USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1339
UNITED STATES OF AMERICA,
Appellee,
v.
MARK A. SKRODZKI,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
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Before
Torruella and Stahl, Circuit Judges,
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and DiClerico,* District Judge.
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Stewart T. Graham, Jr., by Appointment of the Court, with whom
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Graham & Graham was on brief for appellant.
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C. Jeffrey Kinder, Assistant United States Attorney, with whom A.
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John Pappalardo, United States Attorney, was on brief for appellee.
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November 17, 1993
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*Of the District of New Hampshire, sitting by designation.
DICLERICO, District Judge. The defendant challenges
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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,
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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.
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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
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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
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$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
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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.
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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 .
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. .
(N) More than $800,000 add 13 . . . ."
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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
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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
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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."
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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
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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
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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.
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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.
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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
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12, 19 (1st Cir. 1992); United States v. Gerante, 891 F.2d
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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
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F.2d 33, 35-36 (1st Cir. 1990) (interpreting U.S.S.G.
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6A1.3), cert. denied, 111 S. Ct. 2039 (1991). Therefore,
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the court may consider reliable hearsay. U.S.S.G.
6A1.3(a), p.s.; id. comment.; United States v. Aymelek, 926
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F.2d 64, 68 (1st Cir. 1991); Gerante, 891 F.2d at 367.
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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.
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Shattuck, 961 F.2d 1012, 1015 (1st Cir. 1992); see also
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United States v. Silverman, 976 F.2d 1502, 1510-13 (6th Cir.
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1992), cert. denied, 113 S. Ct. 1595 (1993).
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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
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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.
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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
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(1st Cir. 1992) (court correctly relied on $10,000 interest
calculation mentioned in the presentence report); United
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States v. Sherbak, 950 F.2d 1095, 1099 (5th Cir. 1992)
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(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
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States v. Gracia, 983 F.2d 625, 629 (5th Cir. 1993)
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("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)
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(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
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Cir.) ("[P]resentence reports are normally considered
reliable sources of information, upon which sentencing
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courts may rely . . . ."), cert. denied, 111 S. Ct. 2813
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(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
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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
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v. Gerante, 891 F.2d 364, 370 (1st Cir. 1989), because the
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court, here, expressly adopted the facts as determined in
the presentence report. See United States v. Sherbak, 950
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F.2d 1095, 1099 (5th Cir. 1992).
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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
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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.
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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
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and application of the Sentencing Guidelines. United States
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v. Mullins, 992 F.2d 1472, 1478-79 (9th Cir.), cert. denied,
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113 S. Ct. 2997 (1993); United States v. St. Cyr, 977 F.2d
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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
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at 701; see also United States v. Pavao, 948 F.2d 74, 77
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(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,
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comment. (n.2); see United States v. Colletti, 984 F.2d
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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
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v. Larracuente, 952 F.2d 672, 674-75 (2d Cir. 1992) (court
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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,
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comment. (n.3)); Pavao, 948 F.2d at 77 (same). The
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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
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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
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determine that the value of the missing boards exceeded
$800,000. See Colletti, 984 F.2d at 1345. The court did
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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.
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(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.
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