United States v. Robbio

• Court: Court of Appeals for the First Circuit
• Decided: August 2, 1999
• Docket: 98-1785
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No.  98-1785



                          UNITED STATES,



                            Appellee,



                                v.



                        JOSEPH A.  ROBBIO,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF RHODE ISLAND



             [Hon. Mary M. Lisi, U.S. District Judge]


Before



                     Boudin, Circuit Judge,

                                

                Campbell, Senior Circuit Judge,

                                

                   and Lipez, Circuit Judge.


Barry S. Pollack with whom Timothy C. Blank and Dechert Price

& Rhoads were on brief for appellant.

     Donald Campbell Lockhart, Assistant United States Attorney,

with whom Margaret E. Curran, United States Attorney, was on brief

for appellee.


August 2, 1999


CAMPBELL, Senior Circuit Judge.  Joseph Robbio appeals

from his conviction in the district court on one count of

conspiracy to transport counterfeit securities, 18 U.S.C.  371,

2314; one count of possession of implements for making counterfeit

securities, id.  513; one count of production of false

identification documents, one count of possession of false

identification documents, and one count of possession of document-

making implements used in production of false identification

documents, id.  1028; and two counts of transporting counterfeited

securities, id.  2314.  Robbio argues that the court failed

properly to instruct the jury as to how it should evaluate the

testimony of a co-defendant who cooperated with the government.  He

also contends that the district court erroneously calculated his

sentence.  We affirm both the conviction and the sentence.



                           I.  FACTS

  We state the facts in a light most favorable to the

jury's verdict.  See United States v. Gaines, 170 F.3d 72, 75 (1st

Cir. 1999).

  Around December 1995, Robbio embarked on a counterfeiting

scheme headquartered in the basement of his home in Cranston, Rhode

Island.  Using the names and addresses of people with obsolete

checking accounts, Robbio created counterfeit checks and driver's

licenses with equipment located in his basement.  He and three

coconspirators used the counterfeit materials at retail chain

stores in New England that provided cash refunds for returned

purchases under $200.  They repeatedly purchased less than $200 of

merchandise, paid with counterfeit checks that were verified by

counterfeit driver's licenses, and then returned the goods for cash

refunds before the checks bounced.  Until the scheme was

interrupted in July, 1997, Robbio and his coconspirators passed

more than 700 counterfeit checks possessing a total face value of

more than $115,000. 

  In March, 1997, Robbio recruited Victor Kiendra to assist

him.  He explained the counterfeiting scheme to Kiendra and asked

him to execute it at several New England chain stores.  In

exchange, Robbio offered to share with Kiendra fifty percent of the

profits from each store Kiendra defrauded, the same arrangement

Robbio had with his two other coconspirators.  From March to July,

1997, Kiendra helped Robbio execute the scheme in Rhode Island,

Massachusetts, New Hampshire, and Connecticut. 

  Kiendra was arrested on July 18, 1997, for failing to pay

outstanding traffic citations.  The Fall River Police discovered

some of the counterfeit licenses in Kiendra's possession and

contacted the United States Secret Service.  Kiendra immediately

agreed to cooperate with the government.  On the day of his arrest,

Kiendra placed a monitored, recorded telephone call to Robbio.  

  During the telephone conversation, Robbio made several

references to the counterfeit check scheme.  When Kiendra told

Robbio that the police had not found "those other things," Robbio

responded, "You're lucky. . . . Oh my God, you would have been

spending the weekend in jail if you had those."  When Kiendra said

he would call Robbio later in the week because he had to "take a

little time off," Robbio replied, "Yeah, I know.  I'll go with ya.

. . . We'll go to Caldor's . . . I'm gonna lay off those other

places. . . . If you lay off, maybe we can still make a grand here

or there around Christmas time ya know?"  Five days later, Kiendra

placed a second monitored, recorded call to  Robbio.  In that

conversation, Robbio told Kiendra, "I'll get everything ready for

tomorrow. . . . We'll hit some Caldor's.  We'll try some new

spots."   Recordings of these conversations were introduced into

evidence at Robbio's trial.

  The day after the second phone call, government agents

executed a search warrant at Robbio's home, located at 1149

Narragansett Boulevard in Cranston.  They discovered and seized

several items in the basement that had been used to execute the

counterfeit check scheme: two computers with check-making programs;

special pre-printed paper used for making checks, located next to

one of the computers; hundreds of counterfeit checks; a manual

describing how to create checks; counterfeit driver's licenses with

the photographs of Robbio, Kiendra, and another coconspirator,

Steven LaFazia; partially completed counterfeit driver's licenses;

two laminating machines; a Polaroid camera; and a guide to the

driver's licenses of the fifty states.  The agents also searched a

car that was parked in the driveway and registered to Robbio. 

