This is so hilarious I just had to copy the whole thing and paste it. The following is from a case that was filed this week where four college students tried to steal some books from the special collections department.
The full PDF is here.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0062p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee/Cross-Appellant,
v.
CHARLES THOMAS ALLEN, II, et al.,
Defendants-Appellants/Cross-Appellees.
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 05-00039—Jennifer B. Coffman, Chief District Judge.
Argued: December 5, 2007
Decided and Filed: February 5, 2008
Before: RYAN, BATCHELDER, and GRIFFIN, Circuit Judges.
_________________
I.
The defendants were college buddies (19-20 years old) who hatched a plan to steal rare books from the special collections library at Transylvania University (Lexington, KY) and sell them at auction in New York City. Their earliest musings began in January 2004, but the actual robbery did not occur until December 17, 2004. They were apprehended February 11, 2005, pleaded guilty on April 21, 2005, were sentenced to prison on December 15, 2005, and appealed December 23,
2005.
In July 2004, after months of idle discussion, these four men decided in earnest to carry out the robbery, which led to months of research (about rare books, auction houses, Swiss Bank accounts, etc.), brainstorming, and planning. As planning progressed, each of the four took on separate responsibilities: Warren Lipka created aliases (e.g., “Walter Beckman”) with fictional backgrounds, set up email accounts for those aliases, and contacted the library and various auction
houses. Spencer Reinhard created disguises, drew floor plans and maps, and created false documents. Eric Borsuk and Chaz Allen staked out the library to determine staffing and security, planned the getaway (e.g., got a car, planned the route, etc.), and generally financed the operation (e.g., made hotel accommodations in New York and purchased snacks for the trip). They determined that the best time for the robbery was December, just before the University’s fall term ended. They also decided to use Christie’s auction house (New York, NY) to sell the stolen books. The plan involved only certain, rare and very valuable books.
On December 3, 2004, while posing as one “Walter Beckman,” they sent an email to Christie’s “private sales department,” claiming to be “in possession of rare books . . . worth millions,” and seeking a meeting in late December 2004. On December 7, 2004, “Beckman” sent another email, apparently in response to a Christie’s reply, this time stating: “I have a first addition [sic] Origin of Species by Charles Darwin, manuscripts that date back to the 1500s, and a collection of John James Audubon’s Qquadrupeds [sic] and Birds of America. I know that these books are worth a lot . . . .” The email concluded with a renewed request for a December meeting. Meanwhile, Lipka, again representing himself as “Walter Beckman,” an out-of-town businessman, telephoned Mrs. B.J. Gooch, the Special Collections Librarian at the Transylvania University Library, to request an appointment to view several of the library’s rare books, including: Origin of Species, Illuminated Manuscripts, and the John James Audubon collection. Mrs. Gooch agreed and scheduled the appointment for 2:00 p.m. on Thursday, December 16, 2004. On December 6, 2004, “Beckman” (Lipka and Reinhard) sent an email (from a University of Kentucky computer lab) to Mrs. Gooch, confirming the appointment and again specifying an interest in “the famous Audubon books, the first addition [sic] Darwin, and any of the Illuminated Manuscripts.”
On Monday or Tuesday, December 13 or 14, “Beckman” called Mrs. Gooch and rescheduled for 3:30 p.m. Thus, on Thursday at 3:30 p.m., the robbery was finally at hand and after months of planning, this was the plan: all four men would enter the library, take the books by force, and run for it. They arrived at the library dressed as “old men” — makeup, wigs, hats, and costumes, such as “one would typically see worn in a play or some other type of theatrical performance” — but
aborted the plan at the last minute. The exact reason for aborting is unclear; they may have seen a flaw in the plan or simply panicked, though it was suggested that a student, unaware of the impending robbery, recognized one of them and asked what they were doing in those ridiculous costumes. The costumes were sufficiently ridiculous that two library employees, including Susan Brown, the Director of the Library, noticed them, but merely assumed some sort of college prank or goof.
