United States v. Savarese

United States Court of Appeals
For the First Circuit
No. 10-1726
UNITED STATES OF AMERICA,
Appellee,
v.
DENNIS SAVARESE,
Defendant, Appellant.
No. 10-1842
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES DESIMONE,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Richard B. Klibaner, with whom Klibaner & Sabino was on brief,
for appellant Dennis Savarese.
Paul J. Garrity for appellant James Desimone.
Cynthia A. Young, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney was on brief, for appellee.
July 11, 2012
HOWARD, Circuit Judge. Defendants-appellants Dennis
Savarese and James DeSimone were indicted, along with several
alleged co-conspirators, on various charges arising from their
participation in a substantial credit card fraud scheme. Savarese
was convicted after a six-day jury trial, while DeSimone, who
elected to forgo his Sixth Amendment rights, pled guilty.1 In
these consolidated appeals, they raise a myriad of issues for our
review, ranging from the sufficiency of the underlying indictment
to the applicability of multiple sentence enhancements. For the
reasons that follow, we affirm in all respects.
I. Background
We rehearse the pertinent facts in the light most
agreeable to the verdict, United States v. Pelletier, 666 F.3d 1,
3 (1st Cir. 2011), deferring some details to our analysis of the
issues raised on appeal.
In early August 2007, Dennis Savarese and James DeSimone
were arrested outside the Prairie Meadows Racetrack in Altoona,
Iowa. Found in their possession were, among other items, six
stolen credit cards, each with a corresponding false identification
bearing the cardholder's name, but Savarese's or DeSimone's
1
The indictment also named Donald DeSimone, Sr., Donald
DeSimone, Jr., Richard Regnetta, and Arthur Rizzo as additional
defendants. DeSimone Sr. died while awaiting trial, and the
remaining defendants pleaded guilty to related charges. This
appeal disposes only of the claims raised by current defendants-
appellants Dennis Savarese and James DeSimone.
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picture. The arrests marked the culmination of a lengthy
investigation, which uncovered a fraud operation spanning more than
a dozen states and involving hundreds of stolen identities.
That operation, though simple in concept, was assiduously
executed by co-defendants Dennis Savarese, Richard Regnetta, Arthur
Rizzo, and the DeSimone family (James, Donald Sr., and Donald Jr.)
-- all of whom, except for Savarese, resided in the greater Boston
area. Between November 2005 and August 2007, Savarese visited
nearly 150 different Bally Total Fitness and 24-Hour Fitness clubs
across the United States. By all accounts, these visits were
devised not to achieve some pinnacle of physical fitness, but
rather to steal credit cards from the storage lockers of
unsuspecting gym members. On a periodic (often weekly) basis,
Savarese compiled and faxed to his associates a list which
identified the name on each stolen credit card, forged attempted
replicas of the cardholders' signatures, and specified which
co-defendant would ultimately use the cards in the scheme's
subsequent phases.
Armed with this list, one or more of the defendants --
usually Arthur Rizzo or, after Rizzo's December 2006 arrest, James
DeSimone -- would commission Boston-based photographers Dana Ross
Studios to manufacture corresponding false identifications, each of
which contained a name from one of the stolen cards, a picture of
one of the defendants, and otherwise fictional biographical
-4-
information. When enough credit cards and identifications were
collected, a select group of the defendants would congregate at
racetracks and various other gambling establishments of Savarese's
choosing throughout the country. There, they used the false
documentation to withdraw significant cash advances, to the tune of
almost $430,000 over the life of the scheme.
In due course, a federal grand jury sitting in the
District of Massachusetts returned a 28-count indictment against
the six defendants, charging them with, inter alia, conspiring to
commit aggravated identity theft, 18 U.S.C. § 1028A, identity
fraud, 18 U.S.C. § 1028(a)(7), access device fraud, 18 U.S.C.
§ 1029(a)(2), and wire fraud, 18 U.S.C. § 1343, all in violation of
18 U.S.C. § 371. Savarese was separately charged with two counts
of aggravated identity theft and two counts of identity fraud,
while DeSimone faced seven individual counts of aggravated identity
theft and one count of access device fraud. DeSimone pled guilty
to all but two counts of aggravated identity theft and was
sentenced to 81 months' imprisonment. Savarese, after trial, was
convicted on all but one count of identity fraud. The district
court denied his motion for acquittal, Fed. R. Crim. P. 29, and
imposed a 168-month sentence. These timely appeals ensued.
II. Analysis
The appellants marshal an extensive list of grievances
about the proceedings below. Specifically, Savarese attacks his
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conviction, alleging three defects: that the indictment pursuant
to which he was tried was fatally deficient; that there was
insufficient evidence to support his lone conviction for identity
fraud; and that the trial court abused its discretion on three
evidentiary rulings. Savarese and DeSimone also challenge their
respective sentences, arguing that the district court improperly
applied several sentencing guideline enhancements. We consider
each of these claims in turn.
A. Dennis Savarese
1. Challenge to the indictment
Savarese first contends that the indictment was defective
because it failed to adequately allege the "means of
identification" element of aggravated identity theft. See 18
U.S.C. § 1028A. We review a preserved challenge to the sufficiency
of the indictment de novo. United States v. Lopez-Matias, 522 F.3d
150, 153 (1st Cir. 2008).
In general, an indictment is adequate if it specifies the
elements of the offense charged, fairly apprises the defendant of
the charge against which he must defend, and allows him to contest
it without fear of double jeopardy. United States v. Sepulveda, 15
F.3d 1161, 1192 (1st Cir. 1993). An indictment that tracks the
language of the underlying statute is usually sufficient to meet
this standard, "provided . . . that the excerpted statutory
language sets out all . . . elements of the offense without
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material uncertainty." United States v. Troy, 618 F.3d 27, 34 (1st
Cir. 2010). In other words, the indictment may use the statutory
language to describe the offense, but it must also be accompanied
by such a statement of facts and circumstances as to inform the
accused of the specific offense with which he is charged. United
States v. Mojica-Baez, 229 F.3d 292, 309 (1st Cir. 2000).
Here, the grand jury charged Savarese with two counts of
aggravated identity theft, an offense described by statute as
follows:
Whoever, during and in relation to any felony
violation enumerated in subsection (c),
knowingly transfers, possesses, or uses,
without lawful authority, a means of
identification of another person shall, in
addition to the punishment provided for such
felony, be sentenced to a term of imprisonment
of 2 years.
