-
USCA1 Opinion
June 25, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1947
UNITED STATES,
Appellee,
v.
JOHN GRELLE, JR.,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge] ___________________
____________________
Before
Lynch, Circuit Judge, _____________
Coffin, Senior Circuit Judge, ____________________
and Cummings,* Circuit Judge. _____________
_____________________
Edward J. Romano for appellant. ________________
Margaret E. Curran, Assistant United States Attorney, with ___________________
whom Sheldon Whitehouse, United States Attorney, and Kenneth P. ___________________ __________
Madden, Assistant United States Attorney, were on brief for ______
appellee.
____________________
____________________
* Of the Seventh Circuit, sitting by designation.
____________________
CUMMINGS, Circuit Judge. In August 1994 John Grelle CUMMINGS, Circuit Judge. ______________
and Robert Joost were indicted for conspiracy to commit robbery
in violation of the Hobbs Act, 18 U.S.C. 1951. The 12-day
trial commenced in March 1995. The jury returned a guilty
verdict against Joost, but was unable to reach a verdict as to
Grelle. In May 1995 a new jury was impaneled to retry Grelle.
In June, he pled guilty to the single count indictment and was
sentenced to 46 months in prison plus supervised release of three
years. Grelle appeals three offense characteristic enhancements
imposed by the district court pursuant to the Sentencing
Guidelines. We now affirm.
I.
The following summary of the facts is drawn from the
presentence report, the first trial record, and transcripts of
tapes of recorded conversations admitted at the trial. In March
1994, Detectives Steven O'Donnell and Joseph DelPrete of the
Rhode Island State Police conducted an undercover investigation
of the manufacture of counterfeit Foxwoods Casino, Connecticut,
slot machine tokens by Joost. The detectives met Joost on March
23, 1994. Approximately a month later, after several meetings
with Joost and various deliveries of counterfeit tokens, Joost
asked the detectives if they would commit an armored car robbery
with him. The detectives learned that the plan was to rob an
armored car belonging to Meehan Armored, Inc. Among other items,
the car carried a gold cargo that it picked up late afternoons
from Leach and Garner, an Attleboro, Massachusetts, precious
-2-
metals manufacturer. The armored car and the gold were then
stored overnight at the Meehan headquarters in Woonsocket, Rhode
Island. At 3:00 a.m. two Meehan guards would load the gold into
the armored car at Woonsocket and drive the cargo to New York
City. Joost planned to rob the armored car as it left the
Woonsocket building while the guards were busy securing the
premises. At the meeting, Joost detailed how he, the detectives,
and a fourth person would conduct the robbery; he indicated that
he needed four guys for the operation and that he already had one
"guy."
The same three met again several times in May 1994
during which Joost told the detectives further details about the
proposed robbery. On May 28 he introduced them to defendant
Grelle. The four traveled to Pennsylvania to rob a trailer and
warehouse, but a prearranged stop by the police brought an end to
the plan. During the trip, however, Grelle told the two
detectives that he was going to participate in the armored car
robbery along with them and Joost. Grelle also stated that he
was the manufacturer of the counterfeit Foxwoods Casino tokens.
On June 16, Joost told the detectives that he had
looked at the Meehan building around midnight but left when he
saw a police officer driving up the access road. He said that
five people would be the right number to commit the robbery and
gave them other details. On June 27, Joost told the detectives
that he and they would arrive at the Meehan building the next
midnight in order to survey the premises. Joost said that Grelle
-3-
would drop them off and pick them up at 4:30 in the morning. The
trip was then postponed to the following evening. The detectives
met Joost on the evening of June 29 and he said that he had
explained the robbery plans to Grelle. At 11:00 p.m. the three
men met Grelle in Smithfield, Rhode Island. One detective and
Joost drove with Grelle in his car while the other detective
followed in his own car. During the drive, Joost complained
about Grelle's choice of a car, and Grelle promised a better car
for the robbery itself.
The two cars met up at a housing complex in Cumberland.
When Detective DelPrete asked Grelle how he knew about the
complex, Grelle responded, "When you plan, you plan well." All
four then proceeded to Woonsocket in Grelle's car. Joost and the
two detectives left Grelle in order to survey the Meehan building
while Grelle agreed to pick them up later. The details of the
planned robbery were then explained by Joost to the two
detectives. Joost explained how one guard would be handcuffed in
the truck and his mouth taped, and how they would put a gun to
the guard's head and shoot if necessary. Since the guards had
not appeared as expected at 4:00 a.m., Joost and the detectives
returned to the pickup point where Grelle met them. Joost told
Grelle that they had missed the armored car.
On July 21, Joost again described the armored car
robbery plan to the detectives and again mentioned putting a gun
to the head of one of the Meehan guards. On August 5, Joost and
Grelle were arrested by federal agents and Rhode Island police
-4-
detectives and Grelle's office was searched by federal agents,
who seized a mold for counterfeiting U.S. quarters. They also
seized from his car molds for counterfeit one- and five-dollar
Foxwoods Casino tokens and two counterfeit one-dollar Foxwoods
Casino tokens. From Grelle's home in North Scituate, Rhode
Island, the agents seized 15 counterfeit U.S. quarters, some
marijuana plants, a bag of marijuana, and still other counterfeit
casino tokens.
