
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-1209                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                  FIDEL R. TUTIVEN,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. A. David Mazzone, Senior U.S. District Judge]                                         __________________________                                                                                      ____________________                              Torruella, Selya and Cyr,                                   Circuit Judges.                                   ______________                                                                                      ____________________             Peter B. Krupp for appellant.             ______________             Timothy Q.  Feeley, Assistant  United States Attorney,  with whom             __________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                                                                      ____________________                                  November 14, 1994                                                                                      ____________________                    CYR, Circuit Judge.  Defendant Fidel R. Tutiven alleges                    CYR, Circuit Judge.                         _____________          error  in  various trial  court  rulings,  and appeals  from  the          district  court  judgment entered  following  his  conviction and          sentence  on fourteen felony charges.  As our review discloses no          error, we affirm the district court judgment.                                            I                                          I                                     BACKGROUND1                                     BACKGROUND                                     __________                    During  the  relevant  eleven-month  period     between          April 1992 and  February 1993    while employed as  a waiter at a          Marriott Hotel, Tutiven conducted a part-time criminal enterprise          selling  stolen  motor  vehicles to  a  Massachusetts  automobile          dealership  at bargain  prices  ranging from  $7,900  for a  1991          Toyota  Corolla to  $21,500 for  a 1991  Mercedes Benz.   Tutiven          represented to the  buyer, Clair  Motors, that the  first car,  a          1991 Nissan 240  SX, belonged  to a cousin,  and that  subsequent          vehicles  had been obtained from  unidentified dealers in the New          York-New Jersey area who specialized in late-model cars purchased          from  financially distressed  owners who  responded to  newspaper          ads.                     Tutiven presented Clair Motors with what appeared to be          valid title  certificates correctly describing  the vehicles  and          bearing  the same vehicle identification numbers ("VINs") appear-                                        ____________________               1The  facts are recited in  the light most  favorable to the          verdicts.  United States  v. Tejeda, 974 F.2d 210,  212 (1st Cir.                     _____________     ______          1992).                                          2          ing on the  vehicles Tutiven delivered to Clair  Motors.2  It was          stipulated that  the fourteen vehicles identified  in the indict-          ment had been stolen before Tutiven came into possession.                      Tutiven's  defense was  that he  had been  duped  by an          expert  VIN-switching scheme and  did not  know the  vehicles had          been stolen.  At  trial the defense emphasized that  the apparent          comportment among VINs, vehicles  and title certificates had been          adequate to allay  any suspicions  on the part  of Clair  Motors.          Indeed, an  automobile-theft expert  testified that  although the          vehicles  Tutiven  sold to  Clair Motors  did  not bear  the VINs          originally  assigned  by  their  manufacturers, it  had  taken  a          sophisticated heat and chemical restoration process to remove the          false  confidential  VINs  which  had been  superimposed  on  the          originals.   The  disclosure of  the  original VINs  enabled  the          authorities  to determine  that  all fourteen  vehicles had  been          stolen.   Further investigation  established that  "switches" had          been performed on all the vehicles, sometime before their sale to                                        ____________________               2The VIN is a unique series of seventeen numbers and letters          which the manufacturer must assign to  each vehicle it assembles.          The VIN  provides an  alphanumeric description of  the particular          vehicle to which it has been assigned.  Normally it is affixed at          three locations:   on a narrow  metal plate on  top of the  dash-          board,  near the base of the  windshield (the public VIN); on the          federal  certification sticker  or decal  placed on  the driver's          side door-jamb (the  federal certification VIN);  and on a  metal          surface inside the vehicle, usually within the engine compartment          (the confidential VIN).  All vehicles bear the public VIN and the          federal  certification VIN; ninety-five  percent bear a confiden-          tial VIN.  The confidential VIN, which is stamped into  the metal          of the  vehicle, is the most  difficult to locate and  alter.  No          two vehicles bear the same valid VIN.                                          3          Clair Motors.3                      Tutiven  was  arrested  shortly  after  law enforcement          authorities  learned that all fourteen vehicles  he sold to Clair          Motors had been stolen.   