U.S. v. Petty

• Decision Date: 18 December 1997
• Docket Number: Nos. 96-3845,s. 96-3845
• Citation: 132 F.3d 373
• Parties: 48 Fed. R. Evid. Serv. 513 UNITED STATES of America, Plaintiff-Appellee, v. Jack Leroy PETTY, Defendant-Appellant. & 96-3846.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 373

132 F.3d 373

48 Fed. R. Evid. Serv. 513

UNITED STATES of America, Plaintiff-Appellee, v. Jack Leroy PETTY, Defendant-Appellant.

Nos. 96-3845 & 96-3846.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 9, 1997.

Decided Dec. 18, 1997.

Charles Goodloe, Jr. (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Kerry C. Connor, Indianapolis, IN, Steven J. Riggs (argued), Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellant.

Before CUDAHY, RIPPLE, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

A jury found Jack Petty guilty of aiding and abetting the tampering of a vehicle identification number ("VIN") in violation of 18 U.S.C. § 511(a). Petty pled guilty to two additional counts of dealing in stolen property in violation of 18 U.S.C. § 659. The district court sentenced him to 60 months imprisonment for the VIN charge and 87 months imprisonment for the stolen property charges, sentences to run concurrently. The court also imposed a fine of $60,000 ($20,000 per count). Petty appeals his conviction and sentence. We affirm.

I. HISTORY

In February 1991, the Federal Bureau of Investigation began monitoring an Indiana theft ring, of which Jack Petty and his three sons were members. Undercover Agent William Wagoner and cooperating witness Freddy Cary posed as dealers in stolen goods and quickly established a relationship with members of the ring. During the early days of the investigation, Jack Petty's sons contacted Agent Wagoner and Cary. One of the sons, Daniel Petty, explained to Agent Wagoner and Cary how he had stolen two Chevrolet Astro vans from the Dunfee Chevrolet dealership in Columbus, Indiana. In order to make one of the vans appear legitimate, Daniel bought two similar minivans cheaply at a salvage auction for the purpose of switching their titles and VINs with those of one of the stolen Chevrolet Astro vans.

Daniel was arrested shortly thereafter. His brother, Russell Petty, had the second stolen van. After Daniel's arrest, Russell realized he should dispose of the second van quickly as suspicions were mounting. Members of the theft ring convened at Jack Petty's home. From Jack Petty's telephone (which telephone company records show registered to Lisa Horner, Jack's common law wife), Russell paged Agent Wagoner. After several telephone conversations, Agent Wagoner and witness Cary agreed to make the stolen van "disappear."

A few months later, the story repeated itself. The third Petty son, Mark, called Agent Wagoner attempting to find a new VIN and title for a Chevrolet truck stolen from a man named Ted Gray. After several calls between the two, Agent Wagoner told Mark he had located a title and VIN. As they began to discuss the price, Mark mentioned that he was actually buying the VIN and title for someone else; Mark did not name the person for whom he was making the purchases. A week later, Agent Wagoner delivered the VIN and a registration decal. He agreed with Mark to deliver the title sometime later, and Mark agreed to provide payment at that time.

On February 5, 1992, Agent Wagoner called Mark Petty to tell him the title was ready and to agree on a meeting place. Mark told Agent Wagoner he would contact the still unnamed buyer to get the money. Later that day, Mark called Agent Wagoner back and told him the buyer was ready to pay but had to have his taxes done early the next day, so the transaction could not be completed until later the next day. On the following day, Agent Wagoner called Mark again to try to arrange to complete the transaction, and Mark repeated that the buyer was busy having his taxes done. Finally at 3:20 p.m., the two spoke again. Mark told Agent Wagoner that he was meeting the buyer in Muncie, Indiana in half an hour, and Agent Wagoner should meet Mark in an hour. Telephone records show that Mark Petty was calling Jack Petty's home in Pennville, Indiana between conversations with Agent Wagoner.

At the time when Mark said he would be meeting the buyer, another undercover agent saw Mark meet with someone in a red Chevrolet Camaro bearing a license plate registered to Jack Petty. Shortly after meeting with the buyer, Mark paid Agent Wagoner $1,200 for the new title.

About a month later, Agent Wagoner, still in an undercover capacity, met with Jack Petty at his home. During the conversation, Jack said that the new VIN and title that Mark Petty had bought from Agent Wagoner were actually for himself, Jack.

