USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-2307
UNITED STATES,
Appellee,
v.
KEITH ADAM RICHARDSON,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________

James C. Munch, III, with whom Marvin H. Glazier, and

______________________
___________________
Vafiades, Brountas & Kominsky were on brief for appellant.
_____________________________

Michael M. DuBose, Assistant United States Attorney, with

__________________
whom Jay P. McCloskey, United States Attorney, was on brief for
_________________
appellee.
____________________
January 28, 1994
____________________

BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.
____________________
Keith A.

Richardson, was

Defendant-appellant,

tried and convicted

by a

jury of

conspiring to transport, possess, and sell stolen property in

interstate commerce in
2315 and 2.
court
a
for

violation of 18 U.S.C.

His appeal raises four issues:

371, 2314,
(1) whether the

erred in admitting into evidence written statements of

co-conspirator ; (2) whether there was sufficient evidence

defendant's conviction; (3)

giving

the jury

a willful

whether the court

blindness

erred in

instruction; and

(4)

whether the court

erred in sentencing defendant.

We affirm

across the board.

Factual Summary
Factual Summary
_______________
Defendant
Waterville,

Maine,

Corporation,

and his
called

father operated
the

Skowhegan

from August 1989 through

Coin

of jewelry mailed

Chip Bond (a/k/a

sent via
addresses.
and then

by postal

the target

of a joint

Phoenix area of

of thousands of
by one

return names

out to "cash."

via Federal Express.

federal and state

numerous residential burglaries

in the

During

were
and

the jewelry initially in cash

money orders made

types of payment were sent

Stamp

The jewelry packages

with fictitious

Defendant paid for

and

to him from Arizona

John MacLean).

Federal Express

business in

June of 1991.

this time defendant bought and sold hundreds

dollars worth

Arizona.

Both

Bond became

investigation into

involving thefts of
Several pieces

jewelry

of jewelry

-22

stolen

from the Phoenix vicinity were traced to defendant in

Maine.
that

In March 1991, Bond telephoned defendant and told him

"they"

defendant

of

maintained
totally

were

under FBI

being

an

that until

informant.
he

unaware that

surveillance,

he accused

Defendant steadfastly

received the

the packages

and

phone

shipped to

call he
him

was

by Bond

contained stolen jewelry.

The Admission of the Alleged Hearsay Statements
The Admission of the Alleged Hearsay Statements
_______________________________________________
The
from Bond

disputed

statements (Ex.

22-A)

were letters

to defendant

sent along with

the jewelry.

They

discussed, described, and evaluated the jewelry contained

the packages.
and

payment.

Some of them gave specific directions for sale

The

evidence

showed

written by

the same individual,

"Chip."

Defendant

testimony, agreed to
Bond's

was

addressed

by stipulation,

The government obtained

the letters

who signed some of

and defendant's fingerprints

and Stamp

in

as

were

all

them as

"Keith."

Expert

established that

both

were on

the documents.

the letters from the

Skowhegan Coin

Corporation pursuant

to a

subpoena for

records.
Fed R. Evid. 801(d)(2)(E) provides:
(d) Statements which are not hearsay.
Statements which are not hearsay.
A statement is not hearsay if
. . .
(2) Admission by party-opponent.
Admission by party-opponent.
statement is offered against a party
is
. . .

The
and

business

-33

(E) a statement by a coconspirator of

a party
during the
course and
in
furtherance of the conspiracy.
Defendant attacks the
on
the

procedural and substantive

objections together.

objection.

grounds.

We

start

In United States v.
______________

(1st Cir. 1977), we held

in

admission of the

a conspiracy

by the

with

analysis melds
the

procedural

Petrozziello, 548 F.2d

____________

20

that Fed. R. Evid. 104(a) requires,

case, that

determined solely

Our

statements

questions

judge.

We

of admissibility
further held

be

that the

civil standard of preponderance of the evidence should be the

test for admissibility:
[I]f it is more likely than not that the
declarant and the defendant were members
of
a
conspiracy when
the
hearsay
statement
was
made, and
that
the
statement was in
furtherance of the
conspiracy, the hearsay is admissible.
Petrozziello,
____________
Ciampaglia, 628
__________

548

F.2d

at

23.

In

F.2d 632 (1st Cir.), cert.

_____

United States
______________

v.

denied, 449 U.S.

