United States v. Tutiven

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1209

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

FIDEL R. TUTIVEN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, Senior U.S. District Judge]

Torruella, Selya and Cyr,

Circuit Judges.

Peter B. Krupp for appellant.

Timothy Q. Feeley, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for appellee.

November 14, 1994

CYR, Circuit Judge. Defendant Fidel R. Tutiven alleges
CYR, Circuit Judge.

error in various trial court rulings, and appeals from the

district court judgment entered following his conviction and

sentence on fourteen felony charges. As our review discloses no

error, we affirm the district court judgment.

I
I

BACKGROUND1
BACKGROUND

During the relevant eleven-month period between

April 1992 and February 1993 while employed as a waiter at a

Marriott Hotel, Tutiven conducted a part-time criminal enterprise

selling stolen motor vehicles to a Massachusetts automobile

dealership at bargain prices ranging from $7,900 for a 1991

Toyota Corolla to $21,500 for a 1991 Mercedes Benz. Tutiven

represented to the buyer, Clair Motors, that the first car, a

1991 Nissan 240 SX, belonged to a cousin, and that subsequent

vehicles had been obtained from unidentified dealers in the New

York-New Jersey area who specialized in late-model cars purchased

from financially distressed owners who responded to newspaper

ads.

Tutiven presented Clair Motors with what appeared to be

valid title certificates correctly describing the vehicles and

bearing the same vehicle identification numbers ("VINs") appear-

1The facts are recited in the light most favorable to the
verdicts. United States v. Tejeda, 974 F.2d 210, 212 (1st Cir.

1992).

2

ing on the vehicles Tutiven delivered to Clair Motors.2 It was

stipulated that the fourteen vehicles identified in the indict-

ment had been stolen before Tutiven came into possession.

Tutiven's defense was that he had been duped by an

expert VIN-switching scheme and did not know the vehicles had

been stolen. At trial the defense emphasized that the apparent

comportment among VINs, vehicles and title certificates had been

adequate to allay any suspicions on the part of Clair Motors.

Indeed, an automobile-theft expert testified that although the

vehicles Tutiven sold to Clair Motors did not bear the VINs

originally assigned by their manufacturers, it had taken a

sophisticated heat and chemical restoration process to remove the

false confidential VINs which had been superimposed on the

originals. The disclosure of the original VINs enabled the

authorities to determine that all fourteen vehicles had been

stolen. Further investigation established that "switches" had

been performed on all the vehicles, sometime before their sale to

2The VIN is a unique series of seventeen numbers and letters
which the manufacturer must assign to each vehicle it assembles.
The VIN provides an alphanumeric description of the particular
vehicle to which it has been assigned. Normally it is affixed at
three locations: on a narrow metal plate on top of the dash-
board, near the base of the windshield (the public VIN); on the
federal certification sticker or decal placed on the driver's
side door-jamb (the federal certification VIN); and on a metal
surface inside the vehicle, usually within the engine compartment
(the confidential VIN). All vehicles bear the public VIN and the
federal certification VIN; ninety-five percent bear a confiden-
tial VIN. The confidential VIN, which is stamped into the metal
of the vehicle, is the most difficult to locate and alter. No
two vehicles bear the same valid VIN.

3

Clair Motors.3

Tutiven was arrested shortly after law enforcement

authorities learned that all fourteen vehicles he sold to Clair

Motors had been stolen. Within hours of the arrest, the police

executed a search warrant at Tutiven's residence which disclosed

a large cardboard box containing only implements and materials

suitable for obliterating, altering, and replacing VINs, together

with a small collection of Massachusetts, New Jersey and New York

license plates.4

A federal grand jury returned a twenty-seven-count

3Automobile dealerships routinely consult computer databases
on stolen vehicles before purchasing a used vehicle. The predi-
cate step in a "switch" scheme is to locate a "clean" vehicle,
i.e., one which has not been reported stolen but is nearly

identical to the stolen vehicle in make, year, color, and style.
The valid title certificate issued to the "clean" vehicle bears
its true VIN. The VIN assigned to the "clean" vehicle is super-
imposed on the true VIN in the stolen vehicle. The stolen
vehicle is then given title documents matching its "clean" look-
alike.
An effective VIN-altering and title-switching scheme re-
quires clean vehicles not in circulation. At least two types of
clean vehicles meet this requirement: vehicles previously
exported outside the United States and scrapped vehicles. When a
stolen vehicle has been given the original VIN and valid papers
describing an exported vehicle, the stolen car is said to be the
subject of an "export switch;" a scrapped car results in a
"salvage switch." The Tutiven vehicles involved export and
salvage switches.

