U.S. v. Friedman, s. 617
| Citation | 998 F.2d 53 |
| Decision Date | 10 June 1993 |
| Docket Number | D,Nos. 617,446,467,s. 617 |
| Parties | UNITED STATES of America, Appellee-Cross-Appellant, v. Felix FRIEDMAN, Lawrence Tinnirello, Paul Tinnirello, Lorenzo Gregory, a/k/a "Fat Larry," Frank Mucchiello, a/k/a "Frankie Mooch," Joseph DiSomma, a/k/a "Joe Diamonds," Francis Tinnirello, Michael Pugliese, and Charles Lachterman, a/k/a "Charlie Lucky," Defendants, Charles Lachterman, Defendant-Appellant, and Joseph DiSomma, Defendant-Appellant-Cross-Appellee. ockets 92-1373, 92-1274, 92-1306. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
James B. Comey, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty. for the S.D.N.Y., Andrew C. McCarthy, Asst. U.S. Atty., New York City, of counsel), for appellee-cross-appellant.
Linda Imes, Richards Spears Kibbe & Orbe, New York City (Michele R.M. Campbell, Debevoise & Plimpton, New York City, of counsel), for defendant-appellant Charles Lachterman.
Joann Harris, New York City, for defendant-appellant-cross-appellee Joseph DiSomma.
Before: OAKES and WINTER, Circuit Judges, and CONBOY, * District Judge.
This appeal by Charles Lachterman and Joseph DiSomma 1 involves questions regarding the applicability of U.S.S.G. § 2X1.1 to Hobbs Act convictions, a sentencing court's degree of discretion in applying an obstruction of justice enhancement when the jury has necessarily concluded that the defendant lied at trial, and the proof sufficient to establish that predicate acts are related to a criminal RICO enterprise.
We affirm in part, vacate in part, and remand for resentencing.
These appeals arise from convictions following a government investigation into the criminal activities of the "Friedman/Tinnirello Organization." Viewing the evidence in the light most favorable to the government, the following facts were established at trial. Since 1983, the Friedman/Tinnirello group, operating from a variety of retail stores and jewelry booths in Manhattan's 47th Street jewelry district, fenced hundreds of thousands of dollars worth of stolen personal property and jewelry. Members of the group also maintained a steady supply of jewelry through a wide variety of robberies, burglaries, and fraudulent schemes. The nucleus of the group consisted of three brothers, Lawrence, Paul, and Francis Tinnirello, as well as Felix Friedman, Joseph DiSomma, and Lorenzo Gregory. This opinion concerns only the activities of Joseph DiSomma (Tinnirello's cousin) and Charles Lachterman, see Note 1 supra, who were convicted for their roles in the organization.
In the fall of 1989, Lawrence Tinnirello, Lawrence Taylor, and Richard Skowronski conspired to rob the Telco Jewelry store where Skowronski worked. United States v. Skowronski, 968 F.2d 242 (2d Cir.1992). The government alleges that Joseph DiSomma, Skowronski's closest friend, was part of this conspiracy and was instrumental in its planning. The store carried between $200,000 and $300,000 in inventory and was equipped with a safe and a metal roll-down gate which covered the storefront at closing. Between Thanksgiving and Christmas, the period of the conspiracy, the store also employed security guards during the evening hours of business. The plan called for the robbers to enter the Telco store after the exterior window gates had been closed for the day and "clean ... the whole ... place out."
Government wire-taps revealed that on November 18, Tinnirello and Taylor discussed the proposed robbery. Tinnirello indicated that he would "check ... out" the Telco store, pretending to be an ordinary customer, and that they would "move" if the store contained at least $200,000 in jewelry. Two days later, Tinnirello left a message on DiSomma's answering machine saying that he wanted "to meet Richie [Skowronski] this week and take a look at that thing." DiSomma returned the call, saying that he had spoken with Skowronski about the plan. The two agreed that they should meet with Skowronski after Thanksgiving. On November 27, Tinnirello informed DiSomma that he and Taylor would check out the Telco store the following day, but would warn Skowronski of their planned visit. DiSomma added that Skowronski should not greet them, thereby revealing that he knew them, but should just "be cool" when they arrived at the store.
On Thanksgiving morning, Tinnirello recruited Charles Lachterman, a professional thief, for the robbery, saying:
I got an inside guy that works somewhere. The same thing that me and you are into.... Its just him and two girls, and he wants to take the whole ... place.... I already, right, have two guys.... Now my friend works in there. You understand? So it's a setup. Ya put the ... gate down, ya take the showcases, the ... vault, and leave.
