                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                     FILED
                       ________________________         U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             December 16, 2005
                             No. 04-12491                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 02-00528-CR-BE-S


UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee,

                                   versus

EVERETT LEON STOUT,       Defendant (dismissed 8-15-05),

HAROLD TYRONE HARMON, SR.,

                                                         Defendant-Appellant.

                       ________________________

                Appeals from the United States District Court
                   for the Northern District of Alabama
                      _________________________
                           (December 16, 2005)


Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:
       Harold Tyrone Harmon, Sr., directly appeals his convictions following a jury

trial for one count of conspiracy to commit interstate transportation of stolen

vehicles, in violation of 18 U.S.C. § 371, and two counts of interstate

transportation of stolen vehicles, in violation of 18 U.S.C. § 2312. Harmon argues

on appeal that the government produced insufficient evidence to support his

convictions. For the reasons set forth more fully below, we affirm.

       A federal grand jury returned an 18-count superseding indictment against

Harmon and two co-conspirators, Everett Leon Stout and Shirley Joan Harper,

charging Harmon as discussed above.1 During a consolidated trial, at which

Harmon and Stout elected to proceed pro se, but with standby counsel present,

Thad Hood of Alabaster, Alabama, testified that he and his wife placed an

advertisement in the Birmingham newspaper, attempting to sell their 2001 Pontiac

Firebird. In December 2001, in response to this advertisement, Stout came to the

Hoods’ residence to look at the Firebird. After quickly examining the Firebird,

Stout agreed to purchase it for the asking price, which was the amount the Hoods

still owed the Alabama Telco Credit Union (“Telco”), the company that had

financed the original sale of the Firebird. Stout, who falsely claimed he was an


       1
          Pursuant to a plea agreement, Harper pled guilty to the conspiracy charge. Following a
consolidated trial, a jury convicted Stout and Harmon as charged. Although Stout filed a pro se
notice of appeal from his judgment of conviction, this Court subsequently dismissed his appeal
for want of prosecution. Thus, this appeal is only from Harmon’s judgment of conviction.

                                               2
attorney, then went with the Hoods to obtain a copy of the vehicle’s title, along

with instructing the Hoods that they all needed to go to the local courthouse to

record the “sale” documents.

      Hood further testified that, at the courthouse, Stout filed paperwork,

including a bill of sale and a document—containing the words “negotiable

instrument” and “Diamond Financial”—that Stout claimed would serve to pay the

debt owed to Telco. Diamond Financial, which Stout told Hood was “one of his

other businesses,” had listed as its address Harmon’s home address, that is, 2050

South School Avenue, Fayetteville, Arkansas. Stout also told the Hoods that the

“negotiable instrument” would operate like a money order, such that the funds for

the “sale” would come from “Conseco Financial,” a company against which Stout

claimed he had a judgment.2 Stout had copies of this transaction (1) recorded in

the probate court; (2) sent to Telco; and (3) left with the Hoods, along with

Harmon’s name and number to contact if the Hoods had difficulties. The Hoods,

in turn, gave Stout the keys to, and possession of, the Firebird.

      Hood and his wife subsequently received notice that their car payment was

late. When Hood contacted Telco, he was informed that the payment had not been



      2
        Although this “negotiable instrument” contained on its face a reference to the
“Judgment Recorded as Case Number CV-99-744 in the Circuit Court of Crittenden County,
Arkansas,” no such judgment existed, and the “negotiable instrument” was worthless.

                                            3
paid, and that he still was liable for the debt. Hood then called Harmon’s phone

number, and a man identifying himself as “Harold” responded and told Hood that

“your check has been in the mail, it’s been put in the mail.” Hood, however, never

received a check, and the debt was never paid. The government also introduced

testimony from six other witnesses, who, with minimal variations, described the

same scheme Stout had used to steal the Hoods’ Firebird.3

       Ivy Lillard, one of Stout’s close friends, also testified, explaining that,

through her relationship with Stout, she learned that he conducted “business” by

filing judgments against people through Sovereign Accounting, and financed cars

using “negotiable instruments” through Diamond Financial in Atlanta, Georgia.

She also stated that Harmon was associated with Sovereign Accounting and

Diamond Financial, including serving on Sovereign Accounting’s “board.”

