U.S. v. Kapp

• Decision Date: 01 April 1986
• Docket Number: No. 84-3764,84-3764
• Citation: 781 F.2d 1008
• Parties: 19 Fed. R. Evid. Serv. 1710 The UNITED STATES v. Shirl F. KAPP, Ronald Klinger, Robert Lewis, Robert Miller and Paul Briggs. Appeal of Paul BRIGGS.
• Court: U.S. Court of Appeals — Third Circuit

Page 1008

781 F.2d 1008

19 Fed. R. Evid. Serv. 1710

The UNITED STATES v. Shirl F. KAPP, Ronald Klinger, Robert Lewis, Robert Miller and Paul Briggs Appeal of Paul BRIGGS.

No. 84-3764.

United States Court of Appeals Third Circuit.

Argued Nov. 19, 1985.

Decided Jan. 27, 1986.

Certiorari Denied Feb. 24, 1986.

See 106 S.Ct. 1220.

Rehearing Denied April 1, 1986.

J. Alan Johnson, U.S. Atty., Paul Brysh (argued), Asst. U.S. Atty., Pittsburgh, Pa., for appellee.

William J. Stepanek, Chardon, Ohio, Edward Heffernan (argued), Cleveland, Ohio, for appellant.

Before HIGGINBOTHAM, SLOVITER and MANSMANN, Circuit Judges.

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this appeal we are asked to examine the sufficiency of the evidence supporting jury verdicts of guilty of conspiracy to transport stolen motor vehicles in interstate commerce in violation of 18 U.S.C. Secs. 371 and 2312 and of receiving a stolen motor vehicle in violation of 18 U.S.C. Sec. 2313. We have reviewed the evidence in the light most favorable to the prosecution and have determined that the evidence in this admittedly sparse record is sufficient to sustain the verdicts. As well, we have examined the allegations of error and find that the trial judge correctly applied the law and did not abuse his discretion. Accordingly, we will affirm the judgment of sentence.

In a multi-count, multi-defendant indictment, defendant Paul Briggs was charged with one count of conspiracy to transport stolen motor vehicles in interstate commerce in violation of 18 U.S.C. Secs. 371 and 2312 (Count I) and with one count of receiving a stolen motor vehicle in violation of 18 U.S.C. Sec. 2313 (Count 10). Three of the five defendants pleaded guilty and Briggs and co-defendant Ronald Klinger were tried before a jury. The jury found Briggs guilty on both counts.

In essence, the facts of this particular case involve the alleged conspiratorial acts of John Gillum, Shirl Kapp and defendant Briggs as they relate to the interstate transportation of a stolen 1978 International tractor truck.

II.

Briggs challenges the sufficiency of the evidence on two grounds. In reviewing both claims, we must determine whether there is substantial evidence, when viewed in the light most favorable to the government, to uphold the jury's verdict. United States v. Adams, 759 F.2d 1099, 1113 (3d Cir.1985). We find the evidence sufficient in this regard as to both claims.

A.

Briggs first argues that the single sale of the International truck to him was insufficient to make him a member of the conspiracy to transport vehicles in interstate commerce. He asserts that at best the government's proof establishes that he was merely a buyer and not a conspirator to transport the vehicle in interstate commerce.

We begin with the essence of criminal conspiracy which is an agreement, either explicit or implicit, to commit an unlawful act, combined with intent to commit an unlawful act, combined with intent to commit the underlying offense. United States v. Inadi, 748 F.2d 812, 817 (3d Cir.1984), cert. granted, --- U.S. ----, 105 S.Ct. 2653, 86 L.Ed.2d 271 (1985); United States v. Wander, 601 F.2d 1251 (3d Cir.1979). The underlying offense involved here is the transportation of stolen vehicles in interstate commerce. In pertinent part 18 U.S.C. Sec. 2312 provides:

Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years or both.

While the government must establish the elements of conspiracy beyond a reasonable doubt, this can be done entirely through circumstantial evidence. Inadi, supra at 817. Moreover, the existence of a conspiracy can be inferred "from evidence of related facts and circumstances from which it appears as a reasonable and logical inference, that the activities of the participants ... could not have been carried on except as the result of a preconceived scheme or common understanding." United States v. Ellis, 595 F.3d 154, 160 (3d Cir.1979), cert. denied, 444 U.S. 838, 100 S.Ct. 75, 62 L.Ed.2d 49 (1979).

We note, however, that the relationship of a buyer and seller, standing alone, without any prior or contemporaneous understanding beyond the mere sales agreement, does not establish conspiracy to transport stolen goods even though the parties know of the stolen nature of the goods. Under these circumstances, there is no joint objective to commit the underlying offense charged here, for the buyer's purpose is to buy and the seller's is to sell. United States v. Mancillas, 580 F.2d 1301, 1307 (7th Cir.1978), cert. denied, 439 U.S. 958, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978).

