United States v. William Edward Lindsey
602 F.2d 785
7th Cir.
1979
Check Treatment

*1 America, UNITED STATES

Plaintiff-Appellee, LINDSEY,

William Edward

Defendant-Appellant. 78-2016.

No. Court Appeals, States

Seventh Circuit.

Argued April 12, 1979. July

Decided

786

The evidence showed a op- theft-on-order eration principally involving motor vehicles parts. group and motor vehicle One conspi- indicted defendants constituted the ratorial “core” which would steal and deliv- group er motor vehicles desired another alleged- of indicted defendants. Defendant ly category, is a member of the latter purchaser of stolen motor vehicles. Such operation conceptualized can be as a hub spokes, and with the core at purchasing conspirators hub and the spokes; end of the the Govern- Since ment prove any purchas- did not that ers were aware of the existence of purchasers, other there would be no rim connecting the spokes. ends of the The four defendants at or near the hub Bodell, Pointer, (Browning, Hunter) all pleaded count, guilty did two of the purchasers (Claycomb and Lewis). against The case purchaser a third (Harrell) was dismissed the court at the close of the Government’s evidence. There remained for the to consider participation in of indicted Caldwell, defendant stripped vehicles defendants, for the core and defendant Lindsey, the purchaser fourth indicted appellant appeal. in this Keating, Evansville, Michael C. Ind., for defendant-appellant. At trial defendant testified on his own behalf that he

George Palmer, did not know that the dump E. Asst. Atty., U. S. Indi- truck purchased and bulldozer he anapolis, Ind., had for plaintiff-appellee. the core defendants were stolen or that the CASTLE, Before Senior Judge, Circuit truck, tri-axle requested which he then BAUER, SWYGERT and Judges. Circuit decided buy, not to was stolen. This testi- mony was testimony contradicted SWYGERT, Judge. Circuit some of the codefendants as well as A jury convicted defendant of con evidence that ignitions on all three vehi- spiring receive, conceal, “to dispose sell and cles “pulled” had been and that none of the of stolen motor vehicles” in violation of 18 possessed any ownership papers. vehicles U.S.C. 2313 and 371. §§ The indictment charged eight defendant and others of one not ar appeal On defendant does overall conspiracy whereas the gue evidence ad that him was in duced at trial showed that defendant conspir sufficient to sustain a conviction involved smaller, separate conspir acy to Rather he ar steal motor vehicles. acy. for our gues prove consideration is evidence does whether this variance between conspiracy charged indictment in the indict proof requires reversal. arrangement Because there agree ment. We that each significant is a possibility purchaser between the for the core and prejudiced this we sep- reverse. delivery of stolen vehicles constituted a arate conspiracy ground because there was no evi- the small number of conspira- any purchaser dence that knew of the exist- tors and there involved reduced ence purchaser other or had an inter- the likelihood of confusion. 328 U.S. est in the delivery successful of stolen vehi- 66 S.Ct. 1239. In Blumenthal v. purchasers. cles to other parties ato States, 332 U.S. conspiracy must at least know of the exist- *3 (1947), L.Ed. 154 Mr. Rutledge, Justice (though ence necessarily identity) opinion, had also written the Kotteakos held coconspirators and must share a common that a variance between an indictment purpose with coconspirators. these known charging single conspiracy among a five These requirements agreement, two of an arguable proof sepa- defendants and of two which party have been termed the dimen- conspiracies rate was harmless error where object dimension, sion and the have not jury had been instructed not to consider been met respect here with to an overall (admissions certain evidence of two defend- conspiracy. Varelli, United v. States 407 ants of the existence of a hitherto undis- 735, (7th 1969); F.2d 742-43 gener- Cir. see conspirator) relating closed additional to a ally Developments in the Law—Criminal separate conspiracy of which defendant was Conspiracy, 920, 72 Harv.L.Rev. 927-33 part. not a (1959). Supreme Thus the has Court looked Our conclusion that defendant could to the following factors to determine only have been a member of a smaller con type prejudicial: whether this of variance is spiracy consisting of himself and the core (1) surprise resulting to the defendant and having objective the more limited variance, (2) possibility subsequent stealing delivering particular vehi prosecution offense, (3) for the same likeli cles desired him does not necessitate hood of confusion as measured reversal unless prejudiced by defendant was number of charged and the the erroneous presentation of the case to separate conspiracies number of proven, the jury on conspiracy an overall charge. (4) light likelihood of confusion in In Berger States, v. 78, 295 U.S. of the given jury limiting instructions 629, 55 S.Ct. (1935), 79 L.Ed. 1314 the Su or excluding the use of certain evidence not preme Court held that a variance between relating to the defendant. Defendant Lind charging indictment five defendants sey candidly that application admits of the single with a conspiracy proof of two first three point factors in this does not separate conspiracies figure with a common finding prejudice, argues toward a (other than defendant) was harmless error explicit that he was entitled to an instruc since the defendant surprised by precluding tion jury consideration of evi against introduced him or sub relating conspiracies dence to theft-on-order jected possibility prosecu of another other than the one in which he was in tion for the same a offense as result of the volved. 82, error. 55 S.Ct. 629. In United 515 States States, Kotteakos v. United 328 U.S. 66 (7th (Stevens, 1975) J.), F.2d 730 we Cir. (1946), 90 L.Ed. 1557 the indict stated: charged ment thirty-two defendants with a