______

956, and cert. denied, 449 U.S. 1038 (l980), we established a

___ _____ ______
"timing" rule to be followed in determining the admissibility
of out-of-court statements.
If
the
prosecution
attempts
to
introduce into evidence an out-of-court
declaration
under
Fed.
R.
Evid.
801(d)(2)(E), the
trial court,
upon
proper objection, may conditionally admit
the declaration.
If the declaration is
conditionally admitted, the court should
inform the parties on the record out of
the hearing of the jury that (a) the
prosecution will be required to prove by
a preponderance of the evidence that a
-44

conspiracy existed, that the declarant

and defendant were members of it at the
time that the declaration was made, and
that the declaration was in furtherance
of the conspiracy, (b) that at the close
of all the evidence the court will make a
final Petrozziello determination for the
____________
record, out of the hearing of the jury .
. . .
Ciampaglia, 628 F.2d at 638 (footnote omitted).
__________
When defendant objected to the evidentiary offer of
the

statements, the trial

court invoked a

bench conference

and stated in pertinent part:

I am satisfied, based on the evidence
that has been presented thus far, that it
is more likely than not, which is the
standard under Petrozziello, that the
____________
declarant and the defendant were members
of the conspiracy when these statements
were made and that the statements were
made in furtherance of that conspiracy
and that it is admissible.
I will, in accordance with the circuit
court's instructions in Petrozziello, at
____________
the conclusion of the government's case,
which I assume is very soon, make a final
determination if something happens during
cross-examination or something that would
change the court's conclusion.
So that this ruling is conditional in
that sense
and I'll
make a
final
determination
at
the
end
of
the
government's case, which I understand is
the procedure set up by the First Circuit
to handle these kinds of issues. Okay?
Neither

party advised the court that its final determination

should be
end

of the

made at the close of all

___
government's case.

-55

the evidence, not at the

The court

made its

final

determination

at the

end

of

the

government's

case,

and

admitted thestatements intoevidence. Defendant didnot object.

Defendant

contends

that

the

court's

procedure

violated the Ciampaglia rule, and for that reason argues that
__________
there

must be a new trial.

follow

Ciampaglia,
__________

We

agree that the court did not

but conclude
that, because

that

a new

trial

the defendant

is not

warranted.

We find

failed to

object when

the court first informed counsel how it intended

to proceed and failed to object again when the court made its
final
the

ruling admitting the statements, there was a waiver of

Ciampaglia
__________

rule.1

In

Ciampaglia
__________

we faced

situation, and stated:

In the instant case, however, neither
appellant nor anyone else objected to the
timing of the district court's finding.
Appellant failed to make any objection
setting forth the reasoning that he now
persuades us to adopt.
Even in the
Eighth Circuit, which held two years ago
that district courts should make a final
preponderance determination at the end of
all the evidence, failure to object at
trial
to
the omission
of
such a
determination bars an appellate [sic]
from raising the point on appeal in the
absence of plain error. United States v.
_____________
Baykowski, 615 F.2d 767 (8th Cir. 1980).
_________
628 F.2d at 638.

the

same

____________________
1In fact, defense counsel did more than fail to object.
When he was informed of the procedure the court proposed
following, and asked if it was "Okay," he said "Fine." This
was tantamount to giving the judge a go-ahead signal.
-66

Defendant's failure to object implicates the plainerror

doctrine of

"Plain

the court."

errors,

R. Crim.

of

they were not

those errors

internal

brought to the

to correct

public

that

only

states:

of

22-A

defendant's case that

the exclusion of the
conditional

foundation

for it,

particularly egregious
affect the
judicial

We have

carefully and

have

proceedings."

statements.
there

which was

read the trial

found nothing

would have required or

ruling

fairness,

U.S. 1, 15 (1985) (citations and

quotation marks omitted).

and Ex.

attention of

"The Rule authorizes

seriously

reputation

United States v. Young, 470

_____________
_____

its

52(b), which

The Supreme Court teaches:

Appeals

integrity or

record

P.

errors or defects affecting substantial rights may be

noticed although

Courts

Fed.

in

even suggested

At the time the court made

was

not eroded

solid
by

evidentiary
the testimony

presented

during

statements were

defendant's

case.

properly admitted

(d)(2)(E).

