United States v. Negri ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 23 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 98-6178
v. (W. Dist. of Oklahoma )
(D.C. No. 97-CR-208)
BOBBY O’NEAL NEGRI, JR.,
Defendants-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY, and MURPHY, Circuit Judges.
INTRODUCTION
A federal grand jury handed down a three-count indictment charging Bobby
Negri with stealing approximately $2.6 million from a Loomis/Fargo Armored
Carriers (“Loomis”) armored car. In particular, the indictment alleged that Negri
conspired to steal the money and transport it in interstate commerce in violation
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
of 18 U.S.C. § 371; stole money belonging to the Oklahoma City, Oklahoma,
Federal Reserve Bank in violation of 18 U.S.C. § 2113(b); and transported the
stolen money in interstate commerce in violation of 18 U.S.C. § 2314.
Negri entered a plea of guilty to all three counts of the indictment.
Pursuant to the sentencing calculations set out in the Presentence Report (“PSR”),
the district court sentenced Negri to a term of imprisonment of sixty months on
count one, sixty-three months on count two, and sixty-three months on count
three, all to run concurrently with one another. Negri appeals the sentence
imposed, contending the district court erred in the following particulars: (1)
increasing Negri’s base offense level by two points pursuant to United States
Sentencing Guideline (“U.S.S.G.”) § 2B1.1(b)(4) because Negri engaged in “more
than minimal planning”; (2) increasing Negri’s base offense level by four points
pursuant to U.S.S.G. § 2B1.1(b)(6)(B) because Negri derived more than
$1,000,000 and the theft “affected a financial institution”; and (3) adjusting
Negri’s base offense level upward by two points pursuant to U.S.S.G. § 3B1.3
because Negri abused a position of “private trust.” This court exercises
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and affirms.
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BACKGROUND
The facts leading up to Negri’s prosecution, plea of guilty, and sentencing
are as follows. On June 25, 1997, Negri arrived for work at Loomis, where he
was employed as an armored car driver and guard. He was assigned that day to
guard a $2.9 million shipment of Federal Reserve notes destined for various banks
in Oklahoma. Usually, Loomis shipments were transported in an armored car
staffed by three employees. On the night of June 24 th, however, Negri spoke to
one of his co-workers and learned that he was calling in sick the next day.
Accordingly, Negri and co-worker Greg Stroud were alone in the armored car.
En route to their deliveries, Negri and Stroud made an unscheduled but
routine stop for breakfast at a McDonald’s. Stroud went into the McDonald’s to
buy breakfast while Negri remained in the back of the armored car, supposedly to
guard the money. When Stroud returned a few minutes later, Negri and
approximately $2.6 million were missing. Negri’s revolver and a postcard with a
handwritten note containing the following language were found in the back of the
armored car: “Is Paris nice this time of year? OUI By[e] now.”
Some four months after the theft, Negri and his accomplice Michael Lutz
were arrested in Ft. Lauderdale, Florida. As FBI agents questioned Negri and
Lutz, details of their plan began to unfold. During deliveries prior to the June
25 th theft, Negri reminded bank employees that they would need extra cash on
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hand for the July 4 th holiday weekend and told them to “order heavy.” Negri
undertook these actions for the purpose of ensuring there would be plenty of
money in the shipment he planned to steal. A few days prior to the theft, Negri
and Lutz drove to Tulsa and left Lutz’s truck at the airport. Negri and Lutz
planned to leave their vehicles at different airports in the hope of confusing the
police. Negri then rented a getaway van in Shawnee, where Lutz was maintaining
a hotel room so he could be closer to the route of the armored car.
On the morning of the theft, Lutz drove Negri to work and parked Negri’s
truck at the Oklahoma City airport. Lutz then took a cab to pick up the rented
getaway van, which was parked near the Loomis office. As the armored car left
the Loomis office, Lutz followed. When the armored car stopped at the
McDonald’s, Lutz pulled into the parking lot. When Stroud went inside, Negri
and Lutz quickly unloaded the bags of money into the van and fled the scene.
While Lutz drove the getaway van, Negri changed out of his guard uniform
into street clothes he had previously placed in the van. The pair drove to
Shawnee where they purchased another van and dumped the rented getaway van at
an apartment complex. They then drove to Shreveport, Louisiana, and eventually
made their way to Florida, spending money freely and changing vehicles every so
often. Negri and Lutz lived on the stolen money in Florida for the next four
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months, spending it on luxurious items and moving from one resort hotel to
another.
