The United States v. Shirl F. Kapp, Ronald Klinger, Robert Lewis, Robert Miller and Paul Briggs. Appeal of Paul Briggs

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this appeal we are asked to examine the sufficiency of the evidence supporting jury verdicts of guilty of conspiracy to transport stolen motor vehicles in interstate commerce in violation of 18 U.S.C. §§ 371 and 2312 and of receiving a stolen motor vehicle in violation of 18 U.S.C. § 2313. We have reviewed the evidence in the light most favorable to the prosecution and have determined that the evidence in this admittedly sparse record is sufficient to sustain the verdicts. As well, we have examined the allegations of error and find that the trial judge correctly applied the law and did not abuse his discretion. Accordingly, we will affirm the judgment of sentence.

In a multi-count, multi-defendant indictment, defendant Paul Briggs was charged with one count of conspiracy to transport stolen motor vehicles in interstate commerce in violation of 18 U.S.C. §§ 371 and 2312 (Count I) and with one count of receiving a stolen motor vehicle in violation of 18 U.S.C. § 2313 (Count 10). Three of the five defendants pleaded guilty and Briggs and co-defendant Ronald Klinger were tried before a jury. The jury found Briggs guilty on both counts.

In essence, the facts of this particular case involve the alleged conspiratorial acts of John Gillum, Shirl Kapp and defendant Briggs as they relate to the interstate transportation of a stolen 1978 International tractor truck.

II.

Briggs challenges the sufficiency of the evidence on two grounds. In reviewing both claims, we must determine whether there is substantial evidence, when viewed in the light most favorable to the government, to uphold the jury’s verdict. United States v. Adams, 759 F.2d 1099, 1113 (3d Cir.1985). We find the evidence sufficient in this regard as to both claims.

A.

Briggs first argues that the single sale of the International truck to him was insufficient to make him a member of the conspiracy to transport vehicles in interstate commerce. He asserts that at best the government’s proof establishes that he was merely a buyer and not a conspirator to transport the vehicle in interstate commerce.

We begin with the essence of criminal conspiracy which is an agreement, either explicit or implicit, to commit an unlawful act, combined with intent to commit an unlawful act, combined with intent to commit the underlying offense. United States v. Inadi, 748 F.2d 812, 817 (3d Cir.1984), cert. granted, — U.S. —, 105 S.Ct. 2653, 86 L.Ed.2d 271 (1985); United States v. Wander, 601 F.2d 1251 (3d Cir.1979). The underlying offense involved here is the transportation of stolen vehicles in interstate commerce. In pertinent part 18 U.S.C. § 2312 provides:

Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years or both.

While the government must establish the elements of conspiracy beyond a reasonable doubt, this can be done entirely through circumstantial evidence. Inadi, supra at 817. Moreover, the existence of a conspiracy can be inferred “from evidence of related facts and circumstances from which it appears as a reasonable and logical inference, that the activities of the participants ... could not have been carried on except as the result of a preconceived scheme or common understanding.” United States v. Ellis, 595 F.3d 154, 160 (3d Cir.1979), cert. denied, 444 U.S. 838, 100 S.Ct. 75, 62 L.Ed.2d 49 (1979).

We note, however, that the relationship of a buyer and seller, standing alone, without any prior or contemporaneous understanding beyond the mere sales agreement, does not establish conspiracy to transport stolen goods even though the parties know of the stolen nature of the goods. Under these circumstances, there is no joint objective to commit the underlying offense charged here, for the buyer’s purpose is to buy and the seller’s is to sell. United States v. Mancillas, 580 F.2d 1301, 1307 (7th Cir.1978), cert. denied, 439 U.S. 958, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978).

Such is not the case before us. The evidence, when viewed as we must in the light most favorable to the government, substantiates circumstances from which Briggs’ active participation in the conspiracy to transport stolen motor vehicles in interstate commerce could be inferred. The evidence proves that there is more than a mere sales agreement involved in this case.

