U.S. v. Wedelstedt

Decision Date09 January 1979
Docket NumberNo. 77-1965,77-1965
Citation589 F.2d 339
PartiesUNITED STATES of America, Appellee, v. Edward Joseph WEDELSTEDT, Appellant. Eighth Circuit
CourtU.S. Court of Appeals — Eighth Circuit

C. A. Frerichs of Fulton, Frerichs, Nutting & Martin, Waterloo, Iowa, for appellant.

James H. Reynolds, U. S. Atty., Cedar Rapids, Iowa, for appellee.

Before ROSS and HENLEY, Circuit Judges, and MARKEY, * Chief Judge.

ROSS, Circuit Judge.

Edward Joseph Wedelstedt, appellant herein, was convicted in September 1977 on three counts of a five count indictment. 1 His offenses relate generally to his dealings in stolen movie films, both pornographic and nonpornographic. The evidence in the case has been described by the parties in terms of the two thefts the "Shepard" transaction and the "Chicago" transaction.

A detailed explanation of the indictment is important in this case. Count one was a conspiracy count. It charged Wedelstedt with conspiring with three others, Bruce Gentry, Richard Dobler, and Dennis Leone, to commit various offenses against the United States between November 1, 1974 and December 16, 1974, at various named cities in Iowa, Illinois, and Missouri. The offenses which the conspirators were alleged to have agreed to commit were as follows: interstate transportation of goods of a value greater than $5,000, knowing the same to have been stolen, in violation of 18 U.S.C. § 2314; receipt, concealment, sale and disposition of goods of a value greater than $5,000 which "were a part of and constituted interstate commerce," knowing the same to have been stolen, in violation of 18 U.S.C. § 2315; the knowing transportation in interstate commerce, for sale and distribution, of obscene films in violation of 18 U.S.C. § 1465.

Eighteen overt acts in furtherance of the conspiracy were alleged under this count; although it is not completely clear, it appears that the first thirteen overt acts dealt with the "Chicago" transaction, and the last five with the "Shepard" transaction.

The remaining counts in the indictment, two through five, charged appellant with the commission of substantive offenses. In count two Wedelstedt was charged with aiding and abetting the interstate transportation of stolen goods (pornographic films from the "Chicago" transaction), in violation of 18 U.S.C. § 2314. This count was dismissed by the government during the course of the trial.

Count three charged appellant with the unlawful receipt and sale of stolen goods which were moving as, and were a part of, interstate commerce in violation of Sections 2 and 2315 (again, the "Chicago" films).

Count four charged the interstate transportation of obscene materials for purposes of distribution (the "Chicago" films) in violation of 18 U.S.C. §§ 2, 3, and 1465.

Count five related to the "Shepard" films, and charged the unlawful receipt, concealment, and sale of stolen goods which moved as a part of interstate commerce in violation of 18 U.S.C. §§ 2 and 2315. This count was also dismissed, on motion of defendant, for reasons which will be discussed later.

Prior to this federal prosecution, Wedelstedt had been convicted on state charges also arising out of the theft of the "Shepard" films.

The Shepard films were a collection of privately owned classic films. They were stolen in September 1974 in Davenport, Iowa from David Shepard and transported to Cedar Rapids, Iowa where they were received by appellant. They had been stolen and transported by Thomas Meade, who thereafter became an informer for the Iowa Bureau of Criminal Investigation (BCI), in exchange for immunity. 2

Pursuant to a plan devised by Meade and the BCI, Meade informed Wedelstedt that he had located a buyer for the Shepard films; appellant thereafter arranged for the films to be transported in a U-Haul truck by his associates from one point in Iowa to another, where the alleged buyer was said to be waiting. Wedelstedt was told that the fictitious buyer, who was an agent, was from the West Coast, and would be transporting the films back there.

The "Chicago" transaction involved the theft from a Chicago warehouse of a large number of pornographic, or adult films. This theft occurred on December 8, 1974; the three thieves were Gentry, Leone, and Dobler, mentioned previously in the conspiracy count. They transported the films to Cedar Rapids, Iowa and delivered them to the appellant Wedelstedt. An earlier attempt of the theft by Meade (the informer) and Gentry, on November 23, 1974, had been aborted. At the time of the "Chicago" transaction, Meade was already an informer. Gentry, Leone, and Dobler pleaded guilty to one count of conspiracy.

Counsel for the appellant has diligently raised numerous issues, thirteen in all, many of which will not require extended discussion by the court. We have carefully examined the issues, however, and conclude the conviction should be affirmed.

