Unpublished Disposition, 935 F.2d 277 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 277 (9th Cir. 1991)

No. 90-10458.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and FARRIS, Circuit Judges, and DUMBAULD,**  District Judge.

MEMORANDUM*** 

Appellant, Asatour Nagapetian, an alien resident, was convicted by a jury on a seven count indictment charging conspiracy under the general conspiracy statute 18 U.S.C. 371 (and the aiding and abetting statute 18 U.S.C. 2) to switch identification numbers in violation of 18 U.S.C. 511(a),1  to transport stolen Mercedes-Benz automobiles in interstate commerce to Las Vegas, Nevada, in violation of 18 U.S.C. 2312,2  and to store and sell such stolen motor vehicles in violation of 18 U.S.C. 2313;3  as well as substantive violations of 18 U.S.C. 2312 and 18 U.S.C. 2313. Four automobiles were involved. Appellant was sentenced to 41 months imprisonment, together with 3 years supervised release and restitution in the amount of $63,525, and a special assessment of $350 for counts I through III, due 90 days after release from custody.

Appellant contends that the sentencing guidelines were misapplied in that (1) he should have been allowed a deduction of two points for acceptance of responsibility; and (2) he should not have had two points added for leadership role under Guideline 3B1.1(c). On both of these points the standard of review of the District Court's factual determination is whether it was clearly erroneous. U.S. v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990); U.S. v. Carvajal, 905 F.2d 1292, 1295-96 (9th Cir. 1990).4  We affirm.

In an affidavit before sentence appellant said

That appellant, after speaking with counsel VINCENT OCHOA, ESQ., now accepts his guilty conviction and accepts responsibility for his criminal conduct. [Appellant's Brief, p. 25, italics supplied].

This language reminds one of the anecdote about Margaret Fuller, a New England transcendentalist, who proclaimed; "I accept the Universe." Appellant's acceptance is a mere ploy in defense tactics "pour les besoins de la cause ".

As the District Judge at the sentencing hearing said, "we have here an eleventh hour appeal, a matter of convenience, if you will, recognizing that if the talismanic phrase is the right words are uttered, that that may qualify for acceptance of responsibility. It just doesn't." [Appellant's Brief, p. 27].

Appellant's acceptance was half-hearted, as appears with respect to his argument on his leadership role. In his affidavit he said, "That affiant and PLAMEN ARSOFF [the codefendant who testified under immunity and who had the skill and tools and actually did the switching of VIN numbers on the cars] were both joint participates [sic ] in this crime with each having their own roles to play and affiant accepts responsibility for his own part in the VIN switching of the vehicles." [Appellant's Brief, p. 28, italics supplied ].

The criminal scheme in which appellant participated included several steps: (1) stealing a marketable Mercedes-Benz; (2) acquiring a similar model of low value, which had been wrecked or otherwise depreciated; (3) removing the VIN identification numbers (both the visible one and the secret one on the firewall of the engine or elsewhere) from the junk car and substituting them in the stolen car at the appropriate place for that car's genuine numbers; (4) getting title registration and license plate for the stolen car on the basis of the switched VIN numbers; (5) transporting the stolen car to Las Vegas; (6) and selling it there to a customer, probably an unsuspecting purchaser willing to pay the approximate market value of the car.

Appellant managed all these steps except (3), the switching of the VIN numbers. That was done by codefendant Arsoff. As the District Court said, "it's very clear from the evidence that was presented at trial that the defendant [appellant] has to be characterized as an organizer or leader or manager of this activity." [Appellant's Brief, p. 29].

Accordingly, judgment of the District Court is

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission without oral argument. See Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

Honorable Edward Dumbauld, Senior United States District Judge for the Western District of Pennsylvania, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3

 1

Sec. 511 provides in pertinent part:

(a) Whoever knowingly removes, obliterates, tampers with, or alters an identification number for a motor vehicle, or motor vehicle part, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

(b) (1) Subsection (a) of this section does not apply to a removal, obliteration, tampering, or alteration by a person specified in paragraph (2) of this subsection, (unless such person knows that the vehicle or part involved is stolen).

 2

Sec. 2312 reads:

Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $50,000 or imprisoned not more than five years, or both.

 3

Sec. 2313 provides in pertinent part:

(a) Whoever receives, possesses, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, which has crossed a State or United States boundary after being stolen, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

 4

In his opening brief appellant also argues that there was insufficient evidence to go to the jury. This point does not deserve separate consideration, as the evidence of appellant's participation in the criminal enterprise as discussed under the other two points will show that it was obviously sufficient to go to the jury and to support the verdict. (Apparently appellant agrees as the point regarding insufficiency of evidence is not referred to in his reply brief.) Even if it were true, as appellant argues, that the only evidence of illegal acts by him was that of a codefendant testifying under an agreement for immunity, and lenience, the credibility of witnesses is for the jury and not subject to appellate review. Uncorroborated testimony of an accomplice, if believed, is sufficient. U.S. v. Lopez, 803 F.2d 969, 973-74 (9th Cir. 1986)