Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87 CR 232, Ann C. Williams, Judge.
Posner and Manion, Circuit Judges, and Eschbach, Senior Circuit Judge.
ESCHBACH, Senior Circuit Judge.
Leon W. LaBudda and Edward J. Mozdzeniak, the defendants-appellants, appeal from their convictions for criminal conspiracy. LaBudda and Mozdzeniak were charged under a two-count superseding indictment with the sale of stolen United States Savings Bonds in violation of 18 U.S.C. § 510(b) and with conspiracy to sell stolen United States Savings Bonds in violation of 18 U.S.C. § 371. LaBudda received a bench trial, and Mozdzeniak received a jury trial. At the close of the government's case-in-chief, LaBudda made a motion for judgment of acquittal in which Mozdzeniak orally joined. The district court took the motion under advisement, and the trial continued. The jury found Mozdzeniak guilty on both counts, and the district court reserved its findings as to LaBudda. The district court eventually granted the defendants' motion for judgment of acquittal as to the substantive count, but denied the motion as to the conspiracy count. Thus, with respect to Mozdzeniak, the district court set aside the jury's verdict of guilty on the substantive count and upheld the jury's verdict of guilty on the conspiracy count. The court then found LaBudda not guilty on the substantive count and guilty on the conspiracy count.
LaBudda and Mozdzeniak appeal their convictions for criminal conspiracy. They argue that both the statute and the indictment required the government to prove beyond a reasonable doubt that the United States Savings Bonds were actually stolen. Therefore, because the government failed to make this proof, their criminal convictions cannot stand. For the reasons set forth below, we affirm the judgment of the district court.
In December of 1985, undercover agent William Lueckenhoff of the Federal Bureau of Investigation first met LaBudda. At that time, LaBudda was a broker (a middleman) for the sale of stolen merchandise. As a broker, he represented individuals who possessed stolen goods. His job was to find buyers for the stolen merchandise and to set up sales between the buyers and the individuals he represented.
On March 11, 1986, LaBudda contacted Lueckenhoff about a vehicle he had for sale. Lueckenhoff agreed to call LaBudda the next day at a Shell Service Station that Mozdzeniak owned. Lueckenhoff telephoned LaBudda as planned, and they met later that day. At this meeting, LaBudda mentioned that an unnamed associate of his (Mozdzeniak) had some stolen United States Savings Bonds for sale, worth $20,000-$22,000. He also indicated that some phoney identification, such as a driver's license, would accompany the bonds.
Two days later, Lueckenhoff and LaBudda met at Mozdzeniak's gas station to discuss a possible sale of the bonds. At this meeting, LaBudda handed Lueckenhoff a $1,000 United States Savings Bond, payable to Frank Klikowski, as a sample of the bonds that were for sale. LaBudda told Lueckenhoff that his associate had $50,000 worth of bonds and that these bonds were not listed as stolen. Although Lueckenhoff showed an interest in buying the bonds, he and LaBudda could not reach an agreement. LaBudda's associate, who did not want to be directly involved in the negotiations, insisted on selling the bonds for half their value. Because of budgetary constraints with the Secret Service, however, Lueckenhoff could only offer to pay 20%-25% of their value. Since they could not reach an accord, LaBudda and Lueckenhoff eventually discontinued their negotiations.
Approximately one year later, on March 19, 1987, Lueckenhoff contacted LaBudda and informed him that he wanted to purchase the bonds if they were still available. Lueckenhoff indicated that he was now willing to pay whatever price LaBudda's associate wanted for the bonds. After checking with his associate, LaBudda told Lueckenhoff that the bonds were still available. A few days later, Lueckenhoff telephoned LaBudda and told him he would soon be in Chicago and wanted to buy the bonds at that time. LaBudda said he would contact his associate to see if the sale could be made then. During this conversation, LaBudda told Lueckenhoff that Lueckenhoff had previously met LaBudda at his associate's place of business, which recently closed down. Lueckenhoff understood this statement to refer to Mozdzeniak's gas station.
On March 25, 1987, Lueckenhoff telephoned LaBudda in order to fix the time and place of the transaction. Lueckenhoff told LaBudda that he was bringing along someone else to check the authenticity of the bonds. LaBudda stated that he would check with his associate and then get back in touch with Lueckenhoff. Although LaBudda was not able to contact his associate, he did agree to meet Lueckenhoff that evening at 7:30 p.m. at a bar which was across the street from the gas station that Mozdzeniak had owned.
Since a meeting was set for the sale of the bonds, two Secret Service surveillance agents were dispatched to the bar. Shortly after the agents arrived, LaBudda entered the bar and made a telephone call from the bar's pay phone. As planned, Lueckenhoff arrived at the bar around 7:30 p.m. He brought Secret Service Agent Gerald J. Rooney with him. LaBudda, who did not recognize the two Secret Service surveillance agents as having been in the bar before, wanted to move their meeting to a restaurant. The parties agreed to wait for LaBudda's associate at the bar before leaving for the restaurant.
Shortly thereafter, Mozdzeniak entered the bar and immediately joined LaBudda, Lueckenhoff, and Rooney. After a brief discussion, they all left the bar for the restaurant. At the restaurant, Lueckenhoff suggested conducting the transaction at the Midway airport. Mozdzeniak, however, rejected this proposal because there were too many police officers at the airport. They eventually agreed to exchange the cash and bonds at a vacant parking lot. After the parties had agreed to the mechanics of the exchange, Mozdzeniak informed Lueckenhoff that he currently had only $26,000 worth of bonds for sale. But he immediately assured Lueckenhoff that he would have an additional $35,000 worth of bonds for sale at a later date. Lueckenhoff then asked for, and received, a sample bond so that Rooney could purportedly check the authenticity of it. The parties then left the restaurant in order to meet at the parking lot.
Mozdzeniak did not immediately show up at the parking lot because he was nervous about the presence of Rooney. LaBudda, however, had the bonds and was ready to conduct the transaction. LaBudda handed Rooney nine United States Savings Bonds, made payable to Frank Klikowski. After Rooney examined the bonds, Lueckenhoff directed him to give the bonds back to LaBudda and to go to his car and get the cash. When Rooney left, ...