USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2307
UNITED STATES,
Appellee,
v.
KEITH ADAM RICHARDSON,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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James C. Munch, III, with whom Marvin H. Glazier, and
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Vafiades, Brountas & Kominsky were on brief for appellant.
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Michael M. DuBose, Assistant United States Attorney, with
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whom Jay P. McCloskey, United States Attorney, was on brief for
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appellee.
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January 28, 1994
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BOWNES, Senior Circuit Judge. Defendant-appellant,
BOWNES, Senior Circuit Judge.
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Keith A. Richardson, was tried and convicted by a jury of
conspiring to transport, possess, and sell stolen property in
interstate commerce in violation of 18 U.S.C. 371, 2314,
2315 and 2. His appeal raises four issues: (1) whether the
court erred in admitting into evidence written statements of
a co-conspirator ; (2) whether there was sufficient evidence
for defendant's conviction; (3) whether the court erred in
giving the jury a willful blindness instruction; and (4)
whether the court erred in sentencing defendant. We affirm
across the board.
Factual Summary
Factual Summary
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Defendant and his father operated a business in
Waterville, Maine, called the Skowhegan Coin and Stamp
Corporation, from August 1989 through June of 1991. During
this time defendant bought and sold hundreds of thousands of
dollars worth of jewelry mailed to him from Arizona by one
Chip Bond (a/k/a John MacLean). The jewelry packages were
sent via Federal Express with fictitious return names and
addresses. Defendant paid for the jewelry initially in cash
and then by postal money orders made out to "cash." Both
types of payment were sent via Federal Express. Bond became
the target of a joint federal and state investigation into
numerous residential burglaries involving thefts of jewelry
in the Phoenix area of Arizona. Several pieces of jewelry
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stolen from the Phoenix vicinity were traced to defendant in
Maine. In March 1991, Bond telephoned defendant and told him
that "they" were under FBI surveillance, and he accused
defendant of being an informant. Defendant steadfastly
maintained that until he received the phone call he was
totally unaware that the packages shipped to him by Bond
contained stolen jewelry.
The Admission of the Alleged Hearsay Statements
The Admission of the Alleged Hearsay Statements
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The disputed statements (Ex. 22-A) were letters
from Bond to defendant sent along with the jewelry. They
discussed, described, and evaluated the jewelry contained in
the packages. Some of them gave specific directions for sale
and payment. The evidence showed the letters were all
written by the same individual, who signed some of them as
"Chip." Defendant was addressed as "Keith." Expert
testimony, agreed to by stipulation, established that both
Bond's and defendant's fingerprints were on the documents.
The government obtained the letters from the Skowhegan Coin
and Stamp Corporation pursuant to a subpoena for business
records.
Fed R. Evid. 801(d)(2)(E) provides:
(d) Statements which are not hearsay.
Statements which are not hearsay.
A statement is not hearsay if
. . .
(2) Admission by party-opponent. The
Admission by party-opponent.
statement is offered against a party and
is
. . .
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(E) a statement by a coconspirator of
a party during the course and in
furtherance of the conspiracy.
Defendant attacks the admission of the statements
on procedural and substantive grounds. Our analysis melds
the objections together. We start with the procedural
objection. In United States v. Petrozziello, 548 F.2d 20
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(1st Cir. 1977), we held that Fed. R. Evid. 104(a) requires,
in a conspiracy case, that questions of admissibility be
determined solely by the judge. We further held that the
civil standard of preponderance of the evidence should be the
test for admissibility:
[I]f it is more likely than not that the
declarant and the defendant were members
of a conspiracy when the hearsay
statement was made, and that the
statement was in furtherance of the
conspiracy, the hearsay is admissible.
Petrozziello, 548 F.2d at 23. In United States v.
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Ciampaglia, 628 F.2d 632 (1st Cir.), cert. denied, 449 U.S.
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956, and cert. denied, 449 U.S. 1038 (l980), we established a
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"timing" rule to be followed in determining the admissibility
of out-of-court statements.
If the prosecution attempts to
introduce into evidence an out-of-court
declaration under Fed. R. Evid.
801(d)(2)(E), the trial court, upon
proper objection, may conditionally admit
the declaration. If the declaration is
conditionally admitted, the court should
inform the parties on the record out of
the hearing of the jury that (a) the
prosecution will be required to prove by
a preponderance of the evidence that a
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conspiracy existed, that the declarant
and defendant were members of it at the
time that the declaration was made, and
that the declaration was in furtherance
of the conspiracy, (b) that at the close
of all the evidence the court will make a
final Petrozziello determination for the
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record, out of the hearing of the jury .
. . .
Ciampaglia, 628 F.2d at 638 (footnote omitted).
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When defendant objected to the evidentiary offer of
the statements, the trial court invoked a bench conference
and stated in pertinent part:
I am satisfied, based on the evidence
that has been presented thus far, that it
is more likely than not, which is the
standard under Petrozziello, that the
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declarant and the defendant were members
of the conspiracy when these statements
were made and that the statements were
made in furtherance of that conspiracy
and that it is admissible.
I will, in accordance with the circuit
court's instructions in Petrozziello, at
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the conclusion of the government's case,
which I assume is very soon, make a final
determination if something happens during
cross-examination or something that would
change the court's conclusion.
So that this ruling is conditional in
that sense and I'll make a final
determination at the end of the
government's case, which I understand is
the procedure set up by the First Circuit
to handle these kinds of issues. Okay?
Neither party advised the court that its final determination
should be made at the close of all the evidence, not at the
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end of the government's case. The court made its final
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determination at the end of the government's case, and
admitted thestatements intoevidence. Defendant didnot object.
Defendant contends that the court's procedure
violated the Ciampaglia rule, and for that reason argues that
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there must be a new trial. We agree that the court did not
follow Ciampaglia, but conclude that a new trial is not
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warranted. We find that, because the defendant failed to
object when the court first informed counsel how it intended
to proceed and failed to object again when the court made its
final ruling admitting the statements, there was a waiver of
the Ciampaglia rule.1 In Ciampaglia we faced the same
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situation, and stated:
In the instant case, however, neither
appellant nor anyone else objected to the
timing of the district court's finding.
Appellant failed to make any objection
setting forth the reasoning that he now
persuades us to adopt. Even in the
Eighth Circuit, which held two years ago
that district courts should make a final
preponderance determination at the end of
all the evidence, failure to object at
trial to the omission of such a
determination bars an appellate [sic]
from raising the point on appeal in the
absence of plain error. United States v.
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Baykowski, 615 F.2d 767 (8th Cir. 1980).
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628 F.2d at 638.
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1In fact, defense counsel did more than fail to object.
When he was informed of the procedure the court proposed
following, and asked if it was "Okay," he said "Fine." This
was tantamount to giving the judge a go-ahead signal.
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Defendant's failure to object implicates the plain-
error doctrine of Fed. R. Crim. P. 52(b), which states:
"Plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of
the court." The Supreme Court teaches: "The Rule authorizes
Courts of Appeals to correct only particularly egregious
errors, those errors that seriously affect the fairness,
integrity or public reputation of judicial proceedings."
United States v. Young, 470 U.S. 1, 15 (1985) (citations and
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internal quotation marks omitted). We have read the trial
record and Ex. 22-A carefully and have found nothing in
defendant's case that would have required or even suggested
the exclusion of the statements. At the time the court made
its conditional ruling there was a solid evidentiary
foundation for it, which was not eroded by the testimony
presented during defendant's case. We hold that the
statements were properly admitted under Fed. R. Evid. 801
(d)(2)(E). Consequently, we need not consider their
admissibility under the Business Record exception to the
Hearsay Rule.
Sufficiency of the Evidence
Sufficiency of the Evidence
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We have stated the standard of review for assessing
the sufficiency of the evidence after a verdict of guilty
innumerable times. We cannot improve on our latest
statement:
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Following a guilty verdict, a reviewing
court must scrutinize the record,
eschewing credibility judgments and
drawing all reasonable inferences in
favor of the verdict, to ascertain if a
rational jury could have found the
government proved each element of the
crime beyond a reasonable doubt. To
sustain a conviction, the court need not
conclude that only a guilty verdict
appropriately could be reached; it is
enough that the finding of guilt draws
its essence from a plausible reading of
the record.
United States v. Sepulveda, No. 92-1362, et al., slip op. at
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7 (1st Cir. Dec. 20, 1993) (citations omitted); see also
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United States v. Echeverri, 982 F.2d 675, 677 (1st Cir.
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1993).
The question is whether there was sufficient
evidence for a rational jury to find beyond a reasonable
doubt that defendant conspired with Chip Bond, a/k/a John
MacLean, to transport, possess, and sell stolen property in
interstate commerce. We find that there was.
We have stated what the government has to prove in
order to obtain a conviction on a conspiracy charge as
follows:
The essential elements of a conspiracy
are that it was willfully formed, that
the accused willfully became a member of
the conspiracy, that the conspirators
thereafter knowingly committed at least
one of the overt acts charged in the
indictment, and that such overt act was
knowingly done in furtherance of some
object or purpose of the conspiracy, as
charged.
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United States v. Latham, 874 F.2d 852, 863 (1st Cir. 1989).
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See also United States v. Barker Steel Co., 985 F.2d 1123,
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1127-28 (1st Cir. 1993); United States v. Hurley, 957 F.2d 1,
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4 (1st Cir. 1992), cert. denied, 113 S. Ct. 60 (1993). And a
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conspiracy may be proved by either direct or circumstantial
evidence. United States v. Jadusingh, Nos. 92-2299, 92-2404,
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slip op. at 14-15 (1st Cir. Jan. 4, 1994). The government
fully met its burden of proof.
There is no point in rehearsing the evidence.
Defendant does not dispute the evidence. His sole defense
was that he neither intended to conspire, nor did in fact
enter into a conspiracy with Bond to transport, possess, and
sell stolen property in interstate commerce. Suffice it to
say that the jury believed otherwise, and there was more than
sufficient evidence for a reasonable jury to find as it did.
The Willful Blindness Instruction
The Willful Blindness Instruction
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Defendant contends that there was not sufficient
evidence to ground a willful blindness instruction. He
asserts, in the alternative, that even if there were grounds
for such a charge, the instruction actually used was flawed.
According to defendant, the trial judge should have included
the caveat that even if defendant deliberately avoided
knowledge, he could not be convicted if he subjectively
believed that he was not contributing to criminal activity.
Defendant's Brief at 19.
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At the outset of our discussion, we note once again
that our analysis must be made within the framework of the
plain error doctrine. See supra at 6-7. Defendant points
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out that in a chambers conference prior to the charge, he
objected to the court's proposed willful blindness
instruction. But this was only the first step. It is an
ironclad rule in this circuit that "failure to renew
objections after the charge constitutes waiver of any claim
of error." United States v. Mendoza-Acevedo, 950 F.2d 1, 4
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(1st Cir. 1991). See also Wartski v. Bedford, 926 F.2d 11,
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22 (1st Cir. 1991). No objection to the willful blindness
instruction was made after the charge. This means that we
review only for plain error. United States v. McMahon, 938
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F.2d 1501, 1510 (1st Cir. 1991).
The willful blindness instruction was as follows:
The element of knowledge may be
satisfied by inferences drawn from proof
that the defendant deliberately closed
his eyes to what otherwise would have
been obvious to him if you so find. A
finding beyond reasonable doubt of a
conscious purpose to avoid enlightenment
about whether the jewelry was stolen
would permit an inference of knowledge.
Or stated in another way, a defendant's
knowledge of a fact may be inferred from
willful blindness to the existence of
that fact.
It is entirely up to you as to whether
you find any deliberate closing of the
eyes and the inferences to be drawn from
any such evidence. A showing of
negligence or mistake is not sufficient
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to support a finding of willfulness or
knowledge.
United States v. Littlefield, 840 F.2d 143, 147
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(1st Cir.), cert. denied, 488 U.S. 860 (1988), states the
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rule in this circuit on a willful blindness instruction:
It is now established in this circuit
that a willful blindness instruction is
proper if a defendant claims a lack of
knowledge, the facts suggest a conscious
course of deliberate ignorance, and the
instruction, taken as a whole, cannot be
misunderstood as mandating an inference
of knowledge.
In United States v. St. Michael's Credit Union, 880 F.2d 579,
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585 (1st Cir. 1989), we pointed out:
"The purpose of the willful blindness
theory is to impose criminal liability on
people who, recognizing the likelihood of
wrongdoing, nonetheless consciously
refuse to take basic investigatory
steps." [S]ee United States v.
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Zimmerman, 832 F.2d 454, 458 (8th Cir.
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1987) (willful blindness instruction
"allows the jury to impute knowledge to
[a defendant] of what should be obvious
to him, if it found, beyond a reasonable
doubt, a conscious purpose to avoid
enlightenment.").
(Citation omitted.)
