United States v. Michael James Baldivid

465 F.2d 1277

• Court: Court of Appeals for the Fourth Circuit
• Decided: December 4, 1972
• Docket: 72-1188
• Status: Published

Opinions

WINTER, Circuit Judge:

Found guilty of receiving, concealing, selling and disposing of stolen property of the value of $5,000.00 or more, moving in or constituting a part of interstate commerce, knowing the property to have been stolen (18 U.S.C.A. § 2315), defendant appeals. The principal errors asserted are that there was an absence of competent proof to show that the value of the stolen property was $5,000.00 or more and that, evidence of other crimes committed by defendant, of which he had not been convicted, was improperly admitted to his great prejudice. We find no merit in these, or in any of the other asserted errors, and we affirm.

I

There was evidence before the jury from which it could find that, on July 23, 1970, Hiram Walker, Inc., in Detroit, Michigan, shipped 1100 cases of Canadian Club whiskey to its Raleigh, North Carolina, place of business. On July 26, 1970, Franklin Leroy Swann stole the trailer containing the whiskey from Trans-American Freight Lines terminal, in Winston-Salem, North Carolina, took the trailer to Rockingham, North Carolina, and tranesferred the stolen whiskey to another trailer. The theft was carried out pursuant to the instructions of Dick Hunter, in Charlotte, North Carolina, who was one of Swann’s employers.

When Swann reported to Hunter that the theft had been accomplished, Hunter instructed Swann to get in touch with defendant, Michael James Baldivid, to get the latter’s assistance in the sale of the whiskey. Baldivid directed Swann to take the whiskey to Pennsauken, New Jersey, and, once there, to check into the Pennsauken Motor Inn, a motel. It was agreed that the price for the whiskey would be $33,000. Swann was introduced to a young man, whom Baldivid represented as his nephew Jim, and Swann and Jim went to New Jersey in Swann’s Cadillac, while two others piloted the truck. The entourage departed for New Jersey on Thursday, July 30, 1970.

When the group arrived at Pennsau-ken — about 25 miles from Philadelphia —they checked into the motel, and Swann communicated with Baldivid, who said that he would join them the next day. Swann saw Baldivid at Baldivid’s motel in Trevose, Pennsylvania, a suburb of Philadelphia — about thirty minutes from the Pennsauken Motor Inn —on Saturday, August 1. Baldivid informed Swann that the Mafia was having financial problems, that “Roy and John” wanted Baldivid to let them have the load on credit, and Baldivid was concerned about the personal safety of the entourage and concerned, further, that the Mafia would try to steal the load from them. He directed Swann to take the truck and depart immediately.

Swann returned to the motel, awoke the two who had piloted the truck, and the three headed back south. They hid the truck at a truck stop fifty or sixty miles away, and then Swann picked up the two truck drivers and they all returned to Baldivid’s motel. Baldivid was worried because his nephew Jim had disappeared, but, while the group was at the Pennsauken Motor Inn retrieving their personal effects, a car drove up and Jim got out. The car contained two others, who were identified as “Roy and John.”

Baldivid then directed Swann to take the whiskey to Baltimore and to communicate with him when Swan arrived. Swann carried out the instructions and, after checking in at the Holiday Inn, in Glen Burnie, Maryland, telephoned Bal-divid, who said he would be there the next day. Before Baldivid arrived, an acquaintance of Swann’s, Stancil Lee Stanback, who had previously worked with Baldivid, came to Swann’s motel and said, “I heard you got a load.” A discussion ensued concerning the purchase of the hijacked whiskey and a figure of $33,000 was agreed upon. Thereafter, Baldivid and his wife cheeked into the Holiday Inn, in downtown Baltimore, and Swann and Stanback went to Baldivid's motel, where Stanback said that he could not raise $33,000, so that he would have to make partial payment with two automobiles — a 1970 Mark III Lincoln Continental and a 1970 Fleetwood Cadillac. The next day Swann, Baldivid and Stan-back went to Edwards Motor Company, where Stanback worked, and Swann and Baldivid, respectively, were given bills of sale, each in the amount of $7,750, for the two ears. Delivery of the cars and transfer of registration, etc., was accomplished the next day, and Baldivid and Swann left Baltimore. There was evidence that later Baldivid obtained a $5,000 loan on the Lincoln Continental, in Charlotte, North Carolina, and that he arranged a loan for $4,000 for Swann on the Cadillac.

