United States v. Kenneth Borders
829 F.3d 558
| 8th Cir. | 2016Background
- From ~1998–2012, a conspiracy to steal commercial trucks, trailers, and cargo and to alter vehicle identification information involved Borders (thief/seller), Jon Dickerson (owner/operator of trucking businesses who gave “shopping lists”), and Kyle Dickerson (employee/part-owner who removed VINs). Prosecution presented witnesses who performed scouting, cleaned VINs, falsified paperwork, stored stolen items, and arranged transportation/sales.
- A jury convicted Borders of conspiracy, transportation of stolen goods (aiding/abetting), and possession of stolen vehicles (aiding/abetting). Jon and Kyle were convicted of conspiracy and various aiding/abetting counts. Sentences: Borders 262 months; Jon 188 months; Kyle 110 months.
- On appeal the defendants raised: whether the evidence showed a single conspiracy or multiple conspiracies (variance); sufficiency of aiding-and-abetting evidence (especially for Kyle); multiple evidentiary rulings (DOT civil violations, plea agreement, summary exhibits, limits on cross-examining cooperators); and several sentencing-guideline challenges (loss attribution, “in the business” fence enhancement, double counting, leader/sophistication enhancements).
- The court applied plain-error review for issues not raised below and de novo review where preserved (e.g., sufficiency of evidence). It evaluated totality-of-the-circumstances for conspiracy and guideline enhancements.
- Holding summary: affirmed in part, reversed in part, and remanded — notably affirming single-conspiracy finding, affirming Count 2 against Kyle but vacating three of Kyle’s convictions (Counts 18, 20, 25) for insufficiency as to aiding/abetting possession at the storage unit; most evidentiary rulings were harmless; various sentencing enhancements largely upheld except clarification of application principles.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Single conspiracy vs. multiple conspiracies / variance | Gov: evidence supports one overall agreement across time, actors, and acts | Defs: evidence (special verdict forms, differing acts) showed multiple conspiracies; jury should have been instructed accordingly | Affirmed: totality supports a single conspiracy; special verdict forms alone do not establish plain error of variance |
| Sufficiency — Kyle aiding/abetting transportation (Count 2) | Gov: Kyle authorized bookings, was paid, and communicated about the truck | Kyle: he did not participate in the transportation | Affirmed: circumstantial evidence (authorization, payment, calls) supports conviction |
| Sufficiency — Kyle aiding/abetting possession at storage unit (Counts 18,20,25) | Gov: Kyle rented unit and had key, implying knowledge/intent | Kyle: mere rental/key is insufficient to show affirmative act and intent | Reversed/vacated: rental and key alone do not meet Rosemond intent/affirmative-act standard |
| Admission of DOT civil violations evidence | Gov: shows pattern of abusing trucks and motive/need for stolen trucks | Defs: civil violations are highly prejudicial and cannot be used to prove criminal liability without careful limiting instruction | Error to admit without limiting instruction, but harmless given other strong evidence; convictions stand |
| Limits on cross-examining cooperating witnesses about benefits | Defs: limits impeded Confrontation Clause impeachment of bias | Gov: limits reasonable to avoid harassment/repetition | Affirmed: trial court did not abuse discretion; questioning allowed on charge, sentence exposure, and hope for leniency |
| Admission of Borders’s prior plea agreement (2003) | Gov: used as evidence of an overt act in the conspiracy | Borders: double jeopardy / involuntary plea concerns / same USAO involvement | Even if erroneous, admission was harmless; double jeopardy not implicated under Felix doctrine |
| Sentencing — total loss attribution for jointly undertaken activity | Gov: aggregate loss > $1M is attributable where acts were foreseeable and in furtherance | Defs: liability should be limited to narrower conspiratorial scope | Affirmed: Guideline §1B1.3 allows inclusion of reasonably foreseeable acts in jointly undertaken activity |
| Sentencing — §2B1.1(b)(4) “in the business of receiving and selling stolen property” | Gov: totality of circumstances supports enhancement for Jon and Borders | Defs: enhancement applies only to professional fences, not thieves who sell their own stolen goods | Court: enhancement applies only to fences; but under totality-of-the-circumstances Jon and Borders were properly treated as “in the business,” so enhancement not plain error |
| Sentencing — double counting of fence enhancement and §2B1.1(b)(14) (organized scheme involving vehicles) | Defs: applied both amounts to same harm | Gov: enhancements address distinct harms (fencing vs. harm to transportation industry) | Affirmed: not impermissible double counting because each enhancement addresses separate harms |
| Sentencing — leader/organizer & sophisticated-means enhancements for Borders | Gov: Borders led scouting, directed VIN removal, coordinated sales/storage | Borders: challenges scope/degree of leadership and sophistication | Affirmed: evidence supported leader role and coordinated, repetitive conduct amounting to sophisticated means |
Key Cases Cited
- United States v. Buckley, 525 F.3d 629 (8th Cir.) (plain-error review of unpreserved issues)
- United States v. Delgado, 653 F.3d 729 (8th Cir.) (plain-error standard discussion)
- United States v. Olano, 507 U.S. 725 (1993) (components of plain error review)
- United States v. Morales, 113 F.3d 116 (8th Cir.) (single conspiracy / totality analysis)
- United States v. Peyro, 786 F.2d 826 (8th Cir.) (common purpose requirement for single conspiracy)
- Rosemond v. United States, 134 S. Ct. 1240 (2014) (aiding-and-abetting requires affirmative act with intent to facilitate specific offense)
- United States v. Nguyen, 758 F.3d 1024 (8th Cir.) (sufficiency review standard)
- United States v. Parker, 364 F.3d 934 (8th Cir.) (use of civil regulatory violations and undue prejudice)
- United States v. Adejumo, 772 F.3d 513 (8th Cir.) (summary exhibits; harmless-error standard; organizer enhancement guidance)
- Delaware v. Van Arsdall, 475 U.S. 673 (1986) (limits on cross-examination and Confrontation Clause)
- United States v. Vickers, 528 F.3d 1116 (8th Cir.) (totality-of-the-circumstances test for §2B1.1(b)(4) enhancement)
- United States v. Pierre, 795 F.3d 847 (8th Cir.) (double jeopardy and conspiracy prosecutions)
- United States v. Williams, 104 F.3d 213 (8th Cir.) (use of prior plea agreements in later prosecutions)