eBooks, Databases, and other searchable on-line content from askSam


	Contents Prev Next Last

Title United States v. Mellen

Argued October 15, 2004 Decided December 21, 2004

Subject Crime

Previous Opinion | Contents | Next Opinion

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 15, 2004 Decided December 21, 2004

No. 03-3100

UNITED STATES OF AMERICA,

APPELLEE

LUTHER E. MELLEN, III,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 01cr00180-02)

Robert C. Bonsib argued the cause and filed the briefs for

appellant Luther E. Mellen III.

Suzanne G. Curt, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Kenneth L. Wainstein,

U.S. Attorney, and John R. Fisher and Laura A. Ingersoll,

Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, and HENDERSON and

ROBERTS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBERTS.

Opinion dissenting in part filed by Circuit Judge

HENDERSON.

ROBERTS, Circuit Judge: Elizabeth Mellen defrauded the

United States government of electronic goods worth hundreds

of thousands of dollars, giving most of them to her relatives.

Elizabeth's husband Luther took part in the criminal activity to

the extent of joining with Elizabeth to procure a stolen laptop for

his son from a previous marriage, and using some of the stolen

goods around the home he shared with Elizabeth. He otherwise

appears to have stayed out of the broader conspiracy. Luther

was convicted of conspiracy and receipt of stolen property. At

sentencing, the district court found him responsible for all the

goods that flowed through the couple's home -- even the goods

he had neither participated in procuring nor used, but which

Elizabeth passed along to her relatives. Because the government

adduced sufficient evidence at trial to show that Luther agreed

to participate in the conspiracy to some extent, we affirm his

convictions. We vacate the sentence, however, because the

record contains no indication that Luther agreed to participate to

the extent of all the goods his wife brought into their home.

This is the fifth appeal stemming from a series of convic-

tions in a conspiracy to defraud the United States Department of

Education (DOE). See United States v. Hayes, 369 F.3d 564

(D.C. Cir. 2004); United States v. Elizabeth Mellen, 89 Fed.

Appx. 268 (D.C. Cir. 2004) (unpublished opinion); United

States v. Morgan, No. 033061 (D.C. Cir. appeal filed May 22,

2003); United States v. Burroughs, No. 033093 (D.C. Cir.

appeal filed Aug. 5, 2003). Elizabeth Mellen, the central

character in this story, worked as a telecommunications special-

ist at DOE and was responsible for installation and maintenance

of telephone services throughout the Department. In that

capacity, she was authorized to place orders under service

contracts DOE had with two companies, Bell Atlantic and

Lucent.

At some point, Elizabeth began to use her government

position to acquire goods and services for herself and her

extended family, paid for by the taxpayers. Elizabeth would ask

Robert Sweeney, a Bell Atlantic employee with responsibility

for the DOE account, to order electronic goods for her under the

Bell Atlantic contract. Sweeney would obtain the goods and

deliver them to locations specified by Elizabeth. Many of these

goods were initially delivered to Elizabeth's home in

Mechanicsville, Maryland, though most of them ultimately

wound up elsewhere in the hands of various members of her

extended family.

Over the course of the conspiracy, Elizabeth ordered and

Robert Sweeney delivered a wide array of items, including more

than 100 cordless telephones, numerous two-way "talkabout"

radios, multiple state-of-the-art computers, and even a 61-inch

television set. In total, Elizabeth obtained more than $360,000

worth of equipment, all paid for by DOE. At her behest,

Sweeney and Lucent employee William Cousins also performed

various services for Elizabeth and her relatives, ranging from

complex cable and wiring installations to lawn-mowing and

other yard work.

Throughout this period, appellant Luther Mellen -- also

known as "Butch" -- was married to Elizabeth. Luther and

Elizabeth shared the home in Mechanicsville. In 1997, Luther's

son from a previous marriage, Daniel Mellen, graduated from

high school in North Carolina. Luther attended the graduation

and gave his son a Dell laptop computer as a graduation present.

The computer was later shown to have been paid for by DOE.

Luther told his son that it had been picked out by Elizabeth and

asked him to write her a thank you note. The computer came

with a power cord, and Daniel would testify that the power cord

broke "two to five times" and that each time his father obtained

a replacement cord for him. Trial Tr., Nov. 4, 2002 (A.M.), at

5253. The power cords were also shown to have been paid for

by DOE.

The government finally caught on to Elizabeth's criminal

activities when one of her co-workers contacted DOE's Office

of Inspector General in August 1999. In December of that year,

special agents executed several search warrants, including one

for the Mellens' Mechanicsville home. There, the agents found

almost $65,000 in property paid for by DOE. Most of the

property was located in the basement -- much of it still in un-

opened boxes -- but agents also found items in other areas of

the house. For instance, agents found a VCR in a closet

containing men's clothing, a speaker phone in the master

bedroom, and a number of items in a den adjoining the bedroom.

See Trial Tr., Oct. 28, 2002 (A.M.), at 10108; Trial Tr., Oct.

28, 2002 (P.M.), at 39.

A grand jury indicted Elizabeth and members of her

extended family for conspiracy to defraud the United States, in

violation of 18 U.S.C. § 371, and various other crimes. The

indictment named Luther as one of the conspirators and also

charged him with receipt of stolen government property, in

violation of 18 U.S.C. § 641. At trial the government presented

detailed evidence on how the stolen goods made their way to the

Mellens' home. Robert Sweeney testified that on some occa-

sions he would bring items to Elizabeth's office or would meet

her as she was coming out of work. Elizabeth would take the

goods home with her, frequently driving home with her hus-

band. Sweeney acknowledged, however, that Elizabeth in-

structed him to conceal the goods in a bag "so Butch couldn't

see them." Trial Tr., Oct. 29, 2002 (A.M.), at 73. On other

occasions, Sweeney placed goods in the trunk of a car that

belonged to one of Elizabeth's sisters, who also worked at DOE.

Again, Sweeney testified that he did this "so that Mr. Mellen

wouldn't know the goods were there." Id. at 89.

