U.S. v. Agostino
| Decision Date | 22 December 1997 |
| Docket Number | 97-2340,Nos. 97-2105,s. 97-2105 |
| Citation | 132 F.3d 1183 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Joseph F. AGOSTINO, Defendant-Appellant, Cross-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Randall Stewart, Office of the United States Attorney, Dyer, IN, Donald J. Schmid (argued), Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee in No. 97-2105.
Andrew B. Baker, Jr., Office of the United States Attorney, Dyer, IN, Donald J. Schmid (argued), Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee in No. 97-2340.
Charles A. Asher (argued), South Bend, IN, Peter J. Agostino, Hunt, Suedhoff, Borror & Eilbacher, South Bend, IN, for Defendant-Appellant in No. 97-2105.
Charles A. Asher, Hal R. Culbertson, South Bend, IN, Peter J. Agostino, Hunt, Suedhoff, Borror & Eilbacher, South Bend, IN, for Defendant-Appellee in No. 97-2340.
Before RIPPLE, MANION and KANNE, Circuit Judges.
A jury found Joseph F. Agostino guilty of corruptly giving a $4,000 payment to a subordinate in the Toll Road Division of the Indiana Department of Transportation in violation of 18 U.S.C. § 666(a)(2). He challenges his conviction and sentence on several grounds. With respect to his conviction, Agostino argues that the indictment was insufficient, that the prosecution violated his rights to due process by requesting that a key witness not speak to defense counsel, that the evidence was insufficient to convict him, and that the district court erred in failing to provide certain information to the jury during jury instruction. He challenges his sentence by arguing that the district court sentenced him under an incorrect section of the United States Sentencing Guidelines ("U.S.S.G.").
The Government instituted a cross-appeal challenging the sentence imposed by the district court. Specifically, the Government argues that the district court erred in concluding that the defendant must benefit personally from the bribe in order to merit an upward departure under U.S.S.G. § 2C1.1(b)(2)(A). The Government also contends that the district court erred by failing to enhance Agostino's sentence for obstruction of justice under U.S.S.G. § 3C1.1, and by sentencing Agostino to a term below the applicable Guideline range. Because we find merit in only the last of these claims, we affirm Agostino's conviction and remand to the district court to sentence him to a term consistent with the Guidelines.
Joseph Agostino was Administrative Services Manager of the Toll Road Division of the Indiana Department of Transportation ("INDOT") until January 1996. James Goetz, Agostino's subordinate, was the Patron Services Manager. That position required Goetz to act as a liaison between Toll Road management and approximately thirty-four trucking companies and vendors. Among the vendors was Gas City, the fuel supplier to Toll Road gas stations since June 1995.
Under the terms of the contract between INDOT Toll Road Division and Gas City, the fuel prices Gas City charged on the Toll Road were set pursuant to a specific procedure. Part of the procedure required INDOT Toll Road Division to select randomly a list of stations from a predetermined pool Gas City would then survey these stations and use a formula to set the fuel prices on the Toll Road. This fuel pricing process was intended to avoid pricing the fuel either too high or too low. The contract permitted periodic changes in the pool of stations as part of an attempt to set a fair price. In addition to setting forth the procedures for fuel pricing, the contract called for the issue of "non-revenue passes" 1 to certain Gas City management personnel.
Initially the random selection of stations and the calculation of fuel prices proceeded in accordance with the contract. Goetz supervised this process and was responsible for the random selection of stations. In June or July 1995, Agostino told Goetz that the process of setting the fuel prices was cumbersome because it required Goetz to select the survey stations and then fax the names of the selected stations to Gas City for the fuel price calculation. Agostino instructed Goetz that he was no longer responsible for randomly selecting the survey stations and that Gas City would take over the selection. Goetz objected to this arrangement because significant effort had gone into constructing the procedure outlined in the contract. According to Goetz, allowing Gas City to select the stations themselves represented a "substantial deviation" from the approved procedure. Despite Goetz's objections, Gas City began to make the survey station selections in July 1995.
At about the same time Agostino informed Goetz that Gas City would receive non-revenue passes for all of its fuel tankers. Goetz was surprised at this development because such passes were expected only after Gas City completed its obligations under the contract, and Gas City had only been operating under the contract for approximately one month.
In mid-July 1995, Goetz and Agostino met in Agostino's office at the Toll Road Division. Agostino handed Goetz an envelope containing $4,000 in cash. Agostino told Goetz he was giving him the money because Goetz had been doing a good job and did not make enough money. When Goetz asked where the money came from, Agostino replied that it was "PAC money" and from "Lenny," who Goetz understood to be Len McEnery, the General Manager of Gas City.
Goetz took the money to his office and partially counted it. He then tried to return the money to Agostino, but Agostino's office was locked and his secretary was gone for the day. The next morning Goetz returned the money to Agostino. Agostino claimed that if he returned the money it would simply go to the Lieutenant Governor's campaign, but Goetz refused to keep it.
Agostino does not deny that he offered Goetz $4,000 cash in an envelope in July 1995. However, he disputes that this money was for the purpose of influencing or rewarding Goetz. Instead, Agostino claims that the money was tendered to test Goetz's honesty after concerns arose at the Toll Road Division about Goetz's gambling habits and other activities. Agostino asserts that the money was his own, borrowed from a personal home-equity line of credit. Agostino also admits that he did not contact any law enforcement agencies, INDOT legal counsel, or Toll Road management prior to engaging in this "test" of Goetz's honesty.
