U.S. v. Carrozza

• Citation: 4 F.3d 70
• Decision Date: 02 March 1993
• Docket Number: Nos. 92-1798,92-1868 and 92-2213,s. 92-1798
• Parties: UNITED STATES of America, Appellee, v. Robert F. CARROZZA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Raymond J. PATRIARCA, Defendant, Appellant. UNITED STATES of America, Appellant, v. Raymond J. PATRIARCA, Defendant, Appellee. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 70

4 F.3d 70

62 USLW 2230

UNITED STATES of America, Appellee, v. Robert F. CARROZZA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Raymond J. PATRIARCA, Defendant, Appellant.

UNITED STATES of America, Appellant, v. Raymond J. PATRIARCA, Defendant, Appellee.

Nos. 92-1798, 92-1868 and 92-2213.

United States Court of Appeals First Circuit.

Heard March 2, 1993.

Decided Sept. 16, 1993.

Rehearing and Suggestion for Rehearing

En Banc Denied in No. 92-1798

Oct. 12, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied in No.

92-2133 Nov. 22, 1993.

Martin G. Weinberg with whom Oteri, Weinberg & Lawson, Boston, MA, John F. Cicilline, Providence, RI, Kimberly Homan and Sheketoff & Homan, Boston, MA, were on briefs, for Raymond J. Patriarca.

James L. Sultan with whom Rankin & Sultan, Boston, MA, was on brief, for Robert F. Carrozza.

James D. Herbert, Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., Jeffrey Auerhahn, Asst. U.S. Atty., and Gregg L. Sullivan, Asst. U.S. Atty., Boston, MA, were on briefs, for U.S.

Before BOUDIN, Circuit Judge, CAMPBELL, Senior Circuit Judge and STAHL, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

Raymond J. Patriarca pled guilty to one count of conspiring to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Sec. 1962(d), one count of violating RICO, 18 U.S.C. Sec. 1962(c), four counts of interstate travel in aid of racketeering, 18 U.S.C. Sec. 1952 (the "Travel Act"), and one count of conspiring to violate the Travel Act.

He was sentenced by the United States District Court for the District of Massachusetts to a prison term of 97 months, three years of supervised release, a $50,000 fine, $122,344 costs of incarceration, and $3,954 costs of supervision. Pursuant to 18 U.S.C. Sec. 3742(b), the government appeals from the district court's determination that the relevant conduct for sentencing purposes in this RICO case is limited to just the predicate Travel Act violations charged against Patriarca and conduct relating directly to those charged predicates. Patriarca appeals from the district court's upward departure under U.S.S.G. Sec. 4A1.3 and from the district court's imposition of the costs of incarceration and supervision under U.S.S.G. Sec. 5E1.2(i).

Robert F. Carrozza appeals from a 228-month sentence imposed by the district court after Carrozza pleaded guilty to 49 counts of racketeering-related offenses. Carrozza argues that the district court's decision to "assume" that his base offense level should be adjusted upwards for his role in the offense constituted plain error.

I. Patriarca's Sentence

A. Background

Count One of the indictment charged Patriarca and seven codefendants with participation in a criminal conspiracy to violate the RICO statute. Count Two charged the same defendants with a substantive violation of the RICO statute. The remaining 63 counts charged related racketeering acts involving different defendants, including--in Count 30--a conspiracy to violate the Travel Act.

The RICO charges alleged that the Patriarca Family had committed illegal activities over a period of 14 years. They identified the defendants as members of a nationwide criminal organization known as La Cosa Nostra, and described Patriarca's role, after July 1984, as the boss and ultimate supervisor of the Patriarca Family. The RICO counts alleged that the Patriarca Family, named as the RICO enterprise, acted in conformity with the rules of La Cosa Nostra, including the requirement that members commit murder at the direction of their superiors. It was further alleged that members of the Patriarca Family were required to obey their superiors and commit criminal acts at their direction, including murder. Members of the Patriarca Family were allegedly required to share their illegal profits with their superiors.

The indictment alleged that the Patriarca Family was in the business of extortion, narcotics trafficking, loansharking, gambling, and murder. The indictment charged the commission of a total of 68 separate, predicate acts, most of them by defendants other than Patriarca. The predicate racketeering acts in which Patriarca was personally named were five violations of (and conspiracy to violate) the Travel Act, four of which were also charged as substantive violations against Patriarca in Counts 31, 36, 38 and 39.

