United States v. Nicholas DeAngelis ( 2006 )


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  •                                                                       [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT                          FILED
    ________________________              U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    October 31, 2006
    No. 05-11271                        THOMAS K. KAHN
    Non-Argument Calendar                       CLERK
    ________________________
    D. C. Docket No. 03-80009-CR-DTKH
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    NICHOLAS DeANGELIS,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (October 31, 2006)
    Before PRYOR, FAY and REAVLEY,* Circuit Judges.
    PER CURIAM:
    *
    Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth Circuit,
    sitting by designation.
    Nicholas DeAngelis appeals his convictions and sentences for 51 counts of
    conspiracy, wire fraud, mail fraud, money laundering, obstruction of justice,
    perjury, tax evasion, and identity theft offenses committed in the course of
    directing a fraudulent investment scheme. DeAngelis argues that the evidence was
    insufficient to support each of his convictions and that the district court erred in its
    application of the advisory Sentencing Guidelines. We affirm.
    I. BACKGROUND
    At trial, the government presented evidence that, from 2000 to 2002,
    DeAngelis used the interstate wires and mails to solicit and obtain $1.5 million
    from 17 investors in his Velvet Hammer Consulting Group and GIASI (“Godly
    Inspired and Spiritually Invincible” or “God Is Always Sitting In”) group of
    companies. DeAngelis represented to the investors that these companies were in
    the business of bridge financing, currency trading, pain clinic management, or
    charitable works. He represented that some investments were loans to the
    company that would be repaid with interest, others were purchases of ownership in
    the companies, and others would be exchanged for stock when GIASI made its
    initial public offering.
    Velvet Hammer never issued any bridge loans, no investments were ever
    made in pain clinics or charities, and GIASI never went public. The investors’
    2
    funds were spent on expensive automobiles, clothing, and watches; personal
    expenses of DeAngelis and his associates, including mortgage and utility
    payments; and Ponzi payments to the investors. DeAngelis used an elaborate
    system of corporate shells, nominees, and checks negotiated at check cashing
    stores to launder the funds and evade taxation, and DeAngelis opened power,
    telephone, and cable accounts at his residence in the name of Gyonki Berki.
    In 2001, DeAngelis was arrested for attempted tax evasion in a separate
    fraudulent investment scheme in which he had been involved from 1993 through
    1995. Before his first appearance in that matter, he gave false information about
    his assets to the pretrial services officer who made a bond recommendation to the
    court. DeAngelis pleaded guilty, and in March 2002 he was sentenced to 30
    months in prison. During the presentence investigation, DeAngelis gave false
    information about his assets to a probation officer. On his way to prison,
    DeAngelis instructed his attorney to reassure his investors.
    After investors complained, the FBI and IRS investigated DeAngelis’s
    activities. A grand jury returned a second superseding indictment on 51 counts:
    conspiracy to commit mail fraud, wire fraud, and interstate transportation of
    property taken by fraud (Count 1); wire fraud (Counts 2 through 10); mail fraud
    (Counts 11 through 17); transportation of stolen property and money (Counts 18
    3
    through 21); conspiracy to commit money laundering activity (Count 22); money
    laundering (promotion) (Counts 23 through 30); money laundering (concealing)
    (Counts 31 through 40); monetary transactions with criminally derived property
    (Counts 41 through 43); obstruction of justice (Counts 44 through 46); perjury
    (Count 47); conspiracy to impair and impede the IRS (Count 48); evasion of
    payment (Counts 49 and 50); and identity theft (Count 51). At trial, the closing
    argument of the attorney for DeAngelis described the investors as trusting souls
    who made rash investment decisions and DeAngelis as an inept but honest
    businessman who never intended to defraud anyone. The jury convicted
    DeAngelis on all 51 counts.
    The Presentence Investigation Report recommended enhancements for
    amount of loss, number of victims, sophisticated means, money laundering,
    commission while on bond, leader-organizer role, and obstruction of justice,
    resulting in an offense level of 37. The PSI assigned three criminal history points
    for DeAngelis’s attempted tax evasion guilty plea, United States Sentencing
    Guidelines § 4A1.1(a), and added two points for commission of the present offense
    within two years of release from custody, U.S.S.G. § 4A1.1(e), which resulted in a
    criminal history category of III and a Guideline range of 262 to 327 months. The
    court granted a departure to criminal history category IV, which corresponded to a
    4
    Guildeline range of 292 to 365 months. The court imposed a sentence of 300
    months.
