United States v. Serafini ( 2000 )

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit
11-28-2000
United States v. Serafini
Precedential or Non-Precedential:
Docket 99-3994
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Filed November 28, 2000
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NOS. 99-3994, 00-3005
UNITED STATES OF AMERICA
v.
FRANK SERAFINI,
(Appellant in 99-3994)
UNITED STATES OF AMERICA
(Appellant in 00-3005)
v.
FRANK SERAFINI
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 97-cr-00225-6)
District Judge: Honorable Thomas I. Vanaskie
Argued July 20, 2000
Before: RENDELL and ROSENN, Circuit Judges,
and O'NEILL, Senior District Judge*
(Filed November 28, 2000)
_________________________________________________________________
* The Honorable Thomas N. O'Neill, Jr., Senior United States District
Judge for the Eastern District of Pennsylvania, sitting by designation.
Bruce Brandler, Esq. [ARGUED]
Office of U.S. Attorney
Federal Building
228 Walnut Street
P. O. Box 11754
Harrisburg, PA 17108
Counsel for Appellee/Cross-Appellant
United States of America
Sal Cognetti, Jr., Esq. [ARGUED]
Foley, Cognetti, Comerford & Cimini
700 Scranton Electric Building
507 Linden Street
Scranton, PA 18503
-and-
Daniel T. Brier, Esq.
Donna A. Walsh, Esq.
Myers, Brier & Kelly
425 Spruce Street, Suite 200
Scranton, PA 18503
Counsel for Appellant/Cross-Appellee
Frank Serafini
OPINION OF THE COURT
RENDELL, Circuit Judge.
In this appeal, Frank Serafini challenges his conviction
and sentence for one count of perjury in violation of 18
U.S.C. S 1623 (1994).1 Serafini, a popular state legislator in
northeastern Pennsylvania, was convicted based on his
false testimony before a federal grand jury; the grand jury
was investigating a scheme wherein corporate political
_________________________________________________________________
1. The District Court had jurisdiction over this federal criminal case
pursuant to 28 U.S.C. S 1331. We have jurisdiction over the appeal from
the final judgment of conviction and sentence pursuant to 28 U.S.C.
S 1291 and 18 U.S.C. S 3742(a)(2), with the exception of the government's
challenge to the District Court's recommendation as to the location of
Serafini's imprisonment; as explained below, see infra pp. 30-31, we
conclude that we have no jurisdiction over the challenge to the
recommendation of a place of confinement.
2
contributions were funneled through thir d-party conduits
in violation of federal election laws. In his grand jury
testimony, Serafini had denied that he was r eimbursed for
a contribution he had made to Senator Bob Dole's
presidential campaign. In seeking to overtur n his
conviction, Serafini maintains on appeal that (1) the
prosecutor's questioning before the grand jury was
insufficiently precise to support a perjury conviction; (2) the
District Court was wrong to strike only one aspect of
Serafini's indictment, but should instead have dismissed
the indictment in full; (3) the government's purported
failure to disclose during discovery that its key witness had
been re-immunized violated Serafini's due pr ocess rights;
(4) the District Court erred in several evidentiary rulings,
most notably in admitting a digital recor ding of Serafini's
grand jury testimony and in admitting documentary
evidence and live testimony concerning other people's
participation in the scheme; and (5) the gover nment's
evidence was legally insufficient to support a conviction.
Serafini also challenges his ten-month split sentence,2
arguing that the District Court had no basis for a three-
level enhancement for "substantial interfer ence with the
administration of justice." See U.S.S.G.S 2J1.3(b)(2).3 The
government cross-appeals Serafini's sentence, contesting
both the fact and the extent of the District Court's three-
level downward departure for exceptional civic or charitable
contributions pursuant to U.S.S.G. S 5H1.11. The
government also challenges the District Court's
recommendation as to where Serafini's sentence should be
served, arguing that the facility recommended is not a
proper location for "imprisonment" under the Sentencing
Guidelines.
We conclude that Serafini received a fair trial in all
respects and will affirm his conviction. We further conclude
_________________________________________________________________
2. The District Court sentenced Serafini tofive months' imprisonment
and five months' house arrest as a condition of supervised release. The
District Court recommended that the Bur eau of Prisons designate the
Catholic Social Services of Lackawanna County Residential Program as
the location for the imprisonment portion of the sentence.
3. All references in this opinion ar e to the version of the Sentencing
Guidelines that became effective November 1, 1998.
3
that the District Court's enhancement and downwar d
departure were not an abuse of its discr etion, but that its
confinement recommendation was subject to question. We
will nonetheless affirm Serafini's sentence.
