United States v. Gilbertson, Allen K. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2923
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALLEN K. GILBERTSON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04-CR-206-S-01—John C. Shabaz, Judge.
____________
ARGUED DECEMBER 1, 2005—DECIDED JANUARY 30, 2006
____________
Before EASTERBROOK, RIPPLE, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Allen Gilbertson, a used car
salesman, was charged with five counts of knowingly al-
tering the odometers of motor vehicles, in violation of 49
U.S.C. §§ 32703(2) and 32709(b). He was convicted on four
counts after a jury trial1, and he was sentenced to 15
months’ imprisonment on each count, to be served con-
currently. Gilbertson now challenges his convictions and
sentence on appeal. For the reasons set forth below, we
affirm in all respects.
1
Count 1 was dismissed prior to trial.
2 No. 05-2923
I. HISTORY
Steven Boehm noticed a 1989 Ford Probe sitting on the
lot at Griesbach Auto in Weston, Wisconsin. Believing there
was something familiar about the car, Boehm took a closer
look. Purely by coincidence, Boehm discovered the Probe
used to be his car; he had traded it in weeks earlier to
someone else. That was not his only discovery, however.
Boehm also discovered the odometer on the car now read
around 70,000 miles, which seemed odd to Boehm given
that the car had around 92,000 miles on it when he traded
it in. Boehm called Tom Krummel, an investigator with the
Wisconsin Department of Transportation (the “DOT”), to
relay his discoveries. An investigation ensued.
Krummel initially went to Griesbach Auto and located the
Probe. He later telephoned the dealership and spoke with
Gilbertson, a used car salesman and previous owner of the
then-defunct D&A Auto. During that call, Gilbertson said
the Probe was his (i.e., left over from D&A) and that the
speedometer had been replaced because it was defective.2
Krummel was suspicious, however, and arranged an in-
person meeting for June 20, 2001, at Krummel’s office in
Wausau, Wisconsin. Gilbertson attended as scheduled; also
present was Kevin Konopacki, an odometer fraud specialist
with the DOT.
Gilbertson initially denied tampering with the odometer
on the Probe. But upon further questioning, he admitted he
“changed out” (i.e., replaced) the odometer to make
the Probe easier to sell, even though the odometer was
working properly. He also admitted to tampering with the
2
The record indicates a speedometer and odometer are inextrica-
ble in that replacing the speedometer necessarily results in
the replacement of the odometer as well. A replaced odometer
is required to reflect zero miles, and a warning sticker is to be
placed on the vehicle.
No. 05-2923 3
odometers on approximately 25 other cars. At this point, the
investigators offered Gilbertson a deal. If Gilbertson
provided a written statement, identified the 25 cars, and
provided compensation to the victims, then they would refer
the case to the state prosecutor’s office, as opposed to the
U.S. Attorney. Gilbertson complied for the most part. He
provided a written statement admitting what he did and
admitting that what he did was wrong. He also provided
restitution to his victims, which covered approximately 70
cars, as opposed to the original 25.3 Furthermore, he
surrendered his business records as well as his license to
sell cars. As promised, his case was referred to the state
prosecutor’s office for prosecution.
Unfortunately for Gilbertson, the state prosecution did
not proceed as planned. Although not entirely clear from
the record, the state prosecutor apparently grew frustrated
with how the case was progressing and had all charges
dismissed. The prosecutor then referred the case to the U.S.
Attorney’s office for prosecution. On December 8, 2004,
Gilbertson was indicted by a federal grand jury with five
counts of odometer tampering. It is important to note the
Probe was not among the four remaining vehicles listed in
the indictment.
Prior to trial, Gilbertson filed a motion to suppress his
written and oral statements.4 In partially granting the
motion, the district court excluded any statements
Gilbertson made after the investigators offered their
deal. This included the written statement, and anything
Gilbertson said after the offer. Any statements made prior
to the offer were still admissible.
