U.S. v. Licciardi

• Decision Date: 22 July 1994
• Docket Number: No. 92-10046,92-10046
• Citation: 30 F.3d 1127
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael LICCIARDI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1127

30 F.3d 1127

UNITED STATES of America, Plaintiff-Appellee, v. Michael LICCIARDI, Defendant-Appellant.

No. 92-10046.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 1, 1993.

Opinion Withdrawn July 22, 1994.

Decided July 22, 1994.

Michael Babitzke, Stockton, CA, for defendant-appellant.

Steven Lapham, Asst. U.S. Atty., Sacramento, CA, for plaintiff-appellee.

ORDER

The opinion of this court filed January 11, 1994 is withdrawn.

Before: FLETCHER, REINHARDT, and NOONAN, Circuit Judges.

OPINION

NOONAN, Circuit Judge:

Michael Licciardi appeals his conviction under 18 U.S.C. Sec. 371 of conspiracy to defraud the United States by obstructing the functions of the Bureau of Alcohol, Tobacco and Firearms (the BATF); of two convictions under 18 U.S.C. Sec. 1341 of mail fraud; and of his conviction under 18 U.S.C. Sec. 1001 of making a false statement. This case involves an effort of the government to extend substantially the scope of the general conspiracy statute. Despite disagreeing with one major theory of the government, we affirm Licciardi's conviction for conspiracy and his conviction on the other counts. We remand for resentencing.

THE INDICTMENT

Licciardi was indicted for the following offenses:

Count 1. From January 1987 to April 1989 Licciardi was charged with a conspiracy whose "object" was to "defraud the United States and its agency, the BATF, by obstructing, impairing and defeating the lawful function of the BATF to assure the integrity and varietal designations of wine through examination and analysis of records maintained honestly and accurately and free from deceit, trickery, fraud and dishonesty, in violation of Title 18 U.S.C. Sec. 371."

In Subsection b of the same count the "object of the conspiracy" was said to be the use of the mails to obtain money from Delicato Vineyards (Delicato) and other wine producers by fraud in violation of 18 U.S.C. Secs. 1341 and 2 and to conduct financial transactions involving the concealment of the proceeds of unlawful activity in violation of 18 U.S.C. Sec. 1956(a)(1).

In addition to this section of the indictment entitled "Object of the Conspiracy" was a section called "Purpose of the Conspiracy," which stated: "The purpose of the conspiracy was to obtain a higher price for defendant's grapes than those grapes would otherwise have commanded in the market place by misrepresenting the variety and appellation of origin of grapes being sold."

Counts 2 through 6 charged Licciardi and others with an attempt to defraud Delicato and others in the period January 1987 to April 1989 by false representations in connection with the purchase and sale of grapes; it asserted that in the execution of this scheme Licciardi knowingly caused mail to be mailed on five specific dates between September 22, 1988 and November 11, 1988.

Count 7 charged Licciardi with a financial transaction concealing a check for $10,000 representing proceeds from unlawful activity in violation of 18 U.S.C. Sec. 1956(a). Count 8 charged him with a similar offense as to a check for $90,000. Count 9 charged him with a similar crime as to a check for $218,652.

Count 10 charged him with a false material statement within the jurisdiction of the BATF, made on August 14, 1989, in violation of 18 U.S.C. Sec. 1001.

Counts 11 and 12 charged him with income tax evasion on his federal income tax returns from 1987 to 1988.

TRIAL

At the trial Licciardi was found guilty of conspiracy under Count 1; of two counts of mail fraud, Counts 5 and 6; and of the false statement charged in Count 10. The jury could not agree on the Count 4 charge of mail fraud. He was acquitted on the second and third charges of mail fraud and of the charge of tax evasion in 1987. The jury could not agree as to the 1988 income tax evasion count. The district court denied his motion for a new trial.

Licciardi was sentenced to 51 months imprisonment.

FACTS

As the government prevailed at trial we take the facts established by testimony from the government's point of view:

Licciardi was a partner with his father in a grape brokerage business, Corvette Company (Corvette). Corvette bought grapes from the growers and sold them, almost exclusively, to Delicato; almost 90 percent of Delicato's purchases from brokers were from Corvette. During the crush in the fall of the year, Licciardi had 24-hour access to Delicato, including the areas where the grapes were received, weighed and dumped into the crushers. During this period Licciardi occupied an office at Delicato's from which he scheduled and supervised deliveries of grapes from Corvette. His position gave him the opportunity for the deceitful transactions set out here.

