United States v. Schramm

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
1-30-1996
United States vs. Schramm
Precedential or Non-Precedential:
Docket 94-3619
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 94-3619
___________
UNITED STATES OF AMERICA
vs.
RONALD SCHRAMM; ANTHONY DeCELLO; OLEG
VINOKUROV, a/k/a Alex; MICHAEL ZUBINSKY,
a/k/a Steve; ASHOK TYAGI; AMINDERJEET S.
AULAKH, a/k/a Andy; AMARBIR SINGH, a/k/a
Sonny; MICHAEL DUBINSKI, a/k/a Steve
ANTHONY DeCELLO,
Appellant.
___________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 93-cr-00188-02)
___________
ARGUED DECEMBER 12, 1995
BEFORE: BECKER, ROTH and LEWIS, Circuit Judges.
(Filed January 30, 1996)
___________
W. Thomas McGough, Jr. (ARGUED)
Reed, Smith, Shaw & McClay
435 Sixth Avenue
Pittsburgh, PA 15219-1886
Attorney for Appellant
1
Bonnie R. Schlueter
James H. Love (ARGUED)
Office of United States Attorney
633 U.S. Post Office & Courthouse
Pittsburgh, PA 15219
Attorney for Appellee
___________
OPINION OF THE COURT
___________
LEWIS, Circuit Judge.
Anthony DeCello appeals from a conviction for
conspiring to commit mail fraud for the purpose of avoiding
Pennsylvania's Fuel Use Tax. In his appeal, DeCello raises four
issues: (1) that there is insufficient evidence to support his
conviction; (2) that the evidence adduced at trial established a
prejudicial variance with the conspiracy charged in the
indictment; (3) that his prosecution for conspiring to commit
mail fraud violates principles of federalism; and (4) that the
district court erred when it admitted a copy of his 1992 tax
return at trial.
Because we agree with DeCello that there is
insufficient evidence to support the jury's verdict, we need not
address the remaining three issues. For the reasons which
follow, we will reverse DeCello's conviction.
I.
DeCello was indicted along with six co-defendants for
criminal conspiracy in violation of 18 U.S.C. § 371. The
conspiracy count alleged a single conspiracy with two objects:
2
(a) to defraud the United States regarding federal diesel fuel
excise taxes, and (b) to use the United States mail in an effort
to defraud the Commonwealth of Pennsylvania with respect to the
state's Fuel Use Tax, a tax imposed on the sale of diesel motor
fuel.
A. Factual Background
The conspiracy involved a scheme in which wholesalers
and retailers attempted to avoid paying federal and state taxes
imposed on what is known as "number two" fuel oil. Except for
small variations in additives, "number two" fuel oil can be used
as either home heating oil or diesel fuel. If used as diesel
fuel, it is subject to a Federal Excise Tax of 20.1 cents per
gallon. The Commonwealth of Pennsylvania imposes an additional
10.35 cents per gallon Oil Franchise Tax at the wholesale level,
and an additional 12 cents per gallon Fuel Use Tax at the retail
level. In contrast, when used as home heating oil, "number two"
fuel oil is not subject to any taxes.
The fuel taxes are collected and reported by the
respective sellers in the chain of commerce. Wholesale
distributors of diesel fuel are required to collect the federal
excise tax and the Commonwealth's Oil Franchise Tax, while
retailers are required to pay a Highway Fuel Use Tax to the
Commonwealth. Retailers must also file monthly fuel use tax
reports which include, among other information, the name of all
diesel fuel wholesale suppliers and the amount of diesel fuel
purchased from each supplier during each reporting period.
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Both federal and state law allow registered wholesale
participants to buy and sell number two fuel oil in tax-free
transactions. For example, wholesalers of diesel fuel are
required to register with the Internal Revenue Service for Form
637 ("Registration For Tax Free Transactions"). This allows a
registered wholesaler to sell diesel fuel to another registered
wholesaler without paying the federal excise tax. Retailers and
unregistered wholesalers, on the other hand, are not authorized
to obtain Form 637. Consequently, any sale of diesel fuel to a
retailer or to an unregistered wholesaler is subject to excise
taxes.
The Commonwealth of Pennsylvania's excise tax law is
subject to a similar registration system. All retail sales of
diesel fuel are subject to Pennsylvania's Fuel Use Tax.
