United States v. Fiorelli

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit

1-6-1998

USA v. Fiorelli
Precedential or Non-Precedential:

Docket 94-2210

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Filed January 6, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 94-2210

UNITED STATES OF AMERICA

v.

JOSEPH FIORELLI
Appellant

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. Action No. 94-cr-00146)

Argued October 14, 1997

BEFORE: STAPLETON, ALITO and ROSENN,
Circuit Judges

(Opinion Filed January 6, 1998)

Michael R. Stiles
U.S. Attorney
Robert E. Courtney III
Deputy U.S. Attorney
Walter S. Batty, Jr.
Assistant U.S. Attorney
Robert K. Gordon (Argued)
Assistant U.S. Attorney
Office of U.S. Attorney
615 Chestnut Street
Philadelphia, PA 19106
Attorneys for Appellee
 Barnaby C. Wittels (Argued)
Stephen R. LaCheen & Associates
225 South 15th Street
3100 Lewis Tower Building
Philadelphia, PA 19102
Attorney for Appellant

OPINION OF THE COURT

STAPLETON, Circuit Judge:

This is an appeal by Joseph Fiorelli 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. We will vacate Fiorelli's sentence and remand
for resentencing.

I.

From 1967 to 1991, Fiorelli was employed as the
business representative of Drywall Finishers Local Union
1955 of the International Brotherhood of Painters and
Allied Trades. Fiorelli also served as a trustee for the Local
1955 Health and Welfare Fund and several other union
benefit funds. As business representative, Fiorelli was
responsible for overseeing the daily operation of the union,
whose members were employed by contractors and
construction companies engaged in drywall finishing. The
job of a drywall finisher is to complete the installation of
drywall in a residential or commercial building using tape
and joint compound.

A federal grand jury returned a 15-count indictment
against Fiorelli, charging him with demanding and
accepting illegal payments and gifts from contractors
during his service as business representative. After trial, a
petit jury found Fiorelli guilty of most of the counts in the
indictment, including racketeering, conspiracy to violate the
Taft-Hartley Act, unlawful request and receipt of money by
a union official, extortion, embezzlement, and obstruction of
justice. The jury also ordered forfeiture of $68,984 in
racketeering proceeds. The district court sentenced Fiorelli

2
to 121 months of imprisonment, followed by three years of
supervised release, a fine of $12,500, and special
assessments totaling $600. This appeal followed.

The government's case at trial consisted of a parade of
builders and contractors who testified that they made
periodic payments to Fiorelli or to James Siesser, his
associate, on Fiorelli's behalf. These payments were made,
for the most part, because the witnesses believed it was in
their economic interest to do so. Some said they wanted to
assure themselves of a good supply of qualified union
workers or to avoid trouble over their having used non-
union workers. Others paid because they believed the
payments would guarantee labor peace and acceptable
contracts. These witnesses did not report express threats of
violence or economic harm but indicated that, based on
their contact with Fiorelli and Siesser, they feared labor
trouble if they did not pay.

One witness, William Sampsel, testified that, upon
arriving in Philadelphia to oversee his firm's execution of a
contract to do the drywall work in a 19-story building,
Fiorelli demanded $38,000 in return for assuring that he
would have a supply of good workers. Siesser visited the job
site a number of times to pressure Sampsel and ultimately
threatened him with bodily harm if he reported Fiorelli's
demands to the FBI. The government did not contend that
Fiorelli ever obtained money or anything else of value from
Sampsel.

Fiorelli testified in his own behalf. He admitted that he
received payments that he regarded as Christmas gifts and
vacation money from contractors and builders who thought
well of him and wanted to give him what he called "tips."
He insisted, however, that he had never threatened violence
or economic harm to any of the builder/contractor
witnesses. He also specifically denied ever asking Sampsel
for money.

