United States v. George McGann and Harold Mote Pruitt

431 F.2d 1104
CourtCourt of Appeals for the Fifth Circuit
DecidedNovember 17, 1970
Docket27042
StatusPublished
Cited by39 cases

This text of 431 F.2d 1104 (United States v. George McGann and Harold Mote Pruitt) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. George McGann and Harold Mote Pruitt, 431 F.2d 1104 (5th Cir. 1970).

Opinions

INGRAHAM, Circuit Judge:

Appellants, George McGann and Har--old Mote Pruitt, were indicted with six other men for offenses growing out of the theft, storage and sale of approximately 126 television sets which constituted an interstate shipment of goods. McGann and Pruitt were convicted of conspiracy to steal, store, sell, and distribute merchandise stolen from interstate commerce in violation of 18 U.S.C. § 371 (Count I) and for the possession of such merchandise in violation of 18 U.S.C. § 659 (Count V).1 Appellants [1106]*1106received identical terms of five (5) years imprisonment on each of Counts I and V, the sentences to run consecutively.

At the trial the government’s evidence consisted mainly of the testimony of five co-defendants who participated in the theft. The evidence revealed that on or about January 4, 1968, defendants Peel and Fletcher, utilizing a rented truck, removed a trailer containing the Magna-vox televisions from a Dallas trucking company storage lot. Pursuant to an agreement originating in December, 1967, the merchandise was taken to defendant Harrington’s farm at Plano, Texas. Scribner and Hallman, two of the co-conspirators, then sold between 25 and 30 of the sets to appellant McGann. Pruitt, acting under an assumed name, rented a U-Haul truck and a warehouse and helped McGann remove a number of the sets to the warehouse for hiding. In urging reversal of their convictions appellants assign seven points of error.

I.

Appellant McGann’s main contention is that there was insufficient evidence to establish his connection with the overall plan to steal the merchandise and thus it was prejudicial error to submit the conspiracy offense to the jury. His connection with the conspiracy was established by the testimony of co-defendant Hallman, who stated that he phoned McGann prior to the theft and asked him if he wanted to buy some television sets. McGann agreed to purchase the sets. Hallman testified that he did not inform McGann at that time of the source of the goods. After the theft, appellant McGann met with Hallman and other co-conspirators, went to the farm at Plano, and loaded two truckloads of the sets for transfer to the warehouse in Dallas for further sale. McGann’s statements to the others at the farm indicated that at this point, which was after the theft, he had knowledge of the stolen character of the goods.

The elements of a conspiracy are twofold: an agreement between two or more persons to combine efforts for an illegal purpose and an overt act in furtherance of said conspiracy. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940); Castro v. United States, 296 F.2d 540 (5th Cir. 1961). If a person later joins an already formed conspiracy knowing of the unlawful purpose, he may be held responsible for the acts done in furtherance of the conspiracy, both prior and subsequent to his joinder. Nelson v. United States, 415 F.2d 483, 486 (5th Cir. 1969); Lile v. United States, 264 F.2d 278, 279 (9th Cir. 1958).

In the instant case, if McGann merely agreed to buy stolen television sets, but was unaware of the plans to steal them, then he lacked the requisite knowledge of the scheme to be a conspirator. Henderson v. United States, 237 F.2d 169, 171 (5th Cir. 1956); United States v. Falcone, supra, 311 U.S. at 210, 61 S.Ct. 204. However, if he agreed originally [1107]*1107to sell the stolen sets as his part of the scheme, then he was properly charged and convicted of the conspiracy to steal, store, sell and distribute the sets, although he actually only stored and sold the sets.

It is a well established rule that in considering the record on appeal in a criminal case from a jury verdict of guilty, the appellate court must sustain the verdict if there is substantial evidence, taking the view most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). In circumstantial evidence cases, the “test to be applied on motion for judgment of acquittal and on review of denial of such motion is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis, but that of guilt, but rather whether the jury might reasonably so conclude.” Harper v. United States, 405 F.2d 185 (5th Cir. 1969). See United States v. Garza, 426 F.2d 949 (5th Cir. 1970).

In the case at bar, the government has clearly established with substantial evidence that a conspiracy existed. The direct evidence linking appellants to the development of and participation in the conspiracy is slight. Recent opinions of this court, however, have held that where the existence of a conspiracy is shown, as here, only slight additional evidence is required to connect a particular defendant with it. Lopez v. United States, 414 F.2d 909, 911 (5th Cir. 1969); Bradford v. United States, 413 F.2d 467, 469 (5th Cir. 1969); Cave v. United States, 390 F.2d 58, 69 (8th Cir. 1968); Poliafico v. United States, 237 F.2d 97, 104 (6th Cir. 1956), cert. denied, 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed.2d 597 (1957).

Much of the conspiratorial evidence implicating appellants is circumstantial. However, if it is believed by the jury, it is sufficient to link appellants to the conspiracy. Lopez v. United States, supra; Bradford v. United States, supra. See Cohen v. United States, 363 F.2d 321 (5th Cir. 1966), cert. denied, 385 U.S. 957, 87 S.Ct. 395, 17 L.Ed.2d 303 (1966). In Lopez, a co-defendant testified of a meeting with the appellant at a favorite rendezvous place of the conspirators. The appellant Lopez agreed to make arrangements to haul the stolen goods on the week ends. This was the only evidence in the trial against him, but on appeal the conviction was affirmed. In Nelson v. United States, 415 F.2d 483 (5th Cir. 1969), appellant Nelson helped three men unload their car after a burglary, helped them dispose of burglary tools, and converted their coins into currency. The government conceded that Nelson had no knowledge of the burglary at the time it took place or that the coins came from a particular bank. The court affirmed the conviction under 18 U.S.C. § 371, finding sufficient evidence of a conspiracy and the requisite knowledge of entry into it.

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Bluebook (online)
431 F.2d 1104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-george-mcgann-and-harold-mote-pruitt-ca5-1970.