I. Facts and Procedural History4
Serafini was subpoenaed to testify before a grand jury
that was investigating possible violations of the Federal
Election Campaign Act (FECA), 2 U.S.C. SS 431-456.5 The
principal targets of the probe wer e Renato Mariani,
president of Empire Sanitary Landfill, Inc. (Empire), and
Serafini's nephew, Michael Serafini. The appar ent violations
were that Michael Serafini6 and his secretary had solicited
numerous employees, business associates, and family
members to make $1,000 contributions to Senator Bob
Dole's presidential campaign, and that Michael reimbursed
them for these contributions;7 the resulting transactions
between Michael and these "conduits" ther efore allegedly
violated FECA. See 2 U.S.C. S 441f ("No person shall make
a contribution in the name of another person or knowingly
permit his name to be used to effect such a contribution
. . . .").
Serafini allegedly had a close and longstanding
connection with Michael and with Empire, a landfill located
_________________________________________________________________
4. Because Serafini was convicted after a jury trial, we must defer to the
jury's verdict and view the evidence in the light most favorable to the
government. See United States v. Davis, 183 F.3d 231, 238 (3d Cir.
1999). Therefore, we recount the government's version of the facts.
5. FECA prohibits corporations from making contributions in connection
with any federal election. See 2 U.S.C.S 441b(a). FECA also makes it
unlawful for any person to make a contribution in the name of another
person (referred to in this opinion as a"conduit"), or for any person to
permit his or her name to be used as a conduit. See id. S 441f. FECA
limits individual contributions to federal candidates to $1,000 per
election per candidate. See id. S 441a(a)(1)(A).
6. Throughout this opinion, we will use the name "Serafini" to refer to
Frank Serafini, and "Michael" to refer to Michael Serafini.
7. Michael was in turn reimbursed by an Empire corporate check signed
by Renato Mariani. See Gov't Suppl. A. at 48 (chart detailing the flow of
the contributions and reimbursement checks).
4
in Pennsylvania. At the time of the events in question,
approximately 80 to 90 percent of the waste dumped at
Empire originated from out of state, see A. at 1737-38, but
legislation was pending in the United States Senate that
would have prohibited or restricted the importation of out-
of-state waste, see A. at 1784. Empir e lobbied Senator
Dole, the Senate majority leader, to alter or block this
legislation. See A. at 1798-1804. Serafini had both personal
and financial connections to Empire: his nephew Michael
was Empire's second-in-command, and Serafini was himself
a 50 percent owner of a family partnership that had sold
Empire the land on which it operated and that r eceived a
$1.50 royalty for each ton of waste disposed at Empire. See
A. at 1711, 1897, 2484, 2798, 3442-46, 3606. Serafini's
landfill royalty income formed the vast majority of his total
income; his annual royalties in 1995-97 ranged from
slightly over $800,000 to nearly $1.1 million. See A. at
1322, 1324, 1326. Serafini allegedly played a r ole in
Empire's lobbying activities; he wrote a letter in 1986 to the
former U.S. Attorney requesting investigation of a
Congressman whom Serafini claimed was "holding up a
permit" for Empire, see A. at 3439, and he also joined
Michael and other Empire officials on a lobbying trip to
Washington, D.C. in 1995, see A. at 1644-46.
Serafini was called before the grand jury to answer
questions about Michael's having solicited Serafini for a
$1,000 contribution and allegedly having reimbursed him
for that contribution. When he first appear ed before the
grand jury, Serafini invoked his Fifth Amendment rights
and was excused. See A. at 226-27. The gover nment then
sought and received an order immunizing Serafini so that
the government could compel his testimony before the
grand jury; the resulting subpoena order ed him to produce
"[a]ll documents relative to political contributions you were
reimbursed for." A. at 234. During Serafini's appearance
before the grand jury, the Assistant U.S. Attor ney informed
him that he could be prosecuted if he pr ovided false
testimony. See A. at 326. Although Serafini did
acknowledge that Michael had solicited and obtained from
him a $1,000 contribution to Dole, see A. at 339, he denied
that a $2,000 check given to him by Michael that same
week was in part a reimbursement for that contribution.
5
Instead, Serafini maintained that the $2,000 pr obably
represented Michael's reimbursing Serafini for payments
that Serafini made to a mechanic who had fixed Michael's
Porsche.8 The following excerpts from Serafini's grand jury
testimony formed the predicate for his subsequent
indictment for perjury:9
Statement 1:
Q: And did you bring any documents pursuant to the
subpoena that required your appearance her e
today?
A: I don't have the documents, I don't have
documents with me but the subpoena, because the
subpoena didn't require any. The way I r ead the
subpoena, I have a copy of it, all documents
relative to political contributions you wer e
reimbursed for, and I was not r eimbursed for any
contributions.
A. at 327-28 (emphasis added).
Statement 2:
Q: Well, then why wouldn't he reimburse you for your
Dole contribution under the same rationale?
_________________________________________________________________
8. At the time of Serafini's testimony befor e the grand jury, the
government did not know why Michael's r eimbursement check to
Serafini had been for $2,000 rather than $1,000. The government later
had grounds to believe that the second $1,000 r epresented
reimbursement for a $1,000 contribution that Serafini's legislative aide,
Thomas Harrison, had made to the Dole campaign. Serafini had
reimbursed Harrison, and so Michael's check to Serafini apparently
served to reimburse Serafini both for Serafini's own contribution and for
that made by Harrison.
