United States v. Burks ( 2012 )


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  •                                                                                  FILED
    United States Court of Appeals
    Tenth Circuit
    PUBLISH                              May 29, 2012
    Elisabeth A. Shumaker
    UNITED STATES COURT OF APPEALS                         Clerk of Court
    TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff–Appellee,
    v.                                                        Nos. 10-4180 &
    10-4210
    CEDRIC DUANE BURKS,
    Defendant–Appellant.
    Appeal from the United States District Court
    for the District of Utah
    (D.C. No. 2:07-CR-00173-TS-4)
    Robert Breeze, Salt Lake City, Utah, for the Defendant-Appellant.
    Jared C. Bennett, Assistant United States Attorney (Carlie Christensen, United States
    Attorney, with him on the brief), Office of the United States Attorney, District of Utah,
    Salt Lake City, Utah, for the Plaintiff-Appellee.
    Before LUCERO, HOLLOWAY, and TYMKOVICH, Circuit Judges.
    LUCERO, Circuit Judge.
    Cedric Burks provided codes to an auto-theft ring that were used to create working
    keys for specific vehicles. One such vehicle—an Escalade—was stolen in Nevada,
    stripped to its frame, and subsequently discovered and auctioned by authorities. Several
    months later, the same Escalade, now reassembled, was identified in Utah. Based on this
    discovery, Burks was charged and convicted of aiding and abetting the possession and
    transportation of a stolen vehicle under 
    18 U.S.C. §§ 2312
     and 2313.
    On appeal, Burks argues that the jury was improperly instructed on the affirmative
    defense of withdrawal and was allowed to make an improper inference that Burks’
    associates knew the vehicle was stolen. We disagree on both points. First, assuming that
    withdrawal is an affirmative defense to a conviction premised on accomplice liability, we
    hold that the jury was properly instructed that the burden of proving the defense rested on
    Burks. Second, we hold that the jury was properly instructed that it could infer that
    Burks’ associates knew the vehicle was stolen. We also reject Burks’ claims that there
    was insufficient evidence to support his conviction and that the district court erred in its
    restitution order. Exercising jurisdiction under 
    28 U.S.C. § 1291
    , we affirm.
    I
    Burks was a player in an auto-theft ring operated by Levi and Abraham Elliot
    based in Las Vegas, Nevada. Once an automobile was targeted for theft, the Elliots
    would provide Burks with the automobile’s unique vehicle identification number
    (“VIN”). Using this information, Burks would contact a local auto dealership and claim
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    that he was purchasing the vehicle in question and needed the vehicle’s “key code”1 in
    order to make a key for the vehicle. Unaware of the foul play, the dealership employee
    would give Burks the code. Burks then passed the key code to the Elliots, who would
    compensate him and use the code to make a key to steal the vehicle in question.
    According to the dealership employee, Burks requested approximately twenty key codes
    in 2005.
    One vehicle targeted by the Elliots was a 2004 Cadillac Escalade, fitted with a
    custom grille and wheels. In accordance with the plan, Burks was given the Escalade’s
    VIN and obtained its key code from his dealership contact. The vehicle’s owners
    reported it stolen soon thereafter. Several days later, Las Vegas police recovered the
    Escalade’s frame, which had been completely stripped of its doors, seats, grille, wheels,
    and various other instruments. Notably, all of the electronic wires were neatly clipped
    and bundled, and the frame had been smeared in oil to protect it from the weather. Upon
    recovery, the Escalade’s frame was sold at auction to Abe Elliot, who received legal title
    to the frame along with a Nevada certificate declaring the vehicle to be non-reparable.
    At some point in the following three months, the Escalade was reconstructed and
    Caesar “Spanky” Martinez purchased insurance for the vehicle in Utah. Martinez
    subsequently became a suspect in federal and state investigations into a string of auto
    1
    A key code is a unique sequence of numbers that a manufacturer assigns to an
    individual vehicle to allow the vehicle’s owner to make duplicate keys. An individual in
    possession of a key code for a particular vehicle can make an unlimited number of
    working keys for that vehicle.
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    thefts in Utah and Nevada. While investigating Martinez, authorities noticed an Escalade
    at his house, and after some research, discovered that the Escalade was likely the same
    one that had been stolen, stripped, and auctioned in Las Vegas. The identity of the
    Escalade was confirmed when law enforcement used the stolen vehicle’s recorded VIN
    and key code to make a working key, which was used to seize the vehicle from Martinez.
