US v. Mardirosian

• Decision Date: 14 April 2010
• Docket Number: No. 09-1144.,09-1144.
• Citation: 602 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Robert M. MARDIROSIAN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

602 F.3d 1

UNITED STATES of America, Appellee, v. Robert M. MARDIROSIAN, Defendant, Appellant.

No. 09-1144.

United States Court of Appeals, First Circuit.

Heard October 8, 2009.

Decided April 14, 2010.

COPYRIGHT MATERIAL OMITTED

Jeanne M. Kempthorne for appellant.

Jonathan F. Mitchell, Assistant United States Attorney, with whom Michael K. Loucks, Acting United States Attorney and Ryan M. DiSantis, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Chief Judge, TORRUELLA and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Defendant-Appellant Robert M. Mardirosian was convicted by a jury of one count of possessing, concealing or storing six stolen paintings, including a rare Cézanne valued at $29 million, in violation of 18 U.S.C. § 2315. On appeal, Mardirosian argues that there was insufficient evidence for the jury to conclude that he possessed stolen property during the applicable five-year statute of limitations period, because the owner had given him legal title to the paintings in a 1999 agreement. Even if the agreement was invalid, Mardirosian contends, he subjectively believed that he held title to the paintings after 1999 and thus the government could not prove he knowingly possessed stolen property, as required by § 2315. Mardirosian further claims that the district court erred in instructing the jury that this agreement did not provide him with a viable mens rea defense to the charge. He also appeals his sentence, alleging errors in the application of the Sentencing Guidelines. Finding no error, we affirm.

I. Facts

For purposes of the sufficiency challenge, we recite the facts in the light most favorable to the verdict. United States v. Marin, 523 F.3d 24, 27 (1st Cir.2008). Just after Memorial Day weekend in 1978, Michael and Doris Bakwin discovered that seven valuable paintings had been stolen from their Stockbridge, Massachusetts home — including two portraits by Chaim Soutine and a still-life by Paul Cézanne.¹ Michael Bakwin advertised a $25,000 reward in regional newspapers for the return of the paintings, and state and federal authorities launched an investigation. The focus soon narrowed to a small group of suspects, including David Colvin of Pittsfield, Massachusetts.

During the investigation, Mardirosian, a criminal defense attorney, was representing Colvin in an unrelated firearms case. Although Mardirosian did not testify at his own trial, he had presented his version of how he came into possession of the paintings in a 2006 interview with a Boston radio station. The jury heard a tape of the interview, in which Mardirosian claimed that, on the day before a hearing in Colvin's firearms case, Colvin appeared at Mardirosian's office for a meeting carrying a bag containing the seven paintings stolen from the Bakwin home. According to Mardirosian, Colvin said he planned to sell the paintings, but Mardirosian convinced him not to do so. At the end of the meeting, Colvin asked Mardirosian to help him find a place to spend the night. Mardirosian directed Colvin to the loft of an office building that Mardirosian owned.

The following day, Colvin pleaded guilty to the firearms charge and was sentenced to one year of probation. In February 1979, he was shot and killed. The investigation into the art theft stalled.

Some months after Colvin's death, while cleaning out the loft where Colvin had stayed, Mardirosian happened upon the bag of paintings. He chose not to contact Bakwin or law enforcement, but rather began investigating how to profit from his discovery. Mardirosian first researched whether he might obtain insurance proceeds for the return of the paintings, but rejected the idea because the most valuable painting, the Cézanne, was not insured. It is unclear what Mardirosian did next with the paintings, but in 1988 he had the paintings shipped out of the United States and, at some point thereafter, stored them in the vault of a major Swiss bank.

It was only in 1999, through Mardirosian's botched attempt to sell the Cézanne in London through a third-party representative, that authorities picked up the trail of the missing paintings. Tony Westbrook, a British citizen acting on Mardirosian's behalf as the anonymous holder, had contacted Lloyd's of London to try to insure the shipment of the Cézanne from Russia to London in preparation for sale. The inquiry prompted Lloyd's to alert the Art Loss Register (ALR), a London-based organization that maintains a database of stolen artwork and verifies the provenance of art for private collectors and major auction houses. The ALR confirmed that the Cézanne was the same painting stolen from Bakwin's home in 1978. It notified British authorities and the FBI, and then signed an agreement with Bakwin whereby the ALR would attempt to recover all seven stolen paintings in exchange for a commission.

