United States v. Raia

• Decision Date: 06 April 2021
• Docket Number: No. 20-1033,20-1033
• Citation: 993 F.3d 185
• Parties: UNITED STATES of America, Appellant v. Francis RAIA
• Court: U.S. Court of Appeals — Third Circuit

993 F.3d 185

UNITED STATES of America, Appellant

v.Francis RAIA

No. 20-1033

United States Court of Appeals, Third Circuit.

Argued January 7, 2021

Filed: April 6, 2021

Mark E. Coyne, Steven G. Sanders, ARGUED, Office of United States Attorney, 970 Broad Street, Room 700, Newark, NJ 07102, Counsel for Appellant

Jenny Chung, Lee Vartan, ARGUED, Chiesa Shahinian & Giantomasi, One Boland Drive, West Orange, NJ 07052, David M. Dugan, Chiesa Shahinian & Giantomasi, 11 Times Square, 31^st Floor, New York, NY 10036, Alan L. Zegas, Third Floor West, 60 Morris Turnpike, Summit, NJ 07901, Counsel for Appellee

Before: SMITH, Chief Judge, AMBRO and CHAGARES, Circuit Judges

OPINION OF THE COURT

SMITH, Chief Judge.

A jury found Appellee Francis Raia guilty of conspiracy to bribe voters. At sentencing, the District Court calculated Raia's total offense level under the Sentencing Guidelines to be 14, which with Raia's criminal history category yielded a Guidelines range of 15–21 months' imprisonment. The Court then stated it would vary to offense level 8—zero to six months—and sentenced Raia to a three-month term of imprisonment. The Government appeals the sentence claiming procedural error, arguing that the District Court miscalculated the Guidelines offense level by not applying two sentencing enhancements: a four-level aggravating role enhancement under U.S.S.G. § 3B1.1(a) and a two-level obstruction of justice enhancement under § 3C1.1.

Because the District Court erred in its interpretation of the Guidelines, we will vacate the sentence and remand for resentencing. The Government requests that we remand with instructions that the District Court apply both the four-level aggravating role enhancement and the two-level obstruction of justice enhancement. But because the record does not clearly support the application of either enhancement, we will leave it to the District Court to make whatever factual findings are necessary to determine whether either or both of the enhancements apply.

I. FACTS AND PROCEDURAL HISTORY

A. Indictment

In 2013, Raia ran for election to a city council seat in Hoboken, New Jersey. In that same election, Raia also supported—through a political action committee ("PAC") he chaired—a ballot referendum to weaken local rent control laws. Raia's campaign strategy was to solicit voters residing in the Hoboken Housing Authority to vote by mail. To that end, Raia's PAC cut $50 checks to hundreds of these voters. Raia claimed that the voters who received the $50 did so in exchange for get-out-the-vote work they did for Raia's campaign, such as wearing campaign-branded t-shirts and handing out campaign literature. Raia lost the election.

An investigation supported a different reason for Raia's campaign's vote-by-mail strategy and his PAC's use of $50 checks: voters were paid in exchange for casting their mail-in ballots in favor of Raia's slate and the rent control referendum. In short, the Government believes that "Raia instructed his campaign workers—including [1] Matthew Calicchio, [2] Michael Holmes, [3] Freddie Frazier, [4] Lizaida Camis, [5] Dio Braxton, and [6] Ana Cintron"—to bribe voters. Gov't Br. 3. Under the Government's version of events, Raia directed his campaign workers to collect and bring back unsealed mail-in ballots to his club in Hoboken so that he could verify whether each bribed voter cast his or her ballot as directed before having a $50 check issued to the voter from his PAC. To conceal the nature of the bribes, Raia created a cover story that each voter who received a $50 check did get-out-the-vote work for Raia's campaign, and he made each voter sign a declaration to support that narrative.

On October 31, 2018, Raia and co-defendant Braxton were charged with one count of conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371, with the underlying offense being the use of the mails to facilitate any "unlawful activity" in violation of the Travel Act, 18 U.S.C. § 1952(a)(3). The Travel Act defines "unlawful activity" to include state bribery offenses. See § 1952(b)(2). Paying for votes is illegal bribery under New Jersey law. See N.J.S.A. §§ 2C:27-2(a) and 19:34-25(a).

By the time of Raia's trial in June 2019, most of his co-conspirators had reached agreements with the Government. Camis pleaded guilty, pursuant to a plea agreement, to a separate indictment on November 8, 2018. Calicchio pleaded guilty, pursuant to a plea agreement, to an information against him on May 7, 2019. Raia's co-defendant Braxton pleaded guilty, pursuant to a plea agreement, on May 30, 2019. Holmes, Frazier, and Cintron were not charged. Holmes and Frazier each entered into a non-prosecution agreement with the Government.