    The Escalade’s ties to Nevada and the Elliots became more apparent after
    Martinez was arrested. First, Abe Elliot called the Utah state motor vehicle division to
    inquire about the status of the Escalade. Another man, who gave the name of Ralph
    Scalbon, also called to report the vehicle stolen, but provided the same callback number
    as Abe Elliot. This Scalbon moniker closely resembled the name of the individual who
    allegedly sold the Escalade to Martinez. Finally, Abe Elliot himself sought to claim the
    vehicle and was arrested after arriving with a working key.
    Law enforcement traced the Escalade back to Burks, who had been arrested for
    attempting to sell key codes. Once in custody, Burks confessed to selling codes to the
    Elliots as part of their auto-theft scheme. Additionally, Burks stated that he was aware
    that the Elliots operated in Utah, and did business with an individual named “Spanky.”
    Following his arrest, however, Burks stopped selling key codes and helped authorities
    infiltrate the Elliots’ auto-theft ring.
    Based on Burks’ confession, he was charged with aiding and abetting: (1) the
    interstate transportation of the stolen Escalade under 
    18 U.S.C. § 2312
    ; and (2) the
    possession, receipt, and storage of the stolen Escalade under 
    18 U.S.C. § 2313
    . At trial,
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    Burks’ counsel objected to two jury instructions now at issue. The first instruction
    informed the jury that the burden of proving the affirmative defense of withdrawal rested
    with the defendant. The second instruction permitted the jury to infer that a vehicle
    stolen in one state and recovered in another was knowingly transported in interstate
    commerce. Both objections, however, were overruled, and the jury convicted Burks on
    both charges.
    Following Burks’ conviction, the district court held a restitution hearing to
    determine how much compensation was due to the owners of the stolen Escalade. After
    the Escalade was stolen, the vehicle’s owners filed a claim with their insurance company,
    which paid to replace the Escalade but charged the owners a $1,000 deductible.
    Accordingly, the district court ordered that Burks pay $1,000 to the Escalade’s owners
    and $49,977 to the insurance company, which represented the amount paid to the
    Escalade’s owners minus the sum recovered from the sale of the vehicle’s frame at
    auction. Burks timely appealed both his conviction and the restitution order, and we
    consolidated the appeals.
    II
    On appeal, Burks raises several novel questions about the interplay of the federal
    auto-theft statute, known as the Dyer Act and codified at 
    18 U.S.C. §§ 2312
     and 2313,
    and the federal accomplice liability statute, 
    18 U.S.C. § 2
    (a). We thus begin our analysis
    by looking at each of these statutes respectively.
    Burks was convicted under two distinct sections of the Dyer Act: §§ 2312 and
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    2313. Section 2312 prohibits the transportation in interstate commerce of a vehicle that
    is known to be stolen, and § 2313 prohibits the receipt, possession, or storage of a vehicle
    that crossed state lines and is known to be stolen. As the Supreme Court has
    acknowledged, the Act reflects a realization that “[p]rofessional thieves resort to
    innumerable forms of theft[,] and Congress presumably sought to meet the need for
    federal action effectively rather than leave loopholes for wholesale evasion.” United
    States v. Turley, 
    352 U.S. 407
    , 416-17 (1957).
    Burks was not convicted as a principal under the Dyer Act, but as an accomplice
    under the federal accomplice liability statute. Under 
    18 U.S.C. § 2
    (a), “[w]hoever
    commits an offense against the United States or aids, abets, counsels, commands, induces
    or procures its commission, is punishable as a principal.” “To be guilty of aiding and
    abetting the commission of a crime, the defendant must willfully associate himself with
    the criminal venture and seek to make the venture succeed through some action of his
    own.” United States v. Leos-Quijada, 
    107 F.3d 786
    , 794 (10th Cir. 1997). In
    establishing that the defendant was an accomplice, the government may rely on
    “circumstantial evidence and the level of participation may be of relatively slight
    moment.” 
    Id.
     (quotation omitted).
    The Dyer Act and accomplice liability statute, operating together, provide the
    basis for Burks’ convictions. For his conviction under § 2312, the government was
    required to prove: (1) a person transported a stolen vehicle that crossed state lines; (2)
    the person knew the vehicle was stolen; and (3) Burks associated himself with the
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    principal and sought to make the venture succeed. For his conviction under § 2313, the
    government was required to prove: (1) a person received, possessed, or stored a stolen
    vehicle that crossed state lines; (2) the person knew the vehicle was stolen; and (3) Burks
    associated himself with the principal and sought to make the venture succeed.
