Opinion
00 Cr. 632-07 (WHP)
September 4, 2002
David C. Esseks, Esq. United States Attorney's Office New York, New York.
Valerie Amsterdam, Esq. Amsterdam Branden New York, New York, Attorney for Defendant Cary Cimino.
MEMORANDUM AND ORDER
On July 25, 2002, this Court issued a Memorandum and Order denying defendant Cary Cimino's application to modify the April 5, 2001 plea agreement pursuant to Rule 32(e) of the Federal Rules of Criminal Procedure. The Court also denied the Government's application to sentence Cimino for conduct charged in the indictment to which he did not allocute and to deny his three-level downward adjustment for acceptance of responsibility for his criminal conduct. By letters dated July 29, 2002, Cimino and the Government moved for reargument of this Court's Order. For the reasons set forth below, defendant Cimino's motion for reconsideration is denied, and the Government's motion for reconsideration is granted. On reconsideration, the Government's underlying applications are granted in part and denied in part.
I. Defendant's Motion for Reconsideration
Cimino's motion to reconsider reiterates that his suggestion to have cooperating witness Warrington Gillet "whacked" was not serious, but instead "was puffing using tough-guy talk befitting of the Sparks [restaurant] rendezvous." (Letter of Valerie Amsterdam, dated July 29, 2002, at 3.) This argument presents no grounds for reconsideration.
As this Court held previously, the "Government's copious evidence supporting the two-level enhancement for obstruction of justice" clearly and convincingly established that Cimino's words were not in jest. See 18 U.S.C. § 1512 (a) (obstruction of justice statute regarding witness tampering prohibits "attempts to kill another person, with intent to prevent the attendance or testimony of any person in an official proceeding"); United States v. Livoti, 22 F. Supp.2d 235, 247 (S.D.N.Y. 1998) (murderous solicitation constituted obstruction of justice); United States v. Bufalino, 518 F. Supp. 1190, 1196 (S.D.N.Y. 1981) (indictment charging obstruction of justice charge was sufficient where it alleged that defendant obtained information about the secret location of the witness and commissioned someone to kill that witness). Accordingly, Cimino's motion for reconsideration is denied.
II. The Government's Motion for Reconsideration
The Government argues that this Court incorrectly accepted the terms of the plea agreement after both parties had repudiated that agreement. The Government asks this Court to (1) sentence Cimino based on the "full range of his conduct" by accounting for the charged racketeering act of murder solicitation; (2) deny Cimino's three-point reduction for acceptance of responsibility; and (3) add a two-level enhancement for obstruction of justice based on Cimino's alleged perjury at the Fatico hearing.
A. The Plea Agreement
Cimino asserts that his plea agreement is governed by Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure. Rule 11(e)(1)(C) provides that on entering a plea of guilty to a charged offense, the Government and the defendant may agree that "a specific sentence or sentencing range is the appropriate disposition of the case . . . Such a plea agreement is binding on the court once it is accepted by the court." Fed.R. Cr. Proc. 11(e)(1)(C) (emphasis added)
However, as noted by the Government, the plea agreement stipulated that the Court was not bound by the agreement, "either as to questions of fact or as to the determination of the proper guidelines to apply to the facts." (Plea Agreement at 5.) Thus, the plea agreement clearly is not governed by Rule 11(e)(1)(C).
Moreover, it is clear that the Court and the parties regarded the plea agreement as governed by Rule 11(e)(1)(B). Rule 11(e)(1)(B) provides that the Government can agree to "make a recommendation, or agree not to oppose the defendant's request for a particular sentence, with the understanding that such recommendation or request shall not be binding on the court." Here, this Court admonished Cimino prior to his plea that it could "disregard the plea agreement in any way, shape or form," that it could "disregard any position or recommendation by [his] attorney or the Government," that he could not rely on what his attorney or anyone else told him with respect to his ultimate sentence, and that the Court had the ability to impose whatever sentence it believed to be appropriate. (See Plea Transcript at 14-17.
