U.S. v. Kravchuk, 02-5067.

• Decision Date: 09 July 2003
• Docket Number: No. 02-5067.,02-5067.
• Citation: 335 F.3d 1147
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ivan Stepanovich KRAVCHUK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

335 F.3d 1147

UNITED STATES of America, Plaintiff-Appellee, v. Ivan Stepanovich KRAVCHUK, Defendant-Appellant.

No. 02-5067.

United States Court of Appeals, Tenth Circuit.

July 9, 2003.

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Kevin C. Danielson, Assistant United States Attorney (David E. O'Meilia, United States Attorney and Neal B. Kirkpatrick, Assistant United States Attorney with him on the brief), Northern District of OK, for Plaintiff-Appellee.

Art Fleak, Attorney at Law, Tulsa, OK, for Defendant-Appellant.

Before EBEL, BALDOCK and KELLY, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant, Ivan Stepanovich Kravchuk, was tried in federal court for violation of 18 U.S.C. § 2113(b)¹ by theft from an automatic teller machine (ATM). During closing arguments, he moved for a new trial on the basis of prosecutorial misconduct. His motion was denied, and he was convicted. After conviction, Kravchuk again moved for a mistrial and his motion was again denied. The district court sentenced Kravchuk to pay $34,699.51 in victim restitution, to serve twenty-seven months in prison, and three years on supervised release, three months of which was to be on home detention. The length of his prison term also reflected enhancement of his sentence for use of a minor in a crime under U.S.S.G. § 3B1.4 because, although Kravchuk was eighteen at the time of the crime, his co-participants were minors.

On appeal, Kravchuk challenges the district court's refusal to grant him a new trial on the basis of alleged prosecutorial misconduct and alleged irregularities in admitting evidence regarding prior crimes under Federal Rule of Evidence 404(b).² He also challenges the district court's determination of victim restitution, its enhancement of his sentence for use of a minor in the commission of his crime, its failure to put its reasoning for his sentence on the record, and its failure to reduce its findings to writing regarding facts he challenged in his presentence report.

Because none of Kravchuk's objections regarding the conduct of the trial have merit, we uphold the district court's denial of a new trial and AFFIRM Kravchuk's conviction. We approve the district court's determination of victim restitution, and join our sister circuits in finding that the Sentencing Guidelines' enhancement under U.S.S.G. § 3B1.4 for the use of a minor may be applied to defendants between the ages of eighteen and twenty-one. We agree, however, that the district court failed to put on the record its reasoning for Kravchuk's sentence, including any upward departure for the three months of home confinement, which is to be used as a substitute only for imprisonment. U.S.S.G. § 5D1.3(e)(2).³ It also failed to reduce its findings to writing regarding the facts challenged in Kravchuk's presentence report. We therefore REMAND for the district court to provide a more complete explanation of Kravchuk's sentence, including any upward departure it made for the home confinement, and for it to reduce its factual findings regarding the contested parts of Kravchuk's presentence report to writing.

BACKGROUND

Eighteen-year-old Ivan Stepanovich Kravchuk had a long criminal record as a juvenile. In January or February of 2001, Kravchuk and a gang of young co-participants removed an ATM machine from a local mall in Tulsa, Oklahoma, and, in June of 2001, they attempted to remove an ATM machine from a convenience store in South Tulsa County, but were thwarted by the size of the machine and the fact that it was bolted to the floor. Early in the morning of July 24, 2001, Kravchuk and the same group of co-participants also burgled the automatic teller machine (ATM) and removed the contents of the store's safe at the Minute Stop convenience store in Broken Arrow, Oklahoma. Kravchuk was indicted on a federal theft charge for the crimes in Broken Arrow on October 2, 2001, and convicted by a jury on February 5, 2002. Kravchuk's co-participants in all of the ATM burglaries testified against him during his federal trial.

One of the young co-participants also unexpectedly testified during trial that Kravchuk had threatened to kill them if they ever spoke of the various crimes they had committed with him. This revelation surprised both parties and the defense moved for a mistrial on the basis of unfair prejudice, but its motion was denied by the district court.

Evidence of the first burglaries Kravchuk had committed involving ATMs was admitted at trial under Federal Rule of Evidence 404(b). Kravchuk testified on his own behalf, and the prosecutor accused him in closing arguments of having "lied, lied, and lied" about the degree of his involvement in the case. The jury found Kravchuk guilty.

