
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1399                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    THOMAS LUONGO,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                [Hon. Walter Jay Skinner, Senior U.S. District Judge]                                          __________________________                              _________________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                              _________________________               William A. Brown on brief for appellant.               ________________               A. John  Pappalardo, United  States Attorney,  and Duane  J.               ___________________                                _________          Deskins, Assistant United States Attorney, on brief for appellee.          _______                              _________________________                                   December 8, 1993                              _________________________                    SELYA, Circuit Judge.  This appeal requires us not only                    SELYA, Circuit Judge.                           _____________          to resolve defendant's  claim of multiplicitousness, but  also to          answer a question  of first impression in this circuit concerning          the special  assessment  mandated by  18  U.S.C.    3013  (1988).          Concluding, as we do,  that the indictment is not  multiplicitous          and  that the  court  below  appropriately  imposed  the  special          assessment on  a "per count"  basis, rather than on  some broader          basis (say, "per scheme" or "per defendant"), we affirm.                                          I                                          I                                          _                                      Background                                      Background                                      __________                    The indictment  undergirding this  appeal stemmed  from          defendant-appellant  Thomas   Luongo's  communications   with  an          elderly man, Albert Tompane, between August 1990  and April 1991.          Using  the name  Keith Symonds,  appellant  contacted Tompane  by          telephone for the  purpose of  soliciting money  in exchange  for          lucre or  property  that appellant  promised  to provide  in  the          future.  Appellant directed Tompane to send him funds by means of          wire  transfers.     As  a  result,  Tompane   wired  money  from          Massachusetts to Rhode  Island on numerous occasions.   Appellant          then pocketed the proceeds but  did not send Tompane the promised          consideration.                    Shortly after  the grand  jury returned an  indictment,          appellant pled guilty to fifty-seven  counts of wire fraud.1  The                                        ____________________               1The original  indictment  charged  appellant  with  causing          seventy-eight  unlawful  wire transfers,  involving  $45,525.   A          superseding  indictment  charged  him  with  causing  fifty-seven          unlawful  wire transfers.   At  the  change-of-plea hearing,  the          prosecutor  stated  that  these  fifty-seven  transfers  involved                                          2          district  court sentenced  him  to  serve  thirty-six  months  in          prison, followed by thirty-six months of supervised release.  The          court also  ordered him  to pay a  $2,850 special  assessment and          $5,000  toward restitution.2   Luongo  appeals  from the  special          assessment.                                          II                                          II                                          __                                     Multiplicity                                     Multiplicity                                     ____________                    Appellant's initial contention is that, notwithstanding          his  plea of  guilty to  fifty-seven counts  of wire  fraud,3 the                                        ____________________          $29,201.  The presentence report used the same dollar amount.  Be          that as it may, the  figures specified in the fifty-seven counts,          when added together, aggregate $31,180.               2The court  levied the  special assessment  under a  statute          that reads in pertinent part:                                   *      *      *                    (a)  the  court  shall assess  on  any person                    convicted of  an offense  against the  United                    States                                     *      *      *                       (2) in the case of a felony                           (a)  the  amount   of  $50  if  the                         defendant is an individual; . . .          18 U.S.C.    3013(a)  (1988).  In  this case, the  $2,850 special          assessment  represents  the   $50  sum  mentioned  in   the  law,          multiplied by the fifty-seven counts of conviction.               3The statute of conviction provides in relevant part that:                    Whoever, having devised  . . . any  scheme or                    artifice to defraud, or for obtaining money .                    .   .  by   means  of  false   or  fraudulent                    pretenses,   representations,  or   promises,                    transmits  or  causes  to  be transmitted  by                    means   of  wire  .   .  .  communication  in                    interstate or foreign commerce, any writings,                    signs, signals, pictures,  or sounds for  the                    purpose of executing such scheme or artifice,                    shall be [punished as provided  by law] . . .                                          3          indictment   against  him  suffered   from  a  fatal   strain  of          multiplicity.    Consequently,  he maintains  that  his  offenses          amounted  to only  a single violation  of 18  U.S.C.    1343 and,          therefore, merit  only  a single  $50 special  assessment.   This          claim pirouettes  around our opinion  in United States  v. Lilly,                                                   _____________     _____          983 F.2d 300 (1st Cir. 1992).4                    In  Lilly, we held  an indictment charging  a defendant                        _____          with,  inter alia,  twenty-nine  counts of  bank  fraud under  18                 _____ ____          U.S.C.     1344  to  be  multiplicitous.    