3
Krummel and Konopacki discovered the additional 45 vehicles
during the course of their investigation through a review of
Gilbertson’s records.
4
Gilbertson does not appeal the district court’s ruling on the
underlying motion to suppress.
4 No. 05-2923
At trial, the government introduced the Wisconsin
Certified Certificates of Title for the four vehicles listed in
the remaining counts. They contained the odometer state-
ments for the vehicles at the time they were purchased by
Gilbertson. The government then called the four victims,
who testified as to the mileage on the vehicles at the time
they purchased them. Their testimony established that the
mileage on their respective vehicles was less than that
listed on the corresponding titles.
The government faced a significant obstacle at trial. The
admissible evidence established Gilbertson admitted to
tampering with approximately 25 cars, but there was
little evidence linking Gilbertson’s tampering to the four
specific vehicles listed in the indictment, as the Probe
was not included in the remaining counts and all of
Gilbertson’s subsequent statements had been excluded.
During the cross-examination of Konopacki, Gilbertson’s
attorney went to great lengths to point out Konopacki did
not inspect the four vehicles, nor did he contact the previous
owners regarding the odometer statements. On re-direct,
however, the government asked Konopacki why he did not
inspect the vehicles or contact the previous owners.
Konopacki answered he contacted Gilbertson directly and
asked him if each of the four vehicles were one of the
original 25, and Gilbertson responded, “Yes.” This provided
the necessary link the government was looking for.
Gilbertson’s attorney did not object to this testimony, at
least not until a recess, at which time the trial judge found
the objection was not timely and was therefore waived.
On appeal, Gilbertson argues the admission of the vehicle
titles to establish the vehicles’ mileage at the time of his
purchase constituted testimonial hearsay under Crawford
v. Washington, 541 U.S. 36 (2004), and thus violated his
right under the Confrontation Clause of the U.S. Constitu-
tion. He further argues the government engaged in prosecu-
torial misconduct by eliciting his post-deal confirmations
No. 05-2923 5
regarding the four vehicles in violation of the district court’s
order. Along the same lines, Gilbertson argues the govern-
ment’s repeated reference to his “confession” during closing
argument also violated the court’s order and constituted
prosecutorial misconduct. Finally, Gilbertson argues he was
entitled to a reduction in his Guidelines sentence for the
acceptance of responsibility.
II. ANALYSIS
A. Sixth Amendment Claim
Gilbertson asserts that the admission of the odometer
statements from the certified certificates of title for the four
vehicles contained in the indictment violated his rights
protected by the Sixth Amendment’s Confrontation Clause.
The titles contained a chronological listing of the mileage
for the previous owners. At trial, the mileage was compared
to the mileage testified to by each of the buyers of the
vehicles contained in the indictment to establish that the
mileage displayed on the odometers had been lowered.
The Sixth Amendment provides that a criminal defendant
“enjoy[s] the right . . . to be confronted with the witnesses
against him.” U.S. Const. amend. VI. We review an eviden-
tiary ruling that affects a defendant’s right to confront
witnesses de novo. United States v. Scott, 145 F.3d 878, 888
(7th Cir. 1998) (citation omitted); see United States v.
Hendricks, 395 F.3d 173, 176-77 (3d Cir. 2005) (citations
omitted). The United States Supreme Court recently held
that a “testimonial statement” is not admissible at trial
under the Confrontation Clause unless the declarant is
unavailable to testify and the defendant had a prior
opportunity to cross-examine him or her. Crawford, 541
U.S. at 53-54. However, the Court “le[ft] for another day
any effort to spell out a comprehensive definition of ‘testimo-
nial.’ ” Id. at 68.
6 No. 05-2923
The Court did provide us with some guidance on what
constitutes “testimonial.” For example, “[w]hatever else the
term covers, it applies at a minimum to prior testimony at
a preliminary hearing, before a grand jury, or at a former
trial; and to police interrogations.” Id. The Court also noted
three formulations of the “core class of ‘testimonial’ state-
ments”: 1) “ex parte in-court testimony or its functional
equivalent—that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was
unable to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used
prosecutorially”; 2) “extrajudicial statements . . . contained
in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions”; and 3) “state-
ments that were made under circumstances which would
lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.” Id. at
51-52 (citations and quotations omitted).
