United States v. Pasquale Stiso

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3107
_____________
UNITED STATES OF AMERICA
v.
PASQUALE STISO,
a/k/a Pat Stiso
Pasquale Stiso,
Appellant
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. No. 2-14-cr-00484-002)
District Judge: Honorable William J. Martini
_______________
Submitted Under Third Circuit LAR 34.1(a)
September 7, 2017
Before: CHAGARES, JORDAN, and HARDIMAN, Circuit Judges.
(Filed: September 8, 2017)
_______________
OPINION*
_______________
*
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
On November 24, 2015, following a jury trial, Pasquale Stiso was convicted of
wire fraud, money laundering, and conspiracy. He was sentenced to 43 months’
imprisonment, to be followed by a three-year term of supervised release, and he was
ordered to pay $460,000 in restitution. Stiso now appeals his conviction and sentence,
arguing that the District Court erred in denying his motion for acquittal, in denying a
motion to suppress the fruits of a wiretap warrant, and in applying the 2012 version of the
sentencing guidelines, rather than the 2015 version. He further argues that the District
Court committed plain error in failing to recognize eleven instances of prosecutorial
misconduct. For the reasons that follow, we will affirm Stiso’s conviction but will vacate
his sentence and remand for further proceedings.
I. BACKGROUND
Stiso and his friend Paul Mancuso had a gambling problem. The problem was
they were bad at gambling. Between 2010 and 2013, they racked up over $500,000 in
gambling debts to Easy Play, a gambling website.1 In 2011, Stiso started working with
Mancuso to defraud several investors to raise money to pay off their debts.2 All told,
1
Mancuso was responsible for nearly all of the debt. However, because Stiso
“vouched” for Mancuso, he was also held responsible. (App. 969 (“[Stiso] definitely told
[Easy Play] that [Mancuso] is good, and he’ll make sure that we get all our money. ... He
vouched for the guy. So in this kind of a world when you bring a guy in, you’re
responsible for that guy if that guy turns bad.”).)
2
Mancuso had a history of perpetrating fraudulent schemes dating back to 2009.
2
Stiso and Mancuso defrauded five victims: Mark and Patricia Mezzancello, Ira
Saferstein, and Robert and Richard Persico.
Stiso and Mancuso defrauded the Mezzancellos through a scheme involving
tickets for sporting events. After meeting the Mezzancellos through an unrelated
business venture, Mancuso contacted them claiming to have access to cheap sports tickets
that, if purchased in bulk, could be resold for profit. Mancuso promised a two-to-one
return on their money, and Stiso encouraged investment in the operation, telling the
Mezzancellos that everyone makes money working with Mancuso and assuring them that
Mancuso was legitimate. Because of their conversations with Stiso and Mancuso, the
Mezzancellos invested $100,000 in Giants tickets on September 6, 2012. Based on
similar assertions from Mancuso and Stiso, real estate development project, $100,000 in
Yankees tickets,3 and $100,000 in Justin Bieber concert tickets. As it turned out, none of
the money they had “invested” was spent on real estate projects, concert tickets, or sports
tickets. Instead, the money was used to pay Mancuso’s and Stiso’s personal expenses,
including gambling debts.
As time passed and the Mezzancellos did not see any return on their investments,
they started to worry. They called Stiso to find out what was happening, and Stiso
assured them that their investments were legitimate and that they would see their returns.
Eventually, Mancuso and Stiso met with the Mezzancello’s attorney and Mancuso signed
3
The Mezzancellos ended up wiring only $75,000 of the $100,000 for the
Yankees portion of the scam. Mancuso and Stiso offered to roll the first $20,000 in
“returns” from the Giants project into the Yankees investment, and added an additional
$5,000 “credit” for combining the transactions.
3
a promissory note (to the benefit of the Mezzancellos) in the amount of $587,000. Stiso
continued to assure the Mezzancellos that they would be repaid. The Mezzancellos never
recovered their investment.
The facts are similar with respect to Ira Saferstein. After meeting with Mancuso,
Saferstein agreed to invest $100,000 in a ticket scheme. He memorialized the investment
with a promissory note. Contrary to Saferstein’s expectations and Mancuso’s description
of the investment plan, Mancuso immediately transferred $12,000 (of the $100,000) to
Stiso’s personal bank account. Stiso later met with Saferstein and assured him that he
would be able to recover his investment. In fact, the investments were never repaid.
Finally, Stiso and Mancuso defrauded Robert and Richard Persico. Stiso and
Mancuso communicated with Richard Mach, the CFO of the Persicos’ company, to
encourage investment in an apartment complex. Based on Mancuso’s assurances, Mach,
acting on behalf of the Persicos, invested $100,000 in that real estate venture. As with
the Mezzancellos, Mancuso also persuaded Mach to invest $60,000 in ticket sales. When
Mach and the Persicos grew concerned that they were not seeing a return on their
investment, Stiso assured Mach that they would see a return and advised him that he need
not worry. As with the other schemes, the Persicos’ money was not used to purchase
tickets or real estate, but was instead transferred, at least in part, to Stiso’s personal
account and was used to pay personal expenses.
