United States v. Picardi

• Decision Date: 19 February 2020
• Docket Number: No. 19-1043,19-1043
• Citation: 950 F.3d 469
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Salvatore PICARDI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

950 F.3d 469

UNITED STATES of America, Plaintiff-Appellee,

v.Salvatore PICARDI, Defendant-Appellant.

No. 19-1043

United States Court of Appeals, Seventh Circuit.

Argued September 4, 2019

Decided February 19, 2020

David E. Bindi, Debra Riggs Bonamici, Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Plaintiff-Appellee.

Andrew Finke, James G. Vanzant, Attorneys, BLAINE & VANZANT LLP, Evanston, IL, Jeffrey B. Steinback, Attorney, JEFFREY B. STEINBACK, LLC, Roscoe, IL, for Defendant-Appellant.

Before Rovner, Scudder, and St. Eve, Circuit Judges.

Rovner, Circuit Judge.

A jury found Salvatore Picardi guilty of one count of embezzlement by an officer or employee of the United States, in violation of 18 U.S.C. § 654. The district court sentenced Picardi to a term of eight months’ imprisonment and a fine of $100,000. On appeal, Picardi objects to the amount of the fine and to the adequacy of the district court’s explanation for imposing an above-Guidelines fine. Because Picardi waived any argument regarding the fine, we dismiss the appeal.

I.

Picardi was a United States Customs and Border Protection ("CBP") Officer working at the international terminal of O’Hare International Airport in Chicago. His assignment there was to screen passengers arriving from locations outside the country prior to their entry into the United States. On February 22, 2016, he was working in this capacity when he decided to steal money from a traveler who had been referred for a secondary inspection. Picardi’s behavior that day contributed significantly to the sentence that the court imposed, but this appeal ultimately turns on waiver. To provide background for the waiver issue, we will briefly summarize the events of that day.

CBP Officer Federico Angulo was interviewing Ms. Chen, a Chinese woman who spoke no English, when Picardi volunteered to help with the inspection. Within moments of intervening, Picardi asked how much money Ms. Chen was carrying, demanded to see the money, learned that she was carrying $5,000 in $100 bills, and then took her purse and suitcase for a search while Officer Angulo and an interpreter interviewed Ms. Chen. Instead of searching the bags in the view of a security camera, Picardi placed them behind a desk that blocked the camera, removed the money and hid it on his person.

After Officer Angulo cleared Ms. Chen to enter the country, he directed her to wait in the hallway with her belongings as he completed the necessary paperwork. Ms. Chen soon discovered that the money was no longer in her purse. A frantic search began. The interpreter, the interpreter’s supervisor, Officer Angulo, another CBP officer and a CBP supervisor all participated in the search, as did Picardi. When none of the searchers found anything in Ms. Chen’s belongings or in the room where the interview had taken place, the CBP supervisor conducted a body search of Ms. Chen. At that point, a watch commander was enlisted to review security camera footage of the interview room. While that review was taking place, the bags were moved to another room and the officers and interpreters continued the search through Ms. Chen’s belongings. Picardi paced in and out of the new search area six times. After the sixth exit and entry, he picked up an item of Ms. Chen’s clothing, turned away from a security camera and shoved the money into the clothing. He then tried to convince the several people who had searched that very item of clothing multiple times that the money had been there all along. He claimed it had fallen into the lining of the clothing through a hole in a pocket, and he then used a knife to cut the lining to support his story. Facing an incredulous group, he then tried to cast blame on Ms. Chen, suggesting that she was trying to "scam" them in order to get more money. The video evidence, of course, pointed to Picardi as the only person to have access to the money when it disappeared.

Picardi was charged with embezzlement by an officer or employee of the United States, in violation of 18 U.S.C. § 654. He remained free on bond pending trial. After a jury found him guilty, his bond was modified to require home confinement. While out on bond, Picardi harassed his estranged wife using electronic and other means. In addition to his own harassing actions, he engaged a private detective in his efforts to intimidate his wife, falsely telling the man that he was a customs officer conducting a legitimate investigation. After Picardi was convicted, he enlisted a friend to approach Ms. Chen’s adult daughter to persuade her to convince her mother to recant her testimony. Ms. Chen’s daughter instead contacted law enforcement. Because of this conduct, the court revoked Picardi’s bond three months before his sentencing hearing and he was taken into custody.

