U.S. v. Voccola

• Decision Date: 06 September 1996
• Docket Number: No. 96-1182,96-1182
• Citation: 99 F.3d 37
• Parties: UNITED STATES, Appellee, v. Robert VOCCOLA, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 37

99 F.3d 37

UNITED STATES, Appellee, v. Robert VOCCOLA, Defendant, Appellant.

No. 96-1182.

United States Court of Appeals, First Circuit.

Heard Sept. 6, 1996.

Decided Nov. 5, 1996.

David L. Martin, Providence, RI, for defendant, appellant.

Sheldon Whitehouse, United States Attorney for Rhode Island, Providence, RI, for appellee.

Before BOUDIN, Circuit Judge, and BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.

BOWNES, Senior Circuit Judge.

Defendant-appellant raises three issues in this appeal. They are: (1) the denial of defendant's motion for recusal of the sentencing judge; (2) whether the district court clearly erred in increasing defendant's sentencing level for his role in the offense; and (3) whether the district judge clearly erred in finding that defendant obstructed justice. We affirm.

Background

A grand jury returned a twenty-four count indictment charging defendant, Robert Voccola, his brother, Edward Voccola, and one of Edward's employees, Roger Cavaca, with an extensive scheme of automobile insurance fraud. Count one of the indictment charged each of the defendants with a federal racketeering violation, 18 U.S.C. § 1962; counts two through twenty-three charged each defendant with federal mail fraud in violation of 18 U.S.C. § 1341, and aiding and abetting mail fraud in violation of 18 U.S.C. § 2; count twenty-four charged co-defendant Edward Voccola with obstruction of justice in violation of 18 U.S.C. § 1503.

Defendant Robert Voccola pled guilty to counts two, four, five, and twenty of the indictment, co-defendant Edward Voccola pled guilty to count one of the indictment, and co-defendant Roger Cavaca pled guilty to counts three, six, seventeen, and nineteen of the indictment.

Further facts bearing on the sentencing issues will be stated when we discuss those issues.

RECUSAL

The Facts

The facts on which the recusal motion was based, although somewhat lengthy and convoluted, are not disputed.

The district judge, Hon. Mary M. Lisi, held a chambers conference prior to the scheduled sentencing hearing. During the Some background facts are now necessary. In 1991 the Rhode Island Depositors Economic Protection Corporation (DEPCO) was created to address the problems arising from a financial crisis in Rhode Island. The crisis was triggered by the failure of numerous banks and credit unions, all of which were insured by a private insurance fund--the Rhode Island Share and Depositors Indemnity Corporation (RISDIC), which also failed. The unpaid debts of defendant listed on the pre-sentence report were owed to DEPCO.

conference, she expressed concern about financial information furnished by defendant for the pre-sentence report. She questioned how the defendant could co-sign a loan for his son when he had listed approximately $100,000 in unpaid debts on his personal financial statement and had submitted affidavits to the court claiming indigency. Defendant's sentencing was, therefore, continued so that additional financial information could be obtained. After the conference, defendant alleges that he realized, for the first time, that the district judge served as a member of a state commission investigating the financial activities of a number of persons and corporations, one of whom was defendant.

The state commission on which the judge served as an appointee of the governor, before she became a judge, was the Select Commission to Investigate the Failure of RISDIC Insurance Financial Institutions. She took an active role in the commission's investigation of the cause of the failure of the banks, the credit unions, and RISDIC. The commission held hearings, questioned witnesses, and subpoenaed records during the course of its investigation, which lasted nearly two years. In December 1992, the commission issued a report, recommending in effect that DEPCO take appropriate action to resolve the crisis. Legal action to recover loan proceeds was one of the specific recommendations. The commission made its findings and the evidence adduced at the hearings available "to law enforcement agencies, DEPCO and the receivers of RISDIC institutions so that they could pursue criminal and civil action." Report of Select Commission to Investigate Failure of RISDIC, at 2 (1992). Defendant was not named or identified in any of this material.

