United States Court of Appeals

For the Eighth Circuit

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No. 14-3828

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Kenneth Ray Borders

lllllllllllllllllllll Defendant - Appellant

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No. 15-1648

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Jon Dirk Dickerson, also known as Dirk

lllllllllllllllllllll Defendant - Appellant

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No. 15-1651

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United States of America

lllllllllllllllllllll Plaintiff - Appellee
v.

Kyle Wayne Dickerson

lllllllllllllllllllll Defendant - Appellant

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Appeals from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: March 16, 2016

 Filed: July 12, 2016 

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Before WOLLMAN, BENTON, and SHEPHERD, Circuit Judges.

____________

BENTON, Circuit Judge.

Kenneth Ray Borders, Jon Dirk Dickerson, and Kyle Wayne Dickerson appeal

their convictions for crimes involving stolen goods and vehicles. At trial, the

government proved a conspiracy, beginning in about 1998, to steal commercial trucks,

trailers, and cargo, and alter vehicle identification information. Jon owned and

operated several trucking companies, including Night Line Trucking; his son Kyle

worked at the companies and partly owned Night Line Trucking. Jon would give

Borders “shopping lists” of trucks and trailers to steal. Borders stole and sold the

vehicles and trailers to the Dickersons. Borders also sold stolen cargo to other

customers and stored stolen property at a storage unit paid for by the Dickersons. A

government witness, Jaccard Fears, testified to working for the Dickersons for two

years, falsifying paperwork at their direction, going on scouting missions with

Borders, and helping Borders clean stolen trucks. Another witness testified that Jon

siphoned fuel at night, stole license plates and fuel tax stickers in order to create false

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registration and insurance documents, and directed him to steal a truck. The witness

also testified Kyle removed VIN plates and cut up trailers to sell for scrap. 

A jury convicted Borders of conspiracy, aiding and abetting the transportation

of stolen goods, and aiding and abetting the possession of stolen vehicles. The jury

convicted Jon and Kyle of conspiracy, aiding and abetting the possession of stolen

goods, and aiding and abetting the possession of stolen vehicles. Borders was

sentenced to 262 months, Jon 188 months, and Kyle 110 months in prison. Having

jurisdiction under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and

remands. 

I.

Defendants challenge the finding of a single conspiracy, arguing the district

court should have granted judgment of acquittal due to a variance, or instructed the

jury on multiple conspiracies. Because Defendants did not raise this issue at trial, this

court reviews for plain error. United States v. Buckley, 525 F.3d 629, 633 (8th Cir.

2008). Plain error means an error that is clear under current law, caused prejudice,

and seriously affected the fairness, integrity, or public reputation of judicial

proceedings. United States v. Delgado, 653 F.3d 729, 735 (8th Cir. 2011), citing

United States v. Olano, 507 U.S. 725, 732 (1993). 

A single conspiracy requires “one overall agreement.” United States v.

Morales, 113 F.3d 116, 119 (8th Cir. 1997). It “is not proved by a mere overlap of

personnel or knowledge of another’s illegal conduct. Rather, to prove that individual

agreements among separate conspirators were made to advance a single enterprise, the

government must show that the conspirator each were motivated by a common

purpose.” United States v. Peyro, 786 F.2d 826, 829 (8th Cir. 1986) (internal citations

omitted). “A variance results where a single conspiracy is charged but the evidence

at trial shows multiple conspiracies.” Morales, 113 F.3d at 119. This court considers

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the totality of the circumstances, including the nature of the activities, their location,

time frame, participants involved. Id.

The totality of the circumstances supports the single conspiracy finding. The

government presented evidence that, from about 1998 until 2012, Jon would give

Borders a shopping list of trucks and trailers to steal; Borders would steal them; and

Kyle would remove the VIN numbers to prevent police detection. 

