PUBLISH UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v. CEDRIC DUANE BURKS, Defendant–Appellant. Nos. 10-4180 & 10-4210

Appeal from the United States District Court for the District of Utah (D.C. No. 2:07-CR-00173-TS-4)

Robert Breeze, Salt Lake City, Utah , for the Defendant-Appellant. Jared C. Bennett, Assistant United States A ttorney (Carlie Christensen, United States Attorney, with him on the brief), Office of the United St ates Attorney, District of Utah, Salt Lake City, Utah, for the Plaintiff-Appellee.

Before LUCERO , HOLLOWAY , and TYMKOVICH , Circuit Judges.

LUCERO , Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### May 29, 2012
Elisabeth A. Shumaker Clerk of Court-2- Cedric Burks provided codes to an auto-the ft ring that were used to create working keys for specific vehicles. One such vehi cle—an Escalade—was stolen in Nevada, stripped to its frame, and subsequently discov ered and auctioned by authorities. Several months later, the same Escalade, now reassemble d, was identified in Utah. Based on this discovery, Burks was charged and convicted of aiding and abetting the possession and transportation of a stolen vehicle under 18 U.S.C. §§ 2312 and 2313. On appeal, Burks argues th at the jury was improperly instructed on the affirmative defense of withdrawal and was allowed to make an improper inference that Burks’ associates knew the vehicle was stolen. We di sagree on both points. First, assuming that withdrawal is an affirmative defense to a conviction premised on accomplice liability, we hold that the jury was properly instructed that the burden of proving the defense rested on Burks. Second, we hold that the jury was properly instructed that it could infer that Burks’ associates knew the vehicle was stolen. We also reject Burks’ claims that there was insufficient evidence to supp ort his conviction and that the district court erred in its restitution order. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I Burks was a player in an auto-theft ring operated by Levi and Abraham Elliot based in Las Vegas, Nevada. Once an auto mobile was targeted fo r theft, the Elliots would provide Burks with the automobile ’s unique vehicle identification number (“VIN”). Using this information, Burks woul d contact a local auto dealership and claim-3- that he was purchasing the vehicle in ques tion and needed the vehicle’s “key code” 1 in order to make a key for the vehicle. Unawar e of the foul play, the dealership employee would give Burks the code. Burks then passed th e key code to the Elliots, who would compensate him and use the code to make a key to steal the vehicle in question. According to the dealership employee, Burks requested appr oximately twenty key codes in 2005. One vehicle targeted by the Elliots wa s a 2004 Cadillac Escalade, fitted with a custom grille and wheels. In accordance with the plan, Burks was given the Escalade’s VIN and obtained its key code from his deal ership contact. The vehicle’s owners reported it stolen soon thereafter. Several days later, Las Vegas police recovered the Escalade’s frame, which had been completely st ripped of its doors, seats, grille, wheels, and various other instruments. Notably, all of the electronic wires were neatly clipped and bundled, and the frame had been smeared in oil to protect it from the weather. Upon recovery, the Escalade’s frame was sold at au ction to Abe Elliot, who received legal title to the frame along with a Nevada certificate d eclaring the vehicle to be non-reparable. At some point in the follo wing three months, the Esca lade was reconstructed and Caesar “Spanky” Martinez purchased insura nce for the vehicle in Utah. Martinez subsequently became a suspect in federal and state investigations into a string of auto

1 A key code is a unique sequence of numb ers that a manufacturer assigns to an individual vehicle to allow the vehicle’s owne r to make duplicate keys. An individual in possession of a key code for a particular vehicle can make an unlimited number of working keys for that vehicle.