    A
    Burks first claims the jury was improperly instructed on the affirmative defense of
    withdrawal. At trial, Burks argued that he should be shielded from conviction because he
    effectively withdrew from the Elliots’ auto-theft ring. This defense was premised on the
    fact that Burks stopped selling key codes and actually helped authorities infiltrate the
    criminal enterprise after he sold the Escalade’s key code to the Elliots. The district court
    accepted this as a valid defense, but instructed the jury that “[t]he defendant has the
    burden of proving that he withdrew from the enterprise by a preponderance of the
    evidence.” We review “a court’s decision to give a particular jury instruction for an
    abuse of discretion and consider the instructions as a whole de novo to determine whether
    they accurately informed the jury of the governing law.” United States v. Gwathney, 
    465 F.3d 1133
    , 1142 (10th Cir. 2006).
    In this circuit, withdrawal is an established affirmative defense to a defendant’s
    involvement in a conspiracy. United States v. Randall, 
    661 F.3d 1291
    , 1294 (10th Cir.
    2011). “[T]o establish the affirmative defense of withdrawal from a conspiracy, a
    defendant must disclose the scheme to law enforcement authorities or make a reasonable
    effort to communicate his withdrawal to his coconspirators.” 
    Id.
     (citation omitted). Yet
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    it is unsettled if a defendant can withdraw from aiding and abetting a crime. Unlike a
    conspiracy, which by its very nature involves an agreement that can be refuted,
    accomplice liability can arise from merely encouraging the principal. See United States
    v. Whitney, 
    229 F.3d 1296
    , 1303 (10th Cir. 2000) (“One may become an accomplice . . .
    by words or gestures of encouragement . . . .”) (quotation and alteration omitted). Given
    the relatively minor participation that can trigger accomplice liability, it is unclear what
    actions an individual may take—if any—to immunize himself from liability for a crime
    that he previously enabled.
    Other courts have reached varying results when considering the applicability of
    the withdrawal defense to the federal accomplice liability statute. The Seventh Circuit,
    for example, has held that withdrawal was not a valid defense for aiding and abetting
    mail and securities fraud. United States v. Read, 
    658 F.2d 1225
    , 1239-40 (7th Cir. 1981)
    (withdrawal is not a defense because “as an aider and abettor, [the defendant] need not
    agree to the scheme. He need only associate himself with the criminal venture and
    participate in it”). The Second Circuit has also held that withdrawal is not a valid defense
    to aiding and abetting, at least for some crimes. See United States v. Arocena, 
    778 F.2d 943
    , 948 n.3 (2d Cir. 1985) (“[W]ithdrawal is not a defense to the substantive crime of
    aiding and abetting a murder.”). In contrast, the Ninth Circuit has assumed—albeit in
    dicta—that a defendant can withdraw from being an accomplice. United States v.
    Lothian, 
    976 F.2d 1257
    , 1261 (9th Cir. 1992) (“Withdrawal is traditionally a defense to
    crimes of complicity: conspiracy and aiding and abetting.”).
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    Every court to foreclose the withdrawal defense to an accomplice has closely
    examined the elements and nature of the underlying crime and limited their holding to
    that crime. We see no reason to depart from this prudent practice, and decline the
    government’s suggestion to categorically hold that withdrawal can never be a valid
    defense to aiding and abetting a federal crime.
    Turning to the underlying crime at issue, it is conceivable that a defendant could
    withdraw from aiding and abetting a Dyer Act violation. But even assuming that
    withdrawal was a valid defense, we reject Burks’ contention that the government should
    have to prove its absence. The burden of proving withdrawal in the conspiracy context
    unequivocally rests with the defendant, and we see no basis for distinguishing situations
    when accomplice liability is at issue. See United States v. Hughes, 
    191 F.3d 1317
    , 1322
    (10th Cir. 1999) (“In this circuit, the law is clear that the defendant bears the burden of
    establishing withdrawal from a conspiracy.”). The district court thus did not abuse its
    discretion in instructing the jury on this point.
    B
    Burks also objects to a jury instruction permitting the inference that the Escalade
    was transported to Utah by an individual who knew it was stolen. Specifically, the jury
    was instructed that “[p]ossession in one state of a vehicle that was recently stolen in
    another state, if not satisfactorily explained, is ordinarily a circumstance from which you
    may infer that the person knew the vehicle was stolen and also transported in interstate
    commerce.” Burks timely objected to this instruction, and now argues that it was unfair
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    to require him to prove or disprove the mindset and actions of a third party.
    Although we have upheld this inference in cases involving the Dyer Act, we have
    not addressed its applicability when the defendant is not the principal. Cf. Rogers v.
