U.S. v. Rose

• Decision Date: 20 December 1978
• Docket Number: No. 78-1331,78-1331
• Citation: 590 F.2d 232
• Parties: 4 Fed. R. Evid. Serv. 374 UNITED STATES of America, Plaintiff-Appellee, v. William ROSE and Robert Peterson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 232

590 F.2d 232

4 Fed. R. Evid. Serv. 374

UNITED STATES of America, Plaintiff-Appellee, v. William ROSE and Robert Peterson, Defendants-Appellants.

No. 78-1331.

United States Court of Appeals Seventh Circuit.

Argued Oct. 31, 1978.

Decided Dec. 20, 1978.

John W. Conniff, Chicago, Ill., for defendants-appellants.

Gary S. Shapiro, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before PELL and TONE, Circuit Judges, and WHELAN, Senior District Judge. ^*

TONE, Circuit Judge.

The principal issue before us is whether the defendants can be found guilty of a conspiracy under 18 U.S.C. § 371 ¹ to transport in interstate commerce goods valued at $5,000 or more, knowing the goods to be stolen, in violation of 18 U.S.C. § 2314, ² when no goods were ever stolen because the defendants unwittingly engaged agents of the government to perform the actual theft and transportation. We answer the question in the affirmative and affirm the convictions.

One James Srbinovich, while in the McHenry County Jail in Woodstock, Illinois, met with two Special Agents of the Drug Enforcement Administration. In the presence of the agents, Srbinovich placed a telephone call to defendant William Rose, whom Srbinovich had known for 15 or 20 years. In the conversation Srbinovich stated that he was in Albuquerque. Rose said, "I want to talk to you right away. I have got something for you." Asked, "What is that?," Rose said, "Well, you went on it once before." (Srbinovich had met with both defendants a year earlier at Rose's apartment to discuss the commission of a burglary in Arizona.) Srbinovich said he was broke. Rose replied that he would wire him $500 "because this thing has to go over the weekend." Rose later wired $500 to Albuquerque addressed to Srbinovich, which government agents collected.

The telephone conversation was proved at trial by the testimony of Srbinovich and one of the DEA agents who was with Srbinovich. Although the agents monitored and recorded the conversation on tape with Srbinovich's permission, the recording was not presented at trial because the government represented to the court that it had lost the tape.

Three days after the telephone conversation, Srbinovich met with Rose in Chicago, at which time they discussed a burglary to be committed in Scottsdale, Arizona. Rose stated that Srbinovich, and a partner Srbinovich was to find, would receive two-thirds of the take. Rose and the "tipster" in Arizona would split the remaining third between themselves. Rose described the valuables to be taken, which he estimated were worth approximately $200,000.

A few days later Srbinovich went to Rose's apartment in Chicago with DEA Agent Skaggs, who posed as Srbinovich's partner, to receive instructions. Rose told them to go to Scottsdale and meet with "Bob," who would give them the layout of the house and further instructions. Rose also instructed them to return to Chicago with the stolen goods because Bob was the real estate agent who had sold the house to the intended victim, and thus would be an obvious suspect. Rose informed them that he knew of a person who would come to Chicago to purchase the goods. Finally, Rose told them to get everything, because he had been planning this for a long time.

Two days later Srbinovich and Skaggs went to Scottsdale and checked into a motel. The next day Srbinovich called Rose to give him their phone number and location. Rose told them he would relay the information to Bob, who would contact them. When Rose could not reach Bob, he called Srbinovich and gave him Bob's number. Srbinovich finally reached Bob at that number, and they made plans to meet at the motel that evening.

Srbinovich and Skaggs met that evening with Bob, who turned out to be defendant Robert Peterson. In the ensuing conversation Peterson described the house and surrounding area, the burglar alarm system, and the valuables they planned to steal. He estimated the combined value of only two of the many pieces, a necklace and a ring, at $100,000.

During the next two days, Peterson met with Srbinovich and Skaggs several more times to discuss details of the plan, and drove them out to the house to look it over. At one point, Peterson stated that Srbinovich and Skaggs had to take the goods out of the state.

On the day Srbinovich and Skaggs were to commit the burglary, FBI agents took photographs of various pieces of jewelry and art in the house. Later that day, Srbinovich called Peterson and Rose to tell them that he had successfully committed the burglary. The next day Srbinovich and Skaggs returned to Chicago with the FBI photographs, which they showed to Rose. They arranged to meet later to divide up the goods, but when they did meet they could not agree as to the amount of payment. Two days later Skaggs contacted Rose and agreed to his price, $10,000. They met that afternoon, and, when Rose stated that he had the money and was ready to proceed with the transaction, he was arrested. Peterson was subsequently arrested in Arizona.

