U.S. v. Skrodzki

• Decision Date: 08 April 1993
• Docket Number: No. 93-1339,93-1339
• Citation: 9 F.3d 198
• Parties: UNITED STATES of America, Appellee, v. Mark A. SKRODZKI, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 198

9 F.3d 198

UNITED STATES of America, Appellee, v. Mark A. SKRODZKI, Defendant, Appellant.

No. 93-1339.

United States Court of Appeals First Circuit.

Heard April 8, 1993.

Decided Nov. 17, 1993.

Stewart T. Graham, Jr., by Appointment of the Court, with whom Graham & Graham, Springfield, MA, was on brief, for defendant, appellant.

C. Jeffrey Kinder, Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., Boston, MA, was on brief, for appellee.

Before TORRUELLA and STAHL, Circuit Judges, and DiCLERICO, ^* District Judge.

DiCLERICO, Chief District Judge.

The defendant challenges the twenty-seven month sentence imposed under the Sentencing Guidelines after he pleaded guilty to one count of interstate transportation of stolen property in violation of 18 U.S.C. Sec. 2314, and four counts of structuring transactions to evade reporting requirements in violation of 31 U.S.C. Sec. 5324(a)(3). ¹ On appeal, he asserts the district court improperly (1) included the loss of eighty-three ² computer boards ("boards") as relevant conduct when determining his sentence and (2) imposed a sentence in excess of Guideline provisions by calculating his offense level based upon an inflated value of the victim's loss. We affirm.

I. BACKGROUND

Digital Equipment Corporation ("DEC") employed the defendant as a packaging engineer at its Westfield, Massachusetts plant.

He earned an hourly wage of $15.50 for an approximate annual salary of $32,240.

Beginning in 1988 and continuing through 1990 and while employed at DEC, the defendant sold 241 DEC boards without invoices, receipts or other documentary evidence of the transactions to Execudata, a sole proprietorship owned and operated by Peter Marcantonio. From 1989 through 1990, Marcantonio wire-transferred $959,293 to the defendant's account at United Cooperative Bank in West Springfield, Massachusetts ("United Cooperative") and $196,473 to the defendant's account at First Union Bank in Pompano Beach, Florida ("First Union"). Unlike the defendant, Marcantonio maintained business records that included the serial numbers of the 241 DEC boards.

After being alerted by United Cooperative of suspicious cash withdrawals, the Internal Revenue Service ("IRS") began investigating the defendant's activities. During the course of this investigation, IRS agents showed DEC officials a list of serial numbers provided to them by Marcantonio. DEC security officers reviewed the Westfield plant's inventory and discovered that 112 of the 241 boards had been removed from the stockroom without authorization. The government was unable to trace the other 129 boards to determine if they were stolen.

After the grand jury returned a Superseding Indictment on July 23, 1992, the defendant pleaded guilty to four counts of structuring currency transactions to evade reporting requirements and to one count of interstate transportation of stolen property.

At the defendant's sentencing hearing, the government conceded it could trace to the Westfield plant's stockroom only 112 of the 241 boards the defendant sold to Marcantonio. The government also conceded that a majority of the missing boards were used. On the basis of the government's concessions, the district court found DEC could not confirm the number of missing boards that were used or new. The district court concluded that the Sentencing Guidelines did not require a precise determination of DEC's loss and permitted it to infer the amount of loss on the basis of reasonable reliable information, including the scope of the operation. The district court also noted that the probation department may have had the right to use the retail value of the boards to value DEC's loss. The court found the loss was more than $800,000, but did not exceed $1,489,746, the retail value suggested by DEC for new boards. ³ The district court adopted the factual findings and Sentencing Guideline application in the presentence report and determined that the defendant's offense level was seventeen and his criminal history category was I. See U.S.S.G. Sec. 2B1.2 (1992). ⁴ The defendant was sentenced to a term of twenty-seven months' imprisonment on one count of interstate transportation of stolen property and to the same term to be served concurrently on the four structuring counts. This appeal ensued.

II. DISCUSSION

A. Relevant Conduct

The defendant asserts the government failed to prove by a preponderance of the evidence that eighty-three boards were stolen and the court improperly included those boards as relevant conduct in determining his sentence. According to the defendant, there are alternative explanations for the disappearance of the eighty-three boards. He denies having access to all areas in which the boards were stored and refutes the hearsay statements to the contrary by DEC employees mentioned in the presentence report. He also argues that at the sentencing hearing, the court implicitly found the eighty-three boards were not stolen. ⁵ Absent proof the boards were stolen, the defendant contends the district court could not have considered them as relevant conduct.

