UNITED STATES COURT OF APPEAL FIFTH CIRCUIT

_______________

No. 93-1406 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMIE REAY MACKAY, a/k/a/ Kevin Neil Carpenter,

Defendant-Appellant.

__________________________________________________

Appeal from the United States District Court for the Northern District of Texas __________________________________________________ (September 20, 1994)

Before WIENER, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant Jamie R. Mackay ("Mackay") appeals his conviction

for (1) conspiracy to transport stolen goods interstate, in

violation of

(1988); and (2) knowing transportation

of stolen goods interstate, in violation of

(1988). We reverse Mackay's conviction on the conspiracy count for

lack of sufficient evidence and affirm his conviction for

interstate transportation of stolen goods. I

In early June of 1991, Mackay transported a 580 Super E

backhoe from Missouri to Dallas, where he hoped to sell it for

$16,500. Before arriving in Dallas, he called a former college

roommate who lived in East Dallas named Daniel Lyon and asked if he

knew anyone who might be interested in buying the backhoe. He then

called again a few days later to ask if he could use the Lyons'

phone number for a classified advertisement he planned to run in a

Dallas newspaper. When Lyons told Mackay that he did not think it

would be a good idea to use their number (because his wife was in

the midst of a difficult pregnancy), Mackay revealed that he had in

fact already placed the advertisement in the Dallas Morning News

earlier that day.

Mackay arrived in Dallas in a pickup truck with the backhoe on

a trailer and called Lyons, who met him at a fast-food restaurant.

Mackay was accompanied by a man whom he introduced as "Kevin."

Lyons asked Mackay if he owned the backhoe, and Mackay told him he

did. Lyons then led Mackay and "Kevin" from the restaurant to the

Lyons' home. Mackay and his companion later left to find a motel

and a storage area for the backhoe.

Two days later, Mackay called the Shurgard Storage Center in

Irving, Texas to inquire about renting space for his backhoe and

trailer. Mackay and an unidentified man arrived at the storage

facility about an hour later with the backhoe. The two men

unhitched the trailer and parked the backhoe and trailer in two

-2- separate spaces. They then went to the office to complete the

necessary paperwork, and Mackay leased the spaces under the name

"Kevin Carpenter," presenting a Florida driver's license as

identification.

Mackay also asked the rental facility manager to let people in

to see the backhoe. The manager agreed, provided they came during

business hours and Mackay called to notify him first. Pursuant to

their agreement, Mackay called a couple of times, and the manager

allowed people to see the backhoe.

Tony Foreman, a used construction equipment dealer, was among

the prospective buyers who came to see the backhoe. The

circumstances of the backhoe's sale and his inspection of the

backhoe's identification number plates led Foreman to believe the

backhoe was stolen, so he called Bruce Tabor, a lieutenant with the

Texas Department of Public Safety Motor Vehicle Theft Service.

Tabor traced the backhoe's identification numbers to Bill Cole in

Missouri.1 Tabor called Cole, who told him he still owned the

1 The evidence at trial showed that in March of that year, Jamie Mackay and Michael Duncan had visited a man named Bill Cole at a jobsite in Springfield, Missouri. Duncan inquired about buying some construction equipment, but Cole did not have any for sale. Cole did, however, have a truck for sale at his home in Fleistatt, and he took the two men to see it. While there, Mackay and Duncan expressed an interest in Cole's skiploader and 580 Super E backhoe. At one point, Cole left Mackay and Duncan alone with the equipment while he took a phone call. When he returned, Duncan negotiated with Cole to buy the truck. Almost a year after this meeting, Cole met Mackay and Duncan on a highway in Missouri. Duncan told Cole he could not buy Cole's truck because he was in some trouble with the law and mentioned that they were on their way to Dallas for court. Duncan and Mackay also said, "If the authorities call you, don't tell them anything." Cole responded, "I don't know anything to tell them."

-3- backhoe, but that it should have been on a jobsite in Tennessee.2

Based on his conversation with Cole, Tabor impounded the

backhoe. He also called the number listed in Mackay's classified

ad. The woman who answered gave him a telephone number and

extension for "Jamie," which a dispatcher then traced to Mackay's

motel. When Tabor went to the motel room, he discovered that the

occupants of the room had already checked out. In the room's trash

can, he found a room receipt for "Kevin Carpenter, 328 North Cedar

in Nevada, Missouri."