In December 2011, the FBI became aware of Mancuso’s fraudulent activities.
After conducting an investigation, it sought and obtained a warrant for a wiretap on
Mancuso’s telephones. The wiretap indicated that Stiso and Mancuso owed large
4
gambling debts to Easy Play, that Stiso and Mancuso were afraid of Easy Play’s bookies,
and that Stiso worked with Mancuso to perpetuate the fraudulent schemes just described.
Importantly for present purposes, Stiso was recorded admitting to his involvement with
Mancuso’s debts and fraudulent schemes, saying in one call with Mancuso, “I’m
involved in these things, I’m involved [in] your decisions, I’m involved in everything
that you decide that you do[.]” (Supp. App. 56.; see also Supp. App. 65 (“[Y]ou don’t
realize how valuable I could, I am to this whole f***ing thing[.]”).)
On October 14, 2015, Stiso and Mancuso were charged with one count of
conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349, six counts of wire
fraud in violation of 18 U.S.C. § 1343, and three counts of money laundering in violation
of 18 U.S.C. § 1957. A jury later convicted Stiso on all counts, and this appeal followed.
II. DISCUSSION4
A. Motion to Suppress
Stiso argues that the District Court erred when it denied his motion to suppress the
evidence obtained through the wiretap on Mancuso’s telephone. The crux of his
argument is that the government omitted important information in its application for the
wiretap warrant. He says that “[t]he [g]overnment’s affidavit in support of the wiretap ...
failed to inform the Court that ... [Mancuso] was a source for the [g]overnment at the
time the affidavit was submitted.” (Op. Br. 16.) Stiso further contends that “Mancuso’s
status as a confidential informant abrogated the necessity of the [wiretap]” and that “the
4
The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291.
5
District Judge would not have authorized the [wiretap] had she known the full extent of
Mancuso’s cooperation[.]” (Id. at 17.)
The rule governing situations involving allegedly misleading search warrant
affidavits was articulated by the Supreme Court in Franks v. Delaware, 438
U.S. 154 (1978). There the Court held that where the defendant proves by a
preponderance of the evidence “that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the
affiant in the warrant affidavit, and [that] the allegedly false statement is
necessary to the finding of probable cause, the Fourth Amendment requires
that ... the fruits of the search [must be] excluded ... .”
United States v. Frost, 999 F.2d 737, 742-43 (3d Cir. 1993) (quoting Franks, 438 U.S. at
155-56) (first three alterations in original).
The procedural mechanism used to “challenge the truthfulness of facts alleged in
support of a search-warrant application” is known as a Franks hearing. United States v.
Pavulak, 700 F.3d 651, 665 (3d Cir. 2012).
The right to a Franks hearing is not absolute ... . The defendant must first
(1) make a “substantial preliminary showing” that the affiant knowingly or
recklessly included a false statement in or omitted facts from the affidavit,
and (2) demonstrate that the false statement or [omission of facts] are
“necessary to the finding of probable cause.”
Id. (quoting United States v. Yusuf, 461 F.3d 374, 383-84 (3d Cir. 2006)). The District
Court denied Stiso’s request for a Franks hearing and denied his motion to suppress.
“We have not yet identified the standard of review for a district court’s denial of a
request for a Franks hearing, and our sister circuits are divided on the correct approach.”
Id. at 665 n.10 (noting that the circuit courts disagree as to whether review is for clear
error, or whether to apply a mixed standard of review in which legal determinations are
reviewed de novo and factual determinations are reviewed for clear error). Once again,
6
we need not resolve this question, as Stiso’s arguments would fail regardless of the
standard of review.
The District Court was correct to deny Stiso’s request for a Franks hearing. First,
his arguments lack factual support in the record. While he claims that Mancuso “was a
source for the [g]overnment at the time the affidavit was submitted[,]” (Op. Br. 16) he
does not identify any part of the record supporting that claim. The District Court
recognized as much, noting that “the record lacks any affidavit or declaration from
Mancuso concerning his cooperation.” (App. 37.) In order to make the “substantial
preliminary showing” needed to obtain a Franks hearing, a defendant “cannot rest on
mere conclusory allegations ... but rather must present an offer of proof contradicting the
affidavit, including materials such as sworn affidavits or otherwise reliable statements
from witnesses.” Yusuf, 461 F.3d at 383 n.8.
