United States v. Voccola

United States Court of Appeals
For the First Circuit

No. 96-1182

UNITED STATES,

Appellee,

v.

ROBERT VOCCOLA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Mary M. Lisi, U.S. District Judge]

Before

Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lynch, Circuit Judge.

David L. Martin for appellant.

Sheldon Whitehouse, United States Attorney for Rhode Island, for

appellee.

November 5, 1996

BOWNES, Senior Circuit Judge. Defendant-appellant
BOWNES, Senior Circuit Judge.

raises three issues in this appeal. They are: (1) the

denial of defendant's motion for recusal of the sentencing

judge; (2) whether the district court clearly erred in

increasing defendant's sentencing level for his role in the

offense; and (3) whether the district judge clearly erred in

finding that defendant obstructed justice. We affirm.

Background
Background

A grand jury returned a twenty-four count

indictment charging defendant, Robert Voccola, his brother,

Edward Voccola, and one of Edward's employees, Roger Cavaca,

with an extensive scheme of automobile insurance fraud.

Count one of the indictment charged each of the defendants

with a federal racketeering violation, 18 U.S.C. 1962;

counts two through twenty-three charged each defendant with

federal mail fraud in violation of 18 U.S.C. 1341, and

aiding and abetting mail fraud in violation of 18 U.S.C. 2;

count twenty-four charged co-defendant Edward Voccola with

obstruction of justice in violation of 18 U.S.C. 1503.

Defendant Robert Voccola pled guilty to counts two,

four, five, and twenty of the indictment, co-defendant Edward

Voccola pled guilty to count one of the indictment, and co-

defendant Roger Cavaca pled guilty to counts three, six,

seventeen, and nineteen of the indictment.

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Further facts bearing on the sentencing issues will

be stated when we discuss those issues.

RECUSAL
RECUSAL

The Facts
The Facts

The facts on which the recusal motion was based,

although somewhat lengthy and convoluted, are not disputed.

The district judge, Hon. Mary M. Lisi, held a

chambers conference prior to the scheduled sentencing

hearing. During the conference, she expressed concern about

financial information furnished by defendant for the pre-

sentence report. She questioned how the defendant could

cosign a loan for his son when he had listed approximately

$100,000 in unpaid debts on his personal financial statement

and had submitted affidavits to the court claiming indigency.

Defendant's sentencing was, therefore, continued so that

additional financial information could be obtained. After

the conference, defendant alleges that he realized, for the

first time, that the district judge served as a member of a

state commission investigating the financial activities of a

number of persons and corporations, one of whom was

defendant.

Some background facts are now necessary. In 1991

the Rhode Island Depositors Economic Protection Corporation

(DEPCO) was created to address the problems arising from a

financial crisis in Rhode Island. The crisis was triggered

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by the failure of numerous banks and credit unions, all of

which were insured by a private insurance fund -- the Rhode

Island Share and Depositors Indemnity Corporation (RISDIC),

which also failed. The unpaid debts of defendant listed on

the pre-sentence report were owed to DEPCO.

The state commission on which the judge served as

an appointee of the governor, before she became a judge, was

the Select Commission to Investigate the Failure of RISDIC

Insurance Financial Institutions. She took an active role

in the commission's investigation of the cause of the failure

of the banks, the credit unions, and RISDIC. The commission

held hearings, questioned witnesses, and subpoenaed records

during the course of its investigation, which lasted nearly

two years. In December 1992, the commission issued a report,

recommending in effect that DEPCO take appropriate action to

resolve the crisis. Legal action to recover loan proceeds

was one of the specific recommendations. The commission made

its findings and the evidence adduced at the hearings

available "to law enforcement agencies, DEPCO and the

receivers of RISDIC institutions so that they could pursue

criminal and civil action." Report of Select Commission to

Investigate Failure of RISDIC, at 2 (1992). Defendant was

not named or identified in any of this material.

On October 3, 1994, Edward D. Pare, receiver for

the Rhode Island Central Credit Union, which was insured by

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RISDIC, sued defendant and his wife for failure to pay a

promissory note for $105,000 owed to the credit union. The

note was secured by a mortgage on a yacht -- the Bella

Famina. An in rem proceeding against the boat was brought

together with an in personam action against defendant and his

wife. Judge Lisi handled this case. The in personam action

was terminated by default. Neither defendant nor his wife

appeared at any hearing.

