Title United States v. Medford
Date 1999
By Alito
Subject Criminal Law
Contents
Page 1
LEXSEE 194 F3D 419
UNITED STATES OF AMERICA v. ERNEST MEDFORD; GEORGE CSIZMAZIA, Appellants
Nos. 98-1647/98--1648
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
194 F.3d 419; 1999 U.S. App. LEXIS 34518
May 25, 1999, Submitted Under Third Circuit LAR 34.1(a) July 2, 1999, Filed
PRIOR HISTORY: **1
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (Nos. 98-cr--00045-01 & 98- cr-00045--02). (District Judge: Honorable Clarence C. Newcomer).
DISPOSITION:
Defendants' sentences vacated and remanded for re- sentencing.
LexisNexis(R) Headnotes
COUNSEL:
For Appellee: Michael R. Stiles, United States Attorney, Walter S. Batty, Jr., Chief of Appeals, Robert E. Goldman, Assistant U.S. Attorney, U.S. Attorney's Office, Philadelphia, PA.
For Ernest Medford, Appellant: George Henry Newman, Esq., Newman & McGlaughlin, Philadelphia, PA.
For George Csizmazia, Appellant: Donald M. Moser, Esq., Philadelphia, PA.
JUDGES:
Before: GREENBERG, ALITO, Circuit Judges, ACKERMAN, District Judge, n1.
n1 The Honorable Harold A. Ackerman, Senior Judge of the United States District Court for the District of New Jersey, sitting by designation.
OPINIONBY:
Samuel A. Alito, Jr.
OPINION:
*420 OPINION OF THE COURT
ALITO, Circuit Judge:
Ernest Medford and George Csizmazia ("defendants") appeal their sentences after pleading guilty to conspir- acy, theft, and receipt of cultural objects from a museum in Philadelphia. On appeal, defendants *421 con- tend that the government violated the plea agreement and
**2 that the District Court misapplied the United States Sentencing Guidelines. For the reasons explained below, we conclude that the government satisfied its obligations under the plea agreement but that the District Court erred in applying the sentencing guidelines. We therefore vacate defendants' sentences and remand for further proceedings.
I.
The Historical Society of Pennsylvania ("HSP"), founded in 1824 and located in Philadelphia, exhibits an- tiques and other historical items to the public. Defendant Medford worked as a custodian at the HSP for approx- imately 18 years. During that time, he met defendant Csizmazia, a collector of antiques, who was working as a contractor at the HSP. The defendants agreed that Medford would steal items from the museum and sell them to Csizmazia.
Over a ten-year period, Medford pilfered approxi- mately 200 valuable items from the museum, including a sword presented to George G. Meade for his military accomplishments during the Civil War, a 1735 gold snuff box presented to Andrew Hamilton for successfully de- fending J. Peter Zenger in his libel trial, a ring containing a lock of George Washington's hair, an ivory tea caddy that belonged to George Washington, **3 a telescope used by Elisha Kent Kane during his 1853 exploration of the arctic region, lockets containing the hair of John Brown
194 F.3d 419, *421; 1999 U.S. App. LEXIS 34518, **3
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and Andrew Jackson, the wedding band of Patrick Henry's wife, a silver pitcher presented to a physician for his ef- forts during the 1848 smallpox epidemic in Philadelphia, and a Lancaster County long rifle crafted in 1785 by Isaac Haines, one of Philadelphia's finest gunsmiths. For a pal- try sum, Medford sold these items to Csizmazia, who concealed them at his residence. All of the items have been recovered.
