U.S. v. Petit

• Decision Date: 11 April 1988
• Docket Number: No. 86-5945,86-5945
• Citation: 841 F.2d 1546
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Angel PETIT, Roger Fernandez, Francisco Pasqual, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1546

841 F.2d 1546

UNITED STATES of America, Plaintiff-Appellee, v. Angel PETIT, Roger Fernandez, Francisco Pasqual,

Defendants-Appellants.

No. 86-5945.

United States Court of Appeals, Eleventh Circuit.

April 11, 1988.

Ana-Maria Carnesoltas, P.A., Coral Gables, Fla., for Petit.

Pedro R. Echarte, Jr., Miami, Fla., Thomas Martin Pflaum, Simon Schindler Hurst Sandberg, P.A., for Fernandez.

Stephen H. Rosen, P.A., Coral Gables, Fla., for Pasqual.

Leon B. Kellner, U.S. Atty., Miami, Fla., Jeffrey B. Crockett, Andrea M. Simonton, Linda Collins Hertz, Asst. U.S. Atty., for U.S.

Appeals from the United States District Court for the Southern District of Florida.

Before KRAVITCH and CLARK, Circuit Judges, and ESCHBACH ^*, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

In this sting operation, the government obtained the permission of a carrier of electronic equipment to use the equipment while it was en route to its purchaser. As a result of their efforts to purchase the equipment, Roger Fernandez, Francisco Pasqual, and Angel Petit were convicted of conspiracy to possess stolen goods, in violation of 18 U.S.C. Sec. 371. ¹ Five issues are presented on their appeal: (1) whether appellants were properly convicted of conspiring to receive and possess goods "stolen" from interstate commerce; (2) whether the goods were in "interstate commerce" at the time of the sting operation; (3) whether the trial court should have granted a continuance after the superseding indictment was issued; (4) whether the admission of Pasqual's post-arrest statements violated Petit's right to cross-examine witnesses; and (5) whether the evidence was sufficient to sustain Petit's conviction.

I.

Carlos Devarone, a detective with the Hialeah, Florida Police Department, set up several sting operations to target fences of stolen goods. A confidential informant had given Devarone the names of possible fences, including that of appellant Roger Fernandez. Devarone, acting undercover, and accompanied by the informant, met with Fernandez on July 18, 1986. Devarone testified that Fernandez initially was interested in buying the two television sets that Devarone had brought to the meeting, but was advised that they were for Devarone's personal use. The informant told Fernandez, however, that he and Devarone had a tractor-trailer full of similar electronic equipment to sell. Devarone testified that he told Fernandez that the property was stolen and that it was coming from "up north." According to Devarone, Fernandez agreed to purchase the stolen equipment for $94,000, although its actual value would be much higher, and the parties set a delivery date for the following week.

Ten days later, Devarone, wearing a concealed tape recorder, and the informant arrived at Fernandez's place of business, accompanied by an undercover Metro-Dade police officer driving a North American Van Lines tractor-trailer load of Magnavox and Sylvania television sets, video cassette recorders, stereo radio cassette recorders, and clock radios. The electronic equipment, which had been shipped from Tennessee, had not yet been delivered to its Miami purchasers, ² and was used in the sting operation with the consent of its carrier. Fernandez was present when the loaded truck arrived, as were codefendants Emerio Delgado and Jaime Villeda, two of Fernandez's employees. Appellant Pasqual arrived shortly thereafter. After some confusion about where the equipment was to be unloaded and stored, Pasqual called appellant Petit and obtained permission to use "A-1 Auto Repairs," located in a small warehouse. When the tractor-trailer arrived there, the warehouse had been almost entirely cleared of cars. At Pasqual's request, Petit, a mechanic at the warehouse, moved the two remaining cars outside. Pasqual also asked the other defendants to look around the area of the warehouse to determine whether any police officers were nearby. Because the driver was having a difficult time parking the truck, several neighbors came outside to watch, which made Petit very nervous. According to Devarone, Petit urged the other defendants to hurry and finish unloading the truck because he was afraid that the neighbors' suspicions would be aroused by the unloading of television sets into a warehouse where automobiles were supposedly being repaired. Other proffered explanations for Petit's nervousness, however, include his fear that the truck would hit some of his customer's cars or that his boss would return to find him neglecting his job.

Because he had not yet been shown any money for the goods, Devarone ordered the unloading to stop, not to be resumed until he saw that the defendants actually had the money to pay for the merchandise. When the money failed to materialize, the police and Federal Bureau of Investigation (FBI) agents moved in and arrested all of the defendants, including appellants.

