United States v. Terry Sempf , 649 F. App'x 270 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-2023
_____________
UNITED STATES OF AMERICA
v.
TERRY L. SEMPF,
Appellant
_____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
W.D. Pa. No. 2-12-cr-00123-001
District Judge: The Honorable David S. Cercone
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 19, 2016
Before: SMITH, HARDIMAN, and SHWARTZ, Circuit Judges
(Filed: May 20, 2016)
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OPINION
_____________________

This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
SMITH, Circuit Judge.
Terry Sempf, a former letter carrier with the United States Postal Service,
was found guilty of conspiracy to transport stolen property, in violation of 18
U.S.C. § 371, and of interstate transportation of stolen property, in violation of 18
U.S.C § 2314. He now appeals his convictions and claims that there were three
errors below. First, he argues that the District Court erred in denying his motion to
suppress the recordings of several conversations between him and the
Government’s cooperating informant. Second, he asserts that it was error for the
District Court not to instruct the jury on the specific list of overt acts mentioned in
the indictment. Third, he claims that the District Court should not have given the
jury a willful blindness instruction as there was no evidence to support it. After
considering all three of Sempf’s claims, we hold that none have merit and therefore
will affirm his judgment and sentence.
I.
Sempf, in addition to working as a letter carrier, sold products at a flea
market in Rogers, Ohio for several years. This side job led to trouble when Sempf
started selling stolen goods that he obtained from several individuals at deep
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discounts.1 One such individual was Tracey Orrico. Orrico was at the time
addicted to crack cocaine and shoplifted to support her drug addiction. After
stealing certain retail products, Orrico would contact Sempf and set up a time to
meet and sell him the products. As time passed, Sempf and Orrico began to work
together more closely. Sempf even helped Orrico buy a car to facilitate her
shoplifting, making payments on Orrico’s behalf directly to the car dealership.
Orrico was eventually caught shoplifting and agreed to cooperate with law
enforcement, claiming that she worked with Sempf and that he told her what to
steal. To investigate this story, the police, in cooperation with the FBI, set up
several sting transactions in which they arranged for Orrico to meet with and sell
approximately $5,000 worth of goods to Sempf. The Government then bought
several of these items back from Sempf’s flea market booth on two separate
occasions. In addition to the undercover sales, law enforcement officers, with
Orrico’s consent, recorded several telephone calls and in-person conversations
between Sempf and Orrico.
After gathering this evidence, the police executed a search warrant on
1
Because the facts are reviewed here to determine whether the District Court
properly denied Sempf’s motion to suppress, we construe the record in the light
most favorable to the Government. United States v. Myers, 308 F.3d 251, 255 (3d
Cir. 2002).
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Sempf’s home. This led to the recovery and removal of more products from the
sting operation as well as additional stolen property, some of which still had
security tags attached.
II.
Sempf first challenges the District Court’s determination that Orrico
voluntarily consented to the telephone and in-person recordings of her
conversations with Sempf. As we noted in United States v. Antoon, federal law
requires the consent of at least one party to the conversation before it can be
electronically recorded. 933 F.2d 200, 203 (3d Cir. 1991). Consent, as we said in
Antoon, “is a question of fact determined from the totality of the circumstances.”
Id. Thus, “[t]he ultimate test of voluntariness is whether, under the circumstances,
the consent was an exercise of free will or whether the actor’s free will ‘has been
overborne and his capacity for self-determination critically impaired.’” Id.(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)). We further
clarified that “[c]onsent to a wiretap is not voluntary where it is coerced, either by
explicit or implicit means or by implied threat or covert force.” Id. at 203-04
(internal quotation marks and citations omitted). That said, we also held in Antoon
that our review of the District Court’s determination is for clear error. Id. at 204.
