United States v. Dirosa

United States Court of Appeals
For the First Circuit
No. 13-1643
UNITED STATES,
Appellee,
v.
PETER DIROSA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
Alan D. Campbell for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.
August 4, 2014
THOMPSON, Circuit Judge. Peter DiRosa was sentenced to
57 months in prison after a jury found him guilty of one count of
wire fraud. The charge resulted from a transaction in which DiRosa
and an associate, Thomas Renison, convinced then-75-year-old Frank
Jablonski to invest $600,000 in an elaborate scheme surrounding a
real estate development project in Polgardi, Hungary. On appeal,
DiRosa challenges the denial of his sufficiency-of-the-evidence-
based motion for acquittal, the admission of certain testimony, and
his sentence. After careful consideration, we wholly affirm.
BACKGROUND
A. The Dynamic Duo
Ironically DiRosa and Renison met some eleven years ago
while both were involved in charitable work for the same parish.
Renison was a 25-year veteran in the insurance and finance
businesses. DiRosa, according to his introduction, was a project
developer in eastern Europe. DiRosa said his current venture
involved building a resort in Polgardi, Hungary showcasing the
country's natural hot springs, a popular tourist attraction. The
resort, he boasted, would also have several golf courses, and
eventually a casino, for guests to enjoy.
DiRosa told Renison that he had already met with several
high-ranking Hungarian officials who were on board with the
project, as well as an architect and advertising executive from New
York. He also represented that the project was very close to being
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funded and the land very close to being secured. DiRosa asked
Renison to be a "type of [] partner in the deal" and be primarily
responsible for overseeing the administration of benefits for the
resort's estimated two to three thousand potential employees.
Additionally, Renison, a self-proclaimed "avid golfer," would be
given the opportunity to work with a golf majors champion to create
and manage the resort's courses, notwithstanding his lack of
experience in golf course management.
DiRosa and Renison traveled to Hungary on a number of
occasions - mostly on Renison's dime - to check in on the project's
progress. While on these trips, the pair often met with, among
others, the attorney for the project, Ildiko Sardy, and Sardy's
husband, Janos Danyi, who was the project's accountant.
B. Jablonski's "Investment"
When all the shenanigans with Jablonski began, he was a
75-year-old retiree who had been living with his wife, Marguerite,
in Kennebunk, Maine. Prior to retiring, Jablonski made a living as
a management consultant. After his employer discontinued its
management of Jablonski's 401(k) account, Jablonski found himself
in need of financial planning services. At that time, Jablonski
had been working with an insurance broker to obtain medical
insurance for himself and his wife. The broker referred him to
Renison, who Jablonski ultimately hired to invest his retirement
funds into a variable annuity.
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In May 2008, DiRosa told Renison that his project needed an
investor - one who was willing to provide $600,000 to be placed in
an escrow account and used as collateral to purchase farmland in
Hungary that would be converted into commercial property. Renison
immediately thought of Jablonski as the ideal candidate for the
investment.
Renison contacted Jablonski about the investment
opportunity and, over the course of several conversations (both on
the telephone and at Jablonski's home), he promoted the duo's idea.
While Renison did most of the talking during the "[t]wo or three"
meetings that were conducted over the course of a week or two,
DiRosa was always present. Jablonski was told that he would
receive a $400,000 profit for his investment, would be reimbursed
for the $52,000 surrender charge he would incur for withdrawing the
money prematurely from his retirement account, would earn interest
on the money while it sat in the escrow account, and would receive
$6,500 per month to replace the income he would lose from taking
the money out of the annuity. In addition, he was assured that his
money would never leave the escrow account. That entire process,
Renison declared, including recoupment of all profits and fees,
would take six months at the most, and in actuality he expected it
would wrap up much sooner. As Renison delivered his spiel, DiRosa
never corrected, clarified, or contradicted any of the assertions
Renison made.
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Jablonski was also given written materials compiled by
DiRosa that purported to describe the project in more detail,
including a marketing brochure about the resort and an accounting
report. The brochure contained information about the resort's key
management and its advisory board, boasting a membership cohort of
prominent public figures such as a U.S. Congressman and a
professional golfer (the same one with whom Renison was supposed to
manage the resort's golf course). The accounting report represented
that the project was slated to make a $29 million dollar profit in
its first year. What Jablonski was not told, however, was that this
advisory board was not only nonoperational, it was nonexistent, and
that the $400,000 profit he was promised was contingent on the
project being fully funded, which, of course, at the time it was
not.
