U.S. v. Napoli
| Citation | 179 F.3d 1 |
| Decision Date | 28 April 1999 |
| Docket Number | Docket No. 98-1124 |
| Parties | , UNITED STATES of America, Appellee, v. John NAPOLI, a/k/a John Bianco, a/k/a "Vince," Defendant-Appellant, Barry D. Pincus; Robert San Filippo; Darrin Wigger, Defendants. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Azra Rayches Feldman, Feldman and Feldman, Rosyln, New York, for Defendant-Appellant.
Debra Newman, Assistant United States Attorney, Brooklyn, New York (Zachary W. Carter, United States Attorney for the Eastern District of New York, Emily Berger, David C. James, Jo Ann Navickas, Assistant United States Attorneys, on the brief), for Appellee.
Before: Feinberg, Calabresi and Sotomayor, Circuit Judges.
Following a jury trial in the United States District Court for the Eastern District of New York (Mishler, J.), John Napoli was convicted of one count of conspiracy to commit wire fraud and money laundering in violation of 18 U.S.C. § 371, twenty-one counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B), nine counts of wire fraud in violation of 18 U.S.C. § 1343, one count of conspiracy to commit bank fraud in violation of 18 U.S.C. § 371, and one count of bank fraud in violation of 18 U.S.C. § 1344. The district court sentenced Napoli principally to 210 months imprisonment and 36 months supervised release. Napoli appeals his conviction on grounds that we reject in a summary order issued simultaneously with this opinion. United States v. Napoli, No. 98-1124, 1999 WL (, 1999). In this opinion, we address only Napoli's sentencing claims.
Napoli maintains on appeal that the district court erred by (1) failing to group his convictions for wire fraud and money laundering as "related" counts under § 3D1.2 of the United States Sentencing Guidelines ("U.S.S.G." or the "Guidelines"); 1 (2) failing to treat two of his prior convictions that were consolidated for sentencing as "related" under § 4A1.2; (3) assigning him a four-level offense level increase as an organizer or leader of a criminal activity under § 3B1.1(a); (4) assigning him criminal history points for three prior convictions under §§ 4A1.1 and 4A1.2(e); and (5) declining to depart downwardly because of his heart impairments and cooperation with state law enforcement authorities.
We hold that the district court properly decided not to group Napoli's wire fraud and money laundering counts of conviction and affirm the court's treatment of these counts as "unrelated" under § 3D1.4. We also hold that prior convictions, administratively consolidated for sentencing after a transfer under Rule 20 of the Federal Rules of Criminal Procedure ("Rule 20"), should be treated as unrelated when the convictions are factually different. We therefore affirm the district court's treatment of Napoli's prior convictions as "unrelated" under § 4A1.2. Napoli received an incarceration sentence for one of these convictions that was later reduced to probation, however, and we remand for the district court to determine whether it properly assigned Napoli criminal history points for that conviction. We reject all of Napoli's remaining challenges to his sentence and affirm the district court's rulings.
According to the government's witnesses at trial, including Napoli's three accomplices--i.e., Robert San Filippo, Darrin Wigger and Barry Pincus, all of whom had signed cooperation agreements with the government--Napoli devised a scheme to lure buyers in foreign countries into making sizeable deposits for the delivery of large quantities of cigarettes. Napoli, however, had neither a supply of cigarettes nor the intention of delivering any. In February 1995, the first buyer, Evangelist Gatzones, sent Napoli's accomplice, San Fillippo, a deposit in the form of a cashier's check in the amount of $100,000. Napoli instructed San Fillippo to deposit the check at Trump Plaza casino in Atlantic City, New Jersey, and to gamble a portion of it without losing more than $10,000. San Fillippo followed these instuctions and gave Napoli a remaining $91,000 cash balance the next day.
Because the second buyer, Irena Fishman, hesitated to give a deposit without any security, Napoli arranged for the deposit to be held in escrow with Pincus, a lawyer, pending confirmation of the buyer's receipt of the promised cigarettes. Satisfied with this security, Fishman sent San Fillippo a certified check on February 27, 1995, in the amount of $60,000 for deposit into Pincus's escrow account. Initially, Pincus refused to give Napoli the funds in escrow until Napoli delivered the goods. Pincus released the monies, however, after Napoli threatened to kill him. Once again, Napoli instructed San Fillippo to gamble a portion of this money at Trump Plaza casino. San Fillippo lost $50,000 and gave the remainder to Napoli in cash.
