        11-4258
        United States v. Capoccia



                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
     TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
     AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
     COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
     FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
     OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
     PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
     NOT REPRESENTED BY COUNSEL.

 1           At a stated term of the United States Court of Appeals
 2      for the Second Circuit, held at the Thurgood Marshall United
 3      States Courthouse, 40 Foley Square, in the City of New York,
 4      on the 2nd day of May, two thousand thirteen.
 5
 6      PRESENT:
 7               DENNIS JACOBS,
 8                    Chief Judge,
 9               ROSEMARY S. POOLER
10                    Circuit Judge.1
11      _____________________________________
12
13      UNITED STATES OF AMERICA,
14
15                                   Appellee,
16
17                   v.                             11-4258
18
19      HOWARD SINNOTT, THOMAS J. DALY,
20      SHIRLEY DINATALE, RODGER KOLSKY,


              1
              The Honorable Richard C. Wesley, originally a member
        of this panel, did not participate in the consideration of
        this appeal. The two remaining members of the panel, who
        are in agreement, have determined the matter. See 28 U.S.C.
        § 46(d); 2d Cir. I.O.P. E.; United States v. Desimone, 140
        F.3d 457 (2d Cir. 1998).
 1   CAROL CAPOCCIA, CARLO SPANO,
 2
 3                       Defendants,
 4
 5   ANDREW CAPOCCIA,
 6
 7               Defendant-Appellant.
 8   _____________________________________
 9
10   FOR APPELLEE:              GREGORY L. WAPLES, Assistant
11                              United States Attorney (Paul J.
12                              Van de Graaf, on the brief) for
13                              Tristram J. Coffin, United
14                              States Attorney for the District
15                              of Vermont.
16
17   FOR DEFENDANT-APPELLANT:   STEPHANIE M. CARVLIN, Law
18                              Offices of Stephanie M. Carvlin,
19                              New York, NY.
20
21        Appeal from a judgment of the United States District
22   Court for the District of Vermont (Murtha, J.).
23        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
24   AND DECREED that the judgment is AFFIRMED.
25
26        Defendant-appellant Andrew Capoccia appeals from the
27   district court’s imposition of a sentence of 188 months of
28   confinement, followed by three years of supervised release,
29   and restitution of $7,256,445.60 for his offenses associated
30   with his fraudulent debt reduction business. We assume the
31   parties’ familiarity with the underlying facts, the
32   procedural history of the case, and the issues on appeal.
33
34        1. Capoccia argues the government’s proof at trial
35   demonstrates that he was not guilty of Count I of the
36   indictment, interstate transportation of stolen property, in
37   violation of 18 U.S.C. § 2314. He admits that he did not
38   raise this issue during his initial criminal appeal; we
39   affirmed his conviction. See United States v. Capoccia, 247
40   F. App’x 311, 318 (2d Cir. 2007). “[W]hen a court has ruled
41   on an issue, ‘that decision should generally be adhered to
42   by that court in subsequent stages in the same case.’”
43   United States v. Carr, 557 F.3d 93, 102 (2d Cir. 2009)
44   (quoting United States v. Quintieri, 306 F.3d 1217, 1225 (2d
45   Cir. 2002)). Law of the case bars Capoccia’s challenge
46   here. Capoccia had “both opportunity and incentive to mount

