UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                   No. 96-4899
JOSEPH SERIANI, a/k/a Joseph S.
Serian,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert E. Payne, District Judge.
(CR-95-199)

Argued: October 3, 1997

Decided: November 12, 1997

Before RUSSELL and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Robert Brooks Ramsey, PRATT, BRADFORD, TOBIN
& ALEXANDER, P.C., East Alton, Illinois, for Appellant. David
Glenn Barger, Assistant United States Attorney, UNITED STATES
ATTORNEY'S OFFICE, Alexandria, Virginia, for Appellee. ON
BRIEF: David Jeffrey Ezra, PRATT, BRADFORD, TOBIN &
ALEXANDER, P.C., East Alton, Illinois; Lisa A. Broccoletti, Nor-
folk, Virginia, for Appellant. Helen F. Fahey, United States Attorney,
UNITED STATES ATTORNEY'S OFFICE, Alexandria, Virginia,
for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Defendant Joseph Seriani was convicted of three counts of obstruc-
tion of justice and one count of conspiracy for attempting to obtain
the premature release of three federal prisoners by sending false let-
ters to two United States District Judges and one United States Attor-
ney. Seriani appeals his convictions and sentence. For the reasons that
follow, we affirm.

I.

In January, 1991, Joseph Seriani was paroled after serving time for
wire fraud, bank fraud, and various other federal crimes. Seriani
moved to Broward, Florida, and subsequently began performing vol-
unteer fund-raising work for Habitat for Humanity of Broward
County (Habitat-Broward), a non-profit organization dedicated to
building housing for the poor. Habitat-Broward is affiliated with Hab-
itat for Humanity International (Habitat-International). Habitat-
Broward later asked Seriani to resign after the organization learned
that he had failed to disclose that he was a felon on parole. Seriani
resigned in June of 1992.

In early July, 1992, Seriani was offered a temporary position as the
Executive Director of Habitat for Humanity, Boca-Delray (Habitat-
Boca). Seriani did not inform his new employer that he was a felon
on parole. On September 21, 1992, Habitat-Boca notified him that he
was being terminated.

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On that same day, Seriani sent three letters urging the release of
three federal prisoners who were housed at the Federal Correctional
Institute in Petersburg, Virginia. One letter was written to United
States District Judge J. Calvitt Clarke, Jr., in relation to prisoner Rich-
ard Hirschfeld; a second letter was written to United States District
Judge Richard L. Williams in relation to prisoner Joseph Gaffney; a
third letter was sent to United States Attorney Richard Bennett in
relation to prisoner Meir Duke.

The letters, which were written on Habitat for Humanity stationery,
included representations that Habitat for Humanity"frequently" had
requests for and "extensive experience" regarding the placement of
federal prisoners into "Work Cadres" as an alternative to incarcera-
tion, Supplemental Appendix ("S.A.") at 69-76; that Habitat's "Work
Cadre" program had been officially recognized by the Federal Bureau
of Prisons, the United States Parole and Probation Departments, and
the United States District Courts across the nation as "viable alterna-
tives" to incarceration, Appendix ("A") at 96; that Habitat had per-
formed a careful and objective screening process and evaluation of
potential candidate prisoners, A. at 97, and that pursuant to that
screening process Habitat had selected prisoners Hirschfeld, Gaffney,
and Duke as candidates for its work cadre program. Each letter rec-
ommended that one of the prisoners be released from prison so that
he could begin working for Habitat. The letters were signed by Seri-
ani, under the name "Dr. Serian," purporting to be the "Executive
Director" of various chapters of Habitat (Seriani signed the letters on
behalf of Hirschfeld and Gaffney on Habitat-Broward stationery, and
he signed the letter on behalf of Duke on Habitat-Boca stationery).

The representations made in these September 21 letters were mate-
rially and substantially false. Seriani was never the "Executive Direc-
tor" of Habitat-Broward, S.A. at 161-2, and at the time of the letters
he had been terminated from his position with Habitat-Boca, S.A.
779-82; none of the letters were actually approved by Habitat for
Humanity, S.A. 162-63; S.A. 749, 720-22; S.A. 190-95; Habitat-
Broward did not have any experience placing federal prisoners in
"work cadres" as an alternative to prison, S.A. at 72; Habitat for
Humanity had not been officially recognized by the Federal Bureau
of Prisons, the United States Parole and Probation Departments, or the
District Courts as an alternative to incarceration, S.A. 72-74; Habitat

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had not performed any careful or objective screening process to select
prisoners Hirschfeld, Gaffney, or Duke, and that in fact Seriani acted
on behalf of those prisoners because of his friendship with Hirschfeld,
S.A. at 76.

The plan to use these letters to obtain the early release of the sev-
eral inmates was orchestrated by prisoner Hirschfeld. Hirschfeld
wrote a letter to Seriani requesting his help, Seriani sent Hirschfeld
Habitat for Humanity materials, and Hirschfeld composed letters with
those materials and sent the letters to Seriani for Seriani to sign and
send out on official Habitat stationery. S.A. 789-91. Hirschfeld's
cover letter to Seriani included specific instructions and explanations
regarding the scheme. For example, the cover letter included a request
that the letters be mailed "by the date on the letter, Sept. 21st," A. at
93. It further admonished Seriani "[p]lease don't change any of these
letters," A. at 93. The cover letter even included a description of
deliberate ambiguities that Hirschfeld had written into the letters to
give Seriani "wiggle room," if necessary. S.A. at 789.

On October 5, 1992, Judge Clarke sent a response to"Dr. Serian"
at Habitat, denying his request to reduce Hirschfeld's sentence. On
October 8, 1992, Hirschfeld filed a Rule 35 Motion for a reduction
of his sentence. While that motion was pending, Seriani sent another
letter to Judge Clarke, dated October 14, 1992, asking that the Judge
reconsider his earlier denial. That letter was written on Habitat-
International stationery, and signed by "Dr. Serian," the "Executive
Director" of Habitat for Humanity. The October 14 letter also falsely
represented that Judge Williams had approved a similar request relat-
ing to a different prisoner, and that 70 inmates had been placed in
Habitat's work cadres in the past 30 days alone. S.A. at 83. Attached
to the letter was a copy of Seriani's initial September 21 letter. The
October 14 letter was also originally composed by Hirschfeld. S.A.
at 333. Notwithstanding the October 14 letter, Judge Clarke refused
to reconsider his denial of Seriani's earlier request.

On October 5, 1992, prisoner Gaffney filed a Rule 35 Motion for
a reduction of his sentence. Attached to his motion was a copy of
Seriani's September 21, 1992, letter relating to him. On October 28,
1992, Judge Williams denied his motion. Prisoner Duke also filed a
motion with the district court requesting a reduction in his sentence

                     4
so that he could perform charity work for Habitat for Humanity.
Attached to his motion was a copy of the September 21, 1992, Seriani
letter urging Duke's release. Duke's motion was also denied.

For writing and sending these letters in an attempt to interfere with
the sentences of three federal inmates, Seriani was charged and con-
victed of conspiracy in violation of 18 U.S.C. § 371, and three counts
of obstruction of justice in violation of 18 U.S.C.§ 1503.

II.

Seriani raises several legal challenges to his convictions and sen-
tence, none of which we find persuasive.

First, Seriani challenges his obstruction of justice convictions on
the grounds that the government did not establish any "pending judi-
cial proceeding" with which any of his letters may have interfered. To
prove a violation of 18 U.S.C. § 1503, the government must establish
that the defendant obstructed a "pending proceeding." United States
v. Grubb, 11 F.3d 426, 437 (4th Cir. 1993). Seriani contends that, at
the time of his letters, prisoners Hirschfeld, Gaffney, and Duke were
not involved in any pending judicial proceedings, and thus his letters
could not have obstructed justice in violation of section 1503. We dis-
agree.

In United States v. Johnson, 605 F.2d 729 (4th Cir. 1979), we
upheld a section 1503 conviction of an already-convicted criminal
defendant who attempted to induce an adverse government trial wit-
ness to falsely recant his testimony while his direct appeal was being
prosecuted in a higher court. In Johnson, we held that a judicial pro-
ceeding was still pending in the trial court for the purposes of 18
U.S.C. § 1503 because of the possibility that the Court of Appeals
would reverse the defendant's conviction and remand for a new trial
during which the government witness could again testify.

Similarly, at the time of Seriani's September 21, 1992, letters,
Hirschfeld, Gaffney, and Duke's sentences were all still subject to
modification and thus there were pending sentencing proceedings for
the purposes of section 1503.

