United States v. Exarhos ( 1998 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
______________________
No. 94-4645
______________________
District Court No. 93-345-Cr-WDF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL EXARHOS,
Defendants-Appellants.
_________________________
No. 94-4744
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District Court No. 93-345-CR-WDF
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Cross-Appellee,
versus
PAUL MORRISON,
NELSON HERNANDEZ,
Defendants-Appellees,
Cross-appellants.
_____________________
Appeals from the United States District Court
for the Southern District of Florida
_____________________
(February 17, 1998)
Before EDMONDSON, Circuit Judge, CLARK and WELLFORD*, Senior Circuit Judges.
* Honorable Harry W. Wellford, Senior U. S. Circuit Judge for the Sixth Circuit Court of
Appeals, sitting by designation.
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WELLFORD, Senior Circuit Judge:
A five-count indictment charged Paul Morrison, Nelson Hernandez, and Michael
Exharos with the following offenses:
Count 1. The defendants conspired in violation of 18 U.S.C. § 371 to:
a. remove and/or alter V.I.N. numbers in violation of
18 U.S.C. § 511;
b. possess stolen vehicles and parts, knowing that the
V.I.N. numbers had been altered, with intent to sell
or otherwise dispose of such vehicles or parts, in
violation of 18 U.S.C. § 2321; and,
c. export stolen vehicles in violation of 18 U.S.C. §
553(a).
Count 2. Defendants Morrison and Exharos possessed a
vehicle part (Porsche engine) with intent to sell or
otherwise dispose of it in violation of 18 U.S.C. §
2321 and 18 U.S.C. § 2.
Count 3. Defendants Morrison and Exharos possessed a
vehicle part (another Porsche engine) with intent to
sell or otherwise dispose of it in violation of 18
U.S.C. § 2321 and 18 U.S.C. § 2.
Count 4. Defendants Morrison and Exharos possessed a
vehicle part (Porsche transmission) with intent to
sell or otherwise dispose of it in violation of 18
U.S.C. § 2321 and 18 U.S.C. § 2.
Count 5. Defendant Morrison possessed vehicle parts
(Porsche body parts) with intent to sell or otherwise
dispose of them in violation of 18 U.S.C. § 2321and 18 U.S.C. § 2.
After a jury trial, in which no defendant testified, defendant Hernandez was convicted
on the count one conspiracy charge, the sole count in which he was charged. Defendant
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Morrison was convicted on counts one and five, and acquitted on counts two, three, and four.
Defendant Exharos, by contrast, was acquitted of the count one conspiracy charge, and
convicted on counts two, three, and four.
Defendant Exharos filed a late notice of appeal, but after remand by this court, the
district court allowed the appeal to go forward, finding “excusable neglect.” Among other
assertions of error, Exharos contends that the indictment against him should have been
dismissed because it was based, in part, on false evidence. The government also appealed,
challenging the district court’s calculation of Hernandez and Morrison’s sentences.
Specifically, the government argues that the district court failed to account for the entire value
of the stolen vehicles in calculating the sentences, limiting itself instead to consideration of the
value of the parts only. Finally, defendants Hernandez and Morrison cross-appeal, claiming
several sentencing errors and arguing that the prosecution improperly commented during
closing argument on their silence.
I. DISMISSAL OF THE INDICTMENT
Defendant Exharos claims that his conviction should be overturned because false
evidence was presented to the grand jury. In his brief, defendant Hernandez incorporates this
argument by simply referring to defendant Exharos’ brief. We believe, however, that this issue
is fact-specific and relates only to defendant Exharos, whose contacts with a witness, Gus
Nader, form the factual basis for the claim.
On two separate occasions, Nader purchased a stolen Porsche engine from the
defendants, paying Exharos in part by check and in part by cash. Aware of the pending
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investigation of the defendants, Nader falsified the two bills of sale, forging defendant Exharos’
name on each. Nader later admitted that he forged the documents because he feared possible
criminal prosecution himself. Before that admission, however, these altered documents had
been turned over to detective Leslie Cravens, who testified before the grand jury as to their
existence. However, there is absolutely no indication that the government was aware of Nader’s
actions at the time it presented the case to the grand jury. Indeed, after becoming privy to
Nader’s falsification, the prosecution refused to use the documents as part of its case at trial, and
notified defense counsel of Nader's actions. At that point, Exharos moved to have the
indictment dismissed, but the district court denied his motion.
