Asa Hurrial Minor, Jr. v. United States
375 F.2d 170
8th Cir.
1967
Check Treatment

*2 OOSTERHOUT, GIB- Before VAN Judges. HEANEY, Circuit SON Judge. OOSTERHOUT, Circuit VAN appeal by Asa This is an Jr., Minor, from his conviction Hurrial II of an indictment on Count charging transportation him with specifically auto- described Chevrolet from Indi- mobile in interstate commerce knowing Arkansas, motor ve- said ana to attempts to Defendant excuse his hiele to violation have been preserve sen- failure to here asserted 2312. Defendant was errors U.S.C.A. § years imprisonment. is unskilled contention tenced unknowledgeable It well in the law. court on its motion dismissed Count own charged inter- settled that counsel indictment which *3 knowing long transportation waived as as the waiver state of another auto- is ly intelligently upon ground proof that Moore v. mobile made. State 155, Michigan, 161, of 78 such was stolen was insuffi- 355 U.S. S.Ct. automobile 191, 167; People 2 cient. L.Ed.2d v. Carter Illinois, 173, 177, of 67 State represented Defendant himself in 216, 172; S.Ct. 91 L.Ed. Johnson right counsel, v. trial His in- court. to Zerbst, 458, 463, 304 58 U.S. S.Ct. cluding right court-appointed to counsel 82 L.Ed. 1461. expense him, fully ex- to was plained. persistently Defendant declined not The Constitution does upon representing counsel and insisted attorney upon force an de unwanted prior just himself. The court to fendant. Adams ex rel. v. United States opening again of the trial offered to McCann, 269, 279, U.S. 63 S.Ct. provide not, ei- counsel. Defendant has 268; Washing 87 L.Ed. United v. States here, ther trial or issue raised the ton, Cir., 341 F.2d The ac 285. deprived he has been of his constitu- cused before trial elect to conduct right represented by tional to be counsel. Johnston, own his defense. Price v. represented appeal by He is com- 92 L.Ed. petent point counsel and raises no brief 1356; rel. United States ex Maldonado his waiver of counsel in the trial Denno, Cir., 12, 15; v. 348 F.2d John knowingly intelligent- court was not States, Cir., son v. United 318 F.2d ly made, any way he nor does intimate 856; Cir., States, Butler v. United suggest wrongly or he de- has been However, aptly 317 F.2d 258. prived right of his constitutional by Appeals stated the Court of for the Hence, counsel. the issue of denial * * * Fifth “Once Circuit: it is found right defendant of his of counsel such properly an accused has waived before now us. counsel, flowing the effects urges Defendant he to a is entitled by accepted from that decision must be following (1) reversal for the reasons: together him, with the benefits which Insufficiency support of the evidence to sought presumably he obtain there (2) verdict. Admission of States, Cir., from.” Smith prejudicial give evidence failure Thus, 216 F.2d when accused limiting instruction the consideration of constitutionally guar elects to waive his (3) such evidence. was uncon- counsel, anteed he does at his so stitutionally selected. accept own risk and must the conse None errors here asserted quences of his action. United States was raised trial court. No motion Redfield, D.C.Nev., F.Supp. acquittal made; objection no affirmed on the basis of trial court’s offered; made no opinion, Cir., 295 F.2d 249. exception request to or for instructions challenge made and there no judicial policies Sound administra- jury panel. plain prescribed by Thus absent tion as the Rules of Crimi- situation, nothing error apply before nal should Procedure all trials ordinarily judge us for “A review. trial whether conducted de- counsel or should Otherwise, not be held to have erred in not fendant. defendant would deciding correctly question practical trials, that he was effect be one Page never asked to decide.” v. United he conducts which his own defense Cir., 810; unsuccessful, repre- 282 F.2d Petschl if another trial with Cir., sentation counsel. stolen, be fined shall same have been results in a In the event imprisoned $5,000 than miscarriage 52(b) not more justice, clear years, five or both.” plain more than rep error rule a defendant affords resenting protection himself all proof the owner direct from There is justly entitled when has precise in this of- involved car knowingly intelligently elected to Chevro- fense Placke deliberately waive counsel and has chosen Missouri, Louis, Company let in St. attorney. to act as his own reported September 24, 1964, and was police p. on that 7:30 m. stolen to