Prior to Patriarca's entry of a guilty plea, the government informed the court and Patriarca that it would seek to include specific acts of relevant conduct, pursuant to U.S.S.G. Sec. 1B1.3, in determining Patriarca's base offense level, and would further seek upward departures pursuant to U.S.S.G. Sec. 4A1.3 and Sec. 5K2.0. As an example of relevant conduct, the government then cited Patriarca's involvement in the narcotics trafficking of Patriarca's associate, Salvatore Michael Caruana. As an example of conduct justifying an upward departure, the government cited the murder of Vincent James Limoli, which was charged against one of Patriarca's codefendants.

On December 3, 1991, Patriarca pled guilty without having entered into any agreement with the government. In the sentencing proceedings that ensued, the government asked the court to consider seven instances of relevant conduct, along with the charged conduct, in determining Patriarca's base offense level for his RICO offenses. These instances were (1) Patriarca's involvement in the drug trafficking of Caruana; (2) Patriarca's efforts to harbor Caruana as a fugitive; (3) the murder of Limoli; (4) the murder of Theodore Berns, which was committed by Caruana purportedly because Berns was involved with Caruana's wife; (5) the narcotics activities charged against codefendant Robert Carrozza; (6) Patriarca's alleged authorization of an attempt to murder Vincent Ferrara; and (7) the harboring of La Cosa Nostra member, Alphonse Persico, while he was a fugitive from justice. Of these acts, only the Limoli murder and Carrozza's drug trafficking had been mentioned in the indictment, these two acts having been charged as predicate acts against Patriarca's codefendants (not Patriarca himself). The government acknowledges that Patriarca had direct personal involvement only in the Caruana drug trafficking and the harboring of Caruana as a fugitive. But it also argues that all seven activities were reasonably foreseeable to Patriarca and were committed during, and in furtherance of, the RICO conspiracy after Patriarca had joined it as its chief.

The government asserted that holding Patriarca responsible for the Limoli or the Berns murder would increase his base offense level to 43, but that this level should then be reduced by three levels because Patriarca's role was minimal or minor under U.S.S.G. Sec. 3B1.2. The guideline range for an offense level of 40 and Criminal History Category I is 292-365 months in prison. The government recommended a sentence of 292 months.

After numerous evidentiary hearings, the district court announced its decision to sentence Patriarca to 97 months imprisonment. This was an upward departure from the court's calculated guideline range of 63 to 78 months. ¹ The court concluded that relevant conduct in a RICO case was, as a matter of law, limited to the specific predicate acts charged against the defendant (here, as to Patriarca, the Travel Act violations) and conduct relating to the charged predicates. The court observed that the base offense level for RICO is the greater of 19 or "the offense level applicable to the underlying racketeering activity." U.S.S.G. Sec. 2E1.1(a). Because Sec. 2E1.1 specifies more than one base offense level, the court determined that Sec. 1B1.3 requires the proper base offense to be ascertained by the inclusion of relevant conduct. The core question, in the court's view, was whether "underlying racketeering activity" within the meaning of Sec. 2E1.1(a)(2) referred only to the predicate racketeering acts charged against Patriarca himself, or whether it also embraced other racketeering acts including those of Patriarca's RICO coconspirators committed in the course of the RICO conspiracy.

In opting for the former construction, the court relied upon three principles it felt were key: (1) the guidelines are primarily a "charge offense" system; (2) the guidelines are generally intended to duplicate nationwide past practices; and (3) the guidelines are intended to establish a sentencing system which is both administratively workable and fair. Regarding the first, the court noted that none of the seven instances of conduct cited by the government had been charged against Patriarca personally in the indictment. As to the second reason, the court noted that there are no reported pre-guideline RICO cases in which a defendant was sentenced and punished for an uncharged murder. With respect to the third, the court stated that the government's position was administratively unwieldy: weeks or months of evidentiary hearings could be required to decide if a defendant committed the uncharged relevant conduct. Finally, the court was concerned about the procedural fairness of punishing a defendant for an uncharged murder without indictment, trial by jury, and proof beyond a reasonable doubt.

The court reasoned that adoption of the government's position would raise serious constitutional questions which the district court's interpretation would avoid. Treating the Limoli or Berns murder as relevant conduct would, the court believed, have the effect of raising the maximum penalty for the RICO violations from 20 years to life imprisonment. The RICO penalty provision, 18 U.S.C. Sec. 1963(a), provides for a maximum sentence of 20 years unless "the RICO violation is based on racketeering activity for which the maximum penalty includes life imprisonment," in which case the maximum sentence is life. The guideline penalty for murder, which is a level 43 offense, is life imprisonment. Because the district court, unlike...