United States v. David E. Powell
806 F.2d 1421
9th Cir.
1986
Check Treatment

*2 argues Powell first the trial WALLACE, Before FERGUSON and by court committed error reversible admit NORRIS, Judges. Circuit ting a prior witness’ consistent statement and false odometer certifications that Pow NORRIS, Judge: Circuit signed subsequent ell to those for which he Defendant David Powell was convicted was indicted. not reach the We do issue of violating rulings on three counts whether the were U.S.C. erroneous be cause, were, falsely certify- they and on six counts even if the error was § ing readings probable harmless. If automobile odometer viola- “it is more than not 1988(b) 1990c, tion of materially & that the error did not affect §§ (the verdict,” required. “false then U.S.C. certification” reversal not counts). Valle-Valdez, argues appeal On he that the trial United States v. Cir.1977) admitting (emphasis omitted). court erred in certain evidence Here, entering acquittal and in not other judgment evidence Powell’s intent overwhelming. Moreover, on the false counts. in the record is certification We con- government clude that if the court erred in its introduced into evidence trial evidentiary mileage rulings, directly the error was harmless six false certifications re indictments; lating the chance justify insufficient to reversal on to the improperly agree jury might count. But with the been influ we defendant have objects Powell acquittal that he was enced the ones to is entitled to evidentiary false certification We thus affirm remote. As Powell’s chal counts. grounds lenges only ap- all raised on defendant’s convictions under are the counts, peal concerning the we af- ors at state law. The go eases do not so who, firm his convictions under far as to include Powell, those like any legal never had or beneficial ownership III. interest in a transferred car. 1988(b), person A if cannot violate Indeed, in presenting case a fact willfully provides

