U.S. v. Trigg

• Decision Date: 08 July 1997
• Docket Number: Nos. 96-1487,s. 96-1487
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James TRIGG, Todd Warren and Stephen C. Krex, Defendants-Appellants. to 96-1489.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 493

119 F.3d 493

UNITED STATES of America, Plaintiff-Appellee, v. James TRIGG, Todd Warren and Stephen C. Krex, Defendants-Appellants.

Nos. 96-1487 to 96-1489.

United States Court of Appeals Seventh Circuit.

Argued Nov. 4, 1996.

Decided July 8, 1997.

Andrew B. Baker, Jr. (argued), Office of the United States Attorney, Dyer, IN, for plaintiff-appellee.

Bradley L. Williams, Robert A. Anderson (argued), Suzanne Crouch, Ice, Miller, Donadio & Ryan, Indianapolis, IN, for James Trigg.

Thomas F. Strickler (argued), Mishawaka, IN, for Todd Warren.

Glenn Seiden (argued), Seiden & Associates, Paul Goodman, Chicago, IL, for Stephen C. Krex.

Before BAUER, RIPPLE and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

The defendants were convicted of various federal offenses because of their involvement in a conspiracy that engaged in stealing transporting and selling computer equipment. James Trigg pleaded guilty to the charges. Todd Warren and Stephen Krex were found guilty after a jury trial. Mr. Trigg and Mr. Warren appeal aspects of their sentences. Mr. Krex appeals his conviction. We modify the district court's orders of restitution in each case. In all other respects, we affirm the judgments of the district court.

I BACKGROUND

James Trigg and his confederates--Todd Trigg (his son), Todd Warren (his codefendant and Todd's friend), Patricia Zowacki (his mother), Brian Cornwall (Todd's friend), and Christina Steinbergs (Todd's girlfriend)--stole computers and computer printers from retail stores. In its early days, the shoplifting ring would steal printers from Office Max and sell them through advertisements placed in local newspapers. Mr. Trigg's gang later turned its attention solely to Best Buy stores, where, Todd Trigg had discovered, the security was lax and more inventory was within reach.

The conspiracy's modus operandi changed over time. In the beginning, Mr. Trigg would legally purchase a printer and obtain a valid receipt. With that receipt he would walk out of the store with other printers for which he had not paid. The shoplifting ring thereafter began to employ other methods of operation. For example, sometimes one of the group's members would purchase an inexpensive item; the security tape would then be removed from that item and placed on a printer which could then be carried away with less chance of detection. In order to place the security tape on the printer boxes while in the store, the thieves would remove the boxes to areas in the store that were not covered by camera surveillance.

In September 1994, Stephen Krex, who owned Krex Computers in Illinois, responded to one of Mr. Trigg's newspaper ads. Mr. Trigg quoted Mr. Krex a price that was 40 percent lower than Best Buy's retail price--indeed, the quoted price was lower than the price Best Buy had paid. In response, Mr. Krex informed Mr. Trigg that he would buy all of Mr. Trigg's equipment. During this conversation, Mr. Trigg claimed that he had obtained a computer store in Atlanta that had been owned by his recently deceased father.

On September 7 Mr. Trigg brought fifteen stolen printers to Krex Computers in Illinois. Mr. Krex received the goods. He photocopied Mr. Trigg's driver's license and wrote down other personal information about Mr. Trigg. Mr. Krex also had Mr. Trigg fill out a form stating that there were no liens on the equipment so as to protect Mr. Krex, he said, in the event the printers were stolen. Upon paying Mr. Trigg with a $8,450 check, Mr. Krex suggested to Mr. Trigg that it would be less suspicious to cash the check at a currency exchange if Mr. Trigg were planning on hiding the money from the Internal Revenue Service. Mr. Krex further told Mr. Trigg to remove his ads from the newspapers as he (Mr. Krex) desired to buy all of the printers in Mr. Trigg's possession.

Mr. Trigg began to deliver stolen printers to Mr. Krex on a weekly basis. The printer boxes that were delivered to Mr. Krex had tears on them where the Best Buy labels had been removed. When Mr. Trigg complained about the cash checking fee at the currency exchange, Mr. Krex began including an extra amount in the payment checks to cover the fee. When Mr. Trigg informed Mr. Krex that a man at the currency exchange had advised that it would be beneficial not to cash checks in amounts greater than $10,000, Mr. Krex began paying with separate checks if the total purchase price for a shipment was over $10,000. Mr. Krex also requested that Mr. Trigg bring more of the models of printers that were popular with the customers of Krex Computers.