-4- thefts in Utah and Nevada. While investig ating Martinez, authorities noticed an Escalade at his house, and after some research, discov ered that the Escalade was likely the same one that had been stolen, stripped, and auc tioned in Las Vegas. The identity of the Escalade was confirmed when la w enforcement used the stol en vehicle’s recorded VIN and key code to make a workin g key, which was used to sei ze the vehicle from Martinez. The Escalade’s ties to Nevada and the Elliots became more apparent after Martinez was arrested. First, Abe Elliot calle d the Utah state motor vehicle division to inquire about the status of the Escalade. Another man, who gave the name of Ralph Scalbon, also called to report the vehicle st olen, but provided the same callback number as Abe Elliot. This Scalbon moniker closely resembled the name of the individual who allegedly sold the Escalade to Martinez. Fi nally, Abe Elliot himself sought to claim the vehicle and was arrested after a rriving with a working key. Law enforcement traced the Escalade back to Burks, who had been arrested for attempting to sell key codes. Once in cust ody, Burks confessed to selling codes to the Elliots as part of their auto-theft scheme. Additionally, Burks stated that he was aware that the Elliots operated in Utah, and did business with an individual named “Spanky.” Following his arrest, however, Burks stoppe d selling key codes and helped authorities infiltrate the Elliots’ auto-theft ring. Based on Burks’ confession, he was char ged with aiding and abetting: (1) the interstate transportation of the stolen Es calade under 18 U.S.C. § 2312; and (2) the possession, receipt, and storage of the stolen Escalade under 18 U.S.C. § 2313. At trial,-5- Burks’ counsel objected to two jury instructions now at i ssue. The first instruction informed the jury that the burden of proving the affirma tive defense of withdrawal rested with the defendant. The seco nd instruction permitted the ju ry to infer that a vehicle stolen in one state and recovered in anot her was knowingly transported in interstate commerce. Both objections, however, were overruled, and the jury convic ted Burks on both charges. Following Burks’ conviction, the district court held a restitution hearing to determine how much compensation was due to th e owners of the stolen Escalade. After the Escalade was stolen, the vehicle’s owners filed a claim with thei r insurance company, which paid to replace the Escalade but charged the owners a $1,000 deductible. Accordingly, the district court ordered that Burks pay $1,000 to the Escalade’s owners and $49,977 to the insurance company, wh ich represented the amount paid to the Escalade’s owners minus the sum recovered fr om the sale of the vehicle’s frame at auction. Burks timely appeal ed both his conviction and the restitution order, and we consolidated the appeals.
II On appeal, Burks raises several novel ques tions about the interplay of the federal auto-theft statute, known as the Dyer Act a nd codified at 18 U.S.C. §§ 2312 and 2313, and the federal accomplice liability statute, 18 U. S.C. § 2(a). We thus begin our analysis by looking at each of these st atutes respectively. Burks was convicted under two distinct se ctions of the Dyer Act: §§ 2312 and-6- 2313. Section 2312 prohibits the transportation in interstate commerce of a vehicle that is known to be stolen, and § 2313 prohibits the receipt, possession, or storage of a vehicle that crossed state lines and is known to be stolen. As the Supreme Court has acknowledged, the Act reflects a realization that “[p]ro fessional thieves resort to innumerable forms of theft[,] and Congress presumably sou ght to meet the need for federal action effectively rather than leav e loopholes for wholesale evasion.” United States v. Turley, 352 U.S. 407, 416-17 (1957). Burks was not convicted as a principal under the Dyer Act, but as an accomplice under the federal accomplice liability statut e. Under 18 U.S.C. § 2(a), “[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” “To be guilty of aiding and abetting the commission of a crime, the defend ant must willfully a ssociate himself with the criminal venture and seek to make the venture succeed through some action of his own.” United States v. Leos-Quijada, 107 F.3d 786, 794 (1 0th Cir. 1997). In establishing that the defendant was an accomplice, the government may rely on “circumstantial evidence and the level of pa rticipation may be of relatively slight moment.” Id. (quotati on omitted). The Dyer Act and accomp lice liability statute, operating together, provide the basis for Burks’ convictions. For his conv iction under § 2312, the government was required to prove: (1) a person transported a stolen vehicle that crossed state lines; (2) the person knew the vehicle was stolen; a nd (3) Burks associated himself with the-7- principal and sought to make the venture su cceed. For his conviction under § 2313, the government was required to prove: (1) a pe rson received, possessed, or stored a stolen vehicle that crossed state lines; (2) the pers on knew the vehicle was stolen; and (3) Burks associated himself with the principal and sought to make the venture succeed. A Burks first claims the jury was improperly instructed on the affirmative defense of withdrawal. At trial, Burks ar gued that he should be shie lded from conviction because he effectively withdrew from the E lliots’ auto-theft ring. This defense was premised on the fact that Burks stopped selling key codes an d actually helped auth orities infiltrate the criminal enterprise after he sold the Escalade’ s key code to the Elliots . The district court accepted this as a valid defense, but instruct ed the jury that “[t] he defendant has the burden of proving that he withdrew from th e enterprise by a preponderance of the evidence.” We review “a court’s decision to give a particular jury instruction for an abuse of discretion and consider the instructions as a whole de novo to determine whether they accurately informed the jury of the gover ning law.” United Stat es v. Gwathney, 465 F.3d 1133, 1142 (10t h Cir. 2006). In this circuit, withdrawal is an established affirmat ive defense to a defendant’s involvement in a conspiracy. United States v. Randall, 661 F.3d 1291, 1294 (10th Cir. 2011). “[T]o establish the affirmative de fense of withdrawal from a conspiracy, a defendant must disclose the scheme to law enforcement authorities or make a reasonable effort to communicate his withdrawal to his coconspirators.” Id. (citation omitted). Yet-8- it is unsettled if a defendant can withdraw from aiding and abetting a crime. Unlike a conspiracy, which by its very nature involves an agreement that can be refuted, accomplice liability can arise from merely encouraging the prin cipal. See United States v. Whitney, 229 F.3d 1296, 1303 (10th Cir. 20 00) (“One may become an accomplice . . . by words or gestures of encouragement . . . .”) (quotation and alteration omitted). Given the relatively minor participation that can tr igger accomplice liability, it is unclear what actions an individual may take—if any—to immunize himself from liability for a crime that he previously enabled. Other courts have reached varying results when considering the applicability of the withdrawal defense to the federal accomplic e liability statute. The Seventh Circuit, for example, has held that withdrawal was not a valid defense for aiding and abetting mail and securities fraud. United States v. Read, 658 F.2d 1225, 12 39-40 (7th Cir. 1981) (withdrawal is not a defense because “as an aider and abettor, [the defendant] need not agree to the scheme. He need only associ ate himself with the criminal venture and participate in it”). The Second Circuit has also held that withdrawal is not a valid defense to aiding and abetting, at leas t for some crimes. See United States v. Arocena, 778 F.2d 943, 948 n.3 (2d Cir. 1985) (“[W]ithdrawal is not a defense to the substantive crime of aiding and abetting a murder.”). In contrast, the Ninth Ci rcuit has assumed—albeit in dicta—that a defendant can withdraw from being an accomplice. United States v. Lothian, 976 F.2d 1257, 1261 (9th Cir. 1992) (“Withdrawal is traditionally a defense to crimes of complicity: conspira cy and aiding and abetting.”).-9- Every court to foreclose the withdraw al defense to an accomplice has closely examined the elements and nature of the underlying crime and limited their holding to that crime. We see no reason to depart from this prudent prac tice, and decline the government’s suggestion to categorically hol d that withdrawal can never be a valid defense to aiding and abe tting a federal crime. Turning to the underlying crime at issue, it is conceivable that a defendant could withdraw from aiding and abetting a Dyer Ac t violation. But even assuming that withdrawal was a valid defense, we reject Burks’ contention that the government should have to prove its absence. The burden of pr oving withdrawal in the conspiracy context unequivocally rests with the de fendant, and we see no basis for distinguishing situations when accomplice liability is at issue. See United States v. Hughes, 191 F.3d 1317, 1322 (10th Cir. 1999) (“In this circuit, the law is clear that the defend ant bears the burden of establishing withdrawal from a conspiracy.”). The district court thus did not abuse its discretion in instructing the jury on this point.
