United States v. Renard Barone

America, Appellee, STATES UNITED BARONE, Defendant-Appellant.

Renard 815, Docket 89-1516. No. Appeals, United States Court Circuit. Second Argued 1990. Feb. Aug. 1990. Decided Wales, City, for de- New York

H. Elliot fendant-appellant. Tabak, Atty., U.S. Asst. L. Michael (Otto City York of New District

Southern Brod- David E. Obermaier, Atty., U.S. G. District Atty., Southern U.S. sky, Asst. counsel), appellee. City, of New York CARDAMONE, FEINBERG, Before MINER, Judges. Circuit CARDAMONE, Judge: Circuit Septem- from a appeals Barone Renard entered of conviction 25,1989 judgment ber trial in the United four-day after a District of the Southern Court for District Judge Brieant Chief New York before count on one convicted jury. Barone was 26 U.S.C. evasion, in violation of tax two counts of (1988), and jury, in violation grand a federal before appeal (1988). On this 18 U.S.C. § on challenges his conviction appellant erred grounds into evi- to admit government allowing the recording of a conversation tape dence informant him and between a wit- as the informant presenting without contends Barone also at trial. ness points adding two erred in the district 3D1.4 under of offenses groups for two its abused guidelines and upwards from departing discretion range. applicable

FACTS part- former attorney and is an

Appellant In Tuxedo, New York. judge time local approached he February 1987 Anthony operator, Sacco, dumpsite Frank supervisor the maintenance Spadavecchia, Ru- Company, Ramapo Land for the Tuxedo Frassinelli, the Town dolph Spadavecchia Inspector. Building intermediaries, intro- Frassinelli, acting as Sarkis who—with duced Sacco parcel a 12-acre Khourouzian—owned about to inform going in Tuxedo. Sacco undeveloped property denying initially After payments. cash landfill. for a this site to lease wanted Barone be- payments, knowledge of such at trial showed evidence government’s had com- agitated, admitted Bar- came discussion with preliminary in a Sacco grand jury, and the perjury before $5,000 per to use mitted week pay agreed to one them. not to reveal with Sacco pleaded Khourouzi- site. a landfill property as the but the discussion participate an did not informed trial, government the Before representations opinion and upon the relied that be- and the defense meeting it attorney. At this Barone, his of having com- of suspected Sacco was cause would week Sacco each agreed that was call murder, not intend to it did mitted $4,500 in and check pay $500 Barone government Instead the a witness. him as that tell Khourouzian would Barone cash. 2 recording March tape of the introduced use of the only paying $500 Sacco was and between Sacco conversation prison with amount that and divide property testimony of the Fed- through the Barone split the then Barone would Khourouzian. agent who Investigation of eral Bureau $4,500 Frassi- payment of covert cash produc- government also recorded it. Spadavecchia. nelli and Spada- alia, of ed, testimonies inter Frassinelli, whom testi- both of and vecchia dumpsite began his 1987 Sacco In March they Barone had with to the fied as scheme Barone/Khourouzian operation on $4,500 weekly payments cash to divide weekly pay- agreed made the property, and from Sacco. Barone, who in cash to and ments check above. as outlined these sums divided DISCUSSION terrible stench created a operation landfill of residents protests Recording from Tape led to A. The York State the New Tuxedo, prompted and appeal. on raises three issues Appellant Conserva- Environmental Department of receipt into evidence concerns One af- investigate. Six months (DEC) to tion had he conversation secretly recorded began, the site operation ter the landfill Sacco; to the sen- relates second appar- It order. by state was closed under of two points addition tencing court’s dam- environmental ently extensive caused third guidelines; of the 3D1.4 remedy. to costly age that will departure challenges the court’s $50,- following his range report the more than from did Barone perjury. evasion and for tax as his share he received conviction 000 cash on payments Sacco weekly cash challenge to his first to We turn 13, July he 1988 On 1987 tax return. his govern- ground that on the conviction inves- grand jury a federal appeared before to intro- not have been allowed should ment ques- being directly Upon tigating Sacco. with- tape-recorded conversation duce any cash received he had tioned whether Appel- as a witness. producing out Sacco weekly $500 other than payments the introduction lant contends that Sacco, repeatedly denied he checks from a number recording erroneous for tape was appeared He be- payments. receiving such being his made without it was reasons: August 5 and jury on grand the same fore order; it a court of it without aware same denial. made the inasmuch authenticated properly was not to call Sacco Sacco, failed government as the 2, Barone visited 1989 On March despite availability; his Federal Cor- witness at the incarcerated who was his deprived Barone to call Otisville, Sacco York failure New rectional Institution right to cross-examine Amendment relating to Sixth charges awaiting trial on while made on he statements regarding the Sacco dump. Unbeknownst operation his context, prior con- recording, their cooperating with Barone, Sacco reasons For the them. between his versations consented have and had objections follow, all of these we find tape recorded. with Barone conversation merit. was without meeting said Sacco At the 49 ing jury regard- made witness instruction to the Because the coopera ing recording government’s with the consent and both the and defendant’s produce to inform failure him. of Sacco there was no need See United tion States Torres, 1165, (2d Cir.1988). order. 18 U.S.C. v. or obtain a court Barone White, Thus, 2511(2)(e)(1988); there was no denial of Barone’s Sixth United States 748-54, 1122, 745, right 1124- Amendment 91 S.Ct. confront Sacco. U.S. 27, (1971); Lopez 28 L.Ed.2d 453 v. United 437-40, 1381, B.

States, 427, 83 S.Ct. 373 U.S. (1963); 1387-89, 10 L.Ed.2d 462 challenges the district court’s cal- Coven, 662 F.2d 173-74 culation of the total offense level under the denied, Cir.1981), cert. 456 U.S. guidelines upward departure as well as its 1771, (1982). Further, 72 L.Ed.2d 176 S.Ct. guidelines’ range. Although from the government required not to call as a is argument former is without merit we must participant in a recorded conver witness resentencing remand for on the latter in order to authenticate record sation ground. for the ing; may lay it the foundation recording through testimony 1. Total Level Offense actually made it. technician who See Unit calculating the total offense level In Fuentes, 527, (2d v. 563 F.2d 532 ed States 14, the district court adhered to the denied, 959, Cir.), 98 434 U.S. S.Ct. cert. analysis presentence report found 491, (1977). proper A foun 54 L.Ed.2d 320 prepared by pre- the Probation Office. recording was the Barone/Sacco dation for report sentence divided the offense conduct through testimony laid therefore group groups: into two the first included recording device. agent operated who (perjury), and three and the counts two respect to Barone’s Sixth With (tax evasion). comprised second count one contention, right the accused’s Amendment Commission, See United States cross-examine witnesses is to confront and (Nov. 1989) 3D1.2 Guidelines Manual § fails to not violated when (“All (U.S.S.G.) involving counts substan at trial an informant produce as a witness grouped tially the same harm shall be to tape-recorded in a conversa who is heard Then, single Group.”). pursu gether into a long the defendant. So as the 3D1.3, tion with report deter ant to U.S.S.G. § are not informant’s recorded statements group mined the offense level of the first presented for the truth of the matter as 12 and the offense level of the second be serted, only but to establish a context for group Finally, 10. under 3D1.4 the to be accused, the recorded statements of level of report calculated the total offense rights Sixth Amendment are defendant’s by “taking applicable 14 level offense See, transgressed. e.g., United States lev Group highest to the with the offense 820, (2d Cir.1985), Stratton, 779 F.2d 830 v. adding el”—here 12—and two levels. The 1162, 2285, denied, 476 106 S.Ct. cert. U.S. resulted from a two unit two-level increase (1986); v. 90 L.Ed.2d 726 United States Group penalty; given unit for “the one 892, (2d 1980). Murray, 618 F.2d 900 Cir. level” and one highest with the offense given Group the other that was unit Judge Brieant instructed Chief “from 1 to 4 levels less serious.” U.S.S.G. by made Sacco on jury that the statements 3D1.4(a). considered as recording were not challenge separation of evidence, to the only were to be used to assist Barone’s but groups be- understanding re the offense conduct into two jury in Barone’s Moreover, cause “the tax evasion sponses. Sacco was available [counts] unpersua- really and the same” is as a defense were one could have been called perjury and tax witness; prohibiting The laws appellant requested, have sive. could wholly disparate interests case, protect evasion to examine Sacco as hostile society. Sacco, and involve distinct harms Appellant chose not to call witness. Cf. Kim, 896 F.2d gave v. Tae properly a miss- United States Won and the district stated reasons for de- Cir.1990). sentencing court’s (2d The district 678, 687 any justifi- the total of- rather than additional computed parture, therefore properly dividing the offense conduct either offered fense level cations sentencing. groups. two into or after before aggravat determining whether In Departure Upward 2. support up exist to ing circumstances contention that We turn now Barone’s granted are district courts departure, ward sentencing upwards from departing Palta, wide discretion. United States of 36 impose sentence guidelines to (2d Cir.1989); 880 F.2d district court months’ incarceration Cir. Sturgis, 869 discretion. The abused its 1989). reviewing departure from When range is 15 to imprisonment keep in we guidelines, the touchstone of 14. The level months for an offense must have that a district court mind is upstand- report cited presentence Barone’s reasonable, determining flexibility in some community and his un- ing status in his impose. Sturgis, 869 sentence to See what War II history as a World personal marred findings Although the factual F.2d at 57. father, community husband, veteran, its deci district court bases upon which the comment, report the final As a leader. clearly subject the depart are to sion to aggravating or miti- no “There is stated: standard, re de novo apply we erroneous concerning the of- gating circumstance to issues of law. See view warrant would or the offender that fenses Cir.1990). Lara, guideline prescribed the departure the from ques include the threshold Issues of law Nevertheless, the district court range.” 