                                                          NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 15-2023
                                  _____________

                        UNITED STATES OF AMERICA

                                         v.

                                TERRY L. SEMPF,
                                           Appellant
                                 _____________

                 On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                         W.D. Pa. No. 2-12-cr-00123-001
                 District Judge: The Honorable David S. Cercone

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 May 19, 2016

         Before: SMITH, HARDIMAN, and SHWARTZ, Circuit Judges

                               (Filed: May 20, 2016)
                             _____________________

                                    OPINION
                             _____________________





 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
SMITH, Circuit Judge.

      Terry Sempf, a former letter carrier with the United States Postal Service,

was found guilty of conspiracy to transport stolen property, in violation of 18

U.S.C. § 371, and of interstate transportation of stolen property, in violation of 18

U.S.C § 2314. He now appeals his convictions and claims that there were three

errors below. First, he argues that the District Court erred in denying his motion to

suppress the recordings of several conversations between him and the

Government’s cooperating informant. Second, he asserts that it was error for the

District Court not to instruct the jury on the specific list of overt acts mentioned in

the indictment. Third, he claims that the District Court should not have given the

jury a willful blindness instruction as there was no evidence to support it. After

considering all three of Sempf’s claims, we hold that none have merit and therefore

will affirm his judgment and sentence.

                                          I.

      Sempf, in addition to working as a letter carrier, sold products at a flea

market in Rogers, Ohio for several years. This side job led to trouble when Sempf

started selling stolen goods that he obtained from several individuals at deep




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discounts.1 One such individual was Tracey Orrico. Orrico was at the time

addicted to crack cocaine and shoplifted to support her drug addiction. After

stealing certain retail products, Orrico would contact Sempf and set up a time to

meet and sell him the products. As time passed, Sempf and Orrico began to work

together more closely.    Sempf even helped Orrico buy a car to facilitate her

shoplifting, making payments on Orrico’s behalf directly to the car dealership.

      Orrico was eventually caught shoplifting and agreed to cooperate with law

enforcement, claiming that she worked with Sempf and that he told her what to

steal. To investigate this story, the police, in cooperation with the FBI, set up

several sting transactions in which they arranged for Orrico to meet with and sell

approximately $5,000 worth of goods to Sempf. The Government then bought

several of these items back from Sempf’s flea market booth on two separate

occasions. In addition to the undercover sales, law enforcement officers, with

Orrico’s consent, recorded several telephone calls and in-person conversations

between Sempf and Orrico.

      After gathering this evidence, the police executed a search warrant on


1
  Because the facts are reviewed here to determine whether the District Court
properly denied Sempf’s motion to suppress, we construe the record in the light
most favorable to the Government. United States v. Myers, 308 F.3d 251, 255 (3d
Cir. 2002).



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Sempf’s home. This led to the recovery and removal of more products from the

sting operation as well as additional stolen property, some of which still had

security tags attached.

                                         II.

      Sempf first challenges the District Court’s determination that Orrico

voluntarily consented to the telephone and in-person recordings of her

conversations with Sempf. As we noted in United States v. Antoon, federal law

requires the consent of at least one party to the conversation before it can be

electronically recorded. 933 F.2d 200, 203 (3d Cir. 1991). Consent, as we said in

Antoon, “is a question of fact determined from the totality of the circumstances.”

Id. Thus, “[t]he ultimate test of voluntariness is whether, under the circumstances,

the consent was an exercise of free will or whether the actor’s free will ‘has been

overborne and his capacity for self-determination critically impaired.’”           Id.

(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)).            We further

clarified that “[c]onsent to a wiretap is not voluntary where it is coerced, either by

explicit or implicit means or by implied threat or covert force.” Id. at 203-04

(internal quotation marks and citations omitted). That said, we also held in Antoon

that our review of the District Court’s determination is for clear error. Id. at 204.

