UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 98-10285
UNITED STATES OF AMERICA,
Plaintiff - Appellee, VERSUS
LEVI WOODERTS, JR; DORSEY L TURNER; ROBERT GAINES; EMMITT LYDIA, III,
Defendants - Appellants.
Appeal from the United States District Court for the Northern District of Texas (3:97-CR-54-1-D)
July 6, 1999 Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Levi Wooderts,Jr., Dorsey L. Turner, Robert Gaines, and Emmitt
Lydia, III, appeal their convictions and sentences arising from a
conspiracy to operate a chop shop in Dallas, Texas. We affirm.
I.
This case involves a multiple-defendant conspiracy to operate
a chop shop. The FBI discovered this chop shop by sending Special
Agent Donald Ramsey undercover to pose as a used car parts buyer.
* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. On April 8, 1996, Ramsey was introduced to Appellant Levi
Wooderts. Ramsey bought parts from Wooderts and gave him a
business card for future reference. Wooderts called Ramsey on
April 11 to discuss selling more parts, and the two met the
following day. Wooderts delivered parts to Ramsey’s storefront on
April 12. The delivery was recorded on videotape. Ramsey bought
parts from Wooderts and his associates from April until September
1996. These parts came from forty-one identifiable cars, plus
others. Parts from eight vehicles were altered.
Wooderts was identified at trial by Ronald Wadley, a co-
defendant who testified that he stole cars, supplied them to a chop
shop operated by Wooderts out of a garage on Emery Street,
witnessed the stripping of vehicles, and assisted in the delivery
of parts to the storefront. Wadley testified that Wooderts was
present while Wadley stole a truck which was then delivered to the
chop shop. Derrick Walton, Wadley’s brother, testified that
Wooderts was in charge of the overall operation. FBI surveillance
videotapes shot outside the chop shop on October 1, 1996, show
Wooderts arriving and gathering with various co-defendants.
Wooderts testified that he knew nothing about how the parts he
sold were originally obtained. He admitted being present when
Wadley stole a black truck, but denied involvement. He admitted
that he knew at some point that his enterprise was illegal, but he
kept doing it anyway. He acknowledged nineteen prior convictions
for similar offenses over a twenty-year period.
-2- Appellant Dorsey Turner was observed by FBI agents at the
storefront on September 3, 1996. He transported two engines in his
own vehicle, and assisted in the unloading of the engines and other
parts from three cars. Wadley testified that Turner had keys to
the chop shop, and that he had witnessed Turner participating in
the stripping of the vehicles at the chop shop. Co-defendant
William Menefee testified that he saw Turner dismantle new trucks
and drain the gas out of trucks that were being dismantled. FBI
surveillance videotapes shot outside the chop shop on October 1,
1996, show Turner arriving in his own truck, and later maneuvering
the truck in the driveway. Wadley testified that this was done to
block views into the garage.
Wooderts testified that Turner had nothing to do with any chop
shop, alteration of parts, or sale of altered parts.
Appellant Robert Gaines never visited the storefront. The
Emery Street garage where the chop shop was located was rented to
Gaines by Robert Burks. Wadley identified Gaines as the man in
charge of the actual chop shop (i.e., the vehicle stripping or
“cutting” part of the enterprise). This testimony was corroborated
by Walton. Wadley testified that he had seen Gaines at the chop
shop, that Gaines had keys to the chop shop, and that Gaines would
actually break up the vehicles, assisted by Turner. Co-defendant
Johnny Jackson, a participant who loaded the parts after they had
been stripped from vehicles, identified Gaines as one of the people
he most frequently saw at the chop shop. Menefee testified that he
witnessed Gaines dismantling trucks. FBI surveillance videotapes
-3- shot outside the chop shop on October 1, 1996, show Gaines arriving
in his black Trans Am, and leaving and returning later in the day.
Wooderts testified that Gaines had nothing to do with any chop
Appellant Emmitt Lydia never visited the storefront. Wadley
identified Lydia as a fellow car thief who assisted in the theft of
two of the trucks stripped for parts sold to Ramsey. According to
Wadley, Lydia acted as a lookout while Wadley stole one of the
trucks. This testimony was corroborated by Walton. Wadley
testified that he had seen Lydia at the chop shop, and that Lydia
had watched the stripping of a truck, but Lydia did not participate
because he was on crutches. FBI Agent Danny Sisco, who conducted
surveillance in this case, observed Lydia watching one of the
stolen vehicles being rolled in and out of the chop shop as parts
were unloaded from it into a U-Haul truck. FBI surveillance
videotapes of the exterior of the chop shop on October 1, 1996,
show Lydia driving Wooderts to the garage in a maroon Cadillac;
Lydia is also seen at various times gathering with other defendants
by a white car, and leaving and returning later in the day.
