U.S. v. Hubbard, s. 95-10317

• Citation: 96 F.3d 1223
• Decision Date: 23 September 1996
• Docket Number: 95-10318,Nos. 95-10317,s. 95-10317
• Parties: 96 Cal. Daily Op. Serv. 7098, 96 Daily Journal D.A.R. 11,619 UNITED STATES of America, Plaintiff-Appellee, v. Michael David HUBBARD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Ray LYON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1223

96 F.3d 1223

96 Cal. Daily Op. Serv. 7098, 96 Daily Journal

D.A.R. 11,619

UNITED STATES of America, Plaintiff-Appellee, v. Michael David HUBBARD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. James Ray LYON, Defendant-Appellant.

Nos. 95-10317, 95-10318.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 14, 1996.

Decided Sept. 23, 1996.

Caro Marks, Arthur W. Ruthenbeck, Assistant Federal Defenders, Sacramento, CA, for defendant-appellant Michael Hubbard.

Dwight M. Samuel, Sacramento, CA, for defendant-appellant James Lyon.

Jeffrey B. Chasnow (argued), Kenneth L. Jost, Peter Ainsworth, Angela Gunter (on the brief), United States Department of Justice, Office of Consumer Litigation, Washington, DC, for plaintiff-appellee United States.

Appeals from the United States District Court for the Eastern District of California, Lawrence K. Karlton, District Judge, Presiding. D.C. No. CR-93-00473-LKK.

Before WIGGINS and TROTT, Circuit Judges, and VANCE, District Judge. ^*

TROTT, Circuit Judge:

OVERVIEW

Michael Hubbard and James Lyon were convicted of conspiracy to commit mail fraud related to an elaborate scheme of odometer tampering. They appeal the district court's denial of their Motion for Judgment of Acquittal, arguing (1) that there was insufficient evidence to support a charge of conspiracy, (2) that there was no "mailing" to bring their conduct within the mail fraud statute, (3) that there was no showing of specific intent to defraud by use of the mails, and (4) that the district court's partial judgment of acquittal on the charge of conspiracy to engage in odometer tampering was inconsistent with its denial of the motion for judgment of acquittal on the charge of conspiracy to engage in mail fraud. We reject Appellants' arguments and affirm the convictions.

BACKGROUND

Michael Hubbard, conducting business as Discount Rent-A-Car (Discount) and as AAA Rent A Car, was in the business of purchasing and selling used motor vehicles. He purchased vehicles that had previously been rental cars, and when he purchased them they generally had between 50,000 and 80,000 miles on them. On some of the vehicles Hubbard purchased, he rolled back the odometers. Then, Hubbard applied to the Departments of Motor Vehicles in California and Texas for duplicate titles, claiming that the original titles to the purchased rental cars had been lost. The duplicate titles came back with a blank mileage figure, and the In February 1995, Hubbard and Lyon were tried for conspiracy to engage in odometer tampering and mail fraud. At the conclusion of the Government's case, Hubbard and Lyon moved for judgment of acquittal. The district court denied the motion as to the conspiracy to commit mail fraud, but granted the motion as to the charge of conspiracy to engage in odometer tampering. The court found that the evidence did not show conspiracy to spin odometers, reasoning that the odometer tampering crime was completed once the odometer was altered, and there was no evidence that Lyon had actually altered an odometer. The court, however, found that Lyon's role in keeping records and negotiating with purchasers could support the charge of conspiracy to commit mail fraud.

rolled-back, low-mileage figure was inserted on the duplicate title. The cars that are the subject of this case were then sold by Hubbard and his employee James Lyon to Arizona Checker Sales, which converted the used cars into taxicabs. Hubbard and Lyon represented to Arizona Checker Sales that the low-mileage figures on the odometers were accurate. Once Arizona Checker Sales had possession of the vehicles and their titles, they had to obtain new Arizona titles. The State of Arizona mailed the new titles back to Arizona Checker Sales.

After eight days of trial, a jury convicted Hubbard and Lyon on the count of conspiracy to commit mail fraud. Hubbard was sentenced to imprisonment of 30 months and 36 months supervised release. Lyon was sentenced to 24 months imprisonment and 36 months supervised release. Also, Lyon's supervised release in another jurisdiction was revoked, and he was sentenced to an additional seven months to run consecutively with the sentence in this case. This appeal followed.

