United States v. Tucker

23 F. App'x 275
Procedural entryThis page is a short order in United States v. Tucker. Read the opinion of the Court — 48 F. App'x 131
Court of Appeals for the Sixth Circuit·Decided October 2, 2001·No. Nos. 00-5003, 00-5051·Published

Opinion

PER CURIAM.

Following a jury trial, the defendants, Kevin Tucker and Johnny Claypool, appeal from judgments of conviction stemming from the theft of a truck trailer from Ohio and the subsequent transportation of the trailer into Kentucky. Tucker was found guilty of conspiracy to transport stolen goods in interstate commerce and of aiding and abetting the transportation of stolen goods in interstate commerce. Claypool was convicted on the aiding and abetting charge.

On appeal, Tucker challenges the district court’s denial of his motion for a mistrial, the court’s admission of evidence of other crimes under Federal Rule of Evidence 404(b), and its refusal to give a requested instruction that being an accessory after the fact is a lesser included offense of the crime of interstate transportation of stolen goods. Claypool also challenges the court’s jury instruction, and he contends that the evidence used to convict him was legally insufficient. We find no reversible error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Driven by an employee of B & B Transportation, the truck in question had originally left Trenton, Ohio, on October 22, 1996, destined for Marietta, Georgia, and loaded with 2,205 cases of Miller Lite beer. Shortly after leaving the distribution lot, however, the driver detected a problem with the air lines to the trailer and, in accordance with his employer’s instructions, unhitched the trailer and left it in a lot used typically to park empty trailers awaiting loading. Later that afternoon, Rodney Grubb and Clarence [277]*277Hoskins, trailer mechanics for B & B Transportation, along with Terry Hicks, a non-employee who happened to be related to Hoskins by marriage, arrived at the lot, repaired the air hoses, and left. The following afternoon, another B & B Transportation driver was dispatched to the lot to re-hitch the trailer and start the journey toward Georgia. Upon arriving at the lot, however, the driver discovered that the trailer, as well as its cargo, was no longer there.

Several days later, local police in Cynthiana, Kentucky, were told by an informant that large quantities of beer were being sold in the area to bootleggers. A subsequent investigation recovered 91 cases of Miller Lite beer in an abandoned home and 952 additional eases loaded onto a rented Ryder truck. Although the defendants denied any knowledge of how the beer arrived in Kentucky or, initially, of the fact that the beer had been stolen, co-defendant Terry Hicks testified at trial that he had informed Tucker in late October that a loaded, unsealed trailer was parked in a dark, unsecured lot near Trenton, Ohio. The very next day, Tucker took Hicks to a Kentucky truck stop where they picked up the loaded trailer waiting there and drove it to a farm in Kentucky owned by Tucker’s family. A portion of the cargo from the trailer was later loaded onto a flatbed truck and sold to bootleggers, and the remaining beer was loaded onto the Ryder truck that was eventually recovered by law enforcement authorities.

In addition, several individuals with whom the defendants came in contact during late October and early November 1996 testified that Tucker and Claypool were well aware of the contraband nature of the beer they were transporting and selling. For instance, John Johnson related that Tucker originally claimed that the large quantities of beer were won in a contest, but later discussed with Claypool how the beverages had been stolen with the help of a co-conspirator on the “inside” of the shipping operation. Johnson also testified that Claypool himself stated that the beer had been stolen.

William Banks also provided testimony regarding Tucker’s efforts, in the presence of Claypool, to have Banks sell the beer for them at a price of only $5.00 per case. Additionally, Banks heard Tucker say that the beer in their possession came from a “hijack from a truck that was broke down on the side of the road.”

Given this evidence, the jury was able to find that the defendants were aware of the fact that the beer recovered in Kentucky had been stolen from Ohio and that Tucker himself was involved in the plans to effectuate the theft and disposal of the stolen goods. Consequently, the jurors found Tucker guilty of both conspiracy to transport and of aiding the abetting the transportation of stolen goods in interstate commerce. The jury also determined that Claypool was guilty of aiding and abetting Tucker. From those convictions, the defendants now appeal.

DISCUSSION

Defendant Tucker first asserts that the district court abused its discretion in denying his motion for a mistrial after a Kentucky state trooper testified that the trooper had previously participated in “several investigations” involving Tucker. He contends that he was unduly prejudiced because the trial judge did not immediately offer a limiting instruction on how the jury was to evaluate the testimony.

We review the district court’s denial of a motion for a mistrial for an abuse of discretion. See United States v. Carroll, 26 F.3d 1380, 1383 (6th Cir.1994). Under the facts presented in this appeal, the district judge clearly did not abuse his discretion [278]*278in denying Tucker’s motion for a mistrial, especially for the reason now advanced by the defendant before this court. Although the line of questioning propounded by the Assistant United States Attorney (“How do you know Mr. Tucker? Do you know him through investigations you’ve conducted before?”) was improper, we conclude that the trooper’s brief statement in response did not prejudice the defendant in light of the strong evidence of Tucker’s guilt. Furthermore, the district judge did indeed offer a limiting instruction to the jury, directing them to consider the evidence of prior misdeeds only for certain purposes. Although the cautionary instruction was not given immediately after the offending question and answer, the district judge did give the instruction at the end of that witness’s testimony — after only seven more complete questions were propounded by the government, comprising a mere two pages of additional transcript. In light of the overwhelming evidence of Tucker’s guilt of the offenses for which he was convicted, we cannot say that the district court abused its discretion in waiting the few moments it did to caution the jury about the limited use it could make of this testimony.

In a related issue, Tucker also asserts that the district court erred in admitting evidence of a prior crime committed by the defendant. In following up on the improperly broad question regarding whether the Kentucky state trooper knew Tucker “through investigations [he had] conducted before,” the prosecutor guided the witness through a declaration that Tucker had previously been convicted for receiving a stolen all-terrain vehicle.

As a general rule, “[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” See Fed.R.Evid. 404(b). As recognized in Rule 404(b), however, such evidence may “be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.... ” Id.

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United States v. Tucker, 23 F. App'x 275 (6th Cir. 2001).

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