1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-2-1999

USA v Medford

Precedential or Non-Precedential:

Docket 98-1647,98-1648

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Recommended Citation

"USA v Medford" (1999). 1999 Decisions. Paper 190.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/190
Filed July 2, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 98-1647 & 98-1648 

UNITED STATES OF AMERICA 

v. 

ERNEST MEDFORD, 

 Appellant in 98-1647 

UNITED STATES OF AMERICA 

v. 

GEORGE CSIZMAZIA, 

 Appellant in 98-1648 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

(Nos. 98-cr-00045-01 & 98-cr-00045-02) 

(District Judge: Honorable Clarence C. Newcomer) 

Submitted Under Third Circuit LAR 34.1(a) 

May 25, 1999 

Before: GREENBERG and ALITO, Circuit Judges, 

ACKERMAN, District Judge,1 

(Opinion Filed: July 2, 1999) 

_________________________________________________________________ 

1. The Honorable Harold A. Ackerman, Senior Judge of the United States 

District Court for the District of New Jersey, sitting by designation. 
 Michael R. Stiles 

 United States Attorney 

 Walter S. Batty, Jr. 

 Chief of Appeals 

 Robert E. Goldman 

 Assistant U.S. Attorney 

 U.S. Attorney's Office 

 615 Chestnut Street 

 Philadelphia, PA 19106 

 Counsel for Appellee 

 George Henry Newman, Esq. 

 Newman & McGlaughlin 

 834 Chestnut Street 

 Suite 206 

 Philadelphia, PA 19107 

 Counsel for Appellant 

 Ernest Medford 

 Donald M. Moser, Esq. 

 Washington West Building 

 235 South 8th Street 

 Philadelphia, PA 19106 

 Counsel for Appellant 

 George Csizmazia 

OPINION OF THE COURT 

ALITO, Circuit Judge: 

Ernest Medford and George Csizmazia ("defendants") 

appeal their sentences after pleading guilty to conspiracy, 

theft, and receipt of cultural objects from a museum in 

Philadelphia. On appeal, defendants contend that the 

government violated the plea agreement and that the

District Court misapplied the United States Sentencing 

Guidelines. For the reasons explained below, we conclude 

that the government satisfied its obligations under the plea 

agreement but that the District Court erred in applying the 

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sentencing guidelines. We therefore vacate defendants' 

sentences and remand for further proceedings. 

I. 

The Historical Society of Pennsylvania ("HSP"), founded in 

1824 and located in Philadelphia, exhibits antiques and 

other historical items to the public. Defendant Medford 

worked as a custodian at the HSP for approximately 18 

years. During that time, he met defendant Csizmazia, a 

collector of antiques, who was working as a contractor at 

the HSP. The defendants agreed that Medford would steal 

items from the museum and sell them to Csizmazia. 

Over a ten-year period, Medford pilfered approximately 

200 valuable items from the museum, including a sword 

presented to George G. Meade for his military 

accomplishments during the Civil War, a 1735 gold snuff 

box presented to Andrew Hamilton for successfully 

defending J. Peter Zenger in his libel trial, a ring containing 

a lock of George Washington's hair, an ivory tea caddy that 

belonged to George Washington, a telescope used by Elisha 

Kent Kane during his 1853 exploration of the arctic region, 

lockets containing the hair of John Brown and Andrew 

Jackson, the wedding band of Patrick Henry's wife, a silver 

pitcher presented to a physician for his efforts during the 

1848 smallpox epidemic in Philadelphia, and a Lancaster 

County long rifle crafted in 1785 by Isaac Haines, one of 

Philadelphia's finest gunsmiths. For a paltry sum, Medford 

sold these items to Csizmazia, who concealed them at his 

residence. All of the items have been recovered. 

Defendants entered into a plea agreement under which 

the government promised to "[m]ake a motion to allow the 

District Court to depart from the Sentencing Guidelines 

pursuant to Sentencing Guidelines S 5K1.1, if the 

government in its sole discretion, determines that the 

defendant has provided substantial assistance in the 

investigation or prosecution of another person who has 

committed an offense . . . ." Csizmazia App. at 24-25; 

Medford App. at 9-10. Defendants pleaded guilty to 

conspiracy, in violation of 18 U.S.C. S 371; theft of objects 

of cultural heritage, in violation of 18 U.S.C.S 668(b)(1); 

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and receipt and concealment of stolen objects of cultural 

heritage, in violation of 18 U.S.C. S 668(b)(2).2 

At sentencing, the District Court applied U.S.S.G. 