4The only tools and materials discovered at Tutiven's
residence were a pop rivet gun, pop rivets, an electric drill,
black mesh body fiber, a sponge smothie, two tubes of silicone,
and a can of scratch filler primer. Although the defense empha-
sized at trial that each tool had a licit purpose, there was no

evidence that the tools and materials collectively were suited to
any particular purpose other than altering VINs. Each tool
seized had a VIN-altering function; none was unsuited to VIN
altering. Finally, their common location with the license plates
provided further support for the inference that the tools and
materials were for use on motor vehicles.

4

indictment on April 20, 1993, charging Tutiven with possessing or

selling stolen motor vehicles which had crossed state lines, in

violation of 18 U.S.C. 2313, and with possessing, for sale,

motor vehicles whose original VINs had been altered, in violation

of 18 U.S.C. 2321. The government later dismissed thirteen

counts, leaving fourteen for trial: unlawful possession of

thirteen separate stolen motor vehicles, in violation of 18

U.S.C. 2313, and Count XIV, unlawful possession of a fourteenth

vehicle bearing an altered VIN, in violation of 18 U.S.C. 2321.

The district court denied Tutiven's motion in limine to exclude

the tools, materials and license plates.

For the most part, the evidence presented at trial

established that the VIN alterations on the Tutiven vehicles were

detectable only by experts, through a process of grinding,

applying chemicals, and heating the metal surfaces on which the

VINs were stamped. A VIN expert and a Massachusetts state

trooper testified that the VIN alterations on the two vehicles

involved in Counts I and XII were discernible by the trained eye,

without resort to special processes. The testimony further

established that letters in the VIN on the vehicle involved in

Count XIV described a vehicle model different from the stolen

vehicle to which it was attached, a virtual impossibility were

the VIN valid. The jury returned guilty verdicts on all fourteen

counts and the district court subsequently sentenced Tutiven to

twenty-seven months' imprisonment.

Tutiven mounts three challenges on appeal. First, he

5

claims that the district court committed reversible error by

admitting in evidence the seized tools, materials and license

plates, which invited the jury to draw only impermissible infer-

ences. See Fed. R. Evid. 404(b). Second, Tutiven contends that

the jury instruction relating to the element of "knowledge" was

deficient because the court refused to define "negligence."

Third, he argues that a sentencing enhancement under U.S.S.G.

2B1.1(b)(5)(B) (the so-called "in-the-business" enhancement)

was improper, in that there was no evidence that Tutiven knowing-

ly received stolen property.

II
II

DISCUSSION
DISCUSSION

A. The Tools, Materials and License Plates
A. The Tools, Materials and License Plates

Tutiven first claims that no relevant inference could

be drawn from his possession of the tools, materials and license

plates seized from his home except by indulging impermissible

predicate inferences based on bad character and criminal propen-

sity. See Fed. R. Evid. 404(b).5 Alternatively, he contends

5Fed. R. Evid. 404(b) provides:

Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show action in conformity
therewith. It may, however, be admissible
for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, know-
ledge, identity, or absence of mistake or
accident, provided that upon request by the
accused, the prosecution in a criminal case
shall provide reasonable notice in advance of

6

that any relevance the seized evidence may have had was substan-

tially outweighed by the danger of unfair prejudice. See id.

403.6

1. Fed. R. Evid. 404(b): "Other Acts" Evidence
1. Fed. R. Evid. 404(b): "Other Acts" Evidence

The district court admitted the tools, materials and

license plates for the exclusive purpose of evidencing Tutiven's

knowledge that the fourteen vehicles had been stolen and that the

VIN on the fourteenth vehicle had been altered. The court

repeatedly cautioned the jury accordingly.7 Tutiven nonetheless

trial, or during trial if the court excuses
pretrial notice on good cause shown, of the
general nature of any such evidence it in-
tends to introduce at trial.

6Fed. R. Evid. 403 provides:

Although relevant, evidence may be excluded
if its probative value is substantially out-
weighed by the danger of unfair prejudice,
confusion of the issues, or misleading the
jury, or by considerations of undue delay,
waste of time, or needless presentation of
cumulative evidence.

7For example, the final jury charge included the following
instruction:

I just want to remind you that the defendant
is charged with possessing a motor vehicle
knowing that motor vehicle had been stolen.

And he was charged with possessing a motor
vehicle that had been altered with intent to
sell, an altered identification number [sic].
Knowing [sic] that that identification number

had been altered.

He is not charged with altering. He is not
charged with stealing the car. The tools and
materials which have just been admitted, to

7

insists on appeal that Rule 404(b) absolutely barred the seized

evidence because his possession of the tools, materials and

license plates enabled no permissible inference relevant to his

knowledge that the vehicles had been stolen or their VINs al-

tered.8

the extent that you give them any weight, are
to be considered by you only on the issue of
knowledge. They are admitted only on the
government's theory that the possession by
the defendant Mr. Tutiven of these tools and
materials reflect in some way on whether Mr.

Tutiven knew the motor vehicles charged in

the first 13 counts in the indictment were

stolen and whether Mr. Tutiven knew that the

vehicle identification number on the 1991

Toyota Corolla charged in Count 14 had been

altered.

So the tools are there to help you decide, if
you give the tools any weight at all, whether
or not Mr. Tutiven knew that the cars had

been stolen and knew that the identification

number in Count 14 had been altered. (empha-
sis added).

8Tutiven further contends that any inference that he knew
the vehicles were stolen must necessarily have been based on
conjecture. On the contrary, a fair and reasonable inference
that Tutiven knew the vehicles were stolen would proceed directly
from the foundation inference discussed in the text below. See

infra p. 11.

Nor was there any need for the jury to contravene its
instructions, or infringe the stipulation between the parties, by
indulging a predicate inference that Tutiven either stole the
vehicles or altered their VINs. It was sufficient that Tutiven's
possession of VIN-altering tools and materials, in combination
with abundant other circumstantial evidence, see note 11 infra,

fairly permitted the synergistic inference that Tutiven knew the
illicit purpose to which the tools and materials were suited.
Thus, it was the close circumstantial link between Tutiven's
possession of the seized VIN-altering equipment and the numerous

VIN-altered vehicles he sold during this time frame which enabled
the jury rationally to accord the seized evidence probative value
on the central issue of Tutiven's knowledge.

8

Evidence Rule 404(b) absolutely bars "other acts"

evidence relevant only to prove criminal propensity or bad

character. United States v. Tuesta-Toro, 29 F.3d 771, 775 (1st

Cir. 1994). Its absolute bar is implicated, however, only if the

challenged "other crimes, wrongs, or acts" are relevant exclu-

sively to instigate an inference that the defendant is more

likely to have acted in similar fashion by committing the offense

for which he is on trial. See, e.g., United States v. Moccia,

681 F.2d 61, 63 (1st Cir. 1982) (citing Jack B. Weinstein &

Margaret A. Berger, Weinstein's Evidence, 404-26 (1980); see

also United States v. Ferrer-Cruz, 899 F.2d 135, 137 (1st Cir.

1990). Plainly, by its very terms, see note 5 supra, Rule 404(b)

interposes no absolute bar to circumstantial evidence intrinsic

to the crime for which the defendant is on trial, but only to

evidence of "other crimes, wrongs, or acts" whose probative value

exclusively depends upon a forbidden inference of criminal

propensity. We recently dealt with a prototypical Rule 404(b)

challenge which illustrates the point.