18 U.S.C. § 1028A(a)(1). The relevant counts of the indictment
state, in pertinent part, that:
On or about the dates set forth below, in the
District of Massachusetts and elsewhere, the
defendants listed below did knowingly
transfer, possess, and use, in or affecting
interstate commerce, without lawful authority,
a means of identification of another person -
to wit, the individual's name - during and in
relation to the commission of access device
fraud . . . and wire fraud.
Immediately below this general description, an accompanying chart
identifies the count, the defendant being charged ("Dennis
Savarese"), the dates of the alleged conduct ("9/15/06" and
"8/2/07"), and the initials of the purported victims ("D.A." and
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"G.C."). Prior sections of the indictment also chronicle one of
the § 1028A offenses at length, recounting in some detail the facts
surrounding Savarese's theft of G.C.'s credit card from a Bally's
gym in Houston, Texas, and his use of the card shortly thereafter
to withdraw $950 at the Prairie Meadows Racetrack.
Thus, with respect to both counts of aggravated identity
theft, the indictment faithfully tracks the language of the
statute, and notifies Savarese not only of the elements of the
crimes charged, but also of the relevant facts. Neither count is
deficient under the applicable standards. See United States v.
Pena, 448 Fed. App'x 43, 44-45 (11th Cir. 2011) (finding indictment
sufficient where it charged the accused, under 18 U.S.C. § 1028A,
with "knowingly possess[ing] and us[ing], without lawful authority,
a means of identification of another person, that is, the date of
birth of 'W.P.'"); United States v. Dvorak, 617 F.3d 1017, 1026-27
(8th Cir. 2010) (finding same where indictment charged that the
accused "did knowingly use without lawful authority a means of
identification of another person"); United States v. Jenkins-Watts,
574 F.3d 950, 968-69 (8th Cir. 2009) (finding same where indictment
charged that the accused "did knowingly and without lawful
authority transfer, use, and possess one or more means of
identification of another person, namely XXXX, during and in
relation to a predicate felony offense, that being access device
fraud").
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Savarese disagrees, rejoining that the indictment's only
reference to a means of identification -- "to wit, the individual's
name" -- is not enough. A name, he claims, without more, cannot
constitute a "means of identification" for purposes of aggravated
identity theft. The language of § 1028, however, plainly
contradicts this theory, defining a "means of identification" as
"any name or number that may be used, alone or in conjunction with
any other information, to identify a specific individual, including
any . . . name, social security number, date of birth, [or]
official State or government issued driver's license or
identification number . . . ." 18 U.S.C. § 1028(d)(7)(A) (emphasis
added).
At least one court has held that, under certain
conditions, a name alone may not sufficiently "identify a specific
individual" to satisfy this definition, see United States v.
Mitchell, 518 F.3d 230, 236 (4th Cir. 2008), but Savarese's
singular reliance on Mitchell is misplaced. There, the defendant
challenged the sufficiency of the evidence supporting the "means of
identification" element, not the legal sufficiency of the charging
instrument; these are two wholly independent inquiries. Where, as
here, a defendant seeks dismissal of the indictment, the question
is not whether the government has presented enough evidence to
support the charge, but solely whether the allegations in the
indictment are sufficient to apprise the defendant of the charged
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offense. Because that question does not necessitate any
examination of the evidence, Mitchell is presently inapposite. See
id. at 235-36 (granting a motion for judgment of acquittal on the
ground that, under the circumstances presented, a name alone was
insufficient evidence to prove, beyond a reasonable doubt, that the
defendant had used a "means of identification" of another person);
see also United States v. Guerrier, 669 F.3d 1, 3-4 (1st Cir. 2011)
("[C]ourts routinely rebuff efforts to use a motion to dismiss [an
indictment] as a way to test the sufficiency of the evidence behind
an indictment's allegations."); United States v. Innamorati, 996
F.2d 456, 477 (1st Cir. 1993) ("The government need not recite all
of its evidence in the indictment.").2
In sum, we find no infirmity in the wording of the
indictment. It describes the statutorily defined elements of the
charged crimes, the general factual scenario on which the charges
rest, and the connection between those elements and facts. It
clearly identifies the targeted victims of aggravated identity
theft and the dates on which those instances allegedly occurred,
2
Nor could Savarese sensibly argue that the evidence
presented at trial was insufficient to prove the "means of
identification" element beyond a reasonable doubt. A wealth of
evidence demonstrated that he unlawfully used not only another
person's name, but also the person's credit card information,
which, in combination, was precisely the type of "means of
identification" contemplated by Congress in enacting 18 U.S.C.
§ 1028A. See, e.g., H.R. Rep. No. 108-528, at 4-6, as reprinted in
2004 U.S.C.C.A.N. 779, 780-81 (noting that forty-two percent of
identity theft complaints involve credit card fraud, and
identifying credit card fraud as the primary targeted conduct).
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giving Savarese more than adequate notice of the charges against
which he was required to defend. Accordingly, we reject this
assignment of error.
2. Sufficiency of the evidence
We turn next to Savarese's claim that the record does not
support his identity fraud conviction and that, therefore, the
district court should have granted his motion for judgment of
acquittal on this count. See Fed. R. Crim. P. 29. We evaluate
sufficiency challenges de novo, determining whether any rational
juror could have found the disputed facts beyond a reasonable
doubt. United States v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994).
In making this determination, we consider the evidence (both direct
and circumstantial) in the light most favorable to the verdict,
eschewing credibility judgments and drawing all reasonable
inferences in favor of the prevailing party. See United States v.
Lara, 181 F.3d 183, 200 (1st Cir. 1999).
Congress defined the essential elements of identity fraud
as "knowingly transfer[ring], possess[ing], or us[ing], without
lawful authority, a means of identification of another person with
the intent to commit, or to aid and abet, or in connection with,
any unlawful activity that constitutes a violation of Federal law,
or that constitutes a felony under any applicable State or local
law." 18 U.S.C. § 1028(a)(7). Pursuant to that provision, the
indictment alleged the following: that on July 13, 2007, Savarese
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stole a credit card from "T.M."'s locker at a Bally's gym in
Houston, Texas; that on the same day, James DeSimone purchased a
false identification from Dana Ross Studios containing T.M.'s name,
and DeSimone's picture; and that DeSimone then flew to Arizona,
where he met Savarese and used T.M.'s credit card to withdraw
$2,000 at the Phoenix Greyhound Racetrack.
Savarese submits that because the government offered no
evidence that he used T.M.'s stolen credit card, and insufficient
evidence to prove beyond a reasonable doubt that he was the
individual who stole it (i.e., possessed or transferred it), the
district court should have granted his motion for acquittal. We
disagree and, in this instance, need not linger. The government
adduced compelling evidence of identity fraud, and a rational jury
could easily have found beyond a reasonable doubt -- as the jury
did here -- that Savarese was guilty of at least aiding and
abetting the crime charged.