Gilbertson’s argument, a rather conclusory one with
virtually no legal citations other than to Crawford, focuses
almost entirely on the second formulation above. Gilbertson
repeatedly points out the Court included affidavits
as examples of testimonial statements, and he intimates the
odometer statements contained in the titles were equivalent
to affidavits. Gilbertson also relies on the definition of
“testimony,” in that the odometer statements were solemn
declarations or affirmations made for the purpose of
establishing or proving some fact. But Gilbertson’s heavy
reliance on the dictionary definition of “testimony” and the
second formulation above misses the point of Crawford. The
second formulation is based upon Justice Thomas’s concur-
ring opinion in White v. Illinois, 502 U.S. 346, 365 (1992)
(Thomas, J., joined by Scalia, J., concurring in part and
concurring in judgment). In White, Justice Thomas con-
structed his formulation as follows:
No. 05-2923 7
The federal constitutional right of confrontation extends
to any witness who actually testifies at trial, but the
Confrontation Clause is implicated by extrajudicial
statements only insofar as they are contained in formal-
ized testimonial materials, such as affidavits, deposi-
tions, prior testimony, or confessions. It was this
discrete category of testimonial materials that was
historically abused by prosecutors as a means of depriv-
ing criminal defendants of the benefit of the adversary
process, and under this approach, the Confrontation
Clause would not be construed to extend beyond the
historical evil to which it was directed.
Id. at 365 (citation omitted). The “evil” that Justice Thomas
was referring to “was the civil-law mode of criminal proce-
dure, and particularly its use of ex parte examinations as
evidence against the accused.” See Crawford, 541 U.S. at 50.
Therefore, reading Justice Thomas’s formulation with the
first and the third, it is readily apparent from Crawford
that “[o]nly statements made following government official
initiated ex parte examination or interrogation developed in
anticipation of or in aid of criminal litigation are encom-
passed within the core meaning of the confrontation clause.”
30B Michael H. Graham, Federal Practice and Procedure §
7032 (2d ed. Supp. 2005). Other circuits have come to a
similar conclusion. United States v. Cromer, 389 F.3d 662,
673-74 (6th Cir. 2004) (explaining, under Crawford, that a
statement is testimonial if “made in circumstances in which
a reasonable person would realize that it likely would be
used in investigation or prosecution of a crime”); United
States v. Hinton, 423 F.3d 355, 360 (3d Cir. 2005) (citation
omitted); United States v. Summers, 414 F.3d 1287, 1302
(10th Cir. 2005); United States v. Saget, 377 F.3d 223, 228-
29 (2d Cir. 2004); Horton v. Allen, 370 F.3d 75, 83-84 (1st
Cir. 2004).
The odometer statements in the instant case are not
testimonial because they were not made with the respective
8 No. 05-2923
declarants having an eye towards criminal prosecution. See
Crawford, 541 U.S. at 56 n.7. The statements were not
initiated by the government in the hope of later using them
against Gilbertson (or anyone else), nor could the declarants
(or any reasonable person) have had such a belief. The
reason is simple: each declaration was made prior to
Gilbertson even engaging in the crime. Therefore, there is
no way for the sellers to anticipate that their statements
regarding the mileage on the individual cars would be used
as evidence against Gilbertson for a crime he commits in
the future. We have no trouble concluding that the odome-
ter statements are not testimonial as they were not made in
anticipation of or in aid of criminal litigation. We further
note the statements were not initiated by the government
to aid it in a criminal investigation; rather, they were
initiated by the individuals solely in an effort to comply
with the state’s procedures to sell a car. There is no appar-
ent risk of abuse by prosecutors, and the evil of which
Justice Thomas alluded to could not be present here.