In United States v. Arias-Montoya, 967 F.2d 708 (1st

Cir. 1992), we held that the defendant's prior conviction for

cocaine possession was barred by Rule 404(b) since it was rele-

vant only to establish an evidentiary predicate for a forbidden

"criminal propensity" inference: that defendant must have known

the trunk of the vehicle he was driving contained cocaine because

he had possessed cocaine on a prior occasion altogether unrelated

to the conduct for which he was on trial. Id. at 709-714. By

9

contrast, the probative value of the intrinsic evidence that

Tutiven possessed VIN-altering tools and materials, at or about

the time and place these offenses allegedly took place, in no

respect depended upon an impermissible "criminal propensity"

inference. Instead, Tutiven's possession of VIN-altering tools

and materials, like an alleged burglar's contemporaneous posses-

sion of burglary tools, see, e.g., State v. Romano, 456 A.2d 746,

760 (R.I. 1983) (upholding admission of burglary tools, seized

from defendant's garage, as circumstantial evidence of

defendant's role in alleged conspiracy to break and enter),

constituted intrinsic circumstantial evidence directly probative

of, inter alia, see infra note 12, Tutiven's knowledge that the

vehicles he sold to Clair Motors had been stolen. The cases are

legion in which similar intrinsic circumstantial evidence has

been admitted without occasioning either challenge or analysis

under Rule 404(b). See, e.g., United States v. Ford, 22 F.3d

374, 381 (1st Cir. 1994) (upholding admission of evidence that

defendant in drug case possessed instructional materials on

methamphetamine manufacture); United States v. Nason, 9 F.3d 155,

162 (1st Cir. 1993) (upholding admission of scales, bags, and

baggies seized from motel room registered to defendant's girl-

friend at time of defendant's arrest on the marijuana charges for

which he was on trial); United States v. Cresta, 825 F.2d 538,

554 (1st Cir. 1987) (upholding admission of weapons possessed by

defendant during the drug smuggling crime for which he was on

trial).

10

Tutiven relies on United States v. DeVillio, 983 F.2d

1185 (2d Cir. 1993), as support for the claim that the VIN-

altering tools and materials were barred by Rule 404(b). But the

Devillio court merely ruled that the trial court erred in admit-

ting burglary tools as evidence of the modus operandi of the two

appellants who were charged only with transporting stolen vehi-

cles and stolen goods. Id. at 1188. The Second Circuit simply

held that the burglary tools bore no special relevance to appel-

lants' modus operandi in transporting stolen vehicles and goods.

Id. at 1194. The court left no doubt, however, that the burglary

tools were highly probative evidence against appellants' co-

defendants, who were on trial for burglary. See id.

The absolute bar to admission under Rule 404(b) was not

implicated in the present case since it was unnecessary for the

jury to resort to an impermissible propensity-based inference.

Rather, the seized evidence would enable a rational jury

relying on its common sense and collective experience9 to

draw the relevant foundation inference that a defendant who

possessed VIN-altering tools and materials (and license plates),

at or about the time he sold fourteen stolen vehicles bearing

9See, e.g., United States v. Reyes-Mercado, 22 F.3d 363, 367

(1st Cir. 1994) ("[U]ltimately, whether or not the gun[ ] helped
[defendant] commit the drug crime is a matter for a jury applying
common-sense theories of human nature and causation") (citations
omitted); United States v. O'Brien, 14 F.3d 703, 708 (1st Cir.

1994) ("[I]n . . . choosing from among competing inferences,
jurors are entitled to take full advantage of their collective
experience and common sense"). (Citing United States v. Smith,

680 F.2d 255, 260 (1st Cir. 1982), cert. denied, 459 U.S. 1110

(1983)).

11

altered VINs, was somewhat less likely to have been the innocent

victim of a VIN-altering scheme than would a seller of stolen

vehicles who did not possess such paraphernalia.

2. Fed. R. Evid. 403: Unfair Prejudice
2. Fed. R. Evid. 403: Unfair Prejudice

Although the seized evidence did not implicate the

absolute bar imposed by Rule 404(b), we must consider Tutiven's

companion claim that its admission in evidence on the issue of

Tutiven's knowledge that the vehicles were stolen could not

survive the relevancy-prejudice balancing required under Rule

403. Tuesta-Toro, 29 F.3d at 775.

"[T]he threshold for relevance is very low under

Federal Rule of Evidence 401. Evidence is relevant under Rule

401 if it has 'any tendency to make the existence of any fact

that is of consequence to the determination of the action more or

less probable than it would be without the evidence.'" United

States v. Cotto-Aponte, 30 F.3d 4, 6 (1st Cir. 1994) (citing

United States v. Nason, 9 F.3d 155, 162 (1st Cir. 1993)), cert.

