Unpublished Disposition, 872 F.2d 432 (9th Cir. 1985)

MEMORANDUM^** 

Appellant Benita Annett Wakley appeals her conviction following a jury trial for conspiracy to transport stolen property in foreign commerce and transportation of stolen property in foreign commerce, in violation of 18 U.S.C. §§ 371, 2314. We affirm the district court's conviction.

FACTUAL AND PROCEDURAL BACKGROUND

On September 11, 1984, defendant-appellant Wakley purchased $12,000 worth of American Express Travelers Cheques from Security Pacific National Bank in Long Beach, California. Wakley paid cash. Wakley signed some or all of the checks before she left the bank, but the issuing teller did not verify that each check was signed before Wakley left the bank. Wakley left the bank without her receipts for the checks, which contained the serial numbers. The issuing teller, Adeline Leyba, promptly mailed the receipts to Wakley's residence, which Wakley had written on the receipts.

The next day Wakley returned to the bank shortly after it opened. She told the same teller that she had lost the checks. The teller told her she had mailed her the receipts and that they should arrive at her residence soon. In the meantime, Wakley telephoned the American Express office in Salt Lake City, Utah, to report the loss. The office set up an interview appointment for defendant with a Los Angeles American Express representative. Defendant met with the representative the next day. She also filed a report with the Los Angeles Police Department the same day. Defendant claimed she had lost the checks when she went to the garment district to shop. However, she could not recall any of the places she visited, although she offered to take the American Express representative there and show him where she had been.

On September 20, 1984, Wakley received a full refund from American Express in the form of traveler's checks. Five days later, codefendant Ronald D. Stefenel, who shared a residence with Wakley, mailed the missing set of checks to Hong Kong via DHL Worldwide Courier Express. When doing so, Stefenel signed an airway bill stating that the package contained no currency or traveler's checks.

A DHL employee discovered the traveler's checks when he was sorting packages and turned them over to the United States Customs Service for a reward. Customs Agent Robert Czyrklis then telephoned Stefenel, posing as a DHL employee. Czyrklis told Stefenel that he was having problems delivering his package to the Hong Kong address and asked if there was another address in Hong Kong where he could make delivery. Stefenel said there was no other address. Czyrklis then asked Stefenel if there was anything of value in the package, and Stefenel replied no.

On November 15, 1984, police searched the Stefenel/Wakley residence pursuant to a valid search warrant. They discovered $1,600 worth of the replacement traveler's checks, two airway bills to the address in Hong Kong, passports for both defendants indicating previous travel to Hong Kong, approximately one pound of marijuana, and $895 in United States currency. In addition, telephone records showed several calls from the residence to a telephone number in Hong Kong.

Stefenel and Wakley were arrested and charged with conspiracy to transport stolen property in foreign commerce and transportation of stolen property in foreign commerce, in violation of 18 U.S.C. §§ 371, 2314. At trial, both defendants testified that Stefenel had acquired and sent the checks to Hong Kong without Wakley's permission. The jury convicted both defendants on both counts.

Defendants failed to appear for their May 6, 1985 sentencing hearing. Three years later, they were apprehended. Wakley was sentenced to fourteen months in custody on count one, and a five year probation term on count two. She appeals.

DISCUSSION

Wakley appeals her conviction on three grounds. First, she claims that the jury had insufficient evidence to convict her. Second, she claims that there was no jurisdiction, asserting that the traveler's checks did not constitute stolen property with regards to her. Third, she claims that the district judge improperly considered her jumping bail when enhancing her sentence for the crimes, since the jumping bail had not been formally charged or prosecuted. We find no merit in any of these contentions.

I. Evidence was sufficient to support a conviction.

Wakley contends that the jury's conviction cannot be upheld since there was insufficient evidence to support it. We disagree. Wakley supports her argument by reiterating triable issues of fact in her favor, but these facts were before the jury when it made its decision. As the court stated in United States v. Goode, 814 F.2d 1353 (9th Cir. 1987), when reviewing for sufficiency of evidence:

First, the evidence must be viewed in the light most favorable to the government; and second, the reviewing court must respect the exclusive province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts, by assuming that the jury resolved all such matters in a manner which supports the verdict.

Id. at 1355 (quoting United States v. Ramos, 558 F.2d 545 (9th Cir. 1977).

The jury in this case based its verdict on facts which could reasonably support a finding of Wakley's participation in the conspiracy and the substantive crime. These included the fact that Wakley signed the checks in erasable ink, and that Stefenel waited until Wakley had received her refund before he mailed the original checks to Hong Kong. These implied active participation in the conspiracy on the part of Wakley, and communication between her and Stefenel.

The jury also wholly rejected Wakley's credibility when she testified that she did not participate in the conspiracy. Specifically, Wakley could not identify any of the places she visited on her trip to the garment district, where she allegedly lost the checks. "The credibility of witnesses and the weight accorded the evidence are questions for the jury that are not reviewable." United States v. Vaccaro, 816 F.2d 443, 454 (9th Cir.) (citing United States v. Burns, 701 F.2d 840, 842 (9th Cir.) (per curiam), cert. denied, 462 U.S. 1137 (1983)). Thus, we find there was sufficient evidence to uphold the jury's verdict.

II. Jurisdiction was established.

Wakley asserts that the original set of traveler's checks did not constitute stolen property with respect to her, and that therefore she could not have violated any federal statute regarding transportation of stolen property. Specifically, Wakley contends that since she used her money to purchase the checks, they were her property. She cannot be prosecuted for stealing her own property, since this would not deprive an owner of its rights in the property as required by 18 U.S.C. § 2314.

This contention is without merit. As soon as Wakley received her refund set of checks, the original checks became the property of American Express if found. Wakley cannot seriously contend that she was the owner of two sets of checks, totaling $24,000, after paying only $12,000. The same sort of claim was attempted in United States v. Thomas, 835 F.2d 219 (9th Cir. 1987). In Thomas, defendant wrote a check for $87,300 on a closed bank account. He then deposited the bad check in another account and received a cashier's check for $86,000. When prosecuted under Sec. 2314, Thomas claimed that the cashier's check was not "a stolen security because he owned it, having procured it from the bank in his own name." Id. at 221. The Thomas court rejected this contention "because the statute also applies to securities 'taken by fraud,' and that is the crucial allegation in Thomas' case." Id. Because the jury in this case found that Wakley fraudulently obtained twice as many checks as she had paid for, we find that the district court had jurisdiction to prosecute her under Sec. 2314 for transporting stolen property.¹ 

III. Wakley's sentence was properly enhanced.

Wakley contends that, although she jumped bail for three years and this fact was in the personal knowledge of the sentencing judge, the judge improperly considered this fact when he enhanced her sentence from the one originally planned. Specifically, defendant claims it was unconstitutional to consider the act of jumping bail since she had not been formally charged with the crime or given due process rights regarding that crime. Once again, defendant's claim lacks merit.

In Wasman v. United States, 468 U.S. 559 (1983), the Supreme Court stated, "It is now well established that a judge or other sentencing authority is to be accorded very wide discretion in determining an appropriate sentence. The sentencing court ... must be permitted to consider any and all information that reasonably might bear on the proper sentence for the particular defendant, given the crime committed." Id. at 563. We will disturb a district court's sentence only for an abuse of this broad discretion, and we find none here. Jones v. United States, 783 F.2d 1477, 1479 (9th Cir. 1986).

Defendant asserts that a sentencing judge can only consider offenses committed prior to sentencing if they rise to the level of conviction. This is erroneous. " [D]ue process does not require sentencing information to meet the same rigorous evidentiary standards required at trial." Jones, 783 F.2d at 1480. See, e.g., United States v. Morgan, 595 F.2d 1134, 1136 (9th Cir. 1979) (holding that judges have discretion to consider a wide variety of information from various sources to tailor punishment to the criminal); United States v. Harris, 726 F.2d 558, 559 (1984) (holding that failure to file subsequent tax returns was properly considered when resentencing for original crime of failure to file tax returns, even though the subsequent failures were not charged or prosecuted).

One exception to this rule is that a judge may not rely on materially false information when sentencing. However, the defendant has the burden of proving that information is materially false. Jones, 783 F.2d at 1480 (citing Farrow v. United States, 580 F.2d 1339, 1359 (9th Cir. 1978) (en banc)). There is no such showing of proof in this case. Moreover, the sentencing judge had personal knowledge of the fact that defendant had jumped bail.

Defendant also asserts that she was denied her fifth amendment right to be free from self-incrimination when the district judge asked her to explain why she had jumped bail. This is an impossible claim in light of the fact that the judge granted Wakley use immunity at the sentencing hearing. "The grant of use immunity covers any use or derivative use of the particular testimony and is coextensive with the scope of the Fifth Amendment privilege against self-incrimination." United States v. Lipkis, 770 F.2d 1447, 1451 (9th Cir. 1985) (citing Kastigar v. United States, 406 U.S. 441 (1972)). Thus, none of defendant's constitutional rights were violated when her sentence was enhanced due to her additional crime of jumping bail for three years.

AFFIRMED.