At trial the evidence established that co-conspirator John Gillum and another co-conspirator, Shirl Kapp stole a 1978 International tractor truck in Indiana. Kapp and his wife, Sandra Kapp drove the truck to their residence in Shippenville, Pennsylvania. The truck had no certificate of title or documentary registration. Kapp approached Briggs for this paperwork necessary to operate the truck, telling Briggs that the truck was the product of an insurance scam and the owner “did not want it to turn up again.” Briggs provided the fraudulent documents and Kapp made use of the vehicle for several months to haul coal.

Subsequently, Kapp and Gillum sold the International truck to Briggs for $5,000.00 in cash. Gillum specifically told Briggs that the vehicle was stolen and was lacking the legitimate paperwork necessary to operate the truck. Briggs responded by saying: • “I’ve got the paperwork.”

Although Briggs initially supplied the fraudulent paperwork to Kapp which would allow the truck to be operated within the state or interstate, this alone is not sufficient to link him to the conspiracy, for given the testimony it is uncertain that he knew the truck was stolen at this point in time; the requisite knowledge is.missing at this stage.¹ Rather, it is his providing of the fraudulent paperwork the second time for what he then knew was a stolen vehicle that implicates him in the conspiracy.

Gillum testified that Briggs was informed at the time of the sale of the truck to him that it was a stolen vehicle which did not possess the legitimate certificate of title or documentary registration. To this Briggs affirmatively responded: “I’ve got the paperwork.” When he agreed to supply the paperwork the second time, he knew that the vehicle was stolen. Moreover, he knew that Gillum and Kapp were involved in an unlawful venture which could not meet success (i.e., operating the vehicle in interstate commerce) unless paperwork was produced. By supplying fraudulent certificates of title and registration papers Briggs not only implicitly agreed to participate in the unlawful act but also exhibited the intent to commit- the underlying offense. The supplying of the paperwork essential to the conspiracy goes beyond the mere sales agreement and supports the jury’s determination that Briggs was a participant in the conspiracy to transport stolen vehicles in interstate commerce. That Briggs is the buyer is immaterial; that he supplied essential paperwork is critical. Accordingly, this sufficiency claim fails.

B.

Briggs next contends that the government did not introduce sufficient evidence of the interstate character of the 1978 International truck to support his conviction for receiving a stolen motor vehicle in interstate commerce. He argues that by the time he purchased the truck it had lost its interstate character.

The question of whether stolen goods transported in interstate commerce retain their interstate character is a question of fact for the jury, Powell v. United States, 410 F.2d 710, 712 (5th Cir.1969), which is “based on common sense and administered on an ad hoc basis.” United States v. Garber, 626 F.2d 1144, 1147 (3d Cir.1980), cert. denied, 449 U.S. 1079, 101 S.Ct. 860, 66 L.Ed.2d 802 (1981). The interstate character of a vehicle does not necessarily end when its interstate transportation ends. Powell, 410 F.2d at 713. The latter determination depends on important factors such as the lapse of time after the interstate transport and what is done with the vehicle after the transport. Id. at 713. At this juncture, we must again view the evidence in the light most favorable to the government to determine whether there was substantial evidence connecting the vehicle to interstate commerce. Id. at 712.

Gillum testified that both he and Kapp stole the truck in Indiana. Kapp testified, however, that he received the truck from Gillum in Indiana, and although he did not know the truck was stolen at that time, he knew it was undocumented. Kapp further testified that he and his wife drove the truck to Pennsylvania. Kapp then obtained false documentation for the truck from Briggs and used the truck to haul coal within Pennsylvania for three or four months before it was sold to Briggs for $5,000.

Briggs contends that he is “once removed” from the theft in interstate commerce because Kapp did not know that the vehicle was stolen. The jury, however, apparently believed Gillum’s testimony that Kapp knew it was stolen.

Both Kapp and Gillum testified that Kapp used the 1978 International truck as a “loaner” while Gillum was repairing another truck for Kapp. Thus, the fact that Kapp hauled coal with the truck for three or four months does not necessarily eliminate the interstate character of the truck, since the jury could have found that the stolen vehicle had not yet come to rest until it was sold to Briggs. This second sufficiency claim also fails.

III.

