These defendants appeal their convictions under a two-count indictment for stealing and aiding and abetting in the theft of goods from interstate сommerce, and for possession of goods knowing them to have been stolen from interstate commerce. The trial judge first determined that
Bruton v. United States,
Evidence adduced at trial tended to establish the following. On April 16, 1974, Ernest Williams, a truck driver for the Shippers Dispatch Company, drove a Shippers Dispatch trailer, which originated in Chicago, Illinois, from a freight yard in Detroit, Michigan, to the Ford Assembly Plant in Dearborn, Michigan. Upon turning over the “pro bill,” a document showing the contents of the trailer to be 18 pallets of 2880 air compressors, to the Ford receiving clerk, Williams was told that the compressors could not be unloaded at that time. He was asked to take the trailer and leave it in a parking areа, known as the bull pen. Usual procedure at this point would be for a switcher (a driver representing an independent trucking firm and working within the Ford complex) to hook a tractor to the trailer and take it to the loading dock when Ford was ready to unload it.
Lloyd Witherite was working as a switcher аt the Ford plant on April 16, 1974. He had a prior agreement with appellant Ri-mar, that Rimar would buy certain automobile parts that Witherite would steal. While checking through the freight bills that day, Witherite noticed the bill listing 18 pallets, 2880 air compressors. Witherite took the bill and subsequently telephoned Rimar, whо agreed to buy the air compressors for the previously agreed upon price of $5.00 apiece (retail value was $26.18 each). Witherite also had an on-going agreement with appellant Barber, a security man at the plant gate, under which Barber would “look the other way” for a price. Witherite waited until Barber was on duty at the outgoing gate, then he hitched his tractor to the Shippers Dispatch trailer contаining the air compressors, and drove to the outgoing gate. He warned Barber not to look too closely and Barber opened the door of the trailer slightly, then closed it quickly and allowed Witherite through. Witherite drove out of the Ford complex, parked the trailer at anothеr Ford lot located outside the gate, and called Rimar to tell him where he could pick it up. Later that night Witherite met Rimar, who paid him $14,-400.00 in cash fоr the air compressors. Witherite paid Barber $200.00 on the following day for his part in the theft.
In the early morning hours of April 17, Rimar appeared at thе dock of Howard Metal and Salvage, Inc., and asked Fred Howard, the owner, to assist him in unloading the contents of a trailer and reloading thosе contents into another trailer. John Chila, Rimar’s driver, then delivered this load to the Original Equipment Manufacturers (O.E.M.), owned by appellant Schur-gin. Schurgin had, а day or two before, told his warehouse manager, Larry Zbizek, to expect a large shipment of air compressors. After arrival of the рarts on April 17, the compressors were unloaded and moved into the warehouse, even though no paperwork accompaniеd the shipment. In accordance with the instructions of Schurgin, O.E.M. employees repackaged the compressors, removing the serial plates as they did so.
On May 14, four FBI agents, acting pursuant to information given to them by Chi-la, proceeded to the O.E.M. Company where they identified themselves and questioned Schurgin regarding the stolen compressors. Schurgin denied they were on the premises. The agents requested permission to search; Schurgin indicated he wanted to talk to his attorney, which he did by telephone. Schurgin returned and subsequently signed the consent to search form. The search was halted at one point when Schurgin again indicated he wished to confer with his attorney, and did not resume until Schurgin’s attorney arrived at the O.E.M. prеmises. The search produced 440 compressors and several serial plates matching those of the stolen goods. It was later determinеd that the remainder of the compressors had been sold by Schurgin to the Essex International Corporation, and were recovered therefrom.
*1273
Appellants present a number of issues, jointly and individually. The primary concern of this court after receiving the briefs and oral arguments of the parties, was whether the unusual procedure implemented in the district court of simultaneous prosecutions before two juries and the judge created an atmosphere so confusing as to deprive these appellants of a fair trial. A thorough review of the record has rеvealed certain instances of confusion, some cited by the appellants, some not. Several of such instances were reflected by misstatements of the judge or defense counsel in referring to the attorneys or their clients by the wrong names, or confusing momentarily which jury was sitting in which case. Many of these confusing moments took place out of the presence of the juries. However, nowhere in the record do wе find any continuing confusion, so pervasive as to render the trial unfair. The trial judge seemed very much aware of the potential for error inhеrent in the procedure and he moved cautiously in areas where the rights of particular defendants were or could have been involvеd. Hence the trial took somewhat longer than the nature of the charges might suggest was necessary. In instances where misstatements occurred, the district judge promptly corrected himself or the attorney involved and instructed the jury accordingly. As the Supreme Court has held: “ ‘A defendant is entitlеd to a fair trial but not a perfect one.’ . . . It is not unreasonable to conclude that in many cases the jury can and will follow the trial judge’s instructiоns to disregard such [improperly submitted] information.”
Bruton v. United States, supra,
Additionally, we conclude that the district court’s instructions to the jury as to the interstate commerce element of the crimes in question correctly stated the law of this circuit as formulated in Winer v.
United States,
The judgments of the district court are affirmed.