Inside the vehicle, they found and seized a bag from T.J. Maxx

containing merchandise, a receipt, and several personal checks. 

The foregoing items were introduced into evidence at Robbio's

trial.

  On October 16, 1997, Kiendra entered into a plea

agreement with the government in which he pleaded guilty to one

count of conspiring to transport counterfeited securities and

agreed to testify for the government at Robbio's trial.  In

exchange, the government dismissed the remaining counts against him

and sought a reduced sentence.  At Robbio's trial, Kiendra

testified that Robbio had recruited him into the counterfeit

scheme, provided him with the counterfeit checks and licenses, and

accompanied him on many trips to retail stores.  He also testified

that between March and July of 1997, he personally executed the

scheme "a couple of hundred times" and passed approximately $39,000

in counterfeit checks.  In addition to Kiendra, the prosecution's

witnesses included the government agents who executed the search

warrant and analyzed the physical evidence, recordkeepers for the

stores that were defrauded, and a victim of the counterfeit check

scheme.

  Robbio elected not to testify or call witnesses in his

defense.  Based upon his cross-examination of Kiendra, Robbio's

counsel argued to the jury that the government's case depended

entirely on the unreliable testimony of a single witness.  Robbio

maintained that Kiendra had masterminded the check scheme and "set

up" Robbio by using Robbio's basement as the center of operation. 

Robbio further argued that Kiendra testified falsely against him in

order to reduce his own sentence.  

  Following a two-day trial, the jury returned a guilty

verdict on all seven counts of the indictment.  The district court

sentenced Robbio to 48 months of imprisonment.



                         II.  ANALYSIS

A.  The Jury Instructions

  Robbio challenges his conviction on the grounds that the

district court incorrectly instructed the jury as to how it should

evaluate Kiendra's testimony.  Without defense objection, the court

instructed the jury inter alia as follows:

          

     You have heard testimony from a Government witness,

     Victor Kiendra, who pleaded guilty to charges arising out

     of the same facts as this case.  You are instructed that

     you are [to] draw no conclusions or inferences of any

     kind about the guilt of the defendant on trial from the

     fact that a prosecution witness plead guilty to similar

     charges.

     

     A witness' decision to plead guilty was a personal

     decision about his own guilt.  It may not be used by you

     in any way as evidence against or favorable to the

     defendant here on trial.

     

  Robbio maintains that, even without a defense request,

the district court should have included a cautionary instruction to

exercise "greater care" when assessing the credibility of a

cooperating codefendant witness.  See United States v. Fernandez,

145 F.3d 59, 62 (1st Cir. 1998).  Robbio further contends that the

district court compounded its error by instructing the jury that it

could not consider Kiendra's guilty plea as evidence favorable to

Robbio.  Neither of these contentions warrant reversal of Robbio's

conviction.

  Because Robbio made no objection to the given

instructions nor requested the "greater care" instruction, we

review only for plain error.  See Fed. R. Crim. P. 52(b); United

States v. Olano, 507 U.S. 725, 732 (1993).  For such an error to

exist, it must indeed be "plain" or "obvious," and it must "affect

substantial rights"; that is, "[i]t must have affected the outcome

of the district court proceedings."  Fernandez, 145 F.3d at 63

(quoting Olano, 507 U.S. at 734).  Additionally, an appellate court

will remedy such an error only if it appears that it "seriously

affected the fairness, integrity, or public reputation of judicial

proceedings."  Id. at 63.

  This court has held that a district court need not give

an unrequested cautionary instruction as to the jury's acceptance

of a coconspirator's testimony where the testimony "looks

internally consistent and credible,'" even if the testimony is

uncorroborated.  Id. at 62 (quoting United States v. House, 471

F.2d 886, 888-89 (1st Cir. 1973)).  Kiendra's testimony was,

overall, internally consistent and credible.  Robbio points out

only one instance of a purported internal inconsistency: at trial,

Kiendra initially denied possessing keys to Robbio's residence,

only to admit upon further questioning that he did briefly possess

them once, while Robbio was away on vacation.  The admission,

however, might be considered as little more than a clarification of

Kiendra's earlier statement; it did not detract significantly from

the consistency and credibility of his testimony as a whole. 

Kiendra's testimony was not, moreover, uncorroborated.  It was

supported by a considerable body of other evidence, such as the

highly inculpatory items seized from the basement of Robbio's home

and his car, and the two recorded telephone conversations in which

Robbio stated his intention to execute the scheme at some Caldor's

stores.  Thus, the district court's omission of the unrequested

"greater care" instruction fell well short of amounting to plain

error.  

