The opinion of the court was delivered by: ANITA B. BRODY
Defendants Igor Veksler and Eduard Sikar were among eighteen defendants named in a ninety-seven count indictment that alleged a conspiracy to evade state and federal taxes on the sale of diesel fuel. Veksler was named in Counts One, Two through Seven and Seventy-five of the indictment; those counts charged him with conspiracy, six counts of wire fraud, and one count of tax evasion. Sikar was charged in Count One with conspiracy. After a jury trial, Veksler was convicted on Counts One through Seven and acquitted on the tax evasion charge. Sikar was convicted of conspiracy. Both defendants have filed post-trial motions for acquittal based on insufficiency of the evidence at trial.
The issue before me is whether, under the standard set by the Third Circuit, the government presented sufficient evidence at trial for the jury to find that the defendants knowingly engaged in the conspiracy charged in Count I of the indictment.
Specifically at issue here is whether the government presented sufficient evidence to permit the jury to conclude that the defendants had knowledge of the illegal objective contemplated by the conspiracy with which they are charged. United States v. Salmon, 944 F.2d 1106, 1113 (3d Cir. 1991); United States v. Wexler, 838 F.2d 88, 90-91 (3d Cir. 1988). I find that the government has met its burden as to defendant Veksler, and will deny his motion for acquittal. As to defendant Sikar, however, I find that, under the Third Circuit standard, the government failed to present sufficient evidence at trial to allow a reasonable jury to infer that Sikar had knowledge of the specific illegal objective contemplated in the charged conspiracy, and so will grant his motion for acquittal.
In deciding a post-trial motion for judgment of acquittal, I must
view the evidence in the light most favorable to the verdict, and must presume that the jury has properly carried out its functions of evaluating credibility of witnesses, finding the facts, and drawing justifiable inferences. A verdict will be overruled only 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). I must credit all available inferences in favor of the government.
The government's burden in a conspiracy prosecution is to prove the existence of an agreement to commit an unlawful act. It is not necessary that the government prove a formal agreement, merely that the defendants had a common goal and agreed to work together toward that goal. Although all 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.), cert. denied 479 U.S. 821 (1986), "the sufficientcy of the evidence in a conspiracy prosecution requires close scrutiny". United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987) (quoting United States v. Cortwright, 528 F.2d 168, 171 (7th Cir. 1975). In order to sustain the conviction, there must be evidence tending to prove that the defendant entered into an agreement and knew that the agreement had the specific unlawful purpose charged in the indictment. United States v. Scanzello, 832 F.2d 18, 20 (3d Cir. 1987).
Although the Third Circuit has never set forth a bright line rule as to how much circumstantial evidence is needed to establish that the defendant knew the unlawful purpose of the conspiracy with which he is charged, the court has made it clear that evidence that the defendant knew or suspected that something illegal was occurring and was willing to participate in it is insufficient: the government must show that the defendant understood the specific crime goal of the conspiracy.
In United States v. Salmon, 944 F.2d 1106 (3d Cir. 1991), the Third Circuit upheld the conspiracy convictions of two defendants who engineered the sale of a package of cocaine. At the same time, however, the court reversed the conviction of a third defendant who aided in the surreptitious sale of the wrapped package, but was not shown to have had knowledge of the contents of the package. Salmon, 944 F.2d at 1114-16.
In Wexler the Third Circuit held that the government's evidence that the defendant had served as a lookout and assisted in the movement of a truck that contained a large quantity of hashish was insufficient to sustain his conviction for conspiring to distribute hashish, in the absence of any evidence that the defendant knew what was in the truck. Wexler, 838 F.2d at 91-92.
In United States v. Cooper, 567 F.2d 252 (3d Cir. 1977), the Third Circuit reversed the conspiracy conviction of a man who travelled cross-country with a co-defendant in a truck carrying marijuana because there was no evidence that Cooper knew what was in the locked rear compartment of the truck. Cooper, 567 F.2d at 254-55. In Cooper, as in the other cases involving a conspiracy to distribute a controlled substance, the apparent illegality of the activity was not enough; without evidence that the defendant had been told or had figured out what was being transported or sold, the totality of the evidence was not enough for a reasonable juror to find that the defendant had knowledge of the specific illegal object of the conspiracy.
The Third Circuit's close scrutiny is not restricted to cases involving controlled substances. In United States v. Coleman, 811 F.2d 804 (3d Cir. 1987), the Third Circuit upheld the judgment of acquittal for a defendant accused of conspiring to interfere with a prosecution witness' civil rights. The evidence showed that the defendant had a long-standing association with his co-defendant, the man against whom the witness was to testify, that he knew of his friend's impending trial, and that he rented the motel room in which the witness was murdered. There was, however, no evidence that the defendant rented or allowed his friend access to the room with the intention of facilitating the friend's plan to prevent the witness from testifying. Coleman, 811 F.2d at 808.
These cases demonstrate that the Third Circuit standard for proof that the defendant knew of the specific illegal object of the charged conspiracy is a strict one. While the standard applied to a motion for acquittal is very favorable to the government, that standard does not lessen the heavy burden upon the government to prove at trial each element of the crime charged. With this standard in mind, I turn to the case before me.
The Conspiracy Charged in Count One of the Indictment
The issue here is very precise: did the defendants knowingly agree to participate in the conspiracy charged in Count One of the Superseding Indictment to:
1) defraud the United States in the collection of excise taxes owed on the sale of diesel fuel;
2) use wire communications for the purpose of defrauding the Commonwealth of Pennsylvania and the State of New Jersey in the collection of Pennsylvania oil company franchise taxes and New ...