                    5
Under the prior version of Fed. R. Crim. P. 35, which was applica-
ble to Hirschfeld and Gaffney's sentences, "[a] motion to reduce a
sentence may be made, or the court may reduce a sentence without
motion, within 120 days after the sentence is imposed or probation is
revoked, or within 120 days after receipt by the court of a mandate
issued upon affirmance of the judgment or dismissal of the appeal."
Hirschfeld's direct appeal was denied on May 8, 1992, and the man-
date issued on June 19, 1992. S.A. at 692-709. Thus, Hirschfeld could
have moved for a sentence reduction or the court on its own motion
could have reduced his sentence through October 19, 1992. Gaffney
was sentenced on June 8, 1992, and his 120 day period under Rule
35(b) expired on October 8, 1992. S.A. at 721. Thus, at the time of
Seriani's September 21, 1992, letters, both Gaffney and Hirschfeld's
sentences were well within the 120 day period of Rule 35 and thus
still subject to modification. Johnson holds that such a possibility of
modification of an earlier judgment creates a "pending judicial pro-
ceeding" for the purposes of section 1503.

In addition, it is at least clear that a judicial sentencing proceeding
was commenced when Hirschfeld actually filed his Rule 35 motion
on October 8, 1992. Subsequent to that motion, Seriani sent another
false and obstructing letter to Judge Clark on Hirschfeld's behalf.
Thus, even if Hirschfeld's sentencing proceeding did not become
"pending" until October 8, a rational juror could conclude that Seriani
attempted to obstruct that pending proceeding.

Additionally, prisoner Gaffney at the very least commenced a for-
mal sentencing proceeding by moving for Rule 35 relief on October
5, 1992. As Gaffney attached a copy of Seriani's September 21, 1992,
letter urging Gaffney's release to that Rule 35 motion, Seriani can
also be said to have obstructed Gaffney's sentencing proceeding
which became pending when he formally moved for Rule 35 relief.

Finally, Seriani's September 21 letter on behalf of prisoner Duke
can be said to have obstructed pending proceedings at least two ways.
First, Seriani's September 21 letter on behalf of Duke was sent to a
United States Attorney during the time period within which the gov-
ernment was able to move the court for a reduction in Duke's sen-
tence under the current Rule 35. Second, Duke himself later formally
moved for a sentence reduction, and attached a copy of Seriani's letter

                    6
on his behalf to that motion. Thus, Duke's formal motion for a sen-
tence reduction, at a minimum, created a pending sentencing proceed-
ing.

Second, Seriani argues that the trial court, in effect, directed a ver-
dict for the government by instructing the jury that judicial proceed-
ings were pending at the time of Seriani's letters. The court did not,
however, direct a verdict for the government. Rather, it instructed the
jury that "the Government must prove that a judicial proceeding was
pending sometime within the time alleged in each count." S.A. at 670.
The court did go on to define that, under the law, the prisoners were
parties to pending judicial proceedings "for 120 days from the date
the mandate [in their criminal appeals] is received." S.A. at 670.
Obviously, this is a reference to the 120 day period under the old Rule
35 during which prisoners Hirschfeld and Gaffney's sentences were
still open to modification. Thus, the trial court merely instructed the
jury on the law, specifically, that judicial proceedings were pending
for 120 days after the entry of mandate in Hirschfeld and Gaffney's
criminal convictions. It did not improperly resolve any issues of fact,
and the trial court specifically instructed the jury that it "must decide
whether and when any such mandate was received." S.A. at 670.

Third, Seriani challenges his obstruction of justice convictions on
the grounds that the government did not allege or prove that the "nat-
ural and probable consequences" of Seriani's actions was to obstruct
justice. Appellant's argument is opaque, but the thrust of his argument
is, essentially, that he cannot have obstructed justice because none of
his letters was actually successful in obtaining the premature release
of any federal prisoners. Obviously, however, a defendant need not
actually succeed in his endeavor to obstruct justice; "the defendant
need only have had knowledge or notice that success in his fraud
would have likely resulted in an obstruction of justice." United States
v. Neiswender, 590 F.2d 1269 (4th Cir.), cert. denied, 441 U.S. 963
(1979). Here, the government properly alleged and proved obstruction
of justice charges against Seriani because if Seriani had been success-
ful in misleading the courts to reduce the prisoners' sentences, then
the natural and probable consequences of that success would have
been to obstruct justice.

