United States v. Pointer , 74 F. App'x 409 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 5, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-50316
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE JUNIOR POINTER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-01-CR-53-1
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
George Junior Pointer appeals his jury-trial conviction for
conspiracy to commit interstate transportation of a stolen
vehicle and aiding and abetting interstate transportation of a
stolen vehicle, in violation of 18 U.S.C. §§ 2, 371, and 2312.
Pointer argues that the evidence was insufficient to sustain his
conviction; that the magistrate judge erred in denying his motion
to strike surplusage from the indictment; and that the district
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-50316
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court erred in denying his request that certain prior bad acts be
excluded from the jury charge.
Although Pointer’s ex-wife, Keitha Parrott Pointer
(“Parrott”), could not produce a certificate of title indicating
that she was the registered owner of the winch truck, the record
clearly establishes that Parrott had legal possession of the
truck when Pointer and co-defendant Buddy Hall arranged for its
removal from Parrott’s property. See United States v. Hull, 437
F.2d 1, 5 (5th Cir. 1971)(holding that “formal proof of
ownership” is not an essential element in a Dyer Act conviction).
Furthermore, viewed in the light most favorable to the
Government, the evidence was also sufficient to establish that
Pointer knew that he was stealing the truck when he had it
transported across state lines to Oklahoma. Because a reasonable
trier of fact could have found that the evidence established
guilt beyond a reasonable doubt, Pointer’s insufficiency-of-the-
evidence claim fails. See United States v. Bell, 678 F.2d 547,
549 (5th Cir. 1982) (en banc).
The magistrate judge denied Pointer’s pretrial motion to
strike surplusage from the indictment pursuant to FED. R. CRIM.
P. 7(d). Because Pointer never appealed the magistrate judge’s
order to the district court, he is essentially attempting to
appeal the order directly to this Court. As this court lacks
jurisdiction over such orders, this portion of Pointer’s appeal
No. 02-50316
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must be DISMISSED for lack of jurisdiction. See United States v.
Renfro, 620 F.2d 497, 500 (5th Cir. 1980).
Pointer’s other bad acts, which were set forth in the
indictment and included in the jury charge, assisted the
Government in establishing the knowledge element of an 18 U.S.C.
§ 2312 violation, as the evidence showed that Pointer knew he had
no lawful basis to take Potter’s property, including the truck.
Because the prior bad acts helped place the events leading to the
ultimate removal of the winch truck in context, and assisted the
Government in establishing an element of the charged crime, they
constituted intrinsic evidence, and their admission was not an
abuse of discretion. See United States v. Coleman, 78 F.3d 154,
156-57 (5th Cir. 1996).
Based on the foregoing, the district court’s judgment is
AFFIRMED, and Pointer’s appeal is DISMISSED in part.