he informa- pattern bar, similar to the case at it was *3 transferee, tion to a unless he is a “trans- president held that the of dealership a car regulations feror.” The define a transfer- car, could not be the transferor despite of a “any person or as who transfers his owner- signed seller, that he as the be fact ship in a motor 49 vehicle.” C.F.R. 580.- § cause he any ownership never had actual argues 3. Powell that he not a trans- interest in the car. Cwiakala v. Economy feror, and thus cannot be convicted under Autos, 1462, (N.D.Ind. F.Supp. 587 1465 1988(b), he because never had an owner- § 1984). Being apparent owner and sell ship any interest in of cars sold with enough er of a car is not to make one a mileage readings. false legal transferor —one must have some ownership beneficial interest in the car. agree We with the defendant. McGinty See Beranger Volkswagen, 633 Powell had held himself out as the owner 226, (1st Cir.1980); F.2d 230 Ryan v. Ed issue, sales, arranged of the vehicles at wards, 756, 592 Cir.1979). F.2d 762 signed and the sales certificates as trans feror, merely all agent but was at times government argues if even owner, Company. for the true Colonial Car Powell was not a he transferor could be any legal He never had or beneficial owner 1990c(a). convicted under 15 U.S.C. That § ship interest in the vehicle. It is true that section criminalizes intentional violations of defendants have at times held been liable 1988, among others, providing criminal as transferors even if under the relevant penalties “[a]ny person they might state law not have been deemed willfully and act or causes to legal transferring to be the owners or to be any provision be done act that violates ownership. their See United States v. El subchapter.” government of this rea lis, (7th Cir.1984); 739 F.2d 1250 Tusa v. Company, sons that Colonial Car the trans Auction, Inc., Omaha Auto 712 F.2d 1248 feror, 1988(b) by furnishing violated § (8th Cir.1983); Goeman v. 498 Keating, certificates to the transferee F.Supp. (D.S.D.1980). 700 In all these through agent, By its intentionally Powell. cases, however, the transferors had some furnishing mileage certificates he knew to legal ownership or beneficial interest in the false, “knowingly be Powell thus and will Ellis, vehicles at issue. 739 F.2d at See fully ... to be done act that cause[d] [an] title); Tusa, (legal 712 F.2d at 1251- 1988, though even Powell violate[d]” § Goeman, (legal title); F.Supp. at not, non-owner, could as a have himself (beneficial owner). 701-02 These cases Although certainly violated a via largely interpretation reflect the view that theory, argument ble this was raised for guided by 1988 and 580.3should be §§ appeal, first time on and no basis for uniform nationwide standard of “owner raising argument appears anywhere ship” vary that does not state state jury the record. The indictment and in depending upon what that state deemed to transferor, structions refer to Powell as ownership. the relevant indicia See provision with 1990c included as the Ellis, 1254; Tusa, 739 F.2d at 712 F.2d at penalties. that allows criminal merely 1252. The thus stand for the cases proposition persons who had Alternatively, government certain legal ownership or beneficial interests in contends that the defendant could be con pur aiding cars can be considered transferors for 18 U.S.C. 2 for and victed under poses if they abetting against 1988 even would not the United a crime States. aiding have considered owners or transfer- that an been Powell contends abet- FERGUSON, ting cannot stand because the Judge, concurring conviction Circuit government in part dissenting part: has not introduced sufficient principal to show that a evidence commit Judge opinion I concur in Norris’s with government correctly ted a crime. The exception of the reversal of defendant’s points can out that defendant be convict counts, conviction on false certification aiding abetting ed if a principal 1988(b) I respect- §§ identified or never convicted. See Unit fully dissent the issue those counts. Mehrmanesh, 822, ed 689 F.2d States v. majority’s Under the interpretation, con- (9th Cir.1982); Chen Congress duct which specifically defined as aur, (9th Cir.1977); Feld go unpunished criminal will in the Ninth States, stein v. United 1095 Circuit. (9th Cir.), denied, cert. 400 U.S. Congress when added Odom- (1970). S.Ct. 27 L.Ed.2d 159 None Requirements eter to the Motor Vehicle theless, criminally a defendant cannot be *4 Act, Savings Information Cost and sub- proof convicted a principal absent that chapter chapter IV of 46 of 15 of title the See, e.g., criminal offense was committed. Code, United States it in the stated con- Hurd, 1179, 1182 United v. 642 F.2d States gressional findings pur- and declaration of (9th Cir.1981); Jones, United States v. 425 pose: (9th 1048, Cir.), denied, F.2d 1056 cert. 400 Congress The hereby purchas- that finds 823, 44, (1970); U.S. 91 S.Ct. 27 L.Ed.2d 51 ers, buying vehicles, when motor rely 408, Ruffin, United States v. 613 F.2d 412 heavily reading on the odometer as an (2d Cir.1979); Barker, United v. States 542 index of the condition and of such value (8th 479, Cir.1976). F.2d 484 The fact that vehicle; purchasers that are entitled to principal the need not be identified or con rely reading on the odometer as an accu- thought victed has never been to obviate mileage rate actually reflection proof the need for that showing an under vehicle; by traveled that accurate lying by crime was committed someone. mileage indication by traveled a Hudson, See States United v. 717 F.2d motor purchaser vehicle assists the in 1211, (8th Cir.1983); 1214 United States v. its determining safety reliability; and 1006, (1st Campa, Cir.1982); F.2d 679 1013 and that motor in vehicles move the cur- (2d Perry, United States v. 643 F.2d 45 foreign rent of interstate and commerce Cir.), denied, cert. 454 102 U.S. S.Ct. or affect such commerce. It is therefore (1981); 115 L.Ed.2d purpose subchapter prohib- this to (5th Barfield, Cir.1971). tampering it with on odometers motor circuit, Rather, others, courts this as in vehicles and to establish certain safe- require showing continue to evidence that a guards protection purchasers principal offense has been committed—in respect with to the sale of motor vehicles cluding requiring prin evidence that some having altered or reset odometers. cipal requisite despite had the ac intent — knowledging that or identification convic 15 U.S.C. 1981. principal per tion of the is se necessary. not protect purchasers vehicles, To of motor Barnett, See States United F.2d Congress Secretary directed the of Trans- Cir.1982); Chenaur, 841-42 552 portation prescribe to requiring rules any case, prosecu at 299-300. this give a transferor to written disclosure to a tion has demonstrated that Powell had the mileage transferee of reg- cumulative showing intent but requisite made no that istered on the odometer. U.S.C. Powell, any person than other identified or 1988(a). Congress also decreed that no otherwise, had the necessary intent to vio any transferor violate shall such rule or late give a false statement to a transferee in IN AFFIRMED PART AND making any RE- disclosure. U.S.C. PART. 1988(b). Simply stated, IN Congress VERSED re- ownership in a motor vehicle of an automobile beneficial be- any transferor quired that written, liability to fore there is under the odometer give truthful disclosure must However, subchapter. both cases the cumulative transferee of the liability civil held that under courts registered on the odometer. of section section was derivative sec- regulations promulgated under dependent upon showing and 1988(b) “any transferor as define a tion a transferor. defendant was ownership in his person who transfers sale, language of gift, any means sections 1989 and 1990c by motor vehicle liability civil imposes inter- differ. Section 1989 security of a than creation other person intent to any The defendant in who with defraud 49 C.F.R. 580.3. est.” any requirement imposed by violates ownership had no interest. this case subchapter. Only Therefore, How- odometer transferors he was not a transferor. give required to certificates. Section ever, though the defendant was not a are 1990c, liability, criminal imposes transferor, provide did cer- which is he nevertheless provides person much broader. It the certifications were false. tifications willfully persons dealt with Congress specifically any provision of the there- act that violates sub- who, although not transferors certifications, criminally giving chapter is liable. The provide required not fore certificate is such an act. Title a false give false certifications. nevertheless 1990c(a) passed in 1976. 15 U.S.C. § are, therefore, McGinty Ryan not section, the defendant under which In that applicable liability criminal when based *5 Congress stated: prosecuted, 1990c, provision on section a which was penalties; ... Criminal years adop- in four after the enacted (a) person who Any strength- 1988 and to tion of sections any act or causes to be willfully commits light in en enforcement of the ineffective- any provision that violates reducing done act remedies in odometer ness of civil knowingly and will- subchapter or Report accompany- of this tampering. The Senate any act or causes to be fully passed omits to do stated ing bill which was the Senate required by any is omitted act that that: more shall be fined not provision such compre- Title IV established a While $50,000 imprisoned not more or

