                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                                        PUBLISH                              May 29, 2012

                                                                         Elisabeth A. Shumaker
                      UNITED STATES COURT OF APPEALS                         Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

        Plaintiff–Appellee,

 v.                                                        Nos. 10-4180 &
                                                                10-4210
 CEDRIC DUANE BURKS,

        Defendant–Appellant.




                     Appeal from the United States District Court
                               for the District of Utah
                          (D.C. No. 2:07-CR-00173-TS-4)


Robert Breeze, Salt Lake City, Utah, for the Defendant-Appellant.

Jared C. Bennett, Assistant United States Attorney (Carlie Christensen, United States
Attorney, with him on the brief), Office of the United States Attorney, District of Utah,
Salt Lake City, Utah, for the Plaintiff-Appellee.


Before LUCERO, HOLLOWAY, and TYMKOVICH, Circuit Judges.


LUCERO, Circuit Judge.
       Cedric Burks provided codes to an auto-theft ring that were used to create working

keys for specific vehicles. One such vehicle—an Escalade—was stolen in Nevada,

stripped to its frame, and subsequently discovered and auctioned by authorities. Several

months later, the same Escalade, now reassembled, was identified in Utah. Based on this

discovery, Burks was charged and convicted of aiding and abetting the possession and

transportation of a stolen vehicle under 18 U.S.C. §§ 2312 and 2313.

       On appeal, Burks argues that the jury was improperly instructed on the affirmative

defense of withdrawal and was allowed to make an improper inference that Burks’

associates knew the vehicle was stolen. We disagree on both points. First, assuming that

withdrawal is an affirmative defense to a conviction premised on accomplice liability, we

hold that the jury was properly instructed that the burden of proving the defense rested on

Burks. Second, we hold that the jury was properly instructed that it could infer that

Burks’ associates knew the vehicle was stolen. We also reject Burks’ claims that there

was insufficient evidence to support his conviction and that the district court erred in its

restitution order. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                              I

       Burks was a player in an auto-theft ring operated by Levi and Abraham Elliot

based in Las Vegas, Nevada. Once an automobile was targeted for theft, the Elliots

would provide Burks with the automobile’s unique vehicle identification number

(“VIN”). Using this information, Burks would contact a local auto dealership and claim
                                             -2-
that he was purchasing the vehicle in question and needed the vehicle’s “key code”1 in

order to make a key for the vehicle. Unaware of the foul play, the dealership employee

would give Burks the code. Burks then passed the key code to the Elliots, who would

compensate him and use the code to make a key to steal the vehicle in question.

According to the dealership employee, Burks requested approximately twenty key codes

in 2005.

       One vehicle targeted by the Elliots was a 2004 Cadillac Escalade, fitted with a

custom grille and wheels. In accordance with the plan, Burks was given the Escalade’s

VIN and obtained its key code from his dealership contact. The vehicle’s owners

reported it stolen soon thereafter. Several days later, Las Vegas police recovered the

Escalade’s frame, which had been completely stripped of its doors, seats, grille, wheels,

and various other instruments. Notably, all of the electronic wires were neatly clipped

and bundled, and the frame had been smeared in oil to protect it from the weather. Upon

recovery, the Escalade’s frame was sold at auction to Abe Elliot, who received legal title

to the frame along with a Nevada certificate declaring the vehicle to be non-reparable.

       At some point in the following three months, the Escalade was reconstructed and

Caesar “Spanky” Martinez purchased insurance for the vehicle in Utah. Martinez

subsequently became a suspect in federal and state investigations into a string of auto

       1
        A key code is a unique sequence of numbers that a manufacturer assigns to an
individual vehicle to allow the vehicle’s owner to make duplicate keys. An individual in
possession of a key code for a particular vehicle can make an unlimited number of
working keys for that vehicle.

                                            -3-
thefts in Utah and Nevada. While investigating Martinez, authorities noticed an Escalade

at his house, and after some research, discovered that the Escalade was likely the same

one that had been stolen, stripped, and auctioned in Las Vegas. The identity of the

Escalade was confirmed when law enforcement used the stolen vehicle’s recorded VIN

and key code to make a working key, which was used to seize the vehicle from Martinez.

       The Escalade’s ties to Nevada and the Elliots became more apparent after

Martinez was arrested. First, Abe Elliot called the Utah state motor vehicle division to

inquire about the status of the Escalade. Another man, who gave the name of Ralph

Scalbon, also called to report the vehicle stolen, but provided the same callback number

as Abe Elliot. This Scalbon moniker closely resembled the name of the individual who

allegedly sold the Escalade to Martinez. Finally, Abe Elliot himself sought to claim the

vehicle and was arrested after arriving with a working key.

       Law enforcement traced the Escalade back to Burks, who had been arrested for

attempting to sell key codes. Once in custody, Burks confessed to selling codes to the

Elliots as part of their auto-theft scheme. Additionally, Burks stated that he was aware

that the Elliots operated in Utah, and did business with an individual named “Spanky.”

Following his arrest, however, Burks stopped selling key codes and helped authorities

infiltrate the Elliots’ auto-theft ring.

       Based on Burks’ confession, he was charged with aiding and abetting: (1) the

interstate transportation of the stolen Escalade under 18 U.S.C. § 2312; and (2) the

possession, receipt, and storage of the stolen Escalade under 18 U.S.C. § 2313. At trial,
                                            -4-
Burks’ counsel objected to two jury instructions now at issue. The first instruction

informed the jury that the burden of proving the affirmative defense of withdrawal rested

with the defendant. The second instruction permitted the jury to infer that a vehicle

stolen in one state and recovered in another was knowingly transported in interstate

commerce. Both objections, however, were overruled, and the jury convicted Burks on

both charges.

       Following Burks’ conviction, the district court held a restitution hearing to

determine how much compensation was due to the owners of the stolen Escalade. After

the Escalade was stolen, the vehicle’s owners filed a claim with their insurance company,

which paid to replace the Escalade but charged the owners a $1,000 deductible.

Accordingly, the district court ordered that Burks pay $1,000 to the Escalade’s owners

and $49,977 to the insurance company, which represented the amount paid to the

Escalade’s owners minus the sum recovered from the sale of the vehicle’s frame at

auction. Burks timely appealed both his conviction and the restitution order, and we

consolidated the appeals.

                                             II

       On appeal, Burks raises several novel questions about the interplay of the federal

auto-theft statute, known as the Dyer Act and codified at 18 U.S.C. §§ 2312 and 2313,

and the federal accomplice liability statute, 18 U.S.C. § 2(a). We thus begin our analysis

by looking at each of these statutes respectively.

       Burks was convicted under two distinct sections of the Dyer Act: §§ 2312 and
                                             -5-
2313. Section 2312 prohibits the transportation in interstate commerce of a vehicle that

is known to be stolen, and § 2313 prohibits the receipt, possession, or storage of a vehicle

that crossed state lines and is known to be stolen. As the Supreme Court has

acknowledged, the Act reflects a realization that “[p]rofessional thieves resort to

innumerable forms of theft[,] and Congress presumably sought to meet the need for

federal action effectively rather than leave loopholes for wholesale evasion.” United

States v. Turley, 352 U.S. 407, 416-17 (1957).

       Burks was not convicted as a principal under the Dyer Act, but as an accomplice

under the federal accomplice liability statute. Under 18 U.S.C. § 2(a), “[w]hoever

commits an offense against the United States or aids, abets, counsels, commands, induces

or procures its commission, is punishable as a principal.” “To be guilty of aiding and

abetting the commission of a crime, the defendant must willfully associate himself with

the criminal venture and seek to make the venture succeed through some action of his

own.” United States v. Leos-Quijada, 107 F.3d 786, 794 (10th Cir. 1997). In

establishing that the defendant was an accomplice, the government may rely on

“circumstantial evidence and the level of participation may be of relatively slight

moment.” Id. (quotation omitted).

       The Dyer Act and accomplice liability statute, operating together, provide the

basis for Burks’ convictions. For his conviction under § 2312, the government was

required to prove: (1) a person transported a stolen vehicle that crossed state lines; (2)

the person knew the vehicle was stolen; and (3) Burks associated himself with the
                                             -6-
principal and sought to make the venture succeed. For his conviction under § 2313, the

government was required to prove: (1) a person received, possessed, or stored a stolen

vehicle that crossed state lines; (2) the person knew the vehicle was stolen; and (3) Burks

associated himself with the principal and sought to make the venture succeed.