But even if Stiso were able to show that the affidavit was somehow incorrect or
incomplete, he would still not be entitled to a Franks hearing because he has not provided
anything to show that the supposed problems with the affidavit were the product of
knowing falsehoods or a reckless disregard for the truth. Id. at 383. Finally, Stiso’s
argument fails because he has not demonstrated how Mancuso’s status as an informant, if
disclosed, would have caused the magistrate judge to deny the wiretap warrant. See id.(explaining that the defendant must show that the misstatement or omission was material
or necessary to the probable cause determination). The fact that Mancuso was an FBI
informant would not change the fact that Mancuso was suspected of fraud, nor would it
change the fact that the investigators did not want to alert Mancuso about the ongoing
7
investigation. The District Court reached the same conclusion, stating that “Stiso
provides no explanation for why [Mancuso’s status as an informant] is relevant to the
finding of probable cause.” (App. 37.) We agree. The fact that Stiso was not able to
satisfy the preliminary requirements to obtain a Franks hearing necessarily means that he
did not satisfy the more rigorous requirements needed to suppress the evidence under
Franks. See Franks, 438 U.S. at 155-56 (explaining that, to obtain a hearing, a defendant
need only make a “substantial preliminary showing” that a warrant was improperly
obtained, whereas to prevail on the motion, the defendant must make the same showing
by a preponderance of the evidence). We thus conclude that the District Court did not err
when it denied Stiso’s request to suppress the wiretap evidence.5
B. Discovery
Stiso argues that the District Court erred when it denied his request for discovery
relating to Mancuso’s confidential informant file. Stiso wanted to use the file to show
that Mancuso perpetrated the fraudulent scheme at the behest of the FBI or that Mancuso
deceived both Stiso and the FBI when perpetrating the fraudulent scheme.
5
Stiso also argues that the wiretap evidence should be suppressed because the
wiretap was unnecessary. That argument fails to address the substance of the affidavit
filed in support of the warrant. The affidavit explains that a wiretap was needed to
accomplish a broad array of investigative goals, including discovering the full scope of
the fraudulent scheme, obtaining sufficient admissible evidence of the scheme, and
identifying the location and nature of records and documents memorializing the scheme.
Stiso’s mere assertion that the wiretap was unnecessary is insufficient to counter that
explanation. That is especially true given that the government “need only lay a factual
predicate” explaining why a wiretap is necessary and that the reasoning of an affidavit
should be evaluated “in a practical and common sense fashion.” United States v. Bailey,
840 F.3d 99, 114 (3d Cir. 2016) (internal quotation marks omitted).
8
We review for abuse of discretion the District Court’s denial of a request for
discovery. United States v. Hedaithy, 392 F.3d 580, 605-06 (3d Cir. 2004). “An abuse of
discretion exists where the district court’s decision rests upon a clearly erroneous finding
of fact, an errant conclusion of law, or an improper application of law to fact.” Id.(quotation omitted). Speaking generally, “[i]n a criminal trial, the government is subject
to three sets of disclosure obligations[.]” United States v. Maury, 695 F.3d 227, 247 (3d
Cir. 2012). First, under the Jencks Act, defendants are entitled to a copy of “any
statement ... of the witness in the possession of the United States which relates to the
subject matter as to which the witness has testified.” Id. (quoting 18 U.S.C. § 3500(b)).
The government is only required to produce the statement “[a]fter a witness called by the
United States has testified on direct examination[.]” 18 U.S.C. § 3500(b). Second,
Federal Rule of Criminal Procedure 16 requires the government to disclose, upon request,
certain oral or written statements made by the defendant, as well as written records or
recordings of statements made by the defendant during an interrogation or before a grand
jury. Maury, 695 F.3d at 248 (citing Fed. R. Crim. P. 16(a)(1)). Additionally, the
government must allow the defendant to review a variety of documents and tangible
objects if “the item is material to preparing the defense[,]” “the government intends to
use the item in its case-in-chief[,]” or “the item was obtained from or belongs to the
defendant.” Fed. R. Crim. P. 16(a)(1)(E)).
Finally, independent of [the first two] obligations, under Brady v. Maryland,
a prosecutor has an obligation to disclose evidence favorable to an accused
individual so long as it is material either to guilt or to punishment. ... The
prosecution must also disclose evidence that goes to the credibility of crucial
prosecution witnesses. Referred to as Giglio material, this evidence is a
9
subset of Brady material insofar as it addresses situations in which certain
evidence about a witness’s credibility or motivation to testify exists, and
where the reliability of a given witness may well be determinative of guilt or
innocence.
Maury, 695 F.3d at 249 (internal quotation marks and citations omitted).
Stiso was not entitled to discovery because the information he sought did not fit
into any of those categories of discoverable information. The Jencks Act did not apply
because Stiso’s discovery requests were made before the trial started and, in any case,
Mancuso’s informant record would not qualify as a “statement” under the Act. See 18
U.S.C. § 3500(e) (defining a “statement” as a written statement made by a witness, a
transcription of an oral statement, or “a statement, however taken or recorded ... made by
said witness to a grand jury”). Stiso was also not entitled to discovery under Rule 16,
since Mancuso’s informant file was not a statement made by Stiso, the government did
not obtain the file from Stiso, the government did not intend to rely on Mancuso’s status
as an informant during its case-in-chief, and the file did not implicate Stiso’s defense.
See Fed. R. Crim. P. 16. Finally, Stiso was not entitled to discovery because Mancuso’s
informant file was not Brady material. A defendant may not obtain discovery simply by
asserting that the desired materials contain exculpatory evidence. See United States v.
Ramos, 27 F.3d 65, 71 (3d Cir. 1994) (“We think it unwise to infer the existence of Brady
material based upon speculation alone.”). “[U]nless a defendant is able to raise at least a
colorable claim that [the desired information] contained evidence favorable to [him] ... no
constitutional error or violation of due process will have been established.” Id. (quoting
United States v. Griffin, 659 F.2d 932, 939 (9th Cir. 1981)) (third alteration in Ramos).
10
In opposing Stiso’s request for discovery, the government assured the Court that it had
“gone through and fully reviewed” Mancuso’s informant file and concluded that the file
did not contain any Brady material and that there was “nothing implicating Mr. Stiso’s
defense[.]” (App. 129-30.) Stiso has not identified any basis, apart from mere
speculation, on which we can conclude that the requested materials contain exculpatory
information.6 Accordingly, we will affirm the District Court on this issue.
C. Prosecutorial Misconduct
Stiso argues that, over the course of his trial, the prosecution engaged in 11
instances of prosecutorial misconduct. He maintains that, viewed instance-by-instance or
collectively, the misconduct he cites should result in a reversal of his conviction.
Because none of his objections were adequately preserved, we review each for plain
error.7 United States v. Olano, 507 U.S. 725, 731-32 (1993) (discussing Fed. R. Crim. P.
52).
6
Stiso does not argue (and did not argue below) that Mancuso’s informant file
contains Giglio information, nor has he suggested that the contents of the file could be
used to challenge the credibility of a government witness. See Giglio v. United States,
405 U.S. 150, 154 (1972). We thus conclude that there is no discovery problem under
either Brady or Giglio.
7
For plain error to exist, “[t]here must be an ‘error’ that is ‘plain’ and that
‘affect[s] substantial rights.’” Olano, 507 U.S. at 732 (alteration in original) (quoting
Fed. R. Crim. P. 52(b)). An error is “plain” if it is “clear” or “obvious.” Id. at 734.
“[A]n error will be deemed to have ‘affected substantial rights’ where it is prejudicial” –
that is, where it has “affected the outcome of the District Court proceedings.” United
States v. Turcks, 41 F.3d 893, 897 (3d Cir. 1994) (quoting Olano, 507 U.S. at 734).
Finally, even if we find plain error, we do not correct the error unless it “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.” Olano, 507
U.S. at 732 (alteration in original) (quoting United States v. Young, 470 U.S. 1, 15
(1985)).
11
The alleged misconduct is laid out in what is roughly an ascending order of
seriousness. The first six of Stiso’s objections involve claims that the government
mischaracterized evidence during closing arguments. Each fails under plain error review.
At the start, we note that Stiso is fighting an uphill battle on this issue. Prosecutors are
“entitled to considerable latitude in summation to argue the evidence and any reasonable
inferences that can be drawn from that evidence.” United States v. Werme, 939 F.2d 108,
117 (3d Cir. 1991) (citing United States v. Scarfo, 685 F.2d 842, 849 (3d Cir. 1982)); see
also United States v. Lee, 612 F.3d 170, 194 (3d Cir. 2010) (same). “[T]he appropriate
inquiry is whether such remarks, in the context of the entire trial, were sufficiently
prejudicial to violate the defendant’s due process rights.” Werme, 939 F.2d at 117(quoting Scarfo, 685 F.2d at 849).
Stiso’s first objection relates to the government’s characterization of his bookie,
John DiGiacomo. DiGiacomo was a government witness who testified about Stiso’s and
Mancuso’s gambling debts. During closing arguments, when discussing motive, the
prosecutor stated:
[T]hey were up to their eyeballs in debt to John DiGiacomo and Robert
Wagner, and these are men that you can’t be indebted to. You saw John
DiGiacomo for yourself. You heard him say he doesn’t go straight to
violence, but I think we all know what happens if you don’t pay him: They
don’t file a lawsuit. Okay? They don’t foreclose, not in the traditional sense
anyway. I mean, they may foreclose on something else, but it’s not going to
be your mortgage.
(App. 1237.) Stiso argues that the government’s characterization was directly
contradicted by DiGiacomo’s trial testimony. During DiGiacomo’s direct examination,
the government asked DiGiacomo whether he used violence to collect on his debts:
12
Q: So if you have a gambler that’s not paying you, do you try to intimidate
the gambler or scare the gambler? What do you do to get that money?
A: Well, I try to do it in a tactful way. The violence doesn’t work, so you try
to use your brain and to come up to make the guy pay the money.
Q: And why do you try to do that?
A: Because if you beat the guy up he’s not going to pay you anyway.”
(App. 963.)