A court may not dismiss an indictment, even for prosecutorial misconduct, without a
showing "``that the violation substantially influenced the grand jury's decision to indict.'" Bank
of Nova Scotia v. United States, 487 U.S. 250, 256 (1988), quoting United States v. Mechanik, 475
U.S. 66, 78 (1986) (O'Connor, J., concurring). There are, however, “isolated exceptions to the
harmless-error rule.” Bank of Nova Scotia, 487 U.S. at 256; see also United States v. Kramer, 864
F.2d 99, 101 (11th Cir. 1988) (declining "to adopt such a broad reading of Mechanik"). These
exceptions are limited, however, to cases "in which the structural protections of the grand jury
have been so compromised as to render the proceedings fundamentally unfair, allowing the
presumption of prejudice.” Bank of Nova Scotia, 487 U.S. at 257. The only examples cited in
that opinion were race and gender bias in the selection of grand jurors. Id.We cannot conclude that the government's presentation of the forged documents "so
compromised" the grand jury proceedings as to render them "fundamentally unfair." The grand
jury had before it police investigator Cravens' testimony that he had located two Porsche
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engines with obliterated or altered identification and that Nader told him he had obtained them
from Exharos with involvement of Morrison. In addition, Cravens testified that Nader had
given him copies of the cancelled checks, bearing Exharos' endorsement, used as partial
payment for the engines. Leaving aside the falsified bills of sale, the cancelled checks and other
evidence implicating Exharos' involvement in stolen Porsche engines were sufficient to indict.1
We find no merit in Exharos' first contention, particularly because he failed to make any
showing of bad faith or prosecutorial misconduct.2 See United States v. Mechanik, 475 U.S. 66(1986). The district court correctly denied Exharos' motion to dismiss the indictment.
II. PROSECUTORIAL MISCONDUCT
The second issue on appeal is the defendants' claim that the prosecutor, in his closing
argument, improperly commented on their not taking the witness stand. Their claim is based
on the following portion of the prosecution rebuttal:
Ask yourself this: You have a lot of evidence of these defendants’ possession of
parts with missing vehicle identification numbers; stolen engines. Stolen
transmissions. Stolen parts. You have listened to some people tell you how they
got these parts. Louis Kimmler a renumbered [sic] engine from Gus Nader. Gus
Nader told you he got it from Paul Morrison and Michael Exharos. What you
have not seen is where the defendants got these vehicles from.
1 Count Two incorrectly charged that the illegal conduct occurred in January, 1991, rather
than March, 1991. Exharos demonstrated no prejudice in this regard.
2 Exharos' principal contention at trial was not that he did not deal with Nader, but rather
that he did not know that the engine numbers had been altered or obliterated.
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Immediately, defendants' counsel objected. The prosecutor explained that he had been
prematurely cut off, and that he was preparing to address this evidence in the case. He was
allowed to continue his rebuttal, stating:
The only testimony you heard that explains how they came into possession of all
these parts is from Jesus Pintado, their partner in crime. At least Paul Morrison’s
partner in crime, who told you how Paul explained to him that they stole
Porsches; that they removed the parts; that they ground the numbers off. They
stored the stolen parts in warehouses, and later they put the cars back together
again, and if they tried to export them or they would sell them. That is exactly
what all the circumstantial evidence and physical evidence shows you as well.
Having provided what we believe was an adequate response, the prosecutor later stated:
[Defense attorney] Klaus suggested in his closing argument that the defendants
could be involved in some kind of legitimate rebuilding of automobiles; buying
salvage and putting them back together. The problem with that is that if you are
legitimately buying parts, putting parts back together, you have to have receipts.
All of these warehouses were searched. There was not one receipt; not one
canceled check. There was not one bill of sale.
There was not one shred of evidence, and in this trial there has not been one
shred of evidence showing you that any of these defendants paid one cent to one
legitimate businessman for an automobile part.
Why is that? They did not need to. They stole everything they needed. They
sold it and they exported it. They committed the crimes charged, and they should
be found guilty.
At this point, counsel for Hernandez renewed his motion for a mistrial on the basis that the
prosecutor’s latter comments about the absence of receipts only compounded the problems
identified earlier. After hearing argument from the parties, the district court refused to grant a
mistrial.
Our precedent distinguishes between direct and indirect references to a defendant’s
silence, concluding that indirect references, such as the one here, are not reversible error per se.
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United States v. Norton, 867 F.2d 1354, 1364 (11th Cir. 1989). Instead, “the court must assess
the impact of the statement in terms of the context in which it was made.” Id. A prosecutor's
comment will not be considered an impermissible reference to a defendant’s silence unless (1)
it was the government’s "``manifest intention'" to do so, or (2) it "was of such a character that
a jury would ``naturally and necessarily' take it to be a comment on the defendant’s silence." Id.,quoting United States v. Rosenthal, 793 F.2d 1214, 1243 (11th Cir. 1986). We review a district
judge’s determination of prosecutorial intent or jury effect for abuse of discretion "because she
has the opportunity to observe the prosecutor’s demeanor first hand." United States v. Delgado,
56 F.3d 1357, 1369 (11th Cir. 1995).
As in Norton, the prosecutor in this case did not refer directly to the defendants’ decision
not to testify. The statement that raised the first objection referred instead to the quality (or lack
thereof) of the defense's evidence and the defense’s failure to rebut the necessary inferences
created by the government’s case. Similarly, the second objection was also properly denied.
Defense counsel's suggestion that the defendants were involved in a legitimate business invited
the prosecution’s rebuttal regarding the complete absence of receipts. The prosecution's
statement undermined the effectiveness of that defense strategy. Further, in context, it is clear
that the comments did not require the jury to infer anything from the defendants’ failure to
testify; the prosecutor merely invited the jury to draw a negative inference from the fact that
thorough searches in various locations revealed no receipts at all.
In sum, there is no basis upon which we can conclude that the prosecutor’s comments
were improper. There was no error in the district court's ruling.
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III. SENTENCING CHALLENGES
There are three sentencing issues raised in this appeal. First, the government claims that
the district court failed to identify properly the loss attributable to Hernandez and Morrison in
calculating their sentences for conspiracy. The government argues that it was error to consider
only the value of the stolen parts, rather than the value of the vehicles from which they came,
in calculating the total loss from the scheme.3 Second, Hernandez and Morrison claim that the
district court erred by enhancing their sentence for using a “special skill” in committing their
crime. Finally, Hernandez and Morrison contend that the district court improperly ordered them
to pay restitution because it failed to consider their inability to pay.
A. Relevant Conduct and Value
The jury found Hernandez and Morrison guilty of conspiracy to alter or remove Vehicle
Identification Numbers ("V.I.N.'s"), in violation of 18 U.S.C. § 371. The jury also found
Morrison guilty of possessing altered motor vehicle parts with intent to sell, in violation of 18
U.S.C. §§ 2321 and 2. These verdicts are supported by the record in the case. The evidence
could fairly and reasonably be interpreted to show that the defendants were involved in a
professional auto theft and renumbering scheme. In addition to selling stolen vehicle parts
3
Defendants Hernandez and Morrison purport to cross-appeal this issue, claiming that
the district court improperly held them accountable for the full value of the cars. Clearly,
however, this is the basis for the government’s appeal.
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whose V.I.N.'s the defendants had altered or destroyed, there was evidence that the defendants
also devised a method of selling stolen cars with legal titles.4
The presentence reports of Morrison and Hernandez listed a total of twenty-one stolen
vehicles and parts that the Auto Theft Task Force attributed to the defendants. In most of these
instances the probation officer attributed to the defendants the value of the entire vehicle. In
other instances, the probation officer attributed to the defendants only the value of the parts.
The total retail value of the cars and parts listed in the presentence report was $854,000.00, an
amount which the government contends should be attributed to Morrison and Hernandez. The
government maintains that an application of U.S.S.G. § 2B6.1(b)(1), with the required cross-
reference to U.S.S.G. § 2F1.1(b)(1)(L), mandates the addition of eleven levels to these
defendants' base offense levels because the retail value of the parts and motor vehicles they stole
exceeds $800,000.5
4 The defendants would steal imported sports cars, strip them of their major components,
remove or alter the components' identification numbers, and store the parts in warehouses
which the defendants controlled, or to which they had access. Morrison and Hernandez (and
probably Exharos) would then abandon the stripped shells of the stolen cars in public places
where the police could recover them. They could then purchase the shells at a salvage
auction and later reassemble the cars with parts they had stripped and stolen. Defendants
would then obtain either a rebuilt or salvage title and sell the automobiles, usually for
export.