That Savarese possessed and transferred T.M.'s means of
identification (T.M.'s name and credit card) in furtherance of the
scheme is plainly inferable from the evidence. Donald DeSimone Jr.
testified that Savarese acquired, by theft, all of the credit cards
used in the fraud. This was consistent with the testimony of
Richard Regnetta, who similarly described the scheme's (and
Savarese's) methods of operation. Further, the victim (T.M.)
testified that his credit card vanished shortly after he visited a
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Houston-area Bally's on a Friday in July of 2007, and both
documentary and testimonial evidence indicated that Savarese's
membership card was scanned at two different Bally's locations in
that vicinity on Thursday, July 12 and Friday, July 13, 2007.3
Records and security camera footage additionally showed
that a person using the name "Dennis Savarese," and using
Savarese's personal credit card, rented a car at the Phoenix
airport on July 14, 2007 -- the same day that James DeSimone, with
an unidentified accomplice, withdrew a $2,000 cash advance at the
Phoenix Greyhound Racetrack using T.M.'s credit card. Other
evidence, including transaction records and copies of false
identifications containing Savarese's picture, demonstrated that
Savarese was actively participating in the scheme during this
general time frame.4
In an effort to blunt the force of this evidence,
Savarese declares the verdict a product of mere "guesswork and
speculation." His argument is unpersuasive. To be sure, in
conducting a sufficiency analysis, a reviewing court "should not
3
There may have been as many as five different Bally's
locations in the Houston area. It is unclear from the record --
and appears to have been undiscernible at trial -- exactly which of
these locations T.M. and/or Savarese had visited. This alone,
however, does not compromise the government's case.
4
Savarese's contention that there was no evidence of his
continued participation in the scheme is undermined by the fact
that, within weeks of the "T.M." withdrawal, he was arrested in the
company of co-defendant James DeSimone while possessing multiple
stolen credit cards and false identifications.
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give credence to evidentiary interpretations and illations that are
unreasonable, insupportable, or overly speculative," United States
v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995), but we find no such
shortcomings here. Although the evidence is largely
circumstantial, the jury reasonably could have concluded that
Savarese stole, transferred, and aided and abetted DeSimone's
fraudulent use of T.M's name and credit card. See United States v.
Castro-Lara, 970 F.2d 976, 981 (1st Cir. 1992) (explaining that
"circumstantial evidence, in and of itself, is often enough to
ground a conviction"). In reaching this conclusion, none of the
necessary inferences were unduly speculative, and the fact that the
jury acquitted Savarese on the second count of identity fraud
indicates that it was neither prevented from making reliable
judgments about guilt or innocence, nor unable to weigh the
evidence independently as to each count of the indictment. See
United States v. Flores-Rivera, 56 F.3d 319, 326 n.2 (1st Cir.
1995) (acquittals suggested "that the jury was able to sift through
the evidence in an analytical fashion . . . .").
The proof as a whole was enough to support Savarese's
conviction for identity fraud, and the district court therefore did
not err in denying his motion for acquittal on that count.
3. Evidentiary rulings
When an appropriate objection has been made, we generally
review a district court's ruling to admit or exclude trial evidence
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for abuse of discretion. United States v. Nguyen, 542 F.3d 275,
279 (1st Cir. 2008). Here, Savarese challenges three such rulings,
concerning the admission of (1) photocopies of false
identifications, (2) cash advance checks, and (3) charts
summarizing the particulars of more than 100 fraudulent
withdrawals. We elaborate below.
i. False identification duplicates
At trial, the government introduced what were purported
to be photocopies of seventeen false identifications made for the
defendants by Dana Ross Studios, the originals having been
destroyed or discarded after use. To authenticate the proffer,
Boston Police Detective Steven Blair testified that during the
course of his investigation, more than 300 such photocopies were
provided to him directly by Dana Ross owner Donald Berman, or one
of Berman's employees, often within minutes of the originals being
scanned, printed, and sold.
Savarese suggests, as he did below, that the photocopies
were not satisfactorily authenticated. The proof, he argues,
failed to eliminate the possibility that the photocopies were fakes
-- a possibility enhanced by the fact that several of the
duplicates at issue exhibited a picture of Savarese, who apparently
had never physically appeared at the Dana Ross facility. Nor,
according to Savarese, could a finding of authenticity be reliably
based on material emanating from Berman, whose own checkered
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criminal past and questionable business practices cast doubt on his
motivation for cooperating with law enforcement.
It is a bedrock principle that documentary evidence must
be authentic, the test for which is uncomplicated: where a showing
is sufficient to allow a reasonable person to believe that the
evidence is what it purports to be, that evidence may be admitted
subject to the factfinder's assessment of weight. Fed. R. Evid.
901(a); United States v. Alicea-Cardoza, 132 F.3d 1, 4 (1st Cir.
1997). There is no single required way, moreover, to authenticate
evidence. As this court has previously recognized:
[T]he direct testimony of a custodian or a
percipient witness is not a sine qua non to
the authentication of a writing. Thus, a
document's appearance, contents, substance,
internal patterns, or other distinctive
characteristics, taken in conjunction with
circumstances, can, in cumulation, even
without direct testimony, provide sufficient
indicia of reliability to permit a finding
that it is authentic.
United States v. Holmquist, 36 F.3d 154, 167 (1st Cir. 1994)
(citations and internal quotation marks omitted).
Notwithstanding Savarese's protestations to the contrary,
the photocopies were authenticated not only by the detailed
testimony of a percipient witness (Detective Blair), but also by
cumulative circumstance. Each of the seventeen duplicates could be
tracked through a name, identification number, address, or a
combination thereof to the transaction records of one or more
fraudulent withdrawals. The photocopied images were also
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internally consistent, and bore striking stylistic similarities to
the six original false identifications possessed by Savarese and
DeSimone at the time of their arrest. Indeed, the duplicate and
original for victim "G.C." -- the only example for which the
government was able to produce both -- were identical. The fact,
as Savarese maintains, that he never visited Dana Ross Studios in
person does little to support the inference that the photocopies
were inauthentic; the identifications could easily have been
manufactured with nothing more than a pre-existing photograph,
which, according to the testimony of co-conspirator Richard
Regnetta, was exactly how Savarese's identifications were made.
Thus, given the totality of the circumstances, we agree with the
trial court that a reasonable person could believe that the
photocopies were what they purported to be.