On October 2, 1996, a federal grand jury returned a one-count indictment against Agostino charging him with Bribery Concerning Programs Receiving Federal Funds in violation of 18 U.S.C. § 666(a)(2). Agostino pleaded not guilty on October 30, 1996. Agostino filed multiple pretrial motions including motions to dismiss for lack of specificity in the indictment, motions to dismiss for lack of jurisdiction, and motions to dismiss for alleged governmental interference with a witness. The district court denied all of Agostino's pretrial motions.
On February 14, 1997, after a five-day trial, a jury found Agostino guilty of a violation of § 666(a)(2). Agostino filed several post-trial motions, reiterating the arguments presented in his pretrial motions and adding a motion for acquittal or new trial based on insufficiency of the evidence. The district court denied these motions. At sentencing, the court found that U.S.S.G. § 2C1.2 applied, which set Agostino's base level at 10. The court then imposed a one level upward departure for the value of the bribe, pursuant to U.S.S.G. §§ 2F1.1(b)(1)(B) and 2C1.1(b)(2)(A). The court found that an additional increase for obstruction of justice was not warranted. At the sentencing hearing, the district court orally sentenced Agostino to four months imprisonment, three years supervised release, $7,500 in fines, and a $50 special assessment. In its sentencing memorandum, however, the district court indicated a sentence for Agostino of eight months imprisonment, four months to be served in a prison and the remaining four to be included in the term of supervised release. The remainder of the sentence tracked the sentence imposed at the sentencing hearing: three years supervised release, a $7,500 fine, and a special assessment of $50. The judgment and commitment order issued to the U.S. Marshall describes a third sentence: eight months imprisonment, four months to be served in a prison and the remaining four in community confinement. According to the judgment and commitment order, the three years of supervised release begins after the imprisonment and community confinement. The fines and special assessments remained the same.
The Fifth Amendment provides that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on ... indictment of a Grand Jury." U.S. Const. amend. V. The Sixth Amendment then grants certain rights to persons accused of crimes by the federal government, including the right "to be informed of the nature and cause of the accusation." U.S. Const. amend. VI. The Federal Rules of Criminal Procedure ("Fed.R.Crim.P.") explicate the requirements of an indictment. Fed.R.Crim.P. 7(c)(1) requires that "[t]he indictment ... shall be a plain, concise and definite written statement of the essential facts constituting the offense charged."
An indictment is constitutionally sufficient and satisfies Fed.R.Crim.P. 7(c)(1) if it states the elements of the crime charged, informs the defendant of the nature of the charge so she may prepare a defense, and enables the defendant to plead the judgment as a bar against future prosecutions for the same offense. See Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907-08, 41 L.Ed.2d 590 (1974); United States v. Allender, 62 F.3d 909, 914 (7th Cir.1995), cert. denied, 516 U.S. 1076, 116 S.Ct. 781, 133 L.Ed.2d 732 (1996). Indictments need...
To continue reading
Request your trial
-
U.S. v. McCormack
...S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Barker Steel, 985 F.2d 1123, 1126 (1st Cir. 1993); see also United States v. Agostino, 132 F.3d 1183, 1191 (7th Cir.1997).4 The rationale for the rule is simple: Motions testing the evidence before a grand jury would invariably result in p......
-
U.S. v. Black, No. 05 CR 727.
...In this regard, "[i]ndictments need not exhaustively recount the facts surrounding the crime's commission," United States v. Agostino, 132 F.3d 1183, 1189 (7th Cir. 1997), rather "when determining the sufficiency of an indictment, [a court] look[s] at the contents of the subject indictment ......
-
United States v. Arms
...that the indictment contain the details as to how the government will prove at trial the elements of any offense. United States v. Agostino, 132 F.3d 1183, 1191 (7th Cir. 1997) (quoting United States v. Kendall, 665 F.2d 126, 135 (7th Cir. 1981)); see also United States v. Phongsavath, 2015......
-
United States v. Smith
...and enables the defendant to plead the judgment as a bar against future prosecutions for the same offense." United States v. Agostino , 132 F.3d 1183, 1189 (7th Cir. 1997) (citing Hamling v. United States , 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) ). What a motion to dismiss d......
-
Public corruption.
...by all participants in the scheme are included in the calculation of the "benefit" of the middle man); cf. United States v. Agostino, 132 F.3d 1183, 1197 (7th Cir. 1997) (determining that benefits accrued by third parties could not be included in the calculation of benefit to the payer when......
-
Experts & investigators
...Interference With Investigation §6:30 Prosecution Interference Witnesses are free to refuse to talk to you. [ United States v. Agostino, 132 F.3d 1183, 1191 (7th Cir. 1997).] §6:31 Criminal Defense Tools and Techniques 6-12 However, the prosecution cannot discourage witnesses from speaking ......
-
Public corruption.
...by all participants in the scheme are included in the calculation of the "benefit" of the middle man). But see United States v. Agostino, 132 F.3d 1183, 1197 (7th Cir. 1997) (determining that benefits accrued by third parties could not be included in the calculation of benefit to the payer ......
-
Public corruption.
...by all participants in the scheme are included in the calculation of the "benefit" of the middle man). But see United States v. Agostino, 132 F.3d 1183, 1197 (7th Cir. 1997) (determining that benefits accrued by third parties could not be included in the calculation of benefit to the payer ......