United States v. Johnson

¶5PER CURIAM.

¶6Bernard William Johnson appeals his Dyer Act (18 U.S.C. § 2312) conviction upon an indictment charging him with knowingly transporting a stolen Chevrolet automobile from Prairie du Chien, Wisconsin, to Elkader, Iowa. We have considered the appeal while screening cases for assignment to the calendar under Rule 6 of the rules of this court.1 Having examined the briefs of the parties and the original district court records of this case, we deem the issues on appeal appropriate for summary disposition. See Rule 9 of the rules of this court.2 For the reasons stated below, we direct that this appeal be dismissed.

¶7*538The facts are not in dispute. Marlow H. Gisleson of Prairie du Chien, Wisconsin, testified that upon leaving a neighborhood bar on October 17, 1971, he discovered that his car, containing his personal check blanks, was missing from a nearby parking lot. Gisleson identified the defendant, Bernard William Johnson, as the stranger who had left the bar shortly before Gisleson discovered the theft of his automobile. Another witness identified appellant Johnson as the person who that day cashed a $5 check made out on one of Gisleson’s personalized blanks. Later that same day, police apprehended Johnson in Elkader, Iowa, while he was attempting to purchase gas for Gisleson’s car. Other testimony introduced by the prosecution indicated that defendant had stolen Gisleson’s automobile and thereafter had transported it in interstate commerce.

¶8On this appeal Johnson does not question the sufficiency of the evidence to establish his guilt but contends (1) that the trial court denied him a fair and impartial trial and due process of law by failing to give the jury a written copy of the oral jury instructions; and (2) that the trial court erred in instructing the jury that it might infer guilt from defendant’s possession of recently stolen property.3 Johnson argues that allowing the jury to draw such an inference invaded his Fifth Amendment protection against self-incrimination and that the giving of such an instruction violated his rights to “due process” by requiring him to assume the burden of proving himself innocent.

¶9The objection to the failure to give written instructions is utterly without merit since appellant made no request that the trial court furnish written instructions to the jury, nor did he object when the court advised the jury that it would receive oral and not written instructions. See Rule 30 Fed.R. Crim.P. The failure to give the jury a set of written instructions did not constitute plain error under Rule 52(b) Fed.R.Crim.P., since granting or denying such a request, if it had been made, lies within the discretionary powers of the trial court. United States v. Davis, 437 F.2d 928, 929 n.1 (7th Cir. 1971); United States v. Cobb, 397 F.2d 416, 419 (7th Cir.), cert. denied, 393 U.S. 924, 89 S.Ct. 255, 21 L.Ed.2d 260 (1968); Oertle v. United States, 370 F.2d 719, 729 (10th Cir. 1966), cert. denied, 387 U.S. 943, 87 S.Ct. 2075, 18 L.Ed.2d 1329 (1967); McDaniel v. United States, 343 F.2d 785, 789 (5th Cir.), cert. denied, 382 U.S. 826, 86 S.Ct. 59, 15 L.Ed.2d 71 (1965) .

¶10In regard to the challenged jury instruction, we have many times approved similar instructions permitting an inference of guilt to be drawn from a defendant’s possession of recently stolen property in Dyer Act and other prosecutions. United States v. Johnson, 442 F.2d 318, 319 (8th Cir. 1971); United States v. Verdoorn, 433 F.2d 1370 (8th Cir. 1970); United States v. Wenner, 417 F.2d 979, 983 (8th Cir. 1969), cert. denied, 396 U.S. 1047, 90 S.Ct. 700, 24 L.Ed.2d 692 (1970); Sewell v. United States, 406 F.2d 1289, 1294 (8th Cir. 1969); Teel v. United States, 407 F.2d 604, 606 (8th Cir. 1969); Aron v. United States, 382 F.2d 965, 972 (8th Cir. 1967); Lee v. United States, 363 F.2d 469, 474 (8th Cir.), cert. denied, 385 U.S. 947, 87 S.Ct. 323, 17 L.Ed.2d 227 (1966) ; Harding v. United States, 337 F.2d 254, 257 (8th Cir. 1964).

¶11We have also specifically rejected the arguments that an instruction of this type invades a defendant’s Fifth Amendment right to be free from self-incrimination, United States v. Brocato, 437 F. 2d 1157 (8th Cir.), cert. denied, 402 U.S. 1010, 91 S.Ct. 2196, 29 L.Ed.2d 433 (1971); Cloud v. United States, 361 F.*5392d 627 (8th Cir. 1966), or that such an instruction shifts the burden of proof to defendant and, thus, deprives him of his constitutional presumption of innocence. United States v. Verdoorn, supra,433 F.2d 1370, and cases cited therein.

¶12Accordingly, we dismiss the appeal.