United States v. Schramm

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit

1-30-1996

United States vs. Schramm
Precedential or Non-Precedential:

Docket 94-3619

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

___________

No. 94-3619
___________

UNITED STATES OF AMERICA

vs.

RONALD SCHRAMM; ANTHONY DeCELLO; OLEG
VINOKUROV, a/k/a Alex; MICHAEL ZUBINSKY,
a/k/a Steve; ASHOK TYAGI; AMINDERJEET S.
AULAKH, a/k/a Andy; AMARBIR SINGH, a/k/a
Sonny; MICHAEL DUBINSKI, a/k/a Steve

ANTHONY DeCELLO,

Appellant.

___________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. Criminal No. 93-cr-00188-02)

___________

ARGUED DECEMBER 12, 1995

BEFORE: BECKER, ROTH and LEWIS, Circuit Judges.

(Filed January 30, 1996)

___________

W. Thomas McGough, Jr. (ARGUED)
Reed, Smith, Shaw & McClay
435 Sixth Avenue
Pittsburgh, PA 15219-1886

Attorney for Appellant

1
Bonnie R. Schlueter
James H. Love (ARGUED)
Office of United States Attorney
633 U.S. Post Office & Courthouse
Pittsburgh, PA 15219

Attorney for Appellee

___________

OPINION OF THE COURT
___________

LEWIS, Circuit Judge.
Anthony DeCello appeals from a conviction for

conspiring to commit mail fraud for the purpose of avoiding

Pennsylvania's Fuel Use Tax. In his appeal, DeCello raises four

issues: (1) that there is insufficient evidence to support his

conviction; (2) that the evidence adduced at trial established a

prejudicial variance with the conspiracy charged in the

indictment; (3) that his prosecution for conspiring to commit

mail fraud violates principles of federalism; and (4) that the

district court erred when it admitted a copy of his 1992 tax

return at trial.

Because we agree with DeCello that there is

insufficient evidence to support the jury's verdict, we need not

address the remaining three issues. For the reasons which

follow, we will reverse DeCello's conviction.

I.

DeCello was indicted along with six co-defendants for

criminal conspiracy in violation of 18 U.S.C. § 371. The

conspiracy count alleged a single conspiracy with two objects:

2
(a) to defraud the United States regarding federal diesel fuel

excise taxes, and (b) to use the United States mail in an effort

to defraud the Commonwealth of Pennsylvania with respect to the

state's Fuel Use Tax, a tax imposed on the sale of diesel motor

fuel.

A. Factual Background

The conspiracy involved a scheme in which wholesalers

and retailers attempted to avoid paying federal and state taxes

imposed on what is known as "number two" fuel oil. Except for

small variations in additives, "number two" fuel oil can be used

as either home heating oil or diesel fuel. If used as diesel

fuel, it is subject to a Federal Excise Tax of 20.1 cents per

gallon. The Commonwealth of Pennsylvania imposes an additional

10.35 cents per gallon Oil Franchise Tax at the wholesale level,

and an additional 12 cents per gallon Fuel Use Tax at the retail

level. In contrast, when used as home heating oil, "number two"

fuel oil is not subject to any taxes.

The fuel taxes are collected and reported by the

respective sellers in the chain of commerce. Wholesale

distributors of diesel fuel are required to collect the federal

excise tax and the Commonwealth's Oil Franchise Tax, while

retailers are required to pay a Highway Fuel Use Tax to the

Commonwealth. Retailers must also file monthly fuel use tax

reports which include, among other information, the name of all

diesel fuel wholesale suppliers and the amount of diesel fuel

purchased from each supplier during each reporting period.

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 Both federal and state law allow registered wholesale

participants to buy and sell number two fuel oil in tax-free

transactions. For example, wholesalers of diesel fuel are

required to register with the Internal Revenue Service for Form

637 ("Registration For Tax Free Transactions"). This allows a

registered wholesaler to sell diesel fuel to another registered

wholesaler without paying the federal excise tax. Retailers and

unregistered wholesalers, on the other hand, are not authorized

to obtain Form 637. Consequently, any sale of diesel fuel to a

retailer or to an unregistered wholesaler is subject to excise

taxes.

The Commonwealth of Pennsylvania's excise tax law is

subject to a similar registration system. All retail sales of

diesel fuel are subject to Pennsylvania's Fuel Use Tax.

