Petition — McCarty v. United States

‘Bupreme Court, U.

No.

FILED

79-1218 FEB 4 1980

| MistHAg: RODAK, JR, OL

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

GEORGE JOHN McCARTY, JR., PETITIONER

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

L. Anthony Weisensee

108 North Phillips

Sioux Falls, South Dakota

57102

Counsel for Petitioner

Steve Jorgensen

Law Center, Suite 100

505 West Ninth Street

Sioux Falls, South Dakota

57104

Counsel for Petitioner

JW

a rn

A

°

INDEX

Opinion Below

Jurisdiction

Questions Presented

Statutes Involved

Statement

Reasons for Granting the Writ

Conclusion

Apendix A

Page

14

la

CITATIONS | Cases: Page

United States v. Skillman,

Cases: Page 442 F2d 542, 547 (8th

Cir.), cert. denied

Cross v. U.S., 392 F2d 360 11 - 404 U.S. 833 (1971) 7

(8th Cir., 1968)

Hall v. U.S., 109 V2d 976 (1940) 11, 12

Herman v. U.S., 289 F2d 362 10

Krulewitch v. U.S., 336 U.S.

440 (1949) 7

People v. Wolff, 264 N.Y.S.2d 40 11

United States v. Falcone, 31l

U.S. 205 (1940 7

United States v. Kissel, 218 U.S.

S01, -3i 84C: 326 £2910) 7

United States v. Mitchell, 514

F2d 758, 760 (6th Cir.) 13

United States v. Missler, 414

F2d 1293, 1306 (4th Cir.

1969), Cert. denied, 396

U.S. 1058 (1970) 13

United States v. Rosenblatt,

554 F2d 36 (1977) 7, 9 | EC eR

United States v. Russell, 255 }

U.S. 138, 143 (1921) 13 | 7 oak Bate :

, eae” l Wharton Criminal Law and ;

United States v. Sarno, 456 F2d ‘

875 (1971) 9, 10 Procedure, pp. 183, 184 7

WW

ee

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

GEORGE JOHN McCARTY, JR., PETITIONER

Ve

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

George John McCarty, Jr. petitions

for a writ of certiorari to review the

judgment of the United States Court of

Appeals for the Eighth Circuit in this

case.

OPINION BELOW

The opinion of the Court of Appeals

(App.A, infra) is unreported.

JURISDICTION

The judgment of the Court of

Appeals (App.A, Infra) was entered

on January 3, 1980. This petition

for certiorari was filed less than

thirty days from the date aforesaid.

The jurisdiction of this Court is in-

voked under U.S.C. 81254(1).

QUESTIONS PRESENTED

I. Whether or not an agreement

to conspire between the Petitioner and

witness Gramberg inasmuch as witness

Gramberg was only feigning an agree-

ment to further his own escape from

authorities.

II. Whether or not alleged overt

act number one as contained in the in-

dictment is an overt act in furtherance

of a conspiracy and therefore properly

submitted for consideration by the jury.

III. Whether or not Trial Court

erred in denying Petitioner's motion to

withdraw alleged overt acts number three,

four and six from consideration by the

jury.

IV. Whether or not there existed

sufficient evidence to prove the ob-

struction of justice charge.

STATUTES INVOLVED

18 U.S.C. 8371 provides in perti-

nent part:

If two or more persons conspire

either to commit any offense against

the United States, or to defraud the

United States, or any agency thereof

in any manner or for any purpose,

and one or more of such persons do

any act to effect the object of the

conspiracy, each shall be fined not

more than $10,000 or imprisoned not

more than five years, or both.

18 U.S.C. §1503 provides in perti-

nent part:

Whoever corruptly, or by threats

or force, or by any threatening

letter or communication, endeavors

to influence, intimidate, or impede

any witness, in any Court of the

United States***in the discharge

of his duty***or corruptly or by

threats or force***influences, ob-

structs, or impedes, or endeavors

to influece, obstruct, or impede,

the due administration of justice,

shall be fined not more than $5,000

or imprisoned not more than five

years, or both.