9. These questions and responses are r eproduced here verbatim, except
that they have been numbered so that they need not be repeated
throughout this opinion. We will r efer to these statements as "Statement
1," etc. Statements 1, 2, 4, and 5 appear as they did in the redacted
transcript of Serafini's grand jury testimony; because Statement 3 was
eventually stricken in part from the redacted version, it appears here as
it did in the original transcript. See infra pp. 10, 11-12 (describing why
Statement 3 was not included in the final perjury indictment).
6
A: Because I wanted to contribute to Bob Dole.
Q: And you didn't want to fix his car?
A: Not necessarily --
Q: Oh, I see.
A: -- would you?
Q: I don't know.
A: And $2,000 for a thousand dollar contribution.
Q: $2,000 for what?
A: $2,000 --
Q: What was that last statement?
A: $2,000 this check is for, if I see it correctly?
Q: Right.
A: And my check here is for a thousand dollar
contribution?
Q: Right. So you are saying you don't know what the
other thousand dollars is for?
A: I would not relate it to that --
Q: What would you relate?
A: -- in my mind.
Q: What would you relate it for?
A: To something else, whether it wasfixing his car,
whether it is something else. It could be something
else and that's just what I am saying to you now,
because when he asked me for a thousand dollar
contribution I wrote a check for a thousand
dollars, I found no problem with that, I was
delighted, I was happy to be able to do it.
A. at 349-350 (emphasis added).
Statement 3:
Q: Is there any check that you received that
reimbursed you other than that $2,000 check for
your contribution?
7
A: No.
Q: Is there another check that you ar e aware of that
is connected to this investigation, to this Dole
contribution, other than the $2,000?
A: Not other than what you have shown me today, no.
A. at 296 (emphasis added).
Statement 4:
Q: And you have no knowledge, as you sit her e today,
or is it accurate that as you sit here today you
have no knowledge why Michael issued that check
to you for $2,000?
A: I still think the $2,000 would have been just around
the time that I was fixing his car, the transmission
was gone, I was fixing it, it is just about that
amount of money that would have paid for the
repair. It could have been for a number of things,
but it certainly does not relate to me contributing to
Bob Dole. I contribute quite frequently to
candidates and those kind of amounts.
A. at 359-360 (emphasis added).
Statement 5:
Q: I am going to wrap this up. I want to make sur e we
are absolutely on the same page here, ther e is no
misunderstanding. It is your testimony under
oath, as you sit here today, that as far as you're
concerned, as far as you know, there is no
connection between the check that you wrote to
Dole for President dated April 27th of '95 for
$1,000, check 3781, and the check that you
received from the Michael Serafini-Melinda
Marcotte account dated April 25th of '95 for
$2,000, it is your testimony that there is no
connection between these two items?
A: In my mind I can honestly say that ther e is no
connection between those two checks, the thousand
and the two thousand. In my, I mean in my mind
I know I contributed to Bob Dole because I wanted
8
to contribute to him without reimbursement. The
$2,000, I truly believe I cashed that check and
spent it to, for another reason, I am assuming it
was when I was fixing his vehicle.
A. at 371-72 (emphasis added). About a week after
Serafini's appearance before the grand jury, Serafini's
legislative aide, Thomas Harrison, testified in fr ont of the
grand jury. See Gov't Suppl. A. at 82-122. When the
prosecutor confronted Harrison with a r ecently discovered
reimbursement check drawn on Serafini's account and
deposited to Harrison's, Harrison admitted that Serafini
had solicited and reimbursed Harrison for his Dole
contribution, see id. at 87-88, and that he[Harrison] had
previously lied to FBI agents and to the grand jury about
this contribution in order to "protect Frank and kind of
insulate him from this," A. at 2631. See also A. at 2670-71;
Gov't Suppl. A. at 97.
Based on Harrison's statements and other evidence
resulting from the investigation, the grand jury indicted
Serafini for perjury. Serafini moved to dismiss the
indictment on the basis that the grand jury questioning
was insufficiently precise to support a perjury allegation.
The United States District Court for the Middle District of
Pennsylvania, Chief Judge Thomas I. Vanaskie, dismissed
the portion of the indictment that was based on Statement
3, finding that the grand jury questioning with r egard to
Serafini's awareness of other checks in the contribution
scheme "was so ambiguous and unclear as to pr eclude a
perjury conviction." A. at 5 (Dist. Ct. Mem. Op., Apr. 7,
1998). However, the District Court denied the motion to
dismiss the indictment in all other respects. 10
The case proceeded to trial. At trial, Michael did not
testify. The government presented as its principal evidence
Harrison's testimony regarding his transactions with
Serafini; the testimony of other "conduits" describing their
own transactions with Michael and with other Empir e
officials; and a series of 34 checks, all fr om the same
_________________________________________________________________
10. The government filed an interlocutory appeal of the District Court's
dismissal of the indictment insofar as it related to Statement 3, and we
affirmed. See United States v. Serafini
, 167 F.3d 812, 824 (3d Cir. 1999).