B. The Scheme
The conspiracy in this case allegedly involved fuel
wholesalers and retail truck stops attempting to escape the
federal and state taxes imposed on diesel fuel. According to the
Government, the conspiracy accomplished this by having the
wholesalers invoice deliveries of taxable diesel fuel as
nontaxable sales of home heating oil. The retailers who accepted
delivery of this fuel paid in cash, kept the transactions off
their official books, adjusted the oil meters, mingled the
untaxed oil with oil that had been taxed and acquired from other
wholesalers, and filed false tax returns. In this way, both the
wholesalers and retailers avoided paying their respective taxes.
By avoiding these taxes, the wholesalers were able to undercut
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the prices charged by legitimate wholesale competitors. The
retailers were then able to purchase diesel fuel at lower prices
and keep the transactions entirely off their books.
This particular scheme was the brainchild of Leon
Uzdin, who began his operations in the Philadelphia area, and
expanded them westward to the Pittsburgh area. According to the
indictment, Anthony DeCello participated in Uzdin's operation in
several ways: first, by recruiting haulers to deliver the fuel
to the participating truck stops; second, by picking up the
payments from the truck stops; and third, by delivering the cash
payments to the scheme's principals. In return, according to the
indictment, DeCello received a commission and expenses. Finally,
when Uzdin's relationship with a fuel supplier began to sour,
DeCello helped recruit a new fuel source.
DeCello and Uzdin initially met with Terry Tyhonas, a
hauler recruited by DeCello. At that meeting, DeCello asked
Tyhonas to furnish "[s]ome fuel with a paper and some fuel
without a paper." (i.e., with and without tax). After Tyhonas
turned them down, DeCello found Ronald Schramm, president of Judy
Oil Co. Schramm agreed to furnish the fuel oil and invoice the
sales to Main Line as home heating oil. This relationship
continued for almost a year, during which Judy Oil furnished
Uzdin with approximately eight million gallons of diesel fuel.
For his efforts in recruiting Schramm, DeCello was promised a
commission of one cent per gallon.
All of the participants allegedly filed false tax
returns during the scheme. Judy Oil filed quarterly federal
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excise tax returns which omitted all of the taxable sales that
were occurring between Judy Oil and the various retailers
involved in the scheme. The retailers involved filed federal and
state income tax reports which omitted untaxed deliveries and
sales of diesel fuel. In addition, DeCello filed a federal
income tax return in 1992 in which he allegedly omitted payments
and commissions obtained from Uzdin.
Five of DeCello's six co-defendants entered guilty
pleas to the conspiracy charge. DeCello and Schramm proceeded to
trial. The jury convicted DeCello on the conspiracy charge, and
convicted Schramm on conspiracy and other charges. Through
special verdict forms, the jury concluded that Schramm conspired
to defraud the United States and, as we will develop more fully
below, that DeCello conspired to commit mail fraud. DeCello's
post-trial motions were denied and this appeal followed.
The district court had jurisdiction over this matter
pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28
U.S.C. § 1291.
II.
The principal issue before us is whether there was
sufficient evidence to support the jury's conclusion that DeCello
entered into an agreement and knew that the agreement had the
specific unlawful purpose charged in the indictment,
particularly, to evade and defeat Pennsylvania's Fuel Use Tax.
United States v. Scanzello, 832 F.2d 18, 20 (3d Cir. 1987). Our
review of this issue is circumscribed by the fundamental
principle that:
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[i]t is not for [an appellate court] to weigh
the evidence or to determine the credibility
of witnesses. The verdict of a jury must be
sustained if there is substantial evidence,
taking the view most favorable to the
Government, to support it.
United States v. Glass, 315 U.S. 60, 80 (1942). A verdict will
only be overturned "if no reasonable juror could accept the
conclusion of the defendant's guilt beyond a reasonable doubt."
United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987).
Consequently, a "claim of insufficiency of the evidence places a
heavy burden on an appellant." United States v. McGlory, 968
F.2d 309, 321 (3d Cir. 1992) (quoting United States v. Gonzalez,
918 F.2d 1129, 1132 (3d Cir. 1990)).
Nonetheless, the government must prove each element of
a conspiracy beyond a reasonable doubt, and we have noted that
"the sufficiency of the evidence in a conspiracy prosecution
requires close scrutiny." United States v. Coleman, 811 F.2d
804, 807 (3d Cir. 1987). There must be substantial evidence
establishing "a `unity of purpose,' intent to achieve a common
goal, and an agreement to work together toward that goal."
