1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-30-1996

United States vs. Schramm

Precedential or Non-Precedential:

Docket 94-3619

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Recommended Citation

"United States vs. Schramm" (1996). 1996 Decisions. Paper 253.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 94-3619 

___________ 

UNITED STATES OF AMERICA 

 vs. 

RONALD SCHRAMM; ANTHONY DeCELLO; OLEG 

VINOKUROV, a/k/a Alex; MICHAEL ZUBINSKY, 

a/k/a Steve; ASHOK TYAGI; AMINDERJEET S. 

AULAKH, a/k/a Andy; AMARBIR SINGH, a/k/a 

Sonny; MICHAEL DUBINSKI, a/k/a Steve 

 ANTHONY DeCELLO, 

 Appellant. 

___________ 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

(D.C. Criminal No. 93-cr-00188-02) 

___________ 

ARGUED DECEMBER 12, 1995 

BEFORE: BECKER, ROTH and LEWIS, Circuit Judges. 

(Filed January 30, 1996) 

___________ 

W. Thomas McGough, Jr. (ARGUED) 

Reed, Smith, Shaw & McClay 

435 Sixth Avenue 

Pittsburgh, PA 15219-1886 

 Attorney for Appellant
2 

Bonnie R. Schlueter 

James H. Love (ARGUED) 

Office of United States Attorney 

633 U.S. Post Office & Courthouse 

Pittsburgh, PA 15219 

 Attorney for Appellee

___________ 

OPINION OF THE COURT 

___________ 

LEWIS, Circuit Judge. 

 Anthony DeCello appeals from a conviction for 

conspiring to commit mail fraud for the purpose of avoiding 

Pennsylvania's Fuel Use Tax. In his appeal, DeCello raises four 

issues: (1) that there is insufficient evidence to support his 

conviction; (2) that the evidence adduced at trial established a 

prejudicial variance with the conspiracy charged in the 

indictment; (3) that his prosecution for conspiring to commit 

mail fraud violates principles of federalism; and (4) that the 

district court erred when it admitted a copy of his 1992 tax 

return at trial. 

 Because we agree with DeCello that there is 

insufficient evidence to support the jury's verdict, we need not 

address the remaining three issues. For the reasons which 

follow, we will reverse DeCello's conviction. 

I. 

 DeCello was indicted along with six co-defendants for 

criminal conspiracy in violation of 18 U.S.C. § 371. The 

conspiracy count alleged a single conspiracy with two objects: 
3 

(a) to defraud the United States regarding federal diesel fuel 

excise taxes, and (b) to use the United States mail in an effort 

to defraud the Commonwealth of Pennsylvania with respect to the 

state's Fuel Use Tax, a tax imposed on the sale of diesel motor 

fuel. 

A. Factual Background 

 The conspiracy involved a scheme in which wholesalers 

and retailers attempted to avoid paying federal and state taxes 

imposed on what is known as "number two" fuel oil. Except for 

small variations in additives, "number two" fuel oil can be used 

as either home heating oil or diesel fuel. If used as diesel 

fuel, it is subject to a Federal Excise Tax of 20.1 cents per 

gallon. The Commonwealth of Pennsylvania imposes an additional 

10.35 cents per gallon Oil Franchise Tax at the wholesale level, 

and an additional 12 cents per gallon Fuel Use Tax at the retail 

level. In contrast, when used as home heating oil, "number two" 

fuel oil is not subject to any taxes. 

 The fuel taxes are collected and reported by the 

respective sellers in the chain of commerce. Wholesale 

distributors of diesel fuel are required to collect the federal 

excise tax and the Commonwealth's Oil Franchise Tax, while 

retailers are required to pay a Highway Fuel Use Tax to the 

Commonwealth. Retailers must also file monthly fuel use tax 

reports which include, among other information, the name of all 

diesel fuel wholesale suppliers and the amount of diesel fuel 

purchased from each supplier during each reporting period. 
4 

 Both federal and state law allow registered wholesale 

participants to buy and sell number two fuel oil in tax-free 

transactions. For example, wholesalers of diesel fuel are 

required to register with the Internal Revenue Service for Form 

637 ("Registration For Tax Free Transactions"). This allows a 

registered wholesaler to sell diesel fuel to another registered 

wholesaler without paying the federal excise tax. Retailers and 

unregistered wholesalers, on the other hand, are not authorized 

to obtain Form 637. Consequently, any sale of diesel fuel to a 

retailer or to an unregistered wholesaler is subject to excise 

taxes. 