The record affirmatively reflects that the district court
considered Fiorelli's written objections to the presentence
report and that it afforded counsel ample opportunity at
two sentencing hearings to address those objections and
any other he wished to make. Ultimately, the court, with

3
one exception not here relevant, adopted the factual
findings and guideline application set forth in that report.
In accordance with the adopted guideline application, the
court grouped the offenses in ten groups. Each extortion
offense against a particular victim was placed in a separate
group. The obstruction of justice offense, which related to
an effort by Fiorelli to cover up his embezzlement of union
funds to pay personal dental expenses, was not placed in a
separate group but served as the basis for an enhancement
of the offense level for the underlying embezzlement. After
applying the multiple-count adjustment of U.S.S.G.
S 3D1.4, the court determined that 27, the base offense
level for group seven, was the "greater adjusted offense
level." Adding five levels under U.S.S.G. S 3D1.4, reflecting
the groups of offenses, the district court concluded that the
combined adjusted offense level was 32 and that the
guideline range for imprisonment is 121 months to 151
months.

Fiorelli, in addition to challenging the presentence report
in a number of respects, moved for a downward departure
based on extraordinary family circumstances. This motion
was premised on the fact that Fiorelli played an important
role in the life of his granddaughter who suffers from
cerebral palsy. The district court heard extensive evidence
in support of this motion, but ultimately exercised its
discretion to deny it.

II.

Since it is clear that the district court recognized that it
had discretion to depart downward on the basis of
extraordinary circumstances, we have no jurisdiction to
review its decision not to depart. See United States v.
Denardi, 892 F.2d 269, 272 (3d Cir. 1989). Accordingly, we
turn to Fiorelli's challenges to the district court's
calculation of the guideline range. All, save one, of those
challenges present no substantial issue.

First, Fiorelli contests the district court's failure to group
the extortion offenses. He insists that they must be grouped
together because they were all alleged in the RICO count to
be part of a pattern of racketeering activity. U.S.S.G.

4
S 3D1.2 provides the governing rules regarding grouping,
however, and where the offenses involved are extortion
offenses, there are different victims, and no count involves
conduct that is treated as a specific offense characteristic
in, or adjunct to, the guideline for another count, S 3D1.2
does not authorize grouping. The fact that the extortions
are a part of a pattern of racketeering activity is simply
irrelevant to the grouping issue under these circumstances.

Turning to the crucial calculation of the offense level for
group seven, Fiorelli asserts that the district court made no
findings to support its specific offense characteristic
enhancement under U.S.S.G. S 2B3.2(b)(1) for threatening
bodily injury, its role in the offense adjustment under
U.S.S.G. S 3B1.1(c) for being an organizer and supervisor,
or its role in the offense adjustment for abusing a position
of trust under U.S.S.G. S 3B1.3. This is simply not the case.
The district court adopted express findings (1) that
"Sampsel threatened to go to the FBI and Siesser, under
Fiorelli's direction, threatened bodily injury and death if
Sampsel went to the FBI" (PSR at 24); (2) that "Fiorelli
recruited and supervised James Siesser" (PSR at 25); and
(3) that "Fiorelli was the business manager of Local 1955
and in that position he was afforded substantial judgment
that is ordinarily given considerable deference . . . and [he]
used this position to coerce and extort money from
contractors" (PSR at 25). None of these findings is clearly
erroneous. Moreover, Fiorelli is also in error in arguing that
"abuse of trust is an element inherent in the offense
extortion" so that an adjustment for such abuse would
somehow amount to double counting.

III.

A more serious issue is presented by the district court's
two level adjustment of the offense level of group seven for
an obstruction of justice through perjured testimony at
trial.

A. The Controlling Law

An adjustment is authorized by U.S.S.G. S 3C1.1 "[i]f the
defendant willfully obstructed or impeded, or attempted to

5
obstruct or impede, the administration of justice during the
investigation, prosecution, or sentencing of the instant
offense." Perjurious testimony by a defendant at trial can
clearly constitute such an obstruction of justice.
Application Note 3(b); United States v. Dunnigan, 507 U.S.
87 (1993).

At the time of Fiorelli's crime and at the time of his
sentencing, Application Note 1 to S 3C1.1 read, in relevant
part, as follows:1

This provision is not intended to punish a defendant
for the exercise of a constitutional right. A defendant's
denial of guilt (other than a denial of guilt under oath
that constitutes perjury) . . . is not a basis for
application of this provision. In applying this provision
in respect to alleged false testimony or statements by
the defendant, such testimony or statements should be
evaluated in a light most favorable to the defendant.

