Colon O. Ward, Petitioner-appellant, v. United States of America, Respondent-appellee, 694 F.2d 654 (11th Cir. 1983)

Colon O. Ward appeals from the denial of his petition to vacate sentence under 28 U.S.C.A. Sec. 2255 by the United States District Court for the Northern District of Florida. Ward raises several issues on this appeal. We affirm the district court's denial of relief as to all but one of Ward's claims, but reverse and vacate one of his conspiracy convictions on the basis of multiplicity.

Ward, members of his family, and others were engaged in receiving, possessing and disposing of trucks, tractors, and other vehicles stolen from interstate commerce. Ward was subsequently indicted on sixteen counts of a twenty-count indictment. Following a jury trial, he was convicted on fifteen counts: one count of conspiracy to receive shipments stolen from interstate commerce (18 U.S.C.A. Sec. 371 (West 1966) and 18 U.S.C.A. Sec. 659 (West 1976)), two counts of receiving stolen shipments (Sec. 659), eleven counts of receiving and concealing stolen vehicles moving in interstate commerce (18 U.S.C.A. Sec. 2313 (West 1970)), and one count of conspiracy to receive and conceal stolen vehicles moving in interstate commerce (Secs. 371 and 2313). Excluding concurrent sentences, Ward was sentenced to twenty-five years in prison. On direct appeal, Ward's conviction was affirmed by a unanimous panel of the Former Fifth Circuit. United States v. Ward, 552 F.2d 1080 (5th Cir.), cert. denied, 434 U.S. 850, 98 S. Ct. 161, 54 L. Ed. 2d 119 (1977).

In his Sec. 2255 petition to the district court¹  Ward raised the following claims for relief: (1) the trial court was without jurisdiction to sentence him because of an improperly filed superseding indictment; (2) the indictment was duplicitous as to two substantive counts under Sec. 659 and as to eleven substantive counts under Sec. 2313; (3) the indictment was multiplicious as to counts 1 and 20, the conspiracy counts; (4) Ward was denied effective assistance of counsel at trial; (5) the trial court's conduct of jury selection deprived Ward of his right to a fair and impartial jury; and (6) Ward's character was wrongfully placed in evidence by evidence of other crimes.

On appeal of the district court's denial of his motion, Ward renews all but the last of these claims. We affirm the district court's findings on all claims except that relating to multiplicity. Because in our view the separate conspiracies of which Ward was convicted arose from but one agreement, we reverse and vacate the conviction and sentence on one of the conspiracy counts.

Ward was first arraigned on a twenty-count indictment on February 12, 1976. On March 11, a superseding indictment was filed, adding Ward's name to one of the conspiracy counts, and correcting the serial number of one of the stolen vehicles he was alleged to have received under one of the substantive counts.²  He was arraigned on this second indictment on March 19, and trial commenced on April 19. After his conviction under the superseding indictment the district court dismissed the original indictment pursuant to the government's motion.

Ward now contends that the second indictment was invalid because it was not returned by a grand jury, and that in fact he was tried on the first indictment. He asserts that the court's dismissal of that indictment after his conviction but before sentencing withdrew jurisdiction from the district court to sentence him. We agree with the district court, however, that this contention is without merit.

Ward's argument amounts to an unsubstantiated claim that the second indictment was not submitted to the grand jury. An indictment regular on its face, however, carries with it a strong presumption of validity. See United States v. James, 290 F.2d 866, 869 (5th Cir.), cert. denied, 368 U.S. 834, 82 S. Ct. 60, 7 L. Ed. 2d 36 (1961).³  In this case, the superseding indictment was signed by the same grand jury foreperson who signed the original indictment. Because this signature constitutes an attestation to the act of the grand jury, see United States v. Cox, 342 F.2d 167, 171-72 (5th Cir.) (en banc), cert. denied sub nom. Cox v. Hauberg, 381 U.S. 935, 85 S. Ct. 1767, 14 L. Ed. 2d 700 (1965), and because Ward has produced no credible evidence to indicate otherwise, we must presume that the superseding indictment was properly returned by the grand jury. Thus, the district court's dismissal of the first indictment after Ward's conviction had no effect on either the validity of his conviction or the court's authority to sentence him. See United States v. Gower, 447 F.2d 187, 189 & n. 2 (5th Cir.), cert. denied, 404 U.S. 850, 92 S. Ct. 84, 30 L. Ed. 2d 88 (1971). No other alleged defects in the indictment rise to the level required for obtaining relief under Sec. 2255.⁴ 

