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

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
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U.S. COURT OF APPEALS
No. 98-2519 ELEVENTH CIRCUIT
06/03/99
-------------------------------------------- THOMAS K. KAHN
CLERK
D. C. Docket No. 97-334-CR-T-25C
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SALVATORE PISTONE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 3, 1999)
Before EDMONDSON and BLACK, Circuit Judges, and PAUL*, Senior District Judge.
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* Honorable Maurice M. Paul, Senior U.S. District Judge for the Northern District of
Florida, sitting by designation.
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.
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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?
(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. 1983).
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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.
The following summary of the facts -- which are supported by the record --
is taken from the government’s brief:
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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.
4
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
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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
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
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.
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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.
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 (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. For the same reason, we refuse to imply an overt-act requirement in the
language of the Hobbs Act.
VI. CONCLUSION
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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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