I. Shepard Transaction Conspiracy Count

The first three issues raised by appellant concern the "Shepard" transaction. The only count upon which appellant was convicted that concerns the "Shepard" transaction is count one, the conspiracy count.

Wedelstedt argues that the Shepard transaction as it occurred involved no violation of federal law, either as a substantive offense under § 2315, or as a conspiracy to commit that offense. He objects to the lack of an interstate nexus, his argument being that these particular films never left the state, never entered interstate commerce, and only traveled between two points in Iowa.

On this basis, the trial court initially dismissed all counts emanating from the Shepard transaction the count for the substantive crime (count 5), and that portion of the conspiracy count (count 1) which related to the Shepard films. Later, however, the court reinstated the conspiracy count. 3

Appellant's contention that an interstate nexus is lacking in the Shepard transaction is certainly not frivolous, but it is an allegation we feel it is unnecessary to reach in this case.

The conspiracy was alleged in a single count under the general federal conspiracy statute. Wedelstedt received but one sentence on that count, despite the fact that several illegal objects of the conspiracy, that is violations of several federal statutes, were alleged. Therefore, proof that Wedelstedt agreed to commit one of the multiple illegal objectives of the conspiracy sufficed to sustain the conviction on that count.

It has always been the law that where an indictment alleges a conspiracy to commit several offenses against the United States, the charge is sustained by adequate pleadings and proof of conspiracy to commit any one of the offenses. (Citations omitted.)

United States v. James, 528 F.2d 999, 1014 (5th Cir.), Cert. denied, 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976). See also United States v. Mackey, 571 F.2d 376, 387 n. 14 (7th Cir. 1978); United States v. Frank, 520 F.2d 1287, 1293 (2d Cir. 1975), Cert. denied, 423 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97 (1976). But see United States v. Baranski, 484 F.2d 556, 560-61 (7th Cir. 1973). Though this principle is usually applied in the context of a failure of proof as to one object of the conspiracy, it is as applicable where one of the objectives charged is not a criminal act:

In United States v. Mack, 112 F.2d 290 (2 Cir. 1940), this court, speaking through Judge Learned Hand, held that where an indictment charged a conspiracy to engage in three offenses and only one was proved, the conviction could still stand. We have recently followed that decision in United States v. Papadakis, 510 F.2d 287, 297 (2 Cir.), Cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975), subject to a caveat not here applicable, and in United States v. Frank, 520 F.2d 1287, 1293 (2 Cir. 1975). Although in these cases all the objectives charged in the conspiracy count were crimes and the defect was a failure of proof as to some, other circuits have reached the same result when some of the objectives were not crimes, Moss v. United States, 132 F.2d 875 (6 Cir. 1943); United States v. Tanner, 471 F.2d 128, 140 (7 Cir.), Cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972). Although the Seventh Circuit, speaking through Judge Pell, has recently questioned the correctness of this line of authority on the ground that a reviewing court cannot tell what offense or offenses alleged in a conspiracy indictment were found by the jury, United States v. Baranski, 484 F.2d 556, 559-61 (1973), here we know from the conviction on Count II that the jury found that Dixon had committed the offense validly charged in the conspiracy count. Cf. United States v. Bottone, 365 F.2d 389, 394-95 (2 Cir.), Cert. denied, 385 U.S. 974, 87 S.Ct. 514, 17 L.Ed.2d 437 (1966); United States v. Jacobs, 475 F.2d 270, 282-84 (2 Cir.), Cert. denied, 414 U.S. 821, 94 S.Ct. 116, 131, 38 L.Ed.2d 53 (1973). There is thus no basis for questioning the conviction on the conspiracy count.

United States v. Dixon, 536 F.2d 1388, 1401-02 (2d Cir. 1976). See also United States v. Tanner, 471 F.2d 128, 139-40 (7th Cir.), Cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972).

In this case three illegal objects were alleged: two clearly dealt only with the "Chicago" transaction; the other, a conspiracy to violate § 2315, could relate to either the "Shepard" or the "Chicago" thefts. Significantly, however, appellant Wedelstedt was also convicted of the Substantive crime under section 2315 for the Chicago theft.

"The only caveat in such cases is that an overwhelming amount of evidence relevant only to the unproved part of the conspiracy may have prejudiced the jury." United States v. Papadakis, 510 F.2d 287, 297 (2d Cir.), Cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975). In this case a considerable amount of evidence relevant to the Shepard transaction was introduced; this evidence, however, was separate and distinct...

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