Professional Documents
Culture Documents
United States v. Pierro, 1st Cir. (1994)
United States v. Pierro, 1st Cir. (1994)
convince us
Defendant-appellant Darrell
following his
court erred
F.
in
refusing to declare a
conviction, in refusing
to reduce
We
are not
BACKGROUND
BACKGROUND
At
the times
livelihood
as a
California
company.
material
vice-president of
hereto,
appellant earned
the Moore
Yielding to temptation,
Group (MoGro),
he also
his
joined a
criminal
the
theft
and
subsequent
manufactured
by
This
functioned
scheme
and for
The
with
resale
Digital
on
a step
computer
components
Equipment Corporation
three
levels.
The
(DEC).
initial
step
second step
appellant's
of
contraband.1
his
of the
stolen
employer, MoGro,
involved the
phase in
two ways.
after
altering
their
established
exchange
program,
aegis, handled
It returned some
serial
thus
numbers,
converting
components to
as
part
of
stolen,
an
often
____________________
unusable
components into
new, state-of-the-art
equipment.
It
bank loans.
used the loan proceeds, inter alia, to pay the thieves for
_____ ____
assumed an active
On several occasions, he
and
John McComas)
fellow MoGro
California
to
asportation
employees (including
Massachusetts
of
computer
and
assisted
components.
in
These
flew from
the
unlawful
purloined
parts
headquarters and
inside
apprehended.
DEC's
warehouse,
conspiracy to
id.
___
persons.
participate in
were
eventually
It charged
appellant with
a racketeering enterprise,
see 18
___
and
U.S.C.
fled,
laundering
interstate
1956(a)(1).
The
transportation
of
stolen
2314.
filed to
defendants
appellant's behoof,
purposes of trial.
split the
The court's
(including
McComas,
Kleinerman,
president) to be tried
defendants.
members
of
On
and
Ruslan
Moore,
September
8, 1992,
appellant's group.2
trial
MoGro's
other eight
commenced for
During the
trial,
most
the court
motion for a
mistrial.
counts.
The
This appeal
followed.
II.
II.
denying
his
contends
renewed motion
declare a mistrial.
that the
for
district court
severance
and his
erred in
motion
to
persons who
should be
tried
joined defendant
and,
clearly, joinder
was proper
here, see
___
Fed. R. Crim. P. 8(b)
prejudice."
this
showing of evident
used in
acquittal at a
separate trial."
F.2d
U.S.
849 (1990).
United States
_____________
the Supreme
v. Boylan,
______
898
Court has
been blunter
____________________
2One of the eight defendants
cadre pled guilty prior to trial.
originally included
in this
still,
stating
that when
single indictment,
"there
is a serious
multiple
defendants are
named
in a
be ordered unless
making
reliable
judgment about
guilt
or
innocence."
appeal, Pierro
does
not
challenge
the
district
for
purposes of trial.
district
court's
severance
acts"
refusal
device by
between himself
rationales:
and
to
grant his
which he
mid-trial
sought to
Kleinerman.
motion
put some
The motion
for
distance
rested
on
twin
which
had
Kleinerman's
nothing
courtroom
reflected adversely on
to
do
antics,
all the
with
appellant;
which,
appellant
defendants.
second,
alleges,
We bifurcate
this
Spillover.
Spillover.
_________
argument amounts to a
on
that
such a claim, a
a miscarriage
The
first
aspect
of
appellant's
To prevail
prejudice so pervasive
of
justice looms.
v.
Sabatino, 943 F.2d 94, 96-97 (1st Cir. 1991); Boylan, 898 F.2d at
________
______
246.
We
have
prejudice to
carefully reviewed
the
record and
no
discern
justify a severance.
See United
___ ______
have dissembled
This testimony,
which
like
when
antagonistic
appellant
to
appearing before
other bits
appellant complains,
and pieces
while unsavory,
appellant's
in the
defense.
peccadilloes;
jury.
of evidence
about
was not in
And
to the
the grand
nothing implicated
contrary, the
suggested he was
on the other
side of the
Kleinerman faked
the break-in
suborn
perjury.
defendants
Since
it is
any way
settled
evidence
continent both
that
when
attempted to
properly
joined
receive testimony
district court's
we also
handling of the
presentation
perhaps
take
note of
situation.
of the
supererogatory
The
all
events, the
evidence
presume
that
light
trial court's
of
the jury
the
exemplary
proof, making
the
in
keenly aware
the
that
be
considered separately
jury
heeded
these
prophylactic
instructions.
(1993);
United States v.
______________
Paiva, 892
_____
F.2d
(1st Cir.
1989).
Here,
disregarded
there is
the
no
basis to
trial judge's
suppose
admonitions
that the
and
jurors
departed on
Kleinerman's Behavior.
Kleinerman's Behavior.