The Supreme Court and this court have provided a gloss
on S 3C1.1 that is helpful here. We begin with United States
v. Dunnigan, 507 U.S. 87 (1993). The Court there held that
"the Constitution permits a court to enhance a defendant's
sentence under [S 3C1.1] if the court finds the defendant
committed perjury at trial." Id. at 88-89. Because fear of an
unjustified enhancement may chill exercise of the
defendant's constitutional right to testify in his own
defense, however, there was an important caveat to this
holding: "the trial court must make findings to support all
the elements of a perjury violation in the specific case," id.
at 97, that is, factual findings that the defendant (1) gave
false testimony (2) concerning a material matter (3) with the
willful intent to provide false testimony. Id. at 94.

We first had occasion to apply the teachings of Dunnigan
in United States v. Boggi, 74 F.3d 470 (3d Cir. 1996). We
there held that "express separate findings are not required"
under Dunnigan. Id. at 479. We explained that where "the
record establishes that the district court's application of the
enhancement necessarily included a finding as to the
_________________________________________________________________

1. This segment of Application Note 1 was amended, effective November
1, 1997. See footnote 3, infra.

6
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." Id.

Boggi, like Fiorelli, was a union official who had been
found guilty of extorting money and services from
contractors. When reviewing the perjury enhancement
imposed by the district court under S 3C1.1, we stressed
that the record reflected that Boggi took the stand in his
own defense and specifically denied receiving anything of
value from each of the contractors named in the
indictment. Id. at 478-79.2 The district court, at sentencing,
_________________________________________________________________

2. The colloquy we cited in support of this proposition as follows:

Q. Okay, Mr. Boggi, you've been charged with accepting money from
Mr. and Mrs. Magac. Did you ever accept any money from Mr. and Mrs.
Magac?

A. No, I did not.

Q. You've been charged with accepting money from Mr. Meister or
Philmont Contractors. Did you ever accept any money from him or them
or it?

A. No, I did not.

Q. You've been charged with accepting money from Samuel Kaufman,
Inc. Did you ever accept any money from Mr. Kaufman or his
corporation?

A. No, I did not.

Q. You've been charged with accepting money from Stuart Gray or
Denver Drywall Company, Inc. Did you ever accept any money from it or
him?

A. No, I did not.

Q. You've been charged with accepting kitchen cabinets from
Calvanese Corporation, CGC Corporation -- CJC Corporation, excuse
me, or Carmen Calvanese. Did you ever accept as a gift any kitchen
cabinets from Mr. Calvanese, from Calvanese Corporation or from CJC
Construction Company?

A. No, sir.

Q. You've been charged with accepting a gift of two tickets to the
Super Bowl from 1990 from Mr. Wyatt. Did you receive the two ticket --
two Super Bowl tickets from Mr. Wyatt?
7
recognized that " `a guilty verdict . . . binds the sentencing
court to accept the facts necessarily implicit in the
verdict.' " Id. at 478-79 (quoting United States v. Weston,
960 F.2d 212, 218 (1st Cir. 1992)). It understandably
concluded: "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." Id. at 478. Given that
receipt of something of value was an essential element of
the charges against Boggi, his testimony on this issue "was
necessarily material" as a matter of law. Id. at 479.
Moreover, given his specific and unambiguous "flat denials"
concerning an issue that was the central focus of the trial,
the record provided ample assurance "that Boggi provided
false testimony with willful intent, `rather than as a result
of confusion, mistaken or faulty memory.' " Id. at 479
(quoting Dunnigan, 507 U.S. at 94). Thus, while there were
no express findings of the district court in Boggi on
materiality and willfulness, "the record establishe[d] that
[its] application of the enhancement necessarily included a
finding as to the elements of perjury." Id.