Nos. 06-5077/5079/5103/
5104/5153/5154/5155/5157
United States v. Allen, et al. Page 3
At approximately 4:00 p.m. that afternoon — after aborting and fleeing — “Beckman” called Mrs. Gooch and apologized for missing the appointment, claiming to have been out of town for work. He asked to reschedule for the next morning, Friday, December 17, 2004, at 11:00 a.m. Mrs. Gooch reluctantly obliged, and agreed that he could bring a friend to view the books as well. When Lipka, posing as “Walter Beckman,” arrived for the appointment at slightly after 11:00 a.m. on Friday, Mrs. Gooch was surprised by two things: (1) he was much younger than she had expected, and (2) he was wearing an unseasonably heavy coat, gloves, and hat. After establishing that the elevator was working and there were no cameras in the library, “Beckman” asked if he could have his friend join them. When Mrs. Gooch agreed, he made a call on his cell phone and “within one minute,” a second man arrived (Eric Borsuk) — wearing a heavy coat, a bandage on his face, and eyeglasses — who introduced himself as “John.” Both men signed in with illegible signatures. Once inside the Special Collections Library, the two men wrestled Mrs. Gooch to the ground, and began zapping her in the arm with a pen-type stun gun, which caused a tingling sensation and left a small bruise, but did not cause any significant pain or lasting harm. Mrs. Gooch screamed, though she knew that no one could hear her from that location in the library, but she did not panic.
She testified that, while being subdued, she felt the tingling, heard an electric humming and popping noise, and feared that she was being zapped with a stun gun. She was particularly unnerved, however, when Lipka — whom she did not know — called her by her first name, warning her:
“B.J., if you just keep on struggling, it will only hurt more. Do you want it to hurt more?” Greatly frightened by this threat, her awareness of the stun gun, and the hair-raising intimacy of the robber having used her first name so casually, Mrs. Gooch submitted and the two men bound her hands and feet with plastic zip ties. They also removed her glasses and covered her eyes with a stocking cap.
Lipka and Borsuk then began to collect the seven (7) “objects of cultural heritage” — some comprising multiple volumes or pieces — that Mrs. Gooch had set out in anticipation of the appointment, and prepared to carry them from the library by way of an elevator to a first-floor emergency exit. These seven “objects,” all of which were eventually recovered undamaged, were later appraised by Sotheby’s (New York, NY), and have been described as follows:
1. Hortus Sanitatis, Ortus Sanitatis translate de Laten en Francois. Paris, circa 1500. Two volumes, with four full-page woodcuts and approximately 450 woodcut illustrations in the text. Estimated value: $450,000.
2. Pencil drawings, believed to have been commissioned for The Birds of America, Second Octavo Edition. New York and Philadelphia, circa 1855. Twenty of a 21-piece collection (one drawing was on display, and hence, not with the collection at the time of the robbery). Estimated value: $50,000.
3. A Synopsis of the Birds of North America, by John James Audubon. New York, 1839. Eight volumes, mostly unopened. Autographed by John James Audubon himself, as a gift to a friend. Estimated value: $10,000.
4. On the Origin of Species by Means of Natural Selection, by Charles Darwin. London, 1859. First edition; rebound. Estimated value: $25,000.
5. Illuminated Manuscript, Devotional Calendar. England, circa 1425. Sixty leaves, one full-page miniature, and elaborate initials and illuminations throughout. Estimated value: $200,000.
6. The Birds of North America from Original Drawings, by John James Audubon. London, 1827-1838. Four (4) volumes, elephant folio, 435 handcolored engraved plates. Estimated value: $4,800,000.
7. The Viviparous Quadrupeds of North America, by John James Audubon and John Bachman. New York, 1845-1848. Three (3) volumes, with 150 handcolored lithograph plates. Estimated value: $225,000.
