PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT 08/23/99 THOMAS K. KAHN No. 98-4802 CLERK Non-Argument Calendar ________________________
D. C. Docket No. 94-6213-CR-JAG
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
JOHN DIGIORGIO, MATTHEW NOCERINO a.k.a. Mattie, Defendants-Appellants.
________________________
Appeal from the United States District Court for the Southern District of Florida _________________________
(August 23, 1999)
Before TJOFLAT, BLACK and HULL, Circuit Judges.
PER CURIAM: Appellants John DiGiorgio and Matthew Nocerino appeal their sentences for
conspiracy to engage in racketeering activity, in violation of 18 U.S.C. § 1962(d)
(Count 1), and engaging in violent crimes in aid of racketeering activity, in violation
of 18 U.S.C. § 1959(a)(5) (Count 6).1 Appellants assert the district court erred at
sentencing by (1) sentencing them under the kidnapping guideline, (2) applying an
enhancement based upon a ransom demand, and (3) refusing to adjust the sentence
downward because the conspiracy was incomplete. Appellant DiGiorgio also claims
the court erred in failing to grant him a reduction for acceptance of responsibility. We
hold that “ransom” as that term is used in the Sentencing Guidelines includes a
demand for money the kidnappers believe is owed them and therefore affirm the
district court’s application of the six-level enhancement under U.S.S.G. § 2A4.1(b)(1).
In addition, we find no other sentencing error and therefore affirm.
I. BACKGROUND
In November 1994, Stephen Cavano and several of his associates were arrested
during a drug sting operation. While in jail, the group identified Hugo Catano as a
potential Government witness. From jail, Cavano sought to force Catano to pay
1 Appellant Nocernio also appeals his convictions, arguing they should be overturned because (1) the district court erred in denying his motion for severance, (2) the evidence was insufficient to support his conviction, (3) the district court erred in denying his motion for a mistrial based upon prosecutorial misconduct, and (4) the district court erred in denying his motion for a new trial without an evidentiary hearing. We affirm his convictions without discussion. See 11th Cir. R. 36-1.
2 $220,000 Cavano believed Catano owed him, to reveal the names of other
Government witnesses, and to file a false affidavit regarding the charges against
Cavano and his associates. In a series of telephone calls recorded between
November 29, 1994, and December 4, 1994, Cavano discussed his plans regarding
Catano with Appellants DiGiorgio and Nocerino and his ex-wife, Suzanne Gordon.
In one conversation between Cavano and Gordon, Cavano told her he was
desperately trying to reach DiGiorgio and Nocerino because he heard Catano was
leaving the country. Cavano told Gordon to “tell Mattie [Nocerino] he’s got to grab
[Catano] and hold him.” In another call, Cavano tells DiGiorgio “what I need is I need
help to grab them, grab this kid. This kid, regardless of anything else, or regardless
of the position I am in right now, owes me and us, two hundred twenty thousand
dollars. He, I do not want him to leave this country until that . . . money is paid and
he straightens this out. . . . I can give you a phone number where the, where, where
we can work this out, but they must grab him . . . and prevent him from leaving.”
At DiGiorgio’s sentencing, the Government and defense attorneys agreed that
the jury’s verdict was ambiguous as to what acts of racketeering the jury relied upon
in reaching its guilty verdicts. The parties agreed, applying United States v. Ross, 131
F.3d 970, 994 (11th Cir. 1997), cert denied, 119 S. Ct. 258 (1998), that the court
should determine which acts were proven for sentencing purposes. The district court
3 determined that while the Government had not proven beyond a reasonable doubt that
DiGiorgio conspired to murder, it had proven beyond a reasonable doubt that
DiGiorgio conspired to kidnap Catano. The court therefore sentenced DiGiorgio
under the Sentencing Guideline for kidnapping, U.S.S.G. § 2A4.1.
In addition, the court found DiGiorgio intended to demand a ransom from
Catano, and therefore assessed a six-level enhancement under U.S.S.G. § 2A4.1(b)(1).
The Court rejected DiGiorgio’s argument that he was entitled to a three-level
reduction because he had not completed all acts necessary to commit the crime,
pursuant to U.S.S.G. § 2X1.1(b)(2), and rejected DiGiorgio’s request for a reduction
for acceptance of responsibility.
At Nocerino’s sentencing, the court granted Nocerino’s motion to adopt
DiGiorgio’s sentencing arguments. As it did for DiGiorgio, the court found the
Government had not proven beyond a reasonable doubt that Nocerino had conspired
to murder, but had proven beyond a reasonable doubt that Nocerino conspired to
kidnap Catano for ransom. The court therefore sentenced Nocerino under U.S.S.G.
§ 2A4.1, and applied the six-level ransom enhancement of § 2A4.1(b)(1).