A careful examination the record the manufacturer plain date. The invoice of shows that no error com- has been Company show- to the Placke Chevrolet mitted and that had in ing ownership com- respects all of the car a fair trial. Defendant *4 pany After the car was representing many was introduced. himself secured ad- authorities, vantages re- the it was recovered not would have been availa- such represented by ble turned owner. Such to him had been to n counsel. Defendant Defendant himself not contradicted. permitted to jury, testify the “I believe this vehicle per- stated to in form narrative and was September. say everything mitted on the 24th stolen to that he desired acquisition to of it one came into about restriction. He made his own n opening jury, the month later.” statement to his own closing argument, was allowed to specifically that he Defendant admitted supplement argument his the after court transported Ar- the from Indiana car jury. had instructed the Defendant Thus the kansas where it recovered. cross-examined the witnesses and was respect only element of the offense with given much more freedom than would any dispute exists is whether to which have been afforded counsel. As hereto- was sto- automobile defendant knew the pointed out, fore the court on its own transported at len the time he motion the close of the Government’s Arkansas. case dismissed Count I and advised the that he would not meet have to the The court in an instruction to charge. occasions, On several the jury, excepted not and not asserted restricted the Government’s testi- upon jury: appeal, told the error mony on its own motion. The instruc- recently property “Possession given tions simple, easily are understood satisfactorily explained, stolen, not if and fair. ordinarily from circumstance a may reasonably plain jury Resort the draw error rule the appropriate only light exceptional find, the cases inference and where necessary prevent surrounding such course is shown circumstances miscarriage justice. per a clear Petschl the evidence States, v. supra; Page prop possession United son in knew United ” States, supra; stolen, erty States, Johnson v. United been had Cir., 46; 8 362 F.2d West v. United foregoing contains instruction States, Cir., 50, 53; 8 Gendron proper applicable law. statement of States, Cir., 8 F.2d States, Cir., F.2d Lee v. United States, Cir., 469, 474; Cloud v. United plain Harding requiring 627, 629; We find no error F.2d Cir.,

versal has been committed F.2d and affirm the conviction. supra, point Harding, As out we clearly The evidence is mate- here differs' sufficient instruction support rially. supplemental verdict. Title instruction U.S.C.A. reads: “Whoever trans in Bollenbach v. United ports foreign in interstate relied commerce 90 L.Ed. aircraft, knowing upon motor vehicle or defendant. made, up had could have Defendant’s defense is based been the exhibits holding readily and introduced. his that he was identified security Ellsworth car as for a loan to Defendant could also have introduced chattel Turner. He said that he had a exhibits. mortgage produced no on the car but prima out a made Government prove evidence to that he did. The by showing facie defendant’s admit- case compelled accept was not defendant’s recently proper- ted pos explanation uncorroborated ty. registration not evidence was session car. case. essential Government’s any preju- event, such evidence was contention Defendant’s receiving plain dicial. error committed in to, evidence, objected certain is with final contention Defendant’s out trial on a merit. Defendant went con not selected charging two trans two-count indictment manner, panel in that stitutional portation involving separate offenses represent section of does not a fair cross stolen automobiles. counts were Such community, supported is not properly joined in the same indictment challenge nor was record. No was made 8, Fed.R.Crim.P., under Rule and no Rule support thereof evidence offered request made. severance was us have before in the trial court. All we *5 upon Trial all counts of indictments defendant’s brief is an attachment to procedure. as this is the usual While showing jurors called to serve a list of jury, Count I evi was before the some purporting to on October respect dence introduced was occupations most of such list the stealing of the the car there involved and jurors. jury tried that This is not the registration transportation thereof. April He on the defendant. was tried The transactions each of the involved in closely counts were related. Both cars there is no rec- We are satisfied that place were and at discovered at the same support contention. ord for defendant’s the same offered time. The evidence appeal the on Even if list submitted competent support I to Count meeting considered, short of falls far time it was I subse offered. Count was resting to upon the defendant burden quently by the on its own dismissed court him show convicted that motion. The defendant failed has improperly constituted. any prejudicial demonstrate error reception was committed in the of such errors as- We hold that none of the evidence. properly upon appeal were serted this none of raised trial court and hearsay There is some testi urged plain error the errors constitute mony by reports as to officers received 52(b). under Rule The defendant the cars were respects had in all a fair trial. registration license number and certifi judgment is af- of conviction pertain cate did not Chevrolet firmed. the car II was is involved fcount but by sued for a 1950 Chevrolet owned Judge HEANEY, (dissenting). Circuit plain defendant. No error demon merely charged Minor, Jr., strated. Such evidence is cumu Defendant Asa February 14, lative. The in two theft is shown the direct indictment registra charged of the owner and the I that on or about counts. Count transported 1, 1964, inter- tion shown the license bureau of October testimony. Complaint Thunder- ficer’s is also a stolen 1964 state commerce Indiana, receiving regis Gary, made