Consequently,

admissibility

under

we

the Business

We

hold

under Fed.
need

not

Record

that

the

R. Evid.

801

consider

their

exception to

the

Hearsay Rule.
Sufficiency of the Evidence
Sufficiency of the Evidence
___________________________
We have stated the standard of review for assessing
the sufficiency
innumerable

of the evidence

times.

We

cannot

after a
improve

verdict of
on

our

statement:

-77

Following a guilty verdict, a reviewing

court
must
scrutinize
the
record,
eschewing
credibility
judgments
and
drawing all reasonable
inferences in
favor of the verdict, to ascertain if a
rational jury
could have
found the
government proved each element of the
crime beyond a reasonable doubt.
To
sustain a conviction, the court need not
conclude that only
a guilty verdict
appropriately could be reached; it is
enough that the finding of guilt draws

guilty
latest

its essence
the record.

from a plausible

United States v. Sepulveda, No.

_____________
_________
7

(1st Cir.

Dec.

United States
______________

20, 1993)

reading of

92-1362, et al., slip op. at

(citations omitted);

v. Echeverri,
_________

982

F.2d 675,

whether

there

677

see also
___ ____
(1st Cir.

1993).

evidence
doubt that

The

question

is

for

a rational

jury to

defendant conspired

MacLean, to transport,
interstate commerce.

obtain

find beyond

with Chip

sufficient
a reasonable

Bond, a/k/a

possess, and sell stolen

John

property in

We find that there was.

We have stated what the

order to

was

conviction

government has to prove in

on a

conspiracy

follows:
The essential elements of a conspiracy
are that it was willfully formed, that
the accused willfully became a member of
the conspiracy, that the conspirators
thereafter knowingly committed at least
one of the overt acts charged in the
indictment, and that such overt act was
knowingly done in furtherance of some
object or purpose of the conspiracy, as
charged.

-88

charge

as

United States v.
_____________
See also
___ ____

Latham, 874 F.2d 852, 863

______

United States v.
_____________

(1st Cir. 1989).

Barker Steel Co., 985

________________

F.2d 1123,

1127-28 (1st Cir. 1993); United States v. Hurley, 957 F.2d 1,

_____________
______
4 (1st Cir. 1992), cert. denied, 113 S. Ct. 60 (1993).
_____ ______
conspiracy may be
evidence.
slip op.

proved by either direct

And a

or circumstantial

United States v. Jadusingh, Nos. 92-2299, 92-2404,

_____________
_________
at 14-15 (1st Cir.

Jan. 4, 1994).

The government

fully met its burden of proof.

There
Defendant
was that

is

no

point

does not dispute

he neither

in rehearsing

the evidence.

the

evidence.

His sole defense

intended to conspire,

nor did

in fact

enter into a conspiracy with Bond to transport, possess,

sell stolen property

in interstate commerce.

and

Suffice it to

say that the jury believed otherwise, and there was more than
sufficient evidence for a reasonable jury to find as it did.
The Willful Blindness Instruction
The Willful Blindness Instruction
_________________________________
Defendant contends
ground

that there

to

asserts,

in the alternative, that even if there were grounds

According

blindness

sufficient

evidence

for such a charge, the

a willful

was not

instruction.

He

instruction actually used was flawed.

to defendant, the trial judge should have included

the

caveat

that

knowledge,

he

even

could

believed that he

if

defendant

not be

deliberately

convicted

was not contributing to

if

avoided

he subjectively

criminal activity.

Defendant's Brief at 19.

-99

At the outset of our discussion, we note once again

that our

analysis must be

plain error

doctrine.

out that

in a

objected

to

instruction.
ironclad

the

supra at 6-7.
_____

court's

But

proposed

this was only

in

objections after the

this

Defendant points
to the

charge, he

willful

blindness

the first step.

circuit

that

of the

"failure

It is
to

an

renew

charge constitutes waiver of

any claim

United States v. Mendoza-Acevedo, 950

_____________
_______________

F.2d 1, 4

(1st Cir. 1991).

22 (1st

See
___

chambers conference prior

rule

of error."

made within the framework

See also
___ ____

Cir. 1991).

instruction was

Wartski v. Bedford, 926 F.2d

_______
_______

No objection to the

made after the

charge.

11,

willful blindness
This means

that we

review only for

plain error.

United States
_____________

v. McMahon, 938
_______

F.2d 1501, 1510 (1st Cir. 1991).