S 2B1.1, which provides a base offense level of four for a 

variety of larceny offenses, including offenses committed 

under 18 U.S.C. S 668. The Court then enhanced 

defendants' base offense levels 15 points because the 

amount of loss sustained by the HSP exceeded $2.5 million. 

See U.S.S.G. S 2B1.1(b)(1)(P). In arriving at that figure, the 

District Court considered the appraisals proffered by the 

government. The experts who made the appraisals had

determined that the total monetary value of the stolen 

items ranged between $2,452,471 and $2,579,500. Over 

the defendants' objection, the District Court selected the 

midpoint of the two estimates for a total loss of 

$2,515,985.50. The Court reasoned: "[I]t is entirely 

appropriate for the Court to accept a valuation . . . which 

is based upon two expert appraisals . . . and to utiliz[e] the 

midpoint range." Csizmazia App. at 72a; Medford App. at 

24. 

The Court next considered the government's section 

5K1.1 motion for a downward departure. The government 

declared that its section 5K1.1 motion merely granted the 

District Court "permission" to depart downward, but that 

the government "certainly [did not] recommend a downward 

departure." See Csizmazia App. at 81a; Medford App. at 33. 

Specifically, the government stated: 

_________________________________________________________________ 

2. 18 U.S.C. S 668(b) provides, in pertinent part: 

 Any person who- 

 (1) steals or obtains by fraud from the care, custody, or control 

of 

 a museum any object of cultural heritage; or

 (2) knowing that an object of cultural heritage has been stolen or 

 obtained by fraud, if in fact the object was stolen or obtained 

from 

 the care, custody, or control of a museum (whether or not that 

 fact is known to the person), receives, conceals, exhibits, or 

 disposes of the object, 

 shall be fined under this title, imprisoned not more than 10 years, 

 or both. 

18 U.S.C. S 668(b)(1), (2). 

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 [T]he motion for downward departure . . . permits the 

 Court to depart downward. . . . [T]hat's what the 

 Government is saying, you're permitted, I'm not 

 granting you permission, but under the rules it 

 provides that I'm giving you discretion [to depart 

 downward based on defendants' substantial assistance] 

 . . . . [W]e told both counsel that we wouldfile a weak 

 5K. And a weak 5K in our opinion is [one that] grants 

 discretion to depart downwards, but we certainly don't 

 recommend a downward departure. 

Csizmazia App. at 83a; Medford App. at 35. The District 

Court denied the motion. 

The District Court heard victim impact testimony from 

the President of the HSP, Susan Stiff ("Stiff "). See 

Csizmazia App. at 106a-108a; Medford App. at 58-60. Stiff 

explained that defendants' actions had damaged one of the 

museum's most important assets -- its reputation as a 

responsible steward of important national treasures-- "in 

ways that cannot be quantified." Csizmazia App. at 107a; 

Medford App. at 59. Stiff noted that the damage caused by 

defendants could decrease financial contributions, reduce 

donations of valuable historical objects, and diminish the 

HSP's ability to attract qualified individuals to serve as 

trustees and staff members. See Csizmazia App. at 106a107a; Medford App. at 58-59. Because of the harm caused 

to the HSP and the public, Stiff implored the District Court 

to "to impose the heaviest possible sentence on both 

defendants." Csizmazia App. at 107a-108a; Medford App. at 

59-60. The government concurred. Csizmazia App. at 108a; 

Medford App. at 60. 

Finding that the defendants' sentencing range of 27 to 33 

months did not "sufficiently encompass[ ] the egregiousness 

of the offenses that were involved," the District Court 

departed upward four levels from the guidelines. Csizmazia 

App. at 109a; Medford App. at 61. However, the Court did 

not advise the defendants prior to the sentencing hearing 

that it intended to depart upward. 