ANALYSIS
1. U.S.S.G. § 2B1.1(b)(4)
Sentencing Guideline § 2B1.1(b)(4) mandates a two-level upward
adjustment in a defendant’s base offense level for larceny, embezzlement, and
other forms of theft if the offense “involved more than minimal planning.” U.S.
Sentencing Guidelines Manual § 2B1.1(b)(4) [hereinafter U.S.S.G.]. Under the
Guidelines, “‘More than minimal planning’ means more planning than is typical
for commission of the offense in a simple form. “More than minimal planning”
also exists if significant affirmative steps were taken to conceal the offense . . . .
U.S.S.G. § 1B1.1 appl’n note 1(f). The district court’s conclusion that the
offenses committed by Negri involved more than minimal planning is a factual
determination reviewed by this court under the highly deferential clear-error
standard. See United States v. Orr , 68 F.3d 1247, 1253 (10 th
Cir. 1995).
Negri argued before the district court that the § 2B1.1(b)(4) enhancement
was inappropriate because of the failure of the “overall scheme,” particularly the
bumbling manner in which Negri and Lutz traveled from Oklahoma to Florida,
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and because the measuring offense was the theft of a large sum of money from an
armored car. The district court rejected these arguments, finding as follows:
There was more than minimal planning here. The way in which this
issue is stated in the guidelines is important. We’re not making an
inquiry as to whether there was extensive planning, we’re not
making an inquiry whether there was successful planning, the
adjustment is applicable if you can determine what would be kind of
a rock-bottom minimum, and if the government shows that
something was done beyond that minimum.
In support of its finding that the offense had been accompanied by more
than minimal planning, the district court made the following subsidiary factual
findings. First, the district court noted that after Negri decided to commit the
theft, he concluded that he needed the assistance of another. Accordingly, Negri
recruited Lutz into the conspiracy. Second, the district court found that the
planning for the offense extended over a period of several days. In particular,
Lutz and Negri rented a van, which they intended to use as a getaway vehicle,
several days before the theft. In addition, the conspirators purchased a
footlocker, in which they intended to store the loot, and placed it in the rented
van. Negri also stored some street clothes in the rental van so that he could
immediately change out of his Loomis uniform upon completion of the theft.
Third, the planning included a series of actions undertaken to cover the
conspirators’ tracks. In particular, Negri and Lutz formulated a plan to leave the
impression that they had split up and fled the country immediately after the theft.
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Several days before the theft, Lutz abandoned his vehicle at the airport in Tulsa.
Furthermore, on the morning of the crime, Lutz drove Negri to work in Negri’s
vehicle, drove Negri’s vehicle to the airport in Oklahoma City, and then took a
cab back to a spot near the Loomis company to pick up the rented getaway van.
In addition, upon completion of the theft, Negri left a note in the armored car
leaving the impression he had gone to France. Fourth, and finally, Negri utilized
inside information obtained over several days prior to the theft to maximize the
chances of success and the amount of money which was likely to be on hand in
the armored car. In particular, in the days before the theft, Negri told his
contacts at the banks to order heavy for the Fourth of July weekend, thus
ensuring that there would be plenty of money in the armored car. Negri and Lutz
committed the theft on a day when one of Negri’s co-workers had called in sick,
so that there were only two, rather than the normal three, guards in the armored
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car. 1 Furthermore, Negri stationed Lutz in the rental car on the armored vehicle’s
route in order to facilitate the theft.
In light of the district court’s detailed subsidiary factual findings, the
district court did not commit clear error in determining that the offenses at issue
were accompanied by more than minimal planning. In particular, we agree that
the conspirators’ use of inside information and extensive planning to avoid
detection after the theft is more than “is typical for commission of the offense in
a simple form.” U.S.S.G. § 1B1.1 appl’n note 1(f); cf. United States v.
Dougherty , Nos. 95-6110, -6113, -6114, 1995 WL 539524, at *1 (10 th
Cir. Sept.
11, 1995) (unpublished disposition) (holding that use of gloves during crimes
“indicates a measure of planning in the commission of the burglaries and an
affirmative step to conceal the offenses”). In addition, although not specifically
relied on by the district court, Negri’s exhortation to Loomis customers to “order
heavy” for the Fourth of July weekend and commission of the theft on the
1
During the sentencing hearing, the United States presented testimony that
Negri had manipulated the third guard over several days prior to the theft to
ensure that the third guard called in sick on the day of the planned theft. In
response to this testimony, the district court made the following findings:
The Court . . . is not prepared to find that the defendant actually
manipulated the third guard not to come to work that day, but the
success of the theft depended upon the defendant’s knowledge of
who was going to be there. The knowledge came to him because of
his status as custodian. In putting it all together, it is not a
spontaneous spur of the moment matter.