9
sequence of checks, showing reimbursements paid by
Michael to Serafini and to the other conduits. The
government also introduced evidence r elating generally to
Serafini's financial and personal relationship with Michael
and with Empire. The jury convicted Serafini of perjury.
Chief Judge Vanaskie then sentenced Serafini to the ten-
month split sentence described above. See supra note 2.
Serafini now appeals his conviction and sentence.
II. Discussion
A. The Validity of the Indictment
Serafini asserts two challenges to the validity of his
indictment: first, that the prosecutor's questioning of him
before the grand jury was impermissibly vague, and second,
that the District Court's dismissal of the portion of the
indictment concerning Statement 3 should have led to its
dismissal of the entire indictment. We exercise plenary
review over the District Court's denial of the motion to
dismiss the indictment. See United States v. Serafini, 167
F.3d 812, 819 (3d Cir. 1999).
For the first proposition, Serafini r elies on Bronston v.
United States, 409 U.S. 352, 362 (1973), in which the
Supreme Court held that a defendant could not be
convicted of perjury for giving misleading, nonr esponsive,
but literally true answers to the prosecutor's questions. The
Supreme Court emphasized that it is incumbent upon the
questioner to frame sufficiently precise questions:
[T]he perjury statute is not to be loosely construed, nor
the statute invoked simply because a wily witness
succeeds in derailing the questioner -- so long as the
witness speaks the literal truth. The burden is on the
questioner to pin the witness down to the specific
object to the questioner's inquiry.
Id. at 361. Serafini claims that he did not understand the
central concept of "reimbursement" in the same way that
the prosecutor did; Serafini says that he did not believe the
check from Michael to constitute "reimbursement,"
because, he, Serafini, would have given money to Dole in
any event, regardless of whether Michael paid him back for
10
the contribution. Therefore, Serafini ar gues, the questions
put to him were vague and his answers cannot form the
basis for a perjury conviction. This assertion is without
merit. Serafini's attempts to transform the common term
"reimbursement" into a technical ter m whose meaning
would escape a sophisticated state legislator ar e unavailing.11
Furthermore, Serafini's statements before the grand jury go
far beyond a denial of "reimbursement." In Statement 2,
Serafini said that he would "not relate" the $2,000 check to
his $1,000 check for Dole, but would relate it"[t]o
something else, whether it was fixing his car , whether it is
something else." Statement 4 fleshes out Serafini's
assertion that the $2,000 check was related to the car
expenditures, "but . . . certainly does not relate to me
contributing to Bob Dole." Statement 5 is per haps the most
specific: "In my mind I can honestly say that there is no
connection between those two checks, the thousand and
the two thousand." These answers, unlike those at issue in
Bronston, were directly r esponsive to the prosecutor's
questions and clearly stated that there was absolutely no
connection between the check for the Dole campaign and
the check received from Michael. These unambiguous
questions and responses are sufficient to form the basis for
a perjury indictment.
We also reject the argument that the rest of the
indictment should have been dismissed merely because the
portion relating to Statement 3 was dismissed. The
questioning for Statement 3 was vague as to exactly which
checks were being discussed; the questions and answers in
Statements 1, 2, 4, and 5 simply do not relate to the issue
_________________________________________________________________
11. Webster's Third New Inter national Dictionary defines
"reimbursement" as "the action of reimbursing" and "reimburse" as"to
pay back (an equivalent for something taken, lost, or expended) to
someone." Webster's Third New Int'l Dictionary 1914 (1961). The District
Court noted the straightforward nature of the dictionary definition, and
continued: "As it is used in its common parlance, reimbursement means
the delivery of money to a person to pay back that person for money that
the person expended for some matter." A. at 23 (Dist. Ct. Mem. Op. Apr.
7, 1998).
11
of other checks, and, as we have already noted, do not
suffer from ambiguity.12
We will therefore affirm the District Court's denial of
Serafini's motion to dismiss the indictment.
B. Disclosure of Harrison's Immunity
Serafini claims that the government committed a due
process violation during discovery by not disclosing the fact
that Harrison had been "re-immunized" fr om prosecution
before his second grand jury appearance. Serafini cites the
Supreme Court's decisions in Brady v. Maryland and Giglio
v. United States as support for the contention that evidence
of this type must be disclosed. See Brady v. Maryland, 373
U.S. 83, 87 (1963) (stating that due process r equires the
government to disclose material exculpatory evidence upon
the defendant's request); Giglio v. United States, 405 U.S.
150, 154-55 (1972) (stating that the government's failure to
disclose a promise of immunity made to a critical witness
constituted a due process violation, because evidence of an
agreement as to immunity was relevant to the witness's
credibility). Serafini claims that the gover nment failed to
disclose that Harrison was immunized from pr osecution for
perjury, see Serafini Br. at 41, and asserts that defense
counsel's cross examination of Harrison at trial would have
been different in content and appr oach had the defense
been aware of this renewed immunity.
