U.S. v. Brown, 92-7006

• Citation: 996 F.2d 1049
• Decision Date: 22 June 1993
• Docket Number: No. 92-7006,92-7006
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vincent Edward BROWN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1049

996 F.2d 1049

UNITED STATES of America, Plaintiff-Appellee, v. Vincent Edward BROWN, Defendant-Appellant.

No. 92-7006.

United States Court of Appeals Tenth Circuit.

June 22, 1993.

John Raley, U.S. Atty., and Joseph F. Wilson, Asst. U.S. Atty., Muskogee, OK, for plaintiff/appellee.

Gerald Miller of Jones & Miller, Muskogee, OK, for defendant/appellant.

Before ANDERSON, and EBEL, Circuit Judges, and LUNGSTRUM, District Judge. ^*

EBEL, Circuit Judge.

The appellant-defendant, Vincent Edward Brown, was charged in a three count indictment with various offenses arising out of the theft of cases of liquor from a J.B. Hunt Transport Truck in McAlester, Oklahoma. Count one charged the defendant with conspiring to steal goods in interstate commerce in violation of 18 U.S.C. §§ 371 ¹ and 659 ². Count two charged the defendant with stealing goods in interstate commerce in violation of 18 U.S.C. § 659. Count three charged the defendant with possessing such goods in violation of 18 U.S.C. § 659. A jury found the defendant guilty on each count and the defendant was sentenced to three, concurrent, twelve-month terms of imprisonment. The defendant was also sentenced to three, concurrent, three-year terms of supervised release and ordered to pay restitution to J.B. Hunt Transport Company in the amount of $605.37.

On appeal, the defendant challenges his conviction on two grounds: 1) that the trial judge erred by failing to instruct the jury that it could not convict the defendant for both theft and possession of stolen goods, and 2) that the evidence to support his conviction for conspiracy was insufficient. After considering both of the defendant's contentions, we affirm the defendant's convictions for theft and conspiracy and direct the district court to vacate the defendant's conviction for possession.

FACTS

Viewing the evidence in the light most favorable to the prosecution, the jury could have found the following facts. On August 16-17, 1991, Michael Jackson, an employee of J.B. Hunt Transport Company, drove a J.B. Hunt Transport truck from Bardstown, Kentucky to McAlester, Oklahoma. The truck was loaded with 1,321 cases of liquor destined Jackson arrived in McAlester on the evening of August 17 and stopped at a convenience store to ask directions to the Dixie Liquor Company. He met an individual outside the store from whom he purchased $70 worth of cocaine. After smoking the cocaine, Jackson proceeded to Leo's Club, a local night spot. Outside the club, he saw the individual he had encountered at the convenience store and purchased an additional $50 worth of cocaine from this individual. Jackson left the club to smoke the cocaine with Teresa Jones, a woman he had just met at the club. Jackson and Jones subsequently returned to the club, where Jackson purchased additional cocaine from several individuals. In exchange for the cocaine, Jackson traded approximately eight to ten cases of liquor from his truck. This time, Jackson and Jones left the club to smoke the cocaine at Jones' house.

for the Dixie Liquor Company located in McAlester.

While Jackson was at Jones' house, the defendant and five other men arrived at the house and were admitted by Jones. One of these men placed $180.00 worth of cocaine in Jackson's hand and asked whether he and his companions could get some liquor from Jackson's truck in exchange for the cocaine. Jackson agreed to the proposed exchange and stated that the men could unload as much liquor as they wanted until they got tired. When Jackson expressed concern about consummating the deal at the house, however, Jackson was told to wait while the defendant and three other men left the house to find a place to unload the truck. When the four men returned, Jackson was instructed to follow them in his truck to the farm of Billy Frank Cockerhan, who lived several miles outside of town. Earlier in the evening, Cockerhan had agreed to the defendant's request to store two cases of liquor on his property.

Upon arriving at Cockerhan's farm, the defendant and his companions proceeded to unload over 100 cases of liquor from Jackson's truck into a horse trailer. When Cockerhan objected to the amount of liquor being unloaded, the defendant informed Cockerhan of the deal that they had negotiated with Jackson. Cockerhan relented and allowed the defendant and his companions to continue unloading cases of liquor. When Jackson eventually delivered his liquor shipment to the Dixie Liquor Company the following morning, the shipment was 187 cases short.

Jackson initially claimed that the missing liquor had been stolen without his knowledge but he subsequently confessed that he had sold the liquor himself. After reading an account of Jackson's confession in the newspaper, Cockerhan told the defendant to remove the liquor from his property. The defendant informed Cockerhan that he would look for a truck in which to transport the liquor. Later, the defendant called Cockerhan back, and after being informed by Cockerhan's wife that her husband was not at home, told her to tell her husband "not to get rid of it until I come by tomorrow and pick it up." Soon after this call, all the liquor disappeared from Cockerhan's property, except for ten cases given to Cockerhan by the defendant.