Such is not the case before us. The evidence, when viewed as we must in the light most favorable to the government, substantiates circumstances from which Briggs' active participation in the conspiracy to transport stolen motor vehicles in interstate commerce could be inferred. The evidence proves that there is more than a mere sales agreement involved in this case.

At trial the evidence established that co-conspirator John Gillum and another co-conspirator, Shirl Kapp stole a 1978 International tractor truck in Indiana. Kapp and his wife, Sandra Kapp drove the truck to their residence in Shippenville, Pennsylvania. The truck had no certificate of title or documentary registration. Kapp approached Briggs for this paperwork necessary to operate the truck, telling Briggs that the truck was the product of an insurance scam and the owner "did not want it to turn up again." Briggs provided the fraudulent documents and Kapp made use of the vehicle for several months to haul coal.

Subsequently, Kapp and Gillum sold the International truck to Briggs for $5,000.00 in cash. Gillum specifically told Briggs that the vehicle was stolen and was lacking the legitimate paperwork necessary to operate the truck. Briggs responded by saying: "I've got the paperwork."

Although Briggs initially supplied the fraudulent paperwork to Kapp which would allow the truck to be operated within the state or interstate, this alone is not sufficient to link him to the conspiracy, for given the testimony it is uncertain that he knew the truck was stolen at this point in time; the requisite knowledge is missing at this stage. ¹ Rather, it is his providing of the fraudulent paperwork the second time for what he then knew was a stolen vehicle that implicates him in the conspiracy.

Gillum testified that Briggs was informed at the time of the sale of the truck to him that it was a stolen vehicle which did not possess the legitimate certificate of title or documentary registration. To this Briggs affirmatively responded: "I've got the paperwork." When he agreed to supply the paperwork the second time, he knew that the vehicle was stolen. Moreover, he knew that Gillum and Kapp were involved in an unlawful venture which could not meet success (i.e., operating the vehicle in interstate commerce) unless paperwork was produced. By supplying fraudulent certificates of title and registration papers Briggs not only implicitly agreed to participate in the unlawful act but also exhibited the intent to commit the underlying offense. The supplying of the paperwork essential to the conspiracy goes beyond the mere sales agreement and supports the jury's determination that Briggs was a participant in the conspiracy to transport stolen vehicles in interstate commerce. That Briggs is the buyer is immaterial; that he supplied essential paperwork is critical. Accordingly, this sufficiency claim fails.

B.

Briggs next contends that the government did not introduce sufficient evidence of the interstate character of the 1978 International truck to support his conviction for receiving a stolen motor vehicle in interstate commerce. He argues that by the time he purchased the truck it had lost its interstate character.

The question of whether stolen goods transported in interstate commerce retain their interstate character is a question of fact for the jury, Powell v. United States, 410 F.2d 710, 712 (5th Cir.1969), which is "based on common sense and administered on an ad hoc basis." United States v. Garber, 626 F.2d 1144, 1147 (3d Cir.1980), cert. denied, 449 U.S. 1079, 101 S.Ct. 860, 66 L.Ed.2d 802 (1981). The interstate character of a vehicle does not necessarily end when its interstate transportation ends. Powell, 410 F.2d at 713. The latter determination depends on important factors such as the lapse of time after the interstate transport and what is done with the vehicle after the transport. Id. at 713. At this juncture, we must again view the evidence in the light most favorable to the government to determine whether there was substantial evidence connecting the vehicle to interstate commerce. Id. at 712.

Gillum testified that both he and Kapp stole the truck in Indiana. Kapp testified, however, that he received the truck from Gillum in Indiana, and although he did not know the truck was stolen at that time, he knew it was undocumented. Kapp further testified that he and his wife drove the truck to Pennsylvania. Kapp then obtained false documentation for the truck from Briggs and used the truck to haul coal within Pennsylvania for three or four months before it was sold to Briggs for $5,000.

Briggs contends that he is "once removed" from the theft in interstate commerce because Kapp did not know that the vehicle was stolen. The jury, however, apparently believed Gillum's testimony that Kapp knew it was stolen.

Both Kapp and Gillum testified that Kapp used the 1978 International truck as a "loaner" while Gillum was repairing another truck for Kapp. Thus, the fact that Kapp hauled coal with the truck for three or four months does not necessarily eliminate the interstate character of the truck, since the jury could have found that the stolen vehicle had not yet come to rest until it was sold to Briggs. This second...