Lead Opinion
Appellants Derek Benedict and Lyle Carpenter were convicted by a jury of conspiracy and burglarizing various drug stores in Minnesota and Iowa where they stole pharmaceutical products and cash from safes, registers, and ATMs. They now appeal their convictions and their sentences imposed by the district court.
I.
A.
From 2009 to 2012, Derek Benedict and Lyle Carpenter were involved in a series of commercial burglaries, conspiring at various times with six other people: Jason Mussehl, .Julia Julien, Tim Kielb, Cher Mayotte, Jennifer Stanley, and Jonathan Quasi. Jason Mussehl was involved in burglaries for over 25 years, which were his primary source of income. He knew Benedict from elementary school and met Carpenter in 2009. Mussehl’s half brother was Jonathan Quast, and Mussehl dated both Julia Julien and Jennifer Stanley. Additional members of the conspiracy were Tim Kielb and his girlfriend, Cher Mayotte.
The group’s burglaries focused on the theft of money and pharmaceuticals from businesses they investigated as potential targets, where they would first look for motion sensors and locate any alarm systems. They would then return at night to
On October 4, 2009, Carpenter, Mus-sehl, Tim Kielb and Jennifer Stanley burglarized a Walgreens drug store in Minneapolis and transported its ATM to the house of a Mend. After breaking into the machine and obtaining its contents, the burglars disposed of the machine in the Mississippi River. Later that month, Benedict, Carpenter, Mussehl, and Stanley burglarized a Walgreens store in Rob-binsdale, Minnesota. Then the same four burglars broke into a Golden Valley Wal-greens in November and a South Minneapolis Walgreens in December.
Carpenter went to prison after he was convicted of a different crime, but Mussehl continued to burglarize Walgreens stores. Benedict wanted to participate in these burglaries, but Mussehl turned him down. When Carpenter was released from prison in 2012, he again joined in burglaries with Benedict and Mussehl. On July 15, 2012, Benedict and Carpenter, together with Mussehl, Kielb, Cher Mayotte, and Julia Julien, burglarized a pharmacy in Bloom-ington, Minnesota (Bloomington Drug). The burglars took both money and pharmaceuticals. Carpenter, Mussehl, Kielb, and Mayotte next committed a burglary at a gas station in Prior Lake, Minnesota on August 19, 2012. They removed an ATM belonging to South Metro Federal Credit Union and transported it in Mussehl’s truck to a friend’s garage, where they broke into it. Four days later, Carpenter, Mussehl, Kielb and Quasi burglarized a Walgreens store in Circle Pines, Minnesota.
On September 9, 2012, Benedict, Carpenter, Mussehl and Julien burglarized a Walgreens store in Des Moines, Iowa. Benedict again kept watch outside the store, and Carpenter and Mussehl entered the building. Later that day, Benedict bought an Infíniti using his share of the proceeds from the burglary.
By early 2013, coconspirator Tim Kielb had been arrested and began to cooperate with law enforcement agents. He used a recording device to capture several discussions with Benedict and Carpenter about burglaries. In February of that year, police found a glove at the site of an Aldi Foods store in Blaine, Minnesota, which had been burglarized by entering through the roof. A DNA swab of the Aldi glove linked to a predominate profile that matched to Lyle Carpenter. On June, 9, 2013, Carpenter was arrested while burglarizing a Super America gas station. He was apprehended along with a crowbar, sledgehammer, mask and two way radio.
B.
Benedict and Carpenter were jointly charged with conspiracy to commit bank burglary, bank larceny, and interstate transportation of stolen property, conspir
Benedict moved to sever, but severance was denied. He also sought to have an expert witness testify to the subject of the untrustworthiness of coconspirator testimony, but his request was untimely and rejected by the district court. Both men were convicted of all charged crimes. At sentencing the district court concluded that both Benedict and Carpenter were career offenders. They were sentenced accordingly: Carpenter to 210 months with $272,561 ordered in restitution, and Benedict to 150 months with $199,007 ordered in restitution. The two defendants now appeal their convictions and sentences.