The Presentence Investigation Report ("PSR") was prepared approximately one year prior to Picardi’s sentencing hearing, before some of the conduct that led to bond revocation came to light. The PSR calculated a base offense level of six, and recommended a two-level enhancement for abuse of trust under Sentencing Guideline 3B1.3, for a total of eight. With a Criminal History Category I, that calculation resulted in a Guidelines range of zero to six months’ imprisonment and a fine between $2,000 and $20,000. The probation officer also submitted a Sentencing Recommendation which, like the PSR, had been drafted a year before the sentencing hearing. The probation officer advocated for a prison term at the high end of the range and a fine of $100,000, noting Picardi’s capacity to pay a fine in that amount. Calling attention to the many aggravating factors in Picardi’s case, the probation officer remarked that, although the Guidelines failed to account for the serious nature of Picardi’s offense, she had considered other Guideline enhancements and found none applicable. R. 57, at 2.

At the sentencing hearing, both defense counsel and the defendant confirmed that they had read and discussed the PSR and the Sentencing Recommendation. Defense counsel offered one correction to the PSR regarding Picardi’s participation in mental health counseling, which the court accepted. The government indicated that it was requesting two enhancements not mentioned in the PSR. The court then adopted the PSR except for the sentencing calculation.

The government proposed two two-point enhancements: one for vulnerable victim under Guideline section 3A1.1(b)(1), and one for obstruction of justice under Guideline section 3C1.1. The court rejected the vulnerable victim enhancement but agreed that a two-point obstruction enhancement was appropriate based on Picardi’s use of a friend to attempt to influence a witness to recant testimony prior to sentencing. That resulted in an offense level of ten which carried a revised Guidelines range of six to twelve months’ imprisonment and a fine of $4,000 to $40,000. The court then turned to the section 3553(a) factors, noting that it would consider under those factors whether a sentence outside the Guidelines range was appropriate.

The government argued for a prison sentence within the guidelines range of six to twelve months, mentioning several aggravating factors and a few mitigating factors. The government offered no argument regarding the recommended fine. Defense counsel emphasized how much Picardi had already suffered for his actions. He felt terrible guilt over the death of his father from a stroke that he suffered after Picardi was charged with this crime. Picardi’s wife divorced him after he committed the offense, and he was unable to return to any job in law enforcement with a felony conviction on his record. Defense counsel also advised the court that the conviction might result in Picardi losing his real estate license. Counsel also noted mitigating factors, including Picardi’s participation in mental health treatment, and his commitment to ceasing harassment towards his ex-wife.

But the crux of counsel’s argument was how much Picardi had suffered in prison during the three months following the revocation of bond. Noting that he knew what the government had asked for in terms of sentencing and what the probation department had recommended, counsel asked the court to limit the sentence to time served, arguing that Picardi had experienced significant difficulties in prison. R. 108, Sentencing Transcript, at 41–50 (hereafter "Sent. Tr."). At first, the other inmates misidentified him as a pedophile and threatened to physically harm him. Once the inmates learned that he was a law enforcement officer, they threatened him and labeled him a snitch. He had trouble eating and sleeping, and had lost a significant amount of weight. He became hyper-vigilant, and counsel described him as "terrified." Counsel continued:

And I think that in the 90 days he has been in jail, he has experienced things that would rival any of the deeper recesses of Dante’s hell. I ask your Honor to please cut short the abject terror of his life circumstances and say, while clearly more would be appropriate, what would be sufficient, but not greater than necessary.

Sent. Tr. at 48. Finally, counsel urged the court to consider imposing a fine rather than additional time in prison:

And if there is a balancing consideration, to please strongly consider answering the question of what is sufficient, with the response that the time he has already served in punishment is enough. There are other ways to punish an individual. This is a crime of taking someone else’s money. Then a response in addition to the custody that he has served is one that has been recommended by the probation department, which is a fine.

Money this man can make honestly, legitimately, and has his whole life. His freedom and liberty has caused him to dwindle away physically and emotionally to a point where I fear for him. Not because I hope your Honor will give him a lighter sentence, but because I truly do. And I ask your Honor to consider that.

Sent. Tr. at 50.

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