United States v. Overshon

• Decision Date: 10 April 1974
• Docket Number: No. 73-1810 and 73-1811.,73-1810 and 73-1811.
• Citation: 494 F.2d 894
• Parties: UNITED STATES of America, Appellee, v. Curtis Charles OVERSHON and John Overshon, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

494 F.2d 894 (1974)

UNITED STATES of America, Appellee, v. Curtis Charles OVERSHON and John Overshon, Appellant.

Nos. 73-1810 and 73-1811.

United States Court of Appeals, Eighth Circuit.

Submitted March 15, 1974.

Decided April 10, 1974.

Rehearing and Rehearing Denied April 30, 1974.

Charles L. Merz, and Burton C. Bernard, St. Louis, Mo., for appellants.

Michael W. Reap, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before VAN OOSTERHOUT and MATTHES, Senior Circuit Judges, and LAY, Circuit Judge.

Rehearing and Rehearing En Banc Denied in No. 73-1810 April 30, 1974.

MATTHES, Senior Circuit Judge.

Appellants, John Overshon and Curtis Charles Overshon, who are brothers, and five other persons, were named as defendants in a thirteen-count indictment filed in the United States District Court for the Eastern District of Missouri.¹ Eleven of the thirteen counts alleged the commission of substantive offenses by one or more of the defendants. Relevant here is Count 3, which charged that appellant Curtis Charles Overshon, having previously been convicted of a felony, did knowingly receive, possess and transport in commerce a firearm in violation of 18 U.S.C. App. § 1202(a) (1).

Count 12 charged that defendants Sharp, Hodges, John Overshon and Curtis Charles Overshon entered into a conspiracy with diverse other persons unknown to the grand jury to engage in the business of dealing in firearms without a license, in violation of 18 U.S.C. §§ 371 and 922(a) (1). Twenty-four overt acts were allegedly committed in furtherance of the conspiracy. Count 13 also alleged a conspiracy, but since appellants were not named as conspirators in that count, we forego further discussion of the allegations of Count 13.

All of the charged parties except appellants pleaded guilty to at least one of the charges. All other charges against those pleading guilty were dismissed. Marvin Sharp, who the evidence demonstrates played a dominant role in overt acts forming the basis of the conspiracy, pleaded guilty to engaging in the business of dealing in explosive materials without a license in violation of 18 U.S. C. § 842(a)(1).

Appellants were tried jointly but were represented by different court-appointed counsel. Both were convicted on the conspiracy charge, and Curtis was found guilty of the substantive offense of receiving and possessing a firearm. These appeals are from the judgments of conviction.

The crucial issue for consideration is the sufficiency of the evidence to support the verdicts of the jury and the judgments entered thereon. Curtis mounts several attacks against the substantive charge and he joins with John in challenging the conviction under the conspiracy count. For reasons stated below, we affirm the conspiracy conviction of both appellants and reverse the substantive conviction of Curtis.

Preliminarily, and in view of the arguments urged upon us in support of the claim that the conspiracy convictions cannot stand, we review the principles which have been enunciated by the courts as guidelines in resolving whether the evidence is of sufficient quantity and quality to support a conviction under the conspiracy statute, 18 U.S.C. § 371.

Of course, the government carries the burden at trial of proving the existence of the conspiracy alleged. But the existence of a criminal conspiracy or a defendant's participation in that scheme need not be proven by direct evidence. "A fraudulent scheme . . . may be and usually is established by circumstantial evidence; by inferences from the evidence of relationship of the parties and by overt acts, conduct and other probative circumstances." Isaacs v. United States, 301 F.2d 706 (8th Cir.), cert. denied, 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962). See also Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Langel v. United States, 451 F.2d 957 (8th Cir. 1971); United States v. Hanon, 428 F. 2d 101 (8th Cir. 1970), cert. denied, 402 U.S. 952, 91 S.Ct. 1608, 29 L.Ed.2d 122 (1971); Jacobs v. United States, 395 F. 2d 469 (8th Cir. 1968); 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).

Moreover, once the government has established the existence of a conspiracy, even slight evidence connecting a particular defendant to the conspiracy may be substantial and therefore sufficient proof of the defendant's involvement in the scheme. United States v. Hutchinson, 488 F.2d 484 (8th Cir. 1973); Langel v. United States, supra; United States v. Warner, 441 F.2d 821 (5th Cir. 1971); Cave v. United States, supra; Isaacs v. United States, supra; Hernandez v. United States, 300 F.2d 114 (9th Cir. 1962). See also United States v. Henderson, 446 F.2d 960 (8th Cir.), cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971).

