United States v. Skoczen, Roman

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1960
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROMAN SKOCZEN,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 95 CR 243-1—Charles P. Kocoras, Chief Judge.
____________
ARGUED FEBRUARY 13, 2004—DECIDED APRIL 20, 2005
____________
Before FLAUM, Chief Judge, and MANION and WOOD,
Circuit Judges.
WOOD, Circuit Judge. On April 18, 1995, the police
arrested Roman Skoczen along with several of his associates.
Skoczen was accused and later convicted of conspiring to
possess goods stolen from an interstate shipment and con-
spiring to transport stolen goods in interstate or foreign
commerce. Skoczen appeals from a number of issues stem-
ming from his trial and sentencing. We affirm Skoczen’s
convictions. With respect to his sentence, we follow the
2 No. 03-1960
limited remand procedure outlined in United States v.
Paladino, Nos. 03-2296 et al., 2005 WL 435430 (7th Cir.
Feb. 25, 2005), so that the district court may determine in
the first instance whether the new discretionary sentencing
regime established in United States v. Booker, 125 S.Ct. 738(2005), affects the sentence that the court wishes to impose.
I
Skoczen’s downfall began when the United States Customs
Service (“Customs” or “Customs Service”) began a sting
operation in January 1995. At that time, Skoczen, his
cousin, Lucas, who was cooperating with Customs agents,
and an undercover agent met to explore the possibility of
finding a buyer for a trailerload of cigarettes. The under-
cover agent posed as a thief looking for a buyer for approxi-
mately 50,000 cartons of Marlboro cigarettes. Skoczen was
interested and specified that he wanted only Marlboro
cigarettes that came in a hard pack. In February 1995, in
preparation for the arrest, the agents borrowed approxi-
mately 325,000 packs of cigarettes from a Philip Morris fa-
cility in Virginia. To get them to Illinois, a Customs agent
drove to Richmond, Virginia, in a Customs department trailer,
picked up the cigarettes, and drove them back to Illinois.
Customs parked the trailer in a warehouse until it was time
to deliver them to Skoczen and his co-conspirators.
Several more meetings and negotiations followed the orig-
inal January meeting, culminating in a final meeting with
undercover agents on April 18, 1995. Skoczen had arranged
to buy approximately 500,000 packs of cigarettes at
$0.20/pack, or $100,000. The agents met Skoczen and his
associates in a parking lot where they were to inspect the
contents and unload the trailer. When they satisfied
themselves that everything was in order, they paid the
agents. Skoczen’s associate unhooked the trailer from the
Customs’ tractor and hooked it to his own tractor. The
agents then arrested Skoczen and his associates.
No. 03-1960 3
Following his initial appearance in court on April 19, 1995,
Skoczen was released on bond. The court ordered him to
appear for a preliminary hearing on April 24, 1995 but he
did not show up. Instead, Skoczen fled to Florida where he
lived under an assumed name until he was arrested there
in June 2001. Skoczen was charged with conspiring in vio-
lation of 18 U.S.C. § 371 to receive and possess goods stolen
from an interstate shipment, in violation of 18 U.S.C.
§§ 659 and 2314 (Count I), and receiving, possessing, and
purchasing contraband cigarettes, and attempting to do so,
in violation of 18 U.S.C. §§ 2 and 2342(a) (Count II). Skoczen
moved to dismiss Count II, but the district court denied the
motion on May 14, 2002.
Skoczen’s trial began June 17, 2002. The jury returned a
guilty verdict on June 21, 2002. The district court sentenced
Skoczen to a 60-month term of imprisonment on Count I
and an 8-month term of imprisonment on Count II, to be
served consecutively. Skoczen’s appeal raises issues related
to both his trial and his sentence.
II
A
Skoczen’s first point is that the government failed to
prove that the cigarettes he was to receive were actually in
interstate commerce, as required by 18 U.S.C. § 659. His
theory is that the government manufactured “jurisdiction”
(more accurately, its proof of this element of the crime) be-
cause government agents moved the cigarettes from Virginia
to Illinois, and they did so for the purpose of creating fed-
eral jurisdiction in this case. (We note again that interstate
commerce requirements like the one in § 659 set forth
elements of the federal crime, not jurisdictional require-
ments in the strict sense of the term. See United States v.