III. THE ALLOWABLE UNIT OF PROSECUTION UNDER 18 U.S.C.A.

Sec. 659

Ward next contends that it was improper to convict him for two separate violations of 18 U.S.C.A. Sec. 659 for receiving and possessing four stolen tractors which were all being transported on one truck-tractor at the time they were stolen.⁵  He correctly points out that this court must determine the "allowable unit of prosecution" under Sec. 659, Bell v. United States, 349 U.S. 81, 81, 75 S. Ct. 620, 621, 99 L. Ed. 905 (1955), and argues that in this case it is all "goods or chattels" taken in a single theft. Brief for Petitioner at p. 23. The government contends that the proper unit of prosecution is each "shipment"--in this case, each tractor that was ultimately bound for a different destination, regardless of whether it was temporarily being transported with others at the time it was stolen.⁶ 

The Former Fifth Circuit has held that each discreet shipment that is the object of a prohibited act under Sec. 659 constitutes one allowable unit of prosecution. See United States v. Gilbert, 537 F.2d 118, 119 (5th Cir. 1976), remanded for reconsideration on other grounds, 430 U.S. 902, 97 S. Ct. 1169, 51 L. Ed. 2d 578 (1977), aff'd on remand, 573 F.2d 346 (5th Cir. 1978). Accord, Oddo v. United States, 171 F.2d 854, 856 (2d Cir.), cert. denied, 337 U.S. 943, 69 S. Ct. 1498, 93 L. Ed. 1747 (1949). Thus, each tractor received by Ward which was ultimately bound for a different destination would constitute one shipment and one allowable unit of prosecution, regardless of whether all tractors were at one time traveling together in interstate commerce.⁷  Because the vehicle received under count 3 was destined for Springdale, Arkansas, while the vehicle received under count 4 was bound for Seymour, Missouri, we affirm the district court's ruling.

IV. THE ALLOWABLE UNIT OF PROSECUTION UNDER 18 U.S.C.A. Sec.

2313

Each of counts 7, 8, 9, 10, 11, 12, 14, 15, 16, 18, and 19 charges Ward with receiving, concealing, and storing one separate stolen vehicle in violation of 18 U.S.C.A. Sec. 2313.⁸  Ward claims that because all eleven vehicles covered in these counts were seized by the government at the same time, he should have been charged with only one violation of Sec. 2313. We disagree.

There is no basis in Sec. 2313 for petitioner's somewhat unique theory of the unit of prosecution. Unlike his claim under Sec. 659, he does not contend that he received the vehicles in these counts at one time and as one transaction. It must be assumed, therefore, that he received, concealed, and stored each vehicle as a separate act. Thus, regardless of whether the allowable unit of prosecution under Sec. 2313 is each vehicle received or each separate act of receiving vehicles, each of the eleven counts in question could properly focus on one particular vehicle.⁹ 

Count 1 charges Ward and three others under 18 U.S.C.A. Sec. 371¹⁰  with conspiring to violate 18 U.S.C.A. Sec. 659 by receiving, possessing and concealing three vehicles which had been embezzled and stolen while being shipped in interstate commerce. Count 20 charges Ward and six others under Sec. 371 with conspiring to violate 18 U.S.C.A. Sec. 2313 by receiving, storing, bartering, selling and disposing of motor vehicles moving as, and a part of interstate commerce.¹¹  Ward alleges that together these two counts charge one ongoing conspiracy which properly may be the subject of but one count under the indictment.

