United States v. Mellen, Luther

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 15, 2004 Decided December 21, 2004

No. 03-3100

UNITED STATES OF AMERICA,
APPELLEE

V.

LUTHER E. MELLEN , III,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 01cr00180-02)

Robert C. Bonsib argued the cause and filed the briefs for
appellant Luther E. Mellen III.

Suzanne G. Curt, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Kenneth L. Wainstein,
U.S. Attorney, and John R. Fisher and Laura A. Ingersoll,
Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, and HENDERSON and
ROBERTS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBERTS.
 2

Opinion dissenting in part filed by Circuit Judge
HENDERSON.

ROBERTS, Circuit Judge: Elizabeth Mellen defrauded the
United States government of electronic goods worth hundreds
of thousands of dollars, giving most of them to her relatives.
Elizabeth’s husband Luther took part in the criminal activity to
the extent of joining with Elizabeth to procure a stolen laptop for
his son from a previous marriage, and using some of the stolen
goods around the home he shared with Elizabeth. He otherwise
appears to have stayed out of the broader conspiracy. Luther
was convicted of conspiracy and receipt of stolen property. At
sentencing, the district court found him responsible for all the
goods that flowed through the couple’s home — even the goods
he had neither participated in procuring nor used, but which
Elizabeth passed along to her relatives. Because the government
adduced sufficient evidence at trial to show that Luther agreed
to participate in the conspiracy to some extent, we affirm his
convictions. We vacate the sentence, however, because the
record contains no indication that Luther agreed to participate to
the extent of all the goods his wife brought into their home.

I.

This is the fifth appeal stemming from a series of convic-
tions in a conspiracy to defraud the United States Department of
Education (DOE). See United States v. Hayes, 369 F.3d 564
(D.C. Cir. 2004); United States v. Elizabeth Mellen, 89 Fed.
Appx. 268 (D.C. Cir. 2004) (unpublished opinion); United
States v. Morgan, No. 03–3061 (D.C. Cir. appeal filed May 22,
2003); United States v. Burroughs, No. 03–3093 (D.C. Cir.
appeal filed Aug. 5, 2003). Elizabeth Mellen, the central
character in this story, worked as a telecommunications special-
ist at DOE and was responsible for installation and maintenance
of telephone services throughout the Department. In that
 3

capacity, she was authorized to place orders under service
contracts DOE had with two companies, Bell Atlantic and
Lucent.

At some point, Elizabeth began to use her government
position to acquire goods and services for herself and her
extended family, paid for by the taxpayers. Elizabeth would ask
Robert Sweeney, a Bell Atlantic employee with responsibility
for the DOE account, to order electronic goods for her under the
Bell Atlantic contract. Sweeney would obtain the goods and
deliver them to locations specified by Elizabeth. Many of these
goods were initially delivered to Elizabeth’s home in
Mechanicsville, Maryland, though most of them ultimately
wound up elsewhere in the hands of various members of her
extended family.

Over the course of the conspiracy, Elizabeth ordered and
Robert Sweeney delivered a wide array of items, including more
than 100 cordless telephones, numerous two-way “talkabout”
radios, multiple state-of-the-art computers, and even a 61-inch
television set. In total, Elizabeth obtained more than $360,000
worth of equipment, all paid for by DOE. At her behest,
Sweeney and Lucent employee William Cousins also performed
various services for Elizabeth and her relatives, ranging from
complex cable and wiring installations to lawn-mowing and
other yard work.

Throughout this period, appellant Luther Mellen — also
known as “Butch” — was married to Elizabeth. Luther and
Elizabeth shared the home in Mechanicsville. In 1997, Luther’s
son from a previous marriage, Daniel Mellen, graduated from
high school in North Carolina. Luther attended the graduation
and gave his son a Dell laptop computer as a graduation present.
The computer was later shown to have been paid for by DOE.
Luther told his son that it had been picked out by Elizabeth and
 4

asked him to write her a thank you note. The computer came
with a power cord, and Daniel would testify that the power cord
broke “two to five times” and that each time his father obtained
a replacement cord for him. Trial Tr., Nov. 4, 2002 (A.M.), at
52–53. The power cords were also shown to have been paid for
by DOE.

The government finally caught on to Elizabeth’s criminal
activities when one of her co-workers contacted DOE’s Office
of Inspector General in August 1999. In December of that year,
special agents executed several search warrants, including one
for the Mellens’ Mechanicsville home. There, the agents found
almost $65,000 in property paid for by DOE. Most of the
property was located in the basement — much of it still in un-
opened boxes — but agents also found items in other areas of
the house. For instance, agents found a VCR in a closet
containing men’s clothing, a speaker phone in the master
bedroom, and a number of items in a den adjoining the bedroom.
See Trial Tr., Oct. 28, 2002 (A.M.), at 101–08; Trial Tr., Oct.
28, 2002 (P.M.), at 39.

A grand jury indicted Elizabeth and members of her
extended family for conspiracy to defraud the United States, in
violation of 18 U.S.C. § 371, and various other crimes. The
indictment named Luther as one of the conspirators and also
charged him with receipt of stolen government property, in
violation of 18 U.S.C. § 641. At trial the government presented
detailed evidence on how the stolen goods made their way to the
Mellens’ home. Robert Sweeney testified that on some occa-
sions he would bring items to Elizabeth’s office or would meet
her as she was coming out of work. Elizabeth would take the
goods home with her, frequently driving home with her hus-
band. Sweeney acknowledged, however, that Elizabeth in-
structed him to conceal the goods in a bag “so Butch couldn’t
see them.” Trial Tr., Oct. 29, 2002 (A.M.), at 73. On other
 5

occasions, Sweeney placed goods in the trunk of a car that
belonged to one of Elizabeth’s sisters, who also worked at DOE.
Again, Sweeney testified that he did this “so that Mr. Mellen
wouldn’t know [the goods] were there.” Id. at 89.

Sweeney also testified that on occasion he would deliver
larger items directly to the Mellens’ house. Sweeney had a key
to the house and would drop off the goods when no-one was
home. On one trip, Sweeney and a DOE employee unpacked a
large Gateway computer and placed the monitor in a visible
location in one of the upstairs rooms. On other trips, Sweeney
left packaged computers, phones, and printers inside the
Mellens’ front door. Sweeney testified that he tried to arrange
the goods “so Butch would not be able to see them,” but that he
was unable to conceal the goods completely. Id. at 58. On yet
other trips, Sweeney placed boxes of goods in the basement or
beneath a tarpaulin on the Mellens’ deck.