B. The Scheme

The conspiracy in this case allegedly involved fuel

wholesalers and retail truck stops attempting to escape the

federal and state taxes imposed on diesel fuel. According to the

Government, the conspiracy accomplished this by having the

wholesalers invoice deliveries of taxable diesel fuel as

nontaxable sales of home heating oil. The retailers who accepted

delivery of this fuel paid in cash, kept the transactions off

their official books, adjusted the oil meters, mingled the

untaxed oil with oil that had been taxed and acquired from other

wholesalers, and filed false tax returns. In this way, both the

wholesalers and retailers avoided paying their respective taxes.

By avoiding these taxes, the wholesalers were able to undercut

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the prices charged by legitimate wholesale competitors. The

retailers were then able to purchase diesel fuel at lower prices

and keep the transactions entirely off their books.

This particular scheme was the brainchild of Leon

Uzdin, who began his operations in the Philadelphia area, and

expanded them westward to the Pittsburgh area. According to the

indictment, Anthony DeCello participated in Uzdin's operation in

several ways: first, by recruiting haulers to deliver the fuel

to the participating truck stops; second, by picking up the

payments from the truck stops; and third, by delivering the cash

payments to the scheme's principals. In return, according to the

indictment, DeCello received a commission and expenses. Finally,

when Uzdin's relationship with a fuel supplier began to sour,

DeCello helped recruit a new fuel source.

DeCello and Uzdin initially met with Terry Tyhonas, a

hauler recruited by DeCello. At that meeting, DeCello asked

Tyhonas to furnish "[s]ome fuel with a paper and some fuel

without a paper." (i.e., with and without tax). After Tyhonas

turned them down, DeCello found Ronald Schramm, president of Judy

Oil Co. Schramm agreed to furnish the fuel oil and invoice the

sales to Main Line as home heating oil. This relationship

continued for almost a year, during which Judy Oil furnished

Uzdin with approximately eight million gallons of diesel fuel.

For his efforts in recruiting Schramm, DeCello was promised a

commission of one cent per gallon.

All of the participants allegedly filed false tax

returns during the scheme. Judy Oil filed quarterly federal

5
excise tax returns which omitted all of the taxable sales that

were occurring between Judy Oil and the various retailers

involved in the scheme. The retailers involved filed federal and

state income tax reports which omitted untaxed deliveries and

sales of diesel fuel. In addition, DeCello filed a federal

income tax return in 1992 in which he allegedly omitted payments

and commissions obtained from Uzdin.

Five of DeCello's six co-defendants entered guilty

pleas to the conspiracy charge. DeCello and Schramm proceeded to

trial. The jury convicted DeCello on the conspiracy charge, and

convicted Schramm on conspiracy and other charges. Through

special verdict forms, the jury concluded that Schramm conspired

to defraud the United States and, as we will develop more fully

below, that DeCello conspired to commit mail fraud. DeCello's

post-trial motions were denied and this appeal followed.

The district court had jurisdiction over this matter

pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28

U.S.C. § 1291.

II.

The principal issue before us is whether there was

sufficient evidence to support the jury's conclusion that DeCello

entered into an agreement and knew that the agreement had the

specific unlawful purpose charged in the indictment,

particularly, to evade and defeat Pennsylvania's Fuel Use Tax.

United States v. Scanzello, 832 F.2d 18, 20 (3d Cir. 1987). Our

review of this issue is circumscribed by the fundamental

principle that:

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 [i]t is not for [an appellate court] to weigh
the evidence or to determine the credibility
of witnesses. The verdict of a jury must be
sustained if there is substantial evidence,
taking the view most favorable to the
Government, to support it.

United States v. Glass, 315 U.S. 60, 80 (1942). A verdict will

only be overturned "if no reasonable juror could accept the

conclusion of the defendant's guilt beyond a reasonable doubt."

United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987).

Consequently, a "claim of insufficiency of the evidence places a

heavy burden on an appellant." United States v. McGlory, 968

F.2d 309, 321 (3d Cir. 1992) (quoting United States v. Gonzalez,

918 F.2d 1129, 1132 (3d Cir. 1990)).

Nonetheless, the government must prove each element of

a conspiracy beyond a reasonable doubt, and we have noted that

"the sufficiency of the evidence in a conspiracy prosecution

requires close scrutiny." United States v. Coleman, 811 F.2d

804, 807 (3d Cir. 1987). There must be substantial evidence

establishing "a `unity of purpose,' intent to achieve a common

goal, and an agreement to work together toward that goal."

