                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-2-1999

USA v Medford
Precedential or Non-Precedential:

Docket 98-1647,98-1648




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Recommended Citation
"USA v Medford" (1999). 1999 Decisions. Paper 190.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/190


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Filed July 2, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 98-1647 & 98-1648

UNITED STATES OF AMERICA

v.

ERNEST MEDFORD,

       Appellant in 98-1647

UNITED STATES OF AMERICA

v.

GEORGE CSIZMAZIA,

       Appellant in 98-1648

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(Nos. 98-cr-00045-01 & 98-cr-00045-02)
(District Judge: Honorable Clarence C. Newcomer)

Submitted Under Third Circuit LAR 34.1(a)
May 25, 1999

Before: GREENBERG and ALITO, Circuit Judges,
ACKERMAN, District Judge,1

(Opinion Filed: July 2, 1999)



_________________________________________________________________

1. The Honorable Harold A. Ackerman, Senior Judge of the United States
District Court for the District of New Jersey, sitting by designation.
       Michael R. Stiles
       United States Attorney
       Walter S. Batty, Jr.
       Chief of Appeals
       Robert E. Goldman
       Assistant U.S. Attorney
       U.S. Attorney's Office
       615 Chestnut Street
       Philadelphia, PA 19106

       Counsel for Appellee

       George Henry Newman, Esq.
       Newman & McGlaughlin
       834 Chestnut Street
       Suite 206
       Philadelphia, PA 19107

       Counsel for Appellant
       Ernest Medford

       Donald M. Moser, Esq.
       Washington West Building
       235 South 8th Street
       Philadelphia, PA 19106

       Counsel for Appellant
       George Csizmazia

OPINION OF THE COURT

ALITO, Circuit Judge:

Ernest Medford and George Csizmazia ("defendants")
appeal their sentences after pleading guilty to conspiracy,
theft, and receipt of cultural objects from a museum in
Philadelphia. On appeal, defendants contend that the
government violated the plea agreement and that the
District Court misapplied the United States Sentencing
Guidelines. For the reasons explained below, we conclude
that the government satisfied its obligations under the plea
agreement but that the District Court erred in applying the

                                  2
sentencing guidelines. We therefore vacate defendants'
sentences and remand for further proceedings.

I.

The Historical Society of Pennsylvania ("HSP"), founded in
1824 and located in Philadelphia, exhibits antiques and
other historical items to the public. Defendant Medford
worked as a custodian at the HSP for approximately 18
years. During that time, he met defendant Csizmazia, a
collector of antiques, who was working as a contractor at
the HSP. The defendants agreed that Medford would steal
items from the museum and sell them to Csizmazia.

Over a ten-year period, Medford pilfered approximately
200 valuable items from the museum, including a sword
presented to George G. Meade for his military
accomplishments during the Civil War, a 1735 gold snuff
box presented to Andrew Hamilton for successfully
defending J. Peter Zenger in his libel trial, a ring containing
a lock of George Washington's hair, an ivory tea caddy that
belonged to George Washington, a telescope used by Elisha
Kent Kane during his 1853 exploration of the arctic region,
lockets containing the hair of John Brown and Andrew
Jackson, the wedding band of Patrick Henry's wife, a silver
pitcher presented to a physician for his efforts during the
1848 smallpox epidemic in Philadelphia, and a Lancaster
County long rifle crafted in 1785 by Isaac Haines, one of
Philadelphia's finest gunsmiths. For a paltry sum, Medford
sold these items to Csizmazia, who concealed them at his
residence. All of the items have been recovered.

Defendants entered into a plea agreement under which
the government promised to "[m]ake a motion to allow the
District Court to depart from the Sentencing Guidelines
pursuant to Sentencing Guidelines S 5K1.1, if the
government in its sole discretion, determines that the
defendant has provided substantial assistance in the
investigation or prosecution of another person who has
committed an offense . . . ." Csizmazia App. at 24-25;
Medford App. at 9-10. Defendants pleaded guilty to
conspiracy, in violation of 18 U.S.C. S 371; theft of objects
of cultural heritage, in violation of 18 U.S.C.S 668(b)(1);

                                3
and receipt and concealment of stolen objects of cultural
heritage, in violation of 18 U.S.C. S 668(b)(2).2

At sentencing, the District Court applied U.S.S.G.
S 2B1.1, which provides a base offense level of four for a
variety of larceny offenses, including offenses committed
under 18 U.S.C. S 668. The Court then enhanced
defendants' base offense levels 15 points because the
amount of loss sustained by the HSP exceeded $2.5 million.
See U.S.S.G. S 2B1.1(b)(1)(P). In arriving at that figure, the
District Court considered the appraisals proffered by the
government. The experts who made the appraisals had
determined that the total monetary value of the stolen
items ranged between $2,452,471 and $2,579,500. Over
the defendants' objection, the District Court selected the
midpoint of the two estimates for a total loss of
$2,515,985.50. The Court reasoned: "[I]t is entirely
appropriate for the Court to accept a valuation . . . which
is based upon two expert appraisals . . . and to utiliz[e] the
midpoint range." Csizmazia App. at 72a; Medford App. at
24.

The Court next considered the government's section
5K1.1 motion for a downward departure. The government
declared that its section 5K1.1 motion merely granted the
District Court "permission" to depart downward, but that
the government "certainly [did not] recommend a downward
departure." See Csizmazia App. at 81a; Medford App. at 33.
Specifically, the government stated:
_________________________________________________________________

2. 18 U.S.C. S 668(b) provides, in pertinent part:

       Any person who-

       (1) steals or obtains by fraud from the care, custody, or control
of
       a museum any object of cultural heritage; or

       (2) knowing that an object of cultural heritage has been stolen or
       obtained by fraud, if in fact the object was stolen or obtained
from
       the care, custody, or control of a museum (whether or not that
       fact is known to the person), receives, conceals, exhibits, or
       disposes of the object,

       shall be fined under this title, imprisoned not more than 10 years,
       or both.

18 U.S.C. S 668(b)(1), (2).

                               4
       [T]he motion for downward departure . . . permits the
       Court to depart downward. . . . [T]hat's what the
       Government is saying, you're permitted, I'm not
       granting you permission, but under the rules it
       provides that I'm giving you discretion [to depart
       downward based on defendants' substantial assistance]
       . . . . [W]e told both counsel that we wouldfile a weak
       5K. And a weak 5K in our opinion is [one that] grants
       discretion to depart downwards, but we certainly don't
       recommend a downward departure.

Csizmazia App. at 83a; Medford App. at 35. The District
Court denied the motion.

The District Court heard victim impact testimony from
the President of the HSP, Susan Stiff ("Stiff "). See
Csizmazia App. at 106a-108a; Medford App. at 58-60. Stiff
explained that defendants' actions had damaged one of the
museum's most important assets -- its reputation as a
responsible steward of important national treasures-- "in
ways that cannot be quantified." Csizmazia App. at 107a;
Medford App. at 59. Stiff noted that the damage caused by
defendants could decrease financial contributions, reduce
donations of valuable historical objects, and diminish the
HSP's ability to attract qualified individuals to serve as
trustees and staff members. See Csizmazia App. at 106a-
107a; Medford App. at 58-59. Because of the harm caused
to the HSP and the public, Stiff implored the District Court
to "to impose the heaviest possible sentence on both
defendants." Csizmazia App. at 107a-108a; Medford App. at
59-60. The government concurred. Csizmazia App. at 108a;
Medford App. at 60.

Finding that the defendants' sentencing range of 27 to 33
months did not "sufficiently encompass[ ] the egregiousness
of the offenses that were involved," the District Court
departed upward four levels from the guidelines. Csizmazia
App. at 109a; Medford App. at 61. However, the Court did
not advise the defendants prior to the sentencing hearing
that it intended to depart upward.