STATEMENT

Petitioner was convicted of charges

of conspiracy in violation of 18 U.S.C

8371 and obstruction of justice in vio-

lation of 18 U.S.C. 81503. The Govern-

ment alleged that the Petitioner con-

spired with a one Daniel Gramberg, and

that the nature of the conspiracy was

that Petitioner was to get Gramberg re-

leased from jail so that Gramberg could

murder a witness that was to testify

against Petitioner in other criminal

proceedings for which Petitioner was to

stand trial. The conspiracy was allegedly

formed by a meeting of the Petitioner and

Gramberg at the Minnehaha County South

Dakota Jail. The Government alleged six

separate overt acts which were claimed

to constitute elements necessary to con-

stitute conspiracy. The alleged object

of the conspiracy was never completed.

Said Daniel Gramberg maintained that he

was merely feigning agreement with the

Petitioner.

The Government's evidence in this

case rested largely upon the testimony

of the alleged co-conspirator, Daniel

Gramberg. Gramberg testified that he

and the Defendant were inmates in the

Same cell block in the Minnehaha County

Jail in Sioux Falls, South Dakota, in

September of 1977, and that during the

period they were incarcerated together

they had several conversations (TR84).

Gramberg further testified that the

Defendant discussed charges that were

pending against him and possible wit-

nesses that may appear to testify against

him pertaining to said charges (TR85).

Gramberg further testified that he

and the Defendant discussed having the

witness murdered and the various methods

of accomplishing that goal (TR86). Af-

ter these discussions Gramberg was trans-

ferred from the Minnehaha County Jail to

the Veteran's Administration Hospital,

the evidence shows that on two occasions

the Defendant visited Gramberg at the

Veteran's Administration Hospital (TR93).

Gramberg testified that he and the De-—

fendant made arrangements wherein the

Defendant would provide Gramberg with

an automobile so that Gramberg could

leave the Veteran's Administration

Hospital and meet the Defendant in

Phoenix, Arizona (TR94). Gramberg

testified that the reason for going

to Phoenix, Arizona, to meet the De-

fendant was to finalize plans for the

proposed murder of the witness (TR95).

Gramberg testified that the De-

fendant provided him with $300 for

travel money to Phoenix, Arizona, and

in addition had supplied him with small

sums of money for ci sarettes on prior

occasions (TR96).

Gramberg testified that on October

21, 1977, Defendant left a rental auto-

mobile at the Veterans's Administration

Hospital, and that on October 23, 1977,

he left the Veteran's Administration

Hospital in Sioux Falls and traveled

to Sioux City, Iowa (TR98).

Gramberg testified that he never

did in fact go to Phoenix, Arizona, or

do anything towards the killing of a

witness, and that in fact he had never

met face to face with the witness (TR

99,100).

Gramberg testified that he was

arrested a year later in Ellensburg,

Washington, by FBI agents (TR100).

On cross-examination Gramberg

admitted that the final plan to do

away with the witness was to be made

in Phoenix, Arizona, and the purpose

for going to Phoenix, Arizona, was to

finalize his arrangements with the

Defendant (TR104).

Additionally, Gramberg testified

he did not even know the name of the

intended victim (TR105).

Gramberg testified that he never

intended to go to Phoenix, Arizona, or

to enter into a conspiracy with the

Defendant (TR105).

He testified that he never looked

for the person who was supposed to be

killed, nor did he purchase a weapon

to accomplishthat goal (TR117).

Gramberg states that the only

reason he went along with the Defen-

dant was so he could get some money

and get out of jail (TR121).

FBI Special Agent Payne testified

that Gramberg repeatedly told the FBI

that he never had any intentions of

Bor aa anybody for the Defendant (TR

The Defendant took the witness

stand and testified on his own behalf

and testified that he never asked Daniel

Gramberg to harm any person or to con-

tact any person and denied any involve-

ment in any conspiracy (TR265). Ad-

ditional witnesses were called whose

testimony tended either to corroborate

the Government's version or the Defen-

dant's version.

The case was submitted to the jury

over Defendant's motion for judgment of

acquittal and the jury returned a ver-

dict of guilty on both charges.

REASONS FOR GRANTING THE WRIT

I.

Petitioner contends that there was

insufficient evidence on which to find

that an agreement existed between the

Petitioner and one Daniel Gramberg, the

Government's witness in this case.

The law is clear that in order to

establish a conspiracy it must be proven

beyond a reasonable doubt that two or

more persons agreed and intended to

carry out a plan to commit a crime.

United States v. Kissel 218 U.S.601,

31 S.C.124 (1910). See also 1 Wharton

Criminal Law and Procedure, pages 183,

184 *

The Government has failed to show

that this essential requirement was

satisfied. Rather what the evidence

shows is that Gramberg in order to

further his own escape from jail feigned

an agreement with Petitioner.

On other occasions this Court has

held that a conspiracy is an agreement

among conspirators and a meeting of the

minds is required. Unless at least two

people commit the act of agreeing, no

one does. U.S. v. Falcone, 311 U.S.

205 (1940). Krulewitch v. U.S., 336

U.S. 440 (1949). u.S. v. Rosenblatt,

554 F2d 36 (1977).

Failure to establish that a bona

fide agreement existed between Petitioner

and Daniel Gramberg, the Government's

charge of conspiracy must fail. United

States v. Skillman, 442 F2d 542, 547

(8th Cir.), cert. denied, 404 U.S. 833

(1971).

In the present case using the

evidence in light most favorable to the

8

Government, it is clear that no agree=—

ment existed which would form the basis

of a conspiracy. The Government's case

rested mainly on the testimony of Daniel

Gramberg, the alleged co-conspirator.

Gramberg testified that he and the De-

fendant made arrangements wherein the

Defendant would provide Gramberg with

an automobile so that he could leave

the Veteran's Administration Hospital

in Sioux Falls, South Dakota, where he

had been transferred from jail for

medical reasons, and later meet Defen-

Gant in Phoenix, Arizona (TR94). Gram-

berg testified that the reason he was

going to go to Phoenix, Arizona, was to

meet with the Defendant and finalize

plans for the proposed murder of a

witness who was to testify in other

criminal proceedings against the Defen-

dant.

The testimony is undisputed that

witness Gramberg never did in fact go

to Phoenix, Arizona, and he admitted

on cross-examination that the agreement

to do away with the witness was to be

consummated in Phoenix, Arizona, and

the purposes for going to Phoenix was

to enter into an agreement and make

arrangements with the Defendant. Gram-

berg also testified that he did not

even know the name of the intended

victim (TR105).

Petitioner respectfully asserts

that no agreement was ever consummated

between Petitioner and Gramberg, and

that Gramberg merely feigned his par-

ticipation in the alleged conspiracy

in order to further his own escape from

the authorities. The Court in U.S. v.

op en a ae a a

ut

ee

ET a a a

Rosenblatt, 554 F.2d 36 (1977) held that:

"When one of two persons merely

pretends to agree, the other

party, whatever he may believe,

is in fact not conspiring with

anyone."

Thus, in the present case, even though

Gramberg may have appeared to have been a

conspirator, he in fact was not, inasmuch as

he never intended to enter into a conspiracy

and therefore, a conspiracy could not have

existed.

bee

Alleged Overt Act Number One as con-

tained in the Indictment and that the jury

was instructed on reads as follows:

"On or about September, 1977,

Daniel Gramberg and George McCarty,

Jr. met with one another in the Min-

nehaha County Jail, and George McCarty

offered his assistance in getting

Daniel Gramberg out of jail so that

Gramberg could kill Jon Moeller for

George McCarty."

The Government urges that alleged

overt act number one was an act in further-

ance of the alleged conspiracy. Petitioner

here contends that the most that can be said

for alleged overt act number one is that it

is the basis for an agreement and therefore

it was erroneous for it to be submitted to

the jury.

The law as stated in the First Circuit

in 1971 in the case of U.S. v. Sarno, 456

F2d 875 (1971) would seem to be in conflict

with the holding of the 8th Circuit Court of

Appeals in the present case.