The District Court sentenced the defendants to 48 

months of imprisonment, and the defendants took this 

appeal. Defendants claim that the government (1) violated 

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the plea agreement by filing a motion for downward 

departure and then stating at the sentencing hearing that 

it did not recommend departure and (2) acted in bad faith 

by failing to make "a more concerted 5K1.1 downward

departure motion at the time of sentencing." Csizmazia Br. 

at 15. Defendants also contend that the District Court 

misapplied the Sentencing Guidelines by (1) arbitrarily 

selecting the middle value of the high and low estimates of 

the fair market value of the stolen items as the amount of 

loss sustained by the HSP; (2) departing upward without 

providing sufficient advance notice of its intentions; (3) 

departing upward on a ground that had already been taken 

into consideration by the Guidelines; and (4) departing 

upward four levels without articulating its reason for the 

extent of the departure. We address each argument in turn. 

II. 

Defendants contend that the government violated the

plea agreement by filing a downward departure motion and 

then stating at the sentencing hearing that it did not 

recommend a downward departure. Defendants also claim 

that the government acted in bad faith by failing to make "a 

more concerted 5K1.1 downward departure motion at the 

time of sentencing." Csizmazia Br. at 15.3 As a remedy, 

defendants seek a remand for resentencing before a 

different judge. "Whether the Government violated a plea 

agreement is a question of law subject to de novo review." 

See United States v. Huang, 178 F.3d 184, 187 (3d Cir. 

1999) (citing United States v. Roman, 121 F.3d 136, 142 (3d 

Cir. 1997), cert. denied, 118 S. Ct. 722 (1998)). We reject 

defendants' claims. 

Section 5K1.1 of the Guidelines provides: 

 Upon motion of the government stating that the 

_________________________________________________________________ 

3. Defendants' contention that the government violated the plea 

agreement by requesting the court to impose the heaviest sentence 

possible on the defendants is frivolous. In the plea agreement, the 

government reserved the right to "[m]ake whatever sentencing 

recommendation the government deems appropriate. . .." Csizmazia 

App. at 25; Medford App. at 10. 

 6 
 defendant has provided substantial assistance in the 

 investigation or prosecution of another person who has 

 committed an offense, the court may depart from the 

 guidelines. 

U.S.S.G. S 5K1.1. We have held that, in the absence of two 

circumstances not present here, a District Court may not 

depart below the guideline range based on a defendant's 

substantial assistance unless the government makes a 

motion to permit such a departure. See United States v. 

Abuhouran, 161 F.3d 206, 211-212 (3d Cir. 1998), cert. 

denied, 119 S. Ct. 1479 (1999). 

In this case, the plea agreement required the government 

"to mak[e] a motion to allow the Court to depart from the 

Sentencing Guidelines pursuant to Sentencing Guidelines 

S 5K1.1, if the government, in its sole discretion, determines 

that the defendant has provided substantial assistance in 

the investigation or prosecution of another person who has 

committed an offense. . . ." Csizmazia App. at 24-25 

(emphasis added); Medford App. at 9-10. We interpret the 

plain terms of the plea agreement to require only that the 

government file a S 5K1.1 motion in order to give the 

District Court the power ("to allow the Court") to depart 

downward under that provision. Contrary to defendants' 

suggestions, the plea agreement did not require the

government to recommend a downward departure at the

sentencing hearing; nor did it prohibit the government from 

stating at the sentencing hearing that it did not recommend 

departure. Therefore, when the government filed the 5K1.1 

motion, it complied with the terms of the plea agreement.4 

In addition, we find no basis for the defendants' 

contention that the government acted in bad faith by failing 

to make "a more concerted 5K1.1 downward departure 

motion at the time of sentencing." Csizmazia Br. at 15. In 

making this contention, defendants cite United States v. 

_________________________________________________________________ 

4. It is true that the plea agreement could have been more explicit in 

stating that, while the government was obligated to make a S 5K1.1 

motion, the government was reserving the right to take whatever 

recommendation it chose as to whether a downward departure should be 

granted. In future cases, it would be advisable for the government to 

make this point explicit. 

