U.S. v. Bowers, s. 83-5293

• Citation: 739 F.2d 1050
• Decision Date: 20 April 1984
• Docket Number: Nos. 83-5293,83-5425,s. 83-5293
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Eugene BOWERS, Oacus Donald Oakes, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1050

739 F.2d 1050

UNITED STATES of America, Plaintiff-Appellee, v. Donald Eugene BOWERS, Oacus Donald Oakes, Defendants-Appellants.

Nos. 83-5293, 83-5425.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 23, 1984.

Decided April 20, 1984.

John M. Berry, argued, Louisville, Ky., for Bowers.

David Murrell, argued, Louisville, Ky., for Oakes.

Ronald E. Meredith, U.S. Atty., Richard Dennis, Asst. U.S. Atty., argued, Louisville, Ky., for the U.S.

Before EDWARDS and WELLFORD, Circuit Judges, and PECK, Senior Circuit Judge.

PER CURIAM.

Defendants appeal their convictions stemming from an alleged scheme to run "ringer" horses at thoroughbred race tracks. The judgments are affirmed.

I.

Donald Bowers and Oacus Donald Oakes, appellants here, were charged along with Glendo Sullivan, Omar Fannin, Richard Ahrens, William Martin and Jack Cobb in a three-count indictment stemming from an alleged scheme to run ringer horses at thoroughbred race tracks in Kentucky, Louisiana, Ohio, and Illinois. In most states, a thoroughbred horse cannot be raced unless its certificate of foal registration is on file. That certificate, among other things, establishes the previous track record of the horse to ensure that horses of high caliber are not entered in events designated for horses that have not previously performed well. The certificate also bears a registration number; that number relates to a number tattooed on a horse to ensure that the certificate presented with that horse indeed represents the record of that horse rather than some other horse. The scheme charged by the government involved procuring the certificates of horses with bad records, procuring good horses that had not previously been tattooed, and inscribing tattoos on those horses to match the procured registration forms, and racing a horse under a false or forged certificate.

All the defendants were named in the first count of the indictment, which charged a conspiracy to violate 18 U.S.C. Sec. 1952 (proscribing interstate travel to promote unlawful, gambling-related activities) and 18 U.S.C. Sec. 2314 (proscribing the transportation in interstate commerce of a falsely made, forged, altered, or counterfeited security). In counts 2 and 3, which charge the substantive violation of Secs. 1952 and 2314, only Fannin was named. Prior to trial, all defendants but Bowers, Oakes, and Fannin pleaded guilty. The remaining defendants stood trial before Judge Johnstone. Defendants Bowers and Oakes were convicted as charged in count 1, but Fannin was acquitted on all counts.

II.

Both Oakes and Bowers challenge the sufficiency of the evidence to sustain their convictions. Bowers argues that the lack of evidence of his interstate activity in furtherance of the conspiracy requires reversal of his conviction for conspiracy to violate the Travel Act, 18 U.S.C. Sec. 1952. Both Oakes and Bowers question whether the activities charged in Louisiana trigger sufficient state penalties to support conviction under the Travel Act.

The Travel Act defines as criminal the travel in interstate commerce with the intent to "promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity." 18 U.S.C. Sec. 1952(a)(3); see id. Sec. 1952(a). "Unlawful activity" embraces "any business enterprise involving gambling ... in violation of the laws of the state in which ... committed." Id. Sec. 1952(b). To prove its case here, therefore, the government must show both the occurrence of interstate travel and the illegality of the promoted gambling activity in the state in which it occurred.

Bowers argues that the government did not show that he travelled in interstate commerce in promotion of the charged scheme. In so doing, Bowers overlooks the settled rule that a conspirator is liable for acts undertaken by a co-conspirator in furtherance of their conspiracy. See United States v. Chambers, 382 F.2d 910, 913-14 (6th Cir.1967); see also, e.g., United States v. Craig, 573 F.2d 455 (7th Cir.1977). Even if we were to assume that Bowers himself was not shown to have travelled interstate in furtherance of the conspiracy, ample evidence demonstrates interstate travel in furtherance of the conspiracy by other conspirators; because Bowers was shown to have joined the conspiracy, their interstate activities are attributable to Bowers, and his argument in that respect must fail.

