829 F.3d 558 (8th Cir. 2016), 14-3828, United States v. Borders

Docket Nº:14-3828, 15-1648, 15-1651
Citation:829 F.3d 558
Opinion Judge:BENTON, Circuit Judge.
Party Name: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
Attorney:For United States of America, Plaintiff - Appellee (14-3828, 15-1648, 15-1651): Gregg R. Coonrod, Assistant U.S. Attorney, U.S. Attorney's Office, Kansas City, MO; Lucinda Sword Woolery, U.S. Attorney's Office, Kansas City, MO. Kenneth Ray Borders, Defendant - Appellant (14-3828), Pro se, Springf...
Judge Panel:Before WOLLMAN, BENTON, and SHEPHERD, Circuit Judges.
Case Date:July 12, 2016
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 558

829 F.3d 558 (8th Cir. 2016)

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

Nos. 14-3828, 15-1648, 15-1651

United States Court of Appeals, Eighth Circuit

July 12, 2016

Submitted March 16, 2016.

Appeals from United States District Court for the Western District of Missouri - Kansas City.

For United States of America, Plaintiff - Appellee (14-3828, 15-1648, 15-1651): Gregg R. Coonrod, Assistant U.S. Attorney, U.S. Attorney's Office, Kansas City, MO; Lucinda Sword Woolery, U.S. Attorney's Office, Kansas City, MO.

Kenneth Ray Borders, Defendant - Appellant (14-3828), Pro se, Springfield, MO.

For Kenneth Ray Borders, Defendant - Appellant (14-3828): Clayton Evan Gillette, Accurso Law Firm, Kansas City, MO.

For Jon Dirk Dickerson, also known as: Dirk, Defendant - Appellant (15-1648): David S. Bell, Wyrsch & Hobbs, Kansas City, MO.

Jon Dirk Dickerson, also known as: Dirk, Defendant - Appellant (15-1648), Pro se, Texarkana, TX.

Kyle Wayne Dickerson, Defendant - Appellant (15-1651), Pro se, Leavenworth, KS.

For Kyle Wayne Dickerson, Defendant - Appellant (15-1651): William Brian Gaddy, Gaddy & Weis, Kansas City, MO.

Before WOLLMAN, BENTON, and SHEPHERD, Circuit Judges.

OPINION

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 conspirator 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. 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, 134 S.Ct. 1240, 1245, 188 L.Ed.2d 248 (2014). " An intent to...

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