    United States, 
    416 F.2d 926
    , 927 (10th Cir. 1969) (“Proof that an accused is in possession
    of a vehicle recently stolen in another state sustains the inferences that he knew the
    vehicle was stolen and that he transported it in interstate commerce.”). Typically, an
    inference is permissible if “there is a rational connection between the fact proved by the
    prosecution and the ultimate fact presumed, and the inferred fact is more likely than not
    to flow from the proven facts.” Gwathney, 465 F.3d at 1143. Under this definition, there
    will be scenarios in which the connection between the crime and the defendant is so
    indirect that an inference instruction is inappropriate. Burks’ case, however, presents no
    such scenario.
    The evidence presented by the government provided a solid foundation for
    inferring that Martinez knew the vehicle was stolen and had crossed state lines. Burks
    himself admitted that Martinez was involved in the Elliots’ Nevada-based auto-theft ring.
    The prosecution also showed that after the Escalade was recovered in Utah, the Elliots
    tried to claim it. This evidence, which tends to show that Martinez was a key player in
    the Elliots’ scheme, is clearly sufficient to support the inference that Martinez’s
    possession of the vehicle meant that he knew the vehicle had been stolen and that it had
    crossed state lines. The jury instruction was thus appropriate.
    Burks maintains that the inference is only appropriate if the defendant is in actual
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    possession of the vehicle. To this end, he cites Rogers, which held that “[t]he basis of the
    inferences is the possession of the vehicle . . . [a]bsent possession no inference may be
    drawn.” 
    416 F.2d at 928
    . But Rogers states only that the person for whom the inference
    is made must have been in possession, and Martinez was unquestionably in possession of
    the vehicle before it was recovered in Utah. There is nothing in Rogers to suggest that
    the inference may only be made in reference to the defendant at trial.
    C
    Burks alleges that there was insufficient evidence to convict him at trial. We
    review the sufficiency of the evidence de novo. Whitney, 
    229 F.3d at 1300
    . “[W]e ask
    only whether taking the evidence—both direct and circumstantial, together with the
    reasonable inferences to be drawn therefrom—in the light most favorable to the
    government, a reasonable jury could find the defendant guilty beyond a reasonable
    doubt.” United States v. Keck, 
    643 F.3d 789
    , 793 (10th Cir. 2011).
    In order to convict Burks, the government was required to prove: (1) a person
    transported (for liability under § 2312 ) and received, possessed, or stored (for liability
    under § 2313) a stolen vehicle that crossed state lines; (2) the person knew the vehicle
    was stolen; and (3) Burks associated himself with the principal and sought to make the
    venture succeed. Burks first claims that the government could not prove the vehicle
    crossed state lines with the knowledge that it was stolen because it is unclear who
    transported the vehicle. We disagree. The government presented an array of evidence
    showing the Escalade was stolen by the Elliots in Nevada and found in Utah in
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    possession of Martinez, a known associate of the Elliots. Given this evidence, the jury
    could properly infer that whoever transported the vehicle from Nevada to Utah—
    presumably some player in the Elliots’ ring—knew it was stolen.
    Burks also alleges that the Escalade was not actually stolen when it crossed state
    lines. To this end, Burks emphasizes that after the Elliots stole, stripped, and abandoned
    the vehicle, it was recovered by authorities, which he argues rendered the Escalade frame
    “unstolen.” Because the Elliots legally purchased the “unstolen” frame, the reconstructed
    Escalade was allegedly not stolen when it crossed into Utah, and was thus outside the
    scope of the Dyer Act. See generally United States v. Muzii, 
    676 F.2d 919
    , 923 (2d Cir.
    1982) (discussing recovered property doctrine). This argument, while admittedly clever,
    is not persuasive. The Dyer Act was intended to cover a wide range of activities, and
    passed as an effort to close loopholes that auto thieves had exploited. Turley, 
    352 U.S. at 416-17
    . In the instant case, thieves stripped the Escalade and allowed it to be recovered
    with the intention of re-purchasing the vehicle so they could obtain legal title to it. To
    hold that the transportation and possession of the Escalade did not violate the Dyer Act
    because the authorities were made an unwitting link in the chain of theft would create an
    illogical loophole in direct contradiction to Congress’ intent. See United States v. Payne,
    
    635 F.2d 643
    , 645 (7th Cir. 1980) (holding that interstate transportation of vehicle parts
    severed from a stolen a truck violated the policy of the Dyer Act). We therefore decline
    to apply the recovered property doctrine to situations in which a thief abandons the
    vehicle with the intention of purchasing it once it has been recovered by authorities.