Convinced he would be foolish to pass on such a promising
investment, on May 27, 2008, Jablonski signed a loan document
drafted by DiRosa reflecting the terms of their agreement. Because
of his prior relationship with Jablonski, Renison, rather than
DiRosa, signed the agreement. The next day, the pair accompanied
Jablonski to a local bank to facilitate the wiring of the funds
overseas. DiRosa had a heavy hand in this process, assisting the
bank tellers and Jablonski throughout. Bank records indicate that
on June 3, 2008, $600,000 was transferred from Jablonski's account
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to an account in Hungary held in the name of Sardy & Associates
Attorneys.
C. Have Funds, Will Travel
Following the June 3rd transfer, Jablonski's $600,000
went on a whirlwind world tour. Between June and September 2008,
the funds were transferred back and forth numerous times between
several Hungarian accounts held by Sardy. Additionally, during that
time and over the course of several transactions, approximately
$100,000 in cash was withdrawn from one of Sardy's accounts. In
September 2008, approximately $518,000 was transferred via two
separate transactions from Sardy's account into an Austrian bank
account in the name of Danyi (remember, he is Sardy's husband).
Eventually, $225,000 of that money came back stateside and was
transferred from Danyi's account to an account held in the name of
DiRosa's wife, Eileen.
A few months later, Renison and DiRosa met up and Renison
confided that things for him were "kind of financially tight."
DiRosa indicated that he could loan Renison some money, and shortly
thereafter, Renison had two checks in hand, one in the amount of
$100,000 and the other in the amount of $5,000. Both checks were
written out of Eileen DiRosa's account, which the $225,000 had gone
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into earlier. When Renison asked DiRosa where he got the money
from, DiRosa said a friend named "Ernie" had lent it to him.1
Unfortunately for Jablonski, the funds traveled
everywhere except back to him. Six months after the transfer - the
maximum amount of time Renison had said it would take Jablonski to
recoup his investment - Jablonski had been repaid a mere $60,000,
which he assumed to be the ten percent interest his investment had
yielded while in the escrow account. Jablonski was promised an
additional $100,000 for the delay, but alas never saw a dime more.
Throwing salt on the wound, Jablonski belatedly found out he was
going to be hit with a hefty tax bill; because he pulled the funds
from his retirement account, he was taxed based on an annual income
of $700,000 instead of his usual $100,000.
Finally suspecting something was awry, Jablonski and his
wife filed a civil suit against DiRosa. Their attorney communicated
with both DiRosa and Sardy via email on several occasions, but
attempts to secure an accurate status on the funds owed to Jablonski
- much less the money itself - remained fruitless.
Perhaps feeling he had reached a dead end, the
Jablonskis' attorney contacted the Federal Bureau of Investigation.
After the FBI interviewed the Jablonskis, DiRosa, and Renison, among
1
DiRosa later admitted in his testimony that he lied to
Renison about where the money came from, and that he had actually
received it from a line of credit on the property in Hungary that
he asked Sardy to arrange.
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others, on May 24, 2011, the government filed a criminal complaint
against both DiRosa and Renison in the United States District Court
for the District of Maine. The complaint alleged that Renison and
DiRosa conspired to commit wire fraud and committed wire fraud in
violation of 18 U.S.C. § 1343. A grand jury indicted DiRosa on the
wire fraud charge only, and the complaint against Renison was
dismissed with the government's consent. DiRosa pleaded not guilty.
D. DiRosa's Trial and Sentencing
A three-day jury trial began on January 28, 2013. During
trial, the jury heard testimony from, among others,2 DiRosa,
Jablonski, and Renison (he was testifying under a grant of
immunity). The district court twice denied DiRosa's oral motion for
judgment of acquittal and the jury found him guilty.
DiRosa's sentencing hearing took place a few months
later. The U.S. Sentencing Guidelines (the "Guidelines") called for
a sentence between 46 and 57 months, however, the district court
judge increased the range to 57 to 71 months, finding that false
(and perhaps perjurious) statements made by DiRosa throughout the
proceedings warranted an obstruction of justice enhancement. At the
sentencing hearing, the district court heard statements from
supporters on both sides. On one side, Jablonski's son described
the toll the fraud took on his parents. On the other, DiRosa's wife
2
We will address the testimony of two such individuals
shortly.