Defendants entered into a plea agreement under which the government promised to "make a motion to allow the District Court to depart from the Sentencing Guidelines pursuant to Sentencing Guidelines § 5K1.1, if the govern- ment in its sole discretion, determines that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an of- fense ...." Csizmazia App. at 24-25; Medford App. at 9-
10. Defendants pleaded guilty to conspiracy, in violation of 18 U.S.C. § 371; theft of objects of cultural heritage, in violation of 18 U.S.C. § 668(b)(1); and receipt **4 and concealment of stolen objects of cultural heritage, in violation of 18 U.S.C. § 668(b)(2). n2
n2 18 U.S.C. § 668(b) provides, in pertinent part:
Any person who
(1) steals or obtains by fraud from the care, custody, or control of a museum any object of cultural heritage; or
(2) knowing that an object of cultural heritage has been stolen or obtained by fraud, if in fact the object was stolen or obtained from the care, custody, or control of a museum (whether or not that fact is known to the person), re- ceives, conceals, exhibits, or disposes of the object,
shall be fined under this title, imprisoned not more than 10 years, or both. 18 U.S.C. § 668(b)(1), (2).
At sentencing, the District Court applied U.S.S.G. §
2B1.1, which provides a base offense level of four for a variety of larceny offenses, including offenses com- mitted under 18 U.S.C. § 668. The Court then enhanced defendants' base **5 offense levels 15 points because the amount of loss sustained by the HSP exceeded $2.5 million. See U.S.S.G. § 2B1.1(b)(1)(P). In arriving at that figure, the District Court considered the appraisals proffered by the government. The experts who made the appraisals had determined that the total monetary value of the stolen items ranged between $2,452,471 and
$2,579,500. Over the defendants' objection, the District Court selected the midpoint of the two estimates for a total loss of $2,515,985.50. *422 The Court reasoned:
"It is entirely appropriate for the Court to accept a valua- tion ... which is based upon two expert appraisals ... and to utilize the midpoint range." Csizmazia App. at 72a; Medford App. at 24.
The Court next considered the government's section
5K1.1 motion for a downward departure. The government declared that its section 5K1.1 motion merely granted the District Court "permission" to depart downward, but that the government "certainly did not recommend a down- ward departure." See Csizmazia App. at 81a; Medford App. at 33. Specifically, the government stated:
The motion for downward departure ... per- mits the Court to depart downward.... That's what **6 the Government is saying, you're permitted, I'm not granting you permission, but under the rules it provides that I'm giving you discretion to depart downward based on defendants' substantial assistance ... We told both counsel that we would file a weak 5K. And a weak 5K in our opinion is one that grants discretion to depart downwards, but we certainly don't recommend a downward departure.
Csizmazia App. at 83a; Medford App. at 35. The District
Court denied the motion.
The District Court heard victim impact testimony from the President of the HSP, Susan Stiff ("Stiff"). See Csizmazia App. at 106a-108a; Medford App. at 58-60. Stiff explained that defendants' actions had damaged one of the museum's most important assets -- its reputation as a responsible steward of important national treasures --
"in ways that cannot be quantified." Csizmazia App. at
107a; Medford App. at 59. Stiff noted that the damage caused by defendants could decrease financial contribu- tions, reduce donations of valuable historical objects, and diminish the HSP's ability to attract qualified individuals to serve as trustees and staff members. See Csizmazia App. at 106a-107a; Medford App. **7 at 58-59. Because of the harm caused to the HSP and the public, Stiff implored the District Court to " impose the heaviest possible sentence on both defendants." Csizmazia App. at 107a-108a; Medford App. at 59-60. The government concurred. Csizmazia App. at 108a; Medford App. at 60. Finding that the defendants' sentencing range of 27 to 33 months did not "sufficiently encompass the egre- giousness of the offenses that were involved," the District Court departed upward four levels from the guidelines.
194 F.3d 419, *422; 1999 U.S. App. LEXIS 34518, **7
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Csizmazia App. at 109a; Medford App. at 61. However, the Court did not advise the defendants prior to the sen- tencing hearing that it intended to depart upward.
