U.S. v. Uccio
| Citation | 940 F.2d 753 |
| Decision Date | 15 July 1991 |
| Docket Number | No. 1469,D,1469 |
| Parties | UNITED STATES of America, Appellee, v. Nicholas UCCIO, Defendant-Appellant. ocket 91-1057. |
| Court | U.S. Court of Appeals — Second Circuit |
Henry J. DePippo, Asst. U.S. Atty. (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Nelson W. Cunningham, Asst. U.S. Atty., New York City, on the brief), for appellee.
Donald D. DuBoulay, New York City, for defendant-appellant.
Before KEARSE, MAHONEY and SNEED, * Circuit Judges.
Defendant Nicholas Uccio appeals from a judgment entered in the United States District Court for the Southern District of New York, Michael B. Mukasey, Judge, convicting him on one count of wire fraud, in violation of 18 U.S.C. Secs. 1343 and 2 (1988), and one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. Sec. 371 (1988), following a remand from this Court for resentencing, see United States v. Uccio, 917 F.2d 80 (1990) ("Uccio I "). On remand, Uccio was sentenced principally to consecutive prison terms of 60 months on the conspiracy count and 12 months on the substantive wire fraud count, to be followed by a three-year period of supervised release; he was also ordered to pay restitution to the victim of the fraud. The 72-month total prison term was an upward departure from the 51- to 63-month range indicated by the federal Sentencing Guidelines ("Guidelines"). On appeal, Uccio contends that this departure from the Guidelines range was improper principally because (1) the district court relied on a ground it had eschewed in its initial sentencing, and (2) the ground of the departure was impermissible because the conduct on which it was based could not have supported a federal conviction if prosecuted separately. For the reasons below, we reject Uccio's contentions and affirm the judgment.
The background of the present prosecution is set forth in some detail in Uccio I, 917 F.2d 80, and we briefly summarize here only the facts and proceedings pertinent to the present appeal. The events are no longer materially in dispute.
One of Uccio's coconspirators, Gregory Barton, was employed by Shearson Lehman Hutton, Inc. ("Shearson"), in a department that maintained an account containing funds mistakenly transferred to Shearson by banks and other financial institutions. Barton's duties included returning the misdirected funds to their sources when the correct sources were learned. In late 1987, Barton agreed with Uccio, codefendant Manos Sarantopoulos, and several others to attempt to transfer approximately $7.4 million from this account to an account opened by the coconspirators in the Philippines. Barton made that transfer in January 1988.
Within a month, the coconspirators had transferred most of the money from the Philippines to a bank in Hong Kong. Sarantopoulos's job was to take the money from Hong Kong to London. He opened the appropriate account in London and then flew to Hong Kong to obtain checks for $3.5 million of the stolen money. He ultimately failed in his mission, however, because by the time he had returned to London with the checks, payment on the checks had been stopped.
When Sarantopoulos returned to New York without having completed the transfer, the other coconspirators suspected that he was double-crossing them and keeping the money for himself. Uccio and an associate therefore kidnaped Sarantopoulos, held him in a locked room, hit him, and "pricked" him with a knife in an attempt to force him to produce the money. As a result, Sarantopoulos agreed to attempt to retrieve the money; Uccio thereupon let him go. Though Sarantopoulos again failed, Uccio and the other coconspirators continued to pursue plans for other transfers from the Shearson account.
Uccio, arrested with several others in November 1988, was eventually convicted, after trial, of wire fraud relating to the $7.4 million transfer from Shearson and of conspiracy to commit wire fraud.
The initial sentencing calculation, based on a total offense level of 22 and a criminal history category of III, resulted in a sentencing range of 51 to 63 months. The probation department's Presentence Report ("PSR"), however, suggested several possible grounds for an upward departure, including (1) Uccio's conduct in kidnaping and assaulting Sarantopoulos in furtherance of the wire fraud scheme, and (2) the fact that Uccio had a prior conviction that, because of its age and the brevity of the sentence, was not included in the calculation of his criminal history. In addition, the court suggested a possible upward departure based on Uccio's tape recorded statements, introduced at trial, that he was involved in numerous other "things" with his "people" in New York, which the court inferred meant other criminal conduct.
