Unpublished Disposition, 880 F.2d 416 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 880 F.2d 416 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Thomas Francis MOORE, Jr., Douglas Everett Harsh, Donald RayCripps, Defendants-Appellants.

Nos. 87-3157, 87-3158 and 87-3160.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 2, 1989.Decided July 18, 1989.As Amended Aug. 24, 1989.

Before TANG, BOOCHEVER and KOZINSKI, Circuit Judges.


MEMORANDUM* 

Thomas Francis Moore, Douglas Everett Harsh and Donald Ray Cripps appeal their convictions of conspiracy to facilitate an escape and to harbor an escaped federal prisoner in violation of 18 U.S.C. § 371. Moore and Harsh also appeal their convictions of harboring an escaped federal prisoner in violation of 18 U.S.C. §§ 1072 and 2. Moore and Harsh argue that the evidence at trial proved the existence of two separate conspiracies, not one as charged in the indictment, which caused a variance to the prejudice of their rights. Even assuming that there was no variance, Moore and Harsh argue that their convictions should be reversed because: (1) there was insufficient evidence to sustain their two convictions, (2) the district court erred in instructing the jury on the conspiracy charges, (3) there was a misjoinder of defendants or prejudice resulting from the joinder and (4) in Moore's case, the district court erred in admitting the evidence of his prior felony conviction.

Finally, Moore and Cripps appeal their conspiracy sentences and contend that the district court abused its discretion in the length of their sentences and in Cripps' case, by failing to apply the Sentencing Guidelines.

FACTUAL BACKGROUND

This case concerns a conspiracy to aid Stephen Michael Kessler's escape from Rocky Butte Jail1  in Portland, Oregon and in his relocation to Missouri. The trial established that Kessler was in a partnership which sold controlled substances. Kessler's partner, Sandra Shirley, and some of his customers including Donald Cripps, were in the original group of people who planned Kessler's escape. Tom Moore and Douglas Harsh joined the conspiracy after Kessler's escape from jail. Tom Moore was a friend since 1977 with one of the conspirators from the original group. Douglas Harsh was a neighbor and partner of another of the original conspirators in an automobile curbstone operation, an unlicensed business engaged in the buying and selling of cars.

Plans for Kessler's escape began in May of 1982. The plan consisted of smuggling a weapon into Rocky Butte Jail and leaving a car stocked with food, clothes, money and firearms nearby for Kessler to use after his escape.

On July 25, 1982, Kessler escaped with five other inmates and shot a prison guard in the head as he left. Kessler did not use the intended getaway car. Where Kessler went between July 25 and August 1, 1982, is still unknown but between August 1 and August 9, 1982, he was kept hidden variously in the homes of the conspirators, a motel and different campgrounds in the Portland area while being supplied with money, guns, ammunition, clothes, false identification and vehicles. On August 9, 1982, Kessler and another escapee were driven by Tom Moore in a pickup truck and camper to go to Missouri. Kessler was recaptured in Independence, Missouri on August 26, 1982.

PROCEDURAL BACKGROUND

Moore, Harsh and Cripps were among the six2  defendants named in a nine-count indictment filed on April 29, 1987. The indictment charged various defendants with the following counts:

(1) conspiracy to facilitate the escape of a federal prisoner and to harbor the fugitive, in violation of 18 U.S.C. § 371;

(2) facilitating the escape of a federal prisoner in violation of 18 U.S.C. §§ 752(a) and 2;

(3) harboring and concealing a federal prisoner following his escape in violation of 18 U.S.C. §§ 1072 and 2;

(4 & 5) knowingly receiving firearms after having previously been convicted of a felony in violation of 18 U.S.C. Appendix 1202(a) (1) and 18 U.S.C. § 2;

(6) using a facility in interstate commerce to distribute heroin and cocaine in violation of 18 U.S.C. §§ 1952(a) (3) and 2;

(7 & 8) possession of heroin and cocaine with intent to distribute in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2; and

(9) unlawful use of a communication facility (the mail) in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2.

Moore, Harsh and Cripps were charged along with the three other defendants in Count One of the indictment with conspiracy: to facilitate the escape of a federal prisoner and to harbor the prisoner following his escape in violation of 18 U.S.C. § 371.

Moore was named in five overt acts: acts numbered 12, 32 and 34 involving meetings on July 28, August 8 and August 9, 1982 with other conspirators and Kessler; acts numbered 33 and 35 involving driving with other conspirators to a park where Kessler was staying on August 8, 1982 and driving Kessler from Oregon on August 9, 1982.

