United States v. Randall Lewis Crowder

719 F.2d 166, 1983 U.S. App. LEXIS 16086

Opinions

LIVELY, Chief Judge.

A panel of this court reversed Crowder’s conviction on two counts of interstate transportation of a motor vehicle, knowing it to have been stolen (18 U.S.C. § 2312), and two counts of receiving, concealing and storing a motor vehicle moving in interstate commerce, knowing it to have been stolen (18 U.S.C. § 2313), 691 F.2d 280. The government filed a petition for rehearing, with a suggestion that the case be reheard en banc. Rules 40 and 35, F.R.A.P. This court granted the petition for rehearing and directed that the case be reheard en banc. The effect of this action by the court was to vacate the previous opinion and judgment of this court and to restore the case on the docket as a pending appeal. Rule 14, Rules of the Sixth Circuit. The court received supplemental briefs from the parties and heard additional oral argument, after which the case was submitted for decision. We now affirm the judgment of the district court.

I.

A.

Two pieces of construction equipment, a dump truck and a front end loader mounted on a trailer, were stolen from a work site in South Holland, Illinois between June 28 and July 1, 1980. The owner testified that the equipment was last seen at the job at about noon on June 28, a Saturday, and was discovered missing at 7:00 a.m. on Tuesday, July 1. The stolen equipment was recovered by a Kentucky State Police Officer, Darrell Curry, at about 1:30 p.m. on July 1, in a rural area of Muhlenberg County, Kentucky. The truck and trailer were stuck in a ditch. Randall Crowder appeared to be in charge of getting the truck out of the ditch, with another man helping. When approached by Trooper Curry, Crowder said that he was just helping out.

State Police Detective Michael Winn had been summoned by Curry and he arrived at the scene shortly thereafter. The truck and trailer were in the ditch beside a road and the front end loader was off in a field. After inspecting all of the equipment Winn determined that it had been stolen. The detective then advised Crowder of his constitutional rights, and testified as follows concerning Crowder’s response:

A Mr. Crowder denied knowing who was in the truck. He told me that he had stopped just to help out the driver of the truck. He denied ever seeing the man before or even knowing his name. I asked if it wasn’t true that he had given some people some money for some damage. He told me that he had, that the man driving the truck had given him some money.

Q What else did he say?

A I again questioned him along the line of “you mean the man give you some money when you don’t even know his name and he don’t know you?” again, the answer “yes”.

Q What else did you question him about, and what else did he say?

A At that time he did not say anything else.

Q Did he say what time of day that he first met up with this fellow?

A He advised me that he had first met the man where he had ran off the road into the ditch at a fairly early time in the morning.

After a wrecker arrived the stolen equipment was secured by the police and Crowder was permitted to leave.

Several months later an FBI agent in Hopkinsville, Kentucky, Selden Sledd, called Crowder by telephone and informed him that there was a federal warrant for his arrest in connection with the stolen equipment. Crowder went to the FBI office the next day. The agent advised Crowder of his constitutional rights and Crowder stated that he did not wish to discuss the charges; that he wished to stand by the statement he had made to the state police.

B.

At Crowder’s trial the government presented witnesses who had seen the defendant with the stolen equipment at various places in rural Muhlenberg County on July 1st. These sightings occurred throughout the day, and each time there was some problem with the equipment. A member of a county road maintenance crew, Douglas Mercer, testified in detail about seeing the truck and front end loader, on a trailer, in the area near where it was finally recovered. This occurred at about 9:30 or 10:00 o’clock on the morning of July 1, 1980. This witness said the truck and trailer passed the highway truck which he was driving and then a beige station wagon passed both. The driver of the station wagon flagged the truck down, then stopped and ran back to give the driver of the truck directions, telling him to turn around. A short time later the witness saw the station wagon pulled into a driveway at the bottom of a hill. The truck and trailer with the loader were stalled on the hill and blocked the road so the highway truck could not get by. The driver of the station wagon, identified by the witness as Crowder, got out of his car and was motioning the driver of the truck to back down the hill. The truck and trailer jackknifed and the driver couldn’t make them go in any direction. Crowder then gave the witness some money and asked him to get some oil for the truck. The witness said that Crowder pulled the money out of his own pocket and that he did not see the driver give Crowder any money.

