U.S. v. Fitzgerald

• Citation: 232 F.3d 315
• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-1548
• Parties: (2nd Cir. 2000) United States of America, Appellee, v. Thomas Fitzgerald, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 315

232 F.3d 315 (2nd Cir. 2000)

United States of America, Appellee, v. Thomas Fitzgerald, Defendant-Appellant.

Docket No. 99-1548

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: June 2, 2000

Decided: November 15, 2000

Appeal from the judgment of conviction and sentence of the United States District Court for the Southern District of New York (Richard Owen, Judge) entered September 13, 1999, after a trial before the Honorable Richard Owen and a jury.

AFFIRMED in part, VACATED and REMANDED in part.

Bruce A. Barket, Garden City, NY, for Appellant.

Robert J. Cramer, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney for the Southern District of New York, Robin W. Morey, Stanley J. Okula, Jr., Baruch Weiss, Ira M. Feinberg, Assistant United States Attorneys, New York, NY, of counsel) for Appellee.

Before: McLAUGHLIN, PARKER, Circuit Judges, and DORSEY, District Judge.^*

PER CURIAM:

Thomas Fitzgerald appeals from the judgment of conviction and sentence of the United States District Court for the Southern District of New York (Richard Owen, Judge) entered September 13, 1999, after a six-day trial before the Honorable Richard Owen and a jury. Fitzgerald was charged with three counts of tax evasion, thirteen counts of mail fraud, and one count of conversion. The district court severed the mail fraud and conversion counts and proceeded to trial on the tax evasion counts. Fitzgerald was convicted of three counts of tax evasion for the years 1990, 1991, and 1992, in violation of 26 U.S.C. § 7201. Before proceeding to trial on the severed mail fraud and conversion charges, the district court held a pre-sentencing hearing pursuant to United States v. Fatico, 458 F. Supp. 388 (E.D.N.Y. 1978), aff'd, 603 F.2d 53 (2d Cir. 1979), and enhanced Fitzgerald's sentence for tax evasion based on findings of mail fraud and conversion. Fitzgerald challenges this enhancement of his sentence. On this issue, we find that the district court applied the United States Sentencing Guidelines improperly, and therefore we vacate and remand for resentencing.¹ We have considered the appellant's other arguments, and we find them to be without merit.

I. BACKGROUND

Following Fitzgerald's conviction on all three tax evasion counts, the district court, without objection by Fitzgerald, set a sentencing date for the tax charges in advance of trial on the severed mail fraud and conversion charges. The district court subsequently granted the Government's request for a pre-sentencing hearing pursuant to United States v. Fatico, 458 F. Supp. 388 (E.D.N.Y. 1978), aff'd, 603 F.2d 53 (2d Cir. 1979). The Government requested this hearing for the purpose of introducing evidence that: (1) in addition to the federal income tax he evaded from 1990-1992, Fitzgerald also evaded $74,607 in New York State and New York City income taxes for the same period, which amounts constituted relevant conduct pursuant to U.S.S.G. § 1B1.3 (1992);² (2) Fitzgerald had obstructed justice by committing perjury at trial, thus warranting a two-level enhancement to his base offense level pursuant to U.S.S.G § 3C1.1; and (3) Fitzgerald had failed to report more than $10,000 from criminal activity during the 1992 tax year, thus warranting a further two-level enhancement to his base offense level under U.S.S.G § 2T1.1(b)(1).

Following the Fatico hearing, the district court found that from 1990-1992 Fitzgerald evaded $74,607 in New York State and City income taxes. These state and city tax losses were included as relevant conduct pursuant to U.S.S.G. § 1B1.3 in determining Fitzgerald's base offense level under U.S.S.G. § 2T1.1, and therefore were added to Fitzgerald's 1990-1992 federal income tax liability of $175,589 for a total unpaid tax liability (loss) of $250,196. The district court then found that a two-level enhancement of the base offense level was warranted under U.S.S.G. § 2T1.1(b)(1) because Fitzgerald had failed to report more than $10,000 from criminal activity in 1992. More specifically, the district court found by clear and convincing evidence that in 1992, Fitzgerald had intentionally converted $107,339 from the Mason Tenders District Council Welfare Fund (the "Welfare Fund") and defrauded medical specialists of those funds. The district court determined that Fitzgerald knew the medical specialists were not being paid for a period of several months, during which time Fitzgerald deposited the specialists' checks from the Welfare Fund into an account over which he retained exclusive authority. The district court also concluded that Fitzgerald improperly advised the medical specialists to seek payment from the Welfare Fund, thus causing the Welfare Fund to pay twice for the specialists' services. Finally, the district court found that Fitzgerald had obstructed justice by committing perjury at trial and at the sentencing hearing.