The District Court sentenced the defendants to 48
months of imprisonment, and the defendants took this
appeal. Defendants claim that the government (1) violated

                               5
the plea agreement by filing a motion for downward
departure and then stating at the sentencing hearing that
it did not recommend departure and (2) acted in bad faith
by failing to make "a more concerted 5K1.1 downward
departure motion at the time of sentencing." Csizmazia Br.
at 15. Defendants also contend that the District Court
misapplied the Sentencing Guidelines by (1) arbitrarily
selecting the middle value of the high and low estimates of
the fair market value of the stolen items as the amount of
loss sustained by the HSP; (2) departing upward without
providing sufficient advance notice of its intentions; (3)
departing upward on a ground that had already been taken
into consideration by the Guidelines; and (4) departing
upward four levels without articulating its reason for the
extent of the departure. We address each argument in turn.

II.

Defendants contend that the government violated the
plea agreement by filing a downward departure motion and
then stating at the sentencing hearing that it did not
recommend a downward departure. Defendants also claim
that the government acted in bad faith by failing to make "a
more concerted 5K1.1 downward departure motion at the
time of sentencing." Csizmazia Br. at 15.3 As a remedy,
defendants seek a remand for resentencing before a
different judge. "Whether the Government violated a plea
agreement is a question of law subject to de novo review."
See United States v. Huang, 178 F.3d 184, 187 (3d Cir.
1999) (citing United States v. Roman, 121 F.3d 136, 142 (3d
Cir. 1997), cert. denied, 118 S. Ct. 722 (1998)). We reject
defendants' claims.

Section 5K1.1 of the Guidelines provides:

       Upon motion of the government stating that the
_________________________________________________________________

3. Defendants' contention that the government violated the plea
agreement by requesting the court to impose the heaviest sentence
possible on the defendants is frivolous. In the plea agreement, the
government reserved the right to "[m]ake whatever sentencing
recommendation the government deems appropriate. . .." Csizmazia
App. at 25; Medford App. at 10.

                               6
       defendant has provided substantial assistance in the
       investigation or prosecution of another person who has
       committed an offense, the court may depart from the
       guidelines.

U.S.S.G. S 5K1.1. We have held that, in the absence of two
circumstances not present here, a District Court may not
depart below the guideline range based on a defendant's
substantial assistance unless the government makes a
motion to permit such a departure. See United States v.
Abuhouran, 161 F.3d 206, 211-212 (3d Cir. 1998), cert.
denied, 119 S. Ct. 1479 (1999).

In this case, the plea agreement required the government
"to mak[e] a motion to allow the Court to depart from the
Sentencing Guidelines pursuant to Sentencing Guidelines
S 5K1.1, if the government, in its sole discretion, determines
that the defendant has provided substantial assistance in
the investigation or prosecution of another person who has
committed an offense. . . ." Csizmazia App. at 24-25
(emphasis added); Medford App. at 9-10. We interpret the
plain terms of the plea agreement to require only that the
government file a S 5K1.1 motion in order to give the
District Court the power ("to allow the Court") to depart
downward under that provision. Contrary to defendants'
suggestions, the plea agreement did not require the
government to recommend a downward departure at the
sentencing hearing; nor did it prohibit the government from
stating at the sentencing hearing that it did not recommend
departure. Therefore, when the government filed the 5K1.1
motion, it complied with the terms of the plea agreement.4

In addition, we find no basis for the defendants'
contention that the government acted in bad faith by failing
to make "a more concerted 5K1.1 downward departure
motion at the time of sentencing." Csizmazia Br. at 15. In
making this contention, defendants cite United States v.
_________________________________________________________________

4. It is true that the plea agreement could have been more explicit in
stating that, while the government was obligated to make a S 5K1.1
motion, the government was reserving the right to take whatever
recommendation it chose as to whether a downward departure should be
granted. In future cases, it would be advisable for the government to
make this point explicit.

                                7
Isaac, 141 F.3d 477 (3d Cir. 1998), in which we held that
the government's failure to file a 5K1.1 motion as required
under the plea agreement must not result from bad faith.
Defendants' reliance on Isaac, however, is misplaced. Here,
the government filed a S 5K1.1 motion and in so doing
complied with its obligation under the plea agreement.
Accordingly, we fail to perceive any bad faith on the
government's part.

For these reasons, we conclude that the government
satisfied its obligation under the plea agreement and that
the government's actions were not in bad faith. We
therefore deny defendants' request for resentencing before a
different judge.

III.

Defendants also contend that the District Court erred in
enhancing their base offense levels because it arbitrarily
selected the midpoint between the high and low estimates
of the stolen items' fair market value as the amount of loss
sustained by the HSP and stated, without further
explanation, that doing so is "entirely appropriate."5 We
review the District Court's findings for clear error. See
United States v. Miele, 989 F.2d 659, 663 (3d Cir. 1993).
We agree with defendants.

U.S.S.G. S 2B1.1 establishes a defendant's base offense
level for offenses involving theft of property. See U.S.S.G.
S 2B1.1 (1997). For offenses under 18 U.S.C.S 668, the
defendant's base offense level begins at four and is
increased depending on the amount of the loss sustained
as a result of the illegal conduct. See U.S.S.G. S 2B1.1(a),
(b)(1). In determining the amount of loss sustained, courts
are instructed to ascertain the fair market value of the
stolen items. See U.S.S.G. S 2B1.1, commentary n.2. We
have held that in cases in which the fair market value
ranges between two estimates and either end of the range
is equally plausible, courts generally should adopt the lower
_________________________________________________________________

5. Had the District Court selected the lower estimate, the defendants
would have received a 14-level increase in their base offense levels,
rather than the 15-level increase that they received.

                               8
end of the estimated range. See Miele, 989 F.2d at 665-66
(citing United States v. Walton, 908 F.2d 1289, 1302 (6th
Cir. 1990). However, "where there is other evidence to
support the higher end of an estimated range, the court
may certainly rely on the higher estimate." Miele, 989 F.2d
at 665-66. Such other evidence must be supported by
"sufficient indicia of reliability," and the court must explain
on the record why it relied on the estimate at the higher
end. Id. at 668 ("We require that the district court articulate
more than a conclusory finding . . . . The district court may
not rest its decision upon facts until it determines that the
fact or facts have sufficient indicia of reliability to support
a conclusion that they are probably accurate.").

The decision of the District Court violates Miele. In
determining that the fair market value of the stolen items
exceeded $2.5 million, the District Court selected the
middle value of the high and low estimates without
assessing the reliability of the higher estimate. In addition,
the District Court did not articulate an adequate
evidentiary basis for selecting the middle value of the two
estimates, as opposed to selecting the low end of the range.
Accordingly, as the government requests, we vacate the
defendants' sentences and remand for resentencing in
accordance with Miele.

IV.

Defendants further maintain that remand is required
under Burns v. United States, 501 U.S. 129, 138 (1991),
because the District Court departed upward without
providing advance notice to the defendants of its intention
to upwardly depart. We agree. In Burns, the Supreme Court
held:

       Before a district court can depart upward on a ground
       not identified as a ground for upward departure either
       in the presentence report or in a prehearing
       submission by the Government, Rule 32 [of the Federal
       Rules of Criminal Procedure] requires that the district
       court give the parties reasonable notice that it is
       contemplating such a ruling.

                               9
Id.; see also United States v. Barr, 963 F.2d 641, 655 (3d
Cir. 1992). The government recognizes that the District
Court "did not provide the defense with sufficient advance
notice of [its] intention to upwardly depart from the
guidelines," and therefore it concedes that the District
Court committed plain error. Appellee's Br. at 9. In light of
Burns and the position taken by the government, we vacate
the sentences imposed by the District Court and remand
for resentencing.

Although we are remanding to the District Court, we will
address one further issue relating to the upward departure
that was briefed to us here and that no doubt will be raised
on remand. Defendants contend that the District Court's
upward departure was improper because the cultural value
of the stolen objects is an element of 18 U.S.C.S 668
already taken into consideration by the Sentencing
Guidelines. We review the District Court's findings of fact
for clear error and its legal conclusions de novo. See United
States v. Hillstrom, 988 F.2d 448, 450 (3d Cir. 1993). We
reject defendants' argument.

As noted above, S 2B1.1 provides for increases in the
defendants' sentence depending upon the amount of loss
sustained by the victim of the offense. See U.S.S.G.
S 2B1.1, background commentary ("The value of property
stolen plays an important role in determining sentences for
theft and other offenses involving stolen property because it
is an indicator of both the harm to the victim and the
gain to the defendant."). In making this determination,
the Guidelines instruct the courts to ascertain the fair
market value of the stolen items. See U.S.S.G. S 2B1.1,
commentary n.2. The application notes recognize, however,
that in some cases, the monetary loss will not "fully capture
the harmfulness of the conduct." See U.S.S.G. S 2B1.1,
commentary n.15. In those cases, the application notes
provide that "an upward departure may be warranted." Id.

In this case, after enhancing the defendants' offense level
by 15 based on the fair market value of the stolen items,
the District Court departed upward four levels because the
applicable sentencing range did not "sufficiently encompass
the egregiousness of the offenses that were involved here."

                               10
Csizmazia App. at 109a; Medford App. at 61. The Court
explained:

       [T]he conduct that [the defendants] engaged in is an
       assault and affront to our culture, to our society, and
       . . . must be dealt with accordingly. [T]he intangibles
       . . . involved . . . and the effects that they have . . . had
       upon the institution itself -- both here in Philadelphia
       and . . . throughout the country -- mandate that the
       court . . . issue an upward departure in this case.

Csizmazia App. at 109a-110a; Medford App. at 61-62.

We agree with the District Court. The price set by the
commercial market is insufficient to "fully capture the
harmfulness of the [defendants'] conduct." The antiques
stolen in this case unquestionably have historical and
cultural importance. Moreover, the thefts affected the HSP
in ways different in kind from a loss of money or other
easily replaceable property, for these thefts damaged the
HSP's reputation. In addition, the monetary value of these
objects does not adequately take into consideration the real
but intangible harm inflicted upon all of the other victims
of the offense, including the City of Philadelphia and the
general public. Because section 2B1.1 applies to thefts that
cause financial harm to the immediate victim of the offense,
the non-monetary damage caused here and the harm
inflicted upon the public at large justify the District Court's
upward departure.

The defendants contend that the upward departure was
impermissible because "the Sentencing Commission, in
setting the offense level . . . for theft of objects of cultural
heritage, took into account the very fact that the items
stolen were items of cultural heritage." Medford Br. at 13.
This argument, however, fails to take Application Note 15
into account and overlooks the fact that U.S.S.G.S 2B1.1
applies to a variety of theft offenses that do not involve
objects of cultural heritage. To take just one example,
U.S.S.G. S 2B1.1 applies to the offense of transporting
stolen motor vehicles in interstate or foreign commerce, in
violation of 18 U.S.C. S 2312. Thus, under U.S.S.G.
S 2B1.1, a defendant who transports stolen motor vehicles
valued at $x across state lines is treated the same as a

                               11
defendant who steals objects of cultural heritage having the
same fair market value. Because U.S.S.G. S 2B1.1 does not
take into account the non-monetary significance of objects
of cultural heritage, a departure may be warranted, as
Application Note 15 suggests.

Finally, defendants contend that the District Court erred
in failing to explain its reason for a four-level upward
departure. Because we are remanding to the District Court,
we note only that the District Court should state on the
record its reason for the extent of the departure. See United
States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990).

V.

Accordingly, we vacate the defendants' sentences and
remand for resentencing in accordance with this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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