U.S. v. Lanese

• Decision Date: 21 June 1991
• Docket Number: D,No. 853,853
• Parties: UNITED STATES of America, Appellee, v. Michael Vincent LANESE, a/k/a "Vinnie", Joseph Iannucci, a/k/a "Joey I's", and Thomas Romano, a/k/a "T.R.", Defendants, Michael Vincent Lanese, a/k/a "Vinnie", Defendant-Appellant. ocket 90-1525.
• Court: U.S. Court of Appeals — Second Circuit

Page 54

937 F.2d 54

UNITED STATES of America, Appellee, v. Michael Vincent LANESE, a/k/a "Vinnie", Joseph Iannucci, a/k/a "Joey I's", and Thomas Romano, a/k/a "T.R.",

Defendants,

Michael Vincent Lanese, a/k/a "Vinnie", Defendant-Appellant.

No. 853, Docket 90-1525.

United States Court of Appeals, Second Circuit.

Argued Feb. 22, 1991.

Decided June 21, 1991.

Paul B. Bergman, New York City, for defendant-appellant.

John H. Durham, Asst. U.S. Atty. for the District of Connecticut, New Haven, Connecticut (Stanley A. Twardy, Jr., U.S. Atty. for the District of Connecticut, New Haven, Conn., of counsel), for appellee.

Before FEINBERG, MINER, and MAHONEY, Circuit Judges.

PER CURIAM:

Under section 3B1.1(b) of the Sentencing Guidelines, a defendant's offense level is increased by three if the court finds that he was a "manager or supervisor ... and the criminal activity involved five or more participants or was otherwise extensive." U.S.S.G. Sec. 3B1.1(b). ¹ This appeal presents the principal question whether the activity of collecting a debt by extortionate means may be considered "otherwise extensive" due to its connection with an illegal gambling operation. On remand from this court, see United States v. Lanese, 890 F.2d 1284 (2d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2207, 109 L.Ed.2d 533 (1990) ("Lanese I"), the district court found such activity "otherwise extensive." We affirm.

Following a jury trial in the United States District Court for the District of Connecticut, Jose A. Cabranes, Judge, defendant-appellant Michael Vincent Lanese and two codefendants, Thomas Romano and Joseph Iannucci, were convicted of using, and conspiring to use, extortionate means to collect an extension of credit in violation of 18 U.S.C. Sec. 894(a)(1) (1988). The charges arose from their efforts to collect gambling debts from Eugene Golino, the government's principal witness.

In the fall of 1986, Golino began placing bets with Iannucci's gambling business in Bridgeport, Connecticut. Golino placed his wagers by telephone with a man named Dave, whom Golino never met, and settled accounts at Iannucci's barber shop. Having incurred a $12,000 debt, Golino told Iannucci he was unable to make immediate payment. Iannucci told Golino to expect a visitor, and subsequently Arnold Plotkin, an unindicted coconspirator, demanded payment from Golino after displaying a baseball bat and a gun to him.

After repaying the $12,000, Golino ran up a fresh debt of nearly $30,000. He was again approached by Plotkin, who demanded monthly payments. In September 1987, Plotkin introduced Golino to Romano, and Romano assumed Plotkin's role of collecting monthly payments. In addition, Romano provided Golino with telephone numbers so that Golino could place bets on football games with a man named Butch, and on basketball games with a man named Woody.

By December 1987, Golino had incurred approximately $80,000 in gambling debts with the bookmakers for Iannucci and Romano. When Golino and Romano met at a Bridgeport diner to discuss the debt, Romano summoned Lanese to the diner. Lanese, who was armed, demanded the money and required that Golino sign a promissory note, payable to Lanese, in the amount of $80,000. After Golino began to cooperate with the Federal Bureau of Investigation in January 1988, he again met with Romano and Lanese to discuss his debt, this time at a Bridgeport restaurant.

Following Lanese's conviction at trial, the district court sentenced him to 78 months imprisonment, a three-year term of supervised release, and a $25,000 fine. Lanese's offense calculation was increased three levels on the basis that he was a "manager or supervisor ... and the criminal activity involved five or more participants" within the meaning of section 3B1.1(b).

On appeal, we affirmed Lanese's conviction but remanded for further factual findings with regard to his sentence. See Lanese I, 890 F.2d at 1294. Lanese had not disputed that he acted as a "manager or supervisor." Id. at 1293. We found it "unclear," however, "whether there [was] sufficient evidence to support the district court's determination as to the number of 'participants,' for purposes of section 3B1.1(b)," and directed the district judge to make "a specific finding as to the identities of the 'participants.' " Id. at 1294. We also noted that although the district court had made no determination whether the criminal activity was "otherwise extensive," it could make such a finding on remand. Id.

Upon remand, the district court directed the parties to submit proposed findings of fact and conclusions of law. The court thereafter ruled that the sentence originally imposed was appropriate under the Sentencing Guidelines. First, the court found by a preponderance of the evidence that there were seven participants in the criminal activity that Lanese managed or supervised. In addition to Lanese, Romano, Iannucci, and Plotkin, the court specified Gary Tanguay, another man identified only as "Walt," and Michael Cuny. The court found that Tanguay and Walt had provided countersurveillance from nearby vehicles when Lanese met with Golino for the second time. In addition, the court found that Cuny had provided similar countersurveillance on a separate occasion, and had "witnessed" the nonexistent signature of Golino on a promissory note payable in the amount of $40,000 to Lanese.

Second, the district court concluded that "[t]he criminal activity in which Lanese was involved was 'otherwise extensive.' " In particular, the court found that Golino's debts arose out of an illegal gambling operation controlled by Lanese and Iannucci; that Golino placed bets with three different bookmakers for that organization (namely, Dave, Woody, and Butch); and that gambling records seized from Iannucci reflected substantial debts from several persons other than Golino.

The court accordingly reimposed the original sentence. This appeal followed.

Lanese challenges both of the district court's conclusions. He contends that a finding of "five or more participants" was unsupported by the evidence because there was no showing that Tanguay, Walt or Cuny was criminally responsible for the extortion of Golino, or were participants in that offense conduct. Lanese further contends that the district court, in finding the criminal activity "otherwise extensive," improperly relied on the ongoing illegal gambling.

Both arguments proceed from the premise that the "criminal activity" that a court may consider for purposes of section 3B1.1(b) is limited to the conduct constituting the offense of conviction, in this case the extortion of Golino. Admittedly, our prior opinion in Lanese I can be read as supportive of this position. We there noted that with the participation of the three bookmakers who took bets over the telephone, "the evidence clearly show[ed] that at least five persons were involved in the illegal gambling operations." 890 F.2d at 1293. Yet we determined that the record did not clearly establish "five or more participants" within the meaning of section 3B1.1(b), since no evidence showed "that the bookmakers participated in, or had knowledge of, the use of extortionate means to collect illegal gambling debts, the crime charged." Id. (emphasis added).

Notwithstanding this prior indication, we have recently addressed the issue more directly. In United States v. Perdomo, 927 F.2d 111, 116 (2d Cir.1991), we recounted that a November 1990 amendment to the introductory commentary to Chapter 3, Part B of the Sentencing Guidelines expressly directs...