Within hours of the  arrest, the police          executed a search warrant  at Tutiven's residence which disclosed          a large  cardboard box  containing only implements  and materials                                             ____          suitable for obliterating, altering, and replacing VINs, together          with a small collection of Massachusetts, New Jersey and New York          license plates.4                    A  federal grand  jury  returned  a  twenty-seven-count                                        ____________________               3Automobile dealerships routinely consult computer databases          on  stolen vehicles before purchasing a used vehicle.  The predi-          cate step  in a "switch" scheme  is to locate  a "clean" vehicle,          i.e.,  one which  has  not been  reported  stolen but  is  nearly          ____          identical  to the stolen vehicle in make, year, color, and style.          The valid title certificate issued  to the "clean" vehicle  bears          its true VIN.  The VIN assigned to the "clean"  vehicle is super-          imposed  on the  true  VIN in  the  stolen vehicle.    The stolen          vehicle is then given title  documents matching its "clean" look-          alike.               An  effective VIN-altering  and  title-switching scheme  re-          quires clean vehicles not in circulation.  At least  two types of          clean  vehicles  meet  this  requirement:    vehicles  previously          exported outside the United States and scrapped vehicles.  When a          stolen vehicle has been  given the original VIN and  valid papers          describing an exported vehicle, the stolen  car is said to be the          subject  of an  "export  switch;" a  scrapped  car results  in  a          "salvage  switch."   The  Tutiven  vehicles  involved export  and          salvage switches.                 4The  only  tools  and  materials  discovered  at  Tutiven's          residence  were a pop rivet  gun, pop rivets,  an electric drill,          black mesh body fiber,  a sponge smothie, two tubes  of silicone,          and a can of scratch filler primer.  Although the defense  empha-          sized  at trial that each tool had  a licit purpose, there was no                               ____          evidence that the tools and materials collectively were suited to          any  particular purpose  other  than altering  VINs.   Each  tool          seized  had  a VIN-altering  function; none  was unsuited  to VIN          altering.  Finally, their common location with the license plates          provided further  support for  the inference that  the tools  and          materials were for use on motor vehicles.                                            4          indictment on April 20, 1993, charging Tutiven with possessing or          selling stolen motor  vehicles which had crossed  state lines, in          violation of  18 U.S.C.   2313,  and with  possessing, for  sale,          motor vehicles whose original VINs had been altered, in violation          of  18 U.S.C.   2321.   The  government later  dismissed thirteen          counts,  leaving  fourteen for  trial:    unlawful possession  of          thirteen  separate  stolen motor  vehicles,  in  violation of  18          U.S.C.   2313, and Count XIV, unlawful possession of a fourteenth          vehicle bearing an altered VIN, in violation of 18 U.S.C.   2321.          The district  court denied Tutiven's motion in  limine to exclude          the tools, materials and license plates.                    For  the most  part,  the evidence  presented at  trial          established that the VIN alterations on the Tutiven vehicles were          detectable  only  by  experts,  through a  process  of  grinding,          applying chemicals, and heating  the metal surfaces on which  the          VINs  were stamped.    A VIN  expert  and a  Massachusetts  state          trooper  testified that the  VIN alterations on  the two vehicles          involved in Counts I and XII were discernible by the trained eye,          without  resort  to special  processes.    The testimony  further          established  that letters in the  VIN on the  vehicle involved in          Count XIV  described a vehicle  model different  from the  stolen          vehicle to which  it was attached,  a virtual impossibility  were          the VIN valid.  The jury returned guilty verdicts on all fourteen          counts and  the district court subsequently  sentenced Tutiven to          twenty-seven months' imprisonment.                      Tutiven mounts  three challenges on appeal.   First, he                                          5          claims  that the  district  court committed  reversible error  by          admitting  in evidence  the seized  tools, materials  and license          plates, which invited the jury to draw only  impermissible infer-          ences.   See Fed. R. Evid. 404(b).  Second, Tutiven contends that                   ___          the jury instruction relating to  the element of "knowledge"  was          deficient because  the  court  refused  to  define  "negligence."          Third,  he argues  that a  sentencing enhancement  under U.S.S.G.            2B1.1(b)(5)(B)  (the  so-called "in-the-business"  enhancement)          was improper, in that there was no evidence that Tutiven knowing-                                                                   ________          ly received stolen property.            __                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   The Tools, Materials and License Plates           A.   The Tools, Materials and License Plates               _______________________________________                    Tutiven first  claims that no  relevant inference could          be  drawn from his possession of the tools, materials and license          plates  seized from  his home  except by  indulging impermissible          predicate inferences based on  bad character and criminal propen-          sity.  See  Fed. R.  Evid. 404(b).5   Alternatively, he  contends                 ___                                        ____________________               5Fed. R. Evid. 404(b) provides:                    Evidence of other crimes,  wrongs, or acts is                    not admissible  to prove the  character of  a                    person in order to  show action in conformity                    therewith.   