United States v. Scungio, 00-2229

• Decision Date: 09 May 2001
• Docket Number: No. 00-2229,00-2229
• Citation: 255 F.3d 11
• Parties: (1st Cir. 2001) UNITED STATES, APPELLEE, v. JOHN A. SCUNGIO, DEFENDANT, APPELLANT. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 11

255 F.3d 11 (1st Cir. 2001)

UNITED STATES, APPELLEE, v. JOHN A. SCUNGIO, DEFENDANT, APPELLANT.

No. 00-2229

United States Court of Appeals For the First Circuit

Heard May 9, 2001

Decided July 6, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Ronald R. Lagueux, U.S. District Judge] Francis J. DiMento with whom DiMento & Sullivan and Jason A. Kosow were on brief for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, were on brief for appellee.

Before Torruella, Circuit Judge, Campbell, Senior Circuit Judge, Schwarzer,^* Senior District Judge.

Campbell, Senior Circuit Judge

John Scungio was convicted on a plea of guilty to making false statements in violation of 18 U.S.C. §§ 1001. He appeals from his sentence, arguing that the district court erred: (1) by sentencing him under the Obstruction of Justice guideline instead of under the Fraud and Deceit Guideline, see U.S.S.G. §§ 2F1.1, cmt. n. 14; and (2) by applying a two-level increase in his offense level on the basis of his "special skill" of lawyering, see U.S.S.G. §§ 3B1.3. Agreeing that the district court erred, we vacate the sentence and remand for resentencing.

At sentencing, the parties stipulated to the factual statement set forth in the presentence report (PSR).¹ Because this appeal involves sentencing issues following a guilty plea, we take the background facts from the presentence report that followed defendant's conviction. United States v. Brady, 168 F.3d 574, 576 (1st Cir. 1999).

During 1998, the Defendant, John A. Scungio, an attorney licensed to practice law in the State of Rhode Island and Florida, represented Gail and Paul Calenda in connection with an appeal to the Providence Board of Tax Assessment Review (BTAR). The purpose of the appeal was to lower the assessed value, and therefore the taxes, of three properties owned by the Calendas in the City of Providence.

The Chairman of the [BTAR] was Joseph A. Pannone. Pannone recommended the defendant to Gail Calenda for the purpose of facilitating her appeal. On May 18, 1998, Scungio appeared before the BTAR and made a presentation for a tax reduction on behalf of the Calendas. The [BTAR] approved a reduction from about $800,340 to $560,500. . . . The annual net tax savings was approximately $7,600 per tax year.

Prior to the May 18, 1998 hearing, Gail Calenda had met with Joseph A. Pannone and the Vice- Chairman of the BTAR, David C. Ead. The three discussed the upcoming hearing and the resulting reduction. Indeed, Ead provided the figures for Calenda to complete her appeal form and it was those figures which were submitted to the BTAR.

Between the May 18, 1998 hearing and July 24, 1998, Pannone told Scungio that Pannone, Ead, and Deputy Tax Assessor Rosemary Glancy would be splitting a $5,000 bribe from the Calendas in exchange for the reduction. On or about July 24, 1998, Gail Calenda delivered a check in the amount of $2,672.88 to John A. Scungio as a fee for services rendered. At the same time, she delivered an envelope with $5,000 in cash to the [d]efendant, John A. Scungio, for delivery to Pannone.

Scungio delivered the envelope to Pannone. Pannone told Scungio that he would split the money with Ead and Glancy. Pannone then asked for $200 more from Scungio which would be pooled with $200 each from Ead and Pannone. The resulting $600 would be given to Rosemary Glancy. At first Scungio balked at paying the $200 but then relented and gave Pannone $200 cash for Glancy.

On May 12, 1999, Scungio was interviewed by [FBI] Agents Beverly Bartzer and William Rose . . . . In the interview[,] Scungio falsely denied that the Chairman of the [BTAR], Joseph A. Pannone, had received any money for his assistance in the reduction of the Calendas' taxes, when, in fact, John A. Scungio had delivered a sum of cash, $5,000 more or less, to Pannone from his client to be distributed among Pannone, Ead, and Glancy.

Also on May 12, 1999, Scungio denied knowing how Calenda had learned about and came to hire him when in fact, Scungio knew that Calenda had been sent to him by the then Chairman of the [BTAR].

In addition to the above offense facts, Scungio admitted paying Pannone $200 in or around 1997 for Pannone's help and referral to Scungio of the owner of East Side Copy who had a tangible tax problem with the City of Providence. Scungio represented East Side Copy in front of the BTAR and in negotiations with City Tax Assessor, Tom Rossi.²

Scungio also admitted paying Joseph Pannone around $75 for Anthony Annarino. Annarino, the then City Tax Collector, would waive interest due on overdue tax bills for a cash payment. Annarino waived interest due on property owned by Scungio.

