United States v. McGann, 27042.

• Decision Date: 17 November 1970
• Docket Number: No. 27042.,27042.
• Citation: 431 F.2d 1104
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George McGANN and Harold Mote Pruitt, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

431 F.2d 1104 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. George McGANN and Harold Mote Pruitt, Defendants-Appellants.

No. 27042.

United States Court of Appeals, Fifth Circuit.

August 24, 1970.

Rehearing Denied October 1, 1970.

Rehearing Denied and Rehearing Denied October 22, 1970.

Order November 17, 1970.

J. B. Champion, Ardmore, Okl. Emmett Colvin, Jr., Frank Wright, Charles W. Tessmer, Dallas, Tex., for defendants-appellants.

Eldon B. Mahon, U. S. Atty., Andrew Barr, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.

Before WISDOM, GOLDBERG and INGRAHAM, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied October 22, 1970.

INGRAHAM, Circuit Judge:

Appellants, George McGann and Harold Mote Pruitt, were indicted with six other men for offenses growing out of the theft, storage and sale of approximately 126 television sets which constituted an interstate shipment of goods. McGann and Pruitt were convicted of conspiracy to steal, store, sell, and distribute merchandise stolen from interstate commerce in violation of 18 U.S.C. § 371 (Count I) and for the possession of such merchandise in violation of 18 U.S.C. § 659 (Count V).¹ Appellants received identical terms of five (5) years imprisonment on each of Counts I and V, the sentences to run consecutively.

At the trial the government's evidence consisted mainly of the testimony of five co-defendants who participated in the theft. The evidence revealed that on or about January 4, 1968, defendants Peel and Fletcher, utilizing a rented truck, removed a trailer containing the Magnavox televisions from a Dallas trucking company storage lot. Pursuant to an agreement originating in December, 1967, the merchandise was taken to defendant Harrington's farm at Plano, Texas. Scribner and Hallman, two of the co-conspirators, then sold between 25 and 30 of the sets to appellant McGann. Pruitt, acting under an assumed name, rented a U-Haul truck and a warehouse and helped McGann remove a number of the sets to the warehouse for hiding. In urging reversal of their convictions appellants assign seven points of error.

I.

Appellant McGann's main contention is that there was insufficient evidence to establish his connection with the overall plan to steal the merchandise and thus it was prejudicial error to submit the conspiracy offense to the jury. His connection with the conspiracy was established by the testimony of co-defendant Hallman, who stated that he phoned McGann prior to the theft and asked him if he wanted to buy some television sets. McGann agreed to purchase the sets. Hallman testified that he did not inform McGann at that time of the source of the goods. After the theft, appellant McGann met with Hallman and other co-conspirators, went to the farm at Plano, and loaded two truckloads of the sets for transfer to the warehouse in Dallas for further sale. McGann's statements to the others at the farm indicated that at this point, which was after the theft, he had knowledge of the stolen character of the goods.

The elements of a conspiracy are twofold: an agreement between two or more persons to combine efforts for an illegal purpose and an overt act in furtherance of said conspiracy. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940); Castro v. United States, 296 F.2d 540 (5th Cir. 1961). If a person later joins an already formed conspiracy knowing of the unlawful purpose, he may be held responsible for the acts done in furtherance of the conspiracy, both prior and subsequent to his joinder. Nelson v. United States, 415 F.2d 483, 486 (5th Cir. 1969); Lile v. United States, 264 F.2d 278, 279 (9th Cir. 1958).

In the instant case, if McGann merely agreed to buy stolen television sets, but was unaware of the plans to steal them, then he lacked the requisite knowledge of the scheme to be a conspirator. Henderson v. United States, 237 F.2d 169, 171 (5th Cir. 1956); United States v. Falcone, supra, 311 U.S. at 210, 61 S.Ct. 204. However, if he agreed originally to sell the stolen sets as his part of the scheme, then he was properly charged and convicted of the conspiracy to steal, store, sell and distribute the sets, although he actually only stored and sold the sets.

It is a well established rule that in considering the record on appeal in a criminal case from a jury verdict of guilty, the appellate court must sustain the verdict if there is substantial evidence, taking the view most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). In circumstantial evidence cases, the "test to be applied on motion for judgment of acquittal and on review of denial of such motion is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis, but that of guilt, but rather whether the jury might reasonably so conclude." Harper v. United States, 405 F.2d 185 (5th Cir. 1969). See United States v. Garza, 426 F.2d 949 (5th Cir. 1970).