Both Bowers and Oakes argue further that, because their activities in Louisiana would merely give rise to administrative sanctions under Louisiana law rather than criminal penalties, those activities do not constitute "unlawful activity" within the meaning of the Travel Act. This contention need not be addressed, however, since other aspects of the conspiracy violated state penal laws and therefore indisputably constitute "unlawful activities." The conspiracy proved at trial involved the running of ringers not only in Louisiana, but also in Kentucky. Kentucky law imposes criminal penalties for running ringers. See Ky.Rev.Stat. Sec. 230.990(1) (authorizing fines and imprisonment for running ringers in violation of id. .070, .080(3)). Given the liability of a conspirator for a co-conspirator's act, see supra p. ----, any error in relying on the Louisiana activities as a predicate for Travel Act liability was harmless, particularly in view of the guilty pleas of other co-conspirators involving activities beyond Louisiana.

III.

In addition to the arguments raised in concert with his co-defendant, defendant Oakes raises two other issues. First, he argues that the proof at trial impermissibly varied from the conspiracy charged at trial. Second, he claims that the government failed to furnish him exculpatory information as required.

A.

The indictment charged a sweeping conspiracy involving seven defendants. Immediately preceding trial, four of the defendants pleaded guilty, leaving three defendants to go to trial. Rather than proving the originally charged conspiracy, the government offered proof as to a lesser conspiracy sufficient to cover the remaining defendants but omitting some evidence that would have been required to implicate some of the defendants who pleaded guilty. The government admits that the "evidence introduced at trial by the United States showed a conspiracy with fewer people, of shorter duration and in a smaller area" than charged and that "the indictment was overinclusive." Government's Brief at 35. Oakes claims that this variance requires reversal. ¹

Variance between the indictment and the proof at trial requires reversal only when prejudice to the defendant results. ² Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935). See generally, C. Wright, Federal Practice and Procedure Sec. 516 (2d ed. 1982). In United States v. Davis, 679 F.2d 845 (11th Cir.1982), the Eleventh Circuit confronted a case in which the government, as here, proved only a part of the conspiracy charged in the indictment, but did not adduce proof beyond the scope of the charge in the indictment. The court there found that no prejudice resulted to a defendant by that practice. Because the bounds of the indictment were not crossed, evidence at trial could impermissibly surprise a defendant. Id. at 852. The court rejected the argument that defendants were prejudiced by the variance because "they had less of a defense against the smaller conspiracy since the larger one may not have existed." Id. Nor does the course followed at trial prejudice the defendant by depriving him of the double-jeopardy protections afforded by an indictment. See id. (citing Berger, supra ). If anything, the indictment here, by covering all of the evidence adduced at trial and some that was not, protects the defendant from future prosecution. The trial judge was careful to instruct the jury that it could convict based only on the conspiracy charged in the indictment, not on some other, or lesser, illegal combination. We find no merit in the variance contention.

B.

Witness Wendell Turner identified defendant Oakes as an individual who had visited Turner several times in California seeking to purchase unmarked horses. Turner identified Oakes at trial and stated that Oakes previously identified himself as Glendo Sullivan, named as a defendant in the indictment, when visiting Turner in California. But defendant points to some discrepancy in Turner's stories. In a statement given to the FBI, Turner described the individual identified to him as Sullivan as standing 5'5", being chunky, and having dark hair. Defendant Oakes, on the other hand, is about 6' tall and weighs 220 pounds. Oakes argues that the government's failure to supply the FBI statement to him prior to trial constituted reversible error under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), since it tended to show that Oakes had never met Turner in California and inquired about purchasing unmarked horses.

That argument must be rejected. Brady involved a situation in which exculpatory evidence possessed by the prosecution was not discovered by the defense until after a trail was completed. In this case, on the other hand, the FBI statement was admittedly given to defendant prior to Turner's testimony as part of the Jencks Act material. If this were considered exculpatory evidence no prejudice resulted in this case since defendant had full opportunity to cross-examine and bring out any discrepancy. In fact, the FBI statement was read into the evidence in its entirety. See Transcript at 1101.

IV.

Defendant Bowers raises three arguments not addressed by his co-defendant on appeal. First, he maintains that admission of certain "prior acts" testimony required a mistrial to be declared. Second, he questions the admissibility of statements he made to a private security officer. Third, he argues that 18 U.S.C. Sec. 2314 was not intended to proscribe transportation of documents such as...