In or about 1997, Scungio paid Pannone $100 to give to former Tax Assessor Ted Little, for Little's help obtaining an abatement on property that Scungio owned in Providence. Finally, Scungio acknowledged purchasing approximately $500 in Friends of Cianci campaign tickets from Pannone during 1997 and 1998. Scungio paid cash for the tickets.³

At the sentencing hearing, the district court made the two decisions favorable to the government that are the subject of this appeal. The first decision concerned the construction of application note 14 of the Fraud and Deceit guideline, U.S.S.G. §§ 2F1.1, the guideline that governs the sentence for the offense of making false statements, 18 U.S.C. §§ 1001, to which Scungio pled guilty. Note 14 concludes as follows:

Where the indictment or information setting forth the count of conviction (or a stipulation as described in §§ 1B1.2(a)) establishes an offense more aptly covered by another guideline, apply that guideline rather than §§ 2F1.1. Otherwise, in such cases, §§ 2F1.1 is to be applied, but a departure from the guidelines may be considered.

U.S.S.G. §§ 2F1.1, cmt. n. 14. Defendant contended that there was no other guideline that "more aptly covered" his offense of making false statements, and therefore that he should be sentenced under the Fraud and Deceit guideline. The government argued to the contrary, contending that the facts of record to which defendant had agreed, in addition to constituting the crime of making false statements, establish a violation of the "omnibus clause" of 18 U.S.C. §§ 1503, which prohibits, in relevant part, "corruptly . . . endeavor[ing] to influence, obstruct, or impede the due administration of justice . . . ."⁴ 18 U.S.C. §§ 1503. As that offense is listed under the Obstruction of Justice guideline, U.S.S.G. §§ 2J1.2, cmt. (statutory provisions), the government argued that the Obstruction of Justice guideline "more aptly cover[s]" Scungio's offense and he should be sentenced thereunder.

The district court's second challenged decision was to apply a two-level enhancement for Scungio's alleged "special skill" of lawyering. See U.S.S.G. §§ 3B1.3 (directing that "if the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase [offense level] by two levels"). The PSR recommended that this two-level enhancement was appropriate as Scungio's special skill of lawyering exacerbated his crime.

At the conclusion of the hearing, the district court agreed with the government on both issues. It sentenced Scungio under the guideline relevant to Obstruction of Justice and it imposed the two- level enhancement, both over defendant's objections. After departing downward, the court ordered defendant to serve three years of probation, the first six months to be served in home confinement, and a $40,000 fine. In considering Scungio's appeal from both decisions, we review the district court's interpretation of the legal meaning and scope of the sentencing guidelines de novo, and the district court's factual findings for clear error. See United States v. Santos Batista, 239 F.3d 16, 21 (1st Cir. 2001). See also United States v. Henry, 136 F.3d 12, 20 (1st Cir. 1998) (reviewing de novo the district court's determination pursuant to note 14 of U.S.S.G. §§ 2F1.1 that the fraud and deceit guideline "more aptly covered" defendant's offenses than the guideline concerning environmental crimes).

I. Applying the Guideline That "more aptly cover[s]" Defendant's Offense

As he did below, Scungio now contends that the facts to which he pled guilty and on which the district court relied at sentencing cannot, as a matter of law, establish a violation of 18 U.S.C. §§ 1503 or any of the other offenses to which the Obstruction of Justice guideline pertains. See U.S.S.G. §§ 2J1.1 (cross-referencing 18 U.S.C. §§§§ 1503, 1505-16, 1516). The Obstruction of Justice guideline, therefore, cannot and does not "more aptly cover[]" his offense. The district court did not disagree with Scungio's contention that the facts to which he pled guilty did not establish the offense of obstructing justice as that is defined by 18 U.S.C. §§ 1503. The court nonetheless determined that defendant's crime is "more aptly covered" by the Obstruction of Justice guideline because "th[e] phrase [obstruction of justice] is given a broader meaning in the guidelines than in the statutes." Defendant contends that this construction of the guideline was legal error. We agree.

The district court explained its reasoning as follows:

[I]t seems to me that under the guidelines the most appropriate guideline is the one entitled, "Obstruction of justice". Now that phrase is given a broader meaning in the guidelines than in the statutes. The obstruction of justice statutes prescribe that there shall be penalties for certain types of conduct, and some of it very serious conduct, such as intimidating witnesses and the like. But under the guidelines it has a much broader meaning. For example, it can be an obstruction of justice under the guidelines if a defendant lies to the probation office...