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United States v. Zagari

ELR Citation: 27 ELR 20992
Nos. 96-1120 et al., 111 F.3d 307/(2d Cir., 04/17/1997)

The court remands the sentences of one individual that was convicted of wire fraud and one individual that was convicted of Racketeer Influenced and Corrupt Organizations (RICO) Act and Travel Act violations, wire and mail fraud, tax fraud and conspiracy, and money laundering relating to their illegal dumping of construction and demolition debris at an unauthorized landfill. The court first holds that the trial court did not err in refusing to admit the affidavit of one individual's former attorney to impeach other statements that a witness attributed to the attorney. The trial court's failure to give a limiting instruction as to the purpose for which it admitted the testimony about the attorney's statements was, at worst, harmless error. The testimony was properly admitted, not for the truth of the matter asserted, but simply to show defendants' scienter. Because the testimony was not hearsay, the court was not required to admit the affidavit to impeach it. The court next holds that the government's alleged suppression of information about the witness' insanity was not improper. The defendants had actual knowledge of the people with information about that witness and even contacted one of them. Further, evidence of the witness' insanity was not material to defendants' convictions. The jury had information with which to evaluate the witness' credibility and it did not rely entirely on the witness' testimony, but on independent evidence that corroborated all the evidence. Thus, there is not a reasonable probability that evidence of his insanity, if presented to the jury at trial, would have affected the verdict. The court next holds that the trial court properly denied a hearing on whether it should suppress wiretap evidence obtained under a warrant that was issued based on the witness' discussions with a federal agent. Nothing indicates that the agent's representations to the court that issued the warrant were false or misleading. The court also holds that evidence of the witness' insanity is not newly discovered evidence warranting a new trial, because it is neither new nor material.

The court next holds that the trial court's application of the November 1, 1989, U.S. Sentencing Guidelines to the individual convicted of wire fraud violated the Ex Post Facto Clause of the U.S. Constitution, because the conduct for which the individual was convicted ended before the 1989 Guidelines were issued. The court remands for a recalculation of the individual's sentence, including the enhancements. The court next holds that the other individual's mail and wire fraud and RICO Act convictions are supported by evidence that he intended to defraud a company by hiring it to perform testing at the landfill and not paying for its services. The government is not required to show that the intended victim was actually defrauded, but only that the defendant contemplated some actual harm or injury. The court next holds that the trial court improperly enhanced that individual's sentence for obstructing justice by committing perjury in a related civil suit. The trial court failed to make the required specific findings that the defendant intentionally gave false testimony that was material to the proceeding in which it was given and to the instant offense. The court next holds that the trial court improperly enhanced the individual's sentence for being a leader of an extensive criminal activity, because the trial court failed to make findings regarding whether five or more persons were involved in the criminal activity or whether the activity was otherwise extensive. The court thus vacates the individual's sentence and remands for additional findings. Finally, the court holds that the trial court properly applied a preponderance of the evidence standard in enhancing the individual's sentence for laundering over $500,000.

Counsel for Appellee
Anthony J. Siano, Ass't U.S. Attorney
U.S.Attorney's Office
One St. Andrew's Plaza, New York NY 10007
(212) 791-0008

Counsel for Appellant
Judd Burstein
Burstein & Fass
99 Park Ave., 25th Fl., New York NY 10016
(212) 681-0606

Before OAKES, ALTIMARI, and PARKER, Circuit Judges.