U.S. v. Tutiven

• Decision Date: 14 November 1994
• Docket Number: No. 94-1209,94-1209
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. Fidel R. TUTIVEN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1

40 F.3d 1

UNITED STATES of America, Plaintiff, Appellee, v. Fidel R. TUTIVEN, Defendant, Appellant.

No. 94-1209.

United States Court of Appeals First Circuit.

Argued Aug. 1, 1994.

Decided Nov. 14, 1994.

Peter B. Krupp, Boston, MA, for appellant.

Timothy Q. Feeley, Asst. U.S. Atty., with whom Donald K. Stern, U.S. Atty., Boston, MA, was on brief, for appellee.

Before TORRUELLA, SELYA and CYR, Circuit Judges.

CYR, Circuit Judge.

Defendant Fidel R. Tutiven alleges 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 BACKGROUND ¹

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") appearing on the vehicles Tutiven delivered to Clair Motors. ² It was stipulated that the fourteen vehicles identified in the indictment 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 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 suitable for obliterating, altering, and replacing VINs, together with a small collection of Massachusetts, New Jersey and New York license plates. ⁴

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 Clair Motors. ³

A federal grand jury returned a twenty-seven-count 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. Sec. 2313, and with possessing, for sale, motor vehicles whose original VINs had been altered, in violation of 18 U.S.C. Sec. 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. Sec. 2313, and Count XIV, unlawful possession of a fourteenth vehicle bearing an altered VIN, in violation of 18 U.S.C. Sec. 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 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 inferences. See Fed.R.Evid. 404(b). Second, Tutiven contends

                that 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. Sec. 2B1.1(b)(5)(B) (the so-called "in-the-business" enhancement) was improper, in that there was no evidence that Tutiven knowingly received stolen property
                

II DISCUSSION

A. The Tools, Materials and License Plates

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 propensity. See Fed.R.Evid. 404(b). ⁵ Alternatively, he contends that any relevance the seized evidence may have had was substantially outweighed by the danger of unfair prejudice. See id. 403. ⁶

1. Fed.R.Evid. 404(b): "Other Acts" Evidence

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 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 altered. 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 Cir.1994). Its absolute bar is implicated, however, only if the challenged "other crimes, wrongs, or acts" are relevant exclusively to instigate an inference that the defendant is more likely to have acted in similar fashion by committing the offense for which he is on trial. See, e.g., United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982) (citing Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence, p 404-26 (1980); see also United States v. Ferrer-Cruz, 899 F.2d 135, 137 (1st Cir.1990). Plainly, by its very terms, see note 5 supra, Rule 404(b) interposes no absolute bar to circumstantial evidence intrinsic to the crime for which the defendant is on trial, but only to evidence of "other crimes, wrongs, or acts" whose probative value exclusively depends upon a forbidden inference of criminal 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 Cir.1992), we held that the defendant's prior conviction for cocaine possession was barred by Rule 404(b) since it was relevant only to establish an evidentiary predicate for a forbidden "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 to the conduct for which he was on trial. Id. at 709-14. By contrast, the probative value of the intrinsic evidence that Tutiven possessed VIN-altering tools and materials, at or about the time and place these offenses allegedly took place, in no respect depended upon an impermissible "criminal propensity" inference. Instead, Tutiven's possession of VIN-altering tools and materials, like an alleged burglar's contemporaneous possession of burglary tools, see, e.g., State v. Romano, 456 A.2d 746, 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 of, inter alia, see infra note 12, Tutiven's knowledge that the 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 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, 162 (1st Cir.1993) (upholding admission of scales, bags, and baggies seized from motel room registered to defendant's girlfriend at time of defendant's arrest on the marijuana charges for which he was on trial); United States v. Cresta, 825 F.2d 538, 554 (1st Cir.1987) (upholding admission of weapons possessed by defendant during the drug smuggling crime for which he was on trial).

Tutiven relies on United States v. DeVillio, 983 F.2d 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 admitting burglary tools as evidence of the modus operandi of the two appellants who were charged only with transporting stolen vehicles and stolen goods. Id. at 1188....