U.S. v. Patterson, 91-1377

• Decision Date: 21 May 1992
• Docket Number: No. 91-1377,91-1377
• Citation: 962 F.2d 409
• Parties: UNITED STATES of America, Plaintiff-Appellee Cross-Appellant, v. Bruce PATTERSON, Defendant-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 409

962 F.2d 409

UNITED STATES of America, Plaintiff-Appellee Cross-Appellant, v. Bruce PATTERSON, Defendant-Appellant Cross-Appellee.

No. 91-1377.

United States Court of Appeals Fifth Circuit.

May 21, 1992.

David G. Hill, Maurie L. White, Oxford, Miss., for defendant-appellant cross-appellee.

Thomas W. Dawson, Paul D. Roberts, Asst. U.S. Attys., Robert Q. Whitwell, U.S. Atty., Oxford, Miss., for plaintiff-appellee cross-appellant.

Appeals from the United States District Court for the Northern District of Mississippi.

Before KING, JOHNSON, and DAVIS, Circuit Judges.

JOHNSON, Circuit Judge:

Bruce Patterson was convicted by a jury on seven counts of illegal activities involving stolen vehicles. He appeals, contending that the evidence was insufficient as to four of the counts and that the district court erred in sentencing him. The Government cross-appeals, also raising an issue involving the federal sentencing guidelines.

I. Facts and Procedural History

As the result of an undercover sting operation, Bruce Patterson was arrested and indicted on seven counts of illegal activities involving stolen motor vehicles. Count 1 alleged that Bruce Patterson had entered into a continuing conspiracy with his brother Robert Patterson to receive stolen vehicles in interstate commerce, to alter or remove vehicle identification numbers (VINs), to buy and sell motor vehicles and parts knowing the VINs had been removed or altered, and to obtain money by false pretenses, all in violation of 18 U.S.C. §§ 371, 511, 659, 1341, 1343, 2313, and 2321.

Count 2 alleged that Robert and Bruce Patterson, aiding and abetting each other in violation of 18 U.S.C. §§ 2 and 511, had altered or removed the VIN on a 1986 Chevrolet Silverado that had been stolen in the fall of 1987. This vehicle was recovered by police during a search of an automobile workshop owned by Robert Patterson. ¹

Count 3 charged the Pattersons with possession of goods stolen while part of an interstate shipment, in violation of 18 U.S.C. § 659. In particular, the Pattersons were charged with possession of a red Mack truck which had been stolen in October 1987 while being shipped from Pennsylvania to Texas. This truck was found concealed in Robert Patterson's barn. ²

Count 4 also charged a violation 18 U.S.C. § 659, possession of goods stolen while part of an interstate shipment--namely, a white Mack truck which also was stolen in October 1987 while being shipped from Pennsylvania to Texas. This truck was recovered when Bruce Patterson caused it to be delivered from a storage facility that he had leased to an undercover informant.

Count 5 alleged that Bruce Patterson, aided and abetted by his brother, had violated 18 U.S.C. §§ 2 and 511 by altering or removing the VIN of a 1986 CJ-7 Jeep which had been stolen in May 1988.

Count 6 charged the Pattersons with receiving and possessing a 1981 Chevrolet dual wheel truck which had been stolen in Arkansas in February 1989 and then transported across state lines, a violation of 18 U.S.C. §§ 2 and 2113. This vehicle was recovered during the search of Robert Patterson's workshop.

Finally, Count 7 alleged a violation of 18 U.S.C. §§ 2 and 511, in that the Pattersons had altered or removed the VIN of a 1987 Silverado pickup truck which was stolen by Robert Patterson with the collusion of the owner of the truck. This vehicle was also recovered during the search of Robert Patterson's workshop.

A jury convicted Bruce Patterson on all seven counts. He was sentenced to 40 months in prison on each of the counts, all of the sentences to be served concurrently. Although the district court did not impose a fine, it did order Patterson to pay a $350 special assessment and to make restitution to his victims. On appeal, Patterson does not contest the validity of his convictions on counts 1, 4, and 5. He concedes that the evidence was sufficient as to each of those. He argues, however, that the evidence was not sufficient to convict him on counts 2, 3, 6, and 7. Further, he contends that the district court erred in calculating his sentence under the federal sentencing guidelines. The Government has cross-appealed, raising an issue of its own with respect to the calculation of Patterson's sentence.