10

In Sarno the Court agreed with the

Defendant's argument that the agreement

by which the parties entered into the con-

spiracy could not be considered an overt

act. In that case, the First Circuit Court

of Appeals upheld the conviction and stated

that:

"No objection was raised to the

submission of the overt act to the

jury or to the instructions of overt

acts generally."

The Court went on to state that had an

objection been made the Court could have

withdrawn that particular overt act from

consideration by the jury. See also Herman

v. U.S., 289 F2d 362.

In the present case a specific motion

was made to have alleged overt act number one

withdrawn from consideration by the jury but

such motion was denied.

Petitioner respectfully contends it

was error on the part of the Trial Court

to submit overt act number one to the jury

for their consideration, and said error was

prejudicial to the Defendant.

IItl.

Petitioner also contends that there

was insufficient evidence to submit to

the jury alleged overt acts three four

and six, and that the Court erred in re-

fusing Defendant's Motion to withdraw

said alleged overt acts from the considera-

tion of the jury.

Alleged overt acts three, four and

six were contained in the Indictment and

submitted to the jury in the following

form:

a + mt ae ee rt ee te et a

i

3. "On or about October 9, 1977,

Daniel Gramberg called James

McCarty in Inwood, Iowa, for

the purpose of having James

McCarty contact George McCarty

to visit Gramberg."

4. "On or about October 20, 1977,

the Defendant George McCarty

deliverted a quantity of money

to Daniel Gramberg at the Vet-

erans Administration Hospital

in Sioux Falls."

6. "On or about October 23, 1977,

baniel Gramberg left the Vet-

erans Administration Hospital

in Sioux Falls and traveled to

Sioux City, Iowa, in the rented

Pinto automobile."

In view that the ultimate goal of

the alleged conspiracy was to commit

murder the Petitioner argues that even if

proven, the dove alleged overt acts did

not constitute overt acts in the furtherance

of the conspiracy.

An overt act must be some act by

one of the conspirators that occurs sub-

sequent to the agreement, and it must be

done in furtherance of the objectives of

the conspiracy. Hall v. U.S., 109 F2d

976 (1940). Cross v. U.S., 392 F2d 360

(8th Cir., 1968).

As the New York Court in People v.

Wolff, 264 N.Y.S.2d 40, held:

"Payment of money to a co-

conspirator to secure his agree-

ment to the conspiracy is regarded

as an act merely cementing the

12

conspiracy, and not as an overt

act committed in furtherance thereof."

The Eighth Circuit Court of Appeals

in this case has held contrary to the

holding in Wolff and the Petitioner urges

that this Court review the question of

whether or not such payment of money to

secure the agreement of a co-conspirator

is an overt act in furtherance of the

conspiracy or merely goes to the basis of

the agreement.

Likewise, the Petitioner maintains

that the alleged overt act number six, even

if proven, does not constitute in fact an

overt act. If in fact Gramberg left the

Veterans Administration Hospital in Sioux

Falls and traveled to Sioux City, Iowa,

there has been no evidence that would in-

dicate that these acts by Gramberg were

in fact in furtherance of the conspiracy.

As a matter of fact, the only testimony

in this regard by Gramberg was that he

was going to go to Phoenix, Arizona, to

enter into an agreement with the Defendant.

The Petitioner would direct the Court's

attention to the case of Hall v. U.S., 109

F2d 976 (1940) for an excellent definition

Of an overt act:

"The overt act must be a sub-

sequent independent act follow-

ing the conspiracy and done to

carry into effect the object

thereof, and cannot succeed the

completion of the contemplated

crime. The overt act must reach

far enough toward the accomplish-

ment of the desired result to at

least amount to the commencement of

the consummation, and if the act of

a conspirator be done with the pur-

pose of putting the unlawful agree-

13

ment into effect, it is suffi-

cient although it has no ten-

dency to accomplish its object."

None of the alleged overt acts, there-

fore, are in fact overt acts within the

meaning of the definition. The evidence

failed to show, that even if proven, these

alleged acts in any way were in furtherance

of an existing conspiracy, and it was error

on the part of the Trial Court not to with-

draw these alleged overt acts from the jury's

consideration.

IV.

The Court of Appeals of the Eighth

Circuit in affirming the conviction on the

obstruction of justice charge stated that

all that must be proven is that the Defen-

dant "endeavored" to obstruct justice.

