,

you're testifying here today under a

particular understanding with the

Government; are you not? |

A: Yes. ’

Q: And could you tell the Court :

and ladies and gentlemen of the jury

what your understanding of the

conditions of your testimony are? "

A: I just talk to my lawyer and a

he said that I should have immunity

from anything that could come up in this

trial.

Q: All right. And in fact,

before the Federal Grand Jury you were

advised that you would not be

prosecuted by the Federal Government

for any testim ay that you gave; is

that correct?

A: Yes.

64

Q: Were you also advised that

your testimony was being given under

penalty of perjury?

A; Yes

Q: You understand here today

that you've taken an oath to tell the

truth and that the promise of immunity

does not protect you from the

prosecution for perjury if you testify

falsely? You understand that; do you

not?

66

A: I'm not very good on months

and days and stuff. They're just kind

of all run together. But it was

after--after I had been there probably

six months or something. Two of them

showed up.

Q: Swo of them showed up on the

a

BR

66

Same day?

A: Yes.

Q: All right. Could you recall,

as you testify here today, the date on

which that particular forklift showed

up at the Desert Springs--I'm sorry,

yes, Desert Springs site?

A: Can I what?

Q: Can you recall the approximate

date, what month of the year it was when

the-- when the forklift, the two

forklifts you mentioned appeared, first

appeared at the Desert Springs jobsite?

A: No, I sure couldn't.

MR. PRO: The Court's

indulgence, your Honor?

THE COURT: Yes.

BY MR. PRO:

Q: All right Mr. McKay, with

regard to those two forklifts, did you

es i

66

operate them that first day that you

were on the site?

A: No. ¥

Q: All right. At the end of that

workday, did you do anything with regard

to those particular forklifts?

A: ~~“ Yeah, I think it was that

night or the next night or

67

something, after work we went out and

tried to get them fired up. And one

of them didn't have a key. And the

other one had - key in it and got fired

up, and then had some locks on the gas

tanks and stuff. And so didn't have

the keys to any of that, so we cut the

gas-- all the locks off of them.

Q: Okay. You say “we" did this.

Who was the “we” that were involved?

Who else was involved in this with you?

67

A: Me and Jim.

Q: All right. Did you do this

on your own initiative or did Mr.

Patterson ask you to help him?

A: I think I probably just went

out with him.

Q Did he ask you to go out

with him?

A: That, I really couldn't say.

It's been two years. I imagine.

Q: Have you ever told anybody

connected with the law enforcement that

he did ask you to go out with him to

the forklifts?

A: I don't know. Did I?

Q: Well, I'm--

THE COURT: Would you just

answer the--

MR. PRO: I'm aaking--

THE COURT: Just a minute.

wr. Pal

ae

rem

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67

You try to answer the question rather

than to ask him. You just answer

questions. Do you understand that,

sir?

THE WITNESS; Okay.

THE COURT: All right?

68

THE WITNESS: Yeah, I guess I #/4.

BY MR. PRO:

Q: Do you recall telling Special

Agent Carl Olsen, who is here in court,

that on or about the 14th of February

of this year that Mr. Patterson asked

you to come out and help him do some.

work on those forklifts?

A: Okay. Yes.

Q: Do you recall telling him

A: Yes... sl

Q: Would you have been telling

‘

a

68

Mr. Olsen the truth at that time?

A: Yes.

Q: Okay. I realize that was

some months back. Wovld the events

have been fresher in February than they

are now, in July, perhaps.

A: I'm sure they would be.

Q: All right. What, specifically,

did Mr. Patterson ask you to help him do

with regard to these forklifts? Why

don't you tell the ladies and gentlemen

of the jury everything that you did to

both forklifts.

A: Well, we cut the padlocks off

of the gas spouts, or wehre you put the

gas in the . And--

Q: Was that on both forklifts, by

the way, were there padlocks on both

of them?

A: I'm really not sure.

68

Q: Who cut them?

69

A: I think I held them up and Jim

cut them.

Q: All right. What did he use to

cut them with?

A: A set of bolt cutters.

Q: All right, fine. What else,

other than cutting the padlock off the

gas tank? Were there other padlocks

on either or both of the forklifts?

A: Yeah, and there is some on,

I believe it was the side panel on the

green one. We cut them off. And took

the side panels off, and that's about

all.

Q

All right.

MR. PRO: Your Honor, I don't

recall the exhibit numbers--

THE COURT: Come forward and

69

you can look at them.

MR. PRO: If I can look at

the photographs we have.

BY MR. PRO:

Q: You mentioned there was a

green forklift. What color was the

other one?