II. Discussion

A. Sufficiency of the Evidence Against Bruce Patterson

Given the variety of illegal activities alleged in the indictment, it is helpful to begin by narrowing the evidentiary issues before the Court. First, as noted above, Patterson concedes that the evidence was sufficient to convict him on counts 1, 4, and 5. Second, on those counts which Patterson does challenge his convictions--counts 2, 3, 6, and 7--it is important to recognize that there is no evidence in the record that Bruce Patterson personally participated in stealing those vehicles, transporting them across state lines, or altering their VINs. Additionally, it must be noted that the vehicle involved in count 3 was seized in Robert Patterson's barn, and there is no suggestion that Bruce Patterson owned or controlled that barn. Similarly, the vehicles involved in counts 2, 6, and 7 were all seized at the workshop owned by Robert Patterson. The Government contends, and Bruce Patterson disputes, that Bruce also owned or controlled that shop. Indeed, the Government repeatedly characterizes that shop as "the Patterson shop," implying that it belonged to both Bruce and Robert. Unfortunately for the Government, however, the evidence does not appear to be sufficient to support such an implication.

The testimony about the disputed workshop showed 1) that ten to twelve years before the criminal activity alleged in the indictment, Robert and Bruce, along with other members of the community, had both contributed material and labor to the building of the shop; 2) that the shop was used by several members of the surrounding community in the early 1980s to work on farm equipment; 3) that Bruce had a separate shop of his own, on his own land, near his own house, where he works on his own equipment; and 4) that the shop in question is generally known in the community as Robert's shop. In addition, the investigating officers testified that they had no knowledge that Bruce owned or controlled the shop. One witness--a local wildlife conservation officer--testified that he had seen Bruce at the shop on one occasion sometime in the last few years. On that occasion Bruce and Robert were working on a piece of farm equipment outside the shop. The shop was closed, and there were no other vehicles in sight. In sum, the only evidence to suggest that Bruce Patterson owned or controlled the shop was that he had helped to build it ten or twelve years before and that he had been seen there once in the last few years. This evidence is plainly insufficient--despite the deferential standard of review ³--to support a finding that Bruce Patterson exercised any continuing dominion or control over the workshop where the vehicles were seized.

Perhaps because the evidence linking Bruce Patterson to his brother's shop was so attenuated, at trial the Government argued that Bruce Patterson should be held liable on counts 2, 3, 6, and 7 on two other theories: either 1) that Bruce be held directly liable for the acts alleged in those counts because, although it was his brother who had actually engaged in the illegal activity, Bruce had aided and abetted his brother in that activity, or, 2) that Bruce should be held vicariously liable for the acts of his brother, because he and his brother had entered a conspiracy and the acts were undertaken by his brother in furtherance of that conspiracy. Bruce disputes both theories. On appeal the Government pursues only the second theory--apparently, it has abandoned the aiding and abetting theory. Thus, the precise question before the Court is whether Bruce can be held liable on counts 2, 3, 6, and 7 on the grounds that the illegal activity alleged in those counts was undertaken in furtherance of a conspiracy which Bruce had joined.

Bruce concedes that the evidence was sufficient to convict him of conspiring with his brother. He contends, however, that his vicarious liability for the acts of his brother extends only as far as the conspiracy itself, and that the acts alleged in counts 2, 3, 6, and 7 were no part of the conspiracy between Bruce and his brother. Bruce is certainly correct on the first point. A conspirator is liable only for those actions of his co-conspirators which are taken in furtherance of the conspiracy and which are within the scope of the illegal agreement. Once a defendant has been found to be a member of a conspiracy,

he can also be convicted of [a] substantive offense based upon acts committed by a co-conspirator in furtherance of the conspiracy as long as the acts fall within the scope of the conspiracy and could reasonably be foreseen as a necessary or natural consequence of the unlawful agreement.

United States v. Tilton, 610 F.2d 302, 309 (5th Cir.1980). Thus, the question becomes whether the acts alleged in counts 2, 3, 6, and 7 were within the scope of the conspiracy between Bruce and Robert.

The Government argues--and count 1 of the indictment charges--that Bruce and Robert were partners in an on-going scheme, from September 1987 through May 1990, to acquire, alter, and resell stolen vehicles and parts, and that the activities alleged in counts 2, 3, 6, and 7 were part of that enterprise. Bruce argues that no such continuing conspiracy existed and that he had absolutely nothing to do with the vehicles involved in counts 2, 3, 6, and 7. At most, he argues, the Government proved that he and his brother entered a limited, discrete conspiracy to alter and sell the white Mack truck identified in count 4. Having reviewed the record, this Court concludes that the evidence, viewed in the light most favorable to the Government, was sufficient to support an inference that Robert and Bruce Patterson had been engaged in an on-going...