United States v. Piccione

Opinion

USCA1 Opinion

April 6, 1995
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 94-2171

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                 JOSEPH A. PICCIONE,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                        FOR THE DISTRICT OF RHODE ISLAND

                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                          __________________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                          Selya and Boudin, Circuit Judges.
                                            ______________

                                 ____________________

            Joseph A. Bevilacqua, Jr. on brief for appellant.
            _________________________
            Sheldon Whitehouse,  United States  Attorney, Margaret  E. Curran,
            __________________                            ___________________
        Assistant  United States  Attorney, and  Kenneth P.  Madden, Assistant
                                                 __________________
        United States Attorney, on brief for appellee.

____________________

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Per Curiam.  The appellant, Joseph Piccione, pled guilty
                 __________

            to  one count of making  and presenting to  the U.S. Treasury

            Department a false, fictitious, and fraudulent claim  against

            the United States for  payment, in violation of 18  U.S.C.   

            287 and 2.   Based on  a total offense  level of eight and  a

            criminal history category of II, the guideline range was four

            months  to  ten  months.1     The  district  court  sentenced

            Piccione  to ten  months imprisonment,  a three-year  term of

            supervised release, and a $5,000 fine.

                 The only issue on  appeal is whether the  district court

            clearly  erred  in  refusing  to give  Piccione  a  two-level

            downward adjustment  as a minor participant  in that criminal

            activity.   See  United States v. Cassiere, 4 F.3d 1006, 1026
                        ___  _____________    ________

            (1st  Cir. 1993)  (reiterating  the clear  error standard  of

            review).  There was no error, clear or otherwise.  We affirm.

                                          I.
                                          __

                 Because  Piccione pled  guilty,  we recite  the relevant

            facts from  the Pre-Sentence Report (PSR)  and the transcript

            of the sentencing  hearing.   See United States  v. Reyes,  3
                                          ___ _____________     _____

            F.3d 29, 29-30 (1st Cir. 1993) (noting that, in the case of a

            guilty  plea,  the  PSR  and sentencing  transcript  are  the

            appropriate materials from which to draw the relevant facts).

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            1.  It is undisputed that  the relevant sentencing guidelines
            were those effective November 1, 1993, and all references are
            to that  version.   We see no  need to explicate  the interim
            calculations  on  which  the  total  offense  level  and  the
            criminal history category were based.



Between  March  6,  and April  15,  1993,  28 false  and

            fraudulent income  tax returns  were filed with  the Internal

            Revenue Service  (IRS).  Each of  the tax returns was  in the

            name  of an  actual person with  the correct  social security

            number.  Each  of the names, however, was that of a sentenced

            prisoner.  Each of  the returns was supported by a  false and

            fraudulent W-2 Wage and Tax Statement for 1992 ("W-2").  Each

            W-2  listed one of  two employers  with the  correct employer

            identification  number  for  the  respective  employer.   The

            figures  purporting to  represent  wages earned,  federal tax

            withheld,  and  refund due  were  identical  on  many of  the

            returns.   The total amount of  the refunds claimed on the 28

            tax returns was $32,770.

                 Six  of the  28  tax returns  contained fingerprints  of

            three prisoners  incarcerated at the state  prison in Somers,

            Connecticut.   None of the 28 tax  returns was in the name of

            any  of these three particular prisoners.  One of these three

            prisoners was Donald D'Amico.   D'Amico is Piccione's cousin.

            Telephone records revealed telephone  toll calls between  the

            Somers prison and Piccione's home.

                 Each of the 28 tax returns listed a home address of Post

            Office  Box  20256,  Cranston,  Rhode Island  ("Box  20256").

            Piccione had rented Box 20256 in October 1992 under the alias

            Mark S.  LaRoche.  The Postal Service issued a single key for

            Box 20256.

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On June 7,  1993, IRS Special  Agents placed four  decoy

            income tax  refund checks in Box 20256.  The four checks were

            in names identical to those on four of the false tax returns.

            On  June 7,  Piccione,  using a  key,  opened Box  20256  and

            removed the  checks.   As he  left the  post  office, he  was

            arrested.  The four decoy checks, the key to Box 20256, and a

            receipt  showing payment for rental of that box were found in

            his possession.

                 Several  refund checks,  generated by  the 28  false and

            fraudulent  tax returns, were issued by the IRS.  The checks,

            however, were seized  by IRS agents from the  Postal Service.

            No  refund checks  were  negotiated by  the conspirators  and

            there was no out-of-pocket loss to the government.

                                         II.
                                         ___

                 On  appeal, Piccione  contends, as  he did  below, that,

            because, at most, his role in the offense was that of a minor

            participant,  he   should   receive  a   two-level   downward

            adjustment  in  the  total offense  level.    See  U.S.S.G.  
                                                          ___

            3B1.2(b) (providing for a two-level downward adjustment for a

            minor  participant).  A minor participant is one "who is less

            culpable than most other participants."  Id., comment. (n.3);
                                                     ___

            see also id.,  comment. (backg'd)  (one who plays  a part  in
            ________ ___

            committing the  offense  that makes  him  substantially  less

            culpable than the average participant).

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Piccione argues  that he was not  the "mastermind behind

            this  criminal  endeavor,"  pointing  instead  to  the  three

            prisoners whose fingerprints  were on six of  the 28 returns,

            and  claiming that  he  is  less  culpable  than  they.    He

            characterizes his role as "simply one of mail retriver [sic]"

            and neither the "architect nor an important cog."

                 Piccione has the  burden of proving  that he merits  the

            downward  adjustment   in  the  offense  level   as  a  minor

            participant --  a determination which is  fact-bound.  United
                                                                   ______

            States v. Ortiz,  966 F.2d  707, 717 (1st  Cir. 1992),  cert.
            ______    _____                                         _____

            denied, 113  S. Ct. 1005 (1993).   We need not  disagree with
            ______

            Piccione's claim that he was  not the mastermind or architect

            of this scheme.  Even assuming that is so, that  does not aid

            Piccione  in  this  case.    No  defendant  is  automatically

            entitled to the downward adjustment, even if he happens to be

            less culpable than others  involved in the criminal activity.

            United  States v. Brandon, 17 F.3d 409, 460 (1st Cir.), cert.
            ______________    _______                               _____

            denied, 115 S.  Ct. 80, 81 (1994); see  also United States v.
            ______                             _________ _____________

            Daniel,  962 F.2d 100, 103 (1st Cir. 1992) (agreeing with the
            ______

            proposition that "the fact that a particular defendant may be

            least  culpable  among  those   who  are  actually  named  as

            defendants does not establish that he performed a minor  role

            in the  conspiracy",  quoting United  States v.Zaccardi,  924
                                          ______________   ________

            F.2d 201, 203 (11th Cir. 1991)).

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In this case, Piccione's claim that he was simply a mail

            retriever  and  an  unimportant  cog  is patently  erroneous.

            Indeed, it is obvious that  Piccione's role was necessary for

            the  scheme's success.   The  IRS would  not send  tax refund

            checks to a prison  address.  For a successful  completion of

            the  plot,  the  inmates   needed  someone  on  the  outside.

            Piccione was that someone.  He leased the postal box under an

            alias and  retrieved  the decoy  checks  in an  apparent  and

            essential   step  along  the   path  toward   their  intended

            negotiation.

                 We  agree with the  district court judge  who stated, "I

            can't conceive of this  being a minor role."   Sentencing Tr.

            at p. 16.   As we stated at the  outset, there was no  error,

            clear or otherwise, in the  district court's rejection of the

            request for a two-level downward adjustment.

                 Affirmed.  See Loc. R. 27.1.
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