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U.S. v. Boggi

January 22, 1996

UNITED STATES OF AMERICA APPELLANT IN NO. 95-1109

v.

ROBERT BOGGI, APPELLANT IN NO. 95-1031



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 94-cr-00145)

Before: STAPLETON, McKEE and NORRIS, Circuit Judges *fn1

McKEE, Circuit Judge.

Argued: October 10, 1995

Filed January 22, 1996)

OPINION OF THE COURT

This matter involves an appeal by Robert Boggi from a final judgment of conviction and sentence following a criminal jury trial in the United States District Court for the Eastern District of Pennsylvania, and a cross-appeal by the United States. The Government challenges the district court's interpretation and application of the Sentencing Guidelines. Although we find no merit to the trial errors alleged by Boggi and therefore will affirm the judgment of conviction, we conclude that the district court applied the incorrect Guideline provision in calculating Boggi's sentence. Therefore, we will remand the matter to the district court with instructions to recalculate the sentence using the appropriate Guideline.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

From 1984 until his conviction in this case in 1994, Robert Boggi was the business agent for Philadelphia-based Local 1073 of the United Brotherhood of Carpenters and Joiners of America ("UBC"). The UBC is an international union consisting of numerous affiliated local unions and district councils throughout the United States and Canada which represent carpenters and other types of skilled tradespersons. As business agent for Local 1073, Boggi was responsible for overseeing the daily operations of the union whose members were primarily engaged in residential carpentry. On May 6, 1994, a federal grand jury returned a superseding indictment against Boggi, charging him with exacting numerous illegal payments and gifts from contractors between 1984 and 1990. Specifically, Boggi was charged with one count of racketeering, in violation of 18 U.S.C. Section(s) 1962(c) (Count 1); three counts of unlawful receipt of money or a thing of value by a union official, in violation of 29 U.S.C. Section(s) 186 (Counts 2-4); and one count of extortion conspiracy, in violation of 18 U.S.C. Section(s) 1951 (Count 5). The indictment also sought the forfeiture of the racketeering proceeds pursuant to 18 U.S.C. Section(s) 1963 (Count 6).On August 2, 1994, following a seven-day trial, the jury returned a guilty verdict on several of the RICO related offenses including racketeering, extortion, and extortion conspiracy.

Thereafter, Boggi filed a motion for judgment of acquittal or, in the alternative, for a new trial. On December 29, 1994, the district court denied Boggi's motion, and on January 5, 1995, the district court sentenced Boggi to 48 months imprisonment. The district court ruled that U.S.S.G. Section(s) 2C1.1, which establishes penalties for extortion by public officials, was the applicable Guideline provision and sentenced Boggi accordingly. In doing so, the court overruled the Government's argument that the applicable Guideline was U.S.S.G Section(s) 2B3.2. This appeal and cross appeal followed.

II. DISCUSSION

A.

Boggi alleges numerous trial errors. He complains that the district court improperly excluded certain evidence that would have established his reputation for good character, that the dates of the crimes charged were impermissibly vague, that the evidence was insufficient to support the verdict, and that the prosecution should have been barred by the statute of limitations. The district court carefully, and correctly evaluated each of these claims in the Memorandum Opinion it filed in support of its denial of Boggi's post-verdict motion for acquittal, and we need not re-examine these issues here.

We focus our attention instead on the Government's cross-appeal which challenges the district court's interpretation and application of the Sentencing Guidelines. The Government argues that the district court improperly applied Section(s) 2C1.1 of the Sentencing Guidelines to Boggi's extortion offenses and that the applicable Guideline was Section(s) 2B3.2.

The district court applied the Guideline manual effective November 1, 1989 because the last offense charged was in 1990, and the court's application of the 1989 version of the Guidelines is not contested. In order to appreciate the impact of the sentencing error alleged by the Government, it is necessary to first review how the district court calculated the sentence it imposed. The court first separated the counts of conviction into three groups of closely related counts pursuant to U.S.S.G. Section(s) 3D1.2. Group One consisted of most of the racketeering acts, which constituted Taft-Hartley Act violations including the receipt of payments from Samuel Kaufman, a business man who ran a company that did carpentry contracting and frequently hired non-union workers. Group Two consisted of racketeering acts arising from payments the Property Corporation of America ("PCA") made in order to avoid picketing at the Polo Run apartment development where certain contracts had been awarded to non-union workers. Group Three consisted of racketeering acts arising from payments received from Al Bienenfeld, owner of Leslie Homes, Inc., a residential real estate development company, in connection with work being done by non-union workers at a condominium development.

Section 2E1.1 of the Guidelines assigns a RICO violation the greater of a base offense level of 19 or the offense level of the underlying racketeering acts. In order to determine the sentence it was therefore necessary for the district court to calculate the offense level of the underlying racketeering activity, then compare the result with the alternative minimum base offense level applicable to RICO.

The court applied Section(s) 2E5.6 to Group One and determined that the base offense level was 10. *fn2 The court then added two levels for abuse of a position of trust (Section(s) 3B1.1), three levels corresponding to the value of cash and goods received by Boggi (Section(s) 2F1.1), and two more levels for obstruction of justice (Section(s) 3C1.1), bringing the total offense level for Group One to 17. App. at 1302-08.

The court applied Section(s) 2C1.1 to the offenses in Group Two, which included the PCA payments. In doing so, the court rejected the recommendation of the presentence investigation and the Government, as they both recommended that the court apply Section(s) 2B3.2 to this Group of offenses. Section 2C1.1 yielded a base offense level of 10. The court applied a five-level increase corresponding to the amount of money extorted (Section(s) 2F1.1), a two-level increase for abuse of a position of trust (Section(s) 3B1.1), and a two-level increase for obstruction of justice ( 3C1.1), bringing the total offense level for Group Two to 19. App. at 1309.

The court also applied Section(s) 2C1.1 to Group Three which included the payments from Al Bienenfeld. That Guideline resulted in a base offense level of 10. The court then applied a one-level increase corresponding to the amount of the extortionate payment (Section(s) 2F1.1), a two-level increase for abuse of a position of trust (Section(s) 3B1.1), and a two-level increase for obstruction of justice (Section(s) 3C1.1), bringing the total offense level for Group Three to 15. App. at 1313.

The rules for combining the offense levels of the three groups, set forth at Section(s) 3D1.4, yielded a combined offense level of 22. App. at 1314. Applying the alternative minimum base offense level of 19, see 2E1.1(a), to the RICO offenses yielded a total offense level of 23, after two levels each were added for abuse of a position of trust ( 3B1.1) and obstruction of justice (Section(s) 3C1.1). App. at 1314. Because the minimum base level of 19 yielded the greater total offense level (23 instead of 22), the court sentenced Boggi based upon that calculation. Thus, the court concluded that the total ...


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