McGlory, 968 F.2d at 321 (quoting United States v. Wexler, 838

F.2d 88, 90-91 (3d Cir. 1988)). Although all of the elements of

the government's case, including the existence of the agreement,

may be proven entirely through circumstantial evidence, United
States v. Kapp, 781 F.2d 1008, 1010 (3d Cir. 1986), "there must

be evidence tending to prove that defendant entered into an

agreement and knew that the agreement had the specific unlawful

purpose charged in the indictment." Scanzello, 832 F.2d at 20.

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 A. The Indictment

The indictment charged DeCello and his co-defendants

with a single conspiracy which sought to accomplish two purposes.

One purpose, set forth in paragraph 18(a) of the indictment, was

to:
[d]efraud the United States Department of the
Treasury and the Internal Revenue Service, a
department and agency of the United States,
by impeding, impairing, obstructing, and
defeating the lawful government functions of
the Department of the Treasury and the
Internal Revenue Service in the
ascertainment, computation, assessment, and
collection of the revenue; to wit, federal
diesel fuel excise taxes.

App. at 194 (emphasis added). The second purpose, set forth in

paragraph 18(b), was entirely different in that it involved a

different underlying offense (mail fraud) and a completely

different type of fuel tax. Here, the grand jury charged that

DeCello conspired to:
[d]evise and execute a scheme and artifice to
defraud, and to obtain money and property by
means of false and fraudulent pretenses,
representations and promises, furthered by
the use of the United States mail,
particularly, to evade and defeat the full
payment of the Fuel Use Tax imposed on the
sale of diesel motor fuel under the laws of
the Commonwealth of Pennsylvania in violation
of Title 18, United States Code, § 1341 (Mail
Fraud).

App. at 194-95 (emphasis added).

The court provided the jury with a special verdict form

which permitted the jury, if they found DeCello guilty of

conspiracy, to select paragraph 18(a) and/or paragraph 18(b) as

the purpose and object of the conspiracy agreed to by DeCello.

8
The jury marked the purpose and object corresponding to

paragraph 18(b), specifically that DeCello had agreed to "violate

federal law, namely federal law prohibiting mail fraud."

DeCello argues that the evidence produced by the

government was insufficient to sustain his conspiracy conviction

because at best, it established that he knowingly participated in

a scheme to evade federal wholesale taxes, the subject of

paragraph 18(a), but failed to establish that he knowingly

entered into an agreement to use the United States mail to evade

and defeat the full payment of Pennsylvania's Fuel Use Tax, which

is the focus of paragraph 18(b). We agree. Our review of the

record leads us to conclude that the government failed to present

sufficient evidence to support the jury's conclusion that DeCello

ever agreed to participate in, or had any knowledge of, the

retailers' evasion of Pennsylvania's Fuel Use Tax.

B.

Specifically, there is simply no evidence to indicate

that DeCello ever met or communicated with any of the truck stop

owners; that he was even aware of, let alone sought to evade, the

Pennsylvania Fuel Use Tax; or that any of DeCello's alleged co-

conspirators at the wholesale level were aware of, authorized, or

participated in the evasion of diesel fuel retail taxes.

The government asks us to draw certain inferences from

circumstantial evidence it relied upon to support the conclusion

that DeCello had knowledge of the retailers' evasion of

Pennsylvania's Fuel Use Tax.

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 First, the government notes that Uzdin testified that

he informed DeCello of his reasons for terminating a prior

operation, and that DeCello was aware of the price the truck

stops were paying for the oil. Second, the government points out

that DeCello assisted Uzdin in recruiting a new supplier of fuel,

recruited haulers for the fuel, and handled payments collected

from the various truck stops. Consequently, the government

suggests, that DeCello must have played an integral role in the

conspiracy and should have had knowledge of the retailers'

criminal actions. Finally, the government argues that DeCello

must have been aware of the retailers' tax evasion because the

evasion of both retail and wholesale taxes was required to

confound the so called "audit trail." In other words, if either

the retailers or wholesalers reported and paid their applicable

taxes, they would expose the others' tax evasion because there

would be inconsistencies between the wholesalers' and retailers'

records.