evidence as to bird automobile from registration charged Grady, tration from the official II Arkansas. Count January the defend- introduction exhibits. on or about objection transported If commerce The exhibits were court. ant in interstate majority opinion Gary, I inso- Indi- concur with stolen 1964 Chevrolet Bluff, far conten- ana, as it relates to defendant’s Arkansas. Each to Pine alleged tions that the was unconstitutional- knew that count dissent, ly respectfully how- selected. stolen. automobiles were grounds ever, that the defendant on the defendant, represented him- who voluntarily did not waive his constitu- by jury April self, was tried rights represented tional sel, be coun- guilty the second count. and was found testimony, incompetent and that judge permitted The trial extensive highly prejudicial defendant, hearsay testimony be introduced ceived in evidence. that the Thun- which tended to establish specific made While no contention is stolen, derbird automobile had also been upon appeal this that the counsel was pos- and that the defendant had come into waived,1 knowingly intelligently time session of the automobile short ought ex- defendant asserts that he to be after At the close theft. preserve cused for errors his failure to judge dis- Government’s the trial ground in the trial on the court ground missed that no this count on the unknowledgeable is unskilled and competent evidence had introduced my colleagues law. While hold fact, Thunderbird, show that the us, issue of waiver is not now before had been stolen. rights preserving thus defendant’s in this two-year imposed sentence regard, they point that the defend- out appeals on the defendant who failing pre- ant cannot excused for urging Court a reversal for the follow- serve errors as he was advised of and ing (1) Insufficiency reasons: waived his to counsel. Under support evidence verdict. these circumstances in view of (2) prejudicial Admission of fact the defendant has limiting give and failure to instruction subsequent to raise the issue in habeas (3) the consideration of such evidence. *6 corpus petition proceeding under a or in jury unconstitutionally selected. barriers that Constitution as essential 1. The Sixth Amendment of the Constitu unjust arbitrary deprivation against provides prose or tion cutions, that “In all criminal rights. human The Sixth Amend- enjoy right of the accused the shall stands as a constant admonition speedy trial, by impar ment to a public and safeguards if the constitutional tial of the State and district where justice provides lost, will not ‘still be committed, in the crime shall have been rec- done.’ It embodies a realistic be previously which district shall have ognition truth the of the obvious by law, ascertained and be informed of average have the defendant does not accusation; the nature and cause the protect professional legal him- skill to to be with confronted the witnesses brought before a tribunal with against him; process self when compulsory to have liberty, power where- or to take his life obtaining favor, for Witnesses in his and presented prosecution ex- in perienced the to have the Assistance Counsel his That learned counsel. and defence.” See also Rule Federal necessary orderly simple, which is qf Procedure; Rules Criminal Johnson laymen lawyer the untrained Zerbst, 458, 462-463, —to intricate, complex —may appear 1019, (1938), where the Court stated: Consistently “* * * mysterious. wise with the guar- The Sixth Amendment policy and oth- Amendment of the Sixth prosecu- ‘In all antees tions, criminal charter, parts our fundamental er enjoy right the accused shall ‘ * * * * * * pointed to this Court have Assistance policy crim- of the modern humane for his is one Counsel defence.’ This ’ * * * pro- safeguards which now inal law the Sixth Amend- * * * necessary if be defendant ment deemed to insure fun- vides a * * * poor, rights fur- have counsel damental human of life and lib- * * * erty. state nished him infrequently Omitted the Constitution as * * * originally adopted, provisions than able more of this attorney for the state.” and other Amendments submitted were Congress the first convened under 2255,2 “(The I with Mr. feel that the issue Clerk conferred U.S.C.A. § Minor.) proceeding. should resolved in this be Honor, he “The Your doesn’t following Clerk: colloquy was recorded right desire to strike. with reference the defendant’s to counsel please. Minor, Minor? “The Defendant: “The “The Bench.) Now, you come around to Court: Court: (The his defendant came waiver All Are Yes, right. Now, Mr. you have no thereof: sir. ready, lawyer? close speaker Mr. does not have a represent Jury, do it. There are eled to “The Court: “(At [******] as in try himself. He has the last time, case.) lawyer. Now, always Members of He some defendant desires right empan- prob- about that because lems right. I “The That’s Defendant: Court, law, but is not learned in the lawyer. have no Attorney, as well as the United States you “The You Court: indicated rights pro- are see that his mil to it lawyer? did not wish to have a just have as tected. We want him to “The Defendant: True. complete he had a trial if fair “The And the offered Court: Court ”3 lawyer. (Emphasis add- right? appoint you one, is that ed.)