Moreover, both Stout and Harmon, through Sovereign Accounting, participated in

a day-long training session in West Memphis in early 2000, which was conducted

to teach other people how to use the negotiable instruments to purchase property

on behalf of Sovereign Accounting.4

       3
          This related testimony involved thefts of vehicles in December 2001 and January 2002,
from Kevin and John Brown, Kevin Oakes, Timothy Sheridan, Angela and Charles Woods, Jill
Potts, and James Stuckey. Unlike Hood, however, none of these witnesses testified that they
spoke with a man named “Harold” after the purported sales.
       4
        Videotapes of this training session also was entered into evidence at trial. The
government, without objection, described these tapes as including (1) references by participants

                                                4
       David Stout, who was not related to co-conspirator Everett Leon Stout, also

testified, stating that, in April 2000, after responding to an advertisement that

David Stout had placed in a magazine, Harmon used one of the “negotiable

instruments” to “purchase” David Stout’s house in Fayetteville, Arkansas for

$150,000. However, although Harmon told David Stout that this “negotiable

instrument” would serve to pay off the $149,000 mortgage on which David Stout

still owed, and Harmon took possession of the house, the mortgage was never paid

by the “negotiable instrument.” Moreover, David Stout only regained custody of

this house after filing a lawsuit in an Arkansas state court and receiving a favorable

verdict in 2001.

       Similarly, Leda Younce testified that, in May 2000, Harmon, who stated that

he was in California visiting his brother, used one of Sovereign Accounting’s

“negotiable instruments” to “purchase” a Geo Tracker that Younce and her

husband had decided to sell to pay off its loan. Harmon agreed to the price needed

to pay off this loan and, as payment, told the Younces that the “negotiable

instrument” would operate “like a regular check.” Similar to the “negotiable

instruments” used in Alabama, this “negotiable instrument” contained the name



to Harmon as a “conservator, a man who is high ranking and who has authority,” and
(2) instructions to participants that they needed to obtain Harmon’s permission before
conducting “business” through Sovereign Accounting.

                                                5
Sovereign Accounting and referenced to an alleged judgment in “the Circuit Court

of Crittenden County, Arkansas, case CV-99-744.” After the “sale” was

completed, Harmon mailed the original copy of the “negotiable instrument” to the

finance company, and he left California with the vehicle. Approximately two

weeks later, the Younces discovered that the “negotiable instrument” was

worthless, and they began calling Harmon at his home number. Although the

Younces complained to Harmon several times, Harmon replied that the method of

payment was legal.5

       In discussing the transportation of the vehicles at issue in Counts 9 and 10 of

Harmon’s superseding indictment, Mike Callahan, a special agent with the FBI

testified that Harmon admitted to him in May 2002, that, sometime in late

December 2001, Harmon and his grandson, Roman Oswald, had traveled with

Stout and two other persons in one vehicle to Birmingham, Alabama, at which time

Harmon, Oswald, and another person each had driven a separate vehicle back to

Fayetteville. Harmon specifically had driven the vehicle that had been stolen from

James Stuckey, while Oswald had driven the vehicle that had been stolen from

Kevin Oakes. Although Harmon denied knowing that these vehicles were stolen,




       5
         This vehicle subsequently was returned to the Younces in May 2002, after the Federal
Bureau of Investigations (“FBI”) conducted a search of Harmon’s home.

                                              6
he admitted knowing that they were obtained using Sovereign Accounting’s

“negotiable instruments.”6

       Agent Callahan also testified that Harmon admitted to him that multiple

vehicles had been stored at Harmon’s residence at one time, and that Harmon

knew that these vehicles had been obtained through the use of “negotiable

instruments.” Moreover, when Agent Callahan questioned Harmon about the

vehicle Harmon had “bought” using a “negotiable instrument” in California,

Harmon refused to answer, explaining that he feared that the evidence relating to

the “sale” of the California vehicle would be used against him, and that he wished,

instead, to work out a deal relating to its recovery. Harmon also informed Officer

Callahan that he was in possession of two other vehicles that Stout had obtained,

and that he would return them if evidence relating to their “sales” was not used

against him. Agent Callahan, however, refused both requests to make a deal.

       At the conclusion of the government’s evidence, Harmon moved for a

judgment of acquittal, arguing that “there [was] no evidence . . . that [he] had any

intent to deceive any of the people set out in the indictment and did not knowingly

drive or get his grandson to drive” the stolen vehicles across state lines. Reserving

its judgment until “after the jury return[ed] its verdict,” the court found sufficient


       6
        Oswald testified that he, Harmon, and the third person drove these three vehicles to
Harmon’s home, after which they were distributed to various members of Harmon’s family.

                                               7
“information to put the question of whether the defendant knew that the vehicles

were stolen to the jury.” After Harmon chose not to testify, the jury convicted him

of both counts in his indictment.