5 The relevant sentencing guideline is as follows:
§ 2B6.1.Altering or Removing Motor Vehicle Identification Numbers, or
Trafficking in Motor Vehicles or Parts with Altered or Obliterated
Identification Numbers
...
(b) Specific Offense Characteristics
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The defendants filed objections to the probation officer's calculations in the presentence
reports, particularly to the method of calculating retail value. They argued that since they were
not charged with, and the jury did not convict them of, stealing cars, these presentence reports
incorrectly attributed to them the value of the stolen cars. Alternatively, Hernandez argued that
because law enforcement officers had seized only one fully assembled Porsche, the district court
should consider only the full value of that single automobile in calculating the retail value of
the motor vehicles or parts involved. Hernandez did not deny, however, that evidence at trial
linked the two defendants to two of the cars stolen from a car dealer, Palm Imports. Morrison,
on the other hand, contended that the court should limit its calculation of retail value to
$106,500, the value of the parts found.
The government argued that the district court should consider the full scope of the
defendants' relevant conduct--which included stealing cars, as well as trafficking in stolen
vehicles--in calculating their sentences. The prosecution maintained that even if the proof did
not show theft of every car, the defendants knowingly dealt in parts from stolen cars, and their
knowing conduct required the court to attribute full value of the vehicles to them.
The district judge enhanced Morrison's base offense level by seven, explaining: "My
own calculations would bring it down to instead of plus eleven, a plus seven [for loss valued at
more than $120,000 but less than $200,000]. Let's go with that." When the prosecutor sought
(1) If the retail value of the motor vehicles or parts
involved exceeded $2,000, increase the offense
level by the corresponding number of levels from
the table in § 2F1.1 (Fraud and Deceit).
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clarification of the court's ruling, the court explained that it was considering only the value of
the parts, not the vehicles themselves. Applying that same standard of calculation to Hernandez,
the judge likewise enhanced his base offense level by seven.
This phase of sentencing was, no doubt, most difficult for the district judge, particularly
for one who lacked long experience in dealing with complex sentencing problems such as this
case presented. Although sentencing responsibility and determination remains primarily a
problem for the sentencing court, particularly in assessing the value of loss in a case of this type,
the question we address is whether the district court acted under any misapprehension as to its
authority under the applicable law and guidelines when it limited the valuation figure from
relevant conduct to the value of the stolen parts involved, plus one or possibly two stolen
vehicles.
We review the sentencing court's findings of fact for clear error and review the
application of the sentencing guidelines to the facts de novo. United States v. Williams, 51 F.3d
1004, 1011 (11th Cir.), cert. denied, 116 S.Ct. 258 (1995). Contrary to the defendants'
contentions, a district court may consider, for purpose of sentencing, relevant conduct not
contained in the indictment. See United States v. Ignancio Munio, 909 F.2d 436, 438-39 (11th
Cir. 1990).
We believe that the record, especially the testimony of Jesus Pintado, supports attributing
to Morrison and Hernandez a higher value of loss, reflecting the worth of stolen cars tied
directly to them. However, we do not necessarily agree with the government's contention that
the much higher values reflected in the presentence reports were appropriate.
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Jesus Pintado, a convicted car thief testifying on behalf of the government pursuant to
a cooperation agreement, testified that Morrison and Hernandez admitted to him that they stole
cars, describing their methods. Specifically, they admitted to Pintado that they had stolen a
Mazda RX7 and several Porsches from a dealership, and that Morrison had stolen an Acura
NSX and another Porsche, which the police later recovered in Jacksonville. The owner of the
Acura NSX identified Morrison as someone he had seen closely examining his car, the parts of
which law enforcement officers later found, covered with Morrison's and Hernandez's
fingerprints, in a warehouse rented by Morrison and Hernandez. In addition, law enforcement
officers found parts of cars that the defendants admitted to stealing, including parts of a car
stolen from Palm Imports, inside their warehouses. We believe, based upon Pintado's
uncontested proof, that the district court clearly erred in not attributing to the defendants at least
the value of these stolen cars, plus other stolen parts that were found in the various warehouses
operated or controlled by these defendants.