In United States v. Arnold, 106 F.3d 37 (3d Cir. 1997), we
turned our attention to Application Note 1 to S 3C1.1.
There, the district court had made a finding that specific
testimony of the defendant going to a critical issue at his
trial had been willfully false. The defendant insisted on
appeal, however, that S 3C1.1 and Application Note 1
required the government to prove each of the elements of
perjury by "a higher standard than a preponderance of the
evidence." Id. at 44. We agreed and found it necessary to
remand for resentencing because there was "no indication
in the record that the district judge . . . placed the burden
of proof upon the government and viewed the evidence in
the light most favorable to Arnold." Id. We instructed that
_________________________________________________________________

A. Yes, I did.

Q. Mr. Boggi, did you ever accept any money from any contractor
with whom you had dealings as a union representative?

A. No, I did not.

Boggi, App. at 1118-19.

8
"[o]n remand, the district court must use the clear and
convincing standard, place the burden of proof upon the
government, and support its decision with the findings
required by the Supreme Court's decision in Dunnigan." Id.3

Since Arnold, we added further to our gloss on S 3C1.1 in
_________________________________________________________________

3. Application Note 1 was amended, effective November 1, 1997, to
substitute the following for the concluding sentence quoted above in the
text:

In applying this provision in respect to alleged false testimony or
statements by the defendant, the court should be cognizant that
inaccurate testimony or statements sometimes may result from
confusion, mistake, or faulty memory and, thus, not all inaccurate
testimony or statements necessarily reflect a willful attempt to
obstruct justice.

The Sentencing Commission adopted this change so that the
Application Note "no longer suggests the use of a heightened standard of
proof. Instead, it clarifies that the court should be mindful that not all
inaccurate testimony or statements reflect a willful attempt to obstruct
justice." U.S.S.G. Appendix C, Amendment 566 (1997).

Although the eliminated sentence can accurately be described as
ambiguous with respect to whether a clear and convincing standard is
required and although the Commission's explanation for its amendment
uses the word "clarifies," this is not a situation in which the Commission
has amended an application note to resolve an ambiguity by explaining
what the intent behind the ambiguous provision was. The Commission's
explanation acknowledges that the concluding sentence of the prior
version, which originated in 1990, suggested a standard higher than a
preponderance of the evidence and indicates that it was stricken to
eliminate that suggestion for the future. Moreover, it is clear from a
comparison of the texts of the new sentence and the stricken one that
the new sentence was not intended to set forth the intended meaning of
the stricken one. Rather, the new sentence is intended to clarify the
intended application of the guideline and the application notes by calling
attention to the 1993 teachings of the Supreme Court in United States
v. Dunnigan, 507 U.S. 87 (1993). Accordingly, this is not a situation in
which we, as a panel, are free to reexamine our decision in United States
v. Arnold, 106 F.3d 37 (3d Cir. 1997), in light of the subsequent
amendment to Application Note 1. Cf. United States v. Joshua, 976 F.2d
844 (3d Cir. 1992). The 1990 version of Application Note 1 is applicable
here, and we are bound by its interpretation in Arnold. See United States
v. Bertoli, 40 F.3d 1384 (3d Cir. 1994); United States v. Menon, 24 F.3d
550 (3d Cir. 1994).

9
United States v. McLaughlin, 126 F.3d 130 (3d Cir. 1997).
McLaughlin was convicted of income tax evasion. At trial,
he testified that a particular bank account was a reserve
against future warranty claims and that its balance
therefore was being treated as accrued income over a ten
year period. As a result, McLaughlin contended that there
was no tax loss attributable to the income deposited in that
account.

At the sentencing hearing in McLaughlin, the district
court imposed a S 3C1.1 enhancement. It concluded in
conclusory fashion that McLaughlin was guilty of "a willful
impediment to obstruction of justice." Id. at 139. It then
gave the following, sole example:

For example, . . . Mark McLaughlin testified . . . that,
in order to add additional money to "the reserve," "we
formed a bank account in South Jersey into which we
deposited cash into that account." The defense
concedes that the jury convicted the Defendants of
failing to report this income . . . .

Id.

We held that the enhancement was "clear error." Id. at
140. We first noted that the jury had "returned a general
verdict of guilty that [did] not distinguish between the
[various] accounts." Id. at 138. It thus did "not disclose
whether the jury rejected all or only part of Mark's
testimony." Id. at 140 n.11. Accordingly, the falsity of
McLaughlin's testimony regarding the First Fidelity account
was not necessarily implicit in the verdict.