 7 
Isaac, 141 F.3d 477 (3d Cir. 1998), in which we held that 

the government's failure to file a 5K1.1 motion as required 

under the plea agreement must not result from bad faith. 

Defendants' reliance on Isaac, however, is misplaced. Here, 

the government filed a S 5K1.1 motion and in so doing 

complied with its obligation under the plea agreement. 

Accordingly, we fail to perceive any bad faith on the 

government's part. 

For these reasons, we conclude that the government 

satisfied its obligation under the plea agreement and that 

the government's actions were not in bad faith. We 

therefore deny defendants' request for resentencing before a 

different judge. 

III. 

Defendants also contend that the District Court erred in 

enhancing their base offense levels because it arbitrarily 

selected the midpoint between the high and low estimates 

of the stolen items' fair market value as the amount of loss 

sustained by the HSP and stated, without further 

explanation, that doing so is "entirely appropriate."5 We 

review the District Court's findings for clear error. See 

United States v. Miele, 989 F.2d 659, 663 (3d Cir. 1993). 

We agree with defendants. 

U.S.S.G. S 2B1.1 establishes a defendant's base offense 

level for offenses involving theft of property. See U.S.S.G. 

S 2B1.1 (1997). For offenses under 18 U.S.C.S 668, the 

defendant's base offense level begins at four and is 

increased depending on the amount of the loss sustained 

as a result of the illegal conduct. See U.S.S.G. S 2B1.1(a), 

(b)(1). In determining the amount of loss sustained, courts 

are instructed to ascertain the fair market value of the 

stolen items. See U.S.S.G. S 2B1.1, commentary n.2. We 

have held that in cases in which the fair market value 

ranges between two estimates and either end of the range 

is equally plausible, courts generally should adopt the lower 

_________________________________________________________________ 

5. Had the District Court selected the lower estimate, the defendants 

would have received a 14-level increase in their base offense levels, 

rather than the 15-level increase that they received. 

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end of the estimated range. See Miele, 989 F.2d at 665-66 

(citing United States v. Walton, 908 F.2d 1289, 1302 (6th 

Cir. 1990). However, "where there is other evidence to 

support the higher end of an estimated range, the court 

may certainly rely on the higher estimate." Miele, 989 F.2d 

at 665-66. Such other evidence must be supported by

"sufficient indicia of reliability," and the court must explain 

on the record why it relied on the estimate at the higher 

end. Id. at 668 ("We require that the district court articulate 

more than a conclusory finding . . . . The district court may 

not rest its decision upon facts until it determines that the 

fact or facts have sufficient indicia of reliability to support 

a conclusion that they are probably accurate."). 

The decision of the District Court violates Miele. In 

determining that the fair market value of the stolen items 

exceeded $2.5 million, the District Court selected the 

middle value of the high and low estimates without 

assessing the reliability of the higher estimate. In addition, 

the District Court did not articulate an adequate 

evidentiary basis for selecting the middle value of the two 

estimates, as opposed to selecting the low end of the range. 

Accordingly, as the government requests, we vacate the 

defendants' sentences and remand for resentencing in 

accordance with Miele. 

IV. 

Defendants further maintain that remand is required

under Burns v. United States, 501 U.S. 129, 138 (1991), 

because the District Court departed upward without 

providing advance notice to the defendants of its intention 

to upwardly depart. We agree. In Burns, the Supreme Court 

held: 

 Before a district court can depart upward on a ground 

 not identified as a ground for upward departure either 

 in the presentence report or in a prehearing

 submission by the Government, Rule 32 [of the Federal 

 Rules of Criminal Procedure] requires that the district 

 court give the parties reasonable notice that it is 

 contemplating such a ruling. 

 9 
Id.; see also United States v. Barr, 963 F.2d 641, 655 (3d 

Cir. 1992). The government recognizes that the District 

Court "did not provide the defense with sufficient advance 

notice of [its] intention to upwardly depart from the 

guidelines," and therefore it concedes that the District 

Court committed plain error. Appellee's Br. at 9. In light of 

Burns and the position taken by the government, we vacate 

the sentences imposed by the District Court and remand 

for resentencing. 