chambers, discussed ment Attorney waiver, challenge larly sel.) [******] “(The Defendant executed the docu- “The Court: Will “ “The Defendant: * * to Mr. Minor —about his waiving please, Clerk about —I jurors, * Now, Mr. Minor? certain explained Yes, you sign previously, to have coun- sir. jurors. Mr. Minor particu- another States As- Ed. sibilities ful waiver. Gillies, appoint cused to vokes, court, The above record be insufficient 309.(1948), “ Supreme Court, ‘The constitutional in which the accused —whose counsel and to of the trial court: itself, did It then defined represented little held a similar 708, 68 to establish protection of a trial more indicates in Yon accept right of an ac- than offer counsel in- procedure Moltke v. a waiver. meaning respon life L. Cole, liberty him, without coun- is at stake —is certain from Mr. if he has *7 duty imposes any jurors challenge. protecting the sel. This wishes complete mgs’ the due to failure to “Since the Sixth Amendment constitu- tionally charged Amendment one with crime court —as the Sixth entitles providing compliance quires by counsel, for an ac- counsel the assistance of — counsel, to obtain is an cused who is unable his constitutional mandate intelligently jurisdictional prerequisite waived this has not essential who guaranty, authority deprive and whose life a federal constitutional court’s require- liberty liberty. at If this an When is stake. accused of his life or right properly waived, not Amendment is of the Sixth this is the as- ment longer complied with, no the court longer sistance of counsel sary no a neces- is * »” * jurisdiction proceed. John- jurisdiction of the court’s element 467, Zerbst, supra, proceed 58 S.Ct. at son v. to conviction and sentence. accused, however, repre- If at 1024. is specifically Court, Johnson, compe- held sented tently counsel and has though intelligently raised was not even this issue waived his con- trial, right, in a habeas it could be raised at stitutional the Sixth Amendment jurisdictional proceeding. corpus as a bar to a valid stands depriving him conviction and sentence ju- liberty. stand, A of his or his court’s life took the Before right may beginning tes- him not to advised of his risdiction at of trial court tify against proceed- himself. ‘in of be lost the course

177 waiver, responsibility up- proper weighty mine there is a whether serious and determining appear judge and that should of determination intelligent Carnley Cochran, v. 369 U.S. an record. whether is (1962); To competent the accused.’ 82 8 70 S.Ct. L.Ed.2d waiver light discharge duty properly Zerbst, Johnson v. against (1938). strong presumption Annot., See 9 L.Ed.2d of right (1963); Annot., (1958); the constitutional 2 L.Ed.2d 1644 waiver of investigate Annot., (1950); Barron, counsel, judge must 93 L.Ed. 137 long thoroughly Procedure, as the circum- Rules Federal Practice and as Note, Edition, (1951); him demand. Minn. before stances of case (1965). tell him that an accused fact L.Rev. right of his that he is informed Notwithstanding Moltke, Von the 7th waive this counsel and desires to Appeals, Circuit Court of in United judge’s automatically does not end McGee, (7th States v. F.2d 520 Cir. n responsibility. such waiv- To be valid 1957), voluntary found in a waiver apprehension er must be made with case similar There instant one. charges, the statu- the nature of of the trial court had advised the defend- them, tory within included offenses ant, guilty, plea before range punishments allowable to counsel him that the and had informed possible thereunder, defenses charges mitiga- appoint in the event would counsel and circumstances thereof, essen- court, tion other facts and all he could not obtain counsel. The understanding tial to a broad subsequently, if he desired coun- asked judge cer- matter. A can make whole sel, “No, unequivocally, and he answered professed waiv- tain that an accused’s sir.” understandingly er of counsel year thirty-three The defendant awas wisely only penetrating made from a individual, average age old intelli- comprehensive examination of all gence, high diplo- who obtained a school under circumstances Army. ma while in the The defendant plea Id. tendered.” 68 S.Ct. contended, Circuit, appeal 7th added.) (Emphasis at 323. that his made waiver of counsel was not States, 274 See also v. United Kercheval voluntarily appreciation and with full 71 L.Ed. 839 the nature crime with which Washington, (1927); United States v. charged. denying the defendant’s 1965); (3rd Cir. request, the Circuit Court stated: (3rd Cariola, 323 F.2d States v. regard, “Defendant’s contention in this 1963); Lester, v. Cir. United States stripped gloss, simply of its that he 1957); (2nd F.2d 499-500 Cir. Snell did not know and was not advised of F.2d 580 ‘independent contractor’ defense.” 