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and several of his friends vouched for his good character and
commitment to his family. They also noted his years of public
service, which included a 14-year stint on the board of directors
for the town of Manchester, Connecticut, as well as his serving as
the town's deputy mayor and mayor.
The government requested the full 71 months because of
the nature and severity of DiRosa's lies, Jablonski's substantial
financial loss, and DiRosa's apparent lack of remorse for his
actions. DiRosa requested a dramatic downward variance - a 30-day
prison term followed by 14 months of home confinement - based
primarily on his age, prior public service, family ties, and the
need to care for his ill wife, her mother, and his aging father.
The district court sentenced DiRosa to 57 months in
prison - the very lower end of the enhanced guideline range - to be
followed by three years of supervised release. The district court
described DiRosa's conduct as "a most serious offense" and also
suggested that DiRosa felt no remorse for his actions. Indeed, the
district court thought DiRosa was "still taking that Kool-Aid of
this Polgardi castle." DiRosa timely appealed. He raises several
issues for our consideration.
DISCUSSION
A. Motion for Acquittal
DiRosa first argues that the district court should have
granted his motion for acquittal because the government failed to
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prove that he made any false statements to Jablonski, an essential
element of wire fraud. We review the district court's denial of a
motion for acquittal de novo, and must "decide whether, after
assaying all evidence in the light most amiable to the government,
and taking all reasonable inferences in its favor, a rational
factfinder could find, beyond a reasonable doubt, that the
prosecution successfully proved the essential elements of the
crime." United States v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006). We
"need not believe that no verdict other than a guilty verdict could
sensibly be reached, but must only satisfy [ourselves] that the
guilty verdict finds support in a plausible rendition of the
record." Id. We have described the barriers to challenging a
motion for acquittal as "daunting." Id.
"[T]he elements of wire fraud are a 'scheme to defraud,'
the accused's 'knowing and willful participation in the scheme with
the intent to defraud,' and the use of interstate or foreign 'wire
communications' to further that scheme."3 United States v. Denson
689 F.3d 21, 24 (1st Cir. 2012), cert. denied, 133 S. Ct. 996
(2013)(quoting United States v. Cassiere, 4 F.3d 1006, 1011 (1st
Cir. 1993)). The misrepresentations made with the intent to defraud
must be material, which we have described as having "a natural
tendency to influence, or is capable of influencing, the decision"
3
There is no dispute that foreign wiring was used to wire
Jablonski's money from his bank in Maine to Sardy's bank in
Hungary.
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of the person or persons it is addressed to. Méndez Internet Mgmt.
Servs., Inc. v. Banco Santander de Puerto Rico, 621 F.3d 10, 15 (1st
Cir. 2010).
DiRosa claims that "there was no evidence that he made a
material, false representation that caused Jablonski to wire funds
to Hungary." That is, DiRosa says that Renison did all of the
talking during their meetings, as well as provided Jablonski with
all of the written materials (including the loan document), and that
it was Renison, and not DiRosa, who caused Jablonski to wire the
funds. But this claim is superficial.
In United States v. Woodward, 149 F.3d 46 (1st Cir.
1998), the defendant made an argument much like the one DiRosa makes
here. In that case, the defendant, a Massachusetts state
representative, was convicted of (among other things) wire fraud
based on telephonic communications that were used to book a hotel
room in Florida for a conference, at which the defendant was
planning to "accept[] gratuities . . . with the intent to defraud
the public of its right to his honest services." Id. at 63. The
defendant, himself, did not actually make the call to reserve the
room so he argued that he had not caused the use of interstate
wiring (that being the telephone call) to effectuate the meeting.
Id. at 63-64. We affirmed his conviction and said it was enough
that the defendant could have reasonably foreseen that the
reservation was going to be made for him and that the use of
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interstate wiring (i.e., a telephone call) would be used to secure
it. Id. Because the call secured the hotel room, which in turn
ensured the location for the fraudulent gratuity to be exchanged,
the call "played an essential role in the scheme." Id. at 64.