In support of its suggestion for an upward departure based on the kidnaping and assault of Sarantopoulos, the PSR relied on Guidelines Sec. 5K2.4, which allows an upward departure where "a person is abducted ... or unlawfully restrained to facilitate commission of the offense" of conviction. In opposition, Uccio argued that Sec. 5K2.4 deals only with the abduction or unlawful restraint of victims of the underlying offense and that it was not the intent of the Guidelines to enhance punishment for violence against a coparticipant in the crime. The district court apparently agreed with Uccio, stating,
I will go along with you saying that[.] I think [Sec. 5K2.4] really talks about a situation in which you in essence kidnap a victim in some fashion or other in order to facilitate the crime, not in which there is a falling out among the people involved and one of them resorts to violence against the other in order to get him to do what he's supposed to do. I agree with that.
(Sentencing Transcript, February 5, 1990 ("Feb. Tr."), at 12-13.)
The district court concluded, however, that an upward departure was warranted on the other suggested grounds, stating, in pertinent part, that
[b]ecause of the substantial record this defendant has, because of the apparent other activities that he was engaged in at the time, because of the violence that it [sic ] was associated with making sure that the scheme went forward, I think all of those factors warrant a sentence upward of the guideline.
(Feb. Tr. at 14-15.) Uccio was eventually sentenced principally to prison terms totaling 78 months, to be followed by a three-year term of supervised release.
Uccio appealed that sentence to this Court, challenging, inter alia, the upward departure from the recommended Guidelines range, and in Uccio I we vacated the judgment. In light of two recent decisions of this Court concerning the procedures to be followed in making an upward departure, United States v. Kim, 896 F.2d 678 (2d Cir.1990), and United States v. Colon, 905 F.2d 580 (2d Cir.1990), neither of which had been available to the district court at its sentencing of Uccio, the government consented to a remand for reconsideration of the upward departure. This Court agreed that a remand for resentencing was required in order to permit the court to make factual findings in accordance with those cases. Uccio I, 917 F.2d at 85.
In connection with Uccio's argument to the district court that the upward departure could not permissibly be based on the kidnaping and assault of Sarantopoulos, we observed that
[t]he district court agreed with defendant's position that the use of violence against a person involved in committing a crime, rather than against a victim, was not the type of conduct contemplated as the basis for an upward departure under section 5K2.4.
Id. at 82-83. Noting that this suggestion by the court, "that it would not rely on the kidnapping as the basis for departure, arguably depriv[ed] the defense of its opportunity to fully challenge its use as an upward departure factor," id. at 86, we stated that the district court would have the opportunity on remand to clarify the "violence ... associated with making sure that the scheme went forward" on which it based its upward departure.
On remand, the district court held a conference on December 6, 1990, at which it notified the parties that it would consider departing upward from the Guidelines range on two bases: (1) Uccio's kidnaping and assault of Sarantopoulos, and (2) recorded statements by Uccio that the court interpreted to refer to other criminal activities committed by Uccio with others. The court invited the parties to submit their positions in writing. Uccio opposed both grounds. The government expressed its doubt that the latter basis could be sustained, and it urged that there be an upward departure solely on the basis of the Sarantopoulos kidnaping and assault.
At the resentencing hearing held on December 21, 1990, the court decided to ground its upward departure only on the kidnaping and assault of Sarantopoulos, indicating that this conduct, which was designed to facilitate the commission of the underlying offenses, was an aggravating circumstance sufficient to warrant a departure. In response to Uccio's attorney's argument that at the original sentencing hearing the court had viewed Guidelines Sec. 5K2.4 as inapplicable where the victim of the kidnaping was not a victim of the underlying crime, the court stated that
[t]he violence is clearly associate[d] with the commission of the offense. Any views I expressed initially about [Sec.] 5K2.4 being confined strictly to victims of the offense I now believe to be incorrect. I can see an excellent reason why one should not confine that guideline simply to victims of the offense, because to do so, among other things, it [sic ] will simply conclude that anything that goes on between co-conspirators is, in essence, their own business, and that is just not warranted.
(Sentencing Transcript, December 21, 1990 ("Dec. Tr."), at 6.)
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