U.S. v. Uccio
| Decision Date | 17 October 1990 |
| Docket Number | D,1646,Nos. 1645,s. 1645 |
| Citation | 917 F.2d 80 |
| Parties | UNITED STATES of America, Appellee, v. Nicholas UCCIO and Manos Sarantopoulos, Defendants-Appellants. ockets 90-1095, 90-1166. |
| Court | U.S. Court of Appeals — Second Circuit |
Donald duBoulay, New York City, for defendant-appellant Uccio.
David E. Liebman, New York City, for defendant-appellant Sarantopoulos.
Mark E. Matthews, New York City, Asst. U.S. Atty. for the Southern District of New York (Otto G. Obermaier, U.S. Atty. for the Southern District of New York, Henry J. DePippo, Kerri Martin Bartlett, Asst. U.S. Attys., of counsel), for appellee.
Before FEINBERG and CARDAMONE, Circuit Judges, CABRANES, District Judge. *
Nicholas Uccio and Manos Sarantopoulos appeal from judgments of conviction entered in the United States District Court for the Southern District of New York, Michael B. Mukasey, J., following a jury trial. Appellants were each found guilty on both counts of a two-count indictment charging them with wire fraud in violation of 18 U.S.C. Sec. 1343 and with conspiring to commit that offense.
Uccio's challenges relate only to his sentencing. He contends that the district judge was without jurisdiction to correct an improper sentence; that the judge's upward departure from the Sentencing Guidelines was substantively and procedurally flawed; and that the addition of a restitution term in the corrected sentence offended the Double Jeopardy Clause. Because, as set forth below, requirements for upward departure mandated by several of this court's recent decisions were not met, we remand for resentencing. The only issue on Sarantopoulos's appeal is whether it was proper to deny his severance motion. For reasons given below, we hold that it was and therefore affirm his conviction.
Defendants Uccio and Sarantopoulos participated in a scheme to obtain money from Shearson Lehman Hutton, Inc. ("Shearson") through the use of fraudulent wire transfers. The original three-count indictment, filed in December 1988, charged two separate conspiracies in separate counts and a single substantive count of wire fraud. The first two counts charged Uccio, Sarantopoulos and others with conspiring to commit wire fraud by fraudulently transferring $7.4 million from Shearson for their own use ("the first conspiracy"), and with a substantive count of wire fraud in relation to that transfer. The first conspiracy allegedly continued from January 1988 to the date of the indictment. The third count charged Uccio and others, but not Sarantopoulos, with conspiring to commit wire fraud by fraudulently attempting to transfer an additional $12 million from Shearson for their own use ("the second conspiracy"). The second conspiracy allegedly continued from April 1988 to June 1988.
In February 1989, Sarantopoulos moved to sever the third count of the original indictment, i.e., the second conspiracy, pursuant to Rules 8 and 14, Fed.R.Crim.P. While the severance motion was pending, the government filed a two-count superseding indictment in March 1989, consolidating what had been two separate conspiracy counts into a single conspiracy count that named all the defendants ("the overall conspiracy"). The overall conspiracy allegedly continued from January 1988 to November 1988. Sarantopoulos renewed his motion for a severance, which was denied.
Uccio and Sarantopoulos were tried on the superseding indictment. The district court instructed the jury that if, as the defense had argued, the government had proved one or more separate conspiracies, but had failed to prove the single overall conspiracy charged in the indictment, the defendants must be acquitted on the conspiracy count. The jury returned verdicts of guilty against Uccio and Sarantopoulos on both the conspiracy count and the substantive count.
Sarantopoulos was sentenced in January 1990 to concurrent terms of 40 months of imprisonment on each count, a fine of $10,000 and a three-year term of supervised release. Uccio was originally sentenced in early February 1990 and resentenced 11 days later. The terms and circumstances of Uccio's sentence were considerably more complicated, as set forth below.