Crowder told Mercer that neither he nor the driver of the truck knew how to operate the front end loader (a bulldozer with a scoop or bucket attachment in front). He said they were just responsible for moving the equipment “down there,” that an operator was coming later to run it. Crowder told Mercer that they had come from Chicago and that he lived on the North Side. He said he had brought the truck and trailer down from Chicago that day. The equipment had the name of the Illinois owner stenciled or painted on it. After Mercer and his passengers returned with the oil Crowder ordered the driver out of the truck and tried to move it out of the ditch. Mercer testified that Crowder was giving a lot of directions to the driver of the truck and there was no doubt in his mind that Crowder was in charge. After Mercer had started the front end loader the truck driver tried to drive it off the trailer, but it slipped off and hung up in the ditch. Crowder told the driver to try to use the bucket on the front end loader to dig himself out and to tear down the fence if necessary, that he would replace it. When the driver pulled the fence down, the owner of the land on which the fence stood ran up and demanded to know what was going on. Mercer saw Crowder pull some money out of his pocket and give it to the landowner.

The road was finally cleared when a truck equipped with a winch arrived and its driver used this equipment to pull the truck, trailer and loader out of the way so he could go through. Mercer and his companions then left to replace a mailbox which had been damaged by a highway mower. Upon returning they again came upon the truck, trailer and loader. This time Crowder and the truck driver were having trouble with the truck and trailer brakes.

One of the other crewmen with Mercer testified generally to the same effect as Mercer, and specifically that Crowder was giving the truck driver directions and that he saw Crowder give money to the landowner whose fence was damaged.

The landowner, Marvin Whittaker, identified Crowder as one of the people who had problems with a truck and front end loader getting stuck in a ditch near his property. He testified that Crowder gave him money to pay for tearing down a fence and post and that Crowder told him he was delivering the equipment to the operator. After the loader was pulled from the ditch this witness saw Crowder leave driving the truck while the truck driver left in the station wagon.

The driver of the pickup truck with a winch who finally cleared the road testified that when he came upon the scene near the Whittaker farm the trailer was across the road, with the truck in the ditch on one side of the road and the loader in the opposite ditch. The county truck was stopped on the road, blocked by the equipment. After this witness had pulled the trailer out of the road Crowder offered him $20 to pull the truck out of the ditch. This occurred about 10 a.m. on July 1st. When this witness returned about 3:30 or 4:00 o’clock that afternoon he was stopped by a state policeman who pointed out the front end loader parked off the road about 200 feet in a woods, where it could barely be seen. Crowder was standing nearby.

Another motorist whose passage was blocked by the trailer testified that after the equipment was removed from the ditch the truck driver ran into the witness’ truck before pulling away with the trailer attached to the dump truck. When the witness protested to Crowder about his truck having been hit, Crowder said “it was a pretty reliable company” and would probably take care of any damages. A short time later this witness saw the loader sitting in the road near the Whittaker property. After calling the sheriff’s office to report that his truck had been hit the witness returned to the place where he had last seen the loader, but it was gone. Following the fresh tracks on the pavement he found the loader parked in a thicket off a gravel road. Later he came upon Crowder with the dump truck and trailer, again stalled on the hill.

After Trooper Curry and Detective Winn had testified concerning their investigation and conversations with Crowder the government called FBI agent Sledd who testified over defense objections that Crowder told him he did not want to discuss the charges, but wished to stand by the state ment he had made to the state police. Defense counsel moved for a mistrial, but his motion was denied.

C.

