United States v. DeSimone
2012 U.S. App. LEXIS 23187
1st Cir.2012Background
- DeSimone, a Rhode Island-based con man, defrauded investors in the DrinkStik, SONG Tube, and Disk Shield schemes, totaling about six million dollars.
- He was convicted by a federal jury of seven counts of mail fraud and one count of money laundering; sentenced to 192 months and restitution of $6,030,145 with forfeiture.
- Evidence at trial showed DeSimone lied about connections to Fidelity, Johnson, and Johnson’s supposed deals to induce investments.
- A key incident involved DeSimone’s 2007-2008 flight from prison after an FBI search, followed by his return and a subsequent escape conviction in the District of New Jersey.
- The district court determined ten or more victims for sentencing enhancements and included losses attributed to the Dyer-related transactions in restitution.
- On appeal, DeSimone challenged evidentiary rulings, admission of escape evidence, a claimed mistrial, and calculations for forfeiture, restitution, and victims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Disk Shield evidence | Disk Shield evidence is intrinsic to the mail fraud scheme and not 404(b). | Disk Shield evidence is prejudicial other crimes evidence and should be excluded. | Evidence is intrinsic; not excluded; not unduly prejudicial. |
| Admission of DeSimone's escape evidence | Escape evidence supports consciousness of guilt and is probative. | Flight was not sufficiently tied to guilt and is prejudicial. | Sufficient predicate and probative under Rule 403; properly admitted. |
| Mistrial ruling absence | Mistrial was warranted due to witness promise violation. | Mistrial required given prejudicial impact. | No abuse; no mistrial required; admission did not require reversal. |
| Hearsay and prior statements | Certain wife statements were admissible to show notice and context. | Two statements were hearsay and improper. | Not reversible error; statements admitted for non-truth purposes or non-hearsay context. |
| Victims and sentencing enhancements | Acquitted counts can support sentencing enhancements for number of victims. | Cannot rely on acquitted conduct for enhancements. | Acquitted conduct properly considered; sentencing affirmed. |
Key Cases Cited
- United States v. Manor, 633 F.3d 11 (1st Cir. 2011) (standard for reviewing evidence in guilty-view trials)
- Schmuck v. United States, 489 U.S. 705 (S. Ct. 1989) (requires link between mail fraud and predicate acts for 404(b) analysis)
- United States v. Stergios, 659 F.3d 127 (1st Cir. 2011) (mail fraud scheme analysis; evidence need not map to every step)
- United States v. Brito, 427 F.3d 53 (1st Cir. 2005) (consciousness of guilt; flight evidence admissibility and limits)
- United States v. Fernández-Hernández, 652 F.3d 56 (1st Cir. 2011) (flight evidence and limiting instructions; plain error standard)
- United States v. Lopez-Garcia, 672 F.3d 58 (1st Cir. 2012) (plain-error review for sua sponte mistrial decisions)
- United States v. Cudlitz, 72 F.3d 992 (1st Cir. 1996) (harmlessness of improper cross-examination)
- United States v. Paneto, 661 F.3d 709 (1st Cir. 2011) (acquitted conduct admissible for sentencing enhancements)