United States v. Michael Mangarella , 489 F. App'x 648 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4613
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL ATTILIO MANGARELLA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:06-cr-00151-FDW-DCK-3)
Submitted: June 29, 2012 Decided: July 20, 2012
Before TRAXLER, Chief Judge, and GREGORY and DAVIS, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA,
Charlotte, North Carolina, for Appellant. Lanny A. Breuer,
Assistant Attorney General, John D. Buretta, Acting Deputy
Assistant Attorney General, Ellen R. Meltzer, Patrick M. Donley,
Michael A. Rotker, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Attilio Mangarella was convicted by a jury of
conspiracy to defraud the United States, 18 U.S.C. § 371 (2006),
and multiple counts of wire fraud, 18 U.S.C.A. § 1343 (West
Supp. 2011), 18 U.S.C. § 2 (2006), after he was extradited from
Costa Rica where he and others operated a fraudulent sweepstakes
scheme aimed at U.S. citizens. Initially, Mangarella was
sentenced to a term of 600 months’ imprisonment, but while his
appeal was pending, we vacated the sentence of his co-defendant,
Giuseppe Pileggi, who had received the same term, on the ground
that it was a de facto life sentence which was not in accord
with the assurances given to Costa Rica. * United States v.
Pileggi, 361 F. App'x 475, 478-79 (4th Cir. 2010). Before
briefing was completed, Mangarella moved to remand his case for
resentencing, and the motion was granted.
On remand, the district court adopted its previous
rulings on Mangarella’s objections to the presentence report and
imposed a sentence of 360 months, as well as ordering
restitution of $2,687,501.47 and forfeiture of $10 million.
Because no count carried a statutory maximum equal to 360
months, in order to achieve that total sentence the court
*
The government inadvertently failed to inform the district
court accurately about the extradition agreement.
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imposed the maximum 60-month sentence on Count One, a 60-month
sentence on Count Two, and concurrent 240-month sentences on the
remaining counts, with the sentences for Counts One and Two to
run consecutive to each other and to the remaining 240-month
sentences. See U.S. Sentencing Guidelines Manual § 5G1.2(d)
(2010) (instructing sentencing court to impose consecutive
sentences “to the extent necessary to produce a combined
sentence equal to the total punishment”). On appeal, Mangarella
challenges both his convictions and sentence.
We first address Mangarella’s two claims of error with
respect to his convictions. Mangarella argues that the district
court plainly erred by failing to instruct the jury sua sponte
on venue. A defendant has a right to be tried in the state and
district where the alleged crime occurred. U.S. Const. art III,
§ 2, cl. 3; amend. VI; see also Fed. R. Crim. P. 18. Mangarella
did not object to venue in the district court. Consequently,
the issue is waived on appeal. United States v. Ebersole, 411
F.3d 517, 527-28 (4th Cir. 2005); United States v. Stewart, 256
F.3d 231, 238 (4th Cir. 2001). In any case, venue was proper in
the Western District of North Carolina because all the wire
fraud counts involved Western Union transfers which were
processed in Charlotte, North Carolina.
Mangarella also claims that the district court abused
its discretion in allowing his co-conspirators to authenticate
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his handwritings. Herman Kankrini and Larry Cunningham
testified at trial about various handwritten materials that were
seized from Mangarella’s call center in Costa Rica on the day he
was arrested. The materials had been admitted without objection
as government exhibits. Kankrini testified that Mangarella had
written the employee rules that were posted in the call center.
Cunningham identified a document as the opening pitch used when
a victim was first contacted, and said Mangarella had written
it. He also recognized the office rules as having been written
by Mangarella. In addition, Kankrini testified that he had read
many handwritten letters Mangarella sent him during the year
they were in jail in Costa Rica.
Mangarella now claims that the documents containing
his handwriting were not properly authenticated under Fed. R.
Evid. 901(b)(7), which pertains to public records. However,
under Fed. R. Evid. 901(b)(2), expert opinion on handwriting is
not necessary. United States v. Dozie, 27 F.3d 95, 98 (4th Cir.
1994). Instead, a handwritten document is sufficiently
authenticated if a non-expert testifies, as here, that the
handwriting is genuine, based on a familiarity that was not
acquired for the litigation. Mangarella also asserts that
Kankrini and Cunningham did not explain how they were familiar
with his handwriting, but the record reveals that they did. To
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the extent that Mangarella preserved the issue of
authentication, it is meritless.
