U.S. v. Mackay, 93-1406

• Decision Date: 20 September 1994
• Docket Number: No. 93-1406,93-1406
• Citation: 33 F.3d 489
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jamie Reay MACKAY, a/k/a Kevin Neil Carpenter, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 489

33 F.3d 489

UNITED STATES of America, Plaintiff-Appellee, v. Jamie Reay MACKAY, a/k/a Kevin Neil Carpenter, Defendant-Appellant.

No. 93-1406.

United States Court of Appeals Fifth Circuit.

Sept. 20, 1994.

Timothy Crooks, Asst. Federal Public Defender, Fort Worth, TX, Ira Kirkendoll, Federal Public Defender, Susan Bronstein Dunleavy, Asst. Federal Public Defender, Dallas, TX, for appellant.

Michael J. Uhl, Asst. U.S. Atty., Richard H. Stephens, U.S. Atty., Dallas, TX, for appellee.

Appeal from the United States District Court For the Northern District of Texas.

Before WIENER, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant Jamie R. Mackay appeals his conviction for (1) conspiracy to transport stolen goods interstate, in violation of 18 U.S.C. Sec. 371 (1988); and (2) knowing transportation of stolen goods interstate, in violation of 18 U.S.C. Sec. 2314 (1988). We reverse Mackay's conviction on the conspiracy count for lack of sufficient evidence and affirm his conviction for interstate transportation of stolen goods.

I

In early June of 1991, Mackay transported a 580 Super E backhoe from Missouri to Dallas, where he hoped to sell it for $16,500. Before arriving in Dallas, he called a former college roommate who lived in East Dallas named Daniel Lyon and asked if he knew anyone who might be interested in buying the backhoe. He then called again a few days later to ask if he could use the Lyons' phone number for a classified advertisement he planned to run in a Dallas newspaper. When Lyons told Mackay that he did not think it would be a good idea to use their number (because his wife was in the midst of a difficult pregnancy), Mackay revealed that he had in fact already placed the advertisement in the Dallas Morning News earlier that day.

Mackay arrived in Dallas in a pickup truck with the backhoe on a trailer and called Lyons, who met him at a fast-food restaurant. Mackay was accompanied by a man whom he introduced as "Kevin." Lyons asked Mackay if he owned the backhoe, and Mackay told him he did. Lyons then led Mackay and "Kevin" from the restaurant to the Lyons' home. Mackay and his companion later left to find a motel and a storage area for the backhoe.

Two days later, Mackay called the Shurgard Storage Center in Irving, Texas to inquire about renting space for his backhoe and trailer. Mackay and an unidentified man arrived at the storage facility about an hour later with the backhoe. The two men unhitched the trailer and parked the backhoe and trailer in two separate spaces. They then went to the office to complete the necessary paperwork, and Mackay leased the spaces under the name "Kevin Carpenter," presenting a Florida driver's license as identification.

Mackay also asked the rental facility manager to let people in to see the backhoe. The manager agreed, provided they came during business hours and Mackay called to notify him first. Pursuant to their agreement, Mackay called a couple of times, and the manager allowed people to see the backhoe.

Tony Foreman, a used construction equipment dealer, was among the prospective buyers who came to see the backhoe. The circumstances of the backhoe's sale and his inspection of the backhoe's identification number plates led Foreman to believe the backhoe was stolen, so he called Bruce Tabor, a lieutenant with the Texas Department of Public Safety Motor Vehicle Theft Service. Tabor traced the backhoe's identification numbers to Bill Cole in Missouri. ¹ Tabor called Cole, who told him he still owned the backhoe, but that it should have been on a jobsite in Tennessee. ²

Based on his conversation with Cole, Tabor impounded the backhoe. He also called the number listed in Mackay's classified ad. The woman who answered gave him a telephone number and extension for "Jamie," which a dispatcher then traced to Mackay's motel. When Tabor went to the motel room, he discovered that the occupants of the room had already checked out. In the room's trash can, he found a room receipt for "Kevin Carpenter, 328 North Cedar in Nevada, Missouri."

About this time, Mackay called Lyons to inquire whether anyone had called about the backhoe. During this conversation, Mackay told Lyons the backhoe was missing, saying: "It's gone and just don't say any more about [it]." Mackay also said, "Yeah, somebody's playing games with us down here."

Several days later, Cole called Tabor and told him that he had located his backhoe and that the identification plates were intact. The police then investigated the impounded backhoe more closely and discovered the original identification numbers, which they traced to Lester Marlatt. Marlatt's 580 Super E backhoe had been stolen from Raytown, Missouri two months earlier.