3553(b)and U.S.S.G. tion under 18 U.S.C. § imposed a guidelines and departed from the or aggravating “an of whether 5K2.0 after § incarceration 36 months’ sentence of ade mitigating ... circumstance not] finding [was by the into consideration quately taken in deal- Sentencing Commission that the formulating the in Sentencing Commission dec- of false ing the abstract crime ” Id. guidelines.... oath, abstract crime the larations under perceive the did not evasion of taxes up premised the The district court including the ... totality of this situation upon finding its departure ward to the commu- duty owed which [Barone] adequately Sentencing Commission did not lawyer, the official and nity public “totality” of the consider the circumstances placed on the state unnecessary burdens duty owed to his present, citing dump, particularly community by the judge lawyer, the community a local as officially with the dealing in delay in his as a commu spite status fact delay dump, was which conditions perjured testimony, and nity gave leader he perjury by perjury, his ... enhanced testimony delay caused State’s such leader, community involving respected a up the investigate and clean efforts to lawyer. and a judge an elected are not dumpsite. circumstances These may depart from the A departure. upward grounds for an range sentencing guidelines’ applicable Sentencing considered Commission an “that there exists court finds when the sentencing reliance rejected court’s mitigating circumstance or aggravating status upon a defendant’s socio-economic adequately taken kind, degree, not or a a sentencing. See U.S.S.G. as a factor at by the Com- into consideration pro- did While Commission 5H1.10. formulating guidelines....” § in mission may in education vide that defendant’s 3553(b) (1988); see U.S.S.G. 18 U.S.C. § relevant, con- it limited some instances must sentencing judge 5K2.0. Since § only those cases factor sideration of this departing specific reason” for state “the special has “misused where defendant range, 18 U.S.C. guidelines from perpetrating his crime.” Unit- training in depar- 3553(c)(2), reviewing whether in § (5th Burch, 873 F.2d ed States examine justified we must ture was Here, Cir.1989); by the we limit the conduct considered a dis- 5H1.2. U.S.S.G. § departing guidelines trict in that Barone used his from the record does not show training charged. facili- to acts related to the legal his offenses public office or Kim, (“[Wjith respect tax evasion. 896 F.2d at 684 the crimes of or See tate resulting to acts of misconduct not in con- findings support No the conclusion viction, public pre- his office to facili- the Commission intended to might have used departures bearing that his clude operation of the landfill or for acts no rela- tate the tionship conviction_”). operation dump- to the offense of involvement in the Hence, posi- Barone’s site was criminal. by Two other sections are cited community, profession, and in the his tion (when 5K2.5 “the offense §— public had held office are the fact that he property damage caused or loss not taken warranting upward in this case not factors (when account”) into and 5K2.14 “nation departure. U.S.S.G. 5H1.6. See health, security, public safety al or third circumstance cited As for the significantly endangered”) justify up —to dealing delay court—“the the district departure ward Barone. dump” officially with the conditions of require These sections a closer nexus than perjury again, the dis- caused Barone’s — that which exists here between the of relying upon this factor trict court erred fenses for which a defendant has been govern- depart guidelines. from charged alleg conduct which has valid argues that such reliance is ment edly property damage caused or threat to guidelines authorize since public welfare. Barone has not been conduct departure when the defendant’s charged any stemming crimes disrupts func- significantly operation dumpsite. or effects of the tion, 5K2.7, and when a defen- U.S.S.G. § charged only filing He was with a fraudu “property has either caused dant’s conduct perjury relating lent tax return and with to account with- damage or loss not taken into money actually how much he had received 5K2.5, guidelines,” id. or endan- in the § property the used for the as rent for Sacco health,” 5K2.14. gered “public the id. § dump, perjury and the tax evasion and any of sections is una- Reliance on these many dumpsite after the occurred months case. vailing in this There is no evidence that Bar- was closed. perjury regarding impeded rent the one’s that the 5K2.7 states Section investigation into the environmental State’s the may increase a sentence above court landfill. problems caused the range the defendant’s con guideline “[i]f liability as an of disruption of As to Barone’s owner significant in a duct resulted alleged dumpsite for his involve (emphasis function” add the governmental a —or continuing operation of the ed). Yet, that ment in the section states further sentencing stated that “the ordinarily site—the court “[djeparture guidelines from the dump are un concerning the still justified when the offense of facts would not be assessment, highlighted by this bribery or clear.” As an offense such as conviction is in evidence the record in cases inter there is insufficient justice; such obstruction finding that Barone support a factual governmental function is to ference with a offense_” property responsible a for substantial in the As conse- inherent of the damage endangering the health argue that or quence, cannot must reverse such a upon community and we departure a based justifies 5K2.7 clearly erroneous. grand jury, finding as See in front of the perjury Barone’s F.2d Rodriguez-Gonzalez, 899 government func- with a for interference 1990)(due requires (2d process Cir. in that offense. As for is inherent tion proved sentencing factors be engaged disputed that may have “conduct” Barone other evidence),(cid:127)petition attempts by preponderance of the State’s in that thwarted cert, 1990); (June 26, landfill, actions, No. 89-7869 any filed, if investigate such for Rivalta, occurred, crimes are not related to the United States they Cir.1989) (same). upward depar- convicted, The which Barone has been for position training or special one’s abuse of range of 15-21 ture from offense. perpetrating in months was of 36 a sentence months to matter law. a accordingly improper as endors- appears to be majority thus up- making In rule:

