United States v. Wooderts

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 98-10285

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
VERSUS

LEVI WOODERTS, JR; DORSEY L TURNER;
ROBERT GAINES; EMMITT LYDIA, III,

Defendants - Appellants.

Appeal from the United States District Court
for the Northern District of Texas
(3:97-CR-54-1-D)

July 6, 1999
Before WIENER, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Levi Wooderts,Jr., Dorsey L. Turner, Robert Gaines, and Emmitt

Lydia, III, appeal their convictions and sentences arising from a

conspiracy to operate a chop shop in Dallas, Texas. We affirm.

I.

This case involves a multiple-defendant conspiracy to operate

a chop shop. The FBI discovered this chop shop by sending Special

Agent Donald Ramsey undercover to pose as a used car parts buyer.

*
Pursuant to 5th Cir. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
 On April 8, 1996, Ramsey was introduced to Appellant Levi

Wooderts. Ramsey bought parts from Wooderts and gave him a

business card for future reference. Wooderts called Ramsey on

April 11 to discuss selling more parts, and the two met the

following day. Wooderts delivered parts to Ramsey’s storefront on

April 12. The delivery was recorded on videotape. Ramsey bought

parts from Wooderts and his associates from April until September

1996. These parts came from forty-one identifiable cars, plus

others. Parts from eight vehicles were altered.

Wooderts was identified at trial by Ronald Wadley, a co-

defendant who testified that he stole cars, supplied them to a chop

shop operated by Wooderts out of a garage on Emery Street,

witnessed the stripping of vehicles, and assisted in the delivery

of parts to the storefront. Wadley testified that Wooderts was

present while Wadley stole a truck which was then delivered to the

chop shop. Derrick Walton, Wadley’s brother, testified that

Wooderts was in charge of the overall operation. FBI surveillance

videotapes shot outside the chop shop on October 1, 1996, show

Wooderts arriving and gathering with various co-defendants.

Wooderts testified that he knew nothing about how the parts he

sold were originally obtained. He admitted being present when

Wadley stole a black truck, but denied involvement. He admitted

that he knew at some point that his enterprise was illegal, but he

kept doing it anyway. He acknowledged nineteen prior convictions

for similar offenses over a twenty-year period.

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 Appellant Dorsey Turner was observed by FBI agents at the

storefront on September 3, 1996. He transported two engines in his

own vehicle, and assisted in the unloading of the engines and other

parts from three cars. Wadley testified that Turner had keys to

the chop shop, and that he had witnessed Turner participating in

the stripping of the vehicles at the chop shop. Co-defendant

William Menefee testified that he saw Turner dismantle new trucks

and drain the gas out of trucks that were being dismantled. FBI

surveillance videotapes shot outside the chop shop on October 1,

1996, show Turner arriving in his own truck, and later maneuvering

the truck in the driveway. Wadley testified that this was done to

block views into the garage.

Wooderts testified that Turner had nothing to do with any chop

shop, alteration of parts, or sale of altered parts.

Appellant Robert Gaines never visited the storefront. The

Emery Street garage where the chop shop was located was rented to

Gaines by Robert Burks. Wadley identified Gaines as the man in

charge of the actual chop shop (i.e., the vehicle stripping or

“cutting” part of the enterprise). This testimony was corroborated

by Walton. Wadley testified that he had seen Gaines at the chop

shop, that Gaines had keys to the chop shop, and that Gaines would

actually break up the vehicles, assisted by Turner. Co-defendant

Johnny Jackson, a participant who loaded the parts after they had

been stripped from vehicles, identified Gaines as one of the people

he most frequently saw at the chop shop. Menefee testified that he

witnessed Gaines dismantling trucks. FBI surveillance videotapes

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shot outside the chop shop on October 1, 1996, show Gaines arriving

in his black Trans Am, and leaving and returning later in the day.

Wooderts testified that Gaines had nothing to do with any chop

shop, alteration of parts, or sale of altered parts.

Appellant Emmitt Lydia never visited the storefront. Wadley

identified Lydia as a fellow car thief who assisted in the theft of

two of the trucks stripped for parts sold to Ramsey. According to

Wadley, Lydia acted as a lookout while Wadley stole one of the

trucks. This testimony was corroborated by Walton. Wadley

testified that he had seen Lydia at the chop shop, and that Lydia

had watched the stripping of a truck, but Lydia did not participate

because he was on crutches. FBI Agent Danny Sisco, who conducted

surveillance in this case, observed Lydia watching one of the

stolen vehicles being rolled in and out of the chop shop as parts

were unloaded from it into a U-Haul truck. FBI surveillance

videotapes of the exterior of the chop shop on October 1, 1996,

show Lydia driving Wooderts to the garage in a maroon Cadillac;

Lydia is also seen at various times gathering with other defendants

by a white car, and leaving and returning later in the day.