We now turn to a review of the evidence to
determine whether giving a willful blindness instruction
amounted to plain error. The first flag that should have
aroused concern about the source of the jewelry was the
manner in which Bond shipped it to defendant. For about
eighteen months packages of jewelry were sent uninsured to
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defendant via Federal Express. None of the packages gave
Bond's name as the sender. Quite the contrary: the
information on the packages stated false names and addresses
for the sender. Telephone numbers were not given; the word
"unlisted" was used for phone information. No bills or
invoices accompanied the weekly jewelry shipments. Instead,
Bond enclosed typed instructions with most shipments, Ex. 22-
A, as to the sale of the jewelry. If a sale price was not
suggested, defendant was told to "see what you can get."
The second flag that should have raised defendant's
suspicion was the telephone communication system that Bond
imposed on defendant. Defendant could only contact Bond by
calling Bond's beeper number. Bond's method of telephoning
defendant was by collect calls to defendant from pay phones.
The third flag of suspicion was the way Bond
insisted on being paid. Payment had to be made by overnight
mail on the day the jewelry arrived. At first Bond asked for
payments in cash. When it became obvious that cash payments
entailed the risk of loss or theft or claims by Bond that
payments had not been made, postal money orders were used.
Bond warned defendant during the time of cash payments not to
stack $100 bills on top of one another because this would
give the feel of money. When money orders became the mode of
payment, Bond warned defendant that weekly purchases of large
money orders were "unusual" and defendant should be careful
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about arousing suspicions by the IRS. Bond explicitly left
it up to defendant to avoid problems in Maine.
These three flags were sufficient for a willful
blindness instruction, but the most significant blinders that
defendant wore were woven from his unquestioning acceptance
of hundreds of thousands of dollars worth of jewelry from
someone he did not know on the representation that it came
from an estate. Defendant, according to his own testimony,
met Bond first on August 23, 1989, and spent under a half
hour with him. Bond had some chains and rings for sale.
Defendant only bought part of the lot, because some of the
pieces were overpriced. At Bond's request defendant paid for
the jewelry with a check made out to cash. Bond came back
within a few days and defendant bought a pair of unusual $5
gold coin cuff links from him. About a month later, in late
September of 1989, Bond called defendant and asked if he
remembered him. Defendant testified "I had no idea who he
was." He only remembered Bond, when Bond reminded him of the
$5 gold coin cuff links. Bond, according to defendant,
wanted to know if I would liquidate some
estate jewelry for him and that, since I
was a dealer from the area that he grew
up, he would allow me to do it as long as
I was going to pay good prices for it and
that was about it.
Shortly thereafter the packages of jewelry started to arrive.
At no time prior to March 19, 1991, when Bond
telephoned defendant, and advised him that "they" were under
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FBI surveillance and accused defendant of being an informant,
did defendant, according to his testimony, have any
suspicions about the source of the jewelry or who his
supplier was. Only once did defendant check on an item, a
watch, that had been sent to him. And that was at the
suggestion of one of his customers, Paul Zebiak. Defendant
told Zebiak that there was no police record of the watch
having been stolen. The jury could well have concluded
that defendant was so blinded by the steady flow of jewelry
that he chose not to question either its source or the bona
fides of the sender.
We find that there was an ample evidentiary basis
for a willful blindness instruction. Nor can any fault be
found with the wording of the instruction; it fully comported
with this circuit's requirements.
We further find that the court did not err in
refusing to instruct the jury that even if defendant
deliberately closed his eyes to the facts, he could not be
convicted if he subjectively believed that he was not
contributing to criminal activity. To begin with, there was
no objection after the charge to the court's refusal to give
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the instruction. The plain error doctrine thus applies.
United States v. Martin, 815 F.2d 818, 824 (1st Cir.), cert.
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denied, 484 U.S. 825 (1987). Secondly, the court's
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instructions on intent made it clear that actual intent by
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the defendant had to be proven by the government. The court,
inter alia, charged as follows:
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Two types of intent must be proved
beyond a reasonable doubt before an
individual can be said to be a member of
a conspiracy: An intent to agree and an
intent that the substantive crime be
committed. In order for you to find the
defendant guilty of the conspiracy
offense, you must find beyond a
reasonable doubt that he had an actual
intent, whether reasonable or not, that
one of the alleged crimes be committed.
We conclude that the willful blindness instruction was
appropriate.
