United States of America, Plaintiff-appellee, v. Wallace Murphy Plum, A/k/a Porky Plum, Defendant-appellant, 558 F.2d 568 (10th Cir. 1977)

Defendant-appellant Plum was convicted on an information charging that in August, 1973, in the Central Division of the District of Utah he had received and concealed approximately ninety-eight 10-troy ounce silver bars and approximately thirty-nine 25-troy ounce silver bars of a value of more than $5,000 which were moving as part of, and constituted interstate commerce, knowing the same to have been stolen, in violation of 18 U.S.C. § 2315. Defendant Plum received a 10-year sentence and appeals.

The Government's proof tended to show these facts. On July 25, 1973, Constitution Mint, a retail silver company located in Provo, Utah, delivered to the Railway Express Agency (REA) office six boxes labeled "machine castings" which in fact contained forty 25-troy ounce bars and one hundred 10-troy ounce bars of silver for shipment to Bob Rice in Nyssa, Oregon. Rice had purchased the silver for $7,690. The silver reached Boise, Idaho, but there the boxes were stolen over the week-end of July 28 and 29. The empty boxes were found a few days later in a trash barrel in the Boise REA warehouse, with only one bar of silver remaining.

Rick Young plead guilty to a charge of interstate transportation of stolen silver and testified for the Government.¹  He said that he and his nephew, Steve Young, entered the Boise REA warehouse and stole the silver, that after finishing some work in a Boise theater they returned to Salt Lake City with the silver, and that they left it at Rick's parents' home.

Young testified further that he contacted Plum and met him at a park and showed him some of the silver. Young said that Plum asked him where he got the silver but he didn't tell him. He did later tell Plum that the F.B.I. was interested in the case after Plum had bought some of the silver and disposed of it through "a jeweler or something like that." (R. I, 75).

After their meeting in the park, Young and Plum went to Young's parents' house to pick up the silver. Young testified that later, accompanied by his nephew, he went to Plum's brother's apartment and transferred all but four bars of the silver to Plum. Young said one bar was left in Boise, his nephew got one bar, Young gave one bar to Mr. Brunner and gave another bar Young had kept to a Mr. Pasborg. (R. I, 102-03; R. II, 217-18). From the testimony of Rick and Steve Young and defendant this delivery of the silver to defendant was shown to have been within several days after the theft (R. I, 69-70; 82-83; 166-68, 172). Plum said he would take the silver to a couple of people to determine a price. He gave a $500 down payment and later an additional $500 to $700, based on an agreed price of around $1.00 to $1.25 per ounce (R. I, 70-71, 110-11).

The defense of Plum was that he did not know the silver was stolen when he received it and that the silver he received was not worth $5,000 or more, as the statute requires for the federal offense to be shown. On the latter point Plum's proof was to the effect that the quantity of silver was not nearly as large as the Government claimed.

Michael Boone testified for the defendant that before Rick Young contacted Plum, Young told Boone that he had sold half of the silver and still had half of it left (R. I, 148). Chester Plum, the defendant's brother, testified that he was present when Rick Young and the defendant came to his apartment, that after Young left he and the defendant counted the bars, that they found 29 "big ones" and "21, 22 or 23 small ones," but that he was not sure of the count. (R. I, 153-57).

Defendant Plum testified that Rick Young had called him and arranged a meeting at Liberty Park. Young and Plum later drove to Young's parents' home and got the silver. Young and Plum went to Plum's brother's apartment. Plum's brother and defendant both said they hoped everything was "all right" about the silver. Young said "Yes, everything is fine." (R. I, 171).

Young accepted Plum's offer of $1.25 per ounce for the silver. Plum testified he didn't learn that the silver had been stolen until after Young's arrest. Plum said that Young gave him only twenty-nine 25-ounce bars and twenty-one or twenty-two 10-ounce bars for which he paid a total of $1,200. Plum testified he sold the silver to a jeweler for $2,000.

