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Zacarias v. United States

October 6, 2005

BENJAMIN ZACARIAS, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia (F-892-03) (Hon. Frederick H. Weisberg, Trial Judge).

The opinion of the court was delivered by: Terry, Associate Judge

Argued April 21, 2005

Before TERRY, WAGNER,*fn1 and GLICKMAN, Associate Judges.

Appellant Benjamin Zacarias and his co-defendant, William Delgado, were convicted of receiving stolen property ("RSP") and unauthorized use of a vehicle ("UUV").*fn2 Zacarias contends on appeal that the trial court erred by allowing the indictment against him to be constructively amended, and by permitting the government to rely on hearsay testimony to establish ownership of the vehicle. We affirm.

I.

In the early morning hours of February 10, 2003, Officer Jeffrey Newbold saw appellant driving a black four-door Honda, bearing Massachusetts license plates, at a "very high rate of speed" along Riggs Road, Northeast. Seated in the passenger seat was another man, later identified as William Delgado. Officer Newbold and his partner, Officer Abdul Harim, pulled appellant over and asked him for his driver's license, registration, and proof of insurance.

After identifying himself as "John Bolson," appellant told the officers that he had forgotten his driver's license and that the car belonged to a friend. As appellant searched the glove compartment for the registration, Officer Harim noticed that the car's ignition had been "totally ripped out." The officers promptly arrested appellant and Mr. Delgado. A fingerprint check later established that appellant's true name was Benjamin Zacarias.

The car, registered to Robert Lanning of Massachusetts, was in the possession of his daughter, Rebecca Lanning, who lived in the District of Columbia.*fn3 On the morning of February 10, after receiving a call from the police, Ms. Lanning checked outside her apartment in Northwest Washington, where she had parked the night before, and discovered that the car was missing. She so advised the police. Ms. Lanning had given neither appellant nor Mr. Delgado permission to take the car.

Appellant testified that he did not steal the car or know that it had been stolen. He said that on the evening of February 9, his friend José Luis Muñoz Otero drove him to a party in Langley Park, Maryland, which Mr. Delgado also attended.

At the party appellant was talking with another friend, Iris Vasquez, until an acquaintance known as "Poncho" interrupted them. When appellant asked for a ride, Poncho agreed to lend appellant his car. Later, Poncho started the engine, but appellant said he was standing too far from the car to notice how he did it. Appellant testified that "nothing was broken" inside the car, but he acknowledged that it was dark, and he noticed only that a black scarf was covering the car's ignition.*fn4

Three defense witnesses corroborated portions of appellant's testimony. Mr. Muñoz testified that he picked up appellant and drove him to Langley Park on February 9. Ms. Vasquez recalled attending a party in February where she talked with appellant off and on throughout the night. Mr. Delgado testified that at the party appellant told him that a friend had lent him the car. Mr. Delgado did not notice anything amiss with the ignition, but he too saw the black scarf covering the steering column. He also confirmed appellant's account of the juvenile passenger.

II.

Both of appellant's arguments on appeal relate to the ownership of the stolen car. He contends that the government constructively amended the indictment, which named Rebecca Lanning as the car's owner, when it proved at trial that Robert Lanning was the actual owner. Appellant also argues that the government ...


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