The governing tax guideline is § 2T1.1 (Tax Evasion). At sentencing, the district court found Fitzgerald's base offense level to be fourteen. This offense level is based on the finding, which we affirm, that the state and city tax evasion should be counted as part of the total tax loss, which increases the tax loss from $175,589 to over $200,000. See U.S.S.G. § 2T4.1 (tax table). The district court added two points for obstruction of justice pursuant to § 3C1.1. Because Fitzgerald received more than $10,000 from criminal activity, the district court added two points pursuant to § 2T1.1(b)(1).³ The total tax offense level was therefore eighteen.

Next, the district court determined the offense levels for conversion and mail fraud to be fourteen each. The district court then did a grouping analysis under § 3D1.2(d), grouping the theft and mail fraud because "the offense level is determined largely on the basis of the total amount of harm or loss." U.S.S.G. § 3D1.2(d). Because the offense levels for the theft and mail fraud are the same, this grouping and application of § 3D1.3(d) resulted in an offense level of fourteen.

The district court then noted that the tax offenses counted as one group and that the theft and mail fraud offenses counted as a separate group, but the district court concluded that the two groups could not be grouped together. Thus the district court applied U.S.S.G § 3D1.4, counting the tax evasion group as one unit and the theft/mail fraud group as one unit, to reach two units. For two units, the guidelines require the addition of two levels to the group with the highest offense level, here the tax offense level of eighteen, for a total offense level of twenty. See U.S.S.G. § 3D1.4 (a) ("Count as one Unit the Group with the highest offense level. Count one additional unit for each Group that is equally serious or from 1 to 4 levels less serious."). The district court then sentenced Fitzgerald based on an offense level of twenty.

II. DISCUSSION

We review the district court's interpretation and application of the Guidelines de novoand its findings of fact for clear error. See United States v. Zagari, 111 F.3d 307, 323 (2d Cir. 1997). Appellant Fitzgerald challenges the district court's conclusion that his conversion and mail fraud should be characterized as relevant conduct to his tax evasion. Fitzgerald also challenges the enhancement of his sentence based on this finding of relevant conduct. We affirm the district court's findings of fact, and we do not disturb most of the court's conclusions of law. The district court properly applied the sentencing guidelines to (1) add Fitzgerald's federal tax liability to his state and local tax liability, (2) enhance Fitzgerald's sentence by two levels based on his failure to report more than $10,000 of income received from criminal activity, and (3) enhance Fitzgerald's sentence by two levels based on his obstruction of justice. The district court erred, however, in the manner in which it took into account the relevant conduct of mail fraud and conversion.

The district court was correct to apply the 1992 version of the Guidelines in this case. Generally, a district court should apply the version of the Guidelines in effect on the date of sentencing. See 18 U.S.C. §3553(a)(4); U.S.S.G. § 1B1.11(a).

However, where application of the Guidelines in effect at sentencing would result in a more severe sentence than the version in effect at the time of the commission of the offense, the Ex Post Facto Clause . . . requires use of the earlier version of the Guidelines. The last date of the offense, as alleged in the indictment, is the controlling date for ex post facto purposes.

United States v. Broderson, 67 F.3d 452, 456 (2d Cir. 1995) (internal citations omitted). Furthermore, the district court should apply that version of the Guidelines "in its entirety." U.S.S.G. §1B1.11(b)(2); see United States v. Keller, 58 F.3d 884, 890 (2d Cir. 1995) ("A version of the sentencing guidelines is to be applied in its entirety. A sentencing court has no authority to pick and choose, taking one provision from an earlier version of the guidelines and another from a later version."). Since Fitzgerald was indicted and convicted for evading his 1990-1992 taxes, and the Guidelines have (since 1992) increased the penalty for the amount of tax loss caused by Fitzgerald, see U.S.S.G. § 2T4.1 (1998 Tax Table), the 1992 Guidelines apply here.

Relevant conduct is defined by U.S.S.G. § 1B1.3(a)(1)(A) to include acts "that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense." U.S.S.G § 1B1.3(a)(1)(A). Section 1B1.3(a)(2), which applies "solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts . . . ."⁴ defines relevant conduct more broadly to include "all acts and omissions described in ... [§ 1B1.3(a)(1)(A)] that were part of the...