U.S. v. Trupin

• Decision Date: 27 June 1997
• Docket Number: 713,Nos. 524,D,s. 524
• Citation: 117 F.3d 678
• Parties: UNITED STATES of America, Appellee-Cross-Appellant, v. Barry TRUPIN, Defendant-Appellant-Cross-Appellee. ockets 96-1252, 96-1307.
• Court: U.S. Court of Appeals — Second Circuit

Page 678

117 F.3d 678

UNITED STATES of America, Appellee-Cross-Appellant, v. Barry TRUPIN, Defendant-Appellant-Cross-Appellee.

Nos. 524, 713, Dockets 96-1252, 96-1307.

United States Court of Appeals Second Circuit.

Argued Nov. 7, 1996.

Decided June 27, 1997.

Judd Burstein, New York City (Sabrina P. Shroff, Burstein & Fass, L.L.P., of counsel), for Defendant-Appellant-Cross-Appellee.

Lewis J. Liman, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney, Guy Petrillo, Assistant United States Attorney, of counsel), for Appellee-Cross-Appellant.

Before LUMBARD, OAKES and PARKER, Circuit Judges.

OAKES, Senior Circuit Judge:

This appeal and cross-appeal involve the conviction of Barry Trupin in the United States District Court for the Southern District of New York, Peter K. Leisure, Judge, for a violation of one count of 18 U.S.C. § 2315, charging possession of a stolen Marc Chagall painting. On April 11, 1996, Trupin was sentenced to a term of five months' imprisonment, followed by two years' supervised release with a special condition of five months' house arrest. Trupin's appeal of the district court's decision, United States v. Trupin, 1996 WL 50237 (S.D.N.Y. Feb.8, 1996), brings three primary assertions of error: first, he asserts that § 2315 is unconstitutional under the principles of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), in that the statute exceeds Congress's authority under the Commerce Clause; second, he argues that § 2315 as applied here is an unconstitutional ex post facto law which implicates his Fifth Amendment right to be free from compulsory self-incrimination; and third, he asserts that the trial court's jury instructions contained two key errors. The Government cross-appeals on two issues: (1) that the district court erred by treating the Sentencing Guidelines loss calculation as the value of the painting in 1978 when Trupin illegally purchased it as opposed to its value in 1990 when he sold it; and (2) that the court erred by granting a downward departure based on Trupin's assertedly "aberrant" conduct. We have jurisdiction over Trupin's appeal pursuant to 28 U.S.C. § 1294, and over the Government's cross-appeal under 18 U.S.C. § 3742(b).

We affirm on both the appeal and cross-appeal.

I FACTS

"Le Petit Concert," the Chagall painting in question, was purchased in April 1969 by a Baltimore, Maryland, family. About a year later it and some twenty-two other paintings were stolen. ¹ In the 1970s, Barry Trupin was an exceedingly successful businessman involved in structuring and selling tax-leveraged or tax-saving investments, as a result of which he was making millions and acquiring the accoutrements thereof: real estate, a yacht, artworks, and other valuable items for himself and his companies, not limited to a suit of armor worn by Henry II and antique Judaica. Trupin's then spouse introduced Trupin to Raoul Zuniga, an artist apparently of some repute, but limited means. Trupin commissioned Zuniga to create a number of sculptures, to assist in the decoration of Trupin's yacht, and to act as Trupin's advisor with respect to art acquisitions. Trupin rewarded Zuniga generously for his work: not only was he paid a healthy fee for his sculptures and wage for his work in decorating the yacht, he was further commissioned to carve an ornate set of doors for the salon of the yacht. At one point in the 1980s, Trupin even gave Zuniga a new Mercedes convertible.

In the late 1970s, Zuniga obtained "Le Petit Concert," along with some other paintings, from one Angelo Jack Inglesi ("Jack"), and attempted to sell seven of the paintings to Trupin sometime in 1978. Trupin purchased the Chagall for $100,000--which, incidentally, represented the full market value at the time of the sale. We take it that Trupin's brief correctly states the fact when it says that, at that point in Trupin's life, money was no object, and he simply did not refuse to purchase an item he wanted because of its cost. Thus, in context, the obtaining of the Chagall for $100,000 was a fairly minor transaction for Trupin.

We know at least that Zuniga was aware that the painting was stolen, and we find that the record strongly supports the jury's finding that Trupin was also. Zuniga's testimony was that, when he sold the painting and on at least one other occasion, he explicitly told Trupin that the painting was stolen. He also testified that Trupin bought the painting directly from "Jack" at the Waldorf-Astoria, and it was delivered shortly thereafter near Kennedy Airport and taken to the yacht.

