United States v. Boggi

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit

1-22-1996

United States v. Boggi
Precedential or Non-Precedential:

Docket 95-1031

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

Recommended Citation
"United States v. Boggi" (1996). 1996 Decisions. Paper 250.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/250

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
3551

58102

109153

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 95-1031, 95-1109

UNITED STATES OF AMERICA
Appellant in No. 95-1109
v.

ROBERT BOGGI,
Appellant in No. 95-1031

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 94-cr-00145)

Argued: October 10, 1995
2
Before: STAPLETON, McKEE and NORRIS, Circuit Judges

(Filed January 22, 1996)

RONALD ERVAIS, ESQUIRE (ARGUED)
1315 Walnut Street, Suite 1329
Philadelphia, PA 19107

EDWARD V. SCHULGEN, ESQUIRE
121 South Broad Street, 17th Floor
Philadelphia, PA 19107

2
The Honorable William A. Norris, Senior Circuit Judge for
the Ninth Circuit, sitting by designation.

1
 Attorneys for Appellant, Cross-Appellee

MICHAEL R. STILES, ESQUIRE
United States Attorney
WALTER S. BATTY, ESQUIRE
Asst. United States Attorney, Chief of Appeals
ROBERT K. GORDON, ESQUIRE (ARGUED)
Asst. United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
Attorneys for Appellee, Cross-Appellant

OPINION OF THE COURT

McKEE, Circuit Judge.
This matter involves an appeal by Robert Boggi from a final

judgment of conviction and sentence following a criminal jury

trial in the United States District Court for the Eastern

District of Pennsylvania, and a cross-appeal by the United

States. The Government challenges the district court's

interpretation and application of the Sentencing Guidelines.

Although we find no merit to the trial errors alleged by Boggi

and therefore will affirm the judgment of conviction, we conclude
that the district court applied the incorrect Guideline provision

in calculating Boggi's sentence. Therefore, we will remand the

matter to the district court with instructions to recalculate the

sentence using the appropriate Guideline.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

From 1984 until his conviction in this case in 1994, Robert

Boggi was the business agent for Philadelphia-based Local 1073 of

2
the United Brotherhood of Carpenters and Joiners of America

("UBC"). The UBC is an international union consisting of

numerous affiliated local unions and district councils throughout

the United States and Canada which represent carpenters and other

types of skilled tradespersons. As business agent for Local

1073, Boggi was responsible for overseeing the daily operations

of the union whose members were primarily engaged in residential

carpentry. On May 6, 1994, a federal grand jury returned a

superseding indictment against Boggi, charging him with exacting

numerous illegal payments and gifts from contractors between 1984

and 1990. Specifically, Boggi was charged with one count of

racketeering, in violation of 18 U.S.C. § 1962(c) (Count 1);

three counts of unlawful receipt of money or a thing of value by

a union official, in violation of 29 U.S.C. § 186 (Counts 2-4);

and one count of extortion conspiracy, in violation of 18 U.S.C.

§ 1951 (Count 5). The indictment also sought the forfeiture of

the racketeering proceeds pursuant to 18 U.S.C. § 1963 (Count 6).

On August 2, 1994, following a seven-day trial, the jury

returned a guilty verdict on several of the RICO related offenses

including racketeering, extortion, and extortion conspiracy.

Thereafter, Boggi filed a motion for judgment of acquittal or, in

the alternative, for a new trial. On December 29, 1994, the

district court denied Boggi's motion, and on January 5, 1995, the

district court sentenced Boggi to 48 months imprisonment. The

district court ruled that U.S.S.G. § 2C1.1, which establishes

penalties for extortion by public officials, was the applicable

Guideline provision and sentenced Boggi accordingly. In doing

3
so, the court overruled the Government's argument that the

applicable Guideline was U.S.S.G § 2B3.2. This appeal and cross

appeal followed.

II. DISCUSSION

A.

Boggi alleges numerous trial errors. He complains that the

district court improperly excluded certain evidence that would

have established his reputation for good character, that the

dates of the crimes charged were impermissibly vague, that the

evidence was insufficient to support the verdict, and that the

prosecution should have been barred by the statute of

limitations. The district court carefully, and correctly

evaluated each of these claims in the Memorandum Opinion it filed

in support of its denial of Boggi's post-verdict motion for

acquittal, and we need not reexamine these issues here.

