This incident in the hall took place after Burns had given his testimony in the suppression hearing.
The incident did not appear to have any impact on Burns with respect to his ability to identify Kulp and we do not feel that the incident was unduly suggestive to Burns or prejudiced his in-court identification. Having seen and heard Burns, we feel that the incident did not draw his attention to Kulp as the suspect or as the one who was present at REA. Nor did he appear to comprehend the purpose of the United States Attorney's question in the hallway. Our conclusion that the accidental counselless confrontation did not give rise to a substantial likelihood of misidentification is reinforced by the recent case of United States v. Furtney, 351 F. Supp. 671 (W.D.Pa.1972), remanded on other grounds, 454 F.2d 1 (3d Cir. 1972). In that case, the court held that where (1) the prosecutors did not intentionally arrange a pre-trial confrontation between the witness and defendant in the corridor, (2) the prosecutors did nothing to focus the attention of the witness on the defendant, and (3) the witness's identification of the defendant in the corridor was spontaneous, then neither the defendant's Sixth Amendment rights nor his rights to due process were violated.
In light of these findings in relation to all of the Higgins criteria, we again find that there was a sufficient independent basis for Burns's in-court identification of Kulp.
IV. Refusal to Permit Defendants to Withdraw From the Stipulation
As we have noted, before the trial defendants Powell, Kulp and Dougherty entered into two stipulations with the government regarding counts IV and V of the indictment.
The first stipulation provided that the goods found in the car driven by Dougherty and in which Powell was riding when stopped by the F.B.I. agents were the same goods that had been stolen a few days earlier from the three identified Texas homes. The second stipulation recited that the stolen goods noted in the first stipulation had a value of $5,000 or more. There is, of course, nothing remarkable about these stipulations; indeed, based upon long experience, it is our observation that more often than not the defense will not put the government to the generally needless expense of bringing in witnesses to prove ownership. The defense generally (and properly) feels that it does its case no good for the jury to see the innocent and injured property owners lament the theft of their valuable belongings, particularly if they come 2000 miles to do so. And it can hurt the defendant's position with the prosecutor in terms of sentencing recommendations if he puts the government to unnecessary expense.
In this particular case, the government had an additional reason to call one of the individuals whose property was stolen. Since some of Mrs. Fennekohl's silverware was found in Kulp's trash pile, the government wanted Mrs. Fennekohl to connect it to the case (even though it was not listed in the appendix to the indictment as stolen goods).
What "upset the apple cart" was that it appeared in the midst of the trial that Mrs. Fennekohl had developed a slipped disc problem that prevented her from coming to Philadelphia. At that point, counsel for Kulp and Powell both moved for a mistrial. Counsel for Kulp also moved to strike count IV or to withdraw the stipulation dealing with goods stolen from Mrs. Fennekohl's residence. We denied these motions.
The moving defendants now contend that it was error not to allow the withdrawal of the stipulation regarding counts IV and V. They argue that they entered into the stipulation on the government's implied representation that all witnesses were ready and available to testify, and that since that implied representation was not in fact true, the entire stipulation is tainted by fraud, accident or mistake and therefore, should not bind them. Kulp makes the additional claim that the facts stipulated could not be established by evidence independent of the stipulation. In rejecting defendants' motions on this issue, we address all of these arguments.
A court may allow a party to withdraw from a stipulation if the moving party can prove that he relied to his detriment on representations that were untrue, or that the stipulation stemmed from fraud, accident, mistake, inadvertence, surprise, or excusable neglect, or that some other reason justifies relief. See Norwich Pharmacal Co. v. Rakway, Inc., 189 F. Supp. 348 (E.D.Pa.1960); Rarick v. United Steelworkers of America, 202 F. Supp. 902 (W.D.Pa.1962). Norwich notes that mere inadvertence or inattention of counsel is not enough to avoid a stipulation in the absence of fraud, accident or mistake. Rarick holds that no relief from a stipulation will lie where it was based on the conscientious and informed estimate by counsel of the party's legal chances and where no showing is made that the stipulation was procured by coercion, fraud, or under exceptional or compelling circumstances. Cf. United States v. Vasquez-Velasco, 471 F.2d 294 (9th Cir.), cert. denied, 411 U.S. 970, 93 S. Ct. 2163, 36 L. Ed. 2d 692 (1973) (the court refused to allow a defendant to withdraw a guilty plea when the defendant discovered the chief government witness had died after the plea was entered). Where a court has felt it necessary to prevent an injustice, particularly where facts contrary to the stipulation are established by evidence, then the court may relieve a party from a stipulation. Albee Homes, Inc. v. Lutman, 274 F. Supp. 875 (E.D.Pa.1967), aff'd in part and dismissed in part 406 F.2d 11 (3d Cir. 1969).