Here the Court of Appeals cited the cases

of U.S. v. Russell, 255 U.S. 138, 143 (1921),

U.S. v. Mitchell, 514 F2a 758, 760 (6th Cir.)

and U.S. v. Missler, 414 F24a 1293, 1306

(4th Cir. 1969), cert. denied, 396 U.S.

1058 (1970) as authority for its holding.

It should be noted that in each of

those cases the victim to be murdered or

person to be influenced was known to the

person who was to carry the crime into

fruition. A close reading of the case

law relied on by the Court Of Appeals’

decision in this case shows that where

the obstruction of justice charge was

affirmed, the courts were presented with

facts far more revealing as to the ques-—

tion of endeavoring to obstruct justice.

In the present case, not Only did a

conspiracy not exist, but there is abso-

lutely nothing in the record to indicate

that either of the alleged conspirators

14

took any step to bring about the death

of the alleged prospective victim. By

the admission of the Government's own

witness, Mr. Gramberg, he did not even

know the name of the person who was sup-

posedly to be murdered (TR 105). If the

name of the prospective victim is not

even known to the conspirator, it is in-

conceivable that Petitioner could be

guilty of obstruction of justice by at-

tempting to bring about the death of an

unknown person. Not only did Gramberg

not know the name of the intended victim,

but there is no evidence that he even

knew where he was located.

a a a ge -— — —- - 9 --

Petitioner, therefore, respectfully

requests this Court to review Petitioner's

conviction in light of the long history

of case law in this area, which case law

seems to conflict with the holding by the

Eighth Circuit Court of Appeals.

CONCLUSION

The Petition for Writ of Certiorari

should be granted.

Respectfully submitted,

L. Anthony Weisensee

108 North Phillips

Law Center, Suite 100

505. West Ninth Street

Sioux Falls, S. D. 57104

Counsel for Petitioner

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 79-1227

United States of America,

Appellee,

Vv. Appeal from the United States

District Court for the District

George John McCarty, Jr., of South Dakota

*e ee ee 4 * &

Appellant.

Submitted: October 12, 1979

Filed: November 30, 1979

Before BRIGHT, ROSS and STEPHENSON, Circuit Judges.

ROSS, Circuit Judge.

George John McCarty, Jr., appeals from his conviction?

for conspiracy and obstruction of justice in violation of

18 U.S.C. §§ 371 and 1503.2

McCarty was charged with conspiracy to corrupt justice

by willfully injuring a prospective material witness

in a federal trial on charges then pending against McCarty.

1

The Honorable Andrew W. Bogue, United States District

Judge for the District of South Dakota.

2 -

McCarty received two concurrent five year sentences to

run consecutively with a previous ten year federal sentence

for the interstate transportation of stolen property.

Daniel James Gramberg, the key prosecution witness, testified F.2d 701, 712 (8th Cir.), cert. Lericah 99 S.Ct. 451 (1978).

that McCarty approached him with a plan to murder the witness. | Rather, a tacit understanding is sufficient to create a-con-

At the time, McCarty and Gramberg were cellmates incarcerated Spiracy. Wilve v. Gawheg Sfofeed 212 F.2d 115, 121 (8th

in the Minnehaha County Jail in Sioux Falls, South Dakota. Cir. 1954).

Gramberg testified that he agreed to commit the murder. In

return, McCarty had an attorney visit Gramberg for the purpose McCarty urges that no agreement was reached because the

of securing his release from the county jail. Pursuing legal ae plans were never finalized in Phoenix. However, there is no

alternatives became unnecessary, however, as Gramberg was soon , necessity that the conspiracy be carried to fruition or even

transferred to the Veterans Administration Hospital for medical 2 to the final stages of planning. Likewise the defendant need

reasons. While at the hospital, McCarty gave Gramberg $300 | not have knowledge of every detail or phase of a conspiracy;

to fly to Phoenix to finalize the details of the murder. He knowledge of the ere nature of a apse: nla — the

then rented a car and left it in the hospital parking lot for defendant's connection therewith is sufficient to convict.