Defendants argue the special jury verdict forms demonstrate a variance. Special

verdict forms required the jury to find each defendant’s purposes in carrying out the

conspiracy. For all Defendants, the jury marked possession of stolen vehicles (18

U.S.C. § 2313) and possession of stolen goods (§ 2315). For Borders, the jury also

marked transportation of stolen goods (§ 2314), and for the Dickersons, the jury

marked altering or removing motor vehicle identification numbers (§ 511). According

to Defendants, the special verdict forms show the jury found two conspiracies: (1)

between Borders and the Dickersons to possess stolen vehicles and goods, and (2)

between the Dickersons to alter and remove VIN numbers. Under plain error review,

it is not enough for Defendants to present a plausible argument for the existence of an

error. Rather, the error must be “clear under current law.” Delgado, 653 F.3d at 735,

citing Olano, 507 U.S. at 732. Defendants have not demonstrated it is clear under

current law that special verdict forms are alone sufficient to establish a variance,

especially when the jury also finds the defendants guilty of a single conspiracy. 

The jury could reasonably find a single conspiracy existed and each defendant

a knowing member of it. 

II. 

Kyle contests the convictions of four aiding and abetting charges. This court

reviews de novo the sufficiency of the evidence, drawing all reasonable inferences in

favor of the verdict. United States v. Nguyen, 758 F.3d 1024, 1029 (8th Cir. 2014). 

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An aiding and abetting conviction requires the government to prove a defendant took

an affirmative act to further the underlying criminal offense, with the intent of

facilitating the offense. Rosemond v. United States, 134 S. Ct. 1240, 1245 (2014). 

“An intent to advance some different or lesser offense is not, or at least not usually,

sufficient: Instead, the intent must go to the specific and entire crime charged. . . .” 

Id. at 1248. The government may use circumstantial evidence. United States v.

Duranseau, 26 F.3d 804, 809 (8th Cir. 1994). 

In Count 2, the jury convicted Kyle of aiding and abetting the unlawful

transportation of a stolen vehicle from Missouri to Florida. Borders stole the truck,

and Fears and a broker arranged its transportation. However, Fears testified that he

acted under Kyle’s authorization—“I was given permission by Jon and Kyle to book

freight under Nightline and D&T.” The broker paid “K. Wayne Dickerson” for

shipping the load. And, two investigators spoke with Kyle on the phone about the

truck. Viewed in the light most favorable to the verdict, this evidence is sufficient to

support the conviction.

In Count 18, 20, and 25, the jury convicted Kyle for aiding and abetting the

possession of stolen goods and vehicles, found during a search of a storage unit rented

by Jon and Kyle. Kyle contends he did not know that stolen goods and vehicles were

being stored at the unit. The government’s only contrary evidence is that Kyle rented

the unit and had a key. This is insufficient to support the conclusion that Kyle took

an affirmative act with the intent to aid in the storage of stolen goods and vehicles. 

See Rosemond, 134 S. Ct. at 1248.

The conviction for Count 2 is affirmed. The convictions for Counts 18, 20, and

25 are vacated.

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III.

Defendants challenge several evidentiary rulings, which are reviewed for abuse

of discretion. See United States v. Jackson, 67 F.3d 1359, 1366 (8th Cir. 1995). 

A.

Defendants argue the district court erred in admitting evidence of Department

of Transportation civil violations by the Dickersons. The government submitted

evidence that the Dickersons used unsafe trucks, failed to drug-test drivers, and failed

to pay fines, resulting in several cease-and-desist orders. The government also

submitted a Record Consolidation Order, finding Jon Dickerson operated numerous

businesses under different identities to avoid complying with DOT orders. The

Consolidation Order was issued in July 2013—six months after the indictment. 