      Harmon argues on appeal that the government failed to present sufficient

evidence during his trial to support his convictions for conspiracy and interstate

transportation of stolen vehicles. Harmon specifically contends that, although the

government showed that (1) codefendant Stout obtained by deception several

vehicles and caused them to be transported in interstate commerce, (2) Harmon

used some form of worthless negotiable instrument to obtain title over a vehicle in

California and a home in Arkansas, and (3) Harmon was acquainted with Stout, the

government did not prove that Harmon exercised control over a vehicle in the

Northern District of Alabama while knowing it to be stolen. Additionally, Harmon

asserts that Agent Callahan’s testimony on his interview with Harmon—evidence

on which the government relied heavily—also did not show that Harmon acted

with the requisite intent.

      Whether sufficient evidence supports a conviction is a question of law

subject to de novo review. United States v. Alaboud, 347 F.3d 1293, 1296 (11th

Cir. 2003). “In assessing the sufficiency of the evidence, [we] view[] the evidence

in the light most favorable to the government with all reasonable inferences and



                                          8
credibility choices made in the prosecution’s favor.” Id. “A jury’s verdict must be

sustained against such a challenge if ‘any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Jackson

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)).

       To convict under § 2312,7 a provision of the National Motor Vehicle Theft

Act, which is commonly known as the Dyer Act, a jury must find that the

defendant transported in interstate commerce a motor vehicle with knowledge that

it had been stolen. See United States v. Burns, 597 F.2d 939, 942-43 (5th Cir.

1979). To show participation in a conspiracy, such as a § 371 conspiracy,8 the

government must prove that “a conspiracy existed, that the defendant knew of it,

and that the defendant with knowledge, voluntarily joined it.” United States v.

Pineiro, 389 F.3d 1359, 1368 (11th Cir. 2005) (quotation omitted). Thus, as both

parties concede, the government was required to prove for each offense of

conviction at issue here that Harmon acted with knowledge.




       7
         Section 2312 provides that, “[w]hoever transports in interstate or foreign commerce a
motor vehicle or aircraft, knowing the same to have been stolen, shall be fined under this title or
imprisoned not more than 10 years, or both.” See 18 U.S.C. § 2312.
       8
         Section 371 provides that, [i]f 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 under this title or imprisoned not more than five years, or both.”
See 18 U.S.C. § 371.

                                                 9
      In establishing the knowledge necessary to support a § 2312 conviction, the

former Fifth Circuit explained as follows:

      Possession of a stolen automobile shortly after its theft ‘justifies the
      inference that the possession is guilty possession, and, though only
      [p]rima facie evidence of guilt, may be of controlling weight, unless
      explained by the circumstances or accounted for in some way
      consistent with innocence.’

United States v. Lambert, 580 F.2d 740, 743 (5th Cir. 1978). The former Fifth

Circuit further explained in Burns that “the common law logical derivation of this

inference is quite simple. One found in unexplained possession of recently stolen

property likely is the thief or privy to the theft.” Burns, 597 F.2d at 942.

      In Burns, the former Fifth Circuit reviewed a district court’s grant of a

judgment of acquittal after the jury found the defendants guilty of violating the

Dyer Act. See id. at 940. The Burns Court concluded that an inference of guilty

knowledge was triggered by the fact that vehicles stolen in New York were found

in the defendants’ possession in Alabama, within a matter of days of the thefts.

See id. at 945. Based on this inference, along with evidence relating to (1) the

disparity between the price the defendants paid for the vehicles and their retail

values, (2) fictional transactions, (3) forged public vehicle identification numbers

(“VINS”), and (4) marks around the door locks which indicated forcible entries,




                                           10
the Burns Court ultimately vacated the district court’s grant of a judgment of

acquittal. See id. at 945-46.9

       Similarly, in Lambert, the former Fifth Circuit concluded that the

defendants’ receipt of eight vehicles within three days to three weeks from the

dates on which they were stolen from their owners in other states was sufficient to

create an inference that their possession of the vehicles was a guilty possession.

See Lambert, 580 F.2d at 742-43. The Lambert Court further determined that the

defendants failed to rebut this inference by offering evidence that they had paid a

fair and adequate consideration for the automobiles, and by stating that they were

acting under the orders of their employer, who was deceased at the time of the trial.

See id. at 743. Moreover, the Lambert Court found that (1) the transactions were

close and time and method, (1) the title documents on the automobiles were in

disarray, (3) the defendant who testified could not explain the discrepancies in the

bills of sale, and (4) the stolen vehicles had damaged locks and altered VINS. See

id. at 744. The Lambert Court, therefore, concluded that there was sufficient

evidence to support the jury’s guilty verdict against one of the defendants. See id.



