UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4022

RICHARD WARREN CARROLL,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4259

CHARLES D. GRANATA,

Defendant-Appellant.

Appeals from the United States District Court

for the Middle District of North Carolina, at Greensboro.

William L. Osteen, Sr., District Judge.

(CR-95-269)

Argued: January 27, 1998

Decided: November 19, 1998

Before RUSSELL,* WIDENER, and WILKINS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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*Judge Russell heard oral argument in this case but died prior to the

time the decision was filed. The decision is filed by a quorum of the

panel pursuant to 28 U.S.C. § 46(d).
COUNSEL

ARGUED: William Carlton Ingram, Jr., FLOYD & JACOBS, L.L.P.,

Greensboro, North Carolina, for Appellant Granata; Danny Thomas

Ferguson, Winston-Salem, North Carolina, for Appellant Carroll.

Douglas Cannon, Assistant United States Attorney, Greensboro,

North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Defendants Charles D. Granata and Richard Warren Carroll were

indicted in the Middle District of North Carolina on one count of conspiracy to disconnect, reset and alter motor vehicle odometers and

conspiracy to transport in interstate commerce false, forged, or altered

motor vehicle certificates of title (Count One), 1 and 29 counts of altering and causing or aiding and abetting the altering of the odometers

of 29 individual vehicles (Counts Two through Thirty).2 A jury convicted both defendants of all counts. Carroll was sentenced to 46

months' imprisonment with 3 years of supervised release and $1,500

special assessments. Granata was sentenced to 38 months' imprisonment with 3 years of supervised release and special assessments of

$1,500. The defendants appeal their convictions and sentences.

Both defendants claim that the government failed to prove proper

venue for prosecution on Counts Two through Thirty because the acts

of altering the odometers took place only in Virginia or Maryland and

altering of odometers is not a continuing offense.

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1 18 U.S.C. § 371, 15 U.S.C.§§ 1984 and 1990(c), 49 U.S.C.

§§ 32704(2) and 32709(b), and 18 U.S.C. § 2314.

2 15 U.S.C. §§ 1984 and 1990(c) and 18 U.S.C. § 2.

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Regardless of whether the underlying offense is continuing, both

Carroll and Granata were charged with and convicted of aiding and

abetting each of the substantive offenses in Counts Two through

Thirty. The evidence shows that each of the 29 cars passed through

the Greensboro Auto Auction in North Carolina through either General Leasing or Exchange Leasing, companies in which both Granata

and Carroll played key roles.3 Prosecution of the defendants was

proper in North Carolina because their activities in that State were in

furtherance of the substantive offenses for which they were charged

in Counts Two through Thirty. United States v. Kibler, 667 F.2d 452,

455 (4th Cir.), cert. denied, 456 U.S. 961 (1982); see United States

v. Cabrales, 66 U.S.L.W. 4423 (June 1, 1998) (venue improper

because the counts at issue did not charge the defendant, among other

things, as an aider or abettor).

Granata and Carroll also challenge their sentences, claiming that

the district court erred in calculating the amount of loss attributed to

each altered vehicle. While amount of loss is generally one of fact

which we review for clear error, interpretation of sentencing guidelines terminology and the application of that terminology to a particular set of facts is reviewed de novo. United States v. Chatterji, 46 F.3d

1336, 1340 (4th Cir. 1995); United States v. Toler, 901 F.2d 399, 402

(4th Cir. 1990).

The amount of loss resulting from the fraudulent alteration of

odometers is the actual, probable, or intended loss to victims of the

fraud. U.S.S.G. § 2F1.1(b)(1) and comment. (n.7). The district court

rejected the defendants' argument that the victims were the wholesale

dealers and that the theoretical amount of loss of value to the dealer

of an altered car should be $2,000 to $3,000. The court found that the

actual victim in this case was the ultimate consumer or purchaser of

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3 For example, Granata helped obtain the wholesale license for General

Leasing, and was listed at the Greensboro Auto Auction as the authorized

representative to buy and sell cars for that company. Granata also applied

for and was listed as a partner for Exchange Leasing and was listed as

an authorized representative for that company at the Newburgh, New

York auto auction. Carroll was registered as an authorized representative

for Exchange Leasing at the Greensboro Auto Auction and as an authorized representative for General Leasing at the Newburgh auto auction.

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the car and that the reasonable loss per car was $6,260 which it

rounded down to $6,000. This amount was based on evidence of the

amount of markup and sale of the cars from one wholesaler to another

and the ultimate purchase price paid by the consumer.

We agree with the district court's determination that in this case the

victims were the ultimate consumers who overpaid for the altered car.

The defendants point to no evidence that any interim wholesaler in

this case failed to recoup an amount paid for the car and actually suffered a loss. The district court properly looked to the evidence of the

identity of actual victims and the amount of actual loss, and we affirm

on this issue.

Granata also claims that in determining his offense level, he should

not be held responsible for 83 vehicles, but only for the 29 vehicles

charged in the indictment and five others in which his name appeared

somewhere on the paperwork. The sentencing guidelines provide that

the offense level is determined on the basis of all acts committed,

aided, or abetted by the defendant, and, in the case of jointly

undertaken criminal activity, by all reasonably foreseeable acts of others in furtherance of the jointly undertaken criminal activity, or all

harm that results from or was the object of such acts. U.S.S.G.