These arguments, however, are insufficient to support

the jury's verdict. As the government concedes, DeCello "was a

supply-sider throughout" the entire scheme. (Appellee's Br. at

28). Although DeCello appears to have been an active participant

in the wholesale aspects of Uzdin's operation, the only inference

to be drawn from this evidence is that DeCello's participation

might have made him aware of the suppliers' evasion of diesel

fuel wholesale taxes. We cannot overlook the fact that Uzdin's

activities with his suppliers were limited to the wholesale side

of the diesel fuel market. Similarly, DeCello's effort to

10
recruit a new supplier of fuel oil "without a paper," or without

Form 637, involved the avoidance of the Federal Excise Tax

imposed at the wholesale level. Moreover, Uzdin's testimony

during the government's direct examination merely establishes

that the suppliers were avoiding federal wholesale taxes:
Q. And you would take your 637 form and you
would present it or cause it to be
presented to other buyers and sellers of
fuel?

A. To the seller, yes. Supplier or
terminal.

Q. To the terminal that you were buying
from?

A. Yeah.

Q. And by doing that you had no tax?

A. Yeah. We got product, we pay only state
tax and whatever other tax besides
federal tax.

Q. You paid no federal tax?

A. No.

App. at 18 (emphasis added). Uzdin never mentioned retail taxes
in any of his testimony. There is nothing to indicate that

DeCello's participation with Uzdin gave him any knowledge of the

retailers' subsequent criminal activities; quite to the contrary,

it appears that the supply-siders' interest in the oil ended when

the oil was sold and delivered to the truck stops. The

government produced no evidence to demonstrate that the suppliers

were concerned with how the retailers subsequently treated and

disposed of the oil.

11
 Similarly, DeCello's awareness of what the retailers

were paying the suppliers for the fuel oil has no bearing on

whether or not he knew that the retailers were avoiding their

taxes. Once again, at best this merely proves that he was or

should have been aware of the suppliers' tax evasion. Uzdin

testified that he purchased the oil from his supplier at two and

a half cents and up to four and a half cents per gallon over rack

price ("rack price" is the price for which fuel is sold at the

refiner's terminal), and that he charged the truck stops twelve

cents over rack price. This left Uzdin with a gross profit of

approximately seven to nine cents per gallon. From this, Uzdin

ostensibly paid both DeCello and another alleged conspirator one

cent per gallon, leaving him five to seven cents per gallon to

pay approximately thirty cents in state and federal wholesale

taxes, cover other expenses, and derive some profit. Because

Uzdin testified that he discussed these matters with DeCello, one

could infer that DeCello knew or should have known that Uzdin was

evading the wholesale taxes. Otherwise, Uzdin would be losing

approximately twenty-three cents per gallon. This, however, is

not enough to allow a reasonable juror to infer that DeCello knew

that the retailers were then evading their taxes as well. Even

if the evidence demonstrated that DeCello not only knew the price

the retailers were paying for the fuel oil but also the price

they charged the public, that knowledge would still be

insufficient to establish beyond a reasonable doubt that DeCello

knew the retailers were not paying their taxes. At best, this

evidence might allow a reasonable juror to conclude that DeCello

12
knew that the retailers were profiting by buying fuel oil at

below market rates.

Finally, as to the government's argument that the

evasion of one set of taxes necessarily requires the evasion of

all diesel fuel taxes, we believe that this ignores the fact that

there were other ways for retailers to evade their taxes without

the cooperation of the suppliers. For example, the retailers

could simply have falsified their monthly and annual reports by

misrepresenting the amount of diesel fuel received regardless of

the wholesale source; or the truck stops could have

misrepresented the amount of diesel fuel sold. Neither of these

methods would have required the participation of wholesalers. No

doubt, the retailers' efforts were facilitated and their profits

increased by the suppliers' illegal activities in this case, but

that does not lead to the conclusion that the suppliers were

aware of, let alone agreed to participate in, the retailer's

effort to avoid the applicable retail tax.