Defendant has produced no evidence or made any

allegations that the district judge gained any knowledge

about defendant personally and/or his financial affairs

during the course of her service on the state commission.

After a hearing on the motion to disqualify, the

court stated:

Let me deal right now with the Motion
to Disqualify.

Mr. Martin, I certainly do not fault
you for bringing such a motion. I think
it's absolutely within your prerogative
and certainly if it is in your client's
best interest to do so, that you file
such a motion. I think that the
impartiality of the Court is the sine qua
non of our justice system. It is an
issue that I believe I am acutely
sensitive of. And so, I have reviewed
with great care the motion that you have
filed as well as all of the appendices,
although I must admit that I did not
reread the entire report of the RISDIC
Commission which you have appended to
your motion.

Let me just say that you are quite
correct in asserting that I served as a

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member of the colloquially-known RISDIC
Commission for some two years and that
the purpose of that commission was to
investigate the reasons for the failure
of RISDIC and ultimately the closure of
some 45 financial institutions which
affected approximately one-third of the
population of this state; the effects of
which continue to affect the taxpayers of
this state.

In any event, as your motion points
out, this Defendant was never identified
by name anywhere in the reports, public
hearings or other materials generated by
that commission. And quite frankly, I
never heard your client's name until I
came to this Court. And perhaps the
first time I ever heard his name was in
connection with the other case you cite,
which I did preside over, and that is the
in rem action against the BELLA FAMINA,
which apparently was a motor boat owned
by the Defendant and his wife. And I
believe that that action likewise was an
in personam action against Mr. Voccola
and his wife.

As you correctly point out in your
memo, that action terminated as to the
Defendant and his wife by default. It's
my recollection that neither Mr. or Mrs.
Voccola answered the Complaint. The
hearing that you reference taking place
with respect to that action, I can tell
you, dealt solely with the claim of the
substitute custodian who was looking for
more money than the marshal thought he
was entitled to. And that the Defendant,
nor his wife, nor anyone on their behalf
even appeared at any such hearing.

The case law which both Mr. Martin and
the Government cite indicates to this
Court that any charge of partiality must
be supported by a factual basis; that the
movant cannot simply rely on conclusory
allegations or innuendo. And further,
that disqualification is appropriate only
if the facts provide what an objective,

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knowledgeable member of the public would
find to be a reasonable basis for
doubting the judge's partiality. That's
the test in the First Circuit on a 455A
request.

I have weighed the exhibits and
information you've provided in your memo.
And I have, in so weighing that evidence,
stepped away from the bench and into the
shoes of that knowledgeable, objective
person in the street. And I come to the
conclusion that there is no evidence that
would point to a lack of partiality on
behalf of this Court.

Instead, my concern is that the motion
having been filed this late in the game
after that chambers conference wherein I
addressed to both you and the Government
my skepticism, if you will, or questions
as to the financial information which had
been provided -- the DEPCO part of it
aside -- how does one -- and I think that
this is a plausible question. I don't
think that the Sentencing Commission
expects judges to review financial
information provided to make a
determination as to whether or not the
Defendant is capable of paying a fine --
to simply accept whatever we're handed.
I would hope that the Sentencing
Commission would expect us to scrutinize
that information to make a determination
as to the Defendant's ability to pay a
fine.

And when I see that the Defendant, in
a 1994 tax return, reports zero income,
yet is able to sign a loan for his son to
buy a $23,000 car, is able to lease a
1995 Lincoln Continental, it does raise a
question in my mind as to whether or not
the information provided to Probation is
correct. And as I said in December, I
had those questions, I wanted answers and
I wanted to give the Defendant ample
opportunity, not only to provide the
additional information, but to prepare an
explanation since one would be requested.

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All of that having been said, I do not
believe that you have met your burden
under Section 455. And the Motion for
Disqualification is denied.

Discussion
Discussion

Defendant's recusal motion is based on 28 U.S.C.

455(a), which states:

Any justice, judge, or magistrate of the
United States shall disqualify himself in
any proceeding in which his impartiality
might reasonably be questioned.

