U.S. v. Martin

• Citation: 157 F.3d 46
• Decision Date: 02 July 1998
• Docket Number: No. 97-1341,97-1341
• Parties: UNITED STATES of America, Appellee, v. George Dean MARTIN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 46

157 F.3d 46

UNITED STATES of America, Appellee, v. George Dean MARTIN, Defendant-Appellant.

No. 97-1341.

United States Court of Appeals, Second Circuit.

July 2, 1998.

Richard I. Rubin, Rubin, Kidney, Myer & DeWolfe, Barre, Vermont, for Defendant-Appellant.

David V. Kirby, Assistant United States Attorney, Chief, Criminal Division (Charles R. Tetzlaff, United States Attorney for the District of Vermont), Burlington, Vermont, for Appellee.

Before: OAKES, WALKER, and MAGILL, ^* Circuit Judges.

JOHN M. WALKER, JR., Circuit Judge.

Defendant-appellant George Dean Martin appeals from his judgment of conviction, after a jury trial in the United States District Court for the District of Vermont (J. Garvan Murtha, Chief District Judge ), of four counts of interstate transportation of stolen property in violation of 18 U.S.C. § 2314. On appeal, he challenges the sentence imposed by the district court, as well as the district court's denial of his pre-trial motion to suppress evidence. We affirm the judgment of the district court.

BACKGROUND

Martin owned and operated Warplanes, Inc. ("Warplanes"), a company engaged in the business of restoring old aircraft and buying and selling aircraft parts. Warplanes is located in a hangar at Burlington International Airport in South Burlington, Vermont. In December 1991, the Burlington Police Department received a complaint from employees of Metro Air Northeast ("MANE"), a bankrupt commuter airline, that several items of avionics equipment were missing from its hangar, which was adjacent to the Warplanes hangar. Several MANE employees identified Martin as a suspect. On December 6, 1991, Burlington Police Corporal James F. Mullins, Jr. interviewed Martin, who denied any involvement in the thefts.

MANE entered the serial numbers of the stolen items into a nationwide stolen parts locator service. On or about December 10, 1991, John Braddock, a co-owner of Air Transport Avionics ("Air Transport") in Coral Springs, Florida, noticed that eight parts that his company had purchased from Martin on November 25 and December 5, 1991 were listed in the stolen parts locator service as having been stolen from MANE. Braddock telephoned Martin, informed him that the parts were stolen, and demanded a refund. Martin agreed, telling Braddock "I hope this goes no further." On December 11 and December 16, 1991, Braddock mailed the stolen parts to Martin. He sent one package via On December 20, 1991, Corporal Mullins obtained a warrant from a state judicial officer to search "[a]ny and all aircraft hangers (sic), buildings, offices structures (sic), vehicles and aircraft that are affiliated with Warplanes, Inc, being a business located at the Burlington International Airport in South Burlington, VT." In support of its warrant application, the police submitted, inter alia, affidavits from Braddock and the other Air Transport co-owner Timothy Murray. Both affidavits misidentified the company as "War Planes" instead of "Warplanes," and stated that the company was located in "Burlington," rather than "South Burlington." On December 23, 1991, officers executed the search warrant. Just before the search, Martin volunteered to police officers that he had knowingly sold stolen parts, but claimed that he did so only as a favor to a MANE employee. After Martin's admission, the officers informed Martin that they had a warrant to search the premises. When the search revealed eight stolen parts locked in a file cabinet in Martin's office, the officers placed Martin under arrest. Subsequent investigation revealed that on July 31, 1991, Martin offered to sell additional stolen parts to a Swiss company, Crossair Ltd.

Federal Express, and the other via the United Parcel Service (UPS). Braddock then notified the Burlington Police Department and turned over the package tracking numbers.

At the request of the police, UPS intercepted and held one of the packages that Air Transport had shipped to Martin when the package arrived at the Williston, Vermont UPS office on December 20, 1991. On December 31, 1991, police officer Stephen J. Wark obtained a warrant to search this package, identified by its UPS "pick-up" number and by the items believed to be located inside. On January 2, 1992, pursuant to the warrant, the officers searched the package and found the airplane parts that Martin had shipped to Air Transport on December 5, 1991.

