U.S. v. LARSON No. 96-1419.
110 F.3d 620 (1997)
UNITED STATES of America, Appellee, v. Peter LARSON, Appellant.
United States Court of Appeals, Eighth Circuit.
Rehearing Denied May 30, 1997.
Patrick Duffy, Rapid City, SD, argued, for appellant.
David Zuercher, Assistant U.S. Attorney, Pierre, SD, argued, for appellee.
Before MAGILL, JOHN R. GIBSON and BEAM, Circuit Judges.
MAGILL, Circuit Judge.
We revisit this case for the sixth time.
As president and majority stockholder, Larson headed a commercial fossil business, the Black Hills Institute of Geological Research (the Institute). The Institute's activities focused on the collection, preparation, and marketing of fossils. The Institute's most notable success story was the discovery of "Sue," a 65-million-year-old Tyrannosaurus rex fossil. However, with success came not only public notoriety and attention, but also the attention of law enforcement officials.
On May 14, 1992, federal officials raided the Institute to seize evidence. Among the fossils seized were crinoid fossils, a marine invertebrate, which Larson had collected from the Gallatin National Forest in Montana, and various fossils from the Buffalo Gap National Grasslands in South Dakota. Both parcels of land belong to the United States and Larson had not been authorized to remove the fossils.
In addition, as part of his activities for the Institute, Larson made repeated trips to Peru to collect fossils. This collection included excavation and export of fossilized remains of baleen whales. One such fossil, "Maya," was sold to a Japanese buyer for $225,000. Yet, fossils being exported from Peru were presented to customs as having scientific value only.
In preparation for a March 1990 trip, Larson withdrew $15,000 from the Institute's bank account in order to pay his expenses in Peru, including the cost of fossil collection. When Larson left for Peru on March 9, 1990, carrying more than $10,000, he failed to file Customs Form 4790, a Report of International Transportation of Currency or Monetary Instrument.
Larson's Institute travel also included a 1991 trip to a Tokyo fossil show to sell fossils. While in Japan, Larson purchased $31,700 in traveler's checks. On June 8, 1991, Larson returned to the United States with the traveler's checks. Larson failed to complete Customs Form 4790 which must also be submitted when importing more than $10,000 worth of monetary instruments into the United States.
Based on the Institute's dinosaur-related activities, the government obtained a thirty-nine count indictment. Larson was charged with thirty-six counts. The charges focused on the illegal collection of fossils and included counts of conspiracy, obstruction of justice, theft of United States' property, and customs violations.
During the course of his trial, Larson unsuccessfully attempted to have the trial judge recuse himself. At a status hearing on a possible plea bargain discussed in the media, the trial judge expressed disapproval of the reported agreement, calling it a government capitulation. In a subsequent communication, the trial judge stated that his comments were contrary to Federal Rule of Criminal Procedure 11(e), which prohibits a judge's participation in plea agreement discussions. However, he declined to recuse himself. Larson petitioned this Court for a writ of mandamus to remove the trial judge, which was denied. In re Larson, 43 F.3d 410 (8th Cir.1994).
A jury convicted Larson of one count of theft of United States' property not in excess of $100, one count of retention of stolen United States' property not in excess of $100, and two counts of failure to file a customs report when transporting monetary instruments. Larson was sentenced to twenty-four months confinement, two years supervised release, a fine of $5000, and a special assessment of $150.
The district court's computation of Larson's sentence started with the customs violations. The court began with a base offense level of 11. See U.S.S.G. § 2S1.3 (a base offense level of 6 plus the number of offense levels called for by the value of the funds table in § 2F1.1). The court then found that the specific offense characteristic in § 2S1.3(b)(1) applied to Larson. This section dictates an increase by two levels "[i]f the defendant knew or believed that the funds were proceeds of unlawful activity, or were intended to promote unlawful activity." U.S.S.G. § 2S1.3(b)(1). Next the court found that the § 3B1.1(a) role in the offense adjustment applied. This adjustment mandates a four level increase "[i]f the defendant was an organizer or leader of a criminal activity that
The district court then turned to the property offenses. Retention of stolen United States' property not in excess of $100 and theft of government property not in excess of $100 have a base offense level of 4. U.S.S.G. § 2B1.1. Again the court added four levels pursuant to § 3B1.1(a) for Larson's role in the offense. Thus, the adjusted offense level was 8.
The district court next determined that the combined adjusted offense level for multiple counts to be level 17. See U.S.S.G. § 3D1.4(c). Finally, looking to the sentencing table, the district court found the sentencing range to be from twenty-four to thirty months, given Larson's criminal history category of I and his offense level of 17. The district court imposed a sentence of twenty-four months.
