Unpublished Disposition, 935 F.2d 277 (9th Cir. 1990)

MEMORANDUM^** 

At approximately 3:00 p.m. on December 7, 1988, the LMT trucking firm of Phoenix, Arizona, informed John R. Kerr, one of its drivers, that he was to transport a load of meat from Phoenix to Ralph's Groceries in Compton, California. Kerr contacted his friend David P. Hessman to help load the shipment. Kerr and Hessman met at a Circle K convenience store on 59th Avenue in Phoenix and then went to load the meat. After loading the meat, Kerr and Hessman drove to a truck stop on 91st Avenue.

Kerr and Hessman had previously discussed stealing a load of meat. Hessman testified that they "had known for a while we were going to take a load of beef, because that's all we ran, more or less." After reviewing the paperwork, Kerr and Hessman decided that the load they had in their possession was the load they should steal. Kerr and Hessman then departed from their route and drove back to the 59th Avenue Circle K store.

At the truck stop Hessman phoned appellant Saliba Sayegh and Kerr's nephew Randy L. McConnell. Hessman said he was "to get a hold of Sal ... because we had no idea where it [the load of beef] was going". Hessman testified that Sayegh's knowledge of the meat's destination was part of the plan. Hessman further explained: "See, I had to call him to find out--to tell him that this was it, we were going to take a load and to find out where he wanted it." Hessman also testified that before December 7, 1988, he, Kerr and McConnell "would meet Sal at his store, [to] let him know what we were planning on doing. But we didn't know it was going to be that load that day."

At the 59th Avenue Circle K store Hessman phoned Sayegh and said "straight out that, you know, we knew we were going to take a load, we didn't know when or what load. And I just mentioned that this is it, the load, [and] where to meet us." Shortly thereafter McConnell and Sayegh arrived at the truck stop. Kerr departed as if to cash a check.

Sayegh, McConnell, and Hessman then drove to Sayegh's convenience store on 19th Avenue, with Sayegh leading the way in his car and Hessman driving the semi. At the store, Hessman and McConnell broke the locks and unloaded the crates. Sayegh and at least one other person who Sayegh had contacted carried the meat inside the store. After 200 crates were unloaded, Sayegh said the store's freezer was full. Hessman and McConnell then drove the truck to a field and abandoned it. Over $19,000 worth of meat and equipment were stolen.

A federal grand jury indicted Kerr, Hessman, McConnell, and Sayegh with one count of theft from an interstate shipment in violation of 18 U.S.C. §§ 2 & 659. Hessman and McConnell pled guilty; Kerr and Sayegh went to trial. At trial Hessman and McConnell testified against Kerr and Sayegh. A jury returned a verdict of guilty against both Sayegh and Kerr.

On March 5, 1990, the court sentenced Sayegh to five years of probation and four months of home detention, and ordered him to pay restitution in the amount of $19,696, to be shared with the other defendants. On March 14, 1990, Sayegh filed a timely notice of appeal. We affirm.

DISCUSSION

Sayegh contends on appeal that the evidence was insufficient to support his conviction. In reviewing this claim, we review the record as a whole, "in the light most favorable to the government," and we will affirm the conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Alder, 879 F.2d 491, 495 (9th Cir. 1988) (emphasis in original) (citations omitted).

Sayegh argues that there was no evidence that he aided the theft before he received the stolen goods. He also argues that his receipt of the stolen goods was insufficient to establish that he aided the theft, because the theft was complete by this time. We disagree.

Viewing the evidence in the record in a light most favorable to the government, we hold that a reasonable jury could conclude that Sayegh assisted in the commission of the offense before the beef was physically taken on December 7, 1988. When Hessman and Kerr arrived at the truck stop, Hessman phoned Sayegh and said nothing but, "you know, we knew we were going to take a load, we didn't know when or what load. And I just mentioned that this is it, the load, [and] where to meet us." Sayegh responded to this vague message by immediately coming to the truck stop and leading Hessman and McConnell to his store where they met with one or two other persons whom Sayegh had contacted and unloaded over 200 crates of beef late at night. This evidence combined with Hessman's testimony that prior to the theft he, Kerr, and McConnell met with Sayegh in his store, where the beef eventually was stored, and "let him know what we were planning on doing" could lead a reasonable jury to conclude Sayegh aided in the taking of the meat.

Sayegh also aided in the commission of the offense the night the meat was stolen. This court construes section 659 "broadly" to protect the channels of interstate commerce. United States v. Faulkner, 638 F.2d 129, 130 (9th Cir. 1981). We do not limit section 659 "in its application to the strictly defined offense of common law larceny." Id (citation omitted). The theft contemplated by the statute "does not require physical removal of the goods, nor even asportation", but rather "consists of taking over possession and control with intent to convert to the use of the taker." Id. The defendants acquired possession and control of the beef when they took the truck to Sayegh's store, broke the locks, unloaded the meat from the truck and stored it securely in Sayegh's freezer. Sayegh participated in all of these acts and therefore aided in the commission of the offense.

AFFIRMED.