Although we are remanding to the District Court, we will 

address one further issue relating to the upward departure 

that was briefed to us here and that no doubt will be raised 

on remand. Defendants contend that the District Court's 

upward departure was improper because the cultural value 

of the stolen objects is an element of 18 U.S.C.S 668 

already taken into consideration by the Sentencing 

Guidelines. We review the District Court's findings of fact 

for clear error and its legal conclusions de novo. See United 

States v. Hillstrom, 988 F.2d 448, 450 (3d Cir. 1993). We 

reject defendants' argument. 

As noted above, S 2B1.1 provides for increases in the 

defendants' sentence depending upon the amount of loss 

sustained by the victim of the offense. See U.S.S.G. 

S 2B1.1, background commentary ("The value of property 

stolen plays an important role in determining sentences for 

theft and other offenses involving stolen property because it 

is an indicator of both the harm to the victim and the 

gain to the defendant."). In making this determination, 

the Guidelines instruct the courts to ascertain the fair 

market value of the stolen items. See U.S.S.G. S 2B1.1, 

commentary n.2. The application notes recognize, however, 

that in some cases, the monetary loss will not "fully capture 

the harmfulness of the conduct." See U.S.S.G. S 2B1.1, 

commentary n.15. In those cases, the application notes 

provide that "an upward departure may be warranted." Id. 

In this case, after enhancing the defendants' offense level 

by 15 based on the fair market value of the stolen items, 

the District Court departed upward four levels because the 

applicable sentencing range did not "sufficiently encompass 

the egregiousness of the offenses that were involved here." 

 10 
Csizmazia App. at 109a; Medford App. at 61. The Court 

explained: 

 [T]he conduct that [the defendants] engaged in is an 

 assault and affront to our culture, to our society, and 

 . . . must be dealt with accordingly. [T]he intangibles 

 . . . involved . . . and the effects that they have . . . had 

 upon the institution itself -- both here in Philadelphia 

 and . . . throughout the country -- mandate that the 

 court . . . issue an upward departure in this case. 

Csizmazia App. at 109a-110a; Medford App. at 61-62.

We agree with the District Court. The price set by the 

commercial market is insufficient to "fully capture the 

harmfulness of the [defendants'] conduct." The antiques 

stolen in this case unquestionably have historical and 

cultural importance. Moreover, the thefts affected the HSP 

in ways different in kind from a loss of money or other 

easily replaceable property, for these thefts damaged the 

HSP's reputation. In addition, the monetary value of these 

objects does not adequately take into consideration the real 

but intangible harm inflicted upon all of the other victims 

of the offense, including the City of Philadelphia and the 

general public. Because section 2B1.1 applies to thefts that 

cause financial harm to the immediate victim of the offense, 

the non-monetary damage caused here and the harm 

inflicted upon the public at large justify the District Court's 

upward departure. 

The defendants contend that the upward departure was 

impermissible because "the Sentencing Commission, in 

setting the offense level . . . for theft of objects of cultural 

heritage, took into account the very fact that the items 

stolen were items of cultural heritage." Medford Br. at 13. 

This argument, however, fails to take Application Note 15 

into account and overlooks the fact that U.S.S.G.S 2B1.1 

applies to a variety of theft offenses that do not involve 

objects of cultural heritage. To take just one example, 

U.S.S.G. S 2B1.1 applies to the offense of transporting 

stolen motor vehicles in interstate or foreign commerce, in 

violation of 18 U.S.C. S 2312. Thus, under U.S.S.G.

S 2B1.1, a defendant who transports stolen motor vehicles 

valued at $x across state lines is treated the same as a 

 11 
defendant who steals objects of cultural heritage having the 

same fair market value. Because U.S.S.G. S 2B1.1 does not 

take into account the non-monetary significance of objects 

of cultural heritage, a departure may be warranted, as 

Application Note 15 suggests. 

Finally, defendants contend that the District Court erred 

in failing to explain its reason for a four-level upward 

departure. Because we are remanding to the District Court, 

we note only that the District Court should state on the 

record its reason for the extent of the departure. See United 

States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990). 

V. 

Accordingly, we vacate the defendants' sentences and 

remand for resentencing in accordance with this opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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