About this time, Mackay called Lyons to inquire whether anyone

had called about the backhoe. During this conversation, Mackay

told Lyons the backhoe was missing, saying: "It's gone and just

don't say any more about [it]." Mackay also said, "Yeah,

somebody's playing games with us down here."

Several days later, Cole called Tabor and told him that he had

located his backhoe and that the identification plates were intact.

The police then investigated the impounded backhoe more closely and

discovered the original identification numbers, which they traced

to Lester Marlatt. Marlatt's 580 Super E backhoe had been stolen

from Raytown, Missouri two months earlier.

Mackay was indicted for conspiracy to transport stolen goods

interstate, in violation of

, and knowing

transportation of stolen goods interstate, in violation of 18

2 At trial, Cole denied telling anyone the backhoe was in Tennessee and testified that in fact the backhoe was in Cassville, Missouri.

-4- U.S.C. § 2314. Following a jury trial, Mackay was convicted on

both counts. The district court sentenced him to a term of

imprisonment of 21 months and two concurrent 3-year terms of

supervised release.

Mackay appeals his conviction, contending that (1) the

evidence was insufficient to support his conviction for conspiracy

to transport stolen goods; (2) the prosecutor impermissibly

commented in his closing argument on Mackay's failure to testify;

and (3) the district court erred in assessing a two-level increase

in Mackay's sentence for being "a person in the business of

receiving and selling stolen property."3

II

A

Mackay challenges the sufficiency of the evidence to sustain

his conviction for conspiracy to transport the stolen backhoe. He

claims that the evidence at trial was insufficient to prove an

agreement by two or more individuals to knowingly transport stolen

goods interstate. We view the evidence in the light most favorable

to the jury verdict and will affirm if a rational trier of fact

could find that the Government proved all essential elements of the

3 Mackay also argued in his original brief that his convictions should be reversed because the district court erroneously instructed the jury on the definition of reasonable doubt. As Mackay acknowledges in his reply brief to this Court, we have recently affirmed in all relevant respects the same definition of reasonable doubt on which the district court instructed the jury in this case. See United States v. Williams,

(5th Cir. 1994). Consequently, Mackay has preserved this issue for further appeal, but we see no need to address it further here.

-5- crime beyond a reasonable doubt. See United States v. Castro,

(5th Cir. 1994). If, on the other hand, "the

evidence viewed in the light most favorable to the prosecution

gives equal or nearly equal circumstantial support to a theory of

guilt and a theory of innocence, the conviction should be

reversed." United States v. Pennington,

(5th Cir.

1994).

"A conviction for conspiracy under

requires

that the government prove beyond a reasonable doubt 1) an agreement

between two or more persons, 2) to commit a crime against the

United States, and 3) an overt act committed by one of the

conspirators in furtherance of the agreement." United States v.

Schmick,

(5th Cir. 1990) (citations omitted),

cert. denied,

,

,

(1991). "The government must prove beyond a reasonable doubt that

the defendant knew of the conspiracy and that he voluntarily became

a part of it." United States v. Yamin,

(5th

Cir.), cert. denied,

,

,

(1989). While the government may prove the existence of a

conspiracy through circumstantial evidence, and the agreement need

not be formal or spoken, United States v. Williams-Hendricks,

(5th Cir. 1986), it "must do more than `pile

inference upon inference upon which to base a conspiracy charge.'"

(quoting United States v. Sheikh,

(5th Cir.

-6- 1981), overruled on other grounds, United States v. Zuniga-Salinas,

(5th Cir. 1992)).

The record must contain sufficient evidence that Mackay

conspired with someone to transport stolen goods in violation of

. A violation of § 2314 requires the prosecution to

show that (1) the defendant transported stolen goods in interstate

commerce; (2) the defendant knew the goods were stolen; and (3) the

goods were worth more than $5,000. See United States v. Parziale,

(5th Cir. 1991), cert. denied, ___ U.S. ___,

, 117 L. Ed. 2d. 638 (1992).

