United States v. Borders

• Decision Date: 12 July 2016
• Docket Number: No. 14-3828, No. 15-1651, No. 15-1648,14-3828
• Citation: 829 F.3d 558
• Parties: United States of America, Plaintiff–Appellee v. Kenneth Ray Borders, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Jon Dirk Dickerson, also known as Dirk, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Kyle Wayne Dickerson, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

829 F.3d 558

United States of America, Plaintiff–Appellee

v.Kenneth Ray Borders, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Jon Dirk Dickerson, also known as Dirk, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Kyle Wayne Dickerson, Defendant–Appellant.

No. 14-3828

No. 15-1648

No. 15-1651

United States Court of Appeals, Eighth Circuit.

Submitted: March 16, 2016

Filed: July 12, 2016

Corrected: July 12, 2016

Rehearing Denied Aug. 18, 2016

Clayton E. Gillette, Gillette Law Office, LLC, Kansas City, MO, argued, for appellant Kenneth Ray Borders.

David S. Bell, Wyrsch, Hobbs & Mirakian, P.C., Kansas City, MO, argued, for appellant Jon Dirk Dickerson.

W. Brian Gaddy, Gaddy Weis LLC, Kansas City, MO, argued, for appellant Kyle Wayne Dickerson.

Gregg R. Coonrod, Lucinda S. Woolery, Asst. U.S. Attys., Kansas City, MO, argued (Tammy Dickinson, U.S. Atty., on the brief), for appellee.

Before WOLLMAN, BENTON, and SHEPHERD, Circuit Judges.

BENTON, Circuit Judge.

Kenneth Ray Borders, Jon Dirk Dickerson, and Kyle Wayne Dickerson appeal their convictions for crimes involving stolen goods and vehicles. At trial, the government proved a conspiracy, beginning in about 1998, to steal commercial trucks, trailers, and cargo, and alter vehicle identification information. Jon owned and operated several trucking companies, including Night Line Trucking; his son Kyle worked at the companies and partly owned Night Line Trucking. Jon would give Borders “shopping lists” of trucks and trailers to steal. Borders stole and sold the vehicles and trailers to the Dickersons. Borders also sold stolen cargo to other customers and stored stolen property at a storage unit paid for by the Dickersons. A government witness, Jaccard Fears, testified to working for the Dickersons for two years, falsifying paperwork at their direction, going on scouting missions with Borders, and helping Borders clean stolen trucks. Another witness testified that Jon siphoned fuel at night, stole license plates and fuel tax stickers in order to create false registration and insurance documents, and directed him to steal a truck. The witness also testified Kyle removed VIN plates and cut up trailers to sell for scrap.

A jury convicted Borders of conspiracy, aiding and abetting the transportation of stolen goods, and aiding and abetting the possession of stolen vehicles. The jury convicted Jon and Kyle of conspiracy, aiding and abetting the possession of stolen goods, and aiding and abetting the possession of stolen vehicles. Borders was sentenced to 262 months, Jon 188 months, and Kyle 110 months in prison. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and remands.

I.

Defendants challenge the finding of a single conspiracy, arguing the district court should have granted judgment of acquittal due to a variance, or instructed the jury on multiple conspiracies. Because Defendants did not raise this issue at trial, this court reviews for plain error. United States v. Buckley , 525 F.3d 629, 633 (8th Cir. 2008). Plain error means an error that is clear under current law, caused prejudice, and seriously affected the fairness, integrity, or public reputation of judicial proceedings. United States v. Delgado, 653 F.3d 729, 735 (8th Cir. 2011), citing United States v. Olano , 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

A single conspiracy requires “one overall agreement.” United States v. Morales , 113 F.3d 116, 119 (8th Cir. 1997). It “is not proved by a mere overlap of personnel or knowledge of another's illegal conduct. Rather, to prove that individual agreements among separate conspirators were made to advance a single enterprise, the government must show that the conspirators each were motivated by a common purpose.” United States v. Peyro , 786 F.2d 826, 829 (8th Cir. 1986) (internal citations omitted). “A variance results where a single conspiracy is charged but the evidence at trial shows multiple conspiracies.” Morales , 113 F.3d at 119. This court considers the totality of the circumstances, including the nature of the activities, their location, time frame, participants involved. Id.

The totality of the circumstances supports the single conspiracy finding. The government presented evidence that, from about 1998 until 2012, Jon would give Borders a shopping list of trucks and trailers to steal; Borders would steal them; and Kyle would remove the VIN numbers to prevent police detection.

