United States v. Castro

• Decision Date: 08 January 2013
• Docket Number: No. 11–3893.,11–3893.
• Citation: 704 F.3d 125
• Parties: UNITED STATES of America v. Carlo Daniel CASTRO, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

704 F.3d 125

UNITED STATES of America

v.Carlo Daniel CASTRO, Appellant.

No. 11–3893.

United States Court of Appeals,Third Circuit.

Argued Sept. 25, 2012.

Filed: Jan. 8, 2013.

Peter Goldberger [Argued], Ardmore, PA, for Appellant.

Louis D. Lappen [Argued], Office of United States Attorney, Philadelphia, PA, for Appellee.

Before: McKEE, Chief Judge, JORDAN, and VANASKIE, Circuit Judges.

OPINION OF THE COURT

JORDAN, Circuit Judge.

Daniel Castro, a high-ranking official in the Philadelphia Police Department, was indicted in connection with three separate schemes to extort money from separate individuals by use of violence. He was convicted by a jury on one count of making a material false statement to federal agents in violation of 18 U.S.C. § 1001, and acquitted on one count of conspiracy to commit extortion in violation of 18 U.S.C. § 894. The jury hung on the remaining eight counts.

To avoid a retrial, Castro pled guilty to a count of conspiracy to commit extortion in violation of 18 U.S.C. § 1951. In exchange the government agreed to dismiss the remaining charges against him. Castro's plea agreement contained an appellate waiver provision under which, subject to some exceptions, he “voluntarily and expressly waive[d] all rights to appeal or collaterally attack” his “conviction, sentence, or any other matter relating to this prosecution.” (App. at 127.) The District Court sentenced him to concurrent sentences of 18 months in prison for his conviction for false statements and 60 months in prison for his conviction by guilty plea for conspiracy to commit extortion.

In this appeal, Castro challenges three facets of his conviction and sentence. First, he contends that there was insufficient evidence to convict him of making a false statement to the FBI about money allegedly received from an extortion victim. He argues that, because the money in question came from the FBI in the course of a sting operation, he told the literal truth when he denied having received any money from the alleged victim. Second, Castro challenges the District Court's authority to deny the government's motion, made pursuant to § 3E1.1(b) of the United States Sentencing Guidelines, for a one level decrease in his offense level calculated under the guidelines. Third, Castro maintains that, in arriving at a sentence that was 19 months higher than the top of the range recommended by the guidelines, the District Court failed to adequately account for his record of good works. The government responds that Castro's first two arguments are barred by his appellate waiver and that, as to the third argument, Castro cannot show that the sentence is unreasonable.

We conclude that the appellate waiver encompasses both Castro's challenge to the sufficiency of the evidence and his claim that the District Court lacked authority to deny the government's motion for a one level decrease in his offense level. However, while the waiver properly applies to prevent our considering the District Court's refusal to award the requested downward departure, we conclude that application of the waiver against the sufficiency-of-the-evidence argument would, in the unusual circumstances of this case, work a miscarriage of justice. We will therefore vacate Castro's conviction and 18–month sentence for making a false statement to federal agents. We will also vacate Castro's 60–month sentence because the invalid conviction for false statements was included in calculating Castro's overall offense level, causing that level to be higher than it otherwise would have been and resulting in a sentencing range that is no longer applicable. We are accordingly not in a position to evaluate Castro's reasonableness challenge, and we will remand the case to the District Court for resentencing solely on the conviction for conspiracy to commit extortion.

I. BackgroundA. Facts

Castro rose from challenging circumstances to become one of the highest ranking officers in the Philadelphia Police Department. During his 25 years of service as a policeman, he received numerous accolades and advancements, only a handful of which we mention here. In 1997, he was promoted to Captain. In 2001, he was nominated by the then-Mayor of Philadelphia, Edward Rendell, and Police Commissioner John Timoney to represent the Philadelphia Police Department as an Eisenhower Fellow, an important position that placed Castro in contact with community leaders from business, academia, and political and non-profit organizations, and allowed him to be part of international leadership mentoring programs. And in 2010, he was promoted to the position of Inspector, a high-ranking position within the police force. By all accounts, Castro was well regarded within the Philadelphia Police Department, and, as noted below, he saw himself as a viable candidate to one day become police commissioner. His successes and substantial authority make his subsequent criminal behavior all the more disturbing and damning.