The evidence at trial, viewed in the light most favorable to

the verdict, fails to support the reasonable inference of even a

tacit agreement between Mackay and anyone else to knowingly

transport the stolen backhoe to Texas. Although Mackay's

conspiracy conviction does not depend on the identification of his

co-conspirators for its validity, see, e.g., United States v. Winn,

(5th Cir. 1991), cert. denied, ___ U.S. ___,

,

(1992), to convict Mackay of

conspiring with unknown persons, the evidence must support "the

proposition that such a co-conspirator did exist and that the

defendant did conspire with him." United States v. Moree,

(5th Cir. 1990) (quoting United States v. Pruett,

(5th Cir. 1977)).

The evidence suggests three possible co-conspirators:

Mackay's unidentified companion, Michael Duncan, and Bill Cole.

-7- The most likely of the three is Mackay's unidentified companion.

The evidence shows that this individual:4 (1) travelled to Texas

with Mackay, (2) was present when Mackay introduced him to the

Lyons as "Kevin," (3) helped unload the backhoe at the storage

facility, and (4) was present in the room when Mackay used a false

driver's license to rent storage space under the alias "Kevin

Carpenter." These facts establish an association between Mackay

and his companion during their trip to Texas, but to sustain a

conspiracy conviction, they must also prove an agreement to commit

a crime. See United States v. Grassi,

(5th

Cir.) ("[O]ne does not become a coconspirator simply by virtue of

knowledge of a conspiracy and association with conspirators. The

essence of a conspiracy is the agreement to engage in concerted

unlawful activity." (citations omitted)), cert. denied,

,

,

(1980).

The government argues that the evidence surrounding Mackay's

companion established that he "actually participated in the

transport of the backhoe." However, evidence that the companion

helped transport the backhoe does not prove that he agreed with

Mackay to transport a stolen backhoe. A conspiracy conviction

requires proof of an agreement to commit a crime. See Schmick,

. There is no evidence in the record to support a

4 There is no evidence that each of the unidentified men whom witnesses observed with Mackay are one and the same person. We assume arguendo, however, that the jury inferred that Mackay's companion was one person, making the possibility of an agreement between the two men to commit a crime more likely.

-8- finding that Mackay's companion knew the backhoe was stolen, let

alone that he agreed to transport a stolen backhoe.

The government further argues that Mackay's use of a false

driver's license in the name of "Kevin Carpenter" in the presence

of his companion was sufficient evidence upon which the jury could

reasonably infer knowledge of criminal activity. We disagree.

This argument requires several prior inferences. First, the jury

must have inferred from the companion's presence in the office that

he knew Mackay used a driver's license bearing the name "Kevin

Carpenter." Second, the jury must have inferred that the companion

knew this name to be false. The jury must then have inferred that

the companion deduced from Mackay's use of an alias that he was

transporting a stolen backhoe. Finally, the jury must have

inferred that the companion joined Mackay to effectuate the crime.

Although the government may prove the existence of a conspiracy

through circumstantial evidence, it "must do more than `pile

inference upon inference upon which to base a conspiracy charge.'"

Williams-Hendricks,

; see also United States v.

Sheikh,

(5th Cir. Unit A Sept. 1981)

(reversing conviction for conspiracy to import heroin where

evidence showed that defendant knew an individual in Iran whose

telephone number appeared on a package from Iran containing heroin,

visited the man in Iran shortly before the heroin arrived in the

United States, and called the man after learning the heroin had

-9- arrived in the United States), overruled on other grounds, United

States v. Zuniga-Salinas,

(5th Cir. 1992).

We similarly find insufficient evidence to prove that Michael

Duncan conspired with Mackay. Cole testified that he left Duncan

and Mackay alone in the vicinity of his construction equipment two

months before Mackay's trip to Dallas. Among the equipment that

Duncan and Mackay inspected was Cole's 580 Super E backhoe, the

same model as the stolen backhoe Mackay transported to Texas. The

identification number on Cole's backhoe also coincided with the

number on the stolen backhoe that Mackay transported to Texas.

This evidence is probative that Mackay knowingly transported stolen

goods, but it does not raise an inference that Duncan agreed with

Mackay to transport the stolen backhoe. Even if Mackay did copy

the backhoe's identification numbers on Cole's property that day,

this does not prove Duncan assisted in this enterprise, let alone

that Duncan later agreed to transport another, stolen backhoe

interstate. Furthermore, there is no evidence to support a finding

that Duncan accompanied Mackay to Dallas.