Savarese's remaining concerns with respect to Berman's
reliability are not entirely without merit. It is not
inconceivable that the photocopies had been doctored, or
constituted an instrument through which Berman, in an attempt to
curry favor with local law enforcement, aspired to carry out an
elaborate fabrication to reinforce the ongoing investigation. The
burden of authentication, however, "does not require the proponent
of the evidence to rule out all possibilities inconsistent with
authenticity, or to prove beyond any doubt that the evidence is
what it purports to be." Holmquist, 36 F.3d at 168. Rather, the
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standard for authentication, and hence for admissibility, is one of
reasonable likelihood, id., and we think that standard has been
met. Any lingering questions regarding Berman's trustworthiness go
more properly to the weight of the evidence than to its
admissibility.
Rulings of this nature often depend on the trial judge's
intimate knowledge of the case. Mindful of this, and of the broad
deference accorded to a trial court's determinations of
authenticity, we cannot say that the court abused its considerable
discretion in admitting the photocopies into evidence.
ii. Cash advance checks
In order to address Savarese's second evidentiary
objection, some additional details are necessary concerning the
process by which the defendants obtained the cash advances in
question. At designated kiosks inside the targeted gambling
establishments, each defendant swiped a stolen credit card and
entered the desired sum of withdrawal. If the request was
approved, the requestor presented the credit card and corresponding
false identification to a cashier, who retrieved the transaction
and printed a negotiable instrument called a "cash advance check."
Certain information was transcribed by the cashier from the
identification onto the check (typically the identification number,
name, and/or address), which the cashier then initialed, stamped,
and filed before issuing the funds. Eventually, the checks were
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housed in a centralized repository managed by third-party entity
Global Cash Access ("GCA"), a cash access provider for parimutuels
including racetracks and casinos.
Over objection, the government submitted approximately
forty cash advance checks into evidence and elicited testimony from
Robert Standley, GCA's Vice President of Settlements and Security,
averring that the checks were kept in the ordinary course of GCA's
business activity. Savarese challenges the submission on the
grounds that the checks were hearsay, see Fed. R. Evid. 801(c),5
and that they did not qualify for admission under the business
records exception to the hearsay rule, see Fed. R. Evid. 803(6).6
5
Federal Rule of Evidence 801(c) defines the term "hearsay"
as a "statement that . . . the declarant does not make while
testifying at the current trial or hearing . . . and a party offers
in evidence to prove the truth of the matter asserted in the
statement."
6
Under the business records exception, the following is not
excluded by the rule barring hearsay:
A record of an act, event, condition, opinion,
or diagnosis if:
(A) the record was made at or near the time by
-- or from information transmitted by --
someone with knowledge;
(B) the record was kept in the course of a
regularly conducted activity of a business,
organization, occupation, or calling, whether
or not for profit;
(C) making the record was a regular practice
of that activity;
(D) all these conditions are shown by the
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He asserts that only a representative from each individual gambling
establishment could testify as a "custodian or other qualified
witness" that the records were compiled in the regular course of
business and that, therefore, they may be admitted without
objection on hearsay grounds. See id. In essence, Savarese's
challenge poses two questions: (1) whether the cash advance checks
-- or more precisely, the cashier notations -- fall within the
traditional definition of hearsay; and (2) if so, whether
Standley's testimony was sufficient to admit the checks as GCA
business records.
While these questions may be interesting, we need not
resolve either of them. Although Savarese contested the admission
of this evidence at trial, he did so on other grounds, and thus our
review is for plain error only.7 See United States v. Ziskind, 491
F.3d 10, 13-14 (1st Cir. 2007) ("An objection on one ground does
not preserve appellate review of a different ground."). To prevail
testimony of the custodian or another
qualified witness . . .; and
(E) neither the source of the information nor
the method or circumstances of preparation
indicate a lack of trustworthiness.
Fed. R. Evid. 803(6).
7
In his motion to exclude the cash advance checks, Savarese
argued that "where, as here, the government does not have original
signatures on the checks or cash receipts, neither the government
nor the defense is able to produce an expert analysis of the
handwriting to determine whether the signatures were forged by the
defendant as the government alleges."
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under this exacting standard, Savarese must demonstrate that (1) an
error occurred which was (2) clear or obvious and which not only
(3) affected his substantial rights, but also (4) seriously
impaired the fairness, integrity, or public reputation of the
judicial proceedings. United States v. Andújar-Basco, 488 F.3d
549, 554 (1st Cir. 2007).
Even assuming that the disputed checks constitute hearsay
as defined by Rule 801, and that their admission contravenes any
applicable hearsay exceptions, Savarese nonetheless cannot satisfy
even the second prong of the plain error standard, which requires
that the error be "clear or obvious at the time of appellate
consideration." See United States v. Mastera, 435 F.3d 56, 61 (1st
Cir. 2006). As he acknowledges in his brief, whether a third
party's records (here, those of the parimutuels) can be integrated
into the records of the offering entity (here, those of GCA) for
purposes of admission under the business records exception is not
an issue upon which this circuit has reached a uniform conclusion.
Compare F.T.C. v. Direct Marketing Concepts, Inc., 624 F.3d 1, 17
n.15 (1st Cir. 2010) (holding that business records which included
data entered by a third party were "so intimately integrated into"
the records of the offering party that "they were reliable enough
to be admissible"), and United States v. Doe, 960 F.2d 221, 223
(1st Cir. 1992) (Breyer, J.) ("The fact that the [hearsay evidence]
. . . had earlier been the record of a different business . . . is
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irrelevant. Because it was relied upon by the [current testifying
party], the . . . record was integrated into the records of the
[testifying party], along with the additional handwritten
notation."), with United States v. Patrick, 248 F.3d 11, 21-22 (1st
Cir. 2001) (holding that where a business record contains
information from parties who are not themselves part of the
business, that information is not admissible as an exception to the
hearsay rule), and Belber v. Lipson, 905 F.2d 549, 551-52 (1st Cir.
1990) (finding that the mere custody by a third-party entity of the
medical records of a doctor does not incorporate them into the
third-party entity's business records), and United States v.
Vigneau, 187 F.3d 70, 75-77 (1st Cir. 1999) (declining to follow,
but not overruling, Doe).8 Thus, to the extent the district court
erred, if at all, by admitting the checks pursuant to Standley's
testimony, the error was perforce neither clear nor obvious, and
Savarese's second evidentiary objection necessarily fails. See
United States v. Marino, 277 F.3d 11, 32 (1st Cir. 2002) (declining
to find plain error where the law was unsettled).