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particular date upon which there might be more money than ususal in the armored
car supports the application of the enhancement. See U.S.S.G. § 1B1.1 appl’
note 1(f) (providing that “obtaining information on delivery dates so that an
especially valuable item [can] be obtained . . . constitute[s] more than minimal
planning”). 2
2. U.S.S.G. § 2B1.1(b)(6)(B)
a. Standard of Review
2
Negri summarily asserts that a § 2B1.1(b)(4) enhancement is never proper
unless the district court makes specific findings on the record as to what acts
would be necessary in order to commit the offense in question in its most simple
form and what additional acts defendant undertook in committing the offense.
This argument fails for any number of reasons. In particular, Negri did not raise
this argument before the district court. Instead, he simply asserted, without
disputing the district court’s factual findings, that his commission of the offense
was too bumbling and haphazard to qualify as accompanied by even adequate
planning. See The Post Office v. Portec, Inc. , 913 F.2d 802, 806 (10 th Cir. 1990)
(holding that failure to raise an issue in the district court precludes any review
except for the most manifest error). More importantly, however, Negri has not
cited, and this court has not found, a single authority standing for the proposition
that the United States must prove, and the court must find with specificity, what
hypothetical acts are necessary, at a bare minimum, to commit the offenses at
issue. This court rejects Negri’s rigid proposed framework for analyzing
§ 2B1.1(b)(4) enhancements and notes, instead, that in support of the
enhancement the United States must simply prove by a preponderance of the
evidence that the planning present in a particular case was more than is “typical
for the commission of the offense in a simple form.” U.S.S.G. § 1B1.1 appl’n
note 1(f). The district court’s decision that the United States met its burden in
this case is not clearly erroneous.
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Sentencing Guideline § 2B1.1(b)(6)(B) provides for a four-point increase
in a defendant’s base offense level if the offense of conviction “affected a
financial institution and the defendant derived more than $1,000,000 in gross
receipts from the offense.” U.S.S.G. § 2B1.1(b)(6)(B). Negri contends the
district court erred in applying the § 2B1.1(b)(6)(B) for the following two
reasons: (1) the “affected a financial institution” language of the guideline is
ambiguous, rendering § 2B1.1(b)(6)(B) unconstitutionally vague; and (2) §
2B1.1(b)(6)(B) does not apply because he stole the money from an armored car
rather than one of the financial institutions listed in the commentary to the
Sentencing Guidelines. See id. appl’n note 9.
“‘[T]he district court’s application of the Sentencing Guidelines to the
facts of a particular case is entitled to due deference and its factual findings will
not be reversed unless clearly erroneous.’” United States v. Flores-Flores , 5 F.3d
1365, 1367 (10 th
Cir. 1993) (quoting United States v. Urbanek , 930 F.2d 1512,
1514 (10 th
Cir. 1991)). This court reviews the district court’s legal interpretation
of the Guidelines de novo . Id. Negri’s vagueness challenge to § 2B1.1(b)(4)
poses an ultimate question of constitutional law, to which this court applies a de
novo standard of review. See United States v. Wynne , 993 F.2d 760, 764 (10 th
Cir. 1993).
b. Applicability of § 2B1.1(b)(6)(B)
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Negri’s challenge to the applicability of § 2B1.1(b)(6)(B) is, at the same
time, both narrow and cursory. After setting out the statutory definition of
“financial institution” from 18 U.S.C. § 20 and the guideline definition of the
term from the commentary to § 2B1.1, he simply notes as follows:
Neither the statute nor the Sentencing Guideline defining
“financial institution” include an armored car company within the
definition. Thus, counsel for Mr. Negri contends the theft from the
Loomis/Fargo armored car should not be considered as having
“affected a financial institution” and the four level enhancement was
an improper application of the guideline.
This court finds Negri’s argument unconvincing. First, nothing in
§ 2B1.1(b)(6)(B) limits its application to thefts of money directly from a bank
vault. Instead, the guideline speaks in terms of thefts “affect[ing]” a financial
institution, a term with the potential for broad application. See United States v.