The defense also attempted to call Donald Pasborg and advised the court he would deny that he received one single bar of silver from defendant Plum, as Young had testified, but that instead he, Pasborg, had later received more bars in a larger group. However, the court appointed counsel to advise Pasborg about the consequences of testifying and the attorney told the court that Pasborg would exercise his Fifth Amendment rights. The trial court refused to allow Pasborg to take the stand for this purpose.

Further details about the evidence will be covered in discussing the appellate contentions, to which we now turn.I

The hearsay objections

Defendant Plum claims that there was prejudicial error in the admission of Government Exhibits 2, 6 and 7. Specifically he says that the backside of Exhibit 2 and Exhibits 6 and 7 were rank hearsay and not admissible under any exception to Rule 802 of the Federal Rules of Evidence. Plum argues that since these exhibits were crucial to the Government's position that the silver Plum bought was worth more than $5,000, there was reversible error. Appellant's Opening Brief, 7.

The backside of Exhibit 2 was a form with questions directed to and answers from Rice, the purchaser of the silver. The exhibit was a claim form used for the apparent purpose of getting information about the lost shipment and included a handwritten response above the signature of Robert Rice that the value of the contents of the shipment was $7,690.

Rice did not testify. Plum argues that there was no proof that Rice's declaration on value was made at or near the time Rice obtained the information, no proof that his source of information was accurate so that he (Rice) was a "person with knowledge" within Rule 803(6), and no proof that Rice made the declaration in the regular course of a business activity conducted by him.²  Plum contends that the declarations were thus not within the exception provided by Rule 803(6), and were thus inadmissible hearsay. See Rules 801(c) and 802, Federal Rules of Evidence.

We must agree that Exhibit 2 was not within the exception provided by Rule 803(6). The main point of contention is Rice's statement on the back of the form that the value of the shipment was $7,690. There was a general statement by the REA regional claims manager that it was the ordinary course of REA's business to maintain records including Government Exhibits 1 through 6 (R. I, 7). However, Rice was not a part of REA's business organization and the statement was not shown to have been made by Rice as a part of the regular practice in his business activity. Moreover, the exhibit was not offered merely to show the fact that a claim was made but rather to establish the value of the shipment and this point was emphasized in the Government's questioning about the exhibit. (R. I, 7-8).

In these circumstances the exhibit with the statement on value was not made in the regular course of Rice's business activity. It lacked that indicia of trustworthiness and was inadmissible hearsay under Rules 801(c) and 802, being offered to prove the truth of the matter asserted. We feel the exhibit was not within the business records exception of Rule 803(6). See Notes of Advisory Committee on Proposed Rules, Federal Rules of Evidence, 28 U.S.C.A. at 587; IV Weinstein's Evidence, 803:147-49; United States v. Burruss, 418 F.2d 677, 678-79 (4th Cir.).³ 

However, the Government argues that any error in the admission of Exhibit 2 was harmless in any event. It points to the fact that Exhibits 6 and 7 contained the same information on Exhibit 2 which is mainly complained of the stated value of $7,690 as the price for the 10-ounce and 25-ounce bars shipped to Rice. The Government says that Exhibits 6 and 7 were properly admitted while defendant argues they too were inadmissible hearsay.

Exhibit 7 is our main concern. It was identified first by Mr. Chilton, an accountant at Constitution Mint. Before the company ceased operations, Mr. Chilton produced the documents at a preliminary hearing. He testified at the trial that under subpoena he had brought Exhibit 7 an orange expense ticket and the purchase order form prepared by one of the office secretaries. (R. I, 13, 20-21). He said he was custodian of these records while he worked at Constitution Mint and had maintained custody of them until trial. And he testified that the documents were maintained in the ordinary course of the business of Constitution Mint, and that it was the ordinary course of business at the company to maintain such records. (Id. at 13-14).

Exhibit 7 consisted of both an "REA Air Express" ticket on the shipment of silver to Nyssa, Oregon, to Mr. Allstead, the sales representative designated as "consignee," and the purchase order form. The order form contained statements about an order for one hundred 10-ounce bars at a price of "387" for a total amount of $3,870 and forty 25-ounce bars at a price of "382" for a total amount of $3,820. Mr. Chilton further testified that Mr. Ray Kidman's initials were on the document which carried a notation "part. ship. R. K. 7/25/73."