______________________
Appellant
also
assigns
trial testimony
attributes to
obviously occurred;
courtroom antics.
If, during
trial,
defendant
misbehavior
codefendants.
the
course of
misbehaves
usually will
See, e.g.,
___ ____
in
not compel
a multi-defendant
the
jury's
a separate
criminal
presence,
trial
the
for his
F.2d 219,
230
(5th Cir.), cert. denied, 500 U.S. 934 (1991); United States
_____ ______
_____________
1102 (1981).
some
special
susceptible to
of
kind
remediation by prompt
district court is
denied, 454
______
free to eschew
or
to
degree
not
the trial
proceed.
Applying
this
Kleinerman's pantomime,
nisi
____
prius
_____
situation
court
standard,
do
not
think
to grant
parallels
we
but
severance.
is much
less
In
that
required the
our
view, this
noxious than
other
timed
curative instructions
will satisfactorily
ameliorate the
adverse effects
of a
codefendants.3
F.2d at
v. Smith, 578
_____
on his
(8th
Cir. 1978); United States v. Marshall, 458 F.2d 446, 452 (2d Cir.
_____________
1972);
________
Cir. 1986)
out of a
to codefendants arising
instruction was
U.S. 1086
(1987).
So
it is
here:
there
a curative
cognizable
prejudice present.4
3.
3.
considerable
Recapitulation.
Recapitulation.
______________
leeway
in determining
Trial
courts
severance
if that wide
plainly abused."
United States
_____________
See
___
Consequently,
discretion is
afforded
questions.
are
only
v.
denied, 112 S.
______
____________________
B.
B.
After
plea
18 days
agreement
of trial,
with McComas
the government
and,
after
bar McComas
that
potentially
relief.
McComas pled
guilty,
from testifying.
The district
court
McComas's
abrupt
incriminating
prejudicial.
negotiated a
change
testimony,
of
plea,
would
followed
be
by
unfairly
primarily to
S. Ct. ___
the
an appellate
disposition of
such a
to interfere
the complaining
party
can
demonstrate
manifest abuse
of
that
discretion.
possesses particular
force when, as
now, a
motion for
course, this
does not
mean that
But because
only to the
manage
crowded dockets,
appellate courts
it is
only rarely
and
in extremely
compelling circumstances
trial.
See Real v.
___ ____
Hogan, 828
_____
F.2d 58,
at 1184.
62 (1st Cir.
will be won
or lost in
the
district court.
As a
general matter,
a mistrial is
not automatically
required
823 F.2d 1,
See,
___
3 (1st
Cir. 1987); United States v. Earley, 482 F.2d 53, 58 (10th Cir.),
_____________
______
cert.
_____
when
pleaded defendant
witness
stand and
1206 & 112 S. Ct. 415 (1991); see also United States v. Kilrain,
___ ____ ______________
_______
566
F.2d
(1978).
with
979, 982-83
In such a
the
trial
(5th Cir.),
cert.
_____
appropriately
denied, 439
______
U.S. 819
the
jury
See Gambino,
___ _______
926 F.2d
circumstance
by
appropriate
mistrial.5
at 1364.
instructions,
It is
that
only when
the court
some special
must
declare
____________________
because
the three
had
plea
"MoGro defendants"
Moore
this defense.6
effects
He
adds, moreover,
of Kleinerman's
that
misbehavior, see
___
the deleterious
supra
_____
side
Part II(A)(2),
record.
and close
this finding.
standard
of
perscrutation of
At
review, we
the transcript
found no
not prepared
cognizable
fails to
second-guess the
their opening
statements
and their
cross-examination
of
prosecution witnesses, and that they adopted a "unified theme" in
regard to challenging the government's proof and confronting its
witnesses. After McComas changed his plea, appellant alone was
caught in the toils; the third MoGro defendant, Moore, found
sanctuary when the district court granted his motion for judgment
of acquittal, Fed. R. Crim. P. 29(a).
III.
III.
proper
three
place appellant's
Second,
final assignment
we
First, we
discuss
the
rehearse the
question
of
of error
into
sentencing calculus.8
appellate
jurisdiction.
The Sentence.
The Sentence.
____________
two groups,
for interstate
see U.S.S.G.
___
transportation
2E1.1,
of stolen
comment. (n.1),
property, see
___
18
U.S.C.
2314,
and one
1956(a)(1).9
2B1.2(a),
The court
excess
The
for money
judge
determined
added 15
of $2,500,000
levels for
(but less
buying
laundering, see
___
and
selling
that,
18 U.S.C.
under
U.S.S.G.
than $5,000,000),
a loss
in
see U.S.S.G.
___
property,
see
___
U.S.S.G.
____________________
nor timeliness of these instructions.
3B1.1(b).
around money
2S1.1(a)(1)
levels
convictions.
to fix
because
the
$3,500,000, see
___
of computations for
He determined that
23.10
value
the
U.S.S.G.
of
used U.S.S.G.