A number of Elizabeth’s family members implicated in the
crimes also testified at trial. These witnesses attested to various
aspects of Luther and Elizabeth’s marital relationship — such as
that Luther and his wife drove to work together and that she
cooked for him — and one witness noted that Luther was
present at a family outing where Elizabeth handed out
“talkabout” radios. See Trial Tr., Oct. 31, 2002 (A.M.), at
76–77. Some of the witnesses, however, also testified to their
belief that Luther was not involved in the conspiracy. See Trial
Tr., Oct. 24, 2002 (A.M.), at 135 (testimony of Ray Morgan, Jr.)
(“probably . . . Butch Mellen didn’t have anything to do with
this”); Trial Tr., Oct. 23, 2002, at 25 (testimony of special agent
George Blissman) (indicating that co-defendant Jeffrey Morgan
told agents that Luther “probably had no knowledge of what Eliz
was [d]oing”).
 6

Luther’s son Daniel testified about his father’s delivery of
the laptop computer and the replacement power cords. Daniel
also indicated that, after the investigation of the Mellens had
begun, his father advised him not to “be around” the computer.
Trial Tr., Nov. 4, 2002 (A.M.), at 65. The DOE employee who
had tipped off the Department about Elizabeth’s activities also
testified that, prior to reporting Elizabeth’s activities, she had
overheard several conversations between Elizabeth and Luther
on the subject of acquiring a two-way radio for a boat they
owned.

Finally, the government introduced evidence tending to
show Luther’s ability to comprehend what his wife was doing.
One witness explained that, as part of his job with the Environ-
mental Protection Agency (EPA), Luther was authorized to
make government purchases and had received training in the
procedures governing such purchases. The government also
showed that the Mellens shared a joint checking account and
that between 1997 and 1999 Luther had signed approximately 90
percent of the checks issued from the account — suggesting that
Luther was in charge of the couple’s finances.

In his defense, Luther introduced his EPA time, attendance,
and travel records from 1997 to 1999, but did not testify. The
jury found him guilty on both counts. The conspiracy verdict
did not specify the amount of loss attributable to Luther, while
the receipt of stolen property verdict indicated only that Luther
had received government property “having a value of more than
$1,000.” Verdict at 2.

The district court sentenced Luther pursuant to the Federal
Guidelines, under which the amount of loss affects a defendant’s
 7

sentence. See U.S.S.G. § 2B1.1(b)(1) (2000).1 At the sentenc-
ing hearing, the government asked that Luther be held responsi-
ble for $364,291.30 — an amount equal to the value of all the
goods stolen by his wife. Luther asked the court to limit his
responsibility to the laptop computer and power cords that he
had delivered to his son. The court held Luther responsible for
$225,582.63 — the value of all the stolen property that had
entered the Mellens’ home at some point during the conspiracy.
The court reasoned that Luther “knew that the property was
there. He knew of his wife’s involvement.” Sentencing Hr’g
Tr. at 18. The court also granted an upward adjustment for
“more than minimal planning” pursuant to Section
2B1.1(b)(4)(A) of the Guidelines, and denied Luther’s requests
for a downward departure and a mitigating role adjustment. The
court sentenced him to concurrent 27-month terms of imprison-
ment and three years of supervised release. Finally, finding that
Luther had the ability to pay a fine, the court imposed one of
$50,000.

Luther Mellen now appeals his conviction at trial and the
district court’s rulings on sentencing.

II.

Luther first asks us to reverse his convictions for conspiracy
to defraud the United States and for receipt of stolen government
property. He argues that the government failed to adduce
sufficient evidence to sustain either conviction. Luther also
maintains that the prosecutor in summation improperly referred
to his election not to testify. We find these arguments unavail-
ing and affirm the convictions.

1
The court applied the 2000 version of the Guidelines to avoid
an ex post facto problem. See U.S. CONST ., art. I, § 9, cl. 3; U.S.S.G.
§ 1B1.11(b)(1).
 8

A. The Supreme Court has emphasized that, in reviewing
a conviction for sufficiency of the evidence, we must affirm if
“any rational trier of fact could have found the essential ele-
ments beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979). Accordingly, we view the evidence in the
light most favorable to the government and allow the govern-
ment the benefit of all reasonable inferences. United States v.
William Jenkins, 981 F.2d 1281, 1282 (D.C. Cir. 1992). In order
to sustain a conviction for conspiracy under 18 U.S.C. § 371, the
evidence must show that the “defendant entered into an agree-
ment with at least one other person” to defraud the United
States; that he “knowingly participated in the conspiracy with
the intent to commit the offense;” and “that at least one overt act
was committed in furtherance of the conspiracy.” United States
v. Gatling, 96 F.3d 1511, 1518 (D.C. Cir. 1996) (citation
omitted). In order to sustain a conviction for receipt of stolen
government property, the evidence must show that defendant
received, concealed, or retained government property “with
intent to convert it to his use or gain, knowing it to have been
. . . stolen.” 18 U.S.C. § 641.

The government adduced sufficient evidence to prove both
counts beyond a reasonable doubt. In particular, the government
showed that Luther took several affirmative steps to secure a
stolen laptop computer for his son, and that Luther obtained the
computer through the agreement and cooperation of his wife. A
reasonable jury could also readily infer that several of the stolen
items found in the Mellens’ home were being used by Luther as
well as by his wife.

