Waterman, Moore and Hays, Circuit Judges.
This case involves an alleged conspiracy to steal automobiles in Illinois, transport them to and sell them in the State of New York.
The indictment consisted of: (a) 20 counts charging the appellant, Robert Stanley Kompinski (Kompinski), with receiving and concealing 20 specific automobiles moving in interstate commerce and known by him to be stolen, in violation of 18 U.S.C. § 2313; (b) 1 count charging appellant, George Harold Evanco (Evanco), with receiving and concealing one automobile in violation of 18 U.S.C. § 2313; (c) several substantive counts against defendants Burns, Jones, and Pelligrini; and (d) a conspiracy count alleging that all the defendants, plus co-conspirators O'Connell and Timm, conspired from July 14, 1964 to October 30, 1964, to steal autos in Illinois, and transport them in interstate commerce for receipt and disposal, in violation of 18 U.S.C. § 371.
The parties stipulated that all of the vehicles were stolen in and around Chicago, Illinois. Evidence was introduced concerning ten of the thefts. Jones, O'Connell and Timm stole the cars and identification tags from the doors of similar vehicles. Burns, who appears to have been the head of this branch of the operation at least, would provide the appropriate Indiana indicia of ownership, and the cars would be transported to the environs of Buffalo, New York.
All twenty of the cars were sold in Lackawanna, New York, near Buffalo, by Parkette Motors, a used car business operated by Kompinski. Kompinski's business records show that he received all of the cars shortly after they were stolen, often within one or two days after the theft.
The only connection suggested by the government between Burns and Kompinski was through George Evanco. He was acquainted with Burns, and had visited him in Chicago. There was evidence of frequent communication by telephone between Burns and Evanco during the period of the conspiracy. Evanco had also obtained one of the stolen cars mentioned in the indictment from Kompinski on the same day that Kompinski received it. Further, Jones, testifying for the government, claimed that he saw Evanco enter one of the stolen cars in front of Burns' office in Chicago and drive off, shortly before this car was delivered to Kompinski.
Before trial, defendant Jones pleaded guilty to two counts, and the remaining counts against him were severed. He appeared as a witness for the government. Defendant Pelligrini was acquitted, and the other defendants were convicted on the relevant counts. Since defendant Burns failed to perfect his appeal, only the causes of Kompinski and Evanco are before this court.
1. During the course of the trial, the government called as a witness, Lee Mason Eidson, the special agent who had arrested Kompinski. After Eidson had identified Kompinski as the man that he had arrested, defense counsel moved for a preliminary hearing outside the presence of the jury. The motion was granted, the jury withdrew, and Eidson resumed his testimony, recalling a conversation he had had with Kompinski at the time of the arrest.
Edison testified that Kompinski said he had gotten the cars from a man named "George" (whose physical description matched that of the defendant George Evanco). Kompinski also admitted that he knew Evanco, but denied that it was Evanco from whom he had received the cars. Since this was a post-conspiratorial statement, and hearsay, it was inadmissible against Evanco. When Evanco's counsel and the court expressed concern over the propriety of its admission even with limiting instructions, the government withdrew its offer of proof of any statements made to Eidson by Kompinski.
However, counsel for Kompinski objected to the withdrawal of the testimony on the grounds that it was not prejudicial to Evanco, that it tended to establish Kompinski's innocence, and that Kompinski should not have to call Eidson because it shifted the burden of proof to the defendant.
The short answer to this claim is that the government is under no obligation to prove a defendant's case, or to call a witness to testify simply because the testimony may be helpful to the defense. Deaver v. United States, 81 U.S.App.D.C. 148, 155 F.2d 740, 744, cert. den., 329 U.S. 766, 67 S. Ct. 121, 91 L. Ed. 659 (1946). Furthermore, Kompinski has not shown that he was prejudiced by the government's decision not to have Eidson testify. Eidson remained available as a witness. It is unlikely that Kompinski really felt the testimony would have been helpful because he made no attempt to call Eidson to testify. This did not shift the burden of proof to the defendant. The charge to the jury on burden of proof was correct and no objection thereto was taken.
2. Kompinski claims that the evidence was insufficient to support his conviction on either the substantive counts or the conspiracy count because it failed to show that he knew that the cars were stolen or that a conspiracy existed. A ...