 The Commonwealth of Pennsylvania's excise tax law is 

subject to a similar registration system. All retail sales of 

diesel fuel are subject to Pennsylvania's Fuel Use Tax. 

B. The Scheme 

 The conspiracy in this case allegedly involved fuel 

wholesalers and retail truck stops attempting to escape the 

federal and state taxes imposed on diesel fuel. According to the 

Government, the conspiracy accomplished this by having the 

wholesalers invoice deliveries of taxable diesel fuel as 

nontaxable sales of home heating oil. The retailers who accepted 

delivery of this fuel paid in cash, kept the transactions off 

their official books, adjusted the oil meters, mingled the 

untaxed oil with oil that had been taxed and acquired from other 

wholesalers, and filed false tax returns. In this way, both the 

wholesalers and retailers avoided paying their respective taxes. 

By avoiding these taxes, the wholesalers were able to undercut 
5 

the prices charged by legitimate wholesale competitors. The 

retailers were then able to purchase diesel fuel at lower prices 

and keep the transactions entirely off their books. 

 This particular scheme was the brainchild of Leon 

Uzdin, who began his operations in the Philadelphia area, and 

expanded them westward to the Pittsburgh area. According to the 

indictment, Anthony DeCello participated in Uzdin's operation in 

several ways: first, by recruiting haulers to deliver the fuel 

to the participating truck stops; second, by picking up the 

payments from the truck stops; and third, by delivering the cash 

payments to the scheme's principals. In return, according to the 

indictment, DeCello received a commission and expenses. Finally, 

when Uzdin's relationship with a fuel supplier began to sour, 

DeCello helped recruit a new fuel source. 

 DeCello and Uzdin initially met with Terry Tyhonas, a 

hauler recruited by DeCello. At that meeting, DeCello asked 

Tyhonas to furnish "[s]ome fuel with a paper and some fuel 

without a paper." (i.e., with and without tax). After Tyhonas 

turned them down, DeCello found Ronald Schramm, president of Judy 

Oil Co. Schramm agreed to furnish the fuel oil and invoice the 

sales to Main Line as home heating oil. This relationship 

continued for almost a year, during which Judy Oil furnished 

Uzdin with approximately eight million gallons of diesel fuel. 

For his efforts in recruiting Schramm, DeCello was promised a 

commission of one cent per gallon. 

 All of the participants allegedly filed false tax 

returns during the scheme. Judy Oil filed quarterly federal 
6 

excise tax returns which omitted all of the taxable sales that 

were occurring between Judy Oil and the various retailers 

involved in the scheme. The retailers involved filed federal and 

state income tax reports which omitted untaxed deliveries and 

sales of diesel fuel. In addition, DeCello filed a federal 

income tax return in 1992 in which he allegedly omitted payments 

and commissions obtained from Uzdin. 

 Five of DeCello's six co-defendants entered guilty 

pleas to the conspiracy charge. DeCello and Schramm proceeded to 

trial. The jury convicted DeCello on the conspiracy charge, and 

convicted Schramm on conspiracy and other charges. Through 

special verdict forms, the jury concluded that Schramm conspired 

to defraud the United States and, as we will develop more fully 

below, that DeCello conspired to commit mail fraud. DeCello's 

post-trial motions were denied and this appeal followed. 

 The district court had jurisdiction over this matter 

pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28 

U.S.C. § 1291. 

II. 