Since  the  defendant          defrauded a single bank of a single loan through a single scheme,          albeit by submitting twenty-nine false mortgages to the lender in          perpetrating that  scheme, that  portion of  the indictment  "was          more comfortably characterized as a single execution  of a scheme          rather than as 20-some-odd separate executions of a scheme."  Id.                                                                        ___          at 303.   Appellant asseverates that he, too,  defrauded a single          victim through a  single scheme, necessitating that we  merge the          fifty-seven  counts in  the superseding  indictment and  construe          them as one.  We disagree.                    The  principal flaw in appellant's construct is that he          and Lilly were  charged under different statutes  and, therefore,          the cases are  not fair congeners.  Lilly dealt  with bank fraud,                                              _____                                        ____________________                    .          18 U.S.C.   1343 (Supp. 1990).               4Appellant also  tries to  derive sustenance  from the  fact          that the lower court imposed a single 36-month prison term  and a          unitary term of supervised release.  For our part, those features          of  the  sentence do  not  portend  multiplicity.   Absent  clear          language indicating a contrary intent,  it is to be presumed that          sentences imposed on more than one count  at the same time are to          run concurrently.   See, e.g., United States v.  Schulz, 384 F.2d                              ___  ____  _____________     ______          374, 375 (5th Cir. 1967).                                          4          not wire fraud.  This is no mere scrivener's discrepancy, for the          Lilly court held  that the bank fraud statute, 18  U.S.C.   1344,          _____          could not be construed in pari passu with the mail and wire fraud                                    ____ _____          statutes, 18 U.S.C.    1341, 1343.  See  Lilly, 983 F.2d at 304 &                                              ___  _____          n.8.  While the  former statute criminalizes only the  execution,          or  attempted execution, of  a scheme to  defraud a bank,  see 18                                                                     ___          U.S.C.   1344  (rendering it unlawful for a  person to "knowingly          execute[], or attempt[] to execute, a scheme or artifice . . . to          defraud   a   financial   institution"),   the  latter   statutes          criminalize  specifically  enumerated actions,  e.g.,  interstate                                                          ____          wire transmissions,  see 18 U.S.C.    1343, so  long as  any such                               ___          action is for the purpose of executing a scheme to defraud.  This          salient difference routs appellant's reliance on Lilly.5                                                           _____                    Once   Lilly  is   placed   into  proper   perspective,                           _____          appellant's multiplicity claim is easily dismantled.  "It is well          established that  each use  of the wires  constitutes a  separate          crime under  18 U.S.C.    1343, even if  the several uses  are in          pursuance of  but one  criminal  enterprise."   United States  v.                                                          _____________                                        ____________________               5Of course,  beyond  the  all-important  difference  between          section  1344's focus  on execution  of  a scheme  as opposed  to                                    _________          section  1343's focus on the individual (covered) acts undertaken          in  executing the  scheme, there  are  also factual  distinctions          between  Lilly and this  case.   Although appellant,  like Lilly,                   _____          devised one scheme  to defraud one  victim, he procured  multiple          sums of money through  multiple wire transfers.  Lilly,  however,          engaged in one transaction with one bank, procuring one large sum          of money in one loan   a set of facts critical to the analysis of          the  twenty-nine counts at  issue there.  See  Lilly, 983 F.2d at                                                    ___  _____          304.  We take no view on the purely hypothetical question  of how          appellant's case might  fare if he, like Lilly,  had victimized a          financial institution and had been charged with bank fraud rather          than wire fraud.                                          5          Fermin Castillo,  829 F.2d 1194,  1199 (1st Cir. 1987).   Because          _______________          each of the fifty-seven counts laid against appellant  reflects a          distinct wire transfer  of funds, each count describes a separate          violation  of  18   U.S.C.     1343     even   if  the  transfers          collectively comprised  a single  execution of  a single  scheme.          See  id.; United States  v. Benmuhar, 658  F.2d 14, 21  (1st Cir.          ___  ___  _____________     ________          1981), cert. denied, 457  U.S. 1117 (1982).  On this point, Lilly                 _____ ______                                         _____          does not prop up appellant's  argument, but batters it, for Lilly                                                                      _____          expressly  reaffirms the Fermin  Castillo principle.   See Lilly,                                   ________________              ___ _____          983 F.2d  at 303 n.7  ("Courts have routinely construed  the mail          and wire fraud statutes to criminalize each mailing or use of the          wires.").                    For  these reasons,  we  conclude that  Lilly, properly                                                            _____          read,  is  more bludgeon  than  crutch  so  far as  appellant  is          concerned.   It follows  that appellant's  multiplicity claim  is          meritless.  