The District Court sentenced the defendants to 48 months of imprisonment, and the defendants took this ap- peal. Defendants claim that the government (1) violated the plea agreement by filing a motion for downward de- parture and then stating at the sentencing hearing that it did not recommend departure and (2) acted in bad faith by failing to make "a more concerted 5K1.1 downward departure motion at the time of sentencing." Csizmazia Br. at 15. Defendants also contend that the District Court misapplied the Sentencing Guidelines **8 by (1) ar- bitrarily selecting the middle value of the high and low estimates of the fair market value of the stolen items as the amount of loss sustained by the HSP; (2) departing upward without providing sufficient advance notice of its intentions; (3) departing upward on a ground that had already been taken into consideration by the Guidelines; and (4) departing upward four levels without articulating its reason for the extent of the departure. We address each argument in turn.
II.
Defendants contend that the government violated the plea agreement by filing a downward departure motion and then stating at the sentencing hearing that it did not recommend a downward departure. *423 Defendants also claim that the government acted in bad faith by fail- ing to make "a more concerted 5K1.1 downward departure motion at the time of sentencing." Csizmazia Br. at 15. n3 As a remedy, defendants seek a remand for resentenc- ing before a different judge. "Whether the Government violated a plea agreement is a question of law subject to de novo review." See United States v. Huang, 178 F.3d
184, 187 (3d Cir. 1999) (citing United States v. Roman,
121 F.3d 136, 142 (3d Cir. 1997), **9 cert. denied, 522
U.S. 1061, 118 S. Ct. 722, 139 L. Ed. 2d 662 (1998)). We reject defendants' claims.
n3 Defendants' contention that the government violated the plea agreement by requesting the court to impose the heaviest sentence possible on the de- fendants is frivolous. In the plea agreement, the government reserved the right to "make whatever sentencing recommendation the government deems appropriate...." Csizmazia App. at 25; Medford App. at 10.
Section 5K1.1 of the Guidelines provides:
Upon motion of the government stating that the defendant has provided substantial assis- tance in the investigation or prosecution of another person who has committed an of- fense, the court may depart from the guide- lines.
U.S.S.G. § 5K1.1. We have held that, in the absence of two circumstances not present here, a District Court may not depart below the guideline range based on a defen- dant's substantial assistance unless the government makes a motion to permit such a departure. See United States v. Abuhouran, 161 F.3d 206, 211-212 (3d Cir. 1998), **10 cert. denied, 526 U.S. 1077, 143 L. Ed. 2d 562, 119 S. Ct.
1479 (1999).
In this case, the plea agreement required the govern- ment "to make a motion to allow the Court to depart from the Sentencing Guidelines pursuant to Sentencing Guidelines § 5K1.1, if the government, in its sole discre- tion, determines that the defendant has provided substan- tial assistance in the investigation or prosecution of an- other person who has committed an offense...." Csizmazia App. at 24-25 (emphasis added); Medford App. at 9-
10. We interpret the plain terms of the plea agreement to require only that the government file a § 5K1.1 mo- tion in order to give the District Court the power ("to allow the Court") to depart downward under that provi- sion. Contrary to defendants' suggestions, the plea agree- ment did not require the government to recommend a downward departure at the sentencing hearing; nor did it prohibit the government from stating at the sentencing hearing that it did not recommend departure. Therefore, when the government filed the 5K1.1 motion, it complied with the terms of the plea agreement. n4
n4 It is true that the plea agreement could have been more explicit in stating that, while the gov- ernment was obligated to make a § 5K1.1 motion, the government was reserving the right to take whatever recommendation it chose as to whether a downward departure should be granted. In future cases, it would be advisable for the government to make this point explicit.
**11
In addition, we find no basis for the defendants' con- tention that the government acted in bad faith by failing to make "a more concerted 5K1.1 downward departure motion at the time of sentencing." Csizmazia Br. at 15. In making this contention, defendants cite United States v. Isaac, 39 V.I. 498, 141 F.3d 477 (3d Cir. 1998), in which we held that the government's failure to file a 5K1.1 mo-
194 F.3d 419, *423; 1999 U.S. App. LEXIS 34518, **11
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tion as required under the plea agreement must not result from bad faith. Defendants' reliance on Isaac, however, is misplaced. Here, the government filed a § 5K1.1 motion and in so doing complied with its obligation under the plea agreement. Accordingly, we fail to perceive any bad faith on the government's part.
