U.S. v. Parziale, 91-4030

• Decision Date: 31 October 1991
• Docket Number: No. 91-4030,91-4030
• Citation: 947 F.2d 123
• Parties: 34 Fed. R. Evid. Serv. 1312 UNITED STATES of America, Plaintiff-Appellee, v. David Michael PARZIALE, a/k/a Michael Thomas Barheimer, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 123

947 F.2d 123

34 Fed. R. Evid. Serv. 1312

UNITED STATES of America, Plaintiff-Appellee, v. David Michael PARZIALE, a/k/a Michael Thomas Barheimer,

Defendant-Appellant.

No. 91-4030.

United States Court of Appeals, Fifth Circuit.

Oct. 31, 1991.

Dominick M. Tamburo, III, New Orleans, La. (court appointed), for defendant-appellant.

Josette L. Cassiere, Robert W. Gillespie, Jr., Asst. U.S. Attys., Joseph S. Cage, Jr. Appeal from the United States District Court for the Western District of Louisiana.

U.S. Atty., Shreveport, La., for plaintiff-appellee.

Before THORNBERRY, DAVIS, and WIENER Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant David Michael Parziale appeals his conviction on one count of conspiracy to import marijuana, one count of attempting to import marijuana, and two counts of transporting a stolen aircraft in interstate commerce. Finding no reversible error, we affirm.

I. FACTS

Parziale and two other men, Ronald Mertens and Randall Davis, plotted to smuggle marijuana from Jamaica into Louisiana. Mertens and Davis agreed to put up the money for the marijuana purchase and Parziale agreed to fly an aircraft to Jamaica, pick up the marijuana and fly back to Louisiana with the marijuana on board.

Mertens testified that in June of 1986, he and Parziale drove to Kissimmee, Florida, and attempted on two separate occasions to steal an amphibious aircraft. They aborted their attempts to steal the aircraft when they were unable to start it.

Approximately six months later, Mertens and Parziale arranged an offloading site in central Louisiana for the delivery of the Jamaican marijuana. Davis had already purchased aviation fuel and placed it in a secluded area near Bayou Boeuf in Rapides Parish, Louisiana.

A Lake Renegade 250 amphibious aircraft bearing registration number N14034 (the "plane" or the "aircraft"), was stolen from Florida Lake Aircraft Corporation in Kissimmee, Florida. ¹

On December 22, 1986, Parziale landed an amphibious aircraft in Bayou Boeuf, Louisiana. Mertens met Parziale there and they refueled the aircraft with the fuel that Davis had hidden. Parziale then flew the plane the short distance from Bayou Boeuf to the Lake Buhlaw Airport in Pineville, Rapides Parish, Louisiana. Mertens met Parziale at the Lake Buhlaw Airport and drove him to the Plantation Manor Hotel where Parziale registered as Michael Barheimer and spent the night.

The next day, Mertens drove Parziale back to the Lake Buhlaw Airport. The airport refueling records show that an aircraft, tail number N14034, received fuel on December 23, 1986. According to Mertens, he was told by Parziale that he would return to Bayou Boeuf with the Jamaican marijuana on December 25, 1986. Parziale left the Lake Buhlaw airport on December 23 flying a Lake Renegade 250. He landed a Lake Renegade 250, tail number N14034, in Montego Bay at approximately 4:00 P.M. on December 24, 1986. On December 25, 1986, Parziale filed a flight plan ² and took off from Montego Bay in the Lake Renegade 250. Shortly thereafter his plane crashed into the sea. Parziale was rescued and admitted to a Jamaican hospital. The plane sank with its contents and was never recovered.

II.

PROCEEDINGS

Parziale was indicted on four counts: one of conspiracy to import marijuana into the United States in violation of 21 U.S.C. §§ 952(a) and 963; two of interstate transportation of a stolen aircraft in violation of 18 U.S.C. § 2314; and one of attempted importation of four hundred pounds of marijuana in violation of 21 U.S.C. §§ 952(a) and 963. He pled not guilty to all

                counts, was tried before a jury, and was found guilty on all four counts.   On each of Counts I, II, and III, Parziale was sentenced to a four year term of imprisonment, the sentences to run concurrently.   On Count IV, he was sentenced to four years suspended imprisonment and five years of supervised release to follow his release from prison.   The district court entered judgment, and Parziale timely appealed
                

III. DISCUSSION

A. Parziale was charged under the correct statute

Counts II and III of the indictment charged Parziale with transporting a stolen aircraft in interstate commerce in violation of 18 U.S.C. § 2314. This section provides in pertinent part that

Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud ... [s]hall be fined not more than $10,000 or imprisoned not more than ten years, or both.