The willful blindness instruction was as follows:
The element
of knowledge
may be
satisfied by inferences drawn from proof
that the defendant deliberately closed
his eyes to what otherwise would have
been obvious to him if you so find.
A
finding beyond reasonable doubt of a
conscious purpose to avoid enlightenment
about whether the jewelry was stolen
would permit an inference of knowledge.
Or stated in another way, a defendant's
knowledge of a fact may be inferred from
willful blindness to the existence of
that fact.
It is entirely up to you as to whether
you find any deliberate closing of the
eyes and the inferences to be drawn from
any such
evidence.
A showing
of
negligence or mistake is not sufficient

-1010

to support a
knowledge.

finding of

United States v.
______________
(1st

Cir.), cert.

willfulness or

Littlefield, 840
___________

denied, 488

F.2d

U.S. 860 (1988),

143, 147
states the

_____

______

rule in this circuit on a willful blindness instruction:

It is now established in this circuit
that a willful blindness instruction is
proper if a defendant claims a lack of
knowledge, the facts suggest a conscious
course of deliberate ignorance, and the
instruction, taken as a whole, cannot be
misunderstood as mandating an inference
of knowledge.
In United States v. St. Michael's Credit Union, 880 F.2d 579,
_____________
__________________________
585 (1st Cir. 1989), we pointed out:
"The purpose of the willful blindness
theory is to impose criminal liability on
people who, recognizing the likelihood of
wrongdoing,
nonetheless
consciously
refuse
to
take
basic investigatory
steps."
[S]ee
United
States
v.
_____
_______________
Zimmerman, 832 F.2d 454, 458 (8th Cir.
_________
1987)
(willful blindness
instruction
"allows the jury to impute knowledge to
[a defendant] of what should be obvious
to him, if it found, beyond a reasonable
doubt, a conscious
purpose to avoid
enlightenment.").
(Citation omitted.)
We
determine

whether

amounted to
aroused
manner
eighteen

now

turn

to

giving

plain error.

concern about
in which

the

a
a

of

the

willful blindness

The first
source of

Bond shipped

months packages of

review

it to

flag that
the

defendant.

to

instruction
should have

jewelry was

jewelry were sent

-1111

evidence

the

For about
uninsured to

defendant via
Bond's

name

Federal Express.
as

information

sender.

Quite

the packages

gave

contrary:

the

the

on the packages stated false names and addresses

for the sender.

"unlisted"

the

None of

Telephone numbers were not

was used

invoices accompanied

for

given; the word

phone information.

No bills

the weekly jewelry shipments.

or

Instead,

Bond enclosed typed instructions with most shipments, Ex. 22A, as to the sale

of the jewelry.

If

a sale price was

not

suggested, defendant was told to "see what you can get."

The second flag that should have raised defendant's
suspicion was
imposed on

the telephone communication

defendant.

calling Bond's beeper

system that

Defendant could only

number.

Bond's method

Bond

contact Bond by
of telephoning

defendant was by collect calls to defendant from pay phones.

The

third flag

insisted on being paid.

of

suspicion

Payment

When

the

way

Bond

had to be made by overnight

mail on the day the jewelry arrived.

payments in cash.

was

At first Bond asked for

it became obvious that cash payments

entailed the

risk of loss

payments had

not been made,

or theft

or claims by

postal money orders

Bond that
were used.

Bond warned defendant during the time of cash payments not to

stack $100

bills on

top of one

give the feel of money.

another because

this would

When money orders became the mode of

payment, Bond warned defendant that weekly purchases of large

money orders were

"unusual" and defendant should

be careful

-1212

about arousing suspicions

by the IRS.

Bond

explicitly left

it up to defendant to avoid problems in Maine.

These three

flags

were sufficient

for a

willful

blindness instruction, but the most significant blinders that

defendant wore were
of hundreds
someone he

of thousands
did not know

from an estate.
met Bond first
hour

woven from his

with him.

Defendant only

of dollars

worth of jewelry

on the representation that

Defendant, according to his own

on August 23,
Bond

1989, and spent

had some

bought part of

pieces were overpriced.

the jewelry with

unquestioning acceptance

it came

testimony,

under a

chains and rings

from

half

for sale.

the lot, because some

of the

At Bond's request defendant paid for

a check made out

to cash.