Crowder elected to testify in his own behalf. His version of the events of July 1, 1980 was that at about 8:00 o’clock in the morning he was on his way to measure some dry wall which he had installed, for the purpose of making out a bill, when he came upon the dump truck, trailer and loader jackknifed in the road. Crowder testified that he stopped and offered to help and then recited the various problems encountered. He insisted that he had never seen the driver of the dump truck before that time. He said when the fence was damaged and Whittaker approached them the driver gave him $40 and told him to pay the man for his fence. He also said the money he gave Mercer to buy oil was from the $40 which the driver had given him, as was the $20 he gave the motorist to pull the equipment out with his winch. He stated that he saw the driver of the dump truck walk into the woods just before the police arrived and that he had not seen him since that time.

Crowder testified that he lived in Kentucky and had not been in Illinois on July 1st or any time during the preceding weekend. He denied telling Mercer that he lived in Chicago or that he had brought the equipment to Kentucky from Chicago. On cross-examination Crowder said he had left home at 7:30 or 8:00 o’clock on the morning of July 1st and specifically denied being in the community of Gus earlier that day. A rebuttal witness testified that he saw the truck and trailer with a loader on it about 7:00 o’clock on the morning of July 1st. It was traveling toward Gus and a small light-colored station wagon with a spare tire on top was following. Crowder’s beige station wagon had a spare tire strapped to the top on July 1st.

Crowder also testified on cross-examination that he had told FBI Agent Sledd that he did not want to discuss the matter and would stand by his previous statements to the Kentucky State Police. The district court immediately charged the jury, sua sponte, “He had the perfect right to make that statement, Ladies and Gentlemen, and that it is not to be considered evidence of his guilt.”

II.

Crowder contends that the district court committed constitutional error in permitting testimony that he told the FBI agent he did not desire to discuss the matter for which he was arrested and that he chose to stand by his statement to the state police. He relies principally upon Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), arguing that the government was prohibited from introducing testimony that he remained silent after having been advised of his right to do so. The problem with this argument is that Crowder never exercised his Fifth Amendment right to remain silent as he was advised he had a right to do. When first questioned by Detective Winn the defendant offered a full exculpatory explanation of his activities. When questioned later by Agent Sledd, while he said he did not want to discuss the matter, he specifically referred the agent to his previous statement to Winn and said he wished to stand by that statement. This was not a claim of the right not to speak, but a reiteration of his previous story.

The question in Doyle v. Ohio, as stated by Justice Powell writing for the Court, was “whether a state prosecutor may seek to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest.” 426 U.S. at 611, 96 S.Ct. at 2241 (emphasis added) (footnote omitted). The due process violation identified in Doyle is that of unfairly suggesting to a jury that a person who has elected to remain silent at arrest after being told he had the right to do so must be telling the jury a recently fabricated story when he offers an exculpatory explanation for his activities at trial. Since it is implicit in the Miranda recitation of rights that “silence will carry no penalty,” silence thus induced may not be used “to impeach an explanation subsequently offered at trial.” Id. at 618, 96 S.Ct. at 2245 (footnote omitted).

In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the Supreme Court made it clear that there is no Doyle violation when a defendant is cross-examined about silence where no Miranda warnings have been given. There the defendant was asked why he had told no one his self-defense version of a homicide in the time between the killing and an interview with a police officer some days later. Inquiry into pre-arrest silence is permitted, because no governmental action has induced the defendant to remain silent. Id. at 240, 100 S.Ct. at 2130. This emphasis on the importance of the Miranda warnings to the Doyle rationale was repeated in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam). There the record did not reflect that Miranda warnings were given in the period of silence immediately following arrest. The defendant offered an exculpatory story for the first time while testifying on his own behalf and the prosecutor was allowed to cross-examine as to why the defendant had failed to advance his exculpatory explanation when arrested. In reversing this court’s judgment granting a writ of habeas corpus the Supreme Court wrote:

In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand. A State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which postarrest silence may be deemed to impeach a criminal defendant’s own testimony.

Id. at 607, 102 S.Ct. at 1312.

