Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1990)

MEMORANDUM^** 

William Gohn appeals his conviction for interstate transportation of a stolen motor vehicle in violation of 18 U.S.C. § 2312 (1988). We affirm in part and reverse and remand in part.

PROCEEDINGS IN TRIAL COURT

Gohn pleaded not guilty and was tried before a jury. The government presented evidence that showed the stolen vehicle, a 1978 Mercedes Benz 450 SLC, was sold to the DiFoggio Plumbing Co. on February 6, 1986, by Loeber Motors located on 3045 West 87th Street, Evergreen Park, Illinois. Mike DiFoggio, the plumbing contractor who owned the purchasing plumbing company, testified that in the middle of June, 1986, he loaned the car to a friend for safekeeping while he was out of town. Within a short time the vehicle was reported by the friend to the police as having been stolen. At that time the wrong "hard copy identification card" was in possession of the friend which DiFoggio testified had been given to him by error by DiFoggio's son. During this period DiFoggio owned several Mercedes. In due course, this confusion was clarified to the satisfaction of the Illinois police and DiFoggio received a settlement from his insurance carrier.

On October 15, 1986, Gohn was questioned by F.B.I. agents after waiving his Miranda rights. Gohn told the F.B.I. there was a stolen car ring operating out of Chicago, Illinois which drove stolen cars to Las Vegas, Nevada, and that an Anthony Pallagi delivered such cars. Gohn said that Pallagi had brought the stolen car to his Las Vegas home in June, 1986. According to Gohn, the car was sold to an individual named Tonopolis, then returned and resold to Gohn; Gohn commented to a federal agent that the "paperwork" for the Mercedes was "not very good."

Gohn again spoke to the federal agents on October 17, 1986, after waiving his Miranda rights once more. He stated that the Mercedes' New Jersey title was "Mickey Mouse." In October, 1986, federal and state agents went to Gohn's residence and obtained the Vehicle Identification Number (VIN) of the Mercedes parked in Gohn's driveway by looking through the car window. The car had the same VIN as the car purchased by DiFoggio from Loeber Motors, and also closely resembled it. In early November, 1986, agents searched and inventoried a cabover truck which Gohn had identified as his. Certain documents were obtained, one of which was a blank New Jersey motor vehicle certificate of title.

On December 22, 1986, Gohn applied to register in Texas a vehicle having the same VIN as that in his driveway in October. He gave his address as a post office box in Forth Worth, Texas. The application indicated that the car's previous owner resided in New Jersey. Gohn presented a New Jersey title with his Texas application which showed a transfer of title to Gohn on December 20, 1986. In due course, the Texas DMV was notified by the Texas Department of Public Safety that the Mercedes had been stolen and that it had been recovered. The processing of Gohn's application ceased immediately.

Meanwhile Gohn, apparently aware that Texas authorities knew the Mercedes had been stolen, appeared at the office of an officer of the Texas Department of Public Safety on March 18, 1987 with the Mercedes. He waived his Miranda rights and, after the officer determined that the car had been stolen, told the officer that he obtained the car from a female truck driver named Carmen Kanz and that he could not get in touch with her. The officer took the car from him and gave him a receipt. Thereafter the car was released to the insurance company, the true owner.

In July, 1987, handwriting exemplars were taken from Gohn which tended to show that it was his signature on the application for registration in Texas.

The jury returned a verdict of guilty after being properly charged by the court. Gohn was sentenced to four years to run concurrently with another sentence of four years for an offense not involved in this appeal. In addition, a mandatory penalty assessment of $50 was imposed.

Gohn appeals only on the ground that admission of the blank New Jersey certificate of title was in error. We sua sponte set aside the mandatory penalty assessment.

THE BLANK NEW JERSEY FORM

Gohn argues that the admission of the blank New Jersey form was error because it was more prejudicial than probative. Fed.R.Evid. Sec. 403. An element of the offense on which Gohn was found guilty was that he intended to deprive the owner of the vehicle of ownership either permanently or temporarily. See United States v. Albuquerque, 538 F.2d 277 (9th Cir. 1976). Another is that Gohn knew the vehicle was stolen. The blank form is probative as to each element. The district court has broad discretion in determining the relevancy of evidence and balancing this against its prejudicial characteristics. All relevant evidence is prejudicial to some degree, but it is only evidence in which prejudice outweighs weak relevance that is proscribed. Only then is it clear that prejudice, not relevance, was the driving force behind its introduction.

There is no doubt that the district court sensitively exercised its discretion in permitting the introduction of the blank New Jersey title. It refused to admit two other documents, weakly relevant but with a stronger prejudicial effect. There was no error. We also hold that to the extent that the blank form could be said to violate Fed.R.Evid. Sec. 404, its admissibility is assured by the force of Sec. 404(b).

MANDATORY PENALTY ASSESSMENT

The mandatory penalty assessment must be set aside on the ground set forth in United States v. Munoz-Flores, 863 F.2d 654 (9th Cir. 1988), cert. granted, 57 U.S.L.W. 2381; but see United States v. Griffin, 884 F.2d 655 (2d Cir. 1989), petition for cert. filed, Sept. 2, 1989; United States v. Simpson, 885 F.2d 36 (3d Cir. 1989), petition for cert. filed, Oct. 2, 1989; United States v. Herrada, 887 F.2d 524 (5th Cir. 1989), petition for cert. filed, Dec. 15, 1989; United States v. Newman, 889 F.2d 88 (6th Cir. 1989), petition for cert. filed, Jan. 8, 1990. It violates the Constitution's origination clause. U.S. Const. art. I, Sec. 7. We therefore must reverse the special assessment but stay the remand to the district court pending the disposition by the Supreme Court of United States v. Munoz-Flores, supra.

AFFIRMED IN PART; REVERSED IN PART.