  Robbio also insists that it was plain error for the court

to state that the jury could not use a witness' decision to plead

guilty "in any way as evidence against or favorable to the

defendant." [Emphasis supplied.]  Robbio points out that, in

assessing the credibility of Kiendra's testimony, the jury was

entitled to weigh the fact that Kiendra was testifying pursuant to

a contingent plea agreement.  The jury, he suggests, might have 

interpreted the challenged instruction as denying it the right to

consider whether Kiendra's plea agreement, premised on testifying

for the government in return for a reduced sentence, affected the

truthfulness of his testimony against Robbio.  Given, however, the

court's other instructions, and the fact that the effect of the

plea agreement on Kiendra's credibility was discussed extensively

at trial, we doubt that the challenged language (which related

narrowly to "a witness' decision to plead guilty" and to the fact

that it was "a personal decision about his own guilt") was intended

by the court, or was likely construed by the jury, as denying the

jury the right to assess Kiendra's credibility in light of his own

plea agreement.   

  Jury instructions must be gauged "in the context of the

charge as a whole, not in isolation."  United States v. Boylan, 898

F.2d 230, 244 (1st Cir. 1990).  Shortly before its instruction

concerning Kiendra's guilty plea, the district court stated:

     In evaluating the testimony of witnesses you may consider

     several things.  The opportunity of the witness to have

     acquired knowledge of that which they testified to, their

     conduct and demeanor while testifying, their interest or

     lack of interest, if any, in the outcome of this case,

     whether they've been convicted of a felony, their

     intelligence or lack thereof, and the probability or

     improbability of the truth of their testimony.

     

(Emphasis supplied).  This instruction conveyed to the jury that it

could consider Kiendra's interest in the case and his criminal

history when assessing his testimony.  Moreover, Kiendra's plea

agreement was introduced into evidence, and Robbio's counsel cross-

examined Kiendra extensively about the terms of that agreement and

Kiendra's motivation to testify against Robbio.  The government at

no time questioned Robbio's entitlement to pursue such a line of

inquiry at trial, or to argue, as he did, that the plea agreement

diminished Kiendra's credibility.

  Finally, the case against Robbio was very strong, wholly

apart from Kiendra's testimony: the items found in the basement of

his home and in his car; the testimony of other witnesses,

including a victim of the counterfeit check scheme and government

agents who executed the warrants and analyzed the evidence; and the

two recorded telephone conversations in which Robbio stated his

intention to continue the counterfeiting scheme.  Even supposing it

is possible to read the challenged instruction as erroneously

inhibiting the jury's scrutiny of the plea agreement for

impeachment purposes, we doubt it reached the level of plain

error.  We see little reason to suppose either that the parties or

jury interpreted this at most ambiguous instruction in the

prejudicial manner now asserted or that it had any effect on the

outcome of the case.

    B.  Sentencing issues

           1.     Intended Loss

  At sentencing, the district court increased Robbio's base

offense level by eight levels based upon a loss calculation of

$237,485.  See U.S.S.G.  2F1.1(b)(1) (eight-level increase for

loss between $200,000 and $350,000).  That figure comprised actual

loss in the amount of $115,985, representing the total face value

of the 714 counterfeit checks passed by Robbio and his

coconspirators, as well as intended loss in the amount of $121,500,

representing the 750 blank checks found during the execution of the

search warrant.  Robbio contends that the court clearly erred by

considering losses from wrongdoing that he did not intend to commit

immediately, but rather might have considered committing at a point

several months in the future.

  We review a district court's intended loss findings for

clear error.  United States v. Rizzo, 121 F.3d 794, 803 (1st Cir.

1997).  The sentencing guidelines provide that if the loss that the

defendant intended to inflict can be determined, "this figure will

be used if it is greater than the actual loss."  U.S.S.G.  2F1.1,

comment (n.8).  The loss "need not be determined with precision";

rather, the district court's reasonable estimate will suffice.  Id.

at n.9.  

  We will uphold an intended loss determination "where

there is good evidence of actual intent and some prospect of

success . . .".  United States v. Egemonye, 62 F.3d 425, 428 (1st

Cir. 1995).  Strong evidence supports the district court's

determination that Robbio intended to create and pass additional

counterfeit checks: notably, the package of blank check paper found

next to the computer in Robbio's basement; his statements in the

recorded telephone conversations that he and Kiendra would "go to

Caldor's" and "hit some Caldor's"; and his statement in the second

conversation with Kiendra that he would "get everything ready for

tomorrow." 

  There is ample evidence as well of Robbio's prospect of

success had he not been arrested.  He and his coconspirators had

already executed the scheme more than 700 times before they were

interrupted.  The court properly weighed the past losses inflicted

by the conspiracy in calculating the intended loss.  See  2F1.1,

comment (n.9) (district court's estimate of intended loss may be

based on the approximate number of victims and average of loss to

each victim).  Accordingly, we perceive no error in Robbio's

sentence enhancement for intended loss.