8
Although not universally accepted in other circuits, several
courts have found that a business record made (in whole or in part)
by a third party, but incorporated into the records of another
entity, is thereby "made" by the entity, and thus is admissible if
the other requirements of Rule 803(6) are satisfied. See, e.g.,
United States v. Adefehinti, 510 F.3d 319, 326 (D.C. Cir. 2007);
United States v. Petrie, 302 F.3d 1280, 1287-88 (11th Cir. 2002);
United States v. Childs, 5 F.3d 1328, 1333 (9th Cir. 1993); Matter
of Ollag Constr. Equip. Corp., 665 F.2d 43, 46 (2d Cir. 1981);
United States v. Carranco, 551 F.2d 1197, 1200 (10th Cir. 1977).
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iii. Summary charts
In his final assignment of evidentiary error, Savarese
assails the admission of two charts purporting to summarize various
aspects of the alleged conspiracy. Because this objection was
preserved, we review the trial court's decision to admit the
evidence for abuse of discretion. United States v. DeSimone, 488
F.3d 561, 575 (1st Cir. 2007). Within the bounds of that
deferential rubric, "[i]t is hard to imagine an issue on which a
trial judge enjoys more discretion than as to whether summary
exhibits will be helpful[,]" Fraser v. Major League Soccer, L.L.C.,
284 F.3d 47, 67 (1st Cir. 2002), and any error in exercising that
broad discretion will not result in reversal if the error is
harmless, i.e., "if it is highly probable that the error did not
influence the verdict," United States v. García-Morales, 382 F.3d
12, 17 (1st Cir. 2004).
At the close of its case-in-chief, the government
introduced, through the testimony of federal auditor Steven
Zappala,9 two summary charts pertaining to the fraudulent
transactions. The first, exhibit 35A, listed and matched the names
from 367 false identifications furnished by Dana Ross Studios with
the defendant whose picture appeared on each. Exhibit 35B, in
turn, catalogued the details of 107 different cash advances,
9
Zappala described himself as an auditor employed by the
United States Attorney's Office for the District of Massachusetts.
-23-
including the date of the transaction, the name on the credit card,
the type of credit card used, the name of the establishment where
the advance was taken, the number of transactions processed with
each card, the total amount of cash advanced, and perhaps most
importantly, the name of the defendant whose false identification
was associated with each transaction. Zappala explained that to
create exhibit 35A, he personally compared the images on all 367
false identifications -- only twenty-three of which were actually
admitted at trial -- to the images on the defendants' most recent
drivers' licenses. To compose exhibit 35B, Zappala matched unique
identifying information from the 107 cash advance checks --
approximately forty of which were entered into evidence -- with the
corresponding false identifications, from which he was able to draw
a connection to specific defendants.
On appeal, Savarese maintains two grounds for excluding
the charts: (1) that they served merely as a conduit for otherwise
inadmissible evidence, namely, unauthenticated identifications and
hearsay-imbued cash advance checks -- an issue we have already
addressed supra, and need not revisit; and (2) that by linking a
defendant to each fraudulent transaction, they incorporated
Zappala's speculative opinion in violation of Federal Rule of
Evidence 1006. See Fed. R. Evid. 1006 (permitting the use of
summary charts to prove the content of voluminous writings that
cannot be conveniently examined in court); see also United States
-24-
v. Milkiewicz, 470 F.3d 390, 397-98 (1st Cir. 2006) (suggesting
that summary charts admitted under Rule 1006 must be neutral and
nonprejudicial).10 The use of summary charts, and the interplay
among the rules governing their admission, has proved fertile
ground for litigation; yet, we need not re-plow that ground here,
because the admission of Zappala's exhibits, even if erroneous, was
harmless error. We explain briefly.
Savarese ultimately was convicted on four counts: one
count of conspiracy, two counts of aggravated identity theft, and
one count of identity fraud. As to the latter three, the
information contained in the charts was entirely cumulative; the
government had already offered into evidence the false
identifications, cash advance checks, photographs, and other
documentary evidence related to those charges, thus rendering any
erroneous admission harmless. See United States v. Piper, 298 F.3d
47, 58 (1st Cir. 2002) ("Cumulative evidence is typically regarded
as harmless."). For the remaining count of conspiracy, the
contested charts served only as a fraction of the case against
Savarese. The government submitted, inter alia, almost forty cash
10
Although, as alluded to by the government, there exist
multiple evidentiary rules under which a summary chart might be
admitted -- see, e.g., Fed. R. Evid. 611(a) and 703 -- Rule 1006 is
probably the only potential foundation in this instance. Zappala
was never qualified as an expert, thus negating the use of Rule
703, and much of the evidence undergirding the charts was never
admitted, likely precluding any reliance on Rule 611(a). See
Milkiewicz, 470 F.3d at 397.
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advance checks, twenty-three false identifications, car rental
records, personal credit card records, and health club records to
establish Savarese's participation in the conspiracy. Buttressing
this evidence was the detailed and substantially consistent
testimony of two of Savarese's ex-associates regarding the
intricacies of his involvement in the fraud scheme. In sum, the
government's evidence of Savarese's guilt on the conspiracy charge
was overwhelming, and any error related to the admission of
Zappala's summary charts on that count was also harmless. See
United States v. Rivera-Rodríguez, 617 F.3d 581, 595 (1st Cir.
2010) (finding that the potentially impermissible admission of
evidence was harmless in light of the otherwise overwhelming proof
of conspiracy). Consequently, Savarese's fifth and final charge of
trial error falls short.
4. Sentencing challenges
This brings us to the last of Savarese's litany of
arguments, that the trial judge misapplied the guidelines during
sentencing. After assigning a base offense level (BOL) of 6, the
district court added twenty-two levels pursuant to four separate
enhancements: fourteen levels for causing a total amount of loss
between $400,000 and $1 million, U.S.S.G. § 2B1.1(b)(1)(H); two
levels for engaging in an offense that involved between ten and
fifty victims, § 2B1.1(b)(2)(A); two levels for relocating the
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fraudulent scheme to evade law enforcement, § 2B1.1(b)(10)(A)11; and
four levels for organizing or leading the criminal enterprise,
§ 3B1.1(a). The adjusted offense level of 28, coupled with a
criminal history category (CHC) of V, yielded a sentencing
guidelines range (GSR) of 164 to 199 months. Taking into account
the factors delineated in 18 U.S.C. § 3553(a), the court determined
that a sentence on the low end of the GSR was appropriate, and
imposed a 168-month incarcerative term. On appeal, Savarese asks
us to vacate his sentence, renewing his previously unsuccessful
objections to the "relocation" and "number of victims"
enhancements.
