UNITED STATES v SCOTTY JOE UDER
____________
No. 95-3513
____________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri
Scotty Joe Uder, *
*
Appellant. *
____________
Submitted: March 15, 1996
Filed: October 18, 1996
____________
Before McMILLIAN, BEAM and HANSEN, Circuit Judges.
____________
McMILLIAN, Circuit Judge.
Scotty Joe Uder appeals from a final judgment entered in the
United States District Court(1) for the Western District of Missouri,
upon a jury verdict finding him guilty on one count of conducting
operations in a chop shop, in violation of 18 U.S.C. SS 2322(a)(1).
The district court sentenced Uder to twenty-one months
imprisonment, three years supervised release, and special
assessment of $50.00. For reversal, Uder argues that the district
court (1) erred in informing the jury that some of the government
witnesses had pled guilty; (2) erred in denying his motion for
judgment of acquittal based upon insufficiency of the evidence;
(3) committed plain error in failing to enter judgment of acquittal
based upon a double jeopardy violation; (4) clearly erred in
finding that Uder's role in the offense was not minor under
U.S.S.G. SS 3B1.2; (5) abused its discretion by failing to depart
downward based upon an overstated criminal history under U.S.S.G.
SS 4A1.3; and (6) abused its discretion by failing to depart
downward based upon extraordinary physical impairment under
U.S.S.G. SS 5H1.4. For the reasons discussed below, we affirm.
Background
On October 20, 1994, Uder, along with seven other individuals,
was charged in an eight-count indictment. Uder was charged in two
of the counts, one alleging that he and his co-defendants knowingly
operated a chop shop in violation of 18 U.S.C. SS 2322(a)(1),(2)
(b),(3)
and the other alleging that he and four of his co-defendants
knowingly tampered with and altered the vehicle identification
number on a stolen car, in violation of 18 U.S.C. SS 511. By the
time of trial on July 19, 1995, all of Uder's co-defendants had
entered into plea or cooperation agreements with the government,
and Uder was the only defendant left to stand trial.
The government called ten witnesses for its case in chief,
including several of Uder's former co-defendants. According to the
government witnesses, Uder worked at an auto body shop in Fair
Grove, Missouri, which operated under the name Heavy Truck and Car
Sales and was owned and operated by an individual named Lloyd Dale
Hightower. In November of 1993, Hightower was serving time in a
federal prison for possession of methamphetamine with intent to
distribute and conspiracy to transport stolen cars. Nevertheless,
Hightower was able to direct illegal operations and related
activities at the shop through an associate, Robert Moon, and
Hightower's wife, Margaret Eaves (formerly Margaret Hightower), who
lived next door to the shop. Hightower would allegedly purchase a
salvaged vehicle at minimal cost, have the car cut up for parts
while keeping the frame, then have the body of a stolen car
assembled on the frame of the salvaged car, and have the vehicle
identification number plates from the salvaged car switched to the
stolen car. He would then sell the rebuilt car at a substantial
profit. (This practice is referred to as "body swinging" or
"swinging.") The government's evidence indicated that during the
winter of 1993-1994, as part of Hightower's operation, a salvaged
1993 Suburban was legitimately purchased in Louisiana. The 1993
Suburban was cut up for parts at Hightower's shop and the frame
salvaged. Then, a stolen 1994 Suburban was rebuilt on the salvaged
frame and was retagged to bear the vehicle identification number
and other identifying parts from the 1993 model.
One of the government witnesses, Mike Willis, testified that
he worked at Hightower's shop but did legitimate body work. He
testified that, on January 1, 1994, he was visiting in Eaves' home.
Based upon his observations and what he heard, he became suspicious
of the activities that were taking place next door at the shop.
The next day he left a message with FBI agent Al Stiffler to report
that a "swing" of a Suburban was in progress at Hightower's shop.
Willis implicated Hightower, Eaves, and Moon, and testified that a
man referred to as "Robert" was apparently also involved in the
"swing." The following day, Willis saw Stiffler and a state patrol
officer at the shop.
