US v. Ferranti

• Court: U.S. District Court — Eastern District of New York
• Writing for the Court: Vivian Shevitz, Mount Kisco, NY, David M. Schuller, New York City, for Defendant
• Citation: US v. Ferranti, 928 F. Supp. 206 (E.D. N.Y. 1996)
• Decision Date: 05 June 1996
• Docket Number: No. 95-CR-119.,95-CR-119.
• Parties: UNITED STATES of America v. Jack FERRANTI, Defendant.

928 F. Supp. 206

UNITED STATES of America v. Jack FERRANTI, Defendant.

No. 95-CR-119.

United States District Court, E.D. New York.

June 5, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Zachary Carter, United States Attorney, by Lauren J. Resnick, Jennifer Boal, Brooklyn, New York, for United States.

Vivian Shevitz, Mount Kisco, NY, David M. Schuller, New York City, for Defendant.

AMENDED MEMORANDUM AND ORDER

WEINSTEIN, Senior District Judge:

                     TABLE OF CONTENTS
                   I. INTRODUCTION ..................................................... 210
                  II. FACTS ............................................................ 210
                 III. SENTENCING PROCEEDINGS ........................................... 211
                  IV. MOTION TO DISMISS ARSON CHARGES .................................. 211
                      A. Law ........................................................... 211
                      B. Application of Law to Facts ................................... 212
                   V. MOTION TO DISMISS MAIL FRAUD CHARGES ............................. 213
                  VI. STATUTORY AND SENTENCING GUIDELINES REQUIREMENTS ................. 213
                 VII. PRISON ........................................................... 213
                      A. Arson Resulting in Death ...................................... 213
                      B. Conspiracy to Commit Arson .................................... 216
                      C. Mail Fraud .................................................... 216
                      D. Tampering with a Witness ...................................... 217
                VIII. PECUNIARY PENALTIES GENERALLY .................................... 217
                  IX. FINES ............................................................ 219
                   X. COST OF PRISON ................................................... 220
                  XI. RESTITUTION ...................................................... 220
                      A. Law ........................................................... 220
                      B. Application of Law to Facts ................................... 220
                          (i) Direct Victims ........................................... 223
                              (1) Michelle and Shelly Anthony .......................... 223
                              (2) Estelle and William Cortes ........................... 223
                              (3) Zbigniew and Jaowica Kwiatkowski ..................... 223
                              (4) Charles Wagner ....................................... 223
                              (5) Ronald Bass .......................................... 223
                              (6) Thomas A. Ripley ..................................... 224
                         (ii) Indirect Victims ......................................... 224
                              (1) Cigna Fire Underwriters .............................. 224
                              (2) New York Fire Department ............................. 224
                

          (iii) Total Payments .......................................... 224
                 XII. DISBURSEMENT OF FINES AND RESTITUTION ............................. 224
                XIII. SPECIAL ASSESSMENTS................................................ 224
                 XIV. SUPERVISED RELEASE................................................. 224
                  XV. CONCLUSION ........................................................ 225
                

I. INTRODUCTION

For the reasons indicated below, defendant, who was found guilty of arson resulting in death and other crimes, must be sentenced to a term of just less than life imprisonment. Maximum monetary penalties, and restitution are also required.

II. FACTS

Defendant owned and operated a retail women's clothing store on the ground floor of a three-story building in Maspeth, Queens. On the upper floors were four residential apartments.

The business was not profitable. Defendant had fallen behind on rent. Fire insurance premiums were not current. Notice of imminent cancellation of the policy had been given.

In the Fall of 1991, defendant began planning to set fire to the store in order to collect insurance proceeds and to avoid payment of future rent on what had become a burdensome lease. He paid the overdue premiums to ensure that his policy for fire damage would be in force. Months before the event he boasted of his plan to set the fire. He recruited a friend, Thomas Tocco, through his brother, Mario Ferranti, to help set the fire.

On February 24, 1992, at 5:00 p.m., an employee shut off the lights and locked the doors of the store, planning to return next morning. Later that same night someone possessing one of the two available keys entered. The bulk of the merchandise was removed. An old electric space heater was placed in the rear to make it appear that this was an accidental electrical fire. Flammable liquid was spread near the heater. At approximately 11:00 p.m. the fire was lighted by defendant or someone working under his direction.

The Fire Department arrived quickly. Fire and smoke were intense. Some of the building's eight residents had already fled in panic.

To ensure that no one was left in the building, two firefighters, Lieutenant Thomas A. Williams and Michael J. Milner, searched the front portion of the second floor. Visibility was nil. Heat was intense. Lieutenant Williams directed Milner to break open a floor-to-ceiling window to help ventilate the area. As Milner did so, he observed a passing shadow. It was Lieutenant Williams who fell to the pavement. Death was almost instantaneous.

Two dozen firefighters suffered minor injuries. Several tenants required treatment for smoke inhalation. Their possessions were destroyed. They were left homeless. Destruction of the building was close to complete. The fire also damaged adjoining premises.

The next day, fire marshals collected strong evidence of arson. Nine days after the fire, investigators located defendant. He claimed to know nothing about the fire, falsely stating that he had been visiting a girlfriend in New Jersey since the day prior to the fire. He lied about the financial difficulties his store was having. He lied when he asserted that the store was fully stocked with merchandise at the time of the fire.

Defendant accompanied investigators to the scene of the fire. When they entered the store, he walked directly towards the location where the heater had been placed; it had been removed earlier by investigators for testing. When questioned about the space heater, he falsely stated that it had been purchased a year or two before by one of his employees, and that it had been used intermittently in the store. In fact, the heater had not been purchased by an employee and was not brought to the store until the night of the fire.

Defendant lied when he told investigators that he did not know the address of the employee who closed the store on the night of the fire. After the investigators left, defendant contacted this employee and convinced her to lie and say to the police that she had seen the space heater in the store the day of the fire. She agreed, at his request, to falsely report that she had not seen defendant the day of the fire when, in fact, she had observed him in his real estate office in Upper Manhattan. Defendant brought the employee to the police where she gave the false statements.

Defendant and his secretary contacted another person who had been at the store on the day of the fire. They asked her to convey false information to the police. She, however, resisted and stated truthfully to the authorities that she had never seen a space heater in the store.

Shortly after the fire, defendant mailed an insurance claim falsely asserting that $55,250.32 in merchandise had been destroyed. On his claim application, which generated repeated correspondence through the mail, he essentially reiterated the false statements he had made to investigators. He repeated those lies once again in a deposition related to his insurance claim. Subsequently, defendant admitted to the insurance company's attorney that he had lied to the police about his whereabouts on the day of the fire. Defendant then withdrew his insurance claim.

During grand jury proceedings defendant pressured one of his employees to continue supplying false information to authorities. He retained an attorney to represent her at the grand jury proceeding and accompanied her to the attorney's office prior to her grand jury appearance. Contrary to defendant's expectations, her testimony implicated him.

A jury trial found defendant guilty on nineteen counts: conspiracy to commit arson, 18 U.S.C. § 371; arson resulting in death, 18 U.S.C. § 844(i); sixteen counts of mail fraud, 18 U.S.C. § 1341; and tampering with a witness, 18 U.S.C. § 1512(b)(1).

Defendant has a previous history of criminal convictions that include attempted possession of a weapon in the 3rd degree, and menacing. This prior conduct places defendant in criminal history category II under the Guidelines.

There are adverse allegations of defendant's conduct that have not led to conviction. They include being a "slumlord" who used violence against tenants and others. Defendant denies their truth. His close family ties with his parents, siblings, wife, ex-wife and son are urged on his behalf. None of these derogatory or supportive contentions need to be considered on this sentence. The crime itself provides overwhelming evidence of depravity.

III. SENTENCING PROCEEDINGS

At sentencing the victims testified. The tenants remained deeply upset by terrifying memories of the event. Lt. Williams' daughter and wife were inconsolable.

Defendant made no personal statement on his own behalf. He moved for a new trial.

IV. MOTION TO DISMISS ARSON CHARGES

A. Law

Defendant contends that with respect to arson causing death, the government failed to prove the element "affecting interstate or foreign commerce." He also contends that the government did not provide sufficient evidence permitting prosecution in a federal court of what was essentially a state matter. United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).

Title 18 U.S.C. § 844(i) provides that:

Whoever maliciously damages or destroys, or attempts

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