Professional Documents
Culture Documents
United States v. Goldberg, 1st Cir. (1997)
United States v. Goldberg, 1st Cir. (1997)
No. 96-1132
Appellee,
v.
RICHARD GOLDBERG,
Defendant, Appellant.
____________________
ERRATA SHEET
____________________
No. 96-1132
Appellee,
v.
RICHARD GOLDBERG,
Defendant, Appellant.
____________________
____________________
Before
____________________
Morris M. Goldings
___________________
with
whom
David R. Kerrigan
__________________
and
Mahon
_____
Michael Kendall,
________________
Donald K. Stern,
________________
Assistant
United
States
United
States Attorney,
Attorney, and
with
Kevin J. Cloher
_________________
Assistant United States Attorney, was on brief for the United State
____________________
February 3, 1997
____________________
convicted
of two counts
Service,
18 U.S.C.
371,
and eight
Internal Revenue
counts of
aiding and
7206(2).
Goldberg's
describing
the factual
background
and
us.
We
begin by
proceedings in
the
district court.
Goldberg
ventures
His
Liverpool Lumber,
as a management
In
or
around
1988,
Goldberg became
aware
that
the
Commonwealth of Massachusetts
the East
on
the
parking
lot's
land.
lobbying
effort
against the
spending
over $1 million of
Goldberg
proposal
-2-2-
began
in
also
were located
an
intense
1988, eventually
partners' money to
Two
activist
of
those hired
Robert A. Scopa
to
oppose
the project--community
and consultant
Vernon Clark--were
most favorable
to the verdict,
to the
Scopa Conspiracy.
________________
From
never
his
Liverpool
successive
Goldberg
Lumber
"straw"
and all
company
employees,
of whom agreed
issue
none
But
Goldberg
paychecks
of
whom
to hand the
to
three
worked
for
money over to
Scopa.
directed
his
various W-2,
bookkeeper
W-3, and
wage
payments
Liverpool
to
Lumber.
at
Liverpool
Lumber
to
IRS.
straws
who
had performed
no
prepare
which were
described
work
for
resulted
in a
loss of
about $150
to the
Internal Revenue
Service.
-3-3-
The
government claimed
at
trial that
the scheme
was
devised
seem to be
insurance policy.
to hide the
Evidence
payments in order to
"independent" activist
in the
prevent an
wife.
district court
The
as an
and to
discovered by his
Scopa, but
not
Clark Conspiracy.
________________
In
the Third
lobbyist in
to this
end.
Clark a substantial
tunnel project.
men
agreed
Rather
with others
to
a more
complicated
the two
method for
At the time,
woman named
Clark was
having a secret
Patricia McNally.
The pair
Clark
his
affair with
occasionally spent
wife's knowledge.
owed to Clark to
McNally's
Goldberg
agreed to pay
brother-in-law, who
-4-4-
would
in turn
the money he
John Lango,
construct the
the preparation
of two
separate
$10,000 invoices to Park 'N Fly from Lango, dated October 15,
1991 and
January 1, 1992,
respectively.
The
invoices were
paid
by
Park 'N
of Goldberg's companies.
Fly.
Lango testified
The
invoices were
at trial
that the
The triangular
of several false
Goldberg's direction,
tax documents.
falsely listed
Lango.
own income
tax returns
in
At
The forms
compensation to
1991 and
1992.
Clark did
not
for
A federal
offenses
relating
to
the
defraud
the
United
States
above
activities.
The
government, 18
U.S.C.
371,
several counts of
of mail fraud
26 U.S.C.
based on
7206(2),
the filing of
false
to conceal
his
-5-5-
18
U.S.C.
1341.
After moving
unsuccessfully to dismiss
trial
before the
September 6,
court
right to
district
found Goldberg
guilty
a trial by
judge took
jury.
eight
tax
returns,
charges on the
days, and
on
findings.
The
of conspiring
to defraud
the
but acquitted
ground that
Goldberg's
announced its
false
the indictment,
him
his motive to
the preparation of
on
the
mail fraud
help defraud
the
At Goldberg's
departed downward
two levels
at the
five
months to
be served
in prison
ten-month sentence--
and five
in community
$20,000
fine.