A: Yellow.

Q: Yellow?

A: Yes.

MR. PRO: I'd like to show

you what's been marked--what's been

introduced into evidence, Government's

Exhibits 10, 11, and 12 and 13 and

propos J Exhibits 16, 17, and 18.

First looking at 10, 1l, 12 and 13,

Would you look at those particular

photographs, please, in evidence, and

tell me if you can identify what's

depicted in those four photographs.

70

A: This is a forklift.

Qn Do those--

A: With some numbers.

Q: I'm sorry. Do those appear

to be photographs of the yellow forklift

that you and Mr. Patterson were working

on that evening?

A: I don't think so. I don't

know. This one here is--it's got a bunch

of grinding stuff on it. It didn't have

that when I was working out there, when

it came in.

Q: All right. How about the

other photographs, that depict the green

forklift?

A: Yes, that looks like one of them.

Q: All right. Let me show you

Government's Exhibits 5, 6, and 7, which

is another yellow forklift. I ask you to

look at those. Can you identify what's

70

depicted in those photographs?

A: Yeah, that looks like the

yellow one.

Q: Can you tell which-- There

are two sets of photographs of two

difterent yellow forklifts. Can you

tell which of those, if either of them

is yellow-- pictures of the yellow

forklift that you and Mr. Patterson

were working on that night?

A: I'm really not sure. Like

I say-- not sure-- I think it was the

smaller one, this one here. It mzight

have been this one. But I don't

remember-- It wasn't, didn't have the

paint Knocked around off of it and

stuff.

Q: So there was another one out

there that's not depicted there. Is

that your testimony?

Fa,

.

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|

71

A: Well, I believe this was the

one that was there originally when the

job first started.

Q: Okay. Now, let's talk about

that one. When you say “this one.”

What's the exhibit number on that

photograph?

A: Exhibit No. 5.

Q: Exhibit No. 5, youthink, is

the-- a photograph of the forklift

that was at the Desert Springs jobsite

when you arrived and started working

there?

A: Yes.

Q: All right. Why don't you

put those aside then. And just look

at the yellow forklift that's depicted in

the other photographs.

THE COURT: The numbers of

these, do you know what they are? You

You may approach the witness.

MR. PRO: Thank you, your Honor.

THE COURT: Just to make the

record--

BY MR. PRO;

Q: I'm removing from the witness

Exhibits 5, 6, and 7, which are the same

forklift which Mr. McKay's just testified

to as being the forklift there when he

started employment.

And I'll also remove the

green photographs.

THE COURT: That will leave

us with what numbers?

MR. PRO: That leaves us with

10, 11, 12 and 13.

BY MR. PRO:

Q: Specifically looking at the

Exhibits 12 and 10. I realize the other

two Exhibits 11 and 13, show very small

72

portions, perhaps not identifiable

portions, to you. Looking at 12 and

10, it depicts a yellow forklift. Can

you look at that and tell me if that

appears to be the yellow forklift that

you and Mr. Patterson were working on

the same evening you were working on

the green one?

A: Yeah, I believe it is.

Q: There's something different

about it now, you say something ground

of £?

A: Well, yeah,it looks like

somebody was going to repaint part of

it or something.

Q: Oh, some paint scraped off,

perhaps?

A: Yeah,paint scraped off.

Q: All right, fine.

Now, what did you do with the

72

padlocks that were cut off of the

forklift?

A: They were thrown in a septic-

tank hole right there where we were

taking them off. Right where they

were parked.

Q: Okay. What about the side

panels? You indicated there were some

side panels removed. What was the

reason for removing those?

A: They had some names on them.

Q: They did. Do yozu remember

the names?

A: No, sir, I sure don't.

Q: Why did you want to take off

side panels with names on them?

A: I guess because maybe whoever

owned them would be able

73

to see who they were. I don't know.

73

Q: Did you do anything to the

side panels that were removed from the

two forklifts?

A: Just put them over there

alongside the shed by the house.

Q: By whose house?

A: By Jim's house.

Q: Jim Patterson's house?

A: Yes.

Q: At Desert Springs?

A: Um-hum.

Q: Okay. When did you last see

those side panels there? The side

panels next to the louse.

A: Probably every time I went

back to gas something up.

Q: Okay. Did there ever come

a time when those panels were no

longer there, to your knowledge?

A: Not to my knowledge.

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bees:

a ae

73

Q: As far as you know, they were

still there when you left the employ-

ment of Mr. Patterson?

las Yes.

Q: Now, did Mr. Patterson tell

you where he obtained these two

forrklifts?