We focus our attention instead on the Government's cross-

appeal which challenges the district court's interpretation and

application of the Sentencing Guidelines. The Government argues

that the district court improperly applied § 2C1.1 of the

Sentencing Guidelines to Boggi's extortion offenses and that the

applicable Guideline was § 2B3.2.

The district court applied the Guideline manual effective

November 1, 1989 because the last offense charged was in 1990,

and the court's application of the 1989 version of the Guidelines

is not contested. In order to appreciate the impact of the

sentencing error alleged by the Government, it is necessary to

first review how the district court calculated the sentence it

4
imposed. The court first separated the counts of conviction into

three groups of closely related counts pursuant to U.S.S.G.

§3D1.2. Group One consisted of most of the racketeering acts,

which constituted Taft-Hartley Act violations including the

receipt of payments from Samuel Kaufman, a business man who ran a

company that did carpentry contracting and frequently hired non-

union workers. Group Two consisted of racketeering acts arising

from payments the Property Corporation of America ("PCA") made in

order to avoid picketing at the Polo Run apartment development

where certain contracts had been awarded to non-union workers.

Group Three consisted of racketeering acts arising from payments

received from Al Bienenfeld, owner of Leslie Homes, Inc., a

residential real estate development company, in connection with

work being done by non-union workers at a condominium

development.

Section 2E1.1 of the Guidelines assigns a RICO violation the

greater of a base offense level of 19 or the offense level of the

underlying racketeering acts. In order to determine the sentence

it was therefore necessary for the district court to calculate

the offense level of the underlying racketeering activity, then

compare the result with the alternative minimum base offense

level applicable to RICO.

The court applied § 2E5.6 to Group One and determined that

the base offense level was 10.3 The court then added two levels

for abuse of a position of trust (§ 3B1.1), three levels

3
A subsequent amendment to the Guidelines deleted § 2E5.6 by
consolidating it with § 2E5.1, effective November 1, 1993.

5
corresponding to the value of cash and goods received by Boggi (§

2F1.1), and two more levels for obstruction of justice (§ 3C1.1),

bringing the total offense level for Group One to 17. App. at

1302-08.

The court applied § 2C1.1 to the offenses in Group Two,

which included the PCA payments. In doing so, the court rejected

the recommendation of the presentence investigation and the

Government, as they both recommended that the court apply § 2B3.2

to this Group of offenses. Section 2C1.1 yielded a base offense

level of 10. The court applied a five-level increase

corresponding to the amount of money extorted (§ 2F1.1), a two-

level increase for abuse of a position of trust (§ 3B1.1), and a

two-level increase for obstruction of justice (§ 3C1.1), bringing

the total offense level for Group Two to 19. App. at 1309.

The court also applied § 2C1.1 to Group Three which included

the payments from Al Bienenfeld. That Guideline resulted in a

base offense level of 10. The court then applied a one-level

increase corresponding to the amount of the extortionate payment

(§ 2F1.1), a two-level increase for abuse of a position of trust

(§ 3B1.1), and a two-level increase for obstruction of justice (§

3C1.1), bringing the total offense level for Group Three to 15.

App. at 1313.

The rules for combining the offense levels of the three

groups, set forth at § 3D1.4, yielded a combined offense level of

22. App. at 1314. Applying the alternative minimum base offense

level of 19, see § 2E1.1(a), to the RICO offenses yielded a total

offense level of 23, after two levels each were added for abuse

6
of a position of trust (§ 3B1.1) and obstruction of justice (§

3C1.1). App. at 1314. Because the minimum base level of 19

yielded the greater total offense level (23 instead of 22), the

court sentenced Boggi based upon that calculation. Thus, the

court concluded that the total offense level was 23 and the

Guideline imprisonment range was 46-57 months. App. at 1314. The

court sentenced Boggi to 48 months imprisonment. App. at 1345.