If a defendant's participation in a conspiracy has been established, then the defendant is culpable for everything said, written or done by any of the other conspirators in furtherance of the common purpose of the conspiracy. United States v. Guy, 456 F.2d 1157 (8th Cir.), cert. denied, 409 U.S. 896, 93 S.Ct. 136, 34 L.Ed.2d 153 (1972); United States v. Francisco, 410 F.2d 1283 (8th Cir. 1969); Wangrow v. United States, 399 F.2d 106 (8th Cir.), cert. denied, 393 U.S. 933, 89 S.Ct. 292, 21 L. Ed.2d 270 (1968); Nassif v. United States, 370 F.2d 147 (8th Cir. 1966); 16 Am.Jur.2d Conspiracy § 14 (1964). Even if the defendant joined the conspiracy subsequent to its original formation, he may be held responsible for acts committed by other conspirators in furtherance of the conspiracy before he joined it. United States v. Cimini, 427 F.2d 129 (6th Cir.), cert. denied, 400 U. S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970); United States v. Cerrito, 413 F.2d 1270 (7th Cir. 1969), cert. denied, 396 U.S. 1004, 90 S.Ct. 554, 24 L.Ed.2d 495 (1970); Nassif v. United States, supra; 16 Am.Jur.2d Conspiracy § 15 (1964).

Finally, we note the well-established rule that an appellate court considering the record in a criminal case on appeal from a jury verdict of guilty must view the evidence in the light most favorable to the verdict rendered. Likewise, the appeals court must accept as established all reasonable inferences from the evidence that tend to support the action of the jury. See, e. g., United States v. Francisco, supra; Jacobs v. United States, supra; Cave v. United States, supra; Koolish v. United States, 340 F. 2d 513 (8th Cir.), cert. denied, 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed.2d 724 (1965); Thogmartin v. United States, 313 F.2d 589 (1963).

Mindful of appellants' main claim that there was a lack of proof of the conspiracy and of their participation therein if it in fact existed, we review the evidence in some detail.

In January, 1973, two special agents of the Bureau of Alcohol, Tobacco and Firearms of the United States Treasury Department, Robert Beattie and Bruce Bennett, began undercover work in Phelps County, Missouri, particularly in and near Rolla, the county seat, to investigate federal criminal activity. The agents rented a trailer in the Crestview Trailer Court, a facility located approximately six miles south of Rolla and managed by the above-named Marvin Sharp, one of the conspirators.

The government agents, through association with Sharp, gained his confidence, and in late January he offered to sell Beattie and Bennett guns and other items. This initial approach was followed on February 22, 1973, by a firm offer to the agents by Sharp in the presence of Betty Hodges, Lorraine Sharp (Marvin Sharp's wife), and John Overshon to sell them articles the group had obtained in a burglary.

Since Beattie and Bennett expressed interest, the entire group drove in three cars to a location on a secluded road several miles from the trailer park. There John Overshon and Marvin Sharp retrieved two guns from the car Overshon had been driving, and allowed the agents to inspect the firearms. Beattie negotiated with Marvin Sharp about the price of the guns and a television set, and the $125 agreed upon was tendered to Sharp in the presence of John Overshon. Both Sharp and Overshon stated to the agents that it had been a pleasure "doing business" with them. When Beattie and Bennett explained that they would be out of town for a few days, John Overshon responded: "Well, we'll probably have some more guns for you by the time you get back."

On March 13, 1973, the government agents met with Marvin Sharp, Betty Hodges, and the Overshon brothers. John Overshon introduced Beattie and Bennett to Curtis Overshon for the first time. John reassured his brother by explaining, "These boys are all right. I've done business with them before." Marvin Sharp advised the agents that Curtis and John were going to assist Sharp in obtaining seventeen guns for Beattie and Bennett, a deal which Sharp and the agents had discussed previously.

Two days later, on March 15, Beattie and Bennett again met Sharp and Hodges. Sharp stated that he had a "real load" of guns for the agents and noted that he would have to get a good price for the lot because there would be a four-way split of the proceeds. Sharp and Hodges then drove with the agents to the Overshon residence near Rolla. Passing by the Overshon home, Sharp wordlessly motioned to the Overshons from the car.

John and Curtis Overshon, occupying their own car, followed the auto containing Sharp, Hodges, and the agents to a shed in a wooded area outside Rolla. Everyone but Betty Hodges entered the shed. Inside, Sharp and Curtis Overshon uncovered a cache of eight firearms — five rifles, two shotguns, and a pistol, hidden underneath a sheet and debris in one corner of the shed. The guns were passed around and inspected by everyone.

Beattie and Sharp once again did the negotiating over price, and a sum of $545 was agreed upon between them. At that point Sharp turned to Curtis Overshon and asked, "Curt, this is our deal, does that sound all right to you?" To...