More than a year later, the stolen truck was recovered at the Panama City, Florida International Airport. It bore the VIN that Agent Wagoner had given to Mark; however, a confidential VIN showed that the truck actually belonged to Ted Gray, who had reported it stolen long before. Jack Petty was arrested for dealing in stolen property and tampering with a VIN.

II. ANALYSIS

Jack Petty makes six arguments before this Court: three challenging his conviction and three challenging his sentence. Regarding his conviction, first he argues that the prosecution presented insufficient evidence for any rational jury to find him guilty beyond a reasonable doubt of aiding and abetting the tampering with a VIN. Second, he argues that the district court improperly allowed an FBI technical analyst to explain to the jury how certain telephone company documents implicate him in the VIN tampering. Third, he argues that the district court erred in admitting hearsay statements of co-conspirators when the Government did not charge a conspiracy.

As to his sentencing, Petty argues first that the district court erred in finding a common scheme or plan under United States Sentencing Commission, Guidelines Manual ("U.S.S.G."), § 1B1.3 (Nov.1992). Second, he argues that the district court improperly applied U.S.S.G. § 5G1.2 to impose a sentence of 60 months on the VIN count. And finally, he argues that the court erred in imposing a $60,000 fine without inquiring into his ability to pay.

A. Insufficiency of the Evidence

Petty argues that the prosecution produced evidence insufficient to allow a rational jury to find him guilty beyond a reasonable doubt of tampering with a VIN in violation of 18 U.S.C. § 511(a). ¹ The question this Court must ask itself is not whether we would have convicted the defendant, but whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). As such, Petty "follows in the footsteps of countless criminal defendants who have made similar arguments in this court, and, like them, he bears a heavy burden, and faces a nearly insurmountable hurdle." United States v. Pribble, 127 F.3d 583, 590 (7th Cir.1997) (citations and internal quotation marks omitted).

The indictment charged Jack Petty as follows:

On or about January 15, 1992, in the Southern District of Indiana, Jack Leroy Petty ... with intent to further the theft of a motor vehicle, knowingly tampered with, removed and altered a decal which had been affixed to a motor vehicle pursuant to the Motor Vehicle Theft Prevention Act, to wit: a 1991 Chevrolet Pick Up Truck, with a vehicle identification number, the last four digits of which were (VIN3817), which was removed, obliterated, tampered with or altered, and a substitute identification number the last four digits of which were "7162" was affixed to the vehicle.

The above stated offense was in violation of Title 18, United States Code, Section 511 and Section 2.

Indictment at 63, United States v. Petty, No. 95109-16 (S.D.Ind. Sept. 14, 1995). The indictment fairly tracked the language of § 511(a)(2). The essential elements of the charge are; 1) intent to further the theft of a motor vehicle; 2) knowingly tampering with, removing, or altering a decal; 3) the decal affixed pursuant to the Motor Vehicle Theft Prevention Act.

Rather than making an amorphous argument that the Government failed to prove its case, Petty thankfully raises several more tailored points. First, he argues that the Government did not prove that he personally tampered with the VIN. Although this is an element of the offense, the Government may bypass establishing it through an aiding and abetting theory under 18 U.S.C. § 2. See United States v. Gooch, 120 F.3d 78, 80-81 (7th Cir.1997). When the Government charges that a defendant aided and abetted the commission of a crime, the Government must prove the essential elements of aiding and abetting: knowledge of the crime, intent to further the crime, and some act of help by the defendant. See United States v. Draves, 103 F.3d 1328, 1332 (7th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 2528, 138 L.Ed.2d 1028 (1997). In a sense, the essential elements of aiding and abetting serve as a substitute for the defendant's actual physical participation in the crime.

Here, the prosecution presented evidence that Mark and Jack had several phone conversations about the new VIN, title, and sticker. This evidence establishes Jack's knowledge, the first element of aiding and abetting. The prosecution also presented evidence that Jack Petty paid for the new VIN, title, and sticker. This evidence shows his intent to further the crime as well as an act of helping. From this base of support, a rational jury could find beyond a reasonable doubt that Petty aided and abetted the tampering with a VIN.

Second, Petty argues that the Government did not establish the identity of the principal whom he aided and abetted. Petty suggests that a necessary element of aiding and abetting is proof of whom exactly the defendant aided and abetted. We disagree. We have never required the Government even to identify the principal, much less prove it was that person whom the defendant aided and abetted. See United States v. Somers, 950 F.2d 1279, 1283 (7th Cir.1991). To require the prosecution to allege and prove whom a defendant aided and...