Goldberg now
appeals,
challenging
his
to defraud
Klein
_____
the IRS.
conspiracy,
This
taking
type of conspiracy is
its
name from
an
known as a
earlier
States
______
v.
Klein, 247
_____
F.2d 908
-6-6-
(2d
Cir. 1957).
371
case
United
______
Goldberg
argues
that
the district
"purpose" element
court
and that
misunderstood
the crime's
not support
conviction.
The defraud
conspiracy
"to
clause
of
defraud the
Such conspiracies to
Section
United
371
criminalizes
States,
any purpose."
or any
18 U.S.C.
any
agency
371.
conspiracy to
interfere
with government
include
functions.
See,
____
e.g., United States v. Tarvers, 833 F.2d 1068, 1075 (1st Cir.
____ _____________
_______
1987).
was
that
he
functioning
of
conspired
the IRS,
to
interfere
through
with
the filing
the
of
proper
false tax
documents.
It
has
to be
merely
scheme.
a purpose
_______
foreseeable
or object
______
of the conspiracy,
consequence
of
the
and not
conspiratorial
19.02 (1990).
Consider,
that
none of
the
of a band
robbers will
report.
or
of bank robbers.
Yet
it would
be
-7-7-
This
requirement
of
purpose
accords
generally
with
1256 (5th
the
defraud clause
financial
crimes
of
it is especially
section 371.
without
some
important under
There are
implications
itself.
consequence
If
of
section
371
a conspiracy,
embraced
many
every
joint
not
for
many
false
tax liability
foreseeable
financial crimes
many non-criminal
is easier to
state
than
to apply.
The
normally involves
origin.
The
laundering of drug
primary
purpose
an
implied secondary
IRS?
is almost
the money's
always
objective to
conceal income
to
avoid
also find
from the
section 371.
(1st Cir.
Such cases
on this issue.
either
must
frustrating
have
the IRS
as
their
or must
primary
purpose
be agreeing
to
the
aim
of
undertake the
-8-8-
conduct
of the
first alternative
(primary purpose) is
An example
Klein itself
_____
devised to evade
alternative (concealment
and
create a
But
it
barrier against
makes no
overreaching by
doctrinal sense.
prosecutors.
A conspiracy
can have
conspiracy and
problem,
rationally
functions
used to
which
ought
not
between cases
is
__
be shirked,
is
where interfering
purpose and
those
where
The
to
central
distinguish
with government
it
is merely
This
effort poses
subtle
problems
in
discriminating
remote consequences.
Volumes could
compact
solution is
effectively agreed
misattribute
at
hand: where
to falsify
income,
we
the conspirators
IRS documents to
think
that
(depending
have
misstate or
upon
the
-9-9-
wheels of the
liability.
Goldberg's argument
qualification as
But
filing a
income
number of
false tax
so
between a purpose
no
one
may be plausible.
proximately with
sharp distinction
to file
point, with
documents misattributing
clearly and
we see
this
can interfere
find--that
on
to reduce tax
under section
a purpose
IRS
so
371
to
interfere.
In permitting
we
a factfinder to equate
leave untouched
collateral
the general
effects of
an object of
if, without
with
precept, namely,
jointly agreed-to
that mere
activity, even
if
mechanically to be treated as
the conspiracy.
If
This
Goldberg
view of
brings us
which we
the law:
to the
evidentiary question
rephrase to
does
accord with
raised by
our just-stated
a purpose
-10-10-
reports
with the
answered separately
IRS?
as to
This
question
must be
each conspiracy, as
asked
and
Goldberg was
to
section 371
violation
conspirators.
defraud requires at
of a conspiracy.
But
purposes or objects of
by
shared
shared
must be
by two
evidence pertaining
conspiracy to
at least
or
stresses the
and knowledge, a
share that
when it comes
to characterizing
two
more
co-conspirators that
make
the
that are
up the
Here, the
district court
found that
a purpose of
the
conspirators, in
IRS.