Thus, the District Court’s finding that consent was voluntary will not be overturned
unless it is “(1) completely devoid of minimum evidentiary support displaying
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some hue of credibility, or (2) bears no rational relationship to the supportive
evidentiary data.” Frett-Smith v. Vanterpool, 511 F.3d 396, 400 (3d Cir. 2008)
(quoting Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972)).
On the record before us, we cannot conclude that the District Court
committed clear error. Orrico signed a written consent form stating that her
consent was voluntary, and she verbally consented before each recording. While
Orrico was motivated by a desire to avoid going to jail, her own self-interest does
not undermine the voluntariness of her consent. “An individual’s decision to allow
the police to record a phone conversation . . . is not necessarily involuntary just
because that individual’s motives were self-seeking, or because [s]he harbored
expectations of personal benefit.” United States v. Kelly, 708 F.2d 121, 125 (3d
Cir. 1983). The circumstances surrounding Orrico’s consent also do not suggest
that she was coerced into consenting. She was not in custody at the time the forms
were signed and she was not asked to consent to the recordings until approximately
two months after her arrest. Orrico also did not express any hesitation when
agreeing to the recordings. All this suggests the recordings were conducted after
proper consent was obtained.
III.
Sempf next claims that it was plain error for the District Court not to tell the
jury which specific overt acts were listed in the indictment. While Sempf admits
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that the District Court did properly instruct the jurors that they must unanimously
agree on a particular overt act, he claims that the District Court “failed to
enumerate the overt acts as set forth in the indictment,” and “[a]s such, the jury
could not possibly have unanimously agreed on the same overt act, as they were
never told what the overt acts alleged in the indictment were.” However, as we
stated in United States v. Schurr, 794 F.2d 903, 907 n.4 (3d Cir. 1986), “[i]t is well
settled that the government can prove overt acts not listed in the indictment.”
Thus, because the jury was told that it had to unanimously agree on the
commission of at least one overt act, there was no plain error. See United States v.
Adamo, 534 F.2d 31, 38 (3d Cir. 1976) (“There is general agreement that the
Government is not limited in its proof at trial to those overt acts alleged in the
indictment.”).
IV.
Finally, Sempf argues that it was error for the District Court to give a willful
blindness instruction, as the Government’s theory throughout the trial was that
Sempf had actual knowledge and intentionally directed Orrico and other suppliers
to steal certain products. Sempf claims, therefore, that “[t]here was no room in this
case for a willful blindness instruction in that a willful blindness theory was
completely inconsistent with the factual theory presented from opening to closing
by the government.” This same argument was rejected in United States v. Wert-
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Ruiz, 228 F.3d 250, 255-56 (3d Cir. 2000). There, the defendant argued that the
government only adduced evidence of her actual knowledge of the conspiracy, and
that the willful blindness instruction was inconsistent with the government’s theory
of the case. Id. We disagreed, explaining that even if evidence was introduced
only to support the claim the defendant had actual knowledge of the illegal
conspiracy, we were also “mindful that the jury was entitled to decide that only
part of the government’s evidence was credible.” Id. at 256. Accordingly, we held
that introducing evidence suggesting actual knowledge was not “inconsistent with
the conduct of an individual who willfully blinded herself from the source of the
funds with which she dealt and the nature of those activities.” Id.The same is true here. While the Government’s theory was that Sempf knew
what Orrico was doing and thus that the products were stolen, this is not
inconsistent with a theory of willful blindness, as the jury was entitled to disbelieve
any portion of the Government’s case. Thus, for example, the jury could have
concluded that Sempf deliberately avoided learning the truth about how Orrico was
obtaining the products at such a deep discount. Indeed, Sempf claimed that he
believed Orrico had obtained the products as a result of extreme couponing. To
conclude that the Government’s evidence could support only “actual knowledge
that the merchandise was stolen or . . . no knowledge at all” would ignore the fact
that the jury is free to reassess the evidence and make its own credibility
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determinations.
V.
For the reasons stated above, we will affirm the judgment and sentence
imposed by the District Court.
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