Wednesday, June 06, 2012

Withdrawal from Conspiracy Defense Among Issues Addressed in Car-theft Case

US v. Burks, 2012 WL 1925541 (Tenth Cir. May 29, 2012), published. Defendant was charged as an accomplice in an auto-ring theft, in which he obtained key codes to automobiles that were then stolen. One of these vehicles was an Escalade stolen in Nevada and found in Utah.

Burks argued he withdrew from the conspiracy by becoming an informant for the government and he should be shielded from prosecution. The district court disagreed, but granted a jury instruction on withdrawal that placed the burden of proof on the defendant. The COA agrees that withdrawal can be a valid defense to aiding and abetting a federal crime, and also agrees that the burden of proving withdrawal rested with the defendant.

Defendant objected to an instruction permitting an inference that the Escalade was transported to Utah by an individual who knew it was stolen. In this case, there was sufficient evidence that the person (Martinez) who transported the vehicle was involved in the scheme and knew the Escalade was stolen. Therefore, the instruction was not an abuse of discretion.

The evidence was sufficient to support the conviction. Defendant argued that the vehicle was not actually stolen when it crossed state lines based on the facts that it was stolen; stripped; the frame was recovered by authorities and sold at auction to the ringleaders (who thereby got legal title); and the vehicle was then reassembled. The court recognizes that the argument is "clever," but is unpersuaded: "The Dyer Act was intended to cover a wide range of activities, and passed as an effort to close loopholes that auto thieves had exploited. ... To hold that the transportation and possession of the Escalade did not violate the Dyer Act because the authorities were made an unwitting link in the chain of theft would create an illogical loophole in direct contradiction to Congress’ intent." Finally, the defendant's aiding and abetting conviction was supported by evidence that he provided the key codes knowing the vehicles would be stolen.

The restitution order was properly based on the actual loss to the owners and the insurance company.