The government emphasizes that when Cole encountered Mackay

and Duncan driving to Dallas they told him (1) not to speak to the

authorities, and (2) that Duncan could not buy Cole's truck because

he was in some trouble with the law. Duncan's trouble with the law

may or may not have been related to this case.5 Again, Duncan's

5 The government notes in its brief that Duncan was not indicted for conspiracy to transport the backhoe because of a lack of evidence against him.

-10- mere association with Mackay, without an agreement to commit a

crime against the United States, does not suffice. See Grassi,

.

Finally, the Government argues that Bill Cole could have

conspired with Mackay. Defense counsel did suggest in her opening

statement at trial that she would show Mackay had an agreement with

Cole to sell the backhoe. The only evidence even remotely

supporting this theory, however, is the testimony of Mackay's

father that his son told him he purchased the backhoe from Cole.

When Cole testified, he made no mention of an agreement with Mackay

and explicitly denied selling Mackay a backhoe. Based on this

evidence, a rational trier of fact could not find, beyond a

reasonable doubt, that Cole and Mackay agreed to transport a stolen

backhoe interstate. See Castro,

.

B

Mackay next contends that the prosecutor violated Mackay's

Fifth Amendment rights by commenting on Mackay's failure to

testify. The Fifth Amendment prohibits a prosecutor from

commenting directly or indirectly on a defendant's failure to

testify. See Griffin v. California,

,

,

(1965); United States v. Dula,

(5th Cir.), cert. denied, ___ U.S. ___,

,

(1993). This protection extends to "oblique

comments on a defendant's failure to testify, if sufficiently

-11- suggestive." United States v. Driscoll,

(5th

Cir. 1972).

"The test for determining whether a prosecutor's remarks

constitute a comment on a defendant's silence is a twofold

alternative one: `(1) whether the prosecutor's manifest intent was

to comment on the defendant's silence or (2) whether the character

of the remark was such that the jury would naturally and

necessarily construe it as a comment on the defendant's silence.'"

United States v. Collins,

(5th Cir. 1992)

(quoting United States v. Jones,

(5th Cir.

1981)), cert. denied, ___ U.S. ___,

,

(1993). "Both the intent of the prosecutor and the character

of the remarks are to be determined by reviewing the context in

which they occurred." Jones,

.

"As to the first possibility, the prosecutor's intent must be

`manifest'; in other words, the test is not met `if some other

explanation for his remark is equally plausible.'" Collins,

(quoting United States v. Rochan,

(5th Cir. 1977)). "As to the second, `the question is not whether

the jury possibly or even probably would view the challenged remark

in this manner, but whether the jury necessarily would have done

so.'" Collins,

(quoting United States v.

Carrodeguas,

(11th Cir. 1984), cert. denied,

,

, 88 L. Ed. 2d. 49 (1985).

-12- During his closing, the prosecutor argued as follows:

Well, you know that Mr. Mackay skipped out of town pretty quick. But he called. He made a telephone call, didn't he, with this lawyer, curiously enough, from Missouri, not Dallas. You know he didn't go over to Larry Sandri or the other FBI people and say, hey, wait a minute, you guys just took my backhoe. Here's the piece of paper I've got that I purchased this from. Here's the person. Call this person. He says I got it from him. You haven't even heard that today, have you? You haven't heard that testimony today. Nobody has come here and said this is where Jamie Mackay got this from. Here's the piece of paper, folks.

Record on Appeal, vol. 4, at 62 (emphasis added). After the court

overruled defense counsel's objection, the prosecutor continued:

"Here's the piece of paper that shows he purchased it. No. He

calls with his lawyer from Missouri to Billy Davis." Mackay

contends that these remarks "were manifestly intended to comment

upon Mackay's failure to testify and could only be interpreted by

the jury as a comment on Mackay's failure to testify." We

disagree.

