
USCA1 Opinion

	




          June 25, 1996         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1947                                    UNITED STATES,                                      Appellee,                                          v.                                  JOHN GRELLE, JR.,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Mary M. Lisi, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Lynch, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                            and Cummings,* Circuit Judge.                                           _____________                                _____________________               Edward J. Romano for appellant.               ________________               Margaret E.  Curran, Assistant United States  Attorney, with               ___________________          whom Sheldon  Whitehouse, United States Attorney,  and Kenneth P.               ___________________                               __________          Madden,  Assistant  United States  Attorney,  were  on brief  for          ______          appellee.                                 ____________________                                        ____________________          *  Of the Seventh Circuit, sitting by designation.                                 ____________________                    CUMMINGS, Circuit  Judge.   In August 1994  John Grelle                    CUMMINGS, Circuit  Judge.                              ______________          and Robert Joost  were indicted for conspiracy  to commit robbery          in violation  of the  Hobbs Act,  18 U.S.C.    1951.   The 12-day          trial  commenced in  March  1995.   The  jury returned  a  guilty          verdict against  Joost, but was unable  to reach a verdict  as to          Grelle.   In May 1995 a  new jury was impaneled  to retry Grelle.          In June,  he pled guilty to  the single count  indictment and was          sentenced to 46 months in prison plus supervised release of three          years.  Grelle appeals  three offense characteristic enhancements          imposed  by  the  district   court  pursuant  to  the  Sentencing          Guidelines.  We now affirm.                                          I.                    The following summary  of the facts  is drawn from  the          presentence report,  the first  trial record, and  transcripts of          tapes  of recorded conversations admitted at the trial.  In March          1994,  Detectives Steven  O'Donnell  and Joseph  DelPrete of  the          Rhode Island State  Police conducted an undercover  investigation          of  the manufacture of  counterfeit Foxwoods Casino, Connecticut,          slot machine tokens by Joost.   The detectives met Joost on March          23, 1994.   Approximately a  month later, after  several meetings          with Joost  and various  deliveries of counterfeit  tokens, Joost          asked  the detectives if they would commit an armored car robbery          with  him.  The  detectives learned that  the plan was  to rob an          armored car belonging to Meehan Armored, Inc.  Among other items,          the  car carried a  gold cargo that it  picked up late afternoons          from  Leach and  Garner,  an Attleboro,  Massachusetts,  precious                                         -2-          metals  manufacturer.   The armored  car and  the gold  were then          stored overnight at the  Meehan headquarters in Woonsocket, Rhode          Island.  At 3:00 a.m. two  Meehan guards would load the gold into          the armored  car at Woonsocket  and drive the  cargo to New  York          City.    Joost planned  to rob  the armored  car  as it  left the          Woonsocket  building  while the  guards  were  busy securing  the          premises. At the meeting, Joost  detailed how he, the detectives,          and  a fourth person would conduct the robbery; he indicated that          he needed four guys for the operation and that he already had one          "guy."                    The  same three  met again  several times  in May  1994          during which Joost told the detectives further details  about the          proposed  robbery.   On May  28 he  introduced them  to defendant          Grelle.  The four traveled  to Pennsylvania to rob a trailer  and          warehouse, but a prearranged stop by the police brought an end to          the  plan.   During  the  trip,  however,  Grelle  told  the  two          detectives  that he was going  to participate in  the armored car          robbery along  with them and Joost.   Grelle also  stated that he          was the manufacturer of the counterfeit Foxwoods Casino tokens.                      On  June 16,  Joost  told the  detectives  that he  had          looked  at the Meehan building  around midnight but  left when he          saw a  police officer driving up  the access road.   He said that          five people would  be the right number to  commit the robbery and          gave  them other details.  On June  27, Joost told the detectives          that  he and they  would arrive at  the Meehan  building the next          midnight in order to survey the premises.  Joost said that Grelle                                         -3-          would drop them off and pick them up at 4:30 in the morning.  The          trip was then postponed to the following evening.  The detectives          met  Joost on  the evening of  June 29  and he  said that  he had          explained the robbery plans  to Grelle.  At 11:00  p.m. the three          men  met Grelle in Smithfield,  Rhode Island.   One detective and          Joost  drove with  Grelle in  his car  while the  other detective          followed  in his  own car.   During  the drive,  Joost complained          about Grelle's choice of a car,  and Grelle promised a better car          for the robbery itself.                    The two cars met up at a housing complex in Cumberland.          When  Detective  DelPrete asked  Grelle  how  he knew  about  the          complex, Grelle responded, "When  you plan, you plan well."   All          four then proceeded to Woonsocket in Grelle's car.  Joost and the          two detectives left Grelle in order to survey the Meehan building          while Grelle  agreed to pick them  up later.  The  details of the          planned  robbery  were  then  explained  by   Joost  to  the  two          detectives.  Joost explained how one guard would be handcuffed in          the  truck and his mouth  taped, and how they  would put a gun to          the guard's  head and shoot if  necessary.  Since the  guards had          not appeared as expected  at 4:00 a.m., Joost and  the detectives          returned to the pickup point where  Grelle met them.  Joost  told          Grelle that they had missed the armored car.                    On  July  21, Joost  again  described  the armored  car          robbery  plan to the detectives and again mentioned putting a gun          to the head of one of the Meehan guards.   On August 5, Joost and          Grelle  were arrested by  federal agents and  Rhode Island police                                         -4-          detectives and  Grelle's office  was searched by  federal agents,          who  seized a mold for  counterfeiting U.S. quarters.   They also          seized from  his car molds  for counterfeit one-  and five-dollar          Foxwoods  Casino tokens and  two counterfeit  one-dollar Foxwoods          Casino tokens.    From Grelle's  home  in North  Scituate,  Rhode          Island,  the agents  seized  15 counterfeit  U.S. quarters,  some          marijuana plants, a bag of marijuana, and still other counterfeit          casino tokens.                    At the  joint trial, the  director of security  for two          manufacturing   companies   testified   that    those   companies          manufactured  items   in  gold  and  silver   in  the  Attleboro,          Massachusetts, area  and shipped the finished  products five days          weekly  to New York City via the Meehan Woonsocket company, which          delivered  the products  to various  customers in  New York.   He          indicated that  the dollar value  of the average  daily shipments          from  April 1994 to August 1994 ranged from $455,887 to $848,998.          A Meehan  official testified that other  precious metal shipments          accompanying that cargo averaged about $5,000,000 daily.                    Subsequently  Grelle prepared a statement for inclusion          in  the  presentence  report  in support  of  an  adjustment  for          acceptance  of responsibility.    He admitted  that  he had  been          involved in  the robbery and counterfeit  tokens conspiracies and          added "I knowingly involved myself, and in doing that I committed          a crime."   In return  for Grelle's guilty  plea, the  government          agreed to recommend the lowest term  in the applicable Guidelines          range  and that it run  concurrently to any  other sentence.  The                                         -5-          government  agreed  that  Grelle   did  not  participate  in  the          conversations between Joost  and the detectives in  which (1) the          amount  of  gold,  (2) the  use  of  firearms,  (3) the  possible          shooting or killing of the Meehan guards, or (4) the restraint of          those   guards  were   discussed.     However,   the   government          specifically reserved  its right to argue that these details were          reasonably foreseeable to Grelle.                    In  the   plea  agreement  the  government   agreed  to          recommend that Grelle receive a two-level decrease for acceptance          of responsibility  provided that (1) he admit  his involvement in          the  criminal conduct,  (2) he  otherwise complied  with all  the          requirements of U.S.S.G.    3E1.1, and (3) he  did not receive an          enhancement for obstruction  pursuant to U.S.S.G.    3C1.1.   The          government also agreed to recommend that he receive a three-level          decrease  under U.S.S.G.    2X1.1(b)(2)  because the  substantive          crime was  not close to  commission and  that he receive  a four-          level decrease for a minimal role under U.S.S.G.   3B1.2(a).                    The district court determined the base offense level to          be 20.   It then imposed a 6-level increase for intended use of a          firearm, a 2-level  increase for intended restraint  of a victim,          and  a 3-level increase for an intended loss between $250,000 and          $800,000.   The court then  subtracted 3 levels for insubstantial          completion of the substantive defense, 4 levels for minimal role,          and 2 levels for acceptance of responsibility.  The total offense          level  was  22  with  a sentencing  range  of  41  to  51 months'                                         -6-          imprisonment.    The court  imposed a  sentence  of 46  months in          prison and 3 years of supervised release.                                         II.                    Grelle claims that the three sentence enhancements were          erroneous  on the ground that the evidence was inadequate to show          that he  had knowledge of  the intended conduct or  the amount of          the intended loss.  However, we  conclude that the circumstantial          evidence  is  more than  adequate to  establish  that the  use of          firearms, the  restraint of armored  car guards and  the intended          loss  of a  gold cargo  were not  only reasonably  foreseeable to          defendant  but that he knew  the plan involved  those factors and          that his agreement to participate covered such conduct.                    As  noted, defendant  pled  guilty to  a conspiracy  to          commit  robbery.    The  guideline  applicable  to  conspiracies,          U.S.S.G.   2X1.1, tells the  trial court to use the  base offense          level for  the substantive offense plus  appropriate adjustments.          Here  the  substantive  offense  was  robbery,  and  the  robbery          guideline  sets  the base  offense level  at  20 and  includes as          specific offense characteristics the use of a firearm, U.S.S.G.            2B3.1(b)(2)(B);  physical  restraint of  a  person to  facilitate          commission of  the offense or escape,  U.S.S.G.   2B3.1(b)(4)(B);          and the amount of  loss, U.S.S.G.   2B3.1(b)(6).   In determining          the applicability of these  specific offense characteristics, the          Guidelines direct  the court to consider not only the defendant's          actual conduct and the  conduct he agreed to undertake,  but also          "all  reasonably  foreseeable acts  and  omissions  of others  in                                         -7-          furtherance  of the  jointly undertaken criminal  activity .  . .          that occurred during the commission of the offense of conviction,          in preparation for that  offense, or in the course  of attempting          to avoid detection or responsibility for that offense."  U.S.S.G.             1B1.3(a)(1)(B).  The  Commentary explains that  a defendant is          accountable  for the  conduct  of others  in  furtherance of  the          jointly undertaken criminal  activity and reasonably  foreseeable          in connection with that criminal activity.  See U.S.S.G.   1B1.3,                                                      ___          comment.                    The  Commentary  states   that  the  relevant   conduct          determination for a particular defendant  depends on the scope of          the  activity he agreed to  undertake jointly.   To determine the          scope of  a defendant's  agreement, "the  court may consider  any          explicit agreement or implicit agreement fairly inferred from the          conduct  of the  defendant  and others."    Id.   The  Commentary                                                      ___          admonishes that "the criminal  activity that the defendant agreed          to jointly  undertake, and the reasonably  foreseeable conduct of          others  in  furtherance  of   that  criminal  activity,  are  not          necessarily identical."  Id.   For example, the note  describes a                                   ___          defendant  who  agrees  with  another to  commit  a  robbery  and          explains that  even though the  defendant did not  contemplate an          assault,  he would be accountable  for an accomplice's assault of          the victim in the  course of the robbery "because  the assaultive          conduct  was in  furtherance of  the jointly  undertaken criminal          activity   (the  robbery)  and   was  reasonably  foreseeable  in                                         -8-          connection with  that criminal activity (given the  nature of the          offense)."  Id.                      ___                    The Guidelines thus contemplate that  a defendant would          be  accountable  for sentencing  purposes  for  his own  intended          conduct within the scope of the conspiracy,  but also accountable          for  the  intended  scope  of  his  co-conspirator  that  was  in          furtherance of  the conspiracy and was  reasonably foreseeable to          the defendant.  The  reasonable certainty requirement of U.S.S.G.              2X1.1(a)   contemplates    that   in   considering   specific          enhancements,  the  sentencing  court  will consider  "what  with          reasonable certainty  can be  determined to be  the conspirator's          intent."  United States  v. Madeiros, 897  F.2d 13, 19 (1st  Cir.                    _____________     ________          1990).    Finally,  the  conspiracy guideline  considers  that  a          defendant may be held accountable for acts that have not yet been          performed.  See  United States  v. Chapdelaine, 989  F.2d 28,  35                           _____________     ___________          (1st Cir. 1993), cert. denied, __ U.S. __, 114 S. Ct. 696 (1994).                           ____________                    We   now  proceed   to  Grelle's   specific  objections          regarding the  three enhancements imposed by  the district court.          A court's  factual determinations  supporting a sentence  must be          proved  by the government by a preponderance of the evidence, and          this  Court reviews such findings  only for clear  error.  United                                                                     ______          States v. Legarda, 17 F.3d 496, 499 (1st Cir. 1994).          ______    _______                                          A.                    The conspiracy and robbery  guidelines provide for a 6-          level  enhancement  for  intended use  of  a  firearm.   U.S.S.G.            2B3.1(b)(2)(B).   District Judge  Lisi presided over  the first                                         -9-          trial and was therefore familiar with the details of the case, so          that  her rulings  are entitled  to great  deference.   18 U.S.C.            3742(e).    She  found  here  that  the  use  of  firearms  was          foreseeable to this defendant because Grelle acknowledged that he          had knowingly  become involved  in an "armed  robbery conspiracy"          and admitted  that Joost, his co-defendant in the original trial,          told him  about the robbery and  had taken Grelle  to the robbery          site on  the previous day.   Indeed,  as early as  May 28,  1994,          defendant had become a  co-conspirator by planning to participate          in the armored car robbery with Joost and the detectives.                    Grelle was present during many of Joost's conversations          with the detectives,  though it  is not established  that he  was          present  when  Joost  specifically  mentioned  firearms.    Joost          nevertheless  mentioned  to the  detectives  that  guns would  be          needed to subdue the guards and that it might be necessary to put          guns to their  heads and shoot  them.  Under  the plans known  to          Grelle,  he would certainly  realize that the  armored car guards          would be  carrying firearms and would have to be subdued in order          to steal the  gold, thus requiring firearm use.   Joost's plan to          use firearms was reasonably foreseeable  to Grelle and was proved          by  a  preponderance  of  the  evidence,  so  that   the  6-level          enhancement was properly assessed.                                          B.                    Under the robbery  guideline, a 2-level enhancement  is          to  be  imposed  if  "any  person was  physically  restrained  to          facilitate commission  of the  offense or to  facilitate escape."                                         -10-          U.S.S.G.    2B3.1(b)(4)(B).    Under  the  conspiracy  guideline,          defendant was subject to such  enhancement since the record shows          that he knew or could reasonably foresee that  one of the robbers          intended  to restrain  another person  in the  commission  of the          robbery  or the escape afterwards.  Here the district court found          that Grelle's participation  in the conspiracy  contemplated that          the robbery would take  place at the Meehan facility  when guards          would be present.  As a result, the court properly concluded that          it  was reasonably certain that  Grelle knew that  a person would          have  to  be restrained  in  order to  successfully  conclude the          robbery.   In addition, Joost  had discussed detailed  plans with          the  detectives involving the restraint of a Meehan guard.  Based          on  Joost's willingness to discuss the plan's details with two of          the  participants,  the  district  court  found  that  he  likely          discussed  the same  plans  with Grelle.    The district  court's          finding that Grelle knew  or could reasonably have  foreseen that          the  plan involved  the restraint  of others  was supported  by a          preponderance of the evidence and was not clearly erroneous.                                          C.                    Finally,   the   3-level  enhancement   under  U.S.S.G.            2B3.1(b)(6)(D) was for an intended loss of between $250,000 and          $800,000.    Grelle was  not  held  accountable  for  the  entire          $5,000,000 value of the cargo -- the value testified to at  trial          -- because the district  judge found that he  was not aware  that          the armored car  contained precious  cargo other  than the  gold.          Rather, the district  court based its determination on  the trial                                         -11-          testimony which showed that from April through August 1994, about          a month before the intended  robbery, the armored vehicle carried          between $455,887 and $848,998 worth of gold on each run.                    Grelle attacks the determination  on the basis that the          figures  were  not  certain.    However,  the Commentary  to  the          guideline  states that  the  "loss need  not  be determined  with          precision.  The court need only make a reasonable estimate of the          loss,  given  the  available  information."   U.S.S.G.     2B1.1,          comment.  It is clear that Grelle intended to participate  in the          armored car robbery  and that both Grelle and Joost knew or could          reasonably foresee that  the vehicle contained a  large amount of          money.  At  one point, Joost told the  detectives that he thought          the car could contain  as much as several million dollars.  Based          on  this  information, the  district  court  acted reasonably  in          imposing  a 3-level increase for the intended loss.  The decision          was not clearly erroneous.                                         III.                    For the foregoing reasons,  the sentence imposed by the          district court is AFFIRMED.                            ________                                         -12-
