U.S. v. Larson

• Decision Date: 30 May 1997
• Docket Number: No. 96-1419,96-1419
• Citation: 110 F.3d 620
• Parties: UNITED STATES of America, Appellee, v. Peter LARSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 620

110 F.3d 620

UNITED STATES of America, Appellee, v. Peter LARSON, Appellant.

No. 96-1419.

United States Court of Appeals,Eighth Circuit.

Submitted Sept. 11, 1996.

Decided April 10, 1997.

Rehearing Denied May 30, 1997.

Patrick Duffy, Rapid City, SD, argued, for appellant.

David Zuercher, Assistant U.S. Attorney, Pierre, SD, argued, for appellee.

Before MAGILL, JOHN R. GIBSON and BEAM, Circuit Judges.

MAGILL, Circuit Judge.

We revisit this case for the sixth time. ¹ Peter Larson appeals his conviction of theft of United States' property, 18 U.S.C. § 641; retention of stolen United States' property, 18 U.S.C. § 641; failure to file a customs report when exporting monetary instruments, 31 U.S.C. § 5316(a)(1)(A); and failure to file a report when importing monetary instruments, 31 U.S.C. § 5316(a)(1)(A). Larson's arguments address the sufficiency of the evidence, the scope of the regulatory definition of monetary instrument, the application of the Sentencing Guidelines, and the sentencing judge's ² failure to recuse himself. We affirm.

I.

As president and majority stockholder, Larson headed a commercial fossil business, the Black Hills Institute of Geological Research (the Institute). The Institute's activities focused on the collection, preparation, and marketing of fossils. The Institute's most notable success story was the discovery of "Sue," a 65-million-year-old Tyrannosaurus rex fossil. However, with success came not only public notoriety and attention, but also the attention of law enforcement officials.

On May 14, 1992, federal officials raided the Institute to seize evidence. Among the fossils seized were crinoid fossils, a marine invertebrate, which Larson had collected from the Gallatin National Forest in Montana, and various fossils from the Buffalo Gap National Grasslands in South Dakota. Both parcels of land belong to the United States and Larson had not been authorized to remove the fossils.

In addition, as part of his activities for the Institute, Larson made repeated trips to Peru to collect fossils. This collection included excavation and export of fossilized remains of baleen whales. One such fossil, "Maya," was sold to a Japanese buyer for $225,000. Yet, fossils being exported from Peru were presented to customs as having scientific value only.

In preparation for a March 1990 trip, Larson withdrew $15,000 from the Institute's bank account in order to pay his expenses in Peru, including the cost of fossil collection. When Larson left for Peru on March 9, 1990, carrying more than $10,000, he failed to file Customs Form 4790, a Report of International Transportation of Currency or Monetary Instrument.

Larson's Institute travel also included a 1991 trip to a Tokyo fossil show to sell fossils. While in Japan, Larson purchased $31,700 in traveler's checks. On June 8, 1991, Larson returned to the United States with the traveler's checks. Larson failed to complete Customs Form 4790 which must also be submitted when importing more than $10,000 worth of monetary instruments into the United States.

Based on the Institute's dinosaur-related activities, the government obtained a thirty-nine count indictment. Larson was charged with thirty-six counts. The charges focused on the illegal collection of fossils and included counts of conspiracy, obstruction of justice, theft of United States' property, and customs violations.

During the course of his trial, Larson unsuccessfully attempted to have the trial judge recuse himself. At a status hearing on a possible plea bargain discussed in the media, the trial judge expressed disapproval of the reported agreement, calling it a government capitulation. In a subsequent communication, the trial judge stated that his comments were contrary to Federal Rule of Criminal Procedure 11(e), which prohibits a judge's participation in plea agreement discussions. However, he declined to recuse himself. Larson petitioned this Court for a writ of mandamus to remove the trial judge, which was denied. In re Larson, 43 F.3d 410 (8th Cir.1994).

A jury convicted Larson of one count of theft of United States' property not in excess of $100, one count of retention of stolen United States' property not in excess of $100, and two counts of failure to file a customs report when transporting monetary instruments. Larson was sentenced to twenty-four months confinement, two years supervised release, a fine of $5000, and a special assessment of $150.

