United States v. Lesczynski

Filed: January 30, 2004
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4431
(CR-01-226)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ZBIGNIEW PAWE LESCZYNSKI, a/k/a ZB,
Defendant - Appellant.
O R D E R
The court amends its opinion filed January 28, 2004, as
follows:
On page 4, line 25 -- the phrase “three-level enhancement”
is amended to read “two-level enhancement.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4431
ZBIGNIEW PAWE LESCZYNSKI, a/k/a
ZB,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Jerome B. Friedman, District Judge.
(CR-01-226)
Argued: October 31, 2003
Decided: January 28, 2004
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
ARGUED: James Orlando Broccoletti, ZOBY & BROCCOLETTI,
P.C., Norfolk, Virginia, for Appellant. Stephen Westley Haynie,
Assistant United States Attorney, UNITED STATES ATTORNEY’S
OFFICE, Norfolk, Virginia, for Appellee. ON BRIEF: Paul J.
McNulty, United States Attorney, Laura P. Tayman, Assistant United
States Attorney, UNITED STATES ATTORNEY’S OFFICE, Nor-
folk, Virginia, for Appellee.
2 UNITED STATES v. LESCZYNSKI
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Zbigniew Lesczynski appeals his conviction and sentence for con-
spiracy to commit money laundering and for offenses relating to the
hiring of unauthorized aliens. We affirm his conviction and reject two
of his three challenges to his sentence. We conclude, though, that the
district court erred in enhancing Lesczynski’s offense level for
obstruction of justice on the ground that he suborned perjury. We
therefore vacate Lesczynski’s sentence and remand for resentencing.
I.
On July 25, 2001, Lesczynski was indicted in the Eastern District
of Virginia on a single count for inducing illegal aliens to enter and
reside in the United States in violation of 8 U.S.C.
§ 1324(a)(1)(A)(iv). Lesczynski was arrested on October 19, 2001;
arraigned on October 30, 2001; and scheduled for trial on January 3,
2002. In the meantime, on December 5, 2001, a forty-five-count
superseding indictment added a codefendant, Czeslaw Stasiak, who
was charged in all counts. Lesczynski was charged in only three
counts in the new indictment, specifically, in count one for conspiracy
to commit money laundering, see 18 U.S.C. § 1956(b); in count forty-
four for knowingly hiring at least ten aliens who were not authorized
for employment, see 8 U.S.C. § 1324(a)(3)(A); and in count forty-five
for inducing illegal aliens to enter and reside in the United States, see
id. § 1324(a)(1)(A)(iv). Lesczynski and Stasiak were arraigned on the
superseding indictment on December 19, 2001, and their trial was set
for February 13, 2002. In early February 2002 Stasiak pled guilty to
a single count of money laundering. On February 11, 2002, two days
before the scheduled trial date, Lesczynski moved for a continuance
that the district court granted by postponing the trial until Febru-
ary 19, 2002. On the morning of trial, February 19, Lesczynski filed
a motion to dismiss the indictment on the ground that the Speedy
Trial Act had been violated, a motion that the district court denied.
UNITED STATES v. LESCZYNSKI 3
Lesczynski went to trial, and the government’s evidence on the
three counts against him included the following. Lesczynski was the
Director of Operations for ODRA Enterprises, Inc., a company that
provided workers for janitorial service companies operating in Vir-
ginia and several other states. ODRA was owned and operated by
Lesczynski’s brother-in-law, Stasiak. Lesczynski’s responsibilities at
ODRA included hiring new workers, overseeing supervisors, assign-
ing employees to job locations, setting salaries, and managing opera-
tions when Stasiak was out of the country. Lesczynski admitted to
Immigration and Naturalization Service (INS) agents before his arrest
that one of his jobs at ODRA was to "supervise the supervisors." J.A.
158.
In 1998 the INS discovered that ODRA was hiring eastern Euro-
pean nationals who were ineligible to work in the United States.