The defendant in Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980) (per curiam), told the police, when arrested and after receiving Miranda warnings, that he had stolen a car connected with a homicide at a particular location in Ann Arbor, Michigan. At his trial the defendant testified on direct examination that he had stolen the car from a different location. On cross-examination the prosecutor asked the defendant if this was a recent fabrication. After this court directed the district court to grant the defendant a writ of habeas corpus the Supreme Court reversed, holding that “a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all.” Id. at 408, 100 S.Ct. at 2182. Cross-examination about prior inconsistent statements was found not to have been designed to draw meaning from silence.

The facts of this case are not exactly like those of Doyle or any of its progeny. Here Crowder did not tell his version of the July 1st events for the first time while testifying at trial, as was the case in Doyle and Fletcher. Nor was there a period of pre-arrest silence followed by a post-arrest explanation of events which led to criminal charges as in Jenkins. And the questions asked at trial did not seek to impeach the defendant by revealing a prior inconsistent statement as in Anderson v. Charles. However, as in Anderson v. Charles, there was no silence. From the time of Crowder’s first encounter with the state police on July 1, 1980, he maintained that his only connection with the stolen equipment was that of a traveler lending assistance to a stranger having difficulties on the road — a Good Samaritan. He offered that explanation when it became clear that Detective Winn was suspicious of his activities and had advised him of his constitutional rights. When Agent Sledd presented the federal complaint Crowder said, in effect, “I have told my story to the Kentucky State Police and I am sticking to it.” There was never any claim of the Fifth Amendment privilege to remain silent. This case is controlled by Anderson v. Charles because “the defendant has not remained silent at all.” 447 U.S. at 408, 100 S.Ct. at 2182.

The defendant contends that Anderson v. Charles does not control this case because he never made a prior statement which was inconsistent with his trial testimony. This argument relies on a reading of Anderson v. Charles which is too restrictive. While there was a prior inconsistent statement in that case, it merely furnished the occasion for questioning the defendant. There is no indication that the Court limited its holding to situations involving prior inconsistent statements. What Anderson v. Charles teaches is that the Doyle rule has no application unless the defendant has remained silent and could be considered to have done so in reliance on the implied assurances of the Miranda warnings. Here there was no silence and the prosecutor never implied that Crowder’s testimony was recently fabricated. He just brought to the jury’s attention that Crowder continued throughout to stick with a story which was contradicted in many details by the testimony of disinterested witnesses. This is not a Doyle case as that decision has been interpreted and limited by subsequent Supreme Court decisions. See Goudlock v. Marshall, 712 F.2d 238 (6th C3r., 1983).

III.

Crowder makes an additional argument for reversal on the basis of the district court’s instructions to the jury. The following language was included in the jury charge:

The jury keeps in mind, of course, that in the eyes of the law, a man is held to intend the natural consequences which flow from his own acts, though of course, the burden always remains with the government to prove every essential element of each count charged in the indictment beyond a reasonable doubt to your satisfaction. The law never imposes upon a defendant the burden or duty of calling any witness or producing any evidence.

The defendant did not object to this instruction, though he made detailed objections to other parts of the jury charge.

In Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), the Supreme Court held that a similar charge violated the due process rights of a criminal defendant. The Court reasoned that no presumption, whether conclusive or rebut-table, which has the effect of shifting the burden of persuasion to the defendant may exist in a criminal case. Any instruction which the jury may interpret as advising that a burden-shifting presumption exists is erroneous.

Instructions similar to the one given in the present case had been criticized by this court prior to the Sandstrom decision. See, e.g. United States v. Reeves, 594 F.2d 536 (6th Cir.1979); United States v. Gaines, 594 F.2d 541 (6th Cir.1979); United States v. Cooper, 577 F.2d 1079 (6th Cir.1978); United States v. Denton, 336 F.2d 785 (6th Cir.1964). Following Sandstrom this court held that giving an instruction identical to the one given in this case constitutes plain error. United States v. Williams, 665 F.2d 107 (6th Cir.1981). When intent is an element of an offense it is constitutional error to charge a jury that this element may be supplied by a presumption rather than requiring the prosecution to prove it by evidence, direct or circumstantial.