The district court's computation of Larson's sentence started with the customs violations. The court began with a base offense level of 11. See U.S.S.G. § 2S1.3 (a base offense level of 6 plus the number of offense levels called for by the value of the funds table in § 2F1.1). The court then found that the specific offense characteristic in § 2S1.3(b)(1) applied to Larson. This section dictates an increase by two levels "[i]f the defendant knew or believed that the funds were proceeds of unlawful activity, or were intended to promote unlawful activity." U.S.S.G. § 2S1.3(b)(1). Next the court found that the § 3B1.1(a) role in the offense adjustment applied. This adjustment mandates a four level increase "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." U.S.S.G. § 3B1.1(a). These computations result in an adjusted offense level of 17.

The district court then turned to the property offenses. Retention of stolen United States' property not in excess of $100 and theft of government property not in excess of $100 have a base offense level of 4. U.S.S.G. § 2B1.1. Again the court added four levels pursuant to § 3B1.1(a) for Larson's role in the offense. Thus, the adjusted offense level was 8.

The district court next determined that the combined adjusted offense level for multiple counts to be level 17. See U.S.S.G. § 3D1.4(c). Finally, looking to the sentencing table, the district court found the sentencing range to be from twenty-four to thirty months, given Larson's criminal history category of I and his offense level of 17. The district court imposed a sentence of twenty-four months.

On appeal, Larson makes the following arguments: (1) that his retention of invertebrate fossils from forest service lands was not a crime in light of forest service regulations permitting the noncommercial collection of invertebrate fossils; (2) that he lacked the requisite knowledge that it was illegal to take in excess of $10,000 out of the country without filing a customs report; (3) that he lacked the requisite knowledge that it was illegal to bring in excess of $10,000 in restrictively endorsed traveler's checks into the country without filing a customs report; (4) that the requirement of filing a customs report when bringing in excess of $10,000 into the country does not apply to traveler's checks restrictively endorsed; (5) that applying § 2S1.3(b)(1) of the United States Sentencing Guidelines, which increases the sentence when unreported funds are exported for the purpose of illegal activity, was improper because he did not intend to use the funds unlawfully; (6) that because Larson's role in the offense was not that of the organizer and leader of a criminal activity involving five or more participants or that because he was not extensively involved, applying § 3B1.1 of the Sentencing Guidelines was improper; and (7) that the sentencing judge improperly refused to recuse himself following a Rule 11(e) violation.

II.

Larson's first three arguments concern the sufficiency of the evidence. In reviewing a claim of insufficiency of the evidence, we ask "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." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in the original). All reasonable inferences are also drawn in favor of the prosecution. United States v. Perkins, 94 F.3d 429, 436 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1004, 136 L.Ed.2d 882 (1997).

Larson's first argument uses a 1986 Forest Service regulation permitting the noncommercial harvesting of invertebrate fossils. See 51 Fed.Reg. 30355-356 (1986), codified at 36 C.F.R. § 261.9(i) (1987). Larson claims that this regulation renders his retention of invertebrate fossils, harvested in 1984 and 1985, not a crime as a matter of law. Assuming that this regulation benefits Larson, Larson's argument hinges on his fossil harvesting having been noncommercial. Thus, Larson contends that, though he removed the harvested fossils, there is not sufficient evidence that his fossil harvesting was commercial. We find this argument to be meritless.

Clearly, a rational trier of fact could have found beyond a reasonable doubt that Larson removed the fossils for commercial purposes. Larson was the head of a commercial fossil business. The Institute was organized to sell fossils such as these. The fossils Larson harvested were stored in the Institute's business warehouse. The jury could properly have relied on this evidence to infer that the fossils were taken by Larson for a commercial purpose.

Next, Larson argues that the government failed to meet its burden of showing that Larson possessed the knowledge that it was illegal to take in excess of $10,000 out of the country without filing Customs Form 4790. See Ratzlaf v. United States, 510 U.S. 135, 137, 114 S.Ct. 655, 657, 126 L.Ed.2d 615 (1994) (to establish that defendant willfully violated reporting statute, the prosecution must prove defendant acted with knowledge that conduct was unlawful). ³ We conclude that there was sufficient evidence to show that Larson had the requisite knowledge.

The record reveals that Larson is an experienced traveler. Upon re-entry into this country from a trip abroad, travelers are routinely given a Customs Form 6059B. This form...