Because most of ODRA’s illegal workers were Czech, the INS
worked with authorities in the Czech Republic to set up a sting opera-
tion. Two undercover Czech agents came to the United States posing
as tourists looking for work in violation of their nonimmigrant visas.
Upon their arrival the agents contacted Lesczynski about employ-
ment. Lesczynski admitted in taped conversations that he knew the
agents were ineligible for employment in the United States. Neverthe-
less, Lesczynski offered the agents jobs, set their salaries, and prom-
ised them an additional fifty dollars for each new worker they could
recruit from the Czech Republic.
An ODRA employee, Nikolay Nikolov, also assisted INS agents in
collecting evidence against Lesczynski. In one recorded telephone
call, Nikolov informed Lesczynski that several ODRA employees had
been arrested for immigration violations. During the call Nikolov
acted as though he was unaware that the employees had been working
illegally. Lesczynski became impatient and said, "you know listen
Nikolay, you speak like to me like you don’t know they are illegals.
They all everywhere in every store illegal people." S.J.A. 49. In addi-
tion, Lesczynski admitted to investigators that "he knew that the
majority of [ODRA’s employees] were here as tourists, on tourist
visas." J.A. 161.
From February 1998 until November 1999 one janitorial service
company paid ODRA over $4.6 million to cover labor provided by
4 UNITED STATES v. LESCZYNSKI
ODRA employees. After receiving funds from this company, ODRA
officials would in turn transfer funds, either by wire transfer or certi-
fied check, to ODRA supervisors who paid the employees in cash.
ODRA never made any withholdings from its employees’ pay for
items such as social security or taxes. Lesczynski had a role in
ODRA’s financial affairs, at least in the area of payroll. In 1999
ODRA workers in Virginia began complaining that they were not
being paid properly. Stasiak, Lesczynski, and ODRA’s Virginia
supervisor spent two days traveling to workers’ apartments and pay-
ing them wages in cash. As each worker was paid, Stasiak introduced
him or her to Lesczynski, saying, "if you have any problems with pay,
here is my guy who will solve all problems with pay." J.A. 185. The
workers were given Lesczynski’s telephone number, and thereafter he
was given the responsibility to see that workers were paid.
Lesczynski’s entire defense consisted of the testimony of his
brother-in-law, Stasiak. First, Stasiak testified that he (Stasiak) had no
knowledge that ODRA was hiring aliens who were not authorized to
work under their visas. Second, he claimed that the janitorial workers
and their supervisors were subcontractors rather than employees of
ODRA. Third, he said that Lesczynski had no authority to hire, fire,
or exercise any other type of managerial responsibility for ODRA.
Lesczynski’s trial lasted for seven days, and the jury found him
guilty on all three counts. At sentencing the district court made three
upward adjustments to Lesczynski’s offense level, notwithstanding
his objections. The court imposed a two-level enhancement for
obstruction of justice under U.S.S.G. § 3C1.1 (2002). Specifically, the
court concluded that Lesczynski had suborned perjury when "he
allowed [Stasiak] to testify as he did." J.A. 385. Lesczynski also
received a three-level enhancement for his role as a manager or super-
visor, see U.S.S.G. § 3B1.1(b), and a two-level enhancement because
he was convicted of money laundering, see id. § 2S1.1(b)(2)(B).
Lesczynski had a total offense level of 25 and a criminal history cate-
gory of I; this yielded an imprisonment range of 57 to 71 months. He
got 60 months.
Lesczynski appeals his conviction and sentence, arguing that he
was put to trial in violation of the Speedy Trial Act and that the sen-
tencing enhancements were improper.
UNITED STATES v. LESCZYNSKI 5
II.
