United States v. McMinn

USCA1 Opinion









UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT


No. 96-1592

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT MCMINN,

Defendant, Appellant.

____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge] ___________________

____________________

Before

Torruella, Chief Judge, ___________

Cyr* and Boudin, Circuit Judges. ______________

____________________


Matthew J. Lahey, with whom McLaughlin, Hemeon & Lahey, P.A. was ________________ ________________________________
on brief for appellant.
Jean B. Weld, Assistant United States Attorney, with whom Paul M. ____________ _______
Gagnon, United States Attorney, was on brief for appellee. ______


____________________

January 13, 1997
____________________





____________________

*Cyr, J., was not present at oral argument.












CYR, Circuit Judge. Appellant Robert McMinn mounts CYR, Circuit Judge. _____________

four challenges to the sentence imposed following his conviction

on several felony counts relating to his acquisition, interstate

transportation, and sale of stolen audio and video components.

See 18 U.S.C. 371, 2314 & 2315. As the sentence enhancement ___

imposed pursuant to U.S.S.G. 2B1.1(b)(4)(B) for engaging "in

the business of receiving and selling stolen property" ("ITB"

enhancement) constituted error, we vacate the district court

judgment and remand for resentencing.

I I

DISCUSSION DISCUSSION __________

A. Upward Departure (U.S.S.G. 4A1.3) A. Upward Departure (U.S.S.G. 4A1.3) __________________________________

The district court granted the government's motion for

an upward departure under U.S.S.G. 4A1.3 (1995), from a Total

Offense Level ("TOL") of 18 and a Criminal History Category

("CHC") of III, to TOL 20 and CHC VI, on the ground that CHC III

would have underrepresented the seriousness of McMinn's prior

criminal conduct and the likelihood of recidivism. McMinn

contends that the three affidavits relied upon by the district

court for its departure-related findings were not reliable.1

First, the district court did not place principal

reliance on the challenged affidavits for its factual findings



____________________

1We review factual findings for clear error, see United ___ ______
States v. Shrader, 56 F.3d 288, 292 (1st Cir. 1995), mindful that ______ _______
the sentencing court is vested with "wide discretion" to deter-
mine whether sentencing information is reliable. Id. at 294. ___

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relating to the seriousness of McMinn's prior criminal conduct.2

Moreover, though McMinn claims that the affidavits were uncorrob-

orated, and the affiants untrustworthy, he chose not to cross-

examine one of the affiants at sentencing. In addition, he had

cross-examined the other two affiants at the earlier trial on

drug-conspiracy charges before the same judge. See supra note 1. ___ _____

Finally, the district court was presented with unchallenged ____________

police reports, describing various burglaries and corroborating

other information in the affidavits. See United States v. ___ ______________

Shrader, 56 F.3d 288, 294 (1st Cir. 1995). There was no clear _______

error.

B. Obstruction of Justice Enhancement (U.S.S.G. 3C1.1) B. Obstruction of Justice Enhancement (U.S.S.G. 3C1.1) ____________________________________________________

Second, McMinn challenges a two-level enhancement for

obstruction of justice, see U.S.S.G. 3C1.1, based on threaten- ___

ing letters he sent in February, April and October of 1995 to

Steven Serfass, a prospective government witness. McMinn argues

that Serfass was not connected with the investigation, prosecu-

tion, or sentencing of the "instant" offenses involving inter-

state transportation, receipt, and sale of stolen audio and video
____________________

2Rather, the upward departure decision was based upon the
following considerations as well:
(1) five felony drug convictions entered June 13, 1989, and
six convictions based on criminal conduct occurring between 1990
and 1994, which were not taken into account in calculating the
CHC;
(2) an uncharged burglary;
(3) an uncharged conspiracy to distribute large quantities
of marijuana between 1987 and 1995; and, finally,
(4) the fact that McMinn was on bail when he committed the
stolen-property offense, and had also violated parole and commit-
ted various other infractions, including drug use, while incar-
cerated.

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components, since Serfass neither testified, nor were the threat-

ening letters admitted, at the trial on these charges. Instead,

Serfass testified at an earlier trial on drug charges which were

severed from the stolen-property charges on June 20, 1995. As

the enhancement for obstruction of justice under U.S.S.G. 3C1.1

applies only to obstructing an "investigation, prosecution, or

sentencing of the instant offense," McMinn claims that the _______

district court erred as a matter of law in concluding that

conduct unconnected with the stolen-property charges could

support the enhancement. We find no error.

