4444444444444444444444444444444444444444444444447 United States of America v. Dallas Newsome

Filed: March 19, 2003
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 01-4542(L)
(CR-00-11)
United States of America,
Plaintiff - Appellee,
versus
Dallas Newsome, et al.,
Defendants - Appellants.
O R D E R
The court amends its opinion filed February 27, 2003, as
follows:
On page 21, first paragraph, lines 1-2 -- the phrase “to
discharge his restitutionary obligation” is corrected to read “to
pay restitution.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4542
DALLAS NEWSOME,
Defendant-Appellant.
4444444444444444444444444444444444444444444444448
4444444444444444444444444444444444444444444444447
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4543
MICHAEL NEWSOME,
Defendant-Appellant.
4444444444444444444444444444444444444444444444448
4444444444444444444444444444444444444444444444447
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4819
DENZIL GRANT,
Defendant-Appellant.
4444444444444444444444444444444444444444444444448
4444444444444444444444444444444444444444444444447
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4841
ERNEST RAY BRANT,
Defendant-Appellant.
4444444444444444444444444444444444444444444444448

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4444444444444444444444444444444444444444444444447
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4842
MICHAEL NEWSOME,
Defendant-Appellant.
4444444444444444444444444444444444444444444444448
Appeals from the United States District Court
for the Northern District of West Virginia, at Elkins.
Irene M. Keeley, Chief District Judge.
(CR-00-11)
Argued: October 30, 2002
Decided: February 27, 2003
Before WILKINS, Chief Judge, and NIEMEYER and
KING, Circuit Judges.
____________________________________________________________
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Chief Judge Wilkins and Judge King joined.
____________________________________________________________
COUNSEL
ARGUED: Robert James O'Brien, Buckhannon, West Virginia; Scott
Allen Curnette, CURNETTE LAW OFFICE, Elkins, West Virginia,
for Appellants. Sherry L. Muncy, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee. ON BRIEF: Dwight R.
Hall, Beverly, West Virginia, for Appellant Michael Newsome; Jes-
sica M. Baker, JORY & SMITH, Elkins, West Virginia, for Appellant
Brant. Thomas E. Johnston, United States Attorney, Clarksburg, West
Virginia, for Appellee.
____________________________________________________________
2

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OPINION
NIEMEYER, Circuit Judge:
Ernest Ray Brant, Denzil Grant, Dallas Newsome, and Michael
Newsome were convicted of participating in a conspiracy to cut down
and steal black cherry trees from the Monongahela National Forest in
West Virginia, causing the United States a total loss of $248,459.53.
Brant, Grant, and Dallas Newsome were also convicted of various
substantive theft offenses. Brant and Grant were sentenced to 46
months' imprisonment; Dallas Newsome to 15 months' imprison-
ment; and Michael Newsome to 4 months' confinement in a halfway
house. All four defendants were ordered jointly and severally to pay
restitution in the amount of $248,459.53.
On appeal, the defendants raise various issues challenging their
convictions as well as the amount of loss used in sentencing and for
restitution. For the reasons that follow, we affirm.
I
Beginning in December 1998 and continuing until July 2000, offi-
cials of the United States Department of Agriculture's Forest Service
discovered that black cherry trees were being cut down and the prime
portions consisting of the lower 15 to 20 feet of the trees — the "butt
logs" — removed from the Monongahela National Forest without per-
mission of the Department of Agriculture. Black cherry wood is
prized in furniture making for its appearance and strength and there-
fore is commercially valuable. The black cherry trees in the forest are
also valuable for their contribution to the habitat, and their fruit pro-
vides food for the wildlife in the over 900,000 acres constituting the
Monongahela National Forest.
Special agents of the Department of Agriculture's Forest Service
discovered approximately 25 sites in the Monongahela National For-
est from which a total of 95 large trees had been cut down, some with
diameters at the base of up to 40 inches, and the valuable portions
removed from the National Forest. The evidence left at each of the
sites indicated use of a similar modus operandi that was distinctive.
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At the location of the two or three stumps found at each site, only the
most valuable butt portion of the trees had been removed, and second-
ary but still useful logs were left behind. At many sites, the stumps
were superficially covered with branches and mud. Moreover, at each
site there were similar drag marks on the ground, truck-tire tracks,
and telltale chain marks on a nearby tree about eight feet above the
ground, with scar marks on the same tree at about three to four feet
above the ground, indicating the unorthodox method by which the
logs were removed. The special agents testified that these markings
indicated that the logs were dragged to a nearby tree where a pulley
was chained to the tree at about eight feet above the ground and used
to raise the logs from the ground onto flatbed trucks. The trees' scar
marks at three to four feet above the ground indicated where the logs
hit the trees as they were being raised and loaded onto the trucks. At
each site the thieves left behind the same type of debris: Budweiser
brand beer cans, cigarettes, food wrappers, and "spit cups." At none
of the sites was there evidence of skidders — special tractors — that
professional loggers use to harvest trees. Professional loggers, who
receive permits to harvest trees, drag the trees with skidders to a cen-
tral location where the logs are piled and later loaded onto trucks by
cranes called cherry pickers. Because of the distinctive modus ope-
randi evidenced at each of the 25 sites from which black cherry trees
were stolen, the special agents concluded that the same persons were
involved in the thefts of the cherry trees from all 25 sites.
