                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-30-2002

USA v. Barbati
Precedential or Non-Precedential:

Docket 1-2076




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Recommended Citation
"USA v. Barbati" (2002). 2002 Decisions. Paper 72.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/72


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                                                  NOT PRECEDENTIAL

               THE UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                             ___________

                             No. 01-2076
                             ___________


                   UNITED STATES OF AMERICA

                               vs.

                        GINO BARBATI,

                                              Appellant

                             ___________


        ON APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE EASTERN DISTRICT OF PENNSYLVANIA

               (D.C. Criminal No. 00-cr-00500-1)
      District Judge: The Honorable Clarence C. Newcomer

                             ___________

           Submitted Under Third Circuit LAR 34.1(a)
                        January 22, 2002

        BEFORE: NYGAARD and STAPLETON, Circuit Judges,
                  and CAPUTO, District Judge.




                   (Filed:    January 30, 2002)

                             ___________

                MEMORANDUM OPINION OF THE COURT
                          ___________


NYGAARD, Circuit Judge.
         Appellant, Gino Barbati, was convicted of violating 18 U.S.C.
2313 (sale
or receipt of stolen vehicle   Count One) and 18 U.S.C.   2 (aiding and
abetting   Count
Two). He was sentenced to a term of 21 months of imprisonment. Barbati
appeals
raising the two issues listed below, taken verbatim from appellant's
brief. Because we
conclude that the District Court did not err, we will affirm.
                                 I.
         1.        Did the trial court err in not instructing the jury as
to how they should
         consider certain testimony?
         2.        Did the sentencing court err in enhancing appellant's
sentence by two
         points under the specific offense characteristic section of
U.S.S.G. 1B.1.3.
                                II.
         The evidence of record establishes that appellant either
purchased or
received a total of three stolen motor vehicles from individuals who were
participating in
a multi-state car theft ring. Barbati purchased two vehicles and set up
the purchase of a
third, for prices which were substantially below fair market value.
         With respect to the first issue raised by the appellant, we
conclude that the
District Court did not abuse its discretion when it declined to instruct
the jury that it could
not impute knowledge to Barbati that one of the automobiles was stolen
from the fact that
Barbati's girlfriend lied on the vehicle registration form. We conclude
that the District
Court had a rational basis for declining to give the instruction.
Moreover, the court's
instructions taken as a whole, fairly and accurately presented the issues
of this case to the
jury.
         With respect to the second issue, we likewise conclude that the
District
Court did not err when it adjusted the appellant's offense level upward by
two levels for
the specific offense characteristic of more than minimal planning. The
appellant received
three stolen cars and engaged in repeated acts over a period of time.
This would support a
finding of more than minimal planning. We conclude that the District
Court did not
commit clear error by so finding.
                                III.
         In sum, for the foregoing reasons, we will affirm the judgment of
the
District Court entered April 27, 2001.


_________________________


TO THE CLERK:
Please file the foregoing opinion.




                         /s/    Richard L. Nygaard
                     Circuit Judge