B Burks also objects to a jury instruction permitting the inference that the Escalade was transported to Utah by an individual who knew it was stolen. Specifically, the jury was instructed that “[p]ossessi on in one state of a vehicle th at was recently stolen in another state, if not satisfactorily explained, is ordinarily a circumstance from which you may infer that the person knew the vehicle was stolen and also transported in interstate commerce.” Burks timely objected to this instruction, and now argues that it was unfair-10- to require him to prove or disprove the mindset and actions of a third party. Although we have upheld this inference in cases involving the Dyer Act, we have not addressed its applicability when the defenda nt is not the principal. Cf. Rogers v. United States, 416 F.2d 926, 927 (10th Cir. 1969) (“Proof that an accused is in possession of a vehicle recently stolen in another state sustains the inferences that he knew the vehicle was stolen and that he transported it in interstate commerc e.”). Typically, an inference is permissible if “there is a rati onal connection between the fact proved by the prosecution and the ultimate fact presumed, and the inferred f act is more likely than not to flow from the proven facts.” Gwathney, 465 F.3d at 1143. Under this definition, there will be scenarios in which the connection be tween the crime and the defendant is so indirect that an inference instruction is in appropriate. Burks’ ca se, however, presents no such scenario. The evidence presented by the gove rnment provided a solid foundation for inferring that Martinez knew the vehicle was stolen and had crossed state lines. Burks himself admitted that Martinez was involved in the Elliots’ Nevada-based auto-theft ring. The prosecution also sh owed that after the Escalade wa s recovered in Utah, the Elliots tried to claim it. This evidence, which tend s to show that Martinez was a key player in the Elliots’ scheme, is clearly sufficient to support the inference that Martinez’s possession of the vehicle meant that he knew th e vehicle had been stolen and that it had crossed state lines. The jury in struction was thus appropriate. Burks maintains that the in ference is only appropriate if the defendant is in actual-11- possession of the vehicle. To th is end, he cites Rogers, which held that “[t]he basis of the inferences is the possession of the vehicle . . . [a]bsent possession no inference may be drawn.” 416 F.2d at 928. But Rogers states only that the person for whom the inference is made must have been in possession, an d Martinez was unquestionably in possession of the vehicle before it was recovered in Utah. There is nothing in Rogers to suggest that the inference may only be made in reference to the defendant at trial. C Burks alleges that there was insuffici ent evidence to convic t him at trial. We review the sufficiency of th e evidence de novo. Whitney, 229 F.3d at 1300. “[W]e ask only whether taking the evidence—both direct and circumstantial, together with the reasonable inferences to be drawn there from—in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.” United States v. Keck, 64 3 F.3d 789, 793 (10th Cir. 2011). In order to convict Burks, the government was required to prove: (1) a person transported (for liability under § 2312 ) and received, possessed, or stored (for liability under § 2313) a stolen vehicl e that crossed state lines; (2 ) the person knew the vehicle was stolen; and (3) Burks associ ated himself with the principal and sought to make the venture succeed. Burks first claims that the government could not prove the vehicle crossed state lines with the knowledge that it was stolen because it is unclear who transported the vehicle. We disagree. Th e government presented an array of evidence showing the Escalade was stolen by the Ellio ts in Nevada and found in Utah in-12- possession of Martinez, a known associate of th e Elliots. Given this evidence, the jury could properly infer that whoever trans ported the vehicle from Nevada to Utah— presumably some player in the Elliots’ ring—knew it was stolen. Burks also alleges that th e Escalade was not actually st olen when it crossed state lines. To this end, Burks emphasizes that af ter the Elliots stole, stripped, an d abandoned the vehicle, it was recovered by authorities, which he argues rendered the Escalade frame “unstolen.” Because the Elliots legally purchased the “unsto len” frame, the reconstructed Escalade was allegedly not stolen when it cr ossed into Utah, and was thus outside the scope of the Dyer Act. See generally United States v. Muzii, 676 F.2d 919, 923 (2d Cir. 1982) (discussing recovered property doctrine). This argument, while admittedly clever, is not persuasive. The Dyer Act was intende d to cover a wide range of activities, and passed as an effort to close loopholes that auto thieves had exploited. Turley, 352 U.S. at 416-17. In the instant case, thieves strippe d the Escalade and allowed it to be recovered with the intention of re-purch asing the vehicle so they coul d obtain legal title to it. To hold that the transportation and possession of the Escalade did not violate the Dyer Act because the authorities were made an unwitting link in the chain of theft would create an illogical loophole in direct contradiction to Co ngress’ intent. See United States v. Payne, 635 F.2d 643, 645 (7th Cir. 1980) (holding th at interstate transpor tation of vehicle parts severed from a stolen a truck violated the polic y of the Dyer Act). We therefore decline to apply to the recovered property doctrine to situations in which a thief abandons the vehicle with the intention of purchasing it onc e it has been recovere d by authorities.-13- As a final point, Burks asserts that his in volvement in providing the key codes to the Elliots is not sufficiently ma terial to show that he associ ated himself with the crime of transporting and possessing the Escalade in anothe r state. The standard for finding that a defendant aided or abetted a crime is not a high one; “[c]onduct of the defendant or special circumstances may justif y the inference that the defend ant associated himself with the criminal objective.” Whitney, 229 F.3d at 1303 (quotation omitted). Furthermore, “[i]t is well settled that kn owledge by the defenda nt that the vehicle was moving in interstate commerce is not an essential elemen t of an offense under [the Dyer Act].” United States v. Smith, 461 F. 2d 246, 247 (10th Cir. 1972). This is because “[t]he essence of the offense is the fraudulent sche me itself and the interstate element is only included to provide a c onstitutional basis for the exercise of federal jurisdiction.” United States v. Newson, 531 F.2d 9 79, 981 (10th Cir. 1976). Thus, it does not matter if Burks knew the Escalade was going to be transpor ted to Utah or end up in Martinez’s possession. See also United States v. Hayes, 739 F.2d 236, 238 (6th Cir. 1984) (holding that it is not necessary to prove an accomplice to a Dyer Act violation knew of the stolen vehicle’s movement in interstate commerce). It is enough that Burks provided key codes to the Elliots with full knowledge that the vehicles would be stolen and the relative scope of their auto-theft ring.