denied, 114 S. Ct. 1331 (1994). These tools, materials and

license plates readily met the "any tendency" test under Rule

401. See supra p. 11; infra pp. 13-14; note 11 infra.

We are reminded, nonetheless, that Rule 403 "excludes

even evidence that is relevant through allowable chains of

inference where the probative value of that evidence is 'sub-

stantially outweighed,' [inter alia,] by the risks of [unfair]

prejudice . . . ." Ferrer-Cruz, 899 F.2d at 138; see also United

States v. Nickens, 955 F.2d 112, 125 (1st Cir. 1992). However,

12

"[o]nly rarely and in extraordinarily compelling circumstances

will we, from the vista of a cold appellate record, reverse a

district court's on-the-spot judgment concerning the relative

weighing of probative value and unfair effect." Freeman v.

Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988), quoted in

United States v. Desmarais, 938 F.2d 347, 351 (1st Cir. 1991).

A recent case illuminates the pertinent relationship

between the Rule 404(b) analysis undertaken above, see supra pp.

7-11, and the relevancy-prejudice balancing required under Rule

403. In United States v. Hahn, 17 F.3d 502 (1st Cir. 1994), a

search of defendant's automobile abandoned during the course

of the alleged drug conspiracy for which he was on trial

netted a handgun, ammunition, and a round-trip airline ticket

between destinations material to the scope of the conspiracy. As

the seized evidence constituted classic circumstantial evidence

intrinsic to the alleged offense for which the defendant was on

trial, it was challenged and evaluated only under Rules 401 and

403. Id. at 509-10. Evidence that the same defendant had been

found in possession of a licensed firearm on another occasion in

the course of the alleged conspiracy was challenged as "other

acts" evidence under Rule 404(b). Id. at 508-09. We held that

Rule 404(b) posed no absolute bar because (i) "possession of a

licensed firearm is neither a bad act nor indicative of bad

character" and (ii) the evidence was directly relevant, inter

alia, to the geographic scope of the alleged conspiracy and the

defendant's role in it. Id. at 509. In the ensuing Rule 403

13

balancing, we went on to make clear that any risk of "prejudice"

from the evidence that Hahn possessed a licensed firearm "did not

derive unfairly from the challenged evidence itself." Id.

(emphasis added).

And so it is with the evidence admitted in the present

case, which permitted the jury rationally and fairly to infer

that Tutiven's contemporaneous possession of tools and materials

well-suited to VIN altering made it less likely that he had been

duped by an expert VIN-altering scheme. See, e.g., State v.

Meeks, 65 N.W. 2d 76, 78-79, 82 (Iowa 1954) (upholding admission

of evidence of "various instruments used by a typical check

artist," possessed by defendant at time of arrest, to rebut

defense that he had not known that the forged check he allegedly

uttered had been forged).10 The tools, materials and license

plates seized from Tutiven's residence provided cogent evidence

tending to preempt an essential premise implicit in Tutiven's

defense: that the only way Tutiven could have known of the

sophisticated VIN alterations on the stolen vehicles would have

been by visual examination, but since he was not a VIN expert he

could not have known the vehicles were stolen. The jury fairly

could infer from the challenged evidence, however, that a person

expert or not who possessed VIN-altering equipment during

10The Tutiven jury heard testimony that the collective tools
and materials were almost uniquely suited to a use (VIN altering)
intimately related to the "switching" scheme. Tutiven's resi-
dence contained no other automobile-related tools or materials.

The only other items seized were license plates from jurisdic-
tions where Tutiven's stolen cars originated. See also note 4

supra.