Sweeney also testified that on occasion he would deliver

larger items directly to the Mellens' house. Sweeney had a key

to the house and would drop off the goods when no-one was

home. On one trip, Sweeney and a DOE employee unpacked a

large Gateway computer and placed the monitor in a visible

location in one of the upstairs rooms. On other trips, Sweeney

left packaged computers, phones, and printers inside the

Mellens' front door. Sweeney testified that he tried to arrange

the goods "so Butch would not be able to see them," but that he

was unable to conceal the goods completely. Id. at 58. On yet

other trips, Sweeney placed boxes of goods in the basement or

beneath a tarpaulin on the Mellens' deck.

A number of Elizabeth's family members implicated in the

crimes also testified at trial. These witnesses attested to various

aspects of Luther and Elizabeth's marital relationship -- such as

that Luther and his wife drove to work together and that she

cooked for him -- and one witness noted that Luther was

present at a family outing where Elizabeth handed out

"talkabout" radios. See Trial Tr., Oct. 31, 2002 (A.M.), at

7677. Some of the witnesses, however, also testified to their

belief that Luther was not involved in the conspiracy. See Trial

Tr., Oct. 24, 2002 (A.M.), at 135 (testimony of Ray Morgan, Jr.)

("probably . . . Butch Mellen didn't have anything to do with

this"); Trial Tr., Oct. 23, 2002, at 25 (testimony of special agent

George Blissman) (indicating that co-defendant Jeffrey Morgan

told agents that Luther "probably had no knowledge of what Eliz

was d oing").

Luther's son Daniel testified about his father's delivery of

the laptop computer and the replacement power cords. Daniel

also indicated that, after the investigation of the Mellens had

begun, his father advised him not to "be around" the computer.

Trial Tr., Nov. 4, 2002 (A.M.), at 65. The DOE employee who

had tipped off the Department about Elizabeth's activities also

testified that, prior to reporting Elizabeth's activities, she had

overheard several conversations between Elizabeth and Luther

on the subject of acquiring a two-way radio for a boat they

owned.

Finally, the government introduced evidence tending to

show Luther's ability to comprehend what his wife was doing.

One witness explained that, as part of his job with the Environ-

mental Protection Agency (EPA), Luther was authorized to

make government purchases and had received training in the

procedures governing such purchases. The government also

showed that the Mellens shared a joint checking account and

that between 1997 and 1999 Luther had signed approximately 90

percent of the checks issued from the account -- suggesting that

Luther was in charge of the couple's finances.

In his defense, Luther introduced his EPA time, attendance,

and travel records from 1997 to 1999, but did not testify. The

jury found him guilty on both counts. The conspiracy verdict

did not specify the amount of loss attributable to Luther, while

the receipt of stolen property verdict indicated only that Luther

had received government property "having a value of more than

$1,000." Verdict at 2.

The district court sentenced Luther pursuant to the Federal

Guidelines, under which the amount of loss affects a defendant's

sentence. See U.S.S.G. § 2B1.1(b)(1) (2000).1 At the sentenc-

ing hearing, the government asked that Luther be held responsi-

ble for $364,291.30 -- an amount equal to the value of all the

goods stolen by his wife. Luther asked the court to limit his

responsibility to the laptop computer and power cords that he

had delivered to his son. The court held Luther responsible for

$225,582.63 -- the value of all the stolen property that had

entered the Mellens' home at some point during the conspiracy.

The court reasoned that Luther "knew that the property was

there. He knew of his wife's involvement." Sentencing Hr'g

Tr. at 18. The court also granted an upward adjustment for

"more than minimal planning" pursuant to Section

2B1.1(b)(4)(A) of the Guidelines, and denied Luther's requests

for a downward departure and a mitigating role adjustment. The

court sentenced him to concurrent 27-month terms of imprison-

ment and three years of supervised release. Finally, finding that

Luther had the ability to pay a fine, the court imposed one of

$50,000.

Luther Mellen now appeals his conviction at trial and the

district court's rulings on sentencing.

II.

Luther first asks us to reverse his convictions for conspiracy

to defraud the United States and for receipt of stolen government

property. He argues that the government failed to adduce

sufficient evidence to sustain either conviction. Luther also

maintains that the prosecutor in summation improperly referred

to his election not to testify. We find these arguments unavail-

ing and affirm the convictions.

1 The court applied the 2000 version of the Guidelines to avoid

an ex post facto problem. See U.S. CONST., art. I, § 9, cl. 3; U.S.S.G.

§ 1B1.11(b)(1).

A. The Supreme Court has emphasized that, in reviewing

a conviction for sufficiency of the evidence, we must affirm if

"any rational trier of fact could have found the essential ele-

ments beyond a reasonable doubt." Jackson v. Virginia, 443

U.S. 307, 319 (1979). Accordingly, we view the evidence in the

light most favorable to the government and allow the govern-

ment the benefit of all reasonable inferences. United States v.

William Jenkins, 981 F.2d 1281, 1282 (D.C. Cir. 1992). In order

to sustain a conviction for conspiracy under 18 U.S.C. § 371, the

evidence must show that the "defendant entered into an agree-

ment with at least one other person" to defraud the United

States; that he "knowingly participated in the conspiracy with

the intent to commit the offense;" and "that at least one overt act

was committed in furtherance of the conspiracy." United States

v. Gatling, 96 F.3d 1511, 1518 (D.C. Cir. 1996) (citation

omitted). In order to sustain a conviction for receipt of stolen

government property, the evidence must show that defendant

received, concealed, or retained government property "with

intent to convert it to his use or gain, knowing it to have been

. . . stolen." 18 U.S.C. § 641.

The government adduced sufficient evidence to prove both

counts beyond a reasonable doubt. In particular, the government

showed that Luther took several affirmative steps to secure a

stolen laptop computer for his son, and that Luther obtained the

computer through the agreement and cooperation of his wife. A

reasonable jury could also readily infer that several of the stolen

items found in the Mellens' home were being used by Luther as

well as by his wife.

Luther argues that the evidence failed to show he knew any

of these goods were stolen, and that, accordingly, he also could

not have "knowingly participated" in the conspiracy. There is

ample evidence, however, from which a jury could find that

Luther knew what his wife was up to. See, e.g., Trial Tr., Oct.