Lydia denied involvement with any chop shop, alteration of

parts, or sale of altered parts. He admitted being present when a

truck was stolen, but he denied participation. Lydia acknowledged

five prior convictions for similar conduct.

Wooderts testified that Lydia had nothing to do with any chop

shop, alteration of parts, or sale of altered parts.

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 Wooderts, Turner, Lydia, and others were indicted on February

25, 1997, and charged with operating a chop shop. A superseding

indictment filed on June 24, 1997, added Gaines as a defendant and

added charges of conspiracy to operate a chop shop. A second

superseding indictment filed on July 29, 1997, charged the

defendants with altering or tampering with motor vehicle

identification numbers and trafficking in altered motor parts and

conspiracy to alter or tamper with motor vehicle identification

numbers and to traffic in altered motor parts.

The case was tried on December 1, 1997. Count 1 was the

conspiracy count; Counts 2-9 were the alteration of motor vehicle

parts counts; Counts 10-17 were the trafficking counts. Wooderts

and Gaines were found guilty on all counts. Turner was found

guilty of conspiracy and one trafficking count; he was acquitted on

all other counts. Lydia was found guilty on the conspiracy count,

two alteration counts, and two trafficking counts.

The appellants received the following terms of imprisonment:

Wooderts, 240 months; Gaines, 85 months; Turner, 37 months; Lydia,

96 months. The prison terms are followed by a three-year term of

supervised release. They were ordered to pay $386,589.03 in

restitution, but no fines. All four timely appeal.

II.

Lydia challenges the sufficiency of the evidence against him.

[We] must consider the evidence in the light most
favorable to the Government, drawing all reasonable
inferences in support of the jury’s verdict. The
evidence is sufficient if a rational trier of fact

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 could have found the essential elements of the
crime beyond a reasonable doubt. A review of the
sufficiency of the evidence, however, does not
include a review of the weight of the evidence or
of the credibility of the witnesses.2

Lydia was convicted on the conspiracy count and four

substantive counts. He argues that although evidence demonstrates

that he stole cars and knew the cars were being taken apart and

sold for parts, there is no evidence that he knew anything about

the alteration of vehicle identification numbers (VINs). Lydia

argues that alteration of VINs is an element of every charged

offense, including conspiracy to commit the substantive offenses,

and therefore he cannot be convicted without evidence that he

altered VINs or was aware that VINs were being altered.

The government responds that Lydia was validly convicted on

the conspiracy count, and that he can be held vicariously liable on

substantive counts for his co-conspirators’ criminal conduct under

the doctrine of Pinkerton v. United States, 328 U.S. 640 (1946).

With respect to the conspiracy conviction, Lydia hangs his hat

on the legal requirement that he be a “knowing” participant in the

conspiracy. Since “mere presence” at a crime scene or association

with members of a conspiracy is not legally sufficient evidence of

knowing participation in a conspiracy, Lydia argues that his “mere

presence” at the chop shop is insufficient evidence to convict him,

as he was blissfully ignorant that one element of the charged

substantive offenses -- alteration of VINs -- was being

contemplated and committed by the others.

2
United States v. Powers, 168 F.3d 741 (5th Cir. 1999).

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 Though knowing participation is required, Lydia is wrong that

his ignorance of the alteration of VINs immunizes him from

conviction for conspiracy to violate §§ 511 and 2322. Lydia’s

argument is similar to one that has been frequently rejected by

this Court. He has essentially argued that there were multiple

conspiracies, and the conspiracy he engaged in -- a conspiracy to

steal cars, strip them, and sell their parts, but protect their

VINs -- was a separate, lesser conspiracy that was not charged in

the indictment. We are not persuaded. “[A] conspirator may not

willfully and knowingly participate in a criminal scheme and then

disclaim responsibility when his coconspirators later take actions

that are the necessary or natural consequence of the unlawful

agreement. Nor may the same end be achieved by simply alleging

that each illegal objective constitutes a separate conspiracy.”3

We reject Lydia’s contention that evidence of his knowledge of the

destruction of VINs was necessary to support conspiracy, and

conclude that there is sufficient evidence of his participation to

validate the jury’s verdict.

Since Lydia has been validly convicted for conspiracy, there

is absolutely no defect in the proof holding him liable for the

substantive offenses. Pinkerton holds that all conspirators are

vicariously liable for reasonably foreseeable crimes committed by

co-conspirators in furtherance of the conspiracy. Obliteration of

a VIN which might otherwise allow a sold part to be traced back to

3
United States v. Brasseaux, 509 F.2d 157, 161 (5th Cir.
1975); see also United States v. Becker, 569 F.2d 951, 960 (5th
Cir. 1978).

-7-
the chop shop is a foreseeable act in furtherance of a conspiracy

to steal cars and sell their parts.

III.

