On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Crim. No. 88-10.
Sloviter, Hutchinson and Cowen, Circuit Judges.
Arleigh Halterman, Geno Chiarelli and Anthony Durish appeal from judgments of conviction entered on August 11, 1989. Each challenges the validity of his sentence under the United States Sentencing Guidelines. We will vacate the sentences and remand for resentencing.
Over the weekend of March 8, 1986, burglars stole sixteen antique Renaissance weapons from a safe deposit box in the First Seneca Bank at 19 North Main Street in Greensburg, Pennsylvania. The weapons, worth approximately $1,000,000, included several wheel-lock pistols and an Augsburg hunting sword dating from the early part of the fifteenth century. The burglars entered through several large holes they drilled in the bank's ceiling. No one has been charged with the burglary.
Aetna Insurance Company insured the First Seneca Bank against losses due to theft. Karen Weiss, the adjuster assigned to the case, asked Matthew Rich, another Aetna employee, for help in determining the value of the stolen weapons. Rich testified, "It occurred to me that these things were so unique that they were going to be difficult to get rid of. I approached Aetna and asked them if they were interested in obtaining them back, and they said yes." Gov't App. at 10.
On October 10, 1986, Rich spoke to George "Sonny" Jordan about the weapons. Rich spoke to him because Jordan had a reputation for knowing a lot of "criminal elements." Gov't App. at 11. A short time later, Jordan gave Rich three Polaroid pictures of the weapons, which Rich then gave to his superiors at Aetna. Jordan later told Rich that other people were involved, "big-time criminals," Gov't App. at 12, and that he and Rich would get hurt if anyone found out about their association. Gov't App. at 12.
Negotiations between Rich and Jordan in October of 1986 for the sale of the weapons fell through. In July 1987, Jordan asked Rich for descriptions and values of each weapon. Rich said he wasn't sure he could get such information, but he told Jordan he would try. In August of 1987, Rich loaned Jordan a specially prepared album, wiped clean of fingerprints, containing the information he wanted. Gov't App. at 13; Chiarelli Presentence Report (PSR) at 11. When the album was returned, the FBI found a fingerprint on it belonging to Geno Chiarelli. Chiarelli PSR at 11.
In October 1987, Rich met Jordan in Florida and again discussed selling the weapons to Aetna. Gov't App. at 13. On December 9, 1987, Rich told Jordan Aetna would offer $385,000. Rich asked Jordan to check with "his people" if the price was satisfactory. Gov't App. at 16. That night, Jordan called Geno Chiarelli. The next day, Arleigh Halterman called Jordan at his home and Chiarelli immediately afterward. Durish PSR at 12.
On December 11, 1987, Jordan called Rich to tell him that his people had accepted the offer and "were on the road." Gov't App. at 16. On December 12, 1987, Chiarelli rented a Lincoln Town Car to drive to Virginia. Chiarelli, accompanied by Anthony Durish, then drove to Virginia, where they met Jordan. Jordan drove Chiarelli and Durish to Florida in his tractor-trailer truck.
On December 13, 1987, Jordan called Rich to say he and his people were on their way to Florida. Jordan told Rich he wanted the money carefully counted, to make sure there was nothing planted in the money, and discussed washing the money to take off any chemicals it might carry. On December 14, 1987, Rich and Jordan drove to a mall in Florida about a mile from Rich's house. Jordan told Rich that his split of the money would be one eighth, that there were six other people besides Rich and himself, and that each would receive an equal share. Gov't App. at 19. The exchange was scheduled for the next day. Jordan told Rich the weapons would be packaged in a green Army duffel bag. Gov't App. at 20.
On December 15, 1987, FBI agents watched Chiarelli, Jordan and Durish leave their hotel, get in a rented Buick and drive off. Durish carried a briefcase that he put in the trunk. Agents followed them as they drove to the site designated for exchanging the weapons. After a series of maneuvers -- parking at a gas station, circling the block, returning to the gas station, visiting a restaurant to make a phone call, and dropping off Chiarelli -- Jordan and Durish drove into downtown Tampa. In a shopping mall parking lot at the corner of Buffalo and Albany Streets, they met Chiarelli and Halterman, who were driving a silver Chevrolet van. Durish and Jordan took a large green duffel bag out of the van and put it in the trunk of the Buick.
FBI agents moved forward and arrested Jordan and Durish. After Jordan consented to a search of their Buick, agents found the duffel bag containing the weapons in the trunk. They also found the briefcase that Durish had carried out of the hotel. It contained three two-way hand-held radios and two radio scanners capable of monitoring radio frequencies used by the FBI and the local police. Gov't App. at 43-47.
When agents approached the silver van, however, Halterman, with Chiarelli in the passenger seat, sped away, driving up on a sidewalk, nearly striking an agent's car, and crossing into oncoming traffic. Agents chased the van at speeds of up to eighty miles per hour until it entered an area near a school and swerved around a bus unloading children. Gov't App. at 49. When agents spotted the van ten minutes later, Chiarelli was no longer inside. Agents resumed the chase, finally trapping the van by sealing off traffic on Florida Avenue in downtown Tampa. Halterman was ordered out of the van and arrested.