On March 18, 1993, Fishman sent Pincus another certified check in the amount of $100,000. Another buyer, Romeo Walser, also deposited a certified check in the amount of $600,000 in Pincus's escrow account. Napoli directed Pincus to write a check payable to the Trump Taj Mahal casino in the amount of $180,000, which Pincus did. San Fillippo then deposited the check at the casino and tried to withdraw the money, but the casino permitted only an initial withdrawal of $50,000. After San Fillippo won $15,000 gambling, Napoli ordered San Fillippo to demand the release of the rest of their funds. San Fillippo made the demand and the casino complied nine days later, after the deposited check had cleared. San Fillippo and Wigger delivered the money to Napoli after their return from Atlantic City.
Between April 5, 1995 and July 31, 1995, checks sent by other buyers to Pincus's escrow account were transferred into Wigger's Off Track Betting account and into various other accounts at banks and at Merrill Lynch. At Napoli's direction, those funds were then withdrawn and given to him. Napoli used a portion of these funds to finance a gourmet market and his daily living expenses.
In order to explain his wealth during the time of the charged conspiracy, Napoli presented trial witnesses who testified about his successful history as a gambler. At the end of the trial, the jury convicted Napoli on all counts.
Prior to his sentencing, Napoli raised various objections to the offense level and criminal history calculations contained in his Pre-Sentence Report ("PSR"), all of which the district court rejected in a written opinion dated February 25, 1998. First, Napoli argued that his wire fraud and money laundering counts should have been grouped as "related counts" under § 3D1.2. Napoli maintained that the PSR's treatment of these counts as "unrelated" under § 3D1.4 thus resulted in an improper one-level enhancement to his base offense level. The district court rejected Napoli's contention, citing, without discussion, United States v. Lombardi, 5 F.3d 568 (1st Cir.1993), and United States v. Harper, 972 F.2d 321 (11th Cir.1992) (per curiam).
Second, Napoli claimed that his base offense level should have been enhanced by only two levels for his leadership role in the offense because his criminal activity involved less than five participants and was not "otherwise extensive." The district court disagreed, finding that the combination of four knowing participants with numerous other unknowing participants qualified Napoli's scheme as "otherwise extensive" and justified a four-level leadership enhancement under § 3B1.1(a).
Third, Napoli maintained that two of his prior sentences, which had been administratively consolidated for sentencing pursuant to Rule 20, were "related" as that term is defined in 4A1.2(2), thereby qualifying him for three less criminal history points than the six recommended in his PSR. The district court, however, held that the facts of the two prior crimes, as set forth in the PSR, "clearly show[ed] that the crimes were unrelated" for purposes of § 4A1.2(2).
Fourth, Napoli challenged the PSR's assignment of one criminal point each to three other of his prior convictions. Napoli argued that the sentences for those convictions should have been deemed as imposed more than ten years before the commencement of the instant offense, and that for this reason, these convictions should not have been counted as part of Napoli's criminal history points under § 4A1.1 and § 4A1.2(e). Without addressing Napoli's arguments, the district court simply adopted the PSR's calculations.
Finally, Napoli sought a downward departure under §§ 5H1.4, 5K1.1 or 5K2.0 because of his poor heart condition and his cooperation with state law enforcement agencies. The district court held that in the absence of a § 5K1.1 downward departure motion by the government, the court lacked authority to depart and that even if it had such authority, it would decline to use it because Napoli's seeming cooperation was only a "means for facilitating his criminal activities." In particular, the court found that during his cooperation with state authorities, Napoli stole $120,000 of government funds and supplied government agents with "bogus narcotics" in the undercover transactions in which they were engaged. The district court also considered, but rejected, Napoli's heart condition as a ground for departure after determining that the Bureau of Prisons, which had treated Napoli since his arrest in December 17, 1996, had the ability to provide adequate care for Napoli's condition.
For the reasons discussed in its written opinion and at sentencing, the district court adopted the factual findings of the PSR and its offense level and criminal history calculations. The court sentenced Napoli to 210 months' of imprisonment, followed by three years of supervised release, restitution in the amount of $1,199,400, and a special assessment of $1,650. This appeal followed.
We review the factual determinations underlying the...
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