Lesczynski argues that the government violated the spirit of the
Speedy Trial Act, 18 U.S.C. § 3161 et seq., by filing a superseding
indictment solely to restart the seventy-day speedy trial clock. Lesc-
zynski asks us to hold that the seventy-day deadline for trial began to
run on October 30, 2001, when he was arraigned on the original
indictment, and was not restarted by the superseding indictment filed
on December 5, 2001. Thus, by the calculation that Lesczynski urges,
the seventy-day deadline expired before his trial began on February
19, 2002. Lesczynski concedes, however, that the literal requirements
of the Speedy Trial Act were met because a superseding indictment
that adds either a new defendant or new charges restarts the speedy
trial clock. That leaves us with Lesczynski’s claim that the govern-
ment "brought the superceding indictment to manipulate the speedy
trial rule and avoid violating it." Appellant’s Br. at 17. By all
accounts, the investigation in this case was continuing when the origi-
nal indictment was filed, and the superseding indictment was simply
a routine move by the government to add charges and a codefendant
based on new information developed in the ongoing investigation.
Lesczynski offers nothing to suggest bad faith or manipulation on the
part of the government. We therefore reject his Speedy Trial Act
claim.
III.
Lesczynski also appeals three enhancements to his offense level
imposed by the district court at sentencing: (1) a two-level obstruction
of justice enhancement for suborning perjury, see U.S.S.G. § 3C1.1;
(2) a three-level enhancement for acting as a manager or supervisor,
see id. § 3B1.1(b); (3) a two-level enhancement for his conviction
under 18 U.S.C. § 1956 for money-laundering, see id.§ 2S1.1(b)(2)(B). We review a district court’s legal interpretation of
the Sentencing Guidelines de novo and its factual findings for clear
error. United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir.
1989).
A.
Guideline § 3C1.1 provides for a two-level increase in the offense
level when the defendant wilfully obstructs the administration of jus-
6 UNITED STATES v. LESCZYNSKI
tice during the course of his prosecution. U.S.S.G. § 3C1.1. Suborna-
tion of perjury is one of the acts that triggers the enhancement, id.
§ 3C1.1, comment (n.4(b)), and the government sought the enhance-
ment here, claiming that Lesczynski’s only witness, Czeslaw Stasiak,
committed perjury. Lesczynski suborned Stasiak’s perjury, the gov-
ernment said, because Lesczynski "had to have known what Mr. Sta-
siak’s testimony would be." J.A. 331. Stasiak testified, among other
things, that Lesczynski had no management, supervisory, or personnel
authority at ODRA, and the district court found this testimony to be
perjurious. The court applied the enhancement for obstruction of jus-
tice, concluding that Lesczynski "suborned perjury when he allowed
this codefendant, Mr. Stasiak, to testify as he did." J.A. 385. Lesczyn-
ski challenges the enhancement on the ground that there is nothing in
the record to indicate that he persuaded Stasiak to commit perjury.
According to Lesczynski, Guideline § 3C1.1 does not cover the situa-
tion where "a witness voluntarily seek[s] to help the defendant by
committing perjury." Appellant’s Br. at 25.
The presentence report did not recommend an obstruction enhance-
ment based on subordination of perjury, and the report did not include
any facts to support the enhancement. It was later, in a memorandum
submitted prior to the sentencing hearing, that the government urged
the district court to apply the enhancement. The government’s memo-
randum focused on Stasiak’s perjury, but did not discuss the elements
of subornation. Years ago, in Petite v. United States, 262 F.2d 788,
794 (4th Cir. 1959), we listed the elements of subornation of perjury:
Subornation of perjury consists in procuring or instigating
another to commit the crime of perjury. It is essential to sub-
ornation of perjury that the suborner should have known or
believed or have had good reason to believe that the testi-
mony given would be false; that he should have known or
believed that the witness would testify willfully and cor-
ruptly and with knowledge of the falsity; and that he should
have knowingly and willfully induced or procured the wit-
ness to give such false testimony. [emphasis added].
See also Black’s Law Dictionary 1440 (7th ed. 1999)(defining subor-
nation of perjury as "the crime of persuading another to commit per-
jury"); 70 C.J.S. Perjury § 54 (1987) ("[W]here the elements of
UNITED STATES v. LESCZYNSKI 7
perjury are present, and there is a showing that the commission of the
perjury was induced or procured by accused, he is chargeable with the
offense of subornation.").
