Case Information
*2 Before MURPHY, COLLOTON, and BENTON, Circuit Judges.
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MURPHY, Circuit Judge.
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. [1] We affirm.
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 Quast. 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 break into a *3 targeted building, often cutting a hole in the roof near an alarm which they proceeded to disarm. At other times they entered a building by knocking down an exterior wall or by prying open the front door and disabling any alarm before a signal could be sent. Once an alarm was disabled, the burglars would leave the location for a half hour or more to ensure that they had not been detected. One of the group was tasked with waiting outside in the vicinity of a targeted business to watch for any law enforcement personnel. After being satisfied that they had not been detected, the burglars would reenter the store, drill open safes and ATMs, and carry away their contents. The burglars working inside a store would communicate by two way radio with their confederate remaining outside. Carpenter specialized in drilling into safes and ATM machines, a task at which he excelled. Benedict served as driver and kept watch outside for any approaching police.
On October 4, 2009, Carpenter, Mussehl, Tim Kielb and Jennifer Stanley burglarized a Walgreens drug store in Minneapolis and transported its ATM to the house of a friend. 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 Robbinsdale, Minnesota. Then the same four burglars broke into a Golden Valley Walgreens 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 Bloomington, 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, *4 Carpenter, Mussehl, Kielb and Quast 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 Infiniti 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, conspiracy to steal controlled substances, bank larceny, burglary involving controlled substances, and interstate transportation of stolen property. The ten count indictment also charged Carpenter on additional substantive charges of bank burglary, bank larceny, credit union burglary, and burglary involving controlled substances. Benedict and Carpenter were the only two defendants to proceed to trial; each of the other coconspirators pled guilty. In addition to testimony from numerous law enforcement officials and others, the government called coconspirators Mussehl, Julien, Kielb, Stanley, and Mayotte to testify and describe their own roles in the conspiracy, as well those of Benedict and Carpenter. Coconspirator Jonathan Quast was additionally called to testify about the burglary he committed with Carpenter in Circle Pines, Minnesota.
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 their participation in the 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
*7
weight to confession evidence when rendering guilt decisions." Id. at 138. In his
affidavit filed in the district court, Dr. Neuschatz claimed that "[w]ithout 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 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 *8 that Benedict engaged in numerous burglaries with the group of coconspirators. 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)(1)(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
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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, 449 F.3d at 865 (concluding that "the IRS is an eligible victim under the
MVRA"); see also United States v. Engelmann,
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 whether an award" is
eligible to be included in a restitution order. United States v. Ramirez,
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 *10 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 coconspirators 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.
A.
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.
B.
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 (2014). [2] A defendant is a career offender under U.S.S.G. § 4B1.1(a) (2014) if:
(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
*12
A "crime of violence" includes 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." U.S.S.G. § 4B1.2(a)(2) (2014). The "or otherwise" clause
is referred to as the residual clause. See United States v. Jordan,
Before turning to defendants' arguments, we note that in 2015 the Supreme
Court held that the residual clause in the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. Johnson v. United States,
Carpenter argues that he is not a career offender because none of his "instant
offense[s] of conviction" qualify as crimes of violence. The relevant elements of
Carpenter's conviction for burglary involving controlled substances are "without
authority, enter[ing] or attempt[ing] to enter, or remain[ing] in, the business premises
or property of a person . . . with the intent to steal." 18 U.S.C. § 2118(b). These
elements closely track those of generic burglary, which are "unlawful or unprivileged
entry into, or remaining in, a building or structure, with intent to commit a crime."
Taylor v. United States,
To determine whether an offense qualifies as a crime of violence under the
residual clause, we use the "categorical approach," which requires us to "consider
whether the elements of the offense are of the type that would justify its inclusion
within the residual provision, without inquiring into the specific conduct of this
particular offender." James v. United States ,
Having determined that the risk of burglary involving controlled substances is
"roughly similar, in kind as well as degree of risk posed," to generic burglary, we next
analyze whether it "present[s] a serious potential risk of physical injury to another."
See Watson,
Benedict argues that he is not a career offender because his two prior
convictions for third degree burglary, Minn. Stat. § 609.582, subd. 3 (1995), and for
aiding and abetting third degree burglary, id. (2004), are not crimes of violence. A
person commits third degree burglary in Minnesota if he "enters a building without
consent and with intent to steal or commit any felony or gross misdemeanor while in
the building, or enters a building without consent and steals or commits a felony or
gross misdemeanor while in the building." Minn. Stat. § 609.582, subd. 3 (1995);
accord id. (2004). We have concluded that Minnesota's third degree burglary statute
is not a violent felony under the enumerated clause of the ACCA because its definition
is broader than generic burglary. United States v. McArthur,
V.
The district court did not err by holding a joint trial for these coconspirators, accepting an evidentiary stipulation, or excluding expert witness testimony. Nor did the trial court err by requiring restitution. The evidence was also more than sufficient to convict Benedict. Because appellants' burglary convictions qualify as crimes of violence under the residual clause of the guidelines, we affirm their career offender status and sentences. The judgments of the district court are affirmed.
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Notes
[1] The Honorable Susan Richard Nelson, United States District Judge for the District of Minnesota.
[2] Since Benedict was sentenced in October 2014 and Carpenter was sentenced
in December 2014, we look to the 2014 version of the guidelines. See United States
v. Lawin,
[3] Although James analyzes the ACCA, not the guidelines, "[t]he definition of
'crime of violence' in U.S.S.G. § 4B1.2(a) is nearly identical to the definition of
'violent felony' in 18 U.S.C. § 924(e)(2)(B)," and we see no reason to treat them
differently here. United States v. Craig ,