Mackay was indicted for conspiracy to transport stolen goods interstate, in violation of 18 U.S.C. Sec. 371, and knowing transportation of stolen goods interstate, in violation of 18 U.S.C. Sec. 2314. Following a jury trial, Mackay was convicted on both counts. The district court sentenced him to a term of imprisonment of 21 months and two concurrent 3-year terms of supervised release.

Mackay appeals his conviction, contending that (1) the evidence was insufficient to support his conviction for conspiracy to transport stolen goods; (2) the prosecutor impermissibly commented in his closing argument on Mackay's failure to testify; and (3) the district court erred in assessing a two-level increase in Mackay's sentence for being "a person in the business of receiving and selling stolen property." ³

II

A

Mackay challenges the sufficiency of the evidence to sustain his conviction for conspiracy to transport the stolen backhoe. He claims that the evidence at trial was insufficient to prove an agreement by two or more individuals to knowingly transport stolen goods interstate. We view the evidence in the light most favorable to the jury verdict and will affirm "if a rational trier of fact could have found that the government proved all essential elements of the crime beyond a reasonable doubt." United States v. Castro, 15 F.3d 417, 419 (5th Cir.1994). If, on the other hand, "the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, the conviction should be reversed." United States v. Pennington, 20 F.3d 593, 597 (5th Cir.1994).

"A conviction for conspiracy under 18 U.S.C. Sec. 371 requires that the government prove beyond a reasonable doubt 1) an agreement between two or more persons, 2) to commit a crime against the United States, and 3) an overt act committed by one of the conspirators in furtherance of the agreement." United States v. Schmick, 904 F.2d 936, 941 (5th Cir.1990) (citations omitted), cert. denied, 498 U.S. 1067, 111 S.Ct. 782, 112 L.Ed.2d 845 (1991). "The government must prove beyond a reasonable doubt that the defendant knew of the conspiracy and that he voluntarily became a part of it." United States v. Yamin, 868 F.2d 130, 133 (5th Cir.), cert. denied, 492 U.S. 924, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989). While the government may prove the existence of a conspiracy through circumstantial evidence, and the agreement need not be formal or spoken, United States v. Williams-Hendricks, 805 F.2d 496, 502 (5th Cir.1986), it "must do more than 'pile inference upon inference upon which to base a conspiracy charge.' " Id. (quoting United States v. Sheikh, 654 F.2d 1057, 1063 (5th Cir.1981), overruled on other grounds, United States v. Zuniga-Salinas, 952 F.2d 876 (5th Cir.1992)).

The record must contain sufficient evidence that Mackay conspired with someone to transport stolen goods in violation of 18 U.S.C. Sec. 2314. A violation of Sec. 2314 requires the prosecution to show that (1) the defendant transported stolen goods in interstate commerce; (2) the defendant knew the goods were stolen; and (3) the goods were worth more than $5,000. United States v. Parziale, 947 F.2d 123, 127 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1499, 117 L.Ed.2d 638 (1992).

The evidence at trial, viewed in the light most favorable to the verdict, fails to support the reasonable inference of even a tacit agreement between Mackay and anyone else to knowingly transport the stolen backhoe to Texas. Although Mackay's conspiracy conviction does not depend on the identification of his co-conspirators for its validity, see, e.g., United States v. Winn, 948 F.2d 145, 157 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1599, 118 L.Ed.2d 313 (1992), to convict Mackay of conspiring with unknown persons, the evidence must support "the proposition that such a co-conspirator did exist and that the defendant did conspire with him." United States v. Moree, 897 F.2d 1329, 1332 (5th Cir.1990) (quoting United States v. Pruett, 551 F.2d 1365, 1369 (5th Cir.1977)).

The evidence suggests three possible co-conspirators: Mackay's unidentified companion, Michael Duncan, and Bill Cole. The most likely of the three is Mackay's unidentified companion. The evidence shows that this individual: ⁴ (1) travelled to Texas with Mackay, (2) was present when Mackay introduced him to the Lyons as "Kevin," (3) helped unload the backhoe at the storage facility, and (4) was present in the room when Mackay used a false driver's license to rent storage space under the alias "Kevin Carpenter." These facts establish an association between Mackay and his companion during their trip to Texas, but to sustain a conspiracy conviction, they must also prove an agreement to commit a crime. See United States v. Grassi, 616 F.2d 1295, 1301 (5th Cir.) ("[O]ne does not become a coconspirator simply by virtue of knowledge of a conspiracy and association with conspirators. The essence of a conspiracy is the agreement to engage in concerted unlawful activity." (citations omitted)), cert. denied, 449 U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 220 (1980).

The government argues...