In the case at bar, the government has clearly established with substantial evidence that a conspiracy existed. The direct evidence linking appellants to the development of and participation in the conspiracy is slight. Recent opinions of this court, however, have held that where the existence of a conspiracy is shown, as here, only slight additional evidence is required to connect a particular defendant with it. Lopez v. United States, 414 F.2d 909, 911 (5th Cir. 1969); Bradford v. United States, 413 F.2d 467, 469 (5th Cir. 1969); Cave v. United States, 390 F.2d 58, 69 (8th Cir. 1968); Poliafico v. United States, 237 F.2d 97, 104 (6th Cir. 1956), cert. denied, 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed.2d 597 (1957).

Much of the conspiratorial evidence implicating appellants is circumstantial. However, if it is believed by the jury, it is sufficient to link appellants to the conspiracy. Lopez v. United States, supra; Bradford v. United States, supra. See Cohen v. United States, 363 F.2d 321 (5th Cir. 1966), cert. denied, 385 U.S. 957, 87 S.Ct. 395, 17 L.Ed.2d 303 (1966). In Lopez, a co-defendant testified of a meeting with the appellant at a favorite rendezvous place of the conspirators. The appellant Lopez agreed to make arrangements to haul the stolen goods on the week ends. This was the only evidence in the trial against him, but on appeal the conviction was affirmed. In Nelson v. United States, 415 F.2d 483 (5th Cir. 1969), appellant Nelson helped three men unload their car after a burglary, helped them dispose of burglary tools, and converted their coins into currency. The government conceded that Nelson had no knowledge of the burglary at the time it took place or that the coins came from a particular bank. The court affirmed the conviction under 18 U.S.C. § 371, finding sufficient evidence of a conspiracy and the requisite knowledge of entry into it.

In the case sub judice, the phone call from co-defendant Hallman to McGann before the theft, at which time he agreed to purchase the sets, taken together with the testimony by two lady friends of McGann and Pruitt to the effect that the two appellants carefully searched for a warehouse to hide the sets, and the testimony of other perpetrators of the scheme about meetings with McGann and their urgent need for someone to help get rid of the stolen televisions, supports the jury's inference of appellants' knowledge of the conspiracy.

Appellant McGann argues, however, that the evidence did not show that he was aware of the violation of a federal law, i. e., that he did not know the merchandise was stolen from an interstate shipment. We find the argument unpersuasive. McGann showed a total disregard for the source of the television sets. He made no inquiries prior to the theft. After the theft, the sets were described and their prices quoted to him, and arrangements were made to obtain two truckloads. In the ensuing two weeks, appellants handled these stolen goods which were all contained in cardboard boxes with the word "Magnavox" and certain shipping instructions printed thereon. The record clearly shows that during this period, appellants were well aware that these television sets were stolen. In Clark v. United States, 213 F.2d 63, 64 (5th Cir. 1954), the court held that a defendant, to be guilty of a conspiracy, need only "reasonably anticipate that the property might be embezzled or stolen while in the course of interstate transportation. * * * There may be an implied understanding that the property could be embezzled or stolen from any source that might prove convenient or accessible, and that would include an interstate shipment." The following excerpt from an Eighth Circuit case with analogous facts is supportive of the above holding:

"From Fondow\'s testimony, a reasonable fact finder could determine Nassif knew of the theft of a trailer, knew Schmadebeck `had a load of dry goods,\' knew he rented Hertz trucks to transfer the load, and knew where the goods were taken. Nassif was totally indifferent to the source of the goods. He was concerned over inventory and concealment and sale.

Coconspirators seeking illicit gain from conversion of another\'s property seldom become selective as to whether the goods they steal flow in commerce or not. Clearly, if the plan was to steal merchandise only from a known defined local source Nassif might have been guilty of conspiracy to steal or conceal, which only a state may punish. But if the scheme is to steal goods, wherever they may be found, and in fact, goods are stolen from interstate commerce, then we feel the scope of the conspiracy can be broad enough to imply intent to commit a federal crime."

Nassif v. United States, 370 F.2d 147, 153 (8th Cir. 1966). (Footnote and citations omitted). See United States v. Prujansky, 415 F.2d 1045, 1052 (6th Cir. 1969).

In view of the evidence bearing on appellants' involvement in this scheme and the case law discussed, we find that...