U.S. v. Minicone

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation26 F.3d 297
Docket NumberNo. 1049,D,1049
PartiesUNITED STATES of America, Appellant, v. Jack J. MINICONE, Jr., also known as Jake, Defendant-Appellee, Jack Zogby, also known as Turk; Anthony J. Inserra; Benedetto Carcone, also known as Benny; Russell E. Carcone, Defendants. ocket 93-1594.
Decision Date07 June 1994

Deborah Watson, U.S. Dept. of Justice, Washington, DC (Gary L. Sharpe, U.S. Atty. N.D.N.Y., Kevin E. McCormack, Asst. U.S. Atty., Syracuse, NY, of counsel), for appellant.

John A. Cirando, Syracuse, NY (Emil M. Rossi, Patrick J. Haber, Ivette Iza Zenner, Syracuse, NY, of counsel), for defendant-appellee.

Before: LUMBARD, FEINBERG and MINER, Circuit Judges.

MINER, Circuit Judge:

The Government appeals from a judgment entered on July 23, 1993 in the United States District Court for the Northern District of New York (Munson, J.), after a second remand, sentencing defendant-appellee Jack Minicone to a 379-month term of imprisonment on his January 1991 conviction for conducting the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(c), and conspiring to conduct and participate in the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(d). The relevant conduct bearing on the sentence included the 1976 murder of one Al Marrone. According to the sentencing guidelines, Minicone should have been sentenced to a 480-month term of imprisonment. The district court's downward departure was based on a combination of Minicone's minor role in the Marrone murder and the misconduct of the murder victim.

For the reasons that follow, we vacate the sentence imposed by the district court and remand the case with instructions that the district court impose the statutory maximum prison term of 480 months.

BACKGROUND

This appeal provides us with the opportunity to write the third and final chapter in what has become the four-year sentencing saga of Jack Minicone. Because the extensive factual background of this case is set forth in our two previous opinions, United States v. Minicone, 960 F.2d 1099 (2d Cir.) ("Minicone I "), cert. denied, --- U.S. ----, 112 S.Ct. 1511, 117 L.Ed.2d 648 (1992) and United States v. Minicone, 994 F.2d 86 (2d Cir.1993) ("Minicone II "), familiarity with which is presumed, we recite only those facts relevant to the disposition of this appeal.

Following a jury trial in the United States District Court for the Northern District of New York, Minicone was convicted in January of 1991 of conducting the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(c) (Count One), and of conspiring to conduct and participate in the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(d) (Count Two). These convictions were based on evidence at trial that Minicone and co-defendants Jack Zogby, Anthony Inserra, Benedetto Carcone, and Russell Carcone were involved in a wide-spread criminal enterprise, centered in Utica, NY, that spanned the period between the years 1973 and 1989 and included extortion, loansharking, illegal gambling, trafficking in stolen property and murder.

Among the activities in which Minicone was implicated was the 1976 murder of Al Marrone. Minicone, Zogby, and Inserra planned to kill Marrone shortly after his release from prison because he had threatened to kill them and their co-conspirator, Anthony Falange, and also because they feared that Marrone planned to take over their territory. The three began plotting the murder six months in advance. They interviewed several hitmen and ultimately hired Edward Noel to assist in the murder. Minicone, Zogby, Inserra and co-conspirator Dennis Pritchard met with Noel early in the fall of 1976 to plan the murder. On the night of October 2, 1976, while Minicone and Inserra kept their distance and monitored a police Minicone also was involved in the attempted murder in 1983 of Thomas Bretti. Minicone had been assigned to kill Bretti and attempted to do so by planting a bomb on the front steps of Bretti's home. Bretti was seriously and permanently injured when the bomb exploded. Minicone also participated actively in other aspects of the illegal enterprise: he ordered Pritchard to steal money from two local bookmakers in 1973; regularly engaged in the extortion of local bookmakers; received bets and collected money on behalf of a bookmaking operation; actively engaged in loansharking; and conspired with others to kill Pritchard after Pritchard was suspected of being an informant. Although he started out as a low-level figure in the enterprise in the early 1970s, Minicone gained prominence and was working directly for the "boss," Anthony Falange, by the late 1980s.

scanner, Noel, Zogby and another man shot and killed Marrone on the sidewalk in front of his girlfriend's home.