Uccio first appeared for sentencing on February 5, 1990. In its presentence report, the probation department calculated, pursuant to the United States Sentencing Guidelines ("U.S.S.G."), that Uccio's adjusted offense level and criminal history category resulted in a guideline range of 57 to 71 months. The probation department also reported several possible bases for upward departure. The district court heard oral argument on these issues as well as on an additional ground for upward departure raised by the court itself.
The probation department's first basis for upward departure was that the offense level inadequately reflected the magnitude of the fraud. At the time of the offense the maximum adjustment was 11 levels for all frauds in excess of $5 million. U.S.S.G. Sec. 2F1.1(b)(1)(L). In contrast, the Guidelines effective November 1, 1989 would have required an adjustment of 16 levels for the $37 million involved in this scheme. U.S.S.G. Sec. 2F1.1(b)(1)(Q) (effective November 1, 1989). (In addition to the $7.4 million transfer and the attempted $12 million transfer, there was apparently a proposal for another transfer of $18 million.) The district court rejected this basis, refusing to apply the November 1, 1989 Guidelines.
The probation department next pointed out that an upward departure might be justified by Uccio's kidnapping of co-defendant Sarantopoulos during the course of the conspiracy. The department referred to the possible applicability of section 5K2.4, which deals with abduction or unlawful restraint, and a multi-count calculation of the offense level as if Uccio had been convicted of the kidnapping. The 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.
Finally, the probation department suggested an upward departure because of the inadequacy of Uccio's criminal history category (III) in view of his criminal record. While the presentence report listed five prior convictions, three of these were not counted in calculating Uccio's criminal history category: two convictions in the 1960's for possession of policy slips and a 1976 conviction for the possession of stolen postal bonds. The probation department noted that the 1976 conviction was excluded from the calculation because Uccio's sentence was less than a year and a month and the conviction was more than ten years old. See U.S.S.G. Sec. 4A1.2(e). Uccio had been sentenced on that conviction to only one year of imprisonment, to be served consecutively to a three-year sentence he was already serving as a result of a 1975 conviction for the possession and sale of stolen traveler's checks. The probation department suggested that had Uccio not already been serving the three-year sentence, the 1976 sentence would have been longer, resulting in the addition of criminal history points sufficient to move Uccio to criminal history category IV.
While focusing on Uccio's criminal history category, the district court also asked defense counsel to address Uccio's taped statements during the course of the conspiracy that "[w]e do a lot of things with these people," which the court interpreted in context as a reference to other criminal activity.
The district court gave the following statement of its findings:
... I find that the calculation of criminal history is insufficient as a predictor of criminal behavior by this defendant, for two reasons, both because of the one-year sentence imposed on the 1976 charge which, I agree with the probation department, would have been greater had there been no prior sentence being served at the time, and the defendant's own statement on tape to the effect he was involved in substantial other activity at the time this crime was committed. Accordingly, I think that the criminal history category should go from category 3 to category 4.
That yields a range ... of between 63 and 78 months. Because 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.
At the first sentencing hearing on February 5, 1990, the district court sentenced Uccio to a prison term of 78 months, to be followed by four years of supervised release. The court specified that if Uccio's monthly after-tax income exceeded $1200 per month, Uccio would have to pay the cost of supervised release. Finding Uccio to be without assets, the court explicitly declined to impose a fine or the cost of imprisonment.
About one-half hour after imposing sentence, the judge summoned the parties back to the courtroom and pointed out that the 78-month sentence exceeded the statutory maximum of five years for either count. While the government stated that consecutive sentences would permit a total sentence of 78 months without exceeding the statutory maximum on either count, the court adjourned the proceedings to February 16, 1990 to allow the parties to address the issue of the legality of consecutive sentences for conspiracy to commit an act and for the act itself.
At the February 16 sentencing, the court imposed consecutive sentences of 60 months on the conspiracy count and 18 months on the substantive count, for a total term of imprisonment of 78 months, to be followed by three years of supervised release (rather than the four years originally imposed), with the same condition for payment of the costs of supervised release...
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