                                    2
 1   [his] challenge the first time around” and simply failed to
 2   do so. Quintieri, 306 F.3d at 1232-33. In any event, the
 3   Supreme Court has expressly rejected the theory that a 18
 4   U.S.C. § 2314 conviction requires the interstate transfer to
 5   occur after the property was stolen. See McElroy v. U.S.,
 6   455 U.S. 642, 657-58 (1982).
 7
 8        2. Capoccia argues that several of the counts of his
 9   indictment were duplicitous. See United States v. Aracri,
10   968 F.2d 1512, 1518 (2d Cir. 1992) (defining an indictment
11   as duplicitous “if it joins two or more distinct crimes in a
12   single count”). He admits that this argument was not
13   presented prior to trial, and his delay is fatal. A claim
14   that an indictment was duplicitous is “generally deemed to
15   be waived if not properly raised before trial.” United
16   States v. Berardi, 629 F.2d 723, 729 (2d Cir. 1980); see
17   Fed. R. Crim. P. 12(b)(3)(B).   This rule applies so long as
18   “‘the alleged duplicitous character of the counts appears on
19   the face of the indictment.’” United States v. Sturdivant,
20   244 F.3d 71, 76 (2d Cir. 2001) (emphasis removed) (quoting
21   United States v. Viserto, 596 F.2d 531, 538 (2d Cir. 1979)).
22   The duplicity alleged by Capoccia was visible from the
23   outset, and he has waived any objection.
24
25        3. Capoccia’s multiplicity argument is also waived.
26   He contends that Counts 1 and 11 of his indictment both
27   charged the same offense, in violation of the Double
28   Jeopardy Clause. Once again, however, he failed to raise
29   this argument before trial. “It is well-settled
30   constitutional law that the constitutional protection
31   against double jeopardy is a personal right and, like other
32   constitutional rights, can be waived if it is not timely
33   interposed at trial.” Aparicio v. Artuz, 269 F.3d 78, 96
34   (2d Cir. 2001); see Fed. R. Crim. P. 12(b)(3)(B) (a motion
35   alleging a defect in an indictment must be made before
36   trial). Carpoccia’s multiplicity argument was therefore
37   waived.
38
39        4. Capoccia argues that there was no basis for a
40   sentencing enhancement premised on obstruction of justice.
41   A district court’s application of the Guidelines is reviewed
42   de novo. United States v. Hasan, 568 F.3d 161, 168 (2d Cir.
43   2009). “A sentencing enhancement for obstruction of justice
44   is warranted when a defendant testifying under oath gives
45   false testimony concerning a material matter with the
46   willful intent to provide false testimony.” United States

                                  3
 1   v. Dunnigan, 507 U.S. 87, 94 (1993) (quotation marks
 2   omitted). “If an accused challenges a sentence increase
 3   based on perjured testimony, the trial court must make
 4   findings to support all the elements of a perjury violation
 5   in the specific case.” Id. at 96.
 6
 7        The key question, therefore, is whether the district
 8   court made adequate independent findings to support its
 9   finding of perjury. “[I]t is preferable for a district
10   court to address each element of the alleged perjury in a
11   separate and clear finding”; nevertheless, “a finding of an
12   obstruction of, or impediment to, justice that encompasses
13   all of the factual predicates for a finding of perjury” is
14   sufficient.” Id. at 95.
15
16        That is what happened in this case. At the
17   resentencing, the district court reviewed its view of
18   Capoccia’s obstruction, count-by-count. The court
19   referenced specific instances where Capoccia’s testimony was
20   directly contradicted by the testimony of his former
21   associates. See, e.g., Resentencing Hr’g Tr. at 140, ECF
22   No. 711 (“Mr. Capoccia also denied that he ordered the Law
23   Centers to stop refunding client money in late March
24   2001 . . . [t]his testimony is directly contradicted by that
25   of Mr. Sinnott and Mr. Forkey as well as Mr. Daly.”). The
26   court summarized that Capoccia’s statements were “false,
27   [material], and, if believed, would certainly have
28   influenced the Jury.” Resentencing Hr’g Tr. at 142, ECF No.
29   711. The district court closely followed Dunnigan. It made
30   specific factual findings regarding Capoccia’s perjurious
31   statements and noted that the statements were regarding
32   material issues in the case. The obstruction enhancement
33   was therefore appropriate.
34
35        5. Capoccia similarly argues that the vulnerable
36   victim sentencing enhancement should not have been imposed.
37   He contends that the district court committed legal error by
38   concluding that debt-reduction customers were vulnerable
39   victims inherently. The Guidelines stipulate that a two-
40   level enhancement is appropriate when a defendant “knew or
41   should have known that a victim of the offense was unusually
42   vulnerable due to age, physical or mental condition, or that
43   a victim was otherwise particularly susceptible to the
44   criminal conduct . . . .” U.S.S.G. § 3A1.1(b)(1). We
45   review the district court’s application of the Guidelines de
46   novo, Hasan, 568 F.3d at 168, and its factual finding that a

