FILED United States Court of Appeals Tenth Circuit
PUBLISH May 29, 2012
Elisabeth A. Shumaker UNITED STATES COURT OF APPEALS Clerk of Court TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v. Nos. 10-4180 & 10-4210 CEDRIC DUANE BURKS,
Defendant–Appellant.
Appeal from the United States District Court for the District of Utah (D.C. No. 2:07-CR-00173-TS-4)
Robert Breeze, Salt Lake City, Utah, for the Defendant-Appellant.
Jared C. Bennett, Assistant United States Attorney (Carlie Christensen, United States Attorney, with him on the brief), Office of the United States Attorney, District of Utah, Salt Lake City, Utah, for the Plaintiff-Appellee.
Before LUCERO, HOLLOWAY, and TYMKOVICH, Circuit Judges.
LUCERO, Circuit Judge. Cedric Burks provided codes to an auto-theft ring that were used to create working
keys for specific vehicles. One such vehicle—an Escalade—was stolen in Nevada,
stripped to its frame, and subsequently discovered and auctioned by authorities. Several
months later, the same Escalade, now reassembled, was identified in Utah. Based on this
discovery, Burks was charged and convicted of aiding and abetting the possession and
transportation of a stolen vehicle under 18 U.S.C. §§ 2312 and 2313.
On appeal, Burks argues that the jury was improperly instructed on the affirmative
defense of withdrawal and was allowed to make an improper inference that Burks’
associates knew the vehicle was stolen. We disagree on both points. First, assuming that
withdrawal is an affirmative defense to a conviction premised on accomplice liability, we
hold that the jury was properly instructed that the burden of proving the defense rested on
Burks. Second, we hold that the jury was properly instructed that it could infer that
Burks’ associates knew the vehicle was stolen. We also reject Burks’ claims that there
was insufficient evidence to support his conviction and that the district court erred in its
restitution order. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
Burks was a player in an auto-theft ring operated by Levi and Abraham Elliot
based in Las Vegas, Nevada. Once an automobile was targeted for theft, the Elliots
would provide Burks with the automobile’s unique vehicle identification number
(“VIN”). Using this information, Burks would contact a local auto dealership and claim -2- that he was purchasing the vehicle in question and needed the vehicle’s “key code”1 in
order to make a key for the vehicle. Unaware of the foul play, the dealership employee
would give Burks the code. Burks then passed the key code to the Elliots, who would
compensate him and use the code to make a key to steal the vehicle in question.
According to the dealership employee, Burks requested approximately twenty key codes
in 2005.
One vehicle targeted by the Elliots was a 2004 Cadillac Escalade, fitted with a
custom grille and wheels. In accordance with the plan, Burks was given the Escalade’s
VIN and obtained its key code from his dealership contact. The vehicle’s owners
reported it stolen soon thereafter. Several days later, Las Vegas police recovered the
Escalade’s frame, which had been completely stripped of its doors, seats, grille, wheels,
and various other instruments. Notably, all of the electronic wires were neatly clipped
and bundled, and the frame had been smeared in oil to protect it from the weather. Upon
recovery, the Escalade’s frame was sold at auction to Abe Elliot, who received legal title
to the frame along with a Nevada certificate declaring the vehicle to be non-reparable.
At some point in the following three months, the Escalade was reconstructed and
Caesar “Spanky” Martinez purchased insurance for the vehicle in Utah. Martinez
subsequently became a suspect in federal and state investigations into a string of auto
1 A key code is a unique sequence of numbers that a manufacturer assigns to an individual vehicle to allow the vehicle’s owner to make duplicate keys. An individual in possession of a key code for a particular vehicle can make an unlimited number of working keys for that vehicle.
-3- thefts in Utah and Nevada. While investigating Martinez, authorities noticed an Escalade
at his house, and after some research, discovered that the Escalade was likely the same
one that had been stolen, stripped, and auctioned in Las Vegas. The identity of the
Escalade was confirmed when law enforcement used the stolen vehicle’s recorded VIN
and key code to make a working key, which was used to seize the vehicle from Martinez.