By contrast, had § 2B3.2 been applied, the Guideline

calculations would have been as follows: The total offense level

for Group One remains at level 17; Group Two becomes a total

offense level of 23 (base offense level 18, plus one-level

corresponding to the amount of the extortion as per § 2B3.1, plus

two-levels for abuse of a position of trust, plus two-levels for

obstruction of justice); Group Three becomes a total offense

level of 22 (same as Group Two except that the amount of money

extorted results in no increase). Under the rules for combining

the groups set forth at § 3D1.4, the combined offense level

becomes 26 (which is higher than the alternative minimum RICO

calculation of 23), corresponding to 63-78 months imprisonment,

which is, at a minimum, 15 more months imprisonment than the 48

months to which Boggi was sentenced under the district court's

calculation.

When the district court decided to apply § 2C1.1 to the

extortion offenses (Groups Two and Three) rather than § 2B3.2,

the Government objected based upon the relevant Guideline

commentary which instructs that § 2B3.2 should ordinarily be

7
applied to a threat to cause labor problems. See USSG § 2B3.2,

comment. (n.2). The district judge then responded:
Yeah, but that's ordinarily. This is
different than ordinarily because it seems to
me that the threat and the bodily -- there
was no bodily injury. There certainly wasn't
any serious bodily injury. There was -- no
one's ever argued there was permanent or
life-threatening bodily injury.

App. at 1311. The Government further argued that § 2C1.1 was

clearly inapplicable because, by its terms, it addressed public

officials acting under official right, whereas Boggi was a

private union officer. App. at 1312.

Our analysis of the appropriate Guideline to be applied here

must, of course, begin with the text of the Guidelines in

question. Section 2C1.1, the Guideline applied by the district

court, states in part:
Offering, Giving, Soliciting, or Receiving a Bribe;
Extortion Under Color of Official Right

(a) Base Offense Level: 10

(b) Specific Offense Characteristics

(1) If the offense involved more than one bribe or extortion,

(2) (If more than one applies, use the greater):

(A) If the value of the payment, the benefit received or t
increase by the corresponding
number of levels from the table in
§ 2F1.1 (Fraud and Deceit).

(B) If the offense involved a payment for the purpose o

USSG § 2C1.1.

By comparison, § 2B3.2, entitled "Extortion by Force or

Threat of Injury or Serious Damage," states in relevant part:
(a) Base Offense Level: 18

8
 (b) Specific Offense Characteristics

(1) If the offense involved an express or implied threat of de

(2) If the greater of the amount demanded or
the loss to the victim exceeded $10,000,
increase by the corresponding number of
levels from the table in § 2B3.1(b)(6).

(3) . . .

(B) If the offense involved
preparation to carry out a threat
of (i) death, (ii) serious bodily
injury, (iii) kidnapping, or (iv)
product tampering; or if the
participant(s) otherwise
demonstrated the ability to carry
out such a threat, increase by 3
levels.

USSG § 2B3.2.

Because neither the text of § 2C1.1 nor § 2B3.2 mentions

union officials or labor disputes per se, we will look to the

application notes and commentary for instruction on which of

these two Guidelines should be applied under the facts before us.

See United States v. Bierley, 922 F.2d 1061, 1066 (3d Cir. 1990).
The "commentary in the Guidelines Manual that interprets or

explains a guideline is authoritative unless it violates the

Constitution or a federal statute, or is inconsistent with, or a

plainly erroneous reading of, that guideline." Stinson v. United

States, U.S. , 113 S. Ct. 1913, 1915 (1993). A court's

"[f]ailure to follow such commentary could constitute an

incorrect application of the guidelines, subjecting the sentence

to reversal on appeal." USSG § 1B1.7.

According to the background commentary, § 2C1.1 "applies to

a person who offers or gives a bribe for a corrupt purpose, such

9
as inducing a public official to participate in a fraud or to

influence his official actions, or to a public official who

solicits or accepts such a bribe." USSG § 2C1.1, comment.

