U.S. v. Indelicato, 85-1187

Decision Date30 September 1986
Docket NumberNo. 85-1187,85-1187
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Michael J. INDELICATO, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Rudolfo Orjales, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Michael B. Bassi, San Francisco, Cal., for defendant-appellant.

Appeal from the United States District Court for the Northern District of California.

Before BROWNING, Chief Judge, FLETCHER and NELSON, Circuit Judges.

PER CURIAM:

Indelicato appeals his conviction of conspiracy to receive and possess rifles stolen from foreign and interstate shipment in violation of 18 U.S.C. Secs. 371 and 549 (1982) (Count I); possession of stolen interstate merchandise in violation of 18 U.S.C. Sec. 549 (Count II); and possession of a firearm while under indictment in violation of 18 U.S.C. Sec. 922(h)(1) (1982) (Count III). We affirm.

The crime of conspiracy is established by an agreement to engage in criminal activity, one or more overt acts taken to implement the agreement, and the requisite intent to commit the substantive crime. United States v. Kiriki, 756 F.2d 1449, 1453 (9th Cir.1985). Agreement may be inferred from the facts and circumstances of a case. Iannelli v. United States, 420 U.S. 770, 777 n. 10, 95 S.Ct. 1284, 1289 n. 10, 43 L.Ed.2d 616 (1975). The evidence here is sufficient to establish a conspiracy between Indelicato and Eric Rudy. Indelicato sold rifles to Rudy that Rudy later sold to government agents. Indelicato set up and was present at the meeting at his mother's residence at which Rudy sold the rifles to the government agents. Proof that Rudy had the rifles and that Indelicato arranged the sale with Rudy was sufficient in itself to establish the existence of an agreement between the two. Moreover, during the course of the sale, Rudy said the rifles were going to Mexico, a fiction the agents had disclosed only to Indelicato.

It is also clear Indelicato knew the rifles were stolen. The rifles were from a stolen shipment. Indelicato sold the guns well below market value. He told government agents the guns were "hot," having been stolen at Oakland from a boat arriving from Japan, and that their serial numbers could be traced.

Indelicato argues the evidence established Rudy possessed the rifles, but not that Indelicato did. There was direct evidence, however, that Indelicato bought stolen rifles from a co-worker and sold them to Rudy and to another. The evidence that Indelicato possessed the rifles involved in these transactions was substantial.

Indelicato argues a scienter requirement should be implied in 18 U.S.C. Sec. 922(h)(1), which criminalizes possession of a firearm while under indictment. We held in United States v. Pruner, 606 F.2d 871, 873-74 (9th Cir.1979), that there was no scienter requirement for possession of a firearm after conviction. Under the rationale of Pruner there is no reason to arrive at a different conclusion with respect to possession while under indictment. See also United States v. Quiroz, 449 F.2d 583,...

To continue reading

Request your trial
32 cases
  • U.S. v. Ayers
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 3 April 1991
    ...must show that the defendant possessed the requisite intent to commit the underlying substantive crime. United States v. Indelicato, 800 F.2d 1482, 1483 (9th Cir.1986). Thus, the government was required to prove that Gregory Ayers had the intent to defraud the United States by concealing in......
  • U.S. v. Cloud
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 5 April 1989
    ...and (3) the requisite intent necessary to commit the underlying substantive offense. Pemberton, 853 F.2d at 733; United States v. Indelicato, 800 F.2d 1482, 1483 (9th Cir.1986). The agreement need not be explicit; it may be inferred from the defendant's acts pursuant to a fraudulent scheme ......
  • U.S. v. Milheron, 02-CR-26-B-S.
    • United States
    • U.S. District Court — District of Maine
    • 20 November 2002
    ...L.Ed.2d 500 (2001) (recognizing that possession of a gun is "an active and potentially dangerous act") (quoting United States v. Indelicato, 800 F.2d 1482, 1484 (9th Cir.1986)); Hutzell, 217 F.3d at 969 (noting that possession of a gun is "a highly regulated activity, and everyone knows it"......
  • Burkett v. State
    • United States
    • Florida District Court of Appeals
    • 15 January 1988
    ...of California, 803 F.2d 1051 (9th Cir.1986), cert. den., 481 U.S. 1070, 107 S.Ct. 2464, 95 L.Ed.2d 873 (1987); United States v. Indelicato, 800 F.2d 1482 (9th Cir.1986); United States v. Shomo, 786 F.2d 981 (10th Cir.1986); United States v. Bruscantini, 761 F.2d 640 (11th Cir.), cert. den.,......
  • Request a trial to view additional results
3 books & journal articles
  • Foreign corrupt practices act overview
    • United States
    • ABA Archive Editions Library The Foreign Corrupt Practices Act Handbook. Second edition
    • 23 June 2012
    ...v. Chong, 419 F.3d 1076 (9th Cir. 2005); United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000); United States v. Indelicato, 800 F.2d 1482, 1484 (9th Cir. 1986); Tenth Circuit: United States v. Daily, 921 F.2d 994, 999 (10th Cir. 1991); Nelson v. United States, 406 F.2d 1136, 1137 (1......
  • Table of cases
    • United States
    • ABA Archive Editions Library The Foreign Corrupt Practices Act Handbook. Second edition
    • 23 June 2012
    ...Illinois Central Railroad, United States v., 303 U.S. 239, 58 S. Ct. 533, 82 L. Ed. 773 (1938), 51n30 Indelicato, United States v., 800 F.2d 1482 (9th Cir. 1986), 39n107 Ingersoll-Rand Co., Ltd., United States v. (Oct. 31, 2007), 318–319 Ingersoll-Rand Italiana S.p.A., United States v., No.......
  • Chapter 1. Foreign Corrupt Practices Act Overview
    • United States
    • ABA Archive Editions Library The Foreign Corrupt Practices Act Handbook. Third Edition
    • 1 January 2014
    ...C H A P T E R 1 419 F.3d 1076 (9th Cir. 2005); United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000); United States v. Indelicato, 800 F.2d 1482, 1484 (9th Cir. 1986); Tenth Circuit: United States v. Daily, 921 F.2d 994, 999 (10th Cir. 1991); Nelson v. United States, 406 F.2d 1136, 1......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT