U.S. v. Skoczen, 03-1960.

• Citation: 405 F.3d 537
• Decision Date: 20 April 2005
• Docket Number: No. 03-1960.,03-1960.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roman SKOCZEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

405 F.3d 537

UNITED STATES of America, Plaintiff-Appellee, v. Roman SKOCZEN, Defendant-Appellant.

No. 03-1960.

United States Court of Appeals, Seventh Circuit.

Argued February 13, 2004.

Decided April 20, 2005.

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Julie Peters Pekron (Argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

John A. Meyer (Argued), Chicago, IL, for Defendant-Appellant.

Before FLAUM, Chief Judge, and MANION and WOOD, Circuit Judges.

WOOD, Circuit Judge.

On April 18, 1995, the police arrested Roman Skoczen along with several of his associates. Skoczen was accused and later convicted of conspiring to possess goods stolen from an interstate shipment and conspiring to transport stolen goods in interstate or foreign commerce. Skoczen appeals from a number of issues stemming from his trial and sentencing. We affirm Skoczen's convictions. With respect to his sentence, we follow the limited remand procedure outlined in United States v. Paladino, et al., 401 F.3d 471 (7th Cir.2005) so that the district court may determine in the first instance whether the new discretionary sentencing regime established in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), affects the sentence that the court wishes to impose.

I

Skoczen's downfall began when the United States Customs Service ("Customs" or "Customs Service") began a sting operation in January 1995. At that time, Skoczen, his cousin, Lucas, who was cooperating with Customs agents, and an undercover agent met to explore the possibility of finding a buyer for a trailerload of cigarettes. The undercover agent posed as a thief looking for a buyer for approximately 50,000 cartons of Marlboro cigarettes. Skoczen was interested and specified that he wanted only Marlboro cigarettes that came in a hard pack. In February 1995, in preparation for the arrest, the agents borrowed approximately 325,000 packs of cigarettes from a Philip Morris facility in Virginia. To get them to Illinois, a Customs agent drove to Richmond, Virginia, in a Customs department trailer, picked up the cigarettes, and drove them back to Illinois. Customs parked the trailer in a warehouse until it was time to deliver them to Skoczen and his co-conspirators.

Several more meetings and negotiations followed the original January meeting, culminating in a final meeting with undercover agents on April 18, 1995. Skoczen had arranged to buy approximately 500,000 packs of cigarettes at $0.20/pack, or $100,000. The agents met Skoczen and his associates in a parking lot where they were to inspect the contents and unload the trailer. When they satisfied themselves that everything was in order, they paid the agents. Skoczen's associate unhooked the trailer from the Customs' tractor and hooked it to his own tractor. The agents then arrested Skoczen and his associates.

Following his initial appearance in court on April 19, 1995, Skoczen was released on bond. The court ordered him to appear for a preliminary hearing on April 24, 1995 but he did not show up. Instead, Skoczen fled to Florida where he lived under an assumed name until he was arrested there in June 2001. Skoczen was charged with conspiring in violation of 18 U.S.C. § 371 to receive and possess goods stolen from an interstate shipment, in violation of 18 U.S.C. §§ 659 and 2314 (Count I), and receiving, possessing, and purchasing contraband cigarettes, and attempting to do so, in violation of 18 U.S.C. §§ 2 and 2342(a) (Count II). Skoczen moved to dismiss Count II, but the district court denied the motion on May 14, 2002.

Skoczen's trial began June 17, 2002. The jury returned a guilty verdict on June 21, 2002. The district court sentenced Skoczen to a 60-month term of imprisonment on Count I and an 8-month term of imprisonment on Count II, to be served consecutively. Skoczen's appeal raises issues related to both his trial and his sentence.

II

A

Skoczen's first point is that the government failed to prove that the cigarettes he was to receive were actually in interstate commerce, as required by 18 U.S.C. § 659. His theory is that the government manufactured "jurisdiction" (more accurately, its proof of this element of the crime) because government agents moved the cigarettes from Virginia to Illinois, and they did so for the purpose of creating federal jurisdiction in this case. (We note again that interstate commerce requirements like the one in § 659 set forth elements of the federal crime, not jurisdictional requirements in the strict sense of the term. See United States v. Martin, 147 F.3d 529, 531-32 (7th Cir.1998).) Skoczen maintains that if the cigarettes did not travel in "real" interstate commerce then he did not commit a federal crime.

The government responds first that the cigarettes legitimately traveled in interstate commerce for purposes of the statute when the Customs agents brought them to Illinois from Virginia. In its view, the reason why the shipment crossed state lines, or the identity of those who moved them, makes no difference for purposes of proving the statutory interstate commerce element. Second, the government argues that it needed only to prove that Skoczen believed the cigarettes he was to receive had been transported in interstate commerce. While this second argument may be correct, it was not the government's theory at trial.

Congress designed the interstate commerce element of 18 U.S.C. § 659 merely to justify federal authority over the crime. A defendant does not need to know that the stolen property that he received was stolen from an interstate shipment. He need only know that the property he received was stolen. United States v. Zarattini, 552 F.2d 753, 760 (7th Cir.1977). Thus, in this case, the government did not have to show that Skoczen knew that the cigarettes had traveled to Illinois from another state, as long as the cigarettes actually did travel interstate.

Skoczen and his co-conspirators requested a trailerload of 500,000 packs of cigarettes, specifically Marlboros in a hard pack. In response to his request, the government borrowed 325,000 packs of cigarettes from Philip Morris in Virginia and drove them to Illinois. There is no indication here that the government was manipulating the transaction so that it would create interstate movement of goods. If we had a case, for example, where someone wanted to steal stereo components that she knew were in an Illinois warehouse, and law enforcement agents took the equipment, put it in a truck, drove the truck into Indiana, and then returned to Illinois, matters might be different. The interstate commerce element of the statute would be a concern because the object of her crime was something she knew to be located in Illinois and she had no reason to think it would cross state lines. Skoczen, in contrast, sought to steal wholesale quantities of cigarettes — a product that is not made in Illinois and must be imported from another state or country.

Nonetheless, Skoczen compares his case to that of United States v. Archer, 486 F.2d 670 (2d Cir.1973). Archer arose from an investigation into corruption in the New York criminal justice system. The federal government set up a sting operation trying to catch corrupt attorneys, judges, prosecutors, and others. The defendants were arrested and charged under the Travel Act, 18 U.S.C. § 1952, for using a facility in interstate commerce (a telephone) with intent to promote or carry on unlawful activity. The only interstate activity was three phone calls. Two times the agent called one of the defendants from out-of-state, and once the defendant called the agent, but only after the agent called and asked the defendant to call him back. On appeal, the defendants argued that the three phone calls were insufficient to satisfy the commerce element of the statute, and the court agreed. Two of the phone calls could not be said to have promoted unlawful activity, as they were to tell a defendant where to find the undercover agent. That left one call. The court found that the call served no purpose that could not equally have been served if made from New York. The agents also placed the call themselves, which raised the question whether receipt of an interstate phone call was sufficient. The essentially local nature of the investigation also disturbed the court.

No case has ever turned on the principle set forth in Archer. The closest is the second case to which Skoczen refers us, United States v. Brantley, 777 F.2d 159, 163 (4th Cir.1985). In Brantley, the FBI had set up a fake gambling establishment staffed by FBI agents. The establishment then hired the defendants for protection. The defendants were arrested for violating the Hobbs Act, 18 U.S.C. § 1951, on the theory that the gambling equipment and liquor had been transported across state lines. The Fourth Circuit held that because the purpose of the interstate transportation was not commercial, the Hobbs Act was not violated. The extortion had not taken place in interstate commerce. Id. at 161-63.

The crimes at issue in Archer and Brantley were local crimes, made interstate only by actions of the government that could not have been foreseen or intended by the defendants. That is not Skoczen's situation. Skoczen's contacts told him that the trailer was coming from the south and that it might have a GPS locating device on it. He repeated his desire for a trailer of fresh Marlboros. Had the government used a trailer already traveling interstate and diverted it for the purpose of this sting, no one could have questioned the bona fides of the interstate commerce element. It is not even clear that there would be a serious issue if Philip Morris had shipped the cigarettes from Virginia to Illinois for purposes of this sting. We have explained Archer in the past as follows: "maybe the result in Archer is best explained on the ground that the facts did not show a federal crime. [The undercover...