III Burks contests the district court’s restitu tion order requiring hi m to pay $1,000 to the Escalade’s owners and $49,977 to th e owners’ insurance company under the-14- Mandatory Victims Restituti on Act (“MVRA”), 18 U.S.C. § 3663A. We review an MVRA restitution order for an abuse of discre tion, although the application of the statute is reviewed de novo and the factual findings for clear error. United States v. James, 564 F.3d 1237, 1242 (10th Cir. 2009). Under the MVRA, the district court must award restitution for “any offense . . . against property under [United States Code Title 18] . . . in which an identifiable victim suffered a physical injury or pecuniary lo ss.” 18 U.S.C. § 3663A(c)(1). Dyer Act violations are clearly within that provision ’s scope, and both the Escalade’s owner and their insurance company are id entifiable victims. Accord ingly, restitution under the MVRA is mandatory. The statute requires th at the victims be compensated “the full amount of their losses as dete rmined by the court and wi thout consideration of the economic circumstances of the defenda nt.” 18 U.S.C. § 3664(f)(1)(A). The district court determined that re turning the vehicle to its owner was not practical because the vehicle’s unsavory hist ory had left it unsuita ble for street use. Based on this determination, the court was re quired to award “the greater of (I) the value of the property on the date of the . . . loss . . .; or (II) the value of th e property on the date of sentencing.” § 3663A(b)(1)(B)(i). This am ount was to be offset by “the value (as of the date the property is returned) or any pa rt of the property th at is returned.” § 3663A(b)(1)(B)(ii). Taking this into account, the court dete rmined the actual loss to the victims to be $50,977: $1,000 to compensate the Escalade’s owners for the deductible they paid and $49,977 to comp ensate the insurance company for replacing the Escalade.-15- On appeal, Burks argues th at the district court erred by not subtracting the residual value of the vehicle, which at the time of the order was not in the victims’ possession. According to Burks, the vehicle was worth approximately $30,000 when it was recovered; he contends that amount should have been subtracted from the loss to the victims. But a restitution order under the MVRA “must be based on actual loss,” United States v. Parker, 553 F.3d 13 09, 1324 (10th Cir. 2009), and may only be offset by the value of the property “returned” to the victim, § 3663A(b)(1)(B )(ii). Given this mandate, the district court properly declined to offset the actual loss suffered by the speculative value of the vehicle when re turned to a victim in the future. 2
IV
We AFFIRM Burks’ conviction and AFFIRM the district court’s restitution order.

2 The district court noted that the govern ment had agreed to auction the vehicle and subtract that amount obtained from the amount owed. At oral argument, however, both parties stated that after th e briefs were filed, the government returned the Escalade to the insurance company. Be cause the district court prop erly looked to the victims’ losses and not the speculative amount that might be recovered once the Escalade was auctioned in its analysis, these new facts do not undermine the restitution order. Burks is free to bring a separate action if the govern ment violated its agr eement to auction the vehicle and apply the proceeds towards the $50, 977 owed by Burks. However, any such agreement is not before this court, and we de cline to consider or ru le upon it.