Gramberg's use in fleeing the authorities. Gramberg drove Blumenthal v. United States, 332 U.S. 539, 557 (1947).

from South Dakota to Iowa, but did not fly to Phoenix as

planned. In the eet “okie McCarty contends that Gramberg merely

feigned agreement, never intending to harm the witness.

On appeal, McCarty contends: (1) that the government United States v. Moss, 591 F.2d 428, 434 n.8 (8th Cir. 1979).

failed to prove the existence of an agreement to conspire; This contention is belied by the record. On direct examina-

(2) that an alleged overt act was not properly before the tion Gramberg testified as follows:

jury; and (3) that the evidence was insufficient to sustain

é Q Then did you and George have any further

his conviction. We affirm. discussions about killing this witness?

A Yes. Me and George discussed it. Exactly,

: me and George were leaning up against the rack and

I. The Agreement to Consptre he said, "The only way I could possibly get out of

this is to have him murdered--have the witness

“

McCarty first asserts that the government failed to estab- asa = -ig iis Wi uhwk- Tee ai ine Houde mena

lish the existence of a conspiracy agreement. We disagree. do this.

Q Did you discuss with Mr. McCarty in the jail

the manner or method of how this was going to be done?

A conspiracy "consists of an agreement between the A Yes. 3

conspirators to commit an offense, attended by an act of one jen uf. Brn Nay tienes opi Peay paige a neon

xa conversation

Or more of the conspirators to effect the object of the , |

conspiracy." United States v. Skillman, 442 F.2d 542, 547 ; —

, sag ara a . he agreement There was some testimony on cross-examination to the

(8th Cir.), cert. dented, 404 U.S. 833 (1971). The ag Be effect that Gramberg had attempted to abandon the conspiracy.

need not be formal or express. Jnited States v. Taylor, 599 ’ Apparently, the jury chose to credit Gramberg's original .

, e Untted . Pelt 578 account of the conspiracy given on direct examination, as

F.2d 832, 838 (8th Cir. 1979); United States v. Pelton, it was entitled to do.

-2- .

-3-

of what was said about that.

A Jim--excuse me--George asked me of what I

thought possibly would be the best way to murder the

man, and he brought up a rifle. I told him that that

would be really messy and it would show that the

man was murdered, and the other thing was hitting

him over the head and feeding him to the hogs or

having some accident of some sort.

Q As far as you were concerned at this point,

were these serious discussions?

A Yes, sir.

This testimony, taken in the light most favorable to the

government, Glasser v. United States, 315 U.S. 60, 80 (1942),

clearly establishes the existence of the conspiracy agreement

and, if believed, indicates that both parties entered the

agreement seriously intending to murder the witness. It was

within the right of the jury to believe Gramberg's testimony

that a conspiracy to murder the witness had been formed and

to disbelieve McCarty's testimony to the contrary.4

II. Jury Instructions

Alleged overt act number one as contained in the indict-

ment reads:

On or about September 1977, Daniel Grambert [sic]

and George John McCarty, Jr. met with one another in

the Minnehaha County Jail and George McCarty offered

his assistance in getting Daniel Grambert [sic] out

of jail so that Grapbert [sic] could kill John Moeller

for George McCarty.

‘Indeed, the uncorroborated testimony of an accomplice: is

sufficient to sustain a conviction if it is not otherwise

incredibile or unsubstantial on its face. United States v.

Abrahamson, 568 F.2d 604, 607 (8th Cir. 1978); United States

v. Knight, 547 F.2d 75, 76 (8th Cir. 1976). Gramberg's testi-

mony is neither incredible nor unsubstantial. Moreover, | gee

was buttressed by the corroborating testimony of other witnesses

who overheard these jailhouse conversations.

>although inarticulately stated, the gist of the overt act

alleged was McCarty's assistance in freeing Gramberg from jail.

we

McCarty submits that the trial court erred in instructing the

jury as to this act. He contends that this meeting was either

to plan the conspiracy or to agree to it and as such, may not

be considered an overt act in furtherance of the conspiracy.