Mr. Kidman also testified. He said that he had been shipping manager for Constitution Mint; that he recognized the purchase order form (Exhibit 7); that he had put his initials on it; and that he personally checked the 10 and 25-ounce bars as being shipped, which he oversaw (R. I, 38-39).⁴  Mr. Kidman admitted he did not have any independent recollection of these points covered by his testimony and was relying entirely on his signature on Exhibit 7. (Id. at 40).

In addition, the sales representative who prepared the purchase order form testified. Mr. Allstead said that he recognized Exhibit 7, that he had prepared the original of which the exhibit was a copy,⁵  that Mr. Rice ordered the silver through him, and that Rice paid $7,690 for the order of silver. Allstead said that the specific order was stolen but that he delivered the silver as ordered to Rice in August, 1973.

After hearing objections out of the hearing of the jury the trial court admitted Exhibit 7. The defendant claims error, arguing that the exhibit was hearsay, that it did not come within any exception in Rule 803(6) or Rule 805, that the record shows lack of trustworthiness of Exhibit 7, and that Kidman admitted he did not personally count the silver bars.⁶ 

We see no error in the ruling. The testimony of Mr. Chilton was sufficient that the purchase order was kept in the ordinary course of business of Constitution Mint and that it was in the company's ordinary course of business to maintain such a record. The exhibit contained data furnished at or near the time by persons with knowledge, and lack of trustworthiness was not shown. And Kidman testified about making the notation on the partial shipment, which he oversaw. We are satisfied that the requirements of Rule 803(6) were met and that untrustworthiness of the exhibit was not established.

We feel that our conclusion sustaining the admission of Exhibit 7 disposes of the objections concerning Exhibits 2 and 6. We have earlier agreed with the defendant that Exhibit 2 (the loss claim form) was inadmissible. Likewise we agree that Exhibit 6 an REA copy of the purchase order of Rice to Constitution Mint did not come within the business records exception.⁷  Nevertheless, Exhibit 7 contained the essentials and showed the price for the silver and the partial shipment, the latter point being supported by Kidman's testimony. Therefore, we are convinced that the error in admission of Exhibits 2 and 6 did not influence the jury or had but very slight effect so that the verdict and judgment should stand. See Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S. Ct. 1239, 90 L. Ed. 1557.

II

The preliminary hearing transcript

Further defendant Plum argues that there was prejudicial error in evidentiary rulings and in the jury instructions relating to the use of prior statements of witnesses.

First, complaint is made that defendant's effort to attack the trustworthiness of the Government's exhibits seeking to show the bulk and value of the silver was rebuffed by an early ruling at trial that the preliminary hearing transcript containing Rick Young's testimony could only be used for impeachment. (See R. I, 17). Defendant relies on Rule 801(d) (1) (A).⁸  We see no error in the ruling at this point since the transcript dealt with the amount of silver stolen and delivered to Plum, and did not essentially challenge the exhibits dealing with the price and the amount of silver shipped. Moreover, at this stage of the trial Rick Young had not testified and there was no basis for saying that the preliminary hearing transcript was inconsistent with his testimony.

Second, Plum claims error in the way the trial court ruled that the record of the preliminary hearing could be used. The magistrate's belt containing the recording of the hearing was available. Defense counsel arranged for a transcription to be made later by a court reporter of the preliminary hearing, although no reporter took down or attended the proceeding. During Rick Young's testimony the court ruled that if counsel asked Young whether he had made a certain statement and it was denied by Young, then if counsel could locate a portion of the tape itself which proved the statement was made, the court would let the jury hear it. (R. I, 86). While use of a transcript would have been easier for counsel, we find no abuse of discretion or error in the procedure chosen by the court.