Parziale contends that the government cannot properly charge him under § 2314 because 18 U.S.C. § 2312 specifically prohibits the interstate transportation of stolen aircraft. ³ Section § 2312 reads:

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.

The government asserts that the existence of an alternate, more narrow statutory violation does not preclude prosecution under the general, more broad, statute. We agree.

This is an issue of first impression in our circuit, but we are instructed by other circuits that have dealt with similar issues. In United States v. Grenagle ⁴ the defendant had stolen a van containing cash, cartons of cigarettes, and cases of canned drinks and food. He was convicted of both the interstate transportation of a stolen motor vehicle in violation of § 2312 and the interstate transportation of stolen goods in violation of § 2314. The goods were worth only $3,824.90. Because § 2314 applies to the interstate transportation of stolen goods worth more than $5,000, the facts would not support a conviction under § 2314 unless the value of the van was aggregated with the value of its contents. Although the Court of Appeals for the Fourth Circuit reversed the conviction under § 2314, it wrote that:

Doubtless, the government had a choice. It could have prosecuted this defendant under either section. If it chose § 2314, the value of the van could have been considered in a determination that the value of the transported goods exceeded $5,000. Having prosecuted him under § 2312 for the transportation of the van, however, his conviction under § 2314 may not stand when consideration of the value of the van was essential to that prosecution and conviction. ⁵

Thus, the court reasoned that the government could have prosecuted the defendant under either § 2312 or § 2314 but could not convict him for violating both when the van itself was essential to each conviction.

In United States v. Ogden, ⁶ the First Circuit held that § 2312 and § 2314 are "overlapping and not mutually exclusive." ⁷ In Ogden the court found that the defendant could be prosecuted under § 2314 when the defendant obtained parts from a stolen motor vehicle and combined them with other parts to make a different vehicle. The court wrote that notwithstanding We also note that at least one court has prosecuted a defendant for interstate transportation of a stolen aircraft under § 2314 when § 2312 was also available. ⁹

                the difference in the penalties, "the prosecutor can properly focus on the stolen parts rather than the motor vehicle." 8  Although the facts in Ogden differ from those in the instant case, the First Circuit clearly found that the existence of the provision that applies specifically to motor vehicles and aircraft does not prohibit the prosecution of violations involving such properties under the broader section.
                

We agree with the First and the Fourth Circuits that the government is not prohibited from charging a defendant under a broad statute simply because a narrower statute is applicable and available. ¹⁰ Parziale could have been charged under either § 2312 or § 2314. He was sentenced to no more than four years in prison, a term within the limits of both § 2312 and § 2314. Charging and prosecuting him under the broader section, § 2314, was not error.

B. The evidence was sufficient to sustain a verdict

When reviewing the sufficiency of the evidence, we consider whether "a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt." ¹¹ We must "view the evidence and all reasonable inferences that may be drawn from the evidence in a light most favorable to the government." ¹² This standard is the same for both direct and circumstantial evidence. ¹³

The elements of the offenses charged in Counts II and III are: (a) that the defendants transported a stolen aircraft in interstate or foreign commerce; (b) that the defendants knew the aircraft was stolen; and (c) that the aircraft was worth $5,000 or more.

Parziale maintains that the government failed to prove that he transported a stolen plane in interstate commerce or that he knew that the plane was stolen. Parziale claims that, at most, the government proved that the Lake Renegade 250 and the defendant were in the same area of Louisiana at the same time. His argument is specious. Although "the mere presence of an individual in the vicinity of stolen goods is not sufficient in itself to support a conviction," ¹⁴ the evidence shows considerably more than Parziale's mere presence in the vicinity of the stolen plane.

At trial, the government produced evidence that links Parziale to the plane both in Louisiana and in Jamaica. The Lake Buhlaw Airport refueling records show that a plane with the tail number N14034 was refueled there on December 23, 1986. Parziale's co-conspirator, Mertens, testified that Parziale left the Lake Buhlaw Airport on December 23, 1986, in a plane that looked similar to the plane reported stolen from Kissimmee, Florida. Furthermore, the air traffic controller at Montego Bay, Jamaica identified Parziale as the pilot who arrived in and departed from Montego Bay in the plane bearing tail number N14034.

Mertens' testimony that he and Parziale attempted to steal a similar...