The district court may include relevant conduct--"the same course of conduct or common scheme or plan as the offense of conviction"--in its determination of the applicable offense level. U.S.S.G. Sec. 1B1.3(a)(2). "For two or more offenses to constitute part of a common scheme or plan, they must be substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi." U.S.S.G. Sec. 1B1.3, comment. (n. 9). To sentence the defendant for relevant conduct, the court must be satisfied that the government demonstrated by a preponderance of the evidence that the defendant unlawfully transported eighty-three stolen boards. See United States v. Estrada-Molina, 931 F.2d 964, 966 (1st Cir.1991) (government's demonstration by a preponderance of evidence of defendant's capability of producing negotiated but undelivered drugs permitted district court to impose a sentence that included relevant conduct). We review for clear error the court's finding that the defendant transported eighty-three stolen boards. See id.

District courts are vested with discretion to determine whether to conduct an evidentiary hearing on a disputed factual issue. Fed.R.Crim.P. 32(c)(3)(A) ("The court shall afford the defendant and the defendant's counsel an opportunity to comment on the [presentence] report and, in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in it."); see United States v. Garcia, 954 F.2d 12, 19 (1st Cir.1992); United States v. Gerante, 891 F.2d 364, 367 (1st Cir.1989). Whether or not it determines that an evidentiary hearing is necessary, "[i]n resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy." U.S.S.G. Sec. 6A1.3(a), (policy statement ("p.s.")); United States v. Zuleta-Alvarez, 922 F.2d 33, 35-36 (1st Cir.1990) (interpreting U.S.S.G. Sec. 6A1.3), cert. denied, --- U.S. ----, 111 S.Ct. 2039, 114 L.Ed.2d 123 (1991). Therefore, the court may consider reliable hearsay. U.S.S.G. Sec. 6A1.3(a), p.s.; id. comment.; United States v. Aymelek, 926 F.2d 64, 68 (1st Cir.1991); Gerante, 891 F.2d at 367. Evidentiary hearings are not always necessary to demonstrate reliability of the evidence. Hearsay statements contained in presentence reports, affidavits, documentary exhibits, and submissions of counsel are often a reliable source of information to resolve a dispute. See United States v. Shattuck, 961 F.2d 1012, 1015 (1st Cir.1992); see also United States v. Silverman, 976 F.2d 1502, 1510-13 (6th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1595, 123 L.Ed.2d 159 (1993).

The defendant did not dispute that a DEC employee would testify to the statements mentioned in the presentence report concerning the source or value of the boards nor did he request an evidentiary hearing on his alleged greater access to the stockrooms or any other issue in dispute. ⁶ The defendant also has not asserted he was not provided with an adequate opportunity to comment on the presentence report and persuade the district court to follow his own version of the facts and recommendations. By expressly adopting the findings contained in the presentence report, the district court chose to credit the presentence report and the information contained therein as having sufficient indicia of reliability. See United States v. Curran, 967 F.2d 5, 6 (1st Cir.1992) (court correctly relied on $10,000 interest calculation mentioned in the presentence report); United States v. Sherbak, 950 F.2d 1095, 1099 (5th Cir.1992) (court expressly adopted facts set forth in the presentence report as to the amount of marijuana with which one of the defendants was involved, implicitly weighed the positions of the probation department and the defense, and chose to credit the probation department's facts); see also United States v. Gracia, 983 F.2d 625, 629 (5th Cir.1993) ("Presentence reports generally bear indicia of reliability sufficient to permit reliance thereon at sentencing."); United States v. Robins, 978 F.2d 881, 889 (5th Cir.1992) (District court may properly rely on "presentence report's construction of evidence to resolve a factual dispute, rather than relying on the defendant's version of the facts."); United States v. Wilkinson, 926 F.2d 22, 29 (1st Cir.) ("[P]resentence reports are normally considered reliable sources of information, upon which sentencing courts may rely...."), cert. denied, --- U.S. ----, 111 S.Ct. 2813, 115 L.Ed.2d 985 (1991). The court relied on the statements contained in the presentence report...