Defendant's claim that the district judge's "impartiality

might reasonably be questioned" is based on three sets of

facts:

(1) the judge presiding over his criminal
case had previously served as a member of
an investigative commission, a commission
charged with examining improprieties and
fraud in financial institutions; (2) the
judge, as a member of the commission,
recommended criminal and civil
prosecutions of individuals who engaged
in fraudulent business transactions with
these failed institutions; and (3) the
defendant had in fact borrowed money from
one of the failed institutions and later
been sued by the receiver for fraud.

Brief for Appellant at 5-6.

The case law fleshes out the bare-bone words of the

statute. At the outset of our case law analysis we note that

a guilty plea does not bar a recusal motion. United States

v. Chantal, 902 F.2d 1018, 1020-21 (1st Cir. 1990).

The test in this circuit for determining whether a

judge's impartiality might reasonably be questioned is long

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established. The standard stated in United States v. Cowden,

545 F.2d 257, 265 (1st Cir. 1976), cert. denied, 430 U.S.

909 (1977), is the one we follow:

[w]hether the charge of lack of
impartiality is grounded on facts that
would create a reasonable doubt
concerning the judge's impartiality, not
in the mind of the judge himself or even
necessarily in the mind of the litigant
filing the motion under 28 U.S.C. 455,
but rather in the mind of the reasonable
man.

See also Town of Norfolk v. United States Army Corps of

Eng'rs, 968 F.2d 1438, 1460 (1st Cir. 1992); United States v.

Lopez, 944 F.2d 33, 37 (1st Cir. 1991); United States v.

Martorano, 620 F.2d 912, 919 (1st Cir.), cert. denied, 449

U.S. 952 (1980).

There are two additional considerations in weighing

a claim of impartiality. First, there must be a factual

basis for the claim that there appears to be a lack of

impartiality. Lopez, 944 F.2d at 37; United States v.

Giorgi, 840 F.2d 1022, 1035 (1st Cir. 1988). And second, a

decision not to recuse is reviewed only for abuse of

discretion. Lopez, 944 F.2d at 37; Panzardi-Alvarez v.

United States, 879 F.2d 975, 984 (1st Cir. 1989), cert.

denied, 493 U.S. 1082 (1990).

These are the general rules that apply. There are

cases factually analogous to the one at bar. For example, in

United States v. Giorgi, 840 F.2d at 1035, we held:

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Although the knowledge of a defendant
gained during a judicial proceeding may

present grounds for a reasonable person
to question a judge's impartiality, see

Blizard v. Frechette, 601 F.2d 1217, 1220

(1st Cir. 1979) (citation omitted), mere
exposure to prejudicial information does
not, in itself, establish the requisite
factual basis: "[T]he judicial system
could not function if judges could deal
but once in their lifetime with a given
defendant, or had to withdraw from a case
whenever they had presided in a related
or companion case or in a separate trial
in the same case." Cowden, 545 F.2d at

266 (citations omitted). And we have
held that unless a party can establish a
reasonable factual basis to doubt a
judge's impartiality "by some kind of
probative evidence," then a judge must

hear a case as assigned. Blizard, 601

F.2d at 1221 (citation omitted).

In In Re Cooper, 821 F.2d 833, 844 (1st Cir. 1987), we noted:

"Judges are not disqualified from trying defendants of whom,

through prior judicial proceedings, they have acquired a low

view."

We end our case law analysis by quoting from Liteky

v. United States, 510 U.S. 540 (1994). In Liteky, Justice

Scalia, writing for the majority, explicated in detail the

history of the recusal doctrine. Id. at 543-51. The

question in Liteky was whether recusal under 28 U.S.C.

455(a) was subject to the limitation of the "extrajudicial

source" doctrine. The Court held that the doctrine did apply

to 455(a). Id. at 554. In the course of the opinion the

Court stated:

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Also not subject to deprecatory
characterization as "bias" or "prejudice"
are opinions held by judges as a result
of what they learned in earlier
proceedings. It has long been regarded
as normal and proper for a judge to sit
in the same case upon its remand, and to
sit in successive trials involving the
same defendant.

Id. at 551.