When confronted with claims of sentencing error, we
review the district court's interpretation and application of the
sentencing guidelines de novo, and assay any subsidiary findings of
fact for clear error. United States v. Matos, 328 F.3d 34, 38 (1st
Cir. 2003). Thus where, as here, a defendant challenges the
factual predicate supporting the court's application of a
sentencing enhancement, "we ask only whether the court clearly
erred in finding that the government proved the disputed fact by a
preponderance of the evidence." United States v. Luciano, 414 F.3d
11This provision recently has been re-designated from U.S.S.G.
§ 2B1.1(b)(9)(A) to § 2B1.1(b)(10)(A). While the parties refer to
the provision as § 2B1.1(b)(9)(A), we will use the current
numbering to avoid the potential for confusion.
-27-
174, 180 (1st Cir. 2005) (internal citation omitted). Against this
backdrop, we assess Savarese's arguments sequentially.
i. "Relocation" enhancement
U.S.S.G. § 2B1.1(b)(10)(A) prescribes a two-level
increase if the defendant (1) relocated, or participated in
relocating, a fraudulent scheme to another jurisdiction, and (2)
did so with the intent to evade law enforcement or regulatory
officials. Savarese challenges only the first prong of this
enhancement, asserting that the present scheme was never actually
relocated because its "hub" -- encompassing both Dana Ross Studios
and the primary residences of a majority of the conspirators -- was
always firmly rooted in greater Boston. The rest of the scheme, he
explains, including the cross-jurisdictional sojourns to numerous
health clubs and gambling establishments, consisted of nothing more
than ephemeral "spokes" of the overarching plan. His argument,
though ably presented, lacks force.
Even if we were to adopt the proposed "hub and spokes"
approach to evaluating relocation under § 2B1.1(b)(10)(A), see,
e.g., United States v. Morris, 153 Fed. App'x 556, 558-59 (11th
Cir. 2005), a matter on which we reserve judgment, Savarese's
depiction of the hub in this case misses the mark. The theft and
fraudulent use of the credit cards seems to us at least as
critical, if not more so, to the operation's success than any of
its other elements; indeed, these acts comprised the heart of the
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enterprise. Their transitory nature does not undermine their
centrality to the scheme, and conversely, the fact that other
tangential elements recurred in a convenient geographic locale does
not necessarily render that location the scheme's effective "hub."
More accurately, then, the structure of the fraudulent scheme might
be best described not as a hub with spokes, as was the case in
Morris, but as two hubs adjoined; Morris is thus inapplicable on
its facts. Because at least one of those hubs moved across
jurisdictions, and did so with the primary intent to evade law
enforcement, the district court did not clearly err when it
increased Savarese's offense by two levels under
§ 2B1.1(b)(10)(A).12 Contrast Morris, 153 Fed. App'x at 558-59
(reversing the district court's finding of relocation where stolen
credits cards were fraudulently used to make purchases across
northern Georgia, but all other aspects of the scheme, including
12
To the extent that Savarese contests the second prong of the
enhancement, his challenge is unavailing. The evidence supports an
inference that the defendants avoided returning to the same health
clubs and gambling establishments not because of any shortage of
available credit cards and funds, but because the likelihood of
detection would otherwise have increased substantially. Thus, any
claim that relocation was purely a "method of operation" is
unconvincing. See, e.g., United States v. Hessa, 446 Fed. App'x
473, 475 (6th Cir. 2012) (rejecting the appellant's argument that
he was making fraudulent returns at department stores in different
jurisdictions as a "method of operation" rather than to avoid
detection); United States v. Braxton, 374 Fed. App'x 248, 250 (3d
Cir. 2010) (finding that where the appellant fraudulently purchased
gift cards in six states, the only reasonable inference to be drawn
from the relocation was an intent to avoid detection).
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the theft of licenses and credit cards, occurred in the general
Atlanta area).
ii. "Number of victims" enhancement
The sentencing judge likewise did not clearly err in
determining that a two-level adjustment was warranted, under
U.S.S.G. § 2B1.1(b)(2)(A), for an offense impacting at least ten
victims -- specifically, the card-issuing financial institutions
that were swindled by the fraudulent transactions.13
In order to apply such an enhancement, the district court
must find, by a preponderance of the evidence, that ten or more
victims suffered an actual loss. United States v. Sharapka, 526
F.3d 58, 61 (1st Cir. 2008). Here, the relevant evidence
established the following: that the appellants, along with their
co-conspirators, executed fraudulent transactions with 107 credit
cards, all of which resulted in actual loss to the financial
institutions that issued the cards; that, of those 107 cards, most
13
A "victim," as relevant here, means "any person who
sustained any part of the actual loss determined under
[§ 2B1.1(b)(1)]," and "actual loss" is defined as "the reasonably
foreseeable pecuniary harm that resulted from the offense."
§ 2B1.1, cmt. n. 1, n. 3(A)(i). The government does not propose --
and we have yet to decide in this circuit -- whether the individual
cardholders might also constitute "victims" under the language of
§ 2B1.1 where, as here, the unauthorized charges are reversed
before they are required to make any payments. See United States
v. Stepanian, 570 F.3d 51, 56 n.5 (1st Cir. 2009) (declining to
decide the issue). Because the parties have not raised or briefed
the issue, we leave it for another day, and assume that the class
of putative victims in this case is comprised only of the financial
institutions that issued the stolen cards and paid the unauthorized
charges.
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of which were destroyed after use, only twenty-three were able to
be traced to their issuers; that those twenty-three cards were
issued by five different institutions; and that a sixth issuer
(American Express, which issues cards directly and through banks)
also suffered incidental pecuniary harm at the hands of the
appellants.
Drawing from that evidence, and accounting for the vast
number of credit card issuers nationally, the district court deemed
it more likely than not that, among the remaining eighty-four
untraceable cards, there were at least four additional issuing
institutions. Savarese frames this finding as an impermissible
inferential leap; we think it a reasonable extrapolation supported
by a preponderance of the evidence. Ideally, of course, the
sentencing court would have at its disposal a list that concretely
identifies every individual victim for whom there was an actual,
attributable loss. But under the present circumstances, where the
government's inability to fully populate such a list stems largely
from the defendant's contemporaneous acts of concealment, it was
not clear error for the court to reasonably deduce the number of
victims from reliable evidence.14
14
To cinch matters, at sentencing Savarese mentioned that a
small number of credit card issuers dominate the market. On
appeal, he fleshes the argument out by offering a chart purporting
to show that ten issuers control 88 per cent of the market, five of
which account for an 80 per cent share. Before the sentencing
judge, five issuers were represented among the 23 accounts for
which the issuers could be identified. Of these, only four are on
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B. James DeSimone
We turn, finally, to the claims of appellant James
DeSimone. For his role in the credit card scheme, DeSimone pled
guilty to conspiracy, access device fraud, and several counts of
aggravated identity theft. He appeals only his sentence, arguing
-- as did Savarese -- that the district court erroneously imposed
two unwarranted guideline enhancements.
