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United States v. Frans

decided: January 6, 1983.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
HARRY RONALD FRANS, DEFENDANT-APPELLANT; UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. JAMES J. ARRAJJ, JR., DEFENDANT-APPELLANT



Appeals from the United States District Court for the Eastern District of Wisconsin. No. 81 CR 150 -- Terence T. Evans, Judge.

Bauer, Circuit Judge, Posner, Circuit Judge, and Wisdom, Senior Circuit Judge.*fn*

Author: Bauer

BAUER, Circuit Judge.

Defendants Harry Frans and James Arrajj, Jr. were arrested in September 1981 in West Milwaukee, Wisconsin, and charged with conspiracy to transport stolen goods in interstate commerce. 18 U.S.C. ยง 371 (1948).

Frans was convicted after a one-day bench trial and sentenced to fifteen months imprisonment. He appeals his conviction on the grounds that the government's evidence of a conspiracy was insufficient and that the trial judge's findings were legally faulty.

Immediately after Frans' trial, Arrajj was tried, convicted by a jury, and sentenced by the same judge to fifteen months imprisonment. He claims now that the government wrongfully refused to grant immunity to Frans so that Frans would testify on Arrajj's behalf. Arrajj also argues that the government did not prove that Arrajj knew of a conspiracy.

We affirm both judgments of conviction.

I. Facts

The Federal Bureau of Investigation learned from an informant that Daryl Kilmer and Defendant Frans planned to steal electric motors from a warehouse in West Milwaukee. Kilmer had second thoughts about committing the crime, so he contacted the FBI and agreed to cooperate with federal agents. Kilmer was outfitted with a tape recorder and microphones on the morning of the planned theft. Then, Kilmer met Frans and drove to the warehouse, where they began preparations for the theft. Their conversation during this time was recorded. Arrajj arrived at the warehouse at approximately 4:30 p.m. He broke into a locked storage area, and the three men moved electric motors from that storage area to the center of the warehouse floor. As the trio was leaving the warehouse at 5:30 p.m. to get vehicles to transport the electric motors, they were arrested by FBI agents who had hidden in the warehouse.

II. Arrajj's Claims

A. Sufficiency of the Evidence

Defendant Arrajj argues that the government did not prove that he participated in the conspiracy. He claims ignorance of any impending crime, asserting that when he arrived at the warehouse and discovered what was transpiring, he merely acquiesced in the acts performed by Kilmer and Frans. The defendant correctly notes that proof of knowing membership is necessary for a conspiracy conviction, United States v. Garza-Hernandez, 623 F.2d 496, 501 (7th Cir. 1980). He contends that the government failed in its proof of this element.

We will not disturb the jury's verdict if it is supported by substantial evidence. Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942); United States v. Santiago, 582 F.2d 1128, 1130 (7th Cir. 1978). The evidence presented here through the testimony of government witnesses and the tape recording transcript amply supports the government's charge ...


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