U.S. v. Barone, 815

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation913 F.2d 46
Docket NumberNo. 815,D,815
PartiesUNITED STATES of America, Appellee, v. Renard BARONE, Defendant-Appellant. ocket 89-1516.
Decision Date31 August 1990

H. Elliot Wales, New York City, for defendant-appellant.

Michael L. Tabak, Asst. U.S. Atty., Southern District of New York City (Otto G. Obermaier, U.S. Atty., David E. Brodsky, Asst. U.S. Atty., Southern District of New York City, of counsel), for appellee.

Before FEINBERG, CARDAMONE, and MINER, Circuit Judges.

CARDAMONE, Circuit Judge:

Renard Barone appeals from a September 25, 1989 judgment of conviction entered after a four-day trial in the United States District Court for the Southern District of New York before Chief Judge Brieant and a jury. Barone was convicted on one count of tax evasion, in violation of 26 U.S.C. Sec. 7201 (1988), and two counts of perjury before a federal grand jury, in violation of 18 U.S.C. Sec. 1623 (1988). On this appeal appellant challenges his conviction on the grounds that the district court erred in allowing the government to admit into evidence a tape recording of a conversation between him and a government informant without presenting the informant as a witness at trial. Barone also contends that the district court erred in adding two points for two groups of offenses under Sec. 3D1.4 of the sentencing guidelines and abused its discretion in departing upwards from the applicable guidelines' range.

FACTS

Appellant is an attorney and former part-time local judge in Tuxedo, New York. In February 1987 he was approached by Frank Sacco, a dumpsite operator, Anthony Spadavecchia, the maintenance supervisor for the Ramapo Land Company, and Rudolph Frassinelli, the Town of Tuxedo Building Inspector. Spadavecchia and Frassinelli, acting as intermediaries, introduced Sacco to Barone who--with Sarkis Khourouzian--owned a 12-acre parcel of In March 1987 Sacco began his dumpsite operation on the Barone/Khourouzian property, and made the agreed weekly payments by check and in cash to Barone, who divided these sums as outlined above. The landfill operation created a terrible stench that led to protests from the residents of Tuxedo, and prompted the New York State Department of Environmental Conservation (DEC) to investigate. Six months after the landfill operation began, the site was closed by state court order. It apparently caused extensive environmental damage that will be costly to remedy.

undeveloped property in Tuxedo. Sacco wanted to lease this site for a landfill. The government's evidence at trial showed that Sacco in a preliminary discussion with Barone agreed to pay $5,000 per week to use the property as a landfill site. Khourouzian did not participate in the discussion but relied upon the opinion and representations of Barone, his attorney. At this meeting it was agreed that each week Sacco would pay Barone $500 by check and $4,500 in cash. Barone would tell Khourouzian that Sacco was only paying $500 for use of the property and divide that amount with Khourouzian. Barone would then split the covert cash payment of $4,500 with Frassinelli and Spadavecchia.

Barone did not report the more than $50,000 in cash that he received as his share of the weekly cash payments from Sacco on his 1987 tax return. On July 13, 1988 he appeared before a federal grand jury investigating Sacco. Upon being directly questioned whether he had received any cash payments other than the $500 weekly checks from Sacco, he repeatedly denied receiving such payments. He appeared before the same grand jury on August 5 and made the same denial.

On March 2, 1989 Barone visited Sacco, who was incarcerated at the Federal Correctional Institution in Otisville, New York while awaiting trial on charges relating to his operation of the dump. Unbeknownst to Barone, Sacco was cooperating with the government and had consented to have his conversation with Barone tape recorded. At the meeting Sacco said that he was going to inform the government about the cash payments. After initially denying knowledge of such payments, Barone became agitated, admitted that he had committed perjury before the grand jury, and pleaded with Sacco not to reveal them.

Before trial, the government informed the defense and the district court that because Sacco was suspected of having committed a murder, it did not intend to call him as a witness. Instead the government introduced a tape recording of the March 2 prison conversation between Sacco and Barone through the testimony of the Federal Bureau of Investigation agent who recorded it. The government also produced, inter alia, the testimonies of Spadavecchia and Frassinelli, both of whom testified as to the scheme they had with Barone to divide the $4,500 weekly cash payments from Sacco.

DISCUSSION
A. The Tape Recording

Appellant raises three issues on appeal. One concerns the receipt into evidence of the secretly recorded conversation he had with Sacco; the second relates to the sentencing court's addition of two points under Sec. 3D1.4 of the guidelines; and the third challenges the court's upward departure from the guidelines' range following his conviction for tax evasion and perjury.

We turn first to the challenge to his conviction on the ground that the government should not have been allowed to introduce the tape-recorded conversation without producing Sacco as a witness. Appellant contends that the introduction of the tape recording was erroneous for a number of reasons: it was made without his being aware of it and without a court order; it was not properly authenticated inasmuch as the government failed to call Sacco as a witness despite his availability; and the failure to call Sacco deprived Barone of his Sixth Amendment right to cross-examine Sacco regarding the statements he made on the recording, their context, and prior conversations between them. For the reasons that follow, we find all of these objections without merit.

Because the government made the recording with the consent and cooperation of Sacco there was no need to inform Barone or obtain a court order. 18 U.S.C. Sec. 2511(2)(c) (1988); United States v. White, 401 U.S. 745, 748-54, 91 S.Ct. 1122, 1124-27, 28 L.Ed.2d 453 (1971); Lopez v. United States, 373 U.S. 427, 437-40, 83 S.Ct. 1381, 1387-89, 10 L.Ed.2d 462 (1963); United States v. Coven, 662 F.2d 162, 173-74 (2d Cir.1981), cert. denied, 456 U.S. 916, 102 S.Ct. 1771, 72 L.Ed.2d 176 (1982). Further, the government is not required to call as a witness a participant in a recorded conversation in order to authenticate the recording; it may lay the foundation for the recording through the testimony of the technician who actually made it. See United States v. Fuentes, 563 F.2d 527, 532 (2d Cir.), cert. denied, 434 U.S. 959, 98 S.Ct. 491, 54 L.Ed.2d 320 (1977). A proper foundation for the Barone/Sacco recording was therefore laid through the testimony of the agent who operated the recording device.

