United States v. Fumo
655 F.3d 288
| 3rd Cir. | 2011Background
- Fumo was sentenced to 55 months’ imprisonment, $411,000 fine, and $2,084,979 restitution (plus $255,860 prejudgment interest) after a 137-count jury verdict for fraud, tax evasion, and obstruction; Arnao received 1 year and 1 day, a $45,000 fine, and joint restitution with Fumo of up to $792,802 after conviction on 45 counts.
- District Court used two grouping schemes under U.S.S.G. §§ 2B1.1 and 2T4.1 for Fumo’s fraud and tax evasion, leading to a combined offense level; the court later reduced loss calculations and imposed a below-range sentence via a departure/variance-based approach.
- Evidence on the Pennsylvania Ethics Act was admitted at trial via an expert, Contino, and cross-examined of Fumo; the court instructed that Ethics Act evidence could illuminate willfulness/intent to defraud but not establish federal guilt.
- Juror 1 posted on Facebook/Twitter during trial; juror 2’s alleged exposure to excluded evidence was raised post-verdict; the District Court conducted an in-camera inquiry and denied new-trial relief; the panel was not reversed.
- Fumo moved for correction under Rule 35(a) arguing the court referred to the sentence as a departure without a final guideline-range calculation; the District Court later issued a memo and order clarifying departures vs variances and the loss calculations were on remand; Arnao’s sentence was vacated and remanded for re-sentencing with corrected loss.
- The overall holding: conviction affirmed; sentences of Fumo and Arnao vacated; remanded for resentencing consistent with this opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ethics Act evidence was properly admitted. | Fumo: Ethics Act evidence irrelevant and prejudicial. | Government: Ethics Act evidence relevant to intent and compliance; Contino proper. | Yes; admissible and not prejudicial. |
| Whether juror exposure to extraneous information requires new trial. | Fumo: juror exposure prejudicial; new trial warranted. | Court properly evaluated; no substantial prejudice. | No, no substantial prejudice; no new trial needed. |
| Whether the district court failed to announce a final guideline range after departure/variance. | Government: plain error review; error affected sentencing. | Court recalculated range post-departure; error not plain. | Remand required to determine departure vs variance and final range. |
| How to calculate loss for the Citizens Alliance and Rubin contract. | Loss calculations should include all proven fraud losses; Rubin should be counted. | Some losses contested; not all properly calculable; correction on remand. | Remand to reassess loss and its impact on offense levels. |
| Whether prejudgment interest on restitution was proper. | VWPA restitution allows prejudgment interest to compensate victims. | Restitution as criminal penalty could bar interest. | Prejudgment interest affirmed; restitution proper. |
Key Cases Cited
- United States v. Tomko, 562 F.3d 558 (3d Cir. 2009) (three-step sentencing procedure post-Booker; departure/variance distinctions)
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (set forth standard of review for reasonableness of sentences)
- United States v. Gunter, 462 F.3d 237 (3d Cir. 2006) (requires final guideline range and departure/variance articulation after post-Booker sentencing)
- United States v. Vasquez-Lebron, 582 F.3d 443 (3d Cir. 2009) (plain error review for unpreserved sentencing issues)