II.
Benedict makes three claims relevant only to his case: that he was improperly denied a severance, that he should have been permitted to present expert testimony, and that the evidence was insufficient to convict him of the charged offenses.
Benedict moved for a severance. Federal law favors joint trial for individuals charged in the same indictment, and there is a “strong” presumption against severing properly joined cases. United States v. Delpit,
Benedict and Carpenter were indicted together for the their participation in same conspiracy, and their cases were properly joined. See Delpit,
Benedict next claims that the district court erred by rejecting his request to permit expert testimony from Dr. Jeffrey Neuschatz. While Benedict contends this amounted to the denial of his right to defend himself and therefore is subject to de novo review, a court’s exclusion of expert testimony is appropriately reviewed for abuse of discretion. United States v. Martin,
The district court also concluded that the subject of the proffered expert testimony was improper. Dr. Neuschatz, the proffered expert, had authored an article entitled The Effects of Accomplice Witnesses and Jailhouse Informants on Jury Decision Making, 32 Law & Hum. Behav. 137 (2008). His article warned that mock jurors provide “undue weight to confession evidence when rendering guilt decisions.” Id. at 138. In his affidavit filed in the district court, Dr. Neuschatz claimed that “[wjithout expert assistance, jurors’ abilities to assess the veracity of a witness’s testimony are extremely limited.” Benedict argues on appeal that the testimony would have been proper and necessary to demonstrate the unconscious impact of live testimony and “the substantial bias of testimonial evidence from any source on a listener.” It is however “plain error to admit testimony that is a thinly veiled comment on a witness’ credibility.” Nichols v. Am. Nat’l Ins. Co.,
Benedict also challenges the sufficiency of the evidence. He argues that there was not corroborated evidence to show he acted with a. purpose in common with the other members of the conspiracy. We review such a challenge de novo, examining the evidence in the light most favorable to the government, resolving evidentiary conflicts in the government’s favor, and granting all reasonable inferences which support the verdict. United States v. Casteel, 717 F.3d 635, 644 (8th Cir.2013). Benedict’s coconspirators testified that he had participated in a conspiracy to commit burglary and the other charged offenses. The testimony of cocon-spirators alone is sufficient to support a conviction for conspiracy unless it is “incredible or insubstantial on its face.” United States v. Thompson,
Benedict also relies upon Mussehl’s testimony that for a period of time Benedict unsuccessfully sought to participate in burglaries with Mussehl. Benedict claims this shows he was not part of a single conspiracy. Mussel’s full testimony, however, shows that Benedict engaged in numerous burglaries with the group of coconspira-tors. Benedict’s claim that the evidence does not show his participation in a conspiracy is flatly contradicted by the trial record. We conclude that the evidence was sufficient to sustain his convictions.
III.
Carpenter makes one claim relevant only to his case, arguing that restitution was wrongly imposed under the Mandatory Victim Restitution Act (MVRA). We review such questions of law de novo. United States v. Senty-Haugen,
Although “person” is not defined in the MVRA, the Dictionary Act defines “person” to include corporations “unless the context indicates otherwise.” 1 U.S.C. § 1. Carpenter does not dispute that the corporations here were harmed as a result of his conduct, but claims that the context here shows corporations do not fit within the statutory definition of person since “it would have been easy” to provide in the text of the MVRA that “ ‘persons’ includes corporations.” This argument overlooks the statutory scheme and the Dictionary Act itself. See 1 U.S.C. § 1.