With respect to Barone's Sixth Amendment contention, the accused's right to confront and cross-examine witnesses is not violated when the government fails to produce as a witness at trial an informant who is heard in a tape-recorded conversation with the defendant. So long as the informant's recorded statements are not presented for the truth of the matter asserted, but only to establish a context for the recorded statements of the accused, the defendant's Sixth Amendment rights are not transgressed. See, e.g., United States v. Stratton, 779 F.2d 820, 830 (2d Cir.1985), cert. denied, 476 U.S. 1162, 106 S.Ct. 2285, 90 L.Ed.2d 726 (1986); United States v. Murray, 618 F.2d 892, 900 (2d Cir.1980).

Chief Judge Brieant instructed the jury that the statements made by Sacco on the recording were not to be considered as evidence, but were only to be used to assist the jury in understanding Barone's responses. Moreover, Sacco was available and could have been called as a defense witness; appellant could have requested, in that case, to examine Sacco as a hostile witness. Appellant chose not to call Sacco, and the district court properly gave a missing witness instruction to the jury regarding both the government's and defendant's failure to produce him. See United States v. Torres, 845 F.2d 1165, 1169 (2d Cir.1988). Thus, there was no denial of Barone's Sixth Amendment right to confront Sacco.

B. Sentencing

Barone challenges the district court's calculation of the total offense level under the guidelines as well as its upward departure from the guidelines' range. Although the former argument is without merit we must remand for resentencing on the latter ground.

1. Total Offense Level

In calculating the total offense level of 14, the district court adhered to the analysis found in the presentence report prepared by the Probation Office. The presentence report divided the offense conduct into two groups: the first group included counts two and three (perjury), and the second comprised count one (tax evasion). See United States Sentencing Commission, Guidelines Manual Sec. 3D1.2 (Nov. 1989) (U.S.S.G.) ("All counts involving substantially the same harm shall be grouped together into a single Group."). Then, pursuant to U.S.S.G. Sec. 3D1.3, the report determined the offense level of the first group to be 12 and the offense level of the second group to be 10. Finally, under Sec. 3D1.4 the report calculated the total offense level of 14 by "taking the offense level applicable to the Group with the highest offense level"--here 12--and adding two levels. The two-level increase resulted from a two unit penalty; one unit given for "the Group with the highest offense level" and one unit given for the other Group that was "from 1 to 4 levels less serious." U.S.S.G. Sec. 3D1.4(a).

Barone's challenge to the separation of the offense conduct into two groups because "the tax evasion and perjury [counts] were really one and the same" is unpersuasive. The laws...

To continue reading

Request your trial
59 cases
  • US v. Cox, Crim. No. L-92-0371.
    • United States
    • U.S. District Court — District of Maryland
    • 31 Agosto 1993
    ...by a person not acting under color of law if one party to the communication consents to the monitoring. 10 See also United States v. Barone, 913 F.2d 46, 49 (2d Cir.1990) (if informer consents, court order or defendant's consent unnecessary); United States v. King, 587 F.2d 956, 962 (9th Ci......
  • U.S. v. Workman
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 27 Marzo 1996
    ...(Fourth Amendment does not prohibit use of recorded conversations where one party is complicit in the monitoring); United States v. Barone, 913 F.2d 46, 49 (2d Cir.1990); United States v. Coven, 662 F.2d 162, 173 & n. 8 (2d Cir.1981), cert. denied, 456 U.S. 916, 102 S.Ct. 1771, 72 L.Ed.2d 1......
  • U.S. v. Rommy
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 5 Noviembre 2007
    ...it with the alleged speaker." Id. 901(b)(5); see United States v. Tropeano, 252 F.3d 653, 661 (2d Cir.2001); United States v. Barone, 913 F.2d 46, 49 (2d Cir.1990). In this case, the district court acted well within its discretion in finding the challenged transcript adequately authenticate......
  • U.S. v. Longo
    • United States
    • U.S. District Court — Western District of New York
    • 5 Agosto 1999
    ...of the parties to the communication has given prior consent to the interception. 18 U.S.C. § 2511(2)(c); see also United States v. Barone, 913 F.2d 46, 49 (2d Cir. 1990). Neither the Fourth Amendment nor any federal statute prohibits law enforcement officials from recording or listening to ......
  • Request a trial to view additional results
2 books & journal articles
  • Sentencing
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • 1 Agosto 2022
    ...government property while attempting to f‌ly helicopter out of exercise f‌ield at state penitentiary). But see, e.g. , U.S. v. Barone, 913 F.2d 46, 51 (2d Cir. 1990) (upward departure unjustif‌ied because defendant’s tax evasion and perjury charges occurred months after harmful dump site cl......
  • § 8.01 Wiretap Act (Title III)
    • United States
    • Full Court Press Intellectual Property and Computer Crimes Title Chapter 8 The Electronic Communications Privacy Act (ECPA)
    • Invalid date
    ...2018) (citation omitted).[107] See, e.g., United States v. Johnson, 762 F. App'x 21, 25 (2d Cir. 2019) (citing United States v. Barone, 913 F.2d 46, 49 (2d Cir. 1990)).[108] Sussman v. American Broadcasting Cos., 186 F.3d 1200, 1202-03 (9th Cir. 1999) ("Where the taping is legal, but is don......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT