U.S. v. Giovanelli, Docket No. 04-5763-CR.

• Citation: 464 F.3d 346
• Decision Date: 27 September 2006
• Docket Number: Docket No. 04-5763-CR.
• Parties: UNITED STATES of America, Appellee, v. Federico GIOVANELLI, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

464 F.3d 346

UNITED STATES of America, Appellee, v. Federico GIOVANELLI, Defendant-Appellant.

Docket No. 04-5763-CR.

United States Court of Appeals, Second Circuit.

Argued: September 19, 2006.

Decided: September 27, 2006.

COPYRIGHT MATERIAL OMITTED

John M. Hillebrecht, Assistant United States Attorney, for Michael J. Garcia, United States Attorney for the District of New York (Celeste L. Koeleveld, of counsel), for Appellee.

Vivian Shevitz (Jane Simkin Smith, of counsel), South Salem, N.Y., for Defendant-Appellant.

Before CALABRESI, POOLER, and B.D. PARKER, Circuit Judges.

PER CURIAM.

This case requires us, inter alia, to resolve a question on which a panel of this Court has yet to speak, namely, whether United States Sentencing Guidelines ("U.S.S.G.") § 2J1.2 should apply to a conviction for obstruction of justice under 18 U.S.C. § 1503 where the conviction is based, not on actual obstruction, but rather on an "endeavoring" theory. That is, should U.S.S.G. § 2J1.2 — which applies when "the offense involved obstructing the investigation or prosecution of a criminal offense" — apply where a defendant is convicted for endeavoring, unsuccessfully, to obstruct justice? For reasons stated herein, we answer in the affirmative.

DISCUSSION

In 2004, Defendant-Appellant Federico Giovanelli ("Giovanelli") was tried before a jury in the United States District Court for the Southern District of New York, with Judge Rakoff presiding. The indictment charged Giovanelli with eighteen separate counts, including one count for conspiracy under 18 U.S.C. § 371, the object of which was to obstruct justice in violation of § 1503, and two counts for "endeavoring" to obstruct justice in violation of § 1503. On May 14, 2004, after an 18-day trial, the jury acquitted Giovanelli of fifteen counts, but returned a verdict of guilty for the conspiracy count and the two obstruction of justice counts. Following trial, Judge Rakoff sentenced Giovanelli to 121 months' incarceration; on a Crosby remand, see United States v. Crosby, 397 F.3d 103 (2d Cir.2005), Judge Rakoff reduced the prison sentence to 90 months.

On appeal, Giovanelli challenges his conviction and sentence. In all, he raises four arguments: (1) that the obstruction of justice charges were not supported by sufficient evidence; (2) that the jury charge was defective; (3) that the government failed to "specify charges" and thereby violated Giovanelli's due process rights (or, as the government frames the challenge, that the government "constructively amended" or "improperly varied" the charges); and (4) that the district court incorrectly calculated the Guidelines range applicable to Giovanelli's conviction, and that Giovanelli's 90-month prison sentence is otherwise unreasonable. We consider each of these arguments in turn.

I. Sufficiency of the Trial Evidence

A defendant challenging the sufficiency of trial evidence "bears a heavy burden," United States v. Jackson, 335 F.3d 170, 180 (2d Cir.2003), and the reviewing court must "view the evidence presented in the light most favorable to the government, and . . . draw all reasonable inferences in its favor," United States v. Autuori, 212 F.3d 105, 114 (2d Cir.2000). Accordingly, we will affirm the jury verdict unless "no rational trier of fact could have found all of the elements of the crime beyond a reasonable doubt." United States v. Schwarz, 283 F.3d 76, 105 (2d Cir.2002).

In this case, Giovanelli was convicted pursuant to the "omnibus clause" of 18 U.S.C. § 1503, which states:

Whoever . . . corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

The omnibus clause "makes criminal not just success in corruptly influencing the due administration of justice, but also the `endeavor' to do so." United States v. Aguilar, 515 U.S. 593, 610, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995) (Scalia, J., dissenting).