As a final matter, we note Crawford does provide some
examples of testimonial evidence, namely “police interroga-
tions” and “prior testimony at a preliminary hearing, before
a grand jury, or at a former trial.” Id. at 68. Naturally, the
odometer statements could not properly be categorized as
any of these.
B. Prosecutorial Misconduct
Gilbertson argues the government engaged in prosecuto-
rial misconduct when it elicited testimony from Konopacki
that the district court had previously ordered could not
be used by the government for any purpose. As stated
previously, the district court partially granted Gilbertson’s
pretrial motion to suppress statements, and ordered that all
statements he made to Konopacki and Krummel subsequent
to Konopacki’s offer to forego referral to the U.S. Attorney
No. 05-2923 9
could not be used by the government at trial. After the offer,
Konopacki called Gilbertson regarding the four vehicles
listed in the indictment. Konopacki asked if these vehicles
were among the 25 vehicles that Gilbertson had earlier
indicated had been tampered with. Gilbertson responded,
“Yes.” It is this later confirmation that the government
introduced at trial of which Gilbertson now complains.
We analyze claims of prosecutorial misconduct using
the two-step framework established in Darden v. Wain-
wright, 477 U.S. 168 (1986). The first question is whether
the prosecutor’s comments were improper. Id. at 180-81(citations omitted). If improper, then we must decide
whether they prejudiced the defendant. Id. Six factors guide
the prejudice inquiry: 1) whether the prosecutor misstated
the evidence; 2) whether the remarks implicated specific
rights of the accused; 3) whether the defense invited the
response; 4) the trial court’s instructions; 5) the weight of
the evidence against the defendant; and 6) the defendant’s
opportunity to rebut. United States v. Washington, 417 F.3d
780, 786 (7th Cir. 2005) (citation and quotations omitted).
In the instant case, the prosecutor’s question was not
improper, and we need not reach the second inquiry.
It was Gilbertson’s counsel who opened the door to this
line of questioning. During Konopacki’s cross-examination,
Gilbertson’s attorney repeatedly asked questions focusing
on the fact that Konopacki did not physically inspect the
four vehicles listed in the indictment for evidence of tamper-
ing. The record is replete with this testimony; for illustra-
tive purposes, we recount an exchange between Gilbertson’s
attorney and Konopacki regarding one of the vehicles:
Q: Did you personally check—again, you did not
personally check this to see if there was physical
signs of rolling back any odometer on the Tara
Blood vehicle?
A: That’s correct.
10 No. 05-2923
Q: Did you personally check for any repair stickers
in the doorframe of the vehicle?
A: I did not personally check, no.
Q: Are you aware of any physical evidence, physical
evidence that the dash was repaired or removed
on that vehicle?
A: No.
Q: Did you ever interview Bradley Vowell, Rosemurgy
Toyota or Fox Valley Wholesale to verify their
mileage?
A: No, I did not.
The problem with this line of questioning is that
Gilbertson’s counsel knew why no interviews or physical
examinations had been made. It is undisputed the attor-
ney had known since the final pretrial conference that
the reason Konopacki performed no further investigation is
because Konopacki would telephone Gilbertson himself, who
in turn confirmed that the vehicle was indeed one of the
ones that had been tampered with and was included in the
25 vehicles Gilbertson mentioned earlier. Therefore, there
was no need for Konopacki to investigate any further.
In effect, the jury may have been misled into believ-
ing Konopacki conducted a shoddy investigation. The
attorney’s statements during closing argument make clear
what he was attempting to establish. For example, he
stated, “[Konopacki] admitted that he had never—
he admitted that he had never looked at the vehicles
himself. . . . [S]ince he has no physical evidence,
[Konopacki] is relying upon titles that he never checked out,
he never verified and he never checked the figures on. . . .