The Escalade’s ties to Nevada and the Elliots became more apparent after
Martinez was arrested. First, Abe Elliot called the Utah state motor vehicle division to
inquire about the status of the Escalade. Another man, who gave the name of Ralph
Scalbon, also called to report the vehicle stolen, but provided the same callback number
as Abe Elliot. This Scalbon moniker closely resembled the name of the individual who
allegedly sold the Escalade to Martinez. Finally, Abe Elliot himself sought to claim the
vehicle and was arrested after arriving with a working key.
Law enforcement traced the Escalade back to Burks, who had been arrested for
attempting to sell key codes. Once in custody, Burks confessed to selling codes to the
Elliots as part of their auto-theft scheme. Additionally, Burks stated that he was aware
that the Elliots operated in Utah, and did business with an individual named “Spanky.”
Following his arrest, however, Burks stopped selling key codes and helped authorities
infiltrate the Elliots’ auto-theft ring.
Based on Burks’ confession, he was charged with aiding and abetting: (1) the
interstate transportation of the stolen Escalade under 18 U.S.C. § 2312; and (2) the
possession, receipt, and storage of the stolen Escalade under 18 U.S.C. § 2313. At trial, -4- Burks’ counsel objected to two jury instructions now at issue. The first instruction
informed the jury that the burden of proving the affirmative defense of withdrawal rested
with the defendant. The second instruction permitted the jury to infer that a vehicle
stolen in one state and recovered in another was knowingly transported in interstate
commerce. Both objections, however, were overruled, and the jury convicted Burks on
both charges.
Following Burks’ conviction, the district court held a restitution hearing to
determine how much compensation was due to the owners of the stolen Escalade. After
the Escalade was stolen, the vehicle’s owners filed a claim with their insurance company,
which paid to replace the Escalade but charged the owners a $1,000 deductible.
Accordingly, the district court ordered that Burks pay $1,000 to the Escalade’s owners
and $49,977 to the insurance company, which represented the amount paid to the
Escalade’s owners minus the sum recovered from the sale of the vehicle’s frame at
auction. Burks timely appealed both his conviction and the restitution order, and we
consolidated the appeals.
II
On appeal, Burks raises several novel questions about the interplay of the federal
auto-theft statute, known as the Dyer Act and codified at 18 U.S.C. §§ 2312 and 2313,
and the federal accomplice liability statute, 18 U.S.C. § 2(a). We thus begin our analysis
by looking at each of these statutes respectively.
Burks was convicted under two distinct sections of the Dyer Act: §§ 2312 and -5- 2313. Section 2312 prohibits the transportation in interstate commerce of a vehicle that
is known to be stolen, and § 2313 prohibits the receipt, possession, or storage of a vehicle
that crossed state lines and is known to be stolen. As the Supreme Court has
acknowledged, the Act reflects a realization that “[p]rofessional thieves resort to
innumerable forms of theft[,] and Congress presumably sought to meet the need for
federal action effectively rather than leave loopholes for wholesale evasion.” United
States v. Turley, 352 U.S. 407, 416-17 (1957).
Burks was not convicted as a principal under the Dyer Act, but as an accomplice
under the federal accomplice liability statute. Under 18 U.S.C. § 2(a), “[w]hoever
commits an offense against the United States or aids, abets, counsels, commands, induces
or procures its commission, is punishable as a principal.” “To be guilty of aiding and
abetting the commission of a crime, the defendant must willfully associate himself with
the criminal venture and seek to make the venture succeed through some action of his
own.” United States v. Leos-Quijada, 107 F.3d 786, 794 (10th Cir. 1997). In
establishing that the defendant was an accomplice, the government may rely on
“circumstantial evidence and the level of participation may be of relatively slight
moment.” Id. (quotation omitted).
The Dyer Act and accomplice liability statute, operating together, provide the
basis for Burks’ convictions. For his conviction under § 2312, the government was
required to prove: (1) a person transported a stolen vehicle that crossed state lines; (2)
the person knew the vehicle was stolen; and (3) Burks associated himself with the -6- principal and sought to make the venture succeed. For his conviction under § 2313, the
government was required to prove: (1) a person received, possessed, or stored a stolen
vehicle that crossed state lines; (2) the person knew the vehicle was stolen; and (3) Burks
associated himself with the principal and sought to make the venture succeed.