This argument fails in light of our conclusion that the govern-

ment established the agreement element of the conspiracy. It

- was necessary that Gramberg be released from jail in order to

carry out the object of the conspiracy. To that end, McCarty's

, assistance in securing Gramberg's release was an act in further-

ance of the conspiracy which was properly submitted to the jury.

Ili. Sufficiency of the Evidence

McCarty asserts that the evidence of three alleged overt

acts was insufficient to warrant their submission to the jury:

(1) Gramberg's placement of a phone call to McCarty's brother,

an alleged coconspirator, to facilitate McCarty in contacting

Bramberg; (2) the transfer of flight money from McCarty to

Gramberg; and (3) Gramberg's sojourn from South Dakota to

Iowa in a car rented by McCarty. Specifically, McCarty con-

tends that none of these acts was in furtherance of the

alleged conspiracy.

In order to sustain a conspiracy conviction the govern-

ment need not prove the occurrence of every overt act alleged

in the indictment; proof of one overt act in furtherance of

_the conspiracy will suffice. United States v. Brown, 604

F.2d 557, 560 (8th Cir. 1979); United States v. Parker, 586

F.2d 1253, 1258 n.2 (8th Cir. 1978). The overt act need not

be criminal in nature, so long as it furthers the object of

the conspiracy. United States v. Bgse, 472 F.2d 207, 213

(8th Cir.), cert. denied, 412 U.S. 928 (1973).

We have repeatedly stated that "once the government has —

-5-

established the existence of a conspiracy, even slight evidence

connecting a particular defendant to the conspiracy may be

substantial and therefore sufficient proof of the defendant's

involvement in the scheme." United States v. Cox, 580 F.2d

317, 323 (8th Cir. 1978), cert. denied, 99 S.Ct. 851 (1979),

quoting United States v. Overshon, 494 F.2d 894, 896 (8th Cir.),

cert. dented, 419 U.S. 853 (1974); United States v. Wyant,

576 F.2d 1312, 1316 (8th Cir. 1978). Substantial evidence

was adduced at trial to establish each of the overt acts

alleged. It was proper for the district court to submit those

acts for the jury's consideration.

““McCarty's final contention is that the evidence was insuf-

ficient to sustain his conviction for obstruction of justice.

In considering this contention, we must view the evidence in

the light most favorable to the verdict rendered. Glasser v.

United States, supra, 315 U.S. at 80. Accordingly, this court

must accept all reasonable inferences which tend to support the

jury's verdict. United States v. Overshon, supra, 494 F.2d

at 896. The statute proscribing an obstruction of justice,

18 U.S.C. § 1503, provides in pertinent part:

Whoever corruptly, or by threats or force,

or by any threatening letter or communication,

endeavors to influence, intimidate, or impede any

witness, in any court of the United States * * *

in the discharge of his duty * * * or corruptly

or by threats or force * * * influences, obstructs,

or impedes, or endeavors to influence, obstruct,

or impede, the due administration of justice, shall

be fined not more than $5,000 or imprisoned not

more than five years, or both.

(Emphasis added.)

Success is not a prerequisite to conviction for obstruc-

tion of justice. Osborn v. United States, 385 U.S. 323, 333

(1966). All that must be proved is that the defendant

=6=

$

‘

"endeavored" to obstruct justice. /d.; United States ».

Russell, 255 U.S. 138, 143 (1921). In the instant case, sub-

Stantial evidence was introduced to establish that McCarty

arranged to have a prospective government witness murdered. ©

McCarty not only gave the potential murderer money, /nitel

States v. Mitchell, 514 F.2d 758, 760 (6th Cir.), cert.

dented, 423 U.S. 847 (1975), but additionally devised and 7

helped implement his escape from the authorities. On these

facts, the jury was justified in concluding that McCarty

"endeavored" to obstruct justice.

Accordingly, we affirm the judgment of the distr#ct

court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

Ssee, @.g., United States v. Missler, 414 F.2d 1293,

1306 (4th Cir. 1969), cert. denied, 396 U.S. 1058 (1970)

(holding that "[t]here can be no question that a person

‘endeavors' to obstruct justice when he arranges to have

a prospective government witness murdered.").

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