At sentencing, the district court made three important decisions. First, it enhanced Kravchuk's sentence by two levels for "use of a minor" in the commission of a crime under U.S.S.G. § 3B1.4.⁴ Second, it determined, based on testimony presented at trial, that Kravchuk should pay $34,699.51 in restitution for losses from the theft at Broken Arrow. According to the Presentence Report, the restitution amount of $34,699.51 included $14,280 payable to Stillwater National Bank (the owner of the ATM), $9,000 payable to the Minute Stop Convenience Store in Broken Arrow, Oklahoma, and $11,419.51 payable to The Hartford, the convenience store's insurer. The district court did not, however, reduce its factual findings to writing regarding how much Kravchuk was to pay the owner of the convenience store for the contents of his store's safe when Kravchuk disputed the presentence report. Third, it determined that Kravchuk should serve twenty-seven months in prison and a three-year term of supervised release following his imprisonment, at least the first three months of which were to be spent in home confinement. It did not give its reasons for the length of the term of supervised release or for the three months of home confinement.

We review Kravchuk's objections to each of the district court's decisions, but remand only on his arguments regarding the district court's failure to provide the basis of its decision on his supervised release including any upward departure it made in requiring Kravchuk to serve three months in home confinement, and for its failure to reduce to writing its findings regarding the contested parts of Kravchuk's presentence report.

DISCUSSION

The district court exercised jurisdiction over this criminal case under 18 U.S.C. § 3231. We hear this appeal of Kravchuk's conviction and sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

I. PROSECUTORIAL MISCONDUCT

When defense counsel contemporaneously objects to a prosecutor's comment at trial and moves for a mistrial, we review a district court's decision to deny his motion for abuse of discretion. United States v. Villa-Chaparro, 115 F.3d 797, 803 (10th Cir.1997).

We apply a two-part test in reviewing claims of prosecutorial misconduct. First, we decide whether the conduct was improper. United States v. Gordon, 173 F.3d 761, 769 (10th Cir.1999). Second, we decide whether the conduct, if improper, warrants reversal. Id. Generally "a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial." United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985); see also Tillman v. Cook, 215 F.3d 1116, 1129 (10th Cir.2000).

Kravchuk proffers two arguments regarding alleged prosecutorial misconduct. First, he argues that the district court erred in denying his motions for a mistrial and new trial when the prosecutor stated in closing that Kravchuk had "lied and lied and lied." Second, he argues that it constituted prosecutorial misconduct for the prosecutor not to have known ahead of time that a witness would reveal that Kravchuk had threatened his co-participants. On this second argument, however, Kravchuk does no more than mention that the argument exists, and cites no law on point. We cannot make a party's arguments for him, Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1546 (10th Cir.1995), so we limit our discussion here to Kravchuk's argument that the prosecutor's own statement in closing argument constituted misconduct meriting mistrial and grant of the motion for a new trial.⁵

In making the statement about Kravchuk lying, the prosecutor may have been responding to the credibility battle that defense counsel had been waging for the vote of the jury. In his closing argument, defense counsel repeatedly suggested that three of Kravchuk's co-conspirators who testified against him had been motivated to lie in order to get a better deal from the government. Regarding one of the co-participants, defense counsel insinuated that "he may not be telling the truth because he doesn't want [to be punished]. Well, then, you don't know who's telling the truth." Tr. at 316-17. Defense counsel later commented that "we have no guarantee that anybody is telling the truth in life, especially in the courtroom when you have some very important things involved here." Id. at 322. Finally, defense counsel charged that one of the questions for the jury was whether each witness had "any particular reason not to tell the truth[.] Well, they did. They're all in trouble." Id. at 323.

The prosecutor began his rebuttal by urging the jury to consider all of the witnesses' demeanors and who else might have had an incentive to lie. In the prosecutor's words: "Do you really think that Mr. Joyce was the leader[?] [A]nd that fellow who sat there stone-faced on that stand and lied and lied and lied...." Id. at 326. This was the point at which defense counsel objected.

In the presence of the jury, the district court overruled defense counsel's motion for mistrial, explaining that "[i...