United States v. William Edward Lindsey

602 F.2d 785, 1979 U.S. App. LEXIS 12864
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 27, 1979
Docket78-2016
StatusPublished
Cited by21 cases

This text of 602 F.2d 785 (United States v. William Edward Lindsey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh 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. William Edward Lindsey, 602 F.2d 785, 1979 U.S. App. LEXIS 12864 (7th Cir. 1979).

Opinions

SWYGERT, Circuit Judge.

A jury convicted defendant of conspiring “to receive, conceal, sell and dispose of stolen motor vehicles” in violation of 18 U.S.C. §§ 2313 and 371. The indictment charged defendant and eight others of one overall conspiracy whereas the evidence adduced at trial showed that defendant was involved only in a smaller, separate conspiracy. The question for our consideration is whether this variance between indictment and proof requires reversal. Because there is a significant possibility that defendant was prejudiced by this error, we reverse. The evidence showed a theft-on-order operation principally involving motor vehicles and motor vehicle parts. One group of indicted defendants constituted the conspiratorial “core” which would steal and deliver motor vehicles desired by another group of indicted defendants. Defendant allegedly is a member of the latter category, a purchaser of stolen motor vehicles. Such an operation can be conceptualized as a hub and spokes, with the core conspirators at the hub and the purchasing conspirators at the end of the spokes; Since the Government did not prove that any of the purchasers were aware of the existence of any other purchasers, there would be no rim connecting the ends of the spokes.

The four defendants at or near the hub (Browning, Bodell, Pointer, and Hunter) all pleaded guilty to the conspiracy count, as did two of the purchasers (Claycomb and Lewis). The case against a third purchaser (Harrell) was dismissed by the court at the close of the Government’s evidence. There remained for the jury to consider only the participation in the conspiracy of indicted defendant Caldwell, who stripped vehicles for the core defendants, and defendant Lindsey, the fourth indicted purchaser and appellant in this appeal.

At trial defendant testified on his own behalf that he did not know that the dump truck and bulldozer he had purchased from the core defendants were stolen or that the tri-axle truck, which he requested but then decided not to buy, was stolen. This testimony was contradicted by the testimony of some of the codefendants as well as by evidence that the ignitions on all three vehicles had been “pulled” and that none of the vehicles possessed any ownership papers.

On appeal defendant does not argue that the evidence against him was insufficient to sustain a conviction of conspiracy to steal motor vehicles. Rather he argues that the evidence does not prove the overall conspiracy charged in the indictment. We agree that each arrangement between the core and a purchaser for the delivery of stolen vehicles constituted a sep[787]*787arate conspiracy because there was no evidence that any purchaser knew of the existence of any other purchaser or had an interest in the successful delivery of stolen vehicles to other purchasers. The parties to a conspiracy must at least know of the existence (though not necessarily the identity) of coconspirators and must share a common purpose with these known coconspirators. These two requirements of an agreement, which have been termed the party dimension and the object dimension, have not been met here with respect to an overall conspiracy. United States v. Varelli, 407 F.2d 735, 742-43 (7th Cir. 1969); see generally Developments in the Law — Criminal Conspiracy, 72 Harv.L.Rev. 920, 927-33 (1959).

Our conclusion that defendant could only have been a member of a smaller conspiracy consisting of himself and the core and having the more limited objective of stealing and delivering the particular vehicles desired by him does not necessitate reversal unless defendant was prejudiced by the erroneous presentation of the case to the jury on an overall conspiracy charge.

In Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), the Supreme Court held that a variance between an indictment charging five defendants with a single conspiracy and proof of two separate conspiracies with a common figure (other than defendant) was harmless error since the defendant was not surprised by the evidence introduced against him or subjected to the possibility of another prosecution for the same offense as a result of the error. 295 U.S. at 82, 55 S.Ct. 629. In Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), the indictment charged thirty-two defendants with a single conspiracy whereas the proof showed eight separate conspiracies with a common figure other than defendant. Here the Supreme Court held that the variance was prejudicial error because of “[t]he dangers of transference of guilt from one [defendant] to another across the line separating conspiracies.” 328 U.S. at 774, 66 S.Ct. at 1252. Berger was distinguished on the ground that the small number of conspirators and conspiracies there involved reduced the likelihood of jury confusion. 328 U.S. at 766, 66 S.Ct. 1239. In Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947), Mr. Justice Rutledge, who had also written the Kotteakos opinion, held that a variance between an indictment charging a single conspiracy among five defendants and arguable proof of two separate conspiracies was harmless error where the jury had been instructed not to consider certain evidence (admissions of two defendants of the existence of a hitherto undisclosed additional conspirator) relating to a separate conspiracy of which defendant was not a part.

Thus the Supreme Court has looked to the following factors to determine whether this type of variance is prejudicial: (1) surprise to the defendant resulting from the variance, (2) possibility of subsequent prosecution for the same offense, (3) likelihood of jury confusion as measured by the number of conspirators charged and the number of separate conspiracies proven, and (4) likelihood of jury confusion in light of the instructions given the jury limiting or excluding the use of certain evidence not relating to the defendant. Defendant Lindsey candidly admits that application of the first three factors in this case does not point toward a finding of prejudice, but argues that he was entitled to an explicit instruction precluding jury consideration of evidence relating to theft-on-order conspiracies other than the one in which he was involved.

In United States v. Johnson, 515 F.2d 730 (7th Cir. 1975) (Stevens, J.), we stated:

[W]here, at the close of testimony, it is clear, as here, that a jury could not find a single overall conspiracy as a matter of law, the defendant is not only entitled to a multiple conspiracies instruction but also to an instruction that evidence relating to the other conspiracy or conspiracies disclosed may not be used against him under any circumstances.

[788]*788Id. at 733-34, n. 10. The evidence presented by the Government in the instant case was insufficient to prove the overall conspiracy charged in the indictment.

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United States v. William Edward Lindsey
602 F.2d 785 (Seventh Circuit, 1979)

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Bluebook (online)
602 F.2d 785, 1979 U.S. App. LEXIS 12864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-william-edward-lindsey-ca7-1979.