U.S. v. Black, s. 94-1852

• Citation: 78 F.3d 1
• Decision Date: 16 January 1996
• Docket Number: Nos. 94-1852,95-1149 and 95-1187,s. 94-1852
• Parties: UNITED STATES of America, Appellee, v. Jack BLACK, Defendant, Appellant. UNITED STATES of America, Appellee, v. Herbert E. PLYMPTON, Defendant, Appellant. UNITED STATES of America, Appellee, v. Jeffrey Harris LAVIGNE, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1

78 F.3d 1

UNITED STATES of America, Appellee, v. Jack BLACK, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Herbert E. PLYMPTON, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Jeffrey Harris LAVIGNE, Defendant, Appellant.

Nos. 94-1852, 95-1149 and 95-1187.

United States Court of Appeals, First Circuit.

Heard Jan. 16, 1996.

Decided Feb. 27, 1996.

Appeals from the United States District Court for the District of Rhode Island; Francis J. Boyle, Senior U.S. District Judge.

David A. Schechter, Margaret-Mary Hovarth and Law Offices of David A. Schechter, Providence, RI, on brief, for appellant Jack Black.

Charles J. Rogers, Jr., Providence, RI, on brief, for appellant Herbert E. Plympton.

Paul A. Dinsmore, Rumford, RI, on brief, for appellant Jeffrey Harris Lavigne.

Jeffrey Harris Lavigne, pro se.

Gerard B. Sullivan, Assistant United States Attorney, Sheldon Whitehouse, United States Attorney, and Margaret E. Curran, Assistant United States Attorney, Providence, RI, on briefs, for the United States.

Before BOUDIN, Circuit Judge, COFFIN, Senior Circuit Judge, and ROSENN, ^* Senior Circuit Judge.

BOUDIN, Circuit Judge.

Appellants Jack Black, Herbert Plympton and Jeffrey Lavigne were indicted in November 1993 and charged with conspiracy to steal and sell goods in interstate commerce, 18 U.S.C. § 371, and with various substantive crimes incident to the conspiracy. Also named in the indictment as co-defendants were the alleged ring-leader, Donald St. Germain, and two others: Raymond Wilbur and Joni Lynn Smith, who was Plympton's wife. All of the indicted defendants, except for Lavigne and Plympton, later pled guilty to specific offenses. Several other co-conspirators pled guilty to informations.

Plympton and Lavigne were convicted in separate jury trials. At trial, the government sought to show that St. Germain organized a series of thefts of truck trailers and merchandise in 1991 and 1992. Typically, the thieves used a borrowed or stolen truck tractor to haul away an unattended trailer. After checking the contents, they moved the trailer to various locations in Rhode Island and thereafter disposed of the merchandise. One storage location was at the American Waste Paper Company in Cranston, Rhode Island; later, several shipments were stored at the Plympton farm in Exeter, Rhode Island.

In Plympton's case, the government dismissed the conspiracy count against him and tried him on three substantive counts relating to two of the many thefts attributed to St. Germain. Counts 1 and 2 of the redacted Plympton indictment charged him with receiving, concealing and disposing of a shipment of stolen Lands' End merchandise moving in interstate commerce in the fall of 1992 and of knowingly possessing stolen goods comprising part of the same shipment. 18 U.S.C. §§ 2315, 659. Count 3, based solely on section 2315, involved a shipment of Pennsylvania House furniture, stolen a month or so later and allegedly also stored at the Plympton farm.

Lavigne, St. Germain's companion or bodyguard, was indicted only on a single count. He was charged under 18 U.S.C. § 1512(b)(3) with threatening physical harm in order to delay or prevent one Kathleen Hartman from providing information to a law enforcement officer concerning commission of a federal offense. Hartman was the office manager of American Waste Paper Company and had provided information to state and federal agents. The government charged Lavigne with twice intimidating Hartman in the spring of 1991.

Black, who had pled guilty to conspiracy and to one substantive count under section 2315, was sentenced to 60 months' imprisonment; Plympton to 41 months; and Lavigne to 46 months. Substantial restitution payments were ordered for Black and Plympton, and Lavigne was fined $1,000. On appeal, Plympton and Lavigne challenge their convictions, and Black and Plympton appeal from their sentences.

Plympton. On this appeal, Plympton does not dispute the sufficiency of the evidence on counts 1 and 2 but argues that they comprised only a single offense, making the indictment multiplicitous and violating the bar against double jeopardy. More precisely, Plympton argues that the section 659 offense is effectively a lesser included offense within section 2315. If it were, Plympton could not be convicted and sentenced for both offenses based on the same theft. United States v. Parrilla-Tirado, 22 F.3d 368, 372 (1st Cir.1994).