Lydia denied involvement with any chop shop, alteration of
parts, or sale of altered parts. He admitted being present when a
truck was stolen, but he denied participation. Lydia acknowledged
five prior convictions for similar conduct.
Wooderts testified that Lydia had nothing to do with any chop
-4- Wooderts, Turner, Lydia, and others were indicted on February
25, 1997, and charged with operating a chop shop. A superseding
indictment filed on June 24, 1997, added Gaines as a defendant and
added charges of conspiracy to operate a chop shop. A second
superseding indictment filed on July 29, 1997, charged the
defendants with altering or tampering with motor vehicle
identification numbers and trafficking in altered motor parts and
conspiracy to alter or tamper with motor vehicle identification
numbers and to traffic in altered motor parts.
The case was tried on December 1, 1997. Count 1 was the
conspiracy count; Counts 2-9 were the alteration of motor vehicle
parts counts; Counts 10-17 were the trafficking counts. Wooderts
and Gaines were found guilty on all counts. Turner was found
guilty of conspiracy and one trafficking count; he was acquitted on
all other counts. Lydia was found guilty on the conspiracy count,
two alteration counts, and two trafficking counts.
The appellants received the following terms of imprisonment:
Wooderts, 240 months; Gaines, 85 months; Turner, 37 months; Lydia,
96 months. The prison terms are followed by a three-year term of
supervised release. They were ordered to pay $386,589.03 in
restitution, but no fines. All four timely appeal.
II.
Lydia challenges the sufficiency of the evidence against him.
[We] must consider the evidence in the light most favorable to the Government, drawing all reasonable inferences in support of the jury’s verdict. The evidence is sufficient if a rational trier of fact
-5- could have found the essential elements of the crime beyond a reasonable doubt. A review of the sufficiency of the evidence, however, does not include a review of the weight of the evidence or of the credibility of the witnesses.2
Lydia was convicted on the conspiracy count and four
substantive counts. He argues that although evidence demonstrates
that he stole cars and knew the cars were being taken apart and
sold for parts, there is no evidence that he knew anything about
the alteration of vehicle identification numbers (VINs). Lydia
argues that alteration of VINs is an element of every charged
offense, including conspiracy to commit the substantive offenses,
and therefore he cannot be convicted without evidence that he
altered VINs or was aware that VINs were being altered.
The government responds that Lydia was validly convicted on
the conspiracy count, and that he can be held vicariously liable on
substantive counts for his co-conspirators’ criminal conduct under
the doctrine of Pinkerton v. United States, 328 U.S. 640 (1946).
With respect to the conspiracy conviction, Lydia hangs his hat
on the legal requirement that he be a “knowing” participant in the
conspiracy. Since “mere presence” at a crime scene or association
with members of a conspiracy is not legally sufficient evidence of
knowing participation in a conspiracy, Lydia argues that his “mere
presence” at the chop shop is insufficient evidence to convict him,
as he was blissfully ignorant that one element of the charged
substantive offenses -- alteration of VINs -- was being
contemplated and committed by the others.
2 United States v. Powers, 168 F.3d 741 (5th Cir. 1999).
-6- Though knowing participation is required, Lydia is wrong that
his ignorance of the alteration of VINs immunizes him from
conviction for conspiracy to violate §§ 511 and 2322. Lydia’s
argument is similar to one that has been frequently rejected by
this Court. He has essentially argued that there were multiple
conspiracies, and the conspiracy he engaged in -- a conspiracy to
steal cars, strip them, and sell their parts, but protect their
VINs -- was a separate, lesser conspiracy that was not charged in
the indictment. We are not persuaded. “[A] conspirator may not
willfully and knowingly participate in a criminal scheme and then
disclaim responsibility when his coconspirators later take actions
that are the necessary or natural consequence of the unlawful
agreement. Nor may the same end be achieved by simply alleging
that each illegal objective constitutes a separate conspiracy.”3
We reject Lydia’s contention that evidence of his knowledge of the
destruction of VINs was necessary to support conspiracy, and
conclude that there is sufficient evidence of his participation to
validate the jury’s verdict.
Since Lydia has been validly convicted for conspiracy, there
is absolutely no defect in the proof holding him liable for the
substantive offenses. Pinkerton holds that all conspirators are
vicariously liable for reasonably foreseeable crimes committed by
co-conspirators in furtherance of the conspiracy. Obliteration of
a VIN which might otherwise allow a sold part to be traced back to
3 United States v. Brasseaux, 509 F.2d 157, 161 (5th Cir. 1975); see also United States v. Becker, 569 F.2d 951, 960 (5th Cir. 1978).
-7- the chop shop is a foreseeable act in furtherance of a conspiracy
to steal cars and sell their parts.
III.
Turner moved for acquittal or new trial. Denial of a motion
for acquittal is reviewed for sufficiency of the evidence. Denial
of a motion for new trial is reviewed for abuse of discretion.