14

the time frame in which he sold numerous stolen vehicles with

altered VINs was somewhat more likely to have known the equipment

was amenable to use in altering VINs and therefore that the

vehicles were stolen, there being no other apparent purpose for

VIN alterations.11

An inference that Tutiven knew the tools and materials

seized from his home were suited to VIN altering would tend

rather strongly to dispel the no-knowledge premise in his de-

fense. Moreover, in evincing Tutiven's knowledge that the

vehicles were stolen, the challenged evidence entailed no signif-

icant risk of unfair prejudice since simple possession of the

tools and materials was neither a bad act nor indicative of bad

character. See Hahn, 17 F.3d at 509. Finally, the jury instruc-

tions given by the district court, see, e.g., supra note 7,

provided further insulation against unfair propensity-based

inferences by the jury. See Yates v. Evatt, 500 U.S. 391, 403-04

11The seized evidence fit hand and glove with the cumulative
array of circumstantial evidence underpinning the sturdy infer-
ence that Tutiven knew the vehicles were stolen. The other
circumstantial evidence included Tutiven's sale of fourteen
stolen vehicles to Clair Motors within eleven months, all bearing
altered VINs, for which Tutiven realized profits ranging from
$6,500 to $1,600 per vehicle despite the fact that he was able to
sell the vehicles to Clair Motors at bargain prices. See Common-

wealth v. Boris, 58 N.E. 2d 8, 12 (Mass. 1944) (low price paid

for foodstuffs admitted as evidence that defendant knew he was
acquiring stolen goods). The evidence demonstrated that when
Tutiven went to Clair Motors he was accompanied by individuals
whom he falsely introduced as the owners of the vehicles.
Finally, the evidence showed that the title certificates to most
of the vehicles had been issued within a month prior to their
sale to Clair Motors, that Tutiven conducted all his business in
cash, and that he was able, in very short order, to produce
vehicles of the type currently in greatest demand.

15

(1991) (reviewing court normally presumes jury followed instruc-

tions); United States v. Daigle, 14 F.3d 684, 690 (1st Cir. 1994)

(holding that cautionary jury instruction minimized possible pre-

judicial impact from documentary exhibit) (Rule 403).12

B. U.S.S.G. 2B1.1(b)(5)(B): The "In-the-Business" Enhance-
B. U.S.S.G. 2B1.1(b)(5)(B): The "In-the-Business" Enhance-

ment
ment

As Tutiven failed to preserve the issue below, the

sentencing enhancement under U.S.S.G. 2B1.1(b)(5)(B) is re-

viewed for "plain error." Fed. R. Crim. P. 52(b).13 Thus, the

defendant must show that the sentencing court committed "clear"

or "obvious" error affecting a "substantial right." United

States v. Olano, 113 S. Ct. 1770, 1776-77 (1993); United States

v. Colon-Pagan, 1 F. 3d 80, 81 (1st Cir. 1993). "[E]rror rises

to this level only when it is so shocking that [it] seriously

affect[ed] the fundamental fairness and basic integrity of the

proceedings conducted below." United States v. Ortiz, 23 F.3d 21,

26 (1st Cir. 1994) (citing United States v. Hodge-Balwing, 952

12The district court instructed the jury, consistent with
the parties' stipulation, that the tools and materials were to be
considered only in determining whether Tutiven knew the vehicles
had been stolen and that the vehicle in Count XIV bore an altered
VIN. Among other relevant inferences permissible under Rule
404(b) but for this stipulation, were "opportunity," "prepar-

ation" and "plan." See Fed. R. Evid. 404(b).

13Tutiven urges that we review the sentencing enhancement de

novo because it touches upon "interpretive questions" under the

Sentencing Guidelines. The matter at issue required no guideline
interpretation, however, only straightforward fact-finding by the
sentencing court, which, even if preserved, we would review only
for clear error. United States v. David, 940 F.2d 722, 739 (1st

Cir. 1991), cert. denied, 112 S.Ct. 2301 (1992).

16

F.2d 607, 611 (1st Cir. 1991); United States v. Olivo-Infante,

938 F.2d 1406, 1412 (1st Cir. 1991) (internal quotation marks

omitted)). We find no error.

Tutiven complains that the sentencing court made no

explicit finding that the offenses of conviction, viz., knowingly

possessing stolen motor vehicles (18 U.S.C. 2313) and knowingly

possessing a motor vehicle with altered VINs (18 U.S.C. 2321),

involved knowingly receiving stolen property and that the indict-

ment neither included such a charge nor would the trial record

support it.14 The claim that the evidence before the sentenc-

ing court would not support a finding that Tutiven knowingly

received stolen property is groundless.