The district court set the defendant's BOL at 6, granted
a two-level reduction for acceptance of responsibility, U.S.S.G.
§ 3E1.1, and made a series of upward adjustments almost identical
to those applied to Savarese: fourteen levels for causing an amount
of loss between $400,000 and $1 million, § 2B1.1(b)(1)(H); two
levels for the number of victims, § 2B1.1(b)(2)(A)(i); two levels
for relocating the fraudulent scheme, § 2B1.1(b)(10)(A); and two
levels pursuant to § 3B1.1(c) for managing or supervising the
criminal enterprise. These and other findings yielded a GSR of 81
to 95 months, and the court, again opting for the low end of the
range, settled on a term of 81 months' imprisonment.
the appellant's proffered list of dominant issuers. One is not,
and there was reliable direct evidence of a sixth issuer, American
Express, a victim not represented by any of the 107 credit cards
associated with the cash advances. According to Savarese's
proffer, two other dominant issuers not represented among the 23
accounts hold a 32 per cent share of the market. With these eight
issuers taken into consideration, the sentencing judge did not
clearly err in concluding, based upon the available information,
that at least two more credit card issuers were harmed by the
scheme.
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DeSimone now advances two principal claims of error.
First, he posits that the sentencing court attributed to him an
excessive amount of pecuniary loss, maintaining that the sum total
of cash advances taken after he joined the conspiracy was less than
$400,000. Second, he insists that the government overstated his
role in the conspiracy, and that he never exerted sufficient
control over any of his cohorts to justify a managerial
enhancement. We review these fact-bound determinations for clear
error, which requires that we uphold the sentence absent a definite
and firm conviction, based on the entirety of the evidence, that a
mistake has been made. United States v. Rivera Calderón, 578 F.3d
78, 99-100 (1st Cir. 2009).
1. "Amount of loss" enhancement
We begin with DeSimone's argument that a substantial
portion of the $430,000 in losses was accumulated prior to his
joining the illegal scheme, and therefore should not be considered
in assigning the proper enhancement under U.S.S.G. § 2B1.1(b)(1).
Generally, in identifying relevant conduct under the
sentencing guidelines, a defendant engaging in jointly undertaken
criminal activity is accountable for all reasonably foreseeable
acts performed in furtherance of that activity. U.S.S.G. § 1B1.3.
Such liability ordinarily extends only to harm that occurs after a
defendant actually joins the conspiracy; with respect to
sentencing, a late-joining conspirator is not usually responsible
-33-
for pecuniary loss incurred prior to his joinder, absent some post-
hoc act of facilitation or concealment. See United States v.
Rodríguez-González, 433 F.3d 165, 168 (1st Cir. 2005); U.S.S.G.
§ 1B1.3, cmt. n.2 ("A defendant's relevant conduct does not include
the conduct of members of a conspiracy prior to the defendant's
joining the conspiracy, even if the defendant knows of that
conduct . . . ."). DeSimone argues that discerning the date that
he entered the conspiracy, and thereby appraising the amount of
reasonably foreseeable loss for which he is responsible, is
especially important because the contested loss amounts could mean
the difference between a fourteen-level increase (if the loss is
valuated above $400,000) and a twelve-level increase (if the
valuation is below $400,000). See U.S.S.G. § 2B1.1(b)(G)-(H).
At sentencing, there was competing evidence supporting
different possible dates when DeSimone joined the conspiracy.
DeSimone, corroborated by trial testimony from his co-conspirator
(and brother) Donald Jr., avowed that he did not participate in the
fraud scheme until at least April 1, 2006, after which the
cumulative amount of cash advances was less than $400,000. Other
evidence, including false identifications and cash advance checks,
indicated that he was actively involved in the conspiracy at least
as early as January 2006, which would place the attributable-loss
-34-
figure well above the $400,000 threshold.15 Although the evidence
easily supports a determination that DeSimone participated by
January at the latest, the sentencing judge did not make an express
finding as to the precise time that he joined the conspiracy.
Instead, in the court's pronouncement of sentence, it found that:
[w]ith respect to . . . the loss figure, I
agree with the probation officer, is a
conservative one and fairly, under the law of
conspiracy, despite some disagreement about
exactly when Mr. DeSimone entered the
conspiracy, nonetheless, the full amount of
the loss, I believe, is fairly attributable to
him as a very active member of the conspiracy,
whatever the exact dates of entry and exit may
have been.
DeSimone asserts that attributing the entire loss amount,
based solely on his perceived level of activity within the criminal
enterprise, and ignoring when he joined the conspiracy, is an
error of law under our precedent. See Rodríguez-González, 433 F.3d
at 168. If, as DeSimone claims, he did not join the conspiracy
until April 1, 2006, the total loss would amount to less than
$400,000, and the resulting upward adjustment would be only twelve
levels, rather than fourteen. See U.S.S.G. § 2B1.1(b)(1).
If the judge's comments reflected an understanding that
the defendant was accountable for losses attributable to the
15
According to government exhibit 35B, the amount of loss that
was attributable to cash advance transactions incurred after
January 1, 2006 was approximately $412,000, whereas the amount of
loss attributable to cash advances occurring after April 1, 2006
was only $367,000.
-35-
conspiracy prior to his joining it, that understanding was
erroneous. The government counters that, by attributing over
$400,000 in losses to DeSimone, the court implicitly found that he
must have joined the conspiracy at least by January 2006. There is
more than one way to read the district court's statement relating
to the losses for which DeSimone was responsible. As it happens,
we needn't firmly resolve this dispute, because the government
offers a persuasive alternative argument.