                                             A

       Burks first claims the jury was improperly instructed on the affirmative defense of

withdrawal. At trial, Burks argued that he should be shielded from conviction because he

effectively withdrew from the Elliots’ auto-theft ring. This defense was premised on the

fact that Burks stopped selling key codes and actually helped authorities infiltrate the

criminal enterprise after he sold the Escalade’s key code to the Elliots. The district court

accepted this as a valid defense, but instructed the jury that “[t]he defendant has the

burden of proving that he withdrew from the enterprise by a preponderance of the

evidence.” We review “a court’s decision to give a particular jury instruction for an

abuse of discretion and consider the instructions as a whole de novo to determine whether

they accurately informed the jury of the governing law.” United States v. Gwathney, 465

F.3d 1133, 1142 (10th Cir. 2006).

       In this circuit, withdrawal is an established affirmative defense to a defendant’s

involvement in a conspiracy. United States v. Randall, 661 F.3d 1291, 1294 (10th Cir.

2011). “[T]o establish the affirmative defense of withdrawal from a conspiracy, a

defendant must disclose the scheme to law enforcement authorities or make a reasonable

effort to communicate his withdrawal to his coconspirators.” Id. (citation omitted). Yet
                                             -7-
it is unsettled if a defendant can withdraw from aiding and abetting a crime. Unlike a

conspiracy, which by its very nature involves an agreement that can be refuted,

accomplice liability can arise from merely encouraging the principal. See United States

v. Whitney, 229 F.3d 1296, 1303 (10th Cir. 2000) (“One may become an accomplice . . .

by words or gestures of encouragement . . . .”) (quotation and alteration omitted). Given

the relatively minor participation that can trigger accomplice liability, it is unclear what

actions an individual may take—if any—to immunize himself from liability for a crime

that he previously enabled.

       Other courts have reached varying results when considering the applicability of

the withdrawal defense to the federal accomplice liability statute. The Seventh Circuit,

for example, has held that withdrawal was not a valid defense for aiding and abetting

mail and securities fraud. United States v. Read, 658 F.2d 1225, 1239-40 (7th Cir. 1981)

(withdrawal is not a defense because “as an aider and abettor, [the defendant] need not

agree to the scheme. He need only associate himself with the criminal venture and

participate in it”). The Second Circuit has also held that withdrawal is not a valid defense

to aiding and abetting, at least for some crimes. See United States v. Arocena, 778 F.2d

943, 948 n.3 (2d Cir. 1985) (“[W]ithdrawal is not a defense to the substantive crime of

aiding and abetting a murder.”). In contrast, the Ninth Circuit has assumed—albeit in

dicta—that a defendant can withdraw from being an accomplice. United States v.

Lothian, 976 F.2d 1257, 1261 (9th Cir. 1992) (“Withdrawal is traditionally a defense to

crimes of complicity: conspiracy and aiding and abetting.”).
                                             -8-
       Every court to foreclose the withdrawal defense to an accomplice has closely

examined the elements and nature of the underlying crime and limited their holding to

that crime. We see no reason to depart from this prudent practice, and decline the

government’s suggestion to categorically hold that withdrawal can never be a valid

defense to aiding and abetting a federal crime.

       Turning to the underlying crime at issue, it is conceivable that a defendant could

withdraw from aiding and abetting a Dyer Act violation. But even assuming that

withdrawal was a valid defense, we reject Burks’ contention that the government should

have to prove its absence. The burden of proving withdrawal in the conspiracy context

unequivocally rests with the defendant, and we see no basis for distinguishing situations

when accomplice liability is at issue. See United States v. Hughes, 191 F.3d 1317, 1322

(10th Cir. 1999) (“In this circuit, the law is clear that the defendant bears the burden of

establishing withdrawal from a conspiracy.”). The district court thus did not abuse its

discretion in instructing the jury on this point.

                                               B

       Burks also objects to a jury instruction permitting the inference that the Escalade

was transported to Utah by an individual who knew it was stolen. Specifically, the jury

was instructed that “[p]ossession in one state of a vehicle that was recently stolen in

another state, if not satisfactorily explained, is ordinarily a circumstance from which you

may infer that the person knew the vehicle was stolen and also transported in interstate

commerce.” Burks timely objected to this instruction, and now argues that it was unfair
                                              -9-
to require him to prove or disprove the mindset and actions of a third party.

       Although we have upheld this inference in cases involving the Dyer Act, we have

not addressed its applicability when the defendant is not the principal. Cf. Rogers v.

United States, 416 F.2d 926, 927 (10th Cir. 1969) (“Proof that an accused is in possession

of a vehicle recently stolen in another state sustains the inferences that he knew the

vehicle was stolen and that he transported it in interstate commerce.”). Typically, an

inference is permissible if “there is a rational connection between the fact proved by the

prosecution and the ultimate fact presumed, and the inferred fact is more likely than not

to flow from the proven facts.” Gwathney, 465 F.3d at 1143. Under this definition, there

will be scenarios in which the connection between the crime and the defendant is so

indirect that an inference instruction is inappropriate. Burks’ case, however, presents no

such scenario.

        The evidence presented by the government provided a solid foundation for

inferring that Martinez knew the vehicle was stolen and had crossed state lines. Burks

himself admitted that Martinez was involved in the Elliots’ Nevada-based auto-theft ring.

The prosecution also showed that after the Escalade was recovered in Utah, the Elliots

tried to claim it. This evidence, which tends to show that Martinez was a key player in

the Elliots’ scheme, is clearly sufficient to support the inference that Martinez’s

possession of the vehicle meant that he knew the vehicle had been stolen and that it had

crossed state lines. The jury instruction was thus appropriate.

       Burks maintains that the inference is only appropriate if the defendant is in actual
                                            -10-
possession of the vehicle. To this end, he cites Rogers, which held that “[t]he basis of the

inferences is the possession of the vehicle . . . [a]bsent possession no inference may be

drawn.” 416 F.2d at 928. But Rogers states only that the person for whom the inference

is made must have been in possession, and Martinez was unquestionably in possession of

the vehicle before it was recovered in Utah. There is nothing in Rogers to suggest that

the inference may only be made in reference to the defendant at trial.

                                              C

          Burks alleges that there was insufficient evidence to convict him at trial. We

review the sufficiency of the evidence de novo. Whitney, 229 F.3d at 1300. “[W]e ask

only whether taking the evidence—both direct and circumstantial, together with the

reasonable inferences to be drawn therefrom—in the light most favorable to the

government, a reasonable jury could find the defendant guilty beyond a reasonable

doubt.” United States v. Keck, 643 F.3d 789, 793 (10th Cir. 2011).

       In order to convict Burks, the government was required to prove: (1) a person

transported (for liability under § 2312 ) and received, possessed, or stored (for liability

under § 2313) a stolen vehicle that crossed state lines; (2) the person knew the vehicle

was stolen; and (3) Burks associated himself with the principal and sought to make the

venture succeed. Burks first claims that the government could not prove the vehicle

crossed state lines with the knowledge that it was stolen because it is unclear who

transported the vehicle. We disagree. The government presented an array of evidence

showing the Escalade was stolen by the Elliots in Nevada and found in Utah in
                                             -11-
possession of Martinez, a known associate of the Elliots. Given this evidence, the jury

could properly infer that whoever transported the vehicle from Nevada to Utah—

presumably some player in the Elliots’ ring—knew it was stolen.

       Burks also alleges that the Escalade was not actually stolen when it crossed state

lines. To this end, Burks emphasizes that after the Elliots stole, stripped, and abandoned

the vehicle, it was recovered by authorities, which he argues rendered the Escalade frame

“unstolen.” Because the Elliots legally purchased the “unstolen” frame, the reconstructed

Escalade was allegedly not stolen when it crossed into Utah, and was thus outside the

scope of the Dyer Act. See generally United States v. Muzii, 676 F.2d 919, 923 (2d Cir.

1982) (discussing recovered property doctrine). This argument, while admittedly clever,

is not persuasive. The Dyer Act was intended to cover a wide range of activities, and

passed as an effort to close loopholes that auto thieves had exploited. Turley, 352 U.S. at

416-17. In the instant case, thieves stripped the Escalade and allowed it to be recovered

with the intention of re-purchasing the vehicle so they could obtain legal title to it. To

hold that the transportation and possession of the Escalade did not violate the Dyer Act

because the authorities were made an unwitting link in the chain of theft would create an

illogical loophole in direct contradiction to Congress’ intent. See United States v. Payne,

635 F.2d 643, 645 (7th Cir. 1980) (holding that interstate transportation of vehicle parts

severed from a stolen a truck violated the policy of the Dyer Act). We therefore decline

to apply the recovered property doctrine to situations in which a thief abandons the

vehicle with the intention of purchasing it once it has been recovered by authorities.
                                            -12-
       As a final point, Burks asserts that his involvement in providing the key codes to

the Elliots is not sufficiently material to show that he associated himself with the crime of

transporting and possessing the Escalade in another state. The standard for finding that a

defendant aided or abetted a crime is not a high one; “[c]onduct of the defendant or

special circumstances may justify the inference that the defendant associated himself with

the criminal objective.” Whitney, 229 F.3d at 1303 (quotation omitted). Furthermore,

“[i]t is well settled that knowledge by the defendant that the vehicle was moving in

interstate commerce is not an essential element of an offense under [the Dyer Act].”

United States v. Smith, 461 F.2d 246, 247 (10th Cir. 1972). This is because “[t]he

essence of the offense is the fraudulent scheme itself and the interstate element is only

included to provide a constitutional basis for the exercise of federal jurisdiction.” United

States v. Newson, 531 F.2d 979, 981 (10th Cir. 1976). Thus, it does not matter if Burks

knew the Escalade was going to be transported to Utah or end up in Martinez’s

possession. See also United States v. Hayes, 739 F.2d 236, 238 (6th Cir. 1984) (holding

that it is not necessary to prove an accomplice to a Dyer Act violation knew of the stolen

vehicle’s movement in interstate commerce). It is enough that Burks provided key codes

to the Elliots with full knowledge that the vehicles would be stolen and the relative scope

of their auto-theft ring.

                                             III

       Burks contests the district court’s restitution order requiring him to pay $1,000 to

the Escalade’s owners and $49,977 to the owners’ insurance company under the
                                            -13-
Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. We review an

MVRA restitution order for an abuse of discretion, although the application of the statute

is reviewed de novo and the factual findings for clear error. United States v. James, 564

F.3d 1237, 1242 (10th Cir. 2009).

       Under the MVRA, the district court must award restitution for “any offense . . .

against property under [United States Code Title 18] . . . in which an identifiable victim

suffered a physical injury or pecuniary loss.” 18 U.S.C. § 3663A(c)(1). Dyer Act

violations are clearly within that provision’s scope, and both the Escalade’s owner and

their insurance company are identifiable victims. Accordingly, restitution under the

MVRA is mandatory. The statute requires that the victims be compensated “the full

amount of their losses as determined by the court and without consideration of the

economic circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A).

       The district court determined that returning the vehicle to its owner was not

practical because the vehicle’s unsavory history had left it unsuitable for street use.

Based on this determination, the court was required to award “the greater of (I) the value

of the property on the date of the . . . loss . . .; or (II) the value of the property on the date

of sentencing.” § 3663A(b)(1)(B)(i). This amount was to be offset by “the value (as of

the date the property is returned) or any part of the property that is returned.”

§ 3663A(b)(1)(B)(ii). Taking this into account, the court determined the actual loss to the

victims to be $50,977: $1,000 to compensate the Escalade’s owners for the deductible

they paid and $49,977 to compensate the insurance company for replacing the Escalade.
                                               -14-
         On appeal, Burks argues that the district court erred by not subtracting the residual

value of the vehicle, which at the time of the order was not in the victims’ possession.

According to Burks, the vehicle was worth approximately $30,000 when it was

recovered; he contends that amount should have been subtracted from the loss to the

victims. But a restitution order under the MVRA “must be based on actual loss,” United

States v. Parker, 553 F.3d 1309, 1324 (10th Cir. 2009), and may only be offset by the

value of the property “returned” to the victim, § 3663A(b)(1)(B)(ii). Given this

mandate, the district court properly declined to offset the actual loss suffered by the

speculative value of the vehicle when returned to a victim in the future.2

                                              IV

         We AFFIRM Burks’ conviction and AFFIRM the district court’s restitution

order.




         2
         The district court noted that the government had agreed to auction the vehicle
and subtract that amount obtained from the amount owed. At oral argument, however,
both parties stated that after the briefs were filed, the government returned the Escalade
to the insurance company. Because the district court properly looked to the victims’
losses and not the speculative amount that might be recovered once the Escalade was
auctioned in its analysis, these new facts do not undermine the restitution order. Burks is
free to bring a separate action if the government violated its agreement to auction the
vehicle and apply the proceeds towards the $50,977 owed by Burks. However, any such
agreement is not before this court, and we decline to consider or rule upon it.

                                              -15-
