Professional Documents
Culture Documents
United States v. Tutiven, 1st Cir. (1994)
United States v. Tutiven, 1st Cir. (1994)
United States v. Tutiven, 1st Cir. (1994)
____________________
November 14, 1994
____________________
in
various trial
court
rulings,
district
court
judgment entered
sentence
and appeals
following
the
conviction and
I
I
his
from
BACKGROUND1
BACKGROUND
__________
During
April 1992 and
the
relevant
eleven-month
February 1993
period
while employed as
between
a waiter at a
stolen
dealership
Toyota
motor
at bargain
Corolla to
represented to the
1991 Nissan 240
vehicles
vehicles to
prices
Massachusetts
ranging from
$21,500 for
a 1991
buyer, Clair
SX, belonged
$7,900
for a
Mercedes Benz.
to a cousin,
automobile
1991
Tutiven
first car,
and that
subsequent
financially distressed
owners who
responded to
newspaper
ads.
the vehicles
and
____________________
1The
verdicts.
1992).
2
ing on the
stipulated that
Motors.2
It was
in the indict-
defense was
that he
had been
duped
did not
know the
vehicles had
the apparent
been stolen.
At
any suspicions
on the part
automobile-theft expert
Tutiven
originally
sold to
assigned
by
of Clair
testified that
Clair Motors
their
by an
did
although the
not bear
manufacturers, it
Motors.
had
the VINs
taken
confidential
VINs
originals.
The
authorities
to determine
stolen.
which
disclosure of
that
Further investigation
had been
the
superimposed
original VINs
all fourteen
on
the
enabled
the
vehicles had
established that
been
"switches" had
____________________
Clair Motors.3
Tutiven
authorities
was
arrested
after
shortly
cardboard box
law enforcement
he sold to Clair
and materials
federal grand
jury
returned
twenty-seven-count
____________________
its true VIN. The VIN assigned to the "clean" vehicle is superimposed on the true VIN in the stolen vehicle.
The stolen
vehicle is then given title documents matching its "clean" lookalike.
An effective VIN-altering and title-switching scheme requires 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.
18 U.S.C.
2313,
and with
state lines, in
possessing, for
sale,
18 U.S.C.
2321.
The
government later
dismissed thirteen
counts,
leaving
thirteen
U.S.C.
fourteen for
separate
trial:
stolen motor
unlawful possession
vehicles,
in
violation of
of
18
2321.
limine to exclude
the most
part,
the evidence
presented at
trial
only
by
experts,
through a
were stamped.
trooper
A VIN
process
of
grinding,
expert
and a
Massachusetts
VIN alterations on
the
state
resort
established
Count XIV
processes.
vehicle to which
the VIN valid.
counts and
to special
The testimony
VIN on the
vehicle involved in
model different
it was attached,
further
from the
a virtual impossibility
stolen
were
sentenced Tutiven to
First, he
claims
that the
admitting
district
in evidence
court committed
the seized
tools, materials
the
Third,
that a
he argues
2B1.1(b)(5)(B)
(the
court
reversible error
by
and license
impermissible infer-
refused
to
define
sentencing enhancement
so-called "in-the-business"
was
"negligence."
under U.S.S.G.
enhancement)
II
II
DISCUSSION
DISCUSSION
__________
A.
A.
be
claims that no
plates
seized from
his home
See
___
Fed. R.
except by
indulging impermissible
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, knowledge, 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.
1.
court admitted
the tools,
materials and
knowledge that the fourteen vehicles had been stolen and that the
VIN
on the
repeatedly
fourteenth
vehicle had
been
altered.
The
court
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 intends to introduce at trial.
6Fed. R. Evid. 403 provides:
Although relevant, evidence may be excluded
if its probative value is substantially outweighed 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,
instruction:
insists on
evidence
license plates
his possession
of
the
tools, materials
vehicles had
been stolen or
and
relevant to his
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. (emphasis added).
evidence
Evidence
Rule
404(b)
relevant
only
to
character.
United States
_____________
Cir. 1994).
prove criminal
bars
"other
propensity
acts"
or
bad
775 (1st
challenged "other
sively
______
absolutely
crimes, wrongs,
to instigate
an
or acts" are
inference that
the
relevant exclu______
defendant is
more
he is on trial.