"Multiplicity" is the charging of a single offense in more than one count. United States v. De la Torre, 634 F.2d 792, 794 (5th Cir. 1981); United States v. Free, 574 F.2d 1221, 1224 (5th Cir.), cert. denied, 439 U.S. 873, 99 S. Ct. 209, 58 L. Ed. 2d 187 (1978). Generally, the test for determining whether an indictment is multiplicious is that set forth by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932): "Whether each provision requires proof of an additional fact which the other does not." 284 U.S. at 304, 52 S. Ct. at 182; see United States v. De la Torre, 634 F.2d at 795; United States v. Free, 574 F.2d at 1224. When the charges alleged to be multiplicious are overlapping or similar conspiracies, however, the issue is more complex, and depends primarily upon whether the separate conspiracies alleged are each based upon a general federal conspiracy statute, such as Sec. 371, or instead are based on separate provisions outlawing specific types of conspiracies. See generally United States v. Rodriguez, 612 F.2d 906 (5th Cir. 1980) (en banc), aff'd sub nom. Albernaz v. United States, 450 U.S. 333, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981); United States v. Marable, 578 F.2d 151, 153-54 (5th Cir. 1978).

The Former Fifth Circuit has held that a single conspiracy that violates two specific conspiracy statutes may be treated as two separate conspiracies without violating the double jeopardy clause. See United States v. Rodriguez, 612 F.2d at 915-21;¹²  United States v. Dyar, 574 F.2d 1385 (5th Cir. 1978); United States v. Houltin, 525 F.2d 943 (5th Cir. 1976). When, however, the separate conspiracies are both founded upon a general conspiracy statute, the relevant inquiry is whether there existed more than one agreement to perform some illegal act or acts. See Braverman v. United States, 317 U.S. 49, 52-53, 63 S. Ct. 99, 101, 87 L. Ed. 23 (1942); United States v. Rodriguez, 612 F.2d at 912; United States v. Mori, 444 F.2d 240, 242 (5th Cir.), cert. denied, 404 U.S. 913, 92 S. Ct. 238, 30 L. Ed. 2d 187 (1971); Youst v. United States, 151 F.2d 666, 667 (5th Cir. 1945); United States v. Mallah, 503 F.2d 971, 985 (2d Cir. 1974). See also United States v. Marable, 578 F.2d at 153. This is true even when the illegal acts supporting each conspiracy alleged are themselves violations of different substantive provisions of the criminal code. United States v. Mori, 444 F.2d at 243-44. "The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute [Sec. 371] of the Criminal Code." Braverman v. United States, 317 U.S. at 54, 63 S. Ct. at 102; see also Albernaz v. United States, 450 U.S. at 339-41, 101 S. Ct. at 1142-43; United States v. DiStefano, 361 F. Supp. 971, 976 (M.D. Fla .1973).¹³  Thus, we must determine in this case whether the indictment demonstrates only one agreement between Ward and his co-conspirators to violate different provisions of the criminal code. In making this determination, we are free to look beyond the face of the indictment and examine the trial record. United States v. Marable, 578 F.2d at 153.¹⁴ 

The larger of the two conspiracy counts, count 20, arises from an ongoing scheme involving much of Ward's family. Together with five of his relatives and an acquaintance, Ward was continually receiving stolen vehicles, most often farm equipment, and was engaged in painting, refurbishing, altering serial numbers, and selling this equipment. According to the indictment, this conspiracy lasted from January 1, 1973, to September 20, 1975, and involved at least fifteen vehicles, all moving in interstate commerce at one time or another during the course of the conspiracy.