McGlory, 968 F.2d at 321 (quoting United States v. Wexler, 838
F.2d 88, 90-91 (3d Cir. 1988)). Although all of the elements of
the government's case, including the existence of the agreement,
may be proven entirely through circumstantial evidence, United
States v. Kapp, 781 F.2d 1008, 1010 (3d Cir. 1986), "there must
be evidence tending to prove that defendant entered into an
agreement and knew that the agreement had the specific unlawful
purpose charged in the indictment." Scanzello, 832 F.2d at 20.
7
A. The Indictment
The indictment charged DeCello and his co-defendants
with a single conspiracy which sought to accomplish two purposes.
One purpose, set forth in paragraph 18(a) of the indictment, was
to:
[d]efraud the United States Department of the
Treasury and the Internal Revenue Service, a
department and agency of the United States,
by impeding, impairing, obstructing, and
defeating the lawful government functions of
the Department of the Treasury and the
Internal Revenue Service in the
ascertainment, computation, assessment, and
collection of the revenue; to wit, federal
diesel fuel excise taxes.
App. at 194 (emphasis added). The second purpose, set forth in
paragraph 18(b), was entirely different in that it involved a
different underlying offense (mail fraud) and a completely
different type of fuel tax. Here, the grand jury charged that
DeCello conspired to:
[d]evise and execute a scheme and artifice to
defraud, and to obtain money and property by
means of false and fraudulent pretenses,
representations and promises, furthered by
the use of the United States mail,
particularly, to evade and defeat the full
payment of the Fuel Use Tax imposed on the
sale of diesel motor fuel under the laws of
the Commonwealth of Pennsylvania in violation
of Title 18, United States Code, § 1341 (Mail
Fraud).
App. at 194-95 (emphasis added).
The court provided the jury with a special verdict form
which permitted the jury, if they found DeCello guilty of
conspiracy, to select paragraph 18(a) and/or paragraph 18(b) as
the purpose and object of the conspiracy agreed to by DeCello.
8
The jury marked the purpose and object corresponding to
paragraph 18(b), specifically that DeCello had agreed to "violate
federal law, namely federal law prohibiting mail fraud."
DeCello argues that the evidence produced by the
government was insufficient to sustain his conspiracy conviction
because at best, it established that he knowingly participated in
a scheme to evade federal wholesale taxes, the subject of
paragraph 18(a), but failed to establish that he knowingly
entered into an agreement to use the United States mail to evade
and defeat the full payment of Pennsylvania's Fuel Use Tax, which
is the focus of paragraph 18(b). We agree. Our review of the
record leads us to conclude that the government failed to present
sufficient evidence to support the jury's conclusion that DeCello
ever agreed to participate in, or had any knowledge of, the
retailers' evasion of Pennsylvania's Fuel Use Tax.
B.
Specifically, there is simply no evidence to indicate
that DeCello ever met or communicated with any of the truck stop
owners; that he was even aware of, let alone sought to evade, the
Pennsylvania Fuel Use Tax; or that any of DeCello's alleged co-
conspirators at the wholesale level were aware of, authorized, or
participated in the evasion of diesel fuel retail taxes.
The government asks us to draw certain inferences from
circumstantial evidence it relied upon to support the conclusion
that DeCello had knowledge of the retailers' evasion of
Pennsylvania's Fuel Use Tax.
9
First, the government notes that Uzdin testified that
he informed DeCello of his reasons for terminating a prior
operation, and that DeCello was aware of the price the truck
stops were paying for the oil. Second, the government points out
that DeCello assisted Uzdin in recruiting a new supplier of fuel,
recruited haulers for the fuel, and handled payments collected
from the various truck stops. Consequently, the government
suggests, that DeCello must have played an integral role in the
conspiracy and should have had knowledge of the retailers'
criminal actions. Finally, the government argues that DeCello
must have been aware of the retailers' tax evasion because the
evasion of both retail and wholesale taxes was required to
confound the so called "audit trail." In other words, if either
the retailers or wholesalers reported and paid their applicable
taxes, they would expose the others' tax evasion because there
would be inconsistencies between the wholesalers' and retailers'
records.