Harsh was charged with three overt acts: acts 27 and 28 involving buying a trailer under an assumed name and leaving it at a park where Kessler was staying; act 31 involving buying, under an assumed name, the pickup truck and camper in which Kessler left the state on August 8, 1982.

Cripps was charged with overt act 29, which involved bringing Kessler to the home of a conspirator on August 1, 1982.

Moore, Harsh and Cripps were also charged with Count Three of the indictment: harboring and concealing an escaped federal prisoner in violation of 18 U.S.C. §§ 1072 and 2.

Jury trial commenced against all six defendants named in the indictment on August 10, 1987. On August 31, 1987, the district court denied the defendants' motions for severance of their trials and acquittal. On September 1, 1987, Cripps pleaded guilty to Count One of the indictment. On September 2, 1987, the court denied Moore's motion in limine before trial to exclude his 1976 attempted rape conviction. The jury found Moore and Harsh guilty on September 4, 1987 of conspiracy to aid the escape of a federal prisoner and to harbor and conceal the escapee and of harboring and concealing an escapee. On November 2, 1987, Count Three of Cripps' indictment was dismissed on the Government's motion. Moore, Harsh and Cripps were sentenced to five years in prison for their conspiracy convictions; Moore and Harsh were also given concurrent three-year prison sentences for their harboring convictions.

In this consolidated appeal, Moore appeals his two convictions and his conspiracy sentence. Harsh appeals his two convictions. Cripps appeals his conspiracy sentence.

STANDARDS OF REVIEW

A. Denial of Motions for Acquittal and Challenge to the Sufficiency of Evidence

The question of whether a motion for judgment of acquittal has been properly denied is tested in the same manner as a challenge to the sufficiency of the evidence. United States v. Talbert, 710 F.2d 528, 530 (9th Cir. 1983), cert. denied, 464 U.S. 1052 (1984). We review all evidence in the light most favorable to the prosecution to determine if "any trier of fact could have found the essential elements of a crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the original).

Similarly, the question of whether a single conspiracy was charged in an indictment is resolved by viewing the evidence in the light most favorable to the government in determining whether any rational juror would have found beyond a reasonable doubt a single conspiracy. United States v. Patterson, 819 F.2d 1495, 1502 (9th Cir. 1987).

A district court's formulation of jury instructions is reviewed for an abuse of discretion. United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985).

Whether joinder was appropriate is a question of law reviewed de novo. United States v. Vaccaro, 816 F.2d 443, 448 (9th Cir. 1987). The denial of a motion to sever is reviewed for an abuse of discretion. Patterson, 819 F.2d 1495, 1501 (9th Cir. 1987). A defendant must demonstrate actual prejudice resulted from a joint trial, that is, "the prejudice must have been of such magnitude that the defendant was denied a fair trial." United States v. Sears, 663 F.2d 896, 901 (9th Cir. 1981).

Both the refusal of a trial court to make an advance evidentiary ruling and the court's decision to admit evidence of a defendant's prior conviction are reviewed for abuse of discretion. United States v. Browne, 829 F.2d 760, 761-2 (9th Cir. 1987).

A district court's sentencing decision is reviewed for an abuse of discretion. United States v. Meyers, 847 F.2d 1408, 1416 (9th Cir. 1988). A sentence which falls within statutory limits is ordinarily not reviewable unless constitutional concerns exist. Id.

ANALYSIS

Moore and Harsh argue that the district court erred in denying Moore's and Harsh's motions for acquittal on the conspiracy count because of a fatal variance between the indictment for one conspiracy and evidence which allegedly established two conspiracies.

First, we determine if this matter was properly raised below. Fed. R. Crim. P. 12(b) (2) and 12(f) require all objections to defects in an indictment to be raised prior to trial unless there is good cause for not doing so. Moore raised the issue of multiple conspiracies before trial by asserting that Count One of the indictment charged "two distinct crimes." (CR 62). Although no explanation was provided, Rule 12(b) (2) requires none. We therefore conclude Moore has preserved his right to appeal this argument.

Harsh failed to raise this issue below, therefore he cannot raise it on appeal.