As to defendant's contention that Judge Lisi's

prior participation on the investigative commission requires

recusal, we find the connection between such participation

and defendant's criminal case to be too attenuated to create

a reasonable doubt concerning the judge's impartiality in the

mind of the reasonable man. The commission did not focus on

this particular case or on this particular defendant. Cf.

United States v. Payne, 944 F.2d 1458 (9th Cir. 1991)

(finding that judge's prior service on pornography commission

did not require recusal from child molestation case).

Applying the legal principles to the facts asserted

as a basis for recusal, it is obvious to us that Judge Lisi

quite properly denied the motion for her recusal.

THE SENTENCING APPEALS
THE SENTENCING APPEALS

We turn now to defendant's challenges to the

district court's upward adjustments under the Federal

Sentencing Guidelines for (i) his role in the offense and

(ii) obstruction of justice. First, we provide a brief

statement of the law relevant to appellate review of district

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court determinations to make upward adjustments under the

Guidelines. "When we review a district court's application

of a sentencing guideline, we utilize a bifurcated process.

First we review the guideline's legal meaning and scope de

novo. Next, we review the court's fact-finding for clear

error, giving due deference to the court's application of the

guidelines to the facts." United States v. Mitchell, 85 F.3d

800, 813 (1st Cir. 1996)(quoting United States v. Thompson,

32 F.3d 1, 4 (1st Cir. 1994)). Cf. Koon v. United States,

116 S. Ct. 2035 (1996) (departures from the Guidelines

reviewed under abuse of discretion standard, id., at 2043,

which includes review "to determine that the discretion was

not guided by erroneous legal conclusions." Id. at 2048

(emphasis added)).

We consider the facts as they are set forth in the

unobjected-to portions of the Presentence Report ("PSR") and

the sentencing hearing transcript. See United States v.

Cali, 87 F.3d 571, 573 (1st Cir. 1996); United States v.

Grandmaison, 77 F.3d 555, 557 (1st Cir. 1996).

Role in the Offense
Role in the Offense

At sentencing, the district court applied a three-

level enhancement to defendant's sentence based upon a

finding that defendant was a "manager or supervisor" of an

extensive scheme under the United States Sentencing

Guidelines ("U.S.S.G."), 3B1.1. Because the details of the

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insurance fraud scheme are important to the determination of

defendant's "manager or supervisor" status, we rehearse the

relevant facts. Throughout the course of the automobile-

insurance fraud scheme, defendant owned and ran Allandale

Auto Body in Providence, Rhode Island. His brother and co-

defendant ran another auto body shop in the same city.

Although there were occasional variations, each false

insurance claim generally followed the same pattern. First,

an individual would purchase Massachusetts or Rhode Island

vehicle insurance with liability coverage only. Usually only

the first payment was made on the automobile insurance.

Prior to the second payment coming due, an "accident" would

take place. The "accident" always occurred between the

insured vehicle and another vehicle that was either already,

or soon came to be, in the possession of one of the

defendants' auto body shops. After these staged accidents,

the defendants would file insurance claims under the

insurance policies in order to "repair" the "hit" car. The

two body shops used the same damaged cars to show to

different insurance appraisers as the car "hit" by the

insured vehicle. In all, there were at least six

individuals involved in the fraud: defendant and his brother,

Edward, his brother's employee, Mr. Cavaca, his employee, Mr.

Christopher, defendant's sister-in- law, Ms. Ng, and a Mr.

Hubert.

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As detailed in the PSR, defendant admitted to at

least one instance in which he directed the actions of

another in furtherance of the fraud. In his own version of

the events relating to a fraud in which his sister-in-law was

involved, he states that, "I told her what she should do; I

told her to bring her car to my shop and to tell her

insurance company that she had hit a parked car. I also told

her to tell her insurance company that the car she had hit

was at [my brother's auto body shop]."

In deciding to apply the three-level enhancement

for managerial status, the district judge stated, "I think

that what is most telling in this case are the Defendant's

own words . . . where the Defendant himself describes his

directions to Ms. Ng." The court expressly found that

"beyond being a willing participant, he directed the

transactions which make up the underlying schemes to defraud

the various victims in this case."