    II. STANDARDS OF REVIEW
    The following standards of review govern this appeal. We review
    challenges to the sufficiency of the evidence de novo. United States v. Keller, 
    916 F.2d 628
    , 632 (11th Cir. 1990). We view the evidence “in the light most favorable
    to the government, with all reasonable inferences and credibility choices made in
    the government’s favor” to determine whether a reasonable jury could conclude
    that the evidence establishes guilt beyond a reasonable doubt. 
    Id.
     We review a
    sentence for Sixth Amendment violations de novo. United States v. Paz, 
    405 F.3d 946
    , 948 (11th Cir. 2005). We review the application of the Sentencing Guidelines
    to the facts de novo and the underlying factual findings for clear error. United
    States v. Ellis, 
    419 F.3d 1189
    , 1192 (11th Cir. 2005). We review the application of
    section 4A1.2 and section 1B1.3(a)(1) of the Guidelines to the facts for clear error.
    United States v. White, 
    335 F.3d 1314
    , 1319 (11th Cir. 2003). We review an
    upward departure under section 4A1.3 for abuse of discretion. United States v.
    Hernandez, 
    160 F.3d 661
    , 668 (11th Cir. 1998).
    5
    III. DISCUSSION
    Our discussion of the issues is divided into two parts. First, we review the
    issues about the sufficiency of the evidence. Next, we review the issues about
    sentencing.
    A. Sufficiency of the Evidence
    DeAngelis raises arguments about 50 of his convictions. All fail. We group
    the counts where DeAngelis raises a common argument about them and discuss
    each set of counts in turn.
    1. Conspiracy (Count 1)
    DeAngelis raises two arguments against the conspiracy count. First, he
    argues that the conspiracy was a “rimless wheel” of multiple conspiracies rather
    than one single enterprise. “Where the ‘spokes’ of a conspiracy have no
    knowledge of or connection with any other, dealing independently with the hub
    conspirator, there is not a single conspiracy, but rather as many conspiracies as
    there are spokes.” United States v. Chandler, 
    388 F.3d 796
    , 807-08 (11th Cir.
    2004). To support a conviction for a single conspiracy, the evidence must prove
    that the conspirators “knew of the ‘essential nature of the plan’ and agreed to it.”
    
    Id. at 806
    .
    6
    Viewed in the light most favorable to the government, the evidence was
    sufficient to support a conviction for a single conspiracy. Evidence presented at
    trial showed that DeAngelis’s coconspirators, Robert Jabbour and Lou Claps,
    solicited and guaranteed others’ investments with DeAngelis by making false
    representations of their own successes with him. Jabbour and DeAngelis agreed to
    use Claps’s name on the corporate papers of the pain clinic. The coconspirators
    knew of each other and of the essential nature of the plan.
    Second, DeAngelis argues that he did not agree to engage in conduct plainly
    proscribed by statute. The legal basis for this argument relies entirely upon
    language in Chandler that we later rescinded. See Chandler, 
    376 F.3d 1303
    , 1312-
    14 (11th Cir. 2004), rescinded, 388 F.3d at 798, 804-05. This argument fails.
    2. Fraud (Counts 2 through 43)
    DeAngelis argues that the evidence was insufficient to support his
    conviction on most of the remaining counts because the government failed to prove
    the existence of fraud, which is an element of each of the offenses challenged here.
    Under the wire fraud statute, 
    18 U.S.C. § 1343
    , “[a] scheme to defraud requires
    proof of material representations, or the omission or concealment of material
    facts.” Hasson, 333 F.3d at 1270-71. The “scheme or artifice to defraud” language
    in the mail fraud and wire fraud statutes are construed identically. Id. at 1271 n.7.
    7
    Fraud is also an element of transportation of stolen property, 
    18 U.S.C. § 2314
    ; and
    “[m]ail and wire fraud constitute ‘specified unlawful activity’ under the [money
    laundering] statutes.” Hasson, 333 F.3d at 1274.
    The evidence supports the charges that DeAngelis defrauded his investors.
    The investors testified that DeAngelis represented to them that he would use their
    money to make bridge loans, purchase pain clinics, finance real estate ventures, or
    buy shares in GIASI when it made its initial public offering. DeAngelis never used
    the investors’ money for these purposes. The investors’ funds were spent on
    clothing, automobiles, personal expenses of DeAngelis and his associates, and
    Ponzi payments to the investors. Only one payment was ever made to a pain
    clinic, and that check was dishonored. The director of the clinic testified that none
    of its funds came from GIASI or Velvet Hammer. DeAngelis produced financial
    statements that misrepresented the financial condition of his companies, and
    DeAngelis falsely represented himself as Greg Brown, both over the phone and in
    person. Another investor testified that he received false mortgage notes from
    DeAngelis as a security for his investment. Several investors testified that
    DeAngelis did not tell them that he was going to prison, where he could not
    conduct business, and they would not have invested with him if they had known
    8
    about his incarceration. Viewed in the light most favorable to the government, the
    evidence supports the charges that DeAngelis engaged in a scheme to defraud.
