United States v. Wymer
| Decision Date | 29 June 2016 |
| Docket Number | Case No. 15-3510,Case No. 15-3513,Case No. 15-3511,Case No. 15-3496,Case No. 15-3519,Case No. 15-3512 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GARY J. WYMER; TERRANCE L. WYMER; GARY G. WYMER, JR.; ROBERT W. DEBOLT, JR.; JOHN A. DEBOLT; MICHAEL G. WYMER, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0356n.06
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
BEFORE: McKEAGUE and GRIFFIN, Circuit Judges; BERTELSMAN, District Judge.*
McKEAGUE, Circuit Judge. Michael Wymer, Gary Wymer Sr., Robert Debolt, Gary Wymer Jr., Terrance Wymer, and John Debolt all took part in a large-scale chop-shop operation based in Toledo, Ohio that resulted in criminal charges for fourteen individuals. These six defendants raise numerous challenges to their convictions and their sentences. For the reasons below, we affirm all challenged convictions and sentences.
After Michael Wymer completed a state sentence for possessing a stolen loader in June 2011, he immediately resumed his chop-shop operation. He enlisted various family members to assist him, including the five other defendants in this case: Gary Wymer Sr., Robert Debolt, Gary Wymer Jr., Terrance Wymer, and John Debolt. They began stealing trucks and trailers loaded with scrap metal from highway rest stops and other locations in Ohio, Michigan, and Indiana. The men brought the stolen items to their facilities in Toledo, Ohio to chop the trucks and trailers into pieces to scrap for a profit.
The defendants identified targets for their thefts in two ways. Most commonly, Robert Debolt would identify a particular truck, trailer, or location to be targeted. Since Robert Debolt was a trucker, he frequently observed semi-trucks and trailers that could profitably be stolen and chopped into pieces that could then be scrapped. Alternatively, Michael Wymer and an accomplice (often Robert Debolt) would travel along one of a handful of routes within a several hundred mile radius of Toledo, usually late at night. They would stop and loiter at rest stops, motels, and other locations where drivers parked their tractors and trailers overnight.
Upon finding an unattended truck or trailer, they would haul it back to one of two facilities: a facility owned by Michael Wymer on Sterling Street or one owned by Gary Wymer Sr. on Consaul Street. Both locations were secured with locked gates, so Michael Wymer routinely called other family members to meet him to open the gate when he brought the stolen items back. The next morning, the family work-crew would dismantle the trucks and trailers. Vehicle identification numbers (VINs) and other identifying information were removed from the trucks, trailers, and other stolen items. Within a few days of the theft, the entire truck and trailerwere cut into small pieces, cleaned of any identification, and taken to local scrapyards to be exchanged for cash. Larger items were taken to the Consaul Street facility where Gary Wymer Sr. would dismantle them for re-use or crush them for scrapping. The contents of the trailers were repackaged and taken to a scrapyard in Pennsylvania, sold on Craigslist, or kept for personal use.
In August 2012, law enforcement received an anonymous tip about a stolen truck operation in northwest Ohio. The tip specifically named Michael Wymer as the person running the operation. The investigators found a truck yard at 623 Sterling Street in Toledo, Ohio that they suspected might be the one referenced by the tipster. They attempted to conduct physical surveillance, but they were generally unsuccessful because the yard and buildings were open to the adjacent streets and Michael Wymer was aggressive about confronting any loitering vehicles.
Pole Camera. On September 20, 2012, investigators installed a pole camera to watch the traffic moving in and out of the yard. The pole camera was installed on a telephone pole outside of the Sterling Street property on Center Street, looking east towards the building. The camera would capture vehicles as they entered the open area from either the Sterling Street driveway or the Center Street driveway. It also captured any vehicle parked in the open work-yard area.
At trial, the government introduced photographs and brief video clips from the pole camera footage. These exhibits showed stolen trucks or trailers returning to or parked at the Sterling facility within hours of having been stolen. The stolen items were readily identifiable by distinctive paint schemes, company logos, product serial numbers, or other unique features. The pole camera footage also showed Michael Wymer and his crew processing the stolen cargo and dismantling the stolen trucks and trailers.
Physical Surveillance. On several occasions, law enforcement officers also went to the Sterling facility and observed stolen trucks and trailers in person. For example, after a theft in early October 2012, one of the agents observed a stolen truck in the yard area with "Bunn Transportation" painted on the door. Soon after, Terrance Wymer came into the yard and scraped off the lettering. On other occasions, the officers intercepted or made visual contact with the stolen vehicles as they were being brought back to Toledo. And on November 14 and 17, 2012, a surveillance camera at a Super 8 motel in Austintown Township, Ohio recorded Michael Wymer casing a vehicle, breaking into the cab, and driving away.
GPS and Cell Phone Records. Investigators also obtained a warrant to place a GPS device on Michael Wymer's personal car and the semi-truck that he used to commit many of the thefts. Through the GPS trackers, the investigators discovered that Michael Wymer and the other defendants were also operating out of Gary Wymer Sr.'s facility at 2322 Consaul Street in Toledo, Ohio.
The GPS data showed that Michael Wymer's car or truck was at the site of almost all of the charged thefts at the time of each theft. Footage from the pole camera would show that sometime soon after each theft, but almost always during the middle of the night, a semi-truck or trailer would enter the Sterling Street location. Often the truck or trailer would be pulled into the garage and the lights turned off. The next morning, a team of workers would arrive and engage in a flurry of activity for several days as the stolen cargo was repackaged for transportation and sale and as the stolen truck or trailer was cut into small, untraceable pieces for scrap.
Additionally, investigators examined cell phone numbers collected via grand jury subpoenas and search warrants. The evidence showed that Michael Wymer's cell phone made or received phone calls using cell towers in close proximity to many of the thefts during the time ofthe thefts. The records, along with witness testimony, also established that Michael Wymer regularly called his co-conspirators while returning with a stolen truck in order to have them open the gate for him to pull into the Sterling facility.
Search of Facilities. Investigators concluded their surveillance in January 2013. They determined that between August 2012 and January 2013, the conspirators had engaged in twenty-four separate incidents of theft of trailers, semi-tractors, and cargo. Investigators executed a search warrant on the Sterling facility in February 2013. The search uncovered a video surveillance system at the Sterling facility. Michael Wymer had installed the system because he thought that his own employees were stealing from him, and so he set it up to capture both the inside and outside of the garage facility. This system recorded approximately six weeks of activity, spanning from early November through the middle of December of 2012. Law enforcement recovered the hard drive for the surveillance system with the recorded video when they searched the Sterling facility in early February 2013. The hard drive had numerous video recordings of Michael Wymer and his accomplices bringing stolen trucks and trailers onto the Sterling site. It also contained recordings of Michael Wymer and his crew dismantling numerous stolen items and processing the stolen loads of cargo for scrap.
After executing the search warrant, investigators were also able to trace items from several of the thefts to the Sterling property. For example, Patrick June left a jacket bearing his name and company logo in his truck when he parked it in Adrian, Michigan the night of December 16, 2012. His truck was stolen soon after. The GPS data showed that Michael Wymer's car was at the scene of the theft that night, and June's jacket and other belongings were found at the Sterling facility during the search. Officers also found remnants of several stolen trucks and loads of cargo. For example, red side pieces from a trailer stolen from Anna, Ohiowere found at the Sterling garage. Similarly, a seat from a truck stolen from Holiday City, Ohio was found there. Pieces of steel stolen in January 2013 were also recovered.
The first indictment was filed on March 7, 2013. A superseding indictment was filed on June 12, 2013. A final, second superseding indictment was filed on February 11, 2014.
Michael Wymer. Michael Wymer was the ringleader of the chop-shop conspiracy. He went to trial and was found guilty of one count of conspiracy to defraud the government by committing theft of interstate shipments; four counts of interstate transportation of stolen vehicles; eight counts of interstate transportation of stolen goods; and two counts of theft of interstate shipments by carrier. He was sentenced to 60 months' imprisonment for the conspiracy count and 120 months' imprisonment on each of the remaining seven counts, with the sentences to run concurrently, followed by a three-year term of supervised release.
Gary Wymer Sr. Gary Wymer Sr. is Michael Wymer's brother. He owned a salvage yard business...
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