1949); People Kemp, 55 Cal.2d Id. at 524. Cal.Rptr. 361, 359 P.2d 913 Rundle, McCray ex rel. Commonwealth The Court went on to state: *8 202 A.2d 303 State Pa. duty “But is not of the trial Burke, ex rel. Burnett v. Wis.2d judge explain or enumerate (1964); People 126 N.W.2d 91 v. Chess possible for the accused the defenses er, might P.2d charge Cal.2d against he raise to the * * * (1947). lay- him. This mean a would plead guilty man could not unless he repeatedly Supreme The Court opinion lawyer had the of a on such indulge every pointed out that it will questions might of law as if he arise against presumption waiver of reasonable guilt.” did not admit his Ibid. rights; fundamental constitutional right waive his The Supreme while accused States Court counsel, per curiam, ordering deter- trial court should versed further a hearing finding on all issues. McGee v. United Court sustained the trial court’s States, L.Ed. and said: S.Ct. (1958). 2d Heisey “Appellant also contends that [appellant] him ‘he informed that Supreme The Mc Court’s decision in plead [guilty] would have to by Gee was followed the 6th Circuit whole’, indictment as a which informa- Vellky gross misrepresentation tion was (6th 1960). Cir. Cf. United States legal false virtue of the case advice Kniess, (7th 1959); 264 F.2d 353 Cir. Gillies, of Von Moltke v. Wantland, United States v. 199 F.2d 237 The 92 L.Ed. 309. (7th 1952). Vellky, Cir. the defend contention inconsistent what ant, forty years age, lengthy had a appellant said he at the time of wanted criminal record and had served one term * * * arraignment sentence. penitentiary in a from 1941 to 1945 for Heisey, fact, He told he a bad check and another term of three not concerned he about how much time years in for the Atlanta same offense got, providing he sent to a federal involving government money a order. penitentiary.’ (Emphasis appellant’s.) court, accepting guil before a He concerned about the num- ty plea, asked the defendant: pleaded. ber of the he counts to which you “I see lawyer. do not Appellant have a himself states you assigned Do represent wish one long sentence, he desired a federal you?” length Id. hoping thereby 279 F.2d at 698. to diminish the pres- of his Wisconsin sentence and his answered, “No, not,” I do ent contention led mis- plea then guilty. entered a Sub- representation plead guilty to both sequently, the defendant filed a motion obviously counts is a mere after- judgment to vacate the under Ti- thought. diminishing hope His 28, U.S.C., tle alleging that he had never imprisonment Wisconsin motivated knowingly intentionally waived his record, his action shown right to counsel. The District Court’s imprisonment state was decision, denying relief, was reversed twenty years. cut down about seven the 7th Circuit on the basis Von case, by appel- The Von Moltke cited Moltke and Court, McGee cases. The lant, support appellant’s affords no making decision, its stated: position here.” Id. at 915. “ * * * though defendant, even distinguished This Court further Von waives counsel, assistance of enti- saying: Moltke explanation tled to more and discussion charge against “In the Von of the Moltke case there was him and the facts affecting remand to trial court determine plea decision to enter a question ‘petitioner guilty, whether did than was present competently, intelligently, case.” and with Id. at 699. understanding implications, full of the Circuit, McGee, 7th relied heav her waive constitutional to coun- ily on Michener v. United 181 F. waive, if sel.’ And she did not so 1950). 2d releasing order her should be entered clearly distinguishable Michener custody. on the instant its facts. precise There question contended of waiver appeal counsel, finding by that he did not realize the re- pleading ‘intelligent- sults of his appellant and all trial court that charges ly, competently intentionally were laid in the in- dictment. specifically The trial court coun- waived his of assistance of *9 found that finding affirmed, the defendant knew what he sel’ and that doing and, fact, long- Johnson, supra, wanted the Cir.] [Michener est get. federal 129, 917, sentence could This n. 2. 146 F.2d 130.” Id. at prejudicial incompetent it essential