As
depending
we have
said,
such a
tax
documents.
Goldberg
false
tax
This
who arranged
documents
purpose
can be
inferred,
agreed to by
purpose can
fairly
in
each scheme.
be
imputed
of several
The
to
or more
duration
and
-11-11-
There is no evidence
that such
each
conduct was an
conspiracy,
conspirators
Scopa conspiracy,
were
permitting the
shared in
inference
that purpose.
participants in
Yet we think
the scheme,
In
that other
the case
given to the
over an
part of
co-
of the
straws, who
extended period.
As
to the
Clark conspiracy,
Lango received
the false
IRS.
divided so that
motive
sum, the
suggestion.
filing of false
scheme,
made the
tax documents
This
indicates a
was an integral
tax
part of
the
Goldberg.
In
of a
In
criminal
conspiracy charge,"
defraud clause
of section
371
Dennis, 384
______
has a
U.S. at
860, the
special capacity
for
with
-12-12-
in
this case.
But having
done so,
we conclude
that the
sinister
than in
Klein,
could properly
be
found to
fall
_____
Goldberg next
they
discussed
solicitation
of
the
false
Goldberg's
trial of two
landscaping
invoices
participation
in
and
the
the
scheme.
objection at
course
and
in
a co-conspirator of a party
furtherance
of
the
during the
conspiracy"
is
not
considered hearsay.
challenged
conspiracy,
statements
but
he
during
argues
and
in
that the
furtherance
statements
of
the
were
not
admissible
joined.
against
him because
they
were
made before
he
"if
it is more
defendant
were
members of
that the
conspiracy
when the
hearsay
Id. at 23.
__
-13-13-
961 F.2d
traditional notion
that--insofar as hearsay
is concerned--a
"a
conspiracy
aboard, he
is like
is part of
a train,"
the crew,
and
"when a
and assumes
party steps
conspirator's
Id. at 42;
___
1995).
Frankly,
hearsay rule
makes
policy.
special guarantee
No
statements,
little sense
save
to
declarations against
agency
(as
here.
the
The most
exception
to
a matter
interest.
that
is useful in
is "at
is
of
long
they
resemble
derives from
best
a fiction"
the co-conspirator
standing
prove.
evidence
attends such
The exception
Committee noted)
hearsay
of
of reliability
extent
the Advisory
as
and
makes
United States v.
_____________
If
starting afresh,
one
might argue
that the
narrow
only
because
imposing
during the
it
accords
better with
substantive liability
conspiracy; a
for
the
companion
other crimes
co-conspirator is held
-14-14-
rule
committed
liable for
foreseeable
conspiracy
period of
acts
but
of
only
membership.
others
if
done
in
committed
the
defendant's
v. O'Campo,
_______
973 F.2d
of
describes the
during the
United States
_____________
furtherance
v. United
______
(1948), presumptively
Rules of Evidence.
It is followed in
most circuits.
Saltzburg, et al.,
______
Federal Rules of
_________________
See 2
___
Most important,
cases,
including
it is
(5th
ed. 1990)
the test
Saccoccia,
(collecting cases).
in most
of our
decided only
19
own recent
months ago.1
_________
This panel
is arguably
not free,
but is in
any event
not
Goldberg's
indictment
district
on
court
the ground
denied the
evidentiary hearing.
sufficient
of
selective
motion
prosecution.
without
holding a
The
full
he alleged facts
____________________
1See
___
Saccoccia, 58
_________
F.3d at 778;
O'Campo, 973
_______
F.2d at
188, 194
(1st
1988);
828 F.2d
46, 47-48
(1st
Cir. 1987).
-15-15-
asks this court to remand the case so that he may have such a
hearing.
whom
government
may not
base
its decision
to
prosecute on
defendant's exercise
U.S. at
608.
on
theory that
the
response
to
an
Wayte, 470
_____
he was
targeted
his vigorous--and
by the
government in
constitutionally protected--
project.
allege
"some
facts (a)
selectively prosecuted
tending to
and
show
(b) raising
that he
has been
a reasonable
doubt
about the
propriety of
refuse to
will
not be
discretion.
grant a hearing
if the
Review on
United States v.