Turner moved for acquittal or new trial. Denial of a motion

for acquittal is reviewed for sufficiency of the evidence. Denial

of a motion for new trial is reviewed for abuse of discretion.

Turner argues that his acquittal on all § 511 violations is

inconsistent with his conviction on a count of § 2321, because

§ 2321(b) specifically provides that no crime is committed if there

has been no § 511 violation. Turner further argues that conviction

on both counts was not supported by evidence because the evidence

gave equal support to theories of guilt and innocence. He claims

that his acquittal on many counts indicates that the jury

disbelieved the testimony of the government’s witnesses.

Furthermore, he argues there is no evidence indicating that he knew

the parts he delivered (when he was captured on videotape) were

stolen.

Regarding his request for new trial, Turner characterizes the

verdict as a “compromise verdict,” and, therefore, a miscarriage of

justice mandating a new trial. He also contends that denial of his

motion for severance (see infra Part VI) was grounds for new trial.

The plain text of the statutes reveals that acquittal for

§ 511 is not inconsistent with conviction for § 2321. Section 511

prohibits actually altering a VIN. Section 2321 prohibits knowing

sale or distribution of a part with an altered VIN, but does not

-8-
require actual alteration of a VIN. So, for example, one could

conduct operations in a chop shop without actually altering VINs.

There was, in fact, amply sufficient evidence (i.e., concerted

action with the others, including assisting in the cutting of

vehicles and assisting in the delivery of parts) to support the

jury’s conclusion. The fact that the jury acquitted Turner on

numerous charges does not mean that they wholly discounted the

testimony of government witnesses, and the verdicts of acquittal do

not erase that evidence from the record. That evidence supports

the convictions that were returned. The district court did not

abuse its discretion in denying a new trial, since Turner did not

demonstrate prejudice resulting from the denial of his motion for

severance, and Turner’s acquittal on some counts does not compel

the conclusion that the jury reached a compromise verdict.

IV.

Gaines complains that the government used a peremptory

challenge to strike a black juror. Pursuant to Batson v. Kentucky,

476 U.S. 79 (1986), Gaines appeals his conviction based on this

allegedly race-based strike. The district court determined that

the prosecution gave a legitimate, race-neutral explanation for the

strike. That determination is reviewed for clear error.

Counsel for Turner stated that he believed the prospective

juror in question worked as a secretary at his law firm. That is

the reason articulated by the prosecution for its strike. The

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district court determined that this was a permissible basis for

striking the prospective juror, and overruled Gaines’s objection.

There was no clear error here. Employment may be a valid,

race-neutral reason for exclusion,4 and this is especially true

when there is a suggestion of such a clear link by employment

between the prospective juror and the defense.

V.

Gaines unsuccessfully moved for a severance. The district

court’s denial of that motion is reviewed for abuse of discretion.

Severance need be granted only when there is a serious risk of

compromising the trial rights of a defendant.5 The defendant must

show on appeal specific and compelling prejudice which resulted in

an unfair trial.6 Gaines sought a severance based on Wooderts’

assertion of an entrapment defense and Wooderts’ extensive criminal

history. Although the district court gave appropriate limiting

instructions, Gaines claims he was still prejudiced because

Wooderts “came close to admitting guilt” and Wooderts’ “extensive

criminal record established guilt by association in the minds of

the jurors.”

“Rule 14 leaves the determination of risk of prejudice and any

remedy that may be necessary to the sound discretion of the

4
See United States v. Munoz, 15 F.3d 395 (5th Cir. 1994).
5
See United States v. Neal, 27 F.3d 1035 (5th Cir. 1994).
6
See United States v. Cortinas, 142 F.3d 248 (5th Cir.),
cert. denied, 119 S. Ct. 224 (1998).

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district courts.”7 Gaines has not made the required particularized

showing of prejudice, and, indeed, concedes that the district court

gave appropriate limiting instructions. In these circumstances,

where Gaines has made no particularized argument of prejudice, the

district court’s exercise of its discretion will not be disturbed.

VI.

The district court departed upward five levels in imposing

Wooderts’ sentence. Wooderts objected to this departure at trial,

and now appeals his sentence. The decision to depart is reviewed

for abuse of discretion.

The reason for departure, as suggested by the presentence

report and as adopted by the district court, was that Wooderts’

criminal history score did not adequately reflect the seriousness

of his criminal record. Wooderts' criminal history category was

VI, the highest enumerated category, which requires only 13

criminal history points. Wooderts had a whopping 44 criminal

history points. The district court stated: “There is a symmetry

between the 240 month sentence and the number of years you’ve been

involved in criminal conduct. It is also necessary in my view to

reflect the criminal history points that you have.”

Upward departure when the criminal history score fails to

adequately represent the seriousness of the defendant’s record is

7
Zafiro v. United States, 506 U.S. 534, 541 (1993).

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permitted and has been endorsed by this Court.8 The sentence

imposed is consistent with the precedent of this Court, and we

decline to disturb the discretion of the district court.