The problem with Serafini's claim is that the purported
"re-immunization" consists of nothing mor e than the
following exchange in the transcript of Harrison's second
appearance before the grand jury:
Q: Now, as it was the last time, you are testifying here
today under an order of immunity signed by Judge
Vanaskie, which requires you to testify despite the
existence of any constitutional privilege against self
incrimination. That order compels you to testify on
_________________________________________________________________
12. Serafini's citation to United States v. D'Alessio, 822 F. Supp. 1134
(D.N.J. 1993), a case in which the counts of the indictment were very
difficult to disentangle, and in which ther e was considerable confusion
as to whether the underlying behavior was criminal under New Jersey
law, is therefore inapposite.
12
the condition that your testimony may not be used
against you in a criminal case. You do not have
immunity from perjury or making false statements
in your testimony today, do you understand?
A: Yes.
Q: If you commit perjury, or make a false statement,
you can be prosecuted for that perjury or false
statement despite the grant of immunity and your
testimony here today could be used against you in
the prosecution, do you understand?
A: Yes.
Gov't Suppl. A. at 85. This exchange makes it clear that
Harrison's immunity extended only to the underlying
conduct about which he testified; Harrison was not
immune from a subsequent perjury prosecution in the
event that his statements in his second appearance before
the grand jury proved to be false. Serafini does not contest
the government's assertion that the gover nment turned
over the grand jury transcript to defense counsel two weeks
before trial -- well before the time that Brady or Giglio
would require. See Gov't Br . at 38; Serafini Reply Br. at 36.
Because Serafini has not offered evidence of any promises
of immunity to Harrison made outside the grand jury
proceedings,13 we can find no discovery violation on this
record.
C. Evidentiary Rulings
1. Digital Recording
Serafini contends that the District Court abused its
discretion by permitting the gover nment to play for the jury
a digital recording of a redacted version of Serafini's grand
jury testimony.14 The story of the history and chain of
_________________________________________________________________
13. Serafini quotes an excerpt from the government's sentencing
memorandum, see A. at 3701-02, as support for the assertion that
Harrison was given blanket immunity -- even fr om perjury at his second
grand jury appearance or at his trial appearance. W e conclude that
Serafini reads more into the prosecutor's offhand use of the word "re-
immunization" than is reasonable given the clear record evidence in the
case.
14. We review the District Court's decisions as to the admissibility of
evidence for abuse of discretion. See United States v. Pelullo, 964 F.2d
13
custody of this recording -- from"original tapes" of the
grand jury testimony, to the "redacted tapes," to the "digital
version" of these tapes -- is quite complex. However, the
relevant facts for our purposes can be succinctly stated.
Serafini argues on appeal that the District Court should
not have admitted the digital version of the tapes, because
(1) the digital version was not individually authenticated
and offered in evidence; and (2) the digital version differs
materially from the original version. Serafini cites the report
of defense expert James B. Reames; Reames concluded that
the redacted copy of the tape contained "severe distortion of
the spoken words" as compared to the original tape. A. at
3413. The problem with Serafini's argument is that
Reames's objections are directed at the r edacted version,
not the digital version, and it is the digital version's content
that is the issue presented to us. The r ecording -- which
turned out to be the digital recor ding -- was offered in
evidence without objection from Serafini, see A. at 1300.
Even if we accept defense counsel's contention that he
thought the recording being played at trial was the redacted
and not the digital version, the lack of objection at trial
waived any subsequent objection to the r edacted version,
thus obviating the relevance of Reames' r eport.15
As for the digital version, we have no basis for concluding
that there were material differ ences between it and the
redacted tape. The trial judge compared all three versions
of the audio recordings, and could not discern any material
differences among the versions. See A. at 3082-84.16
_________________________________________________________________
193, 199 (3d Cir. 1992). To the extent that these rulings were based on
an interpretation of the Federal Rules of Evidence, however, our review
is plenary. See id.
15. Serafini apparently does not appeal the evidentiary ruling insofar as
it held that the redacted version was authentic and admissible. Even if
we were to construe Serafini's appellate briefs as raising a challenge to
the authenticity of the redacted tape, his lack of objection at trial
means
that we could review the District Court's ruling only for plain error, see
Fed. R. Crim. P. 52(b), and we find no plain error.
16. It is worth noting that both parties agr eed to Chief Judge Vanaskie's
suggestion that he would listen to the tapes to assess whether he could
notice a difference among the thr ee versions, and would determine
whether a hearing was necessary based on his assessment. See A. at
2794-95, 3068-69, 3070-73.
14
Serafini levels a broad challenge but fails to point to any
specific differences between the r edacted and the digital
versions. In fact, he maintains that he was unable to tell
from the playing of the recording at trial that it was not the
redacted version. See Serafini Br . at 22.
