U.S. v. Dote, 02-1410.

• Decision Date: 13 May 2003
• Docket Number: No. 02-1410.,02-1410.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony R. DOTE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

328 F.3d 919

UNITED STATES of America, Plaintiff-Appellee, v. Anthony R. DOTE, Defendant-Appellant.

No. 02-1410.

United States Court of Appeals, Seventh Circuit.

Argued December 4, 2002.

Decided May 13, 2003.

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David E. Bindi (argued), Office of the U.S. Attorney, Chicago, IL, for plaintiff-appellee.

Allan A. Ackerman (argued), Chicago, IL, for defendant-appellant.

Before FLAUM, Chief Judge, and COFFEY and WILLIAMS, Circuit Judges.

COFFEY, Circuit Judge.

On April 27, 2000, Anthony R. Dote was indicted on charges of engaging in a racketeering conspiracy, in violation of 18 U.S.C. § 1962(d), operating an illegal gambling business, in violation of 18 U.S.C. § 1955, and engaging in interstate travel in aid of a racketeering enterprise, in violation of 18 U.S.C. § 1952. He pled guilty to all counts in the indictment. At sentencing, the court concluded that it lacked authority to enter a downward departure from the Sentencing Guidelines range (51 to 63 months) and sentenced Dote to 51 months in prison, as well as three years of supervised release. We affirm.

I. Background

On November 17, 1994, a federal grand jury indicted Dote on charges of illegal bookmaking and RICO violations that occurred between 1978 and 1992. The November 1994 indictment (the "First Indictment") alleged that Defendant and two others, Marco Damico and Robert M. Abbinati, perpetrated racketeering and gambling crimes through an organization that will herein be referred to as the "Dote-Damico Enterprise." Dote pled guilty to the charges set forth in the Indictment, and, on September 13, 1996, was sentenced by Judge Blanche M. Manning to 51 months in prison.

Unbeknownst to the court, at the time of Dote's September 1996 sentencing, Dote had been participating in a second illegal gambling business, the "Dote-Mazza Enterprise," since July of 1994. Although the Government had knowledge of Dote's new bookmaking enterprise at the time of Dote's September 1996 sentencing before Judge Manning, it did not disclose, either to Dote or to the court, its investigation of Dote's participation in the Dote-Mazza Enterprise at that time. Instead, the Government waited approximately four years to present its evidence to a grand jury, which issued an indictment against Dote on April 27, 2000.

Similar to the November 1994 indictment, the April 27, 2000 indictment (the "Second Indictment") charged Dote with racketeering and illegal bookmaking. According to the facts set forth in the Second Indictment, Dote continued to engage in the Dote-Mazza Enterprise's illegal bookmaking activities until as late as August of 1997 (some nine or more months after his October 29, 1996 incarceration, and over ten months after his September 1996 sentencing by Judge Manning). Although similar in nature to the allegations in the First Indictments, the unlawful conduct alleged in the Second Indictment was otherwise distinct and separate from the activities charged in the First Indictment, insofar as the Dote-Mazza Enterprise involved different co-conspirators than the Dote-Damico Enterprise (namely, Francis Patrick Mazza, Donald F. Scalise, Carl R. Dote, Jack Cozzi, Frank J. Adamo, and Sherman Goldman), and took place over a different time period (from July 1994 through August 1997).

Appearing before District Judge James B. Moran, Dote moved to dismiss the Second Indictment, arguing that the Government's delay in issuing the Second Indictment violated his Sixth Amendment right to a speedy trial. The court denied Defendant's motion to dismiss the indictment on this basis, because the "Sixth Amendment right to a speedy trial is only triggered by an arrest, indictment or other official accusation." United States v. Dote, No. 00-CR-342-1 at 2, 2001 WL 1104735 (N.D.Ill. Sept. 18, 2001). Thus, the court determined that Dote's allegations of pre-indictment delay did not implicate his Sixth Amendment rights.

The court also considered whether the delay violated Dote's Fifth Amendment right to due process, but ultimately concluded that no violation had occurred, because no prejudice resulted from the Government's delay in obtaining the Second Indictment. The Court noted that Dote failed to meet his burden of "particulariz[ing]" the nature of the prejudice he claimed to have suffered on account of the delay, and also failed to establish that such prejudice was "certain." Id. at 5. The court opined that, in any case, it did "have the discretion to take [a] departure[] if appropriate," implying that, at the sentencing stage, it would consider whether to apply a downward departure on account of Dote's complaints regarding pre-indictment delay. Id. at 6.