30, 2002 (A.M.), at 5153 (e-mail from Luther to Elizabeth,

forwarding EPA's policy allowing only de minimis use of

government property for employees' personal needs). More-

over, guilty knowledge need not be proven only by evidence of

what a defendant affirmatively knew. Rather, the government

may show that, when faced with reason to suspect he is dealing

in stolen property, the defendant consciously avoided learning

that fact. See United States v. Reyes, 302 F.3d 48, 5455 (2d

Cir. 2002). Here, a jury could have concluded that Luther was

in charge of the couple's finances, that he understood the way

government purchasing works, and that he knew the nature of

his wife's work. It would not take a rocket scientist to deduce

that the electronic equipment Luther was himself using was

stolen -- an EPA employee with procurement training could do

that. See Trial Tr., Nov. 4, 2002 (A.M.), at 10306. Accord-

ingly, when Luther agreed to take part in Elizabeth's activities

-- by joining to procure the laptop or by availing himself of the

goods in the house -- he did so with all the knowledge neces-

sary to sustain his convictions.

B. At closing argument, the prosecutor asked the jury not

to equate Luther Mellen's passive role with a lack of knowledge.

The prosecutor alluded to Luther's demeanor at trial:

You know, Luther Mellen actually has been sitting there

very, very quietly all throughout this trial, writing as he's

doing now, kind of tucked behind his attorney -- objec-

tion -- tucked behind his attorney -- overruled -- so

maybe you wouldn't notice him. Do you think he's missed

anything that's gone on in this trial, Ladies and Gentlemen?

Trial Tr., Nov. 6, 2002 (A.M.), at 35. Following the summation,

the court issued a curative instruction, reminding the jury that

" n o defendant . . . is under any obligation to say anything, to

testify, offer any evidence, do anything." Id. at 42.

Luther argues that -- despite the court's curative instruction

-- the prosecutor's statement constitutes reversible error. As

Luther points out, it is well established that the Fifth Amend-

ment prohibits the government from highlighting a defendant's

election not to testify. See Griffin v. California, 380 U.S. 609,

61315 (1965). But not every improper statement provides a

ground for reversal. In conformity with our sister circuits, we

find error only where "the language used was manifestly

intended or was of such character that the jury would naturally

and necessarily take it to be a comment on the failure of the

accused to testify." United States v. Williams, 521 F.2d 950,

953 (D.C. Cir. 1975) (internal quotation marks omitted).

The statement at issue here does not clear this threshold.

We disapprove of the prosecutor's choice of words -- she

should have been more careful, to avoid even raising the issue

-- but we cannot say that she manifestly intended to draw

attention to Luther's failure to testify. The context suggests that

she was instead trying to illustrate Luther's awareness of his

wife's activities. Nor can we say that the jury necessarily

understood the statement as a comment on Luther's election to

rest on his Fifth Amendment right not to testify: the statement

described Luther's physical appearance at the defense table, and

not the choices he had made in litigating his case.

III.

Luther next challenges the district court's application of the

Sentencing Guidelines to the facts of his case. He argues that

the court erred in finding him responsible for the value of all the

stolen goods that entered the home he shared with Elizabeth. He

also disputes the increase in his sentence for "more than minimal

planning," and the court's decision not to grant him a downward

departure or a mitigating role adjustment. Finally, Luther

challenges the court's imposition of a fine. We examine these

contentions in turn.2

A. In order to sentence a defendant under the Guidelines,

the district court must determine the "relevant conduct" for

which that defendant is responsible. See U.S.S.G. § 1B1.3(a)

(2000). For a conspiracy offense, the Sentencing Guidelines

provide that relevant conduct includes "all reasonably foresee-

able acts and omissions of others in furtherance of the jointly

undertaken criminal activity." Id. § 1B1.3(a)(1)(b). The district

court's determination of relevant conduct in turn affects the

specific offense characteristics -- such as amount of loss -- that

are used to compute the sentence. See id. § 2B1.1(b)(1).

Here, the district court found Luther Mellen responsible for

a loss of $225,582.63. Luther does not dispute that this figure

accurately reflects the value of stolen goods that his wife

brought into their house. What he challenges is the relevance of

his wife's behavior in this regard to the determination of his

sentence.

The parties disagree over the standard of review governing

the district court's determination of relevant conduct. Luther

2 Luther also argues that his sentence is unconstitutional in light

of Blakely v. Washington, 124 S. Ct. 2531 (2004), since the district

court's assessments of amount of loss and more than minimal planning

were predicated on facts not found by the jury. Supp. Br. at 1. The

Supreme Court is currently considering the applicability of Blakely to

the U.S. Sentencing Guidelines in United States v. Booker, No.

04104, and United States v. Fanfan, No. 04105 (certs. granted Aug.

2, 2004). We issue our judgment today without awaiting guidance

from the Supreme Court on this question because it appears, quite

apart from any constitutional concerns, that Luther may be eligible for

immediate release upon resentencing. To the extent necessary, the

district court may apply the Supreme Court's upcoming decisions in

Booker and Fanfan in the first instance at resentencing.

contends that this is a question of law to be reviewed de novo.

Appellant's Br. at 17. The government cites United States v.

Seiler, 348 F.3d 265 (D.C. Cir. 2003), and United States v.

Pinnick, 47 F.3d 434 (D.C. Cir. 1995), for the proposition that

we review relevant conduct determinations only for clear error.

In Seiler, however, the dispute was a factual one as to whether

the district court erred in finding that the defendant laundered

money and obtained proceeds from a criminal conspiracy. 348

F.3d at 26869. The dispute in Pinnick similarly involved the

factual findings underlying the district court's determination of

relevant conduct. 47 F.3d at 437. By contrast, where as here the

relevant conduct issue involves not only a factual question, but

"the district court's application of the guidelines to the facts,"

the proper standard is due deference -- one between clear error

and de novo review. 18 U.S.C. § 3742(e); see United States v.

Jackson, 161 F.3d 24, 28 (D.C. Cir. 1998).

In attributing to Luther the value of property that he was not

shown to have used, the district court reasoned that Luther

"knew that the property was in the house . He knew of his

wife's involvement." Sentencing Hr'g Tr. at 18. The Sentenc-

ing Guidelines, however, provide that the conduct of

co-conspirators is attributable to the defendant as relevant

conduct only if that conduct is both foreseeable to the defendant

and "in furtherance" of the "jointly undertaken" activity.