On August 21, 1991, the FBI executed a search warrant at the residence of Ann Walker, the defendant's girlfriend, and discovered six cases of the liquor missing from Jackson's truck. These cases had been brought to Walker's residence by the defendant, who told her not to worry about where the liquor came from and that he got it cheap. When questioned about these cases by the FBI, the defendant stated that he bought these cases from Jackson at Leo's club and that he never saw Jackson again following the transaction. Later, at trial, the defendant recanted part of this statement and admitted that he had watched Jackson's truck being unloaded at Cockerhan's farm.

DISCUSSION

I. The Jury Instructions

The defendant's first claim is that the trial judge erred by failing to instruct the jury that it could not convict him for both theft and possession of stolen goods. Since the defendant failed to raise this claim in the trial court, we may review this claim on appeal only if the judge's failure to instruct the jury amounted to plain error. Fed.R.Crim.P.

52(b); United States v. Lacey, 969 F.2d 926, 928 (10th Cir.1992), vacated on other grounds, --- U.S. ----, 113 S.Ct. 1233, 122 L.Ed.2d 640 (1993).

To constitute plain error, the district court's error must have been both "obvious and substantial." United States v. Mitcheltree, 940 F.2d 1329, 1333-34 (10th Cir.1991); United States v. Jefferson, 925 F.2d 1242, 1254 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 239, 116 L.Ed.2d 194 (1991). An error is substantial if it "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Mitcheltree, 940 F.2d at 1333 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)). In the instant case, we conclude, and the government concedes, that the district court's failure to instruct the jury that the appellant could not be convicted of both theft and possession amounted to plain error.

It is well established that a defendant may not be convicted for both stealing and possessing the same property, unless Congress specifically intended to treat each act as a separate offense. See United States v. Gaddis, 424 U.S. 544, 547-48, 96 S.Ct. 1023, 1025-26, 47 L.Ed.2d 222 (1976) (applying 18 U.S.C. § 2113); Milanovich v. United States, 365 U.S. 551, 553-54, 81 S.Ct. 728, 729-30, 5 L.Ed.2d 773 (1961) (applying 18 U.S.C. § 641); Heflin v. United States, 358 U.S. 415, 419-20, 79 S.Ct. 451, 453-54, 3 L.Ed.2d 407 (1959) (applying 18 U.S.C. § 2113); Jenkins v. United States, 361 F.2d 615, 617-18 (10th Cir.1966) (applying 18 U.S.C. § 2113); Glass v. United States, 351 F.2d 678, 681 (10th Cir.1965) (applying 18 U.S.C. § 2113). Nothing in the language or legislative history of 18 U.S.C. § 659 indicates that Congress intended to treat the theft and possession of interstate goods in violation of this section as multiple offenses. United States v. Solimine, 536 F.2d 703, 710-11 (6th Cir.), vacated on other grounds, 429 U.S. 990, 97 S.Ct. 517, 50 L.Ed.2d 603 (1976); cf. United States v. DiGeronimo, 598 F.2d 746, 748-52 (2d Cir.) (concluding that Congress did not intend to punish separately robbery in violation of 18 U.S.C. § 1951 and possession in violation of § 659), cert. denied, 444 U.S. 886, 100 S.Ct. 180, 62 L.Ed.2d 117 (1979). Accordingly, the appellant could not lawfully have been convicted for both theft and possession under 18 U.S.C. § 659, see Garber, 626 F.2d at 1153; Solimine, 536 F.2d at 710-11, and the district court committed obvious and substantial error in failing to so instruct the jury, see DiGeronimo, 598 F.2d at 752.

The fact that the defendant received concurrent sentences on both the theft and possession charges does not undermine our conclusion that the district court's error was substantial. As we noted in United States v. Montoya, 676 F.2d 428, 432 (10th Cir.), cert. denied, 459 U.S. 856, 103 S.Ct. 124, 74 L.Ed.2d 108 (1982), "adverse collateral consequences inexorably flow from most criminal convictions." These consequences include

the possible effect on parole, the application of habitual criminal statutes in those states which view each count as a separate offense, use of the unreviewed conviction for impeachment purposes in a subsequent case, stigma from conviction of certain types of crimes, and forfeiture of civil rights and employment opportunities.

Id. In light of these consequences, and the fact that the concurrent sentence doctrine is discretionary rather than jurisdictional, we proceeded in Montoya to review all of the defendant's convictions under a multi-count indictment, notwithstanding the fact that his sentences under the various counts were...