With respect to Mangarella’s sentence, we review a
sentence under a deferential abuse-of-discretion standard,
necessitating consideration of both the procedural and
substantive reasonableness of the sentence. Gall v. United
States, 552 U.S. 38, 41, 51 (2007). Improperly calculating the
advisory Guidelines range is a significant procedural error.
Id.Mangarella first claims that the district court
clearly erred in denying him an adjustment for acceptance of
responsibility, USSG § 3E1.1. A defendant who goes to trial and
is convicted is eligible for a reduction for acceptance of
responsibility only if his pre-trial statements and conduct
demonstrate acceptance of responsibility and he goes to trial to
assert and preserve issues that do not relate to factual guilt.
It does not apply to a defendant who denies “the essential
factual elements of guilt” and “puts the government to its
burden of proof at trial.” USSG § 3E1.1 cmt. n.2. The
defendant has the burden of proving to the court by a
preponderance of the evidence that he has affirmatively accepted
personal responsibility for his criminal conduct. United
States v. Nale, 101 F.3d 1000, 1005 (4th Cir. 1996).
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Mangarella argues that he acknowledged his guilt
before trial. The government concedes that Mangarella made
certain admissions during two proffer sessions after he was
extradited to the United States. However, when no plea
agreement was reached, Mangarella moved to suppress statements
he made to informants in Costa Rica after his arrest, as well as
the incriminating statements he made during the proffer
sessions. At the suppression hearing, Mangarella testified that
his first lawyer pressured him into making the proffers and that
he did so because the attorney led him to believe that he might
receive immunity from prosecution and witness protection for his
wife and children. Mangarella also testified that he was barely
literate and did not understand much of what transpired during
the time he made the proffers. After the court denied his
suppression motion, Mangarella went to trial, contesting his
guilt. In his post-conviction interview with the probation
officer, Mangarella said he drank heavily and was intoxicated
most of the time he was in Costa Rica, again suggesting that he
was not really responsible for his criminal conduct. On these
facts, the district court did not clearly err in denying
Mangarella a reduction for acceptance of responsibility.
Next, Mangarella contests the application of
Guidelines enhancements because they were not included in the
extradition agreement. The “rule of specialty” permits a person
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extradited to the United States to be tried only for the offense
or offenses for which extradition was granted. See United
States v. Rauscher, 119 U.S. 407, 430 (1886); see also Kasi v.
Angelone, 300 F.3d 487, 500 (4th Cir. 2002). The extradition
treaty between the United States and Costa Rica incorporates the
rule of specialty. United States v. Anderson, 472 F.3d 662, 665
n.1 (9th Cir. 2006). Costa Rica extradited Mangarella with the
specific assurance that he would not be tried or punished for
offenses other than those for which extradition was granted.
Whether the district court violated the rule of specialty is a
legal issue reviewed de novo. United States v. Al-Hamdi, 356
F.3d 564, 569 (4th Cir. 2004); see also United States v. Lomeli,
596 F.3d 496, 499 (8th Cir. 2010).
Mangarella contends that sentencing enhancements that
increased his offense level above the base offense level of 7
constituted a violation of the extradition agreement because
they were neither charged in the indictment nor included in the
extradition documents. We conclude that consideration of
uncharged conduct to determine the sentence did not violate the
rule of specialty. See Lomeli, 596 F.3d at 503 (criminal
history); United States v. Garrido-Santana, 360 F.3d 565, 578
(6th Cir. 2004) (obstruction of justice); United States v.
Lazarevich, 147 F.3d 1061, 1063-65 (9th Cir. 1998) (upward
departure for child abduction after conviction for passport
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fraud); United States v. Saccoccia, 58 F.3d 754, 783-87 (1st
Cir. 1995) (criminal forfeiture).
Mangarella suggests that the maximum sentence he could
receive was twenty-five years because anything more would
violate the extradition agreement. As he did in the district
court, he points to the statutory maximum of five years for
Count One and twenty years for the remaining counts of
conviction. However, no error occurred. The district court
imposed the statutory maximum for each count (with a lesser
sentence on Count Two), and stacked the sentences to the extent
necessary to achieve a sentence within the Guidelines range,
following the procedure directed in USSG § 5G1.2(d). The
extradition agreement prohibited a sentence of death or one that
would require him to spend the rest of his natural life in
prison. The district court was careful to impose a sentence
that would result in Mangarella’s release when he was in his
seventies.