Where was the follow-up in this investigation to verify that
the mileage in fact was as represented?” Furthermore, he
stated, “Mr. Konopacki chose to make no investigation
whatsoever about the true mileage on this car because he
No. 05-2923 11
didn’t really care to know. He was so sure of his assump-
tions that he failed to investigate the truth behind the
titles.”
The truth is there was follow-up, via Konopacki’s confir-
mation with Gilbertson. The government was entitled to
bring this testimony out during Konopacki’s re-direct
examination, despite the district court’s order to the
contrary, because Gilbertson’s attorney opened the door to
this line of questioning. See United States v. Moore, 115
F.3d 1348, 1358 (7th Cir. 1997) (stating that when a party
opens the door to evidence that would be otherwise inadmis-
sible, that party cannot complain on appeal about the
admission of that evidence); United States v. Wynn, 845
F.2d 1439, 1443 (7th Cir. 1988). As the government aptly
argued in its brief before us, “Gilbertson’s counsel pushed
[ ] Konopacki into a corner knowing the only exit was
closed.”
Gilbertson also argues prosecutorial misconduct oc-
curred when the government repeatedly referred to his
“confession” during its closing argument. Gilbertson claims
the statements he made that were actually admitted at trial
did not constitute a confession. Therefore, according to the
argument, a new trial is warranted because of “the impor-
tance of the image created in the jury’s mind that Mr.
Gilbertson confessed” when the evidence did not actually
establish the existence of a confession.
It is undisputed Gilbertson did not object to this charac-
terization at trial. In accordance with Federal Rule of
Criminal Procedure 52(b), we review any error not ob-
jected to at trial for plain error. Plain error exists when the
error is clear, affected substantial rights, and was prejudi-
cial. Johnson v. United States, 520 U.S. 461, 466-67 (1997).
We conclude that the characterization of Gilbertson’s
statements as a confession was not plain error. A confession
is “[a] criminal suspect’s oral . . . acknowledgment of guilt,
12 No. 05-2923
often including details about the crime.” Black’s Law
Dictionary 317 (8th ed. 2004); Gov’t of Virgin Islands v.
Harris, 938 F.2d 401, 409 n.5 (3d Cir. 1991) (defining
“confession” as “a statement admitting or acknowledging all
facts necessary for conviction of the crime”) (cita-
tion omitted). The evidence properly introduced during trial
clearly indicated Gilbertson admitted to tampering with the
odometer in the Ford Probe and that he knew this was
wrong.5 He also admitted to tampering with the odometers
on approximately 25 cars.
It is true that these statements by themselves do not
rise to a confession in this case, as there is no link be-
tween them and the four cars specifically listed in the
indictment. However, as explained above, Konopacki
testified on re-direct examination that Gilbertson later
confirmed that the four cars listed in the indictment were a
part of the original 25 that he mentioned earlier, and this
testimony was properly admitted. Gilbertson’s later confir-
mation provides the necessary link between his previous
statement regarding the 25 cars and the four cars actually
contained in the indictment. Because Gilbertson did confess,
we find no error in the government’s characterization of
Gilbertson’s statements as such.
C. Reduction for Acceptance of Responsibility
Gilbertson’s final argument is that Judge Shabaz
abused his discretion in failing to grant Gilbertson a
5
Gilbertson disputes whether there was any admissible evi-
dence regarding his willfulness and whether he knew his actions
were wrong. However, Konopacki testified as follows: “I just
remember [Gilbertson] taking a big sigh of relief and he said
he was glad to get this off his shoulders and, you know, that
he knew it was a mistake. He was apologetic and he knew it
was wrong.” As a result, there was indeed testimony of Gilbert-
son’s willfulness.
No. 05-2923 13
reduction in his sentence for acceptance of responsibility.
An acceptance of responsibility determination is a factual
finding that we review for clear error. See United States
v. Hendricks, 319 F.3d 993, 1009 (7th Cir. 2003) (citation
omitted); United States v. Herrera-Ordones, 190 F.3d 504,
511-12 (7th Cir. 1999) (citations omitted); United States
v. Cunningham, 103 F.3d 596, 597-98 (7th Cir. 1996)
(citation omitted).