Appellants initially were charged with conspiring to steal goods valued in excess of $100.00 which were moving in interstate commerce, in violation of 18 U.S.C. Sec. 659. Although the first indictment mistakenly charged that the alleged conspiracy both began and concluded on June 30, 1986, it correctly provided that the overt acts taken in furtherance of the conspiracy took place between July 1 and July 28, 1986. Several days before trial, the government issued a superseding indictment which extended the ending date of the conspiracy to July 28, 1986, the date of the defendants' arrest. The superseding indictment also modified the purpose of the conspiracy, alleging that the defendants conspired to receive and possess stolen goods which constituted an interstate shipment of freight.

Following a jury trial, appellants Roger Fernandez, Angel Petit, and Francisco Pasqual were convicted. Defendants Emerio Delgado and Jaime Lopez Villeda were acquitted.

II.

A. Were appellants properly convicted of conspiring to receive stolen goods?

Appellants were convicted under 18 U.S.C. Sec. 371 ³ of conspiring to commit a crime prohibited by 18 U.S.C. Sec. 659. ⁴ On appeal they argue that their convictions are invalid because a conviction under section 659 requires the government to prove that the defendants bought, received, or possessed goods which were actually stolen. ⁵ They point out that the electronic equipment in this case had not been stolen but rather had been borrowed by the government with the carrier's permission. Accordingly, they contend that because they could not have been convicted of the substantive offense of possessing stolen merchandise, they should not have been convicted of conspiring to commit the substantive offense.

Although some courts have recognized an impossibility defense with regard to attempted crimes, People v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (1906) (no conviction allowed for attempt to receive stolen property when the property had been restored to its owners and was used with their permission at the time it was offered to the defendant), "[c]ourts have generally taken a broader view of the purposes of the law of conspiracy." W. LaFave & A. Scott, Criminal Law 475 (1972). As one commentary has explained:

The antisocial potentialities of a conspiracy, unlike those of an attempt, are not confined to the objects specifically contemplated at any given time. The existence of a grouping for criminal purposes provides a continuing focal point for further crimes either related or unrelated to those immediately envisaged. Moreover, the uneasiness produced by the consciousness that such groupings exist is in itself an important antisocial effect. Consequently, the state has an interest in stamping out conspiracy above and beyond its interest in preventing the commission of any specific substantive offense.

Developments in the Law--Criminal Conspiracy, 72 Harv.L.Rev. 920, 924-25 (1959). While a charge that a crime has been attempted or committed focuses on the defendant's conduct leading toward the commission of the crime, a charge of conspiracy is concerned more with the intent of the alleged perpetrators. "The crime of conspiracy is complete once the conspirators, having formed the intent to commit a crime, take any step in preparation....," State v. Moretti, 52 N.J. 182, 187, 244 A.2d 499, 502, cert. denied, 393 U.S. 952, 89 S.Ct. 376, 21 L.Ed.2d 363 (1968), and it is unnecessary that the substantive crime itself be committed. United States v. Rose, 590 F.2d 232 (7th Cir.1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2859, 61 L.Ed.2d 297 (1979).

Accordingly, this circuit has held that for a conspiracy conviction under section 371 to stand, "the government did not have to prove that the [items] were actually stolen; it was enough for the government to show that the conspirators conspired [to receive goods] which they believed to be stolen." United States v. Sarro, 742 F.2d 1286, 1297 (11th Cir.1984) (emphasis in original). See also United States v. Bobo, 586 F.2d 355, 371 (5th Cir.1978) (to affirm conspiracy conviction, "it need not be shown that the substance [purchased by the defendant] was in fact heroin as long as he thought he was buying a controlled substance and believed he was furthering the ends of the conspiracy"), cert. denied, 440 U.S. 976, 99 S.Ct. 1546, 59 L.Ed.2d 795 (1979); ⁶ United States v. Thompson, 493 F.2d 305 (9th Cir.) (for conviction of conspiracy to smuggle marijuana to stand, it was unnecessary that the government prove that the substance involved was actually marijuana), cert. denied, 419 U.S. 834, 95 S.Ct. 60, 42 L.Ed.2d 60 (1974); United States v. Rose, 590 F.2d at 235 (rejecting defendants' argument that conspiracy to transport stolen goods in interstate commerce could not exist unless the goods had actually been stolen). ⁷ In this case, the government provided ample evidence from which the jury could have concluded, beyond a reasonable doubt, that the alleged conspirators believed the goods to have been stolen: Devarone's testimony that he told Fernandez...