       9
          In reaching its determination, the Burns Court noted that the case did not present the
issue, and the Court need not decide, whether proof of the possession of recently stolen property,
without more and irrespective of the remaining evidence, required the same result. See Burns,
597 F.2d at 943 n.7. Because the instant case involved evidence in addition to proof of recently
stolen property, we also need not decide this issue.

                                                11
       In proving the requisite knowledge for a conspiracy offense, the government

may show knowing participation in the conspiracy through either circumstantial or

direct evidence, and it need only prove that the defendant knew of the general

nature and scope of the conspiracy. Pineiro, 389 F.3d at 1368. “Although not

controlling, presence and association are material and probative factors that a jury

may consider in reaching its verdict.”10 United States v. Lluesma, 45 F.3d 408,

410 (11th Cir. 1995). Id. “A jury may infer knowledgeable voluntary participation

from presence, when the presence is such that it would be unreasonable for anyone

other than a knowledgeable participant to be present.” Id. Thus, we concluded in

Lluesma that the evidence was sufficient for a reasonable jury to conclude that one

of the defendants understood that shipping containers with stolen equipment were

being exported to Venezuela when (1) a co-conspirator testified that everyone

knew that the items were going to be exported, and that the co-conspirator had

talked to the defendant about a high-level co-conspirator who had made money

from exporting goods; and (2) the warehouse used to store these containers was

located in a neighborhood with other import/export businesses. See id.



       10
          In Pineiro, we further explained that “[i]t is well-settled that the existence of an
agreement in a conspiracy case is rarely proven by direct evidence that the conspirators formally
entered or reached an agreement. . . . The more common method of proving an agreement is
through circumstantial evidence.” See Pineiro, 389 F.3d at 1369 (quotation and internal marks
omitted).

                                               12
      In the instant case, Harmon admitted to being in possession of the vehicles

he transported or caused to be transported from Alabama to Arkansas in December

2001—the same month that they were stolen from Stuckey and Oakes. Thus,

similar to the facts in Burns and Lambert, an inference of guilty knowledge

existed. See Burns, 597 F.2d at 945, Lambert, 580 F.2d at 742-43. Moreover,

Harmon admitted to Agent Callahan that he knew that these two vehicles were

obtained through “negotiable instruments.”

      Although Harmon argues that he did not know that these “negotiable

instruments” were not legitimate, this argument is belied by David Stout’s

testimony that, after Harmon attempted to use one of Sovereign Accounting’s

“negotiable instrument” to purchase David Stout’s house in Arkansas, and after the

mortgage was never paid, David Stout complained to Harmon and ultimately

received a favorable verdict in a lawsuit against him. Younce similarly testified

that, after she determined that the Sovereign Accounting “negotiable instrument”

that Harmon had used in purchasing a vehicle she and her husband owned in

California was worthless, she repeatedly complained of this fact to Harmon. Thus,

even if Harmon did not know that these “negotiable instruments” were worthless

before he attempted to use them to make these purchases, he subsequently learned

of this fact. Indeed, when Agent Callahan questioned Harmon about the vehicle he



                                         13
had purchased in California, Harmon replied that he was afraid to answer because

he believed that the evidence would be incriminating.

      Additionally, to the extent that Harmon’s appeal can be construed as

challenging whether sufficient evidence was produced to show that his

participation in the conspiracy was knowing, the government introduced testimony

from Hood that Stout gave the Hoods Harmon’s home phone number to contact if

they had difficulties with the sale, and that Hood subsequently talked to a person

with Harmon’s same first name. In explaining Stout’s “business” activities, Lillard

testified that Harmon served on Sovereign Accounting’s “board,” and he

participated in a training session Sovereign Accounting conducted in early 2000, to

teach other persons how to use its “negotiable instruments.” The government also

introduced a videotape of this training session, depicting Harmon as a person with

authority in Sovereign Accounting and from whom other persons had to obtain

permission to conduct “business.” See Lluesma, 45 F.3d at 410 (explaining that

“presence and association are material and probative factors that a jury may

consider in reaching its verdict”). Moreover, Harmon conceded to Agent Callahan

that he knew that multiple vehicles that Stout had stored at Harmon’s residence had

been obtained through “negotiable instruments,”along with asking Agent Callahan

for a promise not to use evidence about these vehicles if Harmon returned them.



                                         14
      Accordingly, we conclude that a reasonable trier of fact, viewing the

evidence in the light most favorable to the government, could have found, beyond

a reasonable doubt, both that Harmon knew the vehicles he transported or caused

to be transported in interstate commerce were stolen, and that he knowingly

participated in a conspiracy to commit interstate transportation of stolen vehicles.

Thus, Harmon’s §§ 371 and 2312 convictions were supported by sufficient

evidence. We, therefore, affirm.

      AFFIRMED.




                                          15