Martin, 147 F.3d 529, 531-32 (7th Cir. 1998).) Skoczen
4 No. 03-1960
maintains that if the cigarettes did not travel in “real” in-
terstate commerce then he did not commit a federal crime.
The government responds first that the cigarettes legi-
timately traveled in interstate commerce for purposes of the
statute when the Customs agents brought them to Illinois
from Virginia. In its view, the reason why the shipment
crossed state lines, or the identity of those who moved them,
makes no difference for purposes of proving the statutory in-
terstate commerce element. Second, the government argues
that it needed only to prove that Skoczen believed the
cigarettes he was to receive had been transported in inter-
state commerce. While this second argument may be correct,
it was not the government’s theory at trial.
Congress designed the interstate commerce element of 18
U.S.C. § 659 merely to justify federal authority over the
crime. A defendant does not need to know that the stolen
property that he received was stolen from an interstate ship-
ment. He need only know that the property he received was
stolen. United States v. Zarattini, 552 F.2d 753, 760 (7th
Cir. 1977). Thus, in this case, the government did not have
to show that Skoczen knew that the cigarettes had traveled
to Illinois from another state, as long as the cigarettes
actually did travel interstate.
Skoczen and his co-conspirators requested a trailerload of
500,000 packs of cigarettes, specifically Marlboros in a hard
pack. In response to his request, the government borrowed
325,000 packs of cigarettes from Philip Morris in Virginia
and drove them to Illinois. There is no indication here that
the government was manipulating the transaction so that it
would create interstate movement of goods. If we had a
case, for example, where someone wanted to steal stereo
components that she knew were in an Illinois warehouse,
and law enforcement agents took the equipment, put it in a
truck, drove the truck into Indiana, and then returned to
Illinois, matters might be different. The interstate com-
No. 03-1960 5
merce element of the statute would be a concern because
the object of her crime was something she knew to be located
in Illinois and she had no reason to think it would cross
state lines. Skoczen, in contrast, sought to steal wholesale
quantities of cigarettes—a product that is not made in
Illinois and must be imported from another state or country.
Nonetheless, Skoczen compares his case to that of
United States v. Archer, 486 F.2d 670 (2d Cir. 1973). Archer
arose from an investigation into corruption in the New York
criminal justice system. The federal government set up a
sting operation trying to catch corrupt attorneys, judges,
prosecutors, and others. The defendants were arrested and
charged under the Travel Act, 18 U.S.C. § 1952, for using a
facility in interstate commerce (a telephone) with intent to
promote or carry on unlawful activity. The only interstate
activity was three phone calls. Two times the agent called
one of the defendants from out-of-state, and once the
defendant called the agent, but only after the agent called
and asked the defendant to call him back. On appeal, the
defendants argued that the three phone calls were insuffi-
cient to satisfy the commerce element of the statute, and
the court agreed. Two of the phone calls could not be said to
have promoted unlawful activity, as they were to tell a
defendant where to find the undercover agent. That left one
call. The court found that the call served no purpose that
could not equally have been served if made from New York.
The agents also placed the call themselves, which raised the
question whether receipt of an interstate phone call was
sufficient. The essentially local nature of the investigation
also disturbed the court.
No case has ever turned on the principle set forth in
Archer. The closest is the second case to which Skoczen
refers us, United States v. Brantley, 777 F.2d 159, 163 (4th
Cir. 1985). In Brantley, the FBI had set up a fake gambling
establishment staffed by FBI agents. The establishment
then hired the defendants for protection. The defendants
6 No. 03-1960
were arrested for violating the Hobbs Act, 18 U.S.C. § 1951,
on the theory that the gambling equipment and liquor had
been transported across state lines. The Fourth Circuit held
that because the purpose of the interstate transportation
was not commercial, the Hobbs Act was not violated. The
extortion had not taken place in interstate commerce. Id. at
161-63.
The crimes at issue in Archer and Brantley were local
crimes, made interstate only by actions of the government
that could not have been foreseen or intended by the
defendants. That is not Skoczen’s situation. Skoczen’s con-
tacts told him that the trailer was coming from the south
and that it might have a GPS locating device on it. He
repeated his desire for a trailer of fresh Marlboros. Had the
government used a trailer already traveling interstate and
diverted it for the purpose of this sting, no one could have
questioned the bona fides of the interstate commerce
element. It is not even clear that there would be a serious
issue if Philip Morris had shipped the cigarettes from
Virginia to Illinois for purposes of this sting. We have
explained Archer in the past as follows: “maybe the result
in Archer is best explained on the ground that the facts did
not show a federal crime. [The undercover agent’s] use of
the telephone was hardly the sort of thing that Congress
had in mind in passing the Travel Act, and the court at-
tached no significance to the fact that [the defendant] had
returned [the agent’s] calls rather than being in to receive
them when they were made.” United States v. Podolsky, 798
F.2d 177, 181 (7th Cir. 1986). Moreover, the Archer court
made clear that it interpreted the Travel Act narrowly
partly because of the intrusive use of federal power in that
case, in which federal agents deceived the state’s police,
courts, and grand jury. See United States v. Anderson, 809
F.2d 1281, 1288 (7th Cir. 1987).
Declining to find that the government had manufactured
interstate commerce in Podolsky, when the government in-
No. 03-1960 7
duced the defendant to direct his behavior at an inhabited,
rather than vacant, building so as to be sure it was within
the scope of the federal statute, we speculated that “inves-
tigative conduct not forbidden by any specific doctrine
might be so outrageous that due process principles would
absolutely bar the government from invoking judicial pro-
cesses to obtain a conviction,” although we found that the
facts in Podolsky did not justify invoking any such rule.
Later, in United States v. Boyd, 55 F.3d 239, 241 (7th Cir.
1995), we stated even more clearly that the doctrine of
“outrageous government misconduct” as an independent
ground for ordering a new trial in a federal criminal case
does not exist in this circuit.
In light of Boyd, Skoczen’s argument cannot succeed. He
knew that the goods he wanted came from out of state (he
thought “Carolina” instead of Virginia, but that makes no
difference). This reveals that he had no expectation that
there was an in-state source of fresh Marlboro cigarettes. In
procuring the load, the government merely was “afford[ing]
the opportunity and facilities for the commission of the
offense charged; the participants were awaiting any
propitious opportunity, and never considered themselves
limited by boundaries.” United States v. Gardner, 516 F.2d
334, 344 (7th Cir. 1975) (citations omitted). The cigarettes
had to come from out-of-state and Skoczen knew this. The
government’s borrowing of a trailer of cigarettes from outside
Illinois did not alter Skoczen’s understanding or expecta-
tion. See also United States v. Peters, 952 F.2d 960, 963 &
n.6 (7th Cir. 1992) (finding a manufactured jurisdiction
defense inapplicable where a defendant freely participates
in the “jurisdictional” act).
The government argues in the alternative that Skoczen’s
belief that he was receiving goods stolen from an interstate
shipment is sufficient. As we noted earlier, the government
did not specifically rely on this theory at the trial. Although
Skoczen did argue in the district court—as he had to—that
8 No. 03-1960
he did not intend to receive cigarettes stolen from an
interstate shipment and perhaps thus implicitly addressed
the question of his understanding about the shipment, we
will err on the side of caution and assume that he might
have approached the issue differently had he realized that
the government was relying in the alternative on his belief
that interstate commerce was involved. On that assump-
tion, we decline to address the point here. It is unnecessary
in any event, because we have already found that the goods
did move in interstate commerce, and that Skoczen knew
that they had done so.
Finally, Skoczen argues that even if we are to find that
the goods traveled interstate for purposes of § 659, the ship-
ment had come to rest and was no longer an interstate
shipment. The determination of whether a shipment has
come to rest is a practical one. United States v. Parent, 484
F.2d 726, 728 (7th Cir. 1973). An interstate shipment “lose[s]
its characteristic as such [when] it arrives at its final desti-
nation and is there delivered.” United States v. Petit, 841
F.2d 1546, 1551-52 (11th Cir. 1998) (citations omitted). The
determination depends on “the relationship between the
consignee, consignor, and carrier, the indicia of interstate
commerce at the time the theft occurs, and the preservation
of congressional intent.” Id. at 1551. No single factor is
dispositive.
The bill of lading lists Philip Morris as the consignor and
the consignees as the Bureau of Alcohol, Tobacco, and
Firearms, and the Customs Service. Because the Customs
Service had taken the shipment and placed it into storage,
Skoczen contends that the shipment had lost all indicia of
interstate travel. The district court found that because
Skoczen himself was to be the final recipient of the cig-
arettes, the shipment was merely in storage for a period of
time until the cigarettes could be delivered. A shipment can
stay in storage for a period of time without breaking its
interstate character. See, e.g., id. at 1552-53. Here, the
No. 03-1960 9
Customs Service brought the cigarettes to Illinois from
Virginia in order to pass them on to Skoczen. Until that de-
livery had occurred, the shipment was not complete. Al-
though the Customs Service is listed as consignor on the bill
of lading, that is just one factor to take into account.
Congress intended § 659 to protect interstate commerce. To
give effect to that purpose, we must take a more pragmatic
view of what it means to be in shipment and to whom and
where the goods are to be delivered. As a practical matter,
the intention was always to deliver these cigarettes to
Skoczen. We find that the shipment was still in progress
until Skoczen was ready to take delivery and therefore that
this element of the statute was satisfied.
B
Next, we consider Skoczen’s challenge to the jury instruc-
tion on the interstate commerce element. We review de novo
the district court’s decision not to instruct the jury on a
theory of defense. United States v. Hendricks, 319 F.3d 993,
1004 (7th Cir. 2003). Skoczen submitted an instruction that
read:
In order to sustain the conspiracy charge of Count One,
alleging the theft from an interstate shipment, the
government must prove beyond a reasonable doubt that
the goods were part of interstate commerce.
The district court refused to give the instruction, on the
ground that its substance was covered by an instruction
defining interstate commerce as “movement across state
lines.” It had also included an instruction that set forth the
statutory language of § 659 and an instruction on the ele-
ments of conspiracy. Skoczen argues these instructions were
inadequate, because the jury was not told that the govern-
ment had to prove the existence of interstate commerce
beyond a reasonable doubt.
10 No. 03-1960
This argument overlooks the general instruction telling
the jury that it had to find each element of the crime be-
yond a reasonable doubt. Naturally, this included the inter-
state commerce element. Though the district court did not
single out the interstate commerce element, we fail to see
how that matters. Either the jury believed the government
met its burden as to interstate commerce, or it did not.
Without proof of each element, the jury was required to
return a not guilty verdict. Because it found Skoczen guilty,
it must have found beyond a reasonable doubt that inter-
state commerce was involved in his crime.
Skoczen claims that the court invited the jury to convict
without finding whether the shipment of cigarettes was a
part of interstate commerce. But the instruction we quoted
above belies this point. This is just another way of present-
ing Skoczen’s real argument, which is that the government
manufactured jurisdiction and that the travel was not “real”
because it occurred at the hands of the government. We
have already disposed of that contention, which in any event
is a legal point, not a factual question for the jury to answer.
Skoczen also sought a jury instruction on whether or not
the shipment had come to rest and so lost its interstate
character. The district court found there was insufficient
evidence to support the proposed instruction. Skoczen’s only
“evidence” to support his theory was that the consignee on
the bill of lading was the Customs Service. Because the
goods had been delivered to Customs, he urged, they must
have come to rest as a matter of law. No rule of law, how-
ever, makes delivery to the named consignee conclusive.
Imagine how easy it would be to avoid liability, by furnish-
ing false names, misleading intermediaries, or the like on
bills of lading. As we have already noted, delivery to the
named consignee is merely one fact to take into account.
Skoczen had no other evidence to suggest that anyone other
than him was the intended final recipient for purposes of
No. 03-1960 11
the interstate shipment. The district court was well within
its discretion to refuse Skoczen’s proposed instruction.
C
Skoczen was also charged with conspiring to transport
stolen goods in interstate or foreign commerce, in violation
of 18 U.S.C. § 2314. With respect to this charge, Skoczen
argues that because he never actually transported the cig-
arettes anywhere, he could not have violated the law.
In United States v. Rose, 590 F.2d 232 (7th Cir. 1978), this
court held that in order to sustain a conviction for conspir-
acy to transport in interstate commerce stolen goods in vio-
lation of 18 U.S.C. § 2314, the defendant need not actually
transport the goods in interstate commerce, but merely can
intend to transport the goods. 590 F.2d at 236; see also
United States v. Lehning, 742 F.2d 1113, 1115 (7th Cir.
1984). Proof that Skoczen intended to transport the cig-
arettes in interstate commerce is all the law requires.
D
Next, Skoczen argues that the evidence was insufficient
to support his conviction for conspiring to violate § 2314. In
reviewing a conviction for sufficiency of the evidence, we
consider the evidence in the light most favorable to the gov-
ernment. United States v. Paneras, 222 F.3d 406, 410 (7th
Cir. 2000). Reversal is appropriate only where the record
contains no evidence from which the jury could have found
guilt beyond a reasonable doubt. United States v. Kosth, 257
F.3d 712, 718 (7th Cir. 2001).
There was ample evidence in the record to support
Skoczen’s conviction. Skoczen himself stated that the cigar-
ettes were to be transported overseas. Though he now
claims that this was only “speculation” on his part, the jury
12 No. 03-1960
heard the recorded conversation in which he said that the
cigarettes were “going out of country,” and “going to, east, far
away from here.” Witkowski, an unindicted co-conspirator,
testified that he believed that Podmanski, another co-
defendant, would ship the cigarettes to Poland. Because no
one but Podmanski, who did not testify, and his financial
backers would have known for certain where the cigarettes
were intended to go, Skoczen believes that the jury could
only speculate that the cigarettes were intended for out-of-
state commerce. That speculation is enough, however, be-
cause the evidence the jury heard indicated that everyone
in the conspiracy intended to sell the cigarettes overseas.
Although no one could know for certain until the first sale
occurred, a conviction does not require that level of certainty.
There is enough evidence to support the jury’s determina-
tion that Skoczen conspired to have the illegal cigarettes
transported to either Canada or Poland.
E
Skoczen also complains that the district court erroneously
refused to dismiss Count II of the indictment, which
charged a violation of the Contraband Cigarette Trafficking
Act (CCTA), 18 U.S.C. § 2342(a), and his motion for judg-
ment of acquittal on that count. We review de novo a
district court’s denial of a motion to dismiss an indictment.
United States v. Aldaco, 201 F.3d 979, 982 (7th Cir. 2000).
As we have already noted, when reviewing an attack on the
sufficiency of the evidence, we draw all inferences in favor
of the jury’s verdict.
The CCTA makes it a crime “knowingly to ship, trans-
port, receive, possess, sell, distribute, or purchase contra-
band cigarettes.” Contraband cigarettes are defined as a
quantity of over 60,000 cigarettes that bear no evidence of
payment of applicable state taxes in the state in which they
are found. 18 U.S.C. § 2341(2).
No. 03-1960 13
The Illinois Cigarette Tax Act (ICTA) requires taxes to be
paid on each pack of cigarettes. “Payment of the taxes
imposed by Section 2 of this Act shall . . . be evidenced by
revenue tax stamps affixed to each original package of
cigarettes.” 35 ILCS 130/3. The ICTA also requires taxes to
be paid: “Collection of the tax shall be evidenced by a stamp
or stamps affixed to each original package of cigarettes.” 35
ILCS 135/3. The distributor is responsible for paying the
tax and affixing the stamp, and then it collects reimburse-
ment from the retailer. Skoczen asserts that the cigarettes
he possessed were not subject to Illinois cigarette taxes
because he is not a “distributor” as defined in Illinois law
and because he did not intend to distribute the cigarettes in
Illinois.
Since Skoczen was not a distributor, he takes the position
that he was not in violation of the Illinois Act and conse-
quently could not have been in violation of the federal
statute. Skoczen is incorrect. The federal statute makes it
a crime for any person knowingly to possess contraband
cigarettes. The statute defines “contraband” as those cigar-
ettes “which bear no evidence of the payment of applicable
State cigarette taxes in the State where such cigarettes are
found, if such State requires a stamp, impression, or other
indication to be placed on packages or other containers of
cigarettes to evidence payment of cigarette taxes.” 18 U.S.C.
§ 2341(2). The federal statute does not require the person
possessing contraband to be the one in violation of the state
law. Although a violation of state cigarette tax law may be
a predicate to a CCTA violation, United States v. Gord, 77
F.3d 1192, 1193 (9th Cir. 1996), that does not mean the
individual violating the federal law must also be in viola-
tion of the state law. In other words, although a distributor
may be liable under state law for not paying cigarette taxes,
anyone in possession of those cigarettes is in violation of
federal law, assuming satisfaction of the other statutory
criteria. The federal law does not apply only to the person
14 No. 03-1960
whom the state law requires to pay the stamps, but to
anyone who possesses more than 60,000 cigarettes without
the stamp in violation of the state tax law.
Skoczen also claims that because the only sections of the
act listed in the indictment are 35 ILCS 130/3 and 35 ILCS
135/3, the government had to prove that he was a distribu-
tor or manufacturer, the two types of businesses addressed
by those sections. Not so. The federal law requires that the
state require a tax, otherwise the cigarettes are not contra-
band. The indictment lists the portion of the Illinois Code
requiring a cigarette tax and stamp. Those sections of the
Illinois Code are not listed to show what laws Skoczen vio-
lated, but simply to establish that Illinois indeed requires
a cigarette stamp.
Skoczen also claims that he was not violating the Illinois
cigarette tax laws because the indictment alleged that the
cigarettes were to be sold out of the state and never within
Illinois. This, however, is irrelevant. The federal statute
makes it a crime to possess cigarettes where the applicable
tax has not been paid. Skoczen does not fit into any excep-
tions to the Illinois laws that would allow him to possess
cigarettes without a stamp. The administrative provisions
that guide application of the Illinois statutes are equally
inapplicable. Those provisions make clear that distributors
who are shipping cigarettes from Illinois outside of Illinois
do not have to pay the tax. See 86 Ill. Admin. Code
§§ 440.170, 450.70. As Skoczen himself notes, he is not a dis-
tributor, and so those provisions do not apply to him.
Skoczen proposed a variety of jury instructions that re-
flected his theories about § 2342(a). The court denied all of
them. Because his proposed instructions were not accurate
statements of the law, the district court correctly rejected
them.
No. 03-1960 15
F
Skoczen’s next point relates to the evidence admitted at
trial. He argues that the district court erred by permitting
the government to introduce evidence of his flight. We
review a district court’s decision to admit evidence of flight
only for abuse of discretion. United States v. Robinson, 161
F.3d 463, 466-67 (7th Cir. 1998).
If the defendant so requests, the prosecution will be re-
quired to give notice before the introduction of any “bad act”
evidence, though the court can excuse the lack of notice for
good cause. Skoczen and the government agreed that the
government would provide notice of its intention to use such
evidence one week before trial. The government gave no such
notice until the trial, however, when it suddenly announced
its intention to introduce evidence of Skoczen’s flight.
Skoczen objected both that this was too late and that the
probative value of the evidence was outweighed by its
prejudicial effect.
The government argued, over the objection of Skoczen’s
counsel, that Skoczen (and his lawyer) were aware of his
flight and that the defense had been on notice that the
government’s physical evidence of flight, Skoczen’s Florida
driver’s license, was available for review at any time. Al-
though Skoczen could hardly dispute this, he was not aware
that the government intended to use this evidence at trial.
The point of the pretrial notice is to prevent undue preju-
dice and surprise by giving the defendant time to meet such
a defense.
Although we agree with Skoczen that the government
should have provided proper notice, Skoczen has not ex-
plained how he was prejudiced by the lack of notice. More-
over, Skoczen could have asked for a continuance, but he
did not. See, e.g., United States v. Lopez-Gutierrez, 83 F.3d
1235, 1241 (10th Cir. 1996). The government’s presentation
was brief: one Customs agent testified that Skoczen was not
16 No. 03-1960
present at the preliminary hearing and that the court
ordered an arrest warrant on April 24, 1995, and then he
identified a Florida driver’s license issued August 31, 1995
for Skoczen, but in a different name. Because Skoczen did
not show any prejudice from the lack of notice and because
the evidence introduced by the government was so minimal,
we find no reversible error in the district court’s decision to
admit the evidence.
Skoczen also argues that the evidence of his flight was un-
duly prejudicial. See FED. R. EVID. 403; see also United States
v. Pulido, 69 F.3d 192, 201 (7th Cir. 1995). Evidence of flight
and concealment may be admissible to show consciousness
of guilt, as well as guilt itself. United States v. Solomon, 688
F.2d 1171, 1176 (7th Cir. 1982); United States v. Jackson,
572 F.2d 636, 639 (7th Cir. 1978). The test set forth in
United States v. Myers, 550 F.2d 1036 (5th Cir. 1977),
governs the admissibility of circumstantial flight evidence.
The probative value of flight as circumstantial evidence of
guilt depends upon the degree of confidence with which four
inferences can be drawn: (1) from the defendant’s behavior to
flight; (2) from flight to consciousness of guilt; (3) from
consciousness of guilt to consciousness of guilt concerning
the crime charged; and (4) from consciousness of guilt
concerning the crime charged to actual guilt of the crime
charged. United States v. Levine, 5 F.3d 1100, 1107 (7th Cir.
1993).
There is ample evidence in the record to support an infer-
ence that Skoczen fled from Chicago to Florida because of
his guilt. Although flight alone cannot be the only evidence
the government puts forth to show guilt, United States v.
Grose, 525 F.2d 1115, 1120 (7th Cir. 1975), in Skoczen’s
case there was far more. Indeed, there was overwhelming
direct and circumstantial evidence of his guilt: numerous
taped conversations between Skoczen and the agents; testi-
mony by Skoczen’s co-conspirators; identifications by
various government agents of Skoczen and his role in the
No. 03-1960 17
conspiracy; and lastly, Skoczen’s disappearance immediately
after he posted bond. In light of all of this, we need not
decide whether the court should have excluded the evidence
of flight; even if it was prejudicial in the sense Rule 403 uses
the term, any prejudice was harmless under the circum-
stances.
G
Skoczen also complains about the district court’s instruc-
tion on flight. A district court’s decision regarding jury in-
structions is reviewed for an abuse of discretion. Hendricks,
319 F.3d at 1004. A jury instruction will not be disturbed on
appeal if the instruction fairly and accurately summarizes
the law and has support in the record. Id. The district court
instructed the jury on Skoczen’s flight as follows:
The intentional flight or concealment of a defendant
immediately after the commission of a crime, or after he
is accused of a crime that has been committed is not, of
course, sufficient to in itself establish his guilt; but it is
a fact which, if proved, may be considered by the jury in
light of all the other evidence in the case in determining
guilt or innocence.
Skoczen believes that he was prejudiced by this instruction
because it gave too much weight to the flight evidence and
encouraged the jury to infer guilt from the fact that he had
fled. The instruction was not so one-sided, however. Al-
though it allowed the jury to consider the flight evidence, it
also warned the jury about the limits of such evidence. We
see no reversible error in the court’s decision to give this
instruction.
III
Finally, we come to Skoczen’s sentencing issues. He
complains about three things: first, that he should not have
18 No. 03-1960
received a four-level enhancement for being a leader or org-
anizer; second, that the amount of loss the district court
calculated was erroneous; and third, that the court erred in
determining his criminal history category. The
Supreme Court’s decision in United States v. Booker, supra,
affects all three of these arguments. Because Skoczen did
not raise any Booker-related point before the district court,
but he did file a supplemental brief after the Supreme Court
decided Blakely v. Washington, 124 S. Ct. 2531 (2004), the
plain error standard of review applies. We therefore are or-
dering a limited remand to the district court in accordance
with Paladino, so that the court may consider whether it
would have imposed a different sentence or the same one,
had it known that the Sentencing Guidelines were advisory
only.
We comment, however, on the merits of Skoczen’s three
arguments under the Guidelines because the Guidelines do
retain force even though they are no longer mandatory, and
thus errors in their application remain relevant. Even
under an advisory regime, if a district court makes a
mistake in calculations under the Guidelines, its judgment
about a reasonable sentence would presumably be affected
by that error and thus (putting aside the implications of
plain error review) remand would be required just as before.
Skoczen’s first argument is that the record did not sup-
port the court’s decision to adjust his offense level upward
by four notches under U.S.S.G. § 3B1.1(a). That section
provides for an increase “[i]f the defendant was an organizer
or leader of a criminal activity that involved five or more
participants or was otherwise extensive.” Skoczen urges
that he was more like a middleman or broker, not the top
man. But his interpretation of the Guideline is too narrow.
Organizers “do not necessarily control anyone but none-
theless influence the criminal activity by coordinating its
members.” United States v. Reneslacis, 349 F.3d 412, 417
(7th Cir. 2003). The district court found that Skoczen was
No. 03-1960 19
much more than a middleman who brought together willing
sellers and buyers. Instead, the court found Skoczen
conducted meetings to establish the terms of the deal,
including product and price; he recruited a lead buyer who
was putting together a group to purchase the full shipment;
and he determined the details and logistics of the delivery.
In United States v. Cochran, 955 F.2d 1116 (7th Cir. 1991),
we upheld an upward adjustment under § 3B1.1(a) for a
defendant who had played a similar “central role in coor-
dinating the five individuals.” We find no error, clear or
otherwise, in the district court’s characterization of Skoczen’s
role in the offense.
Second, Skoczen attacks the district court’s calculation of
the amount of loss on which his sentence was based. See
U.S.S.G. § 2B1.1. The evidence showed that he intended to
purchase 480,000 packs of cigarettes, valued at $421,920,
but that there were only 324,600 packs in the trailer, val-
ued at $285,323 (in each case, a value of about $1.14 per
pack). He argues that the district court should have based
his sentence on the lower value, because he intended only
to purchase the cigarettes that were in the trailer, whatever
that number was. (In fact, the conspirators intended to pay
$0.20 per pack for the stolen goods, so their actual outlay
would have been lower than the value of the goods, but
Skoczen does not claim that the theft value of the goods
should govern.) There was ample evidence before the
district court, however, to support a finding that he in-
tended to purchase 480,000 packs of cigarettes with a value
of $421,920, and that is enough to support the use of the
higher dollar amount under U.S.S.G. § 2B1.1. See commentary
n.2(a)(ii) (clarifying that intended loss includes “intended
pecuniary harm that would have been impossible or un-
likely to occur . . . as in a government sting operation”).
The issue with respect to Skoczen’s criminal history cate-
gory requires additional comment. The Supreme Court has
held that sentencing adjustments related to recidivism, in
20 No. 03-1960
the context of applying statutory classifications, do not raise
the same Sixth Amendment issues as other sentencing
points. See Almendarez-Torres v. United States, 523 U.S.
224 (1998); but see Shepard v. United States, 544 U.S. ___,
___ (March 7, 2005) (slip op. at 2) (Thomas, J., concurring)
(“Almendarez-Torres . . . has been eroded by this Court’s
subsequent Sixth Amendment jurisprudence, and a major-
ity of the Court now recognizes that Almendarez-Torres was
wrongly decided.”). Although the Court had no occasion in
Booker to focus on the calculation of criminal history under
the Guidelines, its remedial opinion in Booker did not
distinguish between calculations related to offense level and
calculations related to criminal history. Instead, it chose to
strike down the underlying statutory provisions that made
the Guidelines mandatory, 18 U.S.C. §§ 3553(b)(1) and
3742(e), rejecting the government’s arguments for different
intermediate solutions. This indicates to us that the
assessment of criminal history for purposes of applying the
Guidelines (as opposed to a statutory sentencing range) is
also something that falls within the Booker rule. It is
therefore in that light that we consider Skoczen’s argument
that his conviction for retail theft in the Circuit Court of
DuPage County should not have been included in his
criminal history.
If a local ordinance violation is also a violation under state
criminal law, the ordinance violation is properly included in
calculating the defendant’s criminal history. U.S.S.G.
§ 4A1.2, commentary n.12; United States v. Milquette, 214
F.3d 859, 863 (7th Cir. 2000) (Ҥ 4A1.2(c)(1) actually re-
quires courts to include ordinance violations that are also
criminal offenses under state law.”). In Illinois, retail theft
is not only a local crime; it is also a violation under state
criminal law, 720 ILCS 5/16A-3. Thus, this conviction was
properly included in Skoczen’s criminal history. This is true
regardless of the quasi-criminal or quasi-civil nature of the
ordinance violation. That Skoczen’s prior conviction was
No. 03-1960 21
entered ex parte is also irrelevant. United States v. Jiles, 102
F.3d 278 (7th Cir. 1996). What matters is only whether the
local ordinance violation punishes behavior that the
criminal law also addresses, which is the case here. We thus
find no error in the district court’s assessment of Skoczen’s
criminal history.
IV
We AFFIRM the judgment insofar as it relates to Skoczen’s
convictions. With respect to his sentence, we order a
LIMITED REMAND to the district court for further proceed-
ings consistent with Paladino and this opinion. It will be up
to the district court to indicate whether it is still inclined to
impose the same sentence or if it believes that a different
sentence would be the reasonable one to impose, in light of
all relevant sentencing considerations (including but not
limited to what we have said about its applications of the
Guidelines). Pending the outcome of the limited remand,
this court will retain jurisdiction over the appeal.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-20-05