The problem with Stiso’s arguments is that the government’s characterization of
DiGiacomo was supported by other evidence in the record. In a wiretapped conversation,
DiGiacomo ominously warned Stiso and Mancuso that if they did not pay their debts “it’s
getting handled[.]” (SA 23.) In other recorded calls, Stiso expressed his belief that the
debt collectors “chop people up” (SA 36) and that “[t]his is not money anymore ... it’s
safety [and] security[.]” (SA 67.) In light of those statements, the government’s
characterization of DiGiacomo was not unreasonable. The District Court’s allowance of
the statement was not error, let alone plain error.
Stiso’s second objection relates to the government’s discussion of phone logs
during closing arguments. While the phone logs had not been discussed during either
party’s case-in-chief, both sides had stipulated to the logs’ admission into evidence. The
logs showed a series of calls between Stiso and Mancuso, Stiso and Wagner (to whom he
owed money), and Stiso and his bank. The government cross-referenced the dates from
the phone logs with the dates of the fraudulent wire transfers to support its argument that
“[Stiso] knew the money was coming” and to show that Stiso had purposefully deceived
Mancuso’s investors. (App. 1308.) Stiso now objects that the government’s description
13
of the phone logs was improper because the prosecutor stated that he “did an analysis of
[the logs].” (App. 1303.) Aside from the unsupported assertion that the government
“improperly insert[ed] [its] own facts and commentary into the record[,]” (Op. Br. 32)
Stiso does not explain why the government’s argument was improper. When the
comments are viewed in light of the record as a whole, there is no error. The government
presented the stipulated phone logs and explained how they were consistent with its
theory of the case. That is not a basis for reversal.
Stiso’s third argument relates to the government’s characterization of the
promissory note executed by Mancuso and the Mezzancellos. During closing argument,
the government stated: “Don’t let them play the unwitting dupe, ladies and gentlemen.
The money trail shows he knew ... . They promise[d] repayment to the Mezzancellos in
the form of a promissory note and the Matawan property.” (App. 1230.) Stiso takes
issue with the phrase “They promise[d] repayment ... .” (Id. (emphasis added).) Stiso
argues that the government’s characterization of the evidence is directly at odds with trial
testimony, which made clear that Stiso was not a party to the promissory note. During
the trial, Mezzancello confirmed that “Stiso’s name appears nowhere on [the] promissory
note[,]” that Stiso did not sign the note, and that no one expected him to be subject to the
note. (App. 520-21.) While the trial testimony makes it clear that Stiso did not sign the
promissory note, that does not, in and of itself, show that the government’s description of
the evidence was incorrect. The government did not claim that Stiso signed or was a
party to the promissory note. Instead, it simply stated that Stiso and Mancusso (“they”)
“promise[d] repayment ... in the form of a promissory note[.]” (App. 1230.) Given that
14
the government’s theory was that Stiso and Mancusso worked together to perpetuate their
fraud, it is not a surprise that the government would also argue that they were both
involved in deferring the day of reckoning with a promissory note. The fact that
Mezzancello was not aware of Stiso’s involvement is not inconsistent with that theory.
The Court’s allowance of the government’s description of the promissory note was not
plain error.
Stiso’s fourth complaint is that the government misrepresented the evidence when
it stated that “all the victims testified that they did not authorize their money to go to
anything but investments.” (Op. Br. 35 (quoting App. 1214) (emphasis omitted).) Stiso
argues that that statement was incorrect because two of the victims, Richard and Robert
Persico did not testify at the trial. Instead of calling the Persicos, the government called
Richard Mach, the Persicos’ CFO. Mach explained that he was responsible for
transferring the Persicos’ investment funds, that he had transferred the funds at issue in
this case, and that, as far as he knew, those funds were only to be used as investments.
Because Mach represented the Persicos and the Persicos’ interests, it was not
unreasonable for the government to characterize Mach’s voice as that of his employers’.
There is no plain error here.
Stiso’s fifth argument is that the government misrepresented evidence by arguing
that he knew about one of Mancuso’s previous victims (Giovanni Manna) but failed to
warn future victims. That complaint fails because there is evidence in the record
supporting the statement. During the trial, one of the government’s witness testified that
15
he had told Stiso about Giovanni Manna’s experience with Mancuso.8 Once again, there
is no plain error.
Alleged misconduct number six relates to the government’s discussion of a
notebook that had been recovered from Stiso’s home. Despite direct evidence to the
contrary, the government claimed that the notebook was “in [Stiso’s] own handwriting,
and that’s proof positive that he knew all along these weren’t loans.” (App. 1302; App.