A: I'm not sure. I don't even

recall of him.

Q: You don't recall him telling

you where or how he obtained these

two forklifts?

A: No, I can't, you know, say

that I can actually sit

74

here and remember him telling me when

we were working on them or something

where that they came from.

Q: All right. Do you recall

testifying before the Federal Grand

74

Jury here in Reno on March 10, 1980?

A: Yes.

MR. PRO: For counsels’

reference, I'm going to show the

witness Page 8, commencing at line--

commencing at line 23 through Page 9,

line 11.

BY MR. PRO:

Q: Would you please read to

yourself the question commencing at

line 23. Don't read it out loud. And

go on through to the next page. At line

ll.

Have you had a chance to

read those?

A: Yes.

Q: Okay. Thank you.

First of all, when you

appeared before the Federal Grand Jury

on March 10th, Mr. McKay, you were

— hae

oe .

74

under oath and sworn to tell the

truth; were you not?

A: Yes.

Q: And you did so to the best of

your ability on that date; did you not?

A: Yes.

Q: Does reading that passage

from your testimony before the Grand

Jury refresh your recollection as to

whether or not -ir. Patterson told

you anything about where he obtained

the two forklifts?

75

A: I get a recollection in my

memory saying that I must have said that.

But as I sit here right now I cannot

say that I can remember Mr. Patterson

or Jim saying this to me at that time.

It's been a long time, you know. This

ie

75

is almost two years ago, and I've got

to swear under oath right now, and I

can't say that I can actually remember

him saying that. If I can say that I

can go off with that and say--

THE COURT: Well, ask another

question, please.

MR. PRO: Thank you, your

Honor.

BY MR. PRO:

Q: It's your testimony that while

you cannot remember today what

Mr. Patterson said to you the night

that you were cutting the locks off this

forklift, if I understand you correctly,

that's what you're saying, is that

correct, at this time, you can't

remember that? As you sit here today,

you can't remember what Mr. Patterson

said to you about where he got the

eS

ery,

75

forklifts?

A: Right.

Q: But at the time you appeared

before the Grand Jury back in March

and testified to what he said, at that

time apparently you were able to recall;

is that correct?

A: Yeah, I was a lot madder at

him then.

Q: Well, were you able to recall

a little bit better?

A: I must have been.

Q: You say you were mad at them

then. Were you lying before the Grand

76

A: No, I don't think so.

Q: All right. Mr.--

MR. PKO: Your Honor, in view

of Mr. McKay's inability to recall,

VES) Pie . “

he * oe m . , ~~ se Ow we

ae

76

I'd ask to read into the record the

passage that I was having him read to

refresh his recollection, so the

jury can hear

what the testimony was

on that same subject.

THE

MR.

I'm sorry, to

MR.

objection.

your Honor.

THE

MR.

COURT: Defense counsel?

PRO: I'd ask the witness,

read it.

VERTNER: I have no

COURT: Mr. Delizonna?

DELIZZONA: No objection,

COURT: Mr. Tobeler?

TOBELER: Your Honor,

I think that I would object to counsel

reading into the record something that

was testified

to before the Grand Jury,

based upon the fact that the witness

is here, he can testify. I think the

aah ad

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. ma

_ .

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76

best evidence at this particular time

is his testimony and not the pre-

offered testimony. The witness is not

on trial, your Honor.

MR PRO: Your Honor, that

is a prior recorded statement--

THE COURT: I think this is

admissible.

You can't remember this at

this time; is that true?

THE WITNESS: Yes.

THE COURT: But is the Grand

Jury transcript which

77

you read, is it accurate?

THE WITNESS: I believe so.

THE COURT: I'm going to

allow this to be read under Rule 8035,

past recollection recorded.

i.

!

77

MR PRO: Thank you, your

Honor.

Your Honor, would the Court

object if I read it?

THE COURT: Go ahead and

read it.

MR PRO: Thank you. The

question is:

"In other words-- I'm sorry.

What?

“ANSWER: He said that he

had gotten them out of California from

a guy that he knew down there and that

they were hot.

“QUESTION: Hot? He used the

term ‘hot'?" in quotes.

“ANSWER: Yes.

"QUESTION: What does that

mean to you?

“ANSWER: Not yours, I guess.

77

"QUESTION: Hot is not an

uncommon term. I mean,

you have heard that before?

"ANSWER: Yes.

"QUESTIONS: What does that

mean? Does that mean stolen,

in your understanding?

"ANSWER: Yes."

MR. PRO: That is the passage

I was referring to, your Honor.

[BY MR. TOBELER: ] 169

A I believe so, but like I say,

this is different on them. They were

all painted when I saw them. I'm not

sure about it.

Q: Now when you saw it, it was

all yellow, no paint had been removed?

A: Right.

169

Q: Whose forklift was this?

A: I believe they were both Jim's.

Q: Okay. Now does this appear

to be the green one? I'm showing you

Exhibit No. 16, 17 and 18. Does that

appear to be the green one?

A: Yes, sir.

Q: And this is the-- appears to

be the ones that you took the side,

panels off?

A: Yes. I'm not sure which one

it was we took the side panels off.

Q: At any time, Mr. McKay, did

Mr. Patterson ask you to remove any

serial numbers?

A: No, sir.

Q: At any time did he as you to

alter any serial numbers?

A: No, sir.

a - tw

i ? t a ; — ; . 4

ae cg Oe en oe —— ee eee 8s oe 4 ix

er

a ..

169

Q: Now, you testified earlier,

you made the statement last week when

asked by Mr. Pro a certain question.

You testified that, "I was madder at

him then.”

Now, what did you mean by

that, Mr. McKay? That

170

was at the time you were testifying

before the Grand Jury when you made the

statement to them. What did you mean

by that?

A: I was told by some people

that he was saying a lot of stuff

about me after he laid me off or fired

me, so I was kind of a little bit

hot at him.

Q: And before the Grand Jury, did

you exaggerate any of your testimony?

eS |

»

=A 5

170

A: Well, maybe a little bit.

Q: I believe your testimony was--

correct me if I'm wrong--that those two

forklifts that you saw, one of them had

keys?

A: Yes, sir.

Q: And the other one did not?

A: Yes, sir.

Q: Do you remember which one

had the keys?

A: I'm not sure.

Q: Now, you've already testified

that Mr. Patterson did not tell you

that these forklifts were stolen. Did

he tell you that he got a good deal on

A: Yes, sir, I think he did.

Q: You did remember him making

that statement?

~

es

ee

170

A: Yes, sir.

Q: You have no idea how much he

paid for them?

A: No, sir.

Q: And you have no idea what

the value of a forklift was?

186

[BY MR. PRO: ]

[p. 185, Q: Mr. Tobeler, Mr. McKay,

asked you if when you testified before

the Grand Jury you exaggerated. And

you indicated you]

exaggerated; is that correct?

A: Yes, sir.

Q: Is it your testimony, Mr.

McKay, that you tstified falsely before

the Grand Jury, you did not tell the

truth?

~ ae

186

A: Well, I-- Just some of those

might have been just stretched a little

bit.

Q: Some of those what?

A: Stretched a little bit.

Q: What was stretched a little

bit?

A: Well, I just, you know, some

of the stuff that when you ask me now

and I think back, I can't sit here an

think back, from what I can see somebody

saying it, you know, actually saying it

to me. So I really can‘t say that is

for sure, and I hate to-- I know saying

that it for sure what it is, when I

testified in Grand Jury. But I hate to

swear and testify to it now when I'm

not exactly sure that that's what was

said. I mean, it's been two years in

time ’ and- a

-

.

A

‘

> ye > ae ait ——_ ae i> ee : ome

186

Q: Okay. All right.

Let me see if I can understand

that then. Are you saying that today

when you testify when questions arse put

to you and you're asked to recall back

events a year or more past, and as you

sit here, you cannot recall specific

conversations and you don't want to

testify that you do recall specific

conversations; is that correct?

A: Yes, sir.

Q: All right. I understand that.

Are you saying, then,

187

that when you testified before the

Grand Jury, you were able to recall

those previous conversations and today

you are not?

A: No, sir.

Q: All right. When you testified

187

before the Grand Jury, is it your

testimony now that when you appeared

before the Grand Jury, you testified

te things that you in fact could not

remember?

A: That I wasn't sure of,

Q: What about when you made your

statements to Agent Olsen and to the

police officers when you talked to them?

A: Mostly that could have been--

Q: I'm sorry, most of that could

have been what?

A: Pretty good.

Q: That was a little bit closer

to the time that the conversations had

taken place; is that correct?

A: Um-hum.

Q: Similarly, when you made your

handwritten statement, the Government's

proposed Exhibit 22, those were made

187

Closer to the events in question; isn't

that correct?

A: Yes, sir.

Q: And were those statements

correct that you made in your statement?

A: I believe so, yeah.

MR. PRO: Your Honor, I

think at this time I'd offer

Government's proposed Exhibit 22 into

evidence if there's nc oj:jection.

MR. TOBELER: Your Honor,

I will have to cbject to