Placed in context, the prosecutor's comments do not manifest

an intent to comment on Mackay's failure to testify, and a jury

would not necessarily have construed the remarks to refer to

Mackay's failure to testify. The sentences immediately preceding

the highlighted comments clarify the antecedent of "that" and "that

testimony." Mackay interprets "that" to mean testimony by the

defendant, but as the context of the remarks makes clear, "that"

refers to testimony by "this person." "This person," in turn,

refers to the person who sold Mackay the backhoe.

-13- Read in context, the prosecutor's remarks simply argue to the

jury that the defense failed to produce evidence, such as a sales

receipt or testimony of the seller, to establish the origin of the

backhoe. "It is not error to comment on the defendant's failure to

produce evidence on a phase of the defense upon which he seeks to

rely." United States v. Dula,

(5th Cir. 1992),

cert. denied, ___ U.S. ___,

,

(1993). Here, the defense theory was that Mackay purchased the

backhoe from Cole,6 and it was not improper for the prosecutor to

point out that the defense offered no direct evidence to prove that

theory. In this respect, this case resembles Dula. The

defendant's theory in Dula was that the questionable activity was

instigated and directed by a rival corporation, and the prosecutor

argued in closing, "There's been nobody on this witness stand that

really knows about what happened between PRC and Accrabond

Corporation."

. We explained that "the government's

argument to the jury that `no one has given you any reasonable

explanation' in response to the defendant's contentions is not

error."

. Similarly here, the government's argument

that Mackay failed to produce evidence of the legitimate sale to

6 In her opening statement at trial, defense counsel explained that "Jamie Mackay entered into an agreement with an individual to sell a backhoe. . . . Jamie got the backhoe from Bill Cole. The evidence will show that Jamie carefully checked into the status of the backhoe. He wanted to be sure that it wasn't hot. He had some problems before. We're going to talk all about that during trial." Record on Appeal, vol. 3, at 43.

-14- which defense counsel referred in her opening statement did not

impermissibly comment on Mackay's failure to take the stand.7

C

Finally, Mackay challenges the district court's assessment of

a four-level enhancement under former U.S.S.G. § 2B1.2(b)(4)(A)

(Nov. 1992).8 He contends that the evidence is insufficient to

support a finding that Mackay was "in the business of receiving and

selling stolen property" as required by the guideline. We review

challenges to factual findings under the guidelines for clear

error. See United States v. Carreon,

(5th Cir.

1994). The district court may base the findings underlying its

sentence on facts in the record that have been proven by a

preponderance of the evidence. See United States v. Castro,

(5th Cir. 1989), cert. denied,

,

,

(1990).

Mackay argues, and the government agrees, that the enhancement

provision applies only to "fences," i.e. those in the business of

7 Our holding in this case does not mean that if the defense offers a theory that is unsupported by the evidence, the prosecutor can argue to the jury that because the defendant failed to testify in support of that theory he must be guilty. The crucial distinction here is between comments on the failure by the defense to offer evidence (including testimony of third persons) and the failure of the defendant to testify. See United States v. Wade,

(5th Cir. 1991) ("It is well settled that, while the `fifth amendment prohibits a prosecutor from commenting directly or indirectly on a defendant's failure to testify,' a `prosecutor may comment . . . on the failure of the defense, as opposed to the defendant, to counter or explain the evidence.'") (quoting United States v. Borchardt,

(5th Cir. 1987)). 8 Section 2B1.2(b)(4)(A) was deleted by consolidation with § 2B1.1 effective November 1, 1993. See Amendment 481, U.S.S.G. App. C at 304-05. The new provision provides: "If the offense involved receiving stolen property, and the defendant was a person in the business of receiving and selling stolen property, increase by 4 levels." U.S.S.G. § 2B1.1(b)(5)(B) (Nov. 1993).

-15- receiving and selling property stolen by others. See United States

v. Esquivel,

(5th Cir. 1990), cert. denied, ___

U.S. ___,

,

(1991) ("It is because

someone else stole the shoes sold by Esquivel that . . . the

fencing operation falls within the intended purview of the

background to and text of former section 2B1.2(b)(3)(A).")