In the present case, the defendants were not deceived and did not rely as such on any misrepresentations in agreeing to the stipulation. They presented no evidence to show that they entered into these stipulations for any reason other than as a tactical decision to avoid having such testimony presented to the jury directly. Nor do they allege that Mrs. Fennekohl's inability to appear is an indication of bad faith by the prosecution. In fact, they concede that the Assistant United States Attorney has been the model of an honest prosecutor.
Moreover, even if defendants proved that they had relied on the prosecution's representations, they have not even contended, much less proved, that the facts in the stipulation are untrue. In particular, there is no indication that Mrs. Fennekohl would not have identified the silverware in question if called to do so. The fact that she injured her back just before trial and was therefore unable to appear does not negate the substance of the stipulation. The defendants failed to prove that the stipulation was inaccurate in substance or that the government acted in bad faith to deceive defendants into entering into the stipulation. Indeed, the fact is that it is they who seek to take unfair tactical advantage because of Mrs. Fennekohl's unfortunate illness. We hold, therefore, that both the government and all the defendants and their counsel are bound by the stipulation, and that it was not error to refuse to permit them to avoid it.
V. The Refusal to Grant a Mistrial With Respect to the Burnt Silverware
After the night of the surveillance and seizure of the suitcases from Dougherty's car, the F.B.I. procured a search warrant for Kulp's house. In the course of executing it they found in a trash dump about 200 yards behind the house some silverware which was charred, apparently from an aborted burning in the trash pile. Kulp filed a motion to suppress the evidence on the grounds that the search warrant was limited to Kulp's house. We ruled that the trash dump was not outside the scope of the warrant and that in any event the silverware had been abandoned. Although the silverware was not mentioned in the indictment, hence was not a part of the stipulation referred to in the preceding section of this opinion, the government apparently had learned that it belonged to Mrs. Fennekohl and included it in its plans for trial of the case.
To that end, it placed the charred silverware in a pile of exhibits (consisting mainly of the suitcases) in front of the jury box, and the prosecutor referred to it in his opening statement, indicating to the jury that Mrs. Fennekohl would come to identify it. When it was learned that Mrs. Fennekohl was incapacitated, the defendants moved for a mistrial.
At that juncture, we held an extended hearing in chambers. (See N.T. 463-70 and 476-99.) We then granted defendants' motion to strike the charred silverware from the record and issued a strong cautionary charge to the jury. We reminded the jury that opening statements are NOT evidence and instructed them to disregard totally and completely the evidence pertaining to the burnt or charred silverware. We stated that such evidence had no bearing on this case and was not to be considered in any respect in the jury's deliberations. Further, at the request of defense counsel, we supplemented our cautionary instruction by stating that: (1) if the jury should consider such evidence they would violate their oath (N.T. 502-505, 522-23); and (2) in reiteration, the arguments of counsel are NOT evidence. (N.T. 628.) Cf. Gladden v. Frazier, 388 F.2d 777 (9th Cir. 1968), aff'd sub nom. Frazier v. Cupp. 394 U.S. 731, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969).
All three defendants now make post-trial motions for arrest of judgment and/or a new trial and/or an acquittal on the grounds that the prosecution's use of this silverware prejudiced the jury. However, no such prejudice has been demonstrated by the defendants. In light of the strong cautionary charge and our belief that the jury was attentive, intelligent and committed to its oath, we find that jury was not prejudiced by the government's use of the silverware.
VI. Powell's Motion for Severance
Rule 14 of the Federal Rules of Criminal Procedure provides:
Relief From Prejudicial Joinder. If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.
This rule preserves the long-standing tradition that the trial judge has broad discretion in deciding when severance of defendants is necessary, subject to review only for clear abuse. United States v. Rickey, 457 F.2d 1027 (3d Cir. 1972). As a general rule, defendants charged with jointly committing a crime are to be jointly tried. United States v. Gambrill, 146 U.S.App.D.C. 72, 449 F.2d 1148 (1971). Interests of convenience, economy and efficient administration of justice dictate that persons joined in the same indictment or crime should be tried together, particularly where proof will be extensive and numerous witnesses must be summoned. See United States v. De Larosa, 450 F.2d 1057 (3d Cir. 1971), cert. denied, 405 U.S. 927, 957, 92 S. Ct. 978, 30 L. Ed. 2d 800 (1972). United States v. King, 49 F.R.D. 51 (S.D.N.Y.1970). Only if prejudice clearly results from trying defendants together might a trial court abuse its discretion for failing to sever. United States v. Rickey, supra, 457 F.2d at 1030. And the defendant asking for severance has the burden of proving such prejudice. United States v. Taylor, 334 F. Supp. 1050 (E.D.Pa.1971), aff'd, 469 F.2d 284 (3d Cir. 1972); United States v. Lawson, 334 F. Supp. 612 (E.D.Pa.1971).