At the joint trial, the director of security for two
manufacturing companies testified that those companies
manufactured items in gold and silver in the Attleboro,
Massachusetts, area and shipped the finished products five days
weekly to New York City via the Meehan Woonsocket company, which
delivered the products to various customers in New York. He
indicated that the dollar value of the average daily shipments
from April 1994 to August 1994 ranged from $455,887 to $848,998.
A Meehan official testified that other precious metal shipments
accompanying that cargo averaged about $5,000,000 daily.
Subsequently Grelle prepared a statement for inclusion
in the presentence report in support of an adjustment for
acceptance of responsibility. He admitted that he had been
involved in the robbery and counterfeit tokens conspiracies and
added "I knowingly involved myself, and in doing that I committed
a crime." In return for Grelle's guilty plea, the government
agreed to recommend the lowest term in the applicable Guidelines
range and that it run concurrently to any other sentence. The
-5-
government agreed that Grelle did not participate in the
conversations between Joost and the detectives in which (1) the
amount of gold, (2) the use of firearms, (3) the possible
shooting or killing of the Meehan guards, or (4) the restraint of
those guards were discussed. However, the government
specifically reserved its right to argue that these details were
reasonably foreseeable to Grelle.
In the plea agreement the government agreed to
recommend that Grelle receive a two-level decrease for acceptance
of responsibility provided that (1) he admit his involvement in
the criminal conduct, (2) he otherwise complied with all the
requirements of U.S.S.G. 3E1.1, and (3) he did not receive an
enhancement for obstruction pursuant to U.S.S.G. 3C1.1. The
government also agreed to recommend that he receive a three-level
decrease under U.S.S.G. 2X1.1(b)(2) because the substantive
crime was not close to commission and that he receive a four-
level decrease for a minimal role under U.S.S.G. 3B1.2(a).
The district court determined the base offense level to
be 20. It then imposed a 6-level increase for intended use of a
firearm, a 2-level increase for intended restraint of a victim,
and a 3-level increase for an intended loss between $250,000 and
$800,000. The court then subtracted 3 levels for insubstantial
completion of the substantive defense, 4 levels for minimal role,
and 2 levels for acceptance of responsibility. The total offense
level was 22 with a sentencing range of 41 to 51 months'
-6-
imprisonment. The court imposed a sentence of 46 months in
prison and 3 years of supervised release.
II.
Grelle claims that the three sentence enhancements were
erroneous on the ground that the evidence was inadequate to show
that he had knowledge of the intended conduct or the amount of
the intended loss. However, we conclude that the circumstantial
evidence is more than adequate to establish that the use of
firearms, the restraint of armored car guards and the intended
loss of a gold cargo were not only reasonably foreseeable to
defendant but that he knew the plan involved those factors and
that his agreement to participate covered such conduct.
As noted, defendant pled guilty to a conspiracy to
commit robbery. The guideline applicable to conspiracies,
U.S.S.G. 2X1.1, tells the trial court to use the base offense
level for the substantive offense plus appropriate adjustments.
Here the substantive offense was robbery, and the robbery
guideline sets the base offense level at 20 and includes as
specific offense characteristics the use of a firearm, U.S.S.G.
2B3.1(b)(2)(B); physical restraint of a person to facilitate
commission of the offense or escape, U.S.S.G. 2B3.1(b)(4)(B);
and the amount of loss, U.S.S.G. 2B3.1(b)(6). In determining
the applicability of these specific offense characteristics, the
Guidelines direct the court to consider not only the defendant's
actual conduct and the conduct he agreed to undertake, but also
"all reasonably foreseeable acts and omissions of others in
-7-
furtherance of the jointly undertaken criminal activity . . .
that occurred during the commission of the offense of conviction,
in preparation for that offense, or in the course of attempting
to avoid detection or responsibility for that offense." U.S.S.G.
1B1.3(a)(1)(B). The Commentary explains that a defendant is
accountable for the conduct of others in furtherance of the
jointly undertaken criminal activity and reasonably foreseeable
in connection with that criminal activity. See U.S.S.G. 1B1.3, ___
comment.
The Commentary states that the relevant conduct
determination for a particular defendant depends on the scope of
the activity he agreed to undertake jointly. To determine the
scope of a defendant's agreement, "the court may consider any
explicit agreement or implicit agreement fairly inferred from the
conduct of the defendant and others." Id. The Commentary ___
admonishes that "the criminal activity that the defendant agreed
to jointly undertake, and the reasonably foreseeable conduct of
others in furtherance of that criminal activity, are not
necessarily identical." Id. For example, the note describes a ___
defendant who agrees with another to commit a robbery and
explains that even though the defendant did not contemplate an
assault, he would be accountable for an accomplice's assault of
the victim in the course of the robbery "because the assaultive
conduct was in furtherance of the jointly undertaken criminal
activity (the robbery) and was reasonably foreseeable in
-8-
connection with that criminal activity (given the nature of the
offense)." Id. ___
The Guidelines thus contemplate that a defendant would
be accountable for sentencing purposes for his own intended
conduct within the scope of the conspiracy, but also accountable
for the intended scope of his co-conspirator that was in
furtherance of the conspiracy and was reasonably foreseeable to
the defendant. The reasonable certainty requirement of U.S.S.G.
2X1.1(a) contemplates that in considering specific
enhancements, the sentencing court will consider "what with
reasonable certainty can be determined to be the conspirator's
intent." United States v. Madeiros, 897 F.2d 13, 19 (1st Cir. _____________ ________
1990). Finally, the conspiracy guideline considers that a
defendant may be held accountable for acts that have not yet been
performed. See United States v. Chapdelaine, 989 F.2d 28, 35 _____________ ___________
(1st Cir. 1993), cert. denied, __ U.S. __, 114 S. Ct. 696 (1994). ____________
We now proceed to Grelle's specific objections
regarding the three enhancements imposed by the district court.
A court's factual determinations supporting a sentence must be
proved by the government by a preponderance of the evidence, and
this Court reviews such findings only for clear error. United ______
States v. Legarda, 17 F.3d 496, 499 (1st Cir. 1994). ______ _______
A.
The conspiracy and robbery guidelines provide for a 6-
level enhancement for intended use of a firearm. U.S.S.G.
2B3.1(b)(2)(B). District Judge Lisi presided over the first
-9-
trial and was therefore familiar with the details of the case, so
that her rulings are entitled to great deference. 18 U.S.C.
3742(e). She found here that the use of firearms was
foreseeable to this defendant because Grelle acknowledged that he
had knowingly become involved in an "armed robbery conspiracy"
and admitted that Joost, his co-defendant in the original trial,
told him about the robbery and had taken Grelle to the robbery
site on the previous day. Indeed, as early as May 28, 1994,
defendant had become a co-conspirator by planning to participate
in the armored car robbery with Joost and the detectives.
Grelle was present during many of Joost's conversations
with the detectives, though it is not established that he was
present when Joost specifically mentioned firearms. Joost
nevertheless mentioned to the detectives that guns would be
needed to subdue the guards and that it might be necessary to put
guns to their heads and shoot them. Under the plans known to
Grelle, he would certainly realize that the armored car guards
would be carrying firearms and would have to be subdued in order
to steal the gold, thus requiring firearm use. Joost's plan to
use firearms was reasonably foreseeable to Grelle and was proved
by a preponderance of the evidence, so that the 6-level
enhancement was properly assessed.
B.
Under the robbery guideline, a 2-level enhancement is
to be imposed if "any person was physically restrained to
facilitate commission of the offense or to facilitate escape."
-10-
U.S.S.G. 2B3.1(b)(4)(B). Under the conspiracy guideline,
defendant was subject to such enhancement since the record shows
that he knew or could reasonably foresee that one of the robbers
intended to restrain another person in the commission of the
robbery or the escape afterwards. Here the district court found
that Grelle's participation in the conspiracy contemplated that
the robbery would take place at the Meehan facility when guards
would be present. As a result, the court properly concluded that
it was reasonably certain that Grelle knew that a person would
have to be restrained in order to successfully conclude the
robbery. In addition, Joost had discussed detailed plans with
the detectives involving the restraint of a Meehan guard. Based
on Joost's willingness to discuss the plan's details with two of
the participants, the district court found that he likely
discussed the same plans with Grelle. The district court's
finding that Grelle knew or could reasonably have foreseen that
the plan involved the restraint of others was supported by a
preponderance of the evidence and was not clearly erroneous.
C.
Finally, the 3-level enhancement under U.S.S.G.
2B3.1(b)(6)(D) was for an intended loss of between $250,000 and
$800,000. Grelle was not held accountable for the entire
$5,000,000 value of the cargo -- the value testified to at trial
-- because the district judge found that he was not aware that
the armored car contained precious cargo other than the gold.
Rather, the district court based its determination on the trial
-11-
testimony which showed that from April through August 1994, about
a month before the intended robbery, the armored vehicle carried
between $455,887 and $848,998 worth of gold on each run.
Grelle attacks the determination on the basis that the
figures were not certain. However, the Commentary to the
guideline states that the "loss need not be determined with
precision. The court need only make a reasonable estimate of the
loss, given the available information." U.S.S.G. 2B1.1,
comment. It is clear that Grelle intended to participate in the
armored car robbery and that both Grelle and Joost knew or could
reasonably foresee that the vehicle contained a large amount of
money. At one point, Joost told the detectives that he thought
the car could contain as much as several million dollars. Based
on this information, the district court acted reasonably in
imposing a 3-level increase for the intended loss. The decision
was not clearly erroneous.
III.
For the foregoing reasons, the sentence imposed by the
district court is AFFIRMED. ________
-12-
Document Info
Docket Number： 95-1947
Filed Date： 6/25/1996
Precedential Status： Precedential
Modified Date： 3/3/2016