A
Burks first claims the jury was improperly instructed on the affirmative defense of
withdrawal. At trial, Burks argued that he should be shielded from conviction because he
effectively withdrew from the Elliots’ auto-theft ring. This defense was premised on the
fact that Burks stopped selling key codes and actually helped authorities infiltrate the
criminal enterprise after he sold the Escalade’s key code to the Elliots. The district court
accepted this as a valid defense, but instructed the jury that “[t]he defendant has the
burden of proving that he withdrew from the enterprise by a preponderance of the
evidence.” We review “a court’s decision to give a particular jury instruction for an
abuse of discretion and consider the instructions as a whole de novo to determine whether
they accurately informed the jury of the governing law.” United States v. Gwathney, 465
F.3d 1133, 1142 (10th Cir. 2006).
In this circuit, withdrawal is an established affirmative defense to a defendant’s
involvement in a conspiracy. United States v. Randall, 661 F.3d 1291, 1294 (10th Cir.
2011). “[T]o establish the affirmative defense of withdrawal from a conspiracy, a
defendant must disclose the scheme to law enforcement authorities or make a reasonable
effort to communicate his withdrawal to his coconspirators.” Id. (citation omitted). Yet -7- it is unsettled if a defendant can withdraw from aiding and abetting a crime. Unlike a
conspiracy, which by its very nature involves an agreement that can be refuted,
accomplice liability can arise from merely encouraging the principal. See United States
v. Whitney, 229 F.3d 1296, 1303 (10th Cir. 2000) (“One may become an accomplice . . .
by words or gestures of encouragement . . . .”) (quotation and alteration omitted). Given
the relatively minor participation that can trigger accomplice liability, it is unclear what
actions an individual may take—if any—to immunize himself from liability for a crime
that he previously enabled.
Other courts have reached varying results when considering the applicability of
the withdrawal defense to the federal accomplice liability statute. The Seventh Circuit,
for example, has held that withdrawal was not a valid defense for aiding and abetting
mail and securities fraud. United States v. Read, 658 F.2d 1225, 1239-40 (7th Cir. 1981)
(withdrawal is not a defense because “as an aider and abettor, [the defendant] need not
agree to the scheme. He need only associate himself with the criminal venture and
participate in it”). The Second Circuit has also held that withdrawal is not a valid defense
to aiding and abetting, at least for some crimes. See United States v. Arocena, 778 F.2d
943, 948 n.3 (2d Cir. 1985) (“[W]ithdrawal is not a defense to the substantive crime of
aiding and abetting a murder.”). In contrast, the Ninth Circuit has assumed—albeit in
dicta—that a defendant can withdraw from being an accomplice. United States v.
Lothian, 976 F.2d 1257, 1261 (9th Cir. 1992) (“Withdrawal is traditionally a defense to
crimes of complicity: conspiracy and aiding and abetting.”). -8- Every court to foreclose the withdrawal defense to an accomplice has closely
examined the elements and nature of the underlying crime and limited their holding to
that crime. We see no reason to depart from this prudent practice, and decline the
government’s suggestion to categorically hold that withdrawal can never be a valid
defense to aiding and abetting a federal crime.
Turning to the underlying crime at issue, it is conceivable that a defendant could
withdraw from aiding and abetting a Dyer Act violation. But even assuming that
withdrawal was a valid defense, we reject Burks’ contention that the government should
have to prove its absence. The burden of proving withdrawal in the conspiracy context
unequivocally rests with the defendant, and we see no basis for distinguishing situations
when accomplice liability is at issue. See United States v. Hughes, 191 F.3d 1317, 1322
(10th Cir. 1999) (“In this circuit, the law is clear that the defendant bears the burden of
establishing withdrawal from a conspiracy.”). The district court thus did not abuse its
discretion in instructing the jury on this point.
B
Burks also objects to a jury instruction permitting the inference that the Escalade
was transported to Utah by an individual who knew it was stolen. Specifically, the jury
was instructed that “[p]ossession in one state of a vehicle that was recently stolen in
another state, if not satisfactorily explained, is ordinarily a circumstance from which you
may infer that the person knew the vehicle was stolen and also transported in interstate
commerce.” Burks timely objected to this instruction, and now argues that it was unfair -9- to require him to prove or disprove the mindset and actions of a third party.
Although we have upheld this inference in cases involving the Dyer Act, we have
not addressed its applicability when the defendant is not the principal. Cf. Rogers v.
