U.S. v. Tombrello, 81-7181

• Citation: 666 F.2d 485
• Decision Date: 22 January 1982
• Docket Number: No. 81-7181,81-7181
• Parties: 9 Fed. R. Evid. Serv. 1153 UNITED STATES of America, Plaintiff-Appellee, v. Sam TOMBRELLO, Jr., Floyd Leon Watson, Jimmy Lee Wright, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 485

666 F.2d 485

9 Fed. R. Evid. Serv. 1153

UNITED STATES of America, Plaintiff-Appellee, v. Sam TOMBRELLO, Jr., Floyd Leon Watson, Jimmy Lee Wright Defendants-Appellants.

No. 81-7181.

United States Court of Appeals Eleventh Circuit.

Jan. 22, 1982.

Fred Blanton, Birmingham, Ala. (Court Appointed), for Tombrello.

James E. Harris, Birmingham, Ala. (Court Appointed), for Watson.

Walker Norris, Birmingham, Ala. (Court Appointed), for Wright.

Bill L. Barnett, Holly L. Wiseman, Asst. U. S. Attys., Birmingham, Ala., for plaintiff-appellee.

Appeals from the United States District Court For the Northern District of Alabama.

Before TUTTLE, HENDERSON and HATCHETT, Circuit Judges.

HENDERSON, Circuit Judge:

The appellants, Sam Tombrello, Floyd Leon Watson and Jimmy Lee Wright were indicted by a grand jury in the United States District Court for the Northern District of Alabama. Count I of the indictment alleges that the three defendants conspired to transport stolen property worth at least $5,000.00 in interstate commerce (18 U.S.C. § 371). Tombrello was charged in Count II with the receipt of a firearm while under indictment for a felony (18 U.S.C. §§ 922(h)(1), 924(a)). Count III alleges that Tombrello and Watson, aided and abetted by each other, knowingly carried a firearm during the commission of a felony (18 U.S.C. §§ 924(c)(2), 2. Wright was charged in Counts IV and VI with the receipt of a firearm after having been convicted of a felony (18 U.S.C. §§ 922(h)(1), 924(a). Count V accuses Wright and Watson, aided and abetted by each other, with carrying a firearm in the commission of a felony (18 U.S.C. §§ 924(c)(2), 2. All three were convicted of each count for which they were indicted.

On appeal the appellants assign as error (1) the lack of proof that they conspired to transport stolen goods worth $5,000.00 as required by 18 U.S.C. 2314, ¹ (2) the admission of certain recorded statements between Tombrello and agents of the Federal Bureau of Investigation (FBI) and (3) that the conduct of government agents amounted to entrapment as a matter of law. Tombrello challenges the admission of the docket entries from the minutes of the Tenth Judicial Circuit Court of Jefferson County, Alabama to prove the pending indictment against him alleged in Count II. Watson also complains that the trial court should have granted his motion for a severance. Finding no error, we affirm the convictions.

On October 27, 1980, Tombrello telephoned an acquaintance, "Red" Gore, seeking assistance in planning a series of burglaries in Alabama. To achieve this purpose, Tombrello asked Gore's help in locating someone in the Chicago area skilled in safe cracking and disarming burglar alarms. Unfortunately for Tombrello, Gore, who was already in trouble with law enforcement officials, promptly reported the conversation to the FBI. The next day, on October 28, 1980, Robert Martin, a special employee of the FBI posing as a member of the "Chicago syndicate," called Tombrello to offer his support in the upcoming enterprise. Martin agreed to the monitoring and recording of the conversation. Tombrello, unaware of the caller's true identity, offered to fly to Chicago the next day to meet with his new partners. On October 29, 1980, Tombrello met in a hotel room at the Chicago airport with Martin and FBI Agent Robert Pecoraro and told of his plans to rob the store and residence of Thomas Summerville in Eutaw, Alabama. On the following day, October 30, 1980, Tombrello, who had returned to Alabama, again received a phone call from Martin and discussed the plan. On November 5, 1980, the group met again in Alabama. FBI Agent John Dolan and appellant Watson attended this meeting and Watson was introduced as the "mastermind" of the robbery of the Summerville home and store. All the details were worked out at this time. Everyone agreed that the robbery would take place the following day, November 6, 1980, and that Tombrello and Watson would procure the necessary guns. On November 6, 1980, Wright joined the band and provided two pistols which were to be used in procuring the cooperation of the Summervilles. ² At this session, it was agreed that one of the FBI agents would enter the residence first and then summon the others when the way was clear. While enroute to the Summerville home, Tombrello assured his Chicago associates that the theft would net $250,000.00 in cash as well as diamonds and gold. Record, Vol. IV at 707. The conspirators also agreed that the loot should be "fenced" in Chicago. Record, Vol. IV at 709. Upon arrival at the scene, everything went according to plan, except when the call came and the appellants arrived in the house they found themselves surrounded by well-armed FBI agents.

