United States v. Zaccagnino, Gigi A.

467 F.3d 1044, 2006 U.S. App. LEXIS 27264, 2006 WL 3113538
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 3, 2006
Docket06-1570
StatusPublished
Cited by7 cases

This text of 467 F.3d 1044 (United States v. Zaccagnino, Gigi A.) 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. Zaccagnino, Gigi A., 467 F.3d 1044, 2006 U.S. App. LEXIS 27264, 2006 WL 3113538 (7th Cir. 2006).

Opinion

FLAUM, Chief Judge.

In September 2002, Gigi A. Zaccagnino, her husband Peter Zaccagnino, and Wendell Gates were indicted on a number of charges stemming from a fraudulent investment scheme. On March 23, 2005, Gigi Zaccagnino entered a plea of guilty on three separate counts: racketeering conspiracy (Count 1); conspiracy to commit mail fraud and wire fraud (Count 7); and money laundering conspiracy (Count 15). The other charges against her were eventually dropped. On February 15, 2006, Gigi Zaccagnino was sentenced to 97 months in prison. Her sentence reflected a ten-level increase prescribed by the United States Sentencing Guidelines because the amount of laundered funds exceeded $20 million. Gigi Zaccagnino now appeals the sentencing court’s finding that she was responsible for the entire amount of loss caused by the investment scheme. For the following reasons, we affirm.

I. Background

In 1997, Peter Zaccagnino began operating a fraudulent scheme in which he sold historical bonds — bonds issued by railroads or by foreign governments — to investors, falsely claiming that the bonds were valid security for a line of credit that could be used to buy notes in a high-yield investment. 1 In reality, the bonds had no value to anyone other than collectors. Peter Zaccagnino obtained over $6.8 million from the sale of these bonds. During this time, Gigi Zaccagnino attended meetings where her husband represented to investors that the bonds could yield seven to thirty percent of their valuation within a year. She also notarized some of the investment documents.

Peter Zaccagnino sold the historical bonds through two corporate entities and deposited most of the sales proceeds into the corporations’ accounts. One of those corporations was Wonder Glass Products. Gigi Zaccagnino was the secretary, treasurer, and director of that corporation. She opened a corporate bank account for Wonder Glass in May 1997 and held sole signatory authority on the account. Just two days after Wonder Glass was incorporated, it began paying Gigi Zaccagnino a salary. In a December 1998 credit card application, she represented that she received $5,200 a month from her employment with Wonder Glass.

In March 1998, Gigi Zaccagnino incorporated a business called Diamond in the Rough (“DIR”) in the British Virgin Islands. Peter Zaccagnino promoted DIR as a firm that placed client funds into high-yield offshore investment programs, promising investors substantial earnings. Gigi Zaccagnino served as president, secretary, and director of DIR. Money from the historical bond sales was then transferred into an off-shore DIR bank account. Gigi Zaccagnino used $300,000 from that account to buy corporate stock in her name.

Throughout 1998, Peter Zaccagnino offered investors various “high-yield investments” that he claimed involved major international banks. To document the purported success of these investments, *1046 Peter Zaccagnino prepared and mailed fake account statements and other documents to investors. The statements showed substantial earnings on the bogus investments, which encouraged investors to send more money.

To further this scheme, Peter Zaccagni-no held a meeting in Peoria, Illinois in October 1999. At the meeting, Gigi Zac-cagnino sat at a table and made prospective investors promise that they would not record the meeting. Meanwhile, Peter Zaccagnino told them that they could make huge sums of money with the proposed investments and that he had been arranging similar investments successfully for so long that he was ready to retire. This foreign investment scheme earned Peter Zaccagnino millions in addition to the money from the historical bond sales.

The SEC began investigating the historical bond sales and obtained a preliminary injunction against Peter Zaccagnino in December 1998 and a permanent injunction in June 1999. Notwithstanding the injunctions, Peter Zaccagnino continued selling the bonds. He was careful, however, about putting his name on corporate documents after the SEC investigation; instead, Gigi Zaccagnino and others served as corporate officers and directors of corporations involved in the criminal enterprise. For this reason, some of the people whose names appeared on corporate documents had no apparent connection to the fraudulent activities. For example, Marlene and Patsy Irace, Peter Zaccagnino’s sister and brother-in-law, are listed as president and secretary of an entity that was used to deal with disgruntled investors, even though they were not aware of or involved in the investment scheme. Peter Zaccagnino also used his mother’s name as a front for a corporation under his control.

The Presentence Report (“PSR”) for Gigi Zaccagnino recommended that she be held accountable for the total loss related to the investment scheme — approximately $21,241,846.17. The PSR calculated her total offense level as 32, which included a ten-level increase because the loss amount exceeded $20 million. Before sentencing, Gigi Zaccagnino objected to the PSR’s finding that she was responsible for the total loss amount. In particular, she argued that she should not be held accountable for funds received before December 1999, as she was unaware of the criminal conduct before that date.

At the sentencing hearing, Gigi Zaccag-nino reiterated this argument, clarifying that she became aware of the criminal conduct in December 1999, when she overheard her husband and one of his business partners laughing about the falsity of the statements they sent to investors. This district court rejected Gigi Zaccagnino’s version of events. The judge stated that although it considered the possibility that the defendant had been an innocent dupe in the early days of the conspiracy, in reviewing the record, he concluded that “her involvement ... was simply too substantial.” Transcript of Sentencing Hearing at 504, United States v. Zaccagnino, No. 03 CR 10095 (C.D.Ill. Feb. 15, 2006). Specifically, the court noted her role as a director of the corporations, her role as a signatory on the corporate accounts, and her involvement in the preparation of documents. Id. The court said to Gigi Zac-cagnino, “I cannot pinpoint at what moment you became criminally aware of what your husband was doing, but I place it at a time earlier than you do.” Id. at 519. The court further commented on her lavish lifestyle during the period of the conspiracy, noting that she spent “with wild abandon on real estate, cars, [and] jewelry,” and that she lied “on virtually every appli *1047 cation [she] made for credit or loan.” Id. at 520.

II. Discussion

In determining relevant conduct under the guidelines, a defendant engaged in a jointly undertaken criminal activity is liable for all reasonably foreseeable acts performed in furtherance of the jointly undertaken criminal activity. U.S. Sentencing Guidelines Manual § 1B1.3 (2004) (hereinafter “U.S.S.G.”). However, “[a] defendant’s relevant conduct does not include conduct of members of a conspiracy prior to the defendant joining that conspiracy; even if the defendant knows of that conduct.” Id. at § 1B1.3, cmt. n. 2(ii).

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