Thus, the District Court’s finding that consent was voluntary will not be overturned

unless it is “(1) completely devoid of minimum evidentiary support displaying

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some hue of credibility, or (2) bears no rational relationship to the supportive

evidentiary data.” Frett-Smith v. Vanterpool, 511 F.3d 396, 400 (3d Cir. 2008)

(quoting Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972)).

      On the record before us, we cannot conclude that the District Court

committed clear error.    Orrico signed a written consent form stating that her

consent was voluntary, and she verbally consented before each recording. While

Orrico was motivated by a desire to avoid going to jail, her own self-interest does

not undermine the voluntariness of her consent. “An individual’s decision to allow

the police to record a phone conversation . . . is not necessarily involuntary just

because that individual’s motives were self-seeking, or because [s]he harbored

expectations of personal benefit.” United States v. Kelly, 708 F.2d 121, 125 (3d

Cir. 1983). The circumstances surrounding Orrico’s consent also do not suggest

that she was coerced into consenting. She was not in custody at the time the forms

were signed and she was not asked to consent to the recordings until approximately

two months after her arrest. Orrico also did not express any hesitation when

agreeing to the recordings. All this suggests the recordings were conducted after

proper consent was obtained.

                                        III.

      Sempf next claims that it was plain error for the District Court not to tell the

jury which specific overt acts were listed in the indictment. While Sempf admits

                                          5
that the District Court did properly instruct the jurors that they must unanimously

agree on a particular overt act, he claims that the District Court “failed to

enumerate the overt acts as set forth in the indictment,” and “[a]s such, the jury

could not possibly have unanimously agreed on the same overt act, as they were

never told what the overt acts alleged in the indictment were.” However, as we

stated in United States v. Schurr, 794 F.2d 903, 907 n.4 (3d Cir. 1986), “[i]t is well

settled that the government can prove overt acts not listed in the indictment.”

Thus, because the jury was told that it had to unanimously agree on the

commission of at least one overt act, there was no plain error. See United States v.

Adamo, 534 F.2d 31, 38 (3d Cir. 1976) (“There is general agreement that the

Government is not limited in its proof at trial to those overt acts alleged in the

indictment.”).

                                         IV.

      Finally, Sempf argues that it was error for the District Court to give a willful

blindness instruction, as the Government’s theory throughout the trial was that

Sempf had actual knowledge and intentionally directed Orrico and other suppliers

to steal certain products. Sempf claims, therefore, that “[t]here was no room in this

case for a willful blindness instruction in that a willful blindness theory was

completely inconsistent with the factual theory presented from opening to closing

by the government.” This same argument was rejected in United States v. Wert-

                                          6
Ruiz, 228 F.3d 250, 255-56 (3d Cir. 2000). There, the defendant argued that the

government only adduced evidence of her actual knowledge of the conspiracy, and

that the willful blindness instruction was inconsistent with the government’s theory

of the case. Id. We disagreed, explaining that even if evidence was introduced

only to support the claim the defendant had actual knowledge of the illegal

conspiracy, we were also “mindful that the jury was entitled to decide that only

part of the government’s evidence was credible.” Id. at 256. Accordingly, we held

that introducing evidence suggesting actual knowledge was not “inconsistent with

the conduct of an individual who willfully blinded herself from the source of the

funds with which she dealt and the nature of those activities.” Id.

      The same is true here. While the Government’s theory was that Sempf knew

what Orrico was doing and thus that the products were stolen, this is not

inconsistent with a theory of willful blindness, as the jury was entitled to disbelieve

any portion of the Government’s case. Thus, for example, the jury could have

concluded that Sempf deliberately avoided learning the truth about how Orrico was

obtaining the products at such a deep discount. Indeed, Sempf claimed that he

believed Orrico had obtained the products as a result of extreme couponing. To

conclude that the Government’s evidence could support only “actual knowledge

that the merchandise was stolen or . . . no knowledge at all” would ignore the fact

that the jury is free to reassess the evidence and make its own credibility

                                          7
determinations.

                                       V.

      For the reasons stated above, we will affirm the judgment and sentence

imposed by the District Court.




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