These arguments, however, are insufficient to support
the jury's verdict. As the government concedes, DeCello "was a
supply-sider throughout" the entire scheme. (Appellee's Br. at
28). Although DeCello appears to have been an active participant
in the wholesale aspects of Uzdin's operation, the only inference
to be drawn from this evidence is that DeCello's participation
might have made him aware of the suppliers' evasion of diesel
fuel wholesale taxes. We cannot overlook the fact that Uzdin's
activities with his suppliers were limited to the wholesale side
of the diesel fuel market. Similarly, DeCello's effort to
10
recruit a new supplier of fuel oil "without a paper," or without
Form 637, involved the avoidance of the Federal Excise Tax
imposed at the wholesale level. Moreover, Uzdin's testimony
during the government's direct examination merely establishes
that the suppliers were avoiding federal wholesale taxes:
Q. And you would take your 637 form and you
would present it or cause it to be
presented to other buyers and sellers of
fuel?
A. To the seller, yes. Supplier or
terminal.
Q. To the terminal that you were buying
from?
A. Yeah.
Q. And by doing that you had no tax?
A. Yeah. We got product, we pay only state
tax and whatever other tax besides
federal tax.
Q. You paid no federal tax?
A. No.
App. at 18 (emphasis added). Uzdin never mentioned retail taxes
in any of his testimony. There is nothing to indicate that
DeCello's participation with Uzdin gave him any knowledge of the
retailers' subsequent criminal activities; quite to the contrary,
it appears that the supply-siders' interest in the oil ended when
the oil was sold and delivered to the truck stops. The
government produced no evidence to demonstrate that the suppliers
were concerned with how the retailers subsequently treated and
disposed of the oil.
11
Similarly, DeCello's awareness of what the retailers
were paying the suppliers for the fuel oil has no bearing on
whether or not he knew that the retailers were avoiding their
taxes. Once again, at best this merely proves that he was or
should have been aware of the suppliers' tax evasion. Uzdin
testified that he purchased the oil from his supplier at two and
a half cents and up to four and a half cents per gallon over rack
price ("rack price" is the price for which fuel is sold at the
refiner's terminal), and that he charged the truck stops twelve
cents over rack price. This left Uzdin with a gross profit of
approximately seven to nine cents per gallon. From this, Uzdin
ostensibly paid both DeCello and another alleged conspirator one
cent per gallon, leaving him five to seven cents per gallon to
pay approximately thirty cents in state and federal wholesale
taxes, cover other expenses, and derive some profit. Because
Uzdin testified that he discussed these matters with DeCello, one
could infer that DeCello knew or should have known that Uzdin was
evading the wholesale taxes. Otherwise, Uzdin would be losing
approximately twenty-three cents per gallon. This, however, is
not enough to allow a reasonable juror to infer that DeCello knew
that the retailers were then evading their taxes as well. Even
if the evidence demonstrated that DeCello not only knew the price
the retailers were paying for the fuel oil but also the price
they charged the public, that knowledge would still be
insufficient to establish beyond a reasonable doubt that DeCello
knew the retailers were not paying their taxes. At best, this
evidence might allow a reasonable juror to conclude that DeCello
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knew that the retailers were profiting by buying fuel oil at
below market rates.
Finally, as to the government's argument that the
evasion of one set of taxes necessarily requires the evasion of
all diesel fuel taxes, we believe that this ignores the fact that
there were other ways for retailers to evade their taxes without
the cooperation of the suppliers. For example, the retailers
could simply have falsified their monthly and annual reports by
misrepresenting the amount of diesel fuel received regardless of
the wholesale source; or the truck stops could have
misrepresented the amount of diesel fuel sold. Neither of these
methods would have required the participation of wholesalers. No
doubt, the retailers' efforts were facilitated and their profits
increased by the suppliers' illegal activities in this case, but
that does not lead to the conclusion that the suppliers were
aware of, let alone agreed to participate in, the retailer's
effort to avoid the applicable retail tax.