U.S.S.G. § 1B1.3(a)(1)(B) (2000). Thus, where two individuals

agree to commit an offense, each becomes liable for actions

taken by the other in furtherance of that particular crime. See

United States v. Saro, 24 F.3d 283, 288 (D.C. Cir. 1994) ("Mere

foreseeability is not enough: someone who belongs to a drug

conspiracy may well be able to foresee that his co-venturers, in

addition to acting in furtherance of his agreement with them,

will be conducting drug transactions of their own on the side,

but he is not automatically accountable for all of those side

deals.").

In keeping with this rule, the Guidelines expressly require

sentencing courts to determine the scope of each defendant's

conspiratorial agreement. See U.S.S.G. § 1B1.3 cmt. n.2 (2000);

see also United States v. Childress, 58 F.3d 693, 723 (D.C. Cir.

1995) (per curiam) (requiring district court to "spell out" its

findings on scope); United States v. Edmond, 52 F.3d 1080,

110506 (D.C. Cir. 1994) (per curiam) (same). Here, the district

court merely found that the presence of stolen goods in the

house was foreseeable to Luther. The court did not find that

Luther agreed to let his wife store them there.

Our recent decision in United States v. Seiler illustrates the

link that is missing in this case. Seiler was convicted of

conspiring with a government contractor fraudulently to

mark-up bids for NASA contracts. See 348 F.3d at 267. One of

the schemes involved Seiler's own subcontracting company, but

two others did not. In affirming the district court's determina-

tion that all three schemes constituted relevant conduct, we

required some evidence that Seiler agreed to participate in each.

Id. at 26869. For the schemes that did not involve his com-

pany, we observed that Seiler participated by laundering money

in one, and that the district court reasonably concluded he was

paid to help carry out the other. Id. Thus, for every scheme

included as relevant conduct, we could point to record evidence

indicating the defendant's agreement to join that aspect of the

conspiracy.

There is nothing inherently implausible about the dissent's

contrary "in for a penny, in for a pound" approach, but it is

clearly foreclosed by our precedents. We have repeatedly held,

in conformity with our sister circuits, that the scope of a defen-

dant's particular conspiratorial agreement controls his sentenc-

ing exposure. Where the record is unclear as to whether the

crimes at issue constitute a single or multiple conspiracies, the

sentencing court cannot assume the former and thereby obviate

its duty to determine the scope of each defendant's agreement.

Saro, 24 F.3d at 28889. What is more, even when there is but

a single conspiracy, and "there is sufficient evidence against

each of the defendants to conclude that she or he agreed to

further the purposes of this single conspiracy," we still require

the sentencing court to determine the scope of each defendant's

agreement. Childress, 58 F.3d at 712, 722. In Childress, for

example, we upheld the finding of a single conspiracy, but

nonetheless vacated the sentences, because the court "focus ed

exclusively on reasonable foreseeability" without considering

the extent of each defendant's agreement. Id. at 723.3

In this case, the government is on solid ground with respect

to the laptop and any equipment used by Luther. As for the bulk

of the $225,000 worth of stolen equipment, however, the

government's case shows at most that Luther knew about its

transitory presence in the house. As we have held, Luther

cannot close his eyes to the obvious. But that evidence of

knowledge does not show agreement, and such a showing is

required before attributing aspects of the conspiracy to Luther as

relevant conduct. See Reyes, 302 F.3d at 54 (Conscious

avoidance doctrine "may be invoked to prove defendant had

knowledge of the unlawful conspiracy. But we do not permit the

doctrine to be used to prove intent to participate in a conspir-

acy").

3 The dissent states that "the trial judge heard the same evidence

the jury heard in convicting Luther and, having heard it, he had `no

doubt . . . whatsoever' of Luther's participation in the conspiracy."

Dissent at 45 (emphasis added). What the trial judge actually said

was that he had no doubt that Luther knew of his wife's involvement.

See Sentencing Hr'g Tr. at 18 ("He knew of his wife's involvement in

the scheme. I have no doubt about that whatsoever."). The dissent's

willingness to equate knowledge with agreement -- participation --

repeats the error we condemned in Childress.

The government's case that Luther Mellen took part in the

conspiracy to the extent of all the goods his wife brought into

their house -- as opposed to the more limited extent of the

goods Luther himself used -- is based on little more than the

fact that Luther and his wife owned the home together. There is

a significant body of law about when individuals can be held

responsible for allowing their homes to be used in furtherance

of a crime. See, e.g., United States v. Morillo, 158 F.3d 18, 23

(1st Cir. 1998); United States v. Brito, 136 F.3d 397, 409 (5th

Cir. 1998); United States v. Ronald Jenkins, 78 F.3d 1283, 1286

(8th Cir. 1996); United States v. Rice, 1992 WL 240686 at *56

(4th Cir. 1992) (unpublished opinion). In such cases, however,

the defendants either knowingly allowed non-owners to use their

homes or took affirmative steps to facilitate the use of their

property. In the absence of such facts, mere acquiescence in the

conduct of a co-owner is insufficient to support the necessary

conclusion that the defendant agreed to the illegal use of his

home.4

4 The dissent correctly states that in most of the cases cited in this

paragraph -- as in the present case -- the defendants had participated

in the conspiracy beyond merely acquiescing in the use of their homes.

Dissent at 6. We do not suggest otherwise. Rather, our point is that

the acts of participation in the cited cases -- unlike those in the

present case -- show the defendants' agreement to the use of their

homes. See Brito, 136 F.3d at 409 (defendant "actively participated

in the storage of marijuana" in his house); Jenkins, 78 F.3d at 1286

("large amounts of cocaine were stored in the basement of

defendant's home at his instruction"); Rice, 1992 WL 240686 at

*56 (defendant knowingly allowed non-owners to conduct drug

transactions in and around his house). Here, Luther helped to obtain

a laptop computer for his son and may have used some of the items his

wife had acquired for their home, but neither of these actions shows

that he agreed to her use of the home as a storage facility for

thousands of dollars in stolen goods intended for her relatives.