Turner argues that his acquittal on all § 511 violations is
inconsistent with his conviction on a count of § 2321, because
§ 2321(b) specifically provides that no crime is committed if there
has been no § 511 violation. Turner further argues that conviction
on both counts was not supported by evidence because the evidence
gave equal support to theories of guilt and innocence. He claims
that his acquittal on many counts indicates that the jury
disbelieved the testimony of the government’s witnesses.
Furthermore, he argues there is no evidence indicating that he knew
the parts he delivered (when he was captured on videotape) were
stolen.
Regarding his request for new trial, Turner characterizes the
verdict as a “compromise verdict,” and, therefore, a miscarriage of
justice mandating a new trial. He also contends that denial of his
motion for severance (see infra Part VI) was grounds for new trial.
The plain text of the statutes reveals that acquittal for
§ 511 is not inconsistent with conviction for § 2321. Section 511
prohibits actually altering a VIN. Section 2321 prohibits knowing
sale or distribution of a part with an altered VIN, but does not
-8- require actual alteration of a VIN. So, for example, one could
conduct operations in a chop shop without actually altering VINs.
There was, in fact, amply sufficient evidence (i.e., concerted
action with the others, including assisting in the cutting of
vehicles and assisting in the delivery of parts) to support the
jury’s conclusion. The fact that the jury acquitted Turner on
numerous charges does not mean that they wholly discounted the
testimony of government witnesses, and the verdicts of acquittal do
not erase that evidence from the record. That evidence supports
the convictions that were returned. The district court did not
abuse its discretion in denying a new trial, since Turner did not
demonstrate prejudice resulting from the denial of his motion for
severance, and Turner’s acquittal on some counts does not compel
the conclusion that the jury reached a compromise verdict.
IV.
Gaines complains that the government used a peremptory
challenge to strike a black juror. Pursuant to Batson v. Kentucky,
476 U.S. 79 (1986), Gaines appeals his conviction based on this
allegedly race-based strike. The district court determined that
the prosecution gave a legitimate, race-neutral explanation for the
strike. That determination is reviewed for clear error.
Counsel for Turner stated that he believed the prospective
juror in question worked as a secretary at his law firm. That is
the reason articulated by the prosecution for its strike. The
-9- district court determined that this was a permissible basis for
striking the prospective juror, and overruled Gaines’s objection.
There was no clear error here. Employment may be a valid,
race-neutral reason for exclusion,4 and this is especially true
when there is a suggestion of such a clear link by employment
between the prospective juror and the defense.
V.
Gaines unsuccessfully moved for a severance. The district
court’s denial of that motion is reviewed for abuse of discretion.
Severance need be granted only when there is a serious risk of
compromising the trial rights of a defendant.5 The defendant must
show on appeal specific and compelling prejudice which resulted in
an unfair trial.6 Gaines sought a severance based on Wooderts’
assertion of an entrapment defense and Wooderts’ extensive criminal
history. Although the district court gave appropriate limiting
instructions, Gaines claims he was still prejudiced because
Wooderts “came close to admitting guilt” and Wooderts’ “extensive
criminal record established guilt by association in the minds of
the jurors.”
“Rule 14 leaves the determination of risk of prejudice and any
remedy that may be necessary to the sound discretion of the
4 See United States v. Munoz, 15 F.3d 395 (5th Cir. 1994). 5 See United States v. Neal, 27 F.3d 1035 (5th Cir. 1994). 6 See United States v. Cortinas, 142 F.3d 248 (5th Cir.), cert. denied, 119 S. Ct. 224 (1998).
-10- district courts.”7 Gaines has not made the required particularized
showing of prejudice, and, indeed, concedes that the district court
gave appropriate limiting instructions. In these circumstances,
where Gaines has made no particularized argument of prejudice, the
district court’s exercise of its discretion will not be disturbed.
VI.
The district court departed upward five levels in imposing
Wooderts’ sentence. Wooderts objected to this departure at trial,
and now appeals his sentence. The decision to depart is reviewed
for abuse of discretion.
The reason for departure, as suggested by the presentence
report and as adopted by the district court, was that Wooderts’
criminal history score did not adequately reflect the seriousness
of his criminal record. Wooderts' criminal history category was
VI, the highest enumerated category, which requires only 13
criminal history points. Wooderts had a whopping 44 criminal
history points. The district court stated: “There is a symmetry
between the 240 month sentence and the number of years you’ve been
involved in criminal conduct. It is also necessary in my view to
reflect the criminal history points that you have.”
Upward departure when the criminal history score fails to
adequately represent the seriousness of the defendant’s record is
7 Zafiro v. United States, 506 U.S. 534, 541 (1993).
-11- permitted and has been endorsed by this Court.8 The sentence
imposed is consistent with the precedent of this Court, and we
decline to disturb the discretion of the district court.
