On Appeal From the United States District Court For the Eastern District of Pennsylvania
(D.C. Crim. Action No. 94-cr-00146)
BEFORE: STAPLETON, ALITO and ROSENN, Circuit Judges
This is an appeal by Joseph Fiorelli 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. We will vacate Fiorelli's sentence and remand for resentencing.
From 1967 to 1991, Fiorelli was employed as the business representative of Drywall Finishers Local Union 1955 of the International Brotherhood of Painters and Allied Trades. Fiorelli also served as a trustee for the Local 1955 Health and Welfare Fund and several other union benefit funds. As business representative, Fiorelli was responsible for overseeing the daily operation of the union, whose members were employed by contractors and construction companies engaged in drywall finishing. The job of a drywall finisher is to complete the installation of drywall in a residential or commercial building using tape and joint compound.
A federal grand jury returned a 15-count indictment against Fiorelli, charging him with demanding and accepting illegal payments and gifts from contractors during his service as business representative. After trial, a petit jury found Fiorelli guilty of most of the counts in the indictment, including racketeering, conspiracy to violate the Taft-Hartley Act, unlawful request and receipt of money by a union official, extortion, embezzlement, and obstruction of justice. The jury also ordered forfeiture of $68,984 in racketeering proceeds. The district court sentenced Fiorelli to 121 months of imprisonment, followed by three years of supervised release, a fine of $12,500, and special assessments totaling $600. This appeal followed.
The government's case at trial consisted of a parade of builders and contractors who testified that they made periodic payments to Fiorelli or to James Siesser, his associate, on Fiorelli's behalf. These payments were made, for the most part, because the witnesses believed it was in their economic interest to do so. Some said they wanted to assure themselves of a good supply of qualified union workers or to avoid trouble over their having used non-union workers. Others paid because they believed the payments would guarantee labor peace and acceptable contracts. These witnesses did not report express threats of violence or economic harm but indicated that, based on their contact with Fiorelli and Siesser, they feared labor trouble if they did not pay.
One witness, William Sampsel, testified that, upon arriving in Philadelphia to oversee his firm's execution of a contract to do the drywall work in a 19-story building, Fiorelli demanded $38,000 in return for assuring that he would have a supply of good workers. Siesser visited the job site a number of times to pressure Sampsel and ultimately threatened him with bodily harm if he reported Fiorelli's demands to the FBI. The government did not contend that Fiorelli ever obtained money or anything else of value from Sampsel.
Fiorelli testified in his own behalf. He admitted that he received payments that he regarded as Christmas gifts and vacation money from contractors and builders who thought well of him and wanted to give him what he called "tips." He insisted, however, that he had never threatened violence or economic harm to any of the builder/contractor witnesses. He also specifically denied ever asking Sampsel for money.
The record affirmatively reflects that the district court considered Fiorelli's written objections to the presentence report and that it afforded counsel ample opportunity at two sentencing hearings to address those objections and any other he wished to make. Ultimately, the court, with one exception not here relevant, adopted the factual findings and guideline application set forth in that report. In accordance with the adopted guideline application, the court grouped the offenses in ten groups. Each extortion offense against a particular victim was placed in a separate group. The obstruction of justice offense, which related to an effort by Fiorelli to cover up his embezzlement of union funds to pay personal dental expenses, was not placed in a separate group but served as the basis for an enhancement of the offense level for the underlying embezzlement. After applying the multiple-count adjustment of U.S.S.G. Section(s) 3D1.4, the court determined that 27, the base offense level for group seven, was the "greater adjusted offense level." Adding five levels under U.S.S.G. Section(s) 3D1.4, reflecting the groups of offenses, the district court concluded that the combined adjusted offense level was 32 and that the guideline range for imprisonment is 121 months to 151 months.
Fiorelli, in addition to challenging the presentence report in a number of respects, moved for a downward departure based on extraordinary family circumstances. This motion was premised on the fact that Fiorelli played an important role in the life of his granddaughter who suffers from cerebral palsy. The district court heard extensive ...