The counts of conviction need not be merged.6                                         III                                         III                                         ___                      Construing the Special Assessment Statute                      Construing the Special Assessment Statute                      _________________________________________                    The  second question  we must  confront  is whether  18                                        ____________________               6Appellant suggests that the rule of lenity pertains in this          case because 18 U.S.C.    1343 does not specifically require that          a  defendant be punished for each  act in furtherance of a scheme          to defraud.  But a criminal statute must be ambiguous before  the          rule of lenity  becomes relevant.  See Bifulco  v. United States,                                             ___ _______     _____________          447  U.S.  381,  387 (1980).    As  the  wire  fraud  statute  is          unambiguous,  and  the  principle  that  each use  of  the  wires          constitutes a separate violation of section 1343 has  been widely          accepted for many years, see, e.g., United States v. Calvert, 523                                   ___  ____  _____________    _______          F.2d 895,  903 n.6 (8th  Cir. 1975), cert.  denied, 424 U.S.  911                                               _____  ______          (1976); United  States v. Henderson,  425 F.2d 134, 138  n.4 (5th                  ______________    _________          Cir. 1970), we have no occasion to engage the rule of lenity.                                          6          U.S.C.   3013,  quoted supra note 2, required  the district court                                 _____          to  impose   the  monetary  equivalent  of   fifty-seven  special          assessments in this case.  We think that it did.                    We begin with bedrock.  When "resolution  of a question          of federal law turns on a statute  and the intention of Congress,          we  look  first  to  the  statutory  language  and  then  to  its          legislative  history if the statutory language is unclear."  Blum                                                                       ____          v. Stenson, 465  U.S. 886, 896 (1984).  The statute at issue here             _______          provides  that  a  district  court  "shall"  impose  the  special          assessment "on any person convicted of  an offense."  18 U.S.C.                                                    __ _______          3013(a)  (emphasis  supplied);  see  also  id.  at     3013(a)(2)                                          ___  ____  ___          (providing  for  the  assessment  "in  the  case  of  a  felony")                                                                _  ______          (emphasis supplied).  This language admits of  only one plausible          construction:  that a $50 special assessment must be imposed on a          defendant who  stands convicted  of a federal  offense that  is a          felony.  And because the statute is  phrased in the singular, its          terms  imply  that  each offense     each felony     calls  for a          separate  special assessment,  even when  a  single defendant  is          simultaneously convicted of multiple charges.                    The    legislative    history   suggests    the    same          interpretation.   The  statute was  enacted as  part of  the 1984          Comprehensive  Crime  Control  Act.    The  Senate  Report  which          accompanied section 3013  states that "[t]he purpose  of imposing          nominal assessment fees is to  generate needed income" to stock a          victims'  assistance fund, simultaneously  created.  S.  Rep. No.          497,  98th Cong.,  2d Sess.  13, reprinted  in 1984  U.S.C.C.A.N.                                           _________  __                                          7          3607,  3619.   Because the  aim of  section  3013 is  to generate          revenue, and because construing it  according to the tenor of its          text will maximize that goal, we are  hard pressed to see how the          statute can bear a contrary reading.                    We  are not pioneers  in reaching the  conclusion that,          under  18  U.S.C.     3013,  a defendant  convicted  of  multiple          felonies  is subject  to multiple  assessments.   Every  court of          appeals  thus far  to consider  the question  has ruled  that the          special assessment required by section  3013 must be imposed on a          "per count" basis.   See United States v. McGuire,  909 F.2d 440,                               ___ _____________    _______          441-42 (11th  Cir. 1990); United  States v. Smith, 857  F.2d 682,                                    ______________    _____          686 (10th Cir. 1988); United States v. Dobbins, 807 F.2d 130, 132                                _____________    _______          (8th  Cir. 1986) (per  curiam); United  States v.  Donaldson, 797                                          ______________     _________          F.2d 125, 126-29 (3d Cir. 1986); United States v. Pagan, 785 F.2d                                           _____________    _____          378, 381 (2d Cir.), cert. denied, 479 U.S. 1017 (1986).  We agree                              _____ ______          that this is the correct approach.   We hold, therefore, that the          court  below  did  not  err  in  imposing  an  aggregate  special          assessment of $2,850,  corresponding to the  number of counts  of          conviction.  We need go no further.7                                        ____________________               7Appellant's claim that his self-professed indigency affects          the validity of the special  assessment is not properly before us          and we express no opinion on it.   Absent an indication "that the          government has attempted or  will attempt to collect the  special          assessment  while  [the  defendant] lacks  the  ability  to pay,"          United States v. Rivera-Velez, 839 F.2d 8, 8 (1st Cir. 1988) (per          _____________    ____________          curiam)    and  there is  no  such indication  in this  record             appellant's  challenge is  prematurely posed.    See id.;  accord                                                           ___ ___   ______          Pagan, 784 F.2d at 381; cf. United  States v. Levy, 897 F.2d 596,          _____                   ___ ______________    ____          598 (1st  Cir. 1990)  (holding to like  effect with respect  to a          stand-committed fine).                                          8          Affirmed.  See 1st Cir. Loc. R. 27.1.          Affirmed.  See 1st Cir. Loc. R. 27.1.          ________   ___                                          9
