United States v. Capoccia

11-4258
United States v. Capoccia

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 2nd day of May, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROSEMARY S. POOLER
10 Circuit Judge.1
11 _____________________________________
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 v. 11-4258
18
19 HOWARD SINNOTT, THOMAS J. DALY,
20 SHIRLEY DINATALE, RODGER KOLSKY,

1
The Honorable Richard C. Wesley, originally a member
of this panel, did not participate in the consideration of
this appeal. The two remaining members of the panel, who
are in agreement, have determined the matter. See 28 U.S.C.
§ 46(d); 2d Cir. I.O.P. E.; United States v. Desimone, 140
F.3d 457 (2d Cir. 1998).
 1 CAROL CAPOCCIA, CARLO SPANO,
2
3 Defendants,
4
5 ANDREW CAPOCCIA,
6
7 Defendant-Appellant.
8 _____________________________________
9
10 FOR APPELLEE: GREGORY L. WAPLES, Assistant
11 United States Attorney (Paul J.
12 Van de Graaf, on the brief) for
13 Tristram J. Coffin, United
14 States Attorney for the District
15 of Vermont.
16
17 FOR DEFENDANT-APPELLANT: STEPHANIE M. CARVLIN, Law
18 Offices of Stephanie M. Carvlin,
19 New York, NY.
20
21 Appeal from a judgment of the United States District
22 Court for the District of Vermont (Murtha, J.).
23 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
24 AND DECREED that the judgment is AFFIRMED.
25
26 Defendant-appellant Andrew Capoccia appeals from the
27 district court’s imposition of a sentence of 188 months of
28 confinement, followed by three years of supervised release,
29 and restitution of $7,256,445.60 for his offenses associated
30 with his fraudulent debt reduction business. We assume the
31 parties’ familiarity with the underlying facts, the
32 procedural history of the case, and the issues on appeal.
33
34 1. Capoccia argues the government’s proof at trial
35 demonstrates that he was not guilty of Count I of the
36 indictment, interstate transportation of stolen property, in
37 violation of 18 U.S.C. § 2314. He admits that he did not
38 raise this issue during his initial criminal appeal; we
39 affirmed his conviction. See United States v. Capoccia, 247
40 F. App’x 311, 318 (2d Cir. 2007). “[W]hen a court has ruled
41 on an issue, ‘that decision should generally be adhered to
42 by that court in subsequent stages in the same case.’”
43 United States v. Carr, 557 F.3d 93, 102 (2d Cir. 2009)
44 (quoting United States v. Quintieri, 306 F.3d 1217, 1225 (2d
45 Cir. 2002)). Law of the case bars Capoccia’s challenge
46 here. Capoccia had “both opportunity and incentive to mount

2
 1 [his] challenge the first time around” and simply failed to
2 do so. Quintieri, 306 F.3d at 1232-33. In any event, the
3 Supreme Court has expressly rejected the theory that a 18
4 U.S.C. § 2314 conviction requires the interstate transfer to
5 occur after the property was stolen. See McElroy v. U.S.,
6 455 U.S. 642, 657-58 (1982).
7
8 2. Capoccia argues that several of the counts of his
9 indictment were duplicitous. See United States v. Aracri,
10 968 F.2d 1512, 1518 (2d Cir. 1992) (defining an indictment
11 as duplicitous “if it joins two or more distinct crimes in a
12 single count”). He admits that this argument was not
13 presented prior to trial, and his delay is fatal. A claim
14 that an indictment was duplicitous is “generally deemed to
15 be waived if not properly raised before trial.” United
16 States v. Berardi, 629 F.2d 723, 729 (2d Cir. 1980); see
17 Fed. R. Crim. P. 12(b)(3)(B). This rule applies so long as
18 “‘the alleged duplicitous character of the counts appears on
19 the face of the indictment.’” United States v. Sturdivant,
20 244 F.3d 71, 76 (2d Cir. 2001) (emphasis removed) (quoting
21 United States v. Viserto, 596 F.2d 531, 538 (2d Cir. 1979)).
22 The duplicity alleged by Capoccia was visible from the
23 outset, and he has waived any objection.
24
25 3. Capoccia’s multiplicity argument is also waived.
26 He contends that Counts 1 and 11 of his indictment both
27 charged the same offense, in violation of the Double
28 Jeopardy Clause. Once again, however, he failed to raise
29 this argument before trial. “It is well-settled
30 constitutional law that the constitutional protection
31 against double jeopardy is a personal right and, like other
32 constitutional rights, can be waived if it is not timely
33 interposed at trial.” Aparicio v. Artuz, 269 F.3d 78, 96
34 (2d Cir. 2001); see Fed. R. Crim. P. 12(b)(3)(B) (a motion
35 alleging a defect in an indictment must be made before
36 trial). Carpoccia’s multiplicity argument was therefore
37 waived.
38
39 4. Capoccia argues that there was no basis for a
40 sentencing enhancement premised on obstruction of justice.
41 A district court’s application of the Guidelines is reviewed
42 de novo. United States v. Hasan, 568 F.3d 161, 168 (2d Cir.
43 2009). “A sentencing enhancement for obstruction of justice
44 is warranted when a defendant testifying under oath gives
45 false testimony concerning a material matter with the
46 willful intent to provide false testimony.” United States

3
 1 v. Dunnigan, 507 U.S. 87, 94 (1993) (quotation marks
2 omitted). “If an accused challenges a sentence increase
3 based on perjured testimony, the trial court must make
4 findings to support all the elements of a perjury violation
5 in the specific case.” Id. at 96.
6
7 The key question, therefore, is whether the district
8 court made adequate independent findings to support its
9 finding of perjury. “[I]t is preferable for a district
10 court to address each element of the alleged perjury in a
11 separate and clear finding”; nevertheless, “a finding of an
12 obstruction of, or impediment to, justice that encompasses
13 all of the factual predicates for a finding of perjury” is
14 sufficient.” Id. at 95.
15
16 That is what happened in this case. At the
17 resentencing, the district court reviewed its view of
18 Capoccia’s obstruction, count-by-count. The court
19 referenced specific instances where Capoccia’s testimony was
20 directly contradicted by the testimony of his former
21 associates. See, e.g., Resentencing Hr’g Tr. at 140, ECF
22 No. 711 (“Mr. Capoccia also denied that he ordered the Law
23 Centers to stop refunding client money in late March
24 2001 . . . [t]his testimony is directly contradicted by that
25 of Mr. Sinnott and Mr. Forkey as well as Mr. Daly.”). The
26 court summarized that Capoccia’s statements were “false,
27 [material], and, if believed, would certainly have
28 influenced the Jury.” Resentencing Hr’g Tr. at 142, ECF No.
29 711. The district court closely followed Dunnigan. It made
30 specific factual findings regarding Capoccia’s perjurious
31 statements and noted that the statements were regarding
32 material issues in the case. The obstruction enhancement
33 was therefore appropriate.
34
35 5. Capoccia similarly argues that the vulnerable
36 victim sentencing enhancement should not have been imposed.
37 He contends that the district court committed legal error by
38 concluding that debt-reduction customers were vulnerable
39 victims inherently. The Guidelines stipulate that a two-
40 level enhancement is appropriate when a defendant “knew or
41 should have known that a victim of the offense was unusually
42 vulnerable due to age, physical or mental condition, or that
43 a victim was otherwise particularly susceptible to the
44 criminal conduct . . . .” U.S.S.G. § 3A1.1(b)(1). We
45 review the district court’s application of the Guidelines de
46 novo, Hasan, 568 F.3d at 168, and its factual finding that a

