U.S. v. Caseslorente

• Citation: 220 F.3d 727
• Decision Date: 09 December 1999
• Docket Number: No. 98-6217,98-6217
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Jose Antonio Caseslorente,Defendant-Appellant. Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 727

220 F.3d 727 (6th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Jose Antonio Caseslorente,Defendant-Appellant.

No. 98-6217

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: December 9, 1999

Decided and Filed: July 20, 2000

Appeal from the United States District Court for the Western District of Tennessee at Memphis; No. 97-20091--Jerome Turner, District Judge.

Cam Towers Jones, Tracy L. Berry, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.

Stephen B. Shankman, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant.

Before: BOGGS and SUHREINRICH, Circuit Judges; POLSTER, District Judge.^*

OPINION

POLSTER, District Judge.

Defendant Jose Antonio Caseslorente appeals from his jury conviction for theft of government property, conspiracy to steal government property, interstate transportation of stolen goods, and mail fraud on the basis that, under 18 U.S.C. § 641, the United States failed to prove that the stolen property belonged to the government. Caseslorente also appeals from the district court's enhancement of his sentence under U.S.S.G. § 3B1.1(c) for his role in the offenses. For the following reasons, we AFFIRM.

I.

Caseslorente was a Chief Petty Officer at the Naval Base in Millington, Tennessee. As part of his naval duties, Caseslorente was assigned to work at the Naval Support Activity Memphis Recycling Center (the "Center" or "Recycling Center") which was located on the base. Although Caseslorente testified to not officially being named manager of the Center until June 1995, sufficient evidence shows that he was in fact in charge before that time.¹ In addition to sailors, the Center employed inmates from the Millington Prison Camp.

The Center collected scrap aluminum cans, pasteboard, and other recyclables from persons living on the base and from the surrounding Millington community. The Navy had a contractual arrangement with the city of Millington whereby the Navy would pick up the recyclables in exchange for keeping any revenue derived therefrom. The collected material was taken to the Recycling Center where it was sorted, cleaned, baled and stored until such time as it could be sold to vendors. Once the recyclables were baled, they were either picked up by, or delivered to, the government's vendors in government trucks or civilian contractor vehicles. Under no circumstances were private vehicles to be used for the transportation of this material. Nonetheless, on at least three occasions Caseslorente delivered baled materials to Iskiwitz Metals after hours in his personal truck.

All proceeds for the recycling activity went to the Morale, Welfare, and Recreation ("MWR") Department of the Navy where they were deposited in a fund benefitting programs for sailors and their dependents. The Navy billed the vendors directly, and directed that payment be remitted to the MWR Department by check made payable to the MWR Department. No one at the Recycling Center was authorized to accept payment for the recyclables. However, the MWR Department occasionally received checks payable to Caseslorente. While the Department processed these particular checks for a time, Caseslorente eventually told the Department that he would pick them up.

Petty Officer Robert Robinson, a Recycling Center employee, testified that he conspired with Caseslorente to steal and sell cardboard and aluminum cans. He testified that Caseslorente arranged the shipments of the baled recyclables, and Robinson agreed to have the checks sent to Robinson at his home address. The record shows that, shortly after the criminal scheme began, Robinson received a check at his home made payable to the MWR Department. He immediately took this check to Caseslorente, who resolved the problem himself.² Robinson testified to three occasions on which he and Caseslorente delivered and sold aluminum cans to Iskiwitz Metals after hours in Caseslorente's own truck. Robinson also testified that he asked Caseslorente for permission to quit the conspiracy, but Caseslorente would not let him, and that Caseslorente once checked him for a surveillance wire.

Employees of various paper vendors and trucking companies testified to certain irregular transactions. An employee of Recycled Fibers testified that a check made out to "MWR Fund, R. Robinson" was replaced, upon request, with a check made out simply to "R. Robinson." The company issued a second check to the same name for payment on a subsequent occasion. On a third occasion, Recycled Fibers issued a check for payment to Stacy Gatley, a name provided by Robinson. A driver for Builders Transport, Inc. testified to transporting 40,000 pounds of corrugated cardboard from Millington to Recycled Fibers in Mobile, Alabama at the request of someone identifying himself as Caseslorente. A driver for Weyerhauser Paper Company testified to transporting paper from the Recycling Center to a place near a Weyerhauser mill in Oklahoma, without receiving a bill of lading for the shipment. Evidence shows that Caseslorente sometimes used the inmates assigned to work at the Center to load and strap down the stolen goods just as he used them to load regular shipments.

The Navy opened an investigation of this activity in June 1996 after receiving information from one of the government's vendors about questionable billing practices at the Center. On April 30, 1997, a grand jury returned a thirteen-count indictment charging Caseslorente with theft of government property, conspiracy to steal government property, interstate transportation of stolen goods, and mail fraud. One count was subsequently dismissed by the district court, and Caseslorente pled 'not guilty' to the remaining twelve counts.

A jury trial began on June 1, 1998. Three days later, the jury returned a verdict of guilty on all counts. The Probation Office subsequently prepared a Presentence Investigation Report recommending, under U.S.S.G. § 3B1.1(c), that Caseslorente's sentence be enhanced by two levels based on his role as a "leader, organizer, manager, or supervisor" of the criminal activity. Caseslorente objected to the proposed enhancement. The Probation Office thereafter filed an addendum to the Report supporting its position.

On August 21, 1998, a sentencing hearing was held during which Caseslorente reiterated his objection to the § 3B1.1(c) enhancement. After presentation of evidence, the district court concluded:

Because of Mr. Robinson's involvement in this matter and his prior participation, I find this question a little closer than I might otherwise. Mr. Robinson was no angel himself. There is evidence that the defendant points out that perhaps he was not being led, but there is other evidence in this record that the government just referred to, that when, taken as a whole convinces me that the two point adjustment upward . . . is the appropriate . . . I think the balance of the evidence - I know the balance of the evidence leads me to conclude that the Chief was an organizer, a leader, a supervisor, a prime personality in this crime.

Sentencing Hearing, Joint Appendix, p. 237. The court sentenced Caseslorente to 18 months of imprisonment followed by two years of supervised release. On August 26, 1998, the district court entered its judgment and sentence.

Caseslorente contends on appeal that, while the prosecution proved that he stole the property, there was insufficient evidence to support a finding that the stolen property belonged to the government, a required element of 18 U.S.C. § 641. He also challenges the district court's two-level enhancement of his sentence under § 3B1.1(c) on the basis that it was inappropriate in this case and not supported by the requisite factual findings.

II.

When a conviction is attacked for insufficiency of evidence, the appellate court must consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Blakeney, 942 F.2d, 1001, 1010 (6th Cir.1991), quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution." Jackson, 443 U.S. at 319.

Caseslorente maintains that the government did not "own" the baled recyclables he stole; rather, the government had only a security interest in them until the vendors' checks were cashed by the government.³ Because he cashed the checks before delivering them to the government, he cannot properly be convicted under 18 U.S.C. § 641 for theft of "government" property. According to Caseslorente, the government did not own the baled recyclables he sold to the government's vendors because the government did not buy the recyclable material. Caseslorente further contends that the Recycling Center was not a true government entity, because it was funded by the government only indirectly through the assignment of paid Naval personnel who worked there, because prisoners also worked there, and because the head of the Navy's MWR Department was a civilian. In support of this theory, Caseslorente cites United States v. Klingler, 61 F.3d 1234, 1238 (6th Cir. 1995). A careful reading of this case, however, reveals that it does not support Caseslorente's argument.

Klingler was a customs broker licensed by the U.S. Customs Service to facilitate entry of imported goods into this country. The Customs Service detains imported goods when they arrive at U.S. ports until customs duties, fees and taxes...