On appeal, Larson makes the following arguments: (1) that his retention of invertebrate fossils from forest service lands was not a crime in light of forest service regulations permitting the noncommercial collection of invertebrate fossils; (2) that he lacked the requisite knowledge that it was illegal to take in excess of $10,000 out of the country without filing a customs report; (3) that he lacked the requisite knowledge that it was illegal to bring in excess of $10,000 in restrictively endorsed traveler's checks into the country without filing a customs report; (4) that the requirement of filing a customs report when bringing in excess of $10,000 into the country does not apply to traveler's checks restrictively endorsed; (5) that applying § 2S1.3(b)(1) of the United States Sentencing Guidelines, which increases the sentence when unreported funds are exported for the purpose of illegal activity, was improper because he did not intend to use the funds unlawfully; (6) that because Larson's role in the offense was not that of the organizer and leader of a criminal activity involving five or more participants or that because he was not extensively involved, applying § 3B1.1 of the Sentencing Guidelines was improper; and (7) that the sentencing judge improperly refused to recuse to himself following a Rule 11(e) violation.
Larson's first three arguments concern the sufficiency of the evidence. In reviewing a claim of insufficiency of the evidence, we ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia,
Larson's first argument uses a 1986 Forest Service regulation permitting the noncommercial harvesting of invertebrate fossils. See 51 Fed.Reg. 30355-356 (1986), codified at 36 C.F.R. § 261.9(i) (1987). Larson claims that this regulation renders his retention of invertebrate fossils, harvested in 1984 and 1985, not a crime as a matter of law. Assuming that this regulation benefits Larson, Larson's argument hinges on his fossil harvesting having been noncommercial. Thus, Larson contends that, though he removed the harvested fossils, there is not sufficient evidence that his fossil harvesting was commercial. We find this argument to be meritless.
Clearly, a rational trier of fact could have found beyond a reasonable doubt that Larson removed the fossils for commercial purposes. Larson was the head of a commercial fossil business. The Institute was organized to sell fossils such as these. The fossils Larson harvested were stored in the Institute's business warehouse. The jury could properly have relied on this evidence to infer that the fossils were taken by Larson for a commercial purpose.
Next, Larson argues that the government failed to meet its burden of showing that Larson possessed the knowledge that it was illegal to take in excess of $10,000 out of the country without filing Customs Form
The record reveals that Larson is an experienced traveler. Upon re-entry into this country from a trip abroad, travelers are routinely given a Customs Form 6059B. This form details the requirement of filing a report on Customs Form 4790 when taking out of or bringing into the United States more than $10,000. Prior to his trip to Peru in 1990, Larson had traveled to South America in 1985, 1987, and 1989. These prior trips raise the strong inference that Larson had repeatedly signed Customs Form 6059B, declaring that he had read it. This evidence is sufficient for a reasonable jury to conclude that Larson was aware of the reporting requirement.
Larson also argues that the government has not met its burden of showing that he knew that it was illegal to bring more than $10,000 in traveler's checks in any form into the country without filing a customs report. Ratzlaf, 510 U.S. at 137, 114 S.Ct. at 657 (knowledge requirement). As discussed above, there was sufficient evidence for any reasonable jury to conclude that Larson, as an experienced international traveler, had repeatedly completed Customs Form 6059B and was aware of its contents. Form 6059B explicitly states that the reporting requirement applies to traveler's checks. See Tr. Ex. 443 (reporting requirement applies to "more than $10,000 (U.S. or foreign equivalent, or a combination of the two) in coin, currency, traveler's checks or bearer instruments such as money orders, checks, stocks or bonds" (emphasis added)), reprinted in Appellee's Add. at 3-4.
Customs Form 6059B does not distinguish between restrictively and nonrestrictively endorsed traveler's checks. Form 6059B simply lists "traveler's checks." Therefore, there is sufficient evidence for a reasonable jury to conclude that Larson was aware that the reporting requirement applied to all traveler's checks whether restrictively endorsed or not.
Larson not only argues that he did not have the requisite knowledge that the reporting requirement applied to all traveler's checks, he further argues that the requirement itself does not apply to restrictively endorsed traveler's checks. We find that the reporting requirement applies to traveler's checks in any form.
The reporting requirement applies to "monetary instruments." 31 U.S.C. § 5316(a)(1). The 1990 Code of Federal Regulations defined monetary instruments to include traveler's checks in any form. See 31 C.F.R. § 103.11(m) (1990).