Based on anecdotal evidence from witnesses, who testified to
observing trucks with logs on them leaving the forest and driving in
the area, and on testimony of employees at local mills that purchased
black cherry logs, special agents developed a list of suspects on whom
to focus. Three nearby mills cooperated by providing, on an ongoing
basis, the names of persons on the suspect list who were selling black
cherry logs to the mills. After two of the mills continued to purchase
small numbers of black cherry logs, they tagged each of the logs, as
was their routine, and called the agents. Using the mills' records and
receipts, the agents were able to establish who sold each of the black
cherry logs to the mills and to whom the mill paid checks for the pur-
chase of the logs. The agents photographed the logs, obtained slabs
cut from the butt ends of each log — known as "cookies" — and
marked the cookies with the information received from the mill
records about who sold the logs to the mill. The agents then took the
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cookies to the National Forest where they were able to match up the
cookies with stumps.
Based on this investigation, seven persons, including the four
defendants in this appeal, were indicted for participation in a conspir-
acy that began in December 1998 to "steal[,] purloin and knowingly
convert to their own use and to the use of each other, a thing of value
of [the United States], that is Black Cherry trees in violation of Title
18, United States Code, § 641." The defendants were also charged
variously in 12 additional substantive counts of theft. Following a six-
day jury trial, the jury found Brant, Grant, Dallas Newsome, and
Michael Newsome guilty of conspiracy as charged in Count I. They
also found Brant, Grant, and Dallas Newsome guilty on various sub-
stantive counts of theft. They acquitted Michael Newsome of the one
substantive count of theft alleged against him. Finally, the jury acquit-
ted the other three individuals named as defendants in the indictment.
At sentencing, the district court determined that the amount of loss
caused by the conspiracy was $248,459.53, based on the market value
of the 95 trees that were cut down and stolen. Using that amount of
loss, the court sentenced Brant and Grant to 46 months' imprison-
ment. Based on a finding that the conspiracy caused a loss of
$32,321.52 during the period when Dallas Newsome was a member,
the court sentenced Dallas Newsome to 15 months' imprisonment.
Based on the conclusion that Michael Newsome was not involved in
any particular theft and that the amount he had stolen was therefore
less than $1,000, the district court followed § 641's loss-based dis-
tinction between felony and misdemeanor convictions and sentenced
Michael Newsome as a misdemeanant, imposing four months' home
confinement. Finally, under the Mandatory Victims Restitution Act,
the court ordered that all four defendants jointly and severally make
restitution to the United States in the amount of $248,459.53, the
amount of loss that the conspiracy caused to the United States.
These four appeals followed.
II
Grant, Brant, and Michael Newsome contend first that the district
court improperly denied their motions for acquittal alleging that the
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government's evidence was insufficient to convict them of either theft
or conspiracy to commit theft. They concede that the facts would per-
mit a rational jury to find beyond a reasonable doubt that these defen-
dants possessed black cherry logs which had been stolen from the
Monongahela National Forest. But they argue that there was simply
no evidence showing that any of the defendants "felled trees" in the
National Forest or stole them. They assert, "Not one of [the witnesses]
testified that he saw the appellants with chainsaws, oil, or fuel. . . .
The fact that none of the witnesses saw any tangible item even sug-
gesting logging rather than mere possession is significant." They con-
clude, arguing that "the Grand Jury did not charge the Appellants with
merely possessing the logs or selling them: the Grand Jury expressly
charged the Appellants with stealing the logs by chopping down the
black cherry trees in the [Monongahela National Forest]. Deviation
from that charge would result in a fatal variance."
The defendants made this same argument to the jury, explicitly dis-
tinguishing possession from theft and arguing that the evidence
showed merely that they possessed or sold the cherry trees, not that
they stole them from the National Forest. The jury rejected the argu-
ment, as do we.