This is particularly true here, given the significant evidence

that Elizabeth tried to keep Luther from discovering the stolen

goods she was storing in their home -- evidence not present in

any of the above cases. The government's own witnesses

repeatedly testified they took steps, at Elizabeth's instruction, to

prevent Luther from appreciating the scope of her crimes. This

evidence indicates that while he may not have attempted to

block his wife's use of what was, after all, her home too, he did

not agree to such use, either. If he had agreed, what would be

the point of trying to keep him in the dark about the extent of the

conspiracy?

The government would have us find agreement from

nothing more than the closeness of the Mellens' marriage. Thus,

the government devotes a notable part of its brief to chronicling

the nature of their relationship: they had been married over 15

years, they drove to work together, Elizabeth prepared meals for

her husband, and so on. U.S. Br. at 3334. We think the

government's resort to such arguments indicates the weakness

of its case. Homer thought there was "nothing greater and better

than this -- when a husband and wife keep a household in

oneness of mind," The Odyssey, bk. VI, l. 180, but there is no

evidence that the drafters of the Sentencing Guidelines assumed

such an ideal could substitute for proof of an agreement to

participate in a conspiracy. The record suggests that Elizabeth

conducted the conspiracy and made use of the house as she

pleased, without consulting her husband. The fact that he knew

what she was doing does not mean he agreed to it.

The government argues that even if we reverse the district

court's determination of relevant conduct for conspiracy, we

should still uphold Luther's sentence. This argument is based

on Luther's conviction for receipt of stolen government prop-

erty: the government maintains that even if he did not agree to

the scope of his wife's activities, Luther still "receiv ed ,

conceal ed , or retain ed " all the stolen goods that Elizabeth

brought into their house. See 18 U.S.C. § 641; U.S. Br. at

4748. In essence, the government maintains that Luther

violated 18 U.S.C. § 641 because he knew that his wife was

storing stolen property in their house.

We do not agree. While this court has allowed juries to

infer that a defendant exercises constructive possession over

items found in his home, we have done so only when the record

suggests the defendant himself exercised dominion and control

over the items at issue. See United States v. Wahl, 290 F.3d 370,

376 (D.C. Cir. 2002) (noting that evidence of a gun found in a

defendant's house "may not alone compel a conclusion that

defendant had constructive possession"); United States v.

Edelin, 996 F.2d 1238, 1241 (D.C. Cir. 1993) (per curiam)

(allowing an inference of constructive possession of drugs found

in a bedroom dresser based on specific evidence that defendant

occupied the bedroom and exercised dominion and control over

the dresser). Nothing in the record before us indicates that

Luther exercised dominion and control over stolen goods

Elizabeth intended for her relatives, just because she temporarily

stored the goods in the house she shared with Luther.

The government cites United States v. Sylvia Jenkins, 928

F.2d 1175 (D.C. Cir. 1991), where we upheld the sentence of a

mother convicted of trafficking cocaine found in areas of her

house inhabited by her son and other, unrelated individuals. In

Jenkins, as here, the incriminatory evidence was stored largely

out of defendant's view, but -- unlike this case -- the record

contained no suggestion that the other participants were actively

hiding it from her. Id. at 1179. In addition, police found

ammunition in a bedroom occupied solely by Jenkins, and we

held that a jury could infer guilt based on the theory that guns

and drugs go together. See id. ("When this ammunition is

added we are convinced that a rational juror could find Jenkins'

guilt beyond a reasonable doubt."). Even with this additional

evidence, we found that the government had "just barely" made

its case. Id. As such language suggests, we are unwilling to

expand that precedent to cover this case.5

What is more, 18 U.S.C. § 641 requires not simply that

Luther received or concealed stolen property, but that he did so

with "the intent to convert it to his use or gain." The record in

this case is bereft of any suggestion that Luther intended to

convert $225,582.63 worth of electronics -- most of which left

the house shortly after it was brought in -- to his own use or

gain. At oral argument, the government indicated that Luther

knew that being able to give significant gifts to her relatives

made his wife happy. This, however, merely shows that

Elizabeth gained something from the crimes, not that her

husband did so as well.

In sum, giving due deference to the district court's findings,

we must nonetheless conclude that the court erred in determin-

ing the relevant conduct and amount of loss attributable to

Luther Mellen. We remand for resentencing on the conspiracy

and receipt of stolen property counts, and instruct the district

court to limit Luther's responsibility to the laptop computer and

to any goods he personally used. These goods may include

some items found in use in the Mellens' home, but should not

include items -- such as those that passed through the home and

5 We take the dissent's point about the different standards of

proof on conviction and sentencing, see Dissent at 78, but the issue

here is not so much the necessary quantum of evidence as whether

there is any evidence showing Luther's agreement in the broader

aspects of his wife's activities, or his dominion and control over the

goods she temporarily stored in their house. Our concern is not the

circumstantial nature of the evidence, see id. at 4 n.4, but whether that

evidence shows agreement as opposed to mere knowledge.

into the hands of Elizabeth's relatives -- for which the record

contains no evidence of Luther's agreement.

B. The district court also increased Luther's sentence by

two levels because his crimes involved "more than minimal

planning." See U.S.S.G. § 2B1.1(b)(4)(A) (2000). The Guide-

lines call for this adjustment when the crime involves "more

planning than is typical for commission of the offense in a

simple form." Id. § 1B1.1 cmt. n.1(f). More than minimal

planning is also present "in any case involving repeated acts

over a period of time, unless it is clear that each instance is

purely opportune." Id. The Guidelines also note that "planning

is often related to increased difficulties of detection and proof."

Id. § 2B1.1 cmt. background. Because a determination of more

than minimal planning involves analysis of both law and fact,

we give the district court's findings due deference. United

States v. Kim, 23 F.3d 513, 51617 (D.C. Cir. 1994).

Limiting our inquiry to the crimes in which Luther Mellen

agreed to participate, we affirm the increase for more than

minimal planning. The series of transactions relating to the

laptop alone involved "more planning than is typical for the

commission of the offense in a simple form": Elizabeth Mellen

had to place an order with Robert Sweeney, Sweeney had to

deliver the computer to Elizabeth or her home (in exchange for

which she allowed him to bill his time to DOE), and Luther had

to take the computer and deliver it to his son in North Carolina.

