United States v. Santopietro

996 F.2d 17, 1993 WL 196055
CourtCourt of Appeals for the Second Circuit
DecidedJune 9, 1993
DocketNos. 1333, 1489, 1334, 1326, 2335 and 1490, Dockets 92-1334, 92-1349, 92-1356, 92-1357, 92-1380 and 92-1381
StatusPublished
Cited by8 cases

This text of 996 F.2d 17 (United States v. Santopietro) 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. Santopietro, 996 F.2d 17, 1993 WL 196055 (2d Cir. 1993).

Opinion

GEORGE C. PRATT, Circuit Judge:

FACTS AND BACKGROUND

Joseph J. Santopietro became the mayor of Waterbury, Connecticut, in November 1986. His victory was due in part to a feud between factions of the city’s Democratic party, which had been in power for the previous ten years. The Republicans’ uncertainty that they would be able to retain the power they had won fueled a “get it while we can” mentality among Santopietro and his close associates. Perry Pisciotti, a former GOP town chairman who was close to Santopietro’s family, arranged for Santopietro to use his political position to influence decisions by various city agencies in return for bank loans and cash payoffs from certain local businessmen. Santopietro was reelected twice, and the conspiracy expanded in 1988 to include other Waterbury politicians.

Benefits to certain bankers and land developers included zoning changes, subdivision approvals, confidential appraisal information for use in bidding on city-owned property, expedited treatment from city agencies, and input into appointments. In return, Santo-pietro and other members of his administration received hundreds of thousands of dollars disguised as loans, sales of options, real estate contract cancellations, and property leases.

Following a five-week trial before T.F. Gil-roy Daly, Judge, in the United States District Court for the District of Connecticut, a jury found seven defendants guilty of conspiracy, bribery, and various counts of bank fraud, embezzlement, and tax evasion. Six of them have appealed.

Santopietro was convicted of bribery conspiracies, see 18 U.S.C. § 371; receiving corrupt payments, see 18 U.S.C. § 666(a)(1)(B); bank fraud, see 18 U.S.C. § 1344; embezzlement of federal grant monies, see 18 U.S.C. § 665(a); and tax evasion, see 26 U.S.C. § 7201. He was sentenced to 108 months’ [19]*19imprisonment, three years’ supervised release, a $25,000 fine, and a $900 special assessment.

Pisciotti was convicted of conspiracy, see 18 U.S.C. § 371; bribery, see 18 U.S.C. § 666(a)(2); and bank fraud, see 18 U.S.C. § 1344. He was sentenced to 114 months’ imprisonment, three years’ supervised release, a $25,000 fine, and a $250 special assessment.

Paul Vitarelli, former president of Waterbury’s Board of Aldermen, was convicted of conspiracy, see 18 U.S.C. § 371; receiving corrupt payments, see 18 U.S.C. § 666(a)(1)(B); and filing a false statement on his tax return, see 26 U.S.C. § 7206(1). He was sentenced to forty-one months’ imprisonment, three years’ supervised release, and a $150 special assessment.

Robert Giacomi, former majority leader of Waterbury’s Board of Aldermen, was convicted of conspiracy, see 18 U.S.C. § 371; receiving corrupt payments, see 18 U.S.C. § 666(a)(1)(B); and filing a false statement on his tax return, see 26 U.S.C. § 7206(1). He was sentenced to fifty-one months’ imprisonment, three years’ supervised release, a $7500 fine, and a $150 special assessment.

Jack Giacomi, Waterbury’s labor negotiator and brother of Robert Giacomi, was convicted of conspiracy, see 18 U.S.C. § 371; receiving corrupt payments, see 18 U.S.C. § 666(a)(1)(B); and filing a false statement on his tax return, see 26 U.S.C. § 7206(1). He was sentenced to eighteen months’ imprisonment, three years’ supervised release, a $4000 fine, and a $150 special assessment.

Fred Giusti, former majority leader of Waterbury’s Board of Aldermen, was convicted of conspiracy, see 18 U.S.C. § 371; and receiving corrupt payments, see 18 U.S.C. § 666(a)(1)(B). He was sentenced to thirty-three months’ imprisonment, three years’ supervised release, and a $100 special assessment.

The defendants raise numerous issues on appeal, challenging various aspects of then-trial and sentences. We have carefully considered all of the challenges to their convictions and concluded that none of them has any merit. We would affirm all of the judgments by summary order but for the existence of two sentencing issues that deserve brief comment: first, the imposition of a special skills enhancement to Robert Giaco-mi’s sentence pursuant to U.S.S.G. § 3B1.3; second, the sentencing of Fred Giusti, who claims he received a “reward” rather than a “bribe”, pursuant to U.S.S.G. § 2C1.1. For the reasons set forth below, we affirm all of the judgments except that with respect to Robert Giacomi we affirm the conviction but remand for resentencing.

’DISCUSSION

A. Application of a Special Skills Enhancement to Robert Giacomi

Robert Giacomi is a certified public accountant. The probation department’s presentence report did not recommend any adjustments that would reflect this fact. The government, however, objected to this omission and argued that Robert Giacomi had used his special accounting skills to prepare false tax returns for himself, Santopietro, and Jack Giacomi. The government urged the court to impose a two-level adjustment under § 3B1.3, “Abuse of Position of Trust or Use of Special Skill,” which it did, increasing Giaeomi’s offense level from 20 to 22.

The § 3B1.3 enhancement was applied to Giacomi’s sentence for the substantive bribery conviction, not to his sentence for filing a false tax return. His sentence for the bribery conviction was determined under § 2C1.1 — “Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right.” Application note 3 to § 2C1.1 provides: “Do not apply § 3B1.3 * * * except where the offense level is determined under § 201.1(c)(1), (2), or (3). In such cases,, an adjustment from § 3B1.3 * * * may apply.”

Application note 3 is part of the commentary that explains and interprets how the guideline is to be applied and, as such, is binding on the courts. Stinson v. United States, — U.S. -, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (commentary that interprets or explains guideline is authoritative);

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United States v. Santopietro
996 F.2d 17 (Second Circuit, 1993)

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Bluebook (online)
996 F.2d 17, 1993 WL 196055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-santopietro-ca2-1993.