Submitted: March 16, 2016
from United States District Court for the Western District of
Missouri - Kansas City
WOLLMAN, BENTON, and SHEPHERD, Circuit Judges.
BENTON, Circuit Judge.
Ray Borders, Jon Dirk Dickerson, and Kyle Wayne Dickerson
appeal their convictions for crimes involving stolen goods
and vehicles. At trial, the government proved a conspiracy,
beginning in about 1998, to steal commercial trucks,
trailers, and cargo, and alter vehicle identification
information. Jon owned and operated several trucking
companies, including Night Line Trucking; his son Kyle worked
at the companies and partly owned Night Line Trucking. Jon
would give Borders "shopping lists" of trucks and
trailers to steal. Borders stole and sold the vehicles and
trailers to the Dickersons. Borders also sold stolen cargo to
other customers and stored stolen property at a storage unit
paid for by the Dickersons. A government witness, Jaccard
Fears, testified to working for the Dickersons for two years,
falsifying paperwork at their direction, going on scouting
missions with Borders, and helping Borders clean stolen
trucks. Another witness testified that Jon siphoned fuel at
night, stole license plates and fuel tax stickers in order to
create false registration and insurance documents, and
directed him to steal a truck. The witness also testified
Kyle removed VIN plates and cut up trailers to sell for
convicted Borders of conspiracy, aiding and abetting the
transportation of stolen goods, and aiding and abetting the
possession of stolen vehicles. The jury convicted Jon and
Kyle of conspiracy, aiding and abetting the possession of
stolen goods, and aiding and abetting the possession of
stolen vehicles. Borders was sentenced to 262 months, Jon 188
months, and Kyle 110 months in prison. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms in part,
reverses in part, and remands.
challenge the finding of a single conspiracy, arguing the
district court should have granted judgment of acquittal due
to a variance, or instructed the jury on multiple
conspiracies. Because Defendants did not raise this issue at
trial, this court reviews for plain error. United States
v. Buckley, 525 F.3d 629, 633 (8th Cir. 2008). Plain
error means an error that is clear under current law, caused
prejudice, and seriously affected the fairness, integrity, or
public reputation of judicial proceedings. United States
v. Delgado, 653 F.3d 729, 735 (8th Cir. 2011),
citing United States v. Olano, 507 U.S. 725, 732
single conspiracy requires "one overall agreement."
United States v. Morales, 113 F.3d 116, 119 (8th
Cir. 1997). It "is not proved by a mere overlap of
personnel or knowledge of another's illegal conduct.
Rather, to prove that individual agreements among separate
conspirators were made to advance a single enterprise, the
government must show that the conspirators each were
motivated by a common purpose." United States v.
Peyro, 786 F.2d 826, 829 (8th Cir. 1986) (internal
citations omitted). "A variance results where a single
conspiracy is charged but the evidence at trial shows
multiple conspiracies." Morales, 113 F.3d at
119. This court considers the totality of the circumstances,
including the nature of the activities, their location, time
frame, participants involved. Id.
totality of the circumstances supports the single conspiracy
finding. The government presented evidence that, from about
1998 until 2012, Jon would give Borders a shopping list of
trucks and trailers to steal; Borders would steal them; and
Kyle would remove the VIN numbers to prevent police
argue the special jury verdict forms demonstrate a variance.
Special verdict forms required the jury to find each
defendant's purposes in carrying out the conspiracy. For
all Defendants, the jury marked possession of stolen vehicles
(18 U.S.C. § 2313) and possession of stolen goods
(§ 2315). For Borders, the jury also marked
transportation of stolen goods (§ 2314), and for the
Dickersons, the jury marked altering or removing motor
vehicle identification numbers (§ 511). According to
Defendants, the special verdict forms show the jury found two
conspiracies: (1) between Borders and the Dickersons to
possess stolen vehicles and goods, and (2) between the
Dickersons to alter and remove VIN numbers. Under plain error
review, it is not enough for Defendants to present a
plausible argument for the existence of an error. Rather, the
error must be "clear under current law."
Delgado, 653 F.3d at 735, citing Olano, 507
U.S. at 732. Defendants have not demonstrated it is clear
under current law that special verdict forms are alone
sufficient to establish a variance, especially when the jury
also finds the defendants guilty of a single conspiracy.
jury could reasonably find a single conspiracy existed and
each defendant a knowing member of it.
contests the convictions of four aiding and abetting charges.
This court reviews de novo the sufficiency of the evidence,
drawing all reasonable inferences in favor of the verdict.
United States v. Nguyen, 758 F.3d 1024, 1029 (8th
Cir. 2014). An aiding and abetting conviction requires the
government to prove a defendant took an affirmative act to
further the underlying criminal offense, with the intent of
facilitating the offense. Rosemond v. United States,
134 S.Ct. 1240, 1245 (2014). "An intent to
advance some different or lesser offense is not, or at least
not usually, sufficient: Instead, the intent must go to the
specific and entire crime charged. . . ." Id.
at 1248. The government may use circumstantial evidence.
United States v. Duranseau, 26 F.3d 804, 809 (8th
Count 2, the jury convicted Kyle of aiding and abetting the
unlawful transportation of a stolen vehicle from Missouri to
Florida. Borders stole the truck, and Fears and a broker
arranged its transportation. However, Fears testified that he
acted under Kyle's authorization-"I was given
permission by Jon and Kyle to book freight under Nightline
and D&T." The broker paid "K. Wayne
Dickerson" for shipping the load. And, two investigators
spoke with Kyle on the phone about the truck. Viewed in the
light most favorable to the verdict, this evidence is
sufficient to support the conviction.
Counts 18, 20, and 25, the jury convicted Kyle for aiding and
abetting the possession of stolen goods and vehicles, found
during a search of a storage unit rented by Jon and Kyle.
Kyle contends he did not know that stolen goods and vehicles
were being stored at the unit. The government's only
contrary evidence is that Kyle rented the unit and had a key.
This is insufficient to support the conclusion that Kyle took
an affirmative act with the intent to aid in the storage of
stolen goods and vehicles. See Rosemond, 134 S.Ct.
conviction for Count 2 is affirmed. The convictions for
Counts 18, 20, and 25 are vacated.
challenge several evidentiary rulings, which are reviewed for
abuse of discretion. See United States v. Jackson,
67 F.3d 1359, 1366 (8th Cir. 1995).
argue the district court erred in admitting evidence of
Department of Transportation civil violations by the
Dickersons. The government submitted evidence that the
Dickersons used unsafe trucks, failed to drug-test drivers,
and failed to pay fines, resulting in several
cease-and-desist orders. The government also submitted a
Record Consolidation Order, finding Jon Dickerson operated
numerous businesses under different ...