(backg'd.). The background commentary further instructs:
Section 2C1.1 also applies to extortion
by officers or employees of the United States
in violation of 18 U.S.C. § 872, and Hobbs
Act extortion, or attempted extortion, under
color of official right, in violation of 18
U.S.C. § 1951. The Hobbs Act, 18 U.S.C.
§1951(b)(2), applies in part to any person
who acts "under color of official right."
This statute applies to extortionate conduct
by, among others, officials and employees of
state and local governments. The panoply of
conduct that may be prosecuted under the
Hobbs Act varies from a city building
inspector who demands a small amount of money
from the owner of an apartment building to
ignore code violations to a state court judge
who extracts substantial interest-free loans
from attorneys who have cases pending in his
court.

Id. (emphasis added).
The commentary to § 2B3.2, the provision which the

Government argues should have been applied, states:
This guideline applies if there was any
threat, express or implied, that reasonably
could be interpreted as one to injure a
person or physically damage property, or any
comparably serious threat, such as to drive
an enterprise out of business. Even if the
threat does not in itself imply violence, the
possibility of violence or serious adverse
consequences may be inferred from the
circumstances of the threat or the reputation
of the person making it. An ambiguous
threat, such as "pay up or else," or a threat
to cause labor problems, ordinarily should be
treated under this section.

USSG § 2B3.2, comment. (n.2) (emphasis added).

10
 It is therefore clear from the relevant commentary that

§2B3.2 does not require the threat of serious bodily injury for

its application. There is evidence regarding Boggi's actions as

a union agent and his threats to cause labor problems which would

support the application of § 2B3.2. Although we have not

previously reviewed a district court's construction and

application of § 2B3.2 in the labor union context, other courts

of appeals have, and our conclusion here is consistent with the

reasoning of those courts.

In United States v. Penn, 966 F.2d 55 (2d Cir. 1992), the

Court of Appeals for the Second Circuit upheld a district court's

sentence under § 2B3.2 following the defendant's guilty plea to a

charge of extortion. The court rejected the defendant's arguments

that he should have been sentenced under the more lenient

provisions of § 2B3.3 which addresses "Blackmail and Similar

Forms of Extortion." There, the defendant, Terrance Penn, had

posed as an INS agent and threatened to shut down a service

station that employed illegal aliens unless the owner of the

service station acceded to Penn's demand of a cash payment. The

service station owner "testified that he believed Penn was

capable of physical bodily harm, and that he feared the station

would be put out of business if Penn carried out his threats."

Id. The district court found that Penn's initial demand for

cash, his intimidating tactics, and his implicit and explicit

threats to put the service station owner out of business

justified sentencing under § 2B3.2. Id. The court of appeals

affirmed saying: "the record clearly supports an inference that

11
Penn sought to generate fear through physical intimidation and

through explicit and implicit threats of serious economic injury.

Thus, Penn's conduct fits squarely under § 2B3.2." Id. at 57.

In United States v. Williams, 952 F.2d 1504 (6th Cir. 1991),

the court of appeals found no error in the district court's

application of § 2B3.2 in sentencing a defendant on extortion

offenses where the "defendant's exploitation of the victims'

fears was based on the implied threat that, unless payments were

forthcoming, . . . the victims would suffer a devastating

economic loss." Id. at 1514. Although the defendant in Williams

argued for the application of § 2C1.1 as an alternative, the

court rejected this argument, explaining:
Section 2C1.1 is designed for the punishment
of a person who bribes a public official or
'a public official who solicits or accepts
such a bribe.' USSG § 2C1.1, comment.
(backg'd.). Defendant, however, was not a
public official, and [the] Sheriff . . .,
whose political force was the weapon employed
by defendant, was to be bribed in a matter
not involving his official actions . . . .

Id. Thus, the court concluded that "the implicit threats
employed by the defendant bring his case within the ambit of

section 2B3.2." Id. The court further concluded that "the fact

that neither defendant nor his shadowy counterpart, [the] Sheriff

. . ., were to take any official action in exchange for a bribe

tends to take this case out of the operation of section 2C1.1."

Id. See also United States v. Hummer, 916 F.2d 186, 194 (4th

Cir. 1990) (observing that from the language of § 2B3.2's

commentary note 2 "a reasonable inference can be drawn that the

Commission contemplated extortion threats to harm one or a few

12
persons, to damage property, or to economically injure or ruin a

business enterprise").