During the mid-80s there was a rise in the price of Zinfandel grapes, and between 1985-1988 the price rose from $100 per ton to $900 per ton. At the same time the price of similar-looking grapes such as Mission, Grenache, Barbera, and Valdepenas remained constant at approximately $150-200 per ton.

In 1987, before the harvest, Licciardi agreed with Nick Bavaro, a wine grower, for Bavaro to deliver grapes to Delicato without field tags. A field tag is a document prepared in the field at the time the grapes are harvested. It contains the name and address of the grape grower, the grape variety, the date, the name of the trucking company providing the grapes and the license number of the trucks. The field tag is taken to the winery by the truck driver with the load of grapes. The winery then uses the information on the field tags to prepare the California Department of Food and Agriculture Weighmaster Certificate. The winery uses the field tag and the certificate to file reports required by the BATF.

Bavaro and Licciardi arranged for grapes to be delivered at hours when the state inspector was not present. Deliveries were, for example, at two, three or four a.m. In 1987, according to Bavaro, he delivered between 1,400 and 1,500 tons of Carignane, Grenache and Valdepena grapes selling at approximately $150-175 per ton. They were represented to Delicato as Zinfandel grapes selling at $500 a ton. The difference between the value of grapes actually sold and the price charged was $420,000. In 1988, according to Bavaro, he delivered about 225 tons of Grenache or Riesling grapes selling at $175-$200 per ton, represented as Zinfandel grapes worth $1,000 a ton.

In addition to his deal with Bavaro, Licciardi in 1987 entered into an agreement with Gary Alfieri by which Licciardi would arrange to mix Valdepena grapes with Zinfandel grapes coming from Alfieri's mother's property. In connection with this transaction Licciardi and Alfieri agreed to make use of a company named Viviano & Klein (V & K), a shell created and owned by Alfieri without offices, employees or assets. On Licciardi's instructions, Alfieri established a telephone number and post office box in San Francisco in the name of V & K. It was agreed that the grapes being delivered to Delicato would be delivered as coming from V & K. In 1988 Alfieri received a check for grapes delivered as Zinfandel that were in fact not Zinfandel. The check had been mailed to the post office box set up for V & K.

In 1988 Licciardi arranged for Alfieri to deliver Bavaro grapes to Delicato under the name of V & K. Also in 1988 Licciardi arranged for Alfieri to form a company called F. Riana Enterprises. A portion of the misrepresented grapes from Bavaro was delivered to Delicato under this name.

Also in 1988 Licciardi agreed with David Dedini to buy three loads of Dedini's Grenache grapes. These grapes were delivered to the Pedizitti Winery as Zinfandel; two of the three loads were rejected.

In 1987 Licciardi also arranged for the delivery to Delicato of Grenache grapes coming from property owned by the Licciardi family. The grapes were delivered as Zinfandel and were delivered at a time when the state inspectors were no longer at the winery. In 1988, too, grapes from this property were delivered to Delicato with the field tags changed to show Zinfandel.

In September 1988 Richard Gahagan, a representative of the BATF, and Eugene Arthur, a representative of the California Department of Food and Agriculture (CDFA), met with Licciardi to inquire about the deliveries made by V & K and Riana. They wanted to know who the principals were and where the grapes came from. Licciardi told them that he had had dealings with Mr. Klein and Mr. Riana.

Soon after this meeting Licciardi got together Bavaro, Alfieri, Dedini, and two others and told them the state was asking for maps and information regarding the location of V & K and Riana Vineyards. Licciardi told Alfieri to write a letter to Corvette stating that Bavaro had made the deliveries under these names, and he told Bavaro to write a letter to Delicato confirming this story. Alfieri and Bavaro complied. Licciardi provided their letters to Delicato, which, on November 23, 1988, provided them to the CDFA. On November 25, 1988 Licciardi mailed a letter to the CDFA stating that he had visited the vineyards of V & K.

On August 14, 1989, Licciardi was present at a meeting requested by his father with the federal agents. Licciardi told the agents that he had visited the Riana and V & K Vineyards and had talked to representatives of these wineries.

ANALYSIS

The Validity of Count 1 of the Indictment

Prior to trial, Licciardi challenged Count 1 as duplicitous, that is, as stating two distinct charges, a conspiracy to defraud the United States and a conspiracy to commit mail fraud. In making the challenge prior to trial Licciardi followed exactly Fed.R.Crim.P. 12(b)(2) and our holding in United States v. Gordon, 844 F.2d 1397, 1400 (9th Cir.1988). In moving for a new trial, Licciardi forcefully renewed the objection. He did not waive it in the trial court.

According to Gordon, an indictment that charges a conspiracy to defraud the United States and a second conspiracy to cover up the fraud is duplicitous and...