We also reject Larson's argument that because "monetary instrument" is defined as including both traveler's checks and "all negotiable instruments," 31 C.F.R. § 103.11(m)(iii), that the traveler's checks included must be negotiable. The definition of monetary instrument also includes currency, 31 C.F.R. § 103.11(m)(i), which is not a negotiable instrument. Thus, the reference to "all negotiable instruments," 31 C.F.R. § 103.11(m)(iii), does not limit the other sections enumerated within the definition of monetary instrument. Second, another provision of the regulations provides for an exemption for a restrictively endorsed traveler's check "that is in the collection and reconciliation process after the traveler's check has been negotiated." 31 C.F.R. § 103.23(c)(8) (1990). If we were to accept Larson's contention that the reporting requirement does not apply to restrictively endorsed traveler's checks, this provision would be rendered superfluous. Accordingly, we reject this interpretation. See Dryden v. Lou Budke's Arrow Fin. Co.,
We conclude that the reporting requirement found in 31 U.S.C. § 5316(a)(1) applies to traveler's checks in any form, whether restrictively endorsed or not.
Larson's next set of arguments addresses the application of the Sentencing Guidelines. We find no errors in the district court's application of the guidelines.
Section 2S1.3(b) lists specific offense characteristics for sentencing a defendant for failing to file currency and monetary instrument reports. U.S.S.G. § 2S1.3(b) (1995). Subsection (b)(1) provides for a two level increase where the funds were known to be the proceeds of unlawful activity or intended to promote unlawful activity. U.S.S.G. § 2S1.3(b)(1) (1995). Here, the district court made two findings of intent to promote unlawful activity. By a preponderance of the evidence, the court found both that Larson intended the funds to: (1) promote the unlawful exportation of fossils from Peru; and (2) promote an unlawful conspiracy to take fossils from United States' public lands.
Appellant's Br. at 35. However, the district court made two distinct factual findings of intent, either of which could sustain the application of § 2S1.3(b)(1). Cf. United States v. Smith,
We conclude that the district court's finding that Larson intended the funds to promote an unlawful conspiracy was not clear error. United States v. Mitchell,
Larson next argues that the district court improperly applied Sentencing Guideline § 3B1.1(a). Section 3B1.1 lists adjustments based on the defendant's role in the offense. Subsection (a) provides for a four level increase where the defendant's role was that of an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. See U.S.S.G. § 3B1.1(a).
The district court's interpretation of the Sentencing Guidelines is a question of law subject to de novo review, while its factual determinations are subject to review only for clear error. United States v. Lamere,
Finally, Larson argues that the district court erred when it refused to recuse itself. We disagree.
To mandate recusal of a judge because of opinions formed in the course of proceedings, a judge must display such a deep-seated favoritism or antagonism that fair judgement is impossible. See Liteky v. United States,
Federal Rule of Criminal Procedure 11(e) states that attorneys for each side may engage in discussions with a view toward reaching a plea agreement and that the court shall not participate in these discussions. "Courts have consistently interpreted Rule 11(e) as a bright line rule barring any court participation in the plea bargaining process." In re Larson, 43 F.3d at 415 (citing United States v. Olesen,
Even assuming that the district court was correct that its comments violated Rule 11(e), we do not find that the violation of Rule 11(e) in this case mandated a new sentencing judge. Recusal is required only if the violation is such that the sentencing judge has displayed such a deep-seated favoritism or antagonism that fair judgment is impossible. See Liteky, 510 U.S. at 555, 114 S.Ct. at 1157. Here, we do not find the requisite level of bias or partiality.
Larson cites United States v. Adams,
For the above reasons, the judgment of the district court is affirmed.
BEAM, Circuit Judge, concurring and dissenting.
I am troubled by the result we reach in this case. Nonetheless, I reluctantly concur in the court's opinion affirming the guilt phase of the trial, although, in my view, the convictions barely survive reasonable analysis on both the law and the facts. I do believe, however, that the sentencing process was fatally flawed and should be reversed. Accordingly, I concur in part and dissent in part.