In 2006, Castro invested $90,000 in a residential real estate development project organized by an acquaintance named Wilson Encarnacion. When the project failed, Castro repeatedly and unsuccessfully sought repayment from Encarnacion. The lost investment represented Castro's life savings.

In 2010, Castro discussed with another acquaintance, Rony Moshe, his frustration over the personally disastrous investment. Moshe mentioned that he knew a couple of tough debt collectors, and Castro asked if Moshe could engage the collectors to pressure Encarnacion to repay Castro's losses—losses that Castro evidently thought of as a debt Encarnacion owed him. Unbeknownst to Castro, Moshe was an FBI informant. He reported his conversation with Castro to the FBI, and an investigation was launched. At the FBI's behest, Moshe began secretly recording telephone conversations and in-person meetings with Castro. The undercover operation ran from April through November of 2010.

On April 7, 2010, Moshe told Castro in a series of recorded telephone calls that he had found a “collector” for Castro who was willing to collect the $90,000 debt from Encarnacion. Although Castro's loss on the failed investment was $90,000, he instructed Moshe to have the collector demand $150,000. When Moshe told Castro that the collector would use threatening and intimidating collection methods, Castro responded that he did not want to know the specific methods, that he did not want to meet the collector, and that he did not want the collector to know Castro's identity. Castro emphasized that he did not want to get “implicated into this.” (App. at 1291.) But he went ahead and provided Moshe with Encarnacion's home address, and he told Moshe to send the collector there because Encarnacion's wife and child would be there and “they'll get scared.” (App. at 346.)

Later, on June 4, Castro spoke by telephone with an undercover FBI agent posing as the collector. In that conversation, which was recorded, the agent told Castro that he and an associate had obtained $5,000 from Encarnacion and had $4,500 to give to Castro, with $500 being withheld as a collection fee. The agent represented that Encarnacion had initially denied owing Castro any money but relented after the agent and his associate went inside Encarnacion's house and the agent threatened Encarnacion by telling him that he would “f- - - his wife” if he refused to pay. (App. at 1321–23.)

On June 11, Castro met with Moshe, who gave Castro the $4,500 supposedly collected from Encarnacion. Moshe said that, following Encarnacion's encounter with the collector, Encarnacion was “scared to death.” (App. at 3691.) Castro replied, “Good, Good, Good.” (App. at 361.) Castro acknowledged that the collector “mean[t] serious business,” and he mentioned that he was concerned that Encarnacion might go to the police. (App. at 1332–33, 360–62.)

Castro met with Moshe again on July 20, 2010, and Moshe gave him another $2,100 that the collector had supposedly obtained from Encarnacion. That money, like the first payment, came from the FBI. There is no evidence that Encarnacion was aware of the FBI's payments to Castro or that the FBI's payments somehow reduced a debt actually owed by Encarnacion. Moshe stated that if Castro wanted to recover his money more quickly, the collector would have to become “more aggressive.” (App. at 377.) Castro was hesitant to authorize more aggressive tactics, telling Moshe, “I can't get myself in trouble.... I want to be Police Commissioner.” (App. at 564.) Nevertheless, Castro urged Moshe to have the collector go back to Encarnacion's home and collect more money—“$10,000 at a shot.” (App at 384.)

Around that time, the undercover operation paused for nearly two months because Moshe suffered a stroke. In early September 2010, Moshe and Castro resumed speaking and, on September 10, Moshe told Castro that Encarnacion was refusing to pay. Moshe asked Castro if he wanted the collector to “rough him up.” (App. at 1369–70.) Castro responded, “Well, get, get my money. I want, I want my money. They, they, they, they know how to get it.” (App. at 1371.) When Moshe said that the collector might “break[ ] a leg, a hand, you know,” Castro responded, “I don't, I don't want the guy dead. I don't, I don't want to kill him.” (App. at 1373–76.)

During that conversation Castro broached the topic of a second debt collection effort. Castro told Moshe of two acquaintances, business partners Billy Wong and Alan Kats, who were looking to hire a debt collector. Moshe noted that, to extract money, the collectors would have to get rough with Wong's and Kats's debtor. Castro asked Moshe to meet with Wong on September 15, 2010. Castro admitted in his testimony at trial that he understood, as of that date but not before, that the supposed collectors would batter Wong's and Kats's debtor. He also acknowledged that he became aware at that time that the collectors Moshe had engaged for him would use threats of violence and, if...