As stated earlier, Count I of the indictment charges all three appellants with conspiracy to transport stolen property in interstate commerce. Federal jurisdiction over the substantive offense of transportation of stolen property in interstate commerce is predicated on the goods having a value of at least $5,000.00. 18 U.S.C. § 2314. The appellants contend that the trial court had no jurisdiction over the conspiracy count because there was no evidence to show that the robbery, if successful, would have netted $5,000.00 or more. The government disputes this assertion and claims that, in any event, such a showing is not necessary because the defendants clearly believed that their illegal labors would be rewarded with more than the jurisdictional amount. The evidence discloses that the conspirators expected to reap several hundred thousand dollars from the robbery. Because we hold that this was all the proof necessary to satisfy the jurisdictional requirements, there is no need to reach the question of the value of goods in the Summerville home on the day of the aborted robbery.

Neither this circuit nor the former Fifth Circuit has been directly confronted with the precise problem of whether the jurisdictional requirements for a conspiracy to violate 18 U.S.C. § 2314 are met by a showing that the anticipated worth of stolen property exceeds $5,000.00, an essential element of the substantive offense. We find no difficulty in following the other circuits by holding that proof of the conspirators' belief that the robbery would yield more than the jurisdictional amount is all that is necessary to sustain a conspiracy conviction. Accord, United States v. Rosner, 485 F.2d 1213 (2d Cir. 1973) cert. denied, 417 U.S. 950, 94 S.Ct. 3080, 41 L.Ed.2d 672 (1974); Cave v. United States, 390 F.2d 58 (8th Cir.), cert. denied, 392 U.S. 906, 88 S.Ct. 2059, 20 L.Ed.2d 1365 (1968); Carlson v. United States, 187 F.2d 366 (10th Cir.), cert. denied, 341 U.S. 940, 71 S.Ct. 1000, 95 L.Ed. 1367 (1951); see Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966); United States v. Fellabaum, 408 F.2d 220 (7th Cir.), cert. denied, 396 U.S. 858, 90 S.Ct. 125, 24 L.Ed.2d 109 (1969); cf. Lubin v. United States, 313 F.2d 419 (9th Cir. 1963) (a plan to commit an act which is not a federal offense is not a criminal conspiracy even if done in the belief that it was a federal offense). The appellants' argument to the contrary fails to recognize the difference between a conspiracy and the substantive offense.

A conspiracy and the related substantive offense which is the object of the conspiracy are separate and distinct crimes. United States v. Romeros, 600 F.2d 1104 (5th Cir. 1979), cert. denied, 444 U.S. 1077, 100 S.Ct. 1025, 62 L.Ed.2d 759 (1980); United States v. Ragano, 520 F.2d 1191 (5th Cir. 1975), cert. denied, 427 U.S. 905, 96 S.Ct. 3192, 49 L.Ed.2d 1199 (1976). The law of conspiracy serves two purposes not present in the substantive offenses. It protects "society from the dangers of concerted criminal activity" and "identifies the agreement to engage in a criminal venture as an event of sufficient threat to social order to permit the imposition of criminal sanctions for the agreement alone, plus an overt act in pursuit of it...." United States v. Feola, 420 U.S. 671, 693-94, 95 S.Ct. 1255, 1268-1269, 43 L.Ed.2d 541 (1975); United States v. Beil, 577 F.2d 1313 (5th Cir. 1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1978). The illegal conspiracy is complete regardless of whether the crime agreed upon is actually consummated, United States v. Feola, supra, and a defendant may be convicted of conspiracy even though he is acquitted of the substantive count. E.g., United States v. Romeros, supra.

Since the essence of conspiracy is an agreement to commit an unlawful act, Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975), the government need only show the agreement and an overt act by one of the conspirators in furtherance of the conspiracy. United States v. Romeros, supra; United States v. Wieschenberg, 604 F.2d 326 (5th Cir. 1979). There was ample evidence here that the appellants fully intended and certainly hoped to transport property worth more than $5,000.00 in interstate commerce. After agreeing to this unlawful plan, the conspiracy was complete when the first overt act was perpetrated to advance its cause. The appellants here would have been no more nor less culpable whether the house they intended to rob actually contained the wealth they were expecting to find or was empty. To require the consummation of the robbery so as to arrive at a value of the property actually stolen would offend both common sense and the purposes behind the conspiracy law. See United States v. Feola, supra.

The appellants' contention that they were entrapped as a matter of law because of the conduct of the FBI agents is equally without merit. The FBI agents posed as mobsters from Chicago and accompanied the unsuspecting conspirators in their unsuccessful venture. The crucial issue in entrapment cases is whether the defendants were predisposed to commit the crime. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36...