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    As a final point, Burks asserts that his involvement in providing the key codes to
    the Elliots is not sufficiently material to show that he associated himself with the crime of
    transporting and possessing the Escalade in another state. The standard for finding that a
    defendant aided or abetted a crime is not a high one; “[c]onduct of the defendant or
    special circumstances may justify the inference that the defendant associated himself with
    the criminal objective.” Whitney, 
    229 F.3d at 1303
     (quotation omitted). Furthermore,
    “[i]t is well settled that knowledge by the defendant that the vehicle was moving in
    interstate commerce is not an essential element of an offense under [the Dyer Act].”
    United States v. Smith, 
    461 F.2d 246
    , 247 (10th Cir. 1972). This is because “[t]he
    essence of the offense is the fraudulent scheme itself and the interstate element is only
    included to provide a constitutional basis for the exercise of federal jurisdiction.” United
    States v. Newson, 
    531 F.2d 979
    , 981 (10th Cir. 1976). Thus, it does not matter if Burks
    knew the Escalade was going to be transported to Utah or end up in Martinez’s
    possession. See also United States v. Hayes, 
    739 F.2d 236
    , 238 (6th Cir. 1984) (holding
    that it is not necessary to prove an accomplice to a Dyer Act violation knew of the stolen
    vehicle’s movement in interstate commerce). It is enough that Burks provided key codes
    to the Elliots with full knowledge that the vehicles would be stolen and the relative scope
    of their auto-theft ring.
    III
    Burks contests the district court’s restitution order requiring him to pay $1,000 to
    the Escalade’s owners and $49,977 to the owners’ insurance company under the
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    Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. We review an
    MVRA restitution order for an abuse of discretion, although the application of the statute
    is reviewed de novo and the factual findings for clear error. United States v. James, 
    564 F.3d 1237
    , 1242 (10th Cir. 2009).
    Under the MVRA, the district court must award restitution for “any offense . . .
    against property under [United States Code Title 18] . . . in which an identifiable victim
    suffered a physical injury or pecuniary loss.” 18 U.S.C. § 3663A(c)(1). Dyer Act
    violations are clearly within that provision’s scope, and both the Escalade’s owner and
    their insurance company are identifiable victims. Accordingly, restitution under the
    MVRA is mandatory. The statute requires that the victims be compensated “the full
    amount of their losses as determined by the court and without consideration of the
    economic circumstances of the defendant.” 
    18 U.S.C. § 3664
    (f)(1)(A).
    The district court determined that returning the vehicle to its owner was not
    practical because the vehicle’s unsavory history had left it unsuitable for street use.
    Based on this determination, the court was required to award “the greater of (I) the value
    of the property on the date of the . . . loss . . .; or (II) the value of the property on the date
    of sentencing.” § 3663A(b)(1)(B)(i). This amount was to be offset by “the value (as of
    the date the property is returned) or any part of the property that is returned.”
    § 3663A(b)(1)(B)(ii). Taking this into account, the court determined the actual loss to the
    victims to be $50,977: $1,000 to compensate the Escalade’s owners for the deductible
    they paid and $49,977 to compensate the insurance company for replacing the Escalade.
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    On appeal, Burks argues that the district court erred by not subtracting the residual
    value of the vehicle, which at the time of the order was not in the victims’ possession.
    According to Burks, the vehicle was worth approximately $30,000 when it was
    recovered; he contends that amount should have been subtracted from the loss to the
    victims. But a restitution order under the MVRA “must be based on actual loss,” United
    States v. Parker, 
    553 F.3d 1309
    , 1324 (10th Cir. 2009), and may only be offset by the
    value of the property “returned” to the victim, § 3663A(b)(1)(B)(ii). Given this
    mandate, the district court properly declined to offset the actual loss suffered by the
    speculative value of the vehicle when returned to a victim in the future.2
    IV
    We AFFIRM Burks’ conviction and AFFIRM the district court’s restitution
    order.
    2
    The district court noted that the government had agreed to auction the vehicle
    and subtract that amount obtained from the amount owed. At oral argument, however,
    both parties stated that after the briefs were filed, the government returned the Escalade
    to the insurance company. Because the district court properly looked to the victims’
    losses and not the speculative amount that might be recovered once the Escalade was
    auctioned in its analysis, these new facts do not undermine the restitution order. Burks is
    free to bring a separate action if the government violated its agreement to auction the
    vehicle and apply the proceeds towards the $50,977 owed by Burks. However, any such
    agreement is not before this court, and we decline to consider or rule upon it.
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