The evidence showed that the cookies taken from 21 logs sold by
the defendants to the mills matched the stumps of trees illegally har-
vested from the Monongahela National Forest. The evidence also
showed (1) that all 25 sites of stolen trees were harvested in a simi-
larly distinctive manner, using chains and trucks in a particular way
to remove the logs; (2) that the manner was unlike the usual profes-
sional method of logging; (3) that only the butt logs were taken even
though secondary logs were valuable and available; (4) that at many
sites the stumps were covered with debris and mud; and (5) that at
each site similar debris was left. Moreover, witnesses from the mills
implicated the defendants by name and identified them in court. Rick
Stricker, an employee at one of the mills, testified that he bought
black cherry logs, two or three at a time, from Brant and Grant. He
testified that he bought the logs two or three times a month for several
months and that among the others who came with Brant and Grant
was someone named Newsome. Scott Schaffer who worked at the
same mill testified that he purchased black cherry logs from the
defendants, positively identifying Brant and Grant as selling the logs.
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Dan Lantz, who worked at another cooperating mill, testified that he
often bought high-grade black cherry logs from several of the defen-
dants. He identified Brant, Grant, Michael Newsome, and Dallas
Newsome. He testified that these individuals sometimes brought as
few as one or two logs and sometimes as many as six or seven, often
at least twice a week.
Finally, there was evidence closely linking the timing of the
removal of the trees from the National Forest and their sale to the
mills. Evidence showed that the trees discovered to have been cut
down and stolen from the Cranberry Visitors Center around Memorial
Day were sold by the defendants to the mills on May 24, May 30, and
June 6 in close temporal proximity to their thefts. The government put
on evidence that the logs were huge and heavy and gave the jury a
demonstration that revealed how difficult it would be to place even
two of these heavy logs on a truck, showing that the logs were not
items that could easily be moved and transferred from person to per-
son. Moreover, we have long recognized that possession of recently
stolen property permits an inference of theft. See United States v.
Long, 538 F.2d 580 (4th Cir. 1976). Here not only was there evidence
that the defendants possessed recently stolen property, but also that
they possessed property that was difficult to load onto trucks and that
had been loaded onto trucks during virtually the same period that they
were sold to the mills.
We conclude that the jury had sufficient evidence from which to
find the defendants guilty of both conspiracy to steal black cherry
trees and actual theft. The standard governing our review is whether
"there is substantial evidence, taking the view most favorable to the
Government, to support [the jury verdict]," Glasser v. United States,
315 U.S. 60, 80 (1942), and we have defined "substantial evidence,"
in the context of a criminal action, as that evidence which "a reason-
able finder of fact could accept as adequate and sufficient to support
a conclusion of a defendant's guilt beyond a reasonable doubt,"
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996). Moreover,
it is well established that facts may be proven by both circumstantial
and direct evidence. Id. at 858; United States v. Jackson, 863 F.2d
1168, 1173 (4th Cir. 1989). We agree with the district court's conclu-
sion that the government carried its burden.
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III
Challenging his conviction, Dallas Newsome contends (1) that the
district court erred in denying his motion to suppress evidence and (2)
that the district judge demonstrated judicial bias toward him. We
address these points separately.
A
Dallas Newsome contends first that the government should have
retained the logs from which it cut the cookies. Because the govern-
ment did not seize and preserve the whole logs, they were processed
by the mills into veneer. Dallas Newsome contends that therefore
"[w]e have only the word of the [mill] employees that the logs exam-
ined by law enforcement officials are the same as the logs the defen-
dant delivered."
Although the government has a duty to preserve evidence that pos-
sesses "an exculpatory value that was apparent before the evidence
was destroyed" where "the defendant would be unable to obtain com-
parable evidence by other reasonably available means," California v.
Trombetta, 467 U.S. 479, 489 (1984), the defendant must show bad
faith on the part of the government to demonstrate a violation of due
process, see Arizona v. Youngblood, 488 U.S. 51 (1988); Holdren v.
Legursky, 16 F.3d 57, 60 (4th Cir. 1994). Dallas Newsome has pre-
sented no authority that would impose on the government a duty to
seize the stolen logs, particularly when the government photographed
them and retained a cookie from each of them.
All of the evidence suggests that in this case the government acted
according to an ordinary and reasonable protocol in its investigatory
practices, and no evidence suggests any bad faith. As a result of this
protocol, Dallas Newsome had the opportunity to view the photo-
graphs and to inspect the cookie that was cut from each log. More-
over, he also had access to the mill records retained in the ordinary
course of its business. Finally, he had the opportunity to cross-
examine mill employees as well as the special agents for the Depart-
ment of Agriculture's Forest Service. Nothing in the record suggests
that the logs that Dallas Newsome would have had the government
seize and preserve had any exculpatory value so as to support a due
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process claim. Indeed, it appears that they would have provided no
additional evidentiary value. Thus, no error was committed by the dis-
trict court in denying Dallas Newsome's motion.
B
Dallas Newsome also contends that the district judge acted with
bias toward him during his counsel's closing argument and thereby
violated the judge's duty "to conduct a jury trial `in a general atmo-
sphere of impartiality.'" United States v. Castner, 50 F.3d 1267, 1272
(4th Cir. 1995) (citation omitted). The relevant exchange took place
as follows:
MR. O'BRIEN: And if Dallas Newsome had had an
opportunity to go to that log yard, he
might have said that this is my log over
here, cut a "cookie" off of it and I will
show you what you can match it to on
that ridge above my house. But the logs
have been shipped off and sliced into lit-
tle pieces. He was never given an oppor-
tunity to defend himself.
THE COURT: Now, I will stop you at that point, Mr.
O'Brien. You have exceeded the bounds
of what you can do with that argument.
Dallas Newsome did not challenge this exchange during the course
of trial, and he raises it for the first time on appeal. Accordingly, our
standard of review is for plain error. See Fed. R. Crim. P. 52(b).
Because counsel for Dallas Newsome was suggesting in this state-
ment to the jury some impropriety by the United States, a position
that counsel never established in court, the district court appropriately
concluded that the argument that counsel was making had limited
value and may have been unfair. Moreover, the argument that the mill
may have also possessed legal logs sold by the defendant was irrele-
vant to whether the logs in question were stolen. But even if it could
be shown that the district court's interruption amounted to plain error
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— not something that we conclude — Dallas Newsome has not
shown any prejudice resulting to him from the statement. Accord-
ingly, we find his argument without merit.
IV
Finally, all defendants contend that the district court erred in deter-
mining the amount of loss, both for the purpose of applying the Sen-
tencing Guidelines and for the purpose of ordering restitution. The
court found that for purposes of determining the proper offense level
and imposing terms of imprisonment, Brant and Grant were responsi-
ble for a loss of $248,459.53; Dallas Newsome was responsible for
$32,321.52; and Michael Newsome was responsible for less than
$1,000. For purposes of ordering restitution, however, the court found
that each defendant was jointly and severally responsible to the
United States for the full amount of the loss caused by the conspiracy
— $248,459.53. Because the defendants' arguments challenging these
applications differ, we address them separately.
A
Grant, Brant, and Michael Newsome contend that the evidence
does not support the $248,459.53 loss found by the district court,
whether for the purpose of computing the proper offense level under
the Sentencing Guidelines or for the purpose of ordering restitution.
While these defendants acknowledge that the government showed a
loss of 95 trees at 25 sites, they contend that these numbers "dramati-
cally exceed the sites and trees referenced in the substantive counts
[Counts II-XIII] of the indictment; Forester Wells' valuation of the
`approximately 95' trees exceeds the amount of the checks in the sub-
stantive counts of the Indictment by a factor of about fourteen." These
defendants argue that there was a lack of direct evidence connecting
them to sites and therefore losses other than those containing stumps
for the 21 logs covered by the allegations in Counts II through XIII.
The government's evidence showed that all 95 trees were harvested
in a manner similar to the 21 logs identified in the substantive counts.
Specifically, it showed that at each site, chains were attached to
neighboring trees so that a pulley mechanism could raise the logs
from the ground onto a truck; that only the butt logs were retrieved,
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leaving useful logs at the site; that trucks, as distinct from skidders,
came to each site to remove the logs; that stumps were covered with
leaves and mud; and that the debris left at the site was the same,
including the same brand of beer. We conclude that this evidence was
sufficient to permit the district court to find, by a preponderance of
the evidence, that the defendants, who were shown to have been
responsible for the theft of 21 logs through the matching of "cookies"
and stumps, were also responsible for the removal of all 95 trees.
These defendants argue nonetheless that the conditions at the 25
sites were not unusual and therefore not probative of any distinctive-
ness to link the sites:
If someone who does not own a logging company is going
to steal logs from off-road areas in the [Monongahela
National Forest], he has two choices: carry the logs out on
his shoulder, or load the logs into small trucks. Given the
immense weight of such logs, the former method is essen-
tially impossible. Thus, the use of small trucks is not a dis-
tinguishing feature of such a crime. The use of small trucks
and the lack of specialized equipment also dictates the use
of chains on surrounding trees to load the logs onto the
trucks, so that is not a distinguishing feature either.
The defendants' argument, however, falls from its own weight. While
we agree that the logs could not be carried out of the forest on shoul-
der, there were several additional ways by which they could have
been removed, making the way selected by the defendants more dis-
tinctive than the defendants would have it. First, for example, thieves
could have used a flatbed "tow" truck with a winch and a hydraulic
mechanism to raise the front and lower the rear of the flatbed to the
ground, such as is used when picking up an automobile. Thieves
could also have used a flatbed truck that has attached to it a small
boom to lift the log onto the truck. By an even more apparent and tra-
ditional method, the logs could have been rolled onto the flatbeds by
means of wooden rails and ropes. And thieves could have used a truck
equipped with a winch or pulleys to pull a log up a rear ramp onto
the flatbed. The use of a neighboring tree to rig a pulley, indeed,
might be the least obvious way.
