US v. Patriarca

• Citation: 912 F. Supp. 596
• Decision Date: 01 December 1995
• Docket Number: Cr. No. 89-289-MLW.
• Parties: UNITED STATES of America v. Raymond J. PATRIARCA.
• Court: U.S. District Court — District of Massachusetts

912 F. Supp. 596

UNITED STATES of America v. Raymond J. PATRIARCA.

Cr. No. 89-289-MLW.

United States District Court, D. Massachusetts.

December 1, 1995.

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Jeffrey Auerhahn and James Herbert, Asst. U.S. Attys., Boston, MA, for U.S.

Martin Weinberg, Oteri, Weinberg & Lawson, Kimberly Homan, Sheketoff & Homan, Boston, MA, for defendant.

MEMORANDUM AND ORDER

WOLF, District Judge.

I. PROCEDURAL HISTORY AND SUMMARY

As described in detail in this court's decision concerning Raymond J. Patriarca's initial sentencing, the defendant has pled guilty to conspiring to violate, and violating, the Racketeer Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. ? 1962(c) and (d), and to several violations of the statute prohibiting interstate travel in aid of racketeering, 18 U.S.C. ? 1952 (the "Travel Act"), which were also alleged to be RICO predicates. See United States v. Patriarca, 807 F.Supp. 165 (D.Mass.1992); rev'd sub nom, United States v. Carrozza, 4 F.3d 70 (1993) (hereinafter cited as "Patriarca 4 F.3d at ___"), cert. denied, ___ U.S. ___, 114 S.Ct. 1644, 128 L.Ed.2d 365 (1994).

This court originally sentenced Patriarca to serve 97 months in prison. Patriarca, 807 F.Supp. at 209. In calculating the United States Sentencing Guidelines (the "Guidelines") for the defendant's RICO violation, the court held that his Base Offense Level should be computed on the basis of the underlying racketeering activities with which he was charged in the indictment and any relevant conduct relating to those charged predicate acts. Id. at 168, 188, 193. The court found that none of the seven crimes the government argued constituted relevant conduct met this standard. Id. at 168, 193. Thus, with an enhancement for Patriarca's role as the Boss of the Patriarca Family of La Cosa Nostra ("LCN"), defendant's Total Offense Level was 26, his Criminal History Category was I, and the Guidelines required a prison sentence of 63 to 78 months in the absence of a departure. Id. at 168.

With regard to the departure issues, the court found that the government had not proved by a preponderance of the evidence its contentions that Patriarca: knew about or authorized the killings of James Limoli and Ted Berns; conspired with, aided or abetted, or profited from the narcotics activities of his co-defendant Robert Carrozza; authorized an attempt to murder his co-defendant Vincent Ferrara; or participated in the harboring of LCN fugitive Alphonse Persico. Id. at 203-09. The court did, however, find that the government had adequately established for departure purposes one matter that the parties had not discussed at the numerous sentencing hearings?€”Patriarca's alleged involvement in the drug activities of Salvatore Michael Caruana and the related claim that the defendant illegally assisted Caruana when he became a fugitive from federal drug charges. Id. at 205-06. Recognizing that the Caruana matter had received only cursory attention from the parties, and thus might have been misunderstood, the court stated that if, on appeal, Patriarca's relationship with Caruana was held to be potential relevant conduct, with the possibility of dramatically increasing the defendant's Base Offense Level, the court would consider further on remand whether to permit him to focus on and dispute the court's analysis of the Caruana matter. Id. at 205, n. 3.

The government and the defendant each appealed. Although they were germane to the issue of departure, independent of the question of relevant conduct, the government did not challenge this court's factual findings. See Patriarca, 4 F.3d at 73 ("The government acknowledges that Patriarca had direct personal involvement only in the Caruana drug trafficking and the harboring of Caruana as a fugitive."). The Court of Appeals for the First Circuit found, however, that the government was correct in its contention that this court "erred when it limited relevant conduct to conduct in furtherance of the RICO predicate acts charged against Patriarca." Id. at 74. Rather, the Court of Appeals held that:

the term "underlying racketeering activity" in ? 2E1.1(a)(2) means simply any act, whether or not charged against the defendant personally, that qualifies as a RICO predicate act under 18 U.S.C. ? 1961(1) and is otherwise relevant conduct under ? 1B1.3.

Id. at 77 (citation omitted).