On August 29, 1995, Martin was indicted on four counts of transporting stolen property in interstate commerce in violation of 18 U.S.C. § 2314. On September 17, 1996, a jury found Martin guilty on all four counts. On May 19, 1997, Chief Judge Murtha sentenced Martin to fifteen months' imprisonment, two-years' supervised release, and a $5,000 fine, and ordered restitution in the amount of $16,929.

DISCUSSION

On appeal, Martin argues that the district court failed to make clear and specific findings at sentencing resolving the amount of loss for which Martin could be held responsible. Further, he argues that the district court improperly calculated his offense level. Finally, he argues that the district court improperly failed to suppress evidence seized from Martin's office on December 23, 1991 and from UPS on January 2, 1992.

I. Sentencing Issues

Martin's prison sentence of 15 months was based on an adjusted offense level of 14 and a criminal history category of one. The court calculated the offense level as follows. Starting with the base offense level of four for transporting stolen property, see U.S.S.G. § 2B1.1(a), the district court adopted the finding of the presentence report ("PSR") and found that Martin's actions caused a loss of approximately $89,640, warranting an eight level increase, see U.S.S.G. § 2B1.1(b)(1)(I). The district court then increased the offense level by an additional two levels because the crime involved more than minimal planning, see U.S.S.G. § 2B1.1(b)(4)(A), resulting in the final adjusted offense level of 14.

Martin argues first that the district court failed to make sufficiently clear and specific findings at sentencing. "Where the sentencing judge neither clearly resolves [a] disputed issue nor explicitly relies on factual assertions made in a PSR," this court must remand for further findings. United States v. Reed, 49 F.3d 895, 901 (2d Cir.1995); see United States v. Ortega, 94 F.3d 764, 768 (2d Cir.1996) (sentencing court must make sufficient findings to allow appellate review). According to Martin, the amount of loss for which he was held liable should have been limited to the value of the parts he actually We do not accept Martin's argument. A sentencing court satisfies its obligation to clearly resolve disputed sentencing issues if it " 'indicates, either at the sentencing hearing or in the written judgment, that it is adopting the recommendations' " of the probation officer in the PSR. United States v. Prince, 110 F.3d 921, 924 (2d Cir.) (quoting United States v. Thompson, 76 F.3d 442, 456 (2d Cir.1996)), cert. denied, --- U.S. ----, 118 S.Ct. 188, 139 L.Ed.2d 127 (1997). While the district court could have been more explicit, it plainly intended to adopt the PSR's findings on relevant conduct. The PSR indicates that the total value of the stolen parts possessed by Martin, including the parts that he never sold, was $89,640. At the sentencing hearing, the district court ruled as follows:

                transported as alleged in the indictment;  $28,900, and should not have included the value of other stolen parts which Martin possessed but never sold, approximately $60,000.  Pursuant to U.S.S.G. § 1B1.3(a)(2), a defendant can be held liable for uncharged relevant conduct that was "part of the same course of conduct or common scheme or plan as the offense of conviction."   However, Martin argues that the district court did not make adequate findings to support its conclusion that the possession of the $60,000 of stolen parts was relevant conduct
                

... I'm finding, based upon relevant conduct in the guidelines, that there was a course of conduct and that it was part of a common scheme to bring it up to the amount that the presentence report indicates, almost $90,000. So that those levels are justified.

And, therefore, starting with 4--a base level of 4, it's increased by 8 levels, and then another 2 levels for more than minimal planning.

Sentencing Transcript at 32 (emphasis added). Although the court did not say in so many words: "I am adopting the findings in the PSR", this was the court's obvious intent; the government proffered, and the PSR suggested, only one factual theory under which Martin could have been held liable for stolen property valued at $89,640. Cf. Reed, 49 F.3d at 901 (where the government proffers more than one basis for an enhancement, the court must specify the basis on which it relies). We will not remand where the court's intention is plain from the record.

Second, Martin argues that, even if Chief Judge Murtha satisfactorily explained his conclusion that Martin's possession of the unsold equipment was part of the same course of conduct and common scheme or plan as the conduct charged in the indictment, that conclusion lacks evidentiary support. We review the district court's factual determination of relevant conduct for clear error. See United States v. Giraldo, 80 F.3d 667, 679 (2d Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 135, 136 L.Ed.2d 83 (1996).

As we explained above, a judge calculating a defendant's adjusted offense level should consider all of the defendant's relevant conduct, including "all acts and omissions ... that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2). "For two or more offenses to constitute part of a common scheme or plan, they must be substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi." U.S.S.G. § 1B1.3 Application...