ing following take into may CONCLUSION court not departure ward a in prominent is that defendant account is affirmed of conviction judgment defendant community because resentencing for is remanded and the case office, (or held) the of- public unless holds sentencing guide- with in accordance in with misused connection fice has been lines. Assume, high that example, for the crime. perjury before A commits public official concurring FEINBERG, Judge, Circuit (and tax evasion guilty is grand jury or dissenting part: in part in has the tax evasion nor neither majority in the I concur decision duties), and A’s official anything to do with case remand the affirm conviction offenses but B the same commits citizen resentencing in for to the district I under- office. As public hold does not Guidelines. accordance view, A this issue majority’s on stand however, majori- one of disagree, I alike, is, B are Judge finding Chief ty’s grounds position public A’s never take could departure from Brieant’s depart upwardly deciding in into account matter of law— improper as Guidelines I do believe imposing sentence. per se to impermissible it is namely, that on its commendable rule is either such promi- status defendant’s consider a required by Guidelines. merits or own deciding public office nent holder Indeed, 5H1.10 from clear that it is far Guidelines. depart whether So- at all. these considerations applies to rule is nei- such a I believe Because one’s stand- status identifies cio-economic interpretation necessary ther a light respect to fellow citizens ing with policy, I dis- public sound nor Guidelines economic social and of discrete of a set issue. sent on this that, roughly here is The idea factors. analysis majority’s fully agree I with the factors, one whether respect to these concerning claims first two appellant’s of off, or privileged off or better is worse introducing tape-re- propriety not poor, be underprivileged, or should rich a wit- as producing Sacco cording without determining sentence. in one’s relevant calculation of district ness and the court’s invoked The considerations disagreement My level. the total offense however, case, not do in Barone’s holding that majority’s arises Barone anything to do with whether have in of law a matter erred as lower court fellow off his off or than is better worse judge as a former status treating Barone’s those The focus of considerations citizens. upward departure making an as a basis special enjoyed a that is rather appar- majority from the Guidelines. in and trust public confidence position of Sentencing Commis- that the ently believes role as community by virtue of his that the view rejected and sion considered public lawyer, a judge and a elected former taken may be public holding of office directly betrayed by commit- trust depart in whether deciding into account tax eva- ting the offenses majority’s view from the Guidelines. judge had this that the district sion. It is of the upon 5H1.10 in section part rests duty “the referred to in when he mind rejects unconditionally Guidelines, which community as to the owed which [Barone] socio-economic upon a defendant’s reliance I see no lawyer.” public official and Alternatively, sentencing. in status why the district reason persuasive holding public that majority assumes public harm this to take not be able ac- should taken into may sometimes office account. or into count, only if it involves misuse but then, believe, majority is that the I do not assuming that PESINA,

