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United States v. Lombardi, 1st Cir. (1993)
United States v. Lombardi, 1st Cir. (1993)
United States v. Lombardi, 1st Cir. (1993)
B.
Mann
with
whom
Mann
& Mitchell
was
on
brief
________________
________________
appellant.
Margaret E. Curran, Assistant United States Attorney, with w
___________________
Lincoln C. Almond, United States Attorney, and James H. Leav
___________________
______________
Assistant United States Attorney, were on brief for appellee.
____________________
September 24, 1993
____________________
___________________________
*Of the Second Circuit, sitting by designation.
12, 1992, to
indictment,
the
six counts of
remaining
government's behest.
counts
a nine-count superseding
being
dismissed
at the
of
the
charged conspiracy
counts
to which
to commit
acts of
1341.
All
Lombardi's
three counts
conduct
in
Lombardi
mail fraud
and VI).
related,
at
fraudulently
pled
guilty
(count I) and
18
least
U.S.C.
in part,
securing
two
371,
to
insurance
proceeds
by
property.
having
One
Lombardi;
the
another
of the
man
set
fire
properties was
other was
to
Lombardi's
a building
mobile home
that
owned by
Lombardi was
renting to a tenant.
Two further counts (VIII and IX) were for
a
bank the
insurance
episodes.
offense
proceeds received
18 U.S.C.
to
engage
1957.
knowingly
depositing in
in the
That statute
in
respective
makes
monetary
it an
transaction
offenses, including
was for using
mail fraud.1
a fire
number of
The
remaining
to commit mail
fraud, 18
____________________
1As shorthand, we refer to the offense as "money
laundering." In fact, there is a separate federal offense of
"laundering of monetary instruments" under 18 U.S.C.
1956
with more demanding requirements and greater penalties.
-22
U.S.C.
844(h), specifically,
the
setting
of the
fires
On
December
Lombardi
3,
1992,
the
district
court
sentenced
and money
to an
laundering counts;
is mandatory, on
the using a
fire
The
pay
additional, consecutive
restitution
the
amount
of
that
$190,880.08,
under the
objections more
Sentencing
readily answered.
The
and several
is plenary.
other
which our
594 (1st Cir. 1991), cert. denied, 113 S. Ct. 113 (1992).
____________
In
position on
grouping.
it rejected Lombardi's
We first describe
how the
district
The
counts
court first
separated
counts).
the grouping
U.S.S.G.
rules because
consecutive sentence.
being
3D1.2
Based
count
(grouping of closely
was excluded from
See U.S.S.G.
a mandatory
3D1.1(b).
Then, the
in the
group.
U.S.S.G.
3D1.3(a).
fraud
a fire count
highest-level
conspiracy/mail
of offenses and
The using
the
for money
U.S.S.G.
laundering
the base
offense
2F1.1,
level was
17.
2S1.2
Then--and
this
is
the point
critical
to
Lombardi's
the
guideline for
offense
"[i]f
any
by 2 levels,
money laundering
to 19, because
provides as
a specific
U.S.S.G.
2S1.2(b)(B).
See
___
id.
___
2S1.2,
1956(c)(7), 1961(1).
Since
is unquestioned that
-44
through mail
fraud.3
Under the
grouping rules,
where one
(prescribing
for
another).
the two
in
groups are
increase
within
where
U.S.S.G.
the
four levels
offense
of one
two-level
by 2 levels.
acceptance of responsibility.
U.S.S.G.
his
63 month
table.
As
See
___
U.S.S.G. sentencing
using a fire
laundering
separately but
with
central claim
the
should
conspiracy/mail fraud
laundering counts
count
counts
on
would have
this appeal
not
have
included in a
counts.
is that
been
grouped
single group
If so,
represented the
the
the money
highest level
____________________
3The money
laundering offense under
section 1957
requires that the launderer know that the proceeds are
derived from criminal activity but it explicitly does not
require that the launderer know that the activity is one of
those
"specified unlawful
activit[ies]" named
in the
statutes. 18 U.S.C.
1957(c).
-55
range fixed
The rules
forth
in
for grouping
U.S.S.G.
punishment for
one count
of closely related
3D1.2,
largely
multiple counts
eliminate
in the same
counts, set
cumulative
group (although
offense characteristic or
The introductory
closely
interrelated,"
commentary, and
counts says
the
U.S.S.G.,
the guideline
that it
D,
intro.
related
covers "counts
3D1.2.
part
involving substantially
But
this is background:
guideline that
latter
requirement is
clearly not
met here
transactions
common
these
plan.
that
have a
since the
Subsection (b)
multiple acts or
objective
or comprise
subsections,
the victim
of
fraud
is the
insurance
-66
See
___
U.S.S.G.
Lombardi
3D1.2,
application note
is relying
upon
2.
To
the extent
subsection (b),
that
the argument
is
foreclosed.
Lombardi's best, and main, argument hinges upon U.S.S.G.