We, therefore, cannot conclude that the evidence
adduced at trial allows a "reasonable inference, that the
activities of the participants . . . could not have been carried
on except as the result of a preconceived scheme or common
understanding." Kapp, 781 F.2d at 1010. Upon our independent
review of the record, we must conclude that the government
provided insufficient evidence to demonstrate that DeCello knew
or should have know that the retailers intended to evade their
taxes. Although DeCello's actions may have aided the retailers
in their tax evasion, we have repeatedly held that to sustain a
13
conspiracy conviction, the government must establish that a
defendant had knowledge of the specific illegal object of the
conspiracy. See, e.g., United States v. Salmon, 944 F.2d 1106,
1114-16 (3d Cir. 1991) (reversing the conviction of a defendant
who aided in the sale of a wrapped package, but had no knowledge
of the contents); United States v. Wexler, 838 F.2d 88, 91-92 (3d
Cir. 1988) (holding that a defendant's participation as a lookout
and assisting in the movement of a truck that contained a large
quantity of hashish was insufficient to sustain a conviction for
conspiring to distribute hashish in the absence of any evidence
that the defendant knew what was in the truck); United States v.
Cooper, 567 F.2d 252, 254-55 (3d Cir. 1977) (reversing the
conspiracy conviction of a defendant who travelled cross-country
with a co-defendant in a truck carrying marijuana because there
was no evidence that the defendant knew what was in the locked
compartment of the truck); United States v. Veksler, 862 F. Supp.
1337, 1343 (E.D. Pa. 1994) (acquitting a participant in the sale
of untaxed diesel fuel to truck stops even though the evidence
showed that the defendant knew that the truck stop oil sales he
facilitated were illegal because there was no evidence to
demonstrate that the defendant was aware that he was working in
aid of a larger conspiracy and its objectives), aff'd 62 F.3d 544
(3d Cir. 1995).
C.
The district court upheld the jury's verdict based upon
a different theory. According to the district court, the jury
convicted DeCello for participating in a single unified
14
conspiracy to sell "Number 2 fuel oil for taxable purposes under
the guise of selling Number 2 fuel oil for non-taxable purposes,"
and there was sufficient evidence to support that conclusion.
United States v. Schramm, No. 93-188, slip op. at 16 (W.D. Pa.
Aug. 16, 1994). To reach this result, however, the district
court implicitly interpreted paragraph 18(b)'s reference to
Pennsylvania's Fuel Use Tax as illustrative rather than
exclusive. Under the district court's interpretation, the
conspiracy charge in paragraph 18(b) necessarily includes
evasions of Pennsylvania's Fuel Oil Franchise Tax imposed at the
wholesale level. Consequently, the district court was able to
affirm DeCello's conviction based upon his participation in and
awareness of the fuel oil suppliers' evasion of their applicable
wholesale taxes. Under any other interpretation of the
indictment, the district court's conclusion would run afoul of
the rule that the evidence must establish that the defendant
entered into an agreement and "knew that the agreement had the
specific unlawful purpose charged in the indictment." Scanzello,
832 F.2d at 20 (emphasis added). But even if we were to agree
that the evidence supported the conclusion that DeCello agreed to
participate in a scheme which had the purpose of evading
Pennsylvania's Oil Franchise Tax, we would not agree with the
district court's interpretation of the indictment, and must,
therefore, reverse DeCello's conviction.
While an indictment must generally be taken as a whole,
read reasonably and given fair construction, United States v.
Markus, 721 F.2d 442, 443-44 (3d Cir. 1983); United States v.
15
King, 587 F.2d 956, 963 (9th Cir. 1978) (stating that appellate
courts "should read an indictment in a common sense manner, [and]
refus[e] to reverse a conviction because of minor deficiencies in
the indictment that could not have prejudiced the defendant
. . ."), "[t]he precise manner in which an indictment is drawn
cannot be ignored . . . ." Sanabria v. United States, 437 U.S.
54, 65-66 (1978) (emphasis added). The principle that an
indictment must contain the essential elements of the offense
charged is premised upon three distinct constitutional commands
which we cannot ignore. First, the indictment must be
sufficiently precise to inform the defendant of the charges
against which he or she must defend, as required by the Sixth
Amendment. Second, the indictment must enable an individual to
determine whether he or she may plead a prior acquittal or
conviction to bar future prosecutions for the same offense, in
accordance with the Fifth Amendment. Id.; Hamling v. United
States, 418 U.S. 87, 117 (1974); Hagner v. United States, 285
U.S. 427, 431 (1932). To accomplish these goals, an indictment
must specifically set forth the essential elements of the offense
charged. Hamling, 418 U.S. at 117. See also Fed. R. Crim. P.