Moon, who had originally been charged in the indictment,
testified under a plea agreement that during 1993 and 1994 he was
in the business of stealing cars for chop shops, including
Hightower's. He testified that, in October or November of 1993
(before Hightower's incarceration), he saw Hightower obtain the
1993 Suburban and he saw the car chopped up and the vehicle
identification number being saved. The frame and engine were taken
to an auto frame shop owned by Chris Brown, in Lebanon, Missouri,
to have the frame straightened. After Hightower was incarcerated,
he allegedly agreed to pay Moon $2,000.00 to steal a Suburban and
change the bodies before selling it. Moon further testified that
he and Charles Berry Roberson (apparently the person whom Willis
heard referred to as "Robert") stole the 1994 Suburban. Moon then
hired Mat Lowrance and Uder (who were associated with another auto
body chop shop called Auto Mart, which was owned by Kenny Smith),
to do the body work on the Suburbans for $600 each. The salvaged
frame was brought to Hightower's shop from Lebanon. Over the
course of January 1 and January 2, 1994, Uder and Lowrance
completed the body work for the "swing," with the exception of a
broken distributor that needed replacing, and transferred the
vehicle identification number and other identifying plates to the
newly rebuilt car. The next day, January 3, 1994, Uder and
Lowrance were returning to fix the broken distributor when they
were waved off as they approached Hightower's shop, apparently
because the police were there. They, in turn, also waved off Moon
as he approached the shop. Consequently, Uder and Lowrance did not
replace the broken distributor as planned. That evening, Lowrance,
Uder, and Moon allegedly met at the Auto Mart in Lebanon, Missouri.
Kenny Smith and one of his employees, Frank Rodden, were also
present. Afterward, Uder allegedly removed from Hightower's shop
some of the parts that had been taken out of the interior of the
salvaged Suburban, and he delivered those parts to Kenny Smith, who
had bought them from Eaves.
Other witnesses testifying for the government under a plea
agreement or a grant of immunity were Roberson (who had allegedly
helped steal the 1994 Suburban), Lowrance (who, with Uder,
allegedly did the body work for the "swing"), Rodden (an employee
of Kenny Smith at the Auto Mart), and Eaves (Hightower's wife).
They generally corroborated the story told by Moon. The government
also called as trial witnesses the owner of the stolen 1994
Suburban, law enforcement officers who were involved in the
investigation (including FBI agent Stiffler), and an expert who
testified about how chop shops operate.
After the government rested, Uder moved for a directed verdict
or judgment of acquittal on grounds of insufficiency of the
evidence. The motion was denied. Uder rested without presenting
any further evidence. Uder timely objected to several of the jury
instructions given by the district court, including Instruction No.
13. The case was then submitted to the jury following closing
arguments. The jury found Uder guilty of knowingly operating a
chop shop and not guilty of knowingly tampering with or altering a
vehicle identification number.
The presentence investigation report (PSR) determined that
Uder's total offense level was 14, his criminal history category
III (based upon 5 criminal history points), and the relevant amount
of loss between $20,000 and $40,000 (representing the retail value
of the stolen 1994 Suburban). Uder filed objections to the PSR,
seeking a downward adjustment for minor role in the offense
(U.S.S.G. SS 3B1.2); a downward departure on grounds that his
criminal history was overstated (U.S.S.G. SS 4A1.3); and a downward
departure on grounds that his cystic fibrosis constituted an
extraordinary physical impairment (U.S.S.G. SS 5H1.4). The
district court rejected Uder's objections and adopted the
recommendations in the PSR. Uder was sentenced to twenty-one
months imprisonment, three years supervised release, and a $50.00
special assessment. Uder appealed.
Discussion
Jury instruction referring to witnesses' guilty pleas
Uder argues on appeal that the district court erred in giving
the following Instruction No. 13:
You have heard evidence that Robert Moon, Charles
Barry Roberson, Frank Rodden, and Matthew Lowrance have
made plea agreements with the government and that
Margaret Eaves has received a promise from the
government that her testimony will not be used against
her in a criminal case. Their testimony was received in
evidence and may be considered by you. You may give
their testimony such weight as you think it deserves.
Whether or not their individual testimony may have been
influenced by the plea agreements or the government's
promise is for you to determine.
Each of these witnesses' guilty pleas cannot be
considered by you as any evidence of this defendant's
guilt. The individual witness's guilty plea or promise
from the government can be considered by you only for
the purpose of determining how much, if at all, to rely
upon the individual witness's testimony.
Uder tendered, as an alternative instruction, his proposed
Instruction A, which stated:
You have heard testimony from Robert Moon, Charles
Barry Roberson and Matthew Lowrance who stated that they
participated in the crime charged against defendant.
