United States v. William Hanhardt, Joseph Basinski, Guy S. Altobello, and William R. Brown

361 F.3d 382
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 7, 2004
Docket02-2253, 02-2254, 02-2465, 02-3091, 02-3625
StatusPublished
Cited by22 cases

This text of 361 F.3d 382 (United States v. William Hanhardt, Joseph Basinski, Guy S. Altobello, and William R. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh 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. William Hanhardt, Joseph Basinski, Guy S. Altobello, and William R. Brown, 361 F.3d 382 (7th Cir. 2004).

Opinion

BAUER, Circuit Judge.

William Hanhardt, Joseph Basinski, Sam DeStefano, Paul Schiro,' and Guy Al-tobello were indicted for one count of racketeering conspiracy in violation of 18 U.S.C. § 1962(d). In a second count, Han-hardt, Basinski, Schiro, and William Brown were charged with conspiracy to transport stolen property in interstate commerce in violation of 18 U.S.C. § 371. The indictment also contained a forfeiture allegation seeking forfeiture of $4,845,000, miscellaneous jewelry, gems and watches, and certain real estate of Hanhardt and DeStefano. All of the defendants pleaded guilty and were sentenced to imprisonment for periods ranging from 25 months to 188 months. There are several issues raised on appeal relating to the sentencing decisions of the district court. 1 We affirm in part, reverse in part, and remand for new sentencing consistent with this opinion.

BACKGROUND

Count One

Between 1980 and April 1998, William Hanhardt, Joseph Basinski, Paul Schiro, Sam DeStefano, and Guy Altobello engaged in an organized nationwide scheme *386 to identify and target for theft more than 100 jewelry salespersons traveling in interstate commerce with lines of jewelry valued in excess of $40 million. Throughout this period, the conspirators committed at least nine jewelry thefts totaling more than $5 million in at least seven states, including Arizona, California, Michigan, Ohio, Texas and Wisconsin.

Hanhardt, the leader of the enterprise, supervised Basinski and together they directed the activities of the other conspirators. Hanhardt directed in the gathering of information regarding potential jewelry theft targets and in the surveillance of such individuals to determine the best time and place to steal jewelry from cars and hotels. He also used Chicago police officers to run searches on law enforcement computers to find information about jewelry salespersons. He also had a private investigator gather personal information on targets. Hanhardt retired from the Chicago Police Department in 1986. However, while he was a sworn officer, Han-hardt committed at least one theft with Basinski and other conspirators; an October 8, 1984 theft of one hundred eighty Baume & Mercer watches valued at approximately $310,000 from Paul Lachter-man in Glendale, Wisconsin.

Basinski identified potential targets by doing physical surveillance, making telephone calls and running database searches. He also recruited additional members for the organization and fenced stolen jewelry. Altobello provided other members with information about jewelry salespersons who conducted business with Altobello Jewelers, Inc., a Chicago area retail jewelry store, including, information regarding the identity of such persons, the nature and quality of their goods, and the most opportune time to steal from them.

Count Two

In October 1996, Brown joined Han-hardt, Basinski, and Schiro in a scheme to steal watches valued at $500,000 from Illinois jewelry salesman Paul Lachterman. They planned to steal the watches while Lachterman traveled through Wisconsin and Indiana and then to transport the stolen watches back to Illinois. Hanhardt and Basinski had already stolen from La-chterman in 1984 and decided to target him again. Between April and September of 1996, they stalked Lachterman, gathered more information on him and managed to make a duplicate key to the trunk of his car. Basinski contacted Schiro in Phoenix who drove to Chicago, bringing Brown with him, to assist in the theft. On October 1, 1996, the four conspirators followed Lachterman in two cars as he drove to Wisconsin and met with customers. On October 2, 1996, they followed him as he drove to Indiana. There, while Lachter-man was in a restaurant, Basinski and the others used the duplicate key and stole a case of watches valued at $58,000, which had been provided by the FBI. Realizing that the case contained only a fraction of the value they expected, the conspirators returned the case to the trunk.

Each of the defendants pleaded guilty to the charges and were sentenced to between 25 months and 188 months of imprisonment. They appeal these sentences.

ANALYSIS

I. Responsibility of Hanhardt and Basin-ski for the 1995 Armed Robbery of Esagh Kashimallak

Hanhardt and Basinski challenge the court’s finding that they were responsible for the 1995 robbery. At the sentencing of both Hanhardt and Basinski, the government presented evidence that the conspiracy charged in the first count of the indict *387 ment had included the armed robbery of Esagh Kashimallak in 1995. Based on the facts of that incident, the government sought an enhancement for the physical restraint of a victim (§ 3A1.3) (2 levels) and an upward departure for use of a weapon in the commission of a crime (§ 5K2.6) (6 levels) and bodily injury to a victim (§ 2B3.1) (2 levels). CGV16; Tr4/29/02//60 — 659; 5/2/02//T19 — 21; Tr5/6/02//12.34. After hearing sworn testimony from the victim and FBI Special Agent Edward McNamara, the district court judge found by a preponderance of the evidence that Hanhardt was responsible for the armed robbery. Tr5/l/02//667. However, the court declined to impose either the upward departure or the enhancement and sentenced Hanhardt to the high end of the guideline range (151-188 months). Tr5/2/02//725-26. A week later, the court found Basinski also responsible for the 1995 armed robbery and sentenced him to the high end of the guideline range (87-108 months), declining to impose the upward departure or the enhancement. Tr5/6/02//37, 58-66. The court did not specifically attribute the high end sentence to the finding that Hanhardt and Basinski were responsible for the armed robbery. Id.

The district court’s findings that Han-hardt and Basinski were responsible for armed robbery of Kashimallak is a factual finding reviewed for clear error. United States v. Ross, 905 F.2d 1050, 1054 (7th Cir.1990). The court’s finding that Kashi-mallak and the FBI agent were credible is entitled to due deference. Id.; 18 U.S.C. § 3742(d). The court did not increase either defendant’s offense level and there is no indication in the record that the court’s finding of responsibility had any bearing on its decision to sentence them at the high end of the applicable guideline range.

Where a defendant does not request specific findings pursuant to 18 U.S.C § 3553(c) at the time of sentencing, this court has held that the issue is waived. United States v. Caicedo, 937 F.2d 1227, 1236 (7th Cir.1991); United States v. Burns, 128 F.3d 553, 556 (7th Cir.1997). In this case, the defendants had the opportunity to ask the court to make clarifications and did not.

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361 F.3d 382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-william-hanhardt-joseph-basinski-guy-s-altobello-and-ca7-2004.