As the court notes, this case had its genesis in a quarrel over the care, custody and ownership of the 65-million-year-old remains of a tyrannosaurus rex named "Sue" discovered in 1990 on a South Dakota ranch. Black Hills Inst. of Geological Research v. United States Dep't of Justice,
The criminal act alleged at that time was a violation of the Antiquities Act, 16 U.S.C. § 433. Black Hills Inst. of Geological Research v. United States Dep't of Justice,
A bitter legal battle between the United States and the Institute over ownership of Sue continued for several years with this court acting as part-time umpire. Black Hills Inst. of Geological Research v. South Dakota Sch. of Mines & Tech.,
At the same time, the criminal indictment limped along until late 1994 when a South Dakota newspaper disclosed that the case was about to be concluded through a plea agreement favorable to Larson. In re Larson, 43 F.3d 410, 411 (8th Cir.1994) (Black Hills IV). At that point, the trial judge, in admitted violation of Federal Rule of Criminal Procedure 11(e), upset progress toward the consummation of the apparent arrangement, describing it, in part, (based on what the judge saw in the newspaper) as a "capitulation by the government." Id. This, of course, sent the federal prosecutors scurrying back to the drawing board. The recent thirty-nine count prosecution resulted, with thirty-six of the counts directed at Larson. After trial, the jury convicted Larson of two minor counts of theft involving property of less than $100 in value and two rather exotic customs violations both involving activities carried out in foreign nations: one occurring prior to the discovery of Sue and one prior to the search of the Institute's headquarters.
While the matter probably should have been disposed of by the plea agreement reported in the press, I now reluctantly agree with the court that, given the test we must apply at this point, United States v. Shoffner,
I disagree, however, with the sentence imposed. In its sentencing guideline calculations, the trial court seems to have generously exercised its discretion to enhance the penalties arising from the defendant's participation in relatively minor crimes. Further, the weighty sentence was, in my view, inappropriate given the questionable presentations at trial concerning the existence of and the substance of the Peruvian law at issue.
Sentencing enhancements based on uncharged or acquitted conduct, as in this case, must rely on behavior that is (1) proven by a preponderance of the evidence and (2) part of the "relevant conduct" of the offense of conviction. A review of the trial record shows that the rulings survive the evidentiary standard, but fail the nexus requirement.
Although acquitted of all conspiracy allegations by the jury, the district judge found, for sentencing purposes, that a conspiracy to collect fossils from federal land existed.
While my review of the transcript left me convinced that there was no conspiracy, there was some evidence supporting the government's theory. Furthermore, I have not located a case reversing a sentencing enhancement on the grounds that the acquitted conduct was insufficiently proven. In this case, however, there seems to have been some predisposition to find that a conspiracy did, indeed exist. Tr. of Hr'g at 26-27 (Sept. 21, 1994) (comments regarding plea bargain reported by press).
The enhancements were then imposed on the grounds that the customs violations
The only Eighth Circuit case exploring the limits of 1B1.3(a)(2) is United States v. Ballew,
Even if Ballew is correctly decided, the nexus between the convictions and the enhancements in Larson's case is considerably more tenuous.
Section 3B1.1(a) calls for a four-level increase for a defendant's leadership role. The district court did name five conspirators, Evidentiary Hr'g at 64-65 (Jan. 16, 1996), but
Similarly, section 2S1.3(b)(1) adds two levels when the defendant knew the funds were proceeds of unlawful activity or were intended to promote unlawful activity. Both the district court and this court assert that this enhancement was appropriate because the funds from the customs violations were purportedly intended to aid the United States conspiracy.
The vast majority of section 2S1.3(b)(1) cases involve the use of drug proceeds. E.g., United States v. Mitchell,
Unlike Packer, the government here provided no evidence about Larson's plans for the money. The only arguable nexus between the trips and the fossil conspiracy is the general business done by the Institute. The exhibits do demonstrate that the Japanese travelers' checks were deposited into the Institute's account and the Peruvian travelers' checks were purchased with Institute money. One defendant did testify that the business was conducted to "support our, I guess, habit of collecting" fossils. Trial Tr. at 2902. These general connections were all that was established under even the most charitable reading of the record. This stretches the concept of relevant conduct well beyond Ballew. Further, there was no evidence at all about either the intended or the actual use of these monies.
Accordingly, I would affirm the convictions but, given the Rule 11(e) violation, I would remand the case to the district court for resentencing before another judge. We noted in our opinion in Black Hills IV that precedent supports sentencing by a different judge under these same circumstances. 43 F.3d at 416, n. 7 (citing United States v. Adams,
Id. at 464.
In Washington, the court construed our earlier opinion in Black Hills IV and did not find "plain error" when the trial judge, who had also acknowledged a Rule 11(e)(1) violation, failed to recuse himself sua sponte from the sentencing phase of the trial. Id.,
Accordingly, I concur in that part of the court's opinion affirming the conviction. I
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