    3. Obstruction of Justice (Counts 44 and 45)
    DeAngelis argues that the pretrial services officer to whom he gave false
    statements was an investigating agent beyond the reach of the obstruction of justice
    statute. 
    18 U.S.C. § 1503
    ; United States v. Aguilar, 
    515 U.S. 593
    , 600, 
    115 S. Ct. 2357
    , 2362 (1995). We disagree. We have explained that the critical element,
    under section 1503, is a nexus “in time, causation, or logic” between the
    obstructive act and the judicial proceeding. United States v. Vaghela, 
    169 F.3d 729
    , 733 (11th Cir. 1999). We must consider whether the defendant’s actions
    “would have ‘the natural and probable effect of interfering with the due
    administration of justice’ in a way that is more than merely ‘speculative.’” 
    Id. at 734
     (quoting Aguilar, 
    515 U.S. at 601
    , 
    115 S. Ct. at 2363
    ). The issue then is
    whether a bond hearing is a “judicial proceeding” for the purposes of section 1503.
    Because of its constitutional importance and the degree of judicial
    involvement, the bail proceeding is part of the “administration of justice” within
    the meaning of section 1503. Our precedent established long ago that “a bail
    hearing is a judicial proceeding,” as opposed to an administrative or
    “housekeeping” proceeding, for the purposes of 
    18 U.S.C. § 1001
    , which
    9
    proscribes making materially false statements to agents of the government except
    in judicial proceedings. United States v. Abrahams, 
    604 F.2d 386
    , 393 (5th Cir.
    1979). “The right to be free of excessive bail appears explicitly in the Bill of
    Rights. . . . Bail may be set only by a judicial officer. The determination of bail
    requires a judicial decision of which conditions of release will reasonably assure
    the appearance of a defendant.” 
    Id.
     The pretrial services officer testified that false
    information about one’s income and assets submitted in the course of a bail
    investigation has a probable effect on the outcome of the bail proceeding, and
    DeAngelis does not dispute that his statements were false. The evidence was
    sufficient to support the convictions for obstruction of justice.
    4. Perjury (Count 47)
    DeAngelis argues that the false statement to the pretrial services officer was
    not material because it did not affect his bond determination. The perjury statute
    proscribes “willfully subscrib[ing] as true any material matter . . . not believe[d] to
    be true” in “any declaration, certificate, verification, or statement under penalty of
    perjury.” 
    18 U.S.C. § 1621
    (2). A statement is material if it is “capable of
    influencing the tribunal on the issue before it.” United States v. Forrest, 
    623 F.2d 1107
    , 1112 (5th Cir. 1978).
    10
    This argument fails. At trial, government witnesses testified that the false
    report of DeAngelis’s assets could influence the court’s decision on the measure of
    fine or restitution to impose. The evidence was sufficient to support the conclusion
    that the false statement, which DeAngelis subscribed as true and executed under
    penalty of perjury, was material.
    5. Tax Evasion (Counts 48 through 50)
    DeAngelis argues that the government failed to prove any of the three
    elements of tax evasion, 
    26 U.S.C. § 7201
    : “(1) wilfullness; (2) existence of a tax
    deficiency; and (3) an affirmative act constituting an evasion or attempted evasion
    of the tax.” United States v. Kaiser, 
    893 F.2d 1300
    , 1305 (11th Cir. 1990). We
    disagree. First, DeAngelis argues that the government failed to prove that he knew
    he had an obligation to pay the taxes in question, but the evidence at trial
    established that DeAngelis possessed W-2s, completed tax returns, and a notice
    from the IRS, all of which provided notice of outstanding tax liabilities. Second,
    DeAngelis argues that he had no personal interest in the funds for which he evaded
    taxation, but DeAngelis’s 2001 tax return listed $1.3 million in personal income,
    nearly the amount he received from GIASI investors that year. None of the
    companies with which DeAngelis was involved filed income taxes that year, which
    evidenced that he viewed those funds as his income. Third, DeAngelis argues that
    11
    he did not conceal anything from the IRS, but the evidence established that
    DeAngelis used nominees and kept his name off corporate documents and bank
    accounts, which, viewed in the light most favorable to the government, supports
    the tax evasion conviction and the conviction for conspiracy to evade taxation.