4
 1 victim was vulnerable for clear error, United States v.
2 Patasnik, 89 F.3d 63, 72 (2d Cir. 1996).
3
4 Capoccia argues that the enhancement required a showing
5 that he had knowledge of the particular vulnerabilities of
6 individual client victims, and he contends that he had not
7 “singled out the vulnerable victims from a larger class of
8 potential victims.” See United States v. McCall, 174 F.3d
9 47, 50 (2d Cir. 1998). However, “many cases have upheld
10 vulnerable victim enhancements based on group
11 generalizations,” id. at 51, especially in the present
12 context of predatory financial schemes.
13
14 “False financial hope is promoted more easily to
15 persons whose defenses have been lowered by anxiety and the
16 prospect of ruin.” Patasnik, 89 F.3d at 72. Thus, we have
17 held that “an enhancement is particularly appropriate
18 when . . . the success of the defendant’s criminal scheme
19 depended on the victim’s financial desperation.” United
20 States v. Borst, 62 F.3d 43, 46 (2d Cir. 1995). To the
21 extent that Capoccia was actually unaware of his clients’
22 precarious finances, he should have known once they informed
23 him of their debts. See Patasnik, 89 F.3d at 72. The
24 district court did not commit clear error in finding that
25 Capoccia’s destitute customers were especially vulnerable.
26
27 6. Capoccia argues that the loss amount was
28 incorrectly calculated by inclusion of more than $2,000,000
29 from events that predated the first transfer on the
30 indictment, and were not associated with relevant conduct.
31 This court reviews “the factual determinations underlying a
32 district court’s loss calculation at sentencing for clear
33 error and its application of the Sentencing Guidelines de
34 novo.” United States v. Canova, 412 F.3d 331, 351 (2d Cir.
35 2005). “Although the district court’s factual findings
36 relating to loss must be established by a preponderance of
37 the evidence, the court need not establish the loss with
38 precision but rather need only make a reasonable estimate of
39 the loss, given the available information.” United States
40 v. Uddin, 551 F.3d 176, 180 (2d Cir. 2009) (citations and
41 quotations omitted).
42
43 “For two or more offenses to constitute part of a
44 common scheme or plan, they must be substantially connected
45 to each other by at least one common factor, such as common
46 victims, common accomplices, common purpose, or similar

5
 1 modus operandi.” U.S.S.G. § 1B1.3 Application Note 9(A);
2 see United States v. Walsh, 119 F.3d 115, 121 (2d Cir. 1997)
3 (recognizing relevant conduct where scheme had common
4 accomplice and “common modus operandi of false financial
5 statements and false documentation”). The district court
6 cited numerous trial evidence to support the finding that
7 Capoccia’s scheme started no later than 1998. This evidence
8 included: documentation of the Law Centers’ heavy losses in
9 1998-99, an unearned-retainer analysis by Agent Rachek, and
10 testimony from former Chief Financial Officers Lynn Hill and
11 Tom Juronski. This evidence shows that Capoccia had common
12 accomplices, victims, and modus operandi that remained
13 constant after the firm moved from Albany to Vermont. The
14 district court did not commit clear error in finding that
15 Capoccia’s misappropriation of client funds while his
16 company was based in Albany qualified as relevant conduct.
17 Its loss calculation was therefore correct.
18
19 7. Capoccia argues that his trial counsel was
20 ineffective for failing to object to those counts of the
21 indictment for which venue did not lie in the District of
22 Vermont. “In most cases a motion brought under § 2255 is
23 preferable to direct appeal for deciding claims of
24 ineffective assistance.” Massaro v. United States, 538 U.S.
25 500, 504 (2003). The record on appeal is “not developed
26 precisely for the object of litigating or preserving the
27 claim and [is] thus often incomplete or inadequate.” Id. at
28 504-05. We have already rejected such motion by Capoccia as
29 premature. See United States v. Carpoocia, 354 F. App’x
30 522, 523 (2d Cir. 2009). Nothing has changed.
31
32 We have considered all of Capoccia’s remaining
33 arguments and find them to be without merit. Accordingly,
34 the judgment of the district court is hereby AFFIRMED.
35
36 FOR THE COURT:
37 Catherine O’Hagan Wolfe, Clerk

6