 The principal issue before us is whether there was 

sufficient evidence to support the jury's conclusion that DeCello 

entered into an agreement and knew that the agreement had the 

specific unlawful purpose charged in the indictment, 

particularly, to evade and defeat Pennsylvania's Fuel Use Tax. 

United States v. Scanzello, 832 F.2d 18, 20 (3d Cir. 1987). Our 

review of this issue is circumscribed by the fundamental 

principle that: 
7 

[i]t is not for [an appellate court] to weigh 

the evidence or to determine the credibility 

of witnesses. The verdict of a jury must be 

sustained if there is substantial evidence, 

taking the view most favorable to the 

Government, to support it. 

United States v. Glass, 315 U.S. 60, 80 (1942). A verdict will 

only be overturned "if no reasonable juror could accept the 

conclusion of the defendant's guilt beyond a reasonable doubt." 

United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987). 

Consequently, a "claim of insufficiency of the evidence places a 

heavy burden on an appellant." United States v. McGlory, 968 

F.2d 309, 321 (3d Cir. 1992) (quoting United States v. Gonzalez, 

918 F.2d 1129, 1132 (3d Cir. 1990)). 

 Nonetheless, the government must prove each element of 

a conspiracy beyond a reasonable doubt, and we have noted that 

"the sufficiency of the evidence in a conspiracy prosecution 

requires close scrutiny." United States v. Coleman, 811 F.2d 

804, 807 (3d Cir. 1987). There must be substantial evidence 

establishing "a `unity of purpose,' intent to achieve a common 

goal, and an agreement to work together toward that goal." 

McGlory, 968 F.2d at 321 (quoting United States v. Wexler, 838 

F.2d 88, 90-91 (3d Cir. 1988)). Although all of the elements of 

the government's case, including the existence of the agreement, 

may be proven entirely through circumstantial evidence, United 

States v. Kapp, 781 F.2d 1008, 1010 (3d Cir. 1986), "there must 

be evidence tending to prove that defendant entered into an 

agreement and knew that the agreement had the specific unlawful 

purpose charged in the indictment." Scanzello, 832 F.2d at 20. 
8 

A. The Indictment 

 The indictment charged DeCello and his co-defendants 

with a single conspiracy which sought to accomplish two purposes. 

One purpose, set forth in paragraph 18(a) of the indictment, was 

to: 

[d]efraud the United States Department of the 

Treasury and the Internal Revenue Service, a 

department and agency of the United States, 

by impeding, impairing, obstructing, and 

defeating the lawful government functions of 

the Department of the Treasury and the 

Internal Revenue Service in the 

ascertainment, computation, assessment, and 

collection of the revenue; to wit, federal 

diesel fuel excise taxes. 

App. at 194 (emphasis added). The second purpose, set forth in 

paragraph 18(b), was entirely different in that it involved a 

different underlying offense (mail fraud) and a completely 

different type of fuel tax. Here, the grand jury charged that 

DeCello conspired to: 

[d]evise and execute a scheme and artifice to 

defraud, and to obtain money and property by 

means of false and fraudulent pretenses, 

representations and promises, furthered by 

the use of the United States mail, 

particularly, to evade and defeat the full 

payment of the Fuel Use Tax imposed on the 

sale of diesel motor fuel under the laws of 

the Commonwealth of Pennsylvania in violation 

of Title 18, United States Code, § 1341 (Mail 

Fraud). 

App. at 194-95 (emphasis added). 

 The court provided the jury with a special verdict form 

which permitted the jury, if they found DeCello guilty of 

conspiracy, to select paragraph 18(a) and/or paragraph 18(b) as 

the purpose and object of the conspiracy agreed to by DeCello. 
9 

The jury marked the purpose and object corresponding to 

paragraph 18(b), specifically that DeCello had agreed to "violate 

federal law, namely federal law prohibiting mail fraud." 