On December 13, attempting to prevent the robbery, FBI agents visited Skowronski, accused him of planning to rob the Telco store, and implied that one of his associates had informed on him. Skowronski asserted his innocence, denied knowledge of any wrongdoing, and the agents left. Skowronski drove to a phone booth, made three phone calls, and returned home. Shortly thereafter, DiSomma arrived at Skowronski's residence. The two drove to a pay phone booth and called Tinnirello. DiSomma told Tinnirello that "[w]e got trouble" and urged him to "go out to a pay phone and call me back." Tinnirello protested that he had no car available and asked what was wrong. DiSomma answered that there was trouble for them and Skowronski, but told Tinnirello to keep quiet. When Tinnirello insisted his phone was not tapped and pressed DiSomma for details, DiSomma refused to disclose more, saying only that the situation was serious and that Tinnirello must get to a pay phone.
Later that day, DiSomma and Tinnirello spoke of the FBI's visit to Skowronski and the possibility that Skowronski would cooperate with the government. DiSomma argued that Skowronski would not cooperate because he is a "stand-up kid." DiSomma later advised Tinnirello that he had taken care of Skowronski's nervousness. Two days later, DiSomma told Tinnirello in a coded conversation that Skowronski's co-worker at the Telco Jewelry store had been contacted by the FBI but that "everything is good." Tinnirello conveyed that DiSomma should dispose of his firearm, and DiSomma replied that both he and Skowronski already had.
DiSomma was later arrested and charged with RICO conspiracy and substantive offenses, a Hobbs Act violation, and mail fraud. A jury convicted him only on the Hobbs Act charge. He attacks this conviction as unsupported by the evidence, violative of his due process rights, and improper because the lower court should have dismissed the charge for lack of venue. He also challenges the sentencing court's three-point addition for possession of a firearm in connection with the robbery conspiracy. We affirm.
The government cross-appeals DiSomma's sentence, arguing that the district court improperly applied U.S.S.G. § 2X1.1 and improperly considered the obstruction of justice enhancement as discretionary. We agree and remand for resentencing.
DiSomma argues that the evidence does not support his conviction under the Hobbs Act. First, he claims that there is insufficient evidence of any conspiracy at all. The wiretaps, in his view, record only Tinnirello's rambling, incoherent monologues and not a conspiracy joined by others. He next argues that, even if Tinnirello and others were planning a robbery, there is insufficient evidence that he was involved. DiSomma characterizes his phone calls to Tinnirello as part of his effort to help his cousin through a difficult time. As for the references to "the thing" involving Telco Jewelry, DiSomma claims that it is just as likely that he was simply directing Tinnirello and Taylor to Telco in order to facilitate a legitimate jewelry purchase. He claims Taylor was looking for a diamond engagement ring and that he referred him to Skowronski for the purchase. He also argues that his incriminating phone calls to Tinnirello following the FBI visit may be equally well understood as reflecting his concern over unrelated schemes.
DiSomma mistakes our task on appeal. DiSomma's testimony was submitted to the jury who weighed it and found it wanting. It is not for us to weigh, as DiSomma would have us, "competing inferences and explanations" about which explanation is more likely. United States v. Stanley, 928 F.2d 575, 577 (2d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 141, 116 L.Ed.2d 108 (1991). We cannot reverse a conviction merely because the defendant's exculpatory account is plausible. Rather, we must affirm so long as, drawing all inferences in the government's favor, a reasonable jury might fairly have found DiSomma guilty beyond a reasonable doubt. See United States v. Buck, 804 F.2d 239, 242 (2d Cir.1986). The evidence here was sufficient.
First, we have already rejected Skowronski's challenge as to the sufficiency of the evidence as to the Telco conspiracy. Skowronski, 968 F.2d at 247-48. We therefore obviously reject DiSomma's first contention that the evidence will not support the finding of conspiracy; at the very least, Skowronski and Tinnirello could be found to have actively conspired to rob the store.
Second, DiSomma's challenge to the evidence of his involvement is similarly unsuccessful. After establishing the existence of the Telco scheme, the government presented evidence that DiSomma: set up a meeting with Skowronski and Tinnirello to talk about the plan, warned Tinnirello not to visit the store without first warning Skowronski, and made incriminating phone calls to Tinnirello upon learning of the FBI's visit to Skowronski. This evidence was more than sufficient to allow the jury to conclude that DiSomma was one of the "two [other] guys" with whom Tinnirello and Skowronski were conspiring to rob the store.
In addition to this affirmative evidence of guilt, the jury was...
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