U.S. v. Graves

• Citation: 669 F.2d 964
• Decision Date: 08 March 1982
• Docket Number: No. 80-2285,80-2285
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack GRAVES, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 964

669 F.2d 964

UNITED STATES of America, Plaintiff-Appellee, v. Jack GRAVES, Defendant-Appellant.

No. 80-2285.

United States Court of Appeals, Fifth Circuit.

March 8, 1982.

Jose Vela, Jr., Laredo, Tex., David D. Aufhauser, F. Lane Heard, III, Washington, D. C., for defendant-appellant.

James R. Gough, Asst. U. S. Atty., Houston, Tex., John P. Smith, Asst. U. S. Atty., Brownsville, Tex., for the U. S.

Appeal from the United States District Court for the Southern District of Texas.

Before GARZA and RANDALL, Circuit Judges. ^*

GARZA, Circuit Judge:

After a jury trial in the Southern District of Texas, Jack Graves was convicted of conspiring to violate 18 U.S.C. §§ 2312 and 2314 in violation of 18 U.S.C. § 371. ¹ Graves and two of his confederates, Jerry Blackwell and Idelfonso Perez, Jr., conspired to steal several trucks from the Dub Shaw Ford dealership in Fort Worth, Texas, of which Graves was the general sales manager, transport those trucks to Laredo, and then resell them in Mexico. Sentenced to five years imprisonment, Graves appeals the judgment of the district court. We affirm.

In late February or early March of 1980, Graves called Blackwell, whom he had known for more than nine years, and asked Blackwell to meet him at the Dub Shaw Ford dealership. At this meeting, Graves invited Blackwell to participate in a scheme to steal trucks from the dealership and resell them in Mexico. Blackwell, an expert at "hot wiring" a vehicle, was to drive the trucks from Fort Worth to Mexico via El Paso and then resell them there. Although Blackwell was receptive to Graves's idea, the scheme was never carried out because Graves and Blackwell could not agree on Blackwell's share of the proceeds.

Undaunted by this impasse, Graves called Blackwell again to interest him in a similar operation. Like the first plan, this scheme involved the theft of trucks in Fort Worth for resale in Mexico. This time, however, Blackwell was only to steal the trucks in Fort Worth and transport them to Laredo. Graves himself would make arrangements for their transportation to and resale in Mexico. Graves promised Blackwell one-third of the resale price which he estimated would be between $2,000 and $2,500 per truck. Blackwell agreed. Graves and Blackwell also agreed to repeat this operation and to deliver three trucks to Laredo each time.

Blackwell talked with Graves again during the evening of March 7. The following morning, Blackwell stole three trucks and arranged transportation for them and himself to Laredo. He transported two of the trucks on a carrier he had bought for that purpose and hired a driver to deliver the third. Blackwell and his driver arrived in Laredo later that day and parked the trucks in a shopping mall parking lot. Blackwell then checked into a motel and called Perez. Blackwell had never met Perez but had received Perez's telephone number from Graves. Graves knew Perez because Perez had previously worked for Dub Shaw Ford, and called Perez before Blackwell arrived in Laredo to advise him that he would receive three stolen trucks. After receiving Blackwell's call, Perez and his cousin, Oscar Vela, went to Blackwell's motel room and introduced themselves. During this conversation, Perez informed Blackwell that he could not pay for the trucks until the following Monday. After talking with Perez, Blackwell called Graves to be sure that Perez could be trusted until Monday, and then left the motel with Perez and Vela for the parking lot. Once there, Blackwell gave Perez the keys for the trucks. Perez inspected the trucks and took possession of them from Blackwell. Blackwell then returned to his motel room and Perez and his cousin drove one of the trucks away. All three were apprehended by Laredo police shortly thereafter.

SUFFICIENCY OF THE INDICTMENT

Graves challenges the sufficiency of the indictment on three grounds. ² First, he contends that the indictment failed to state an offense because it neglected to mention that he knew that the trucks were stolen, an essential element for a Dyer Act violation. Second, the indictment failed to offer him adequate notice of the specific Dyer Act provision he was alleged to have violated. Finally, as a variation on his first argument, he also contends that the indictment was deficient because it omitted the fact that the trucks had a value of at least $5,000, a necessary element of a Dyer Act violation. None of these contentions has merit.