Powell contends that the Court erred in not granting his motion for severance, since there was no conspiracy charge and since some of the evidence introduced against the other defendants would not have been admissible against Powell if he had been tried separately. However, Powell's contentions misconstrue the principles of law emanating from Rule 14. Defendants need not be charged with conspiracy in order to be tried together. Powell cites no case to support his assertion to the contrary. Similarly, it is immaterial that testimony and evidence introduced against one co-defendant would technically be inadmissible at a separate trial of another defendant. United States v. Kenny, 462 F.2d 1205 (3d Cir.), cert. denied, 409 U.S. 914, 93 S. Ct. 234, 34 L. Ed. 2d 176 (1972).
The principal consideration in ruling on the severance motion was whether a consolidated trial would be so prejudicial to a defendant that it outweighed the convenience, economy, and efficient administration of justice which the government and all the defendants deserve.
We find no such prejudice from our denial of severance. The fact that several witnesses identified Gene Kulp did not prejudice Robert Powell, who was identified and connected with the crime by other witnesses. No inflammatory evidence was presented against Powell's co-defendants. Furthermore, we explicitly instructed the jury that they must consider the evidence against each defendant independently and that they must make an independent evaluation of the evidence with respect to each defendant and an independent evaluation of the guilt or innocence of each defendant. N.T. 647-48 and 659. There was ample independent evidence against Robert Powell, including the identification by Ollie Johnson in Dallas, his presence in the automobile in which the stolen property was contained, and his fingerprints on some of the contraband.
VII. The Missing Witness Charge
Powell contends that the Court erred in not charging the jury with a "missing witness" charge as requested in defendant's point for charge No. 14. Specifically, Powell's proposed charge read:
If a witness is available to the Government, and the witness has knowledge of facts germane to the facts of the case and that witness was not called or produced by the Government, and the Government fails to give any reasonable explanation for their failure to call that witness, then you may infer that his or her testimony would have been favorable to the defendant, if the witness had been called by the Government.
However, we find that neither the law nor the facts would have justified granting Powell's request for this "missing witness" charge.
The long-standing rule is that: "if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates a presumption that the testimony, if produced, would be unfavorable." Graves v. United States, 150 U.S. 118, 121, 14 S. Ct. 40, 41, 37 L. Ed. 1021 (1893). See also 2 Wigmore Ev. § 286-88 (3d ed.). No inference is allowable where the person in question is equally available to both parties. Wigmore, supra at § 288. For obvious reasons of practicality, failure to call a witness who would provide merely cumulative evidence need not raise an adverse presumption. United States v. Hines, 470 F.2d 225, 230 (3d Cir. 1972), cert. denied, 410 U.S. 968, 93 S. Ct. 1452, 35 L. Ed. 2d 703 (1973); United States v. Restaino, 369 F.2d 544, 547 (3d Cir. 1966). Again, defendant Powell misconceives the rule in arguing that the government must produce every witness with any germane knowledge of the facts or else give a reasonable explanation for why it fails to call such a witness.
In particular, Powell complains that Mrs. J. Smithson, an employee of REA in Dallas, Texas, was not called. However, the government had already called her co-worker, Ollie Johnson, to testify as to Powell's identity. Mrs. Smithson was not peculiarly within the power of the government; she was not a government employee or agent. Furthermore, she was as readily available to Powell as to the prosecution, since she was sitting in the United States Attorney's reception room only 20 feet away from the courtroom in which the trial was being held. Had Powell really wanted her to testify, he could have subpoenaed her.
VIII. Sufficiency of the Evidence as to Dougherty
Defendant Dougherty has questioned the sufficiency of the evidence to sustain a conviction.
When we instructed the jury, we recited each of the elements of the crime, 18 U.S.C. § 2315, which they had to find beyond a reasonable doubt in order to convict Dougherty. These bear repetition here. First, the government had to prove that goods, wares, merchandise, securities, or money were stolen. Next they had to establish that the stolen goods had a value of $5,000 or more. Third, they had to demonstrate that the stolen property moved in interstate commerce. Fourth, the government was required to convince the jury that the defendant received, concealed, stored, bartered, sold, or disposed of these stolen items. Finally, the prosecution had to prove that the defendant knew that the goods at issue were stolen.
