USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1209
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
FIDEL R. TUTIVEN,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, Senior U.S. District Judge]
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Torruella, Selya and Cyr,
Circuit Judges.
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Peter B. Krupp for appellant.
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Timothy Q. Feeley, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for appellee.
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November 14, 1994
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CYR, Circuit Judge. Defendant Fidel R. Tutiven alleges
CYR, Circuit Judge.
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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
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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-
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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
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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
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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
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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
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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
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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
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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-
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ly received stolen property.
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II
II
DISCUSSION
DISCUSSION
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A. The Tools, Materials and License Plates
A. The Tools, Materials and License Plates
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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
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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.
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403.6
1. Fed. R. Evid. 404(b): "Other Acts" Evidence
1. Fed. R. Evid. 404(b): "Other Acts" Evidence
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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
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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.
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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
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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
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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.
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Tutiven knew the motor vehicles charged in
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the first 13 counts in the indictment were
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stolen and whether Mr. Tutiven knew that the
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vehicle identification number on the 1991
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Toyota Corolla charged in Count 14 had been
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altered.
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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
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been stolen and knew that the identification
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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
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infra p. 11.
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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,
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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
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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
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Cir. 1994). Its absolute bar is implicated, however, only if the
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challenged "other crimes, wrongs, or acts" are relevant exclu-
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sively to instigate an inference that the defendant is more
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likely to have acted in similar fashion by committing the offense
for which he is on trial. See, e.g., United States v. Moccia,
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681 F.2d 61, 63 (1st Cir. 1982) (citing Jack B. Weinstein &
Margaret A. Berger, Weinstein's Evidence, 404-26 (1980); see
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also United States v. Ferrer-Cruz, 899 F.2d 135, 137 (1st Cir.
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1990). Plainly, by its very terms, see note 5 supra, Rule 404(b)
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interposes no absolute bar to circumstantial evidence intrinsic
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to the crime for which the defendant is on trial, but only to
evidence of "other crimes, wrongs, or acts" whose probative value
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exclusively depends upon a forbidden inference of criminal
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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
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Cir. 1992), we held that the defendant's prior conviction for
cocaine possession was barred by Rule 404(b) since it was rele-
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vant only to establish an evidentiary predicate for a forbidden
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"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
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to the conduct for which he was on trial. Id. at 709-714. By
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9
contrast, the probative value of the intrinsic evidence that
Tutiven possessed VIN-altering tools and materials, at or about
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the time and place these offenses allegedly took place, in no
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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,
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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
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of, inter alia, see infra note 12, Tutiven's knowledge that the
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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
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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,
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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,
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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
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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-
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ting burglary tools as evidence of the modus operandi of the two
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appellants who were charged only with transporting stolen vehi-
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cles and stolen goods. Id. at 1188. The Second Circuit simply
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held that the burglary tools bore no special relevance to appel-
lants' modus operandi in transporting stolen vehicles and goods.
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Id. at 1194. The court left no doubt, however, that the burglary
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tools were highly probative evidence against appellants' co-
defendants, who were on trial for burglary. See id.
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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
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possessed VIN-altering tools and materials (and license plates),
at or about the time he sold fourteen stolen vehicles bearing
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9See, e.g., United States v. Reyes-Mercado, 22 F.3d 363, 367
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(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.
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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,
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680 F.2d 255, 260 (1st Cir. 1982), cert. denied, 459 U.S. 1110
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(1983)).
11
altered VINs, was somewhat less likely to have been the innocent
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victim of a VIN-altering scheme than would a seller of stolen
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vehicles who did not possess such paraphernalia.
2. Fed. R. Evid. 403: Unfair Prejudice
2. Fed. R. Evid. 403: Unfair Prejudice
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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.
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"[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
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States v. Cotto-Aponte, 30 F.3d 4, 6 (1st Cir. 1994) (citing
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United States v. Nason, 9 F.3d 155, 162 (1st Cir. 1993)), cert.
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denied, 114 S. Ct. 1331 (1994). These tools, materials and
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license plates readily met the "any tendency" test under Rule
401. See supra p. 11; infra pp. 13-14; note 11 infra.
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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]
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prejudice . . . ." Ferrer-Cruz, 899 F.2d at 138; see also United
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States v. Nickens, 955 F.2d 112, 125 (1st Cir. 1992). However,
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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.
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Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988), quoted in
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United States v. Desmarais, 938 F.2d 347, 351 (1st Cir. 1991).
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A recent case illuminates the pertinent relationship
between the Rule 404(b) analysis undertaken above, see supra pp.
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7-11, and the relevancy-prejudice balancing required under Rule
403. In United States v. Hahn, 17 F.3d 502 (1st Cir. 1994), a
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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
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trial, it was challenged and evaluated only under Rules 401 and
403. Id. at 509-10. Evidence that the same defendant had been
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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
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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
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alia, to the geographic scope of the alleged conspiracy and the
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defendant's role in it. Id. at 509. In the ensuing Rule 403
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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.
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(emphasis added).
And so it is with the evidence admitted in the present
case, which permitted the jury rationally and fairly to infer
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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.
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Meeks, 65 N.W.2d 76, 78-79, 82 (Iowa 1954) (upholding admission
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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
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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
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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.
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The only other items seized were license plates from jurisdic-
tions where Tutiven's stolen cars originated. See also note 4
___ ____
supra.
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14
the time frame in which he sold numerous stolen vehicles with
altered VINs was somewhat more likely to have known the equipment
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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
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tools and materials was neither a bad act nor indicative of bad
character. See Hahn, 17 F.3d at 509. Finally, the jury instruc-
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tions given by the district court, see, e.g., supra note 7,
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provided further insulation against unfair propensity-based
inferences by the jury. See Yates v. Evatt, 500 U.S. 391, 403-04
___ _____ _____
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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-
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wealth v. Boris, 58 N.E.2d 8, 12 (Mass. 1944) (low price paid
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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)
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(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
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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
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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
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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,
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26 (1st Cir. 1994) (citing United States v. Hodge-Balwing, 952
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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-
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ation" and "plan." See Fed. R. Evid. 404(b).
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13Tutiven urges that we review the sentencing enhancement de
__
novo because it touches upon "interpretive questions" under the
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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
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Cir. 1991), cert. denied, 112 S. Ct. 2301 (1992).
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16
F.2d 607, 611 (1st Cir. 1991); United States v. Olivo-Infante,
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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
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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
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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
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States v. Carty, 993 F.2d 1005 (1st Cir. 1993) (prosecution for
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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
___
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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.
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20