According to count 1, however, Ward simultaneously took part in a smaller conspiracy lasting from October 1, 1974, to March 30, 1975. Three out of the four conspirators in this count also were indicted under count 20,¹⁵  and the basis for the conspiracy, again, was receiving and concealing shipments of vehicles stolen from interstate commerce. The record shows that Ward and his cohorts managed to come into possession of three tractors which had been stolen while being transported on a large truck/tractor moving in interstate commerce, and that they managed to dispose of at least one of these vehicles. None of the three vehicles listed in count 1 are mentioned in count 20. On the other hand, both conspiracies involved essentially the same type of illegal activity--the various conspirators in both counts would somehow acquire stolen farm equipment, repaint it, alter the serial numbers, and then try to dispose of the merchandise.

Clearly, there is substantial overlap between the two conspiracies alleged. All those convicted under the smaller conspiracy were likewise convicted as participants in the larger one.¹⁶  Likewise, the dates between which the smaller conspiracy took place are included within the time period in which the larger conspiracy was occurring. Compare United States v. Westover, 511 F.2d 1154, 1156 (9th Cir.), cert. denied, 422 U.S. 1009, 95 S. Ct. 2633, 45 L. Ed. 2d 673 (1975). Finally, the basis for both conspiracies was receiving stolen vehicles, and most of the vehicles came to rest at one time or another on Ward's property. Compare United States v. Papa, 533 F.2d 815, 822 (2d Cir.), cert. denied, 429 U.S. 961, 97 S. Ct. 387, 50 L. Ed. 2d 329 (1976).

We find it particularly significant that one of the vehicles concealed, received and stored by the conspirators, according to overt act number 1 of count 20, was the very truck/tractor which was transporting the vehicles that were the subject of the conspiracy in count 1.¹⁷  It seems extremely unlikely that all the members of the larger conspiracy would have agreed to receive, possess and conceal this large count 20 truck/tractor at the same time that three of them separately agreed to possess the three count 1 vehicles it was carrying.

The government, in its brief, places great reliance on the different substantive statutes underlying the separate conspiracy counts. Had the alleged conspiracies been based on specific conspiracy provisions, this argument would have merit. See generally United States v. Rodriguez, 612 F.2d at 913-20; United States v. Dyar, 574 F.2d 1385 (5th Cir. 1978); United States v. Mori, 444 F.2d at 245; note 13 supra. When both conspiracies are founded upon the general conspiracy statute, however, the nature of the underlying illegal acts is not controlling. Of course, a significant variance in the different types of illegal behavior would be probative of whether in fact two separate agreements had been made. For example, in Kerrigan v. United States, 644 F.2d 47 (1st Cir. 1981), the First Circuit had occasion to address two conspiracy convictions involving the transportation of stolen goods. The first count related to a shipment of stolen lithographs by three conspirators, and the second related to a shipment of stolen jewelry. In holding that the government sufficiently alleged two conspiracies, the court pointed out the different time periods involved in the conspiracies (overlapping by only one day) and emphasized that the crimes involved were "similar but distinct." See United States v. Marable, 578 F.2d at 154; United States v. De Fillipo, 590 F.2d 1228, 1234 (2d Cir.), cert. denied, 442 U.S. 920, 99 S. Ct. 2844, 61 L. Ed. 2d 288 (1979).

Here, however, the smaller conspiracy was entirely subsumed in the larger conspiracy, and both Secs. 659 and 2313 relate to the receiving and possessing of merchandise stolen from interstate commerce or moving in interstate commerce. See United States v. Marable, 578 F.2d at 153-56. In essence, the only significant differences between count 1 and count 20 are the different vehicles involved, as indicated by the overt acts in support of each count. However, "a test measuring only overt acts provides no protection against carving one larger conspiracy into smaller separate agreements." United States v. Mallah, 563 F.2d at 985. See generally United States v. Stricklin, 591 F.2d 1112 (5th Cir. 1979). We conclude, therefore, that the indictment alleged but one ongoing conspiracy to receive, possess and conceal vehicles stolen in interstate commerce, and that Ward's conviction under two conspiracy counts was improper.