In December Mr. Krex asked Mr. Trigg if he had access to any items other than printers. Mr. Trigg responded that he did and thereafter began delivering stolen computers to Mr. Krex. Mr. Trigg's asking price for the stolen computers was 50 to 60 percent below Best Buy's retail price. On occasion, Mr. Trigg would inform Mr. Krex of Best Buy's price and offer his opinion that Best Buy had the lowest prices in town. Ms. Steinbergs testified that Mr. Krex was happy when the group delivered a large amount of stolen equipment and was disappointed and upset when the group did not. Mr. Krex, on several occasions, told Mr. Trigg to bring all the equipment that he could muster.

Todd Warren joined the operation in early 1995. Mr. Trigg testified that, when the group went on one of its stealing sprees, Mr. Warren would "always" go into the store and carry out computers or printers. Trial Tr.I at 69. (He testified that Todd Trigg would go into the store about 50 percent of the time.) Mr. Trigg also bought Mr. Warren a van, which was used to transport the stolen equipment from the targeted stores. Mr. Warren drove the van after the heists and held the title to the van in his own name.

After Mr. Trigg broke up with his ex-wife, she wrote the FBI about Mr. Trigg and his gang's activities. The FBI stopped the gang for questioning in March 1995. Mr. Trigg later informed Mr. Krex of the stop, at which time Mr. Krex had no further dealings with Mr. Trigg. The FBI investigation eventually culminated in the defendants' indictment. Each was charged with three counts: (1) conspiracy in violation of 18 U.S.C. § 371; (2) transportation of stolen goods in violation of 18 U.S.C. § 2314; and (3) the sale or receipt of stolen goods in violation of 18 U.S.C. § 2315. Mr. Trigg pleaded guilty and testified against his cohorts at trial. He was sentenced to 64 months' imprisonment and a period of supervised release. He was ordered to make restitution in the amount of $79,582.40, one-tenth of the loss to Best Buy. A jury returned verdicts of guilty against Mr. Warren and Mr. Krex. The court sentenced Mr. Warren to 33 months in prison and a period of supervised release. The court ordered him to make restitution in the amount of $3,018.50, one percent of the loss attributable to him (which was less because he had joined the conspiracy later). The court sentenced Mr. Krex to 39 months' imprisonment and supervised release and ordered him to pay restitution in the amount of $795,824, an amount equal to Best Buy's entire loss.

II DISCUSSION

A. United States v. Trigg, No. 96-1487

1. Restitution

Sections 3663 and 3664 of Title 18 ¹ empower the district courts to order certain defendants to make restitution to the victims of their offenses. We review the decision to order restitution for an abuse of discretion. United States v. Murphy, 28 F.3d 38, 40 (7th Cir.1994). In deciding whether to order restitution and, if so, in what amount, the district court "shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate." 18 U.S.C. § 3664(a). "We shall sustain the district court's order of restitution if it is apparent that the district court considered the statutory factors." Murphy, 28 F.3d at 41. Therefore, to prevail on his claim that the district court failed to consider his ability to pay restitution in the amount ordered, Mr. Trigg "must show either that (1) it is not improbable that the judge failed to consider the mandatory factor and was influenced thereby, or (2) the judge explicitly repudiated the mandatory factor." Id.

Mr. Trigg first contends that the district court's order to repay over $79,000 to Best Buy cannot be squared either with the court's factual findings that Mr. Trigg has few assets and job skills or with its decision to forego the imposition of a fine. Mr. Trigg points out that he will be 54 years old when released from prison and has no legitimate job skills. He is a high school dropout and has supported himself through theft and gambling throughout his life. He notes that he was discharged from the military for bad conduct. Mr. Trigg urges that these findings demonstrate that he is unable to pay restitution now or in the future.

At the outset, it is clear that the district court considered these facts--which, in the parlance of § 3664, relate to Mr. Trigg's "financial resources" and to the "financial needs and earning ability" of Mr. Trigg and his dependents--as required by § 3664(a). At the sentencing hearing, the district court explicitly mentioned the factors listed in § 3664(a). It then noted that the amount of loss, $795,824, was a lot of money and that Mr. Trigg, at the time, had no financial resources except for some used furniture. Although he concedes that the district court considered these facts, Mr. Trigg invites our attention to the cases in which we have vacated "sham" restitution orders, that is, orders requiring the payment of a large sum even though the district court's factual findings make clear that the defendant has no real hope of complying with the order. See, e.g., United States v. Jaroszenko, 92 F.3d 486, 491-92 (7th Cir.1996); United States v. Lampien, 89 F.3d 1316, 1323-24 (7th Cir.1996); ...