Regardless of whether it viewed the plea agreement as governed by Rule 11(e)(1)(B) or (C), the Court nevertheless "accept[ed] the plea agreement in full" after finding that there was a factual basis for the plea, specifically for the obstruction of justice adjustment for murder solicitation. United States v. Cimino, No. 00 Cr. 632 (WHP), 2002 WL 1733650, at *3 (S.D.N.Y. July 25, 2001). On that ground, the Court also rejected Cimino's downward departure applications as "barred" by the plea agreement.
B. Cimino's Breaches
The Government contends that it was beyond this Court to accept a "repudiated" plea agreement. the plea agreement, the Government and the defendant
neither a downward nor an upward departure from the Sentencing range set forth above is warranted. Accordingly, neither party will seek such a departure or seek any adjustment not set forth herein, nor will either party suggest that the Probation Department consider such a departure or adjustment, or suggest that the Court sua sponte consider such a departure or adjustment.
(Letter of AUSA David C. Esseks, Esq., dated Apr. 3, 2002 at 1.) Nevertheless, on April 1, 2002, Cimino moved for a "recalculation of the guideline range as set forth in the plea agreement, specifically as said agreement provides for a two-level enhancement for obstruction of justice." (See Amsterdam letter, dated Apr. 1, 2002, at 1.) Cimino argued that a "modified Rule 32(e) analysis" could apply because he was not "fully knowing or voluntary with respect to the [potential] punishment" resulting from his plea, largely due to his unrequited expectancy of a 5K1 letter. (See Amsterdam letter, dated Apr. 1, 2002, at 1). In a separate application on that same day, Cimino "advise[d] the Court of [three] expected grounds for a downward departure." (See Amsterdam Letter, dated Apr. 1, 2002, at 1, 6.) On April 2, 2002, defense counsel submitted another letter stating that Cimino "moves for a downward departure" and attaching letters from his psychoanalyst as well as family and friends in support of his downward departure applications. (See Amsterdam Letter, dated Apr. 2, 2001.) Cimino's challenge to the plea agreement's obstruction of justice enhancement necessitated a three-dayFatico hearing. In addition, his applications clearly contradicted the plea agreements' proscriptions against moving for departures or adjustments or suggesting that the Court do so. Thus, Cimino breached the plea agreement.
Although a plea agreement is a special kind of contract that implicates unique fairness concerns, it is nevertheless a contract that is construed according to ordinary principles of contract law. United States v. Padilla, 186 F.3d 136, 141 (2d Cir. 1999). It is a general rule of contract law that a material breach excuses non-performance by the non-breaching party. See Restatement (Second) of Contracts § 237 and comment b (1981) (a party is relieved of continued performance under a contract if a "material failure" in performance goes uncured); see also Jafari v. Wally Findlay Galleries, 741 F. Supp. 64, 68 (S.D.N.Y. 1990) ("where a party materially breaches, he has failed to substantially perform the contract, and the other party is discharged from performing his obligation")
Accordingly, Cimino's breach of the plea agreement excuses the Government from being bound by the agreement, and therefore the Government's applications must be considered on their merits.
C. Murder Solicitation as a Racketeering Act
This Court has already found that the Government proved by clear and convincing evidence that Cimino solicited the murder of cooperating witness Warrington Gillett in order to evade prosecution. See Cimino, 2002 at 1733650, at *4; see also United States v. Ruggiero, 100 F.3d 284, 291 (2d Cir. 1996) (district court properly applied the preponderance of the evidence standard when determining the extent of defendant's relevant conduct) Section lB1.3(1)(A) of the Sentencing Guidelines provides that a base offense level "shall be determined on the basis of. all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant."
In addition, Section 3C1.1 provides that a two-level upward adjustment shall be applied to the offense level calculation of any defendant found to obstruct justice. However, when a defendant is sentenced for conduct that would have also constituted obstruction of justice, section 3C1.1's adjustment should not be applied unless significant other obstruction occurred. U.S.S.G. § 3C1.1, cmt. (n. 7) (applying to conduct qualifying under section 2J1.2 (Obstruction of Justice)). Thus, Cimino's sentence will account for his murder solicitation conduct as a racketeering act.