As it was stipulated that Tutiven did not steal the

motor vehicles, yet the jury supportably found beyond a reason-

able doubt that he knew the vehicles were stolen, logic pretty

much compels the conclusion that Tutiven knowingly "received

stolen property." We disposed of an analogous claim in United

States v. Carty, 993 F.2d 1005 (1st Cir. 1993) (prosecution for

drug possession and distribution), by reiterating the conclusive

observation made by the sentencing judge in that case: "[Y]ou

have to buy it to sell it." Id. at 1011. The strikingly similar

14U.S.S.G. 2B1.1(b)(5)(B) provides:

If the offense involved receiving stolen property, and
the defendant was a person in the business of receiving
and selling stolen property, increase by 4 levels.

The scope and operation of the "in-the-business" enhancement is
explained in considerable detail in United States v. St. Cyr, 977

F.2d 698, 702-04 (1st Cir. 1992).

17

collocation of circumstances substantiating the jury verdicts

against Tutiven, see note 11 supra, provided ample support for

finding that he knew these vehicles were stolen, and thus that he

was "in the business of receiving and selling stolen property"

within the meaning of U.S.S.G. 2B1.1(b)(5)(B).

C. Jury Instruction on Actual Knowledge
C. Jury Instruction on Actual Knowledge

Tutiven concedes that the district court correctly

instructed the jury that Counts I through XIII required proof

beyond a reasonable doubt that Tutiven had "actual knowledge"

that the thirteen vehicles were stolen and, further, that proof

of mistake, accident or negligence was insufficient to convict.

But he insists that the court erred in refusing to define "negli-

gence" for the jury.

We review the challenged jury instruction against the

backdrop of the entire trial. See United States v. Serino, 835

F.2d 924, 930 (1st Cir. 1987) ("[We do] not judge a single

instruction to the jury in isolation, but rather in the context

of the overall charge."); see also United States v. Park, 421

U.S. 658, 674 (1975). And, of course, "[i]t is well settled that

the court 'need not give instructions in the precise form or

language requested by the defendant.'" United States v. Noone,

913 F.2d 20, 30 (1st Cir. 1990), cert. denied, 500 U.S. 906

(1991) (quoting United States v. Beltran, 761 F.2d 1, 11 (1st

Cir. 1985)).

In its preliminary instructions outlining the essential

elements of the crimes charged in the indictment, the district

18

court told the jury that it could convict only if it found "that

at the time Fidel Tutiven possessed [the car] or sold it, he

knew, he had knowledge, that the car that he possessed or was

selling was stolen." Following closing arguments, the court

reinforced its instruction on knowledge:

To sustain its burden of proof for each of
Counts 1 through 13, the government must
prove beyond a reasonable doubt . . . .
[that] this defendant kn[e]w that motor vehi-
cle was stolen at the time he possessed it?

So you should ask yourselves . . . . has the
government proved beyond a reasonable doubt
that this defendant knew that the car was
stolen at the time he possessed it?15
15

Thus, viewed in the context of the entire charge and particularly

the trial judge's repeated admonitions that evidence of negli-

gence was insufficient to convict, there is no question that the

jury instructions on the necessity for proof of actual knowledge

were both clear and correct.

15In their closing arguments, counsel emphasized the "know-
ledge" element. Government counsel stated: "I ask you to find
that, in fact, Fidel Tutiven knew exactly what he was doing;
that he knew he was the point person in a stolen car ring; that
he knew he was selling stolen cars and he knew that the VINs had
been altered." And defense counsel adeptly underlined the
inadequacy of a "negligence" finding:

As Judge Mazzone will instruct you on the law, it is not
enough to say that Mr. Tutiven should have known the cars
were stolen. It's not enough to say that he should have
known that the identification numbers were altered. It's
not enough for Mr. Feeley to prove to you that a reasonable
person would have known that the cars were stolen or that a
reasonable person would have known that the identification
numbers were altered. The government has to prove to you
that Mr. Tutiven actually knew. In fact -- and I suppose
they have to prove that to you beyond a reasonable doubt.

19

Finding no error, we affirm the district court judg-

ment.

Affirmed.
Affirmed.

20