It  may, however,  be admissible                    for other purposes, such as  proof of motive,                    opportunity, intent, preparation, plan, know-                    ledge,  identity,  or absence  of  mistake or                    accident, provided  that upon request  by the                    accused,  the prosecution in  a criminal case                    shall provide reasonable notice in advance of                                          6          that  any relevance the seized evidence may have had was substan-          tially outweighed by  the danger  of unfair prejudice.   See  id.                                                                   ___  ___          403.6                 1.   Fed. R. Evid. 404(b):  "Other Acts" Evidence               1.   Fed. R. Evid. 404(b):  "Other Acts" Evidence                    ____________________________________________                    The district  court admitted  the tools,  materials and          license plates for the  exclusive purpose of evidencing Tutiven's          knowledge that the fourteen vehicles had been stolen and that the          VIN  on the  fourteenth  vehicle had  been  altered.   The  court          repeatedly  cautioned the jury accordingly.7  Tutiven nonetheless                                        ____________________                    trial,  or during trial  if the court excuses                    pretrial notice  on good cause shown,  of the                    general nature  of any such  evidence it  in-                    tends to introduce at trial.                 6Fed. R. Evid. 403 provides:                    Although relevant, evidence  may be  excluded                    if its probative  value is substantially out-                    weighed  by the  danger of  unfair prejudice,                    confusion  of the  issues, or  misleading the                    jury,  or by  considerations of  undue delay,                    waste  of time,  or needless  presentation of                    cumulative evidence.               7For example,  the final jury charge  included the following          instruction:                     I just want to  remind you that the defendant                    is  charged with  possessing a  motor vehicle                    knowing that motor  vehicle had been  stolen.                    _______                    And he  was charged with  possessing a  motor                    vehicle that had been  altered with intent to                    sell, an altered identification number [sic].                    Knowing [sic] that that identification number                    _______                    had been altered.                    He  is not charged with altering.   He is not                    charged with stealing the car.  The tools and                    materials which have  just been admitted,  to                                          7          insists on  appeal that Rule 404(b) absolutely  barred the seized          evidence  because  his possession  of  the  tools, materials  and          license plates  enabled no permissible inference  relevant to his          knowledge that the  vehicles had  been stolen or  their VINs  al-          tered.8                                        ____________________                    the extent that you give them any weight, are                    to  be considered by you only on the issue of                    knowledge.   They  are  admitted only  on the                    government's  theory  that the  possession by                    the  defendant Mr. Tutiven of these tools and                    materials reflect in some way  on whether Mr.                                      __ ____ ___  __ _______ ___                    Tutiven  knew the  motor vehicles  charged in                    _______  ____ ___  _____ ________  _______ __                    the  first 13 counts  in the  indictment were                    ___  _____ __ ______  __ ___  __________ ____                    stolen and whether Mr.  Tutiven knew that the                    ______ ___ _______ ___  _______ ____ ____ ___                    vehicle  identification  number  on the  1991                    _______  ______________  ______  __ ___  ____                    Toyota Corolla  charged in Count 14  had been                    ______ _______  _______ __ _____ __  ___ ____                    altered.                    _______                    So the tools are there to help you decide, if                    you give the tools any weight at all, whether                    or  not Mr.  Tutiven knew  that the  cars had                                         ____                    been stolen and knew that  the identification                                    ____                    number in Count 14 had been altered.  (empha-                    sis added).                 8Tutiven further  contends that  any inference that  he knew          the  vehicles were  stolen must  necessarily have  been based  on          conjecture.   On the  contrary, a  fair and  reasonable inference          that Tutiven knew the vehicles were stolen would proceed directly          from the foundation inference  discussed in the text below.   See                   __________                             ____          ___          infra p. 11.          _____               Nor  was there  any  need for  the  jury to  contravene  its          instructions, or infringe the stipulation between the parties, by          indulging  a predicate  inference that  Tutiven either  stole the          vehicles or altered their VINs.  It was sufficient that Tutiven's          possession of  VIN-altering tools and  materials, in  combination          with abundant  other circumstantial evidence, see  note 11 infra,                                                        ___          _____          fairly permitted the synergistic  inference that Tutiven knew the          illicit  purpose to which the  tools and materials  were  suited.          