U.S. v. Gilbertson, 05-2923.

• Decision Date: 30 January 2006
• Docket Number: No. 05-2923.,05-2923.
• Citation: 435 F.3d 790
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Allen K. GILBERTSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

435 F.3d 790

UNITED STATES of America, Plaintiff-Appellee, v. Allen K. GILBERTSON, Defendant-Appellant.

No. 05-2923.

United States Court of Appeals, Seventh Circuit.

Argued December 1, 2005.

Decided January 30, 2006.

COPYRIGHT MATERIAL OMITTED

David Reinhard (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Ryan D. Lister (argued), Wausau, WI, for Defendant-Appellant.

Before EASTERBROOK, RIPPLE, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Allen Gilbertson, a used car salesman, was charged with five counts of knowingly altering the odometers of motor vehicles, in violation of 49 U.S.C. §§ 32703(2) and 32709(b). He was convicted on four counts after a jury trial¹, and he was sentenced to 15 months' imprisonment on each count, to be served concurrently. Gilbertson now challenges his convictions and sentence on appeal. For the reasons set forth below, we affirm in all respects.

I. HISTORY

Steven Boehm noticed a 1989 Ford Probe sitting on the lot at Griesbach Auto in Weston, Wisconsin. Believing there was something familiar about the car, Boehm took a closer look. Purely by coincidence, Boehm discovered the Probe used to be his car; he had traded it in weeks earlier to someone else. That was not his only discovery, however. Boehm also discovered the odometer on the car now read around 70,000 miles, which seemed odd to Boehm given that the car had around 92,000 miles on it when he traded it in. Boehm called Tom Krummel, an investigator with the Wisconsin Department of Transportation (the "DOT"), to relay his discoveries. An investigation ensued.

Krummel initially went to Griesbach Auto and located the Probe. He later telephoned the dealership and spoke with Gilbertson, a used car salesman and previous owner of the then-defunct D & A Auto. During that call, Gilbertson said the Probe was his (i.e., left over from D & A) and that the speedometer had been replaced because it was defective.² Krummel was suspicious, however, and arranged an in-person meeting for June 20, 2001, at Krummel's office in Wausau, Wisconsin. Gilbertson attended as scheduled; also present was Kevin Konopacki, an odometer fraud specialist with the DOT.

Gilbertson initially denied tampering with the odometer on the Probe. But upon further questioning, he admitted he "changed out" (i.e., replaced) the odometer to make the Probe easier to sell, even though the odometer was working properly. He also admitted to tampering with the odometers on approximately 25 other cars. At this point, the investigators offered Gilbertson a deal. If Gilbertson provided a written statement, identified the 25 cars, and provided compensation to the victims, then they would refer the case to the state prosecutor's office, as opposed to the U.S. Attorney. Gilbertson complied for the most part. He provided a written statement admitting what he did and admitting that what he did was wrong. He also provided restitution to his victims, which covered approximately 70 cars, as opposed to the original 25.³ Furthermore, he surrendered his business records as well as his license to sell cars. As promised, his case was referred to the state prosecutor's office for prosecution.

Unfortunately for Gilbertson, the state prosecution did not proceed as planned. Although not entirely clear from the record, the state prosecutor apparently grew frustrated with how the case was progressing and had all charges dismissed. The prosecutor then referred the case to the U.S. Attorney's office for prosecution. On December 8, 2004, Gilbertson was indicted by a federal grand jury with five counts of odometer tampering. It is important to note the Probe was not among the four remaining vehicles listed in the indictment.

Prior to trial, Gilbertson filed a motion to suppress his written and oral statements.⁴ In partially granting the motion the district court excluded any statements Gilbertson made after the investigators offered their deal. This included the written statement, and anything Gilbertson said after the offer. Any statements made prior to the offer were still admissible.

At trial, the government introduced the Wisconsin Certified Certificates of Title for the four vehicles listed in the remaining counts. They contained the odometer statements for the vehicles at the time they were purchased by Gilbertson. The government then called the four victims, who testified as to the mileage on the vehicles at the time they purchased them. Their testimony established that the mileage on their respective vehicles was less than that listed on the corresponding titles.

The government faced a significant obstacle at trial. The admissible evidence established Gilbertson admitted to tampering with approximately 25 cars, but there was little evidence linking Gilbertson's tampering to the four specific vehicles listed in the indictment, as the Probe was not included in the remaining counts and all of Gilbertson's subsequent statements had been excluded. During the cross-examination of Konopacki, Gilbertson's attorney went to great lengths to point out Konopacki did not inspect the four vehicles, nor did he contact the previous owners regarding the odometer statements. On re-direct, however, the government asked Konopacki why he did not inspect the vehicles or contact the previous owners. Konopacki answered he contacted Gilbertson directly and asked him if each of the four vehicles were one of the original 25, and Gilbertson responded, "Yes." This provided the necessary link the government was looking for. Gilbertson's attorney did not object to this testimony, at least not until a recess, at which time the trial judge found the objection was not timely and was therefore waived.

On appeal, Gilbertson argues the admission of the vehicle titles to establish the vehicles' mileage at the time of his purchase constituted testimonial hearsay under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and thus violated his right under the Confrontation Clause of the U.S. Constitution. He further argues the government engaged in prosecutorial misconduct by eliciting his post-deal confirmations regarding the four vehicles in violation of the district court's order. Along the same lines, Gilbertson argues the government's repeated reference to his "confession" during closing argument also violated the court's order and constituted prosecutorial misconduct. Finally, Gilbertson argues he was entitled to a reduction in his Guidelines sentence for the acceptance of responsibility.

II. ANALYSIS

A. Sixth Amendment Claim

Gilbertson asserts that the admission of the odometer statements from the certified certificates of title for the four vehicles contained in the indictment violated his rights protected by the Sixth Amendment's Confrontation Clause. The titles contained a chronological listing of the mileage for the previous owners. At trial, the mileage was compared to the mileage testified to by each of the buyers of the vehicles contained in the indictment to establish that the mileage displayed on the odometers had been lowered.

The Sixth Amendment provides that a criminal defendant "enjoy[s] the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. We review an evidentiary ruling that affects a defendant's right to confront witnesses de novo. United States v. Scott, 145 F.3d 878, 888 (7th Cir.1998) (citation omitted); see United States v. Hendricks, 395 F.3d 173, 176-77 (3d Cir.2005) (citations omitted). The United States Supreme Court recently held that a "testimonial statement" is not admissible at trial under the Confrontation Clause unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine him or her. Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354. However, the Court "le[ft] for another day any effort to spell out a comprehensive definition of `testimonial.'" Id. at 68, 124 S.Ct. 1354.

The Court did provide us with some guidance on what constitutes "testimonial." For example, "[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id. The Court also noted three formulations of the "core class of `testimonial' statements": 1) "ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially"; 2) "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions"; and 3) "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 51-52, 124 S.Ct. 1354 (citations and quotations omitted).

Gilbertson's argument, a rather conclusory one with virtually no legal citations other than to Crawford, focuses almost entirely on the second formulation above. Gilbertson repeatedly points out the Court included affidavits as examples of testimonial statements, and he intimates the odometer statements contained in the titles were equivalent to affidavits. Gilbertson also relies on the definition of "testimony," in that the odometer statements were solemn declarations or affirmations made for the purpose of establishing or proving some fact. But Gilbertson's heavy reliance on the dictionary definition of "testimony" and the second formulation above misses the point of Crawford. The second formulation is based upon Justice Thomas's concurring opinion in White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment). In White, Justice Thomas constructed his...