
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1339                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  MARK A. SKRODZKI,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Frank H. Freedman, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                         Torruella and Stahl, Circuit Judges,                                              ______________                           and DiClerico,* District Judge.                                           ______________                                 ____________________            Stewart T.  Graham, Jr., by  Appointment of the  Court, with  whom            _______________________        Graham & Graham was on brief for appellant.        _______________            C. Jeffrey Kinder, Assistant United  States Attorney, with whom A.            _________________                                               __        John Pappalardo, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                  November 17, 1993                                 ____________________        _____________________        *Of the District of New Hampshire, sitting by designation.                  DICLERICO,  District Judge.   The  defendant challenges                              ______________             the twenty-seven month sentence imposed under the Sentencing             Guidelines  after  he   pleaded  guilty  to  one   count  of             interstate transportation of stolen property in violation of             18  U.S.C.      2314,   and  four   counts  of   structuring             transactions to evade reporting requirements in violation of             31  U.S.C.     5324(a)(3).1    On  appeal,  he  asserts  the             district court improperly  (1) included the loss  of eighty-             three2 computer boards  ("boards") as relevant  conduct when             determining  his  sentence  and (2)  imposed  a  sentence in             excess of  Guideline provisions  by calculating  his offense             level based upon an inflated value of the victim's loss.  We             affirm.                                         I.                                        BACKGROUND                  Digital  Equipment  Corporation  ("DEC")  employed  the             defendant  as  a  packaging   engineer  at  its   Westfield,                                              ____________________             1The  court  dismissed   six  counts   of  the   Superseding             Indictment on motion of the United States.             2In  their   briefs,  the   defendant  and   the  government             mistakenly  stated that  the  number  of  boards  viewed  as             relevant conduct was  seventy-three.  At oral  argument, the             defendant conceded that  the appropriate number  was eighty-             three.                                         -2-                                          2             Massachusetts plant.  He earned an hourly wage of $15.50 for             an approximate annual salary of $32,240.                  Beginning in 1988 and continuing through 1990 and while             employed at DEC,  the defendant sold 241  DEC boards without             invoices,  receipts or  other  documentary  evidence of  the             transactions to Execudata,  a sole proprietorship owned  and             operated  by Peter  Marcantonio.   From  1989 through  1990,             Marcantonio  wire-transferred  $959,293 to  the  defendant's             account  at  United Cooperative  Bank  in West  Springfield,             Massachusetts  ("United Cooperative")  and  $196,473 to  the             defendant's  account at First  Union Bank in  Pompano Beach,             Florida ("First Union").   Unlike the defendant, Marcantonio             maintained business records that included the serial numbers             of the 241 DEC boards.                  After being alerted by United Cooperative of suspicious             cash withdrawals, the Internal Revenue Service ("IRS") began             investigating the defendant's activities.  During the course             of this  investigation, IRS  agents showed  DEC officials  a             list of serial numbers provided to them by Marcantonio.  DEC             security officers  reviewed the Westfield  plant's inventory             and discovered that  112 of the 241 boards  had been removed             from the  stockroom without authorization.   The  government                                         -3-                                          3             was unable  to trace  the other 129  boards to  determine if             they were stolen.                    After the  grand jury returned a Superseding Indictment             on  July 23,  1992,  the defendant  pleaded  guilty to  four             counts  of   structuring  currency  transactions   to  evade             reporting  requirements  and  to  one  count  of  interstate             transportation of stolen property.                  At the  defendant's sentencing hearing,  the government             conceded it could  trace to the Westfield  plant's stockroom             only   112  of  the   241  boards  the   defendant  sold  to             Marcantonio.  The  government also conceded that  a majority             of the  missing  boards were  used.   On  the basis  of  the             government's concessions, the district court found DEC could             not confirm the  number of missing boards that  were used or             new.    The  district court  concluded  that  the Sentencing             Guidelines  did not require a precise determination of DEC's             loss and  permitted it to  infer the  amount of loss  on the             basis  of  reasonable  reliable  information, including  the             scope of the operation.   