Although § 1503's "endeavor" language is potentially sweeping in its breadth, the Supreme Court in Aguilar recognized the need to "place metes and bounds on the very broad language of the catchall provision." Id. at 599, 115 S.Ct. 2357. To convict under an "endeavoring" theory, the prosecution must show that "the endeavor [had] the natural and probable effect of interfering with the due administration of justice"; but "if the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct." Id.; see also Schwarz, 283 F.3d 76 (overturning a § 1503 conviction for insufficiency of evidence in light of Aguilar). As the Aguilar Court explained, "[o]ur reading of the statute gives the term `endeavor' a useful function to fulfill: It makes conduct punishable where the defendant acts with an intent to obstruct justice, and in a manner that is likely to obstruct justice, but is foiled in some way." Aguilar, 515 U.S. at 601-02, 115 S.Ct. 2357; see also Schwarz, 283 F.3d at 109 ("The thrust of [Aguilar] is that § 1503 requires a specific intent to obstruct a federal . . . grand jury proceeding. Accordingly, the conduct offered to evince that intent must be conduct that is directed at the . . . grand jury and that, in the defendant's mind, has the `natural and probable effect' of obstructing or interfering with that entity.").

Giovanelli relies on these interpretations of § 1503 to argue that his convictions cannot stand. First, he cites Aguilar and contends that the government failed to establish a sufficient "nexus" between his actions and the grand jury proceedings. Second, Giovanelli argues that, if the government failed to establish that he had an intent to violate § 1503, then the conspiracy charge must also be overturned.

The first of Giovanelli's contentions is meritless, and therefore both of his arguments must fail. The trial evidence, read in the light most favorable to the government, provides ample support for the following facts: (1) that Giovanelli was a long-time "Caporegime" or captain of the Genovese Organized Crime Family of La Cosa Nostra,¹ and that he was part of the Ruling Panel running the Family at the time of his allegedly obstructive acts in 1999; (2) that, at that time, a grand jury in New York was conducting a thorough investigation into another family of La Cosa Nostra, the Decavalcante Family, and that this investigation was going to lead to numerous arrests and indictments; (3) that Giovanelli obtained detailed information from the grand jury proceedings; and (4) that Giovanelli provided to targets of the investigation, including Vincent Palermo, then the Acting Boss of the Decavalcante Family, sensitive information, including (a) two separate written lists of the people to be indicted; (b) the charges on which they were to be indicted; (c) the names of some extortion victims who were being investigated; (d) the fact that a confidential informant was using concealed recording devices to tape-record Palermo; (e) information about the identity of that informant; (f) the fact that the Grand Jury investigation "involved cell phones" that the government was monitoring; (g) the fact that among the charges being considered by the grand jury were murders; and (h) the date on which the forthcoming arrests were to occur.

This evidence clearly supports the charge that Giovanelli's endeavor — namely, that of passing along that information to the targets of the investigation — had "the natural and probable effect of interfering with the due administration of justice." Further, the fact that Giovanelli was a high-ranking member of the Genovese Family, and the fact that he passed the information, inter alia, to the Acting Boss of the Decavalcante Family, supports the view that Giovanelli knew "that his actions [were] likely to affect the judicial proceeding." Aguilar, 515 U.S. at 599, 115 S.Ct. 2357. The evidence also indicates that Giovanelli purloined information from the grand jury, or at least knew that it had been unlawfully obtained. Cf. United States v. Rosner, 485 F.2d 1213, 1228 (2d Cir.1973). Though not itself an element of the specific § 1503 offense charged, this evidence adds support to the conclusion that he acted with the requisite knowledge and corrupt purpose to violate § 1503. Because Giovanelli then provided that information directly to the targets of the grand jury's investigation, his attempt to analogize his case to those of Aguilar and Schwarz — cases in which a defendant lied to a government investigator with no obvious connection to a particular grand jury proceeding — is unconvincing.

II. The Jury Charge

Giovanelli's second contention on appeal is that, even if the evidence was sufficient to support the jury verdict, his convictions should nevertheless be overturned because Judge Rakoff's jury charge was defective. To support this argument, Giovanelli points to the fact that Judge Rakoff's charge failed to include the "natural and probable" language of Aguilar — even though, as Giovanelli concedes, Judge Rakoff did require the jury to find that Giovanelli had "the specific motive or purpose of obstructing or impeding the grand jury's proceedings" in order to convict.

Under Rule 30(d) of the Federal Rules of Criminal Procedure, a party who has an objection to the charge given by the trial court "must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate." FED. R. CRIM. PROC. 30(d). And a party does not satisfy this burden merely by submitting its own proposed language as part of a requested charge. See, e.g., United States v. Crowley, 318 F.3d 401, 411 (2d Cir.2003) ("[A] request for an instruction before the jury retires does not preserve an objection to the instruction actually given by the court.") (internal quotation marks...