Their testimony was received in evidence and may be
considered by you. You may give their testimony such
weight as you think it deserves. Whether or not such
testimony may have been influenced by their desire to
please the government or strike a good bargain with the
government about his own situation is for you to
determine.
On appeal, Uder asserts that the question for this court is
whether the challenged jury instruction represents a complete
statement of the law and is supported by the evidence. Brief for
Appellant at 19. However, we note that the substance of Uder's
objection to Instruction No. 13 is not that the instruction was an
incomplete or incorrect statement of the law. Rather, Uder argues
that, by giving Instruction No. 13, the district court allowed the
prosecution to "bolster" its witnesses because the instruction
unduly emphasized the fact that the witnesses had already pled
guilty. Id. at 20. Uder contends that this information was
particularly damaging because it was delivered by the trial judge
through the jury instructions; therefore, he argues, the conviction
should be reversed. Id.
In response, the government argues that it was within the
sound discretion of the district court to remove from the jury any
consideration of the witnesses' guilty pleas as substantive
evidence, and therefore Instruction No. 13 was proper. Even if the
instruction was not properly given, the government argues, the
error was harmless under the applicable standard set forth in Rule
52(a) of the Federal Rules of Criminal Procedure. United States v.
Ryan, 41 F.3d 361, 366 (8th Cir. 1994) (en banc) (properly objected
to jury instructions are analyzed under the harmless error standard
in Rule 52(a)) (citing United States v. Voss, 787 F.2d 393, 398
(8th Cir.), cert. denied,
479 U.S. 888
(1986)), cert. denied, 115
S. Ct. 1793 (1995).
Upon review, we hold that the district court properly
instructed the jury that they could consider the witnesses' guilty
pleas for the purpose of determining the weight to afford those
witnesses' testimony, but not as substantive evidence of Uder's
guilt. In United States v. Kroh, this court explained that "[i]n
the Eighth Circuit, the law is clear that `a confederate's guilty
plea is admissible, even on the Government's direct examination of
the witness, as evidence of the witness's credibility, or of his
[or her] acknowledgement of participation in the offense.'" 915
F.2d 326, 331 (8th Cir. 1990) (en banc) (quoting United States v.
Hutchings, 751 F.2d 230, 237 (8th Cir. 1984), cert. denied,
474
U.S. 829
(1985)) (emphasis in original). This court then stated
"[t]he witness's plea or evidence thereof, however, 'cannot be used
as substantive evidence of the defendant's guilt,' and the jury
should be so instructed." Kroh, 915 F.2d at 331 (quoting
Hutchings, 751 F.2d at 237) (emphasis added). See also United
States v. Willis, 997 F.2d 407, 414 (8th Cir. 1993) (same), cert.
denied,
510 U.S. 1050
(1994); United States v. Misle Bus & Equip.
Co., 967 F.2d 1227, 1233 (8th Cir. 1992) (same).
United States v. Stevens, 918 F.2d 1383, 1385 (8th Cir. 1990),
is also instructive. In Stevens, the defendant challenged a jury
instruction which was almost identical to the instruction at issue
in the present case. Rather than object to the admission of
evidence indicating that a government witness had pled guilty, the
defendant in Stevens challenged the district court's instruction
which cautioned the jury only to consider the guilty plea in
relation to the weight to be afforded the witness's testimony, not
as substantive evidence of the defendant's guilt. Id. The jury
instruction in Stevens stated in pertinent part:
In deciding what the facts are, you may have to
decide what testimony you believe and what testimony you
do not believe. You may believe all of what a witness
said, or only part of it, or none of it.
. . . .
You have heard evidence that one of the
government's witnesses has pleaded guilty to a crime
which arose out of the same events for which the
defendant is on trial here. That guilty plea cannot be
considered by you as evidence of the defendant's guilt.
The witness's guilty plea can be considered by you only
for the purpose of determining how much, if at all, to
rely upon that witness's testimony.
Likewise, you have heard evidence that some of the
witnesses have made plea agreements with the government.
You may give the testimony of those witnesses such
weight as you think it deserves. Whether or not their
testimony may have been influenced by their plea
agreements is for you alone to determine.
Id. The defendant in Stevens argued that the district court should
have additionally stated that such testimony "should be considered
with greater caution and care than that of an ordinary witness."