 DeCello argues that the evidence produced by the 

government was insufficient to sustain his conspiracy conviction 

because at best, it established that he knowingly participated in 

a scheme to evade federal wholesale taxes, the subject of 

paragraph 18(a), but failed to establish that he knowingly 

entered into an agreement to use the United States mail to evade 

and defeat the full payment of Pennsylvania's Fuel Use Tax, which 

is the focus of paragraph 18(b). We agree. Our review of the 

record leads us to conclude that the government failed to present 

sufficient evidence to support the jury's conclusion that DeCello 

ever agreed to participate in, or had any knowledge of, the 

retailers' evasion of Pennsylvania's Fuel Use Tax. 

B. 

 Specifically, there is simply no evidence to indicate 

that DeCello ever met or communicated with any of the truck stop 

owners; that he was even aware of, let alone sought to evade, the 

Pennsylvania Fuel Use Tax; or that any of DeCello's alleged coconspirators at the wholesale level were aware of, authorized, or 

participated in the evasion of diesel fuel retail taxes. 

 The government asks us to draw certain inferences from 

circumstantial evidence it relied upon to support the conclusion 

that DeCello had knowledge of the retailers' evasion of 

Pennsylvania's Fuel Use Tax. 
10 

 First, the government notes that Uzdin testified that 

he informed DeCello of his reasons for terminating a prior 

operation, and that DeCello was aware of the price the truck 

stops were paying for the oil. Second, the government points out 

that DeCello assisted Uzdin in recruiting a new supplier of fuel, 

recruited haulers for the fuel, and handled payments collected 

from the various truck stops. Consequently, the government 

suggests, that DeCello must have played an integral role in the 

conspiracy and should have had knowledge of the retailers' 

criminal actions. Finally, the government argues that DeCello 

must have been aware of the retailers' tax evasion because the 

evasion of both retail and wholesale taxes was required to 

confound the so called "audit trail." In other words, if either 

the retailers or wholesalers reported and paid their applicable 

taxes, they would expose the others' tax evasion because there 

would be inconsistencies between the wholesalers' and retailers' 

records. 

 These arguments, however, are insufficient to support 

the jury's verdict. As the government concedes, DeCello "was a 

supply-sider throughout" the entire scheme. (Appellee's Br. at 

28). Although DeCello appears to have been an active participant 

in the wholesale aspects of Uzdin's operation, the only inference 

to be drawn from this evidence is that DeCello's participation 

might have made him aware of the suppliers' evasion of diesel 

fuel wholesale taxes. We cannot overlook the fact that Uzdin's 

activities with his suppliers were limited to the wholesale side 

of the diesel fuel market. Similarly, DeCello's effort to 
11 

recruit a new supplier of fuel oil "without a paper," or without 

Form 637, involved the avoidance of the Federal Excise Tax 

imposed at the wholesale level. Moreover, Uzdin's testimony 

during the government's direct examination merely establishes 

that the suppliers were avoiding federal wholesale taxes: 

Q. And you would take your 637 form and you 

would present it or cause it to be 

presented to other buyers and sellers of 

fuel? 

A. To the seller, yes. Supplier or 

terminal. 

Q. To the terminal that you were buying 

from? 

A. Yeah. 

Q. And by doing that you had no tax? 

A. Yeah. We got product, we pay only state 

tax and whatever other tax besides 

federal tax. 