(emphasis in the original).9 We have also held that an offense

level enhancement under former § 2B1.2(b)(4)(A) does not require a

finding that the defendant previously engaged in fencing

activities. See Esquivel,

("We hold that a finding

that a defendant has previously engaged in fencing activities is

not a prerequisite for offense level enhancement under former

sentencing guideline section 2B1.2(b)(3)(A)."). In Esquivel, we

emphasized the sophistication of Esquivel's sales in concluding

that evidence of prior fencing activities was not required.

.10 In this case Mackay transported the backhoe to Dallas to

sell it, advertised the sale, and arranged for the goods to be

shown to interested buyers. These activities are sufficient to

9 Former § 2B1.2(b)(3)(A), interpreted in Esquivel, was renumbered as § 2B1.2(b)(4)(A), but not substantively changed, effective November 1, 1990. See Amendment 312, U.S.S.G. App. C at c.167 (Nov. 1990). 10 We also noted that Esquivel's sales were to multiple customers. Esquivel,

. Esquivel took possession of a shipment of 350 boxes of sneakers and sold the sneakers by the pair. Selling one lot of stolen sneakers in small bunches to many customers does not differ in any relevant respect from selling a large piece of stolen construction machinery to one customer. Mackay is no less in the business of fencing stolen property than he would be had he disassembled the backhoe and sold it to various customers as spare parts to multiple customers.

-16- support a finding that Mackay was "in the business of" fencing

stolen property.11

Mackay argues that the record does not support a finding that

he sold the backhoe without stealing it himself: "The implication

of the government's case against Mackay was that Mackay himself

stole, or was involved in the theft of, the equipment at issue."

This implication is not sufficient, however, to constitute proof

that Mackay stole the backhoe himself. Although the issue was

contested, there was sufficient evidence on which the district

court could find that Mackay bought the backhoe from Bill Cole,

knowing it to be stolen, before transporting it to Texas.12

The uncertain origin of the backhoe distinguishes this case in

one respect from the two cases on which Mackay primarily relies.

In United States v. Braslawsky,

(7th Cir. 1990),

11 The government cites statements in Mackay's Presentence Report that describe Mackay's career as a dealer in stolen construction equipment. Although we have held that a presentence report generally bears sufficient indicia of reliability to be considered as evidence by the trial judge in making factual determinations required by the sentencing guidelines, see United States v. Alfaro,

(5th Cir. 1990), Mackay attacks the reliability of those statements on a variety of grounds. We do not reach these contentions, however, because we find sufficient evidence in the trial record alone to support the judge's findings. 12 Mackay's father testified that Mackay told him he purchased the backhoe from Bill Cole. Our holding that sufficient evidence supported a finding that Mackay bought the backhoe from Bill Cole may seem inconsistent with our holding, supra, that Mackay did not conspire with Cole. The holdings are not contradictory, however, for two reasons. First, at sentencing, the Government must prove facts only by a preponderance of the evidence. See United States v. Casto,

(5th Cir. 1989), cert. denied,

,

,

(1990). In contrast, under our standard for sufficiency of the evidence supporting a conviction, we require that a rational trier of fact could find that the Government proved all essential elements of the crime beyond a reasonable doubt. See United States v. Castro,

(5th Cir. 1994). Second, the testimony of Mackay's father that Mackay told him he bought the backhoe from Cole directly supports the finding that Mackay bought the backhoe, but it does not support even an inference that Cole and Mackay agreed to transport the stolen backhoe interstate.

-17- the record was clear that the defendants themselves stole the goods

they sold, and the court held that the guideline does not apply to

thieves who sell their own stolen goods. In Esquivel, we followed

Braslawsky and upheld a sentence enhancement in a case in which the

record showed that the defendant bought the stolen goods from

another person. 919 F.2d at 959-60. In this case, where evidence

both supported and contradicted the conclusion that the defendant

acquired the stolen backhoe from a third person, the district court

did not commit clear error in finding that Mackay was "in the

business of receiving and selling stolen property" under former

U.S.S.G. § 2B1.2(b)(4)(A).

III

For the foregoing reasons, we REVERSE Mackay's conviction for

conspiracy to transport stolen goods and AFFIRM his conviction for

knowing transportation of stolen goods.13

13 We do not remand for resentencing because Mackay's two counts merged under the guidelines. See Record on Appeal, Presentence Report, at 4; U.S.S.G. § 3D1.2(d) (Nov. 1992).

-18-