Normally in a situation such as this, where the two conspiracy convictions are "coterminous" or "overlapping," we would remand to the district court with instructions that the government elect which conspiracy conviction it wishes to leave in effect. The court would then sentence on this count and vacate the conviction and sentence under the remaining conspiracy count. See United States v. Lentz, 624 F.2d 1280, 1289 (5th Cir.), cert. denied, 450 U.S. 995, 101 S. Ct. 1696, 68 L. Ed. 2d 194 (1980); United States v. Dudley, 581 F.2d 1193, 1198-99 (5th Cir. 1978); United States v. Chrane, 529 F.2d 1236, 1238 (5th Cir. 1976). When it is obvious which of the two convictions cannot stand, however, we need not remand to the district court. See Holland v. United States, 384 F.2d 370, 371 (5th Cir. 1967). Here, although either of the conspiracy convictions could stand by itself as a complete offense, it is clear that the smaller count 1 conspiracy was a part of the larger count 20 conspiracy. Therefore, we reverse and vacate only the conviction and sentence under count 1.¹⁸ 

Ward alleges that during the trial which resulted in his conviction he was denied effective assistance of counsel. The basis for this claim is an affidavit made out by one, Charles T. Campbell, purporting to outline a business arrangement in which Ward would receive "equipment" from Campbell, attempt to sell the equipment, and remit ninety percent of the sale price to Campbell. Ward claims that this document, dated March 10, 1973, demonstrates that his possession of the stolen farm equipment was pursuant to a legitimate business arrangement, and thus negates the inference that petitioner knew the equipment was stolen at the time he received it. Further, Ward alleges that he told his attorney of the existence of this affidavit and the arrangement it sets forth, and that he was "reasonably sure" he showed a copy of the document to his attorney. In addition, Ward claims to have told his attorney that Campbell and other witnesses were willing and able to testify as to both the affidavit and the arrangement. Record on Appeal, vol. 2, 77-78. Ward's attorney denied having been told of an affirmative defense of this nature, or of witnesses or facts to support it. Id. vol. 2, 21-30.

Thus, Ward's attorney did not seek to introduce either the document or any other evidence pertaining to the alleged business relationship between Ward and Campbell. Further, counsel introduced no evidence on the element of knowledge. Ward therefore claims that his attorney provided him ineffective assistance in failing either to investigate or to assert this one possible affirmative defense.

As this court has stated many times, the Sixth Amendment requires "not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." Washington v. Watkins, 655 F.2d 1346, 1355 (5th Cir. 1981), cert. denied, --- U.S. ----, 102 S. Ct. 2021, 72 L. Ed. 2d 474 (1982); MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), aff'd, 289 F.2d 928 (5th Cir.) (en banc), cert. denied, 368 U.S. 877, 82 S. Ct. 121, 7 L. Ed. 2d 78 (1961). The determination of whether counsel was ineffective must be "based on the totality of circumstances and the entire record," Washington v. Watkins, 655 F.2d at 1355, and the petitioner bears the burden of proving that counsel was constitutionally infirm. United States v. Killian, 639 F.2d 206, 210 (5th Cir.), cert. denied sub nom., Brunk v. United States, 451 U.S. 1021, 101 S. Ct. 3014, 69 L. Ed. 2d 394 (1981); United States v. Guerra, 628 F.2d 410, 413 (5th Cir. 1980) (per curiam), cert. denied, 450 U.S. 934, 101 S. Ct. 1398, 67 L. Ed. 2d 369 (1981).

The record demonstrates, and the court below found, that Ward's trial counsel competently represented his client both before and during trial, raising objections, examining witnesses, performing legal and factual research, and making various motions on behalf of Ward. Viewed in its entirety, then, counsel's conduct does not even approach that which this court has labeled ineffective in other cases. See, e.g., Young v. Zant, 677 F.2d 792 (11th Cir. 1982); Nero v. Blackburn, 597 F.2d 991 (5th Cir. 1979); Gomez v. Beto, 462 F.2d 596, 597 (5th Cir. 1972) (per curiam).