7(c)(1) ("The indictment . . . shall be a plain, concise and
definite written statement of the essential facts constituting
the offense charged."). Third, the:
purpose of an indictment is to shield a
defendant in a federal felony case from
unfounded prosecutorial charges and to
require him to defend in court only those
allegations returned by an independent grand
jury, as provided by the Fifth
Amendment. . . . By sufficiently
16
articulating the critical elements of the
underlying offense, an indictment insures
that the accused has been duly charged by the
grand jury upon a proper finding of probable
cause, and will be convicted only on the
basis of facts found by that body.
United States v. Boffa, 513 F. Supp. 444, 466 (D. Del. 1980)
(citing United States v. Goldstein, 502 F.2d 526, 528-29 (3d Cir.
1974)).
In cases which involve a conspiracy charge, the illegal
object of the conspiracy is an essential element of the offense
and must be included in the indictment. See United States v.
Shaffer, 383 F. Supp 339, 342 (D. Del. 1974).
As discussed earlier, Count I of the indictment, which
charges a conspiracy, sets forth two purposes. The jury
convicted DeCello of agreeing to accomplish the second purpose.
The second purpose, which was set forth in paragraph 18(b), was
to devise and execute a scheme and artifice to defraud by the use
of the United States mail, "particularly, to evade and defeat the
full payment of the Fuel Use Tax imposed on the sale of diesel
motor fuel under the laws of the Commonwealth of Pennsylvania
. . ." App. at 194-95 (emphasis added). To accept the district
court's conclusion, we would be required to interpret
"particularly" as used in paragraph 18(b) to mean "for example"
or "as one example among others," and to assume that the "other"
charges to which the word "particularly" refers included the
evasion of taxes not set forth in the paragraph itself. But the
word "particularly," as it appears in paragraph 18(b), is
synonymous with "to-wit," a term commonly used in indictments to
17
refer to a discrete event. Likewise, "particularly" as used here
is synonymous with the more conventional "specifically," which,
in fact, is used in paragraph 18(a) of the indictment. See
Merriam Webster, Webster's Ninth New Collegiate Dictionary 858
(1985). Both terms ("specifically" and "particularly") are used
to set forth detailed descriptions of the conspiracy's goals;
they are exclusive, not inclusive. If the government had
intended to charge DeCello with agreeing to participate in a
scheme to violate Pennsylvania's wholesale tax as well, it easily
could have, and certainly should have, done so.
While courts must ignore minor and technical
deficiencies in an indictment, Russell v. United States, 369 U.S.
749, 763 (1962) ("Convictions are no longer reversed because of
minor and technical deficiencies which did not prejudice the
accused."); Hagner v. United States, 285 U.S. 427, 433 (1932)
(holding that courts must "disregarded merely loose or
inartificial forms of averment."), an indictment's failure to
specify the object of a conspiratorial agreement cannot be
considered a minor or technical deficiency which can be ignored.
As we have said, "[t]he essence of a conspiracy is an agreement."
United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989). The
goal or goals of the agreement are, therefore, essential elements
of the crime of conspiracy itself. An omission such as occurred
here deprives the defendant of one of the significant protections
which the guaranty of a grand jury indictment is intended to
confer. By not specifying the evasion of the federal excise tax
or of Pennsylvania's wholesale fuel tax as one of the goals of
18
the conspiracy in paragraph 18(b), the indictment failed to
apprise DeCello "with reasonable certainty, of the nature of the
accusations against him." Russell, 369 U.S. at 766 (quoting
United States v. Simmons, 96 U.S. 360, 362 (1877)). To adopt the
district court's interpretation of the indictment would be to
allow DeCello's "conviction to rest on one point and the
affirmance of the conviction to rest on another," giving "the
prosecution free hand on appeal to fill in the gaps of proof by
surmise or conjecture." Russell, 369 U.S. at 766. This we
cannot do.
Paragraph 18(b) of the indictment alleges only that
DeCello agreed to use the United States mails to evade
Pennsylvania's Fuel Use Tax. It does not allege an agreement to
evade any wholesale level taxes, and we cannot interpret
paragraph 18(b) of the indictment as implicitly including the
evasion of such taxes as additional goals of the conspiracy.
III.
Because the government failed to produce
sufficient evidence at trial to convince the jury to convict
DeCello under paragraph 18(a) of the indictment and because the
government further failed to prove that DeCello entered into an
agreement and knew that the agreement had the specific unlawful
purpose charged in paragraph 18(b) of the indictment, we will
reverse DeCello's conviction and direct the entry of a judgment
of acquittal.
_________________________
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