U.S. v. Savoie

• Decision Date: 04 January 1993
• Docket Number: No. 92-1920,92-1920
• Parties: UNITED STATES of America, Appellee, v. Paul J. SAVOIE, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 612

985 F.2d 612

UNITED STATES of America, Appellee, v. Paul J. SAVOIE, Defendant, Appellant.

No. 92-1920.

United States Court of Appeals, First Circuit.

Heard Jan. 4, 1993.

Decided Feb. 8, 1993.

Robert B. Mann, with whom Mann & Mitchell, Providence, RI, was on brief, for defendant, appellant.

Edwin J. Gale, First Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, RI, was on brief, for the U.S.

Before BREYER, Chief Judge, ALDRICH, Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

We consider today a golconda of challenges mined by defendant-appellant Paul J. Savoie in a relentless effort to ameliorate a sentence imposed in the district court. Concluding, as we do, that appellant is digging in barren soil, we affirm the judgment below.

I. BACKGROUND

For several years, appellant led a double life. While serving as a policy adviser to the mayor of Pawtucket, Rhode Island, he was also part of a trio of high-ranking city officials who systematically exploited the public trust for personal profit. The other two members of the tarnished troika were the mayor, Brian Sarault, see United States v. Sarault, 975 F.2d 17 (1st Cir.1992), and the acting public works director, Louis Simon. Because of the extensive range and reach of the triumvirate's illegal activities, we abjure any attempt to describe the plot at this juncture. We will, however, refer to certain relevant outrages in connection with our canvass of appellant's arguments on appeal.

Savoie eventually pleaded guilty to one count of racketeering, see 18 U.S.C. § 1962(c) (1988), and two counts of extortion, see 18 U.S.C. § 1951 (1988). ¹ At sentencing, the district court reviewed the presentence investigation report (PSI Report), appellant's objections thereto, and transcripts of grand jury testimony furnished by the government. Appellant chose to present no independent evidence (although he did rely on his description of the offense as related to the probation officer and incorporated in the PSI Report).

For the most part, the district court adopted the PSI Report's suggested findings. The court calculated the guideline sentencing range (GSR) at 41-51 months (offense level 22/criminal history category I) and imposed an incarcerative sentence at the top of the range. The court also imposed a three-year term of supervised release, a $7,500 fine, a $150 special felony assessment, and 150 hours of community service. Finally, the court ordered Savoie to make restitution in the sum of $93,476.67. This appeal followed.

II. DISCUSSION

We have grouped appellant's myriad complaints under four headings. We discuss them sequentially.

A. The Role-in-the-Offense Adjustment.

The sentencing guidelines mandate a three-level upward adjustment if "the defendant was a manager or supervisor ... and the criminal activity involved five or more participants or was otherwise extensive." U.S.S.G. § 3B1.1(b) (Nov.1991). Appellant claims that the district court erred in relying on this proviso. In this case, the criminal activity was extensive enough to satisfy the guideline. The only cognizable question, then, is whether the sentencing court erred in determining that appellant was a manager or supervisor of the ring. Where, as here, the sentencing court's decision to apply a role-in-the-offense adjustment is factbound, we review the determination only for clear error. See United States v. Dietz, 950 F.2d 50, 52 (1st Cir.1991); United States v. Diaz-Villafane, 874 F.2d 43, 48 (1st Cir.), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989).

In making a role-in-the-offense determination, the sentencing court need not wear blinders but may look beyond the count of conviction to the whole of the defendant's relevant conduct. See United States v. Ruiz-Batista, 956 F.2d 351, 353 (1st Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 105, 121 L.Ed.2d 64 (1992); see also U.S.S.G. Ch. 3, Pt.B, intro. comment. Managerial status may attach if there is evidence that a defendant, in committing the crime, exercised control over, or was otherwise responsible for overseeing the activities of, at least one other person. See, e.g., United States v. Veilleux, 949 F.2d 522, 524 (1st Cir.1991); United States v. Akitoye, 923 F.2d 221, 227 (1st Cir.1991); United States v. Fuller, 897 F.2d 1217, 1220-21 (1st Cir.1990). The evidence of such control need not be direct. See Diaz-Villafane, 874 F.2d at 48 (observing that felons are "unlikely to make much use of position descriptions or organizational charts"). Where numerous participants are involved, or the criminal activity is otherwise extensive, the court must often make hierarchical distinctions between those at the very top of the criminal enterprise (the organizers or leaders) and those who, while in positions of executive authority, are lower on the totem pole (the managers or supervisors). In making such fine distinctions, the indicia of executive status include such things as the defendant's role in recruiting accomplices, the degree and nature of the defendant's participation in planning and implementing the offense, the defendant's exercise of decisionmaking authority, and the defendant's level of remuneration relative to other participants (including the presence or absence of a claimed right to a share of the crime's fruits). See U.S.S.G. § 3B1.1, comment. (n.3); see also United States v. Sostre, 967 F.2d 728, 733 (1st Cir.1992); United States v. Panet-Collazo, 960 F.2d 256, 261 (1st Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 220, 121 L.Ed.2d 158 (1992).