1067-68 (FBI agent explicitly stating that there was no indication whose handwriting
appeared in the notebook).) The government concedes that the prosecutor’s remarks
were in error but argues that the error did not cause any prejudice. We agree. First, any
prejudicial effect was likely cured, either by the defense’s rebuttal summation, or by the
Court’s jury instructions. During its rebuttal statement, Stiso’s counsel pointed out the
obvious flaw in the government’s argument, reminding the jury that “[w]e don’t have any
proof” that the notebook was in Stiso’s handwriting. (App. 1281.) Additionally, the jury
was reminded, both before and after closing statements, that the lawyers’ statements
during closing arguments were not evidence and that they were only to consider the
evidence presented during the trial. Given the state of this record, that instruction renders
the prosecutor’s misstep harmless. See United States v. Wood, 486 F.3d 781, 789 (3d Cir.
8
After presenting his fourth and fifth arguments, Stiso argues that the
government’s errors, as they relate to Mach and Manna, violated his Sixth Amendment
right to confront witnesses against him. This argument is without merit. Stiso had the
opportunity to cross-examine both of those witnesses, and all of the government’s
arguments were supported by the record. Contrary to Stiso’s claims, the prosecutor did
not “inform[] the jury that there is a witness who has not testified, but who, if he had
testified, would have given inculpatory evidence.” (Op. Br. 36 (quoting United States v.
Molina-Guevara, 96 F.3d 698, 703 (3d Cir. 1996)).)
16
2007). The question of whose handwriting is in the notebook was relatively insignificant,
especially in light of the strong evidence supporting Stiso’s conviction.
Stiso’s seventh misconduct charge is that the prosecutor “improperly set forth [his]
personal belief of the weight of the evidence and [Stiso’s] guilt” (Op. Br. 38) when he
stated: “We’re going to prove to you how he’s directly guilty, and I think we have, but I
think you can also find him guilty if he aided and abetted.” (Id. (quoting App. 1219).)
Stiso offers no support for his conclusion that the government’s statement was improper,
and does not explain how the statement would prejudice the jury. We have cautioned
prosecutors against using personal pronouns in closing statements. See United States v.
Walker, 155 F.3d 180, 189 (3d Cir. 1998) (“[I]t is poor practice for federal prosecutors to
frequently use rhetorical statements punctuated with excessive use of the personal
pronoun ‘I’. Such a practice runs the risk that the words that follow will convey the
personal view of the prosecutor to the jurors.”). But while statements such as “I think we
have” are typically “not ‘acceptable,’ they do not merit reversal unless the summation
viewed as a whole” is improper. United States v. Eltayib, 88 F.3d 157, 173 (2d Cir.
1996) (alteration in original) (internal quotation marks omitted); see also Walker, 155
F.3d at 188-89. Viewed as a whole, the use of the personal pronoun in the government’s
closing statement is not a basis for reversal. The statement was brief, did not refer to any
specific aspect of the case, and was forward-looking. Given that the “use of the pronoun
‘I’ does not automatically wreck the case,” id., we are not inclined to find plain error
here, let alone a plain error that amounts to a “manifest miscarriage of justice.” See
United States v. Brennan, 326 F.3d 176, 182 (3d Cir. 2003).
17
Stiso’s eighth argument is that the government improperly appealed to sympathy
for the victims during its closing argument. During the argument, the prosecutor stated:
“So now I bid you: Go do the work that you’re obligated to do. Apply that law equally.
Give Mr. Mezzancello the justice he asked you for. Give the victims the justice they
asked you for.” (Op. Br. 39 (quoting App. 1310).) Stiso objected at trial, and his
objection was sustained. That ends the matter. To the extent Stiso thinks that the
prosecutor’s comments required a mistrial or a curative instruction, that argument has
been forfeited, as he did not request that relief at trial, nor does he do so on appeal.
United States v. DeMichael, 461 F.3d 414, 417 (3d Cir. 2006) (citing Laborers’ Int’l
Union of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is
waived unless a party raises it in its opening brief ... .”)).
Complaint number nine is that the government improperly shifted the burden of
proof and production to Stiso during its rebuttal. During the government’s closing
argument, the prosecutor stated: “I waited for [Stiso’s counsel] to attack the bank records.
He didn’t. I waited for him to explain the recordings. He didn’t. ... [Stiso’s counsel]
doesn’t address those points.” 9 (Op. Br. 41 (quoting App. 1300-01).) Again, while the
point could perhaps have been made more artfully, the government is allowed to identify
flaws or gaps in a defense theory. United States v. Balter, 91 F.3d 427, 441 (3d Cir.
1996) (finding no plain error where the prosecutor stated “Now what [defense counsel]
9
At trial, Stiso objected to those statements, but his objection was not that the
government engaged in impermissible burden shifting; rather, it was that the statements
mischaracterized the record. Therefore, the argument presented here was not preserved
and we review the objection for plain error.
18
never tells you ... is why he was there. What was he doing there[?]” (third alteration in
original)). There is no plain error here, and, in any event, the Court plainly informed the
jury that “it’s the [g]overnment’s burden at all times to prove its case.” (App. 1303.)