                                  4
 1   victim was vulnerable for clear error, United States v.
 2   Patasnik, 89 F.3d 63, 72 (2d Cir. 1996).
 3
 4        Capoccia argues that the enhancement required a showing
 5   that he had knowledge of the particular vulnerabilities of
 6   individual client victims, and he contends that he had not
 7   “singled out the vulnerable victims from a larger class of
 8   potential victims.” See United States v. McCall, 174 F.3d
 9   47, 50 (2d Cir. 1998). However, “many cases have upheld
10   vulnerable victim enhancements based on group
11   generalizations,” id. at 51, especially in the present
12   context of predatory financial schemes.
13
14        “False financial hope is promoted more easily to
15   persons whose defenses have been lowered by anxiety and the
16   prospect of ruin.” Patasnik, 89 F.3d at 72. Thus, we have
17   held that “an enhancement is particularly appropriate
18   when . . . the success of the defendant’s criminal scheme
19   depended on the victim’s financial desperation.” United
20   States v. Borst, 62 F.3d 43, 46 (2d Cir. 1995). To the
21   extent that Capoccia was actually unaware of his clients’
22   precarious finances, he should have known once they informed
23   him of their debts. See Patasnik, 89 F.3d at 72. The
24   district court did not commit clear error in finding that
25   Capoccia’s destitute customers were especially vulnerable.
26
27        6. Capoccia argues that the loss amount was
28   incorrectly calculated by inclusion of more than $2,000,000
29   from events that predated the first transfer on the
30   indictment, and were not associated with relevant conduct.
31   This court reviews “the factual determinations underlying a
32   district court’s loss calculation at sentencing for clear
33   error and its application of the Sentencing Guidelines de
34   novo.” United States v. Canova, 412 F.3d 331, 351 (2d Cir.
35   2005). “Although the district court’s factual findings
36   relating to loss must be established by a preponderance of
37   the evidence, the court need not establish the loss with
38   precision but rather need only make a reasonable estimate of
39   the loss, given the available information.” United States
40   v. Uddin, 551 F.3d 176, 180 (2d Cir. 2009) (citations and
41   quotations omitted).
42
43        “For two or more offenses to constitute part of a
44   common scheme or plan, they must be substantially connected
45   to each other by at least one common factor, such as common
46   victims, common accomplices, common purpose, or similar

                                  5
 1   modus operandi.” U.S.S.G. § 1B1.3 Application Note 9(A);
 2   see United States v. Walsh, 119 F.3d 115, 121 (2d Cir. 1997)
 3   (recognizing relevant conduct where scheme had common
 4   accomplice and “common modus operandi of false financial
 5   statements and false documentation”). The district court
 6   cited numerous trial evidence to support the finding that
 7   Capoccia’s scheme started no later than 1998. This evidence
 8   included: documentation of the Law Centers’ heavy losses in
 9   1998-99, an unearned-retainer analysis by Agent Rachek, and
10   testimony from former Chief Financial Officers Lynn Hill and
11   Tom Juronski. This evidence shows that Capoccia had common
12   accomplices, victims, and modus operandi that remained
13   constant after the firm moved from Albany to Vermont. The
14   district court did not commit clear error in finding that
15   Capoccia’s misappropriation of client funds while his
16   company was based in Albany qualified as relevant conduct.
17   Its loss calculation was therefore correct.
18
19        7. Capoccia argues that his trial counsel was
20   ineffective for failing to object to those counts of the
21   indictment for which venue did not lie in the District of
22   Vermont. “In most cases a motion brought under § 2255 is
23   preferable to direct appeal for deciding claims of
24   ineffective assistance.” Massaro v. United States, 538 U.S.
25   500, 504 (2003). The record on appeal is “not developed
26   precisely for the object of litigating or preserving the
27   claim and [is] thus often incomplete or inadequate.” Id. at
28   504-05. We have already rejected such motion by Capoccia as
29   premature. See United States v. Carpoocia, 354 F. App’x
30   522, 523 (2d Cir. 2009). Nothing has changed.
31
32        We have considered all of Capoccia’s remaining
33   arguments and find them to be without merit. Accordingly,
34   the judgment of the district court is hereby AFFIRMED.
35
36                              FOR THE COURT:
37                              Catherine O’Hagan Wolfe, Clerk




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