correct Petitioner-Appellant, Ramiro rejected taking considered and Commission prominent former status as a a defendant’s JOHNSON, Sally Superintendent, B. (or into account present) public official Facility, Orleans Correctional Moreover, if the Commission sentencing. Respondent-Appellee. account, it is at a factor into did take such 164, No. Docket 90-2151. plausible regard it as covered least as Guidelines, spe- which section 5H1.6 Appeals, United States Court family responsi- cifically concerns ties and Second Circuit. impor- It is community ties. bilities Sept. 1990. Submitted un- does not tant to note that this section com- conditionally exclude consideration of Sept. Decided 1990. sentencing, but munity ties as a factor in ordinarily they are “not only holds that

relevant.” emphasize agree that I

I should erred in that the district court majority departure by appeal- its justifying of the Guide- ing to three other sections 5K2.14, 5K2.5, lines, which 5K2.7 §§ of a connection be- involve the assertion disruption gov- of a tween the offense function, damage property or ernmental public welfare. I therefore threat to the for resen- remanding the case concur tencing in accordance with Guidelines. above, However, I set forth for the reasons judge in the course allow the district would resentencing to take into account member of prominent Barone’s status community of the office he because formerly suggest held. I do not called upward departure for that reason is Judge Brieant is suggest only I for. sig- exercising prohibited from so judges that the district nificant discretion See Unit- have under the Guidelines. still Correa-Vargas, 860 F.2d ed States (2d Cir.1988). N.Y., Olsen, Jr., Buffalo, peti-

R. Nils tioner-appellant. Gen., Schiff, Deputy Sol. Alba- H.

Peter Abrams, (Robert Atty. Gen. of the ny, N.Y. York, Spiegel, Mar- Nancy A. New State of

Case Details

Case Name: United States v. Renard Barone

Court Name: Court of Appeals for the Second Circuit

Date Published: Aug 31, 1990

Citation: 913 F.2d 46

Docket Number: 815, Docket 89-1516

Court Abbreviation: 2d Cir.