STANDARDS OF REVIEW

When reviewing a challenge to the sufficiency of the evidence, this court determines whether, after reviewing "the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see also United States v. Vgeri, 51 F.3d 876, 879 (9th Cir.1995). "Circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction." United States v. Jackson, 72 F.3d 1370, 1381 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1546, 134 L.Ed.2d 649 (1996). The reviewing court must respect the exclusive province of the fact finder to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts. United States v. Goode, 814 F.2d 1353, 1355 (9th Cir.1987).

DISCUSSION

I Sufficient Evidence of Conspiracy

To prove a conspiracy, the Government must show an agreement between two or more persons to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose. United States v. Monroe, 552 F.2d 860, 862 (9th Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2936, 53 L.Ed.2d 1069 (1977). "[I]nferences of the existence of such an agreement may be drawn 'if there be concert of action, all the parties working together understandingly, with a single design for the accomplishment of a common purpose.' " United States v. Melchor-Lopez, 627 F.2d 886, 890 (9th Cir.1980)(quoting Monroe, 552 F.2d at 862-63). "The agreement need not be explicit, but may be inferred from circumstantial evidence." Id. at 891. Once evidence of a conspiracy is established, only a slight connection between the defendant and the conspiracy is necessary to convict the defendant of knowing participation in the conspiracy. Id.; United States v. Aichele, 941 F.2d 761, 763 (9th Cir.1991). However, mere association with members of a conspiracy or knowledge of the conspiracy, "without an intention and agreement to accomplish a specific illegal objective, is not sufficient to make one a conspirator." Melchor-Lopez, 627 F.2d at 891. Appellants do not attack the existence of fraudulent behavior. Instead, they argue that there is no evidence that Hubbard and Lyon had an agreement to act fraudulently.

We find, however, that the evidence presented at trial shows otherwise. Hubbard's role in the fraud is supported by the fact that he was running the company, negotiating the purchase and sale of vehicles, and picking up and delivering vehicles. One witness, a former employee of Discount, testified that she specifically saw him inside of one vehicle with the dashboard panel removed, adjusting the odometer with a screw driver. Also, Hubbard signed several documents related to the purchases and sales of the vehicles. For example, he applied for the duplicate titles, claiming that the originals were lost. During the execution of a search warrant at Discount, the titles purportedly lost were found on Hubbard's desk. Further evidence of Hubbard's intent and knowledge of the crime came from his prior conviction in June, 1990, when he pleaded guilty to two felony counts for odometer-fraud related crimes.

Appellants argue that even if there was evidence that Hubbard defrauded purchasers, the evidence does not show that Lyon knew that the mileage he represented to buyers was not accurate. However, there is sufficient evidence supporting Lyon's knowledge of and participation in the fraudulent scheme. Lyon spoke to purchasers of Discount's vehicles regarding the cost and mileage of the vehicles. For example, John Holshouser, a representative from Arizona Checker Sales, testified that he had spoken to Lyon 15-20 times over the phone about the cars that were for sale. Lyon also faxed to Holshouser documents listing vehicle prices and mileage. Holshouser specifically testified that Lyon had represented to him that the mileage figures were actual mileage figures. Holshouser also testified that he relied on mileage figures in deciding on the price he would pay for the car.

Lyon handled paperwork associated with both the purchase and sale of used cars. He personally maintained an inventory of the vehicles on a computer, inputting data about the mileage of the vehicles. Reports with vehicle information containing both high and low mileage figures for five vehicles were printed from the computer data kept by Lyon. A handwriting expert testified that Lyon had written at least some of the mileage figures on vehicle documents. For example, in relation to one vehicle, the expert testified that Lyon had written both: 1) a high mileage figure of 79,530 miles on a Dealer Jacket when Discount purchased the vehicle, and 2) the low mileage figure of 51,784 miles on the duplicate Texas Certificate of Title, which Discount provided to Arizona Checker Sales and which Arizona Checker Sales provided to the Arizona Department of Transportation. Also, in a fax to Holshouser, Lyon represented that the mileage on another vehicle was 30,100 miles, whereas the Dealer Jacket for the same vehicle states in Lyon's writing that the car has 70,550 miles.

Viewing the evidence in the light most favorable to the Government, the evidence shows that Hubbard purchased the vehicles with high mileage, rolled back the odometers, and then Hubbard and Lyon offered them for sale at a lower mileage. Lyon represented to Holshouser that the low mileage figures were accurate, and certified those low-mileage figures on title documents. Lyon input vehicle information into the company computer, and was in charge of maintaining...