Similarly, defendant's reliance on United States v. Aguilar, 115 S.
Ct. 2357 (1995), is misplaced. In Aguilar, the Supreme Court reversed

                    7
an obstruction of justice conviction on the grounds that the govern-
ment's evidence was insufficient to show that the defendant's false
statements to FBI agents were intended to obstruct a judicial proceed-
ing, in that case, a grand jury investigation. In fact, in that case the
government apparently did not even prove that the defendant knew
that his false statements to the FBI would be communicated to the
grand jury. Here, in contrast, the government alleged and proved that
defendant Seriani made false representations directly to the courts for
the purpose of influencing specific cases, and that Seriani knew that
his false statements were made directly to the courts.

Fourth, Seriani contends that the government failed to allege in its
indictment and prove at trial the essential elements of a conspiracy
charge under 18 U.S.C. § 371. Again, we find Seriani's argument
unpersuasive. The three elements of a conspiracy under section 371
are: "1) the existence of an agreement, 2) an overt act by one of the
conspirators in furtherance of the objective, and 3) an intent on the
part of the conspirators to agree as well as to defraud the United
States." United States v. Rankin, 870 F.2d 109, 113 (4th Cir. 1989).
Here, the government alleged in its indictment that Seriani and one
prison inmate discussed using Seriani's connections with Habitat for
Humanity to obtain reduced sentences for certain inmates, A. at 88;
that Seriani provided that inmate with various Habitat for Humanity
materials for that inmate's use in drafting fraudulent letters, A. at 88;
that Seriani actually signed those letters that were drafted by the
inmate on the stationery provided by Seriani; that Seriani followed
Hirschfeld's other detailed instructions on how and when to mail the
letters, A. at 88; that the inmate co-conspirator composed the Septem-
ber 21, 1992, letters with language "employed to give [Seriani] `wig-
gle room,' if necessary," A. at 93; and that Seriani and this co-
conspirator generally and willfully conspired to"mak[e] false, mis-
leading and deceitful representations and statements" in order to fur-
ther the release of certain inmates, A. at 87. These are sufficient
allegations to sustain Seriani's indictment for conspiracy to obstruct
justice under 18 U.S.C. § 371. Furthermore, our review of the record
reveals more than ample evidence to support the jury's verdict on this
conspiracy charge.

Fifth, Seriani argues that the district court committed reversible
error by admitting hearsay testimony in the form of a letter written

                     8
from prisoner Hirschfeld to Seriani. Of course, hearsay statements of
co-conspirators may be admissible. Fed. R. Evid. 801(d)(2). In this
case, we conclude that the district court did not err in allowing the
Hirschfeld letter because, prior to the admission of that letter, the gov-
ernment introduced sufficient and independent evidence of the exis-
tence of a conspiracy between Seriani and Hirschfeld. S.A. at 283-
300. Furthermore, even if the government had not introduced such
evidence prior to admission of the Hirschfeld letter, hearsay state-
ments of co-conspirators may themselves be introduced conditionally
in order to establish the existence of a conspiracy, see, e.g., United
States v. Mitchell, 733 F.2d 327 (4th Cir. 1984), and the Hirschfeld
letter here, we conclude, is in itself sufficient to prove the existence
of a conspiracy between Seriani and Hirschfeld.

Sixth, Seriani contends that the district court committed reversible
error by allowing the government at trial to introduce evidence of
Seriani's prior federal convictions. Fed. R. Evid. 404(b) provides that,
"[e]vidence of other crimes . . . is not admissible to prove the charac-
ter of a person in order to show action in conformity therewith," but
that such evidence may "be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." We conclude that the dis-
trict court did not abuse its discretion by permitting the government
to introduce evidence of Seriani's prior felony conviction for a pur-
pose other than that Seriani acted in conformity with a bad character
trait. In particular, the district court did not abuse its discretion by
concluding that Seriani's prior felony convictions were proper res
gestae evidence and admissible subject to a proper limiting instruc-
tion. S.A. at 18-24.

Finally, we affirm defendant Seriani's sentence and conclude that
the district court properly enhanced Seriani's offense level by two
levels for obstructing justice in accordance with§ 3C1.1 of the Sen-
tencing Guidelines. During the investigation leading up to his prose-
cution, Seriani admitted to two government agents that his September
21, 1992, letters were not candid. At trial, however, defendant Seriani
denied making those statements. S.A. at 814-16. At sentencing, the
district court concluded that the government proved, by a preponder-
ance of the evidence, that Seriani intentionally lied at trial regarding

                     9
his earlier statements. S.A. 851-52. This conclusion was based upon
ample evidence and is not clearly erroneous.

For the reasons stated herein, we affirm the judgment of the district
court.

AFFIRMED

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