The judge
laundered
this group
then added 7
funds
2S1.1(b)(2)(H), bringing
exceeded
the adjusted
substantially higher
district court,
series of computations to
one
level to 32.
(GSR) of 121-151
months for
a first-time offender.
The
court
supportable,
venturing
but
a
claims
downward
that
departure
circumstances."
See 18 U.S.C.
___
for
if
departures
the
the court
lower
court
premised
3553(b)
ascertains
erred in
on
not
"mitigating
there
exists a
____________________
"mitigating
circumstance
of
kind,
or
to
degree,
not
in formulating
should result in
different
from that
described [in
(implementing statute).
B.
B.
the GSR]");
a sentence
U.S.S.G.
5K2.0
an appellate court is
See
___
Juidice v. Vail, 430 U.S. 327, 331 (1977); Mansfield, Coldwater &
_______
____
______________________
Lake Mich. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884); In re Dein
___________________
____
__________
Host, Inc., 835 F.2d 402, 404 (1st Cir. 1987).
__________
We do so here.
appeal on a sentencing
See, e.g.,
___
United States v. Tardiff, 969
______________
_______
United States v.
______________
F.2d 288,
Amparo, 961
______
(1st Cir.
exceptions.
1991).
Cir.), cert.
_____
This
One such
292 (1st
rule,
exception
however, admits
applies
____
F.2d 20,
of
when the
certain
sentencing
F.2d at 957.
See
___
Consequently,
from
the court's
misapprehension of
the
14
rules governing
departures."
United States v.
_____________
Gifford, 17 F.3d
_______
the rule.
If
evaluative judgments
even
if it exists,
_____________________
sufficient
basis for
quintessentially
But
does
not
departure," then
legal determination
_____
constitute
legally
the correctness
of that
may be
tested on
appeal.
of which you speak has not been shown to exist in this case," or,
alternatively, that
in
a theoretical
sense,
it
does
not
render
this
think
consider
appellant
the
assigned
identified
that this
case
three
At
possible
guidelines as a money
within the
hence, that we
error.
a garden-variety
fits
the
exception
have jurisdiction to
disposition
grounds
in essence, a
for
hearing,
departure,
sheep in
wolves'
by
GSR
sentenced
was
skewed by
within
disproportionate to
the
"double
GSR,
his
counting";
punishment
and
would
(3) that,
The
be
if
vastly
district
could
arguments
rested
prove
to have said, in
the
subsidiary
that his
Read
objectively,
upon
which
if
his
of a scheme to
the composition
of the
GSR,
and that
his
none
constitute a
conduct
The Merits.
The Merits.
__________
We
address
separately
fell
outside
the
statute,
thereby
appellant's
heartland of
justifying
the
claim
money
downward departure.
that
his
laundering
We
then
In
analyzing
to review the
The method of
suggest, compute
a sentencing
v. Rivera,
______
See 18 U.S.C.
___
994 F.2d
range, and
then
as the
impose a
Cir. 1993);
(1st Cir.),
(1989).
942,
Because
16
district
impose
court may
a
mechanical
sentence
abandon the
different
application of
the
at
the case
that falls
offense of conviction
that the
guideline sentencing
from the
sentence
guidelines."
range and
indicated
by
United States
_____________
v.
Jackson, ___ F.3d ___, ___ (1st Cir. 1994) [No. 93-1826, slip op.
_______
at 4]; see also Rivera, 994 F.2d at 947-48.
___ ____ ______
When
sentencing
court
considers
"mitigating
circumstance" departure,
kind cognizable
949, and must
The
under the
render the
determination
of
guidelines, see
___
Rivera, 994
______
case "special" or
whether
be of a
F.2d at
"unusual," see
___
particular
circumstance
id.
___
is
appeal.
relationship
several
49.
between
In this
the statutes
convictions constitutes
underlying
a mitigating
think that
appellant's
circumstance upon
involvement
proceeds
loans.
of
in money
laundering arose
stolen property as
out
of his
First,
use of
financial transaction
with
knowledge
that the
property
forms of
illegal activity).
has chosen
and
Second, the
sentencing calculus
Sentencing Commission
therefore resulted in a
and a longer prison term for appellant, see supra Part III(A).
___ _____
The money
laundering
does not exempt from its reach those persons who launder
money
merely
activities.
persons'
scope.
in
the
furtherance
actions
laundering
is committed
property
involved in
proceeds
of
"conducts
some
fall
outside
form
of
represents
the
the
nevertheless
a financial transaction
known as money
activity"
. . .
proper
"knowing that
transaction
unlawful
or attempts to conduct
In our
the statute's
a person,
financial
criminal
underlying
statute, in terms,
perforce
On the contrary,
of
18 U.S.C.
1956(a)(1).
to address,
with,
an
underlying
See
___
Cir. 1992).
us to
rather
than
merely
observe, in countering
that stitched
crime,
an argument strikingly
(10th
similar to
laundering
to be a
18
___ (1st
Cir. 1994)
[No. 93-1847,
F.2d at 569
the
the
post-crime hiding
of
slip op. at
14].
same conclusion.