Gilbertson’s shortcoming is that he does not establish it
was clear error for Judge Shabaz to conclude Gilbertson did
not fully accept responsibility for his actions. The sentenc-
ing judge who makes the acceptance of responsibility
determination is due great deference, United States
v. Guadagno, 970 F.2d 214, 224 (7th Cir. 1992), as that
judge “is in a unique position to evaluate a defendant’s
acceptance of responsibility.” U.S.S.G. § 3E1.1, cmt. 5. “[A]n
appellate court is ill-equipped to assess whether a particu-
lar defendant is motivated by genuine acceptance of
responsibility or by a self-serving desire to minimize
his own punishment. Unlike the district court judge, we
do not enjoy a ‘front row seat’ from which to assess [the
defendant’s] statements and demeanor.” Cunningham,
103 F.3d at 598 (citations omitted).
The main hurdle Gilbertson must overcome is that he
elected to plead not guilty and proceed to trial. While
he recognizes that the reduction for acceptance of responsi-
bility is not generally available for defendants who proceed
to trial, he argues he is eligible since his defense was
“limited to a legal point,” namely that he did not act
willfully under the statute. Gilbertson misstates the law,
and his reliance on United States v. Woodward, 408 F.3d
396 (7th Cir. 2005) is wholly misplaced. The reduction is
generally not available to those who go to trial to contest
“the essential factual elements of guilt.” U.S.S.G. § 3E1.1,
cmt. 2; United States v. Velez, 46 F.3d 688, 694 (7th Cir.
1995); United States v. Gomez, 24 F.3d 924, 926 (7th Cir.
14 No. 05-2923
1994). A defendant would typically only be eligible if he
went “to trial to assert and preserve issues that do not
relate to factual guilt,” like constitutional challenges to the
relevant statute or challenges to the applicability of a
certain statute. U.S.S.G. § 3E1.1, cmt. 2; Cunningham, 103
F.3d at 598 (citation omitted).
Our own review of the record reveals it was not clear
error for the district court judge to conclude Gilbertson
contested the essential factual elements of guilt and was
thus ineligible for the reduction. Gilbertson himself ad-
mits his defense was based in part on his willfulness, which
is an essential factual element of guilt. At trial, Gilbertson
challenged the manner in which the investigation was
conducted, the accuracy of the title documents, and the
recollection of the victims. He relied heavily on his defense
that he lacked the requisite intent under the statute. Given
this information, Gilbertson has not convinced us the
district court judge’s decision was clear error. See United
States v. Williams, 202 F.3d 959, 962 (7th Cir. 2000)
(finding no clear error in denying acceptance of responsibil-
ity when defendant challenged factual evidence of guilt and
required government to prove its case against him); United
States v. Bonanno, 146 F.3d 502, 513 (7th Cir. 1998)
(finding no clear error in denying acceptance of responsibil-
ity when defendant challenged factual evidence of guilt,
attempted to discredit testimony of FBI agent, and did not
contest the constitutionality or applicability of relevant
statute).
As a final matter, Gilbertson does not argue that his
ultimate prison sentence was unreasonable. A sentence
within a properly calculated guideline range, as is the
case here, is presumptively reasonable, United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), and Gilbertson
does not identify any factor under 18 U.S.C. § 3553(a) that
might allow us to conclude that the district court was
obligated to impose a lower sentence. Therefore, Gilbertson
No. 05-2923 15
does not rebut the presumption that his Guidelines sen-
tence was reasonable. See id.III. CONCLUSION
For the reasons set forth above, we conclude there was no
Sixth Amendment violation during Gilbertson’s trial, nor
was there prosecutorial misconduct. Further, it was not
clear error for the district court judge to find
that Gilbertson had not accepted responsibility. The
jury’s verdicts will not be disturbed, and the convictions and
sentence are AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-30-06