925 F.2d 641 (3rd Cir. 1991), 90-3142, United States v. Inigo

Docket Nº:90-3142, 90-3151 and 90-3152.
Citation:925 F.2d 641
Party Name:UNITED STATES of America, Appellee, v. Antonio Ruben INIGO, Appellant. UNITED STATES of America, Appellee, v. Raul Armando GIORDANO, Appellant. UNITED STATES of America, Appellee, v. Bruno SKERIANZ, Appellant.
Case Date:February 01, 1991
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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925 F.2d 641 (3rd Cir. 1991)

UNITED STATES of America, Appellee,

v.

Antonio Ruben INIGO, Appellant.

UNITED STATES of America, Appellee,

v.

Raul Armando GIORDANO, Appellant.

UNITED STATES of America, Appellee,

v.

Bruno SKERIANZ, Appellant.

Nos. 90-3142, 90-3151 and 90-3152.

United States Court of Appeals, Third Circuit

February 1, 1991

Argued Aug. 30, 1990.

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Raymond M. Radulski (argued), Wilmington, Del., for appellant Antonio Ruben Inigo.

John S. Malik (argued), Wilmington, Del., for appellant Raul Armando Giordano.

Richard A. Zappa, Melanie K. Sharp (argued), Young, Conaway, Stargatt & Taylor, Wilmington, Del., for appellant Bruno Skerianz.

William C. Carpenter, Jr., Edmond Falgowski (argued), Dist. Court of Delaware, Office of U.S. Atty., Wilmington, Del., for appellee.

Before HUTCHINSON, NYGAARD and ROSENN, Circuit Judges.

OPINION

HUTCHINSON, Circuit Judge.

In these three consolidated appeals, Antonio Inigo (Inigo), Raul Giordano (Giordano) and Bruno Skerianz (Skerianz) seek to overturn their Hobbs Act convictions for attempting and conspiring to extort $10,000,000.00 from E.I. DuPont de Nemours and Company, Inc. (DuPont), in violation of

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18 U.S.C.A. Sec. 1951 (West 1984). After a jury found them all guilty of both charges, the United States District Court for the District of Delaware sentenced Skerianz to two concurrent seventy-eight-month terms of imprisonment and three years of supervised release, and ordered him to pay a $100.00 special assessment. Giordano and Inigo were each sentenced to two concurrent forty-two-month terms and three years of supervised release and were also ordered each to pay a $100.00 special assessment.

They all claim that there is insufficient evidence to sustain their convictions, that the blackmail sentencing guideline rather than the extortion sentencing guideline should have been applied and that their motions for severance and change of venue were erroneously denied.

Skerianz also argues independently that the documents seized at the time of his arrest should have been suppressed, the testimony of his two former attorneys was inadmissible because it was protected by the attorney-client privilege, he was entrapped, the sentencing guideline enhancing his sentence because he was the organizer or leader of criminal activity did not apply to him and the district court erred in relying on hearsay evidence in determining his sentence.

Additionally, Giordano and Inigo both contend, independently of Skerianz, that their sentences should have been reduced because they accepted responsibility for their acts, they were minimal rather than minor participants within the meaning of the sentencing guidelines and because the amount of money involved in the crime that the court held them responsible for was too high.

Finally, Inigo argues that certain testimony by Maria deBianchini (deBianchini) regarding a dream that he had and the theft of documents by him from DuPont's Ducilo plant in Mercedes, Argentina should have been ruled inadmissible.

While there was substantial evidence to support Skerianz's convictions, we hold that the evidence against Giordano and Inigo was insufficient as to the crimes charged against them in the indictment. We will therefore reverse their convictions. Reversal on this ground eliminates the necessity of considering their other contentions. The only one of Skerianz's other claims that has merit is his contention that the blackmail, not the extortion guideline governs his case. We will therefore remand Skerianz's case to the district court for resentencing.

I. FACTS

DuPont is the world's largest producer of spandex fiber, which it markets under the trade name, Lycra. Because of superior technology in this highly complex technical area, it enjoys a competitive advantage in the marketplace for spandex. It manufactures Lycra in eight plants worldwide, one of which is a wholly owned subsidiary, Ducilo. Ducilo has a plant in Mercedes, Argentina.