As the Court of Appeals recognized, pursuant to ? 1B1.3 a defendant is responsible for "acts of coconspirators which were in furtherance of the jointly undertaken activity and were reasonably foreseeable to the defendant." Id. at 83. It held that: "The seven acts proffered as relevant conduct must be reexamined in light of this standard." Id.¹

Among other things, Patriarca challenged on appeal this court's finding concerning his association with Caruana and decision to depart upward based on them. Id. at 83. The Court of Appeals, however, did not decide these challenges. Id. Rather, it stated that: "Because on remand the court will decide if the Caruana conspiracy is relevant conduct for RICO sentencing purposes, its utilization as a basis for upward departure need not be considered here and is vacated." Id.

The defendant asked the Supreme Court to hear this case before it was remanded for resentencing. His petition for certiorari was denied. Patriarca, ___ U.S. at ___, 114 S.Ct. 1644 (1994).

Upon remand the government and the defendant agreed that three of the seven crimes originally alleged to be relevant conduct ?€” the alleged harboring of Caruana and Persico as fugitives and the alleged authorization of an attempt to murder Vincent Ferrara ?€” were not RICO predicate offenses under 18 U.S.C. ? 1961(d) and, therefore, could not, under the First Circuit's ruling, constitute relevant conduct. See Patriarca, 4 F.3d at 76-7. Accordingly, the parties and the court prepared for hearings to address the four remaining matters alleged to be relevant conduct: the Limoli and Berns murders, Robert Carrozza's drug dealing, and Patriarca's relationship to Caruana's marijuana trafficking and attempt to extort Frank Lepere and Kevin Dailey.

As the hearings were about to begin, the government obtained the cooperation of Antonio Cucinotta, who was understood to be a member of the Patriarca Family and the defendant's driver from 1982 to 1988. For the reasons described in detail in a December 7, 1994 Memorandum and Order, the court decided that Cucinotta would be permitted to offer evidence on issues expressly included in the remand, but that the court would not reopen and relitigate facts it previously found which were not challenged by the government on appeal or allow the government to seek to prove at the resentencing any additional alleged instances of relevant conduct. See also United States v. Bell, 988 F.2d 247 (1st Cir.1993); United States v. Rivera-Martinez, 931 F.2d 148, 151 (1st Cir.) cert. denied 502 U.S. 862, 112 S.Ct. 184, 116 L.Ed.2d 145 (1991); United States v. Wogan, 972 F.2d 337 (1st Cir.1992) (unpublished disposition, 1992 WL 197368).²

Patriarca subsequently moved to withdraw his plea of guilty. The court has the discretion to permit a plea to be withdrawn for "any fair and just reason." Fed.R.Crim.P. 32(e). The defendant, in essence, asserted that the government had misled him by not putting him on notice prior to his plea that it would assert that uncharged murders and other matters which could dramatically affect the Guideline range for his sentence constitute relevant conduct. He relied, in part, on the observation by the Court of Appeals for the First Circuit that "sandbagging is never to be condoned." United States v. Brewster, 1 F.3d 51, 54 (1st Cir.1993). The government opposed this motion.

The defendant subsequently filed a motion to bar further sentencing proceedings on Double Jeopardy grounds. The government also opposed this motion.

Rather than address the pending motions immediately, the court asked the Probation Department to prepare an addendum to the Presentence Report to address the four remaining alleged instances of relevant conduct. The parties were given an opportunity to object to the Probation Department's findings and analysis. This is the standard procedure followed in virtually every case on sentencing and in many cases which are remanded for resentencing.

The Probation Department prepared an Addendum. The Probation Department proposed certain findings concerning relevant conduct and related issues which, if adopted by the court, would result in a Guideline range of 121 to 151 months imprisonment. See Addendum to Presentence Report of 1992, Revised Mar. 30, 1995.

The government objects to many of the findings of the Probation Department. The government asserts that the defendant's Total Offense Level is 43.³ Consequently, the government contends that the court has no discretion and must impose the maximum possible sentence for the offenses to which the defendant has pled guilty, consecutive sentences totalling 65 years, because under the Guidelines Level 43 requires a sentence of life in prison.

The defendant also objects to the Probation Department's analysis and calculations. The defendant asserts that his Total Offense Level is, at most, 26 and his Criminal History Category is I. If this were true, the Guideline range for his incarceration would be 63 to 78 months. The defendant has now served about 68 months. He requests that, in any event, he be given no more than the 97 month sentence he previously received.

In June 1995, the court denied the motion to dismiss based on double jeopardy grounds. See June 16, 1995 Transcript. The defendant decided not to appeal that decision prior to his resentencing.

The court was then informed that the defendant would not seek a ruling on his motion to withdraw his plea prior to his resentencing. He has not, however, withdrawn the motion.

Accordingly, the court again scheduled hearings relating to...