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The defendants also note that other evidence at the site was not dis-
tinctive. They assert as not unusual the fact that thieves took "only the
most valuable portion of the tree. Most thieves who break into homes
concentrate on the most valuable and portable items and leave the
rest." They also note that the items like "Budweiser cans, other drinks,
food wrappers and food, `spit' cups, cigarette butts, and clothing
items from the sites . . . can be found throughout the [Monongahela
National Forest,] not just at [the] theft sites." Finally, they argue that
"[s]mearing some mud and leaves on the stumps and logs would prob-
ably occur to a four year-old, and is no more a distinguishing feature
than the fact that most robbers who use masks remember to take the
mask with them."
But again, the defendants' arguments overlook the evidence. There
was no evidence that the debris observed at each of the sites was
prevalent in the Monongahela National Forest. To the contrary, the
National Forest officials considered the debris to be unique to the
sites. And because no one would suggest that leaves and mud on a
stump would conceal the loss of a large black cherry tree, the use of
such an ineffective method, that would only "occur to a four year-
old," is all the more distinguishing. Finally, the defendants do not
address the fact that all of these distinctive factors appeared at all of
the sites and that their confluence by itself presents a distinctive fac-
tor, suggesting that the sites were linked to each other.
In short, we do not believe that the defendants have demonstrated
that the district court had insufficient evidence from which to con-
clude that the loss from all 25 sites was caused by the same conspir-
acy.
B
Michael Newsome makes the additional argument that, based on a
special interrogatory answered by the jury, the loss attributable to him
could be no more than $1,000, both for purposes of sentencing and
for purposes of restitution. Michael Newsome argues:
Because of the way the special interrogatory in the verdict
form for Count One was worded, the jury did not merely
find that the Government failed to prove beyond a reason-
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able doubt that the amount of loss attributable to the con-
spiracy of which Appellant Michael Newsome was a part
was more than $1,000.00, it was an express finding that the
Government had proved beyond a reasonable doubt that the
amount of loss was $1,000.00 or less.
He argues, therefore, that it was error to impose restitution of
$248,459.53 with respect to him. We disagree.
Michael Newsome cannot derive the comfort that he claims from
the jury verdict form. On its face, the verdict form concludes that
Michael Newsome was "guilty" of Count I of the indictment, charg-
ing conspiracy, and "not guilty" of Count XI, charging him with theft
of a tree on June 6, 2000, having a value of at least $1,270. The spe-
cial interrogatory then goes on to read:
Having found the defendant guilty of Count One, the jury
further finds that the government has proven beyond a rea-
sonable doubt that the value of property of the United States
that the defendant stole, purloined, or knowingly converted,
involved . . . $1000.00 or less.
(Emphasis added). One can only conclude that in finding Michael
Newsome "not guilty" of Count XI, the only substantive count charg-
ing him with the actual theft of a tree, the jury would have to find in
its answer to the special interrogatory that "the value of property of
the United States that [Michael Newsome] stole . . . involved . . .
$1000.00 or less." That finding does not contradict the jury's finding
that Michael Newsome was guilty of conspiracy to steal. Indeed, the
evidence showed that Michael Newsome was involved in the conspir-
acy during its entire term. Accordingly, the district court properly
ordered restitution by Michael Newsome with respect to the loss
caused by the conspiracy as a whole.
C
Finally, Dallas Newsome contends that the district court erred in
finding the losses attributable to him, both for the purpose of deter-
mining the offense level for sentencing him and for the purpose of
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ordering restitution. He asserts that the jury only found him guilty of
stealing two logs from one tree on June 6, 2000, with a value of
$1,784. As he explains:
Dallas Newsome was convicted of participating in the sale
of two logs from one tree; the sale price for those two logs
was $1,784.00. Even if we assign additional value to the
remainder of the tree and its products, it would be hard to
come up with a total value of more than twenty-five hundred
dollars. But he has been threatened with an order of restitu-
tion of nearly a quarter of a million dollars, an amount over
one hundred times the loss connected specifically with him.
In addition to arguing that the district court erred in not limiting the
loss attributable to him to $1,784 — both for determining his term of
imprisonment and for ordering restitution — he argues that the order
of restitution in the amount of $248,459.53 was disproportionate and
therefore excessive, in violation of the Eighth Amendment.
The district court made two different loss findings for Dallas New-
some, one for the purpose of determining the offense level and one
for ordering restitution. For determining the offense level, the district
court found that Dallas Newsome became a member of the conspiracy
by "at least" May 2000 and that from May to July 2000 — while Dal-
las Newsome was a member of the conspiracy — the conspiracy
caused a loss of $32,321.52 to the United States. On the basis of that
finding, the court sentenced Dallas Newsome to 15 months' imprison-
ment. See U.S.S.G. § 1B1.3, cmt. n.2 (2000) (defining relevant con-
duct); U.S.S.G. § 2B1.1(b)(1)(G) (2000) (enhancing offense level by
amount of loss caused). In ordering restitution, the district court found
that Dallas Newsome was a member of the conspiracy charged in
Count I and, because he was a member responsible for the acts of the
conspiracy, held him liable for restitution in the amount of
$248,459.53, the amount of loss that the conspiracy caused to the
United States. In making the distinction between its loss finding for
purposes of determining the relevant conduct and its loss finding for
purposes of ordering restitution, the district court explained:
[The $32,321.52 amount] is the amount of relevant conduct
that will determine the offense level.
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* * *
In other words, I find as a fact that it can be proved by a pre-
ponderance and has been proved by a preponderance that
Mr. Newsome was involved in the conspiracy at least in
May and June of 2000 and that that is the amount of the rel-
evant conduct which is chargeable to him.
That is not the same question as what is the proper
amount of the restitution which is chargeable to him for pur-
poses of the loss because there we are going to look to the
question of whether charging him with the amount of resti-
tution jointly and severally is disproportional to the gravity
of the harm.
(Emphasis added).
In addressing Dallas Newsome's arguments, we must first point out
that much of his argument is based on the assertion that he was only
convicted of selling two logs having a value of $1,784. Relying only
on the Count XII conviction, he contends that under Hughey v. United
States, 495 U.S. 411, 418 (1990), a court may order restitution only
for the loss caused by "the offense of conviction," which he contends
is his one substantive count of theft. He fails to recognize that he was
convicted of both Count XII, charging him with stealing a tree "hav-
ing a value of at least $1,784" and Count I, charging him with being
a member of a conspiracy that operated from December 1998 to July
2000, and that the conspiracy caused the United States a loss of
$248,459.53. His principal argument thus overlooks the conspiracy
conviction. And under conspiracy law, he is liable for the conduct of
all co-conspirators that was in furtherance of the conspiracy and rea-
sonably foreseeable to him. See Pinkerton v. United States, 328 U.S.
640, 646-47 (1946).
Turning to the district court's observation that the determinations
of the losses for the proper offense level and for ordering restitution
present different questions, we conclude that the district court acted
in accordance with the relevant law. The amount of losses relevant to
finding the appropriate offense level and therefore the proper sentence
of imprisonment is, as the district court stated, "not the same ques-
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tion" as the amount of losses properly covered by an order of restitu-
tion. See United States v. Laney, 189 F.3d 954, 964-66 (9th Cir. 1999)
(noting that for the Sentencing Guidelines, relevant conduct — which
may be broader than conduct for the offense of conviction — is con-
sidered and that for restitution, the "causal connection between the
offense of conviction and the victim's harm" is considered). But see
United States v. Cain, 134 F.3d 1345, 1349-50 (8th Cir. 1998) (stat-
ing, without discussion or reference to the restitution statute, that the
defendant's date of entry into the conspiracy limited his loss liability
for purposes of sentencing as well as for purposes of restitution).
Indeed, these loss findings serve two distinct purposes.
Any term of imprisonment calculated under the Sentencing Guide-
lines is a function of the defendant's "offense level" and his criminal
history category. The offense level, in turn, is determined by "relevant
conduct," rather than by the conduct supporting the offense of convic-
tion. Thus, under U.S.S.G. § 1B1.3, relevant conduct is determined on
the basis of
all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the
defendant; and . . . in the case of a jointly undertaken crimi-
nal activity . . ., all reasonably foreseeable acts and omis-
sions of others in furtherance of the jointly undertaken
criminal activity, that occurred during the commission of the
offense of conviction, in preparation for that offense, or in
the course of attempting to avoid detection or responsibility
for that offense.
U.S.S.G. § 1B1.3(a)(1) (2000). As the Application Notes point out,
"[t]he principles and limits of sentencing accountability under this
guideline are not always the same as the principles and limits of crim-
inal liability." Id. at cmt. n.1. And although relevant conduct for pur-
poses of determining the offense level may be broader than the
conduct supporting the offense of conviction, it may also be narrower.
Thus, the Application Notes provide:
Because a count may be worded broadly and include the
conduct of many participants over a period of time, the
scope of the criminal activity jointly undertaken by the
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defendant (the "jointly undertaken criminal activity") is not
necessarily the same as the scope of the entire conspiracy,
and hence relevant conduct is not necessarily the same for
every participant.
Id. at cmt. n.2; cf. Laney, 189 F.3d at 965 (noting, in circumstances
where the defendant remained a member of the conspiracy through-
out, that the relevant conduct could be broader than the conduct of
conviction). Focusing particularly on the offense of conspiracy, the
Application Notes point out that the defendant's relevant conduct may
not extend to all the conduct of the conspiracy:
A defendant's relevant conduct does not include the conduct
of members of a conspiracy prior to the defendant joining
the conspiracy, even if the defendant knows of that conduct
(e.g., in the case of a defendant who joins an ongoing drug
distribution conspiracy knowing that it had been selling two
kilograms of cocaine per week, the cocaine sold prior to the
defendant joining the conspiracy is not included as relevant
conduct in determining the defendant's offense level).