Johnson , 130 F.3d 1352, 1354 (9 th
Cir. 1997) (discussing potential breadth of
word “affect”). Nevertheless, the term’s potential for broad applicability exists
only within a very narrow category of circumstances: the defendant must have
committed a theft and “derived more than $1,000,000 in gross receipts from the
offense.” U.S.S.G. § 2B1.1(b)(6)(B). The Ninth Circuit has noted that a broad
reading of “affected” furthers Congress’ purpose: enhancing penalties for crimes
affecting financial institutions even if the effect on the institution is attenuated. 3
Actually, the court in
3
Johnson was analyzing U.S.S.G. § 2F1.1(b)(6)(B).
See United States v. Johnson , 130 F.3d 1352, 1354 (9 th Cir. 1997). Nevertheless,
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Id. In this vein, the Fifth Circuit has applied U.S.S.G. § 2F1.1(b)(6), an
identically worded parallel of § 2B1.1(b)(6)(B), in a case where the crime’s
effect on the financial institution was far more attenuated than in this case. See
United States v. Schinnell , 80 F.3d 1064, 1069-70 (5 th
Cir. 1996) (holding that
wire fraud committed against business by its own employee affected a financial
institution because business had contractual right to sue its bank to recover lost
funds).
Ultimately, this court need not decide how broadly to read the term “affect’
in § 2B1.1(b)(6)(B) because the facts of this case fall well within the heartland of
the term. Count two of the indictment charged that Negri “did knowingly take
and carry away with intent to steal approximately $2,632,000 in money belonging
to and in the care, custody, control, management, and possession of the Federal
Reserve Bank, Oklahoma City, Oklahoma, a banking institution organized and
operating under the laws of the United States.” Negri pleaded guilty to this
count. That the money was stolen from a common carrier while in transit, rather
than directly from a bank, is of no moment to the applicability of §
2B1.1(b)(6)(B). Cf. United States v. Millar , 79 F.3d 338, 345-46 (2 d
Cir. 1996)
(upholding application of § 2B1.1(b)(6)(B) to theft of funds from armored car).
the language of and commentary to the two provisions are identical. Compare
U.S.S.G. § 2B1.1(b)(6)(B) with U.S.S.G. § 2F1.1(b)(6)(B).
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Furthermore, the district court specifically found that the customer banks’
balance sheets and administrative processes were negatively affected by the theft.
Accordingly, the district court did not err in enhancing Negri’s base offense
level on the ground that his crime “affected a financial institution.” U.S.S.G. §
2B1.1(b)(6)(B).
c. Vagueness Challenge to § 2B1.1(b)(6)(B)
Negri contends the district court should have refused to apply §
2B1.1(b)(6)(B) because it is unconstitutionally vague. This court begins by
noting a serious doubt as to whether a vagueness challenge can be properly
lodged against the Sentencing Guidelines. See United States v. Wivell , 893 F.2d
156, 160 (8 th
Cir. 1990) (“Because there is no constitutional right to sentencing
guidelines–or, more generally, to a less discretionary application of sentences
than that permitted prior to the Guidelines–the limitations the Guidelines place
on a judge’s discretion cannot violate a defendant’s right to due process by
reason of being vague.”); United States v. Brierton , 165 F.3d 1133, 1139 (7 th
Cir.
1999) (citing Wivell for proposition that Sentencing Guidelines “are not
susceptible to attack under the vagueness doctrine”); United States v. Salas , No.
93-5897, 1994 WL 24982, at *1-*2 (6 th
Cir. Jan. 27, 1994) (unpublished
disposition) (same). But see Johnson , 130 F.3d at 1354 (noting Wivell but
undertaking vagueness analysis of Sentencing Guidelines on basis of binding
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Ninth Circuit precedent). Nevertheless, because neither party has briefed this
issue and because § 2B1.1(b)(6)(B) is not ambiguous or vague in any sense, we
need not resolve whether the Sentencing Guidelines can ever be vague in the
constitutional sense.
Because § 2B1.1(b)(6)(B) does not implicate First Amendment freedoms,
Negri’s challenge to the provision cannot be based on an assertion the guideline
is vague on its face or in its hypothetical applications. See United States v.
Walker , 137 F.3d 1217, 1219 (10 th
Cir. 1998); Johnson , 130 F.3d at 1354.
Instead, Negri must show that the guideline is vague as applied to the facts of his
particular case. See Chapman v. United States , 500 U.S. 453, 467 (1991);
Walker , 137 F.3d at 1219. Accordingly, the ultimate test is whether the provision
at issue fails to give a person of ordinary intelligence fair warning that it applies
to the conduct contemplated. See Walker , 137 F.3d at 1219 (citing Kolender v.
Lawson , 461 U.S. 352, 357 (1983)).