Id. Upon review, we first explained that "[a] district court has
wide discretion in formulating appropriate jury instructions, and
we evaluate the adequacy of the instructions by reviewing them as
a whole." Id. (citing United States v. McQuarry, 726 F.2d 401, 402
(8th Cir. 1984)). We then went on to hold that the district court
had "adequately called to the jury's attention the factors which
may have affected [the witness's] credibility." Id. We thus
concluded that the district court did not abuse its discretion in
refusing to modify its instruction in the manner requested by the
defendant. Id.
In the present case, we review the district court's
formulation of Instruction No. 13 for an abuse of discretion. At
the time the district court gave Instruction No. 13, the jury had
already heard testimony regarding the guilty pleas and plea
agreements of some of the government witnesses. Under these
circumstances, it was appropriate for the district court to give a
specific instruction regarding the proper limitations on the jury's
consideration of that evidence. Indeed, notwithstanding Uder's
proposed alternative Instruction A, we think the district court
would have erred had it failed to instruct the jury that the
witnesses' guilty pleas could not be considered as evidence of
Uder's guilt. We therefore hold that the district court certainly
did not abuse its discretion.
Sufficiency of the evidence
Uder also argues that the evidence was insufficient as a
matter of law to support the jury's guilty verdict on the count
charging him with conducting operations in a chop shop, in
violation of 18 U.S.C. SS 2322(a)(1). Uder contends that the
government's evidence was insufficient because it failed to
establish that he knew that the 1994 Suburban was stolen or
otherwise unlawfully obtained. Uder maintains that this was an
element of the government's burden of proof, based upon the
definition of "chop shop" contained in 18 U.S.C. SS 2322(b). Uder
argues "there is no direct evidence that [he] knew the vehicle was
stolen," and "[t]here is conflicting evidence from which inferences
might be drawn which is [sic] as consistent with innocence as
guilt." Brief for Appellant at 13-14.
In response, the government argues that it was only required
to prove that Uder acted knowingly in conducting operations of the
chop shop, not that he had specific knowledge of the facts which
made the chop shop fall within the statutory definition. On this
point, the government compares 18 U.S.C. SS 2322 to 18 U.S.C.
SS 1955(a) (the federal illegal gambling business law). For
example, the government contends, the mere "wrench man" is
criminally responsible for a chop shop's operations even though he
may not personally know the unlawful origin of a particular vehicle
or the intended disposition of the vehicle. In the alternative,
the government argues that, even if it were required to prove
Uder's knowledge that the 1994 Suburban was stolen, there was ample
evidence supporting such an inference.
Although we do not necessarily agree with the government's
assertion that "[a]ny degree of participation in a chop shop, other
than as customer, should be within the 'conduct' provision of
SS 2322(a)," Brief for Appellee at 32, we conclude that the
evidence of intent was sufficient to support the jury's verdict in
the present case. Because we hold that the evidence overwhelmingly
supported a finding of guilty knowledge under any reasonable
interpretation of the jury instruction setting forth the elements
of the offense(4) (which Uder has not challenged), we find it
unnecessary at this time to define the exact scope of the intent
element of 18 U.S.C. SS 2322(a)(1).
In reviewing a challenge for sufficiency of the evidence, we
view the evidence in the light most favorable to the government,
giving it the benefit of all reasonable inferences that support the
jury verdict. United States v. Robaina, 39 F.3d 858, 863 (8th Cir.
1994). The verdict must be upheld if there is an interpretation of
the evidence that would allow a reasonable jury to conclude guilt
beyond a reasonable doubt. Id. Decisions regarding the
credibility of witnesses are to be resolved in favor of the jury's
verdict. United States v. Schnurstein, 977 F.2d 449, 453 (8th Cir.
1992). With these standards in mind, we hold that the evidence in
the present case was more than legally sufficient to prove that
Uder knew the work being done in Hightower's shop, in which he
participated, involved the alteration of a motor vehicle which had
been unlawfully obtained. In fact, the reasonable inferences to be
drawn from the testimony of several of the government witnesses,
including Moon and Lowrence, for example, were more than legally
sufficient to support the conclusion that Uder knew the 1994
Suburban had been stolen. Therefore, we hold that the district
court did not err in denying Uder's motion for directed verdict or
judgment of acquittal.