Our reasoning in Woodward sinks DiRosa's argument. He
claims that his participation was merely incidental to causing
Jablonski to wire the money and that it was Renison who did all the
heavy lifting. Even assuming this to be the case, it was certainly
reasonable for DiRosa to foresee - and indeed it was what he hoped
for - that the misrepresentations Renison made would result in the
foreign wiring of funds for his Hungarian real estate development
project. The misrepresentations were undoubtedly material as well,
given that their very purpose was to convince Jablonski to wire the
funds. Further, the use of international wiring here played even
more of an essential role in DiRosa's scheme than did the telephone
call in Woodward.
Even putting all that aside, there is more. The
government presented evidence that DiRosa was in charge of creating
some of the critical marketing material that was presented to
Jablonski, namely the pamphlets which listed the advisory board and
board of directors working on the project as well as the project's
profit report. DiRosa's own testimony revealed that at the time the
material was presented to Jablonski, no such advisory board existed
but rather it was more of a "wish list" of individuals he was hoping
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would come on board. The highly recognizable six-time professional
golf champion was therefore not a member of the non-existent
advisory board, and neither was the Congressman. The board of
directors, consisting of "top European and American executives," did
not exist. Not only was DiRosa not the president of Resort Holdings
International as represented in the brochure, he testified at trial
that he could not remember whether the company had ever even
existed. And, not surprisingly, the materials failed to mention the
fact that the project was not yet fully funded. DiRosa was also the
one who assisted in the actual wiring of the funds at Jablonski's
bank. On top of all that, we have the fact that $225,000 of
Jablonski's money ended up in DiRosa's wife's bank account.
Given all this, there was no shortage of evidence in the
record from which a jury could have reasonably concluded that the
government proved all of the essential elements of wire fraud under
18 U.S.C. § 1343. See, e.g., United States v. Appolon, 715 F.3d
362, 369 (1st Cir. 2013) (affirming defendant's wire fraud
conviction, finding that despite defendant's claim that he played
a peripheral role in a mortgage fraud scheme a "compilation of
evidence [gave] rise to the reasonable inference" that he was an
"active participant in the transaction" who acted with the specific
intent to defraud).
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B. Admission of Kiselak's and Mesite's Testimony
DiRosa also has qualms about the district court's
admission of testimony at various points within the trial. His
first claim of error relates to the testimony of Stephen Kiselak and
Stephen Mesite, two individuals that DiRosa had solicited in the
late 1990s and in early 2000 to invest in the same Hungarian
development project.
Prior to trial, the government moved in limine to admit
the Kiselak and Mesite testimony, pursuant to Federal Rule of
Evidence 404(b),4 arguing that the testimony was specially relevant
to prove DiRosa's intent to defraud Jablonski because he used the
same representations, promised the same "exceedingly high, and
exceedingly rapid, returns on the victims' investments" and, like
for Jablonski, "the promised returns did not materialize." In
response, DiRosa argued that this "prior bad act evidence" should
be excluded because it tended to show his propensity to commit crime
and was unfairly prejudicial. DiRosa also argued that the
transactions involving Kiselak and Mesite were too remote in time
to warrant admissibility, since they occurred some ten years prior
to his interaction with Jablonski.
4
This rule prohibits the admission of evidence of "a crime,
wrong, or other act . . . to prove a person's character in order to
show that on a particular occasion the person acted in accordance
with the character." Fed. R. Evid. 404(b)(1). However, such
evidence may be admissible for other purposes, including to prove,
among other things, intent. Id. at 404(b)(2).
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The district court granted the government's motion,
finding it "readily apparent that these other acts have special
relevance because of the 'degree of similarity to the charged [wire
fraud] crime.'" The district court also stated that these incidents
showed that DiRosa "had reason to know" that when he solicited
Jablonski for funds, that Jablonski would not receive any return on
his investment. At the outset of trial, DiRosa's attorney urged the
court to reconsider its ruling, but the court declined to do so, and
the pair went ahead and testified. On the stand, Kiselak and Mesite
described loans they had given to DiRosa for the same development
project in Hungary, neither of which had ever been repaid, and which
were based on false promises similar to those Renison and DiRosa
offered to Jablonski.
On appeal, DiRosa makes the same claims he did below,
i.e., the evidence proffered by Kiselak and Mesite was highly
prejudicial, minimally probative, and the incidents too remote in
time. We review the district court's admission of prior-acts
evidence under Rule 404(b) for abuse of discretion. See United
States v. Doe, 741 F.3d 217, 229 (1st Cir. 2013); Appolon, 715 F.3d
at 372-73.
