177 F.3d 957 (11th Cir. 1999), 98-2519, United States v. Pistone
| Citation | 177 F.3d 957 |
| Party Name | UNITED STATES of America, Plaintiff-Appellee, v. Salvatore PISTONE, Defendant-Appellant. |
| Case Date | June 03, 1999 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Eleventh Circuit |
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Jeffrey G. Brown, Florin, Roebig, Walker, Huddleston, Rogers & Brown, Clearwater, FL, for Defendant-Appellant.
Karen Cox, Asst. U.S. Atty.,, Tampa, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before EDMONDSON and BLACK, Circuit Judges, and PAUL [*], Senior District Judge.
PER CURIAM:
I. INTRODUCTION
This is an appeal from a jury verdict on a one-count indictment charging Defendant Pistone, and two co-defendants, Sean Michael Kirlew and Nicholas Andrew King, with violating 18 U.S.C. § 1951 by combining, conspiring, confederating and agreeing to rob an armored car by means of actual and threatened force, violence, and fear of injury to the armored car guards. His co-defendants entered guilty pleas, received 5K1.1 certificates, and each was sentenced to thirty (30) months imprisonment and three years of supervised release. The district judge denied Pistone's motion for a new trial, his two motions for judgment of acquittal notwithstanding the verdict, and his renewed motion for judgment of acquittal, and then sentenced Pistone within the guidelines to 112 months imprisonment and three years of supervised release. Pistone appeals the denial of his motions and the district judge's increase of his offense level by two levels, under U.S.S.G. § 2B3.1(b)(1), because the object of the offense was to take the property of a financial institution.
II. ISSUES ON APPEAL
(1) Whether, as a matter of law, the government is required to allege and prove an overt act in a prosecution for conspiracy to obstruct commerce in violation of 18 U.S.C. § 1951?
(2) Whether the district court erred in denying Defendant's motions for new trial and for judgment of acquittal?
(3) Whether the district court erred in finding that an object of the conspiracy of conviction was to take the property of a financial institution, and in increasing his offense level from 22 to 24, under U.S.S.G. § 2B3.1(b)(1), based on that finding?
III. STANDARDS OF REVIEW
(1) Issue One: The interpretation of a statute is a question of law subject to de novo review.
(2) Issue Two: The district court's denial of a motion for new trial is reviewed for an abuse of discretion. See United States v. Cox, 995 F.2d 1041, 1043 (11th Cir.1993). Denials of motions for judgment of acquittal, before and after entry of a verdict, are reviewed de novo, and to uphold the denial thereof, this Court need only determine that a reasonable fact-finder could conclude that the evidence established the defendant's guilt beyond a reasonable doubt. See United States v. Keller, 916 F.2d 628, 632 (11th Cir.1990).
(3) Issue Three: The district judge's factual findings are reviewed under the clearly erroneous standard, while its interpretation of the Sentencing Guidelines is reviewed de
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novo. See United States v. Gonzalez, 2 F.3d 369 (11th Cir.1993).
IV. FACTS
Pistone worked at All-American Auto ("AA Auto") in Tampa, Florida as an automobile salesperson. Sometime before July 25, 1997, a new employee, Clifford Kelly began working at AA Auto. 1 Kelly reported to FDLE Agent Pope that Pistone had been talking about organizing an armored car robbery with the co-defendants Sean Kirlew and Kirlew's half-brother, Nicholas King. Kirlew and King had attempted to rob an armored car in May of 1996. Upon learning of the plans, agent Pope instructed Kelly to begin tape recording his conversations with Pistone regarding the robbery plan. All but one of the conversations regarding the armed robbery conspiracy were recorded, transcribed, and introduced at trial. The evidence at trial consisted of five live witnesses (the two co-defendants, the confidential informant Kelly, agent Pope, and a representative of Loomis Fargo) and the recorded conversations. No overt act was listed in the indictment and none was presented at trial.
The following summary of the facts--which are supported by the record--is taken from the government's brief:
In July 1997, Pistone approached Kirlew and King separately and told them he wanted to rob an armored car; they both testified that Pistone was serious in this regard, and both agreed to participate.
On July 26, King agreed with Pistone and Kelly to rob the guards of an...
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