B. Trial

A jury trial was held before Judge Martini in the District of New Jersey. The Government called, among other witnesses, Calicchio, Holmes, and Frazier. Each testified that Raia directed himself and others, including the three non-testifying co-conspirators, to bribe voters.

Raia took the stand in his own defense. The gist of Raia's testimony, and overall defense theory, was that the campaign workers acted independently to bribe voters without any direction from Raia, and that the cooperating witnesses' testimony to the contrary were just lies told to stay on the good side of Government prosecutors. Under oath, Raia testified, among other things, that he "never bought a vote in [his] life" and that he did not instruct Camis, Cintron, or Braxton to bribe voters. App. 753; see App. 737–41.

The jury returned a verdict of guilty as to the one count of conspiracy charged and made no special findings.

C. Sentencing

Judge Martini held a sentencing hearing on December 2, 2019. We summarize the District Court's rulings on each enhancement the Government sought to apply before turning to the rulings on Raia's motion for a downward departure or variance.

1. Aggravating Role Enhancement

The Government, in accord with the Probation Office's recommendation in the Presentence Investigation Report, argued that a four-level aggravating enhancement under U.S.S.G. § 3B1.1(a) applied because Raia was an "organizer or leader" of the voter bribery scheme and the scheme involved five or more participants. The District Court stated that applying the four-level enhancement would be "extreme" and noted there was no testimony at trial that Raia ever imposed consequences on his campaign workers for not following his directives to bribe voters. App. 1092. Raia had advanced this same "no consequences" theory in his sentencing memorandum, arguing that without any evidence of threatened consequences for disobedience he could not be an "organizer, leader, manager or supervisor" of another person, and thus no enhancement under § 3B1.1 was applicable. See App. 1019–21 (citing United States v. DeGovanni , 104 F.3d 43, 45–46 (3d Cir. 1997) ).

But the District Court declined to follow Raia's suggestion that no aggravating role enhancement applied. Instead, it determined that the two -level aggravating role enhancement in subsection (c) "may be applicable" because Raia was the beneficiary of the conspiracy. App. 1095; see also App. 1094 (positing that subsection (c) "at best ... might apply"). The Court did not make any finding as to whether Raia was an "organizer, leader, manager, or supervisor" of the conspiracy. Nor did it make an explicit finding as to the number of participants in the conspiracy.

2. Obstruction of Justice Enhancement

The Government also argued that a two-level obstruction of justice enhancement under § 3C1.1 applied because Raia committed perjury at trial. "A defendant who testifies under oath at trial commits perjury within § 3C1.1 if he ‘[1] gives false testimony [2] concerning a material matter [3] with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.’ " United States v. Napolitan , 762 F.3d 297, 312 (3d Cir. 2014) (quoting United States v. Dunnigan , 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993) ). The Government maintained that Raia's testimony to the effect that he had "[n]ever engaged in vote-buying or instructed particular campaign workers to bribe voters" was necessarily false because it was irreconcilable with the guilty verdict returned by the jury.¹ App. 996, 1002–03 (Gov't sentencing memo.). Raia primarily contested the falsity element, positing that the jury could have convicted him while believing that he did not instruct his campaign workers to bribe voters.

The District Judge stated he was "not comfortable" with applying an obstruction of justice enhancement in Raia's case. App. 1096 (Sentencing Hr'g Tr. at 26:20–22). He believed he was being asked to find Raia's testimony false based on the testimony of the cooperating witnesses—Holmes, Frazier, and Calicchio. The Court expressed hesitancy in crediting the testimony of the cooperating witnesses because each had either received a non-prosecution agreement or lied during the course of the proceedings, and there was no other evidence clearly corroborating their testimony regarding the instruction of campaign workers.

The District Court ultimately declined to apply the obstruction of justice enhancement. However, it did not make specific findings as to any of the elements of perjury—falsity, materiality, and willfulness.

3. Downward Departure and Variance

In his sentencing memorandum, Raia conceded that his base offense level was 12, which would result in a Guidelines range of 10–16 months' imprisonment. But he sought a downward variance—down to a non-custodial sentence—on account of both his medical needs and his history of community service. Raia also characterized these factors as justifications for a downward departure under U.S.S.G. §§ 5H1.4 (Physical Condition) and 5H1.11 (Charitable Service/Good Works). The Government opposed any reduction in Raia's sentencing exposure and asserted that Raia should be sentenced to 27 months' imprisonment—the bottom...