U.S. v. Giorgi

• Decision Date: 08 December 1987
• Docket Number: OCASIO-GONZALE,Nos. 85-1326,GONZALEZ-SANCHE,D,85-1361 and 85-1377,s. 85-1326
• Citation: 840 F.2d 1022
• Parties: 25 Fed. R. Evid. Serv. 75 UNITED STATES of America, Appellee, v. Edgardo GIORGI, Defendant, Appellant. UNITED STATES of America, Appellee, v. Gilbertoefendant, Appellant. UNITED STATES of America, Appellee, v. Pedro M.efendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1022

840 F.2d 1022

25 Fed. R. Evid. Serv. 75

UNITED STATES of America, Appellee, v. Edgardo GIORGI, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Gilberto OCASIO-GONZALEZ, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Pedro M. GONZALEZ-SANCHEZ, Defendant, Appellant.

Nos. 85-1326, 85-1361 and 85-1377.

United States Court of Appeals, First Circuit.

Heard Dec. 8, 1987.

Decided March 7, 1988.

Rehearing Denied in No. 85-1377 April 14, 1988.

Victor Amador, San Juan, P.R., for appellant Pedro M. Gonzalez-sanchez.

Peter John Porrata by Appointment of the Court, with whom Law Offices of Peter John Porrata, Old San Juan, P.R., was on brief, for appellant Gilberto Ocasio-Gonzalez.

Jose Antonio Lugo, with whom Lugo & Berkowitz, Hato Rey, P.R., was on brief, for appellant Edgardo Giorgi.

Jorge L. Arroyo, Asst. U.S. Atty., Crim. Div., with whom Daniel F. Lopez-Romo, U.S. Atty., and Salixto Medina Malave, Asst. U.S. Atty., San Juan, P.R., were on brief, for appellee.

Before BOWNES and BREYER, Circuit Judges, and LAFFITTE, ^* District Judge.

BOWNES, Circuit Judge.

This appeal arises out of appellants' convictions for conspiracy to commit and aiding and abetting the commission of mail fraud in violation of 18 U.S.C. Secs. 2, 371 & 1341. The thirteen-count indictment detailed an arson for profit scheme involving the burning of Caribbean International, Inc., a wholesale dry goods business, located in Bayamon, Puerto Rico, and the submission of false claims to Puerto Rican-American Insurance Company (hereinafter PRAICO). Appellants Edgardo Giorgi (hereinafter Giorgi) and Gilberto Ocasio Gonzalez (hereinafter Ocasio) were found guilty on the conspiracy count; appellant Pedro Gonzalez Sanchez (hereinafter Gonzalez) was found guilty on the conspiracy count and on three substantive counts. We affirm all the convictions.

I. FACTS

Early in the morning of September 1, 1980, the Caribbean International warehouse erupted in a series of explosions, burst into flames and burned to the ground. Subsequent to that fire, Wilfredo Rivera Diaz (hereinafter Rivera Diaz), the owner of Caribbean International, instituted a claim against his insurer, PRAICO, with whom he had insured his business under a multiperil policy with limits of $600,000 for property losses resulting from fire and other causes, and $200,000 for business interruption.

According to the evidence presented by the government, the Caribbean International fire was not accidental. The government described the events surrounding the destruction of the business as follows. The fire resulted from a scheme developed by Rivera Diaz and other members of the Latorre gang, a criminal organization headed by Jose Luis Latorre and engaged in both the theft of vans loaded with valuable merchandise and the commission of arson for profit. Planning for the Caribbean International fire began in the summer of 1980 and was intended to solve the problem of an increasingly unprofitable business. At an early meeting in which the responsible parties discussed the alternatives to arson, appellant Gonzalez, an attorney, agreed to handle the Caribbean International case in return for a twenty-five percent fee. Gonzalez advised against filing in bankruptcy court (pursuant to which the court would appoint a trustee who would supervise the affairs of the business) and endorsed the original idea of burning the warehouse and collecting on the insurance policy.

During July and August of 1980, Rivera Diaz and his associates placed large orders for merchandise with the regular suppliers of Caribbean International. Once received, the goods were transported along with other valuable merchandise previously stored at Caribbean International to warehouses owned by various members of the Latorre gang. Rivera Diaz also sold some of the merchandise to businesses located throughout Puerto Rico. These transactions both engendered large profits and, more importantly, created documentation which could later be submitted to the insurance company.

Within the same time period, Rivera Diaz had a series of meetings with Gil Arzola, a member of both the criminal investigations arm of the Puerto Rico police department and the Latorre gang, during which Arzola mentioned that he knew people at police headquarters who could fix the investigation of the anticipated fire to preclude any finding of criminal activity. Arzola named, among others, appellant Ocasio.