D. Calculating the Offense Level
The Sentencing Guidelines provide that the base offense level for racketeering offenses is the greater of 19 or the "offense level applicable to the underlying racketeering activity." U.S.S.G. § 2E1.1. Cimino's base offense level, therefore, will be governed by section 2E1.4's offense level of 32. See U.S.S.G. § 2E1.4 ("Use of Interstate Commerce Facilities in the Commission of Murder-For-Hire.") An increase of one offense level applies under section § 3D1.4, resulting in a combined offense level of 33.
The murder solicitation conduct, as the group with the highest offense level, merits one Unit pursuant to section 3D1.4 (a), and the money laundering group with a combined offense level of 27, merits 1/2 unit pursuant to section 3D1.4 (b). The securities fraud group, (offense level of 22), and the the extortion group, (offense level of 19), warrant no additional units because their offense levels are more than nine levels less serious that the murder solicitation group. U.S.S.G. § 3D1.4 (c). A combined offense level enhancement of one level results from 1 and 1/2 Units. U.S.S.G. § 3D1.4 (c).
E. Obstruction of Justice
The Government also seeks a two-level obstruction of justice enhancement pursuant to section § 3C1.1 based on Cimino's apparent perjury during the Fatico hearing. (Letter of AUSA David C. Esseks, Esq., dated July 29, 2002 at 3.)
An enhancement for obstruction of justice may be granted "if the court finds that the defendant willfully and materially impeded the search for justice in the instant offense." United States v. Zagari, 111 F.3d 307, 329 (2d Cir. 1997). To apply an obstruction of justice enhancement on the basis of apparent perjury, a sentencing court must explicitly find that the defendant gave "'false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory' — i.e., that the defendant committed perjury rather than simply providing false testimony." Zagari, 111 F.3d 307, 329 (citing United States v. Dunnigan, 507 U.S. 87, 94 (1993)); accord U.S.S.G. § 3C1.1, n. 3 (finding enhancement appropriate where, inter alia, a defendant commits perjury or produces a false document during a judicial proceeding).
As this Court noted, Cimino testified incredulously when he stated that his suggestion to kill Gillett was facetious. Moreover, as this Court also found, Cimino's testimony that he did not instigate the assault on Norman Lescht to collect money contradicted Cimino's sworn plea allocution before this Court. In light of the defendant's willfully duplicitous testimony during the Fatico proceeding regarding matters that materially pertained to his sentencing, the Government's application for a two-level enhancement is granted.
F. Acceptance of Responsibility
The Government further asks this Court to deny Cimino's three level downward adjustment for accepting responsibility pursuant to Section 3E1.1 of the Sentencing Guidelines. That application is denied.
Downward adjustment for acceptance of responsibility is in the discretion of the court. U.S.S.G. § 3E1.1 note 5 (2000) (sentencing judge is entitled to "great deference" on review); United States v. Defeo, 36 F.3d 272, 277 (2d Cir. 1994) (district court's determination of whether a defendant is entitled to a reduction for acceptance of responsibility is given great deference and "will not be disturbed unless it is without foundation"). At the time of his allocution, Cimino accepted responsibility for the racketeering acts of securities fraud, money laundering, and extortion. While Cimino's applications resulted in post plea proceedings, the majority of his sentence nevertheless resulted from Cimino's guilty plea which undoubtedly simplified the Government's effort.
Taking into account Cimino's 3-level downward adjustment for accepting responsibility, his adjusted offense level is 32.
Conclusion
The Government's application to treat Cimino's murder solicitation as a racketeering act for sentencing and to enhance his sentence two levels for obstruction of justice based on his perjury at the Fatico hearing is granted. The Government's application to deny Cimino's three-level deduction for acceptance of responsibility is denied. In addition, Cimino's motion for reconsideration is denied.