Normally our inquiry is twofold. We first consider
whether the evidence has special relevance under Rule 404(b), and
then next determine whether, pursuant to Rule 403, the disputed
evidence, even if specially relevant, should nonetheless be excluded
-15-
based on considerations of unfair prejudice. See United States v.
Varoudakis, 233 F.3d 113, 118 (1st Cir. 2000). DiRosa cites both
Rule 404 and Rule 403 in his brief but at oral argument his counsel
pressed the Rule 403 prejudice piece, conceding that the subject
testimony had some relevance. As a result, we bypass the question
of special relevance and proceed to a Rule 403 inquiry.
Federal Rule of Evidence 403 provides that a court "may
exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice."5 Fed. R. Evid.
403; see also Doe, 741 F.3d at 229. Unfair prejudice "speaks to the
capacity of some concededly relevant evidence to lure the factfinder
into declaring guilt on a ground different from proof specific to
the offense charged." Old Chief v. United States, 519 U.S. 172, 180
(1997). We stress that "it is only unfair prejudice which must be
avoided . . . because [b]y design, all evidence is meant to be
prejudicial." Varoudakis, 233 F.3d at 122 (internal citation
omitted).
5
Rule 403 offers up some other bases for exclusion, namely
"confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence." Fed. R. Evid.
403. We see no indications that any of these grounds justify
exclusion. DiRosa does not suggest otherwise, except for one brief
reference to the potential for the testimony to "confuse[] the jury
as to what DiRosa was on trial for." However, DiRosa only argues
the unfair prejudice piece of Rule 403, and so any claim related to
juror confusion is waived. See González-Morales v. Hernández-
Arencibia, 221 F.3d 45, 48 n.3 (1st Cir. 2000) (finding that the
parties' failure to develop the argument waived it).
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Here, both Kiselak's and Mesite's testimony was highly
probative. The testimony was offered to show that DiRosa acted with
the intent to defraud Jablonski - an essential element of the
charged crime - because DiRosa employed similar tactics and offered
similar false promises to solicit money from Kiselak and Mesite.
Indeed, the similarity is quite uncanny (a fact which makes us less
concerned than DiRosa with the decade-long gap between the pitches).
As with Jablonski, DiRosa promised that Kiselak's and Mesite's
investments would be repaid promptly, and that they would be
profitable, but these promises never came to fruition. In that same
vein, the testimony is probative of the fact that when DiRosa
solicited the investment from Jablonski, he arguably knew, based
upon his prior dealings with Kiselak and Mesite, that Jablonski
would not be recouping his investment (let alone a profit) within
six months as was promised, if ever. DiRosa was soliciting money
from Jablonski to fund the very same project that ten years earlier
had failed to materialize.
Though the close similarity between DiRosa's interactions
with Kiselak/Mesite and Jablonski certainly puts us on alert for
possible unfair prejudice resulting from criminal propensity
evidence, we are satisfied that is not what happened here. See Old
Chief, 519 U.S. at 180-81 (explaining that, under 403, one improper
ground for conviction is "generalizing a defendant's earlier bad act
into bad character and taking that as raising the odds that he did
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the later bad act now charged"). Criminal propensity considerations
need to be taken "in light of the totality of the circumstances,
including the government's need for the evidence given other
available testimony, to prove the issue identified pursuant to the
404(b) special relevance analysis." Varoudakis, 233 F.3d at 122.
In the instant matter, Kiselak's and Mesite's testimony was crucial
to the government's case, as it was the only evidence available to
show that at the time he approached Jablonski for the money for his
project in Hungary, DiRosa had reason to believe that Jablonski was
not likely to recoup any, much less all, of his investment. DiRosa
points to no "other, non-prejudicial evidence" the government could
have used instead.
An abuse of discretion showing is not an easy one to
make. We afford deference to the district court's weighing of
probative value versus unfair effect, only in "extraordinarily
compelling circumstances" reversing that "on-the-spot judgment" from
"the vista of a cold appellate record." Doe, 741 F.3d at 229. This
is not one of those circumstances. The court did not abuse its
discretion in admitting the testimony.