Luther argues that the evidence failed to show he knew any
of these goods were stolen, and that, accordingly, he also could
not have “knowingly participated” in the conspiracy. There is
ample evidence, however, from which a jury could find that
Luther knew what his wife was up to. See, e.g., Trial Tr., Oct.
 9

30, 2002 (A.M.), at 51–53 (e-mail from Luther to Elizabeth,
forwarding EPA’s policy allowing only de minimis use of
government property for employees’ personal needs). More-
over, guilty knowledge need not be proven only by evidence of
what a defendant affirmatively knew. Rather, the government
may show that, when faced with reason to suspect he is dealing
in stolen property, the defendant consciously avoided learning
that fact. See United States v. Reyes, 302 F.3d 48, 54–55 (2d
Cir. 2002). Here, a jury could have concluded that Luther was
in charge of the couple’s finances, that he understood the way
government purchasing works, and that he knew the nature of
his wife’s work. It would not take a rocket scientist to deduce
that the electronic equipment Luther was himself using was
stolen — an EPA employee with procurement training could do
that. See Trial Tr., Nov. 4, 2002 (A.M.), at 103–06. Accord-
ingly, when Luther agreed to take part in Elizabeth’s activities
— by joining to procure the laptop or by availing himself of the
goods in the house — he did so with all the knowledge neces-
sary to sustain his convictions.

B. At closing argument, the prosecutor asked the jury not
to equate Luther Mellen’s passive role with a lack of knowledge.
The prosecutor alluded to Luther’s demeanor at trial:

You know, Luther Mellen actually has been sitting there
very, very quietly all throughout this trial, writing as he’s
doing now, kind of tucked behind his attorney — [objec-
tion] — tucked behind his attorney — [overruled] — so
maybe you wouldn’t notice him. Do you think he’s missed
anything that’s gone on in this trial, Ladies and Gentlemen?

Trial Tr., Nov. 6, 2002 (A.M.), at 35. Following the summation,
the court issued a curative instruction, reminding the jury that
“[n]o defendant . . . is under any obligation to say anything, to
testify, offer any evidence, do anything.” Id. at 42.
 10

Luther argues that — despite the court’s curative instruction
— the prosecutor’s statement constitutes reversible error. As
Luther points out, it is well established that the Fifth Amend-
ment prohibits the government from highlighting a defendant’s
election not to testify. See Griffin v. California, 380 U.S. 609,
613–15 (1965). But not every improper statement provides a
ground for reversal. In conformity with our sister circuits, we
find error only where “the language used was manifestly
intended or was of such character that the jury would naturally
and necessarily take it to be a comment on the failure of the
accused to testify.” United States v. Williams, 521 F.2d 950,
953 (D.C. Cir. 1975) (internal quotation marks omitted).

The statement at issue here does not clear this threshold.
We disapprove of the prosecutor’s choice of words — she
should have been more careful, to avoid even raising the issue
— but we cannot say that she manifestly intended to draw
attention to Luther’s failure to testify. The context suggests that
she was instead trying to illustrate Luther’s awareness of his
wife’s activities. Nor can we say that the jury necessarily
understood the statement as a comment on Luther’s election to
rest on his Fifth Amendment right not to testify: the statement
described Luther’s physical appearance at the defense table, and
not the choices he had made in litigating his case.

III.

Luther next challenges the district court’s application of the
Sentencing Guidelines to the facts of his case. He argues that
the court erred in finding him responsible for the value of all the
stolen goods that entered the home he shared with Elizabeth. He
also disputes the increase in his sentence for “more than minimal
planning,” and the court’s decision not to grant him a downward
departure or a mitigating role adjustment. Finally, Luther
 11

challenges the court’s imposition of a fine. We examine these
contentions in turn.2

A. In order to sentence a defendant under the Guidelines,
the district court must determine the “relevant conduct” for
which that defendant is responsible. See U.S.S.G. § 1B1.3(a)
(2000). For a conspiracy offense, the Sentencing Guidelines
provide that relevant conduct includes “all reasonably foresee-
able acts and omissions of others in furtherance of the jointly
undertaken criminal activity.” Id. § 1B1.3(a)(1)(b). The district
court’s determination of relevant conduct in turn affects the
specific offense characteristics — such as amount of loss — that
are used to compute the sentence. See id. § 2B1.1(b)(1).

Here, the district court found Luther Mellen responsible for
a loss of $225,582.63. Luther does not dispute that this figure
accurately reflects the value of stolen goods that his wife
brought into their house. What he challenges is the relevance of
his wife’s behavior in this regard to the determination of his
sentence.
The parties disagree over the standard of review governing
the district court’s determination of relevant conduct. Luther

2
Luther also argues that his sentence is unconstitutional in light
of Blakely v. Washington, 124 S. Ct. 2531 (2004), since the district
court’s assessments of amount of loss and more than minimal planning
were predicated on facts not found by the jury. Supp. Br. at 1. The
Supreme Court is currently considering the applicability of Blakely to
the U.S. Sentencing Guidelines in United States v. Booker, No.
04–104, and United States v. Fanfan, No. 04–105 (certs. granted Aug.
2, 2004). We issue our judgment today without awaiting guidance
from the Supreme Court on this question because it appears, quite
apart from any constitutional concerns, that Luther may be eligible for
immediate release upon resentencing. To the extent necessary, the
district court may apply the Supreme Court’s upcoming decisions in
Booker and Fanfan in the first instance at resentencing.
 12

contends that this is a question of law to be reviewed de novo.
Appellant’s Br. at 17. The government cites United States v.
Seiler, 348 F.3d 265 (D.C. Cir. 2003), and United States v.
Pinnick, 47 F.3d 434 (D.C. Cir. 1995), for the proposition that
we review relevant conduct determinations only for clear error.
In Seiler, however, the dispute was a factual one as to whether
the district court erred in finding that the defendant laundered
money and obtained proceeds from a criminal conspiracy. 348
F.3d at 268–69. The dispute in Pinnick similarly involved the
factual findings underlying the district court’s determination of
relevant conduct. 47 F.3d at 437. By contrast, where as here the
relevant conduct issue involves not only a factual question, but
“the district court’s application of the guidelines to the facts,”
the proper standard is due deference — one between clear error
and de novo review. 18 U.S.C. § 3742(e); see United States v.
Jackson, 161 F.3d 24, 28 (D.C. Cir. 1998).

In attributing to Luther the value of property that he was not
shown to have used, the district court reasoned that Luther
“knew that the property was [in the house]. He knew of his
wife’s involvement.” Sentencing Hr’g Tr. at 18. The Sentenc-
ing Guidelines, however, provide that the conduct of
co-conspirators is attributable to the defendant as relevant
conduct only if that conduct is both foreseeable to the defendant
and “in furtherance” of the “jointly undertaken” activity.
U.S.S.G. § 1B1.3(a)(1)(B) (2000). Thus, where two individuals
agree to commit an offense, each becomes liable for actions
taken by the other in furtherance of that particular crime. See
United States v. Saro, 24 F.3d 283, 288 (D.C. Cir. 1994) (“Mere
foreseeability is not enough: someone who belongs to a drug
conspiracy may well be able to foresee that his co-venturers, in
addition to acting in furtherance of his agreement with them,
will be conducting drug transactions of their own on the side,
but he is not automatically accountable for all of those side
deals.”).
 13

In keeping with this rule, the Guidelines expressly require
sentencing courts to determine the scope of each defendant’s
conspiratorial agreement. See U.S.S.G. § 1B1.3 cmt. n.2 (2000);
see also United States v. Childress, 58 F.3d 693, 723 (D.C. Cir.
1995) (per curiam) (requiring district court to “spell out” its
findings on scope); United States v. Edmond, 52 F.3d 1080,
1105–06 (D.C. Cir. 1994) (per curiam) (same). Here, the district
court merely found that the presence of stolen goods in the
house was foreseeable to Luther. The court did not find that
Luther agreed to let his wife store them there.

Our recent decision in United States v. Seiler illustrates the
link that is missing in this case. Seiler was convicted of
conspiring with a government contractor fraudulently to
mark-up bids for NASA contracts. See 348 F.3d at 267. One of
the schemes involved Seiler’s own subcontracting company, but
two others did not. In affirming the district court’s determina-
tion that all three schemes constituted relevant conduct, we
required some evidence that Seiler agreed to participate in each.
Id. at 268–69. For the schemes that did not involve his com-
pany, we observed that Seiler participated by laundering money
in one, and that the district court reasonably concluded he was
paid to help carry out the other. Id. Thus, for every scheme
included as relevant conduct, we could point to record evidence
indicating the defendant’s agreement to join that aspect of the
conspiracy.

There is nothing inherently implausible about the dissent’s
contrary “in for a penny, in for a pound” approach, but it is
clearly foreclosed by our precedents. We have repeatedly held,
in conformity with our sister circuits, that the scope of a defen-
dant’s particular conspiratorial agreement controls his sentenc-
ing exposure. Where the record is unclear as to whether the
crimes at issue constitute a single or multiple conspiracies, the
sentencing court cannot assume the former and thereby obviate
 14

its duty to determine the scope of each defendant’s agreement.
Saro, 24 F.3d at 288–89. What is more, even when there is but
a single conspiracy, and “there [is] sufficient evidence against
each of the [defendants] to conclude that she or he agreed to
further the purposes of this single conspiracy,” we still require
the sentencing court to determine the scope of each defendant’s
agreement. Childress, 58 F.3d at 712, 722. In Childress, for
example, we upheld the finding of a single conspiracy, but
nonetheless vacated the sentences, because the court “focus[ed]
exclusively on reasonable foreseeability” without considering
the extent of each defendant’s agreement. Id. at 723.3

In this case, the government is on solid ground with respect
to the laptop and any equipment used by Luther. As for the bulk
of the $225,000 worth of stolen equipment, however, the
government’s case shows at most that Luther knew about its
transitory presence in the house. As we have held, Luther
cannot close his eyes to the obvious. But that evidence of
knowledge does not show agreement, and such a showing is
required before attributing aspects of the conspiracy to Luther as
relevant conduct. See Reyes, 302 F.3d at 54 (Conscious
avoidance doctrine “may be invoked to prove defendant had
knowledge of the unlawful conspiracy. But we do not permit the
doctrine to be used to prove intent to participate in a conspir-
acy”).

3
The dissent states that “the trial judge heard the same evidence
the jury heard in convicting Luther and, having heard it, he had ‘no
doubt . . . whatsoever’ of Luther’s participation in the conspiracy.”
Dissent at 4–5 (emphasis added). What the trial judge actually said
was that he had no doubt that Luther knew of his wife’s involvement.
See Sentencing Hr’g Tr. at 18 (“He knew of his wife’s involvement in
the scheme. I have no doubt about that whatsoever.”). The dissent’s
willingness to equate knowledge with agreement — participation —
repeats the error we condemned in Childress.
 15

The government’s case that Luther Mellen took part in the
conspiracy to the extent of all the goods his wife brought into
their house — as opposed to the more limited extent of the
goods Luther himself used — is based on little more than the
fact that Luther and his wife owned the home together. There is
a significant body of law about when individuals can be held
responsible for allowing their homes to be used in furtherance
of a crime. See, e.g., United States v. Morillo, 158 F.3d 18, 23
(1st Cir. 1998); United States v. Brito, 136 F.3d 397, 409 (5th
Cir. 1998); United States v. Ronald Jenkins, 78 F.3d 1283, 1286
(8th Cir. 1996); United States v. Rice, 1992 WL 240686 at *5–6
(4th Cir. 1992) (unpublished opinion). In such cases, however,
the defendants either knowingly allowed non-owners to use their
homes or took affirmative steps to facilitate the use of their
property. In the absence of such facts, mere acquiescence in the
conduct of a co-owner is insufficient to support the necessary
conclusion that the defendant agreed to the illegal use of his
home.4

4
The dissent correctly states that in most of the cases cited in this
paragraph — as in the present case — the defendants had participated
in the conspiracy beyond merely acquiescing in the use of their homes.
Dissent at 6. We do not suggest otherwise. Rather, our point is that
the acts of participation in the cited cases — unlike those in the
present case — show the defendants’ agreement to the use of their
homes. See Brito, 136 F.3d at 409 (defendant “actively participated
in the storage of marijuana” in his house); Jenkins, 78 F.3d at 1286
(“large amounts of cocaine were stored in the basement of
[defendant’s] home at his instruction”); Rice, 1992 WL 240686 at
*5–6 (defendant knowingly allowed non-owners to conduct drug
transactions in and around his house). Here, Luther helped to obtain
a laptop computer for his son and may have used some of the items his
wife had acquired for their home, but neither of these actions shows
that he agreed to her use of the home as a storage facility for
thousands of dollars in stolen goods intended for her relatives.
 16

This is particularly true here, given the significant evidence
that Elizabeth tried to keep Luther from discovering the stolen
goods she was storing in their home — evidence not present in
any of the above cases. The government’s own witnesses
repeatedly testified they took steps, at Elizabeth’s instruction, to
prevent Luther from appreciating the scope of her crimes. This
evidence indicates that while he may not have attempted to
block his wife’s use of what was, after all, her home too, he did
not agree to such use, either. If he had agreed, what would be
the point of trying to keep him in the dark about the extent of the
conspiracy?

The government would have us find agreement from
nothing more than the closeness of the Mellens’ marriage. Thus,
the government devotes a notable part of its brief to chronicling
the nature of their relationship: they had been married over 15
years, they drove to work together, Elizabeth prepared meals for
her husband, and so on. U.S. Br. at 33–34. We think the
government’s resort to such arguments indicates the weakness
of its case. Homer thought there was “nothing greater and better
than this — when a husband and wife keep a household in
oneness of mind,” The Odyssey, bk. VI, l. 180, but there is no
evidence that the drafters of the Sentencing Guidelines assumed
such an ideal could substitute for proof of an agreement to
participate in a conspiracy. The record suggests that Elizabeth
conducted the conspiracy and made use of the house as she
pleased, without consulting her husband. The fact that he knew
what she was doing does not mean he agreed to it.

The government argues that even if we reverse the district
court’s determination of relevant conduct for conspiracy, we
should still uphold Luther’s sentence. This argument is based
on Luther’s conviction for receipt of stolen government prop-
erty: the government maintains that even if he did not agree to
the scope of his wife’s activities, Luther still “receiv[ed],
 17

conceal[ed], or retain[ed]” all the stolen goods that Elizabeth
brought into their house. See 18 U.S.C. § 641; U.S. Br. at
47–48. In essence, the government maintains that Luther
violated 18 U.S.C. § 641 because he knew that his wife was
storing stolen property in their house.

We do not agree. While this court has allowed juries to
infer that a defendant exercises constructive possession over
items found in his home, we have done so only when the record
suggests the defendant himself exercised dominion and control
over the items at issue. See United States v. Wahl, 290 F.3d 370,
376 (D.C. Cir. 2002) (noting that evidence of a gun found in a
defendant’s house “may not alone compel a conclusion that
[defendant] had constructive possession”); United States v.
Edelin, 996 F.2d 1238, 1241 (D.C. Cir. 1993) (per curiam)
(allowing an inference of constructive possession of drugs found
in a bedroom dresser based on specific evidence that defendant
occupied the bedroom and exercised dominion and control over
the dresser). Nothing in the record before us indicates that
Luther exercised dominion and control over stolen goods
Elizabeth intended for her relatives, just because she temporarily
stored the goods in the house she shared with Luther.

The government cites United States v. Sylvia Jenkins, 928
F.2d 1175 (D.C. Cir. 1991), where we upheld the sentence of a
mother convicted of trafficking cocaine found in areas of her
house inhabited by her son and other, unrelated individuals. In
Jenkins, as here, the incriminatory evidence was stored largely
out of defendant’s view, but — unlike this case — the record
contained no suggestion that the other participants were actively
hiding it from her. Id. at 1179. In addition, police found
ammunition in a bedroom occupied solely by Jenkins, and we
held that a jury could infer guilt based on the theory that guns
and drugs go together. See id. (“When this [ammunition] is
added we are convinced that a rational juror could find Jenkins’
 18

guilt beyond a reasonable doubt.”). Even with this additional
evidence, we found that the government had “just barely” made
its case. Id. As such language suggests, we are unwilling to
expand that precedent to cover this case.5

What is more, 18 U.S.C. § 641 requires not simply that
Luther received or concealed stolen property, but that he did so
with “the intent to convert it to his use or gain.” The record in
this case is bereft of any suggestion that Luther intended to
convert $225,582.63 worth of electronics — most of which left
the house shortly after it was brought in — to his own use or
gain. At oral argument, the government indicated that Luther
knew that being able to give significant gifts to her relatives
made his wife happy. This, however, merely shows that
Elizabeth gained something from the crimes, not that her
husband did so as well.

In sum, giving due deference to the district court’s findings,
we must nonetheless conclude that the court erred in determin-
ing the relevant conduct and amount of loss attributable to
Luther Mellen. We remand for resentencing on the conspiracy
and receipt of stolen property counts, and instruct the district
court to limit Luther’s responsibility to the laptop computer and
to any goods he personally used. These goods may include
some items found in use in the Mellens’ home, but should not
include items — such as those that passed through the home and

5
We take the dissent’s point about the different standards of
proof on conviction and sentencing, see Dissent at 7–8, but the issue
here is not so much the necessary quantum of evidence as whether
there is any evidence showing Luther’s agreement in the broader
aspects of his wife’s activities, or his dominion and control over the
goods she temporarily stored in their house. Our concern is not the
circumstantial nature of the evidence, see id. at 4 n.4, but whether that
evidence shows agreement as opposed to mere knowledge.
 19

into the hands of Elizabeth’s relatives — for which the record
contains no evidence of Luther’s agreement.

B. The district court also increased Luther’s sentence by
two levels because his crimes involved “more than minimal
planning.” See U.S.S.G. § 2B1.1(b)(4)(A) (2000). The Guide-
lines call for this adjustment when the crime involves “more
planning than is typical for commission of the offense in a
simple form.” Id. § 1B1.1 cmt. n.1(f). More than minimal
planning is also present “in any case involving repeated acts
over a period of time, unless it is clear that each instance is
purely opportune.” Id. The Guidelines also note that “planning
is often related to increased difficulties of detection and proof.”
Id. § 2B1.1 cmt. background. Because a determination of more
than minimal planning involves analysis of both law and fact,
we give the district court’s findings due deference. United
States v. Kim, 23 F.3d 513, 516–17 (D.C. Cir. 1994).

Limiting our inquiry to the crimes in which Luther Mellen
agreed to participate, we affirm the increase for more than
minimal planning. The series of transactions relating to the
laptop alone involved “more planning than is typical for the
commission of the offense in a simple form”: Elizabeth Mellen
had to place an order with Robert Sweeney, Sweeney had to
deliver the computer to Elizabeth or her home (in exchange for
which she allowed him to bill his time to DOE), and Luther had
to take the computer and deliver it to his son in North Carolina.
Luther even participated in the concealment of the laptop: when
he found out that the family was under investigation, Luther
instructed his son not to “be around” the computer, as a result of
which his son hid it in the mountains of North Carolina. Trial
Tr., Nov. 4, 2002 (A.M.) at 65. In addition to the laptop, Luther
also sent his son several power cords, which were also paid for
by DOE. See id. at 52–53. In light of all this, we cannot say
that the district court erred in applying the two-level increase.
 20

C. Given our remand on the amount of loss, we need not
reach Luther’s request for a downward departure. That request
was based on an assertion that the district court’s finding on the
amount of loss overstated Luther’s involvement in the crimes.
At any rate, we note that a district court’s decision not to depart
downward is reviewable only if the district court misconstrued
its authority to depart. Pinnick, 47 F.3d at 439. The record
before us does not suggest that the court did so.

As for Luther’s request for a mitigating role adjustment
under Section 3B1.2 of the Guidelines, we note that such
adjustments are proper only when the defendant is “plainly
among the least culpable” or “less culpable than most other
participants.” U.S.S.G. § 3B1.2 cmt. nn.1 & 3 (2000). Here, the
district court reasonably could have found Luther as culpable as
several other small-scale participants in this large-scale conspir-
acy.

Finally, we turn to Luther’s contention that the district court
improperly imposed a fine. Under the Guidelines, the court
must impose a fine unless the defendant is unable to pay one.
U.S.S.G. § 5E1.2(a) (2000). We review the court’s finding on
ability to pay only for clear error. United States v.
Mastropierro, 931 F.2d 905, 907 (D.C. Cir. 1991). Here, the
court found that Luther had an ability to pay based on his
government pension — which he apparently retained — and his
assets at the time of sentencing. See Sentencing Hr’g Tr. at
26–31. We see no reason to overturn this finding. We note,
however, that the amount of the fine will be affected by the
court’s redetermination of the amount of loss — see U.S.S.G §
5E1.2(c)(3) (2000) — and the district court should alter the fine
accordingly.
 21

IV.

“The extent of a defendant’s vicarious liability under
conspiracy law is always determined by the scope of his
agreement with his co-conspirators.” Saro, 24 F.3d at 288.
Here, the district court found a husband vicariously liable for all
the stolen property his wife temporarily stored in their home,
without evidence that he agreed to join in his wife’s criminal
activity to that extent. Such a finding threatens to turn all
spouses into co-conspirators because of their agreement to marry
— not because of their agreement to participate in a particular
conspiracy. We require more specific evidence of guilt, and
accordingly remand for resentencing based only on the crimes
in which the husband agreed to participate.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting in
part:
In reversing the district court’s determination at
sentencing regarding Luther Mellen’s responsibility for the
value of all of the stolen goods that entered the Mellen house,
the majority has confused the bonds of matrimony with the
conduct of co-conspirators. Luther Mellen (Luther) was
convicted of conspiracy to defraud the government not
because he married Elizabeth Mellen but because he decided
willfully and knowingly to participate in the criminal
conspiracy she directed. Despite my brethren’s apparent
sympathy for Luther’s accommodating marital attitude,1 the
fact that Luther may merely have wanted to please his wife 2
does not alter the well-established law governing the scope of
a co-conspirator’s “relevant conduct” under the United States
Sentencing Guidelines (U.S.S.G. or Guidelines). In
describing Luther’s culpability as guilt by association rather
than as the common accountability of a co-conspirator, I
believe the majority makes two mistakes: first, it fails to apply
the correct standard of review to the trial court’s critical
finding of fact, a finding anchored by the trial evidence;
second, it misapplies the law regarding a co-conspirator’s
“relevant conduct” under the Guidelines. Accordingly, while
I join in Parts I, II, III.B, III.C and IV of the majority opinion,
I dissent from Part III.A.
The Guidelines authorize the district court to include in a
co-conspirator’s “relevant conduct” “all reasonably
foreseeable acts and omissions of others in furtherance of the

1
Maj. Op. at 16.
2
Sentencing Tr., Aug. 5, 2003 [1:30 PM] at 32.
 2

jointly undertaken criminal activity.” U.S.S.G. §
1B1.3(a)(1)(B) (2000). The Commentary instructs the trial
court to “determine the scope of the criminal activity the
particular defendant agreed to jointly undertake” and to
consider “all reasonably foreseeable quantities of contraband
that were within the scope, of the criminal activity that he
jointly undertook.” U.S.S.G. § 1B1.3 cmt. n.2 (2000). The
issue, then, as the majority correctly pinpoints, is the scope of
the conspiratorial agreement between Luther and his wife,
Elizabeth. To determine scope the sentencing court must
decide whether the evidence established a single conspiracy
of which the defendant was a part or multiple conspiracies,
only some of which the defendant took part in. United States
v. Childress, 58 F.3d 693, 722 (D.C. Cir. 1995). The
determination of scope is the responsibility of the trial court.
United States v. Edmond, 52 F.3d 1080, 1105 (D.C. Cir. 1995)
(“[T]he logic of [the precedent] requires the District Court,
not us, to determine the proper scope of agreement….”). If
the trial court fails to make findings regarding the scope of a
defendant’s involvement in a conspiracy, we ordinarily
remand the case to permit it to do so. Childress, 58 F.3d at
726; Edmond, 52 F.3d at 1105; United States v. Anderson, 39
F.3d 331, 359 (D.C. Cir. 1994); United States v. Saro, 24 F.3d
283, 290-92 (D.C. Cir. 1994).
Here the district court did make the crucial finding as to
the scope of the conspiracy at the sentencing hearing. After
considering the arguments of counsel, the trial evidence and
the pre-sentence report, the trial judge determined that
Luther’s culpability encompassed all of the property that
flowed through the Mellen house, concluding, “$225,582.63,
is indeed the value of the property that Mr. Mellen is
responsible for in the criminal activity, because he knew that
 3

the property was there. He knew of his wife’s involvement in
this scheme. I have no doubt about that whatsoever.”
Sentencing Tr., Aug. 5, 2003 [1:30 PM] at 18. The majority
decides that this finding of fact is subject to the “due
deference” standard of review, citing United States v.
Jackson, 161 F.3d 24 (D.C. Cir. 1998) (“[A] district court’s
application of the Guidelines to the facts must be given ‘due
deference….’”). Maj. Op. at 12. I respectfully disagree that
“due deference” is the correct standard of review. The trial
judge made an unvarnished finding of fact which we do not
disturb unless it is “clearly erroneous.” See United States v.
(Elizabeth) Mellen, 89 Fed. Appx. 268 (D.C. Cir. 2004) (“[I]n
reviewing sentences the court … ‘shall accept the findings of
fact of the district court unless they are clearly erroneous….’”
(quoting 18 U.S.C. § 3742(e))); see also United States v.
Spriggs, 102 F.3d 1245, 1262 (D.C. Cir. 1996) (per curiam).
The district court first found that Luther participated in the
conspiracy with respect to all of the goods that passed through
the Mellen house. It then decided how to apply section 1B1.3
of the Guidelines. Childress, 58 F.3d at 722 (scope of
conspiratorial participation “depends on factual findings”
(internal quotation marks omitted)).
The record here manifests that the trial court’s factual
finding as to the scope of Luther’s involvement is anything
but clearly erroneous. Luther was convicted of conspiracy to
defraud the government by “causing Elizabeth C. Mellen …
to obtain computers, telephones, cameras, [and] other
electronic equipment … for the personal use of the
coconspirators.” Grand Jury Indictment (June 17, 1999) at 7.
Some of the goods stolen as part of that conspiracy were
delivered to the Mellen house to be distributed to Luther’s
wife’s relatives. Other goods were in use or in plain view in
 4

the Mellen house. Trial Tr., Oct. 28, 2002 [A.M.], at 91-108.3
Luther was present at times when some of the goods were
distributed to other family members. Trial Tr., October 30,
2002 [A.M.], at 6.4 Although the district court’s finding is
terse, I believe that necessarily implied in its words is the
finding that Luther, knowing of his wife’s fraudulent activity
taking place in their house, did nothing to disassociate himself
from it.5 After all, the trial judge heard the same evidence the

3
An additional $140,000 worth of stolen property never
passed through the Mellen residence.
4
How the majority, facing these facts, can question
“whether there is any evidence showing Luther’s agreement in
the broader aspects” of the conspiracy is beyond me. Maj. Op.
at 18 n.5 (emphasis in original). The evidence may be
circumstantial but it is nonetheless undeniable. “[T]he law has
no preference for direct evidence over circumstantial and often
it is the latter that is the more reliable.” United States v. Spinner,
152 F.3d 950, 963 (D.C. Cir. 1998) (internal citation omitted).
5
The majority notes that the jury found Luther guilty of
receiving stolen property “having a value of more than $1000.”
Maj. Op. at 6. The verdict form included no specific property
value on the conspiracy count. Id. The receipt/stolen property
count’s allusion to “more than $1000” merely tracks the
language of 18 U.S.C. § 641 and indicates nothing about the
jury’s view of the extent of Luther’s involvement in the
conspiracy. The jury was, however, in possession of the
indictment. Trial Tr., November 6, 2002 [A.M.] at 148. The
receipt/stolen property count charged Luther with all of the
property — $225,000 worth — that passed through the Mellen
 5

jury had in convicting Luther and, having heard it, he had “no
doubt … whatsoever” of Luther’s participation in the
conspiracy. 6 The court even allowed for the testimony about
keeping Luther “in the dark” by limiting Luther’s
responsibility to the goods delivered to the house — some
$225,000 worth — as opposed to the entire $365,000 worth of
goods involved in the fraud.7 Having made a permissible

house during the conspiracy. Grand Jury Indictment at 32–34
(June 17, 1999). The conspiracy count charged that Luther and
the other co-conspirators “willfully combined, conspired,
confederated, and agreed with each other … to defraud the
United States” and described Luther’s involvement within the
entirety of the conspiracy. Id. at 6–31.
6
I do not, as the majority suggests, Maj. Op. at 14 n.3,
understand the district court’s comment to equate knowledge
with participation. Rather, I think the statement — “He knew of
his wife’s involvement in the scheme. I have no doubt about
that whatsoever.”— was the court’s shorthand finding, in light
of all of the evidence it had heard throughout the trial, that
Luther both knew about, and participated in, the conspiracy
involving all of the goods that passed through the Mellen house.
7
The jury may have found the testimony regarding
Elizabeth’s effort to shield Luther from the full scope of the
conspiracy lacking in credibility. Robert Sweeney testified that
he was unable to comply fully with Elizabeth’s instructions to
conceal any goods delivered to the Mellen house “so Butch
[Luther] would not be able to see them.” Trial Tr., October 29,
2002 [A.M.], at 58. Sweeney further testified that Elizabeth
“didn’t want anyone to know about the deliveries,” including
 6

finding as to scope, the trial judge’s application of the
Guidelines is unremarkable and plainly worthy of “due
deference”: it was reasonably foreseeable to Luther that all of
the goods delivered to and passing through the house in which
he resided furthered the conspiracy of which he was a part.
To support its conclusion the majority cites several cases
involving circumstances in which a defendant has been
deemed a co-conspirator based on activities taking place in his
house. See United States v. Brito, 136 F.3d 397, 409 (5th Cir.
1998); United States v. Ronald Jenkins, 78 F.3d 1283, 1286
(8th Cir. 1996); United States v. Rice, 1992 WL 240686 at *5
(4th Cir. 1992) (unpublished opinion); cf. United States v.
Morillo, 158 F.3d 18, 23-24 (1st Cir. 1998). These cases
provide more support for the proposition that the entire
amount of property passing through the Mellen house was
reasonably foreseeable to Luther than they do for the
majority’s more limited view of “foreseeability.” First, each
of these cases involved a sufficiency of the evidence challenge
to a conspiracy conviction, not a challenge to the
determination of “relevant conduct” at sentencing where the
applicable burden of proof is simply a preponderance of the
evidence. United States v. Stover, 329 F.3d 859, 871 (D.C.
Cir. 2003). Moreover, each of the Brito, Jenkins and Rice
defendants, like Luther, had participated in the conspiracy
beyond merely acquiescing in the use of his house. Brito, 136
F.3d at 409 (defendant “actively participated in the storage of
marihuana”); Ronald Jenkins, 78 F.3d at 1286 (defendant

Lewis Morgan. This instruction was — to put it mildly —
improbable because, as Elizabeth well knew, Lewis Morgan
helped Sweeney deliver the stolen goods. Id. at 59–60.
 7

“assisted in the accounting of drug proceeds”); Rice, 1992 WL
240686 at *6 (evidence sufficient to infer defendant’s
participation in the conspiracy). In Morillo, another challenge
to a conspiracy conviction, the court reversed the conviction
because there was “no evidence of any involvement [by the
defendant] in any other aspect of the conspiracy” aside from
lending his apartment to the conspirators. Morillo, 158 F.3d
at 23. That is not the case here. Even more distinguishable,
the defendant in Morillo no longer lived in the apartment
when the conspiratorial acts occurred there. Id. at 24. Finally,
unlike the Morillo court, we are affirming Luther’s conspiracy
conviction.
The majority also attempts to distinguish our own
precedent of United States v. Sylvia Jenkins, 928 F.2d 1175
(D.C. Cir. 1991). Jenkins lived with her son and was
convicted along with him and others of conspiracy to possess
cocaine. There was no evidence of her involvement in the
conspiracy other than her residing in the house (which she
owned) where the cocaine was seized and the discovery of
ammunition in her bedroom. We declared that the “natural
inference is that those who live in a house know what is going
on inside, particularly in the common areas.” Id. at 1179.
Sylvia Jenkins’s possession of ammunition permitted the
inference that she was involved in the drug conspiracy and we
affirmed her conviction. Id. Here Luther’s participation in
the conspiracy — obtaining his son’s laptop — permits the
same inference with respect to the other goods delivered to the
Mellen house. The majority is right to distinguish Jenkins but
for the wrong reason. Jenkins involved a conspiracy
conviction, not a sentencing calculation. The majority’s
reluctance “to expand [Jenkins] to cover this case,” Maj. Op.
at 18, is therefore unfounded: if the government “‘just barely’
 8

made its case” at trial to prove Jenkins’s guilt beyond a
reasonable doubt, id. (quoting Jenkins), it requires no
expansion to affirm the trial court’s “relevant conduct”
determination regarding Luther supported by the lesser
preponderance of the evidence standard applicable at
sentencing.
Moreover, “a conspiracy can be inferred from a
combination of close relationships or knowing presence and
other supporting circumstantial evidence.” Brito, 136 F.3d at
409. The majority minimizes the evidence of the closeness of
Luther and Elizabeth’s marriage as manifesting a weakness in
the government’s position, Maj. Op. at 16, and ignores the
other circumstantial evidence linking Luther to the goods
passing through the house, including Luther’s request that
Elizabeth obtain Motorola two-way radios for their use,
coupled with his presence at a family gathering where
Elizabeth distributed similar radios to her relatives, the many
times when driving to or from work together that Luther and
Elizabeth retrieved stolen goods from Elizabeth’s sister’s
vehicle, as well as the sheer quantity of goods recovered from
throughout the house on the day of the police raid.8
In its decision to limit Luther’s involvement, the majority
assumes without discussion that there were multiple

8
See Trial Tr., October 28, 2002 [A.M.], at 91–108 (volume
of goods found at Mellen home); Trial Tr., October 29, 2002
[P.M.], at 127–28 (goods placed in Elizabeth’s sister’s vehicle);
Trial Tr., October 30, 2002 [A.M.], at 5–7 (distribution of two-
way radios to Elizabeth’s relatives); id. at 8–9 (retrieval of
goods from Elizabeth’s sister’s vehicle); Trial Tr., October 30,
2002 [P.M.], at 43–45 (Luther and Elizabeth’s discussion about
two-way radios for personal use).
 9

conspiracies at work: one between Elizabeth and Luther to
defraud the government of the laptop obtained for Luther’s
son; another between Elizabeth and Luther to defraud the
government of electronics for their personal use at their
house; another involving the distribution of goods from their
house — as well as the storage of goods there — of which
Luther was not a part; and still others of which Luther was not
a part in which no goods passed through the house. See Maj.
Op. at 14. Although the record may permit such an
assumption, it does not require it. The majority treats the
record as if it were insufficient as a matter of law to hold
Luther accountable for all of the goods that passed through the
house. Instead of allowing the district court on remand to
“spell out” its findings as to the scope of Luther’s
involvement, Childress, 58 F.3d at 722, the majority
erroneously constrains the district court’s role as fact-finder.9
Unlike the federal tax code, the criminal law permits
neither a marriage penalty nor a marriage bonus. See Joint
Committee on Taxation, Description of the Marriage Tax
Penalty Relief Act of 2000, JCX-3-00 (Jan. 31, 2000). The
majority has handed Luther the equivalent of a refund check.
It makes the hyperbolic assertion that holding Luther
accountable for all of the goods distributed from the Mellen
house “threatens to turn all spouses into co-conspirators
because of their agreement to marry — not because of their

9
Although I would affirm outright the district court’s
“relevant conduct” determination, I believe a remand should at
least leave the trial court free to “spell out” that the $225,000
worth of stolen property that passed through the Mellen house
was reasonably foreseeable to Luther.
 10

agreement to participate in a particular conspiracy.” Maj. Op.
at 21. Luther was a convicted co-conspirator, not an
“innocent spouse.” At sentencing, the government must
“proffer sufficiently reliable evidence to support its factual
assertions as to the scope of a defendant’s conspiratorial
agreement” to count co-conspirators’ acts as part of the
defendant’s “relevant conduct.” United States v. Booze, 108
F.3d 378, 381 (D.C. Cir. 1997). Here the district court was
“entitled to rely on the trial record references cited by the
government.” Id. at 384. That evidence should easily allow
us to uphold the trial court’s finding that Luther’s “relevant
conduct” included the value of all of the goods flowing
through the Mellen house. While the evidence may not fit the
Homeric ideal of which the majority speaks, Maj. Op. at 16, I
believe it is sufficient to conclude that the Mellens kept both
their household and their conspiracy with “oneness of mind.”
For the foregoing reasons, I respectfully dissent from Part
III.A of the majority opinion.