Accordingly, on the question of relevant conduct enhancements, we REVERSE and
REMAND for further consideration by the district court of the extent of the loss occasioned by
these two defendants, including uncharged conduct directly involving the closely related thefts
of motor vehicles.
B. Special Skills Enhancement
We find little merit in defendants' second contention: that the district court erred in
enhancing their sentences for use of a special skill in commission of the crime. Counsel's claim
at oral argument that anyone with little training or sophistication could alter, remove, or
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obliterate identification tags and numbers from stolen automobile parts strains credulity. There
was no error, under the evidence presented prior to and during the sentencing hearing, in the
district court's conclusion that it did indeed require special skills to employ the means, methods,
and devices used by defendants to conceal the thefts of parts (and of cars) involved in this case.
These defendants knew where identifying symbols and numbers were located, how to remove
or obscure them, how effectively to avoid anti-theft devices, and how efficiently to dismantle
vehicles and purloin parts.
Section 3B1.3 of the sentencing guidelines requires a two-level enhancement where a
defendant "used a special skill, in a manner that significantly facilitated the commission or
concealment of the offense. . . ." U.S.S.G. § 3B1.3. As defined by the guidelines, a "``[s]pecial
skill' refers to a skill not possessed by members of the general public and usually requiring
substantial education, training or licensing." Comment. 2 to U.S.S.G. § 3B1.3.
Morrison and Hernandez most definitely possessed special skills fitting this description
and used them in carrying out their scheme. Jesus Pintado testified that he had taught Morrison
how to steal a Porsche with a sophisticated alarm system. In addition, Hernandez was
intimately familiar with anti-theft devices, as he was employed by an auto security installation
business. Moreover, as the prosecutor explained, the remote locations of the V.I.N.'s require
anyone seeking to obliterate or re-stamp them to possess specialized knowledge and mechanical
skill. Dismantling cars--not to mention abandoning them, recovering the shells, and then
putting the cars back together--involves a combination of skills not possessed by the general
public. Since there was abundant evidence to set apart defendants' nefarious skills from those
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possessed by the general public, see United States v. Malgoza, 2 F.3d 1107 (11th Cir. 1993), we
AFFIRM the district court's two-level enhancement under U.S.S.G. § 3B1.3.
C. Restitution
Defendants Morrison and Hernandez argue that the district court failed to make specific
findings in support of its joint and several order obligating them to pay restitution in the amount
of $120,000, the loss of value the district court used to enhance their base offense levels.
Neither defendant, however, made any specific objections at the sentencing hearing to this
aspect of the court's decision. Although the district judge referred to Morrison's potential "to
make restitution payments on a monthly installment basis," the presentence report indicated that
Morrison and Hernandez might not be able to pay a fine, and none was imposed. Morrison
objected only that there was no "substantial evidence to support the restitution order."
Under the circumstances, we find no error with respect to the district court's restitution
order as to defendant Hernandez, who is deemed to have waived his argument on that score by
not presenting it at the sentencing hearing. See United States v. Maurice, 69 F.3d 1553, 1558
(11th Cir. 1995).
With respect to Morrison, we find that he did present some semblance of an argument
about restitution at the sentencing hearing, although it was neither specific nor helpful to the
district judge in reaching his decision. The district court had substantial evidence before it that
Morrison was the leader of both the sophisticated scheme to dismantle and reassemble
expensive cars and the ring dealing in stolen parts, and there is evidence that he caused losses
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possibly exceeding $500,000 to various parties by his thefts and other illegal activities. Yet the
district court relieved Morrison of any obligation to pay a fine.
The background commentary of U.S.S.G. § 5E1.1 (1995) states: "Section 3553(a)(7)
of Title 18 requires the court, ``in determining the particular sentence to be imposed,' to consider
``the need to provide restitution to victims of the offense.'" The background commentary further
indicates that the court should "``reach an expeditious, reasonable determination of appropriate
restitution by resolving uncertainties with a view to achieving fairness to the victim.'" U.S.S.G.