           2.     Refusal to depart downward

  At sentencing, Robbio requested a downward departure

pursuant to U.S.S.G.  2F1.1, comment (n.11), which states, in

relevant part, that "[in] a few instances, the loss determined

under subsection (b)(1) may overstate the seriousness of the

offense."  The district court denied the request, stating, "For all

the reasons I gave in determining the appropriate loss in this

case, I simply do not see where this is one of those few instances

which the note says that the loss overstates the seriousness of the

offense."  Robbio now argues that the court erroneously determined

that it lacked authority to depart downward on "grounds related to

overstated loss," including "multiple causation," "sentencing

entrapment," and "disparity in loss calculation."

  Under the long-standing rule that "a criminal defendant 

cannot ground an appeal on a sentencing court's discretionary

decision not to depart below the guideline sentencing range," we

lack jurisdiction to review a district court's decision to reject

a downward departure.  United States v. Reeder, 170 F.3d 93, 109

(1st Cir. 1999).  Our review of the transcript of the sentencing

hearing demonstrates that the district court fully comprehended its

authority to depart downward in an appropriate case, but denied

Robbio's motion because of its perceived lack of merit.  Because

Robbio challenges the district court's exercise of discretion not

to depart downward, we do not have jurisdiction to entertain his

argument.  See United States v. Field, 39 F.3d 15, 21 (1st Cir.

1994).  Furthermore, most of Robbio's current arguments for a

downward departure are based on grounds he did not raise in the

district court, a fact that further forecloses our consideration of

those grounds.  Id.


3.      Organizer or leader

  The district court found that Robbio was a leader or

organizer of the counterfeiting scheme, and consequently increased

his base offense level by four levels.  See U.S.S.G. 

3B1.1(a)(four-level increase if defendant was an organizer or

leader of a criminal activity that involved five or more

participants or was "otherwise extensive").  Robbio contends that

this finding was not based upon sufficient evidence that he played

a leading or organizing role.  

  We review the district court's findings for clear error. 

See United States v. D'Andrea, 107 F.3d 949, 956 (1st Cir. 1997). 

The sentencing guidelines state that in determining whether a

defendant is a leader or organizer, the court should consider (1)

whether the defendant exercised decision-making authority, (2) the

nature of his participation in the commission of the offense, (3)

the recruitment of accomplices, (4) the claimed right to a larger

share of the fruits of the crime, (5) the degree of planning or

organizing the offense, (6) the nature and scope of the illegal

activity, and (7) the degree of control and authority exercised

over others.  U.S.S.G.  3B1.1, comment (n.4).  There need not be

proof of each and every factor for a defendant to be deemed an

organizer or leader.  See United States v. Tejada-Beltran, 50 F.3d

105,111 (1st Cir. 1995).

  At sentencing, the district court found that Robbio

recruited Kiendra, directed him in executing the scheme, and took

50 percent of the revenues from the scheme.  It also found that the

criminal activity was extensive, covering several states and

involving hundreds of transactions.  Furthermore, evidence at trial

showed that Robbio organized the scheme from the basement of his

home, supervised two other coconspirators besides Kiendra in

passing the counterfeit checks, and collected 50 percent of their

revenues as well, regardless of whether he accompanied them to the

stores.  This evidence satisfies many, if not all, of the factors

set forth above, and is more than sufficient to support the

district court's finding that Robbio was a leader or organizer of

the scheme.  See United States v. Kneeland, 148 F.3d 6, 16 (1st Cir.

1998). 

  4.    Prior convictions

  The district court determined that Robbio's criminal

history placed him in category III.  See U.S.S.G.  5A (table). 

Robbio argues that two of his prior convictions, for trespass and

counterfeiting, should not have been considered in the calculation. 

He contends that these earlier offenses did not take place within

ten years of the unlawful conduct in the present action, which he

asserts started around March 1997.  See U.S.S.G. 

4A1.2(e)(2)(criminal history category calculation includes

consideration of sentences imposed within ten years of offense).  

  Because Robbio did not assert this argument in the

district court, he has forfeited it absent, at least, a showing of

plain error.  Far from demonstrating plain error, the argument

lacks merit altogether.  For purposes of determining a criminal

history category under  4A1.2(e)(2), the ten-year period is

determined by the date of sentencing, not of conviction.  United

States v. Perrotta, 42 F.3d 702, 703-04 (1st Cir. 1994).  A review

of the pre-sentence report reveals that Robbio was sentenced on the

trespass conviction on July 15, 1987, and on the counterfeiting

conviction on November 20, 1987.  Accordingly, these convictions

were properly considered by the district court in calculating

Robbio's criminal history category.

  Affirmed.