There is some dispute as to whether the robbers intended to take only certain objects or “as much as they could carry,” but, as evidenced by their planning, they had clearly foreseen that the objects they coveted would be very large and heavy. Consequently, they brought with them a (pink) bed sheet, which they laid out on the floor, for carrying the objects. Apparently, even with their planning, however, they had underestimated the sizes and weights, and they were forced to abandon two of the Birds of North America volumes, which were left in the Special Collections Library, atop the pink bed sheet. They also abandoned other volumes, later, while fleeing from the librarians.
To return to the story, Lipka and Borsuk had, in a matter of minutes, collected these seven objects — except for the two Birds of North America volumes that they had abandoned on the pink bed sheet, and one of the three Quadrupeds of North America volumes, which had become stuck in its drawer — and were preparing to abscond with them. According to the (revised) plan, they would take the “employee-only” elevator down to the first floor and escape through an emergency exit,
where Allen was waiting in a van (which they dubbed the “GTAV,” i.e., the “get to and away vehicle”) to drive them home to stash the “loot.” Reinhard was standing watch across the street.
Apparently Lipka and Borsuk had some difficulty operating the elevator, however. Head librarian Susan Brown was in the library’s basement at the time and, prompted by the unexpected “ding” of the elevator’s opening doors, she turned her attention to see who would be using the elevator. She was startled when the doors opened to reveal not employees, but Lipka and Borsuk, in their heavy coats and gloves, holding some of the library’s most prized and valuable possessions.
Realizing that something was amiss, Ms. Brown started for the elevator, but Lipka and Borsuk quickly got the doors closed and the elevator moving again. Alarmed, Ms. Brown ran up the stairs to Special Collections in search of Mrs. Gooch. Meanwhile, Mrs. Gooch had realized that, due to the department’s security measures, Lipka and Borsuk could not re-enter the Special Collections Department from the elevator, and she had begun to free herself to call for help. She yelled to Susan
Brown that they were being robbed, and Ms. Brown wheeled around to pursue the robbers. She caught up to them in a stairwell where they were attempting to open the emergency exit and, surprised by her arrival and aggressive confrontation, they dropped several objects — specifically, the two remaining volumes of the Birds of North America four-volume set (they had left two volumes atop the pink bed sheet in the Special Collections Department) and the two
volumes of the Quadrupeds three-volume set (one of the three volumes had been left behind, stuck in its drawer in the Special Collections Department). Lipka and Borsuk fled through the emergency door carrying five objects (Hortus Sanitatis, the 20 pencil drawings, Synopsis of the Birds of North America, Origin of Species, and Illuminated Manuscript), with Ms. Brown and other librarians in hot pursuit. Lipka and Borsuk scrambled into the waiting van and Allen sped away, though not before Ms. Brown had scratched the van with a key in an attempt to mark it for later identification.
Once the robbers had escaped, the police were called, but before the police could document the crime scene, some librarians collected the discarded objects and returned them to their proper places. Allen, who had borrowed the van from an uncle or a cousin, let Lipka and Borsuk out several blocks away, went to drop off the van, and returned to pick up Lipka and Borsuk in a different car. The three of them went home and hid the stolen objects in the basement of their residence, in a “semi-hidden room” — the entrance to the room was disguised to conceal the fact that they had marijuana growing in there. They then gathered up evidence related to the robbery, including planning documents, the disguises, and the stun pen, and disposed of it all in a nearby dumpster. Reinhard, who was enrolled at Transylvania University, stayed on campus to take an exam.
Having told their parents that they were going on a ski trip over Christmas break, the four men left Lexington on Sunday, December 19, 2004. But they actually drove to New York City to keep their appointment at Christie’s and have the objects appraised. On December 21, 2004, Lipka and Reinhard, claiming to be “Mr. Stephens” and “Mr. Williams” — representatives of “Walter Beckman,” who they described as “a very private individual who was interested in selling some rare books through Christie’s private sales service” — met with Christie’s representative Melanie Halloran. After reviewing the objects for approximately 15 minutes, Ms. Halloran agreed that Christie’s could sell the objects for “Mr. Beckman.” Reinhard gave Ms. Halloran his cell phone number so that she could contact him and the four men returned home with the objects.