Double jeopardy claim
Uder separately argues that the government's case against him
violated his double jeopardy rights because one count on which he
was indicted, the vehicle identification number tampering count,
required proof of conduct that satisfied the other count on which
he was indicted, the chop shop count. Where, as here, two such
counts involve the same vehicle and the same alleged conduct, Uder
argues, double jeopardy rights are implicated. In response, the
government first notes that this issue was not preserved below and,
thus, review is for plain error. On the merits, the government
argues that Uder's rights were not violated under any double
jeopardy standard, including the Blockburger(5) test. We agree.
In the present case, Uder was charged under 18 U.S.C. SS 511,
for altering the vehicle identification numbers on a stolen car,
and under 18 U.S.C. SS 2322(a)(1), for knowingly conducting
operations in a chop shop. Although the two counts were generally
based upon the same conduct, the violation charged under SS 511 was
not a lesser included offense of the violation charged under
SS 2322. The SS 511 count charged Uder with altering or removing
a vehicle identification number, whereas the SS 2322 count charged
him with acting to alter, destroy, remove, etc., the identity
(which may have involved, but did not necessarily involve, the
vehicle identification number) of a passenger motor vehicle or
motor vehicle part for the purpose of disguising, etc., the vehicle
or part. Moreover, under the Blockburger test, each charged
offense included an element that the other did not. The charged
SS 2322 violation required a purposeful effort to disguise a
vehicle, which the SS 511 violation did not. The charged SS 511
violation required actual alteration or removal of a vehicle
identification number, which the SS 2322 violation did not. We
therefore hold that no double jeopardy violation occurred. It
follows that there was no plain error.
Minor role in the offense
Uder also argues that the district court erred in failing to
give him a two-level sentencing reduction on the ground that he was
a minor participant within the meaning of U.S.S.G. SS 3B1.2. Uder
concedes that the district court properly limited its factual
considerations to the unlawful activities involved in the Suburban
"swing." He argues, however, that his role in that process as a
whole was minor because it was limited to doing only some of the
body work. He points out that he did not steal the 1994 Suburban,
nor would he have been involved in the resale of the reassembled
vehicle.
We review for clear error the district court's finding that
Uder was not a minor participant under SS 3B1.2. We agree with the
district court that he was not less culpable than most of the other
participants who were involved in the "swing." Uder and Lowrance
spent two days reassembling the body of the stolen 1994 Surburban
on the salvaged frame of the 1993 Suburban. In our opinion, it is
fair to say that he was at least an average participant with
respect to the Suburban "swing." Cf. United States v. Shaw, 94
F.3d 438, 443-44 (8th Cir. 1996) (where defendants were convicted
on one count of using the telephone to commit drug-related
offenses, but not for the larger drug-related conspiracy, the
district court did not clearly err in denying them a SS 3B1.2
reduction; even though they may have been minor participants in
drug-related conspiracy, they were "average" rather than minor
participants in the illegal telephone use); see also United States
v. Miller, 56 F.3d 719, 720-21 (6th Cir. 1995) (where defendant had
pled guilty to conspiracy to operate a chop shop under 18 U.S.C.
SS 2322(a) and other related vehicle crimes, the district court did
not clearly err in finding that defendant was not a minor
participant under U.S.S.G. SS 3B1.2, even though defendant's role
was limited to assisting in dismantling vehicles). We therefore
hold that the district court's finding was not clearly erroneous.(6)
(6)We note that the government has cited United States v. Lucht,
18 F.3d 541, 555-56 (8th Cir.), cert. denied, 115 S.Ct. 363
(1994), for the general proposition that "[a] defendant is not
entitled to reduction of sentence pursuant to U.S.S.G. SS3B1.2 on
the grounds that he played a minor or minimal role in a greater
offense, where the greater offense is not taken into account in
setting the base offense level." Brief for Appellee at 43. We
caution that Lucht's reference to the base offense level must be
read in the context of that case. Lucht involved a drug offense
and, therefore, under U.S.S.G. SS2D1.1, the base offense level
specifically incorporated a drug quantity determination. By
contrast, in the present case, Uder's base offense level would have
been 8 pursuant to U.S.S.G. SS2B6.1(a), regardless of the value of
the loss taken into account for sentencing purposes. The amount of
loss in the present case affected Uder's specific offense
characteristics, not his base offense level. Under the applicable
guideline provisions, the district court was required to make a
finding as to the retail value of vehicles or parts involved in the
offense, which could have resulted in an increase ranging from 0 to
18 levels. U.S.S.G. SS2B6.1(b)(1) (specific offense character-
istics incorporating increases set forth in U.S.S.G. SS2F1.1).