In the instant pre- was offered and into defendant understand received evidence. posses- sumption applicable He took the stand in which is his own behalf recently freely In automobiles. testified the auto- sion of stolen when and how my directly question judgment, point posses- mobile in McGee is came into his inept sion.6 His failure to advise cross-examination was frequently presumption of the is a existence of the did more to confuse than standing basis, alone, clarify. sufficient on which to find did not that the defendant know- my judgment, the defendant did not ingly intelligently, a full and with knowingly, intelligently and full with a understanding implications, waive understanding implications, waive to counsel4 rights his constitutional counsel. is, therefore, entitled to new addition, however, there is no indi- trial.7 range explained cation that the court punishment, possible of allowable de- PLAIN ERROR WAS COMMITTED IN charges. fenses to the HEAR- RECEIVING CERTAIN any testimony isNor to indicate SAY EVIDENCE AND IN PER- defendant, because of his ex- MITTING TESTIMONY TO AS perience, background conduct, or under- THE CONTENT OF CERTAIN operation presumption, stood the RECORDS. range punishment, of allowable competent testimony There is to estab- possible charges defenses to the Sep- lish that the Chevrolet explanation.5 Nor is there indi- 24, freely tember 1964. The defendant consciously “playing cation that he was possession admits that he came into smart,” feeling or that he had a later, the car about a month and that he represent competent- could himself more transported it from Indiana to Arkansas ly attorney. than an December, in late To 1964. establish objections during He made no the defendant was of a vio- trial, though highly course of the 2312, even however, lation of 18 U.S.C.A. § respect 4. concurring opinion Chapman instructed with 7. In a it as California, follows: 18, State of 386 U.S. 87 S.Ct. property recently stolen, 824, “Possession of 17 L.Ed.2d Justice Stewart satisfactorily explained, if not is ordi- wrote: narily a circumstance from which the “When a defendant been has denied jury may reasonably trial, draw the inference counsel at we have refused to con find, light surrounding cir- sider claims that this constitutional er n might cumstances shown ease, ror have been harmless. ‘The person knew to have the assistance of counsel property had sto- is too fundamental and absolute to allow ” * * * * len, indulge courts in nice calculations as prejudice arising to the amount of Compare 5. Adams v. United States ex rel. its denial.’ Glasser v. United McCann, 60, 76, 457, 467, 317 U.S. 63 S.Ct. 236 315 U.S. L. S.Ct. Redfield, That, indeed, United States v. Ed. 680. was the whole F.Supp. 559, (D.C.Nev.1961), point Wainwright, aff’d. of Gideon v. 372 U.S. 249; Burstein 83 S.Ct. 9 L.Ed.2d over 1949). ruling Brady, 178 F.2d 665 Betts v. 86 L.Ed. 1595. Even before against himself, trial, provid if As to cinch case when counsel not been given permission stage, stop he asked and was ed at a critical ‘we do prejudice make an additional statement determine whether resulted.’ proceed- Alabama, after it was instructed. He then Hamilton v. State 368 U.S. clarify vague testimony 52, 55, 114; ed to otherwise 82 S.Ct. 7 L.Ed.2d posses- Maryland, to when the car came into his White v. State of by fixing sion the date as about October 83 S.Ct. 10 L.Ed.2d 193.” Chapman California, v. State of (U.S. February 21, 1967). *10 necessary bility it was also to show that the was critical to the ultimate defendant knew car was stolen. determination. denied such knowl- Harry Thomas, the Arkansas edge and testified that he came into Police, Moore, Special State and John possession of the car when he made a Agent the Federal Bureau Investi- accepted loan to Ellsworth Turner and gation, length regarding at in- testified the car as is no collateral. There direct they received vehicle formation testimony indicating that the defendant registrations were that the cars false knew the car was stolen it until tak- part, had been stolen. Thomas in testi- by police en from him the on March fied: attempt 1965. The defendant did regis- “A. I sent off for change appearance conceal8 or tration information ’65 on the Indiana car. Neither the motor serial number tag, got which I the Ford off of body

