United States v. Franicevich, 71-2194.

• Decision Date: 29 August 1972
• Docket Number: No. 71-2194.,71-2194.
• Citation: 465 F.2d 467
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Motto FRANICEVICH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

465 F.2d 467 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Motto FRANICEVICH, Defendant-Appellant.

No. 71-2194.

United States Court of Appeals, Fifth Circuit.

August 9, 1972.

Rehearing Denied August 29, 1972.

Virgil M. Wheeler, Jr., New Orleans, La., for defendant-appellant.

Gerald J. Gallinghouse, U. S. Atty., Patrick C. McGinity, Mary Williams Cazalas, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and RIVES and CLARK, Circuit Judges.

RIVES, Circuit Judge:

A one count indictment charged that Franicevich conspired¹ with Calvin J. Pelas, Sr., a coconspirator but not a co-defendant, to violate 18 U.S.C. § 2275² "by wilfully and feloniously removing the engines and navigational instruments of a vessel of the United States, with the intent to injure or endanger the safety of said vessel." (Emphasis added.) Upon a jury's verdict of guilty, the district court entered a judgment of conviction and sentenced Franicevich to imprisonment for a period of 42 months. Franicevich appeals and we affirm.

Franicevich's opening brief succinctly states the issues presented by this appeal as follows:

"I. Whether sufficient evidence exists in this record to sustain the conviction.

"II. Whether the denial of appellant\'s Requested Jury Instructions was improper and constituted substantial prejudice.

"III. Whether the admission of prior guilty pleas made by the named coconspirator and three other government witnesses to the identical substantive offense charged in this indictment was erroneous and constituted substantial prejudice."

I. Sufficiency of the Evidence.

Most of the facts were established without dispute. McKinney Boat Rental, Inc., purchased new the Crewboat MANTARAY in December, 1968, for $44,527.74. Some seven months later, on July 13, 1969, the MANTARAY was stolen from her mooring. Her two 6-71 G.M. diesel engines were thereafter removed and loaded on a boat owned by the named coconspirator, Calvin Pelas, Sr. The MANTARAY was also stripped of her radar and navigational equipment, which was abandoned and thrown in the Gulf. Holes were burned in the side of the vessel along the water line and she was incompletely sunk in the Gulf. The Coast Guard promptly found the partially sunken vessel. Within a few days the missing engines were discovered on a boat owned by the named coconspirator. Pelas, Sr., his son Calvin Pelas, Jr., and four other men were arrested and charged with the substantive offense of willfully and feloniously tampering with the MANTARAY by removing her engines and navigational instruments and by the commission of other acts to and upon the vessel in violation of 18 U.S.C. § 2275. All six pleaded guilty to the substantive offense and were sentenced. Franicevich alone was charged with conspiracy.

Four of the six men who had pleaded guilty to the substantive offense in connection with the sinking of the MANTARAY testified against Franicevich. Several other witnesses also testified for the Government. No evidence was offered in behalf of Franicevich.

The jury could determine from ample evidence that Franicevich was building a crewboat for which he needed two motors of the type stolen from the MANTARAY, and that he conspired with Calvin Pelas, Sr., to acquire such motors by theft. According to Blanchard, Pelas, Sr., "said he wanted me to help to get him some diesel 6-71 engines for his boat, and he didn't care where I got them." Pelas, Sr., testified:

"A. * * * I seen Mr. Franicevich, and I asked him if he would be interested in them, so he told me he would, so I told him I needed $500 for the engines, plus I wanted a thousand dollars because I had to use my equipment to get them out, but he wouldn\'t give me a thousand dollars. He gave me $900.00.

"Q. When you say you would have to use your own equipment, what do you mean?

"A. Well, I had to use my A-frame, and all, to pull them out of the boat.

"Q. Did you discuss with Mr. Franicevich the amount of work that would be involved, in addition to the use of your A-frame, in making this thousand dollar estimate?

"A. Yes, sir. I told him I would have to hire a tug to push my barge, and all, to that location."

(App. 179.) Franicevich furnished to Pelas, Sr., the $500.00 to be paid for the motors and, according to Pelas, Sr., "He told me not to give it all to him at one time—not over half." In turn, Pelas, Sr., paid Blanchard $200.00 before the MANTARAY was stolen and $300.00 when Blanchard delivered the MANTARAY. Pelas, Sr., told Blanchard that the money came from Franicevich. Further, on the prosecutor's redirect examination Blanchard testified that he had a conversation with one Billy Sircovich in the presence of Franicevich and that,

"A. Mr. Sircovich said they were concerned with the testimony that I may have given in this case. Motto Franicevich said he had a lot of money, and he showed it to me, and I said I just wanted the $500 I had coming for getting the engines, but since that didn\'t work out, that was that, and they said they were going to kill Pelas—Calvin Pelas and throw him in the river.