Id. And as the relevant conduct determines the offense level for find-
ing the sentencing range, so too does the loss caused by the relevant
conduct — in this case the losses caused to the United States by the
portions of the conspiracy attributable to Dallas Newsome as relevant
conduct. See U.S.S.G. § 1B1.3(a)(3) (2000); see also U.S.S.G.
§ 2B1.1(b) (2000).
Applying these principles to the circumstances of Dallas Newsome,
the district court made an "individualized determination," finding that
"even if [Dallas Newsome] was working full time [in Tennessee]
from January through April [2000], he was not doing that in June, in
May." Accordingly, the court made the following finding applicable
to determining Dallas Newsome's offense level:
I find as a fact that it can be proved by a preponderance and
has been proved by a preponderance that Mr. Newsome was
involved in the conspiracy at least in May and June of 2000
and that that is the amount of the relevant conduct which is
chargeable to him.
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The court then determined the loss caused by the conspiracy for that
period to be $32,321.52. When these findings were applied under the
Sentencing Guidelines, the offense level was enhanced by six levels,
as directed by U.S.S.G. § 2B1.1(b)(1)(G), providing for a six-level
enhancement when a theft loss is more than $20,000. After all other
adjustments were made to the offense level, the result was a level 14,
resulting in a sentencing range for Dallas Newsome of 15 to 21
months' imprisonment. The court sentenced Newsome to 15 months'
imprisonment.
Addressing restitution as a question distinct from the loss finding
for determining offense level, the district court properly focused on
the Mandatory Victims Restitution Act of 1996 ("MVRA"). Recog-
nizing the mandatory duty to impose restitution caused by the offense,
the district court looked at the loss to the government ($248,459.53)
and the counts for which Dallas Newsome was convicted (Counts I
and XII) and found the loss caused by the conspiracy to be
$248,459.53. The court ordered that Dallas Newsome pay restitution
at a rate of $75 per month after he has served his prison sentence.
Because of the seriousness of the loss caused and the crimes commit-
ted and noting that this restitution was less than the amount of fine
that Congress authorized for violations of both 18 U.S.C. § 371 and
18 U.S.C. § 641, the court concluded that the order of restitution was
not "disproportionate," as Dallas Newsome contended.
We conclude that the district court properly applied the MVRA and
appropriately distinguished the loss for ordering restitution from the
loss for determining the offense level. The MVRA was enacted with
the purpose that "courts order full restitution to all identifiable victims
of covered offenses, while guaranteeing that the sentencing phase of
criminal trials do not become fora for the determination of facts and
issues better suited to civil proceedings." S. Rep. No. 104-179, 1996
U.S.C.C.A.N. 924, 931. The Senate Report pointed out that "[t]his
legislation is needed to ensure that the loss to crime victims is recog-
nized, and that they receive the restitution that they are due. It is also
necessary to ensure that the offender realizes the damage caused by
the offense and pays the debt owed to the victim as well as to soci-
ety." Id. at 925. Thus, with the purpose and intent of restoring the vic-
tim, Congress mandated that for property offenses and certain other
crimes, "the court shall order . . . that the defendant make restitution
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to the victim of the offense," 18 U.S.C. § 3663A(a)(1) (emphasis
added), and that "[i]n each order of restitution, the court shall order
restitution to each victim in the full amount of each victim's losses as
determined by the court and without consideration of the economic
circumstances of the defendant," id. at § 3664(f)(1)(A) (emphasis
added). Where more than one defendant participates in a crime, as in
a conspiracy, the statute allows the court to "make each defendant lia-
ble for payment of the full amount of restitution." Id. at § 3664(h)
(emphasis added).
The MVRA does not focus on "relevant conduct" as defined by the
Sentencing Guidelines but rather on the "offense of conviction" when
describing the losses subject to a restitution order. Thus, the statute
requires that defendants "make restitution to the victim of the offense."
18 U.S.C. § 3663A(a)(1) (emphasis added). And the Act defines "vic-
tim" to mean a person "directly and proximately harmed as a result
of the commission of an offense." Id. § 3663A(a)(2) (emphasis added).
In specifying when restitution is mandatory, the statute requires that
the defendant, "in the case of an offense resulting in damage to or
loss or destruction of property of a victim of the offense, . . . pay an
amount equal to . . . the value of the property." Id. § 3663A(b)
(emphasis added). Accordingly, under the MVRA, each member of a
conspiracy that in turn causes property loss to a victim is responsible
for the loss caused by the offense. See also Laney, 189 F.3d at 964-66
(holding that for purposes of ordering restitution under a comparable
statute, losses caused by a conspiracy include "not only those result-
ing from the defendant's individual actions but also others caused by
the conspiracy itself"). The MVRA does, however, permit the court,
in its discretion, to mitigate the impact that the restitutionary order
might have on the defendant, but only in two respects. It may relax
the "manner" of payment based on the defendant's financial
resources, and it may apportion the payment among defendants if
more than one defendant has contributed to the loss. See 18 U.S.C.
§ 3664(f), (h).
In addressing the scope of a restitution order under the precursor
to the MVRA, the Supreme Court in Hughey instructed that it is the
"offense of conviction," not the "relevant conduct," that must be the
cause of losses attributable as restitutionary liability. The defendant
in Hughey was charged with multiple offenses but was convicted of
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only one offense. Yet he was ordered by the lower court to make res-
titution for losses attributed to relevant conduct under offenses for
which he was not convicted. In rejecting this approach when ordering
restitution, the Supreme Court stated:
Congress intended restitution to be tied to the loss caused by
the offense of conviction. Indeed, had Congress intended to
permit a victim to recover for losses stemming from all con-
duct attributable to the defendant, including conduct unre-
lated to the offense of conviction, Congress would likely
have chosen language other than "the offense," which refers
without question to the offense of conviction.
495 U.S. at 418 (emphasis added).
In sum, the MVRA requires that a court enter an order of full resti-
tution when the loss is caused by a property offense, and the focus of
the court in applying the MVRA must be on the losses to the victim
caused by the offense.
In this case, it is indisputable that Dallas Newsome was convicted
of conspiracy as alleged in Count I, which continued from December
1998 to July 2000. Although he introduced evidence suggesting that
he was not involved in the conspiracy while he was working in Ten-
nessee from January through April 2000, the evidence supports a
finding of his involvement in May and June 2000. The district court
found, for purposes of determining his offense level, that Dallas New-
some "was involved in the conspiracy at least in May and June of
2000." Even though further involvement would not have to be shown,
there was also evidence in the record that suggests that Dallas New-
some was involved much earlier. The special agent investigating the
thefts from the Monongahela National Forest issued ongoing reports
of his investigation, and one of these included a "target list" that iden-
tified Dallas Newsome as a suspect in the conspiracy as of February
2000 based on investigations conducted in the fall of 1999.
Because the district court found that the conspiracy caused the
United States to lose 95 black cherry trees and that the loss amounted
to $248,459.53, the court properly ordered Dallas Newsome to pay
the full amount. It did, however, exercise its discretion to mitigate the
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burden of the payments on Dallas Newsome by permitting him to
pay restitution at a rate of $75 per month once
he is released from prison. See 18 U.S.C. § 3664(f). The district court
did not err in ordering full restitution, nor did it abuse its discretion
in permitting Dallas Newsome to pay his obligation in installments.
Finally, Dallas Newsome contends that the restitution order vio-
lates the Excessive Fines Clause of the Eighth Amendment, citing
United States v. Bajakajian, 524 U.S. 321 (1998), and United States
v. Bollin, 264 F.3d 391 (4th Cir. 2001). Bajakajian holds that an in
personam forfeiture is excessive "if it is grossly disproportional to the
gravity of a defendant's offense," 524 U.S. at 334, and Bollin applied
that excessiveness standard to a restitutionary order. The district court
addressed this argument and the cases supporting it, and the court
concluded that Dallas Newsome's offense of conviction was a serious
offense and that a restitutionary order of $248,459.53 was not dispro-
portionate either to the offense or to the loss caused. Not only did the
conspiracy last for over a year and a half, causing $248,459.53 in
losses to the United States, the district court stated that "the statutory
maximum exposure of this defendant in connection with these kinds
of charges . . . tells you what the seriousness of the offense or the
gravity of the offense is considered to be." The court pointed out that
Dallas Newsome was exposed to five years' imprisonment and a
$250,000 fine on the conspiracy count under 18 U.S.C. § 371 and ten
years' imprisonment and a $250,000 fine on the theft count under 18
U.S.C. § 641. The court concluded, "[T]hese are considered to be seri-
ous crimes."
We do not believe that the district court erred in reaching that con-
clusion, and accordingly we conclude that Dallas Newsome's restitu-
tionary liability does not violate the Excessive Fines Clause of the
Eighth Amendment. See Bajakajian, 524 U.S. at 338-39 (determining
a forfeiture's proportionality by its relation to the maximum sentence
and fine that could be imposed and the harm that the victim suffered);
Bollin, 264 F.3d at 417-19 (determining the same for a restitutionary
order).
V
For the foregoing reasons, the judgments of the district court are
AFFIRMED.
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