Each of Graves's arguments suffers from the same flaw. He was charged with conspiracy to violate the Dyer Act and not with a substantive Dyer Act violation itself. Therefore, the sufficiency of the indictment must be measured with regard to a conspiracy to violate federal law rather than with regard for the substantive violations Graves conspired to commit. Viewed in this light, the indictment easily passes muster. " '(A)n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.' " United States v. Bailey, 444 U.S. 394, 414, 100 S.Ct. 624, 636, 62 L.Ed.2d 575 (1980), quoting Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); United States v. L'Hoste, 609 F.2d 796, 800 (5th Cir.), cert. denied, 449 U.S. 833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980). The indictment here satisfies both requirements, and therefore we cannot accept Graves's second argument. ³ Graves's first and third arguments-that the indictment is flawed because of its failure to allege the elements of a substantive violation of §§ 2312 and 2314-ignores literally decades of black-letter law to the contrary. In 1908, the Supreme Court rejected the same argument Graves advances here in Williamson v. United States, 207 U.S. 425, 447, 28 S.Ct. 163, 171, 52 L.Ed. 278:

This (argument) is based upon the assumption that an indictment alleging a conspiracy to suborn perjury must describe not only the conspiracy relied upon, but also must, with technical precision, state all the elements essential to the commission of the crimes of subornation of perjury and perjury which, it is alleged, is not done in the indictment under consideration. But in a charge of conspiracy the conspiracy is the gist of the crime, and certainty, to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is required in stating the object of the conspiracy.

The Supreme Court returned to this theme in 1927 and described this point as "well settled":

It is well settled that in an indictment for conspiring to commit an offense-in which the conspiracy is the gist of the crime-it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy ... or to state such object with the detail which would be required in an indictment for committing the substantive offense.

Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 301-02, 71 L.Ed. 545 (citations omitted). Relying upon Williamson and Wong Tai, this Circuit has consistently rejected the argument that a conspiracy charge must spell out the elements of the substantive offense the accused conspired to commit. E.g., United States v. Cuesta, 597 F.2d 903, 917 (5th Cir.), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 377 (1979); United States v. Perez, 489 F.2d 51, 70 (5th Cir. 1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974); United States v. Fischetti, 450 F.2d 34, 40 (5th Cir. 1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478 (1972); Brown v. United States, 403 F.2d 489, 490 (5th Cir. 1968), cert. denied, 397 U.S. 927, 90 S.Ct. 932, 25 L.Ed.2d 106 (1970); Walker v. United States, 342 F.2d 22, 27 (5th Cir.), cert. denied, 382 U.S. 859, 86 S.Ct. 117, 15 L.Ed.2d 97 (1965). See also United States v. Evans, 572 F.2d 455, 483 (5th Cir.), cert. denied, 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978); United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971). None of the cases cited by Graves are to the contrary.

We reject his argument that the indictment was defective.

SUFFICIENCY OF THE EVIDENCE

Graves also argues that the evidence is insufficient to support his conviction. He does not challenge the sufficiency of the evidence to support his own participation in the conspiracy. Instead, his primary challenge is to the sufficiency of the evidence to support Perez's participation in the conspiracy. Relying upon selected portions of the transcript of Perez's testimony, Graves argues that Perez never realized that the trucks were stolen, refused to accept stolen trucks from Graves, and refused to participate in a scheme to transport stolen trucks into Mexico for resale. Because the evidence was insufficient to support Perez's involvement in the conspiracy, the jury should not have been permitted to consider this theory as a basis for convicting Graves. Therefore, because the jury could have rendered its verdict on a basis for which the evidence was insufficient, his conviction must be set aside under Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). We disagree. ⁴

Conspiracy is an inchoate offense usually defined as an agreement between two or more persons to commit an unlawful act or to achieve a lawful end by illegal means. See Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616 (1975); United States v. Wilson, 657 F.2d 755, 758 (5th Cir. 1981). The essential elements of the offense of conspiracy are an agreement between two or more persons to commit a crime and an overt act by one of them in furtherance of the agreement. United States v. Wilson, supra, 657 F.2d at 758; United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.) (en banc), cert. denied, 440 U.S. 962, 99...