United States v. Pistone , 177 F.3d 957 ( 1999 )

UNITED STATES of America, Plaintiff-Appellee,
v.
Salvatore PISTONE, Defendant-Appellant.
No. 98-2519.
United States Court of Appeals,
Eleventh Circuit.
June 3, 1999.
Appeal from the United States District Court for the Middle District of Florida. (No. 97-334-CR-T-25C),
Henry L. Adams, Jr., Judge.
Before EDMONDSON and BLACK, Circuit Judges, and PAUL*, Senior District Judge.
PER CURIAM:
I. INTRODUCTION
This is an appeal from a jury verdict on a one-count indictment charging Defendant Pistone, and two
co-defendants, Sean Michael Kirlew and Nicholas Andrew King, with violating 18 U.S.C. § 1951 by
combining, conspiring, confederating and agreeing to rob an armored car by means of actual and threatened
force, violence, and fear of injury to the armored car guards. His co-defendants entered guilty pleas, received
5K1.1 certificates, and each was sentenced to thirty (30) months imprisonment and three years of supervised
release. The district judge denied Pistone's motion for a new trial, his two motions for judgment of acquittal
notwithstanding the verdict, and his renewed motion for judgment of acquittal, and then sentenced Pistone
within the guidelines to 112 months imprisonment and three years of supervised release. Pistone appeals the
denial of his motions and the district judge's increase of his offense level by two levels, under U.S.S.G. §
2B3.1(b)(1), because the object of the offense was to take the property of a financial institution.
II. ISSUES ON APPEAL
(1) Whether, as a matter of law, the government is required to allege and prove an overt act in a
prosecution for conspiracy to obstruct commerce in violation of 18 U.S.C. § 1951?
*
Honorable Maurice M. Paul, Senior U.S. District Judge for the Northern District of Florida, sitting by
designation.
(2) Whether the district court erred in denying Defendant's motions for new trial and for judgment of
acquittal?
(3) Whether the district court erred in finding that an object of the conspiracy of conviction was to take
the property of a financial institution, and in increasing his offense level from 22 to 24, under
U.S.S.G. § 2B3.1(b)(1), based on that finding?
III. STANDARDS OF REVIEW
(1) Issue One: The interpretation of a statute is a question of law subject to de novo review.
(2) Issue Two: The district court's denial of a motion for new trial is reviewed for an abuse of discretion.
See United States v. Cox, 995 F.2d 1041, 1043 (11th Cir.1993). Denials of motions for judgment of
acquittal, before and after entry of a verdict, are reviewed de novo, and to uphold the denial thereof,
this Court need only determine that a reasonable fact-finder could conclude that the evidence
established the defendant's guilt beyond a reasonable doubt. See United States v. Keller, 916 F.2d
628, 632 (11th Cir.1990).
(3) Issue Three: The district judge's factual findings are reviewed under the clearly erroneous standard,
while its interpretation of the Sentencing Guidelines is reviewed de novo. See United States v.
Gonzalez, 2 F.3d 369 (11th Cir.1993).
IV. FACTS
Pistone worked at All-American Auto ("AA Auto") in Tampa, Florida as an automobile salesperson.
Sometime before July 25, 1997, a new employee, Clifford Kelly began working at AA Auto.1 Kelly reported
to FDLE Agent Pope that Pistone had been talking about organizing an armored car robbery with the
co-defendants Sean Kirlew and Kirlew's half-brother, Nicholas King. Kirlew and King had attempted to rob
an armored car in May of 1996. Upon learning of the plans, agent Pope instructed Kelly to begin tape
recording his conversations with Pistone regarding the robbery plan. All but one of the conversations
regarding the armed robbery conspiracy were recorded, transcribed, and introduced at trial. The evidence
at trial consisted of five live witnesses (the two co-defendants, the confidential informant Kelly, agent Pope,
and a representative of Loomis Fargo) and the recorded conversations. No overt act was listed in the
indictment and none was presented at trial.
1
Unbeknownst to Pistone, Kelly was working as a confidential informant for the FDLE and the DEA as
part of his plea and cooperation agreement in an unrelated narcotics charge in the hopes of obtaining a 5K1.1
certificate.
2
The following summary of the facts—which are supported by the record—is taken from the
government's brief:
In July 1997, Pistone approached Kirlew and King separately and told them he wanted to rob an
armored car; they both testified that Pistone was serious in this regard, and both agreed to participate.
On July 26, King agreed with Pistone and Kelly to rob the guards of an armored car—King was
merely to take the money once the robbery was committed and he did not participate in the planning of the
actual robbery, the selection of a route to target, or a date for the robbery.