single conspiracy proof [W]here, whereas the testimony, showed at the close of it is eight separate conspiracies clear, here, with a common that a could not find a figure other than defendant. Here the Su as a matter of preme Court held that the variance the defendant is not entitled to prejudicial error dangers because of multiple conspiracies instruction but “[t]he guilt transference of from one also to an instruction that evidence relat- [defend to another separating ing conspiracies across the line ant] to the other conspiracies.” U.S. S.Ct. at disclosed be used him Berger distinguished on the under circumstances. 733-34, present- rulings,

Id. n. 10. The evidence trial upon court’s ad- both [T]he ed instant Government instructions, missibility and in the leave prove was insufficient the overall con- no room for doubt the admissions spiracy charged in the indictment. Never- excluded, adequately were insofar as this theless, the trial court failed to tender joint trial, could be done in a from consid- regarding either question guilt. eration on the of their conspiracies jury’s responsibility rulings jury plainly told the to disre- disregard introduced gard entirely, every admissions relating Government de- phase of determining fendant was not involved in. This failure question. ex- The direction was total “plain constituted error.” Id. at 733-34. clusion, simply partial one . . . remaining is whether this affected, rights” error “substantial 551-53, Id. at 68 S.Ct. at 254. The instruc- *4 Kotteakos, supra, defendant. regarding tions in admissibility tendered 765, 66 S.Ct. 1239. the only vague, instant case are not Supreme The Court in Kotteakos ar conditional; they are also do they certainly ticulated determining the standard for . not remove all that “doubt the admissions whether an error grounds like this is for adequately were excluded.” Id. Instruc- reversal: 25, tion general No. which included some say, assurance, one cannot with fair [I]f warnings admissibility, about also stated: after pondering happened all that with- you But if beyond find from the evidence (cid:127) out stripping the erroneous action from alleged reasonable con- doubt that the whole, the judgment the was not spiracy was formed and and that existed substantially swayed error, by the it is or two alleged more the impossible to conclude that substantial thereof, alleged were the members then rights were not inquiry affected. The thereafter, any, acts or omissions if merely cannot be whether there was knowingly done, and the statements enough result, support apart the from thereafter, made, by if knowingly any, phase the by affected the error. It alleged conspiracy, member of the rather, so, even whether the error itself may you be in considered as evidence so, had substantial influence. If or if one the as to the other members grave doubt, is left in the conviction can- though of the alleged conspiracy, even not stand. such acts and omissions and statements Id. 66 S.Ct. at 1248. And although may have in occurred the absence and Supreme the Court in Blumenthal held that others, knowledge without the of such specific limiting instructions could make the provided such acts or state- omissions and erroneous submission of a case to a on done, ments or knowingly were omitted theory harmless made continuance such during no such specific instructions were tendered spiracy before its and in fur- termination by the trial court in this case. object purpose therance alleged specific admonitions of the limiting 686.) of the alleged conspiracy. (Tr. in instructions Blumenthal sharp stand in And Instruction No. 37 added: contrast to the general, almost “boiler you If in with these find accordance plate” instructions tendered the instant person some other case. The trial specifi- court in Blumenthal “ implicated on cally actually not trial was jury, said ‘. . the state- before, committing alleged ments offense made the defendants Goldsmith commission, during alleged and Weiss to or after its the witness Harkins could be considered I you you then instruct that such those two ” named you defendants.’ all together Id. 332 considered U.S. at n. 10, 68 evidence, S.Ct. at Supreme guilt n. 10. in- determining As the Court observed: 708.) (Tr. nocence of a defendant. requires both a single, supra, Thus, although, as a matter and an instruction conspiracies instruction not be inferred conspiracy could relating to other that evidence trial, presented at under against defendant may not be used reaching that prohibited from judge here trial any circumstances. pertaining to using and evidence conclusion jury either instruction give did agreement defendant was a theft-on-order However, contrary to this was error. knowledge of in part of and had no ren- this error was majority, I believe about defendant’s making its determination limiting instructions harmless dered guilt. the trial evidence that on the use of the the theft-on-order The evidence from judge give jury. did agreements which defendant was not in- many words judge not in so The trial did extremely preju- volved in could have been consider not to instruct trial was dicial. Defendant’s defense he did conspiracies, but relating to other that he did know that the vehicles he of consider- out caution the to “leav[e] purchased were Two codefend- had stolen. pertaining entirely any evidence ation ant-purchasers (who pleaded guilty) had to consider the other defendant” for the and said that testified Government ac- with the “own connection defendant’s they they pur- had knew that the vehicles (Tr. conduct of others.” tion and conspirators had been chased from the core judge could how the It is hard to see stolen, thereby undermining credibility actu- explicit short of been much more have *5 evidence, This al- of defendant’s defense. of jury on the existence ally instructing the though pertaining conspiracies to defendant de- the thrust of separate conspiracies, so of, part have contributed may a it was must be that argument fendant’s substantially guilty to verdict the to submit judge not prejudicial error for the told the conspir- him. The trial court “should have a jury the to the on case of Blu- jury point the evidence relat- whole unequivocally acy theory. But the menthal, of submit- that the error supra, was not to be ing conspiracies] to the [other single conspiracy jury on a Johnson, ting a case to a against appellant.” su- considered by limit- a rendered harmless theory can be Blumenthal, pra, also 515 F.2d at 736. See Blumenthal, jury the In ing instruction. 