C. Admission of Jablonski's Testimony
Next, DiRosa argues that the district court erred in
allowing Jablonski to testify at length as to statements made by
Renison during their meetings because the statements are inadmissible
hearsay. The district court allowed the testimony in as statements
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made by a co-conspirator, and DiRosa argues that this was error
because the government failed to prove by a preponderance of the
evidence that he and Renison were acting in a conspiracy. The
government retorts that the testimony was indeed admissible as co-
conspirator statements, see Fed. R. Evid. 801(d)(2)(E), or in the
alternative as adoptive admissions, see id. 801(d)(2)(B). We agree
the testimony was properly admitted by the court under the co-
conspirator/joint venture aegis.6
Our review of the district court's decision on this issue
is for plain error only, as DiRosa seems to concede7 in his brief
that he did not properly preserve his objection8 to the testimony at
trial. See United States v. Sánchez-Berríos, 424 F.3d 65, 73 (1st
Cir. 2005). "Review for plain error entails four showings: (1) that
6
Given this determination, we need not delve into the merits
of the government's adoptive admissions argument, see United States
v. Miller, 478 F.3d 48, 51 (1st Cir. 2007) (explaining the doctrine
of adoptive admissions rests on the notion that "a party's
agreement with a fact stated by another may be inferred from (or
'adopted' by) silence"), though, at a minimum, the argument has
some surface appeal.
7
In his brief, DiRosa says that he raised an objection to
Jablonski's testimony at trial, but he concedes that the objection
was "perhaps belated[]" and proceeds to fashion his argument under
the plain error standard of review.
8
We do not mean to imply that DiRosa's counsel should have
objected to the testimony. The decision not to object may indeed
have been a tactical one, e.g., Jablonski's testimony could have
persuaded the jury that the more vocal Renison was the one to
blame. See Strickland v. Washington, 466 U.S. 668, 689
(1984)(recognizing that counsel has "wide latitude" when making
tactical decisions). In any event, it is not an issue we need to
decide.
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an error occurred (2) which was clear or obvious and which not only
(3) affected the defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation of
judicial proceedings." Id.
Federal Rule of Evidence 801(d)(2)(E) provides that a
statement is not hearsay if it "is offered against an opposing party
and . . . was made by the party's coconspirator during and in
furtherance of the conspiracy." To admit a statement under this
rule, four elements must be satisfied by a preponderance of the
evidence: (1) the existence of a conspiracy; (2) the defendant's
membership in the conspiracy; (3) the declarant's membership in the
conspiracy; and (4) that the declarant's statement was made in
furtherance of the conspiracy. United States v. Colón-Díaz, 521 F.3d
29, 35-36 (1st Cir. 2008).
Here a preponderance of the evidence showed that a
conspiracy existed, and both DiRosa and Renison were part of it.
First, the complaint charged both DiRosa and Renison with conspiracy.
The fact that DiRosa was not ultimately indicted for conspiracy, or
that Renison was not named as a co-conspirator, is not especially
surprising given that Renison testified for the government under a
grant of immunity. Nor is it particularly important that DiRosa was
not so indicted, as the applicability of the co-conspirator exception
is not conditioned on a conspiracy being charged in the indictment.
See United States v. Washington, 434 F.3d 7, 13 (1st Cir. 2006).
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Further, the testimony offered at trial established the relationship
between DiRosa and Renison, as well as their combined goal of getting
Jablonski to invest in the Hungarian project. And it was also
established that DiRosa was no uninformed, innocent bystander during
the meetings with Jablonski. He knew that virtually all of the
supposed chapter and verse that Renison presented to Jablonski was
false, yet by his own admission DiRosa took no exception to any of
Renison's statements. On top of that, he benefitted handsomely from
Renison's lies, with $225,000 of Jablonski's money ending up in
DiRosa's wife's account. A feat made possible when DiRosa - in what
can certainly be characterized as a ratification of all that Renison
said - assisted in effectuating the wire transfer at the bank.
The court also supportably found that Renison's comments
were in furtherance of DiRosa and Renison's joint venture. Surely
it would be difficult to fashion a workable argument to the contrary.
It is clear that Renison's touting of the project's laurels was done
in an (ultimately successful) attempt to get Jablonski to hand over
his savings. See United States v. Piper, 298 F.3d 47, 54 (1st Cir.