nor the serial number altered.9 Thunderbird. I sent for in- also off attempt defendant did not to sell tag formation on the ’64 Indiana ing bear- during pos- the car the time it was in his 45-R Roberts was dis- which session. played on the ’64 I re- Chevrolet. testimony As the showed that the de- ceived information radio that back possession fendant came into of the car tags these two were issued to cars stolen, within a month of when was other than the that I there. had properly trial court instructed “Q. you registra- Did for ask as follows: tion certificate this Chevrolte property recently “Possession of (sic)? stolen, satisfactorily explained, if not No, well, “A. I asked for it. sir— ordinarily circumstance I asked what she had she stated jury may reasonably which the draw ‘nothing’.11 getting regis- After find, light the inference and in the tration information back radio from surrounding circumstances shown Indiana, I realized that I needed to per- the evidence in the go thoroughly cars, more into the possession prop- son in knew probably needed some assistance and * * * ”10 erty had been stolen. Agent Moore, I asked John F.B.I., Bluff, presumption In view who is and de- stationed at Pine me, explanation, fendant’s come into the area assist defendant’s guilt cars, largely through innocence turned we examined the jury. whether he was information believed that he was able obtain credibility issue, through His through became the crucial his office and our casting radio, thus evidence doubt on that eredi- we did determine that the cars— testimony 8. Defendant’s of the car. he used the When the stolen car was frequently during possession, car found in the two the motor num- months it changed. undisputed, inwas Indiana was bers had been as was United States testimony Wheeler, (7th 1955), the car broke down while 219 F.2d 773 Cir. driving Gary, Indiana, body he was it from the serial numbers the auto had Grady, Arkansas, and that he asked the been filed off. police Chicago of a small town near why 10. The record does not disclose leave the car with them. It is also undis- defendant was not indicted until Febru- puted being refused, that on towed ary 14, 1966. way, receiving car the remainder of the police. a traffic ticket from the state 11. Thomas here refers to a conversation interesting compare 9. It the defend- he had with the defendant’s sister. Else- present case, record, permitted ant’s conduct and the where testify he was found, length condition of the car when with that as to the conversations of other defendants in similar cases. were not held the defendant’s presence. McCloud v. United F.2d conversations tended 1935), appellant told three cast doubt on the defendant’s prejudicial. versions of how he came into and were thus

181 291, reported Peppard (1813); one, 3 L.Ed. 348 v. the Chevrolet —had (8th Louis, Missouri, Sep- States, 623, F.2d United 314 627 stolen in St. 1963); Sawyer’s Petition, 24, 1964, the Thunderbird Cir. In re tember 1956); 805, (7th September 229 reported F.2d stolen on 809 Cir. had been 53, Chicago, Thorpe, 46, 30, 1964, I Landstrom Illinois. have v. 189 F.2d report (8th 1951); copy from those 26 A.L.R.2d police 1170 Cir. Ker a States, 904, cheval v. United 908 cities. (8th 1926); Wigmore, Cir. 5 Evidence your through “Q. You learned 1940); (3d 1362 ed. Code of § Model your con- inquiry official because (1942). Evidence rule 502 It did not Police? Arkansas State nection with exceptions fall within to the rule. See Yes, I “A. did.” 28 U.S.C.A. testify And, permitted Moore was hearsay testimony While the with re- as follows: spect part to the Chevrolet was in cumu- n Chevrolet, and I also “A. The ’64 discredit, lative, it tended to the defend- examined the Chev- examined the—I rightfully ant’s statements was Grady City Hall, I rolet at car. Mrs. examined the Thunderbird at hearsay testimony respect Trotter’s residence. highly preju- was Thunderbird "Q. Upon these examination it, as, dicial there would have cars, you attempt ascertain the did indicating testimony been no ownership of them? transported other have Yes, “A. I did. stolen vehicles interstate commerce “Q. you upon learn to his did sister’s home Arkansas. What attempt? reiterate, To the defendant’s credi- bility Thus, 16th, issue. hear- “A. On March we received was crucial through say our official of- evidence information which had effect of at- tacking credibility Indiana, prejudicial Indianapolis, fices in vehicle, 1964 Chevrolet identification its admission error. 