According to the government, the evidence was relevant to establish the

Dickersons’ tendency to abuse their trucks, creating the need for Borders to steal other

trucks. However, evidence of civil violations cannot be used to prove criminal

liability, making the question one of undue prejudice, not relevance. See United

States v. Parker, 364 F.3d 934, 942 (8th Cir. 2004) (“The paramount concern for the

trial judge . . . is not one of relevancy, because . . . evidence of civil violations is

clearly relevant insofar as a defendant’s knowledge and violation of the regulations

are relevant to show intent and motive. Instead, the question is one of undue

prejudice.”). See also United States v. Hilliard, 31 F.3d 1509, 1516 (10th Cir. 1994)

(“Although the evidence concerning a civil violation may be used to prove knowledge

or intent, it may not be used to prove criminal liability.”). Admission of civil

violations is permissible if the district court takes “painstaking care to guard against

the possibility that the defendant would be convicted of a federal crime because he

violated civil violations.” Parker, 364 F.3d at 943 (noting the district court had

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“explicitly admonished the jury that the trial was ‘not a lawsuit claiming violation of

the Federal Trade Commission, FTC, requirements’”). 

Here, the record shows no such painstaking care. Instead, with no limiting

instruction, the district court allowed the government to discuss the violations in

opening and closing arguments and spend almost the entire first day of trial

questioning witnesses about the violations. The jury heard testimony about more than

100 incidents involving DOT violations. This was error. However, “[a]n erroneous

evidentiary ruling is harmless . . . if it did not have a substantial influence on the jury’s

verdict.” United States v. Adejumo, 772 F.3d 513, 525 (8th Cir. 2014). Even without

the civil violations evidence, the government presented substantial evidence to support

the convictions for Jon, Kyle, and Borders.

Any error in admitting the civil violations evidence was harmless. 

B. 

Borders and Jon Dickerson argue the district court abused its discretion by

limiting cross-examination on the benefits received by cooperating witnesses. The

Confrontation Clause of the Sixth Amendment guarantees a defendant’s right to

confront witnesses against him. “The primary purpose of this right is to guarantee the

opportunity for effective cross-examination, particularly with respect to a witness’s

potential bias.” United States v. Walley, 567 F.3d 354, 358 (8th Cir. 2009). 

It does not follow, of course, that the Confrontation Clause

of the Sixth Amendment prevents a trial judge from

imposing any limits on defense counsel’s inquiry into the

potential bias of a prosecution witness. On the contrary,

trial judges retain wide latitude insofar as the Confrontation

Clause is concerned to impose reasonable limits on such

cross-examination based on concerns about, among other

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things, harassment, prejudice, confusion of the issues, the

witness’ safety, or interrogation that is repetitive or only

marginally relevant.

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). The question is whether a

“reasonable jury might have received a significantly different impression of [the

witness’s] credibility had . . . counsel been permitted to pursue his proposed line of

cross-examination.” Id. at 680. Here, the district court limited examination to

questions about the witness’s (1) charge, (2) range of punishment, (3) sentenced

imposed, and (4) that the witness hoped to receive a lesser sentence through

cooperation. See United States v. Baldenegro-Valdez, 703 F.3d 1117, 1123 (8th Cir.

2013) (upholding similar limits).

The district court did not abuse its discretion. 

C.

Borders challenges the admission of a 2003 plea agreement, where he admitted

to stealing a trailer. He argues admission violated the Double Jeopardy Clause and

rendered his plea involuntary, particularly because the same United States Attorney’s

office prosecuted the 2003 case and this case. “The Double Jeopardy Clause . . . does

not forbid a conspiracy prosecution merely because the defendant previously was

convicted for a substantive offense that might have constituted an overt act in the

conspiracy.” United States v. Pierre, 795 F.3d 847, 852 (8th Cir. 2015), citing United

States v. Felix, 503 U.S. 378, 391 (1992). This is also true for plea agreements. See

United States v. Williams, 104 F.3d 213, 216-17 (8th Cir. 1997). A plea is rendered

involuntary only if the prosecutors “actively hid” knowledge of the later prosecution

or “colluded” with officials intending to use the statements in a subsequent trial. Id.

at 216. 

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Even assuming the district court erred in admitting the plea agreement, it “did

not have a substantial influence on the jury’s verdict.” See Adejumo, 772 F.3d at 525. 