We, therefore, cannot conclude that the evidence

adduced at trial allows a "reasonable inference, that the

activities of the participants . . . could not have been carried

on except as the result of a preconceived scheme or common

understanding." Kapp, 781 F.2d at 1010. Upon our independent

review of the record, we must conclude that the government

provided insufficient evidence to demonstrate that DeCello knew

or should have know that the retailers intended to evade their

taxes. Although DeCello's actions may have aided the retailers

in their tax evasion, we have repeatedly held that to sustain a

13
conspiracy conviction, the government must establish that a

defendant had knowledge of the specific illegal object of the

conspiracy. See, e.g., United States v. Salmon, 944 F.2d 1106,

1114-16 (3d Cir. 1991) (reversing the conviction of a defendant

who aided in the sale of a wrapped package, but had no knowledge

of the contents); United States v. Wexler, 838 F.2d 88, 91-92 (3d

Cir. 1988) (holding that a defendant's participation as a lookout

and assisting in the movement of a truck that contained a large

quantity of hashish was insufficient to sustain a conviction for

conspiring to distribute hashish in the absence of any evidence

that the defendant knew what was in the truck); United States v.

Cooper, 567 F.2d 252, 254-55 (3d Cir. 1977) (reversing the

conspiracy conviction of a defendant who travelled cross-country

with a co-defendant in a truck carrying marijuana because there

was no evidence that the defendant knew what was in the locked

compartment of the truck); United States v. Veksler, 862 F. Supp.

1337, 1343 (E.D. Pa. 1994) (acquitting a participant in the sale

of untaxed diesel fuel to truck stops even though the evidence

showed that the defendant knew that the truck stop oil sales he

facilitated were illegal because there was no evidence to

demonstrate that the defendant was aware that he was working in

aid of a larger conspiracy and its objectives), aff'd 62 F.3d 544

(3d Cir. 1995).

C.

The district court upheld the jury's verdict based upon

a different theory. According to the district court, the jury

convicted DeCello for participating in a single unified

14
conspiracy to sell "Number 2 fuel oil for taxable purposes under

the guise of selling Number 2 fuel oil for non-taxable purposes,"

and there was sufficient evidence to support that conclusion.

United States v. Schramm, No. 93-188, slip op. at 16 (W.D. Pa.

Aug. 16, 1994). To reach this result, however, the district

court implicitly interpreted paragraph 18(b)'s reference to

Pennsylvania's Fuel Use Tax as illustrative rather than

exclusive. Under the district court's interpretation, the

conspiracy charge in paragraph 18(b) necessarily includes

evasions of Pennsylvania's Fuel Oil Franchise Tax imposed at the

wholesale level. Consequently, the district court was able to

affirm DeCello's conviction based upon his participation in and

awareness of the fuel oil suppliers' evasion of their applicable

wholesale taxes. Under any other interpretation of the

indictment, the district court's conclusion would run afoul of

the rule that the evidence must establish that the defendant

entered into an agreement and "knew that the agreement had the

specific unlawful purpose charged in the indictment." Scanzello,

832 F.2d at 20 (emphasis added). But even if we were to agree

that the evidence supported the conclusion that DeCello agreed to

participate in a scheme which had the purpose of evading

Pennsylvania's Oil Franchise Tax, we would not agree with the

district court's interpretation of the indictment, and must,

therefore, reverse DeCello's conviction.

While an indictment must generally be taken as a whole,

read reasonably and given fair construction, United States v.

Markus, 721 F.2d 442, 443-44 (3d Cir. 1983); United States v.

15
King, 587 F.2d 956, 963 (9th Cir. 1978) (stating that appellate

courts "should read an indictment in a common sense manner, [and]

refus[e] to reverse a conviction because of minor deficiencies in

the indictment that could not have prejudiced the defendant

. . ."), "[t]he precise manner in which an indictment is drawn

cannot be ignored . . . ." Sanabria v. United States, 437 U.S.

54, 65-66 (1978) (emphasis added). The principle that an

indictment must contain the essential elements of the offense

charged is premised upon three distinct constitutional commands

which we cannot ignore. First, the indictment must be

sufficiently precise to inform the defendant of the charges

against which he or she must defend, as required by the Sixth

Amendment. Second, the indictment must enable an individual to

determine whether he or she may plead a prior acquittal or

conviction to bar future prosecutions for the same offense, in

accordance with the Fifth Amendment. Id.; Hamling v. United

States, 418 U.S. 87, 117 (1974); Hagner v. United States, 285

U.S. 427, 431 (1932). To accomplish these goals, an indictment

must specifically set forth the essential elements of the offense

charged. Hamling, 418 U.S. at 117. See also Fed. R. Crim. P.

