U.S. v. DeRiggi, 485

• Decision Date: 08 December 1995
• Docket Number: D,No. 485,485
• Citation: 72 F.3d 7
• Parties: UNITED STATES of America, Appellee, v. Nicola DeRIGGI, Defendant-Appellant. ocket 95-1237.
• Court: U.S. Court of Appeals — Second Circuit

Page 7

72 F.3d 7

UNITED STATES of America, Appellee, v. Nicola DeRIGGI, Defendant-Appellant.

No. 485, Docket 95-1237.

United States Court of Appeals, Second Circuit.

Argued Nov. 29, 1995.

Decided Dec. 8, 1995.

Gordon Mehler, Assistant United States Attorney, Brooklyn, NY (Zachary W. Carter, United States Attorney for the Eastern District of New York, and David C. James, Assistant United States Attorney, Brooklyn, NY, on the brief) for Appellee.

Myles H. Malman, Whisenand & Turner, Miami, FL, for Defendant-Appellant.

Before: ALTIMARI, JACOBS and CABRANES, Circuit Judges.

PER CURIAM:

The facts of this case are set out in detail in prior opinions of this court, United States v. DeRiggi, 45 F.3d 713, 715-16 (2d Cir.1995) ("DeRiggi I "), and the District Court for the Eastern District of New York (Weinstein, J.). United States v. Abbadessa, 848 F.Supp. 369, 376-78 (E.D.N.Y.1994). In summary, defendant Nicola DeRiggi was the supervising inspector of the Taxi and Limousine Commission's inspection station in Woodside, Queens, New York. Corruption was rampant at the facility. Bribes were paid to line inspectors and their supervisors to rig inspection outcomes and to ignore inspection failures.

DeRiggi was convicted of conspiracy to violate the Hobbs Act, 18 U.S.C. Sec. 1951. In March and April 1994, the district court sentenced DeRiggi and 29 of his coconspirators. In its opinion explaining the sentences, the court announced that it was not bound by the Sentencing Guidelines. Abbadessa, 848 F.Supp. at 380-81. The court sentenced DeRiggi to 36 months in prison, two years of supervised release, a restitution payment of $10,000, a fine of $7,500, and a special assessment of $50. Id. at 384.

The Government appealed the sentences of four of the defendants (DeRiggi not among them), arguing that the court erred by not sentencing them under the Guidelines. In DeRiggi I, we reversed the district court's ruling, vacated the sentences of the four defendants, and remanded for new sentencing. The Government and DeRiggi then agreed that he too should be resentenced. In United States v. Deriggi, 54 F.3d 765 (2d Cir.1995) ("Deriggi II ") (unpublished summary order), we vacated DeRiggi's sentence and remanded for resentencing.

The district court resentenced DeRiggi on April 19, 1995 to the same sentence originally imposed. The court stated that the applicable offense level for DeRiggi was 19, that his sentencing range was 30 to 37 months, and that a 36-month prison sentence was therefore consistent with the Guidelines. DeRiggi's offense level was calculated as follows: a base offense level of ten for his crime, a two-level enhancement because he accepted more than one bribe, an eight-level enhancement because of the bribe amounts, a four-level enhancement for his role as an organizer or leader of the conspiracy under Sec. 3B1.1(a) of the Guidelines, a three-level decrease for acceptance of responsibility, and a two-level decrease for cooperating with the government. On appeal, DeRiggi challenges only the four-level enhancement based on his role as an organizer or leader of the conspiracy.

The district court's assessment of this four-level enhancement was not clearly erroneous, and we therefore affirm. See United States v. Gomez, 31 F.3d 28, 31 (2d Cir.1994). At the resentencing hearing, the Government made a proffer concerning DeRiggi's role in the conspiracy. DeRiggi declined the opportunity to present facts in opposition to the Government's proffer, and waived a Fatico hearing. DeRiggi moved to strike the four-level enhancement, suggesting that a three-level or two-level enhancement under Sec. 3B1.1(b) or (c) was more appropriate. The court denied the motion, explaining that "it's absolutely clear that this defendant under the guidelines must be considered as a chief organizer of a criminal activity." The evidence supported this ruling.

While DeRiggi may not have been the scheme's inventor or originator, he was clearly one of its leaders. The district court emphasized that DeRiggi was the highest ranking authority at the inspection station, and exercised control over it. Regardless of DeRiggi's exact role in the conspiracy, his place in the inspection station hierarchy together with his participation in the conspiracy necessarily made him a leader in the scheme. The district court recognized that a corrupt executive who is seen to be corrupt by subordinates leads by example. DeRiggi's participation in the scheme allowed his subordinates to understand that bribe-taking was an institutional practice, and that they had high-ranking institutional protection for their jobs and careers notwithstanding their corruption. DeRiggi's influence would tend in this way to erode the inhibitions and scruples of...