ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. (D.C. Criminal Action No. 92-00301-2).
Before: Becker and Nygaard, Circuit Judges, and Yohn, District Judge*fn*
Ben Renfro Stuart appeals from his judgment of conviction for receipt of stolen government property, which we will affirm. He also contends the district court misapplied the guidelines in the sentence it imposed upon him. Because the district court did not decide whether Stuart was a minor participant, we will vacate the sentence and remand for resentencing.
Beatrice Noel's home was burglarized and 220, $1,000 U.S. savings bonds were stolen. Pursuant to 31 C.F.R. § 315.25, the Government replaced Noel's bonds. Later, Robert L. King contacted Don Chiarella, a Harrisburg clothing store operator, and told him that he had savings bonds that he wished to sell. Chiarella said that he knew someone in Philadelphia who could "move" the bonds for twenty cents on the dollar. Later that day, King sent Stuart to Chiarella's store to deliver twenty of the bonds in a wrapped package, apparently as a sample for Chiarella's "Philadelphia connection." Chiarella, who was working as a confidential informant, contacted Special Agent Larry Van Loon of the Federal Bureau of Investigation.
Van Loon determined that the bonds were taken in the Noel burglary. He arranged for Chiarella to introduce King to the "connection" from Philadelphia, played by Officer Taylor of the Dauphin County Drug Task Force, at a Harrisburg parking lot. A surveillance van was positioned in the parking lot with equipment to record the meeting. Taylor entered the parking lot, followed by King, Stuart and Chiarella, all in separate vehicles. Stuart positioned his car, remote from the other three, and awaited instructions from King.
Meanwhile, King, Taylor and Chiarella negotiated the sale of the bonds. Taylor paid King $4,000 for the first twenty bonds delivered to Chiarella. King told Taylor that he had an associate in the parking lot with another 109 bonds and that another seventy-five bonds could be provided the following day. Taylor agreed to pay twenty cents on the dollar and King signalled Stuart over a Citizens Band radio. Stuart walked across the parking lot with 109 bonds wrapped in newspaper, handed the bonds to King through the car window, then returned to his own car. Stuart was then arrested. Both Stuart and King were charged with receiving stolen property of the United States under 18 U.S.C. § 641.
The arresting officers testified at trial that Stuart, (1) was given his Miranda warnings and agreed to speak to the investigators; (2) volunteered information that two weeks earlier, King had asked him to sell some stolen bonds; (3) said he delivered twenty bonds to Chiarella; (4) admitted that his role on the day of his arrest was to deliver another one-hundred and nine bonds after receiving a signal from King; and (5) acknowledged that he was to receive $2,000 for his services.
At trial, Stuart denied ever having been advised of his rights by the arresting officers. He further denied knowing the contents of either package he delivered, claiming that the officers told him that he had been carrying stolen bonds, which he merely confirmed under interrogation. According to Stuart, Chiarella owed King money and had given King the bonds as collateral. The purpose of the parking lot transaction, according to Stuart's testimony, was simply so Chiarella could repay King and King could return the collateral. Stuart's role, for which he said he was to receive only a $2,000 "loan," was to protect the collateral until the exchange was consummated and to witness the transaction.
The jury, however, found Stuart guilty. At sentencing, the district court found the face value of the $129,000 in stolen bonds Stuart delivered to be the amount of the loss and applied a nine-level enhancement under U.S.S.G. § 2B1.1(b)(1)(J) (1992). The court concluded that Stuart was not a minimal participant under U.S.S.G. § 3B1.2, and was not entitled to a downward adjustment of four levels. It never explicitly ruled on whether he might have been a minor participant entitled to a two level downward adjustment.
Stuart first appeals his judgment of conviction, arguing that three of the elements of receiving stolen government property under 18 U.S.C. § 641 were not proved.*fn1 Those elements are:
1. receipt, possession, or ...