Defendants argue the special jury verdict forms demonstrate a variance. Special verdict forms required the jury to find each defendant's purposes in carrying out the conspiracy. For all Defendants, the jury marked possession of stolen vehicles (18 U.S.C. § 2313 ) and possession of stolen goods (§ 2315). For Borders, the jury also marked transportation of stolen goods (§ 2314), and for the Dickersons, the jury marked altering or removing motor vehicle identification numbers (§ 511). According to Defendants, the special verdict forms show the jury found two conspiracies: (1) between Borders and the Dickersons to possess stolen vehicles and goods, and (2) between the Dickersons to alter and remove VIN numbers. Under plain error review, it is not enough for Defendants to present a plausible argument for the existence of an error. Rather, the error must be “clear under current law.” Delgado , 653 F.3d at 735, citing Olano , 507 U.S. at 732, 113 S.Ct. 1770. Defendants have not demonstrated it is clear under current law that special verdict forms are alone sufficient to establish a variance, especially when the jury also finds the defendants guilty of a single conspiracy.

The jury could reasonably find a single conspiracy existed and each defendant a knowing member of it.

II.

Kyle contests the convictions of four aiding and abetting charges. This court reviews de novo the sufficiency of the evidence, drawing all reasonable inferences in favor of the verdict. United States v. Nguyen , 758 F.3d 1024, 1029 (8th Cir. 2014). An aiding and abetting conviction requires the government to prove a defendant took an affirmative act to further the underlying criminal offense, with the intent of facilitating the offense. Rosemond v. United States , ––– U.S. ––––, 134 S.Ct. 1240, 1245, 188 L.Ed.2d 248 (2014). “An intent to advance some different or lesser offense is not, or at least not usually, sufficient: Instead, the intent must go to the specific and entire crime charged....” Id. at 1248. The government may use circumstantial evidence. United States v. Duranseau , 26 F.3d 804, 809 (8th Cir. 1994).

In Count 2, the jury convicted Kyle of aiding and abetting the unlawful transportation of a stolen vehicle from Missouri to Florida. Borders stole the truck, and Fears and a broker arranged its transportation. However, Fears testified that he acted under Kyle's authorization—“I was given permission by Jon and Kyle to book freight under Nightline and D & T.” The broker paid “K. Wayne Dickerson” for shipping the load. And, two investigators spoke with Kyle on the phone about the truck. Viewed in the light most favorable to the verdict, this evidence is sufficient to support the conviction.

In Counts 18, 20, and 25, the jury convicted Kyle for aiding and abetting the possession of stolen goods and vehicles, found during a search of a storage unit rented by Jon and Kyle. Kyle contends he did not know that stolen goods and vehicles were being stored at the unit. The government's only contrary evidence is that Kyle rented the unit and had a key. This is insufficient to support the conclusion that Kyle took an affirmative act with the intent to aid in the storage of stolen goods and vehicles. See Rosemond , 134 S.Ct. at 1248.

The conviction for Count 2 is affirmed. The convictions for Counts 18, 20, and 25 are vacated.

III.

Defendants challenge several evidentiary rulings, which are reviewed for abuse of discretion. See United States v. Jackson , 67 F.3d 1359, 1366 (8th Cir. 1995).

A.

Defendants argue the district court erred in admitting evidence of Department of Transportation civil violations by the Dickersons. The government submitted evidence that the Dickersons used unsafe trucks, failed to drug-test drivers, and failed to pay fines, resulting in several cease-and-desist orders. The government also submitted a Record Consolidation Order, finding Jon Dickerson operated numerous businesses under different identities to avoid complying with DOT orders. The Consolidation Order was issued in July 2013—six months after the indictment.

According to the government, the evidence was relevant to establish the Dickersons' tendency to abuse their trucks, creating the need for Borders to steal other trucks. However, evidence of civil violations cannot be used to prove criminal liability, making the question one of undue prejudice, not relevance. See United States v. Parker , 364 F.3d 934, 942 (8th Cir. 2004) (“The paramount concern for the trial judge ... is not one of relevancy, because ... evidence of civil violations is clearly relevant insofar as a defendant's knowledge and violation of the regulations are relevant to show intent and motive. Instead, the question is one of undue prejudice.”). See also United States v. Hilliard , 31 F.3d 1509, 1516 (10th Cir. 1994) (“Although the evidence concerning a civil violation may be used to prove knowledge or intent, it may not be used to prove criminal liability.”). Admission of civil violations is permissible if the district court takes “painstaking care to guard against the possibility that the defendant would be convicted of a federal crime because he violated civil violations.” Parker , 364 F.3d at 943 (noting the district court had “explicitly admonished the jury that the trial was ‘not a lawsuit claiming violation of the Federal Trade Commission, FTC, requirements' ”).

Here, the record shows no such painstaking care. Instead, with no limiting instruction, the district court allowed the...