267 F.3d 1113 (11th Cir. 2001), 00-10296, United States v Maung

Docket Nº:00-10296 and 00-14669
Citation:267 F.3d 1113
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MYAT MAUNG, Defendant-Appellant.
Case Date:September 25, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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267 F.3d 1113 (11th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

MYAT MAUNG, Defendant-Appellant.

Nos. 00-10296 and 00-14669

United States Court of Appeals, Eleventh Circuit

September 25, 2001

Appeals from the United States District Court for the Southern District of Florida, D.C. Docket No. 98-00720-CR-JAL

Before TJOFLAT, CARNES and REAVLEY[*], Circuit Judges.

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CARNES, Circuit Judge:

Myat Maung was convicted of on one count of conspiring, in violation of 18 U.S.C. § 371, to violate 18 U.S.C. § 2321(a) by receiving and possessing with intent to sell cars with altered identification numbers, and on one count of exporting stolen cars in violation of 18 U.S.C. § 553. The district court sentenced Maung to 39 months in prison and ordered him to pay $218,895.68 in restitution for his crimes. Maung appeals his conviction, his prison sentence, and the restitution order. We affirm the conviction, but reverse and remand the prison sentence because it improperly applied a sentencing enhancement, and reverse the restitution order because it was untimely.

I. FACTS AND PROCEDURAL HISTORY

A. FACTS

To understand the crimes of which Maung was convicted, it is necessary to understand the nature of his business. Maung was the owner and president of Transglobal Shipping, Inc., a Miami shipping company. Transglobal was a small company, with four or five employees. Maung was intimately familiar with all of the details of Transglobal's operations.

Transglobal was a non-vessel-operating common carrier, which means it did not own ships but rather was in the business of preparing goods for export and delivering them to a shipping line. Those preparations included receiving goods and having them loaded into containers, as well as completing the necessary exportation paperwork for the goods on the customers' behalf. To be able to legally export a car, a shipper must first clear the car through Customs by presenting various documents, including the car's title, bill of sale, and a power of attorney from the car's owner. Customs then stamps the documents, authorizing the export, after which the shipper is required to wait 72 hours before the car is shipped. Before the car is shipped, the shipping line prepares a bill of lading which documents the nature of the cargo, the owner, the shipper (in this case, Transglobal), and the consignee. After exporting a car, Transglobal kept files containing all the documents relating to each car shipped.

Maung's role in the conspiracy for which he was convicted was uncovered by chance. While in Kaliningrad, Russia, teaching a course on automobile theft to Russian police officers, Customs Agent Andrew Diamond was asked by the Russian officers to look at six cars which had been seized at the Port of Kaliningrad. When Diamond inspected the cars, he discovered that their vehicle identification numbers (VINs) had been altered.1 Agent Diamond took the shipping paperwork for the vehicles back to the U.S., where he began an investigation.

Determining that the cars had been shipped by Transglobal, Diamond visited its offices and asked Maung for his files relating to the six cars. Maung gave Diamond a log book and files for the six cars; when Diamond asked Maung who had been the customer for those six cars Maung told him the customer was "Hans Kluge." However, the logbook listed, in Maung's handwriting, the shipper for each of the six cars as "Rafal." "Rafal," as Diamond would later discover, was Rafal Kubicki, one of Maung's co-conspirators.

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When Diamond asked how Kluge had paid Transglobal for the shipments, Maung produced a file which contained correspondence between Maung and Kluge, photocopies of money orders which Maung said were used to pay for the shipments, a photocopy of Kluge's driver's license, and a business card for Kluge Automobile. Maung initially told Diamond that he had not arranged any other shipments to Kluge other than the six Russian cars.

Upon further investigation, Diamond learned that each of the six cars had been stolen in South Florida during October 1996. Diamond asked German authorities to investigate Kluge; they determined that the "Kluge" driver's license was a forgery and that Kluge Automobile did not exist at the address listed on the business card Maung had shown Diamond. Diamond then obtained a search warrant for the offices of Transglobal Shipping.

The warrant was executed on July 22, 1997. The agents found counterfeit manufacturers' sales stickers in a desk which also contained Maung's personal bank statements. They found counterfeit temporary automobile tags above the ceiling tiles in the bathroom, and blank car invoices on top of a cabinet. The agents found credit cards for several individuals, and a passport for Anwerali Sunderji. Sunderji's 1995 Mercedes with his passport in it had been stolen in South Florida on October 30, 1996. The agents seized all of those items as well as paperwork relating to the shipments of other cars.

Following the search, Agent Diamond analyzed the paperwork relating to Transglobal's shipments of other cars. He discovered numerous irregularities in the files for 33 of the 52 cars shipped between September 27, 1996 and November 7, 1996. None of those 33 cars had been cleared for export by Customs; therefore, all of the Customs' stamps in Maung's files for those cars were counterfeit. Agent Diamond was able to link most of the cars to "Kluge" or "Kluge Auto." Further, he discovered that the name "Rafal," which frequently appeared in the logbook, did not appear in any of paperwork or files for the cars. Twenty-six of the cars had "bad," i.e., nonexistent, VINs; four had "good" or existent VINs but those VINs did not match the cars to which they were assigned in Maung's paperwork. When Diamond attempted to locate the notaries whose seals were affixed to various documents in the files, he could find only one of them. She testified at trial the notary stamp used in Transglobal's paperwork was expired and all of her signatures on that paperwork were forgeries.

In August 1998, the grand jury subpoenaed all of Transglobal's records. Diamond compared the subpoenaed records to the records for the 33 suspect cars and discovered that, unlike the records of the 33 suspect cars, the subpoenaed records (with one or two exceptions) contained records of payment by the owner of the goods. Additionally, Diamond verified that each of the cars in the subpoenaed files had been cleared by Customs for export, in contrast to the 33 suspect cars, none of which had been cleared for export.

At trial, a friend of Maung's, Walter Crane, testified that he was present when Rafal Kubicki met with Maung about shipping cars. Crane also testified that he spoke with Maung about Maung's business dealings with Kubicki. According to Crane, Maung said that the cars he was shipping for Kubicki were stolen and their VINs had been changed. Maung said that Kubicki's associates stole the cars, and Kubicki got the counterfeit VIN plates from Europe. Maung admitted that the cars had not cleared U.S. Customs, and said Kubicki was supplying fraudulent documents and paying him in cash. Maung

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showed Crane a passport for Hans Kluge, and said Kluge was the person to whom the stolen cars were being shipped. Maung also showed Crane correspondence between Maung and Kluge, which Maung said would "cover his butt" if he ever had problems with Customs.

Meanwhile, in November 1996, a Miami-Dade police officer had tracked a Lo-Jack signal (an electronic signal used to locate cars) for a stolen gold Mercedes to CMA Towing, a company owned by Miguel Torres. When the gold...

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