"BY THE COURT:

"Q. Who said that?

"A. Billy Sircovich, and he said they were going to burn Calvin Pelas\' house down with his family in it.

"Q. Did they threaten you?

"A. Yes, sir; not right out like that, but they told me I knew what they were talking about, and they told me not to say anything.

"Q. Who said that?

"A. Billy Sircovich.

"Q. Franicevich was with him, you say?

"A. Yes, sir, right there. They made it clear what would happen if anybody talked, if I said anything."

(App. 145, 146.)

When Pelas, Sr., reported to Franicevich that,

"* * * I had the engines in my boat up at Empire, and he said OK, and I said I would like to have my money, and he went in the house, and when he came back out, he gave me a check for $900, and he told me then that he was coming up to Empire to see the engines, and so him and `Junior\' Buras came up.

"I got in my truck with Marshall Dixon and drove on back up to Empire, over to the Mosquito Control Unit, and had a cup of coffee, and then Motto Franicevich and `Junior\' Buras got there, and they boarded my boat and looked at the engines, and then Motto said he would like to have the boat brought down to Buras, so I asked Melvin if he would tow it down to Buras for me, and he agreed to do it for me.

"So we went on down to Buras with it, and Motto met us in the river, and he got in the boat with us, and he told us to bring it into the slip, his slip, so we brought it into his slip, which is alongside the river, and we tied it up on the side of the slip.

"After Motto tied it up, I took my tow off, and Melvin and I went back to Empire."

(App. 186, 187.)

The fact that Franicevich went on the boat owned by Pelas, Sr., to view the two motors was corroborated by the testimony of Calvin Pelas, Jr., and of Arthur Buras, Jr. Franicevich's $900.00 check to Pelas, Sr., was cashed by a merchant, Thomas Ray Langston, who testified that the bank reported insufficient funds for payment of the check and "Mr. Franicevich's bookkeeper brought me $900.00 all in $20.00 bills."

The jury might well have taken the same view of the evidence as that expressed by Judge Christenberry when imposing sentence:

"I think it is perfectly clear in this case that this defendant is the evil genius of this whole thing. These other people stole that $50,000 boat, stole the engines, threw the equipment overboard, and the boat was sunk.

"The only thing they kept was the two motors that were taken out of the boat. In other words, this boat was stolen so that this defendant could get two new motors. I think that was established beyond any reasonable doubt, any possible doubt, and the jury found him guilty."

(App. 260.)

While the evidence was thus ample to prove that Franicevich and Pelas, Sr., conspired together from the very beginning of the plot, some questions of law remain as to whether their conspiracy was to violate 18 U.S.C. § 2275 (quoted in n. 1) as charged in the indictment, that is "by wilfully and feloniously removing the engines and navigational instruments of a vessel of the United States, with the intent to injure or endanger the safety of said vessel." Franicevich's counsel stipulated that the MANTARAY is a vessel of the United States:

"MR. WHEELER: Your Honor, we will stipulate that it is a vessel of the United States. We are not making any dispute about that at all.

"THE COURT: All right. Let it be admitted then."

(App. 76).³

Franicevich's counsel vigorously urges, however, that there is not sufficient evidence to prove the intent charged in the indictment, i. e., "with the intent to injure or endanger the safety of said vessel." Franicevich's position was made clear to the district court by his requested instruction No. VI:

"As a necessary element of the defense for which the defendant is being prosecuted, it must be proved beyond a reasonable doubt that he, Motto Franicevich, willfully and knowingly entered into an agreement with Calvin J. Pelas, Sr., the object or purpose of which was to commit an offense against the United States in that they were to feloniously and unlawfully remove the engines of a vessel of the United States with the intent to injure or endanger the safety of that vessel.

"I charge you that the prohibited intent must go further than a mere intent to remove the engines themselves, and that the intent required is one to injure or endanger the vessel as a whole through the removal of the engines.

"In other words, if you find that there was an agreement to merely remove the engines of a vessel of the United States with the intention only of rendering that vessel incapable of navigation under its own power, you must then acquit the defendant."

Franicevich's contention as to the intent required by the statute is supported by two district court decisions—United States v. Saglietto, E.D.Va.1941, 41 F. Supp. 21, 26, et seq., and United States v. Martini, S...