Here, as in Williams, the district court had no sound basis

for treating Boggi's extortion offenses as bribes, and sentencing

Boggi under the Guideline provision directed at bribery involving

public officials. Boggi was not a public official and he did not

accept money in exchange for action involving any official

duties. Although Boggi did violate a position of trust as he

violated the trust that his union members had placed in him, such

a breach occurs whenever a union official engages in extortion.

The comments to § 2B3.2 clearly establish that the Sentencing

Commission did not intend that such breaches would be treated the

same as a public official who violates the public's trust.

Similarly, the commentary establishes that the Commission did not

intend that a sentencing court would require that extortionate

threats be accompanied with threats of serious bodily injury

before they would fall within the scope of § 2B3.2. Here, the

Government established Boggi's blatant "threat[s] to cause labor

problems" and that conduct falls within the parameters of §2B3.2.

The evidence would support a finding that Boggi used

explicit and implicit threats of labor strikes and labor unrest

that would result in economic injury, or ruin, for a given

project. PCA and Bienenfeld both acquiesced in Boggi's demands

so that Boggi would not use his position with the labor union to

inflict serious economic harm. Bienenfeld testified that if

Boggi had ordered the union carpenters to leave the construction

site leaving only the non-union workers, the disruption of work

13
would have caused Bienenfeld's lender to foreclose and revoke a

$10 million loan within a matter of hours. App. at 861-62.

Similarly, Dean Wilson, a partner in PCA, testified that he and

the other partners were personally liable for $12 million and

that a picket line by Boggi's union could have spelled disaster

for the project. App. at 168-73. Boggi's threats were also

taken seriously by James Bormann, the superintendent at Polo Run.

Bormann testified that Boggi always behaved in an intimidating

manner and would generally conclude his visits to Polo Run by

vowing to "take his business to the streets." App. at 186-87.

Boggi's behavior caused Bormann to hire additional security at

Polo Run, erect fences at the work site, and vary his commuting

route. App. at 94, 186. Thus, Bormann's testimony would

support a finding that Boggi had used threats of physical injury.

Otherwise there would have been no reason for Bormann to vary his

route to and from the construction site. However, Boggi's

threats also included an unmistakable threat to cause economic

harm to the projects and persons involved. Should the district

court on remand find that Boggi's threats to cause labor problems

had explicitly or implicitly involved threats either of physical

injury or of complete economic ruin, § 2B3.2 would anticipate and

encompass precisely this sort of conduct. See § 2B3.2, comment.

(n.2) ("Even if the threat does not in itself imply violence, the

possibility of violence or serious adverse consequences may be

inferred from the circumstances of the threat or the reputation

of the person making it.").

14
 Our decision in United States v. Inigo, 925 F.2d 641 (3d

Cir. 1991), is not to the contrary. In Inigo, we addressed

whether § 2B3.2 or § 2B3.3 (the blackmail Guideline) applies to a

Hobbs Act conviction involving commercial extortion. The

defendant in Inigo had threatened to set up a manufacturing plant

based on trade secrets stolen from the DuPont company unless he

was paid $10 million. The district court applied the extortion

provision, § 2B3.2, to the blackmail offense. We held that

§2B3.2 had been misapplied and that § 2B3.3, the blackmail

provision, was the applicable Guideline. In so holding, we

explained:
Both the blackmail and extortion section talk
about a demand for money. The difference
between them lies in the kind of harm
threatened. We hold that the extortion
section requires either a physical threat or
an economic threat so severe as to threaten
the existence of the victim. No such threat
was made in this case.

Id. at 659. The district court may properly find on this record,

however, that Boggi used just this type of threat in threatening

the economic existence of PCA and the economic ruin of
Bienenfeld.

Inigo does not control here because the commentary to §2B3.2

specifically states that a court should ordinarily apply that

Guideline to threats, such as Boggi's, "to cause labor problems."

Indeed, any other interpretation would run afoul of Stinson's

holding that the Guidelines commentary is authoritative except in

very narrowly prescribed circumstances, none of which is present

here. See Stinson, 113 S. Ct. at 1915. If the district court

15
finds, however, that no victim could reasonably have interpreted

one of Boggi's threats "as one to injure a person or physically

damage property, or any comparably serious threat, such as to

drive an enterprise out of business," § 2B3.2, comment. (n.2),

then the court may sentence Boggi pursuant to §2B3.3.