The events we have described were proved primarily by the testimony of Srbinovich and Skaggs. Neither defendant testified in the trial before a jury, in which both were found guilty of the offense of conspiracy to violate 18 U.S.C. § 2314.

I.

Concededly, Srbinovich and Skaggs never intended to steal valuables and transport them in interstate commerce, and there were no stolen goods. On these facts defendants base several arguments for acquittal.

A.

First, it is argued that Srbinovich and Skaggs, who merely feigned participation, were necessary parties to the conspiracy. It takes only two to conspire, however, and the evidence showed a conspiracy between the two defendants to burglarize the house in Arizona and transport the goods in interstate commerce. That their plan was doomed because they unwittingly chose as their instrumentalities agents of the government is irrelevant to the existence of the conspiracy.

Neither United States v. Chase, 372 F.2d 453 (4th Cir. 1967), nor Sears v. United States, 343 F.2d 139 (5th Cir. 1965), relied on by defendants, is to the contrary. Chase merely held that no conspiracy could exist between a single defendant and a government agent, and Sears did not reach the issue. O'Brien v. United States, 51 F.2d 674 (7th Cir. 1931), and United States v. Wray, 8 F.2d 429 (N.D.Ga.1925), also cited by defendants, are entrapment cases and therefore irrelevant, since defendants do not argue entrapment. Finally, defendants also cite Developments in the Law Criminal Conspiracy, 72 Harv.L.Rev. 920 (1959), for the proposition that no agreement exists if a necessary party feigns acquiescence, but their argument is defeated by a footnote in the article itself:

The fact that one person's agreement is feigned should not prevent a conspiracy conviction when there are at least two others involved whose mutual adherence to the common plan is genuine.

Id. at 926, 927 n.35.

Also without merit is defendants' related argument that the government failed to satisfy the overt act requirement because each act involved some communication with government agents and therefore did not actually further the conspiracy. The words "any act to effect the object of the conspiracy" in § 371 require only that the act be intended to have the described effect, not that it actually succeed. Collier v. United States, 255 F. 328, 329 (5th Cir. 1918); United States v. Root, 366 F.2d 377, 383 (9th Cir. 1966); See also Hall v. United States, 109 F.2d 976, 984 (10th Cir. 1940); Cf. Jung Quey v. United States, 222 F. 766, 771-772 (9th Cir. 1915).

B.

Defendants' second argument is that there could be no conspiracy to violate § 2314 because in the absence of any stolen goods an essential element of the substantive crime, Viz., that the defendants know the goods to be stolen, could not exist. Essentially, the argument is that a conspiracy to violate § 2314 cannot exist unless and until someone has stolen the goods the conspirators plan to transport in interstate commerce.

Plausible as this argument may seem at first, it ignores the nature of the crime of conspiracy, which is an agreement to commit a substantive crime, accompanied by an overt act in furtherance of the agreement. Whether the substantive crime itself is, or is likely to be, committed is irrelevant. Thus, although § 2314 cannot be violated unless there are in fact stolen goods, a conspiracy to violate that section occurs when two or more persons agree to attempt to commit acts which include all the elements of a crime under that section and any overt act is done pursuant to the agreement. Here Rose and Peterson intended to cause the goods to be stolen and then transported in interstate commerce with knowledge that they had been stolen. All that was necessary, in addition to an overt act, was that the intended future conduct they had agreed upon include all the elements of the substantive crime.

United States v. Thompson, 493 F.2d 305 (9th Cir.), Cert. denied, 419 U.S. 834, 95 S.Ct. 60, 42 L.Ed.2d 60 (1974), is in accord. There the court held proof that the substance involved was marijuana to be unnecessary for conviction of the crime of conspiracy to smuggle marijuana ³ stating,

. . . the crime of conspiracy is complete upon the agreement to violate the law, as implemented by one or more overt acts (however innocent such may be), and is not at all dependent upon the ultimate success or failure of the planned scheme. . . . Thus, whether or not the substance involved was marijuana is irrelevant.

493 F.2d at 310 (citations omitted). Also, in Carlson v. United States, 187 F.2d 366, 369-370 (10th Cir. 1951), the court rejected a contention analogous to that of defendants here and in so doing rejected in dictum the very contention made here. Holding that a conspiracy to violate 18 U.S.C. § 415, the predecessor to § 2314, was established even though the wheat stolen and transported in interstate commerce was not shown to be...