United States v. Fiorito
2011 U.S. App. LEXIS 10351
| 8th Cir. | 2011Background
- Fiorito, a mortgage broker, allegedly conducted an equity-stripping scheme defrauding homeowners including Dang of $36,000.
- Detective Kleinberg sought and obtained a broad search warrant for Fiorito's residence after investigating Dang and other victims.
- A superseding indictment charged Fiorito with one conspiracy count and six mail-fraud counts; Jerde pled guilty and cooperated.
- Trial evidence showed Fiorito intercepted victims' proceeds checks and deposited them, often with assistance from others, to enrich himself.
- Post-trial, Fiorito was convicted on all counts; the district court imposed a total offense level of 31 and 270 months' imprisonment.
- Fiorito challenged suppression, acquittal, jury instruction on mens rea, evidentiary variance, and the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| suppression denial | Fiorito argues the warrant lacked probable cause and was not particular. | The government argues Leon good-faith applies despite issues on scope. | Leon good-faith applies; suppression denied |
| judgment of acquittal | Counts 3–6 lack mail-fraud predicate actions. | Mailings were in furtherance or incident to the scheme. | Evidence supports verdict; no acquittal error |
| jury instruction on conspiracy mens rea | Conspiracy requires intended use of mails. | Reasonable-forseeability instruction suffices. | Harmless error; substantial evidence supports conviction |
| variance | Indictment alleged homeowners, but evidence suggested lenders suffered losses. | Indictment tracked the same scheme; no material variance. | No material variance; conviction sustained |
| sentence reasonableness | Upward variance inappropriate; guidelines range adequate. | Court properly weighed factors including public safety. | Sentence upheld as reasonable |
Key Cases Cited
- United States v. Leon, 468 F.3d 897 (2d Cir. 1984) (good-faith exception to exclusionary rule)
- United States v. Perry, 531 F.3d 662 (8th Cir. 2008) (assessing good-faith reliance on warrants)
- United States v. Proell, 485 F.3d 427 (8th Cir. 2007) (circumstances negating good faith)
- Schmuck v. United States, 489 U.S. 705 (U.S. 1989) (mail fraud requires use of mails in execution)
- Pereira v. United States, 347 U.S. 1 (U.S. 1954) (mailings can be incident to an essential part of the scheme)
- Lane v. United States, 474 U.S. 438 (U.S. 1986) (mailings can lull victims and facilitate fraud)
- Donahue v. United States, 539 F.2d 1131 (8th Cir. 1976) (specific intent to use mails not always required)
- Havoc v. Fuchs, 635 F.3d 929 (7th Cir. 2011) (mortgage-broker relationships and trust considerations)