In addition to the sufficiency claims, Briggs raises several allegations of trial error. We find no merit to any of the allegations.

Briggs contends that the trial court erred in refusing to charge the jury regarding the fair market value of the 1978 International tractor truck. At trial, government witness Jerry Howell, owner of the 1978 International, testified that the vehicle was insured for $30,000 and that the insurance company paid him $25,500 because of the theft. The government argued that the jury could infer that Briggs knew the truck was stolen because of the difference between its value and the $5,000 that Briggs actually paid for the truck.

In submitting his point for charge, Briggs requested that the district court charge the jury that the government had to prove the value of the truck as an essential element of the case. Value was an essential element, argued Briggs, since the indictment alleged as an overt act that Kapp sold Briggs a stolen 1978 International tractor or on or about December 8-10, 1980 “valued at approximately $30,000.” This reference to value in the indictment does not, however, transform the description to an overt act. Moreover, the government is not required either to prove all the overt acts to a conspiracy or all the facts supporting the overt act. United States v. Adamo, 534 F.2d 31, 38 (3d Cir.1976), cert. denied, 429 U.S. 841, 97 S.Ct. 116, 50 L.Ed.2d 110 (1976). It is sufficient that the government prove a single overt act in furtherance of the conspiracy. Id. at 38-39.

The district court denied the charge on the ground that value is not an element of the offense defined by 18 U.S.C. § 2313.² We find no error. Section 2313 requires the government to prove only that the defendant received or concealed a motor vehicle in interstate commerce which the defendant knew to be stolen. Value is not an element of this offense. Briggs was free to introduce evidence of value to rebut the inference created by the government’s evidence; he was not, however, entitled to an instruction on value.

Briggs argues that the district court erred by refusing to charge the jury on the difference between “suspicion” and “knowledge”. Briggs presented the following point for charge:

The word “knowingly”, as the term has been used from time to time in these instructions, means that the act was done voluntarily and intentionally and not because of mistake or accident.

Suspicion does not amount to knowledge. Although the trial judge gave the jury a definition of “knowledge,” he refused to charge the jury that “[sjuspicion does not amount to knowledge.”

In refusing Briggs’ charge, the district court did not abuse its discretion. Under 18 U.S.C. § 2313, the government must prove that the defendant knew that the motor vehicle in question was stolen. Briggs testified that he suspected but did not know that the 1978 International truck was stolen. Clearly a defendant is entitled to a jury instruction on a theory of defense whenever some evidence supports that theory, United States v. Garner, 529 F.2d 962, 969-70 (6th Cir.), cert. denied, 429 U.S. 850, 97 S.Ct. 138, 50 L.Ed.2d 124 (1976); here, the district court gave the jury a definition of “knowledge” three times. This was sufficient to encompass Briggs’ argument that he lacked specific knowledge that the truck was stolen. The district court is not obligated to use the language the defendant proffers. United States v. Ammar, 714 F.2d 238, 251 n. 10 (3d Cir.1983), cert. denied, 464 U.S. 936, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983).

Briggs argues that the government produced insufficient evidence of conspiracy to allow introduction of statements made by Briggs’ co-conspirators. Federal Rule of Evidence 801(d)(2)(E)³ requires the government to establish by a fair preponderance of the evidence that a conspiracy exists and that it included the defendant. United States v. Gibbs, 739 F.2d 838, 843 (3d Cir.) (in banc), cert. denied, — U.S. —, 105 S.Ct. 779, 83 L.Ed.2d 774 (1984). See United States v. Ammar, 714 F.2d at 247. The trial court refused to allow any co-conspirator statements to be introduced into evidence until the government produced evidence of a conspiracy between Gil-lum, Kapp and Briggs. During Kapp’s testimony, and after Mrs. Kapp’s testimony, the court ruled that there was adequate evidence produced. Kapp had testified that he received the stolen 1978 International truck from Gillum and transported it, that he sought papers for it, that he told Briggs the truck had been part of an “insurance scam”, and that Briggs provided the paperwork. Mrs. Kapp had testified that sometime after the sale of that truck to Briggs, Kapp told Briggs the truck was “hot”, meaning stolen, and Briggs was supposed to get rid of it. This evidence was sufficient for the court to conclude that Briggs’ participation in a conspiracy was more probable than not. See Id. at 250. United States v. Jannotti, 729 F.2d 213, 218 (3d Cir.), cert. denied, — U.S. —, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984). Therefore, the co-conspirator statements were admissible.