Q. You paid no federal tax? 

A. No. 

App. at 18 (emphasis added). Uzdin never mentioned retail taxes 

in any of his testimony. There is nothing to indicate that 

DeCello's participation with Uzdin gave him any knowledge of the 

retailers' subsequent criminal activities; quite to the contrary, 

it appears that the supply-siders' interest in the oil ended when 

the oil was sold and delivered to the truck stops. The 

government produced no evidence to demonstrate that the suppliers 

were concerned with how the retailers subsequently treated and 

disposed of the oil. 
12 

 Similarly, DeCello's awareness of what the retailers 

were paying the suppliers for the fuel oil has no bearing on 

whether or not he knew that the retailers were avoiding their 

taxes. Once again, at best this merely proves that he was or 

should have been aware of the suppliers' tax evasion. Uzdin 

testified that he purchased the oil from his supplier at two and 

a half cents and up to four and a half cents per gallon over rack 

price ("rack price" is the price for which fuel is sold at the 

refiner's terminal), and that he charged the truck stops twelve 

cents over rack price. This left Uzdin with a gross profit of 

approximately seven to nine cents per gallon. From this, Uzdin 

ostensibly paid both DeCello and another alleged conspirator one 

cent per gallon, leaving him five to seven cents per gallon to 

pay approximately thirty cents in state and federal wholesale 

taxes, cover other expenses, and derive some profit. Because 

Uzdin testified that he discussed these matters with DeCello, one 

could infer that DeCello knew or should have known that Uzdin was 

evading the wholesale taxes. Otherwise, Uzdin would be losing 

approximately twenty-three cents per gallon. This, however, is 

not enough to allow a reasonable juror to infer that DeCello knew 

that the retailers were then evading their taxes as well. Even 

if the evidence demonstrated that DeCello not only knew the price 

the retailers were paying for the fuel oil but also the price 

they charged the public, that knowledge would still be 

insufficient to establish beyond a reasonable doubt that DeCello 

knew the retailers were not paying their taxes. At best, this 

evidence might allow a reasonable juror to conclude that DeCello 
13 

knew that the retailers were profiting by buying fuel oil at 

below market rates. 

 Finally, as to the government's argument that the 

evasion of one set of taxes necessarily requires the evasion of 

all diesel fuel taxes, we believe that this ignores the fact that 

there were other ways for retailers to evade their taxes without 

the cooperation of the suppliers. For example, the retailers 

could simply have falsified their monthly and annual reports by 

misrepresenting the amount of diesel fuel received regardless of 

the wholesale source; or the truck stops could have 

misrepresented the amount of diesel fuel sold. Neither of these 

methods would have required the participation of wholesalers. No 

doubt, the retailers' efforts were facilitated and their profits 

increased by the suppliers' illegal activities in this case, but 

that does not lead to the conclusion that the suppliers were 

aware of, let alone agreed to participate in, the retailer's 

effort to avoid the applicable retail tax. 

 We, therefore, cannot conclude that the evidence 

adduced at trial allows a "reasonable inference, that the 

activities of the participants . . . could not have been carried 

on except as the result of a preconceived scheme or common 

understanding." Kapp, 781 F.2d at 1010. Upon our independent 

review of the record, we must conclude that the government 

provided insufficient evidence to demonstrate that DeCello knew 

or should have know that the retailers intended to evade their 

taxes. Although DeCello's actions may have aided the retailers 

in their tax evasion, we have repeatedly held that to sustain a 
14 

conspiracy conviction, the government must establish that a 

defendant had knowledge of the specific illegal object of the 

conspiracy. See, e.g., United States v. Salmon, 944 F.2d 1106, 

1114-16 (3d Cir. 1991) (reversing the conviction of a defendant 

who aided in the sale of a wrapped package, but had no knowledge 

of the contents); United States v. Wexler, 838 F.2d 88, 91-92 (3d 

Cir. 1988) (holding that a defendant's participation as a lookout 

and assisting in the movement of a truck that contained a large 

quantity of hashish was insufficient to sustain a conviction for 

conspiring to distribute hashish in the absence of any evidence 

that the defendant knew what was in the truck); United States v. 

Cooper, 567 F.2d 252, 254-55 (3d Cir. 1977) (reversing the 

conspiracy conviction of a defendant who travelled cross-country 

with a co-defendant in a truck carrying marijuana because there 

was no evidence that the defendant knew what was in the locked 

compartment of the truck); United States v. Veksler, 862 F. Supp. 

1337, 1343 (E.D. Pa. 1994) (acquitting a participant in the sale 

of untaxed diesel fuel to truck stops even though the evidence 

showed that the defendant knew that the truck stop oil sales he 

facilitated were illegal because there was no evidence to 

demonstrate that the defendant was aware that he was working in 

aid of a larger conspiracy and its objectives), aff'd 62 F.3d 544 

(3d Cir. 1995). 

C. 

 The district court upheld the jury's verdict based upon 

a different theory. According to the district court, the jury 

convicted DeCello for participating in a single unified 
15 

conspiracy to sell "Number 2 fuel oil for taxable purposes under 

the guise of selling Number 2 fuel oil for non-taxable purposes," 

and there was sufficient evidence to support that conclusion. 

United States v. Schramm, No. 93-188, slip op. at 16 (W.D. Pa. 

Aug. 16, 1994). To reach this result, however, the district 

court implicitly interpreted paragraph 18(b)'s reference to 

Pennsylvania's Fuel Use Tax as illustrative rather than 

exclusive. Under the district court's interpretation, the 

conspiracy charge in paragraph 18(b) necessarily includes 

evasions of Pennsylvania's Fuel Oil Franchise Tax imposed at the 

wholesale level. Consequently, the district court was able to 

affirm DeCello's conviction based upon his participation in and 

awareness of the fuel oil suppliers' evasion of their applicable 

wholesale taxes. Under any other interpretation of the 

indictment, the district court's conclusion would run afoul of 

the rule that the evidence must establish that the defendant 

entered into an agreement and "knew that the agreement had the 

specific unlawful purpose charged in the indictment." Scanzello, 

832 F.2d at 20 (emphasis added). But even if we were to agree 

that the evidence supported the conclusion that DeCello agreed to 

participate in a scheme which had the purpose of evading 

Pennsylvania's Oil Franchise Tax, we would not agree with the 

district court's interpretation of the indictment, and must, 

therefore, reverse DeCello's conviction. 

 While an indictment must generally be taken as a whole, 

read reasonably and given fair construction, United States v. 

Markus, 721 F.2d 442, 443-44 (3d Cir. 1983); United States v. 
16 

King, 587 F.2d 956, 963 (9th Cir. 1978) (stating that appellate 

courts "should read an indictment in a common sense manner, [and] 

refus[e] to reverse a conviction because of minor deficiencies in 

the indictment that could not have prejudiced the defendant 

. . ."), "[t]he precise manner in which an indictment is drawn 

cannot be ignored . . . ." Sanabria v. United States, 437 U.S. 

54, 65-66 (1978) (emphasis added). The principle that an 

indictment must contain the essential elements of the offense 

charged is premised upon three distinct constitutional commands 

which we cannot ignore. First, the indictment must be 

sufficiently precise to inform the defendant of the charges 

against which he or she must defend, as required by the Sixth 

Amendment. Second, the indictment must enable an individual to 

determine whether he or she may plead a prior acquittal or 

conviction to bar future prosecutions for the same offense, in 

accordance with the Fifth Amendment. Id.; Hamling v. United 

States, 418 U.S. 87, 117 (1974); Hagner v. United States, 285 

U.S. 427, 431 (1932). To accomplish these goals, an indictment 

must specifically set forth the essential elements of the offense 

charged. Hamling, 418 U.S. at 117. See also Fed. R. Crim. P. 

7(c)(1) ("The indictment . . . shall be a plain, concise and 

definite written statement of the essential facts constituting 

the offense charged."). Third, the: 

purpose of an indictment is to shield a 

defendant in a federal felony case from 

unfounded prosecutorial charges and to 

require him to defend in court only those 

allegations returned by an independent grand 

jury, as provided by the Fifth 

Amendment. . . . By sufficiently 
17 

articulating the critical elements of the 

underlying offense, an indictment insures 

that the accused has been duly charged by the 

grand jury upon a proper finding of probable 

cause, and will be convicted only on the 

basis of facts found by that body. 

United States v. Boffa, 513 F. Supp. 444, 466 (D. Del. 1980) 

(citing United States v. Goldstein, 502 F.2d 526, 528-29 (3d Cir. 

1974)). 