II. DISCUSSION
The district court properly sentenced Appellants under the kidnapping
guideline, U.S.S.G. § 2A4.1. Under both racketeering guidelines applicable to the
4 offenses of conviction, the court is instructed to apply the greater of a given base
offense level or “the offense level applicable to the underlying crime or racketeering
activity.” U.S.S.G. § 2E1.1(a)(2) (Guideline applicable to 18 U.S.C. § 1962
conviction), § 2E3.1(a)(2) (Guideline applicable to 18 U.S.C. § 1959 conviction).
Because the jury’s general verdict did not indicate which of the charged predicate acts
it believed Appellants had committed, the district court was required to “find beyond
a reasonable doubt that the defendant conspired to commit [a] particular object
offense” and sentence Appellants accordingly. Ross, 131 F.3d at 994 (quoting United
States v. McKinley, 995 F.2d 1020, 1026 (11th Cir. 1993).
Here, the district court found beyond a reasonable doubt that Appellants were
guilty of conspiracy to commit kidnapping as charged in Counts 1 and 6 of the
indictment.2 Reviewing the sentencing court’s factual determinations for clear error,
United States v. Howard, 923 F.2d 1500, 1503 (11th Cir. 1991), we find the court did
not clearly err in making such a finding based on the evidence presented at trial. Given
the district court’s factual findings, we conclude the court did not err in applying the
kidnapping guideline.
Moreover, the district court correctly applied the six-level enhancement for a
2 We note the district court declined to find beyond a reasonable doubt that Appellants were guilty of conspiracy to murder as charged in Counts 1 and 6 of the indictment.
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PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT 08/23/99 THOMAS K. KAHN No. 98-4802 CLERK Non-Argument Calendar ________________________
D. C. Docket No. 94-6213-CR-JAG
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
JOHN DIGIORGIO, MATTHEW NOCERINO a.k.a. Mattie, Defendants-Appellants.
________________________
Appeal from the United States District Court for the Southern District of Florida _________________________
(August 23, 1999)
Before TJOFLAT, BLACK and HULL, Circuit Judges.
PER CURIAM: Appellants John DiGiorgio and Matthew Nocerino appeal their sentences for
conspiracy to engage in racketeering activity, in violation of 18 U.S.C. § 1962(d)
(Count 1), and engaging in violent crimes in aid of racketeering activity, in violation
of 18 U.S.C. § 1959(a)(5) (Count 6).1 Appellants assert the district court erred at
sentencing by (1) sentencing them under the kidnapping guideline, (2) applying an
enhancement based upon a ransom demand, and (3) refusing to adjust the sentence
downward because the conspiracy was incomplete. Appellant DiGiorgio also claims
the court erred in failing to grant him a reduction for acceptance of responsibility. We
hold that “ransom” as that term is used in the Sentencing Guidelines includes a
demand for money the kidnappers believe is owed them and therefore affirm the
district court’s application of the six-level enhancement under U.S.S.G. § 2A4.1(b)(1).
In addition, we find no other sentencing error and therefore affirm.
I. BACKGROUND
In November 1994, Stephen Cavano and several of his associates were arrested
during a drug sting operation. While in jail, the group identified Hugo Catano as a
potential Government witness. From jail, Cavano sought to force Catano to pay
1 Appellant Nocernio also appeals his convictions, arguing they should be overturned because (1) the district court erred in denying his motion for severance, (2) the evidence was insufficient to support his conviction, (3) the district court erred in denying his motion for a mistrial based upon prosecutorial misconduct, and (4) the district court erred in denying his motion for a new trial without an evidentiary hearing. We affirm his convictions without discussion. See 11th Cir. R. 36-1.
2 $220,000 Cavano believed Catano owed him, to reveal the names of other
Government witnesses, and to file a false affidavit regarding the charges against
Cavano and his associates. In a series of telephone calls recorded between
November 29, 1994, and December 4, 1994, Cavano discussed his plans regarding
Catano with Appellants DiGiorgio and Nocerino and his ex-wife, Suzanne Gordon.
In one conversation between Cavano and Gordon, Cavano told her he was
desperately trying to reach DiGiorgio and Nocerino because he heard Catano was
leaving the country. Cavano told Gordon to “tell Mattie [Nocerino] he’s got to grab
[Catano] and hold him.” In another call, Cavano tells DiGiorgio “what I need is I need
help to grab them, grab this kid. This kid, regardless of anything else, or regardless
of the position I am in right now, owes me and us, two hundred twenty thousand
dollars. He, I do not want him to leave this country until that . . . money is paid and
he straightens this out. . . . I can give you a phone number where the, where, where
we can work this out, but they must grab him . . . and prevent him from leaving.”