than prohibiting odometer tam- hensive law year, or both. than one provided enforcement pering, it injunctive through actions or private civil 1990c(a) limit section to Congress did not years, only one In over two actions. “transferors”; instead, Congress made action has been injunctive enforcement “[A]ny person” who “any person” liable. Attorney brought by the General and provision a an act which violates private have utilized the consumers few violating subchapter guilty is testimony provisions. be- civil action Filing certificate is an act a false statute. Committee, Commerce fore the Senate subchap- of the provision violates which Transpor- Department of the officials 1988(b). Thus, sec- under ter. that without additional tation indicated 1990c, commits that “any person” who tion sanctions, it powers and enforcement guilty. act virtually impossible put to would be (cid:127) asserts, majority and the The defendant trafficking of in inter- to vehicles halt concludes, liability under section 1990c subject had been state commerce which depend- and is of section 1988 is derivative tampering. to odometer showing that the defendant was upon ent 94-155, Cong., 94th 2d Sess. Rep. No. McGinty v. majority cites transferor. Cong. 1976 U.S. Code & reprinted 226, 230 Beranger Volkswagen, 1718, 1723. News Admin. Edwards, Ryan Cir.1980), (1st a transferor Thus, clear that while (4th Cir.1979), proposi- it is for the proceed- only one liable civil legal may some that one must have tion ings, specifically and in- the limitation was

tentionally by Congress for the eliminated liability. To

imposition of criminal con- pur- general

clude otherwise thwarts

pose and makes fine-line statute congressional contrary

distinctions in- statutory language.

tent and The defend- prohibited,

ant committed criminal acts Therefore,

filing I must false certificates. from the of the majority’s

dissent reversal on the certifi-

defendant’s conviction

cation counts. LIFSHITZ,

Igor Plaintiff-Appellee, INC., SONS, &

WALTER DRAKE et

al., Defendants, Co., Inc.,

Etna Products

Defendant-Appellant.

Igor LIFSHITZ,

Plaintiff-Appellee-Cross-Appellant, CO., INC.,

ETNA PRODUCTS

Defendant-Appellant-Cross-Appellee. 85-6087,

Nos. 85-6130. Appeals, Court

Ninth Circuit.

Argued Sept. 4, and Submitted 1986.

Decided Dec.