Appeal from the United States District Court for the District of Columbia (No. 01cr00180-02)
Before: Ginsburg, Chief Judge, and Henderson and
Roberts, Circuit Judges.
The opinion of the court was delivered by: Roberts, Circuit Judge
Opinion dissenting in part filed by Circuit Judge HENDERSON.
Elizabeth Mellen defrauded the United States government of electronic goods worth hundreds of thousands of dollars, giving most of them to her relatives. Elizabeth's husband Luther took part in the criminal activity to the extent of joining with Elizabeth to procure a stolen laptop for his son from a previous marriage, and using some of the stolen goods around the home he shared with Elizabeth. He otherwise appears to have stayed out of the broader conspiracy. Luther was convicted of conspiracy and receipt of stolen property. At sentencing, the district court found him responsible for all the goods that flowed through the couple's home -- even the goods he had neither participated in procuring nor used, but which Elizabeth passed along to her relatives. Because the government adduced sufficient evidence at trial to show that Luther agreed to participate in the conspiracy to some extent, we affirm his convictions. We vacate the sentence, however, because the record contains no indication that Luther agreed to participate to the extent of all the goods his wife brought into their home.
This is the fifth appeal stemming from a series of convictions in a conspiracy to defraud the United States Department of Education (DOE). See United States v. Hayes, 369 F.3d 564 (D.C. Cir. 2004); United States v. Elizabeth Mellen, 89 Fed. Appx. 268 (D.C. Cir. 2004) (unpublished opinion); United States v. Morgan, No. 03–3061 (D.C. Cir. appeal filed May 22, 2003); United States v. Burroughs, No. 03–3093 (D.C. Cir. appeal filed Aug. 5, 2003). Elizabeth Mellen, the central character in this story, worked as a telecommunications specialist at DOE and was responsible for installation and maintenance of telephone services throughout the Department. In that capacity, she was authorized to place orders under service contracts DOE had with two companies, Bell Atlantic and Lucent.
At some point, Elizabeth began to use her government position to acquire goods and services for herself and her extended family, paid for by the taxpayers. Elizabeth would ask Robert Sweeney, a Bell Atlantic employee with responsibility for the DOE account, to order electronic goods for her under the Bell Atlantic contract. Sweeney would obtain the goods and deliver them to locations specified by Elizabeth. Many of these goods were initially delivered to Elizabeth's home in Mechanicsville, Maryland, though most of them ultimately wound up elsewhere in the hands of various members of her extended family.
Over the course of the conspiracy, Elizabeth ordered and Robert Sweeney delivered a wide array of items, including more than 100 cordless telephones, numerous two-way "talkabout" radios, multiple state-of-the-art computers, and even a 61-inch television set. In total, Elizabeth obtained more than $360,000 worth of equipment, all paid for by DOE. At her behest, Sweeney and Lucent employee William Cousins also performed various services for Elizabeth and her relatives, ranging from complex cable and wiring installations to lawn-mowing and other yard work.
Throughout this period, appellant Luther Mellen -- also known as "Butch" -- was married to Elizabeth. Luther and Elizabeth shared the home in Mechanicsville. In 1997, Luther's son from a previous marriage, Daniel Mellen, graduated from high school in North Carolina. Luther attended the graduation and gave his son a Dell laptop computer as a graduation present. The computer was later shown to have been paid for by DOE. Luther told his son that it had been picked out by Elizabeth and asked him to write her a thank you note. The computer came with a power cord, and Daniel would testify that the power cord broke "two to five times" and that each time his father obtained a replacement cord for him. Trial Tr., Nov. 4, 2002 (A.M.), at 52–53. The power cords were also shown to have been paid for by DOE.
The government finally caught on to Elizabeth's criminal activities when one of her co-workers contacted DOE's Office of Inspector General in August 1999. In December of that year, special agents executed several search warrants, including one for the Mellens' Mechanicsville home. There, the agents found almost $65,000 in property paid for by DOE. Most of the property was located in the basement -- much of it still in unopened boxes -- but agents also found items in other areas of the house. For instance, agents found a VCR in a closet containing men's clothing, a speaker phone in the master bedroom, and a number of items in a den adjoining the bedroom. See Trial Tr., Oct. 28, 2002 (A.M.), at 101–08; Trial Tr., Oct. 28, 2002 (P.M.), at 39.