The Court did not consider harmless error in Sandstrom because that issue had not been considered by the Montana Supreme Court. The Supreme Court addressed the question of whether a Sandstrom error could be harmless in Connecticut v. Johnson, - U.S. -, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983), but reached no conclusion. The Court split 4 to 4 on the issue with Justice Stevens stating that he would have dismissed the writ of certiorari since the Connecticut Supreme Court had refused to hold the error harmless. In Williams this court found that the giving of the instruction was not harmless error, though it was considered a close question.

A constitutional error may be held harmless only if it is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We entertain no doubt that the jury would have reached the same verdict in this case if the offending “boilerplate” instruction had not been given. The only acts of Crowder which were the subject of testimony related to his efforts to remove the equipment from the ditches, including giving orders to the driver and paying others to assist. The natural consequences of these acts would be to get the equipment back on the highway and moving toward its destination. Recognition of these consequences did not in any way affect the government’s burden of proof; they were consistent with Crowder’s story. The government was required to prove the defendant’s wrongful transportation and possession of the equipment totally aside from any presumed consequences of his acts. These elements were proved by evidence of Crowder’s conflicting stories to disinterested witnesses and by inferences drawn from all the proof, not by any presumption that he intended the natural consequences of his acts.

In Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), the Court found harmless error where evidence of guilt was overwhelming. The evidence was overwhelming that Crowder had an interest in the stolen equipment which went far beyond merely helping another traveler in distress. Every important feature of his testimony was contradicted by testimony of disinterested witnesses. The jury heard evidence that before the police arrived Crowder told several people that he was responsible for bringing the equipment to Kentucky for delivery to an operator, and stated to at least one witness that he had brought the equipment from Illinois himself. These disinterested witnesses testified that Crowder was giving instructions to the driver of the dump truck and appeared to be in charge. He paid for help in moving the ditched equipment and for motor oil and fence repairs with money from his pocket. It was only after the police showed an interest in the equipment that Crowder disclaimed any knowledge of its origin or the identity of the driver. Further, though he said he left home early in the morning to make some measurements on work in another community Crowder spent the entire day working with the “stranger.” At one time in the morning the equipment had been moved back on the highway and the “Good Samaritan” work was finished. However, he did not leave, but remained in the area and was involved in trying to move it after a second breakdown. Finally, a rebuttal witness positively identified the “caravan” of Crowder’s distinctive station wagon with a tire on top, the dump truck and trailer hauling the loader on a different road at about 7 o’clock on the morning of July 1st. This flatly contradicted Crowder’s testimony that he had not left home until 7:30 or 8:00 o’clock and had never seen the stolen equipment prior to coming upon it at the place where it first jackknifed. In light of all the evidence we do not believe that the erroneous instruction, which had little or no application to any contested issue in the case,¹ contributed to the jury verdict.

The judgment of the district court is affirmed.

Footnotes

1

. In its mens rea argument the dissent addresses an issue which was not raised in the trial court or in this court. In doing so it displays confusion between permissible inferences and impermissible presumptions. Crowder made no objection to the district court’s instruction:

Possession of property recently stolen, if not satisfactorily explained, is ordinarily a circumstance from which a jury may reasonably draw the inference and find, in the light of surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen.

Objection would have been futile because this court has specifically approved this instruction. See United States v. Jennewein, 590 F.2d 191 (6th Cir.1978); United States v. Brady, 595 F.2d 359, 363 n. 3 (6th Cir.1979). This instruction may have provided the jury with a basis for inferring that Crowder knew the equipment was stolen. If so, the inference was a permitted one. The Sandstrom instruction did not deal with Crowder’s knowledge that the equipment was stolen. There is nothing in that instruction which addresses the question of his knowledge.