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The Sentencing
The Sentencing
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The pertinent sentencing findings of the district
court were as follows:
Base Offense Level
Base Offense Level
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I find the following:
(a) Under United States Sentencing
Commission Guideline (here-
inafter "Guideline") 3D1.2(b),
the base offense level is 4 for
receiving, transporting or
possessing stolen property.
(b) Pursuant to Guideline
2B1.1(b)(1)(K), if the value of
the stolen property was at
least $200,000, but not more
than $350,000, there is a ten-
level increase. In the instant
offense, $280,000 of stolen
property is involved.
Therefore, the base offense
level is increased 10 levels to
14.
(c) Section 2B1.2(b)(4)(A) of the
Guidelines further provides
that if the offense was
committed by a person in the
business of receiving and
selling stolen property,
increase by four levels. As
this offense involved the
defendant receiving stolen
property and selling it to
wholesalers, a four-level
increase is merited, increasing
the base offense level to 18.
(d) The defendant has not accepted
responsibility for the offense.
He is, therefore, not eligible
to have the base offense level
decreased two levels under
Guideline 3E1.1(a). Therefore,
the Total Offense Level is 18.
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(e) The defendant's Criminal
History Category is Category I.
Based on a Total Offense Level of 18
and a Criminal History Category of I, the
applicable Guideline range is 27 to 33
months.
The sentencing judgment was that defendant be
incarcerated for a term of twenty-nine months; that he pay a
fine of $6,000; that he pay restitution of $2,500; and that
he serve a term of suupervised release of three years.
Defendant makes two objections to the sentence.
First, he argues that the evidence does not support a finding
that $280,000 worth of stolen property was involved and,
therefore, the ten-level increase pursuant to U.S.S.G.
2B1.1(b)(1)(K) was invalid. Second, defendant attacks the
application of 2B1.2(b)(4)(A), on the ground that there was
no evidentiary support for the finding that he was in the
business of receiving and selling stolen property and,
therefore, the four-level increase was invalid.2
There can be no question about the applicable
standard of review:
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2Section 2B1.2(b)(4)(A) was deleted by consolidation
with 2B1.1 effective November 1, 1993. Section
2B1.1(b)(5)(B), which is identical to 2B1.2(b)(4)(A),
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.
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Appellate review of a district court's
application of the sentencing guidelines
is ordinarily a dichotomous process.
First, the court of appeals determines de
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novo the reach of the relevant guideline
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to ascertain whether it applies in a
given case. Once the court of appeals
has defined the guideline's meaning and
scope, it reviews the sentencing court's
factfinding only for clear error.
United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992)
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(citations omitted).
Because both attacks on the sentence are based on a
claim of lack of evidentiary support and do not question the
reach of the relevant guidelines, our review is limited to
whether the district court's factual findings were clearly
erroneous.
Valuation
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We start with the Commentary to 2B1.1. Note 3 of
the Commentary states in pertinent part: "3. For the
purposes of subsection (b)(1), the loss need not be
determined with precision. The court need only make a
reasonable estimate of the loss, given the available
information."
To successfully challenge the district's factual
finding of the amount of the loss, a defendant
must carry the burden of satisfying us
that the court's evaluation of the loss
was not only inexact, but was outside the
universe of acceptable computations. See
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U.S.S.G. 2F1.1, comment. (n. 8) (the
sentencing court "need only make a
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reasonable estimate of the range of loss,
given the available information").
United States v. Tardiff, 969 F.2d 1283, 1288 (1st Cir.
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1992).
As we read the pre-sentence report and the record
of the sentencing hearing, the district court based its
valuation on the following considerations. First, it
considered the total amount of jewelry that passed from Bond
to defendant during the eighteen months of the conspiracy.
Second, it took into account several inventory valuation
figures. Documentary evidence showed that defendant paid
Bond at least $179,000 for the jewelry. Defendant himself
estimated that he paid Bond between $150,000 to $200,000 for
the jewelry. The sales to the three main purchasers of the
jewelry, Spector, Zeliak and Levy, totalled $392,878.00.
This figure was supported by computer and invoice records.
The valuation amount of $288,853.84 was the most conservative
estimate in the pre-sentence report. The probation officer,
after carefully reviewing the receipts and inventory records,
subtracted from the total sales of $392,878.00 all sales
which arguably could have been for non-jewelry items. This
resulted in the valuation amount of $288,853.84 adopted by
the court.
This finding was neither clearly erroneous nor
"outside the universe of acceptable computations." Tardiff,
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969 F.2d at 1288.
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Was Defendant a Person in the Business of
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Receiving and Selling Stolen Property?
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We have recently spoken directly to the application
of 1B1.1(b)(5)(B) (formerly 2B1.1(b)(1)(K)). In United
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States v. St. Cyr, 977 F.2d 698, the district court applied
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the four-level increase "because it 'infer[red] that from
[St. Cyr's] willingness and [the] easy manner in which he
came into participation in this [affair] . . . he was a
person predisposed in buying and selling stolen property.'"
Id. at 701. In discussing the applicability of the four-
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level increase we first noted that under 2B1.2 there was a
commentary by the Sentencing Commission that when persons
receive stolen property for resale, "'the amount of property
is likely to under-represent the scope of their criminality
and the extent to which they encourage or facilitate other
crimes.' 2B1.2, comment. (backg'd)." Id. at 702. The
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government urged that the commentary was as far as we need go
to decide the issue. Fortunately, and perhaps presciently,
we did not rest our decision on the commentary and pointed
out that it was inadequate and "prove[d] too much." Id.
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Section 2B1.2 was deleted by consolidation with 2B1.1,
effective November 1, 1993. There is no such commentary to
the present 2B1.1. The commentary was, of course, in
effect at the time of defendant's sentencing, but it does not
play a significant role in our analysis.
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After discussing the commentary, we surveyed other
appellate decisions addressing the applicability of the
increase for "a person in the business of receiving and
selling stolen property." We concluded that,
there is no bright line that separates
defendants who are "in the business" of
dealing in stolen property from those who
are not so engaged. Therefore, in
mulling whether to impose the ITB
enhancement, the sentencing judge must
undertake a case-by-case approach,
weighing the totality of the
circumstances, with particular emphasis
on the regularity and sophistication of a
defendant's operation, in order to
determine whether a defendant is "in the
business" of receiving and selling stolen
property.
Id. at 703.
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We listed and explained a number of circumstances
for the district court to factor into its applicability
assessment. The most important was the regularity of
defendant's dealings in stolen merchandise. In considering
this factor we suggested that,
a sentencing court can certainly consider
evidence about the amount of income
generated through fencing activities, the
defendant's past activities, his
demonstrated interest in continuing or
expanding the operation, and the value of
the property handled. Where there is no
indication either of a pattern of dealing
in stolen property or of a developed
operation that promises such consistency
for the future, the defendant is unlikely
to be "in the business."
Id.
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A second circumstance to be considered is the
sophistication of defendant's operation. We observed:
We agree that the sophistication of
the defendant's operation is a second
circumstance that may itself indicate
business conduct. We can easily imagine
situations in which a fencing business,
although very much a business, has been
recently launched and therefore traces no
historical pattern. In order to
distinguish a new-to-the-business fence
from an amateur, however, the government
must at least offer a meaningful proxy
for regularity, say, by showing that the
operation crossed a threshold of
sophistication and commitment.
Id. at 704.
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The St. Cyr court found that there was no evidence
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from which either regularity or sophistication could be found
and held that four-level increase was inapplicable. In the
case at bar we come to the opposite conclusion.
The question is whether the district court was
clearly erroneous in finding that defendant was "a person in
the business of receiving and selling stolen property." The
evidence, viewed in the light most favorable to the
government, clearly demonstrates that defendant was a fence.
Defendant bought stolen jewelry from Bond on a weekly basis
for an eighteen month period. The amount defendant paid for
the jewelry was much less than its market value. He sold the
jewelry as soon as he could after he received it. He used
the normal channels of his coin shop business to make these
sales, and he kept records of these transactions.
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There can be little doubt that the sale of the
stolen jewelry was vital to defendant's business. Defendant
testified that he lost $2,000 during his first year in
business. After Bond started supplying him with stolen
jewelry, defendant's business tripled. And the business
closed down three months after the flow of jewelry stopped in
March of 1991.
The sales end of defendant's receiving and selling
stolen goods proceeded with all the accouterments of a
business. Although we would not call the business
arrangements between defendant and Bond "sophisticated" in
the dictionary sense, they were a modus operandi designed to
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minimize suspicion and to keep both supplier and receiver
financially satisfied. Until the police blew the whistle,
defendant ran a successful fencing operation.
The judgment of the district court is Affirmed.
Affirmed.
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