                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-15-2004

USA v. Baker
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4611




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                               NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEAL
           FOR THE THIRD CIRCUIT


              Nos. 02-4611 and 02-4612


          UNITED STATES OF AMERICA,

                          v.

              CATHERINE F. BAKER,

                   Catherine Baker,

                               Appellant in No. 02-4611




          UNITED STATES OF AMERICA,

                          v.

               CATHERINE F. BAKER,
            a/k/a CATHERINE BRIMMER

                   Catherine Baker,

                               Appellant in No. 02-4612


    On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
(D.C. Criminal Nos. 02-cr-00063-01 and 02-cr-00638-01)
           District Judge: Hon. John R. Padova


    Submitted Pursuant to Third Circuit LAR 34.1(a)
                    April 13, 2004
                BEFORE: RENDELL, COW EN and LAY*, Circuit Judges

                                   (Filed: April 15, 2004)


                                         OPINION


COWEN, Circuit Judge.

       Catherine Baker appeals her sentence following separate guilty pleas to two

criminal informations charging her with mail fraud, in violation of 18 U.S.C. § 1341,

based upon her embezzlement of over $400,000 from two former employers. Baker

argues that the District Court erred in finding that she had obstructed justice in connection

with her submission of fake jewelry as part of her restitution obligation, which resulted in

a two-level increase in her guidelines offense level. She further maintains that the

District Court erred in finding that she had not demonstrated acceptance of responsibility

for her actions, which resulted in the denial of a three-level reduction in her offense level.

Finding no error, we will affirm the sentence in all respects.

       On February 4, 2002, the United States Attorney filed the first of two criminal

informations in the consolidated case before us. Baker plead guilty to that information on

March 7, 2002. The U.S. Attorney filed a second information on September 27, 2002; the

two cases were consolidated on October 4, 2002. Baker plead guilty to the second




*Honorable Donald P. Lay, Senior United States Circuit Judge for the Eighth Circuit,
sitting by designation.

                                              2
information on October 31, 2002. The two informations charged Baker with separate

counts of mail fraud for embezzling over $400,000 from two former employers, the

Department of Orthopaedic Surgery at the University of Pennsylvania Medical Center and

the M ilton S. Hershey Medical Center in Hershey, Pennsylvania.

       In her plea to the first information, Baker admitted to using the proceeds of the

embezzlement to purchase several pieces of diamond jewelry that had been seized by the

Federal Bureau of Investigations on November 19, 2001. On March 25, 2002, the District

Court entered a Preliminary Order of Forfeiture that identified the seized jewelry as

property subject to forfeiture. In July 2002, Baker sent the FBI several pieces of jewelry

as part of her restitution obligation; Baker later identified the sent items as the diamond

jewelry identified in the order. When the FBI brought the jewelry to an appraiser,

however, it discovered that the jewelry was made not of diamond, but of cubic zirconia.

The government then learned that Baker had purchased the cubic zirconium jewelry,

which cost substantially less than the diamond jewelry, subsequent to the issuance of the

forfeiture order.

       At her sentencing hearing on December 23, 2002, Baker testified that she had

purchased the cubic zirconium jewelry for her personal use, to replace the diamond

jewelry seized by the FBI. She claimed that she directed her husband to send the

diamond jewelry to the FBI because she was ill at the time, and that her husband

inadvertently sent the cubic zirconia instead. Baker admitted, however, that despite



                                              3
owing over $219,000 under the March 2002 forfeiture order, she had spent $1,700 on the

cubic zirconium jewelry, misidentified the nature of the purchase to her probation officer,

and waited a number of months before attempting to return the diamond jewelry in

question.

       The District Court stated that it had “grave questions about [Baker’s] credibility”

with regard to her explanation, and found that the government had established by more

than a preponderance of the evidence that Baker had obstructed justice with respect to the

return of the forfeited diamond jewelry. The District Court further found that Baker’s

conduct in attempting to defraud the government and in attempting to conceal assets that

could have been applied to her restitution obligation demonstrated that Baker had not

accepted responsibility for her actions. The obstruction of justice finding resulted in a

two-level increase to Baker’s offense level under the U.S. Sentencing Guidelines, while

the finding that Baker had not accepted responsibility for her actions deprived her of a

three-level reduction.

       Baker argues that the District Court erred in finding that she had willfully

obstructed justice because the submission “had no impact on the proceedings against

her,” the government knew that she had submitted the cubic zirconium jewelry, and her

explanation should have been accepted as accurate. Baker’s contentions are misplaced.

There is no merit to her argument that concealment of forfeited assets and false

representations to law enforcement as to those assets falls outside the scope of Sentencing



                                             4
Guidelines § 3C1.1. See, e.g., United States v. Anderson, 68 F.3d 1050, 1056 (8th Cir.

1995) (imposing obstruction of justice enhancement where defendant concealed and

misrepresented assets that would otherwise have been available for fines and restitution).

The government’s knowledge as to the identity of the jewelry is irrelevant, as the

evidence produced over the course of the proceedings was more than sufficient for a

reasonable factfinder to find, by a preponderance, that Baker willfully submitted fake

jewelry in an attempt to retain the fruits of her illegal activity. The District Court did not

clearly err in rejecting Baker’s explanation of the circumstances surrounding her

submission of the jewelry as not credible.

       Baker next argues that the District Court erred in denying her a three-point

reduction for acceptance of responsibility, maintaining that she was entitled to a reduction

based on her guilty pleas, waiver of venue challenges, and surrender of other assets.

Again, however, she fails to articulate how the District Court clearly erred in its

determination that her conduct prior to sentencing failed to demonstrate acceptance of

responsibility. See United States v. Singh, 923 F.2d 1039, 1043 (3d Cir. 1991) (“[T]he

determination of the sentencing judge is entitled to great deference on review and should

not be disturbed unless it is without foundation.”) (quoting U.S. Sentencing Guidelines §

3E1.1). The District Court properly weighed all the relevant circumstances in

determining that Baker was not entitled to a reduction for acceptance of responsibility.

These circumstances included Baker’s apparent disregard for her restitution obligation, as



                                               5
evidenced by her purchase of two new vehicles to replace vehicles seized by the FBI in

connection with her embezzlement, her purchase of $1,700 worth of jewelry to replace

the seized diamond jewelry, and her attempt to pass off fake jewelry in satisfaction of the

forfeiture order.

       We find that the District Court did not clearly err in imposing the two-level

enhancement for obstruction of justice and denying the three-level reduction for

acceptance of responsibility. For the foregoing reasons, the judgments of the District

Court entered on December 27, 2002 will be affirmed.
