United States of America, Plaintiff-appellee, v. Lugene Howard, Defendant-appellant, 449 F.2d 308 (5th Cir. 1971)

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US Court of Appeals for the Fifth Circuit - 449 F.2d 308 (5th Cir. 1971)

Sept. 30, 1971

John C. Blackman, Monroe, La. (Court Appointed), Hudson, Potts & Bernstein, Monroe, La., for defendant-appellant.

Donald E. Walter, U. S. Atty., R. Perry Pringle, Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.

Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.


The defendant, Lugene Howard, was found guilty of violating 18 U.S.C. § 2312 (the Dyer Act) by transporting an automobile across state lines knowing it to have been stolen.

Predictably, the crucial issue in the case was whether the defendant knew that the vehicle which he admittedly transported had been stolen. The key witness at the trial was Leroy Howard, the defendant's brother. Over objection, Leroy was allowed to testify that he had told the FBI that the defendant had told him (Leroy) that the defendant knew the vehicle in question to have been stolen.1  This testimonial evidence was apparently offered to prove the defendant's guilt, not to impeach Leroy for any in-court modification of his statement to the FBI. As such, the evidence was hearsay, pure and simple, the value of which "rests on the credit of the declarant, who was not under oath nor subject to cross-examination when the statement was made". McCormick, Evidence Sec. 39. Admission of this testimony was clear error, and leaves us no choice but to overturn Lugene Howard's conviction. United States v. Johnson, 5 Cir. 1970, 427 F.2d 957; United States v. Hicks, 5 Cir. 1970, 420 F.2d 814.


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The critical exchange was as follows:


What did you tell Special (Agent) Prokop about what your brother told you?

A. He knowed the car was stolen.

Q. You told Special Agent Prokop your brother, Lugene Howard, told you he knew the car was stolen?

A. Yes." (TR. 132)

"Q. What did you tell Special Agent Prokof (sic) your brother had told you concerning his reason for taking the car to Louisiana?

A. To get a title and registration." (Tr. 133)