At the time McMinn mailed the threatening letters,

Serfass remained a prospective government witness in relation to

the "instant offense"; i.e., the stolen-property charges. It was ____

not until January 1996, immediately prior to the trial on the

stolen-property charges, that it became clear that Serfass would

not testify. Thus, there was no error in the district court's

determination that McMinn attempted to obstruct the prosecution

of the stolen-property charges by mailing the threatening let-

ters. C. ITB Enhancement (U.S.S.G. 2B1.1(b)(4)(B)(1995)) C. ITB Enhancement (U.S.S.G. 2B1.1(b)(4)(B)(1995)) ________________________________________________

Third, McMinn contends that the district court erred in

imposing a four-level ITB enhancement under U.S.S.G.

2B1.1(b)(4)(B) (1995). Relying primarily on United States v. ______________

Braslawsky, 913 F.2d 466, 468 (7th Cir. 1990), he argues that an __________

ITB enhancement is impermissible unless the defendant was in the

business of receiving and selling property stolen by others _________ ___ ______

(i.e., in the business of "fencing" stolen property). The ____


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district court ruling that McMinn's criminal conduct came within

the ITB enhancement guideline is reviewed de novo. See United __ ____ ___ ______

States v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992). ______ _______

The four-level ITB enhancement guideline, by its

express terms, applies only if "the offense involved receiving

stolen property, and the defendant was a person in the business __ ___ ________

of receiving and selling stolen property." U.S.S.G. __ _________ ___

2B1.1(b)(4)(B) (emphasis added). Thus, on its face at least, the

ITB guideline does not apply to a defendant who makes a business

of stealing property; that is, a professional "thief," as distin-

guished from a professional fence. See Braslawsky, 913 F.2d at ___ __________

468 (holding that, by its terms, the ITB enhancement does not

apply to a professional thief).

Under the common-law tradition, stealing property from

another normally does not equate with "receiving" property from

its rightful owner. See Milanovich v. United States, 365 U.S. ___ __________ ______________

551, 558 (1961) (Frankfurter, J., dissenting) ("a thief cannot be

charged with committing two offenses that is, stealing and

receiving the goods he has stolen[,] . . . for the

commonsensical, if not obvious, reason that a man who takes

property does not at the same time give himself the property he

has taken.") (citations omitted); Baugh v. United States, 540 _____ ______________

F.2d 1245, 1246 (4th Cir. 1976) ("logic . . . instructs us that

there is an inherent inconsistency in treating a taking as a

receipt"); see also United States v. Trzcinski, 553 F.2d 851, 853 ___ ____ _____________ _________

(3d Cir. 1976), cert. denied, 431 U.S. 919 (1977). Therefore, ____ ______


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statutes which criminalize "receiving" are generally not thought

to target the thief himself, but the wrongdoer who knowingly

acquires the loot from or through the thief. See, e.g., ___ ____

Milanovich, 365 U.S. at 729-730; Heflin v. United States, 358 __________ ______ _____________

U.S. 415, 419-20 (1959); United States v. Washington, 861 F.2d _____________ __________

350, 352 (2d Cir. 1988). Thus, a fair reading of the plain

language employed in section 2B1.1(b)(4)(B) strongly suggests

that a defendant engaged in selling only the property he is

responsible for stealing has not "received" it in the sense

contemplated by the Sentencing Commission.

Should there be any doubt about the plain language, the

parallel development of the sentencing guideline governing thefts

of property, see U.S.S.G. 2B1.1, and the guideline on receiving ___

stolen property, see id. 2B1.2, together with the evolution of ___ __

the language employed in the ITB enhancement guideline itself,

see id. 2B1.1(b)(4)(B), tend to confirm that the Commission ___ __

envisioned that "theft" alone not constitute a "receiving" of

stolen property for these purposes. Under the original Sentenc-

ing Guidelines, U.S.S.G. 2B1.1 (1987) governed "Larceny,

Embezzlement and Other Forms of Theft," whereas U.S.S.G. 2B1.2

(1987) governed "Receiving Stolen Property." The offense of

receiving stolen property was subject to an ITB enhancement, see ___

U.S.S.G. 2B1.2(b)(2)(A) (1987) ("If the offense [i.e. receiving ___ _______ ____

stolen property] was committed by a person in the business of __ ___ ________ __

selling stolen property, increase by 4 levels.") (emphasis _______ ______ ________

added), which clearly applied to the professional fence and not


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to a defendant who simply sold property he pilfered. See id. ___ __

2B1.2, comment (backg'd) (1987) ("Persons who receive stolen _______

property for resale receive a sentence enhancement . . . .") ______

(emphasis added);3 Braslawsky, 913 F.2d at 468. The guideline __________

governing theft crimes included no corresponding ITB enhancement.

See U.S.S.G. 2B1.1 (1987). ___

The disjunctive treatment required under these two

guideline sections clearly implied that the Commission did not

intend that the ITB enhancement apply to defendants responsible

only for the theft of the ill-gotten property and not its "re-

sale." See supra note 3. At the time the Sentencing Guidelines ___ _____

were promulgated, the Commission consistently demonstrated its

intention that like enhancements be applicable to both "theft"

and "receipt" offenses by including a parallel enhancement

____________________

3The Commission's choice of the word "resale" vividly
suggests a prior sale (by the thief to the fence) conspicuously
lacking between the rightful owner and the thief. Thus, the
commentary provides authoritative definition to the scope of the
original ITB enhancement. See Stinson v. United States, 508 U.S. ___ _______ _____________
36, 38 (1993) (" . . . commentary in the Guidelines Manual that
interprets or explains a guideline is authoritative unless it
violates the Constitution or a federal statute, or is inconsis-
tent with, or a plainly erroneous reading of, that guideline.").
The background commentary to U.S.S.G. 2B1.2 was deleted at the
time U.S.S.G. 2B1.2 was consolidated into U.S.S.G. 2B1.1.
See U.S.S.G. 2B1.1, as amended by amendment 481 (effective Nov. ___ __ _______ __
1, 1993). But though there is no longer any commentary on the
ITB enhancement, see United States v. Richardson, 14 F.3d 666, ___ _____________ __________
674 (1st Cir. 1994), neither is there any reason to believe that
consolidation of the two original guideline sections, and the
consequent deletion of the background commentary, was meant to
alter the scope of the ITB enhancement. Rather, along with the
consolidation and deletion of 24 other guideline sections, the
Commission consolidated 2B1.2 with 2B1.1 because the offenses
were closely related and the Commission wanted to simplify the
Guidelines Manual. See U.S.S.G. App. C, amend. 481 (1995). ___

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provision in each guideline. See id. 2B1.1(b)(2); 2B1.2(b)(3) ____ ___ __

(1987) (parallel enhancements relating to stealing and receiving

(stolen) firearm, destructive device or controlled substance);

id. 2B1.1(b)(4); 2B1.2(b)(2)(B) (1987) (parallel enhancements __

for more than minimal planning relating to stealing and receiving

(stolen) property); id. 2B1.1(b)(6); 2B1.2(b)(4) (1987) __

(parallel enhancements for engaging in organized criminal activi-

ty relating to stealing and receiving (stolen) property); see ___

also U.S.S.G. App. C, amend. 117 (effective Nov. 1, 1989) (adding ____

ITB enhancement to U.S.S.G. 2B6.1 trafficking in motor

vehicles with altered or obliterated identification numbers

"to resolve an inconsistency between . . . section [2B6.1] and

2B1.2").

The subsequent evolution of the ITB enhancement guide-

line likewise substantiates that it was meant to cover the

professional fence, not the thief. As the Commission broadened

the scope of U.S.S.G. 2B1.2 ("Receiving Stolen Property"), the

language in the ITB enhancement itself was amended to retain its

narrow focus upon defendants who "fence" stolen goods. The

"Receiving Stolen Property" guideline was amended in 1989 to

cover "Transporting, Transferring, Transmitting, or Possessing

Stolen Property." U.S.S.G. 2B1.2, as amended by amend. 102 __ _______ __

(effective Nov. 1, 1989). Under the same amendment, the ITB

enhancement guideline was changed to read, "[i]f the offense was

committed by a person in the business of receiving and selling _________ ___

stolen property, increase by 4 levels." Id. 2B1.2(b)(3)(A) __


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(1989) (emphasis added to amendatory language). Thus, it is

apparent from the context that the words "receiving and" were

included so as to restrict application of the ITB enhancement to

defendants who receive and sell stolen property (i.e. profession- _______ ___

al fences) and to exclude from its reach others, including the

thief, who transport, transfer, transmit, or possess, and then

sell, stolen property.

In 1993, the separate guideline provisions governing

theft offenses and the receiving of stolen property were consoli-

dated. See U.S.S.G. 2B1.1 as amended by amend. 481 (effective ___ __ _______ __

Nov. 1, 1993). The same 1993 amendment introduced the language

currently found in the ITB enhancement guideline, prescribing a

four-level enhancement "[i]f the offense involved receiving _________________________________

stolen property, and the defendant was a person in the business _______________

of receiving and selling stolen property." Id. 2B1.1(b)(5)(A) __

(1993) (emphasis added to amendatory language).

The historical context in which the 1993 amendment was

adopted thus demonstrates that the reconstructed ITB enhancement

was designed to apply only to defendants who "received" stolen

property and whose offense of conviction would come within the

scope of former U.S.S.G. 2B1.2 ("Receiving Stolen Property"),

as opposed to defendants who pilfered the property and whose

offense of conviction therefore came within the scope of the

original version of U.S.S.G. 2B1.1. It seems reasonably clear,

therefore, viewed in an historical perspective, that the words




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"receiving and" were added to preserve the limited reach of the

ITB enhancement.

On the other hand, the interpretation propounded by the

government presumes that the Commission twice amended the ITB

enhancement so as to make it applicable only to defendants who

"receive" stolen property, yet intended the term "receiving" to

mean merely "taking possession of," thereby encompassing simple

theft. Though as a literal matter, without regard to its histor-

ical context, the term "receiving" does not necessarily exclude

"theft," we conclude that the references to defendants who

"receive and sell" stolen property were not meant to apply to a

defendant who simply sells only property he has stolen.

Our construction is guided by conventional interpretive

principles. See United States v. DeLuca, 17 F.3d 6, 10 (1st Cir. ___ _____________ ______

1994) (applying customary rules of statutory interpretation to

sentencing guidelines). It avoids interpreting the words "re-

ceiving and" out of the ITB enhancement guideline as surplusage.

See United States v. Campos-Serrano, 404 U.S. 293, 301 n.14 ___ _____________ ______________

(1971) ("A statute ought, upon the whole, to be so construed

that, if it can be prevented, no clause, sentence, or word shall

be superfluous, void, or insignificant."). Whereas, were we to

adopt the government's view that the language in the current

ITB enhancement ("in the business of receiving and selling stolen

property") reaches both the thief and the professional fence

then the language of the original ITB enhancement ("in the




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business . . . of selling stolen property") need never have been

amended in 1989.

Our interpretation comports with basic guideline

sentencing policy as well. See 18 U.S.C. 3553(a)(1),(2) ___

(A),(B),(C)&(5). The services of a professional fence undoubted-

ly facilitate the ready, advantageous disposition of property

stolen by the less well-situated thief, thereby providing a

significant inducement to commit theft offenses. See United ___ ______

States v. Sutton, 77 F.3d 91, 94 (5th Cir. 1996); Braslawsky, 913 ______ ______ __________

F.2d at 468; United States v. Bolin, 423 F.2d 834, 838 (9th ______________ _____

Cir.), cert. denied, 398 U.S. 954 (1970); Carl Klockars, The ____ ______ ___

Professional Fence 144 (1974) (discussing the adage, "if there __________________

were no receivers, there would be no thieves"). It is reasonable

to assume, as a general rule, that a professional fencing opera-

tion efficiently can dispose of greater quantities of stolen

goods than could the individual thieves who supply the profes-

sional fence, see Klockars at 69-135, thereby enabling both the ___

thieves and the fence to realize greater returns. Cf. __

Braslawsky, 913 F.2d at 468. Thus, as a rule professional fences __________

may be expected to induce more stealing.

Furthermore, the interposition of a sophisticated

fencing operation between the thief and the ultimate purchaser of

the stolen property may confound or obstruct the investigation

and prosecution of theft offenses. Often, the stolen property

itself may be the only tangible evidence connecting the thief to

the crime. Since the professional fence is better positioned to


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move stolen goods quickly into the hands of the ultimate "black

market" consumer, see Klockars at 77 n.2, 106-13, the loot is ___

more likely to be dispersed before law enforcement agencies can

respond. Consequently, the fence not only affords the thief a

less risky and more efficient alternative for disposing of the

booty, but the increased efficiency comes at the expense of

effective law enforcement.4

The government argues, nonetheless, that the ITB

enhancement guideline should be construed simply to require proof

that McMinn's sales of stolen goods had a certain regularity or

sophistication. Cf. St. Cyr, 977 F.2d at 703 (adopting a "total- __ _______

ity of the circumstances" test). For the reasons stated above,

we reject the government's interpretation as less consistent with

the language, history, and purpose of the ITB enhancement guide-

line.5 We think it important to point out that our

opinion in St. Cyr does not support the position advocated by the _______

____________________

4These considerations represent an especially serious hin-
drance to law enforcement when the professional fence utilizes a
legitimate "front," such as a pawn shop or an outlet dealing in
distressed goods at sharply lower prices. See United States v. ___ ______________
Robinson, 698 F.2d 448, 453 (D.C. Cir. 1983); Klockars at 69-135. ________
The "front" may afford a superficially valid justification for
the low sale prices (i.e. the goods were pawned to the "front" or ____
acquired as distressed goods) and thus serve to impede an infer-
ence that the fence knew the goods were stolen.

5Nor is the caselaw in other circuits inconsistent with the
requirement that the defendant must be a "fence" in order for the
ITB enhancement to apply. See, e.g., Sutton, 77 F.3d at 94; ___ ____ ______
United States v. Zuniga, 66 F.3d 225, 229 (9th Cir. 1995); United _____________ ______ ______
States v. Warshawsky, 20 F.3d 204, 214-15 (6th Cir. 1994); ______ __________
United States v. King, 21 F.3d 1302, 1303 n.2 (3d Cir. 1994); _____________ ____
United States v. Esquivel, 919 F.2d 957, 959 (5th Cir. 1990); see _____________ ________ ___
also St. Cyr, 977 F.2d at 703. ____ _______

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government. St. Cyr neither expressed nor implied disapproval of _______

the basic proposition that the ITB enhancement guideline should

apply only to "professional fences." See id. at 703 ("We think ___ ___

this assessment fits harmoniously . . . with the decisions of

those few circuit courts that have addressed the meaning of [the

ITB guideline]."). Rather, the St. Cyr panel observed that a _______

"professional fence" test is not particularly helpful. Id. at ___

702-03 ("Defining the term 'professional fence' is as chancy as

defining the language of the guideline itself."). Although the

"totality of the circumstances" test announced in St. Cyr did ________

define the term "in the business," the court never reached the

question squarely presented here; viz., whether a defendant need ___

have been in the business of "receiving and selling" stolen _________ ___

property (i.e. acting as a fence) in order for the ITB enhance- ____

ment to apply. See also United States v. Richardson, 14 F.3d ___ ____ _____________ __________

666, 675 (1st Cir. 1994) ("evidence . . . clearly demonstrates

that defendant was a fence"); cf. United States v. Tutiven, 40 __ _____________ _______

F.3d 1, 8 (1st Cir. 1994) ("As it was stipulated that Tutiven did

not steal the motor vehicles . . . logic pretty much compels the

conclusion that Tutiven knowingly 'received stolen property.'"),

cert. denied, 115 S. Ct. 1391 (1995). ____ ______

The government in our case points to substantial

evidence that McMinn engaged not only in extensive thievery but

in storing and disseminating stolen property as well. Nothing

prevents a professional thief from also conducting a fencing

operation of sufficient size and continuity to qualify for the


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ITB enhancement; criminals, too, may have more than one line of

business. For the reasons we have already indicated, however, a

thief would not qualify for the ITB enhancement if the only goods

he distributed were those which he had stolen.

There is nothing in the government's analysis or in the

district court's findings to indicate that McMinn sold property

which he had not stolen. Of course, since reasonable inferences

are always permitted, the case might be quite different if the

only evidence were that McMinn had stored and sold large quanti-

ties of stolen property. Here, however, the evidence revealed

that McMinn had stolen a great deal of property and, as the

record now stands, we have no basis to suppose that he did not

steal it all.

Finally, the government argues in the alternative that

McMinn should be treated as a professional fence because he

neither proffered evidence, nor admitted, that he had pilfered

all the stolen goods he sold. Since it is the government's

burden to prove that McMinn received and sold goods stolen by

others, however, its argument is fundamentally flawed. See St. ___ ___

Cyr, 977 F.2d at 702 ("the government bears the burden of estab- ___

lishing that the ITB enhancement applies in a given case").6

II II

CONCLUSION CONCLUSION __________

____________________

6As the ITB enhancement is inapplicable to McMinn, it is
unnecessary to resolve the "double counting" claim; that is,
whether it was appropriate to consider the same criminal conduct
in determining the upward departure and the ITB enhancement. ___

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For the foregoing reasons, the district court judgment

is vacated and the case is remanded for resentencing consistent

with this opinion.
















































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