Depending on the nature of the offense and the applicable guideline
provisions, the courts may in some instances look to factors other
than those affecting the base offense level -- such as the factors
affecting the specific offense characteristics -- to decide whether
a reduction under SS3B1.2 applies. In other words, if, in the
present case, the district court had increased Uder's offense level
under SS2B6.1(b)(1) on the basis of all the vehicles and parts
involved in Hightower's entire chop shop scheme, we think that
Uder's role in that larger scheme would frame the relevant inquiry
for purposes of applying SS3B1.2. However, the district court's
specific offense characteristic determinations were as follows:
Uder received a four-level increase under SS2B6.1(b)(1) on the
basis of the retail value of the stolen 1994 Suburban only; Uder
did not receive a two-level increase under SS2B6.1(b)(2) for being
in the business of receiving and selling stolen property; and
Uder's offense level was increased to 14 under SS2B6.1(b)(3)
because the "swing" involved an organized scheme to steal vehicles
or vehicle parts. Therefore, the relevant aspects of Uder's
guidelines calculation were solely based upon those operations
related to the "swing" of the Suburbans, which confirms our
conclusion that the district court correctly applied SS3B1.2,
notwithstanding the legal distinction we have drawn between this
case and Lucht.
Downward departure issues
Finally, Uder argues that the district court abused its
discretion at sentencing by failing to depart downward based upon
an overstated criminal history under U.S.S.G. SS 4A1.3, and it
further abused its discretion by failing to depart downward based
upon extraordinary physical impairment under U.S.S.G. SS 5H1.4. As
to both of these issues, we note that the district court was aware
of its authority to grant a downward departure, but declined to do
so. Under these circumstances, we lack authority to review the
district court's exercise of its discretion not to depart. See
United States v. Hall, 7 F.3d 1394, 1396 (8th Cir. 1993) (where
district court was aware of its authority to depart, appellate
court lacks authority to review district court's exercise of
discretion not to depart downward under SS 4A1.3); United States v.
Fischl, 16 F.3d 927, 929 (8th Cir. 1994) (where district court was
aware of its authority to depart, appellate court lacks authority
to review district court's exercise of discretion not to depart
downward under SS 5H1.4).
Conclusion
For the foregoing reasons, the judgment of the district court
is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
**FOOTNOTES**
(1)
The Honorable Russell G. Clark, United States District Judge
for the Western District of Missouri.
(2)
Subsection 2322(a)(1) provides in pertinent part:
(a) In general.--
(1)
Unlawful action. Any person who knowingly
owns, operates, maintains, or controls a chop shop or
conducts operations in a chop shop shall be punished by
a fine under this title or by imprisonment for not more
than 15 years, or both.
(3)
Subsection 2322(b) provides:
(b) Definition. For purposes of this
section, the term "chop shop" means any
building, lot, facility, or other structure
or premise where one or more persons engage
in receiving, concealing, destroying,
disassembling, dismantling, reassembling, or
storing any passenger motor vehicle or
passenger motor vehicle part which has been
unlawfully obtained in order to alter,
counterfeit, deface, destroy, disguise,
falsify, forge, obliterate, or remove the
identity, including the vehicle
identification number or derivative thereof,
of such vehicle or vehicle part and to
distribute, sell, or dispose of such vehicle
or vehicle part in interstate or foreign
commerce.
(4)
The district court instructed the jury that the government had
the burden to prove beyond a reasonable doubt that: "One, the
defendant, during the period alleged, conducted operations in a
chop shop; and, Two, the defendant did so knowingly." Appendix at
5 (Instruction No. 14). The district court further instructed the
jury that
the term 'chop shop' means any building, lot, facility,
or other structure or premise where one or more persons
engage in receiving, concealing, destroying,
disassembling, dismantling, reassembling, or storing any
passenger motor vehicle or passenger motor vehicle part
which has been unlawfully obtained in order to alter,
counterfeit, deface, destroy, disguise, falsify, forge,
obliterate, or remove the identity, including the
vehicle identification number or derivative thereof, of
such vehicle or vehicle part and to distribute, sell, or
dispose of such vehicle or vehicle part in interstate or
foreign commerce.
Id. at 6 (Instruction No. 15).
(5)
Blockberger v. United States,
284 U.S. 299
(1932).