The government used the plea agreement to establish an overt act in furtherance of the

conspiracy. Regardless, the government presented evidence of other overt acts,

sufficient to establish Borders’s participation in the conspiracy. Any error in

admitting the plea agreement did not cause prejudice. 

D.

Borders objects to the government’s use of a summary exhibit to present the

timeline of the conspiracy under Federal Rule of Evidence 1006. Because Borders did

not object at trial, this court reviews for plain error. Buckley, 525 F.3d at 633. 

Summary evidence is proper “when it assists the jury in understanding the testimony

already introduced and fairly summarizes trial evidence.” Adejumo, 772 F.3d at 524

(internal quotation marks omitted). Although the government’s summary exhibit was

introduced before the summarized evidence, the exhibit did not prejudice Borders, or

seriously affect the fairness, integrity, or public reputation of judicial proceedings. 

See id. at 525 (“When, as here, the government’s evidence of a defendant’s guilt is so

overwhelming, any error related to the admission of a summary chart is harmless.”).

IV.

Defendants bring several sentencing challenges. The application of a

sentencing enhancement is reviewed de novo; the factual basis is reviewed for clear

error. United States v. Collins, 754 F.3d 626, 629 (8th Cir. 2014). If a defendant

objects to factual statements in the presentencing reports, the government must prove

those facts by a preponderance of the evidence. United States v. Bowers, 743 F.3d

1182, 1184 (8th Cir. 2014). 

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A.

Defendants challenge application of the total loss enhancement. They stipulated

that, in the aggregate, the total loss for all criminal activities exceeded $1 million, but

now contest their liability for the entirety of the loss. To determine enhancements in

the case of “jointly undertaken criminal activity,” the Guidelines allow consideration

of “all acts and omissions of others that were (I) within the scope of the jointly

undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii)

reasonably foreseeable in connection with that criminal activity.” U.S. Sentencing

Guidelines Manual § 1B1.3(a)(1)(B) (2013). See also Adejumo, 772 F.3d at 533

(“In determining the individual defendant’s relevant conduct, the district court must

look at what the individual has agreed to do and whether the actions of others in the

conspiracy were foreseeable from his vantage point.”). 

Relying on his multiple conspiracies argument, Borders contends he can be held

liable only for the losses from the conspiracy to possess stolen vehicles and goods,

and not the separate conspiracy between the Dickersons to alter VIN numbers. 

Because he did not raise this to the district court, this court reviews for plain error. 

Bowers, 743 F.3d at 1184-85. Whether the government proved multiple conspiracies

is irrelevant. Borders can be held liable for any loss from activities reasonably

foreseeable, within the scope, and in furtherance of, the criminal activity. See

§ 1B1.3(a)(1)(B). Fears testified Borders watched him clean VIN numbers off trucks

and trailers, which aided the Defendants in possessing stolen vehicles and goods

without police detection. Even if the Dickersons were involved in a separate

conspiracy to alter VIN numbers, Borders knew of the activity and knew it furthered

their conspiracy to steal trucks and trailers. 

Jon argues he is not liable for the losses from the theft of a Keystone

Automotive truck, Budweiser beer, and Nike shoes. Borders stole these items,

assisted at times by Fears—Jon’s employee. Jon stored Borders’ stolen trucks and

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trailers at his storage unit. Even if he did not specifically know about the Keystone

truck, beer, and shoes, Jon knew that Borders regularly stole trucks and trailers with

cargo. The thefts were foreseeable, and furthered the conspiracy to steal trucks,

trailers, and cargo. 

The district court did not commit plain error in applying the sentencing

enhancement for the total loss exceeding $1 million.1

B.