The first three of these elements are supported by the evidence in the stipulations. The fourth criterion of "receiving or concealing" relates to the question of whether Dougherty had possession, dominion, or control over the stolen goods. Two F.B.I. special agents testified that they stopped a car driven by Dougherty and containing the stolen goods. The stipulations also confirmed these facts, which were uncontested by the defense. When one drives an auto laden with contraband, there is a substantial basis from which the trier of fact may infer that the driver had knowing possession of the contraband. United States v. Zamora-Corona, 465 F.2d 427 (9th Cir. 1972). In the present case, Dougherty had gone out of his way to a remote rural area to have several large, heavy, and distinctive-looking suitcases and a footlocker loaded into the car he proceeded to drive. In light of such facts, it was not unreasonable for the jury to have concluded that Dougherty, as the driver of a car with stolen goods, had sufficient possession, dominion, or control to constitute having received the goods.
The final question in this area is whether there was sufficient evidence for the jury to find that Dougherty knew the goods he had received were stolen. We instructed the jury that "possession of property recently stolen, if not satisfactorily explained, is ordinarily a circumstance from which the jury may reasonably draw the inference and find in light of the surrounding circumstances shown by the evidence in the case that the person in possession knew the property had been stolen." (N.T. 642.) This identical instruction was upheld recently by the Supreme Court as comporting with due process. Barnes v. United States, 412 U.S. 837, 93 S. Ct. 2357, 37 L. Ed. 2d 380 (1973). See also United States v. Rispo, 470 F.2d 1099 (3d Cir. 1973) (citing United States v. Bamberger, 456 F.2d 1119 (3d Cir.), cert. denied, 413 U.S. 969, 93 S. Ct. 3067, 37 L. Ed. 2d 1040 (1972)); United States v. Hamilton, 457 F.2d 95 (3d Cir. 1972).
In the present case, the stipulation establishes that the goods were stolen on or about March 12th, March 16th, and March 18, 1972, and were discovered in the car driven by Dougherty on or about March 20, 1972. This time span is short enough for the jury to have drawn a reasonable inference that Dougherty knew the property was stolen. See United States v. Hamilton, 457 F.2d 95, at 99 (3d Cir. 1972); United States v. Riso, 405 F.2d 134 (7th Cir. 1968). Such an inference is also supported by other facts and circumstances revealed by the record. Special Agent Aardweg testified that he knew Dougherty was a jeweler, since Aardweg had bought his watch from Dougherty and used him as his personal jeweler. The F.B.I. agents also testified to the fact that in the late evening of March 20, 1972, they staked out a surveillance of Kulp's residence in a rather isolated rural area and observed several men loading the car that they eventually stopped and discovered was driven by Dougherty and contained the stolen goods. None of the defendants, including Dougherty, gave any explanation that would lead the jury to believe that Dougherty's involvement was the result of an accident, mistake, or innocent reason.
Since the jury returned a guilty verdict, the government is entitled to have us view the evidence in the light most favorable to it. United States v. Hamilton, 457 F.2d 95, 99 (3d Cir. 1972). In light of all legitimate inferences which might reasonably be drawn from the proven facts noted above, we hold that there was sufficient evidence for the jury to find Dougherty guilty of the crime charged.
IX. Donna Kay's Reference to " Pictures "
The final assignment of error is Kulp's claim that we should have granted a mistrial when Miss Kay mentioned the fact that she had seen "pictures."
The reference arose as the result of a question to Miss Kay "whether there were any people on that flight that you can recall or what you recall about them and what you recall about the event and what makes you recall them if anything." (N.T. 442.) In response she said: "There were two people that were sitting in first class. They were sitting on the right side of the plane towards the back. I remembered them because I was asked to identify pictures which brought back to my memory --" (N.T. 442.). Defense counsel interrupted with an objection. Miss Kay made no further reference to "pictures," so the jury heard only her one spontaneous and isolated mention of it. Furthermore, we gave a cautionary instruction to the jury as follows:
Members of the jury, there has been some mention of photographs. As of this point you don't know anything about these photographs as to what, if anything, was done with respect to the photographs. Indeed, what, if anything, this witness did with respect to the photographs. We instruct you to consider this witness's testimony as you heard it and as it will evolve, but to disregard any reference whatever to photographs unless that matter is otherwise brought back in. I don't know whether it will be or it won't be. It has no bearing. It has no relevance. It has no significance in this case. And you are not to consider this witness's testimony with reference to any reference that we just made about photographs, but only on the basis of what she otherwise has and presumably will testify to. (N.T. 444).