We find, therefore, that even if the District Court erred in
its decision to play the digital rather than the r edacted
version of the recording, it did not af fect Serafini's
substantial rights, and was thus harmless. See Government
of the Virgin Islands v. Toto, 529 F.2d 278, 283-84 (3d Cir.
1976); see also Chapman v. California, 386 U.S. 18, 23-24
(1967).
2. Conduit Evidence
Serafini argues that the District Court abused its
discretion in admitting evidence of the conversations and
the transfer of funds in transactions that involved other
"conduits" like Serafini -- i.e., other people through whom
Michael and Empire funneled contributions -- but did not
involve Serafini himself. The evidence admitted by the
District Court consisted of reimbursement checks and
conduit witnesses' testimony as to the conversations. These
conduit conversations fall into two categories: those to
which Michael was a party, and those to which he was not.
The District Court admitted testimony in both categories.
We conclude that the District Court did not abuse its
discretion in admitting the checks that wer e in the same
series of checks as the check issued to Serafini, nor in
admitting the testimony as to the conversations that
involved Michael. In order to prove that Serafini had
committed perjury, the government was r equired to
demonstrate the falsity of Serafini's claim that the check he
received from Michael was not a reimbursement. See A. at
695-96. The fact that the Serafini check was one in a series
of apparent reimbursement checks was r elevant to this
requirement. Michael's previous actions were relevant to
show that Michael, one of the parties to the transaction
involving Serafini, understood it as a reimbursement.
Serafini argues that even if the checks wer e admissible, the
conversations were inadmissible hearsay. W e conclude that
the conversations in which Michael was involved wer e
15
admissible under the hearsay exception provided by Federal
Rule of Evidence 803(3),17 as evidence of Michael's state of
mind at the time of the conversations. Michael's state of
mind during these conduit transactions was r elevant to
show that he intended his check to Serafini to be a
reimbursement (as he did with the other conduits); this
evidence tends to support an inference that it was Michael's
general practice to reimburse contributors for their
contributions, and thus that the check to Serafini was in
fact a reimbursement.
The admission of the conduit conversations that did not
involve Michael had a far more attenuated connection to
Serafini's guilt. We find some merit to Serafini's contentions
that these were of marginal relevance and were
inadmissible as hearsay. However, the evidence contained
in these conduit conversations was almost wholly
cumulative of the evidence contained in those conversations
that did involve Michael, which, as described above, were
properly admitted into evidence. We ther efore find that the
error, if any, in admitting the r emaining conduit
conversations did not affect Serafini's substantial rights,
and was therefore harmless.18
_________________________________________________________________
17. We also conclude that the District Court did not abuse its discretion
in determining, pursuant to Federal Rule of Evidence 403, that the
probative value of these conversations, and of the checks, was not
substantially outweighed by their prejudicial effect -- a determination to
which we must give "substantial deference." Hurley v. Atlantic City Police
Dep't, 174 F.3d 95, 110 (3d Cir. 1999). We note also that the District
Court properly gave a cautionary instruction to limit the danger of unfair
prejudice. See A. at 3337-38 (District Court's statement that the jury
could not consider the conduit evidence to establish Serafini's
knowledge).
18. Serafini also raises challenges to other evidentiary decisions made by
the District Court, including the exclusion of hearsay concerning the
purported car repairs, and the admission of (1) evidence concerning
Serafini's financial stake in Empire; (2) evidence that Empire paid
Serafini's counsel fees; (3) portions of the agr eement to sell Empire;
(4)
a letter Serafini wrote to his Congressman concerning Empire; and (5)
evidence as to Serafini's involvement in Empir e lobbying. We find no
error in the District Court's rulings or its r easoning on these matters,
and will affirm these evidentiary rulings.
16
D. Sufficiency of the Evidence
Serafini's final objection to his conviction is that the
government's evidence was legally insufficient to support a
conviction for perjury. The burden on a defendant who
raises a challenge to the sufficiency of the evidence is
extremely high. "We determine whether there is substantial
evidence that, when viewed in the light most favorable to
the government, would allow a rational trier of fact to
convict." United States v. Helbling, 209 F.3d 226, 238 (3d
Cir. 2000) (quoting Government of the Virgin Islands v.
Charles, 72 F.3d 401, 410 (3d Cir . 1995)). 18 U.S.C.
S 1623(a) provides:
Whoever under oath (or in any declaration, certificate,
verification, or statement under penalty of perjury as
permitted under section 1746 of title 28, United States
Code) in any proceeding before or ancillary to any court
or grand jury of the United States knowingly makes
any false material declaration or makes or uses any
other information, including any book, paper ,
document, record, recording, or other material,
knowing the same to contain any false material
declaration, shall be fined under this title or
imprisoned not more than five years, or both.