Under the familiar test of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the two statutes do not punish the same offense, nor is one included within the other, where "each provision requires proof of an additional fact which the other does not." To prove a violation of section 659, the government had to show that Plympton stole or concealed property "moving as or ... part of or ... constitut[ing] an interstate ... shipment"; here, for example, the Lands' End shipment when stolen had been moving in interstate commerce.

Section 2315, by contrast, does not require proof that the theft was from interstate commerce; but it does require a different interstate-commerce element not required by section 659. Section 2315 punishes receiving or disposing of goods known to be stolen where such goods "have crossed a State ... boundary after being stolen." In this case, the Lands' End shipment, after being stolen in Pennsylvania, was moved to Plympton's farm in Rhode Island.

The central focus of each statute is somewhat different, one being concerned primarily with theft and concealment and the other with the receipt and disposition of stolen property. Plympton's activity, in the middle of the chain, brought him within the language of both. And the difference in the interstate commerce elements meets the mechanical Blockburger test. The test has been criticized, but it was properly applied in the district court, happens to do no injustice here (one trial; no increase in punishment), and is binding upon us.

No Blockburger problem is presented by count 3. It concerned a different theft--that of Pennsylvania House furniture--on a different occasion; and in this instance the charge was based only upon section 2315. But on this count Plympton does challenge the sufficiency of the evidence, arguing that the government failed to prove that the Pennsylvania House furniture was ever at his farm or, if it was, that Plympton knew about it.

Taking the evidence in the light most favorable to the government, United States v. Robles, 45 F.3d 1, 2 (1st Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 1416, 131 L.Ed.2d 300 (1995), the jury could reasonably conclude that Plympton used his farm to conceal stolen shipments for St. Germain; some of the stolen Lands' End merchandise was found on the farm and there was ample evidence that Plympton knew it was stolen. There was also evidence that Plympton had earlier concealed a stolen shipment of K-Mart merchandise on the farm. Against this background, the evidence to connect Plympton to the Pennsylvania State furniture shipment was sufficient even if not overwhelming.

Although none of the furniture was found at the farm, there was unequivocal testimony from one witness--Frank Macera--that Plympton received the furniture shipment and knew it to be stolen. Macera, who had pled guilty to a criminal information covering the same transaction, was not a very trustworthy witness. But the jury was entitled to accept his testimony, which was plausible enough, especially because technical and eye-witness evidence added small but useful elements of corroboration.

Finally, Plympton contests his sentence in several respects. First, in calculating the offense level, the district court imposed a two-level increase for obstruction of justice; specifically, the court found that Plympton had lied at trial when he denied knowing that the Lands' End merchandise in his barn was stolen and knowing anything about the Pennsylvania House furniture. No one disputes that the increase was required if Plympton did in fact commit perjury at trial. U.S.S.G. § 3C1.1; United States v. Hernandez Coplin, 24 F.3d 312, 317 (1st Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 378, 130 L.Ed.2d 328 (1994).

Plympton says that the evidence was insufficient to show that he knew that either load of furniture was stolen. But we have already said that there was enough to convict as to the Pennsylvania House furniture theft and the evidence against him as to the Lands' End theft was even stronger. If it was enough to convict, it was more than ample for a sentencing determination under the preponderance of the evidence standard. United States v. Lombard, 72 F.3d 170, 176 (1st Cir.1995). The claim of inadequate evidence is too weak to warrant further discussion.

After calculating the offense level, the trial judge departed upward by two additional levels. The grounds for this departure were that after conviction but before sentence Plympton created an irrevocable trust for his six year old daughter and transferred to it, without consideration, his real estate and business assets. The trial judge found after a hearing at which Plympton testified that the purpose of the transfer was to frustrate collection of a likely fine or restitution and that Plympton himself regarded the trust as "a sham."

Plympton now attacks the district court's finding, arguing (as he testified) that his purpose was simply to provide for his daughter during his imprisonment and in the event of divorce. But the evidence also showed that Plympton created the trust shortly after his wife had been ordered to pay over $400,000 in restitution; that Plympton had been warned by his lawyer that the trust might be viewed as an attempt to avoid payment of restitution or fines; and that Plympton intended to return to operate his business after release and expected to be able to use the real estate as well.

Fact-findings by the district court in...