41467S299311, number which is the 2. The record with numerous is filled City Grady vehicle at that was registration forms, license references Hall, September 24, 1964, plates reports. Although official Louis, place from this in St. Chevrolet appears avail- documents were way check, by Missouri. This able, probably of a hands came from the National Automobile testifying documentary witness, only Theft Bureau. copy evidence received offered or the ’64 Thunderbird [******] “A. I also vehicle, learned that identifi- tion to the of an invoice on the stolen 1964 Chev- rolet from St. the General Louis, Missouri, Motors garage.12 Corpora- 4Y87Z186012, cation number which the best It established rule the car looked in Mrs. Trotter’s must be obtainable evidence extant and yard, 30, September front was stolen secondary trial, evi used in Company, Yates Motor may not be offered so dence of a fact Chicago, Illinois. This vehicle had long primary is extant and servicing been left for and when Bank of obtainable. Renner v. Colum it, the owner called it couldn’t be bia, L.Ed. Wheat. found.” (1824); v. United Williamson 1960); testimony (5th F.2d Much of United States Cir. above hear- say. Queen (2d Manton, Hepburn, Cir. v. F.2d v. Cranch original Tayloe, 12. If an 6 L.Ed. document has been 9 Wheat. de- stroyed obtain, (1824) (Original destroyed, copy, or is contract oral difficult course, preferable testimony permitted.) to oral might Riggs well be admissible. See (defendant’s law 1938); Rose Pritchett common McDonald 1937), wife) April cert. de on a 1950 Chevrolet F.2d license nied, 1964. He further stated that 81 L.Ed. Billington plate defend- R issued to 3307 was #45 *12 1926); on Octo- ant same Chevrolet McCormick, ber see Evidence § Wigmore, (3d ed. Evidence require production to The failure 1940); Criminal 22A C.J.S. Law §§ question more of the documents in (1961). case, rule es- error it tended to than a harmless as was not followed and the defendant was registra- (1) false tablish that a dual or prejudiced as a result of the failure to on the 1950 Chevro- tion had been made it. follow let, (2) that the date of defendant’s ad- example, Thomas tes- For Patrolman mitted the stolen automo- registration tified that at the outset his investi- certifi- bile and date the gation, produced sister the defendant’s with cate on the 1950 Chevrolet coincided purporting a document to be “own- (3) another, number one that license registration copy” or certifi- registered er’s plate Chevro- cate on the cer- 1964 Thunderbird. This let automobile. was found on the stolen purported tificate also issued be helped These the web statements weave Department. the Indiana Motor necessary Vehicle of circumstantial evidence requiring production Without of the doc- convince ument, permitted the court Thomas to impaired knew car was state that car serial numbers credibility. his registration and the certificate were the conclusion, it is to be noted same, ap- but the license number court, advising the pearing on the certificate that on Attorney would it and the United States automobile was As different.13 fully protect rights, expressed that testifying Thomas was the contents responsibility de- owed to which is registration certificate, pro- its fendant, who, case, in a decides criminal required. duction should have been proceed pro At- se. The United States again The best evidence rule was vio- torney obligation avoid was under an during lated direct examination offering incom- knew be the Chief Clerk Motor Indiana petent equal- trial court under an Department. Vehicle He he had testified ly heavy receiving burden to avoid pro- plate checked the license numbers obliga- evidence.14 Both under an were investigating vided him officers tion to insure the defendant a fair trial. registration with the certifi- automobile cates on file in his He office. stated I would and remand for a new reverse plate license R 1690 issued to trial. #45 testified, impartially compelling 13. Patrolman Thomas at one era. is as as its ob- point trial, ligation govern all; Chevro- the 1964 in- and whose plate terest, therefore, prosecu- let bore license R At in a criminal #45 another, he stated the license number was tion is not it shall awin but testimony regarding justice such, R 1690. His shall done. As #45 checking registration peculiar very certificates in a definite sense the ambiguous law, him Mrs. Trotter servant of the the twofold aim of guilt escape the 1964 Chevrolet. which is that or in- shall prosecute may nocence suffer. He Berger vigor indeed, 14. In earnestness and he should — (1935), 633, 79 But, L.Ed. do so. while he strike hard blows, liberty Justice Sutherland wrote: “The United he is not at foul to strike Attorney representative generally States is the ones.” See Canon No. Can- ordinary party controversy, Ethics, of an to a but ons of Professional American Bar obligation gov- sovereignty of a whose Association.