Serafini's argument that the evidence is insufficient rests
primarily on the fact that the evidence presented
concerning Serafini's state of mind was cir cumstantial in
nature. However, we have recognized that intent and
knowledge may be proven via circumstantial evidence. See
United States v. Iafelice, 978 F.2d 92, 97 (3d Cir. 1992); see
also United States v. Chapin, 515 F.2d 1274, 1280 (D.C.
Cir. 1975) ("[P]erjury cases . . . ar e susceptible to proof by
circumstantial evidence, and in fact ar e peculiarly likely to
be proven in this manner because one of the elements of
the crime is that the defendant knew his statement was
false when he made it."). Viewing the evidence in this case
in the light most favorable to the government, we find that
the evidence -- including but not limited to Harrison's
testimony, Serafini's grand jury testimony, and the
admissible conduit evidence -- was easily sufficient for a
rational factfinder to find that Serafini perjured himself in
denying that the $2,000 check was a reimbursement for his
17
and Harrison's contributions to the Dole campaign, and in
stating that the $2,000 had nothing to do with these
contributions. The evidence was therefor e sufficient to
support Serafini's conviction.
E. Sentencing Issues
1. Increase in Offense Level for Substantial Interference
After ascertaining that the base offense level for perjury
before a grand jury was 12, see U.S.S.G. S 2J1.3(a), the
District Court applied a three-level enhancement for
"substantial interference with the administration of justice,"
id. S 2J1.3(b)(2). An application note to this section of the
Guidelines explains:
"Substantial interference with the administration of
justice" includes a premature or impr oper termination
of a felony investigation; an indictment, ver dict, or any
judicial determination based upon perjury, false
testimony, or other false evidence; or the unnecessary
expenditure of substantial governmental or court
resources.
Id. S 2J1.3 (Application Note 1) (emphasis added). The
District Court found that Serafini's perjury had caused the
unnecessary expenditure of substantial gover nmental
resources.
The District Court identified the following expenditures of
the government's time: re-interviewing Thomas Harrison
after Serafini's appearance before the grand jury, calling
Harrison to testify before the grand jury a second time,
subpoenaing auto repair shops and PNC Bank for records,
interviewing the owner of one auto repair company and the
general manager of another, and interviewing Serafini's
employee Lucille Yager and requesting Y ager's grand jury
testimony. See A. at 3823-24. The defense ar gued that
some of these expenditures would have been undertaken
even in the absence of Serafini's perjury, claiming in
particular that the government had in its possession the
bank records showing Serafini's check to Harrison even
before Serafini's grand jury appearance. See Serafini Br. at
63. Serafini cites United States v. Jones, 900 F.2d 512, 522
(2d Cir. 1990), for the proposition that a substantial
18
expenditure enhancement cannot be applied wher e the
government already had the infor mation that the defendant
concealed via her false statements. However, Jones is easily
distinguished from our case. Jones r elied heavily on the
fact that "the district court did not make any specific
finding that Jones' perjury had resulted in any substantial
expenditure of governmental resour ces." Id. at 521-22.
Here, in contrast, the District Court explicitly made such
factual findings. See A. at 3823-27 (transcript of sentencing
hearing).19 We review the District Court's factual findings
that the expenditures were "substantial" and that Serafini's
perjury was a but-for cause of these expenditur es for clear
error only, see, e.g., United States v. Sinclair, 109 F.3d
1527, 1539 (10th Cir. 1997), and we find no such error. We
therefore conclude that the enhancement for "substantial
interference" was permissible.
2. Downward Departure for Community and Charitable
Activities
The offense level for perjury, adjusted by the three-level
substantial interference enhancement, was 15. When
combined with Serafini's criminal history category of I, this
adjusted offense level resulted in a guideline range of 18 to
24 months' imprisonment. However, the District Court
granted a three-level downward departur e for Serafini's
community and charitable activities. See A. at 3851-52. The
government argues that the District Court's departure is an
abuse of discretion.
_________________________________________________________________
19. In particular, the District Court explained its conclusion that the
government would not have had to re-interview Harrison if Serafini had
testified truthfully before the grand jury:
If Mr. Serafini had testified, truthfully, that he was, indeed,
reimbursed and that the other thousand dollars of the $2,000 check
was for Mr. Harrison, there would be no need to go see Mr.
Harrison, again, who was, to say the least, not the most reliable
witness the Government could find, under the circumstances,
having already lied to the Grand Jury. So Ifind that but for the
Defendant's perjury, it would not have been necessary to interview
Mr. Harrison, so that there is the r equisite causal relationship
between the interview and calling him to testify before the Grand
Jury.