VII.

The defendants were assigned restitution in the amount of

$386,589.03. The district court determined that a total loss of

$888,606.10 had resulted from the chop shop operation, and this

total was used to calculate the defendants’ total offense levels.

Wooderts and Turner challenge the calculation of the amount of

loss. The district court’s factual findings as to the amount of

loss attributable to a common scheme are reviewed for clear error.

Wooderts challenges the amount of loss used for calculating

his offense level, and argues that he could not be held accountable

for the value of cars for which the government had not determined

the identity of the original owners, because there could not be any

certainty that those cars were actually stolen. He contends that

only $482,943.22 of loss is attributable to cars which were

specifically identified as having been stolen. To the contrary,

there was indeed evidence indicating that all forty-two identified

vehicles had been stolen. Because Wooderts was the ringleader, all

losses were reasonably foreseeable to him. Given the district

court’s reliance on the presentence report and the evidence in the

8
See, e.g., U.S.S.G. § 4A1.2; United States v. Route, 104
F.3d 59 (5th Cir. 1997).

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record supporting the presentence report’s valuation of the loss,

the district court did not clearly err.

Turner challenges the amount of restitution for which he is

jointly and severally liable, and argues that because he was

acquitted on Counts 2-13, he should not be held liable for loss

attributable to those counts. He argues that the conduct for which

he was acquitted should not be considered “relevant conduct.” He

argues that relevant conduct is not coextensive with the scope of

the conspiracy, relying on application note 2 to U.S.S.G. § 1B1.3.

“[A] jury’s verdict of acquittal does not prevent the

sentencing court from considering conduct underlying the acquitted

charge, so long as that conduct has been proved by a preponderance

of the evidence.”9

The district court relied on the presentence report, and found

that its conclusions were supported by the evidence. Evidence

suggested that Turner was involved from the beginning of the

operation as a cutter. Despite the jury’s acquittals, because of

the different standards of proof governing conviction and proof of

relevant conduct, the district court was still entitled to make

contrary findings of fact. The district court’s conclusions were

based on the presentence report and supported by the evidence;

thus, the court did not clearly err.

VIII.

9
United States v. Watts, 519 U.S. 148, 157 (1997).

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 Turner sought a reduction in his offense level for his minimal

participation in the conspiracy (U.S.S.G. § 3B1.2). The request

was denied. The district court’s factual determination is reviewed

for clear error. The same logic that discounts Turner’s arguments

that the entire loss resulting from the scheme should not be

attributable to him applies here. The district court found that

Turner acted as a “cutter” in the chop shop and was a full

participant in the conspiracy. Therefore, a minor participant

reduction is clearly not justified. Once again, the district court

did not clearly err.

IX.

Turner argues that a mistrial should have been declared

because the government failed to disclose in timely fashion notes

from a interview with Wooderts, in violation of Brady v. Maryland,

373 U.S. 83 (1963). The notes make no mention of Turner. The

district court stated that a Brady violation occurred, but

concluded that the defendants were not prejudiced. The district

court’s ruling is reviewed for abuse of discretion.

Turner claims he was prejudiced because the notes tended to

exculpate him, and because he lost an opportunity to impeach the

testimony of government witnesses.

These notes could only be used to impeach two witnesses:

Wooderts and Carr, the detective who conducted the interview. The

district court determined that Turner elicited favorable testimony

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from Wooderts, so there would have been no grounds for impeachment.

With respect to Carr, Turner in fact received the notes in time to

use them to impeach Carr, had he desired to do so. And, in fact,

Turner cross-examined Carr on this very point. Specifically,

Turner was able to elicit the fact that he was not mentioned in the

notes.

In light of Wooderts’ favorable testimony for Turner, Turner’s

use of the notes to cross-examine Carr, and the fact that the notes

were not available to be used for any other purpose, the district

court did not abuse its discretion in denying a mistrial.

X.

Wooderts, Turner, and Lydia challenge the prosecution’s use of

plea agreements to “purchase” testimony against them, based on

United States v. Singleton.10 The reasoning in that case is

obsolete and has already been rejected by this Court.11

XI.

We have reviewed the remainder of the points raised on appeal

for plain error, as error was not preserved in the court below, and

10
144 F.3d 1343, 1359-61 (10th Cir. 1998), rev’d, 165 F.3d
1297 (10th Cir. 1999) (en banc), cert. denied, 1999 WL 185874 (U.S.
June 21, 1999).
11
See, e.g., United States v. Haese, 162 F.3d 359 (5th Cir.
1998), cert. denied, 119 S. Ct. 1795 (1999).

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15
find no grounds for reversal. For the aforementioned reasons, we

AFFIRM the judgments of the district court.

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