On October 3, 1994, Edward D. Pare, receiver for the Rhode Island Central Credit Union, which was insured by RISDIC, sued defendant and his wife for failure to pay a promissory note for $105,000 owed to the credit union. The note was secured by a mortgage on a yacht--the Bella Famina. An in rem proceeding against the boat was brought together with an in personam action against defendant and his wife. Judge Lisi handled this case. The in personam action was terminated by default. Neither defendant nor his wife appeared at any hearing.

Defendant has produced no evidence or made any allegations that the district judge gained any knowledge about defendant personally and/or his financial affairs during the course of her service on the state commission.

After a hearing on the motion to disqualify, the court stated:

Let me deal right now with the Motion to Disqualify.

Mr. Martin, I certainly do not fault you for bringing such a motion. I think it's absolutely within your prerogative and certainly if it is in your client's best interest to do so, that you file such a motion. I think that the impartiality of the Court is the sine qua non of our justice system. It is an issue that I believe I am acutely sensitive of. And so, I have reviewed with great care the motion that you have filed as well as all of the appendices, although I must admit that I did not reread the entire report of the RISDIC Commission which you have appended to your motion.

Let me just say that you are quite correct in asserting that I served as a member of the colloquially-known RISDIC Commission for some two years and that the purpose of that commission was to investigate the reasons for the failure of RISDIC and ultimately the closure of some 45 financial institutions which affected approximately one-third of the population of this state; the effects of which continue to affect the taxpayers of this state.

In any event, as your motion points out, this Defendant was never identified by name anywhere in the reports, public hearings or other materials generated by that commission. And quite frankly, I never heard your client's name until I came to this Court. And perhaps the first time I ever heard his name was in connection with the other case you cite, which I did preside over, and that is the in rem action against the BELLA FAMINA, which apparently was a motor boat owned by the Defendant and his wife. And I believe that that action likewise was an in personam action against Mr. Voccola and his wife.

As you correctly point out in your memo, that action terminated as to the Defendant and his wife by default. It's my recollection that neither Mr. or Mrs. Voccola answered the Complaint. The hearing that you reference taking place with respect to that action, I can tell you, dealt solely with the claim of the substitute custodian who was looking for more money than the marshal thought he was entitled to. And that the Defendant, nor his wife, nor anyone on their behalf even appeared at any such hearing.

The case law which both Mr. Martin and the Government cite indicates to this Court that any charge of partiality must be supported by a factual basis; that the movant cannot simply rely on conclusory allegations or innuendo. And further, that disqualification is appropriate only if the facts provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge's partiality. That's the test in the First Circuit on a 455A request.

I have weighed the exhibits and information you've provided in your memo. And I have, in so weighing that evidence, stepped away from the bench and into the shoes of that knowledgeable, objective person in the street. And I come to the conclusion that there is no evidence that would point to a lack of partiality on behalf of this Court.

Instead, my concern is that the motion having been filed this late in the game after that chambers conference wherein I addressed to both you and the Government my skepticism, if you will, or questions as to the financial information which had been provided--the DEPCO part of it aside--how does one--and I think that this is a plausible question. I don't think that the Sentencing Commission expects judges to review financial information provided to make a determination as to whether or not the Defendant is capable of paying a fine--to simply accept whatever we're handed. I would hope that the Sentencing Commission would expect us to scrutinize that information to make a determination as to the Defendant's ability to pay a fine.

And when I see that the Defendant, in a 1994 tax return, reports zero income, yet is able to sign a loan for his son to buy a $23,000 car, is able to lease a 1995 Lincoln Continental, it does raise a question in my mind as to whether or not the information provided to Probation is correct. And as I said in December, I had those questions, I wanted answers and I wanted to give the Defendant ample opportunity, not only to provide the additional information, but to prepare an explanation since one would be requested.

All of that having been said, I do not believe that you have met your burden under Section 455. And the Motion for Disqualification is denied.

Discussion

Defendant's recusal motion is based on 28 U.S.C. § 455(a), which states:

Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Defendant's claim that the district judge's "impartiality might reasonably be questioned" is based on three sets of facts:

(1) the judge presiding over his criminal...