Luther even participated in the concealment of the laptop: when

he found out that the family was under investigation, Luther

instructed his son not to "be around" the computer, as a result of

which his son hid it in the mountains of North Carolina. Trial

Tr., Nov. 4, 2002 (A.M.) at 65. In addition to the laptop, Luther

also sent his son several power cords, which were also paid for

by DOE. See id. at 5253. In light of all this, we cannot say

that the district court erred in applying the two-level increase.

C. Given our remand on the amount of loss, we need not

reach Luther's request for a downward departure. That request

was based on an assertion that the district court's finding on the

amount of loss overstated Luther's involvement in the crimes.

At any rate, we note that a district court's decision not to depart

downward is reviewable only if the district court misconstrued

its authority to depart. Pinnick, 47 F.3d at 439. The record

before us does not suggest that the court did so.

As for Luther's request for a mitigating role adjustment

under Section 3B1.2 of the Guidelines, we note that such

adjustments are proper only when the defendant is "plainly

among the least culpable" or "less culpable than most other

participants." U.S.S.G. § 3B1.2 cmt. nn.1 & 3 (2000). Here, the

district court reasonably could have found Luther as culpable as

several other small-scale participants in this large-scale conspir-

acy.

Finally, we turn to Luther's contention that the district court

improperly imposed a fine. Under the Guidelines, the court

must impose a fine unless the defendant is unable to pay one.

U.S.S.G. § 5E1.2(a) (2000). We review the court's finding on

ability to pay only for clear error. United States v.

Mastropierro, 931 F.2d 905, 907 (D.C. Cir. 1991). Here, the

court found that Luther had an ability to pay based on his

government pension -- which he apparently retained -- and his

assets at the time of sentencing. See Sentencing Hr'g Tr. at

2631. We see no reason to overturn this finding. We note,

however, that the amount of the fine will be affected by the

court's redetermination of the amount of loss -- see U.S.S.G §

5E1.2(c)(3) (2000) -- and the district court should alter the fine

accordingly.

IV.

"The extent of a defendant's vicarious liability under

conspiracy law is always determined by the scope of his

agreement with his co-conspirators." Saro, 24 F.3d at 288.

Here, the district court found a husband vicariously liable for all

the stolen property his wife temporarily stored in their home,

without evidence that he agreed to join in his wife's criminal

activity to that extent. Such a finding threatens to turn all

spouses into co-conspirators because of their agreement to marry

-- not because of their agreement to participate in a particular

conspiracy. We require more specific evidence of guilt, and

accordingly remand for resentencing based only on the crimes

in which the husband agreed to participate.

KAREN LECRAFT HENDERSON, Circuit Judge, dissenting in

part:

In reversing the district court's determination at

sentencing regarding Luther Mellen's responsibility for the

value of all of the stolen goods that entered the Mellen house,

the majority has confused the bonds of matrimony with the

conduct of co-conspirators. Luther Mellen (Luther) was

convicted of conspiracy to defraud the government not

because he married Elizabeth Mellen but because he decided

willfully and knowingly to participate in the criminal

conspiracy she directed. Despite my brethren's apparent

sympathy for Luther's accommodating marital attitude,1 the

fact that Luther may merely have wanted to please his wife2

does not alter the well-established law governing the scope of

a co-conspirator's "relevant conduct" under the United States

Sentencing Guidelines (U.S.S.G. or Guidelines). In

describing Luther's culpability as guilt by association rather

than as the common accountability of a co-conspirator, I

believe the majority makes two mistakes: first, it fails to apply

the correct standard of review to the trial court's critical

finding of fact, a finding anchored by the trial evidence;

second, it misapplies the law regarding a co-conspirator's

"relevant conduct" under the Guidelines. Accordingly, while

I join in Parts I, II, III.B, III.C and IV of the majority opinion,

I dissent from Part III.A.

The Guidelines authorize the district court to include in a

co-conspirator's "relevant conduct" "all reasonably

foreseeable acts and omissions of others in furtherance of the

1 Maj. Op. at 16.

2 Sentencing Tr., Aug. 5, 2003 1:30 PM at 32.

jointly undertaken criminal activity." U.S.S.G. §

1B1.3(a)(1)(B) (2000). The Commentary instructs the trial

court to "determine the scope of the criminal activity the

particular defendant agreed to jointly undertake" and to

consider "all reasonably foreseeable quantities of contraband

that were within the scope, of the criminal activity that he

jointly undertook." U.S.S.G. § 1B1.3 cmt. n.2 (2000). The

issue, then, as the majority correctly pinpoints, is the scope of

the conspiratorial agreement between Luther and his wife,

Elizabeth. To determine scope the sentencing court must

decide whether the evidence established a single conspiracy

of which the defendant was a part or multiple conspiracies,

only some of which the defendant took part in. United States

v. Childress, 58 F.3d 693, 722 (D.C. Cir. 1995). The

determination of scope is the responsibility of the trial court.

United States v. Edmond, 52 F.3d 1080, 1105 (D.C. Cir. 1995)

(" T he logic of the precedent requires the District Court,

not us, to determine the proper scope of agreement...."). If

the trial court fails to make findings regarding the scope of a

defendant's involvement in a conspiracy, we ordinarily

remand the case to permit it to do so. Childress, 58 F.3d at

726; Edmond, 52 F.3d at 1105; United States v. Anderson, 39

F.3d 331, 359 (D.C. Cir. 1994); United States v. Saro, 24 F.3d

283, 290-92 (D.C. Cir. 1994).

Here the district court did make the crucial finding as to

the scope of the conspiracy at the sentencing hearing. After

considering the arguments of counsel, the trial evidence and

the pre-sentence report, the trial judge determined that

Luther's culpability encompassed all of the property that

flowed through the Mellen house, concluding, "$225,582.63,

is indeed the value of the property that Mr. Mellen is

responsible for in the criminal activity, because he knew that

the property was there. He knew of his wife's involvement in

this scheme. I have no doubt about that whatsoever."