______________
appeal is
Gary, 74 F.3d
____
Cir. 1996).
-16-16-
But
government
fruitful.
United
______
the hearing
for abuse
304, 313
of
(1st
Here, Goldberg
the
case
made a
alleged that
comment
to
one of the
Goldberg's
prosecutors on
counsel during
Salvucci, Massachusetts'
Goldberg
also
claimed
that
the
initials
"D.D."
on
Finally, he
pointed to
the
two
schemes,
several of his
including
Clark and
co-conspirators in
Lango,
were
never
indicted.
The
claim.
government filed
It denied that
several affidavits
the prosecutor in
the
initials
"D.D."
on
Doherty,
an
FBI agent
that
It explained that
raised
assigned to
the
rebut the
attorney.
the file
to
case.
Goldberg's
to Denise
In another
its
investigation
examples
of other
Klein conspiracies.
_____
into
recent
Goldberg's
activities
prosecutions for
and
mail fraud
gave
and
court's
explanation.
What is
saying
We have
the district
-17-17-
tempered on appeal by
helpful.
Cir.
United States v.
_____________
1995).
Here,
Lopez, 71 F.3d
_____
the district
court
would be
did not
abuse its
discretion.
largely explained
Scopa.
And
its choice
the rather
mainly to pursue
modest evidence of
Goldberg and
wrongful motive
four prosecutors
denied under
But it is
As to this,
alleged remark
thin a reed
to
motion,
whose summary
substance
follow its
to
denial is
Goldberg complained
also cited
that
new trial
as error.
the government
In
did not
him information
about this
decision.
The government's
Brady material,
_____
Brady v. Maryland,
_____
________
373 U.S. 83
-18-18-
there is no
(1963), let
In
fixing
Goldberg's
levels
the
base offense
the
level
district
of 10,
at an adjusted offense
court
by four
arrive
sentence,
level of 14.
enhanced
levels--two
3B1.1(c), and
id.
___
3C1.1--to
(All citations
are
to
the
November
1995
edition
of
the
guidelines).
it thought
Goldberg's
conduct was
by the
Klein conspiracy
_____
contemplated
Id.
___
district
conduct "as
sentencing guideline.
judge
that
although
Klein
_____
depart downward
offense level
me inappropriate
conspiracy guidelines."
(when
He chose
to
of 8
Goldberg's
a Klein conspiracy,
_____
apply the
$5,000), was
stated
as a matter of
base
"heartland"
2T1.9.
The
to
outside the
the tax
2T1.4,
loss is
with a
$3,001 to
level of 10.2
____________________
2The ten-month
sentence--five
months to
be served
in
-19-19-
pursue
impose
two-level
supervisory role
an
enhancement
in the Scopa
organizer, leader,
criminal activity."
two-level
extensive.
Id.
___
for
U.S.S.G.
his
managerial
or
The
manager,
increase applies to
involved fewer
But Goldberg,
was
or
3B1.1(c).
supervisor in
In such a case, a
joint criminal
any
activity that
Goldberg
supervised
was his
argues, does
not
F.3d
says
that
the
comment
872 &
n.1.
person
bookkeeper, Arlene
a culpable participant.
864,
only
managed
Meucci.
or
Meucci, he
she was
n.13 (1st
However,
he
Cir.
at
the
1993); U.S.S.G.
sentencing
3B1.1,
hearing,
the
connection with
We review
under
clearly
erroneous
standard.
us,
ample evidence
shows
that Goldberg
at sentencing
United States
______________
v.
superintended
the
straws'
documents.
-20-20-
Scopa
and
Clark
conspiracies.
were
the
true
leaders
not be at the
v.
Savoie, 985
F.2d
612,
616
(1st
of
Cir.
the
two
top of a
United States
_____________
1993).
Here,
______
assume that
Scopa conceived of
the payroll
scheme and
Affirmed.
________
may
-21-21-