Stiso’s tenth argument is that the government improperly vouched for the
credibility of its witnesses. During closing arguments, the prosecutor said: “[Y]ou should
believe the victims. [Opposing counsel] should believe the victims for a number of
reasons. They’re all self-made hard working individuals with no reason to lie in this
case.” (App. 1195.) Stiso also objects to statements made in the government’s rebuttal,
specifically that “Mr. Mezzancello told you the truth” and that “[i]t’s not plausible that
everyone from all the different walks of life ... got up before a Federal Judge just to lie to
you folks. It’s not plausible. It makes no sense. The Defense is illogical.” (App. 1300,
1308.) In order to show that a prosecutor improperly vouched for a witness, a defendant
must show that the prosecutor “assure[d] the jury that the testimony of a [g]overnment
witness is credible” and the assurance must be “based on either the prosecutor’s personal
knowledge, or other information not contained in the record.” United States v. Harris,
471 F.3d 507, 512 (3d Cir. 2006) (quoting Walker, 155 F.3d at 187). The government’s
argument here was pressed with enough vigor and verbiage to get uncomfortably close to
vouching, but, viewed in context, it was sufficiently based on the record to prevent our
saying there was plain error.
Stiso’s eleventh and final claim of misconduct is the most serious. It is that the
government ignored an order from the judge to refrain from using the term “loan shark.”
(Op. Br. 46; App. 191-92.) The government concedes that the prosecutor acted
19
improperly. Prior to opening statements, Stiso sought to prevent the prosecution from
“introducing loaded terms [like] ‘loan shark’ or ‘shylock’ or ‘usury’ that have no place in
the case other than to inflame the jury and potentially confuse the jury.” (App. 190.) The
Court agreed, and instructed the prosecutor to refrain from using those or similar terms
during the opening statement and throughout the trial. Nevertheless, during the
prosecution’s examination of DiGiacomo, the following exchange took place:
Q: And the guy that you borrow money on the street from, is he referred to
as someone, like a fish?
A: A shark, a loan shark?
Q: What’s his name?
A: A shark.
Q: Loan shark. Right?
A: A loan shark, yeah.
(App. 1014.) While Stiso did not object at trial, he now contends that there was plain
error here. We disagree. While there is no doubt that the government attorney acted
improperly by violating the District Court’s clear instructions,10 we do not see, and Stiso
does not show, how the improper statement was so prejudicial as to warrant a reversal of
his conviction. Notably, the loan shark testimony did not relate directly to any of the
elements required for conviction. To the extent that the testimony touched on motive,
10
We trust that the United States Attorney for the District of New Jersey has taken
or will take appropriate disciplinary steps. That the Assistant United States Attorney’s
flagrant disregard of the District Court’s instruction has not resulted in reversal does not
mean it can be taken lightly.
20
there was bountiful other evidence in the record showing that Stiso and Mancuso had
considerable gambling debts and that they were afraid of the people to whom they owed
money. See Werme, 939 F.2d at 117 (“[T]he appropriate inquiry is whether such
remarks, in the context of the entire trial, were sufficiently prejudicial to violate the
defendant’s due process rights.” (quoting Scarfo, 685 F.2d at 849)). Given the
circumstances, we do not think that the error here affected Stiso’s substantial rights and
decline to exercise our discretion to reverse the conviction.
Finally Stiso argues that the cumulative effect of the eleven claimed errors
warrants reversal of his conviction, but that which is insufficient one by one is also, in
this case, insufficient all together. The cumulative effect of the points complained of
does not warrant reversal. See United States v. Copple, 24 F.3d 535, 547 n.17 (3d Cir.
1994).
D. Motion for Acquittal Under Rule 29
At the close of the prosecution’s case-in-chief, Stiso moved for acquittal on all
counts under Federal Rule of Criminal Procedure 29. The Court reserved judgment on
the motion, but eventually denied it. Stiso now appeals that denial with respect to counts
2, 4, and 7 of the indictment. .] Those counts correspond to the $100,000 ticket scheme
involving Ira Saferstein, the $100,000 real estate investment scheme involving the
Persicos, and the $60,000 ticket scheme involving Robert Persico. “We exercise plenary
review over a district court’s ... denial of a motion for acquittal based on the sufficiency
of the evidence[.]” United States v. Silveus, 542 F.3d 993, 1002 (3d Cir. 2008) (citing
United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005)).
21
We apply a particularly deferential standard of review when deciding
whether a jury verdict rests on legally sufficient evidence. It is not for us to
weigh the evidence or to determine the credibility of witnesses. Rather, we
must view the evidence in the light most favorable to the government and
will sustain the verdict if any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (internal quotation marks and
citations omitted).