§ 1B1.3. The record shows that more than 80 cars attributed to

Granata were either bought or sold through General Leasing or

Exchange Leasing. The district court found that General Leasing and

Exchange Leasing were formed by the defendants for no legitimate

purpose, that is, only for the purpose of washing titles and moving the

sales from one wholesale dealer to another. The court found that the

participation of Granata and Carroll was substantial and sufficient to

make them conspirators "whose activities had to give them the opportunity of foresight and knowledge of what could be done, and what

would be done, in using these outlets, Exchange and General Leasing." JA at 592. These findings are not clearly erroneous, and we

affirm on this issue as well.

Both Granata and Carroll contend that the district court erred in

enhancing their offense level by four levels under U.S.S.G.

§ 3B1.1(a) because they were not leaders or organizers of five or

more people. The guidelines do not require that the defendant be an

organizer or supervisor of five or more people as stated by the defen-

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dants. Rather, the guidelines provide for a four-level increase if the

defendant "was an organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive."

U.S.S.G. § 3B1.1(a). There is ample evidence in the record to support

that the criminal activity was quite extensive. See U.S.S.G.

§ 3B1.1(a). Along with Ali Alami, Charles Granata, and Richard Carroll, the record supports that, at the least, Heller, Bill Bevans, Vadim

Tertyshny, Alex Yavarri, Nick Azad, and John Armetta were participants in the scheme. Testimony and other evidence at trial showed

that the activities of Granata and Carroll in organizing and conducting

business through General Leasing and Exchange Leasing spanned at

least five States, New York, Maryland, Virginia, North Carolina, and

Alabama. Granata obtained wholesale licenses in Alabama and otherwise organized both General Leasing and Exchange Leasing, as well

as Value Leasing and Auto Express in North Carolina, registered

Exchange Leasing in Maryland, and altered titles and obtained new

titles from the Virginia Department of Motor Vehicles for various

dealerships. Carroll served as the authorized representative of General

Leasing and Exchange Leasing in North Carolina and New York and

bought and sold cars for the companies at auctions in those States.

There was testimony that Joe Heller worked for Exchange Leasing

and General Leasing to perform the rollback for $35 per car and evidence that John Armetta marketed rollbacked cars for them in the

Baltimore area. The loss for which these defendants were held

responsible was at least $480,000. The evidence supports that both

defendants played major roles in this scheme, which evidence

includes creating or acting, either or both, as the primary authorized

representative of at least one of the fraudulent dealerships. The district court's finding that Granata and Carroll were organizers and

leaders in the conspiracy is not clearly erroneous.

Next, Carroll claims that there is no evidence of an agreement and

therefore the evidence is insufficient to support a conviction for the

single conspiracy charged in Count One of the indictment. He contends that he and the others named in the indictment worked separately and received only a fee for each unlawful activity, and at best

there were only multiple conspiracies between the alleged ringleader,

Alami, and the others.

This argument has no merit. An agreement may be proved by circumstantial evidence alone. United States v. Burgos, 94 F.3d 849, 858

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(4th Cir. 1996). There is ample evidence to support the government's

position that there was an overall business venture or agreement to

accomplish a common criminal objective. The evidence that various

parties performed different functions to carry out the objective of the

crime or that there were multiple transactions goes to the scope of the

conspiracy. Such evidence does not negate the overwhelming evidence, even if circumstantial, of an agreement among the participants

to carry out the common objectives as stated in the indictment. See

United States v. Perez, 489 F.2d 51, 62 (5th Cir. 1973).

Along the same line, Carroll claims that the evidence was insufficient to support the verdict of conviction of the conspiracy charged

in Count One of the indictment, which he calls a single conspiracy,

which was that he and one Armetta and others had conspired, in violation of 18 U.S.C. § 371, to alter the odometers of hundreds of motor

vehicles, in violation of 15 U.S.C. § 1984 and§ 1990 and 49 U.S.C.

§ 32703(2) and § 32709(b), and to knowingly transport in interstate

commerce false certificates of title to motor vehicles, in violation of

18 U.S.C. § 2214. Even the abbreviated recitation of facts in this

opinion shows that this claim is entirely without merit. This is annunciated by the fact that the jury instructions are not even included in

the appendix. Neither are they complained about. We are thus of the

opinion that the claim is without merit.

Finally, we do not review Carroll's claim on direct appeal of ineffective assistance of counsel because the facts are not adequately

developed in the record. Carroll may pursue this claim on collateral

review under 28 U.S.C. § 2255, should he be so advised.

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The convictions and sentences of the defendants are accordingly

AFFIRMED.4

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4 Following argument of the case, Carroll and Granata filed a supplemental brief and also moved that we follow the panel opinion in the case

of United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), which they

contend held that agreements to seek leniency or refrain from filing

charges in return for testimony should result in the exclusion of that testimony, and that such was the holding of that case. See Singleton, 144

F.3d at 1359. The Tenth Circuit en banc court, however, on July 10,

1998, on its own motion, entered its order which vacated the panel decision and set the case for rehearing by the en banc court during November, 1998. With respect, we decline to follow the Singleton panel

decision. First, it has been vacated; second, we are not aware of any such

rule in this circuit; and last, we decline to impose such a rule, not intimating that we might do so in any event, especially in view of the fact that

no such question was raised at trial. See McGowan v. Gillenwater, 429

F.2d 586 (4th Cir. 1970).

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