The district court failed to confront the inducement or procurement
requirement when it concluded that Lesczynski suborned perjury
when he "allowed his co-defendant, Mr. Stasiak, to testify as he did."
J.A. 385 (emphasis added). The court thus applied the enhancement
because Lesczynski called Stasiak as a witness and allowed him to
give perjured testimony. That is not sufficient to satisfy the induce-
ment element of subornation. In short, by leaving out the inducement
requirement, the district court applied the wrong legal standard.
Even if the district court had recognized that inducement or pro-
curement is a necessary element of subornation of perjury, there was
insufficient evidence here to support a finding that Lesczynski
induced or procured false testimony from Stasiak. The district court
made the following findings of fact in support of its determination
that Lesczynski suborned perjury: (1) There was "an indication" that
Lesczynski and Stasiak shared a hotel room prior to the trial. J.A. 383.
(2) Stasiak was Lesczynski’s brother-in-law. (3) Stasiak was the only
witness called by Lesczynski. (4) Lesczynski’s lawyer requested and
was given the opportunity to talk to Stasiak right before he testified.
(5) Lesczynski (through his lawyer) relied on Stasiak’s perjured testi-
mony in closing argument. (The district court was careful to point out
that the lawyer did nothing wrong.)
The first finding — that there was an indication that Lesczynski
and Stasiak shared a hotel room before trial — is clearly erroneous.
The government suggested, in response to a question from the court
at the sentencing hearing, that there was a basis for such a finding.
We have found nothing in the record to support this finding, and the
government now concedes that there is no evidence in the record to
support it. Findings (2) through (5) do not establish directly or allow
an inference that Lesczynski induced or procured Stasiak to testify
falsely. An essential element of subornation of perjury is therefore
missing, and the obstruction enhancement for subornation should not
have been imposed. Lesczynski must therefore be resentenced.
8 UNITED STATES v. LESCZYNSKI
B.
Lesczynski also challenges the three-level enhancement imposed
for his supervisory role in the offense. This enhancement applies
when "the defendant was a manager or supervisor and the criminal
activity included five or more participants." U.S.S.G. § 3B1.1(b).
Lesczynski contests the district court’s finding that he was a supervi-
sor. He contends that he had no authority to instruct or otherwise con-
trol any ODRA employees. The evidence supports the district court’s
finding. Lesczynski’s job title, as stated on his employment contract,
was Director of Operations for ODRA. According to the contract,
Lesczynski was responsible for overseeing ODRA area and store
supervisors. The evidence established that Lesczynski actually exer-
cised these supervisory powers. For example, he was responsible for
hiring new employees and setting their salaries. He offered monetary
rewards to the Czech undercover agents if they could recruit illegal
workers for ODRA. He was partially responsible for overseeing
ODRA’s operations when Stasiak was abroad, and Stasiak once
referred to Lesczynski as "my guy . . . in charge," J.A. 182. Finally,
Lesczynski admitted to INS agents that he was "the supervisor for the
company, and that he was to supervise the supervisors." J.A. 158.
This evidence supports the three-level enhancement for Lesczynski’s
role in the offense.
C.
Finally, Lesczynski challenges the district court’s two-level
enhancement under U.S.S.G. § 2S1.1(b)(2)(B), which provides: "if
the defendant was convicted under 18 U.S.C. § 1956, increase by 2
levels." Because Lesczynski was convicted under 18 U.S.C. § 1956,
the district court applied the enhancement. Lesczynski claims that the
enhancement applies only if "the evidence [shows that the defendant]
had some form of control over the business operations owned and
operated by Stasiak." Appellant’s Br. at 27-28. Lesczynski cites no
authority for this argument, and we have found none. The plain terms
of Guideline § 2S1.1(b)(2)(B) apply here, as the district court recog-
nized.
UNITED STATES v. LESCZYNSKI 9
IV.
We affirm Lesczynski’s conviction, vacate his sentence, and
remand for resentencing without the obstruction of justice enhance-
ment for subornation of perjury.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED.