United States v. Ziskind

United States Court of Appeals
For the First Circuit

No. 03-2645

UNITED STATES OF AMERICA,

Appellee,

v.

BRUCE SCOTT ZISKIND,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Torruella, Lipez and Howard,
Circuit Judges.

Michael J. Traft, with whom Carney & Bassil, P.C., was on
brief, for appellant.
Kirby A. Heller, Attorney, United States Department of
Justice, with whom Michael J. Sullivan, United States Attorney,
and Fred M. Wyshak, Jr., Assistant United States Attorney, were
on brief, for appellee.

June 20,2007
 HOWARD, Circuit Judge. Bruce Scott Ziskind was indicted

in 2002 of one count of conspiracy to steal goods traveling in

interstate commerce and two counts of receiving stolen interstate

shipments of goods. 18 U.S.C. § 371 (conspiracy); 18 U.S.C. § 659

(receipt of stolen goods). A jury convicted Ziskind on all counts

of the indictment, and he was sentenced to 63 months of

imprisonment on each count, to be served concurrently. Ziskind

appeals his conviction and sentence.1

In early 1995, Ziskind and his associate, John "Mick"

Murray, devised a scheme to steal computer equipment from local

United Parcel Service (UPS) shipments. They recruited, Daniel

Gilday, a UPS worker, and told him to steal computer equipment and

pass it along to Ziskind. Ziskind owned an electronics company

through which he sold the stolen merchandise and shared a portion

of the profits with Murray and Gilday. On several occasions,

Ziskind searched some UPS trucks for merchandise himself and

assisted Gilday in recruiting other UPS drivers for the scheme.

Eventually, Gilday became disenchanted with his cut of

the profits, so he found another buyer, Robert Powell, who paid

better. On occasion, Gilday still provided goods to Ziskind and

Murray. Soon, however, Ziskind noticed that Gilday's supply had

diminished and complained to Gilday about it.

1
We recently rejected another appeal from Ziskind in a
criminal prosecution involving a different theft conspiracy. See
United States v. Ziskind, 471 U.S. 266 (1st Cir. 2006).

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 In January 1997, Gilday stole a shipment of

semiconductors that the United States Navy was returning to Alamo

Computer in Massachusetts and delivered them to Murray. Ziskind

initially claimed that the semiconductors were worthless but later

learned that they were very valuable. This led to a dispute

between Ziskind and Gilday, which Ziskind resolved by paying Gilday

$5,000. In May 1997, Gilday stole a shipment of video cards from

a company called Osicom Technology and, after unsuccessfully trying

to sell them to Powell, sold them to Ziskind. Soon after this

transaction, Gilday was arrested. Ziskind and Murray were also

subsequently arrested and indicted for their involvement in the

scheme.

At trial, Ziskind conceded that he had joined the

conspiracy with Murray and Gilday in 1995, but left the conspiracy

a few months later, and therefore had nothing to do with the 1997

thefts. Since the charges against Ziskind had a five-year statute

of limitations, see 18 U.S.C. § 3282, he asserted that he was

entitled to an acquittal because the statute of limitations had

run.

On appeal, Ziskind's only challenge to his conviction

concerns the admission of a stipulation that his co-conspirator,

John Murray, had previously pleaded guilty to the counts of the

indictment with which he was being charged. Ziskind argues, on

appeal, that the admission of this stipulation violated his Sixth

Amendment right to confront adverse witnesses under Crawford v.

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Washington, 541 U.S. 36 (2004). The government argues that Ziskind

waived this argument by agreeing to the stipulation or, at a

minimum, forfeited it by not raising a Crawford-type claim below.2

See United States v. Olano, 507 U.S. 725, 733 (1993)

(distinguishing between waiver and forfeiture). Ziskind claims

that he fully preserved the argument. To put this standard of

review issue into context, some additional background is required.

Ten days before trial, the government filed a motion in

limine to admit Murray's plea allocution into evidence. The

district court held a hearing on the motion, at which time Ziskind

objected to the introduction of the allocution. He claimed that

its admission presented "a Bruton situation" because the allocution

could implicate him in the crime. See United States v. Smith, 46

F.3d 1223, 1227 (1st Cir. 1995) ("Bruton error occurs where the

codefendant's hearsay statement expressly implicates the defendant

[in the crime] . . . ." (internal quotation marks omitted)).

The district court found Ziskind's objection well-taken

and proposed to the parties that, instead of introducing the

allocution, they stipulate that Murray had previously pleaded

guilty to the counts of the indictment with which Ziskind was

charged. The court also promised to instruct the jury that the

2
We say "Crawford-type" claim because Crawford had not yet
been decided when Ziskind was tried. This circumstance, however,
did not relieve Ziskind of raising an objection on the grounds
later embraced by Crawford. See United States v. Luciano, 414 F.3d
174, 178 (1st Cir. 2005); see also United States v. Hadley, 431
F.3d 484, 498 n.8 (6th Cir. 2005).

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stipulation was not evidence that Ziskind had participated in the

conspiracy. Ziskind's counsel stated that "he probably would not

have an objection to that" but "that he would want to see the

wording." Later in the hearing, Ziskind's counsel reiterated that

he would "have no objection as long as Mr. Ziskind's name is kept

out," but that he would "object to . . . the use of his name as

being involved in the conspiracy." Thus, counsel again aired his

Bruton objection.

At the end of the government's case, it introduced the

stipulation, which stated, "The parties hereby stipulate and agree

that on July 1, 2002 John Murray, AKA "Mick" Murray pled guilty to

his participation in the conspiracy alleged in Count 1 and to the

thefts alleged in Counts Two and Three." The stipulation was

signed by Ziskind and his counsel, and Ziskind did not object upon

its admission. The district court did not offer a limiting

instruction concerning the use of the stipulation at this juncture.

After the jury retired to deliberate, it asked to see the

stipulation. At that time, the district court consulted with the

parties, and Ziskind's counsel restated his concern about the

Bruton problem, asking that, if the stipulation went to the jury,

the jury also be told that the stipulation does not prove Ziskind's

involvement in the conspiracy. The court questioned whether there

had ever been an objection to the stipulation, to which Ziskind's

counsel replied, "I know I argued to you [that] this is Bruton."

The court then recalled that objection, and Ziskind proceeded to

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try to broaden it by claiming that the objection was not limited to

Bruton. Rather, according to Ziskind's counsel, the objection was

to the admission of the stipulation in its entirety because he did

not have the chance to cross-examine Murray about the plea. Before

providing a copy of the stipulation to the jury, the court provided

a limiting instruction stating that the stipulation could be used

as evidence that a conspiracy existed in 1997 but not that Ziskind

had been involved.

The government's contention that Ziskind waived his

Crawford objection by agreeing to the stipulation poses a difficult

question. On the one hand, no contemporaneous objection was lodged

when the signed stipulation was admitted into evidence. On the

other hand, throughout the proceeding, Ziskind claimed that the

admission of the stipulation presented a possible Bruton problem to

the extent that it implicated Ziskind in the conspiracy. Waiver,

which ordinarily precludes any appellate consideration of an issue,

requires a showing that the party intentionally relinquished or

abandoned an argument. See United States v. Rodriguez, 311 F.3d

435, 437 (1st Cir. 2002). The record can be read to support

Ziskind's contention that he did not agree, without reservation, to

the admissibility of the stipulation. Thus, a reasonable argument

could be made, that Ziskind at least preserved an objection to the

stipulation under Bruton and did not intentionally relinquish any

appellate argument concerning the stipulation.

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 But, regardless of whether a Bruton objection was

preserved, Ziskind has not argued Bruton on appeal. Instead, he

has argued that the admission of the stipulation was

unconstitutional under Crawford because it permitted the

introduction of testimonial hearsay. It is settled law in this

circuit "that an objection on one ground does not preserve

appellate review of a different ground." United States v. Mercado,

412 F.3d 243, 247 (1st Cir. 2005). No Crawford-type argument was

made either during the pre-trial hearing when the stipulation

procedure was discussed or when the government offered the

stipulation at the close of its case. Indeed, at the pretrial

hearing, Ziskind expressly stated that he had no objection to the

admission of the stipulation so long as his name did not appear and

he signed the stipulation that was eventually read to the jury.

Ziskind did make something resembling a Crawford-type argument at

the end of the discussion about the jury's request to see the

stipulation; but at that point, it was too late. See United States

v. DeLeon, 187 F.3d 60, 65 (1st Cir. 1999) (concluding that

objection to admission of evidence is not preserved for appellate

review where the objection is not made until after the introduction

of the evidence); United States v. Tse, 135 F.3d 200, 209 (1st Cir.

1998) (similar). Thus, Ziskind's Crawford argument is forfeited,

and we therefore review it only for plain error.

To warrant reversal of his conviction, Ziskind must show:

(1) the occurrence of an error; (2) that the error is obvious or

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clear under current law; (3) that the error affected his

substantial rights; and (4) that it seriously impaired the

fairness, integrity, or public reputation of the judicial

proceedings. See United States v. Turbides-Leonardo, 468 F.3d 34,

38 (1st Cir. 2006). As we explain below, Ziskind is not entitled

to relief under this standard of review.

In Crawford, the Supreme Court overruled prior precedent

to hold that the Confrontation Clause of the Sixth Amendment

prohibits the government from introducing testimonial hearsay

against a defendant in a criminal trial. Crawford, however, was

not decided until after Ziskind's trial, and the district court

recognized, in an order rejecting Ziskind's post-trial motion to

stay the execution of his sentence, that if Crawford had been the

governing law at trial, it would have ruled the stipulation

inadmissible. On appeal, the government has not argued that the

stipulation was admissible under Crawford. We therefore assume

that Ziskind has met the first two prongs of the plain error

standard. See Johnson v. United States, 520 U.S. 461, 468 (1997)

(holding that error is plain if the law is clear at the time of

direct appellate review, even though governing law was unclear at

time of trial).

We turn then to whether the admission of the stipulation

affected Ziskind's substantial rights. Under this standard,

Ziskind has to show that "the error . . . affected the outcome of

the district court proceedings." United States v. Cotton, 535 U.S.

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625, 632 (2002). Ziskind contends that the admission of the

stipulation was critical evidence in the case because the

government used it to undermine his claim that he had withdrawn

from the conspiracy before 1997. In this regard, he relies on a

portion of the government's closing argument, stating:

You also know [the conspiracy] continued
because, as you know from the stipulation, Mick
Murray pleaded guilty to stealing both the Navy
shipment and the Osicom shipment in 1997,
Counts 2 and 3 of this Indictment. Now, as you
know, the fact that Murray pleaded guilty to
stealing these packages or being involved in
the thefts doesn't mean that the defendant was.
But it does tell you that Murray was -- that
these packages were stolen as part of a
conspiracy involving Mick Murray and that
therefore they were stolen as part of a
conspiracy involving Mick Murray. And because
Murray was an original member of this
conspiracy, you know the conspiracy was
continuing in 1997.

The government's use of the stipulation was not

sufficiently important for us to conclude that it likely affected

the outcome of the trial. Ziskind did not seriously contest

Murray's involvement in the conspiracy from 1995 to 1997, which

included the Navy and Osicom robberies. His defense was that,

while these robberies took place as part of a conspiracy that

existed in 1997, he was not then involved. The government relied

on the stipulation only to argue that a conspiracy existed in 1997,

involving these robberies. It emphasized, however, that the

stipulation was not evidence that Ziskind was involved in these

crimes. The limited significance of the stipulation was also

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stressed by the district court in its supplemental jury

instructions. The court told the jury that it could "use [the

stipulation] as evidence, first, that a conspiracy existed; and,

second, that the thefts there were alleged in Counts 2 and 3 took

place. But [it cannot] use it to show somehow that Mr. Ziskind was

involved." See Richardson v. Marsh, 481 U.S. 200, 206 (1987)

(stating that there is an "almost invariable assumption of the law

that jurors follow their instructions"). Thus, the jury was well

aware that it could not consider the stipulation in deciding the

central issue -- whether Ziskind was involved in the conspiracy

through 1997.

There was, however, ample evidence demonstrating that

Ziskind was involved through 1997. The government presented

testimony from Gilday directly implicating Ziskind in the 1997

robberies and this testimony was partially corroborated by Powell.

There was also documentary evidence of telephone calls between

Gilday and Ziskind in 1997. And Michael Servideo, another UPS

driver, testified that Ziskind tried to recruit him into the

conspiracy in 1997 by offering him $2,000.

In sum, the stipulation was used for a limited purpose on

a point that Ziskind did not seriously contest. The government and

the district court both advised the jury on the limited purpose for

which the stipulation could be used, and the government presented

a strong case demonstrating that Ziskind participated in the

conspiracy through 1997. Under these circumstances, we conclude

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that Ziskind has not shown that the introduction of the stipulation

affected his substantial rights, and therefore there is no basis

for reversing his conviction. Cf. United States v. Reifler, 446

F.3d 65, 87 (2d Cir. 2006) (finding Crawford error in the

introduction of co-conspirator's plea allocution harmless beyond a

reasonable doubt in a RICO prosecution where it was used only to

show the existence of an enterprise, not the defendant's

participation).

We turn now to Ziskind's challenges to his sentence.

Ziskind was sentenced under Sentencing Guidelines in effect in

November 1998 and before United States v. Booker, 543 U.S. 220

(2005), rendered the Guidelines advisory. Ziskind's presentence

report (PSR) recommended a base offense level of four, increased by

thirteen levels for losses from relevant conduct beginning in 1995.

The PSR also recommended a three-level enhancement based on

Ziskind's leadership role in the conspiracy, see U.S.S.G. 3B1.1(b),

and a four-level enhancement for receiving stolen property while in

that business, see id. § 2B1.1(b)(1)(B). Under the PSR

calculation, Ziskind's guideline range was 63 to 78 months of

imprisonment.

Ziskind raised several objections to the PSR, including

the calculation of the amount of loss, the role-in-the-offense

enhancement, and the "being in the business of receiving stolen

property" enhancement. The court reduced the loss calculation to

provide for only a ten-level enhancement. In so doing, it counted

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losses from the two 1997 thefts and one theft that occurred in

1996. The court also rejected the challenge to the "in the

business" enhancement and increased the role-in-the-offense

enhancement to four levels based on the view that Ziskind was

extensively involved in managing the conspiracy and that the

conspiracy involved more than five participants. The resulting

guideline sentencing range (GSR) was 51 to 63 months.

The district court sentenced Ziskind to 63 months of

imprisonment on each count, to be served concurrently. The court

explained its sentencing rationale as follows:

I am going to impose the high end of the
Guidelines. And, in fact, I gave very serious
consideration to whether or not I should exceed
them. But I have given fairly detailed
consideration to evaluation of loss at the
front end -- that is, in the calculation of the
relevant total offense level. And my concern
was that I not enervate that kind of evaluation
by a separate back-door evaluation of the scope
of the offense. So, I have chosen not to
depart here, although there is in this case a
fairly substantial amount of evidence
suggesting that the loss that I've calculated
does not completely capture all of the
defendant's activities. I have also considered
the question of this stale criminal record and
determined that it would be inappropriate for
me to import the prior convictions that are
outside of the range that the Guidelines take
into consideration into my evaluation of
whether or not to depart here. Again, those
are close questions in this case, but not ones
that have ultimately caused me to depart.

Ziskind's first challenge to his sentence is to the

district court's inclusion of the 1996 theft in its loss

calculation on the ground that this conduct took place outside the

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five-year statute of limitations for the charged offenses. In

making this argument, Ziskind relies on the Supreme Court's

decisions in Stogner v. California, 539 U.S. 607 (2003), and

Booker. We review this challenge to the guideline calculation de

novo as it presents a question of law. See United States v.

Talladino, 38 F.3d 1255, 1263 (1st Cir. 1994).

Stogner is irrelevant. In that case, the Court held that

a California statute that restarted the limitations period for sex-

related child abuse offenses to one year from the time that the

crime was reported to police was unconstitutionally ex post facto.

Stogner does not concern a court's ability to consider relevant

conduct occurring outside the statute of limitations period for

sentencing the defendant for a crime that took place within the

statute of limitations period, and we have been shown no case

suggesting its relevance. Moreover, consideration of conduct

taking place outside the limitations period for sentencing purposes

has been held not to be punishment and thus ex post facto concerns

are inapposite. See United States v. Watts, 519 U.S. 148, 155

(1997) ("Consideration of information about the defendant's

character and conduct at sentencing does not result in punishment

for any offense other than the one of which the defendant was

convicted.")

It was well-established prior to Booker that a district

court may consider relevant conduct outside of the statute of

limitations period in fashioning the defendant's sentence. See,

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e.g., United States v. Williams, 217 F.3d 751, 754 (9th Cir. 2000);

United States v. Stephens, 198 F.3d 389, 390-91 (3d Cir. 1999);

United States v. Valenti, 121 F.3d 327, 334 (7th Cir. 1997);

United States v. Behr, 93 F.3d 764, 765-66 (11th Cir. 1996) (per

curiam); United States v. Silkowski, 32 F.3d 682, 688 (2d Cir.

1994); United States v. Neighbors, 23 F.3d 306, 311 (10th Cir.

1994); United States v. Pierce, 17 F.3d 146, 150 (6th Cir. 1994).

Ziskind contends, however, that Booker undermines this rule because

the jury did not find that he actually committed the conduct

outside of the statute of limitations period which the court used

to increase his sentence.

This argument misconstrues the holding in Booker. Booker

did not hold that the Sixth Amendment prohibits judicial

factfinding; it held only that the Sixth Amendment is violated by

a mandatory guideline sentence scheme predicated on such factual

determinations. See United States v. De Los Santos, 420 F.3d 10,

14 (1st Cir. 2005); United States v. Antonakopoulos, 399 F.3d 68,

75 (1st Cir. 2005). Thus, we have consistently rejected the

argument that judicial factfinding, by itself, violates Booker.

E.g., United States v. Bermudez, 407 F.3d 536, 545 (1st Cir. 2005);

United States v. Lewis, 406 F.3d 11, 21 (1st Cir. 2005). And

consistent with this view, courts of appeals after Booker have

continued to uphold the district court's reliance on relevant

conduct outside of the limitations period in setting a sentence.

See United States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2006);

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United States v. Greer, 175 Fed. Appx. 95-96 (7th Cir. 2006).

Accordingly, Ziskind's argument that the district court erred in

considering relevant conduct outside the statute of limitations

period in fashioning his sentence fails.

Ziskind next challenges the district court's imposition

of a four-level role-in-the-offense enhancement. He argues that

this enhancement was inappropriately applied because his

involvement in the conspiracy was limited to identifying "what sort

of stolen goods could be readily marketed." We review the

imposition of a role-in-the-offense enhancement for clear error.

See United States v. Rodriguez Alvarado, 985 F.2d 15, 19-20 (1st

Cir. 1993).

Section 3B1.1(a) of the Guidelines prescribes offense-

level enhancements based upon the size of the criminal organization

and the defendant's role in the offense. A four-level enhancement

applies where the defendant engages in a leadership or

organizational role for criminal activity that involved five or

more people. Id. The Guidelines provide a nonexclusive list of

factors to guide the determination of whether a defendant held a

leadership or organizational role.3 Id.

3
These include: the exercise of decision making authority; the
nature of the participation in the commission of the offense; the
claimed right to a larger share of the fruits of the crime; the
degree of participation in planning or organizing the offense; the
nature and scope of the illegal activity; and the degree of control
and authority exercised over others. Id. at cmt. 4.

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 The record easily supports the district court's decision

to apply the four-level enhancement. There was evidence that

Ziskind conceived of the scheme; actively recruited participants;

exercised control over the operation by deciding what goods to

steal; and controlled the payout of money earned by the scheme to

other participants. See generally United States v. Monteiro, 417

F.3d 208, 212-13 (1st Cir. 2005).

Next, Ziskind argues that he is entitled to remand for

resentencing under Booker because he was sentenced pursuant to the

pre-Booker mandatory guideline regime. Ziskind concedes that he

did not preserve this argument, and therefore review is limited to

plain error. Under plain error review, a defendant sentenced pre-

Booker is entitled to resentencing if he can demonstrate "a

reasonable probability that he would have received a more lenient

sentence under an advisory guideline regime." United States v.

Martins, 413 F.3d 139, 154 (1st Cir. 2005).

Ziskind cannot make the necessary showing. The district

court sentenced him at the high end of the applicable GSR, a fact

that indicates a remote possibility of a below guideline sentence

on remand. See United States v. McLean, 409 F.3d 492, 505 (1st

Cir. 2005). Moreover, at sentencing, the district court stated

that it "gave very serious consideration" to imposing a sentence

above the GSR. Addressing Ziskind's motion to stay the execution of

sentence, the district court also explicitly stated that "the

sentence imposed under the mandatory guidelines scheme would in all

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likelihood be the sentence [it] would impose under an advisory

guidelines sentencing scheme." On this record, there is no basis

to conclude that Ziskind would be sentenced more leniently on

remand.

Finally, Ziskind contends that the district court erred

in sentencing him to 63 months' imprisonment on the conspiracy

count because that sentence exceeded the 60-month statutory

maximum. See 18 U.S.C. §371. The government concedes this error,

and we therefore vacate the sentence on the conspiracy count.

For the reasons stated above, we vacate the sentence on

the conspiracy count (Count 1) and remand for the imposition of a

60-month sentence on this count. The remainder of the judgment is

affirmed.

So ordered.

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