For these reasons, we conclude that the government satisfied its obligation under the plea agreement and that the government's actions were not in bad faith. We there- fore deny defendants' request for resentencing before a different judge.
*424 III.
Defendants also contend that the District Court erred in enhancing their base offense levels because it arbitrarily selected the midpoint between the high and low estimates of the stolen items' fair market value as the amount **12 of loss sustained by the HSP and stated, without further explanation, that doing so is "entirely appropriate." n5
We review the District Court's findings for clear error. See United States v. Miele, 989 F.2d 659, 663 (3d Cir.
1993). We agree with defendants.
n5 Had the District Court selected the lower es- timate, the defendants would have received a 14- level increase in their base offense levels, rather than the 15-level increase that they received.
U.S.S.G. § 2B1.1 establishes a defendant's base of- fense level for offenses involving theft of property. See U.S.S.G. § 2B1.1 (1997). For offenses under 18 U.S.C.
§ 668, the defendant's base offense level begins at four and is increased depending on the amount of the loss sus- tained as a result of the illegal conduct. See U.S.S.G. §
2B1.1(a), (b)(1). In determining the amount of loss sus- tained, courts are instructed to ascertain the fair market value of the stolen items. See U.S.S.G. § 2B1.1, com- mentary **13 n.2. We have held that in cases in which the fair market value ranges between two estimates and either end of the range is equally plausible, courts gen- erally should adopt the lower end of the estimated range. See Miele, 989 F.2d at 665-66 (citing United States v. Walton, 908 F.2d 1289, 1302 (6th Cir. 1990). However,
"where there is other evidence to support the higher end of an estimated range, the court may certainly rely on the higher estimate." Miele, 989 F.2d at 665-66. Such other evidence must be supported by "sufficient indicia of re- liability," and the court must explain on the record why it relied on the estimate at the higher end. 989 F.2d at
668 ("We require that the district court articulate more than a conclusory finding ... The district court may not
rest its decision upon facts until it determines that the fact or facts have sufficient indicia of reliability to support a conclusion that they are probably accurate.").
The decision of the District Court violates Miele. In determining that the fair market value of the stolen items exceeded $2.5 million, the District Court selected the mid- dle value of the **14 high and low estimates without assessing the reliability of the higher estimate. In addition, the District Court did not articulate an adequate eviden- tiary basis for selecting the middle value of the two esti- mates, as opposed to selecting the low end of the range. Accordingly, as the government requests, we vacate the defendants' sentences and remand for resentencing in ac- cordance with Miele.
IV.
Defendants further maintain that remand is required under Burns v. United States, 501 U.S. 129, 138, 115 L. Ed. 2d 123, 111 S. Ct. 2182 (1991), because the District Court departed upward without providing advance notice to the defendants of its intention to upwardly depart. We agree. In Burns, the Supreme Court held:
Before a district court can depart upward on a ground not identified as a ground for up- ward departure either in the presentence re- port or in a prehearing submission by the Government, Rule 32 of the Federal Rules of Criminal Procedure requires that the dis- trict court give the parties reasonable notice that it is contemplating such a ruling.
Id.; see also United States v. Barr, 963 F.2d 641, 655 (3d Cir. 1992). **15 The government recognizes that the District Court "did not provide the defense with sufficient advance notice of its intention to upwardly depart from the guidelines," and therefore it concedes that the District Court committed plain error. Appellee's Br. at 9. In light of Burns and the position *425 taken by the govern- ment, we vacate the sentences imposed by the District Court and remand for resentencing.
