US v. Patriarca, Cr. No. 89-289-WF.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Citation: 807 F. Supp. 165
• Decision Date: 19 August 1992
• Parties: UNITED STATES of America v. Raymond J. PATRIARCA.
• Docket Number: Cr. No. 89-289-WF.

807 F. Supp. 165

UNITED STATES of America
v.
Raymond J. PATRIARCA.

Cr. No. 89-289-WF.

United States District Court, D. Massachusetts.

August 19, 1992.

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COPYRIGHT MATERIAL OMITTED

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Jeff Auerhahn, James Herbert and Gregg Sullivan, Asst. U.S. Attys., New England Organized Crime Strike Force, Dept. of Justice, Boston, MA, for plaintiff

Oteri, Weinberg & Lawson, Martin G. Weinberg, Boston, MA, John F. Cicilline, Providence, RI, for defendant Raymond Patriarca.

Balliro, Mondano & Balliro, Joseph J. Balliro, Boston, MA, Henry D. Katz, Chelsea, MA, for defendant Robert Carrozza.

Elliot M. Weinstein, Boston, MA, for defendant Dennis Lepore.

Joseph Russo, pro se.

ORDER

WOLF, District Judge.

Attached is a memorandum based upon the transcript of the decisions rendered orally on June 16, 1992, regarding the objections to the Presentence Report of the defendant Raymond J. Patriarca. This memorandum adds citations to the law and the evidence; deletes for publication colloquy and other non-essential remarks (with such deletions noted by asterisks); clarifies some language; and adds footnotes amplifying three points made orally. The Court recommends this memorandum as the most accurate and complete statement of the reasons for the decisions rendered on June 16, 1992. The transcript of the proceedings on June 16, 1992 is also being prepared and may be obtained from the court reporter.

The transcript of the proceedings on June 17, 1992 shall constitute the record of the reasons for the denial of the Government's Motion to Reconsider, filed after the court's rulings on June 16, 1992. The June 17, 1992 transcript may also be obtained from the court reporter.

 CONTENTS
                Summary 167
                Factual Context 170
                Procedural History 174
                The Travel Act Violations 179
                The Scope of the Defendant's Relevant Conduct 185
                Departures 196
                

I. Summary.

We are here today pursuant to my order of June 9, 1992, in which I stated that the Court intends to rule orally on the parties' objections to the defendant Raymond J. Patriarca's Presentence Report and if the rulings indicate that it is not appropriate for the Court to hear further testimony, to sentence the defendant.

* * * * * *

After a brief preamble, I will alleviate any avoidable suspense and summarize in some detail where all this comes out. However, as I think the number of people in the courtroom reflects the evident public interest in this, I ought to say the following by way of introduction.

We are here today for the defendant's sentencing under the Guidelines promulgated by the United States Sentencing Commission. The use of the word "Guidelines" in this context, however, may be somewhat misleading to the uninitiated. Usually, guidelines give guidance. The Guidelines here are laws that relate to sentencing. They both define and limit the discretion that the court has in imposing sentence in this case. The Guidelines are intended in part to eliminate what was regarded as unwarranted disparity; that is, differences in sentencing that were due to the differences between judges, either in the same courthouse or in different parts of the country, rather than based on meaningful distinctions concerning the offender or the offense. See 28 U.S.C. § 991(b)(1)(B).

As this proceeding has indicated, however, the Sentencing Guidelines have not rendered

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sentencing mechanical. Judges, including me in this case, are called upon to interpret ambiguous provisions of the Guidelines and to resolve factual disputes that are material to the sentence that is to be imposed. As this proceeding also demonstrates, at times that can be a challenging and time-consuming process. However, once those decisions are reached, the court must impose a sentence authorized by the Guidelines

In addition, as part of an effort to put greater truth in sentencing, when the Sentencing Guidelines came into effect, the possibility of parole for a convicted defendant was eliminated. See 18 U.S.C. §§ 4201-4218, "United States Parole Commission," repealed by Sentencing Reform Act of 1984, Pub.L. No. 98-473, Title II, Ch. II, § 218(a)(5). Therefore, Patriarca, like other defendants sentenced under the Guidelines, will be required to serve substantially all of the term of imprisonment that I impose on him.