Discussion
Discussion

Utilizing the bifurcated review process, see

Mitchell, 85 F.3d at 813, we first examine the legal meaning

and scope of the Guideline applied by the district court.

Sentencing Guideline 3B1.1 mandates a three-level increase

if "the defendant was a manager or supervisor . . . and the

criminal activity involved five or more participants or was

otherwise extensive." U.S.S.G 3B1.1. The plain language

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of the Guidelines requires that a two-step process be

employed when determining the applicability of this

enhancement. First, the criminal scheme must be found to

have five or more participants or be "otherwise extensive."

Id. Second, the defendant must be found to have managed or

supervised the scheme. See United States v. Joyce, 70 F.3d

679, 682 (1stCir. 1995), cert. denied, 116S. Ct. 1556 (1996).

As an initial matter, we note that the first

requirement under this Guideline has been met. The PSR

conclusively shows that there were six participants in the

scheme.1 Defendant does not challenge the district court's

determination on this issue. The crux of defendant's

contention lies in the district court's finding that

defendant was a manager or supervisor of the illegal scheme.

The legal meaning and scope of the "manager or

supervisor" role under the Guidelines has been given

considerable attention by this court in recent years. See,

Cali, 87 F.3d at 576-79. Our decisions are consistent: "we

have required 'some degree of control or organizational

authority over others' to support a section 3B1.1(b)

adjustment." Id. at 578 (citation omitted). Therefore,

"[m]anagerial status . . . attach[es] if there is evidence

that a defendant, in committing the crime, exercised control

1. A participant is a person who "is criminally responsible
for the commission of the offense, but need not have been
convicted." U.S.S.G. 3B1.1, comment n.1.

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over, or was otherwise responsible for overseeing the

activities of, at least one other person." United States v.

Savoie, 985 F.2d 612, 616 (1st Cir. 1993).

The district court was correct in relying on

evidence of direction and control over others when making its

decision to apply the 3B1.1(b) enhancement. There was,

therefore, no mistake of law in the court's determination of

the scope and legal meaning of 3B1.1(b).

We turn now to the district court's fact-finding on

the issue. Because "[t]he determination of the defendant's

role in an offense is fact-specific," Joyce, 70 F.3d at 682,

we remain "deferential to the sentencing court's views and

review the determinations made only for clear error." Id.

Examining the facts as set out in the PSR, which detail at

least one instance in which the defendant expressly admits to

managing the actions of another in furtherance of the fraud,

we can find no basis for assigning error, clear or otherwise,

to the district court's determination. As the district court

pointed out, by admitting to directing Ms. Ng on the finer

points of the fraudulent activity, defendant in effect

acknowledged that he managed the activities of "at least one

other person" in the course of the illegal activity. Savoie,

985 F.2d at 616.

The government "need only prove by a preponderance

of evidence that an upward adjustment was warranted," Joyce,

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70 F.3d at 682 (citation omitted), and when making

determinations regarding a defendant's role in the offense,

"the sentencing court may look beyond the count of conviction

to the whole of the defendant's pertinent conduct." Id. We

find ample support for the district court's decision to apply

the three-level enhancement. We note that additional

evidence of managerial status, above and beyond that which

the district court expressly relied on at sentencing, can be

found in the PSR to support a 3B1.1(b) enhancement. These

facts include an admission that he engineered a fraudulent

claim for Mr. Christopher, as well as the fact that

defendant owned one of the body shops involved in such a

sophisticated scheme of insurance fraud. Evidence relating

to a defendant's role in the offense may be probative "by

fair inference." United States v. Tejada-Beltran, 50 F.3d

105, 113 (1st. Cir 1995). It would therefore be reasonable

for the district court to have inferred, from defendant's

ownership of one of the loci of the criminal activity, a

certain degree of managerial control. It is apparent,

therefore, that enhancement by three levels under 3B1.1(b)

was proper.

Obstruction of Justice
Obstruction of Justice

The final matter in this appeal concerns

defendant's challenge to the district court's two-level

upward enhancement under 3C1.1 of the Guidelines for

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obstruction of justice. Under the Guidelines, the sentence

is enhanced by two levels where "the defendant willfully

obstructed or impeded, or attempted to obstruct or impede,

the administration of justice during the investigation,

prosecution or sentencing of the instant offence." U.S.S.G

3C1.1.