61, 63
Margaret A.
(1st
Cir. 1982)
Berger, Weinstein's
(citing Jack
Evidence,
B. Weinstein
404-26
&
(1980); see
_____________________
also
____
1990).
interposes no absolute
________
to
___
bar to circumstantial
___
evidence intrinsic
_________
is on trial,
but only to
depends
propensity.
upon
We recently
forbidden
dealt with a
inference
of
criminal
we held
that the
only to establish an
____
defendant's prior
708 (1st
conviction for
was rele-
trial.
Id. at 709-714.
___
By
contrast,
the probative
Tutiven possessed
the time and
___ ____ ___
respect
of the
intrinsic evidence
place these
_____ _____
depended upon
inference.
and
value
an
impermissible
at or about
__ __ _____
place, in
_____
"criminal
that
no
propensity"
of VIN-altering tools
sion of burglary tools, see, e.g., State v. Romano, 456 A.2d 746,
___ ____ _____
______
760 (R.I.
from
1983) (upholding
defendant's
defendant's
admission of burglary
garage,
role
in alleged
as
circumstantial
conspiracy
to
in which
been admitted
under Rule
without occasioning
374, 381
(1st
defendant
in
See,
___
case
that the
evidence has
either challenge
or analysis
e.g., United
____ ______
possessed
enter),
circumstantial
States v. Ford,
______
____
of
directly probative
________
similar intrinsic
404(b).
evidence
break and
tools, seized
22 F.3d
evidence that
instructional materials
on
Cir. 1993)
(upholding admission
of scales,
bags, and
baggies seized
from motel
room registered to
defendant's girl-
538,
drug smuggling
he was
on
trial).
10
Tutiven relies
1185
(2d Cir.
1993), as
on United States v.
______ ______
support for
the claim
that
the VIN-
But the
cles
held
Id. at
__
1188.
_____ ________
Id. at 1194.
___
tools were
probative evidence
against
appellants'
co-
See id.
___ ___
resort to
Rather,
the
relying
on its
draw
the
an impermissible
seized evidence
common sense
relevant foundation
__________
would
and
propensity-based inference.
enable a
rational
the time
___ ____
jury
collective experience9
inference
that
he sold fourteen
__ ____ ________
to
a defendant
for the
stolen vehicles
______ ________
who
plates),
bearing
_______
____________________
altered
_______
victim of a
______
VIN-altering scheme
than would a
seller of
stolen
the seized
evidence
by Rule 404(b), we
companion
Tutiven's
knowledge
survive the
403.
that the
not implicate
the
in evidence on
vehicles
relevancy-prejudice
did
were
the issue of
stolen could
balancing required
not
under
Rule
low
under
Federal
401 if
threshold
for
relevance
Evidence is
tendency to make
is
very
the existence of
any fact
States
______
v. Cotto-Aponte,
____________
United States v.
_____________
denied,
______
114
be without the
30 F.3d
4, 6
S. Ct.
1331 (1994).
evidence.'"
(1st Cir.
United
______
1994) (citing
These tools,
materials and
license
401.
plates readily
under Rule
even
met the
evidence
inference
that
where the
is
relevant through
probative value of
stantially outweighed,'
prejudice . . . ."
[inter alia,]
_____ ____
allowable
chains
that evidence
by the risks
of
is 'sub-
of [unfair]
However,
12
"[o]nly rarely
will
district
court's on-the-spot
judgment
weighing
of
and
probative value
concerning the
unfair effect."
relative
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
7-11, and
403.
In
search of
of
netted
defendant's automobile
the alleged
drug conspiracy
a handgun,
under Rule
abandoned
for
ammunition, and
1994), a
which he
was on
a round-trip
trial
airline ticket
As
circumstantial evidence
was on
401 and
403.
found
Id.
___
at 509-10.
the course
of the
alleged conspiracy
Rule 404(b).
licensed
character"
firearm
is neither
and (ii)
defendant's role
in it.
Id. at 508-09.
___
the evidence
was challenged
act
We held that
"possession of a
nor indicative
was directly
13
of bad
relevant, inter
_____
as "other
In the ensuing
and the
Rule 403
"prejudice"
from the evidence that Hahn possessed a licensed firearm "did not
derive
unfairly
________
from
the
challenged evidence
itself."
Id.
___
(emphasis added).
And
case,
which permitted
that Tutiven's
the jury
by an
Meeks,
_____
of
expert VIN-altering
"various
possessed by
defense:
scheme.
See, e.g.,
___ ____
instruments used
defendant
State v.
_____
at time
by
of
a typical
check
arrest, to
rebut
plates seized
tending
evidence of
artist,"
to infer
The
tools, materials
to preempt
that
sophisticated VIN
an essential
the
only way
____ ___
cogent evidence
premise implicit
Tutiven could
_______ _____
and license
in Tutiven's
have known
____ _____
of the
VIN expert he
could not
stolen.
a person
____________________
in which
he sold numerous
stolen vehicles
with
altered VINs was somewhat more likely to have known the equipment
_____
was
amenable
vehicles
to use
in altering
VINs
and therefore
that the
VIN alterations.11
An inference that Tutiven
seized
from
his home
rather strongly
were suited
to dispel
VIN altering
would tend
in his
de-
fense.
Moreover,
in
evincing Tutiven's
knowledge
that
the
of unfair
______
by the
further
simple possession
given
provided
prejudice since
district court,
insulation
against
of the
e.g., supra
____ _____
unfair
note 7,
propensity-based
____________________
11The seized evidence fit hand and glove with the cumulative
array of circumstantial evidence underpinning the sturdy inference 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
tions); United States v. Daigle, 14 F.3d 684, 690 (1st Cir. 1994)
_____________
______
(holding that cautionary jury instruction minimized possible prejudicial impact from documentary exhibit) (Rule 403).12
B.
B.
U.S.S.G.
2B1.1(b)(5)(B):
The "In-the-Business" EnhanceU.S.S.G.
2B1.1(b)(5)(B):
The "In-the-Business" Enhance____________________________________________________________
ment
ment
____
As
sentencing
Tutiven failed
enhancement
or
"obvious"
States v.
______
preserve the
under U.S.S.G.
to
issue below,
2B1.1(b)(5)(B)
to this level
"substantial
affect[ed] the
only when it
is so shocking
fundamental fairness
is re-
Thus, the
v. Colon-Pagan, 1
___________
the
1993).
United
______
United States
_____________
"[E]rror rises
that [it]
seriously
of the
____________________
952
1406, 1412
(1st Cir.
United States v.
_____________
Olivo-Infante,
_____________
1991) (internal
quotation marks
We find no error.
Tutiven complains
that
the sentencing
court made
no
(18 U.S.C.
U.S.C.
2321),
support
ing
it.14
The claim
court would
not support
a finding
that Tutiven
knowingly
was stipulated
much
compels the
stolen
We disposed
conclusion
property."
that Tutiven
_______
Tutiven knowingly
of an analogous
"received
claim in United
______
(prosecution for
judge in that
Id. at 1011.
___
reason-
the
conclusive
case:
"[Y]ou
____________________
14U.S.S.G.
2B1.1(b)(5)(B) provides:
collocation
of
circumstances substantiating
against Tutiven,
see note 11
___
the
jury verdicts
support for
finding that he knew these vehicles were stolen, and thus that he
was "in the
business of receiving
property"
2B1.1(b)(5)(B).
instructed the
beyond
concedes
jury that
a reasonable
the district
Counts I
doubt that
that
court
correctly
Tutiven had
"actual knowledge"
proof
proof
insufficient to convict.
But he insists that the court erred in refusing to define "negligence" for the jury.
We
924,
930 (1st
Cir.
1987) ("[We
do] not
judge
charge."); see
___
835
a single
the context
v. Park,
____
421
the
court 'need
not give
language requested by
913
F.2d 20,
30
instructions in
the defendant.'"
(1st Cir.
United States
_____________
1990), cert.
____
the precise
v. Noone,
_____
denied, 500
______
form or
U.S. 906
1, 11
(1st
Cir. 1985)).
crimes charged in
district
18
time Fidel
Tutiven possessed
he had knowledge,
was stolen."
[the car]
that he
Following closing
it found "that
or sold it,
he
possessed or was
arguments, the
court
judge's repeated
of negli-
knowledge
____________________
15In their closing arguments, counsel emphasized the "knowledge" 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:
Finding no
error, we
court judg-
ment.
Affirmed.
Affirmed.
________
20