VII.
The defendants were assigned restitution in the amount of
$386,589.03. The district court determined that a total loss of
$888,606.10 had resulted from the chop shop operation, and this
total was used to calculate the defendants’ total offense levels.
Wooderts and Turner challenge the calculation of the amount of
loss. The district court’s factual findings as to the amount of
loss attributable to a common scheme are reviewed for clear error.
Wooderts challenges the amount of loss used for calculating
his offense level, and argues that he could not be held accountable
for the value of cars for which the government had not determined
the identity of the original owners, because there could not be any
certainty that those cars were actually stolen. He contends that
only $482,943.22 of loss is attributable to cars which were
specifically identified as having been stolen. To the contrary,
there was indeed evidence indicating that all forty-two identified
vehicles had been stolen. Because Wooderts was the ringleader, all
losses were reasonably foreseeable to him. Given the district
court’s reliance on the presentence report and the evidence in the
8 See, e.g., U.S.S.G. § 4A1.2; United States v. Route, 104 F.3d 59 (5th Cir. 1997).
-12- record supporting the presentence report’s valuation of the loss,
the district court did not clearly err.
Turner challenges the amount of restitution for which he is
jointly and severally liable, and argues that because he was
acquitted on Counts 2-13, he should not be held liable for loss
attributable to those counts. He argues that the conduct for which
he was acquitted should not be considered “relevant conduct.” He
argues that relevant conduct is not coextensive with the scope of
the conspiracy, relying on application note 2 to U.S.S.G. § 1B1.3.
“[A] jury’s verdict of acquittal does not prevent the
sentencing court from considering conduct underlying the acquitted
charge, so long as that conduct has been proved by a preponderance
of the evidence.”9
The district court relied on the presentence report, and found
that its conclusions were supported by the evidence. Evidence
suggested that Turner was involved from the beginning of the
operation as a cutter. Despite the jury’s acquittals, because of
the different standards of proof governing conviction and proof of
relevant conduct, the district court was still entitled to make
contrary findings of fact. The district court’s conclusions were
based on the presentence report and supported by the evidence;
thus, the court did not clearly err.
VIII.
9 United States v. Watts, 519 U.S. 148, 157 (1997).
-13- Turner sought a reduction in his offense level for his minimal
participation in the conspiracy (U.S.S.G. § 3B1.2). The request
was denied. The district court’s factual determination is reviewed
for clear error. The same logic that discounts Turner’s arguments
that the entire loss resulting from the scheme should not be
attributable to him applies here. The district court found that
Turner acted as a “cutter” in the chop shop and was a full
participant in the conspiracy. Therefore, a minor participant
reduction is clearly not justified. Once again, the district court
did not clearly err.
IX.
Turner argues that a mistrial should have been declared
because the government failed to disclose in timely fashion notes
from a interview with Wooderts, in violation of Brady v. Maryland,
373 U.S. 83 (1963). The notes make no mention of Turner. The
district court stated that a Brady violation occurred, but
concluded that the defendants were not prejudiced. The district
court’s ruling is reviewed for abuse of discretion.
Turner claims he was prejudiced because the notes tended to
exculpate him, and because he lost an opportunity to impeach the
testimony of government witnesses.
These notes could only be used to impeach two witnesses:
Wooderts and Carr, the detective who conducted the interview. The
district court determined that Turner elicited favorable testimony
-14- from Wooderts, so there would have been no grounds for impeachment.
With respect to Carr, Turner in fact received the notes in time to
use them to impeach Carr, had he desired to do so. And, in fact,
Turner cross-examined Carr on this very point. Specifically,
Turner was able to elicit the fact that he was not mentioned in the
notes.
In light of Wooderts’ favorable testimony for Turner, Turner’s
use of the notes to cross-examine Carr, and the fact that the notes
were not available to be used for any other purpose, the district
court did not abuse its discretion in denying a mistrial.
X.
Wooderts, Turner, and Lydia challenge the prosecution’s use of
plea agreements to “purchase” testimony against them, based on
United States v. Singleton.10 The reasoning in that case is
obsolete and has already been rejected by this Court.11
XI.
We have reviewed the remainder of the points raised on appeal
for plain error, as error was not preserved in the court below, and
10 144 F.3d 1343, 1359-61 (10th Cir. 1998), rev’d, 165 F.3d 1297 (10th Cir. 1999) (en banc), cert. denied, 1999 WL 185874 (U.S. June 21, 1999). 11 See, e.g., United States v. Haese, 162 F.3d 359 (5th Cir. 1998), cert. denied, 119 S. Ct. 1795 (1999).
-15- 15 find no grounds for reversal. For the aforementioned reasons, we
AFFIRM the judgments of the district court.
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