We went on to point out that even if the falsity of this
testimony had been necessarily inherent in the jury's
verdict, "the jury's having disbelieved him" would not "alone
. . . support a finding that Mark testified `with the willful
intent to provide false testimony.' " Id. at 140 (emphasis
supplied). The record did not contain evidence from which
a conclusion of willfulness was unavoidable and the district
court provided no explanation as to whether or why it had
become clearly convinced that the referenced testimony was
willfully false. Accordingly, we held that the district court
had "failed to hold the government to [the clear and

10
convincing] burden of proof" standard required by Arnold.
Id.

In the course of making the point that a jury finding of
falsity does not necessarily mean there has been perjury,
we quoted from our pre-Dunnigan decision in United States
v. Colletti, 984 F.2d 1339 (3d Cir. 1992). We italicized the
portion of the quoted sentence which supported that point.
Another portion of that sentence repeated dicta from Colletti
to the effect that the government must prove not only
perjury to support a S 3C1.1 adjustment but also that the
perjury was so "far-reaching as to impose some incremental
burdens upon the government." 126 F.3d at 140. Fiorelli
points to this portion of McLaughlin in support of his
argument that the government's case here was deficient.
We decline to recognize this requirement as part of the law
of our circuit.

The quotation in McLaughlin regarding the necessity of an
"incremental burden" was dicta in that case as well as in
Colletti. Our confidence that it was not advanced by the
McLaughlin court as a basis for the conclusion reached
comes not only from the text of the opinion but also from
the fact that such a holding would have been clearly
inconsistent with the application notes and the decision of
the Supreme Court in Dunnigan. At the time McLaughlin
was decided, and at the time of Fiorelli's sentencing, as is
true today, Application Note 3(b) expressly stated that
"committing . . . perjury" was "conduct to which this
enhancement applies." The Supreme Court took note of this
fact in Dunnigan. It then went on to observe:

Were we to have the question before us without
reference to this commentary, we would have to
acknowledge that some of our precedents do not
interpret perjury to constitute an obstruction of justice
unless the perjury is part of some greater design to
interfere with judicial proceedings.

Dunnigan, 507 U.S. at 93. The Supreme Court concluded,
however, that a construction of S 3C1.1 that would require
more than proof of the existence of perjury would be
"inconsistent with its accompanying commentary." Id. at 94.4
Thus, even if our statement in Colletti had not been dicta,
_________________________________________________________________

4. We note, as well, that in sharp contrast to Application Note 3(b),
Application Note 3(g) requires that a materially false statement to a law
enforcement officer must significantly obstruct or impede the official
investigation before a S 3C1.1 enhancement is appropriate.

11
its vitality would not have survived Dunnigan.

B. Application

Application of these governing principles to the record in
this case involves a close judgment call. The only relevant
comments of the district court are cryptic. At the same
time, however, the record bears strong evidence that would
support a finding of perjury in connection with the offenses
in group seven. Ultimately, we conclude that this case is
more like McLaughlin than Boggi, and out of an abundance
of caution, decide to remand to provide an opportunity for
the district court to make its views clear.

Fiorelli's Presentence Report, in explaining its
recommended S 3C1.1 enhancement to the group seven
offense level, states that "Fiorelli obstructed justice by
perjuring himself repeatedly on the stand." PSR at 25. In
response to Fiorelli's objection, the presentence officer
added, "Defense counsel admitted that Fiorelli denied
extorting money or services and that the jury did not accept
Fiorelli's denial. This constitutes perjury under United
States v. Dunnigan." PSR Addendum at 2. These statements
of the probation officer were directed not only to group
seven but to each group of offenses that included an
extortion charge. In addition to adopting the presentence
report, the district court quoted this response to Fiorelli's
objection at the sentencing hearing and indicated that it
was "persuaded by the statement of the Probation Officer."
It then overruled the objection. There are no other relevant
findings in the record.