II

Before proceeding to defendant’s two major contentions, we will comment on his subsidiary ones. We have no doubt that the evidence was legally sufficient to permit the jury to find beyond a reasonable doubt that defendant was guilty of the crime charged, both as a principal and as an aider and abettor. There was not a fatal variance between the indictment which alleged that the crime was committed “[o]n or about July 25, 1970” and the proof which showed that the crime was committed within the period July 25, 1970, and August 2, 1970. Nor was there a fatal variance between the indictment which alleged that the crime was committed in the Middle District of North Carolina and the proof of acts occurring in New Jersey and Maryland. The evidence established some criminal acts in the Middle District and established also that the crime was a continuing one for which prosecution would be in any district where any criminal act was committed. 18 U.S.C.A. § 3237(a). The fact that the goods constituted interstate commerce and were moving in interstate commerce was sufficiently proved. We see no error in the government’s being permitted to impeach its witness Stan-back when, in contradiction of his prior statement and to the government’s surprise, he sought to testify that Swann and Baldivid paid him cash for the Cadillac and the Lincoln, rather than that he transferred the vehicles and $3,500 in cash to them in payment for the whiskey. Nor do we see any error on the part of the district court in failing to instruct the jury about the value of the stolen merchandise other than the fact that they must find, as an essential element of the crime, that the whiskey had a value of $5,000 or more before they could find defendant guilty. In this connection, we note that no special instruction was requested nor was there any exception to the charge.

III

The evidence of value of the stolen whiskey was a stipulation of the parties that if sold at retail through the North Carolina A.B.C. stores (the ultimate retail outlets to which the whiskey was apparently destined), the whiskey had a total retail value in excess of $135,000. Swann testified that the original purchase price of the whiskey to Stanback was $33,000 and Stanback testified that the renegotiated price was $19,000. We take judicial notice of the fact that stolen merchandise brings a lower price than actual market or retail value.

Relying on United States v. Tippett, 353 F.2d 335 (4 Cir. 1965), cert. den., 383 U.S. 908, 86 S.Ct. 889, 15 L.Ed.2d 664 (1966), Baldivid contends that the government failed to prove the market value of the whiskey at the time and place of the theft, i. e., in the hands of the manufacturer, Hiram Walker, Inc. In Tippett we held that value, within the meaning of 18 U.S.C.A. § 2315, was value in the ordinary course of business to the lawful owner from whom the goods were stolen. Specifically, in Tippett we concluded that the value of a quantity of motor vehicle tires stolen from a wholesaler was their cost at wholesale. By analogy, value in the instant case would be the price at which Hiram Walker would sell the whiskey to a wholesaler, or in North Carolina, to the A.B.C. stores which purchase alcoholic beverages directly from the manufacturer.

We have no doubt that in compliance with Tippett the government should have offered proof of value to Hiram Walker. However, we think that the omission was harmless error. We have no doubt that when the ultimate retail value was in excess of $135,000 and the value as “hot goods” as much as $33,000 and not less than $19,000, the value to Hiram Walker, in the ordinary course of business, was at least as much as $5,000. The markup by the North Carolina A.B.C. stores of whiskey which they purchase at wholesale might be very substantial, but it would overextend our credulity to suppose that whiskey purchased for less than $5,000 would have a retail value as great as $135,000. The rationale of Tippett — that “Congress intended by placing a jurisdictional amount in the statute to limit the federal courts to transactions involving substantial amounts of property” (emphasis added; 353 F.2d at 338) — was fully met from the evidence offered and the inferences to be derived therefrom.

IV

After the government had presented proof of the facts we have recited, i. e., Baldivid’s sending Swann, Jim and others to Pennsauken, the apparent financial inability of the Mafia in that area to purchase the hijacked liquor, Baldi-vid’s worry about another hijacking and the physical safety of the original hijackers, and Baldivid’s direction to move the whiskey south where, in Baltimore, it was ultimately sold to Stanback, Bal-divid testified in his own defense. He readily admitted the trip to Philadelphia on July 30-31, 1970, and the trip, with his wife, to Baltimore on August 1, 1970. He claimed that the purpose of the former was to engage in legitimate business transactions in connection with his business as a supplier of institutional furnishings and floor coverings, and the purpose of the latter to purchase a Lincoln Continental Mark III, an automobile that he had always wanted and one which Swann had located for him at a price he could afford. While in Baltimore, he admitted that he saw Swann and also Stanback, whom he described as the seller of the car. He denied that he saw a “Jim,” or had a nephew by that name. He also denied seeing Swann in Philadelphia, having any knowledge of a lot of stolen whiskey (until he read about it in the newspaper late in 1970 or early in 1971), playing any part in the sale of such stolen merchandise, or having any connection with the Mafia.

In rebuttal, the government called Allen Christenbury, and it is his testimony and the testimony of Swann on redirect, admitted over the defendant’s objection, which is claimed to constitute reversible error. Christenbury testified that after he had started his business someone in his office ordered office furniture and carpet. He received a call from defendant saying that the merchandise had not been paid for and it appeared that Christenbury’s company needed financing. Defendant offered to supply financing and, when asked who would lend the money, his reply was to the effect that Christenbury shouldn’t care whether the money came from a bank or the Mafia. In a later conversation concerning an unpaid bill for carpet, Baldivid asked Christenbury if he had heard of a Bruno from Pennsylvania. Baldivid identified Bruno as the Mafia, and said that if Christenbury did not pay, he would not be threatened with bodily harm but “your house could burn down.” Baldivid showed Christenbury some newspaper clippings about a murder in Pennsylvania, and said “This is the way we do business. This is the way we collect our bills.” Baldivid went on to say that if he was not successful in collecting the bill his family could be harmed because “when you’re part of the family, this is the way it is.”

Swann’s testimony on redirect only amplified that which had been admitted when he first testified. It was that he had been to the Pennsauken Motor Inn, in New Jersey, prior to the time that he went at Baldivid’s direction with the stolen whiskey. On the earlier occasion he also went there at Baldivid’s direction with a load of stolen furniture, which Baldivid subsequently sold to “Roy and John out of Jersey.”

With respect to Swann’s testimony, the jury was admonished at the time that he testified that they should not consider the evidence to show that the defendant was of criminal character and committed the crime charged in the instant case, but only to show the intent or guilty knowledge possessed by the defendant. Apparently no similar admonition was made with respect to the testimony of Christenbury, nor was the subject covered in the charge to which the defendant lodged no objections, but this would not be plain error if the evidence was properly admitted.

The law is clear that “[ejvidenee of the commission of one crime is not admissible merely to prove the defendant a ‘bad man’ and therefore more likely to have committed the crime charged,” United States v. Mastrototaro, 455 F.2d 802, 803 (4 Cir.), cert. den. 406 U.S. 967, 92 S.Ct. 2411, 32 L.Ed.2d 666 (1972); or, as stated in United States v. Dutsch, 357 F.2d 331, 333 (4 Cir. 1966), “[a] prosecutor may not establish a defendant’s guilt by offering testimony of unrelated offenses . . . Bolstering the case in this fashion is forbidden.” At the same time, both Mastrototaro and Dutseh recognized and approved the admission of evidence of other crimes where the evidence was relevant to intent, motive or meaning. “[I]f, in the process of proving an element of the crime, such as intent, knowledge or absence of mistake, the testimony discloses other crimes involving the defendant, it is no objection to the admission of such testimony.” Mastrototaro, 455 F.2d at 803. Mastrototaro and Dutseh, in this respect, are fully in accord with the views of the leading text writers. See Wigmore, Evidence, § 216 at 713, 716-17 (3d. ed. 1940); McCormick, Evidence, § 157 at 327-30 (1954). See also United States v. Montalvo, 271 F.2d 922, 927 (2 Cir. 1959), cert. den., 361 U.S. 961, 80 S.Ct. 589, 4 L.Ed.2d 543 (1960).

We think the challenged testimony of Christenbury and Swann was admissible even conceding its effect of proving prior crimes and bad character. With regard to Christenbury’s testimony, it should be noted that Baldivid’s defense was that his only contact with Swann was to arrange a legitimate car purchase and that he was in Philadelphia on business. On cross-examination, to which no objection was lodged, he denied that he told Swann he could sell the whiskey to Mafia friends “up north”; he testified that he had not told Chris-tenbury that he had Mafia connections that would extract borrowed money from Christenbury; and he denied having Mafia connections. Christenbury’s challenged testimony was manifestly relevant in direct rebuttal to Baldivid’s defense. Moreover, evidence that defendant sought to sell the hijacked whiskey to the Mafia in Philadelphia was an essential link in tracing the whiskey from the point that Baldivid first had contact with it to its sale in Baltimore. Baldi-vid’s intimacy with the Mafia in Philadelphia illuminates and clarifies his intention in sending the whiskey to that area in the first instance. It tends to prove that he knew he was dealing in stolen merchandise, an essential element of the crime with which he was being prosecuted. If Christenbury was believed, Swann’s testimony of taking the whiskey to New Jersey, a short distance from Philadelphia, and abruptly removing it at Baldivid’s direction becomes “not only plausible, but convincing.” Mastrototaro, 455 F.2d at 804.

The same is true with regard to the testimony of Swann. If his testimony that previously he had taken a load of stolen furniture to the Pennsauken Motor Inn from where it was sold by Baldi-vid to “Roy and John” is believed, defendant’s motive and intent in directing Swann to take the stolen whiskey to the same place becomes transparently obvious. His testimony also explains how he recognized “Roy and John.” And it demonstrated a particular course of conduct constituting Baldivid’s “signature” or “handiwork.” McCormick, supra, § 157 at 328. We therefore see no error.

Affirmed.