Although it is not clear from the record whether § 2B3.2 or

§ 2B3.3 is appropriate here, it is quite clear that § 2C1.1 is

inapplicable to this case. Section 2C1.1 has consistently been

applied to bribery or extortion involving public officials in

this circuit. In United States v. Badaracco, 954 F.2d 928 (3d

Cir. 1992), the defendant pled guilty to four counts of

defrauding a bank of which he was an officer and urged the

district court to use the "value of the benefit received" formula

set forth in § 2C1.1 to calculate the loss attributable to his

fraud. Id. at 936. We held that the district court properly

declined to do so, and in so holding we explained that "[s]ection

2C1.1 deals with the bribery of public officials or extortion

under color of official right and is inapplicable to this case."

Id. at 936 n.8. Also, in United States v. Schweitzer, 5 F.2d 44

(3d Cir. 1993), we found no problem with the district court's

application of § 2C1.1 where the defendant pled guilty to

conspiracy to bribe a public official to obtain confidential

information held by the Social Security Administration. However,

we remanded for resentencing because the district court cited an

inappropriate factor to justify its upward departure from the

sentence recommended by § 2C1.1. Id. at 47-48.

16
 In sum, the district court erroneously applied § 2C1.1 in

fashioning Boggi's sentence. At resentencing, the district court

must make the necessary factual findings to determine whether

§2B3.2 or § 2B3.3 is the appropriate Guideline. If the court

finds that a victim could reasonably have interpreted Boggi's

threats to cause labor problems as express or implied threats of

violence to person or property, or of economic harm so severe as

to threaten the existence of the victim, then the district court

may resentence Boggi pursuant to § 2B3.2. If, however, the court

finds that there was clearly no such threat of violence or

economic ruin, then it may properly apply § 2B3.3.

B.

In his reply to the Government's cross-appeal, Boggi

presents two arguments which he raises here for the first time.

First, Boggi argues that the district court erred in finding that

he abused a position of trust in committing the offenses and in

adding a corresponding two-level increase pursuant to § 3B1.3 in

each of the three offense groups. Second, Boggi contends that

the district court erred in concluding that he perjured himself

at trial and therefore was subject to a two-point adjustment for

obstruction of justice pursuant to § 3C1.1.

"As a general matter, the courts of appeals will not

consider arguments raised on appeal for the first time in a reply

brief." Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 204-

05 n.29 (3d Cir. 1990). We follow this rule so that appellees

are not prejudiced by the lack of an opportunity to respond to

issues raised for the first time in an appellant's reply brief.

17
See Wright v. Holbrook, 794 F.2d 1152, 1156 (3d Cir. 1986).

However, because of the cross-appeal in this case, the Government

has had an opportunity to respond to the arguments raised in

Boggi's reply brief. Furthermore, Boggi's second argument raises

a question which we feel requires clarification in this circuit.

Therefore, we deviate from the general rule primarily to address

this question. Before doing so, however, we will briefly address

Boggi's first argument.

The district court's determination that Boggi abused his

position of trust in the union is subject to review for clear

error. See United States v. Craddock, 993 F.2d 338, 340 (3d Cir.

1993). The district court determined that, "as a Business Agent

of the Metropolitan District Council and also as an officer of

Local 1073, [Boggi] was in a position of trust with regard to the

union members who elected him to represent their interests." App.

at 1303-04. The evidence established that Boggi's union position

was central to his commission of the offenses proved at trial,

and we therefore cannot say that the district court's finding was

clearly erroneous. The jury's finding that Boggi conducted and

participated in the affairs of the union through a pattern of

racketeering activity and betrayed the union membership to enrich

himself provides ample support for the district court's upward

departure. We conclude that the district court properly

increased Boggi's offense level by two points for abuse of a

position of trust.