Bond

came back

within a few days and

defendant bought a pair of unusual

gold coin cuff links from him.

September of

1989,

remembered him.
was."

$5

About a month later, in late

Bond called

defendant and

Defendant testified

asked if

"I had no idea

he

who he

He only remembered Bond, when Bond reminded him of the

$5 gold coin cuff links.

Bond, according to defendant,

wanted to know if
estate jewelry for
was a dealer from
up, he would allow
I was going to pay
that was about it.

I would liquidate some

him and that, since I
the area that he grew
me to do it as long as
good prices for it and

Shortly thereafter the packages of jewelry started to arrive.

At
telephoned

no time

prior

to March

19,

1991, when

Bond

defendant, and advised him that "they" were under

-1313

FBI surveillance and accused defendant of being an informant,

did

defendant,

suspicions
supplier

about
was.

watch, that
suggestion

according

had

the

to

source

Only once
been sent

of one of his

his
of

testimony,
the

jewelry

did defendant check

to him.

And

have
or

any

who his

on an item, a

that

customers, Paul Zebiak.

was at

the

Defendant

told

Zebiak that

there was

having been stolen.

no police

The jury

that defendant was

record of

could well

have concluded

so blinded by the steady

that he chose not to question

the watch

flow of jewelry

either its source or the

bona

fides of the sender.

We find that
for a

there was an ample

willful blindness instruction.

evidentiary basis

Nor can any

fault be

found with the wording of the instruction; it fully comported

with this circuit's requirements.
We further
refusing

to

instruct

deliberately closed
convicted

if

find

he

that the

the

jury

his eyes to
subjectively

court
that

did not

even

if

err

defendant

the facts, he could

believed

contributing to criminal activity.

that

he

in

not be
was

not

To begin with, there was

no objection after the charge

_____

to the court's refusal to give

the

error

instruction.

The plain

United States v. Martin, 815

_____________
______
denied,
______

484

instructions

U.S.

825

applies.

F.2d 818, 824 (1st Cir.), cert.

_____

(1987).

on intent made

doctrine thus

Secondly,

it clear that

-1414

the

court's

actual intent by

the defendant had to be proven by the government.

The court,

inter alia, charged as follows:

_____ ____
Two types of intent must be proved
beyond a reasonable
doubt before an
individual can be said to be a member of
a conspiracy: An intent to agree and an
intent that the substantive crime be
committed.
In order for you to find the
defendant
guilty
of
the conspiracy
offense,
you
must
find
beyond
a
reasonable doubt that he had an actual
intent, whether reasonable or not, that
one of the alleged crimes be committed.
We

conclude

appropriate.

that

the

willful

blindness

instruction

was

-1515

The Sentencing
The Sentencing
______________
The pertinent

sentencing findings of

court were as follows:

Base Offense Level
Base Offense Level
__________________
I find the following:
(a)

Under United States Sentencing

Commission
Guideline
(hereinafter "Guideline") 3D1.2(b),
the base offense level is 4 for
receiving,
transporting
or
possessing stolen property.

(b)

Pursuant
to
Guideline
2B1.1(b)(1)(K), if the value of
the stolen property
was at
least $200,000, but not more
than $350,000, there is a tenlevel increase. In the instant
offense, $280,000
of stolen
property
is
involved.
Therefore, the base
offense
level is increased 10 levels to

the district

14.
(c)

Section 2B1.2(b)(4)(A) of the

Guidelines
further
provides
that
if
the
offense
was
committed by a person in the
business
of
receiving
and
selling
stolen
property,
increase by four levels.
As
this
offense
involved
the
defendant
receiving
stolen
property and selling
it to
wholesalers,
a
four-level
increase is merited, increasing
the base offense level to 18.

(d)

The defendant has not accepted

responsibility for the offense.
He is, therefore, not eligible
to have the base offense level
decreased
two levels
under
Guideline 3E1.1(a). Therefore,
the Total Offense Level is 18.
-1616

(e)

The
defendant's
Criminal
History Category is Category I.

Based on a Total Offense Level of 18

and a Criminal History Category of I, the
applicable Guideline range is 27 to 33
months.
The

sentencing

incarcerated for a term of

judgment

was

that

defendant

be

twenty-nine months; that he pay a

fine of $6,000;

that he pay restitution of

$2,500; and that

he serve a term of suupervised release of three years.

Defendant

makes

two objections

to

the sentence.

First, he argues that the evidence does not support a finding

that

$280,000 worth

therefore,

the

of

invalid.

was involved

pursuant

and,

to U.S.S.G.

Second, defendant attacks

the

2B1.2(b)(4)(A), on the ground that there was

no evidentiary
business

property

ten-level increase

2B1.1(b)(1)(K) was
application of

of stolen

support for
receiving

and

the finding that

selling

stolen

he was
property

in the
and,

therefore, the four-level increase was invalid.2

There

can

be

no

question

about

the applicable

standard of review:

____________________
2Section 2B1.2(b)(4)(A) was deleted
with
2B1.1 effective
November 1,
2B1.1(b)(5)(B), which is identical to
provides:

by consolidation
1993.
Section
2B1.2(b)(4)(A),

If the offense involved receiving stolen

property, and the defendant was a person
in the business of receiving and selling
stolen property, increase by 4 levels.
-1717

Appellate review
application of the
is ordinarily a
First, the court of

of a district court's
sentencing guidelines
dichotomous process.
appeals determines de
__
the relevant guideline

novo the reach of

____
to ascertain whether it applies in a
given case.
Once the court of appeals
has defined the guideline's meaning and
scope, it reviews the sentencing court's
factfinding only for clear error.
United States v.
_____________

St. Cyr, 977 F.2d 698,

_______

701 (1st Cir. 1992)

(citations omitted).
Because both attacks on the sentence are based on a
claim of lack of evidentiary
reach of the

support and do not question the

relevant guidelines, our

whether the

district court's

review is limited

factual findings

to

were clearly

erroneous.
Valuation
_________
We start with the Commentary to
the

Commentary states

purposes

of

in

subsection

determined

with

reasonable

estimate

pertinent
(b)(1),

precision.
of

the

The

part:

the

loss

court

loss,

2B1.1.
"3.
need

need only

given

the

Note 3 of
For

the

not

be

make

available

information."
To

successfully challenge

the district's

finding of the amount of the loss, a defendant

must carry the burden of satisfying us
that the court's evaluation of the loss
was not only inexact, but was outside the

factual

universe of acceptable computations.

See
___
2F1.1, comment. (n. 8) (the
court
"need only
make a

U.S.S.G.
sentencing

-1818

reasonable estimate of the range of loss,

given the available information").
United States
_____________
1992).

v.

Tardiff, 969
_______

As we read
of

the

sentencing

valuation

on

the

F.2d

1283, 1288

the pre-sentence report and

hearing, the
following

district

defendant during the

Second,
figures.
Bond at

it

took into
Documentary

eighteen months of
account

several

evidence showed

least $179,000 for

based its
First,

jewelry.

the conspiracy.

inventory valuation
that defendant

the jewelry.

The sales to the

jewelry, Spector,
This

Zeliak

figure was supported

and

it

passed from Bond

paid

Defendant himself

estimated that he paid Bond between $150,000 to $200,000

the

Cir.

the record

court

considerations.

considered the total amount of jewelry that

to

(1st

for

three main purchasers of the

Levy,

totalled

by computer and

$392,878.00.

invoice records.

The valuation amount of $288,853.84 was the most conservative

estimate

in the pre-sentence report.

The probation officer,

after carefully reviewing the receipts and inventory records,

subtracted

from the

total sales

which arguably could

resulted

of

$392,878.00 all

have been for non-jewelry

in the valuation

items.

amount of $288,853.84

sales
This

adopted by

the court.
This finding

was

neither

clearly

erroneous

"outside the universe of acceptable computations."

nor

Tardiff,
_______

969 F.2d at 1288.

-1919

Was Defendant a Person in the Business of

_________________________________________
Receiving and Selling Stolen Property?
______________________________________
We have recently spoken directly to the application
of

1B1.1(b)(5)(B)

(formerly

2B1.1(b)(1)(K)).

States v. St. Cyr, 977 F.2d 698, the

______
________

In United
______

district court applied

the

four-level

[St. Cyr's]
came

increase "because

willingness and

into participation

person predisposed in
Id. at
___

701.

[the] easy

in this

In discussing the

receive

by the

[affair] .

which he

. .

he

was a

stolen property.'"

applicability of
under

the four-

2B1.2 there was a

Sentencing Commission

that when

persons

stolen property for resale, "'the amount of property

is likely to
and

that from

manner in

buying and selling

level increase we first noted that

commentary

it 'infer[red]

under-represent the scope of

the extent to

crimes.'

which they encourage

2B1.2,

their criminality
or facilitate other

comment. (backg'd)."

Id. at 702.
___

The

government urged that the commentary was as far as we need go

to decide the
we did
out

not rest our

that

Section

issue.

it was
2B1.2 was

present

perhaps presciently,

decision on the commentary

inadequate

and "prove[d]

deleted by

effective November 1,
the

Fortunately, and

2B1.1.

1993.
The

consolidation
There is no

and pointed

too
with

much." Id.
___
2B1.1,

such commentary to

commentary was,

of course,

in

effect at the time of defendant's sentencing, but it does not

play a significant role in our analysis.

-2020

After discussing the

appellate
increase

decisions
for

commentary, we surveyed other

addressing

"a person

selling stolen property."

in

the

applicability

the business

of

of

the

receiving and

We concluded that,

there is no bright line that separates

defendants who are "in the business" of
dealing in stolen property from those who
are not so engaged.
Therefore,
in
mulling
whether to
impose the
ITB
enhancement, the sentencing judge must
undertake
a
case-by-case
approach,
weighing
the
totality
of
the
circumstances, with particular emphasis
on the regularity and sophistication of a
defendant's
operation,
in
order to
determine whether a defendant is "in the
business" of receiving and selling stolen
property.
Id. at 703.
___
We
for

the

listed and explained

district

assessment.

The

court to
most

factor

important

defendant's dealings in stolen

a number of circumstances
into
was

its applicability
the

merchandise.

regularity
In

of

considering

this factor we suggested that,

a sentencing court can certainly consider
evidence about the
amount of income
generated through fencing activities, the
defendant's
past
activities,
his
demonstrated interest in continuing or
expanding the operation, and the value of
the property handled. Where there is no
indication either of a pattern of dealing
in stolen property or of a developed

operation that promises such consistency

for the future, the defendant is unlikely
to be "in the business."
Id.
___

-2121

second

circumstance

to be

sophistication of defendant's operation.

considered

is

the

We observed:

We

agree that the sophistication of

the defendant's operation is a second
circumstance that may itself indicate
business conduct. We can easily imagine
situations in which a fencing business,
although very much a business, has been
recently launched and therefore traces no
historical
pattern.
In
order
to
distinguish a new-to-the-business fence
from an amateur, however, the government
must at least offer a meaningful proxy
for regularity, say, by showing that the
operation
crossed
a
threshold
of
sophistication and commitment.
Id. at 704.
___
The St. Cyr court found that there
_______

was no evidence

from which either regularity or sophistication could be found

and held that four-level

increase was inapplicable.

In the

case at bar we come to the opposite conclusion.

The

question

is whether

the

district court

was

clearly erroneous in finding that defendant was "a person

the business of receiving and
evidence,

viewed

in

the

selling stolen property."

light

most

favorable

government, clearly demonstrates that defendant

Defendant bought stolen jewelry from
for an eighteen month period.

to

the

Bond on a weekly

basis

The amount defendant paid for

as he could after

the normal channels

The

was a fence.

the jewelry was much less than its market value.

jewelry as soon

in

He sold the

he received it.

of his coin shop business

He used

to make these

sales, and he kept records of these transactions.

-2222

There
stolen

can be

little doubt

that

the sale

jewelry was vital to defendant's business.

testified

that he

lost

business.

After

jewelry,

defendant's

$2,000

Bond started

during

business tripled.

Defendant

his first

supplying

him

of the

year

in

with stolen

And the

business

closed down three months after the flow of jewelry stopped in

March of 1991.
The sales end of
stolen

goods proceeded

business.

Although

arrangements between

defendant's receiving and selling

with
we

all

the

accouterments

would

not

call

business

Bond "sophisticated"

in

the dictionary sense, they were a modus operandi designed

_____ ________

to

minimize suspicion
financially

defendant and

the

of

and to

satisfied.

keep both

Until

supplier and

the police blew

receiver

the whistle,

defendant ran a successful fencing operation.

The judgment of the district court is Affirmed.
Affirmed.
_________

-2323