Here, the record is fairly bursting at the seams with evidence buttressing the inference of managerial status. In addition to extorting funds himself, appellant used internuncios (e.g., Joseph Stifano, Robert Langlois) as conduits for obtaining bribes; ² manipulated Pawtucket's highway director (Ron Lieto) in order to extract free services for himself from a contractor doing business with the City; gave occasional directions to his fellow triumvir, Louis Simon; and, in general, as the district judge aptly put it, "made some rather significant decisions, including the decision of how much [would be demanded] and from whom [it would be extorted]."

We are completely unmoved by appellant's plea that he was merely a footsoldier in Mayor Sarault's iniquitous army. A defendant need not be the highest ranking member of a criminal troupe in order to be a manager or supervisor. Indeed, the applicable guideline provision stresses that managerial role adjustments, as opposed to other upward role-in-the-offense adjustments, apply to defendants who were managers or supervisors, but not organizers or leaders. See U.S.S.G. § 3B1.1(b). In other words, Sarault's acknowledged status as the commander-in-chief is not in any sense inconsistent with the court's finding that appellant was his lieutenant. See, e.g., United States v. Iguaran-Palmar, 926 F.2d 7, 10 n. 1 (1st Cir.1991).

We will not paint the lily. Appellant was a prime mover in a pervasive pattern of municipal corruption lasting for several years. He gave orders, participated in setting policy, made decisions, and shared handsomely in the booty. The evidence here is more than sufficient to ground the district court's finding that appellant served the ring in a managerial capacity. See United States v. St. Cyr, 977 F.2d 698, 706 (1st Cir.1992) (holding that "when there are two plausible views of the record, the sentencing court's adoption of one such view cannot be clearly erroneous"); Diaz-Villafane, 874 F.2d at 49 (similar; discussing role-in-the-offense adjustments).

B. The Restitution Order.

As part of the Victim and Witness Protection Act of 1982 (VWPA), Congress authorized district courts to order that convicted defendants make restitution to victims. See 18 U.S.C. §§ 3556, 3663, 3664 (1988 & Supp.1990). ³ The federal sentencing guidelines themselves require such orders in many circumstances. See U.S.S.G. § 5E1.1. In this instance the district court ordered restitution, directing that appellant repay, in installments, a total of $93,476.67. ⁴ Appellant attacks the order on three grounds. He is shooting blanks.

1. The Computation. The VWPA provides that, in determining the size of a restitution order, a court must consider, among other things, "the amount of the loss sustained by any victim as a result of the offense." 18 U.S.C. § 3664(a). When this amount is disputed, the government bears the burden of establishing it by a preponderance of the evidence. See 18 U.S.C. § 3664(d). Because a determination of victim loss is fact-intensive, we review it only for clear error. See United States v. Teehee, 893 F.2d 271, 273-75 (10th Cir.1990).

The law cannot be blind to the fact that criminals rarely keep detailed records of their lawless dealings, totalling up every column and accounting for every misbegotten dollar. Hence, the preponderance standard must be applied in a practical, common-sense way. So long as the basis for reasonable approximation is at hand, difficulties in achieving exact measurements will not preclude a trial court from ordering restitution. See United States v. Hand, 863 F.2d 1100, 1104 (3d Cir.1988); see also S.Rep. No. 532, 97th Cong., 2d Sess. 31, reprinted in 1982 U.S.C.C.A.N. 2515, 2537 (explaining that "where the precise amount owed is difficult to determine, [the VWPA] authorizes the court to reach an expeditious, reasonable determination of appropriate restitution by resolving uncertainties with a view toward achieving fairness to the victim").

In this case, appellant contends that the restitution order is invalid because the court's recapitulation of losses to victims lacks an adequate evidentiary foundation. We disagree. The racketeering count to which appellant pleaded guilty enumerated twenty-four racketeering acts. The computation of victim loss followed this roadmap. The district court scrutinized transcripts of grand jury testimony designed to...