Agents searched for Chiarelli in Tampa that afternoon without success. Two day later, Chiarelli surrendered himself at the FBI office in Pittsburgh.
On January 14, 1988, a federal grand jury indicted Chiarelli, Jordan, Durish and Halterman. The indictment charged them with conspiring to receive, possess, conceal and barter stolen property and to transport stolen property in interstate commerce (Count One), receiving, possessing, concealing and bartering stolen property (Count Two) and transporting stolen property in interstate commerce (Count Three).
On May 5, 1988, the district court dismissed the indictment against Jordan because Jordan had been killed in an unrelated car accident.
The case proceeded to trial before a jury against the remaining three defendants on March 14, 1989. At the close of evidence, the court granted Durish a judgment of acquittal on Count Three. On April 5, 1989, Durish and Halterman were found guilty on Counts One and Two. Chiarelli was found guilty on all three counts.
Halterman appeared for sentencing on August 1, 1989. The probation department prepared a presentence investigation report prior to sentence, in which it calculated the guideline range as 21 to 27 months' imprisonment, based on a criminal history category of I (no prior convictions) and a total offense level of 16. The report noted, however, that a departure from the guideline range might be permissible because Halterman had created a risk of harm to innocent people by driving at high speed through residential sections of Tampa, nearly hitting a police car and a school bus. At sentencing, the Assistant United States Attorney argued that the court was permitted to depart from the guidelines because Halterman's attempted escape posed a significant danger to public health and safety.*fn1 Before imposing sentence, the district court stated:
[The] Court has considered the discussion here and the arguments of counsel. The Court feels that because of the magnitude of this thievery, -- Here, you've got these men down in Florida, trying to sell over a million dollars' worth of guns. Now this is not a petty thing. This is not just an ordinary, run-of-the-mine thievery. This is a thievery of great proportion. They were caught with over a million dollars' worth of stolen property. This property came out of a bank with thick, concrete walls over a foot thick. This thievery was -- I'm not saying that Mr. Halterman was a part of the thievery. I'm just discussing how the bank -- the guns got out into the flow of commerce. Somebody had to connect some intricate working. This was a gigantic -- This is a thievery of gigantic proportions. This is a very, very sophisticated conspiracy and thievery, and I'm saying specifically Mr. Halterman is not charged with breaking into the bank, nobody ever said that he broke into the bank, but there is evidence that he was associated indirectly with the people who broke into that bank. No doubt about that. They took out of there over a million dollars' worth of guns, plus about $70,000 in cash, and we don't know what else was taken out of there. So this is not just a run-of-the-mine situation. This is something of great, great proportion and gravamen, a thievery of this magnitude, and now that they're down to Florida, they're trying to sell these guns to the insurance company.
Now it seems to me that under these circumstances, -- and then you have Mr. Halterman involved in a high-speed chase down through -- directly involved in a high-speed chase going down through Tampa and the surrounding environs of Metropolitan Tampa, where he could have killed many children on school buses in and around where he was speeding or trying to escape, endangering the general population in Tampa, people who lived there, the pedestrians, the motorists.
This was a crime of immense proportion, no doubt about it in my mind, and under 5K2 of the General Provisions of this sentencing guideline enactment, that's 18 United States Code 3553(b), this Court is authorized to impose a sentence outside the range established by the applicable guidelines, if the Court finds exists there this [sic] case an aggravating circumstance of a kind or to a degree not adequately taken into consideration by the Sentencing Commission in formulating these guidelines.
This Court finds that these circumstances I have just recited certainly warrant a departure from the guidelines when you have a theft of this proportion and magnitude, coupled with an attempted flight to flee the scene of the crime which endangered the safety of the general population in and about the City of Tampa, Florida.
Chiarelli App. at 135-37.
The district court imposed concurrent terms of 60 months in prison on Counts One and Two, a $10,000 fine on Count One and a $100 special assessment.
Chiarelli appeared for sentencing on August 2, 1989. The probation department calculated the guideline range in his case to be 27 to 33 months, based on a criminal history category of I and a total offense level of 18.*fn2 At sentencing, the government argued for an upward departure because Chiarelli was the intended beneficiary of the escape and was therefore equally culpable in endangering public safety. Before imposing sentence, the district court stated:
The Court is of the opinion that the people who are involved in crime usually--and this is my view on it. I do not have necessarily a view that is adopted by other Judges, but I feel that as near as we can under the circumstances, we ought to treat the various participants as equal as possible.
I think more bitterness is caused in the criminal justice system and will be caused by these guidelines as a matter of fact. These guidelines to some extent might be self-defeating.
In this instance, I think I am warranted in treating all of these defendants just about in the same light under all the circumstances as I view the situation.
The court found, and the jury found -- let's put it this way. The jury found and the court heard the jury finding that all of these people were involved in the conspiracy, and they were all part and parcel of the plan to sell these weapons which were valued in excess of $1,000,000 to anybody who would buy them, these 16 stolen antique weapons.
There is no doubt in my mind that that was the case, as I heard all the testimony and evidence, ...