3D1.2(c)
together
which
provides
that counts
shall
be
grouped
that
section 3D1.2(c)
requires
that all
five
governs
in
this case
counts--conspiracy/mail
and
fraud
and
found
any
Lombardi
nor
the
counts is
with the
fraud.
view,
it does not
In our
3D1.2(c) is that
characteristic," in
has
government
U.S.S.G.
being laundered
It happens that
2S1.2(b)(1)(B),
are the proceeds
Lombardi's knowledge of
is knowledge
of a
the funds'
source derives
that he committed
the frauds,
-77
same thing as
knowledge of them.
Lombardi's
anomaly in the
reading
would
money
create
guideline's application.
also
of
its
disturbing
knowing
source.
Yet
a defendant
if
launders the
Lombardi's
would get
exactly
the mail fraud or merely knew that someone else had committed
it: in either case, all five
and
as
offense
knowledge of source).
level
and
level
increase
for
but it
from
other sources.
separately
the illusion
his
the money
a deliberate
organized
counting than
from
for depositing
relationship
of double
between
crime.
ill-gotten gains
outright.
But
policy choice by
in a
bank
that is
the
Congress, and
bank
deposits,
money
laundering and
-88
the funds,
substitutes a
offense characteristic."
house,
to understand if
hypothetical) "specific
it down (knowing
that it was
inhabited).
same
time punishing
Lombardi's
that the
case, it
the
is harder
laundered money
sentence for
imposing an
to understand
came from
defendant for
burglary.
In
why knowledge
mail fraud,
instead of
money laundering.
enhancement, based on
But
the principle
knowledge of a
of
crime the
Lombardi's interpretation
of the guidelines fails and that both his mail fraud and
knowledge that the
source of
the laundered
funds was
his
mail
The
a sentence about
have received.
It
than
-99
only 21 (instead
of 35) before
asserts
physical
that his
ailments,
downward departure.
age (58
and
(1991), Lombardi
believed
that
the time
of sentencing),
mental-health problems
it
required
at
less discussion.
lacked
authority
to
depart
downward.
doubted its
grounds asserted
5H1.1, 5H1.4,
authority to depart.
are comparatively
and in the
Departures
rare, e.g.,
____
ordinary case
on the
U.S.S.G.
no explanation
for
declining to do so is required.
Error is
to
give
Lombardi
third
responsibility, as permitted by
point
for
acceptance
of
to the
in the
-1010
U.S.S.G.
3E1.1(b).
explicit
findings
Although
in denying
the district
a
third
court made
point, the
no
court's
extra
point,
and
we
may
fairly
assume
that
the
3E1.1(b),
the
to
prosecutor
information
the
first
argued that
as to
branch
of
Lombardi
his involvement
section
did
not provide
because he
complete
had withheld
the
answer
hearing nor
in his
this charge.
notification of the
brief
The second
on appeal
guilty until
after the
does Lombardi
branch requires
Neither
"timely"
the government to
Since Lombardi did
jury had
been empaneled,
he plainly
next argument
a $60,000
is
that the
fine as part
district
of the
court
sentence.
Although he asserts
that the
financial resources,
the
information bearing on
and
government,
an
court did
fact take
note
his
of
$85,853
Lombardi
in
not consider"
court "did
receivable.
had
obtained
According
about
to
$190,000
in the restitution
the
from
order) during
-1111
the
in securing
the guidelines,
the presumption
is that
a fine
not warranted.
before
On this record, we
could fairly
been in
United States v.
_____________
Savoie, 985
______
possession of
sums
ample to
had not
pay the
been adequately
explained.
inventory
A defendant has
of his
little incentive to
assets, and
a busy
help in an
federal judge
is not
a restitution
Protection Act,
repay
lack of
18 U.S.C.
findings
3663-64,
the Victim
and Witness
requiring Lombardi to
from insurers.
of
financial
which
____________________
4Citing United States v. Spirolpoulos, 976 F.2d 155 (3d
_____________
____________
Cir. 1992), Lombardi also says that the fine was unlawful
because its purpose was to pay the cost of his incarceration
and supervision. Whether or not this court would follow the
Third Circuit need not be decided here.
Compare United
_______ ______
States v. Turner, 998 F.2d 534 (7th Cir. 1993) (disagreeing
______
______
with the Third Circuit).
In Spirolpoulos, the sentencing
____________
court imposed a flat fine and then a per diam amount for
incarceration costs.
Here, the court imposed only the flat
fine, the judgment labels it a "fine," and it is irrelevant
that the judgment form has a boilerplate statement that
"[t]he fine includes any costs of incarceration and/or
supervision."
-1212
Savoie
______
holds are
not required,
985 F.2d
at 620,
see also
________
United States v. Ahmad, 1993 U.S. App. LEXIS 21587 (7th Cir.
______________
_____
1993),
Lombardi's
brief argues
that
such
a liability
is
We
might be
an affirmative finding
no basis for
does or necessarily
agree that on
this record
there
that Lombardi
restitution.
But
we fail to
required.
a record
basis should be
income.
the judgment
requiring restitution
Lombardi's.
held nominally
In all events,
may
assets
by
family
members are
really
the
U.S.C.
defendant
App.
3664(a);
be found able
LEXIS 21587,
order,
the district
discretion.
Affirmed.
________
at
there
is no
to pay now.
*4-5.
court
requirement
See
___
that
the
In
framing this
restitution
did not
abuse its
considerable
-1313