Third, defendant's main argument about the handling of the preliminary hearing transcript is that while at one point the court let the portions read to the jury in for all purposes, in the final charge to the jury the court said that prior inconsistent statements were admissible only to impeach the credibility of a witness and not to establish the truth of the statements made. (See R. II, 203; R. III, 328).

We must agree with defendant that there were inconsistencies in Young's testimony at trial and in the portion of the preliminary hearing transcript which the parties agreed to have read to the jury. And the defendant is right in saying that in these circumstances such prior inconsistent statements are now admissible under Rule 801(d) (1) (A) as substantive evidence, and not merely for purposes of impeachment. United States v. Castro-Ayon, 537 F.2d 1055, 1056-58 (9th Cir.); see Notes of Advisory Committee on Proposed Rules, Federal Rules of Evidence, 28 U.S.C.A. at 529.

We feel nevertheless that defendant has not shown grounds for reversal on this point. In the first place, it is not clear that the preliminary hearing transcript was limited to use for impeachment by the court's statements when the transcript came in and in the final charge.⁹  But in any event we are not convinced that there was any real prejudice to the defendant. The actual benefit which the defendant stood to gain from the portions of the testimony of Rick Young in the preliminary hearing transcript which were read to the jury (see R. II, 193-203), was to damage the credibility of Young, the key Government witness.¹⁰  Such impeachment was clearly allowed by the court's instructions, but apparently was not convincing to the jury.

In sum we are not persuaded that there was any reversible error in the trial court's procedure in dealing with the preliminary hearing transcript.

III

The motion for a new trial

Lastly defendant claims error in the denial of his motion for a new trial. The motion was based on allegedly newly discovered evidence as stated in affidavits of Don W. Pasborg and Shanna Larsen.

Pasborg was the witness who had earlier indicated he would assert his Fifth Amendment rights at trial and was not allowed to take the stand for this purpose. The subsequent affidavit of Pasborg sought to challenge Rick Young's testimony that he sold all but a few bars of the stolen silver to defendant. The affidavit stated that Pasborg knew Young; that Young approached him during the first week of August, 1973; that Pasborg bought 200 ounces of silver from Young in 25-ounce and 10-ounce bars; that Young did not tell him it was stolen; and that Pasborg never returned any of the silver to Young or delivered any of it to defendant Plum.

Defendant argues that since this testimony was unavailable earlier, it was not available as evidence and at the time of the motion did qualify as newly discovered evidence; that the record shows diligence by defendant who had Pasborg under subpoena at trial and made every effort to obtain his testimony; that the evidence from Pasborg was not merely impeaching but was close enough to showing that another party committed the crime (receiving stolen property) to demand a new trial; that the testimony was material on the crucial issues of the amount of silver received by defendant and also might well have affected the finding whether defendant knew the silver was stolen; and that in these circumstances, the evidence would likely produce an acquittal.

A motion for a new trial under Rule 33 on the ground of newly discovered evidence must be supported by a showing that the evidence is more than impeaching or cumulative, that it is material to the issues, and that it would probably produce an acquittal; and a new trial is not warranted by evidence which, with reasonable diligence, could have been discovered and produced at trial. United States v. Allen, 554 F.2d 398, 403 (10th Cir.), cert. pending; United States v. Leyba, 504 F.2d 441, 442-43 (10th Cir.), cert. denied, 420 U.S. 934, 95 S. Ct. 1139, 43 L. Ed. 2d 408. The motion is not regarded with favor and is granted only with great caution, being addressed to the sound discretion of the trial court. United States v. Perea, 458 F.2d 535, 536 (10th Cir.).

Here the trial court considered the affidavit and also heard the testimony of Pasborg. The court strongly indicated disbelief of Pasborg's testimony, pointing to circumstances and conduct making it incredible. As to the Larsen affidavit, the trial court pointed out that her testimony showed that she had talked to defense counsel before the trial so that her testimony could not possibly be newly discovered evidence. We cannot say there was an abuse of discretion in the denial of the motion.¹¹ 

None of the arguments we have covered demonstrates grounds for reversal and the remaining contentions call for no further discussion. Accordingly the judgment is

AFFIRMED.