Next we must determine if the government proved only a single conspiracy, that is, "whether there was one overall agreement among the various parties to perform various functions in order to carry out the objectives of the conspiracy," United States v. Gordon, 844 F.2d 1397, 1401 (9th Cir. 1988), citing United States v. Jabara, 618 F.2d 1319, 1327 (9th Cir. 1980). Or, instead, whether a single conspiracy can be identified by using a "factor test", looking at factors such as the nature of the scheme, the identity of the participants, the quality, frequency and duration of each of the conspirator's transactions and the commonality of times and goals. Gordon, 844 F.2d 1397, 1401 (9th Cir. 1988).

Moore argues that two different conspiracies existed: one to help Kessler escape and the other to harbor and conceal him. For support, he relies upon the following reasoning: 1) the time periods did not overlap: the original conspiracy ended upon Kessler's escape from jail on July 25, 1982 while the second conspiracy began more than a week after his escape, 2) the locations were different: the plan to help Kessler escape was confined to Portland, Oregon but the plan to hide him extended into Missouri, (3) the participants were different: new people joined the plan to harbor Kessler; (4) the overt acts committed to help Kessler escape were simpler and more constrained than the ones committed to harbor Kessler and (5) the goal of the plan to help Kessler escape was merely to return Kessler to narcotics trafficking in the immediate area while the goal of the second plan was to save him by getting him out of the state.

"A single overall agreement need not be manifested by continuous activity. There may be a suspension of activities which does not divide a single conspiracy into more than one." United States v. Bloch, 696 F.2d 1213, 1215 (9th Cir. 1982). Furthermore, a conspiracy is presumed to continue until there is affirmative evidence of abandonment, withdrawal, disavowal or defeat of the purposes of the conspiracy." Id. No evidence of abandonment or defeat was presented to the trial court here. Rather, we find that the conspiracy continued even after Kessler left jail because the objective to keep Kessler from getting caught remained in effect and the conspirators used similar methods before and after the escape to achieve that objective. Thus, a reasonable jury could have concluded there was one overall conspiracy. Because the proof did not establish multiple conspiracies, no variance between the proof and indictment existed.

In Jury Instruction 14, the district court stated:

As to Defendants Harsh and Moore, however, in order to find either guilty of conspiracy under Count 1 you must find that he conspired with other alleged coconspirators to harbor and conceal Stephen Kessler as an escapee after July 25th, 1982. You cannot convict either Mr. Harsh nor Mr. Moore of conspiring to aid and assist Mr. Kessler in his escape from jail.

Moore and Harsh argue that by giving this instruction to the jury, the district court usurped the jury's function of determining whether a single conspiracy existed. Fed. R. Crim. P. 30 requires a party to state distinctly the grounds of their objection to a jury instruction. If no grounds are given, reversal will be justified only if the instruction constituted plain error, that is, the instruction was so clearly erroneous that it seriously affected the fairness, integrity or public reputation of judicial proceedings. United States v. Bustillo, 789 F.2d 1304, 1367-68 (9th Cir. 1986).

The defendants did not give reasons for their objection to Jury Instruction 14. Because they did not properly raise their objection below, we review the jury instruction for clear error. We hold that no clear error exists to compel reversal of the defendants' convictions; we have determined that only a single conspiracy had been charged.

Moore and Harsh argue that there was insufficient evidence to sustain their convictions of conspiracy and harboring. In order to convict a defendant of conspiracy, the government must prove (1) an agreement to accomplish an illegal objective, (2) at least one act in furtherance of this objective and (3) the requisite intent to commit the underlying substantive offense. United States v. Indelicato, 800 F.2d 1482, 1483 (9th Cir. 1986). To convict for harboring and concealing an escaped federal prisoner, the Government must prove that a defendant did the harboring "willfully", that is, the defendant knew that the person he aided was an escapee. Moore and Harsh were convicted of conspiracy to aid an escape and to harbor and of the substantive crime of harboring as well. It follows that it must have been proven to the jury's satisfaction that they knew of Kessler's identity as an escapee, that they agreed with the others to harbor Kessler and that they committed an act to harbor Kessler. There was sufficient evidence to support those findings.

Moore argues that the evidence presented at trial was conflicting and too circumstantial to show he knew that Kessler was an escaped prisoner. At trial though, Audrey Alo and Stephen Sanders, parties to the original group of conspirators, testified that Moore was asked by conspirators Alo and Shirley to "help make a move", i.e. to drive Kessler out of town.

In addition, coconspirator Willis testified that on August 8, 1982, Moore accompanied him to the campground where Kessler was staying, that Moore remained behind with Kessler after Willis left, that Moore met him and Kessler the next day at the Portland Zoo and that Moore afterwards drove Kessler out of state.

