Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76 CR 929 - Alfred Y. Kirkland, Judge.
Before Pell and Tone, Circuit Judges, and Whelan, Senior District Judge.*fn*
The principal issue before us is whether the defendants can be found guilty of a conspiracy under 18 U.S.C. § 371*fn1 to transport in interstate commerce goods valued at $5,000 or more, knowing the goods to be stolen, in violation of 18 U.S.C. § 2314,*fn2 when no goods were ever stolen because the defendants unwittingly engaged agents of the government to perform the actual theft and transportation. We answer the question in the affirmative and affirm the convictions.
One James Srbinovich, while in the McHenry County Jail in Woodstock, Illinois, met with two Special Agents of the Drug Enforcement Administration. In the presence of the agents, Srbinovich placed a telephone call to defendant William Rose, whom Srbinovich had known for 15 or 20 years. In the conversation Srbinovich stated that he was in Albuquerque. Rose said, "I want to talk to you right away. I have got something for you." Asked, "What is that?," Rose said, "Well, you went on it once before." (Srbinovich had met with both defendants a year earlier at Rose's apartment to discuss the commission of a burglary in Arizona.) Srbinovich said he was broke. Rose replied that he would wire him $500 "because this thing has to go over the weekend." Rose later wired $500 to Albuquerque addressed to Srbinovich, which government agents collected.
The telephone conversation was proved at trial by the testimony of Srbinovich and one of the DEA agents who was with Srbinovich. Although the agents monitored and recorded the conversation on tape with Srbinovich's permission, the recording was not presented at trial because the government represented to the court that it had lost the tape.
Three days after the telephone conversation, Srbinovich met with Rose in Chicago, at which time they discussed a burglary to be committed in Scottsdale, Arizona. Rose stated that Srbinovich, and a partner Srbinovich was to find, would receive two-thirds of the take. Rose and the "tipster" in Arizona would split the remaining third between themselves. Rose described the valuables to be taken, which he estimated were worth approximately $200,000.
A few days later Srbinovich went to Rose's apartment in Chicago with DEA Agent Skaggs, who posed as Srbinovich's partner, to receive instructions. Rose told them to go to Scottsdale and meet with "Bob," who would give them the layout of the house and further instructions. Rose also instructed them to return to Chicago with the stolen goods because Bob was the real estate agent who had sold the house to the intended victim, and thus would be an obvious suspect. Rose informed them that he knew of a person who would come to Chicago to purchase the goods. Finally, Rose told them to get everything, because he had been planning this for a long time.
Two days later Srbinovich and Skaggs went to Scottsdale and checked into a motel. The next day Srbinovich called Rose to give him their phone number and location. Rose told them he would relay the information to Bob, who would contact them. When Rose could not reach Bob, he called Srbinovich and gave him Bob's number. Srbinovich finally reached Bob at that number, and they made plans to meet at the motel that evening.
Srbinovich and Skaggs met that evening with Bob, who turned out to be defendant Robert Peterson. In the ensuing conversation Peterson described the house and surrounding area, the burglar alarm system, and the valuables they planned to steal. He estimated the combined value of only two of the many pieces, a necklace and a ring, at $100,000.
During the next two days, Peterson met with Srbinovich and Skaggs several more times to discuss details of the plan, and drove them out to the house to look it over. At one point, Peterson stated that Srbinovich and Skaggs had to take the goods out of the state.
On the day Srbinovich and Skaggs were to commit the burglary, FBI agents took photographs of various pieces of jewelry and art in the house. Later that day, Srbinovich called Peterson and Rose to tell them that he had successfully committed the burglary. The next day Srbinovich and Skaggs returned to Chicago with the FBI photographs, which they showed to Rose. They arranged to meet later to divide up the goods, but when they did meet they could not agree as to the amount of payment. Two days later Skaggs contacted Rose and agreed to his price, $10,000. They met that afternoon, and, when Rose stated that he had the money and was ready to proceed with the transaction, he was arrested. Peterson was subsequently arrested in Arizona.
The events we have described were proved primarily by the testimony of Srbinovich and Skaggs. Neither defendant testified in the trial before a jury, in which both were found guilty of the offense of conspiracy to violate 18 U.S.C. § 2314.
Concededly, Srbinovich and Skaggs never intended to steal valuables and transport them in interstate commerce, and there were no stolen goods. On these facts ...