Meanwhile, police were investigating the emails that “Walter Beckman” had sent to Mrs. Gooch from the account “Beckmanwalter@yahoo.com.” Yahoo account records immediately revealed the series of emails between “Beckman” and Christie’s, and through some further investigation, the police determined that the emails had been sent from a computer lab at the University of Kentucky. By January 2005, the police, in concert with the FBI, had contacted Christie’s and spoken with Ms. Holloran, who gave them the cell phone number that Reinhard had given her at the close of the December 21, 2004, meeting. By early February 2005, the police had linked that number to an account held by Reinhard’s father and had determined that Reinhard was the primary user of that particular number. Following these leads, the police put together photo lineups and positively identified Lipka and Reinhard. This led to search and arrest warrants.
Police executed the warrants on February 11, 2005, apprehended the four men, and recovered all five objects (Hortus Sanitatis, the 20 pencil drawings, Synopsis of the Birds of North America, Origin of Species, and Illuminated Manuscript) undamaged. Police also recovered three stun guns (though not the “stun pen” allegedly used in the robbery), notes pertaining to planning of the robbery, and clothes worn by the men to the robbery and the meeting at Christie’s. A federal grand jury indicted each of the men on six counts: (1) conspiracy to commit robbery, in violation of 18 U.S.C. § 1951(a), with a statutory maximum term of 20 years in prison; (2) aiding and abetting robbery,§ 1951(a), 20 years; (3) conspiracy to commit offenses against the United States, § 371, five years; (4) aiding and abetting the theft of objects of cultural heritage, § 668(b)(1) & (2), 10 years; (5) aiding and abetting transportation of stolen goods, § 2314, 10 years; and (6) aiding and abetting possession and concealment of stolen goods, § 2315, 10 years. They each pleaded guilty to all counts on April 21, 2005, and the court released them on their own recognizance pending sentencing.
In March 2005, Allen and his attorney had contacted the government to offer information that they hoped would lead to a reduction in Allen’s prison sentence, pursuant to U.S.S.G. § 5K1.1, on the premise that the information would provide “substantial assistance” in the investigation and prosecution of other, unrelated offenses. On March 8 and 15, 2005, Allen and his attorney met with the Assistant United States Attorney (AUSA) handling the case. Prior to the exchange of any
information, the parties signed a “cooperation agreement,” which characterized the meetings as “off the record” and specified that Allen would receive direct-use immunity for any information provided, but acknowledged that the government could pursue any leads obtained and could cross examine Allen with the information if he testified in a manner contrary to the information. State prosecutors were also included in the second meeting, to share the information and ensure direct-use immunity from state prosecution as well. Once Allen and his attorney were satisfied with the
immunity agreement, Allen offered information about certain illegal activities — burglaries, gambling, blackmail, and drug dealing — in which he and others, including certain co-defendants, had been involved or about which he had knowledge. Detectives verified some of the information, but ultimately, neither the state prosecutors nor the AUSA was interested. Finding that the information was not of any particular use to the government, the AUSA declined to file a § 5K1.1
motion. In October 2005, at a hearing concerning pre-sentencing motions, the district court judge revealed that the AUSA had disclosed to the probation office much of the information given by Allen during the “off the record” meetings in March. And a probation officer had, in turn, relayed this “off the record” information to the district court judge. The AUSA candidly admitted that he had disclosed the information to the probation office for the express purpose of having it included
in the Presentence Investigation Report (PSR). Allen moved the court to find the AUSA in breach of the cooperation agreement and sought sanctions for that breach, on the theory that he feared retaliation for his disclosures, that the breach had tainted the PSR, and that the breach had undermined the effectiveness of his attorney, who had recommended the meeting and disclosures.
