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United States v. Payan

decided: May 31, 1993.


Appeal from the United States District Court for the Northern District of Texas. D.C. DOCKET NUMBER CR-5-91-0051 (2). JUDGE Sam R. Cummings

Before Reavley, King, and Wiener, Circuit Judges.

Author: Wiener

WIENER, Circuit Judge:

Pedro Carrillo Payan appeals several aspects of his criminal convictions relating to the transportation in interstate and foreign commerce of stolen property. He also appeals his resulting sentence. Finding no reversible error, we affirm.



Between October, 1990 and June 1991, farm equipment began disappearing from the Texas panhandle and northeastern New Mexico. During this same period, a relative of one of the dispossessed tractor owners noticed similar tractors appearing in Mexico. Law enforcement officers also received information that Payan was exporting stolen tractors from the United States and selling them in Mexico. An arrest warrant was issued for Payan, and federal and state authorities at the United States Customs port of entry at Columbus, New Mexico were alerted to watch for stolen farm equipment.

In June, 1991, Mark Ancira was arrested while attempting to transport into Mexico two tractors that had been stolen in Texas. At the time of his arrest, Ancira was in possession of fraudulent invoices for the tractors made out to Payan as purchaser. Payan was arrested the next day when he entered the United States from Mexico.

Payan was indicted subsequently on one count of conspiracy to transport stolen goods in interstate and foreign commerce, and fifteen counts of transportation of stolen goods in interstate and foreign commerce.*fn1

At trial, the government introduced credible evidence that Payan and Ancira cooperated in the transportation and disposal of substantially all of the farm equipment stolen from this geographic area during the period in question. Payan was subsequently convicted on the conspiracy count and on eleven of the substantive counts. Consequently, Payan was sentenced to serve a prison term followed by supervised release; and to pay a fine, restitution, and a special assessment. Payan timely appealed.



In this appeal, Payan raises four points of error: (1) Whether the Wharton Rule or the Double Jeopardy Clause of the Fifth Amendment were violated by his conviction on both the conspiracy and the underlying substantive counts for transportation of stolen property; (2) whether the court violated the rule of Bruton v. United States*fn2 by not declaring a mistrial when a witness referred to an out of court statement made by a non-testifying codefendant; (3) whether the court violated Rule 615 of the Federal Rules of Evidence by failing to sequester two prosecution witnesses; and (4) whether the court improperly conditioned Payan's release to supervision on his payment of the fine, restitution, and special assessment.

A. Wharton's Rule and Double Jeopardy

Payan insists that, under the circumstances of the instant case, his convictions for both transportation of stolen property and conspiracy to transport stolen property cannot stand. Two related principles underlie this claim. First, Wharton's Rule generally prohibits convictions for both a substantive offense and conspiracy to commit that offense if the substantive offense necessarily requires the participation and cooperation of two persons.*fn3 "Where it is impossible under any circumstances to commit the substantive offense without cooperative action, the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy."*fn4 Second, the doctrinally related but distinct Double Jeopardy Clause prohibits conviction for two offenses which have identical elements.*fn5

1. Wharton's Rule

Payan acknowledges that as a general rule a person can be convicted of both transportation of stolen goods and conspiracy to commit that same offense. Nonetheless, he argues that the instant case is distinguishable because the government relied on both the statute prohibiting the transportation of stolen goods*fn6 and the statute providing for aider and abetter responsibility*fn7 in obtaining convictions against him on the substantive counts. This latter statute provides:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.*fn8

Payan argues that, by definition, a conviction based solely on aider and abettor responsibility requires the involvement of at least two persons in the criminal activity; one cannot aid and abet himself. Likewise, he continues, a conspiracy requires at least two persons. Payan next observes that the evidence introduced at trial established that two and only two persons (Payan and Ancira) were involved in the conspiracy and in the substantive offenses. Further, he asserts, the evidence established that he only "aided and abetted or caused [Ancira] to violate the law." Consequently, Payan's argument concludes, his convictions on the substantive offenses were based solely on aider and abettor responsibility, so that under the facts of the instant case both his substantive convictions and his conviction for conspiracy cannot stand.

Although Payan's argument initially sounds appealing, it cannot withstand scrutiny. First, Payan improperly treats 18 U.S.C. § 2 (aiding and abetting) as the target offense. Instead, 18 U.S.C. § 2313 (transportation of stolen goods) was the basis of Payan's indictment and his convictions. 18 U.S.C. § 2 does not define a crime, but rather simply allows one who aids or abets the commission of a substantive offense to be punished as a principal.*fn9 Additionally, 18 U.S.C. § 2 "is an alternative charge in every count, whether explicit or implicit."*fn10 Under Payan's reasoning, no defendant could ever be convicted for both conspiracy to commit a substantive offense and the substantive offense itself, as 18 U.S.C. § 2 is implicit in every criminal charge. Such a result, however, would be contrary to well established law. "It is well recognized that in most cases separate sentences can be imposed for the conspiracy to do an act and for the subsequent accomplishment of that end."*fn11

Second, "Wharton's Rule applies only to offenses that require concerted criminal activity, a plurality of criminal agents."*fn12 Only when it is impossible under any circumstances to commit the substantive offense without cooperative action, does Wharton's Rule bar convictions for both the substantive offense and conspiracy to commit that same offense.*fn13 For example, Wharton's Rule has traditionally been applied to crimes such as adultery and dueling, offenses that are impossible to commit absent the participation of at least two persons. In contrast, it is quite possible for one person, acting alone, to transport stolen goods.

Third, the Supreme Court has instructed that a Wharton inquiry should focus on the statutory elements of the substantive offense rather than the evidence used to prove those elements at trial.*fn14 As the statutory elements of transporting stolen goods do not include a multiplicity of actors, Wharton's Rule is not made viable by the fact that the evidence adduced at trial may have focused on actions of two defendants in connection with transporting the stolen tractors.

Fourth, the principles underlying the creation of Wharton's Rule do not support its application in the instant situation. Conspiracies generally pose dangers that are distinct from those of the immediate underlying substantive crime. Collective criminal activity increases the chances that the criminal objective will be attained, decreases the chances that the involved individuals will abandon the criminal path, makes larger criminal objective attainable, and increases the probability that crimes unrelated to the original purpose for which the group was formed will be committed.*fn15

The major premise underlying Wharton's Rule, however, is that agreements to commit certain crimes do not appear to present these distinct dangers.*fn16 These crimes, such as the classic examples of adultery and dueling, "are characterized by the general congruence of the agreement and the completed substantive offense."*fn17 In such offenses, the parties to the agreement are the only persons who participate in the commission of the substantive offense, and are the only persons who bear the immediate consequences of the crime.

As the Supreme Court instructs us, "a legal principle commands less respect when extended beyond the logic that supports it."*fn18 Unlike the traditional Wharton's Rule offenses, the transportation of stolen goods has immediate consequences for persons who are not parties to the criminal agreement. The significant differences in the characteristics and consequences of the instant offense and the kinds of offenses that gave rise to Wharton's Rule "counsel against attributing significant weight to the presumption that the Rule erects."*fn19

Fifth, Wharton's Rule "has continued vitality only as a judicial presumption, to be applied in the absence of legislative intent to the contrary."*fn20 The legislative history of the federal statutes regarding aiding and abetting*fn21 and conspiracy*fn22 indicates that Congress found no duplication or conflict between these and their predicate crimes, but instead intended that each be treated as an independent offense or basis of responsibility. Both were part of the revision and codification of Title 18 in 1948.*fn23 All federal criminal laws in effect at ...

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