The trial judge found Zuniga to be utterly incredible--a down-and-out artist put on retainer and given a car, who repaid Trupin with a stolen painting. Zuniga, it was shown, also had difficulties not only with another art purchaser but with the FBI regarding a stolen Picasso. Furthermore, numerous contradictions permeated his testimony, including the fact that he specifically denied in sworn testimony in 1989 having seen the Chagall hanging in the Trupin company yacht, though subsequently admitted having sold the Chagall to Trupin. Were there no evidence other than Zuniga's testimony, the trial judge surely would not have let Trupin's conviction stand.

The Government, however, introduced other damning evidence at trial showing that Trupin knew the painting was stolen. Tellingly, Trupin kept lengthy and detailed insurance schedules, bills of sale, and appraisals with the many other works of art that he had purchased, yet never insured or maintained any such documents regarding the Chagall. In 1982, an inventory was recorded of all of Trupin's personal property, yet the employee who was directed to photograph and prepare descriptions of the other pieces of art for a catalog was not told about the Chagall (which had by that time been recovered by Trupin from his wife in Connecticut and taken back to the yacht in New York). The Trupin employee responsible for insurance matters knew that the Chagall existed, but when he asked Trupin whether it should be insured, Trupin said, "No," then glared at him and said, "You know." In addition, while Trupin displayed his legitimately-purchased works of art in his company brochures and at reputable museums, the Chagall was installed behind closed doors on the yacht, and not shown to anyone except at a social gathering of lawyers and accountants who worked for him. Moreover, when Trupin sold other possessions, he did so for maximum profit: he contacted specialists in connection with the sale of his auto collection or his boat, and contacted Sotheby's or Christy's in connection with the sale of his other art. Yet, when he determined to sell the Chagall in 1990 (at which time, according to the expert evidence, he could have sold it for over $1 million), he obtained no expert advice whatsoever. Instead, he asked a business acquaintance, who he knew was a convicted felon, to sell the painting privately for $350,000 and to a buyer who would not ask for the seller's identity or the painting's provenance.

Based on these indicia of guilty mens rea, we feel comfortable that the jury correctly determined that Trupin was well aware of the painting's shady past. Ironically, however, when Trupin attempted to sell the painting under the above-mentioned "no-questions-asked" terms through his felonious business acquaintance, the dealer/buyer learned that the painting was stolen and notified the FBI.

II DISCUSSION

A. Trupin's Appeal

Title 18, U.S.C. § 2315 provides that "[w]hoever receives, possesses, conceals, stores, barters, sells, or disposes of any goods ... of the value of $5,000 or more ... which have crossed a State or United States boundary after being stolen, unlawfully converted, or taken, knowing the same to have been stolen, unlawfully converted, or taken ..." has committed a felony. We start by noting that Appellant raises no challenge to the sufficiency of the evidence establishing that "the Marc Chagall painting was stolen in or about April 1970 from Baltimore, Maryland, that in the summer of 1979 it was located on [Trupin's] boat which was docked at the 79th Street boat basin [in New York City], that, several months later, in the beginning of 1980 [Trupin] received the painting in Westport, Connecticut, and that [he] brought it back to New York." Appellant also raises no challenge to the sufficiency of the evidence that "Le Petit Concert" was worth more than $5,000 when it was received, that he was told that the painting was stolen when he received it, and thereafter acted in a manner that was consistent only with knowledge that it was stolen, and that he possessed it and sought to dispose of it in March of 1990.

1. United States v. Lopez

Trupin's first challenge is brought under the principles enunciated in Lopez. Lopez, it will readily be recalled, held that the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A), which made it a federal offense to possess a firearm at a place that the possessor knows, or has reasonable cause to believe, is a school zone, was unconstitutional because it exceeded Congress's authority to pass legislation under the Commerce Clause. Lopez, 514 U.S. at 551-65, 115 S.Ct. at 1626-32. We first address Trupin's argument that within the strict meaning of Lopez, § 2315 unconstitutionally exceeds Congress's authority, before turning to his second point that Congress did not make adequate findings of impact on interstate commerce when amending the act.

We start our analysis with the proposition long recognized and recalled in Lopez that there are three "broad" categories of activity that Congress may regulate under the Commerce Clause:

First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from...