The district court stated that she thought the AUSA had “dealt unfairly” with Allen by leading him to believe that his information was of value (and would thus likely lead to a § 5K1.1 motion), but the AUSA had not breached the agreement, and consequently, the court denied the motion. The district court did, however, order that the information be omitted from the PSR and stated explicitly and emphatically that she would not rely on that information in calculating the guidelines or
imposing sentence.
With regard to sentencing, Allen argued that there was no actual loss, based on the theory that all of the objects were recovered undamaged, and argued against the government’s use of the estimated values of the objects, see U.S.S.G. § 2B3.1(b)(7). Allen also argued for reduction of his sentence on the theory that he was only a “minor participant.” See U.S.S.G. § 3B1.2(b).
All four defendants argued against an enhancement for use of a dangerous weapon on the theory that the “stun pen” was not actually dangerous. See U.S.S.G. § 2B3.1(b)(2)(D). The government opposed these arguments, and a debate ensued about which objects should be used for the valuation: just the five actually removed from the library proper (i.e., Hortus Sanitatis, the 20 pencil drawings, Synopsis of the Birds of North America, Origin of Species, and Illuminated Manuscript); or the objects removed from the Special Collections Department (i.e., the above five, plus the two volumes of Birds of North America and two volumes of Quadrupeds that were dropped in the stairwell, although it was unknown exactly which volumes these were, because librarians had returned them to their proper places before the police could document the crime scene); or all seven objects targeted by Lipka and Borsuk. Each of these options resulted in a different valuation, and
because it was unknown which volumes were actually removed from the Special Collections Department and individual volumes have different values, a debate ensued over the appropriate estimated value of this middle option.
In summary, the three options for deciding which objects to include in the tabulation, for valuing the objects, and for calculating the advisory sentencing guidelines, look like this:
1. All seven of the targeted objects: $5,760,000 (18-level enhancement).
2. Just those removed from the Special Collections Department (four unspecified volumes from the Birds of North America and Quadrupeds collections):
Government’s value estimate: $3,285,000 (18-level enhancement),
Defendants’ value estimate: $1,985,000 (16-level enhancement).
3. Just those removed from the library: $ 735,000 (14-level enhancement).
See U.S.S.G. § 2B1.5(b)(1)(B) (referring to § 2B1.1(b)(1)). In calculating an advisory guideline range for inclusion in the PSR, the probation department had used the defendants’ estimate for option two, which resulted in a 16-level enhancement and a preliminary range of 108 to 135 months in prison. The court, however, in conducting its own calculations, determined that it would value the loss based on only the five objects actually removed from the library (i.e., option three), which led to a 14-level enhancement, see U.S.S.G. § 2B1.5(b)(1)(B) (referencing § 2B1.1(b)(1)(H), a 14-
level enhancement for a loss of $400,000 to $1,000,000), and a guideline range of 87 to 108 months.
In calculating this range, the court denied Allen’s argument that he was merely a minor participant and the defendants’ argument that the stun pen was not a dangerous instrument. The court imposed the same sentence on all four men: 87 months in prison (the low end of the range). Allen appealed, arguing that the court erred by refusing to sanction the government for breaching the cooperation agreement (i.e., by refusing to award a downward departure as a remedy for the
breach), by declining to characterize Allen as a “minor participant,” and by finding the stun pen a dangerous instrument. The other three defendants also appealed, arguing only that the court had erred by declaring the stun pen to be a dangerous weapon. The government cross appealed, arguing that the court erred by excluding the objects dropped in the stairwell from its valuation of loss, and correspondingly, from its computation of the sentencing range. We find no merit to any of defendants’ arguments, but because we find that the government’s argument does have merit, we will remand for resentencing in conformity with this opinion.