Briggs argues that the district court improperly admitted a certificate of insurance relating to the value of the 1978 International truck when the witness giving testimony as to the value of the truck did not have knowledge of how the document was made, prepared or maintained. Briggs contends that admission of this document denied him the right to confront witnesses against him under the Sixth and Fourteenth Amendments.

The government introduced this certificate during the testimony of Jerry Howell, the original owner of the truck. As we noted above, the government sought to show the value of the truck to raise the inference that Briggs, who paid substantially less .than what the government contended was the market value, knew the truck was stolen. Howell also testified that he bought the truck for $41,000 and received an insurance settlement of over $25,000. Howell’s testimony as to his purchase price, his insurance coverage, and his settlement was based on his first-hand knowledge, and, since he was available for cross-examination on those issues, it was not hearsay. As to relevancy, the district court ruled that the amount of insurance is “some evidence of what the vehicle was worth.” We agree.

Briggs’ counsel objected to introduction of the certificate of insurance to show the truck’s value, stating that the government must produce a representative from the insurance company to explain how that value was determined, so that he could have the opportunity to cross-examine him. The court ruled the certificate admissible, later explaining that it was admissible under the “business record exception” to the rule against hearsay. Fed.R.Evid. 803(6).

We need not address this issue because the admission of the certificate was harmless error in these circumstances; it was, at most, duplicative of Howell’s admissible testimony.

Briggs challenges the district court’s refusal to admit a tape recording of a conversation between Gillum, who at the time the tapes were made was a government informant, and Kapp. Briggs sought to introduce the tapes as exculpatory on the issue of his knowledge that the truck was stolen. Briggs’ counsel contended the tapes were co-conspirator statements admissible under Federal Rule of Evidence 801(d)(2)(E). The district court held that the tapes were inadmissible because they were not offered “against a party” as is explicitly required for admissibility under Rule 801(d)(2).

We agree with the district court. There is no authority for the proposition that the prosecution is a “party” against whom such evidence can be offered. The rule is intended to allow for introduction of co-conspirators’ statements as evidence against them as defendants. It cannot be stretched to encompass Briggs’ interpretation. See United States v. Hackett, 638 F.2d 1179 (9th Cir.1980) cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981). (Co-defendant’s exculpatory hearsay statement inadmissible). Since Briggs limited the proffer of the tapes to the trial court on that theory, we will not consider whether they would have been admissible under any of the other theories he now advances.

For the foregoing reasons, the judgment of sentence entered by the district court will be affirmed.

1 . Briggs argues arguendo that his knowing involvement with a stolen vehicle occurred after its interstate transportation had come to rest. Briggs was charged, however, with conspiracy and neither it nor the substantive underlying offense necessarily requires the actual physical driving across state lines by Briggs as a conspirator. Discussing the concept of transportation in interstate commerce under 18 U.S.C. § 2312 in United States v. McElroy, 644 F.2d 274 (3d 1981), affirmed 455 U.S. 642, 102 S.Ct. 1332, 71 L.Ed.2d 522 (1982), we recognized that "[A]ssuming the presence of the requisite knowledge and guilty purpose, any driving, whether wholly within the state of origin, state of destination, or from and to, if done as a substantial step in the furtherance of the intended interstate journey is ... we think, within the act.” Id. at 280, citing Barfield v. United States, 229 F.2d 936, 939 (5th Cir.1956).

Judge Higginbotham would hold that it would also have been permissible for a jury to find that when Briggs provided the first set of fraudulent paperwork to Kapp that Briggs knew the truck had been stolen.

2 . Section 2313 in pertinent part provides:

Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

3 . Fed.R.Evid. 801(d)(2)(E) allows an exception to the hearsay rule when a statement is made by a co-conspirator "during the course and in furtherance of the conspiracy.”