Although we are remanding to the District Court, we will address one further issue relating to the upward de- parture that was briefed to us here and that no doubt will be raised on remand. Defendants contend that the District Court's upward departure was improper because the cul- tural value of the stolen objects is an element of 18 U.S.C.
§ 668 already taken into consideration by the Sentencing Guidelines. We review the District Court's findings of fact for clear error and its legal conclusions de novo. See United States v. Hillstrom, 988 F.2d 448, 450 (3d Cir.
1993). We reject defendants' argument.
194 F.3d 419, *425; 1999 U.S. App. LEXIS 34518, **15
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As noted above, § 2B1.1 provides for increases in the defendants' sentence depending upon the amount of loss sustained by the victim of the **16 offense. See U.S.S.G. § 2B1.1, background commentary ("The value of property stolen plays an important role in determin- ing sentences for theft and other offenses involving stolen property because it is an indicator of both the harm to the victim and the gain to the defendant."). In making this determination, the Guidelines instruct the courts to ascertain the fair market value of the stolen items. See U.S.S.G. § 2B1.1, commentary n.2. The application notes recognize, however, that in some cases, the monetary loss will not "fully capture the harmfulness of the conduct." See U.S.S.G. § 2B1.1, commentary n.15. In those cases, the application notes provide that "an upward departure may be warranted." Id.
In this case, after enhancing the defendants' offense level by 15 based on the fair market value of the stolen items, the District Court departed upward four levels be- cause the applicable sentencing range did not "sufficiently encompass the egregiousness of the offenses that were in- volved here." Csizmazia App. at 109a; Medford App. at
61. The Court explained:
The conduct that the defendants engaged in is an assault and affront to our culture, to our **17 society, and ... must be dealt with accordingly. The intangibles ... involved ... and the effects that they have ... had upon the institution itself -- both here in Philadelphia and ... throughout the country -- mandate that the court ... issue an upward departure in this case.
Csizmazia App. at 109a-110a; Medford App. at 61-62. We agree with the District Court. The price set by the commercial market is insufficient to "fully capture the harmfulness of the defendants' conduct." The antiques stolen in this case unquestionably have historical and cul- tural importance. Moreover, the thefts affected the HSP in ways different in kind from a loss of money or other easily replaceable property, for these thefts damaged the HSP's
reputation. In addition, the monetary value of these ob- jects does not adequately take into consideration the real but intangible harm inflicted upon all of the other victims of the offense, including the City of Philadelphia and the general public. Because section 2B1.1 applies to thefts that cause financial harm to the immediate victim of the offense, the non-monetary damage caused here and the harm inflicted upon the public at large justify the District
**18 Court's upward departure.
The defendants contend that the upward departure was impermissible because "the Sentencing Commission, in setting the offense level ... for theft of objects of cultural heritage, took into account the very fact that the items stolen were items of cultural heritage." Medford Br. at 13. This argument, however, fails to take Application Note 15 into account and overlooks the fact that U.S.S.G. § 2B1.1 applies to a variety of theft offenses that do not involve objects of cultural heritage. To take just one example, U.S.S.G. § 2B1.1 applies to the offense of transporting stolen motor vehicles in interstate or foreign commerce, in violation of 18 U.S.C. § 2312. *426 Thus, un- der U.S.S.G. § 2B1.1, a defendant who transports stolen motor vehicles valued at $x across state lines is treated the same as a defendant who steals objects of cultural her- itage having the same fair market value. Because U.S.S.G.
§ 2B1.1 does not take into account the non-monetary sig- nificance of objects of cultural heritage, a departure may be warranted, as Application Note 15 suggests.
Finally, defendants contend that the District Court erred in failing to explain **19 its reason for a four- level upward departure. Because we are remanding to the District Court, we note only that the District Court should state on the record its reason for the extent of the depar- ture. See United States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990).
V.
Accordingly, we vacate the defendants' sentences and remand for resentencing in accordance with this opinion.
Samuel A. Alito, Jr. Circuit Judge
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