See,
___
"with respect to
ill-gotten gains");
see also
___ ____
of double
jeopardy do not
designed
United
______
1991) (holding
bar prosecution
and
snugly
"although
within
the
convictions were
sentencing
is little question
facts
this
framework.
which
formed
Appellant
the
predicate
guidelines
for
money
argues
laundering,
for
that
the
parameters of the
the
defendant's
actual
conduct
did
not
fall
within
[what
the
Sentencing
virtually a replica of
___
F.3d at
___
[slip
the argument we
op.
at
This
rejected in LeBlanc,
_______
12].11
Because
appellant's
____________________
offense
conduct,
though arising
interstate transportation
out
of
his participation
below correctly
concluded, as
could
a matter
departure on this
in
well within
guideline, the
of law,
that it
circumstance.
See
___
LeBlanc, ___ F.3d at ___ [slip op. at 16]; see also United States
_______
___ ____ _____________
v. Limberopoulos, ___ F.3d ___, ___ (1st Cir. 1994) [No. 92-1955,
_____________
slip op.
at 12-13]
district court's
heartland
view that
holding that
within the
drug trafficking
statute
reflected a
misunderstanding
of
the
and their
two additional
Appellant suggests
First,
could
have been
appellant contends
predicated on the
that
a downward
fact that
departure
"double counting"
____________________
20
boosted
his GSR
Commission.
to heights not
In
this regard,
contemplated by
the Sentencing
appellant asserts
that the
same
in
calculating
transportation
of
the
stolen
offense
property.
level
We
for
cannot
interstate
accept
this
assertion.
It
place.
As
antecedent
separate
is not at all
discussed above,
to
and
money
where an
laundering,
distinct
for
underlying crime
the offenses
sentencing
are
occurs
considered
purposes.
This
v. Lombardi, 5
________
F.3d
568, 571 (1st Cir. 1993) (holding that an anomaly would result if
a sentencing court were
stolen property.
Hence,
Appellant dealt in
and money
and also
each of
be calculated independently.
See
___
id.
___
By
of
ill-gotten
financial support
may
sale proceeds
turn out
arrived at differently.
own measure of
to be
by
MoGro
the same,
dollar
to secure
but they
are
degree
of
overlap between
double counting.
18
these
figures
does not
did not
13 F.3d 15,
constitute
of same data
counting in
the
say
Even
more would
if the
sufficiently "special"
departure.
is not
rare
id. at 19.
After
to
trespass on
be
the
reader's
be described
in
to warrant
a downward
and the
proper.
See
___
___
b.
b.
__
The
support
of
final circumstance
a downward
comparative
severity
sentences to be
court
We
on which
departure
of his
is
appellant relies
disproportionality
sentence
as
the
contrasted with
in
the
The district
concur.
1448 (1st
See,
___
Cir.),
sentencing
[among
v. Carr, 932
____
F.2d 67,
dissatisfaction
"a perceived
codefendants]
with
v. Wogan, 938
_____
need to
will
not
73 (1st Cir.)
comparative
equalize
permit
United States
_____________
(explaining that
outcomes
F.2d 1446,
cannot
judicial
justify
____________________
in February
1993.
light of Rivera.
______
district court
Approximately five
departure jurisprudence.
sentenced
months later,
that elaborated
Appellant
invites us to
sentence in
Building
process.
The
If the
body
of
precedent
is
an
evolutionary
sheds light on an
the
same area
shambles.
Remand
of
court.14
law,
is required
the
the system
only when
there is
become
a realistic
See, e.g.,
___ ____
would
Gifford, 17
_______
result reached in
F.3d at
475.
the trial
Applying this
on direct
appeal, the
threshold question
material
clarification.
respect
if
Here, that
____________________
it
had
had
the
question demands a
is almost
differed in
benefit
of
the
negative answer:
unchanged
departure.
Hence, a remand
therefore,
would be
produce the
same
downward
even when a
not fully
anticipated an
emergent clarification, a
remand will
633, 642
court of
appeals can
821
In such a situation, so
arrange the
untainted findings
F.2d 860,
869 (1st
Cir.
long as the
along the
1987); see
___
remand.
the benefit
24
proved faulty
and
CONCLUSION
CONCLUSION
We
need
appellant was
sentenced.
either
for
proceedings.
go
no
further.
For
aught
He has
revising
the
outcome
or
for
that
and appropriately
persuasive reason
prolonging
Affirmed.
Affirmed.
________
25
appears,
the