Sentencing Tr., Aug. 5, 2003 1:30 PM at 18. The majority

decides that this finding of fact is subject to the "due

deference" standard of review, citing United States v.

Jackson, 161 F.3d 24 (D.C. Cir. 1998) (" A district court's

application of the Guidelines to the facts must be given `due

deference....'"). Maj. Op. at 12. I respectfully disagree that

"due deference" is the correct standard of review. The trial

judge made an unvarnished finding of fact which we do not

disturb unless it is "clearly erroneous." See United States v.

(Elizabeth) Mellen, 89 Fed. Appx. 268 (D.C. Cir. 2004) (" I n

reviewing sentences the court ... `shall accept the findings of

fact of the district court unless they are clearly erroneous....'"

(quoting 18 U.S.C. § 3742(e))); see also United States v.

Spriggs, 102 F.3d 1245, 1262 (D.C. Cir. 1996) (per curiam).

The district court first found that Luther participated in the

conspiracy with respect to all of the goods that passed through

the Mellen house. It then decided how to apply section 1B1.3

of the Guidelines. Childress, 58 F.3d at 722 (scope of

conspiratorial participation "depends on factual findings"

(internal quotation marks omitted)).

The record here manifests that the trial court's factual

finding as to the scope of Luther's involvement is anything

but clearly erroneous. Luther was convicted of conspiracy to

defraud the government by "causing Elizabeth C. Mellen ...

to obtain computers, telephones, cameras, and other

electronic equipment ... for the personal use of the

coconspirators." Grand Jury Indictment (June 17, 1999) at 7.

Some of the goods stolen as part of that conspiracy were

delivered to the Mellen house to be distributed to Luther's

wife's relatives. Other goods were in use or in plain view in

the Mellen house. Trial Tr., Oct. 28, 2002 A.M. , at 91-108.3

Luther was present at times when some of the goods were

distributed to other family members. Trial Tr., October 30,

2002 A.M. , at 6.4 Although the district court's finding is

terse, I believe that necessarily implied in its words is the

finding that Luther, knowing of his wife's fraudulent activity

taking place in their house, did nothing to disassociate himself

from it.5 After all, the trial judge heard the same evidence the

3 An additional $140,000 worth of stolen property never

passed through the Mellen residence.

4 How the majority, facing these facts, can question

"whether there is any evidence showing Luther's agreement in

the broader aspects" of the conspiracy is beyond me. Maj. Op.

at 18 n.5 (emphasis in original). The evidence may be

circumstantial but it is nonetheless undeniable. " T he law has

no preference for direct evidence over circumstantial and often

it is the latter that is the more reliable." United States v. Spinner,

152 F.3d 950, 963 (D.C. Cir. 1998) (internal citation omitted).

5 The majority notes that the jury found Luther guilty of

receiving stolen property "having a value of more than $1000."

Maj. Op. at 6. The verdict form included no specific property

value on the conspiracy count. Id. The receipt/stolen property

count's allusion to "more than $1000" merely tracks the

language of 18 U.S.C. § 641 and indicates nothing about the

jury's view of the extent of Luther's involvement in the

conspiracy. The jury was, however, in possession of the

indictment. Trial Tr., November 6, 2002 A.M. at 148. The

receipt/stolen property count charged Luther with all of the

property -- $225,000 worth -- that passed through the Mellen

jury had in convicting Luther and, having heard it, he had "no

doubt ... whatsoever" of Luther's participation in the

conspiracy.6 The court even allowed for the testimony about

keeping Luther "in the dark" by limiting Luther's

responsibility to the goods delivered to the house -- some

$225,000 worth -- as opposed to the entire $365,000 worth of

goods involved in the fraud.7 Having made a permissible

house during the conspiracy. Grand Jury Indictment at 3234

(June 17, 1999). The conspiracy count charged that Luther and

the other co-conspirators "willfully combined, conspired,

confederated, and agreed with each other ... to defraud the

United States" and described Luther's involvement within the

entirety of the conspiracy. Id. at 631.

6 I do not, as the majority suggests, Maj. Op. at 14 n.3,

understand the district court's comment to equate knowledge

with participation. Rather, I think the statement -- "He knew of

his wife's involvement in the scheme. I have no doubt about

that whatsoever."-- was the court's shorthand finding, in light

of all of the evidence it had heard throughout the trial, that

Luther both knew about, and participated in, the conspiracy

involving all of the goods that passed through the Mellen house.

7 The jury may have found the testimony regarding

Elizabeth's effort to shield Luther from the full scope of the

conspiracy lacking in credibility. Robert Sweeney testified that

he was unable to comply fully with Elizabeth's instructions to

conceal any goods delivered to the Mellen house "so Butch

Luther would not be able to see them." Trial Tr., October 29,

2002 A.M. , at 58. Sweeney further testified that Elizabeth

"didn't want anyone to know about the deliveries," including

finding as to scope, the trial judge's application of the

Guidelines is unremarkable and plainly worthy of "due

deference": it was reasonably foreseeable to Luther that all of

the goods delivered to and passing through the house in which

he resided furthered the conspiracy of which he was a part.

To support its conclusion the majority cites several cases

involving circumstances in which a defendant has been

deemed a co-conspirator based on activities taking place in his

house. See United States v. Brito, 136 F.3d 397, 409 (5th Cir.

1998); United States v. Ronald Jenkins, 78 F.3d 1283, 1286

(8th Cir. 1996); United States v. Rice, 1992 WL 240686 at *5

(4th Cir. 1992) (unpublished opinion); cf. United States v.

Morillo, 158 F.3d 18, 23-24 (1st Cir. 1998). These cases

provide more support for the proposition that the entire

amount of property passing through the Mellen house was

reasonably foreseeable to Luther than they do for the

majority's more limited view of "foreseeability." First, each

of these cases involved a sufficiency of the evidence challenge

to a conspiracy conviction, not a challenge to the

determination of "relevant conduct" at sentencing where the

applicable burden of proof is simply a preponderance of the

evidence. United States v. Stover, 329 F.3d 859, 871 (D.C.