The district court's determination that Boggi perjured

himself at trial is also subject to review for clear error. See

18
United States v. Cusumano, 943 F.2d 305, 315 (3d Cir. 1991),

cert. denied, U.S. , 112 S. Ct. 881 (1992). Boggi argues

that under Dunnigan v. United States, U.S. , 113 S. Ct. 1111

(1993), sentence enhancement for obstruction of justice is

appropriate only after there has been a review of the evidence

and a specific finding that there was a "willful impediment to or

obstruction of justice, or an attempt to do the same, under the

perjury definition . . . ." Id. at 1117. Boggi contends that

the district court failed to make the requisite independent

finding. We disagree.

The district court found that Boggi perjured himself at

trial, observing: "I don't see how, in view of his flat denials

and the jury's conviction, that you can find otherwise than that

he testified falsely on the stand. That being the case, I feel

I'm obliged to add the two levels." App. at 1305. The issue

posed to the jury, inter alia, was whether Boggi was guilty of

the extortion offenses charged. The jury listened to testimony

including Boggi's testimony that he was innocent, evaluated the

credibility of the witnesses, and weighed the evidence. In

convicting Boggi, the jury necessarily rejected his testimony

that he was innocent of the extortion offenses charged. In

sentencing Boggi, the district properly considered this fact and

properly reasoned that "a guilty verdict, not set aside, binds

the sentencing court to accept the facts necessarily implicit in

the verdict." United States v. Weston, 960 F.2d 212, 218 (1st

Cir. 1992). Cf. Barber v. CSX Distrib. Servs., 68 F.3d 694, 700

(3d Cir. 1995).

19
 Although Dunnigan states that "it is preferable for a

district court to address each element of the alleged perjury in

a separate and clear finding," 113 S. Ct. at 1117, express

separate findings are not required. See id. ("The district

court's determination that enhancement is required is sufficient

. . . if . . . the court makes a finding that encompasses all of

the factual predicates for a finding of perjury."); United States

v. Matiz, 14 F.3d 79, 84 (1st Cir. 1994). Here, the district

court's determination that Boggi perjured himself at trial

encompassed all of the elements of perjury -- falsity,

materiality, and willfulness -- and therefore, was sufficient

under Dunnigan. This is demonstrated by the district court's

characterization of Boggi's testimony as "flat denials," which

certainly suggests that the district court believed that Boggi

provided false testimony with willful intent, "rather than as a

result of confusion, mistake or faulty memory." Id. at 1116.

While the district court was not explicit about the materiality

of Boggi's denials, the record reflects that Boggi's false

testimony denying acceptance or extortion of money and other

things of value from any of the contractors, App. at 1118-19, was

necessarily material. If the jury had believed Boggi's testimony

and disbelieved some or all of the other witnesses who offered

conflicting testimony, then Boggi would not have been convicted.

This determination of materiality is implicit in the district

court's reasoning and is clear from our independent review of the

record. See United States v. Tracy, 36 F.3d 199, 203 (1st Cir.

1994) ("On review, the appeals court must be able to ascertain

20
the ultimate finding and there must be evidence (regardless of

whether it has been specifically identified by the district

judge) that would permit a reasonable fact finder to make such a

determination . . . .), cert. denied, 115 S. Ct. 609 (1994).

Therefore, we conclude that the district court did not err in

finding that Boggi perjured himself and enhancing his sentence

accordingly. Cf. United States v. Webster, 54 F.3d 1, 8-9 (1st

Cir. 1995); United States v. Rodriguez, 995 F.2d 776, 779 (7th

Cir. 1993). In doing so, however, we stress that it is

preferable for a district court to specifically state its

findings as to the elements of perjury on the record when

applying this enhancement. However, where, as here, the record

establishes that the district court's application of the

enhancement necessarily included a finding as to the elements of

perjury, and those findings are supported by the record, we will

not remand merely because the district court failed to engage in

a ritualistic exercise and state the obvious for the record.

Finally, Boggi claims that the sentence enhancement for

perjury effectively penalized him for exercising his right to

testify in his own behalf. This claim, however, was rejected by

the Supreme Court in Dunnigan, 113 S. Ct. at 1117, where the

Court reiterated that "a defendant's right to testify does not

include a right to commit perjury." Thus, we find this claim to

be without merit.

III. CONCLUSION

21
 For the foregoing reasons, we will affirm the judgment of

conviction but the judgment of sentence will be vacated and the

case remanded for resentencing in a manner consistent with this

opinion.

22
23