Finally by way of introduction, I would say that it should be recognized that the Guidelines that are contained in the United States Sentencing Commission Guidelines Manual establish a system which includes 43 Offense Levels that go up and down on a grid and six Criminal History Categories that go horizontally on that grid. However, while that looks like a mathematical grid, it ends up setting a range of reasonable sentences that can be imposed under the Guidelines as calculated. In other words, there is no one sentence which the Sentencing Commission established as precisely correct.

Now, with regard to the summary of the many rulings I will explain in detail, in the Presentence Report, the Probation Department analyzed the facts and the applicable laws as it then understood them and calculated the defendant's Guidelines to be an Offense Level 26, Criminal History Category I, providing for a sentence of 63 to 78 months.

The government and the defendant each had a number of objections to these calculations. I have resolved all of the objections. I find that the proper calculation of the defendant's Guidelines place him in an Offense Level 27, with a Criminal History Category of II, and that the permissible range for his sentence is 78 to 97 months. At the end of this proceeding, the parties will have an opportunity to argue where within that range Patriarca's sentence should fall.

Basically, the decisions I have made which result in this calculation are as follows.

There are three disputes relating to three Travel Act counts concerning Patriarca. Count 31 involves the August 1985 travel concerning Robert Carrozza's desire to replace Henry Tameleo as the person Frank Mantia would be required to pay with regard to certain loansharking debts. I find that the Offense Level for Count 31 is properly placed at Level 20 because the travel related to extortion.

Carrozza's possible intention to use money from Mantia to buy drugs is not relevant conduct attributable to the defendant, as the government now contends, because such narcotics activity was neither within the scope of the Count 31 Travel Act conspiracy between the defendant and Carrozza, nor a reasonably foreseeable consequence of it. The government has failed to prove by a preponderance of the evidence that Carrozza's narcotics activity, or alleged narcotics activity, constitutes relevant conduct attributable to Patriarca.

Thus, with regard to Count 31, the rating is not a Level 30 as the government has recently contended, or a Level 6 as the defendant has claimed, before adjustment for role in the offense, which adds four points. It is Level 20, as the Probation Department originally calculated it.

With regard to Count 36, the August 1989 travel from Rhode Island to Connecticut, I find that travel was in furtherance of extortion, not simply travel regarding structure as the defendant now contends. Thus, that Count should also be rated as a Level 20, rather than a Level 6 as the defendant asserts.

Count 39 pertains to the October 29, 1989 Travel Act violation relating to the Mafia

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induction ceremony held on Guild Street in Medford, Massachusetts. The Probation Department has recommended that this violation be rated as a Level 6 because it perceives the travel to be in service of the structure of the racketeering enterprise. The government asserts that the Count 39 travel should be rated as a Level 20 because it was travel in furtherance of extortion. I find that the travel should be rated at a minimum as a Level 12 as travel in service of gambling, or as a Level 20 as travel in service of extortion. However, none of those distinctions matter because even if it is rated as a Level 12, it adds one Offense Level to the defendant's total Offense Level computation, therefore raising him to Level 27

Basically, the facts in brief summary are that the ceremony held on October 29, 1989, was intended to induct new members of the Patriarca Family in Boston, and that this was intended to enhance the ability of the Family to engage in its criminal business. The evidence demonstrates that the heart of that criminal business of the Patriarca Family was illegal gambling and loansharking, a form of extortion. Indeed, as was foreseeable, loansharking was discussed by several people at the induction ceremony, although not in the defendant's presence. Thus, the Offense Level, as I said, is at least a Level 12. Anything ranging from Level 12 to Level 20 adds one Offense Level to the calculation previously done by the Probation Department. So the defendant's total Offense Level is 27.

With regard to the matter which has consumed the greatest attention since the defendant pled guilty in December, 1991, the government argues that seven acts that the defendant was not charged with, including the murder of Vincent James Limoli and the murder of Ted Berns by Salvatore Michael Caruana, constitute relevant conduct, under § 1B1.3 of the Guidelines, regarding the defendant's counts of conviction for violations of 18 U.S.C. § 1961 et seq., the Racketeer Influenced and Corrupt Organizations Act, ("RICO"). The government has not contended that these acts are relevant conduct with regard to the counts of conviction involving Travel Act violations, Counts 30, 31, 36, 38 and 39.

I find that the government's position regarding relevant conduct concerning the RICO charges is incorrect as a matter of law. As I will describe in considerable detail later, the applicable Guidelines are somewhat ambiguous. I find, however, that when they are properly read, they express the intention that when RICO is involved, a defendant's Base...