At DiGiorgio’s sentencing, the Government and defense attorneys agreed that
the jury’s verdict was ambiguous as to what acts of racketeering the jury relied upon
in reaching its guilty verdicts. The parties agreed, applying United States v. Ross, 131
F.3d 970, 994 (11th Cir. 1997), cert denied, 119 S. Ct. 258 (1998), that the court
should determine which acts were proven for sentencing purposes. The district court
3 determined that while the Government had not proven beyond a reasonable doubt that
DiGiorgio conspired to murder, it had proven beyond a reasonable doubt that
DiGiorgio conspired to kidnap Catano. The court therefore sentenced DiGiorgio
under the Sentencing Guideline for kidnapping, U.S.S.G. § 2A4.1.
In addition, the court found DiGiorgio intended to demand a ransom from
Catano, and therefore assessed a six-level enhancement under U.S.S.G. § 2A4.1(b)(1).
The Court rejected DiGiorgio’s argument that he was entitled to a three-level
reduction because he had not completed all acts necessary to commit the crime,
pursuant to U.S.S.G. § 2X1.1(b)(2), and rejected DiGiorgio’s request for a reduction
for acceptance of responsibility.
At Nocerino’s sentencing, the court granted Nocerino’s motion to adopt
DiGiorgio’s sentencing arguments. As it did for DiGiorgio, the court found the
Government had not proven beyond a reasonable doubt that Nocerino had conspired
to murder, but had proven beyond a reasonable doubt that Nocerino conspired to
kidnap Catano for ransom. The court therefore sentenced Nocerino under U.S.S.G.
§ 2A4.1, and applied the six-level ransom enhancement of § 2A4.1(b)(1).
II. DISCUSSION
The district court properly sentenced Appellants under the kidnapping
guideline, U.S.S.G. § 2A4.1. Under both racketeering guidelines applicable to the
4 offenses of conviction, the court is instructed to apply the greater of a given base
offense level or “the offense level applicable to the underlying crime or racketeering
activity.” U.S.S.G. § 2E1.1(a)(2) (Guideline applicable to 18 U.S.C. § 1962
conviction), § 2E3.1(a)(2) (Guideline applicable to 18 U.S.C. § 1959 conviction).
Because the jury’s general verdict did not indicate which of the charged predicate acts
it believed Appellants had committed, the district court was required to “find beyond
a reasonable doubt that the defendant conspired to commit [a] particular object
offense” and sentence Appellants accordingly. Ross, 131 F.3d at 994 (quoting United
States v. McKinley, 995 F.2d 1020, 1026 (11th Cir. 1993).
Here, the district court found beyond a reasonable doubt that Appellants were
guilty of conspiracy to commit kidnapping as charged in Counts 1 and 6 of the
indictment.2 Reviewing the sentencing court’s factual determinations for clear error,
United States v. Howard, 923 F.2d 1500, 1503 (11th Cir. 1991), we find the court did
not clearly err in making such a finding based on the evidence presented at trial. Given
the district court’s factual findings, we conclude the court did not err in applying the
kidnapping guideline.
Moreover, the district court correctly applied the six-level enhancement for a
2 We note the district court declined to find beyond a reasonable doubt that Appellants were guilty of conspiracy to murder as charged in Counts 1 and 6 of the indictment. Had the court made such a finding, Appellants would have been sentenced under the guidelines for murder, and their sentences would have undoubtedly been greater.
5 ransom demand found in U.S.S.G. § 2A4.1(b)(1). Appellants argue there could be no
ransom demand because the money they sought to obtain from Catano was money
Catano owed Cavano. This argument must fail. Although “ransom” is not defined by
the Guidelines, we are bound to give the term its ordinary meaning. United States v.
Rutkowski, 814 F.2d 594, 599 (11th Cir. 1987). Black’s Law Dictionary defines
ransom as “[t]he money, price, or consideration paid or demanded for redemption of
a kidnapped person or persons; a payment that releases from captivity.” Black’s Law
Dictionary 1260 (6th ed. 1990). Nothing in that definition excludes previously-owed
money from qualifying as the “payment that releases from captivity.” The only other
circuit to directly address this issue agrees. See United States v. Escobar-Posado, 112
F.3d 82, 83 (2d Cir. 1997) (expressly holding that a prior debt can be considered a
ransom demand).3
III. CONCLUSION
Appellants were correctly sentenced under the kidnapping guideline. In
addition, the six-level enhancement for a ransom demand was appropriate since
3 Appellants’ final contentions are easily rejected. The district court was not required to adjust the sentence downward because the conspiracy was incomplete where, as here, the court found “but for apprehension or interruption by some similar event beyond [their] control” Appellants would have completed the acts necessary to carry out the conspiracy. U.S.S.G. § 2X1.1(b)(2). DiGiorgio’s contention that the district court erred in failing to give him a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 is negated by this Court’s affirmance of the district court’s determination that the Government proved the conspiracy to kidnap Catano beyond a reasonable doubt.
6 Appellants intended to kidnap their victim to force him to pay a debt owed.
AFFIRMED.