In 1987, Skerianz, who had been in the textile industry for many years, became interested in manufacturing spandex. That November he offered his brother Carlos Skerjanc (Carlos), a DuPont employee assigned to the Engineering Department of the Ducilo plant, a job in that field. Carlos declined but gave Skerianz the names of some DuPont employees who might be interested in working for him. One of them was Jose Petrosino. 1 Carlos told his other brother Ferri Scherianz (Ferri), DuPont's Director of Manufacturing for Argentina, about Skerianz's proposal. Ferri advised Carlos to tell other DuPont officials about Skerianz's offer. 2

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Skerianz formed a partnership named PNB to pursue a spandex venture with Giuseppe Casucci (Casucci) and Fernando Riva (Riva). In the spring of 1988, Skerianz and Riva interviewed some Ducilo plant employees for positions with PNB. Among the DuPont employees interviewed were Giordano, Inigo and Petrosino. They were then employed in supervisory technical positions at the Ducilo plant. We will collectively refer to them as the "technicians." Inigo told his girlfriend, deBianchini, 3 that Skerianz wanted him to help build and start a Lycra plant and had offered him a salary of $4,000.00 per month. The other technicians were apparently given similar offers, and each eventually accepted his offer.

In August of 1988, Inigo resigned from his position as maintenance supervisor at Ducilo. In the next few months, Giordano resigned from his position as maintenance supervisor there and Petrosino resigned his position as a process engineer. All of them had signed agreements not to compete with DuPont when they first started to work for DuPont, and Giordano and Inigo signed reaffirmations of these agreements when they left the Ducilo plant. All three technicians accepted contracts to work for Skerianz's company, PNB, in Italy. None disclosed this to DuPont, and Giordano and Inigo gave DuPont false reasons for leaving. DeBianchini, secretary to the superintendent of the Ducilo plant and its document librarian, also quit at about the same time to join Inigo in Italy. At trial, deBianchini testified that she heard the men talk about stealing DuPont's Lycra technology so they could take it with them.

In November, 1988, Isaac Assa (Assa), owner of Lycratex, a Mexican company doing business with DuPont and Skerianz, contacted DuPont. Assa informed DuPont that he had acquired Lycra technology, through Skerianz and current and former DuPont employees, and was planning to produce Lycra with Skerianz's assistance. He asked DuPont for $20,000,000.00 and other compensation to squelch the project and return the technology. DuPont persuaded Assa to stop doing business with Skerianz.

The technicians, who initially understood that they would work in Mexico, were informed that the Mexican Lycra project had fallen through, but they would go on working on a similar project for the Radici Company, an Italian textile concern. Learning of this, DuPont also contacted Radici and persuaded it too to stop doing business with Skerianz. In December, 1988, Skerianz informed the technicians that the Radici project would be postponed, and that they should take a vacation. When they came back to work in early January, it was at Cassuci's house.

DuPont officials first contacted the Federal Bureau of Investigation (FBI) and the United States Attorney's Office about Skerianz's Lycra activity shortly before Thanksgiving of 1988. The FBI took no action as a result of this contact. Skerianz was then contacted by his brother Ferri. Ferri was acting on behalf of DuPont at the behest of Salim Ibrahim (Ibrahim), DuPont's World-Wide Director of Lycra. After telling Ferri that he would only talk about the technology for $10,000,000.00, Skerianz agreed to meet with DuPont officials in Wilmington, Delaware.

Skerianz, along with Casucci, met with his lawyer, John Byrne (Byrne), in the morning on December 20, 1988, the day of Skerianz's first meeting with DuPont. They discussed Skerianz's proposed Lycra project and Skerianz told Byrne that he had hired three former DuPont employees. Later Skerianz and Byrne, but not Casucci, met with DuPont officials. Ibrahim and Paul Gillease, DuPont's Director of Textile Operations, represented DuPont, and DuPont secretly taped the meeting. During the meeting Skerianz indicated that the technology was his own and that he could either use it himself or sell it to certain interested buyers. He denied possession of any DuPont proprietary information and

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also denied employing recent DuPont employees. He proposed selling the technology to DuPont and providing non-competition agreements from everyone in his company for $10,000,000.00 and a substantial Lycra contract. No agreement was reached, but a follow-up meeting was scheduled for January.

Shortly after this meeting with DuPont Byrne withdrew as Skerianz's counsel. Byrne testified at trial that he did not know that Skerianz was using technical documents stolen from DuPont and that he never inspected any of Skerianz's technical documents. Byrne testified that he believed that Skerianz and Casucci were a team, and he was surprised that only Skerianz attended the December 20th meeting. Inigo and Giordano were under the impression that Skerianz was sailing or in Mexico at the time that the first Wilmington meeting took place.

In early January, 1989, before the next scheduled meeting between DuPont and Skerianz in Wilmington, the FBI opened a case file on Skerianz and assigned it to Special Agent Michael Kirchenbaurer. On January 9, the second secretly taped meeting took place, this time at the Hotel DuPont in Wilmington....

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