The ALR approached Westbrook to see if it could determine the identity of the mysterious seller and arrange for the paintings' return. Westbrook, who claimed to receive his marching orders by telephone from an anonymous caller, said he knew only that the holder of the paintings had an American accent and insisted on anonymity.

In March 1999, Mardirosian, through Westbrook, demanded $15 million for the return of the paintings. Bakwin refused. Mardirosian renewed his demand for payment in August 1999 through a new agent, Swiss lawyer Bernard Vischer. Vischer informed the founder and chairman of the ALR, Julian Radcliffe, that the holder of the paintings was looking for a payment in the "millions of dollars." Vischer threatened that "his client would take the pictures away and hang them on his wall if we didn't do a deal." Bakwin again refused.

By this time, Bakwin was losing faith that he would be able to recover his paintings through negotiations. He reluctantly agreed to convey six of the paintings, together worth about $1 million, to the anonymous holder in exchange for the return of the Cézanne. As part of the agreement, the ALR insisted that the paintings' anonymous holder complete an affidavit confirming that he was not involved in the original theft. The parties agreed that the affidavit would be held in escrow by Herbert Smith, a London-based law firm, and that it would be opened only if required by court order.

On October 25, 1999, Vischer and Radcliffe met in Geneva to execute the agreement (hereinafter the "1999 Agreement"), accompanied by attorneys and experts from Sotheby's who could verify the painting's authenticity. Vischer spoke with someone on his cell phone, and then announced that he would retrieve the Cézanne and bring it to the boardroom. He left the room and headed to the front of the building, with Radcliffe and the others in tow. Once outside, Vischer walked to a nearby corner. A white car pulled up beside him, and the back passenger window lowered. A passenger in the backseat, his face shrouded from view, handed Vischer a black trash bag. The car sped away. Vischer returned to the boardroom and handed the trash bag to the experts from Sotheby's, who carefully opened it to reveal the stolen Cézanne.

The Cézanne's authenticity confirmed, Radcliffe signed the agreement on behalf of the Art Loss Register. Vischer signed on behalf of the "Erie International Trading Company," a Panamanian Corporation formed to hold title to the six paintings for Mardirosian as the anonymous holder. On November 16, 1999, Radcliffe provided Vischer with a bill of sale that purported to deed title to the paintings and told Vischer that the ALR's records would reflect that title to the six stolen paintings had passed to the holder by settlement.

Bakwin sold the Cézanne in December 1999 for $29.3 million. Discussions regarding the remaining six paintings continued. In early 2000, Vischer told Radcliffe that the anonymous holder would be willing to sell the paintings to Bakwin for $1 million. Bakwin refused. Vischer dropped the demand to $500,000. Bakwin remained adamant that he would not pay any cash to the anonymous holder. Talks between the parties broke off.

Three years later, Mardirosian again sought to sell the six paintings, this time to a private buyer. In December 2003, he approached Paul Palandjian, a Boston-based real estate developer and family friend. Mardirosian told Palandjian that the paintings had been stolen, but that he had received title as part of a valid contract. Palandjian later agreed to represent Mardirosian as the anonymous holder for the purpose of selling the paintings.

Palandjian contacted Sotheby's to gauge the auction house's interest in the paintings. Sotheby's knew of the paintings' history and was intrigued, but it wanted to view them and verify title before it agreed to include them in its next Impressionist art auction. Palandjian and Mardirosian began making arrangements to meet Sotheby's demands. Palandjian flew to Geneva, where Mardirosian had arranged for a friend to deliver the paintings to Palandjian's hotel room. Palandjian then took the paintings to a Sotheby's representative at the Geneva offices of Bank Sarasin for inspection.

Sotheby's ultimately made an offer to sell four of the six paintings. In January 2005, it contacted the ALR to check the status of the paintings' title. Radcliffe immediately saw an opportunity to seize the paintings when they arrived in London for auction. If he told Sotheby's the paintings were stolen, however, he worried that word could get back to the seller, who then would not ship them. Radcliffe thus told Sotheby's that the titles of the paintings were cleared for sale.

Relying on the ALR's assurances, Palandjian authorized Sotheby's to ship the paintings from Geneva to London in April 2005. In May 2005, with the paintings safely on British soil, Bakwin sued Sotheby's to enjoin their sale. The British court ordered Sotheby's to return the paintings to Bakwin, and it directed the parties to open the envelope held in escrow at Herbert Smith.² In ...