Of course, this court has held on occasion that the failure by counsel to pursue his client's sole affirmative defense when requested to do so may, by itself, support a finding of ineffective assistance. See Gaines v. Hopper, 575 F.2d 1147, 1148-50 (5th Cir. 1978) (per curiam); Gomez v. Beto, 462 F.2d at 596-597. If it were true, therefore, that Ward raised an affirmative defense with counsel and brought supporting witnesses to the attention of his attorney, then in the absence of strategic reasons for not pursuing these leads Ward might have a valid claim.

The very issue of whether petitioner brought this potential defense to the attention of counsel, however, was hotly contested below. After a full evidentiary hearing, the magistrate credited the testimony of trial counsel and not that of Ward, and expressly found that "the petitioner never informed his counsel of any reasonably available affirmative defenses or facts which would have led counsel to consider such defenses."¹⁹  Record on Appeal, vol. 2, 98-100. This finding by the magistrate, adopted by the district court, is amply supported by the record and by the magistrate's ability to view the witnesses firsthand. Because this finding is not clearly erroneous, it must be sustained.

Ward contends that his attempts to secure post-conviction relief have been prejudiced by the inability of his counsel on direct appeal²⁰  to view the sealed transcript of portions of the voir dire examination of potential jurors in his trial. In particular, Ward argues that he was forced to exercise a preemptory challenge to a prospective juror who should have been excused for cause, and that this prejudiced his defense.

Our examination of the entire record discloses that one prospective juror was the wife of an FBI agent who had participated in a fruitless search of Ward's property. Ward's counsel asked that this juror be removed from the panel for cause. The judge denied this request, and counsel subsequently used a preemptory challenge to strike her from the jury.

The refusal by a trial court to strike a prospective juror for cause may be reversed only for an abuse of discretion. See United States v. Garza, 574 F.2d 298, 303 (5th Cir. 1978). Further, the party challenging such a refusal must demonstrate that the juror in question exhibited actual bias: That is, either an express admission of bias, or proof of specific facts showing such a close connection to the circumstances of the case that bias must be presumed. See United States v. Nell, 526 F.2d 1223, 1227-30 (5th Cir. 1976). Because Ward has demonstrated neither form of bias, we must uphold the district court's decision. Compare id.²¹ 

Ward also challenges the inability of his counsel on appeal to review the sealed portions of the voir dire proceedings. We note, however, that there is no question that all portions of voir dire were in fact transcribed, as well as available to Ward upon appropriate motion. Thus, this case is unlike others in which the complete failure to transcribe various proceedings was determined to be prejudicial per se to a defendant who retains new counsel on appeal. See United States v. Selva, 559 F.2d 1303, 1305-06 (5th Cir. 1977); United States v. Gregory, 472 F.2d 484, 486-87 (5th Cir. 1973).²²  Because Ward could have secured a copy of these sealed transcripts, and because our own review of the transcript discloses no error in the trial court's conduct of voir dire, we affirm the district court's ruling.

Finally, over counsel's objections, the trial court allowed an FBI agent to testify as to conversations he had with the driver of one of the stolen vehicles. This hearsay testimony was admitted under Fed.R.Evid. 804(b) (5) because, according to the government, the declarant was unavailable. See United States v. Ward, 552 F.2d 1080 (5th Cir.), cert. denied, 434 U.S. 850, 98 S. Ct. 161, 54 L. Ed. 2d 119 (1977).²³  Now, Ward contends that the hearsay declarant was in fact available and that this was known to the government at the time that it proffered the hearsay testimony. Because there is absolutely no support for this allegation in the record, however, we hold that it is without merit. See United States v. Jones, 614 F.2d 80, 82 (5th Cir. 1980).

On the basis of the foregoing discussion, we affirm the order of the district court in all respects save one. Because Ward's conviction for two counts of conspiracy was multiplicious, we reverse on this ground and vacate Ward's conviction and sentence under Count 1.

VACATED IN PART AND AFFIRMED IN PART.