Thus,  it was  the  close circumstantial  link between  Tutiven's          possession of the seized  VIN-altering equipment and the numerous                                                           ___          VIN-altered vehicles he sold during this time frame which enabled          the jury rationally to accord the seized evidence probative value          on the central issue of Tutiven's knowledge.                                          8                    Evidence  Rule  404(b)  absolutely  bars  "other  acts"          evidence  relevant  only  to  prove criminal  propensity  or  bad          character.  United States  v. Tuesta-Toro, 29 F.3d 771,  775 (1st                      _____________     ___________          Cir. 1994).  Its absolute bar is implicated, however, only if the                           ________ ___          challenged "other  crimes, wrongs,  or acts" are  relevant exclu-                                                                     ______          sively  to instigate  an  inference that  the  defendant is  more          ______          likely to have acted in similar fashion by committing the offense          for which  he is on trial.   See, e.g., United  States v. Moccia,                                       ___  ____  ______________    ______          681 F.2d  61, 63  (1st  Cir. 1982)  (citing Jack  B. Weinstein  &          Margaret A.  Berger, Weinstein's  Evidence,   404-26  (1980); see                               _____________________                    ___          also  United States v. Ferrer-Cruz,  899 F.2d 135,  137 (1st Cir.          ____  _____________    ___________          1990).  Plainly, by its very terms, see note 5 supra, Rule 404(b)                                              ___        _____          interposes no absolute  bar to circumstantial  evidence intrinsic                        ________  ___                             _________          to  the crime for  which the defendant  is on trial,  but only to          evidence of "other crimes, wrongs, or acts" whose probative value                       _____          exclusively  depends  upon  a  forbidden  inference  of  criminal          ___________          propensity.   We recently  dealt with a  prototypical Rule 404(b)          challenge which illustrates the point.                    In United  States v.  Arias-Montoya, 967 F.2d  708 (1st                       ______________     _____________          Cir. 1992),  we held  that the  defendant's prior  conviction for          cocaine possession was barred  by Rule 404(b) since it  was rele-                                 ______          vant  only to establish an  evidentiary predicate for a forbidden                ____          "criminal propensity" inference:   that defendant must have known          the trunk of the vehicle he was driving contained cocaine because          he had possessed cocaine on a prior occasion altogether unrelated                                        _____          to the conduct  for which he was on  trial.  Id. at 709-714.   By                                                       ___                                          9          contrast,  the probative  value  of the  intrinsic evidence  that          Tutiven possessed  VIN-altering tools and materials,  at or about                                                                __ __ _____          the time and  place these  offenses allegedly took  place, in  no          ___ ____ ___  _____ _____  ________ _________ ____  _____          respect  depended upon  an  impermissible  "criminal  propensity"          inference.   Instead, Tutiven's possession  of VIN-altering tools          and  materials, like an alleged burglar's contemporaneous posses-          sion of burglary tools, see, e.g., State v. Romano, 456 A.2d 746,                                  ___  ____  _____    ______          760 (R.I.  1983) (upholding  admission of burglary  tools, seized          from   defendant's   garage,   as  circumstantial   evidence   of          defendant's  role  in alleged  conspiracy  to  break and  enter),          constituted intrinsic circumstantial evidence  directly probative                      _________                          ________          of, inter alia, see  infra note 12, Tutiven's knowledge  that the              _____ ____  ___  _____          vehicles he sold to Clair Motors had been stolen.   The cases are          legion  in which  similar intrinsic  circumstantial  evidence has          been admitted  without occasioning  either challenge  or analysis          under Rule  404(b).  See,  e.g., United  States v. Ford,  22 F.3d                               ___   ____  ______  ______    ____          374, 381  (1st  Cir. 1994) (upholding admission of  evidence that          defendant  in  drug  case  possessed  instructional materials  on          methamphetamine manufacture); United States v. Nason, 9 F.3d 155,                                        ______ ______    _____          162 (1st  Cir. 1993)  (upholding admission  of scales,  bags, and          baggies seized  from motel  room registered to  defendant's girl-          friend at time of defendant's arrest on the marijuana charges for          which he was on  trial); United States  v. Cresta, 825 F.2d  538,                                   ______ ______     ______          554 (1st  Cir. 1987) (upholding admission of weapons possessed by          defendant during the  drug smuggling  crime for which  he was  on          trial).                                            10                    Tutiven relies  on United States v.  DeVillio, 983 F.2d                                       ______ ______     ________          1185  (2d Cir.  1993), as  support for  the claim  that  the VIN-          altering tools and materials were barred by Rule 404(b).  But the          Devillio  court merely ruled that the trial court erred in admit-          ________          ting burglary tools as evidence of  the modus operandi of the two                                                  _____ ________          appellants who  were charged only with  transporting stolen vehi-                                                  ____________          cles  and stolen goods.  Id. at  1188.  The Second Circuit simply                                   __          held  that the burglary tools bore no special relevance to appel-          lants' modus operandi in  transporting stolen vehicles and goods.                 _____ ________          Id. at 1194.  The court left no doubt, however, that the burglary          ___          tools were  highly  probative evidence  against  appellants'  co-          defendants, who were on trial for burglary.  See id.                                                         ___ ___                    The absolute bar to admission under Rule 404(b) was not          implicated in the present  case since it was unnecessary  for the          jury to  resort to  an impermissible  propensity-based inference.          Rather,  the  seized evidence  would  enable a  rational  jury             relying  on its  common sense  and  collective experience9     to          draw  the  relevant foundation  inference  that  a defendant  who                              __________          possessed VIN-altering tools and materials (and license  plates),          at or about  the time  he sold fourteen  stolen vehicles  bearing          __ __ _____  ___ ____  __ ____ ________  ______ ________  _______                                        ____________________               9See, e.g., United States v. Reyes-Mercado, 22 F.3d 363, 367                ___  ____  _____________    _____________          (1st Cir. 1994)  ("[U]ltimately, whether or not the gun[ ] helped          [defendant] commit the drug crime is a matter for a jury applying          common-sense  theories of human nature and causation") (citations          omitted);  United States v. O'Brien,  14 F.3d 703,  708 (1st Cir.                     _____________    _______          1994)  ("[I]n .  . .  choosing from  among competing  inferences,          jurors are entitled  to take full  advantage of their  collective          experience  and common sense").  (Citing  United States v. Smith,                                                    _____________    _____          680  F.2d 255, 260 (1st  Cir. 1982), cert.  denied, 459 U.S. 1110                                               _____  ______          (1983)).                                            11          altered  VINs, was somewhat less likely to have been the innocent          _______  ____                                            ________          victim of a  VIN-altering scheme  than would a  seller of  stolen          ______          vehicles who did not possess such paraphernalia.                 2.   Fed. R. Evid. 403:  Unfair Prejudice               2.   Fed. R. Evid. 403:  Unfair Prejudice                    ____________________________________                    Although  the seized  evidence  did  not implicate  the          absolute bar imposed  by Rule 404(b), we  must consider Tutiven's          companion  claim that its admission  in evidence on  the issue of          Tutiven's  knowledge  that the  vehicles  were  stolen could  not          survive the  relevancy-prejudice  balancing required  under  Rule          403.  Tuesta-Toro, 29 F.3d at 775.                ___________                    "[T]he  threshold  for  relevance  is  very  low  under          Federal  Rule of Evidence 401.   Evidence is  relevant under Rule          401 if  it has 'any  tendency to make  the existence of  any fact          that is of consequence to the determination of the action more or          less  probable than it would  be without the  evidence.'"  United                                                                     ______          States  v. Cotto-Aponte,  30 F.3d  4, 6  (1st Cir.  1994) (citing          ______     ____________          United States v.  Nason, 9 F.3d 155, 162  (1st Cir. 1993)), cert.          _____________     _____                                     _____          denied,  114  S. Ct.  1331 (1994).    These tools,  materials and          ______          license  plates readily  met the  "any tendency" test  under Rule          401.  See supra p. 11; infra pp. 13-14; note 11 infra.                ___ _____        _____                    _____                    We  are reminded, nonetheless,  that Rule 403 "excludes          even  evidence  that  is  relevant through  allowable  chains  of          inference  where the  probative value of  that evidence  is 'sub-          stantially outweighed,'  [inter alia,]  by the risks  of [unfair]                                    _____ ____          prejudice . . . ."  Ferrer-Cruz, 899 F.2d at 138; see also United                              ___________                   ___ ____ ______          States v. Nickens, 955 F.2d 112,  125 (1st Cir. 1992).   However,          ______    _______                                          12          "[o]nly rarely    and in extraordinarily compelling circumstances             will  we, from the vista of a cold appellate record, reverse a          district  court's on-the-spot  judgment  concerning the  relative          weighing  of  probative value  and  unfair effect."    Freeman v.                                                                 _______          Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988), quoted in          _________________                                       ______ __          United States v. Desmarais, 938 F.2d 347, 351 (1st Cir. 1991).          _____________    _________                    A  recent case  illuminates the  pertinent relationship          between  the Rule 404(b) analysis undertaken above, see supra pp.                                                              ___ _____          7-11, and  the relevancy-prejudice balancing required  under Rule          403.  In  United States v. Hahn,  17 F.3d 502 (1st Cir.  1994), a                    _____________    ____          search of  defendant's automobile    abandoned  during the course          of  the alleged  drug conspiracy  for  which he  was on  trial             netted  a handgun,  ammunition, and  a round-trip  airline ticket          between destinations material to the scope of the conspiracy.  As          the seized  evidence constituted classic  circumstantial evidence          intrinsic to the alleged  offense for which the defendant  was on          _________          trial, it was challenged  and evaluated only under Rules  401 and          403.  Id.  at 509-10.  Evidence that the  same defendant had been                ___          found  in possession of a licensed firearm on another occasion in          the course  of the  alleged conspiracy  was challenged  as "other          acts" evidence under  Rule 404(b).  Id. at 508-09.   We held that                                              ___          Rule  404(b) posed no absolute  bar because (i)  "possession of a          licensed  firearm  is neither  a bad  act  nor indicative  of bad          character"  and (ii)  the evidence  was directly  relevant, inter                                                                      _____          alia, to the geographic  scope of the alleged conspiracy  and the          ____          defendant's role  in it.   Id. at 509.   In the ensuing  Rule 403                                     ___                                          13          balancing, we went on to make clear that any risk of  "prejudice"          from the evidence that Hahn possessed a licensed firearm "did not          derive  unfairly  from  the  challenged evidence  itself."    Id.                  ________                                              ___          (emphasis added).                      And  so it is with the evidence admitted in the present          case,  which permitted  the jury  rationally and fairly  to infer                                            __________     ______          that Tutiven's  contemporaneous possession of tools and materials          well-suited to VIN altering made it  less likely that he had been          duped  by an  expert VIN-altering  scheme.   See, e.g.,  State v.                                                       ___  ____   _____          Meeks,  65 N.W. 2d 76, 78-79, 82 (Iowa 1954) (upholding admission          _____          of  evidence of  "various  instruments used  by  a typical  check          artist,"  possessed by  defendant  at time  of  arrest, to  rebut          defense that he had  not known that the forged check he allegedly          uttered  had been forged).10   The  tools, materials  and license          plates seized  from Tutiven's residence provided  cogent evidence          tending  to preempt  an essential  premise implicit  in Tutiven's          defense:   that  the  only way  Tutiven could  have known  of the                                ____ ___  _______ _____  ____ _____          sophisticated VIN  alterations on the stolen  vehicles would have          been by visual examination, but since he was not a  VIN expert he          could not  have known the vehicles were  stolen.  The jury fairly          could infer from the challenged evidence, however, that  a person              expert or not     who possessed VIN-altering equipment during              ______ __ ___         _________                                        ____________________               10The Tutiven jury heard testimony that the collective tools          and materials were almost uniquely suited to a use (VIN altering)          intimately related  to the  "switching" scheme.   Tutiven's resi-          dence  contained no other  automobile-related tools or materials.                           __ _____          The only  other items seized  were license plates  from jurisdic-          tions  where Tutiven's stolen cars  originated.  See  also note 4                                                           ___  ____          supra.          _____                                          14          the time frame  in which  he sold numerous  stolen vehicles  with          altered VINs was somewhat more likely to have known the equipment                                                        _____          was  amenable  to use  in altering  VINs  and therefore  that the          vehicles  were stolen, there being  no other apparent purpose for          VIN alterations.11                      An inference that Tutiven  knew the tools and materials          seized  from  his home  were suited  to  VIN altering  would tend          rather strongly  to dispel  the no-knowledge premise  in his  de-          fense.    Moreover,  in  evincing Tutiven's  knowledge  that  the          vehicles were stolen, the challenged evidence entailed no signif-          icant risk  of unfair  prejudice since  simple possession  of the                         ______          tools and materials  was neither a bad act  nor indicative of bad          character.  See Hahn, 17 F.3d at 509.  Finally, the jury instruc-                      ___ ____          tions  given  by the  district court,  see,  e.g., supra  note 7,                                                 ___   ____  _____          provided  further  insulation  against   unfair  propensity-based          inferences by the jury.  See Yates v. Evatt, 500 U.S. 391, 403-04                                   ___ _____    _____                                        ____________________               11The seized evidence fit hand and glove with the cumulative          array of  circumstantial evidence underpinning the  sturdy infer-          ence  that  Tutiven knew  the vehicles  were  stolen.   The other          circumstantial  evidence  included  Tutiven's  sale  of  fourteen          stolen vehicles to Clair Motors within eleven months, all bearing          altered  VINs, for  which Tutiven  realized profits  ranging from          $6,500 to $1,600 per vehicle despite the fact that he was able to          sell the vehicles to Clair Motors at bargain prices.  See Common-                                                                ___ _______          wealth v.  Boris, 58 N.E. 2d  8, 12 (Mass. 1944)  (low price paid          ______     _____          for foodstuffs  admitted as evidence  that defendant knew  he was          acquiring  stolen goods).   The  evidence demonstrated  that when          Tutiven went to  Clair Motors he  was accompanied by  individuals          whom  he falsely  introduced  as  the  owners  of  the  vehicles.          Finally, the evidence showed that  the title certificates to most          of  the vehicles had  been issued within  a month  prior to their          sale  to Clair Motors, that Tutiven conducted all his business in          cash, and  that he  was able,  in  very short  order, to  produce          vehicles of the type currently in greatest demand.                                           15          (1991) (reviewing court normally  presumes jury followed instruc-          tions); United States v. Daigle, 14 F.3d 684, 690 (1st Cir. 1994)                  _____________    ______          (holding that cautionary jury instruction minimized possible pre-          judicial impact from documentary exhibit) (Rule 403).12            B.   U.S.S.G.   2B1.1(b)(5)(B):   The "In-the-Business"  Enhance-          B.   U.S.S.G.   2B1.1(b)(5)(B):   The "In-the-Business"  Enhance-               ____________________________________________________________               ment               ment               ____                    As  Tutiven failed  to  preserve the  issue below,  the          sentencing  enhancement  under U.S.S.G.    2B1.1(b)(5)(B)  is re-          viewed for "plain error."   Fed. R. Crim. P. 52(b).13   Thus, the          defendant must  show that the sentencing  court committed "clear"          or  "obvious"  error affecting  a  "substantial  right."   United                                                                     ______          States v.  Olano, 113 S. Ct. 1770, 1776-77 (1993);  United States          ______     _____                                    _____________          v. Colon-Pagan, 1  F. 3d 80, 81 (1st Cir.  1993).  "[E]rror rises             ___________          to this level  only when it  is so shocking  that [it]  seriously          affect[ed] the  fundamental fairness  and basic integrity  of the          proceedings conducted below." United States v. Ortiz, 23 F.3d 21,                                        _____________    _____          26 (1st Cir.  1994) (citing United  States v. Hodge-Balwing,  952                                      ______________    _____________                                        ____________________               12The district  court instructed  the jury,  consistent with          the parties' stipulation, that the tools and materials were to be          considered only in determining  whether Tutiven knew the vehicles          had been stolen and that the vehicle in Count XIV bore an altered          VIN.   Among  other  relevant inferences  permissible under  Rule          404(b)  but for  this stipulation,  were "opportunity,"  "prepar-                  ___ ___          ation" and "plan."  See Fed. R. Evid. 404(b).                              ___               13Tutiven urges that we review the sentencing enhancement de                                                                         __          novo because  it touches upon "interpretive  questions" under the          ____          Sentencing Guidelines.  The matter at issue required no guideline          interpretation, however, only straightforward fact-finding by the          sentencing court, which, even if preserved, we would  review only          for clear  error.  United States v. David, 940 F.2d 722, 739 (1st                             _____________    _____          Cir. 1991), cert. denied, 112 S.Ct. 2301 (1992).                        ____  ______                                          16          F.2d 607, 611  (1st Cir. 1991);  United States v.  Olivo-Infante,                                           _____________     _____________          938 F.2d  1406, 1412  (1st Cir.  1991) (internal  quotation marks          omitted)).  We find no error.                      Tutiven complains  that  the sentencing  court made  no          explicit finding that the offenses of conviction, viz., knowingly                                                            ___          possessing stolen motor vehicles  (18 U.S.C.  2313) and knowingly          possessing a motor vehicle  with altered VINs (18  U.S.C.  2321),          involved knowingly receiving stolen property and that the indict-                             _________          ment  neither included such a  charge nor would  the trial record          support  it.14  The claim  that the evidence  before the sentenc-          ing  court would  not support  a finding  that Tutiven  knowingly          received stolen property is groundless.                    As it  was stipulated  that Tutiven  did not steal  the                                                _______          motor vehicles, yet the jury  supportably found beyond a  reason-          able  doubt that he knew  the vehicles were  stolen, logic pretty          much  compels the  conclusion  that  Tutiven knowingly  "received          stolen  property."  We disposed  of an analogous  claim in United                                                                     ______          States v. Carty, 993  F.2d 1005 (1st Cir. 1993)  (prosecution for          ______    _____          drug possession and distribution), by reiterating the  conclusive          observation  made by the sentencing  judge in that  case:  "[Y]ou          have to buy it to sell it."  Id. at 1011.  The strikingly similar                                       ___                                        ____________________               14U.S.S.G.   2B1.1(b)(5)(B) provides:                     If  the offense involved receiving stolen property, and                    the defendant was a person in the business of receiving                    and selling stolen property, increase by 4 levels.           The scope  and operation of the  "in-the-business" enhancement is          explained in considerable detail in United States v. St. Cyr, 977                                              _____________    _______          F.2d 698, 702-04 (1st Cir. 1992).                                          17          collocation  of  circumstances substantiating  the  jury verdicts          against Tutiven,  see note 11  supra, provided ample  support for                            ___          _____          finding that he knew these vehicles were stolen, and thus that he          was "in the  business of receiving  and selling stolen  property"          within the meaning of U.S.S.G.   2B1.1(b)(5)(B).            C.   Jury Instruction on Actual Knowledge          C.   Jury Instruction on Actual Knowledge               ____________________________________                    Tutiven  concedes  that  the district  court  correctly          instructed the  jury that  Counts I  through XIII required  proof          beyond  a reasonable  doubt that  Tutiven had  "actual knowledge"          that the thirteen vehicles  were stolen and, further, that  proof          of mistake,  accident or negligence was  insufficient to convict.          But he insists that the court erred in refusing to define "negli-          gence" for the jury.                      We  review the challenged  jury instruction against the          backdrop of the entire trial.   See United States v. Serino,  835                                          ___ _____________    ______          F.2d  924,  930 (1st  Cir.  1987) ("[We  do] not  judge  a single          instruction to the jury  in isolation, but rather in  the context          of the overall  charge."); see  also United States  v. Park,  421                                     ___  ____ _____________     ____          U.S. 658, 674 (1975).  And, of course, "[i]t is well settled that          the  court 'need  not give  instructions in  the precise  form or          language requested by  the defendant.'"  United States  v. Noone,                                                   _____________     _____          913  F.2d 20,  30  (1st Cir.  1990), cert.  denied, 500  U.S. 906                                               ____   ______          (1991) (quoting United  States v.  Beltran, 761 F.2d  1, 11  (1st                          ______________     _______          Cir. 1985)).                     In its preliminary instructions outlining the essential          elements of the  crimes charged in  the indictment, the  district                                          18          court told the jury that it could convict only if  it found "that          at the  time Fidel  Tutiven possessed  [the car]  or sold it,  he          knew,  he had knowledge,  that the car  that he  possessed or was          selling  was stolen."    Following closing  arguments, the  court          reinforced its instruction on knowledge:                    To sustain  its burden  of proof for  each of                    Counts  1  through  13,  the  government must                    prove  beyond  a reasonable  doubt  .  . .  .                    [that] this defendant kn[e]w that motor vehi-                    cle was stolen at the time he possessed it?                    So you should ask yourselves . . . .  has the                    government proved beyond  a reasonable  doubt                    that  this  defendant knew  that the  car was                    stolen at the time he possessed it?15                                                       15          Thus, viewed in the context of the entire charge and particularly          the trial  judge's repeated  admonitions that evidence  of negli-          gence  was insufficient to convict, there is no question that the          jury instructions on the necessity for proof of actual  knowledge          were both clear and correct.                                          ____________________               15In their closing arguments, counsel emphasized  the "know-          ledge"  element.  Government counsel stated:   "I ask you to find          that,  in fact,  Fidel Tutiven  knew exactly  what he  was doing;          that he knew he was the point  person in a stolen car ring;  that          he knew he was selling stolen cars and he knew that the  VINs had          been  altered."    And  defense counsel  adeptly  underlined  the          inadequacy of a "negligence" finding:               As Judge Mazzone  will instruct you  on the  law, it is  not               enough  to say that Mr.  Tutiven should have  known the cars               were  stolen.  It's  not enough to  say that he  should have               known that  the identification  numbers were altered.   It's               not enough for Mr.  Feeley to prove to you that a reasonable               person would have known that the  cars were stolen or that a               reasonable  person would have  known that the identification               numbers  were altered.  The  government has to  prove to you               that  Mr. Tutiven actually knew.   In fact  -- and I suppose               they have to prove that to you beyond a reasonable doubt.                                            19                    Finding no  error, we  affirm the district  court judg-          ment.                     Affirmed.                     Affirmed.                    ________                                          20