§ 5E1.1 Background Comment. (1995) (emphasis added), quoting the legislative history of the
precursor to 18 U.S.C. § 3663.
In a Victim and Witness Protection Act case, this court stated, with regard to restitution:
We agree with the courts that have declined to adopt a rigid
rule requiring district courts to make findings of fact whenever
they impose an order of restitution under the VWPA. The plain
language of §§ 3579(a) and 3580(d) required only that the district
court "consider" the listed factors and resolve disputes by a
preponderance of the evidence. There was no requirement that
specific findings be made on each factor. Moreover, we agree
with the Second Circuit that such fact finding might unnecessarily
encumber sentencing proceedings.
United States v. Hairston, 888 F.2d 1349, 1352 (11th Cir. 1989). Hairston added, quoting United
States v. Patterson, 837 F.2d 182, 183-84 (5th Cir. 1988):
The decision to assign reasons is committed to the sound
discretion of the district court, guided by this singular inquiry--
absent an assignment of its reasons, does the record contain
sufficient data for the appellate court to perform its mandated
review? If the record provides an adequate basis for that review,
the court need not assign specific reasons for its decision to order
full restitution.
Hairston, 888 F.2d at 1353.
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We believe that the record is adequate for us to perform appellate review as to the
assessment of restitution liability against Morrison. The district court had before it information
about extensive losses to victims, Morrison's limited resources and inability to pay, his past
employment, and uncertainties about the precise extent of the losses. We believe that United
States v. Newman, 6 F.3d 623, 631 (9th Cir. 1993), was substantially correct in holding that:
18 U.S.C. § 3664(a) requires the sentencing court to
consider the defendant's financial resources and earning ability in
determining the amount of restitution to be paid. United States v.
Ramilo, 986 F.2d 333, 335 (9th Cir. 1993). Section 3664(a) does
not require the court to make express findings of fact regarding
financial resources and earning ability: it merely provides that the
court "shall consider" a variety of factors, including the
defendant's financial resources, financial needs, and earning
capacity. United States v. Cannizzaro, 871 F.2d 809, 810 (9th Cir.),
cert. denied, 493 U.S. 895, 110 S.Ct. 245, 107 L.Ed.2d 195 (1989).
The court has broad discretion to determine the type and amount
of evidence it deems relevant, id. at 811, but the court is not free
to disregard the statutory requirements.
Here, while the district court might well have made more detailed findings to assist us
in our task, the court did at least "consider" the necessary factors, and it made an expeditious
decision, which was not unreasonable under the circumstances, to impose a restitution
requirement considerably lower than the victims' indicated losses from the conspiratorial
scheme.
Even if Morrison (and Hernandez) were deemed virtually indigent at the time of
sentencing, the district court is not precluded from ordering restitution.
A sentencing court is not prohibited from imposing
restitution even on a defendant who is indigent at the time of
sentencing so long as the record indicates that the court considered
the defendant's future ability to pay. . . . In addition, "at the time
restitution is ordered the record must reflect some evidence the
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defendant may be able to pay restitution in the amount ordered in
the future."
Newman, 6 F.3d at 631 (citations omitted), quoting United States v. Ramilo, 986 F.2d 333, 336
(9th Cir. 1993). "Indigency is not necessarily a permanent condition." United States v. Bailey,
975 F.2d 1028, 1032 (4th Cir. 1992).
Accordingly, we AFFIRM the order of restitution, but with a caveat that the district court
may, upon remand, for other purposes set out hereinbefore, review and reconsider the restitution
order with regard to setting a restitution amount that Morrison and/or Hernandez can feasibly
be expected to make. Either the government or the defendant can return to the sentencing court
and ask it to modify its restitution order based on changed or corrected circumstances. United
States v. Mahoney, 859 F.2d 47, 51 (7th Cir. 1988).
In summary, we AFFIRM in all respects, save the direction for the district court to
reconsider on REMAND the pertinent relevant conduct evidence, including reliable hearsay,
which showed defendants Morrison and Hernandez to be directly involved in the thefts of
automobiles as well as parts. The REMAND pertains only to the sentences (and possibly
restitution) imposed on defendants Morrison and Hernandez.