On July 29, Kirlew agreed with Pistone to rob the guards of an armored car and that Pistone would
organize the robbery. Kirlew knew that he and King would take the money from the guard and King would
drive. Kirlew had worked for Loomis Fargo as an armored car guard in Tampa, and he was familiar with the
Loomis routes, including the Sun Trust route.
Pistone, King, and Kirlew agreed that the robbery would have to net at least five to ten million dollars
to be worthwhile, and that they would have to use guns. All three of these men were arrested before they
carried out their plan.
At the close of the government's case, Pistone moved for a judgment of acquittal arguing that the
government was required to allege and prove an overt act in furtherance of the charged conspiracy. This
motion, as well as his two motions for judgment of acquittal notwithstanding the verdict, and a motion for
new trial, were all denied.
V. DISCUSSION
This court has considered and decided against him each of the issues raised by the Appellant, but
discusses only the first: whether, as a matter of law, the government is required to allege and prove an overt
act in a prosecution for conspiracy to obstruct commerce in violation of 18 U.S.C. § 1951? We have not
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previously decided this issue.2 The circuits which have spoken on it are divided. See United States v.
Tormos-Vega, 959 F.2d 1103, 1115 (1st Cir.1992); United States v. Maldonado-Rivera, 922 F.2d 934, 983
(2d Cir.1990); but see United States v. Stephens, 964 F.2d 424 (5th Cir.1992) (including, without elaboration,
an overt act among Hobbs Act's elements);United States v. Stodola, 953 F.2d 266, 270 (7th Cir.1992) (same);
United States v. Villarreal, 764 F.2d 1048 (5th Cir.1985) (same). We follow the First and Second Circuits:
no overt act must be alleged and proved.
The government urges that the district court properly concluded that the Hobbs Act conspiracy to
obstruct commerce, 18 U.S.C. § 1951, does not require an overt act. Appellant on the other hand, argues that
it does, because the term "conspires," found under the general crime of conspiracy in 18 U.S.C. § 371, does
require proof of an overt act. Over Pistone's objection, the jury was not instructed that they needed to find
an overt act had been committed in furtherance of the Hobbs Act conspiracy.
Defendant argues that Congress clearly intended for the 1946 Amendment to 18 U.S.C. § 420a-420e
(the Anti-Racketeering Act) to include an overt act as part of the definition of conspiracy, because, in 1948
the statute was amended again and included under the enactment of Title 18, Crimes and Criminal Procedure.
Under Part I of Title 18, entitled "The Crimes," Pistone notes that the general crime of conspiracy appears
at § 371, with an overt act as one of its elements.3 The amended version of § 1951 replaced the words:
"participates in an attempt" and "or acts in concert with another or with others," with: "attempts or conspires
so to do." Pistone argues that § 1951 now only contains definitions for robbery and commerce, but not
"conspires." For the definition of "conspires" within Title 18, Pistone argues that one would have to turn to
the general crime of conspiracy found at § 371, requiring an overt act.
2
In United States v. Thomas, 8 F.3d 1552, 1560 n. 18 (11th Cir.1993), this Circuit elected not to address
the issue because in that case the government had alleged and proven an overt act and because no argument
either way had been advanced regarding such a requirement.
3
Section 371, entitled "Conspiracy to commit offense or to defraud United States" provides for punishment
"[i]f two or more persons conspire ... to commit any offense against the United States ... and one or more of
such persons do any act to effect that object of the conspiracy...." 18 U.S.C. § 371.
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The plain language of § 1951 does not include the requirement of an overt act. Specifically, § 1951
provides:
[w]hoever in any way or degree obstructs, delays, or affects commerce ... by robbery ... or attempts
or conspires to so do, ... shall be fined under this title or imprisoned not more than twenty years.
18 U.S.C. § 1951. And, we will not imply in the Hobbs Act an overt-act requirement which Congress has
left out of the statute's language.
Contrary to Defendant's argument, the omission of an overt-act requirement in the Hobbs Act—in
contrast to the inclusion of such a requirement in § 371—counsels in favor of not imputing such a
requirement. The Supreme Court has previously refused to imply an overt-act requirement in a similar
context. See United States v. Shabani, 513 U.S. 10, 12, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994) (refusing to
imply an overt act requirement into 21 U.S.C. § 846 conspiracies). In Shabani the Court noted that in light
of Congress's specific inclusion of an overt-act requirement in the general conspiracy statute, § 371, its silence
regarding that requirement in a more specific conspiracy statute means that Congress dispensed with such
a requirement. See id. at 14, 115 S.Ct. 382. For the same reason, we refuse to imply an overt-act requirement
in the language of the Hobbs Act.
VI. CONCLUSION
We align ourselves with the First and Second Circuits and now decide that the government is not
required to allege and prove an overt act in a prosecution for conspiracy to obstruct commerce in violation
of 18 U.S.C. § 1951.
For the reasons stated herein, the judgment is AFFIRMED.
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