United States v. Domenick Tortora, Bruno Chiaverini

994 F.2d 79, 1993 U.S. App. LEXIS 11802
CourtCourt of Appeals for the Second Circuit
DecidedMay 21, 1993
Docket1266, Docket 92-1684
StatusPublished
Cited by22 cases

This text of 994 F.2d 79 (United States v. Domenick Tortora, Bruno Chiaverini) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Domenick Tortora, Bruno Chiaverini, 994 F.2d 79, 1993 U.S. App. LEXIS 11802 (2d Cir. 1993).

Opinion

ALTIMARI, Circuit Judge:

Defendant-appellant Bruno Chiaverini appeals from a judgment of conviction entered by the United States District Court for the Eastern District of New York (Johnson, J.). Pursuant to an agreement with the government, Chiaverini pleaded guilty to a misdemeanor offense stemming from a payment he made to a bank officer in violation of 18 U.S.C. § 215(a)(1) (Supp. II 1984).

The district court sentenced Chiaverini to five years’ probation, and also ordered him to pay restitution to the bank in the amount of approximately $129,000. The court imposed a special condition of probation on Chiaverini, forbidding him from returning to Italy until restitution was satisfied.

Chiaverini now appeals, arguing that: (1) the imposition of restitution was an abuse of discretion where the district court failed to consider the factors enumerated in 18 U.S.C. § 3664(a) (Supp. II 1984); and (2) the district court erred in forbidding him from returning to Italy until he satisfies restitution.

*80 For the reasons set forth below, we reverse the judgment of the district court, vacate the sentence imposed, and remand for resentencing.

BACKGROUND

Defendant-appellant Bruno Chiaverini is a native and citizen of Italy who came to the United States in 1980. For approximately six years, he worked as a laborer and eventually as a foreman for an ironworks company in Brooklyn, New York. In November 1986, Chiaverini and co-defendant Alberto Palermo started their own ironworks business, the “Big Apple Iron Works.”

Unfortunately, the business did not do well, partly as a result of cash-flow problems. Having depleted their savings, Chiaverini and Palermo attempted to get a bank loan from the Independence Savings Bank in Brooklyn in order to keep their enterprise afloat. In May 1987, Chiaverini and Palermo paid $35,000 to bank officers through an intermediary in order to secure a $150,000 loan. They used the loan to pay off business debts and to move the business to a new location. Big Apple Iron Works, however, continued to falter and eventually failed.

In September 1991, twelve individuals, including Chiaverini, were indicted for conspiracy, bank fraud, and making false statements in connection with various loans procured from Independence Savings Bank. With respect to Chiaverini, the indictment charged that he, Palermo, and their intermediary submitted false financial statements to the bank. Chiaverini’s offense occurred prior to the effective date of the United States Sentencing Guidelines.

Chiaverini entered into a plea agreement under which he pled guilty before the United States District Court for the Eastern District of New York (Johnson, J.) to a misdemeanor under 18 U.S.C. § 215(a)(1) “for giving a thing of value, with the intent to influence, to an officer of a financial institution.” He cooperated fully with the government with respect to the remaining defendants.

At Chiaverini’s request, he was sentenced before his anticipated testimony at the trial of his co-defendants, so that he could return to his native Italy to secure employment. Prior to his sentencing, Chiaverini informed the district court, in a letter from his attorney, of his destitute financial condition. He pointed out that he was unemployed, homeless, and saddled with approximately $129,-000 owing on the bank loan. Because of his financial and personal problems, his wife had left him. Although he had worked all his life, he stated that he could not find work in the United States regardless of how diligently he searched, because of his lack of education and limited ability to speak English. The letter to the court noted that Chiaverini hoped to go back to his extended family in Italy, where he would be able to secure work and support his two teenaged daughters and estranged wife in the United States.

At Chiaverini’s sentencing hearing, his attorney explained to the district court that the government could not submit a letter concerning Chiaverini’s cooperation because the co-defendants had not yet gone to trial. However, the government did state that Chiaverini had been “substantially truthful,” and took no position as to his sentence. The government did not request restitution. In fact, the Assistant United States Attorney seemed to anticipate restitution not being imposed, stating: “if the court would not be inclined to order restitution, I would think that a finding as to the reasons for that would be required on the record.”

The district court sentenced Chiaverini to five years’ probation. The court also ordered him to pay restitution to the bank of the unpaid principal of the bank loan in the approximate amount of $129,000, plus interest and penalties. The court made no specific findings on the record as to Chiaverini’s ability to pay such a fine or as to any other factors relating to restitution.

After the district court imposed its sentence, Chiaverini’s attorney asked the court for unsupervised probation, so that Chiaveri-ni could return to Italy to look for work. The district court responded: “My decision is that I will not allow him to go back to Italy until he makes restitution. You can make an application at a later date, but he has to make restitution.” The district court entered a judgment stating that Chiaverini “is *81 not to return to Italy until restitution is satisfied.”

Chiaverini now appeals.

DISCUSSION

I. The Reasonableness of The Restitution

Chiaverini argues that the district court abused its discretion in imposing the restitution order, because the amount far exceeds his ability to pay. The government agrees that the case should be remanded for resen-tencing, but only so that the district court can indicate that it has considered the factors set forth in 18 U.S.C. § 3664(a) governing restitution.

Section 3663(a)(1) provides that a court “may order” restitution as part of a sentencing proceeding. Id. § 3663(a)(1). Restitution is therefore a discretionary, not mandatory, element of defendant’s sentence, and it can only be imposed if the sentencing court considers:

the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of .the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.

Id. § 3664(a). Although the court need not set forth its findings in detail, the record must demonstrate that the court has considered these factors in ordering restitution. See United States v. Gelb, 944 F.2d 52, 56-57 (2d Cir.1991) (vacating restitution for failure of district judge to give consideration to § 3664(a) factors); United States v. Atkinson,

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Bluebook (online)
994 F.2d 79, 1993 U.S. App. LEXIS 11802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-domenick-tortora-bruno-chiaverini-ca2-1993.