The government adds that the context within the MVRA itself indicates that corporations are eligible to be considered victims within the meaning of the act. Section 3663A(c)(l)(A)(ii) extends the MVRA to crimes such as bank fraud under 18 U.S.C. § 1344, which covers defrauding “a financial institution.” Id. § 1344(1). Such an inclusion would make no sense if the MVRA were intended to exclude corporations from its definition of victim. Carpenter’s limited definition is inconsistent with our prior MVRA decisions which have not applied the statute only to natural persons. See Senty-Haugen,
Carpenter claims that the district court erred in ordering $53,729 in restitution to the targeted stores for sums of money taken from safes and cash registers during the burglaries, as opposed to money taken from ATMs. He claims these sums represent money taken during the commission of state law crimes for which restitution is not appropriate. We look to the “scope of the indictment to determine
Even if the conspiracy charged in the indictment had not included the stolen property charge, the restitution order for payments to the burglarized stores was proper under the plain language of the MVRA. That act requires that restitution be made to every victim. 18 U.S.C. § 3663A(a)(2). A victim is defined as:
a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.
Id. The stores were clearly victims, because they were harmed as “a result of the commission of an offense for which restitution may be ordered,” id., namely, conspiracy to commit bank burglary, bank larceny, and interstate transportation of stolen property, as well as conspiracy to steal controlled substances. The taking of money from the safes was also specific “criminal conduct” which Carpenter and his co-conspirators undertook “in the course of the scheme, conspiracy, or pattern.” Id. We conclude that the district court did not err in its imposition of restitution for the victim stores.
IV.
Both defendants challenge an evidentiary stipulation which established jurisdictional elements of the charged offenses, including the stipulation that certain Walgreens stores which had been burglarized were used in part as a bank, that certain ATMs were owned by a bank insured by the FDIC or by a credit union insured by the National Credit Union Administration, that Bloomington Drug was registered with the FDA, and that the stolen drugs contained FDA controlled substances. Benedict and Carpenter now claim they did not knowingly and voluntarily agree to the admission of their stipulation. Our review is for plain error because the defendants did not object to the stipulation before the district court. Martin,
We recently rejected a very similar argument in Martin. There, as here, the defendants did not object to an evidentiary stipulation in district court, yet claimed on appeal that it had not been knowingly made.
Appellants now emphasize what they see as the sole difference between Martin and their case: in Martin the stipulation was signed by the defendant, while here the stipulation was signed only by defense counsel. This argument fails. The stipulation was read verbatim in open court in the presence of appellants and defense counsel represented that they did not object to its admission. Appellants are bound by their stipulation, and it was not plain error for the district court to accept it. See 777 F.3d at 993.
At sentencing both Benedict and Carpenter received enhancements under the sentencing guidelines for being career offenders as defined in U.S.S.G. § 4B1.1. They each had prior convictions for commercial burglaries, offenses which were classified as crimes of violence under U.S.S.G. § 4B1.2. Section 4B1.2(a)(2) includes in its definition of “crime of violence” any offense punishable by imprisonment for more than one year that “is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Our court has concluded in the past that a commercial burglary conviction, even if not classified as a “burglary of a dwelling,” is a crime of violence because “any generic burglary ... is a felony that ‘otherwise involves conduct that presents a serious potential risk of physical injury to another’ within the meaning of § 4B1.2(a)(2).” United States v. Bell,
Subsequently, in United States v. Stymiest,
In the case now before our court, appellants seek resentencing under the Supreme Court’s recent decision in Johnson v. U.S., 576 U.S. -, -,
Assuming without deciding that the holding of the Supreme Court’s Johnson decision applies to the residual clause in the guidelines, we affirm appellant’s classifications as career offenders under Stymi-
V.
The district court did not err by holding a joint trial for these coconspirators, accepting counsel’s evidentiary stipulation, or excluding expert witness testimony. Nor did the trial court err in its imposition of restitution. The evidence was also more than sufficient to convict Benedict. Because our decision in Stymiest qualifies the appellants’ prior convictions as crimes of violence under the guidelines, we affirm their career offender status and sentences. See Stymiest,
Notes
. The Honorable Susan Richard Nelson, United States District Judge for the District of Minnesota.
Concurrence Opinion
concurring.
I concur in the opinion of the court, but with reservations about the alternative holding in United States v. Stymiest,