The district court also noted that             the probation department  may have had the right  to use the             retail value of  the boards to value DEC's  loss.  The court             found the  loss was more  than $800,000, but did  not exceed                                         -4-                                          4             $1,489,746,  the retail  value  suggested  by  DEC  for  new             boards.3   The district  court adopted the  factual findings             and  Sentencing  Guideline  application  in the  presentence             report and determined that the defendant's offense level was             seventeen  and his  criminal  history category  was I.   See                                                                      ___             U.S.S.G.   2B1.2 (1992).4   The defendant was sentenced to a             term  of twenty-seven months'  imprisonment on one  count of             interstate transportation of stolen property and to the same             term  to  be  served concurrently  on  the  four structuring             counts.  This appeal ensued.                                              ____________________             3In  its brief,  the  government  states  that  the  figures             provided by DEC reflect the price for new boards.  Brief for             the Appellee at 5.             4U.S.S.G.   2B1.2 provides in pertinent part:                  "(a)  Base Offense Level:  4                  (b)  Specific Offense Characteristics                       (1)  If  the value of the stolen property exceeded                            $100, increase by the corresponding number of                            levels from the table in  2B1.1."             U.S.S.G.   2B1.1(b)(1) provides in pertinent part:             "If the  loss exceeded $100,  increase the offense  level as             follows:                  Loss (Apply the Greatest)          Increase in Level  .                  ____                               _________________             . .                  (N) More than $800,000             add 13 . . . ."                                         -5-                                          5                                         II.                                       DISCUSSION                  A.  Relevant Conduct                  The defendant asserts the government failed to prove by             a  preponderance of  the evidence  that eighty-three  boards             were stolen and  the court improperly included  those boards             as  relevant conduct in determining his sentence.  According             to the defendant, there are alternative explanations for the             disappearance  of the eighty-three boards.  He denies having             access  to all  areas in  which the  boards were  stored and             refutes  the hearsay  statements  to  the  contrary  by  DEC             employees  mentioned in  the presentence  report.   He  also             argues  that at the sentencing hearing, the court implicitly             found  the eighty-three  boards were  not  stolen.5   Absent                                              ____________________             5After the defendant  objected to the contents  of paragraph             19 of the presentence report, the court stated "I'm going to             allow paragraph 19 to remain intact.  Because once again, it             does not reveal that the boards  in fact were stolen.  So  I             don't see  any impact  on the  defendant in  that scenario."             While the defendant believes that the court implicitly found             that the boards were not stolen, the court was not precluded             from  later finding,  on  the  basis  of  other  information             contained in the presentence report, that the boards were in             fact  stolen.   It merely  noted that  paragraph 19  made no             mention that the eighty-three boards were stolen.  Paragraph             19 of the presentence report provides:                  IRS Agents contacted  DEC with the list  of serial                  numbers  of computer  boards  sold by  Skrodzki to                  Marcantonio.  After a thorough review of inventory                  records, DEC security  determined that 112  of the                  boards including the  29 listed in the  indictment                                         -6-                                          6             proof the  boards were  stolen, the  defendant contends  the             district  court could not  have considered them  as relevant             conduct.                  The district  court may include  relevant conduct--"the             same  course of  conduct or  common  scheme or  plan as  the             offense  of   conviction"--in  its   determination  of   the             applicable offense level.  U.S.S.G.   1B1.3(a)(2).  "For two             or more  offenses to constitute  part of a common  scheme or             plan, they must be substantially connected  to each other by             at least one  common factor, such as common  victims, common             accomplices,  common purpose,  or  similar modus  operandi."                                                        _______________             U.S.S.G.   1B1.3, comment. (n.9).  To sentence the defendant             for relevant conduct,  the court must be  satisfied that the             government  demonstrated by a  preponderance of the evidence             that  the  defendant   unlawfully  transported  eighty-three             stolen boards.   See  United States  v. Estrada-Molina,  931                              ___  ________________________________             F.2d 964, 966 (1st Cir. 1991) (government's demonstration by             a  preponderance of  evidence of  defendant's capability  of             producing   negotiated  but   undelivered  drugs   permitted                                              ____________________                  should  still  be  in   DEC  stockrooms.     These                  stockrooms  are not secure  areas and Skrodzki had                  access to any equipment  stored in the stockrooms.                  The computer boards  are no larger than a  11 x 14                  notebook  and  could  easily  be  concealed  in  a                  briefcase.   However,  their  retail value  ranges                  from $1,350 to $18,970 apiece.                                          -7-                                          7             district court to  impose a sentence that  included relevant             conduct).   We review  for clear  error the  court's finding             that the defendant  transported eighty-three stolen  boards.             See id.             ___ ___                  District courts are vested with discretion to determine             whether  to conduct  an evidentiary  hearing  on a  disputed             factual  issue.  Fed.  R. Crim.  P. 32(c)(3)(A)  ("The court             shall  afford the defendant  and the defendant's  counsel an             opportunity to comment  on the [presentence] report  and, in             the discretion of the court, to introduce testimony or other             information  relating  to  any  alleged  factual  inaccuracy             contained in it.");  see United States  v. Garcia, 954  F.2d                                  ___ ________________________             12, 19 (1st  Cir. 1992); United States v.  Gerante, 891 F.2d                                      _________________________             364, 367 (1st Cir. 1989).  Whether or not it determines that             an  evidentiary hearing  is  necessary, "[i]n  resolving any             reasonable  dispute  concerning a  factor  important to  the             sentencing determination,  the court  may consider  relevant             information without  regard to  its admissibility  under the             rules of  evidence applicable  at trial,  provided that  the             information has sufficient indicia of reliability to support             its  probable  accuracy."    U.S.S.G.     6A1.3(a),  (policy             statement  ("p.s.")); United  States v.  Zuleta-Alvarez, 922                                   _________________________________             F.2d  33, 35-36  (1st Cir.  1990)  (interpreting U.S.S.G.                                            -8-                                          8             6A1.3),  cert. denied, 111  S. Ct. 2039  (1991).  Therefore,                      _____ ______             the  court  may  consider  reliable  hearsay.    U.S.S.G.                6A1.3(a),  p.s.; id. comment.; United States v. Aymelek, 926                              ___           ________________________             F.2d  64, 68  (1st Cir.  1991);  Gerante, 891  F.2d at  367.                                              _______             Evidentiary hearings are not always necessary to demonstrate             reliability of the  evidence.  Hearsay statements  contained             in  presentence reports,  affidavits, documentary  exhibits,             and submissions  of counsel are  often a reliable  source of             information  to  resolve a  dispute.   See United  States v.                                                    ___ _________________             Shattuck,  961 F.2d  1012, 1015  (1st  Cir. 1992);  see also             ________                                            ___ ____             United States v. Silverman, 976 F.2d 1502, 1510-13 (6th Cir.             __________________________             1992), cert. denied, 113 S. Ct. 1595 (1993).                    _____ ______                  The defendant did not dispute that a DEC employee would             testify  to  the  statements  mentioned  in the  presentence             report concerning the source or  value of the boards nor did             he request  an evidentiary  hearing on  his alleged  greater             access  to the  stockrooms or  any other issue  in dispute.6             The defendant also has not asserted he was not provided with             an adequate opportunity to comment on the presentence report             and persuade the district court to follow his own version of                                              ____________________             6At  the   hearing,  defense  counsel   submitted  that  the             defendant was prepared to testify  that he did not have free             access  to the stockroom.  However,  no explicit request for             an evidentiary hearing was made by counsel.                                         -9-                                          9             the  facts and recommendations.   By expressly  adopting the             findings contained in  the presentence report,  the district             court  chose  to  credit  the  presentence  report  and  the             information contained  therein as having  sufficient indicia             of reliability.   See United States v. Curran, 967 F.2d 5, 6                               ___ _______________________             (1st  Cir. 1992) (court correctly relied on $10,000 interest             calculation  mentioned in  the  presentence report);  United                                                                   ______             States  v. Sherbak,  950  F.2d 1095,  1099  (5th Cir.  1992)             __________________             (court expressly adopted facts set forth in the  presentence             report as to  the amount of marijuana with  which one of the             defendants was involved, implicitly weighed the positions of             the  probation  department  and the  defense,  and  chose to             credit the probation  department's facts);  see also  United                                                         ___ ____  ______             States  v.  Gracia,  983  F.2d  625,  629  (5th  Cir.  1993)             __________________             ("Presentence reports generally bear  indicia of reliability             sufficient  to  permit  reliance thereon  at  sentencing.");             United States v.  Robins, 978 F.2d 881, 889  (5th Cir. 1992)             ________________________             (District court  may properly rely on  "presentence report's             construction  of  evidence  to resolve  a  factual  dispute,             rather  than relying  on  the  defendant's  version  of  the             facts."); United  States v. Wilkinson, 926 F.2d  22, 29 (1st                       ___________________________             Cir.)  ("[P]resentence   reports  are   normally  considered             reliable  sources  of  information,  upon  which  sentencing                                         -10-                                          10             courts  may rely .  . . ."),  cert. denied, 111  S. Ct. 2813                                           ____________             (1991).  The court relied on the statements contained in the             presentence  report  to  determine  whether  the  government             demonstrated  by a preponderance of the evidence the eighty-             three boards were stolen.7    The     presentence     report             mentioned several common  factors that  connect the  twenty-             nine  boards the  defendant knew  were  stolen and  admitted             transporting and the eighty-three boards the court  included             as relevant conduct.  All 112 of  the boards were taken from             DEC's  Westfield plant and  the defendant had  access to the             stockrooms where they were stored.  The defendant sold these             same  112 boards to  Marcantonio without providing  him with             any  receipts or  other  documentation.    In  exchange  for             boards,  Marcantonio   wire-transferred  over   one  million             dollars  to the  defendant's  United Cooperative  and  First             Union bank accounts.  When  he was questioned by the  IRS as             to the source of the boards, the defendant explained that he             had  purchased them  from an  individual,  Bill Harrison  of             Atlanta,  Georgia, but was unable to provide the agents with                                              ____________________             7No  remand is necessary  to require  the court  pursuant to             Fed. R.  Crim. P. 32(c)(3)(D)  to attach its findings  as to             disputed issues to the presentence report, see United States                                                        ___ _____________             v. Gerante, 891  F.2d 364, 370 (1st Cir.  1989), because the             __________             court,  here, expressly adopted  the facts as  determined in             the  presentence report.  See United  States v. Sherbak, 950                                       ___ _________________________             F.2d 1095, 1099 (5th Cir. 1992).                                         -11-                                          11             Harrison's address or phone number, to produce any receipts,             or  otherwise  to verify  the  purchases.   The  IRS  agents             attempted to verify  the purchases but were unable  to do so             because  none of the  fifteen William Harrisons  of Atlanta,             Georgia, who were contacted had ever heard of the defendant.             The defendant  also told  IRS agents  that he had  purchased             boards from  American Exchange of  Worcester, Massachusetts.             Once again, investigators were unable to verify the validity             of the  defendant's  explanation  because  no  such  company             exists  in Worcester.   Furthermore, during the  time period             that he sold  boards to Marcantonio, the  defendant admitted             to structuring  cash withdrawals  so as  to evade  reporting             requirements.                  On  the basis  of  the  information  contained  in  the             presentence report,  the court could  have reasonably  found             the government proved by a preponderance of the evidence the             eighty-three boards were stolen and the defendant engaged in             the "same course of conduct or common scheme or plan  as the             offense of  conviction."   See U.S.S.G.    1B1.3(a)(2).   It                                        ___             properly  included  the   boards  as  relevant  conduct   of             interstate transportation of stolen property.  The defendant             has failed to establish that the district court's finding is             clearly erroneous.                                         -12-                                          12                  B.  Valuing the loss                  The  defendant   next  contends   the  district   court             improperly  inflated  the  value of  the  victim's  loss and             imposed an illegal sentence.  Because DEC does not sell used             boards,  the defendant asserts  no fair market  value exists             for used boards and therefore the court should have employed             the   boards'  cost  of  production  to  value  DEC's  loss.             According to the defendant, if the court finds that a market             value can be  established to value  DEC's loss, that  market             value should  be  based on  the  secondary market  for  used             boards.                  We review  de novo the district  court's interpretation                             __ ____             and application of the Sentencing Guidelines.  United States                                                            _____________             v. Mullins, 992 F.2d 1472, 1478-79 (9th Cir.), cert. denied,             __________                                     _____ ______             113  S. Ct. 2997 (1993); United  States v. St. Cyr, 977 F.2d                                      _________________________             698,  701  (1st  Cir.  1992).     After  we  determine   the             Guideline's  meaning  and  scope,  we  review  the  district             court's factual  findings underlying  the sentence  only for             clear error.  Mullins, 992 F.2d  at 1479; St. Cyr, 977  F.2d                           _______                     _______             at 701; see  also United States  v. Pavao,  948 F.2d 74,  77                     ___  ____ _______________________             (1st Cir. 1991).                  A  product's  fair  market  value  ordinarily  is   the             appropriate  value of the victim's loss.   U.S.S.G.   2B1.1,                                         -13-                                          13             comment.  (n.2); see  United States  v.  Colletti, 984  F.2d                              ___  ___________________________             1339, 1345 (3d Cir. 1992) (finding made pursuant to U.S.S.G.                2B1.1 that  stolen gems  had  an actual  market value  of             $626,000  rather than  a  discounted  value  for  which  the             retailer would sell  them or the wholesale  replacement cost             of  the gems not clearly  erroneous); see also United States                                                   ___ ____ _____________             v. Larracuente, 952 F.2d 672,  674-75 (2d Cir. 1992)  (court             ______________             correctly found pursuant to  U.S.S.G.   2B5.3 that value  of             high quality  "bootlegged" videotapes  was the  same as  the             retail price  of licensed  copies).  "The  loss need  not be             determined  with precision,  and may  be  inferred from  any             reasonably  reliable  information available,  including  the             scope of the operation."   U.S.S.G.   2B1.1, comment. (n.3);             see  Mullins, 992  F.2d  at 1479  (citing U.S.S.G.    2B1.1,             ___  _______             comment.  (n.3));  Pavao,  948  F.2d  at  77  (same).    The                                _____             defendant bears  a heavy  burden of  demonstrating that  the             district  court's finding is  clearly erroneous in  light of             the   Guideline's  allowance  that  the  loss  need  not  be             determined with precision.                    The presentence  report, the  defendant's objection  to             the  report, and  the submissions  of  counsel provided  the             district  court with the following information from which it             could determine  the value of  the loss.  Although  it could                                         -14-                                          14             not determine  the  number of  boards  that were  used,  DEC             provided information  as stated  in  the presentence  report             that  the  retail value  of  the 112  missing  boards ranged             between $1350 and $18,970 per  board.  DEC reported that the             fair  market value of  the twenty-nine boards  the defendant             admitted  he knew were  stolen and transported  was $278,800             and  the  value  of the  eighty-three  boards  considered as             relevant  conduct  was  $1,210,946.    The  defendant's bank             statements also revealed that during the time he sold boards             to  Marcantonio, he  received over  one  million dollars  in             payment.   In his objection  to the presentence  report, the             defendant   supplied   the  court   with   information  that             Marcantonio sold  used boards  on the  secondary market  for             between $5200  and  $6500  per  board.   At  the  sentencing             hearing, defendant's counsel proffered that the proper value             of  the boards was  DEC's cost of  production, approximately             $600 per  board, and the government conceded that a majority             of the boards were used.                    The district court  had a broad range of  values before             it  and  made  its  determination   on  the  basis  of  that             information.  While the district  court did not set forth in             great detail the method it used to calculate the loss, there             was  adequate  evidence  in  the  record  for  the court  to                                         -15-                                          15             determine  that the  value of  the  missing boards  exceeded             $800,000.   See Colletti, 984  F.2d at 1345.   The court did                         ___ ________             not need  to value  the boards precisely  and could  use the             information  before it  to infer  that the  loss of  the 112             boards  exceeded $800,000.   See U.S.S.G.    2B1.1, comment.                                          ___             (n.3).  We  cannot say that the district  court's finding is             clearly erroneous.       For these reasons,  the judgment of             the district court is                  Affirmed.                  _________                                         -16-                                          16