7(c)(1) ("The indictment . . . shall be a plain, concise and

definite written statement of the essential facts constituting

the offense charged."). Third, the:
purpose of an indictment is to shield a
defendant in a federal felony case from
unfounded prosecutorial charges and to
require him to defend in court only those
allegations returned by an independent grand
jury, as provided by the Fifth
Amendment. . . . By sufficiently

16
 articulating the critical elements of the
underlying offense, an indictment insures
that the accused has been duly charged by the
grand jury upon a proper finding of probable
cause, and will be convicted only on the
basis of facts found by that body.

United States v. Boffa, 513 F. Supp. 444, 466 (D. Del. 1980)
(citing United States v. Goldstein, 502 F.2d 526, 528-29 (3d Cir.

1974)).

In cases which involve a conspiracy charge, the illegal

object of the conspiracy is an essential element of the offense

and must be included in the indictment. See United States v.

Shaffer, 383 F. Supp 339, 342 (D. Del. 1974).

As discussed earlier, Count I of the indictment, which

charges a conspiracy, sets forth two purposes. The jury

convicted DeCello of agreeing to accomplish the second purpose.

The second purpose, which was set forth in paragraph 18(b), was

to devise and execute a scheme and artifice to defraud by the use

of the United States mail, "particularly, to evade and defeat the

full payment of the Fuel Use Tax imposed on the sale of diesel

motor fuel under the laws of the Commonwealth of Pennsylvania

. . ." App. at 194-95 (emphasis added). To accept the district

court's conclusion, we would be required to interpret

"particularly" as used in paragraph 18(b) to mean "for example"

or "as one example among others," and to assume that the "other"

charges to which the word "particularly" refers included the

evasion of taxes not set forth in the paragraph itself. But the

word "particularly," as it appears in paragraph 18(b), is

synonymous with "to-wit," a term commonly used in indictments to

17
refer to a discrete event. Likewise, "particularly" as used here

is synonymous with the more conventional "specifically," which,

in fact, is used in paragraph 18(a) of the indictment. See

Merriam Webster, Webster's Ninth New Collegiate Dictionary 858

(1985). Both terms ("specifically" and "particularly") are used

to set forth detailed descriptions of the conspiracy's goals;

they are exclusive, not inclusive. If the government had

intended to charge DeCello with agreeing to participate in a

scheme to violate Pennsylvania's wholesale tax as well, it easily

could have, and certainly should have, done so.

While courts must ignore minor and technical

deficiencies in an indictment, Russell v. United States, 369 U.S.

749, 763 (1962) ("Convictions are no longer reversed because of

minor and technical deficiencies which did not prejudice the

accused."); Hagner v. United States, 285 U.S. 427, 433 (1932)

(holding that courts must "disregarded merely loose or

inartificial forms of averment."), an indictment's failure to

specify the object of a conspiratorial agreement cannot be

considered a minor or technical deficiency which can be ignored.

As we have said, "[t]he essence of a conspiracy is an agreement."

United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989). The

goal or goals of the agreement are, therefore, essential elements

of the crime of conspiracy itself. An omission such as occurred

here deprives the defendant of one of the significant protections

which the guaranty of a grand jury indictment is intended to

confer. By not specifying the evasion of the federal excise tax

or of Pennsylvania's wholesale fuel tax as one of the goals of

18
the conspiracy in paragraph 18(b), the indictment failed to

apprise DeCello "with reasonable certainty, of the nature of the

accusations against him." Russell, 369 U.S. at 766 (quoting

United States v. Simmons, 96 U.S. 360, 362 (1877)). To adopt the

district court's interpretation of the indictment would be to

allow DeCello's "conviction to rest on one point and the

affirmance of the conviction to rest on another," giving "the

prosecution free hand on appeal to fill in the gaps of proof by

surmise or conjecture." Russell, 369 U.S. at 766. This we

cannot do.

Paragraph 18(b) of the indictment alleges only that

DeCello agreed to use the United States mails to evade

Pennsylvania's Fuel Use Tax. It does not allege an agreement to

evade any wholesale level taxes, and we cannot interpret

paragraph 18(b) of the indictment as implicitly including the

evasion of such taxes as additional goals of the conspiracy.

III.

Because the government failed to produce

sufficient evidence at trial to convince the jury to convict

DeCello under paragraph 18(a) of the indictment and because the

government further failed to prove that DeCello entered into an

agreement and knew that the agreement had the specific unlawful

purpose charged in paragraph 18(b) of the indictment, we will

reverse DeCello's conviction and direct the entry of a judgment

of acquittal.
_________________________

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