Although Negri recognizes that the only court to undertake a vagueness
analysis of the affects-a-financial-institution language rejected the notion that the
term is vague, see Johnson , 130 F.3d at 1354, 4
he argues his case is
distinguishable because he thieved the money from an armored car, rather than
As noted above, the Johnson court was actually analyzing U.S.S.G. §
4
2F1.1(b)(6)(B). Nevertheless, § 2B1.1(b)(6)(B) is identical to § 2F1.1(b)(6)(B).
See supra note 3.
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directly from a bank. We disagree. As noted above, this court rejects Negri’s
claim that § 2B1.1(b)(6)(B) only applies to thefts directly from a bank vault.
Furthermore, this court has no difficulty concluding § 2B1.1(b)(6)(B) gives fair
warning to a person of ordinary intelligence that it would apply given the facts of
this case: the theft from an armored car of $2.6 million that is being transported
from the care, custody, and control of a Federal Reserve Bank to individual
customer banks of the Federal Reserve.
3. U.S.S.G. § 3B1.3
Sentencing Guideline § 3B1.3 provides for a two-point increase in a
defendant’s base offense level if the following two conditions are met: (1) “the
defendant abused a position of public or private trust”; and (2) that abuse
“significantly facilitated the commission or concealment of the offense.”
U.S.S.G. § 3B1.3. On appeal, Negri concedes that his position as a Loomis
security guard facilitated the commission of the theft, but asserts that he did not
occupy a position of private trust. In defining the term “private trust,” the
application notes provide as follows:
[Private trust] “refers to a position . . . characterized by professional
or managerial discretion ( i.e. , substantial discretionary judgment that
is ordinarily given considerable deference). Persons holding such
positions ordinarily are subject to significantly less supervision than
employees whose responsibilities are primarily non-discretionary in
nature. . . . This adjustment would not apply in the case of an
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embezzlement or theft by an ordinary bank teller or hotel clerk
because such positions are not characterized by the above-described
factors.
U.S.S.G. § 3B1.3 appl’n note 1. “This court reviews the question of whether an
individual occupied a position of trust in a particular transaction for clear error.”
United States v. Trammell , 133 F.3d 1343, 1355 (10 th
Cir. 1998).
This court has noted the following nonexclusive list of factors that courts
have considered in determining whether a particular position constitutes a
position of trust:
the extent to which the position provides the freedom to commit a
difficult-to-detect wrong, and whether an abuse could be simply or
readily noticed; defendant’s duties as compared to those of other
employees; defendant’s level of specialized knowledge; defendant’s
level of authority in the position; and the level of public trust.
United States v. Williams , 966 F.2d 555, 557 (10 th
Cir. 1992). Applying these
factors, we conclude the district court did not clearly err in finding that Negri
occupied a position of trust.
Negri’s supervisor testified that Negri was in charge of the armored car on
the date of the theft. Although Negri’s supervisory powers that day were not
extensive, Negri’s supervisor testified that Negri was in “complete control of the
funds” and empowered to alter the route upon the happening of certain
contingencies. This level of authority supports the district court’s conclusion
that Negri occupied a position of private trust. Id. The testimony of Negri’s
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supervisor that Negri’s pre-employment screening and post-employment training
were extensive further support the enhancement. See id. In addition, because
Negri’s position involved traveling with the armored car around the state of
Oklahoma, his activities, unlike the activities of a simple bank teller, were hidden
from the view of his direct supervisors. See United States v. Hill , 915 F.2d 502,
506-07 (9 th
Cir. 1990) (affirming § 3B1.3 adjustment where truck driver stole
household items entrusted to his care during family’s cross-country move in part
because his “activities as a long-distance truck driver, almost by definition, were
difficult, if not impossible, to observe during his cross-country trek”). Finally,
and perhaps most importantly, in light of the fact that almost $3 million was in
the armored car, the level of private trust between Negri and Loomis was
enormous. See United States v. Banks , No. 98-1040, 1998 WL 870363, at *2-*3
(7 th Cir. Dec. 14, 1998) (affirming § 3B1.3 adjustment for theft by armored car
guard based exclusively on large sum of money in armored car); see also United
States v. Bennett , 161 F.3d 171, 195 (3 d
Cir. 1998) (noting that where there has
been reliance on the integrity of person occupying the position, the person likely
occupies a position of trust). When these factors are viewed in combination, it
becomes clear that the district court correctly determined that Negri occupied a
position of trust and properly enhanced his sentence pursuant to §3B1.3.
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CONCLUSION
For all of the reasons set out above, the sentence imposed by the district
court is hereby AFFIRMED .
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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