Defendants challenge application of the “in the business of receiving and selling

stolen property” enhancement. See § 2B1.1(b)(4). They argue it applies only to

professional fences, not “to a defendant who merely sells goods that he himself has

stolen, or merely uses goods stolen by and received from others.” See United States

v. Vigil, 644 F.3d 1114, 1118 (10th Cir. 2011).2

 

This court agrees. The fence requirement accounts for the plain language of the

enhancement, which requires both “receiving and selling stolen property.” See

§ 2B1.1(b)(4) (emphasis added). See also United States v. Kimbrew, 406 F.3d 1149,

1152 (9th Cir. 2005) (“Nearly every circuit that has addressed the meaning of this

enhancement has agreed ‘that a thief who sells goods that he himself has stolen is not

in the business of receiving and selling property.”); Vigil, 644 F.3d at 1118-19 (and

cases cited therein); United States v. Sutton, 77 F.3d 91, 94 (5th Cir. 1996). 

1

 Because this court vacates three of Kyle’s convictions, it remands for a new

sentencing hearing without addressing his amount-of-loss argument. 

2

 Because Borders did not object to this enhancement, his challenge is reviewed

for plain error. See Buckley, 525 F.3d at 633.

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The government invokes United States v. Vickers, 528 F.3d 1116 (8th Cir.

2008). Nothing here conflicts with Vickers. Vickers adopts a totality of the

circumstances test for the “in the business” enhancement, as stated in (1) the

Sentencing Commission’s Comment 5,3

 and (2) the First Circuit’s decision in St. Cyr. 

See id. at 1120-21, citing United States v. St. Cyr, 977 F.2d 698 (1st Cir. 1992). 

Under either version of the test the “in the business” enhancement applies only to

defendants who are fences. See United States v. McMinn, 103 F.3d 216, 222 (1st Cir.

1997) (“St. Cyr neither expressed nor implied disapproval of the basic proposition that

the ITB enhancement guideline should apply only to ‘professional fences.’”);

U.S.S.G. app. C, amend. 617 (noting the totality of the circumstances “more properly

targets the conduct of the individual who is actually in the business of fencing.”

(emphasis added)). Vickers establishes the test—totality of the circumstances. And,

3 See also U.S.S.G. § 2B1.1, cmt. 5: 

For purposes of subsection (b)(4), the court shall consider 

the following non-exhaustive list of factors in determining 

whether the defendant was in the business of receiving and 

selling stolen property:

(A) The regularity and sophistication of the defendant’s activities.

(B) The value and size of the inventory of stolen property

maintained by the defendant.

(C) The extent to which the defendant’s activities encouraged or

facilitated other crimes.

(D) The defendant’s past activities involving stolen property.

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this test answers two questions—whether the defendant (1) was a fence (“receiving

and selling stolen property”, and (2) was “in the business” of fencing.4

Jon gave Borders “shopping lists” of trucks and trailers to steal. He also stole

trucks, license plates, and fuel-tax stickers. He directed Kyle to cut up any unusable

part of the trucks and trailers to sell for scrap. Jon had a prior state conviction for

receiving stolen property. The value of property stolen exceeded $1 million dollars. 

In light of the totality of the circumstances, it was not clear error to apply the “in the

business” enhancement to Jon.

Borders stole and sold trucks, trailers, and cargo. He rented a storage unit for

the stolen property, and sold the property to numerous buyers. Even if he was not

himself a fence, he personally participated in Jon’s activities. He often scouted and

stole trucks with Fears—Jon’s employee. He stored stolen property at Jon’s storage

facility. And, he filled Jon’s “shopping lists.” He had two prior federal convictions

for thefts of goods and transportation of stolen goods, and a state conviction for

receiving stolen property. It was not plain error to apply the “in the business”

enhancement to Borders.5

4 See also Vigil, 644 F.3d at 1120 (“[I]n construing the ITB Enhancement,

courts have found that adoption of the ‘totality-of-the-circumstances’ test—rather than

the ‘fence’ test—does not alter the threshold requirement that the defendant be a

‘fence.’”); Kimbrew, 406 F.3d at 1149 (“[T]here is nothing inconsistent about

adopting a totality of the circumstances approach to the ‘in the business’ question,

while also requiring a defendant to be a fence—to receive and sell property stolen by

others—before the enhancement applies.”); United States v. Saunders, 318 F.3d 1257

(11th Cir. 2003) (same). 