United States, 416 F.2d 926, 927 (10th Cir. 1969) (“Proof that an accused is in possession
of a vehicle recently stolen in another state sustains the inferences that he knew the
vehicle was stolen and that he transported it in interstate commerce.”). Typically, an
inference is permissible if “there is a rational connection between the fact proved by the
prosecution and the ultimate fact presumed, and the inferred fact is more likely than not
to flow from the proven facts.” Gwathney, 465 F.3d at 1143. Under this definition, there
will be scenarios in which the connection between the crime and the defendant is so
indirect that an inference instruction is inappropriate. Burks’ case, however, presents no
such scenario.
The evidence presented by the government provided a solid foundation for
inferring that Martinez knew the vehicle was stolen and had crossed state lines. Burks
himself admitted that Martinez was involved in the Elliots’ Nevada-based auto-theft ring.
The prosecution also showed that after the Escalade was recovered in Utah, the Elliots
tried to claim it. This evidence, which tends to show that Martinez was a key player in
the Elliots’ scheme, is clearly sufficient to support the inference that Martinez’s
possession of the vehicle meant that he knew the vehicle had been stolen and that it had
crossed state lines. The jury instruction was thus appropriate.
Burks maintains that the inference is only appropriate if the defendant is in actual -10- possession of the vehicle. To this end, he cites Rogers, which held that “[t]he basis of the
inferences is the possession of the vehicle . . . [a]bsent possession no inference may be
drawn.” 416 F.2d at 928. But Rogers states only that the person for whom the inference
is made must have been in possession, and Martinez was unquestionably in possession of
the vehicle before it was recovered in Utah. There is nothing in Rogers to suggest that
the inference may only be made in reference to the defendant at trial.
C
Burks alleges that there was insufficient evidence to convict him at trial. We
review the sufficiency of the evidence de novo. Whitney, 229 F.3d at 1300. “[W]e ask
only whether taking the evidence—both direct and circumstantial, together with the
reasonable inferences to be drawn therefrom—in the light most favorable to the
government, a reasonable jury could find the defendant guilty beyond a reasonable
doubt.” United States v. Keck, 643 F.3d 789, 793 (10th Cir. 2011).
In order to convict Burks, the government was required to prove: (1) a person
transported (for liability under § 2312 ) and received, possessed, or stored (for liability
under § 2313) a stolen vehicle that crossed state lines; (2) the person knew the vehicle
was stolen; and (3) Burks associated himself with the principal and sought to make the
venture succeed. Burks first claims that the government could not prove the vehicle
crossed state lines with the knowledge that it was stolen because it is unclear who
transported the vehicle. We disagree. The government presented an array of evidence
showing the Escalade was stolen by the Elliots in Nevada and found in Utah in -11- possession of Martinez, a known associate of the Elliots. Given this evidence, the jury
could properly infer that whoever transported the vehicle from Nevada to Utah—
presumably some player in the Elliots’ ring—knew it was stolen.
Burks also alleges that the Escalade was not actually stolen when it crossed state
lines. To this end, Burks emphasizes that after the Elliots stole, stripped, and abandoned
the vehicle, it was recovered by authorities, which he argues rendered the Escalade frame
“unstolen.” Because the Elliots legally purchased the “unstolen” frame, the reconstructed
Escalade was allegedly not stolen when it crossed into Utah, and was thus outside the
scope of the Dyer Act. See generally United States v. Muzii, 676 F.2d 919, 923 (2d Cir.
1982) (discussing recovered property doctrine). This argument, while admittedly clever,
is not persuasive. The Dyer Act was intended to cover a wide range of activities, and
passed as an effort to close loopholes that auto thieves had exploited. Turley, 352 U.S. at
416-17. In the instant case, thieves stripped the Escalade and allowed it to be recovered
with the intention of re-purchasing the vehicle so they could obtain legal title to it. To
hold that the transportation and possession of the Escalade did not violate the Dyer Act
because the authorities were made an unwitting link in the chain of theft would create an
illogical loophole in direct contradiction to Congress’ intent. See United States v. Payne,
635 F.2d 643, 645 (7th Cir. 1980) (holding that interstate transportation of vehicle parts
severed from a stolen a truck violated the policy of the Dyer Act). We therefore decline
to apply the recovered property doctrine to situations in which a thief abandons the
vehicle with the intention of purchasing it once it has been recovered by authorities. -12- As a final point, Burks asserts that his involvement in providing the key codes to
the Elliots is not sufficiently material to show that he associated himself with the crime of
transporting and possessing the Escalade in another state. The standard for finding that a
defendant aided or abetted a crime is not a high one; “[c]onduct of the defendant or
special circumstances may justify the inference that the defendant associated himself with
the criminal objective.” Whitney, 229 F.3d at 1303 (quotation omitted). Furthermore,
“[i]t is well settled that knowledge by the defendant that the vehicle was moving in
interstate commerce is not an essential element of an offense under [the Dyer Act].”