In the Pre-sentence Report, the Probation Department calculated Minicone's offense level to be 43 and his Criminal History Category ("CHC") to be II, resulting in a sentence of life imprisonment. However, the statutory maximum that Minicone could receive for the offenses of conviction was a 480-month term of imprisonment. See 18 U.S.C. Sec. 1963(a). Accordingly, the appropriate sentence was 480 months. In his sentencing memorandum to the district court, Minicone requested a downward adjustment pursuant to U.S.S.G. Sec. 3B1.2 based on his minor or minimal role in the Marrone murder. He also requested a downward departure pursuant to section 5K2.10 on the ground that Marrone's wrongful conduct, i.e., his threats to murder Minicone and other members of the conspiracy, contributed significantly to provoking the murder.

At the original sentencing proceedings in December of 1990 and January of 1991, the district court denied Minicone's requests for an adjustment pursuant to section 3B1.2 and for a downward departure pursuant to section 5K2.10. The district court found that Minicone's offense level of 43 and his CHC of II were calculated properly. The district court nevertheless departed from the Guidelines in order to achieve sentencing parity with Minicone's co-defendants, who had been sentenced to terms of imprisonment of between 18 months and 240 months. The district court sentenced Minicone to consecutive terms of imprisonment of 151 months on Count One and 240 months on Count Two, for a total of 391 months.

Minicone and his co-defendants appealed their convictions and sentences to this Court and the Government cross-appealed on the issue of Minicone's sentence. We affirmed the convictions, vacated Minicone's sentence and remanded to the district court "for the limited purpose of resentencing him in accordance with the Sentencing Guidelines." Minicone I, 960 F.2d at 1105. On the appeal, Minicone had identified as error, among other things, the district court's failure to reduce his offense level pursuant to section 3B1.2 for being a minor or minimal participant in the Marrone murder and its failure to depart downward pursuant to section 5K2.10 for Marrone's wrongful conduct. Addressing these contentions, we stated: "We hold that Minicone's claims, including, among others, that he was a minor or minimal participant in the crimes charged, are without merit." Id. at 1110. Addressing the Government's cross-appeal, we held that the district court had abused its discretion in departing downward because disparity in sentence between co-defendants is not a proper basis for such a departure. Id. at 1111-12.

On remand, Minicone did not present any new evidence. Nevertheless, the district court reconsidered Minicone's original requests for a section 3B1.2 adjustment and a section 5K2.10 departure. The court denied the section 5K2.10 departure, but after reviewing the case, found that a two-level reduction in Minicone's offense level was warranted pursuant to section 3B1.2(b) for his minor role in the Marrone murder. The court calculated Minicone's adjusted offense level to be 42 which, combined with a CHC of II, resulted in a Guidelines range of 360 months to life. The court sentenced Minicone to 379 months, one year less than his original sentence. The Government appealed again.

On the second appeal, we concluded that the district court had violated the law of the case rule by reconsidering Minicone's role in the Marrone murder after the argument had been rejected on appeal. Minicone II, 994 F.2d at 88-89. We found no support for Minicone's contention that, in disposing of the first appeal, we had not determined the extent of his participation in the murder of Marrone. Moreover, we found no change in the law or facts that would justify reconsideration of our earlier ruling in Minicone I. We remanded "for resentencing in a manner consistent with this opinion and our opinion in Minicone I." Id. at 89.

At the second re-sentencing proceeding conducted on July 21, 1993, Minicone again urged a downward departure pursuant to section 5K2.10 for Marrone's alleged misconduct. Over the Government's objection, the district court once again departed downward from the Guidelines range and sentenced Minicone to consecutive terms of imprisonment of 139 months on Count One and 240 months on Count Two, resulting in a total sentence of 379 months. The district court found that Marrone's wrongful conduct was "insufficient to warrant departure by itself" and recognized that "the [District] Court and the Circuit Court has [sic] already ruled or affirmed that there is no one factor which might be considered alone to justify a departure." Nevertheless, the district court found that a "combination of factors" justified a departure. The district court opined as follows:

[T]he Court believes [Minicone's] role in the murder of Marrone, while it may not be distinguishable enough from the roles of the other defendants in this case to warrant a...

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