5

 Because this court vacates three of Kyle’s convictions, it remands for a new

sentencing hearing without addressing his “in the business” argument. 

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C.

Defendants argues it was impermissible double counting to apply the “in the

business” enhancement and a 2-level enhancement because “the offense involved an

organized scheme to steal or receive stolen” vehicles, vehicle parts, and cargo. USSG

§ 2B1.1(b)(14). This court reviews de novo “whether the district court’s application

of the sentencing guidelines amounts to impermissible counting.” United States v.

Myers, 598 F.3d 474, 475-76 (8th Cir. 2010). “Double counting occurs when one part

of the Guidelines is applied to increase a defendant’s punishment on account of a kind

of harm that has already been fully accounted for by application of another part of the

Guidelines.” United States v. Rohwedder, 243 F.3d 423, 426-27 (8th Cir. 2001)

(emphasis added). The “in the business” enhancement addresses the harm of fencing. 

See Vickers, 528 F.3d at 1121. The “stolen vehicle” enhancement addresses the harm

to the transportation industry that results from either buying or selling stolen vehicles. 

It was not impermissible double counting to apply both enhancements. 

D.

Borders challenges application of the leader/organizer enhancement—a 4-level

enhancement if the defendant is “an organizer or leader of a criminal activity that

involved five or more participants. . . .” § 3B1.1(a). The enhancement depends on: 

(1) the defendant’s exercise of decision making authority; (2) the nature of

participation in the commission of the offense; (3) the recruitment of accomplices;

(4) the claimed right to a larger share of the fruits of the crime; (5) the degree of

participation in planning or organizing the offense; (6) the nature and scope of the

illegal activity; and (7) the degree of control and authority exercised over others. 

Application Note 4. A defendant need not be the only organizer or leader, or have

led all other participants. United States v. Bahena, 223 F.3d 797, 804 (8th Cir. 2000). 

However, this enhancement “always require[s] evidence that the defendant directed

or procured the aid of underlings.” Adejumo, 772 F.3d at 532. Here, Borders led

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scouting parties to find vehicles. He directed Fears to remove VIN numbers to

prevent police detection. He stole merchandise and arranged for its transportation,

storage, and purchase. It was not clear error to apply the 4-level leader/organizer

enhancement. 

Borders also challenges the 2-level enhancement for “sophisticated means.” 

See § 2B1.1(10). “Sophisticated means” are “especially complex or especially

intricate offense conduct pertaining to the execution or concealment of an offense.” 

Adejumo, 772 F.3d at 531, quoting U.S.S.G. § 2B1.1(b)(1), cmt. n. 9(B). The

enhancement applies when “the offense conduct, viewed as a whole, was notably more

intricate than that of the garden-variety offense.” Id. “Even if any single step is not

complicated, repetitive and coordinated conduct can amount to a sophisticated

scheme.” United States v. Fiorito, 640 F.3d 338, 351 (8th Cir. 2011). Here, Borders

was connected to at least nine separate events, over a period of four years, involving

six trucks, fifteen trailers, and thousands of dollars in cargo. He conducted scouting

missions, worked with Jon to fill “shopping lists,” procured buyers, and gave trucks

and trailers to the Dickersons to remove VIN numbers. It was not clear error to apply

the 2-level enhancement for “sophisticated means.” 

Finally, Borders argues he received a disparate sentence. “When a single

defendant asserts on appeal that a similarly situated co-conspirator was sentenced

differently, and both sentences are within the range of reasonableness, there is no

principled basis for an appellate court to say which defendant received the

‘appropriate’ sentence.” United States v. Fry, 792 F.3d 884, 893 (8th Cir. 2015). All

defendants received sentences within their Guidelines ranges and are presumptively

reasonable on appeal. See Rita v. United States, 551 U.S. 338, 350-51 (2007).

The district court did not give Borders a disparate sentence. 

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* * * * * * *

The case is affirmed in part, reversed in part, and remanded for proceedings

consistent with this opinion.

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