551-53, supra, 332 248. In U.S. S.Ct. not to consider directed specifically was quality this the and the char- “[b]oth Weiss in deter- admission Goldsmith con- acter” of the evidence from the other conspiracy the in mining participation the spiracies the like- “unquestionably increased Blumenthal, and Abel because Feigen of appellant jury lihood that the would find ” and Weiss Goldsmith the admission linked Johnson, guilty . . conspiracy. of . in which there conspiracy separate to a supra, 515 F.2d at 734. other by the of involvement no evidence grave We “left in that defend- are doubt” was held The instruction three defendants. ant’s conviction “was criminal from adequately protect Blumenthal to not the trial substantially swayed” been jury had though the prejudice even Kotteakos, supra, court’s error. admissions) (the presented with evidence Accordingly, appellant’s in which he was separate from a conviction is reversed. In Unit- been involved. proved not to have supra, we held v. ed States CASTLE, Judge, Senior Circuit dissent- jury the on submitting a case to the error of ing. two con- theory when single conspiracy a prejudicial, but proved was spiracies were agree majority’s I with conclusion the limit- instruction there was no in that case presented that on the basis of the evidence evidence of certain ing excluding the use or trial, not, jury at the could as a matter jury. single of have found the overall con- a spiracy In such of charged in the indictment. to Given that submission conspir- situation, on a multiple conspiracy case holding our in United States acy prejudicial theory per present specifically is not se delineated is whether the ten- court for the benefit of the as it adequate prejudicial dered in case were to was in in the this render Blumenthal is First, of case. because the error harmless. circumstances this oper- very structure a theft-on-order was instructed: in a purchaser separate ation each involves considering whether not a defend- or core, arrangement and because with particular party ant and other to this is on level —re- evident a common sense alleged conspiracy was a member gardless arrange- separate of whether these specific conspiracy charged ., you . separate recognized ments to con- are regard must do so without to and inde- spiracies con- instructing not — pendently of the statements and declara- relating sider to defend- is, tions you of others. That must deter- ant and entire- to leave out consideration mine membership particular of a de- ly any pertaining to the other de- evidence evidence, any, fendant from the if substantially in- fendant the same as an cerning actions, conduct, his own his own oth- struction not to consider evidence from declarations, his own or his own state- conspiracies. er This result would obtain ments, his own connection structurally conspiracies where the are action and conduct of others. separate, spokes operation, as in a hub and (Instruc. 683-84). # Tr. where there are contrast situation You per- are to consider what one separate as a result of a failure may son concluding have said or done in proof, may have been person whether not another was a Second, suffering far Blumenthal.1 member of the conspiracy partnership; prejudice, have benefited his membership must be established Caldwell, joint from his trial with as his conduct, toas his own he what purchaser own lesser involvement as becoming himself said or did a mem- would stand in contrast com- Caldwell’s (Instruc. ber. # Tr. paratively greater involvement as a dis- separate, personal consideration [G]ive stripper mantler or view vehicles. This *6 the case of each of the defendants is supported by the fact analyze what the evidence shows with requested defendant never a severance respect defendant, to each leaving out of his trial from that of Caldwell. entirely per- consideration any evidence sum, explaining taining to the other defendant. Each what evidence was relevant to defendant’s entitled to have his determined from participation in a motor vehicle theft his own acts and oth- statements and the sufficient, spiracy were in the circumstanc- er evidence in the case which es of this error to render harmless the applicable (Instruc. him. # Tr. submitting on a the case to the theory. The conviction These substantially Lindsey instructions are on the count should, therefore, different saving from the be affirmed.2 instruction in telling Blumenthal disregard

admissions of two which relat-

toed a conspiracy other than one with

which Blumenthal was charged. The fact the inadmissible evidence Blumenthal, possible

1. It Feigen, 6 months Defendant was sentenced to serve prison, Abel 3-year also knew of the existence the undis- in being term the balance of his whiskey being A-9). closed suspended. (Defendant’s owner of the sold above Br. at price ceilings, the OPA in which case there conspiracy, would been have one overall proved knowledge the Government never such part. on their