Cir. 2003). Moreover, each of the Brito, Jenkins and Rice

defendants, like Luther, had participated in the conspiracy

beyond merely acquiescing in the use of his house. Brito, 136

F.3d at 409 (defendant "actively participated in the storage of

marihuana"); Ronald Jenkins, 78 F.3d at 1286 (defendant

Lewis Morgan. This instruction was -- to put it mildly --

improbable because, as Elizabeth well knew, Lewis Morgan

helped Sweeney deliver the stolen goods. Id. at 5960.

"assisted in the accounting of drug proceeds"); Rice, 1992 WL

240686 at *6 (evidence sufficient to infer defendant's

participation in the conspiracy). In Morillo, another challenge

to a conspiracy conviction, the court reversed the conviction

because there was "no evidence of any involvement by the

defendant in any other aspect of the conspiracy" aside from

lending his apartment to the conspirators. Morillo, 158 F.3d

at 23. That is not the case here. Even more distinguishable,

the defendant in Morillo no longer lived in the apartment

when the conspiratorial acts occurred there. Id. at 24. Finally,

unlike the Morillo court, we are affirming Luther's conspiracy

conviction.

The majority also attempts to distinguish our own

precedent of United States v. Sylvia Jenkins, 928 F.2d 1175

(D.C. Cir. 1991). Jenkins lived with her son and was

convicted along with him and others of conspiracy to possess

cocaine. There was no evidence of her involvement in the

conspiracy other than her residing in the house (which she

owned) where the cocaine was seized and the discovery of

ammunition in her bedroom. We declared that the "natural

inference is that those who live in a house know what is going

on inside, particularly in the common areas." Id. at 1179.

Sylvia Jenkins's possession of ammunition permitted the

inference that she was involved in the drug conspiracy and we

affirmed her conviction. Id. Here Luther's participation in

the conspiracy -- obtaining his son's laptop -- permits the

same inference with respect to the other goods delivered to the

Mellen house. The majority is right to distinguish Jenkins but

for the wrong reason. Jenkins involved a conspiracy

conviction, not a sentencing calculation. The majority's

reluctance "to expand Jenkins to cover this case," Maj. Op.

at 18, is therefore unfounded: if the government "`just barely'

made its case" at trial to prove Jenkins's guilt beyond a

reasonable doubt, id. (quoting Jenkins), it requires no

expansion to affirm the trial court's "relevant conduct"

determination regarding Luther supported by the lesser

preponderance of the evidence standard applicable at

sentencing.

Moreover, "a conspiracy can be inferred from a

combination of close relationships or knowing presence and

other supporting circumstantial evidence." Brito, 136 F.3d at

409. The majority minimizes the evidence of the closeness of

Luther and Elizabeth's marriage as manifesting a weakness in

the government's position, Maj. Op. at 16, and ignores the

other circumstantial evidence linking Luther to the goods

passing through the house, including Luther's request that

Elizabeth obtain Motorola two-way radios for their use,

coupled with his presence at a family gathering where

Elizabeth distributed similar radios to her relatives, the many

times when driving to or from work together that Luther and

Elizabeth retrieved stolen goods from Elizabeth's sister's

vehicle, as well as the sheer quantity of goods recovered from

throughout the house on the day of the police raid.8

In its decision to limit Luther's involvement, the majority

assumes without discussion that there were multiple

8 See Trial Tr., October 28, 2002 A.M. , at 91108 (volume

of goods found at Mellen home); Trial Tr., October 29, 2002

P.M. , at 12728 (goods placed in Elizabeth's sister's vehicle);

Trial Tr., October 30, 2002 A.M. , at 57 (distribution of two-

way radios to Elizabeth's relatives); id. at 89 (retrieval of

goods from Elizabeth's sister's vehicle); Trial Tr., October 30,

2002 P.M. , at 4345 (Luther and Elizabeth's discussion about

two-way radios for personal use).

conspiracies at work: one between Elizabeth and Luther to

defraud the government of the laptop obtained for Luther's

son; another between Elizabeth and Luther to defraud the

government of electronics for their personal use at their

house; another involving the distribution of goods from their

house -- as well as the storage of goods there -- of which

Luther was not a part; and still others of which Luther was not

a part in which no goods passed through the house. See Maj.

Op. at 14. Although the record may permit such an

assumption, it does not require it. The majority treats the

record as if it were insufficient as a matter of law to hold

Luther accountable for all of the goods that passed through the

house. Instead of allowing the district court on remand to

"spell out" its findings as to the scope of Luther's

involvement, Childress, 58 F.3d at 722, the majority

erroneously constrains the district court's role as fact-finder.9

Unlike the federal tax code, the criminal law permits

neither a marriage penalty nor a marriage bonus. See Joint

Committee on Taxation, Description of the Marriage Tax

Penalty Relief Act of 2000, JCX-3-00 (Jan. 31, 2000). The

majority has handed Luther the equivalent of a refund check.

It makes the hyperbolic assertion that holding Luther

accountable for all of the goods distributed from the Mellen

house "threatens to turn all spouses into co-conspirators

because of their agreement to marry -- not because of their

9 Although I would affirm outright the district court's

"relevant conduct" determination, I believe a remand should at

least leave the trial court free to "spell out" that the $225,000

worth of stolen property that passed through the Mellen house

was reasonably foreseeable to Luther.

agreement to participate in a particular conspiracy." Maj. Op.

at 21. Luther was a convicted co-conspirator, not an

"innocent spouse." At sentencing, the government must

"proffer sufficiently reliable evidence to support its factual

assertions as to the scope of a defendant's conspiratorial

agreement" to count co-conspirators' acts as part of the

defendant's "relevant conduct." United States v. Booze, 108

F.3d 378, 381 (D.C. Cir. 1997). Here the district court was

"entitled to rely on the trial record references cited by the

government." Id. at 384. That evidence should easily allow

us to uphold the trial court's finding that Luther's "relevant

conduct" included the value of all of the goods flowing

through the Mellen house. While the evidence may not fit the

Homeric ideal of which the majority speaks, Maj. Op. at 16, I

believe it is sufficient to conclude that the Mellens kept both

their household and their conspiracy with "oneness of mind."

For the foregoing reasons, I respectfully dissent from Part

III.A of the majority opinion.

Contents Prev Next Last