A grand jury indicted Elizabeth and members of her extended family for conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and various other crimes. The indictment named Luther as one of the conspirators and also charged him with receipt of stolen government property, in violation of 18 U.S.C. § 641. At trial the government presented detailed evidence on how the stolen goods made their way to the Mellens' home. Robert Sweeney testified that on some occasions he would bring items to Elizabeth's office or would meet her as she was coming out of work. Elizabeth would take the goods home with her, frequently driving home with her husband. Sweeney acknowledged, however, that Elizabeth instructed him to conceal the goods in a bag "so Butch couldn't see them." Trial Tr., Oct. 29, 2002 (A.M.), at 73. On other occasions, Sweeney placed goods in the trunk of a car that belonged to one of Elizabeth's sisters, who also worked at DOE. Again, Sweeney testified that he did this "so that Mr. Mellen wouldn't know [the goods] were there." Id. at 89.
Sweeney also testified that on occasion he would deliver larger items directly to the Mellens' house. Sweeney had a key to the house and would drop off the goods when no-one was home. On one trip, Sweeney and a DOE employee unpacked a large Gateway computer and placed the monitor in a visible location in one of the upstairs rooms. On other trips, Sweeney left packaged computers, phones, and printers inside the Mellens' front door. Sweeney testified that he tried to arrange the goods "so Butch would not be able to see them," but that he was unable to conceal the goods completely. Id. at 58. On yet other trips, Sweeney placed boxes of goods in the basement or beneath a tarpaulin on the Mellens' deck.
A number of Elizabeth's family members implicated in the crimes also testified at trial. These witnesses attested to various aspects of Luther and Elizabeth's marital relationship -- such as that Luther and his wife drove to work together and that she cooked for him -- and one witness noted that Luther was present at a family outing where Elizabeth handed out "talkabout" radios. See Trial Tr., Oct. 31, 2002 (A.M.), at 76–77. Some of the witnesses, however, also testified to their belief that Luther was not involved in the conspiracy. See Trial Tr., Oct. 24, 2002 (A.M.), at 135 (testimony of Ray Morgan, Jr.) ("probably... Butch Mellen didn't have anything to do with this"); Trial Tr., Oct. 23, 2002, at 25 (testimony of special agent George Blissman) (indicating that co-defendant Jeffrey Morgan told agents that Luther "probably had no knowledge of what Eliz was [d]oing").
Luther's son Daniel testified about his father's delivery of the laptop computer and the replacement power cords. Daniel also indicated that, after the investigation of the Mellens had begun, his father advised him not to "be around" the computer. Trial Tr., Nov. 4, 2002 (A.M.), at 65. The DOE employee who had tipped off the Department about Elizabeth's activities also testified that, prior to reporting Elizabeth's activities, she had overheard several conversations between Elizabeth and Luther on the subject of acquiring a two-way radio for a boat they owned.
Finally, the government introduced evidence tending to show Luther's ability to comprehend what his wife was doing. One witness explained that, as part of his job with the Environmental Protection Agency (EPA), Luther was authorized to make government purchases and had received training in the procedures governing such purchases. The government also showed that the Mellens shared a joint checking account and that between 1997 and 1999 Luther had signed approximately 90 percent of the checks issued from the account -- suggesting that Luther was in charge of the couple's finances.
In his defense, Luther introduced his EPA time, attendance, and travel records from 1997 to 1999, but did not testify. The jury found him guilty on both counts. The conspiracy verdict did not specify the amount of loss attributable to Luther, while the receipt of stolen property verdict indicated only that Luther had received government property "having a value of more than $1,000." Verdict at 2.
The district court sentenced Luther pursuant to the Federal Guidelines, under which the amount of loss affects a defendant's sentence. See U.S.S.G. § 2B1.1(b)(1) (2000).*fn1 At the sentencing hearing, the government asked that Luther be held responsible for $364,291.30 -- an amount equal to the value of all the goods stolen by his wife. Luther asked the court to limit his responsibility to the laptop computer and power cords that he had delivered to his son. The court held Luther responsible for $225,582.63 -- the value of all the stolen property that had entered the Mellens' home at some point during the conspiracy. The court reasoned that Luther "knew that the property was there. He knew of his wife's involvement." Sentencing Hr'g Tr. at 18. The court also granted an upward adjustment for "more than minimal planning" pursuant to Section 2B1.1(b)(4)(A) of the Guidelines, and denied Luther's requests for a downward departure and a mitigating role adjustment. The court sentenced him to concurrent 27-month terms of imprisonment and three years of supervised release. Finally, finding that Luther had the ability to pay a fine, the court imposed one of $50,000.
Luther Mellen now appeals his conviction at trial and the district court's rulings on sentencing.
Luther first asks us to reverse his convictions for conspiracy to defraud the United States and for receipt of stolen government property. He argues that the government failed to adduce sufficient evidence to sustain either conviction. Luther also maintains that the prosecutor in summation improperly referred to his ...