On the appointed day, Jose Luis Latorre, his half brother Carlos Latorre and appellant Giorgi met to set fire to the Carribbean International warehouse. The torching party obtained several plastic containers, filled them with gasoline, placed them in the warehouse and then set the warehouse aflame. The destruction was widespread.

As planned, Ocasio conducted the official investigation of the fire. He wrote a report in which he found the cause of the destruction to be accidental. Several months thereafter, Rivera Diaz filed a claim against PRAICO through his attorney, Gonzalez. To substantiate that claim, Gonzalez prepared a list of the creditors of Caribbean International and reconstructed the inventory of the business. The total loss documented through those efforts fell short of the policy limit. Rivera Diaz and his associates therefore prepared false invoices in the name of companies associated with the Latorre gang in order to establish further loss; the alleged creditors of Rivera Diaz then filed collusive suits against Caribbean International in the Superior Court of Puerto Rico.

Concurrent with these efforts to falsify the records of Caribbean International, Benjamin Acosta--an independent adjuster hired by PRAICO--conducted an investigation of the fire. During the course of that investigation, he exchanged several mailings with Gonzalez. Settlement negotiations between Caribbean International and PRAICO commenced and continued over the course of several months. In the interim, the F.B.I. instituted an investigation of the fire and recommended a postponement of the settlement negotiations pending conclusion of the F.B.I. inquiry. That inquiry resulted in an indictment against appellants and six other codefendants. Following a fourteen-day trial, the jury rendered its verdict, and appellants filed this appeal. We consider the issues raised by the parties below.

II. THE PLEA AGREEMENT

Appellant Giorgi first argues that a prior plea agreement precluded his prosecution in the instant case. The disputed agreement arose out of an indictment for the theft or hijacking of trucks or vans in interstate commerce; it included a commitment by the government not to prosecute Giorgi "for any criminal acts related to thefts or hijackings of vans." Giorgi contends that the criminal acts at issue in the present case bear an intimate relation to the van thefts mentioned in the plea agreement and hence are protected under the terms of that agreement. Conversely, the government maintains that the written language of the agreement clearly does not include the crimes herein at issue and that a liberal construction barring prosecution would undermine the reasonable expectations of the parties. The trial court denied Giorgi's motion to dismiss, finding the allegation of breach of the plea agreement to lack merit. Although we do recognize a facial ambiguity in the language of the agreement, we affirm the holding below.

We are guided in our interpretation of the disputed plea agreement by general principles of contract law. In United States v. Gonzalez-Sanchez, 825 F.2d 572 (1st Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987), a case involving many of the same actors as the current appeal, we considered, within a contractual framework, a claim by a defendant that his plea agreement in a previous case barred the contested prosecution:

When a defendant has entered into a plea agreement with the government, the court must ensure that he receives what is reasonably due him under the agreement. Contractual principles apply insofar as they are relevant in determining what the government "owes" the defendant. If the defendant lives up to his end of the bargain, the government is bound to its promises.

825 F.2d at 578 (footnotes omitted). ¹ Accord United States v. Baldacchino, 762 F.2d 170, 179 (1st Cir.1985) ("Though a matter of criminal jurisprudence, plea bargains are subject to contract law principles insofar as their application will insure the defendant what is reasonably due him.") (citations omitted).

This contractual framework, however, has been expanded to include a recognition of the unique nature of a plea agreement. While such agreements serve an important role in the efficient operation of the criminal justice system, they also effect a waiver of defendants' rights: "However important plea bargaining may be in the administration of criminal justice, our opinions have established that a guilty plea is a serious and sobering occasion inasmuch as it constitutes a waiver of the fundamental rights to a jury trial ... to confront one's accusers ... to present witnesses in one's defense ... to remain silent ... and to be convicted by proof beyond all reasonable doubt...." Santobello v. New York, 404 U.S. 257, 264, 92 S.Ct. 495, 500, 30 L.Ed.2d 427 (1971) (Douglas, J., concurring) (citations omitted). See also United States v. Garcia, 698 F.2d 31, 37 (1st Cir.1983) ("A guilty plea is a waiver of fundamental constitutional rights...."); Correale v. United States, 479 F.2d 944, 947 (1st Cir.1973) (same).

In Santobello, the Court recognized the necessity of judicial safeguards to protect the integrity of a plea agreement: "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." 404 U.S. at 262. This court has interpreted Santobello to place a heavy burden upon the government: "[T]he...