United States v. Smith, 461 F.2d 246, 247 (10th Cir. 1972). This is because “[t]he
essence of the offense is the fraudulent scheme itself and the interstate element is only
included to provide a constitutional basis for the exercise of federal jurisdiction.” United
States v. Newson, 531 F.2d 979, 981 (10th Cir. 1976). Thus, it does not matter if Burks
knew the Escalade was going to be transported to Utah or end up in Martinez’s
possession. See also United States v. Hayes, 739 F.2d 236, 238 (6th Cir. 1984) (holding
that it is not necessary to prove an accomplice to a Dyer Act violation knew of the stolen
vehicle’s movement in interstate commerce). It is enough that Burks provided key codes
to the Elliots with full knowledge that the vehicles would be stolen and the relative scope
of their auto-theft ring.
III
Burks contests the district court’s restitution order requiring him to pay $1,000 to
the Escalade’s owners and $49,977 to the owners’ insurance company under the -13- Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. We review an
MVRA restitution order for an abuse of discretion, although the application of the statute
is reviewed de novo and the factual findings for clear error. United States v. James, 564
F.3d 1237, 1242 (10th Cir. 2009).
Under the MVRA, the district court must award restitution for “any offense . . .
against property under [United States Code Title 18] . . . in which an identifiable victim
suffered a physical injury or pecuniary loss.” 18 U.S.C. § 3663A(c)(1). Dyer Act
violations are clearly within that provision’s scope, and both the Escalade’s owner and
their insurance company are identifiable victims. Accordingly, restitution under the
MVRA is mandatory. The statute requires that the victims be compensated “the full
amount of their losses as determined by the court and without consideration of the
economic circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A).
The district court determined that returning the vehicle to its owner was not
practical because the vehicle’s unsavory history had left it unsuitable for street use.
Based on this determination, the court was required to award “the greater of (I) the value
of the property on the date of the . . . loss . . .; or (II) the value of the property on the date
of sentencing.” § 3663A(b)(1)(B)(i). This amount was to be offset by “the value (as of
the date the property is returned) or any part of the property that is returned.”
§ 3663A(b)(1)(B)(ii). Taking this into account, the court determined the actual loss to the
victims to be $50,977: $1,000 to compensate the Escalade’s owners for the deductible
they paid and $49,977 to compensate the insurance company for replacing the Escalade. -14- On appeal, Burks argues that the district court erred by not subtracting the residual
value of the vehicle, which at the time of the order was not in the victims’ possession.
According to Burks, the vehicle was worth approximately $30,000 when it was
recovered; he contends that amount should have been subtracted from the loss to the
victims. But a restitution order under the MVRA “must be based on actual loss,” United
States v. Parker, 553 F.3d 1309, 1324 (10th Cir. 2009), and may only be offset by the
value of the property “returned” to the victim, § 3663A(b)(1)(B)(ii). Given this
mandate, the district court properly declined to offset the actual loss suffered by the
speculative value of the vehicle when returned to a victim in the future.2
IV
We AFFIRM Burks’ conviction and AFFIRM the district court’s restitution
order.
2 The district court noted that the government had agreed to auction the vehicle and subtract that amount obtained from the amount owed. At oral argument, however, both parties stated that after the briefs were filed, the government returned the Escalade to the insurance company. Because the district court properly looked to the victims’ losses and not the speculative amount that might be recovered once the Escalade was auctioned in its analysis, these new facts do not undermine the restitution order. Burks is free to bring a separate action if the government violated its agreement to auction the vehicle and apply the proceeds towards the $50,977 owed by Burks. However, any such agreement is not before this court, and we decline to consider or rule upon it.
-15-