In arguing that the evidence presented at trial was insufficient to sustain his
conviction, Stiso points to pieces of evidence indicating that Saferstein had not met Stiso
prior to investing, that Stiso did not induce Saferstein to invest, and that Stiso did not
induce the Periscos to invest in the fraudulent schemes. His argument, however, does not
adequately address the elements of wire fraud. In order to prove its case, the government
was required to show “(1) a scheme ... to defraud for the purpose of obtaining money or
property, (2) participation by the defendant with specific intent to defraud, and (3) use
of ... wire transmissions in furtherance of the scheme.” Nat’l Sec. Sys. v. Iola, 700 F.3d
65, 105 (3d Cir. 2012) (citation omitted). Stiso’s arguments fail to rebut the
government’s proof on any of those elements. Indeed, as described above, the evidence
introduced at trial showed that Saferstein and the Persicos invested hundreds of thousands
of dollars into ventures that did not actually exist. The evidence further shows that Stiso
participated in those fraudulent schemes. Specifically, there was evidence that, in an
effort to perpetuate the scheme, Stiso spoke with Saferstein and assured him that his
(Saferstein’s) money was recoverable. The evidence also showed that, at that point, Stiso
had already received and spent some of Saferstein’s money. The evidence likewise
22
shows involvement with respect to frauds perpetrated on the Persicos. Viewing all the
evidence in the light most favorable to the government, it is clear that a rational jury
could have concluded that Stiso was an active participant in the schemes laid out in the
three challenged counts. The District Court’s denial of the motion to acquit was proper.
E. Sentencing Guidelines
Finally, Stiso challenges his sentence. He argues that the District Court
improperly applied the 2012 version of the sentencing guidelines, rather than the 2015
version. “We exercise plenary review over whether the District Court applied the correct
version of the Sentencing Guidelines.” United States v. Brennan, 326 F.3d 176, 197 (3d
Cir. 2003) (citation omitted). We review the sentence imposed “under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). Our
process of review takes place in two steps. We “must first ensure that the district court
committed no significant procedural error ... .” Id. at 51. We then consider the
“substantive reasonableness of the sentence... .” Id. A district court judge “must
adequately explain the chosen sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing.” Id. at 50 (citation omitted); United States v.
Merced, 603 F.3d 203, 215-16 (3d Cir. 2010) (“In all cases ... the district court must set
forth enough to satisfy the appellate court that he has considered the parties’ arguments
and has a reasoned basis for exercising his own legal decisionmaking authority.” (internal
quotation marks and citations omitted)).
In general, courts apply the version of the sentencing guidelines in effect at the
time of sentencing. U.S.S.G. § 1B1.11(a). But if the guidelines are amended after the
23
date of the offense in a way that would lead to a harsher punishment, “the court must
apply the [g]uidelines as they existed at the time of the crime.” Brennan, 326 F.3d at 197(citation omitted); see also U.S.S.G. § 1B1.11(b)(1). To do otherwise would raise
concern that a defendant’s rights under the Ex Post Facto Clause of the Constitution were
at risk.
In deciding to apply the 2012 version of the guidelines, the District Court stated,
“I’m of the opinion that the 2012 guideline book is applicable. That’s the date of the
offense and that typically is what the guideline recommends that you use unless there is
an ex post facto issue. But, if I use the 2012, there will not be an ex post facto issue.”
(App. 1374-75.)
Unfortunately, the Court misunderstood the relevant guidelines provisions. Under
the 2012 version of the guidelines, Stiso was subject to a 14-level enhancement for the
losses sustained from his crime. Under the 2015 version, he was subject to a 12-level
enhancement. However, the 2015 version of the guidelines added a provision that
required the District Court to increase the offense level by two if the offense “resulted in
substantial financial hardship to one or more victims[.]” U.S.S.G. § 2B1.1(b)(2)(A). In
sum, the 2015 version of the guidelines would result in a lower offense level than the
2012 version, unless the District Court found that the “substantial hardship” enhancement
applied, in which case the offense level would be the same as that in the 2012 version. In
either case, § 1B1.11 would require the judge to apply the 2015 version of the guidelines,
as that version was in effect at the time of sentencing and did not require a harsher
24
punishment.11 Because the Court erroneously applied the 2012 version of the guidelines,
we will remand the case for further proceedings. See Merced, 603 F.3d at 214(explaining that “[i]f the district court commits procedural error, our preferred course is
to remand the case for re-sentencing without going any further.” (citation and footnote
omitted)).12
III. CONCLUSION
For the foregoing reasons, we will affirm Stiso’s conviction, vacate his sentence,
and remand to the District Court for further proceedings consistent with this opinion.
11
The District Court did not make a determination on the record as to whether the
hardship enhancement applied.
12
It appears that the District Court judge may have applied the 2012 version of the
guidelines to avoid an ex-post facto issue identified in the PSR. The PSR indicated that
the fraudulent schemes underlying Stiso’s conviction caused $560,000 in loss, and thus
that Stiso would have a total offense level of 26 under the 2015 guidelines and 24 under
the 2012 guidelines. [PSR 55.] At sentencing, however, the District Court accepted a
stipulation that the amount of loss was only $460,000. [App. 1371-72.] In light of that
stipulation, it appears that the 2015 guidelines would result in an offense level that is
equal to or less than the level that would result from the 2012 guidelines.
25