Relying on Apprendi v. New Jersey, 530 U.S. 466(2000), Mangarella next claims that the only permissible
enhancement was the loss amount, which was found by the jury in
a special verdict form, because the facts supporting the other
enhancements were not submitted to the jury and found beyond a
reasonable doubt. Where, as here, the Guidelines are treated as
advisory and the sentence does not exceed the statutory maximum,
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this argument is without merit. United States v. Blauvelt, 638
F.3d 281, 293 (4th Cir.), cert. denied, 132 S. Ct. 111 (2011).
Sentence enhancements are generally factual issues determined by
a preponderance of the evidence. Id.Mangarella also contends that the district court
clearly erred in finding that the offense involved more than 250
victims because only the 182 victims who filed claims for
restitution are listed in the presentence report. However, the
district court noted that the evidence presented at trial
established that the offense involved far more than 250 victims.
Thousands of victim sheets with the amounts they remitted were
seized from Mangarella’s call center when he was arrested. The
district court did not clearly err in making the enhancement.
In the presentence report, the probation officer
recommended a 2-level increase under USSG § 2B1.1(b)(13)(B) for
possession of a firearm in connection with the offense based on
information given by co-conspirator Carlo Testore. Testore
testified at Mangarella’s trial but did not mention that
Mangarella had possessed a firearm. James Martin, an agent with
Immigration and Customs Enforcement, testified at Mangarella’s
sentencing that he interviewed Testore and that Testore said
that, during a period when he was not working with Mangarella,
he went to Mangarella’s call center in Costa Rica to talk about
money Mangarella owed him relating to a failed coin business
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they had previously had together. Testore told Agent Martin
that, during the conversation, Mangarella lifted his shirt to
show that he had a gun in his waistband, which he felt was
Mangarella’s way of discouraging him from asking for the money.
The district court found that Martin was a credible witness and
that Mangarella possessed the gun in connection with the
telemarketing scheme because he had it at the call center “in
furtherance of the conspiracy” and “was clearly using it as
security at the call center.”
Mangarella first argues that Testore was not a
credible source because he had a conflict with Mangarella and
thus had a motive to lie. However, the district court may
consider relevant information that it deems to have “sufficient
indicia of reliability to support its probable accuracy” to
resolve disputed matters at sentencing. USSG § 6A1.3(a).
Second, Mangarella contends that the government did
not prove that he possessed the gun in connection with the mail
fraud offense. Because firearms are not generally regarded as
tools of the trade in mail fraud cases, see United States v.
Aslan, 644 F.3d 526, 551-52 (7th Cir. 2011), the mere presence
of Mangarella’s firearm at the call center is not necessarily
sufficient to support the enhancement. However, the government
points out that testimony at Mangarella’s trial established that
the usual practice for telemarketing schemes operating in Costa
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Rica was to have runners regularly pick up wire transfers from
victims and bring the cash to the call center. When Mangarella
was arrested at his call center, he had $3408 in cash on his
person. Another $40,000 in cash was seized from his home.
Given the security concerns implicit at the call center, the
district court’s determination that Mangarella possessed the
firearm in connection with the wire fraud offense is not clearly
erroneous.
Mangarella maintains that the 4-level role adjustment
he received under USSG § 3B1.1(a) was unwarranted because he was
an equal partner or employee in the various call centers he was
associated with; however, the trial evidence demonstrated that
he was both an organizer and leader in the telemarketing scheme.
The record discloses that the testimony of government
investigators and co-conspirators established that Mangarella
was involved in fraudulent sweepstakes operations from the early
2000’s until his arrest in 2006, during which time he owned
seven call centers at various times, recruited others into the
business, wrote scripts to teach employees how to make the
initial pitch to victims and how to induce the victim to send
additional money after an initial payment. He managed at least
one of the call centers as the boss, performing the
administrative duties, and supervising the callers. In another
instance, he demanded a larger ownership share when setting up a
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new call center with three partners, where he represented
himself as the leader who had the knowledge, the equipment, and
the contacts. In light of this evidence, which the district
court found credible, the 4-level adjustment was not clearly
erroneous.
Last, Mangarella maintains that his 360-month sentence
is unreasonable and that the district court failed to give an
adequate explanation for giving him a longer sentence than some
of his co-conspirators. Gall, 552 U.S. at 50; United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009). Mangarella’s
below-Guidelines sentence is entitled to a presumption of
reasonableness. United States v. Susi, 674 F.3d 278, 289 (4th
Cir. 2012). Moreover, the district court discussed most of the
§ 3553(a) factors, addressed the need to avoid disparity, and
noted the seriousness of Mangarella’s current offense, his
previous serious offenses, and his apparent lack of remorse.
Thus, the district court’s explanation was adequate to permit
appellate review.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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