We have previously held that where a district court's
impetus for applying a sentence enhancement constitutes an error of
law, we may still uphold the enhancement if the court also offered
an alternative explanation for which there is sufficient
evidentiary support. See United States v. Pizarro-Berríos, 448
F.3d 1, 7-8 (1st Cir. 2006). Here, the district court found, and
the government reiterates on appeal, that the full loss figure --
approximately $430,000 -- is a "conservative" one, given the many
undocumented charges incurred with stolen American Express cards
and other stolen credit cards for flights, meals, hotels, and other
incidental costs associated with the scheme. That assessment was
explicitly offered by the probation officer in the presentence
report and expressly adopted by the sentencing judge, who had
presided over Savarese's trial and had heard the evidence himself.
The court supportably found that DeSimone was "a very active"
participant in the conspiracy. Because DeSimone is clearly
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accountable for cash advance losses of no less than $367,000, see
note 15 supra, the court's determination that the two-level
enhancement applies is adequately supported by the record, so long
as more than $33,000 in incidental travel charges were incurred
from April 2006 until the enterprise was shut down seventeen months
later. Nearly 100 cash advance transactions took place during that
time in far-flung venues across the United States, associated with
numerous multi-day trips. An estimate of additional credit card
use for flight, hotel, meal and other incidental charges in the
modest amount required to exceed the $400,000 threshold was
sufficiently supported by the testimony and other evidence, and the
defendant offered no evidence in opposition. There was thus no
clear error in the loss amount finding. See U.S.S.G. § 2B1.1, cmt.
n. 3 ("The court need only make a reasonable estimate of the loss.
The sentencing judge is in a unique position to assess the evidence
and estimate the loss based upon that evidence."); Sharapka, 526
F.3d at 61 (explaining that "deference is owed to a sentencing
judge's determination of the loss," in part because "[t]he court
need only make a reasonable estimate of the loss").
2. "Managerial role" enhancement
In his second and final point on appeal, DeSimone
contends, as he did in objections to the PSR and at sentencing,
that he never maintained supervisory authority over any of his
fellow conspirators. After thoroughly reviewing the record, we
-37-
conclude that the district court did not clearly err in determining
otherwise.
Under U.S.S.G. § 3B1.1(c), a defendant's BOL may be
augmented by two levels if the underlying criminal activity
involved at least two, but fewer than five complicit individuals
(including the defendant), and the defendant, "in committing the
offense, . . . exercised control over, managed, organized, or
superintended the activities of at least one other participant."
United States v. Al-Rikabi, 606 F.3d 11, 14 (1st Cir. 2010). In
ascertaining whether a defendant played a supervisory role in the
offense, courts are encouraged to consider:
the exercise of decision making authority, the
nature of participation in the commission of
the offense, the recruitment of accomplices,
the claimed right to a larger share of the
fruits of the crime, the degree of
participation in planning or organizing the
offense, the nature and scope of the illegal
activity, and the degree of control and
authority exercised over others.
U.S.S.G. § 3B1.1, cmt. n. 4. Although, as the district court
acknowledged, DeSimone was by no means the mastermind of the
operation, that is not the standard by which "managerial" status is
governed. A defendant's exhibitions of authority need be neither
supreme nor continuous; we have even held that, in some
circumstances, the government need only show by a preponderance of
the evidence "that the defendant exercised authority or control
over another participant on one occasion." United States v.
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García-Morales, 382 F.3d 12, 20 (1st Cir. 2004). The evidence is
sufficient to support a managerial enhancement here.
To begin, the evidence clearly establishes that DeSimone
was primarily responsible for recruiting co-defendant Richard
Regnetta into the conspiracy. This conduct, by itself, constitutes
a "managerial" function under § 3B1.1. United States v. Joyce, 70
F.3d 679, 683 (1st Cir. 1995). DeSimone's contention that Regnetta
practically begged for his permission to participate, and therefore
that he did not actively "recruit" Regnetta in the ordinary sense,
is of no moment; in gauging the applicability of § 3B1.1,
recruitment is not about the intensity or direction of pursuit, but
the demonstration of individual authority necessary to bring a new
member into the fold. See, e.g., United States v. Rivera, 429 Fed.
App'x 938, 942 (11th Cir. 2011) (upholding application of § 3B1.1
in part because the appellant "took on a [co-conspirator] as a
recruit when the [co-conspirator] asked to join the operation.").
Whether Regnetta initiated the recruitment or vice versa, it was
ultimately DeSimone who authorized Regnetta's participation in the
scheme, and it is that manifestation of authority which infers a
position of leadership within the organization. See U.S.S.G.
§ 3B1.1, cmt. n. 4.
There is also ample evidence that DeSimone (1) controlled
the flow of information to his Boston-based associates,
(2) instructed Regnetta, on at least one occasion, exactly what to
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do when they arrived at an Arkansas racetrack, and (3) dictated the
distribution of false identifications to the other members of the
conspiracy. In response to these allegations, DeSimone claims that
he was merely transmitting orders from Savarese. He had no real
discretion, he argues, and was nothing more than an instructive
intermediary. Supervision in the context of § 3B1.1, however,
"often consists of transmitting directives from above. Low-level
supervisors are themselves closely supervised and thus have little
discretion." United States v. Figueroa, 2012 WL 2086610, at *4
(7th Cir. 2012); see also United States v. Goldberg, 105 F.3d 770,
777 (1st Cir. 1997) ("[A] defendant need not be at the top of a
criminal scheme to be a manager or supervisor."). Accordingly, the
fact that DeSimone acted as a relay for much of the information
does not preclude the application of § 3B1.1.
We do not discount the presence of certain countervailing
facts -- to wit, that Savarese, and not DeSimone, was the true
kingpin of the conspiracy; that DeSimone did not collect a
disproportionate share of the proceeds; and that two of the co-
conspirators were members of DeSimone's family (and, thus, less
likely to consider themselves subservient). Yet, even in light of
these facts, the record in its entirety more than adequately
supports the inference that DeSimone, by the sum of his activities,
exercised a sufficient level of authority within the conspiracy.
As a consequence, we can find no basis for assigning error, clear
-40-
or otherwise, to the district court's application of a two-level
aggravating role adjustment in this case.16
III. Conclusion
For the foregoing reasons, Savarese's conviction, and
Savarese's and DeSimone's sentences, are affirmed.
16
In fact, DeSimone was fortunate to receive only a two-level
enhancement. As a manager or supervisor in an enterprise
comprising five or more participants, he could have received the
three-level enhancement in § 3B1.1(b). See United States v. Cruz-
Rodríguez, 541 F.3d 19, 33 (1st Cir. 2008) ("A[] [three-level]
upward adjustment is available under [§] 3B1.1(b) if (1) the
criminal scheme involved five or more participants (including the
defendant) or was otherwise extensive and (2) the defendant was
responsible for managing or supervising the activities of at least
one of these participants.").
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