2002) (providing that generally speaking "a coconspirator's statement
is considered to be in furtherance of the conspiracy as long as it
tends to promote one or more of the objects of the conspiracy").
In sum, we see no reason to conclude that the district
court erred, plainly or otherwise, in admitting the testimony against
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DiRosa. Because we discern no error, we need not address the
remaining prongs of the plain error test.
D. Sentence
Finally, DiRosa takes issue with the district court's
imposition of a 57-month, within-Guidelines sentence. Our review of
sentencing decisions is for abuse of discretion, which, as we have
said, is really an assessment for reasonableness. See Denson 689
F.3d at 26. Our assessment "involves a procedural as well as a
substantive inquiry." United States v. Politano, 522 F.3d 69, 72
(1st Cir. 2008)(citing Gall v. United States, 522 U.S. 38, 51
(2007)). This means we first decide whether the district judge made
any procedural missteps, such as improperly calculating the
Guidelines range or failing to adequately explain the sentence. See
id. And then we move on to whether the sentence imposed is actually
substantively reasonable. See id. A plausible rationale and
defensible result is the so-called "linchpin of a reasonable
sentence." United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).
DiRosa frames his challenge solely as a substantive one
but in reality - though the dividing line between these two types of
challenges is not the clearest - he appears to be mounting more of
a procedural attack. Particularly, he complains that the district
court failed to adequately explain why it would not award DiRosa the
reduced sentence he sought based on the various mitigating factors
advanced by DiRosa, e.g., his clean criminal record, history of
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public service, and family care-taking responsibilities. See
Politano, 522 F.3d at 72 (providing failure to satisfactorily explain
a sentence as an example of a procedural error). Giving DiRosa the
benefit of the doubt, we address both the procedural and substantive
reasonableness prongs, starting with the former.
Simply said, we see nothing wrong with the district
court's explanation of DiRosa's sentence. To start, the district
court considered many, if not all of the mitigating circumstances set
forth by DiRosa. In his sentencing colloquy, the judge noted several
of DiRosa's virtuous personal characteristics. He spoke about how
friends and family had written letters and had spoken at DiRosa's
sentencing hearing about his good character, and how they were
shocked that he was involved in any type of criminal activity. The
judge also recognized that "for a number of years [DiRosa] was
impassioned in his desire to serve the public."
While the district court may not have discussed each of
the factors DiRosa set forth in turn (e.g., his clean record, age,
and his responsibilities caring for his wife, her mother, and his
father), the court need not explicitly do so in a checklist-type
fashion. See, e.g., United States v. Zapata, 589 F.3d 475, 487 (1st
Cir. 2009) (stating that "[a]lthough the court did not explicitly
discuss the personal characteristics of the defendant that were
highlighted by defense counsel, that does not mean it failed to
consider them"). Moreover, a within-Guidelines sentence, such as
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DiRosa's, "requires less explanation" than one that falls outside the
Guidelines. United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir.
2011). Here we have no trouble discerning the court's rationale; its
explanation was sufficient.
By the same token, DiRosa's sentence was substantively
reasonable. The court considered DiRosa's virtuous characteristics
but found more significant "the nature and circumstances of the
offense, the need to promote respect for the law, just punishment,
and deterrence." Simply "identifying potentially mitigating factors"
does not guarantee DiRosa that he will receive a reduced sentence.
Madera-Ortiz, 637 F.3d at 30. Nor can DiRosa successfully challenge
the substantive reasonableness of his sentence because the district
court, when weighing his virtuous characteristics against the more
nefarious factors (the deceit, loss, and harm resulting from his
actions) came up with a sentence that disfavored him. See id.
The district court made a judgment call - well within the
wide latitude it is afforded - and on balance, the court came up with
a lower end of the Guidelines 57-month prison sentence. A successful
challenge to a sentence falling within the Guidelines is not an easy
one to make; "fairly powerful mitigating reasons" must be given and
we must be persuaded that the district judge was "unreasonable in
balancing pros and cons." United States v. Stone, 575 F.3d 83, 95
(1st Cir. 2009). DiRosa has made no such showing.
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Left with no procedural blunders and an eminently
reasonable sentence, we find the court did not abuse its discretion.
DiRosa's sentence stands.
CONCLUSION
For the reasons set out at length above, each of DiRosa's
offerings on appeal fails to convince. DiRosa's conviction and
sentence are AFFIRMED.
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