    6. Identity Theft (Count 51)
    DeAngelis argues that he did not know Gyonki Berki, he had no access to
    her identity particulars, and he had no intent to aid or abet any unlawful activity.
    Identity theft occurs when one “knowingly transfers, possesses, or uses, without
    lawful authority, a means of identification of another person with the intent to
    commit, or aid or abet, or in connection with, any unlawful activity that constitutes
    a violation of Federal law . . . .” 
    18 U.S.C. § 1028
    (a)(7). DeAngelis’s argument
    fails.
    At trial, the government presented circumstantial evidence that DeAngelis
    had access to Berki’s identity documents through Jabbour, and the existence of the
    accounts in Berki’s name supports the finding that DeAngelis had access to Berki’s
    identification to open the accounts. DeAngelis’s unlawful activity was tax evasion,
    and the use of another’s identity to conceal DeAngelis’s accounts is circumstantial
    evidence that DeAngelis sought to conceal his ability to make payments to the IRS.
    12
    Viewed in the light most favorable to the government, the evidence supports the
    conviction for identity theft.
    B. Sentencing
    DeAngelis raises two kinds of arguments about sentencing. DeAngelis first
    argues that all the enhancements not proved to a jury violated his Sixth
    Amendment rights. He next challenges two of the enhancements of his sentence
    and an upward departure on the grounds that the court erroneously applied the
    advisory Guidelines. All of his arguments fail.
    1. Sixth Amendment Issues
    DeAngelis erroneously contends that all the enhancements to his sentence
    were unlawful because they were based on judicial findings not proved to a jury
    beyond a reasonable doubt. The advisory use of the Guidelines does not implicate
    the Sixth Amendment. United States v. Booker, 
    543 U.S. 220
    , 233, 
    125 S. Ct. 738
    ,
    750 (2005). In Booker, “all nine [Justices] agreed that the use of extra-verdict
    enhancements in an advisory guidelines system is not unconstitutional.” United
    States v. Rodriguez, 
    398 F.3d 1291
    , 1301 (11th Cir.), cert. denied, 
    545 U.S. 1127
    ,
    
    125 S. Ct. 2935
     (2005). The district court properly understood Booker and applied
    the Guidelines as advisory. This argument fails.
    13
    2. Criminal History Points for Prior Sentence
    DeAngelis argues that the criminal history assigned based on his 2001
    conviction for attempted tax evasion was error. He contends that the 2001
    conviction involved a “related case,” not a “prior sentence,” under section 4A1.2(a)
    of the Sentencing Guidelines. The pertinent inquiry is whether the 2001 conviction
    involved “conduct that is part of the instant offense,” which means conduct that is
    relevant conduct to the instant offense under section 1B1.3 of the Guidelines.
    U.S.S.G. § 4A1.2, comment. n.1. Although DeAngelis repeatedly confuses this
    inquiry with the “related case” inquiry of section 4A1.2(a)(2), we construe his
    argument to be about the “relevant conduct to the instant offense.”
    DeAngelis argues that, because the indictment alleged his nonfiling of tax
    returns beginning in 1993, his earlier conviction for attempted tax evasion in 1994
    involved conduct that is part of the instant offense. We disagree. At the
    sentencing hearing, the government conceded that the indictment and the PSI
    included the tax loss from 1993 to 1995, but argued that there was no overlapping
    conduct between the instant offense and DeAngelis’s earlier conviction. It was not
    clear error for the district court to find that the instant offenses and the 1994 tax
    evasion were “separate and distinct crimes.”
    14
    3. Criminal History Points for Commission While Incarcerated
    DeAngelis’s next argument is related to his previous argument. DeAngelis
    argues that if the 2001 conviction is not included in the criminal history under
    section 4A1.2(a)(1), it may not be used for the enhancement for commission of the
    instant offense while under a sentence under section 4A1.1(d). This argument
    fails, because we conclude that the 2001 conviction was properly included in the
    criminal history.
    4. Criminal History Category Departure
    DeAngelis argues that the departure from category III to category IV was an
    abuse of discretion based on “the subjective views of the district court.” A court
    may depart upward “[i]f reliable information indicates that the defendant’s criminal
    history category substantially under-represents the seriousness of the defendant’s
    criminal history or the likelihood that the defendant will commit other crimes.”
    U.S.S.G. § 4A1.3(a)(1). The district court explained its reasons for granting the
    departure, which included the unprosecuted offenses that DeAngelis had
    committed and his lack of moral sensitivity in the commission of the instant
    offenses. The district court did not abuse its discretion.
    15
    IV. CONCLUSION
    DeAngelis’s convictions and sentences are
    AFFIRMED.
    16