The facts leading the court to apply the adjustment

were presented at the sentencing hearing through the

testimony of Maureen Ng, the defendant's sister-in-law and an

unindicted co-conspirator in the insurance fraud. Ms. Ng

testified that when she was first contacted by a Postal

Inspector, defendant advised her "not to speak to him and not

to come to Rhode Island." She also testified to the effect

that defendant advised her not to answer the door when

investigators were trying to serve a subpoena, and throughout

the investigation defendant advised her "not to talk to

anyone." Finally, she testified that defendant attempted to

convince her to leave the jurisdiction, and "go down to

Florida", in order to avoid the investigation.

At sentencing, the district court found as follows:

Based on the testimony of Ms. Ng, which I
find to be credible, I find that this
defendant did engage in conduct
obstructing or impeding the
administration of justice by counselling
and directly advising Ms. Ng to avoid
grand jury subpoenas, which were being
served in connection with the
Government's investigation of the
insurance fraud scheme to which this

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defendant has entered a plea of guilty;
that Ms. Ng's acquiescence and the
Defendant telling her to avoid the
subpoenas, hindered the Government's
investigation for a period of time while
she, herself, admits to hiding her car
and not going in her house and
essentially avoiding service of the
subpoena as she was directed to do by
this Defendant.

Tr. at 71. Defendant challenges this finding, basing his

appeal on (i) the lack of evidence of any threat against the

witness, and (ii) the court's failure to take into account

additional testimony by Ms. Ng which, in defendant's view,

would counsel against a 3C1.1 enhancement.

Discussion
Discussion

Little needs to be said regarding the legal meaning

of 3C1.1. The language of the Guideline is clear enough;

it applies where the defendant intentionally impedes, or

attempts to impede, the investigation of an offense.

Culpability under the Guideline is also applicable where a

defendant causes, or attempts to cause, the obstruction of

justice by a third party. The Application Notes state that

"[u]nder this section, the defendant is accountable for his

own conduct and for conduct that he . . . counselled,

commanded, induced, procured, or willfully caused." U.S.S.G

3C1.1, note 7. Clearly, conduct such as that described by

Ms. Ng falls within the scope of the Guideline. The only

remaining basis for reversal, therefore, is if it was error

for the district court to rely on Ms. Ng's testimony.

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"Any credibility assessment made at sentencing

falls within the province of the district court, and it

should be respected on appeal unless it is clearly

erroneous." Joyce, 70 F.3d at 682 (citation omitted); see

United States v. Indelicato, No. 95-1907, slip op. at 14 (1st

Cir. Oct. 15, 1996). We find no error in the district

court's factual determination that defendant obstructed

justice. The evidence presented by Ms. Ng wholly supports

the district court's determination that defendant obstructed

justice, and there is nothing in the record to suggest that

the district court was somehow in error in relying on the

testimony of Ms. Ng.

We turn briefly to defendant's specific assignments

of error. First, contrary to what defendant argues, 3C1.1

does not require the existence of threats in order to apply.

A court may find that defendant "obstructed or impeded" an

investigation, without resorting to threats to obtain a

witness's cooperation. The Application Notes are plain that

a wide range of conduct will suffice to properly enhance a

sentence for obstruction of justice. U.S.S.G. 3C1.1, note

3a.

Second, defendant argues that the district court

erroneously ignored testimony suggesting that he was not

instructing Ms. Ng to obstruct the investigation or to avoid

the service of a subpoena, but rather, merely advising her of

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her right to preserve her Fifth Amendment right against self-

incrimination. But the obstruction of justice adjustment is

supported by actions of the defendant irrespective of any

advice about rights under the Fifth Amendment. Defendant

advised Ms. Ng not to answer the door for the investigator

trying to serve the subpoena and to go to Florida in order to

avoid the investigation. Because "[t]he facts constituting

obstruction of justice for sentencing purposes need only be

established by a preponderance of the evidence," United

States v. Thomas, 86 F.3d 263 (1st Cir. 1996)(citation

omitted), defendant's challenge to the enhancement fails.

Affirmed.
Affirmed.

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