 In cases which involve a conspiracy charge, the illegal 

object of the conspiracy is an essential element of the offense 

and must be included in the indictment. See United States v. 

Shaffer, 383 F. Supp 339, 342 (D. Del. 1974). 

 As discussed earlier, Count I of the indictment, which 

charges a conspiracy, sets forth two purposes. The jury 

convicted DeCello of agreeing to accomplish the second purpose. 

The second purpose, which was set forth in paragraph 18(b), was 

to devise and execute a scheme and artifice to defraud by the use 

of the United States mail, "particularly, to evade and defeat the 

full payment of the Fuel Use Tax imposed on the sale of diesel 

motor fuel under the laws of the Commonwealth of Pennsylvania 

. . ." App. at 194-95 (emphasis added). To accept the district 

court's conclusion, we would be required to interpret 

"particularly" as used in paragraph 18(b) to mean "for example" 

or "as one example among others," and to assume that the "other" 

charges to which the word "particularly" refers included the 

evasion of taxes not set forth in the paragraph itself. But the 

word "particularly," as it appears in paragraph 18(b), is 

synonymous with "to-wit," a term commonly used in indictments to 
18 

refer to a discrete event. Likewise, "particularly" as used here 

is synonymous with the more conventional "specifically," which, 

in fact, is used in paragraph 18(a) of the indictment. See

Merriam Webster, Webster's Ninth New Collegiate Dictionary 858 

(1985). Both terms ("specifically" and "particularly") are used 

to set forth detailed descriptions of the conspiracy's goals; 

they are exclusive, not inclusive. If the government had 

intended to charge DeCello with agreeing to participate in a 

scheme to violate Pennsylvania's wholesale tax as well, it easily 

could have, and certainly should have, done so. 

 While courts must ignore minor and technical 

deficiencies in an indictment, Russell v. United States, 369 U.S. 

749, 763 (1962) ("Convictions are no longer reversed because of 

minor and technical deficiencies which did not prejudice the 

accused."); Hagner v. United States, 285 U.S. 427, 433 (1932) 

(holding that courts must "disregarded merely loose or 

inartificial forms of averment."), an indictment's failure to 

specify the object of a conspiratorial agreement cannot be 

considered a minor or technical deficiency which can be ignored. 

As we have said, "[t]he essence of a conspiracy is an agreement." 

United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989). The 

goal or goals of the agreement are, therefore, essential elements 

of the crime of conspiracy itself. An omission such as occurred 

here deprives the defendant of one of the significant protections 

which the guaranty of a grand jury indictment is intended to 

confer. By not specifying the evasion of the federal excise tax 

or of Pennsylvania's wholesale fuel tax as one of the goals of 
19 

the conspiracy in paragraph 18(b), the indictment failed to 

apprise DeCello "with reasonable certainty, of the nature of the 

accusations against him." Russell, 369 U.S. at 766 (quoting 

United States v. Simmons, 96 U.S. 360, 362 (1877)). To adopt the 

district court's interpretation of the indictment would be to 

allow DeCello's "conviction to rest on one point and the 

affirmance of the conviction to rest on another," giving "the 

prosecution free hand on appeal to fill in the gaps of proof by 

surmise or conjecture." Russell, 369 U.S. at 766. This we 

cannot do. 

 Paragraph 18(b) of the indictment alleges only that 

DeCello agreed to use the United States mails to evade 

Pennsylvania's Fuel Use Tax. It does not allege an agreement to 

evade any wholesale level taxes, and we cannot interpret 

paragraph 18(b) of the indictment as implicitly including the 

evasion of such taxes as additional goals of the conspiracy. 

III. 

 Because the government failed to produce 

sufficient evidence at trial to convince the jury to convict 

DeCello under paragraph 18(a) of the indictment and because the 

government further failed to prove that DeCello entered into an 

agreement and knew that the agreement had the specific unlawful 

purpose charged in paragraph 18(b) of the indictment, we will 

reverse DeCello's conviction and direct the entry of a judgment 

of acquittal. 

_________________________