On June 26, 2001, Dote pled guilty to the charges set forth in the April 27, 2000 Indictment, namely, racketeering conspiracy, in violation of 18 U.S.C. § 1962(d), operation of an illegal gambling business, in violation of 18 U.S.C. § 1955, and engaging in interstate travel in aid of a racketeering enterprise, in violation of 18 U.S.C. § 1952. At sentencing, Dote moved the court for a downward departure, which the sentencing judge denied because, in his words: "I don't think I have the authority to downwardly depart" under the facts in this case. Sent. Tr. at 8. Dote was sentenced at the low end of the Guidelines range (51 to 63 months) to 51 months in prison and three years of supervised release.

II. Analysis

Dote claims that he was entitled to a downward departure based on the Government's pre-indictment delay. Specifically, he argues that the Government's failure to alert the September 1996 sentencing court to his participation in the Dote-Mazza Enterprise resulted in an "installment plan" prosecution of his bookmaking crimes that prevented him from receiving a "single enhanced sentence" at his September 1996 sentencing.¹ Dote relies on United States v. Martinez, 77 F.3d 332 (9th Cir.1996), to support his contention that he was entitled to a downward departure at his February 2002 sentencing based on the Government's pre-indictment delay. He claims that if the Government had disclosed its investigation of the Dote-Mazza Enterprise during the September 1996 sentencing hearing he might have received a "single enhanced sentence" insofar as the sentencing court could have ordered the sentences for the two sets of crimes (Dote-Damico Enterprise and Dote-Mazza Enterprise) to be served concurrently, or could have assessed his subsequent illegal activities (Dote-Mazza Enterprise) as relevant conduct. Dote's Br. at 13. See also Dote's Downward Departure Br. at 3 ("Had the government disclosed to the September 1996 sentencing court Anthony Dote's [most recent] purported bookmaking activity, that court would have incorporated Dote's [mis]conduct while imposing a single sentence.") (brackets in the original).²

In light of Dote's reliance on United States v. Martinez to support his application for a downward departure, a brief review of the case is in order. In Martinez, the defendant Martinez was initially indicted in June 1993 on a charge of possession of stolen property. At his sentencing hearing, held in October of 1993, the court assessed Martinez's relevant conduct at $60,000 worth of stolen toys, id., and sentenced him to eight months' imprisonment. Unbeknownst to the sentencing court, Martinez — at the same time he perpetrated the toy theft — was also caught on tape (by authorities) transporting truckloads of other stolen goods that totaled around $1.4 million in merchandise (stolen Gap sweaters, Sharp videocassette recorders, etc.). Despite the fact that Martinez's toy theft was part of the same scheme and course of illegal conduct as his theft of the other goods, the Government did not obtain an indictment based on the additional $1.4 million in stolen goods until May 1994. The only explanation for the Government's separate prosecution of the related thefts was that the tape recordings of the thefts named in the May 1994 indictment had been given to an overworked assistant U.S. attorney who failed to act upon the information in the tape recordings in a timely manner. Id. at 334. According to the sentencing court, there was "no evidence in the record to support the argument that the delay was intentional [on the part of the government]." Id. Nonetheless, the district court found that the defendant had suffered prejudice on account of the delay, primarily because his total sentence would potentially be longer because the "indictment was not returned early enough so that his cases could be tried together." Id. at 335. On this basis, the district court dismissed the second indictment.

On appeal, the Ninth Circuit reversed, finding that "the defendant did not sufficiently establish prejudice" to warrant dismissal of the indictment. Id. at 335. In reversing the district court's order of dismissal, the Court of Appeals noted that the prejudice to the defendant of the delay in the indictments was speculative, because the sentencing court had latitude to depart downward "if it determined that there was unfair prejudice [in terms of the length of Martinez's sentence] because of the timing of the indictments." Id. at 336. Specifically, the court recognized that "because of the random event that the tape recordings of some of his crimes [we]re on the desk of an especially busy AUSA," the various crimes were not "grouped" when they otherwise would have been. On that basis, the Ninth Circuit noted that a downward departure based on pre-indictment delay would be appropriate under 18 U.S.C. § 3553(b), if "the district judge determines that the groupable nature of the crimes ma[de] the fortuitous extension of the sentence unfair...." Id. at 337.

In the case before us, the district court similarly denied Dote's motion to dismiss the indictment, noting that it could downward depart at the sentencing stage, if appropriate. Nonetheless, at sentencing, the court, after hearing the respective arguments and considering the...