* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-20899

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

HOYT SHAW,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-98-CR-123-1

--------------------

September 16, 1999

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges:

PER CURIAM:*

Hoyt Shaw appeals his conviction and sentence for conspiracy

to reset or alter motor vehicle odometers and to transport in

interstate commerce falsely made, forged, altered or counterfeited

securities; resetting or altering motor vehicle odometers;

transporting falsely made, forged, altered or counterfeited

securities in interstate commerce; and aiding and abetting. 

Shaw argues that the district court improperly withdrew from

the jury its function of finding beyond a reasonable doubt an 
No. 98-20899

-2-

essential element of the crime with which he was charged by

instructing the jury that a motor vehicle title, as used in 18

U.S.C. § 2314, is a security as a matter of law. As the statutory

definition of a security expressly includes a motor vehicle title,

the court did not err by so instructing the jury. See 18 U.S.C. §

2311; United States v. Johnson, 718 F.2d 1317, 1323-25 & n.13 (5th

Cir. 1983)(en banc). Any error by the trial court in failing to

submit to the jury the issue of whether the documents were in fact

motor vehicle titles was harmless because nothing in the record

indicates that the jury would have been able to conclude that the

documents were not motor vehicle titles. Neder v. United States,

119 S. Ct. 1827, 1839 (1999).

Shaw argues that the evidence is insufficient to support a

finding that he transported falsely made, forged, altered or

counterfeit securities in interstate commerce because the motor

vehicle titles were altered after they were brought across the

Texas state line. Shaw’s argument is without merit. A reasonable

jury could have found that the movement of the certificates of

title in Texas was a "continuation of the movement that began out

of state." See McElroy v. United States, 455 U.S. 642, 653-54

(1982). 

Shaw argues that the trial court erred by allowing the

Government to cross examine him regarding his knowledge of his

coconspirator Joyce Polasek’s reputation for altering titles. He

contends that the Government elicited his testimony in an attempt

to prove his guilt by association. The trial court did not err in

admitting Shaw’s testimony, which was relevant and was 
No. 98-20899

-3-

not unduly prejudicial. See United States v. Polasek, 162 F.3d

878, 883 (5th Cir. 1998).

Shaw argues that the trial court erred by enhancing his base

offense level two levels pursuant to § 3B1.1(c) because he acted as

a supervisor of criminal activity by recruiting Johnson to roll

back odometers and by instructing Johnson how far the odometers

should be rolled back. Shaw has not shown error. See United

States v. Whitlow, 979 F.2d 1008, 1011 (5th Cir. 1992)(upholding an

enhancement pursuant to § 3B1.1 because the defendant directed the

activities of odometer “spinners”); United States v. Giraldo, 111

F.3d 21, 24-25 (5th Cir.)(upholding an enhancement pursuant to

§ 3B1.1 based on the defendant’s recruitment of accomplices), cert.

denied, 118 S. Ct. 322 (1997). 

Shaw argues that the trial court erred by allowing the

Government to present the testimony of his coconspirators which was

obtained in exchange for promises of leniency, in violation of 18

U.S.C. § 201(c)(2). Shaw’s argument is foreclosed by this court’s

decision in United States v. Haese, 162 F.3d 359, 366-68 (5th Cir.

1998), cert denied, 119 S. Ct. 1795 (1999). 

AFFIRMED.