Two racketeering acts of Fiorelli have been grouped in
group seven. The jury found that the government had
proved both beyond a reasonable doubt. The first was to
demand $38,000 from William Sampsel and his firm, Alpha
Painting and Restorations, Inc., while serving as a
representative of one or more of its employees in violation
of 29 U.S.C. S 186. The second of these racketeering
activities was attempting to obtain $38,000 from Alpha "by
wrongful use of . . . threatened force, violence and fear,
including fear of economic harm" in violation of 18 U.S.C.
S 1951. As we have earlier noted, Fiorelli took the stand

12
and specifically denied ever asking William Sampsel for
money. The fact that he did so ask is necessarily inherent
in the jury's verdict on both of these racketeering acts.
Accordingly, if there were some record indication that the
district court relied on Fiorelli's testimony that he had
never asked Sampsel for money, this case would be
indistinguishable from Boggi. Since a finding that this
testimony was false was implicit in the verdict, that verdict
would establish that falsity had been proven by more than
clear and convincing evidence. Moreover, as in Boggi, the
conclusion would be inescapable in the context of the
charges being defended against and the unambiguity of
Fiorelli's denial that this falsehood was deliberate, rather
than the result of confusion, mistake, or lapse of memory.
Finally, as in Boggi, the jury's verdict and the record would
permit us to say with confidence that the government
carried its heavy burden in proving all of the elements of
perjury.5

The difficulty from the government's point of view arises
from the fact that neither the presentence report nor the
district court at the sentencing hearing focused on Fiorelli's
denial of a request of money from Sampsel or, indeed, on
the particular allegations, testimony, or verdict with respect
to the group seven offenses. To the extent there was any
focus on the perjury issue, it was not on Fiorelli's having
denied requesting money from Sampsel, but rather on his
having denied obtaining money and services from others by
extortionate means. This fact changes our analysis because,
as we have noted, Fiorelli freely acknowledged receiving
money and services from contractors and builders other
than Sampsel. He denied only making threats or promises
in connection with his receiving those funds and services.
Moreover, as we have also noted, the testimony of the
builder/contractors was not that Fiorelli made explicit
threats but rather that they interpreted his conduct to
imply that there was cause for fear if they did not pay.6
_________________________________________________________________

5. Judge Rosenn believes this case is indistinguishable from Boggi. He
would therefore affirm the judgment of conviction and the sentence as is.

6. While Sampsel testified to an express threat of bodily injury, that
threat was in connection with a demand by Siesser that Sampsel not go
to the FBI, rather than in connection with the demand for $38,000.

13
The operative portions of the extortion allegations of the
indictment are that the specified payments were made "with
the consent of the contractors having been induced by the
wrongful use of . . . fear, including fear of economic harm."
See Gov't App. at 14. In a labor racketeering case involving
similar allegations and a denial by the defendant that any
threats were made, the Court of Appeals for the Fourth
Circuit upheld the conviction, ruling as follows:

The fear need not be the consequence of a direct or
implicit threat by the defendant, and the government's
burden of proof is satisfied if it shows that the victim
feared an economic harm, and that the circumstances
surrounding the alleged extortionate conduct rendered
that fear reasonable. . . .

[S]o long as the defendant intends to exploit the
reasonable fear of the victim, his actions will constitute
extortion under the Hobbs Act.

United States v. Billups, 692 F.2d 320, 330-31 (4th Cir.
1982) (citations omitted).7

Given the concerns reflected in Dunnigan's requirement
of findings, if a sentencing court is going to rely on the
verdict of the jury as laying part of the foundation for a
S 3C1.1 enhancement, there should be no question but that
the relevant finding was necessarily made by the jury. In
this context, we are hesitant to conclude that the falsity of
Fiorelli's testimony about the absence of any threats by him
is necessarily inherent in the jury's verdict on the extortion
charges. Moreover, we find inadequate other assurance in
the record that the district court, in reaching its decision
on the S 3C1.1 enhancement, held the government to its
heavy burden of proving falsity and willfulness by clear and
convincing evidence as required by Arnold.

IV.

We will reverse the judgment of the district court and
remand for resentencing only. On remand, the district court
_________________________________________________________________

7. See also United States v. Williams, 952 F.2d 1504, 1513 (6th Cir.
1991) (collecting cases).

14
should determine whether the government met its burden
of proving each of the elements of perjury as set forth above
and should make appropriate specific findings to reflect its
decision. We do not foreclose the district court from
imposing a S 3C1.1 perjury enhancement provided it does
so in a manner consistent with this opinion.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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