April 6, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2171
UNITED STATES,
Appellee,
v.
JOSEPH A. PICCIONE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
Joseph A. Bevilacqua, Jr. on brief for appellant.
Sheldon Whitehouse, United States Attorney, Margaret E. Curran,
Assistant United States Attorney, and Kenneth P. Madden, Assistant
United States Attorney, on brief for appellee.
Per Curiam. The appellant, Joseph Piccione, pled guilty
to one count of making and presenting to the U.S. Treasury
Department a false, fictitious, and fraudulent claim against
the United States for payment, in violation of 18 U.S.C.
287 and 2. Based on a total offense level of eight and a
criminal history category of II, the guideline range was four
months to ten months.1 The district court sentenced
Piccione to ten months imprisonment, a three-year term of
supervised release, and a $5,000 fine.
The only issue on appeal is whether the district court
clearly erred in refusing to give Piccione a two-level
downward adjustment as a minor participant in that criminal
activity. See United States v. Cassiere, 4 F.3d 1006, 1026
(1st Cir. 1993) (reiterating the clear error standard of
review). There was no error, clear or otherwise. We affirm.
I.
Because Piccione pled guilty, we recite the relevant
facts from the Pre-Sentence Report (PSR) and the transcript
of the sentencing hearing. See United States v. Reyes, 3
F.3d 29, 29-30 (1st Cir. 1993) (noting that, in the case of a
guilty plea, the PSR and sentencing transcript are the
appropriate materials from which to draw the relevant facts).
1. It is undisputed that the relevant sentencing guidelines
were those effective November 1, 1993, and all references are
to that version. We see no need to explicate the interim
calculations on which the total offense level and the
criminal history category were based.
Between March 6, and April 15, 1993, 28 false and
fraudulent income tax returns were filed with the Internal
Revenue Service (IRS). Each of the tax returns was in the
name of an actual person with the correct social security
number. Each of the names, however, was that of a sentenced
prisoner. Each of the returns was supported by a false and
fraudulent W-2 Wage and Tax Statement for 1992 ("W-2"). Each
W-2 listed one of two employers with the correct employer
identification number for the respective employer. The
figures purporting to represent wages earned, federal tax
withheld, and refund due were identical on many of the
returns. The total amount of the refunds claimed on the 28
tax returns was $32,770.
Six of the 28 tax returns contained fingerprints of
three prisoners incarcerated at the state prison in Somers,
Connecticut. None of the 28 tax returns was in the name of
any of these three particular prisoners. One of these three
prisoners was Donald D'Amico. D'Amico is Piccione's cousin.
Telephone records revealed telephone toll calls between the
Somers prison and Piccione's home.
Each of the 28 tax returns listed a home address of Post
Office Box 20256, Cranston, Rhode Island ("Box 20256").
Piccione had rented Box 20256 in October 1992 under the alias
Mark S. LaRoche. The Postal Service issued a single key for
Box 20256.
-3-
On June 7, 1993, IRS Special Agents placed four decoy
income tax refund checks in Box 20256. The four checks were
in names identical to those on four of the false tax returns.
On June 7, Piccione, using a key, opened Box 20256 and
removed the checks. As he left the post office, he was
arrested. The four decoy checks, the key to Box 20256, and a
receipt showing payment for rental of that box were found in
his possession.
Several refund checks, generated by the 28 false and
fraudulent tax returns, were issued by the IRS. The checks,
however, were seized by IRS agents from the Postal Service.
No refund checks were negotiated by the conspirators and
there was no out-of-pocket loss to the government.
II.
On appeal, Piccione contends, as he did below, that,
because, at most, his role in the offense was that of a minor
participant, he should receive a two-level downward
adjustment in the total offense level. See U.S.S.G.
3B1.2(b) (providing for a two-level downward adjustment for a
minor participant). A minor participant is one "who is less
culpable than most other participants." Id., comment. (n.3);
see also id., comment. (backg'd) (one who plays a part in
committing the offense that makes him substantially less
culpable than the average participant).
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Piccione argues that he was not the "mastermind behind
this criminal endeavor," pointing instead to the three
prisoners whose fingerprints were on six of the 28 returns,
and claiming that he is less culpable than they. He
characterizes his role as "simply one of mail retriver [sic]"
and neither the "architect nor an important cog."
Piccione has the burden of proving that he merits the
downward adjustment in the offense level as a minor
participant -- a determination which is fact-bound. United
States v. Ortiz, 966 F.2d 707, 717 (1st Cir. 1992), cert.
denied, 113 S. Ct. 1005 (1993). We need not disagree with
Piccione's claim that he was not the mastermind or architect
of this scheme. Even assuming that is so, that does not aid
Piccione in this case. No defendant is automatically
entitled to the downward adjustment, even if he happens to be
less culpable than others involved in the criminal activity.
United States v. Brandon, 17 F.3d 409, 460 (1st Cir.), cert.
denied, 115 S. Ct. 80, 81 (1994); see also United States v.
Daniel, 962 F.2d 100, 103 (1st Cir. 1992) (agreeing with the
proposition that "the fact that a particular defendant may be
least culpable among those who are actually named as
defendants does not establish that he performed a minor role
in the conspiracy", quoting United States v.Zaccardi, 924
F.2d 201, 203 (11th Cir. 1991)).
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In this case, Piccione's claim that he was simply a mail
retriever and an unimportant cog is patently erroneous.
Indeed, it is obvious that Piccione's role was necessary for
the scheme's success. The IRS would not send tax refund
checks to a prison address. For a successful completion of
the plot, the inmates needed someone on the outside.
Piccione was that someone. He leased the postal box under an
alias and retrieved the decoy checks in an apparent and
essential step along the path toward their intended
negotiation.
We agree with the district court judge who stated, "I
can't conceive of this being a minor role." Sentencing Tr.
at p. 16. As we stated at the outset, there was no error,
clear or otherwise, in the district court's rejection of the
request for a two-level downward adjustment.
Affirmed. See Loc. R. 27.1.
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