At trial, Moore testified that he was coerced into driving Kessler, that he did not know Kessler's identity until they met on August 8, 1982, and that he was unable to escape from Kessler until two days after they left the state.

In his brief, Moore attempts to discount the testimony adverse to him. First, concerning Alo's and Sanders' testimony that the conspirators had asked him to drive Kessler out of Oregon, he points out that both witnesses stated they were not present when the "pitch" was made to him. Regarding Willis' testimony that he had seen Moore meet Kessler, Moore points out that Willis never testified that Moore indicated that he knew Kessler's identity as an escapee.

However, in an April 1987 interview with the FBI about the matter, Moore denied entirely any knowledge of any of the coconspirators or of the escape and he denied driving the escapees from Oregon. Furthermore, Moore disclosed at trial that he had been unemployed for about twenty years and that he had been convicted of an unspecified felony conviction. Given this impeaching evidence, it is likely that the jury disbelieved Moore's testimony, and credited the testimony of the other coconspirators.

Harsh argues on appeal that none of the evidence proved his knowledge of the conspiracy's objectives.

However, at trial, Benjamin Willis, another participant in the conspiracy, implicated Harsh in the conspiracy as follows:

(1) On August 4, 1982, Harsh lent him a pickup truck which was used by Kessler without asking why and for how long the loan would be (RT 303);

(2) In the middle of the night of August 2, 1982, Harsh picked him and his ex-wife up from the campground Kessler was staying at after being requested to do so just a few hours before and being told that the reason for their ride was to check on their teenage children in Portland (RT 313).

(3) On August 5, 1982, Harsh bought a trailer, exchanged it in the middle of the night for his pickup at the campground where Kessler was located in the middle of the night and while the exchange was made, Harsh was in the immediate proximity of Kessler who had been featured extensively by the media at that time (RT 337).

(4) On August 8, 1982, Harsh bought a pickup truck under an assumed name and left it at a lot where it could be picked up and used to drive Kessler out of state (RT 1666).

However, at trial, Willis denied ever having discussed the criminal purpose of their activities with Harsh. This testimony was contradicted by Special Agent Van Horne who testified that Willis stated that Harsh knew of the purpose.

To sustain a conviction for conspiracy, the government must first show the existence of a conspiracy. United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987). At trial, considerable evidence was introduced establishing a conspiracy. Moore and Harsh do not dispute this. Then, " [o]nce existence of a conspiracy has been established, evidence of only a slight connection to the conspiracy is necessary in order to convict any one defendant of knowing participating in it" United States v. Berberian, 851 F.2d 236, 238 (9th Cir. 1988).

"Circumstantial evidence is sufficient to sustain a conviction, and the government's evidence need not exclude every reasonable hypothesis consistent with innocence." United States v Miller, 688 F.2d 652, 663 (9th Cir. 1982). Furthermore, "the reviewing court must respect the exclusive province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts, by assuming that the jury resolved all such matters in a manner which supports the verdict." United States v. Ramos, 558 F.2d 545, 546 (9th Cir. 1977). On the other hand, "mere suspicion or speculation cannot be the basis for creation of logical inferences." United States v. Lewis, 787 F.2d 1318, 1323 (9th Cir. 1986).

Moore's dispute with the evidence revolves around claims that such evidence was in conflict and was too attenuated to prove his knowledge of Kessler's status. Harsh's contentions concern witness credibility. Since it is the jury's responsibility to resolve these matters, we affirm both Moore's and Harsh's convictions.

Moore argues that there was a misjoinder of defendants under Fed. R. Crim. P. 8(b) because the defendants were not charged with participation in "the same act or transaction or in the same series of acts or transactions" as required by Rule 8(b). The charging of a conspiracy count linking together substantive counts against defendants usually satisfies Rule 8(b)'s requirements unless conspiracy is alleged in bad faith merely to sidestep the requirements of Rule 8(b). United States v. Valenzuela, 596 F.2d 824, 829 (9th Cir.), cert. denied, 441 U.S. 965 (1979).

Moore and the other defendants were charged with one conspiracy. We find that such allegation was not made in bad faith, therefore, joinder was proper.

Moore argues that the trial court abused its discretion by giving jury instruction 46 which allowed most of the evidence presented to be considered against all of the defendants. This argument is similar to Moore's contention that the trial court abused its discretion when it refused to sever the trial of all six defendants named in the indictment. Both contentions assume that the guilt of the other defendants unduly prejudiced Moore's case.

All the defendants were charged with conspiracy to facilitate the escape of a federal prisoner and to harbor the fugitive. All of the substantive charges in the other counts were overt acts forming a part of the conspiracy count. Therefore, evidence applicable to those counts was relevant to Moore's conspiracy charge. "When many conspire, they invite mass trial by their conduct." United States v. Vacarro, 816 F.2d 443 (9th Cir.), cert. denied, 108 S. Ct. 295 (1987), citing Kotteakos v. United States, 328 U.S. 750, 773 (1946). Moreover, a great portion of the evidence offered at trial was directly relevant to Tom Moore's harboring charge because it showed the nature of the scheme in which he was allegedly involved and how the scheme was executed. Tom Moore's role in the scheme was well-defined by the government and the evidence pertaining to him could be easily considered apart from the other evidence so as to permit the jury to segregate the evidence applicable to Moore. Vacarro, 816 F.2d at 449. We find no prejudice resulted from the jury instruction and joint trial.

Moore argues that the district court abused its discretion when it admitted evidence of Moore's prior conviction without a pretrial ruling.

After refusing to make a pretrial ruling as to Moore's motion in limine to exclude his 1976 attempted rape conviction, the district court heard Moore's testimony and decided to admit the conviction evidence. The court's reasons were: 1) the prior conviction was highly probative, 2) the crime was not remote since Moore was released from jail just six years before, 3) the past crime was unrelated to the one being charged, 4) Moore's testimony was important and 5) Moore's credibility was central because he offered a different version of events than the government's.

On appeal, Moore cites United States v. Cook, 608 F.2d 1175, 1186 (9th Cir. 1979) (en banc), cert. denied, 444 U.S. 1034 (1980), overruled on other grounds in Luce v. United States, 469 U.S. 38 (1984) to argue that a pretrial ruling should have been made because such rulings are generally encouraged. Moore also contends that the evidence of his conviction should not have been admitted because of the prejudicial nature of the conviction and his credibility was not at issue since he never misrepresented his character.

In Browne, 829 F.2d 760, 761 (9th Cir. 1987), however, we recognized the danger of requiring a court to make a pretrial ruling on the admission of prior convictions in that courts would be forced to speculate as to whether a defendant's credibility was an issue without the benefit of hearing the defendant's testimony. We find that Moore's credibility was at issue because of Moore's claim of coercion and duress and because of Moore's representation of himself as a war hero. Finally, we find that no prejudice resulted from the admission of Moore's conviction because no reference was made to the kind of felony Moore was convicted of. We therefore conclude that the trial court did not abuse its discretion for either refusing to make the pretrial ruling or admitting the evidence.

Moore and Cripps argue that the district court abused its discretion when it imposed their sentences and when it refused to apply the Sentencing Guidelines in Cripps' case. Both Moore and Cripps received five-year prison sentences for their conspiracy convictions, the statutory maximum for their offense. Moore and Cripps argue that the district court abused its discretion in imposing their sentences because it specifically refused to sort out the comparative culpability between the conspirators. We find that no constitutional claims were raised by the defendants. A sentence within statutory limits is ordinarily not reviewable unless constitutional concerns are raised, therefore, we find no abuse of discretion exists here.

Cripps argues that the Sentencing Reform Act of 1984 (the Act) should have been applied to his sentence because the Act came into effect on November 1, 1987, one day before his sentencing. For support, Cripps relies upon 18 U.S.C. § 3553(a) (4), which provides that when a particular sentence is being imposed, a court is required to consider the kinds of sentence and sentencing range established for the applicable category of offense that are in effect on the date the defendant is sentenced.

In United States v. Rewald, 835 F.2d 215, 216 (9th Cir. 1987), we held that the Sentencing Reform Act does not apply to conduct that occurred prior to November 1, 1987.

Section 3553 which was cited by Cripps for support is part of the Sentencing Reform Act. Mistretta v. United States, --- U.S. ----, 109 S. Ct. 647, 652 (1989). The crime for which Cripps was convicted occurred on August 1, 1982, several years before the effective date of the Act, therefore the district court did not abuse its discretion when it refused to apply the Act to Cripps' sentence.

CONCLUSION

The convictions of Moore and Harsh are AFFIRMED. The sentences of Moore and Cripps are AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The jail was an authorized facility for federal prisoners

 2

The other defendants were Frances Kay Cripps, Frank Charles McMullen, Jr. and Sandra Spaise Shirley