A. at 3824.
19
In Koon v. United States, 518 U.S. 81 (1996), the
Supreme Court outlined the methodology for a district
court to use when considering a departure fr om the
applicable guideline range. We have described the Koon
analysis as follows:
First, identify the factor or factors that potentially take
the case outside the Guidelines' "heartland" and make
it special or unusual. Second, determine whether the
Guidelines forbid departures based on the factor,
encourage departures based on the factor , or do not
mention the factor at all. Third, apply the appropriate
rule: (1) if the factor is forbidden, the court cannot use
it as a basis for departure; (2) if the factor is
encouraged, the court is authorized to depart if the
applicable guideline does not already take it into
account; (3) if the factor is discouraged, or encouraged
but already taken into account by the applicable
guideline, the court should depart only if the factor is
present to an exceptional degree, or in some other way
makes the case different from the ordinary case in
which the factor is present; or (4) if the factor is
unmentioned, "the court must, after considering the
structure and theory of both relevant individual
guidelines and the Guidelines taken as a whole, decide
whether [the factor] is sufficient to take the case out of
the Guideline's heartland."
United States v. Iannone, 184 F.3d 214, 226 (3d Cir. 1999)
(emphasis added) (internal citations to Koon omitted). We
also noted Koon's statement that a r eviewing court must
give substantial deference to the district court's
discretionary decision to depart from the guideline range.
See id. at 227 (citing Koon, 518 U.S. at 98).
The District Court described the appropriate analytical
steps and correctly determined that departing on the basis
of civic and charitable good works was discouraged, but not
forbidden, by the Guidelines. See A. at 3839 (transcript of
sentencing hearing); U.S.S.G. S 5H1.11 ("Military, civic,
charitable, or public service; employment-related
contributions; and similar prior good works ar e not
ordinarily relevant in determining whether a sentence
should be outside the applicable guideline range."). The
20
District Court recognized that, in order to depart downward
on this basis, it must find that this factor existed "to an
exceptional degree or, in some way, that makes the case
different from the ordinary case in which the factor is
present." A. at 3839. The District Court made a finding that
Serafini's civic and charitable contributions did exist to
such an exceptional degree, or in an extraor dinary manner.
See id.
Our review of the District Court's finding in this regard is
quite deferential. See Koon, 518 U.S. at 98 ("[W]hether a
discouraged factor nonetheless justifies departur e because
it is present in some unusual or exceptional way, [is a]
matter[ ] determined in large part by comparison with the
facts of other Guidelines cases. District courts have an
institutional advantage over appellate courts in making
these sorts of determinations . . . "); see also United States
v. Jones, 158 F.3d 492, 497 (10th Cir . 1998) (stating that
appellate review "is at its most defer ential" when the court
of appeals is evaluating "the district court's conclusion that
the facts of this case made it atypical"). Our r eview is
limited to ensuring that the circumstances r elied upon by
the District Court are not "so far r emoved from those found
exceptional in existing case law that the sentencing court
may be said to be acting outside permissible limits." United
States v. Sweeting, 213 F.3d 95, 100 (3d Cir. 2000).
At the sentencing hearing, the District Court was
presented with several character witnesses, and more than
150 letters. The letters submitted to the Court fall into
three categories: (i) the first category presents Serafini as a
good person; (ii) the second category refers to his activities
as a state legislator; and (iii) the thir d category refers to his
assistance, in time and money, to individuals and local
organizations.
(i) As to the first category, these can be quickly
dismissed with the observation that being a "good person,"
a quality indeed to be admired, does not qualify as
extraordinary or exceptional civic or charitable conduct.
(ii) As to Serafini's activities as a state legislator, they
are work-related and political in character. For example, a
letter from the Fire Chief of Greenfield Township Volunteer
21
Fire Company stated that he "had worked tir elessly to
obtain grant monies to help the community af ford the
lifesaving equipment they need." Sealed Suppl. A. at 20.
The same letter also referred to Serafini's guidance "on
several projects, including writing bid specifications for a
new engine . . . and in pushing through legislation which
allows smaller fire companies to purchase equipment
through state funding." Id.
Other letters of this nature attest to Serafini's character
and quality of legislative service. Others ar e from grateful
constituents who were helped by Serafini or his staff.
Conceptually, if a public servant perfor ms civic and
charitable work as part of his daily functions, these should
not be considered in his sentencing because we expect such
work from our public servants. While we might question
whether our sentencing courts should consider such things
as one's situation or opportunity, the methodology that
requires us to determine "or dinary" versus "exceptional"
and "laudable" versus "extraordinary" is a subjective one
that involves comparing a defendant's conduct to the norm.
Thus, to the extent this second group of letters does not
evidence extraordinary community service under Guideline
5H1.11, but instead, reflects merely the political duties
ordinarily performed by public servants, we are of the view
that they cannot form the basis of a departur e.
(iii) However, unlike the first and second categories of
letters the Court received, the third category of letters
provided an adequate basis for the District Court's
conclusion that Serafini's community service warranted a
downward departure. Many of the letters that fall within
this last group contain substantive descriptions of Serafini's
generosity with his time as well as his money. Several
constituents and friends described situations in which
Serafini extended himself to them in unique and
meaningful ways during times of serious need. In
particular, three letters are especially noteworthy.
William Drazdowski, an accountant and "a close personal
friend" of the defendant, explains Serafini's r ole in providing
a $300,000 guarantee to Dr. Edward Zaloga so that he
could secure new cutting edge data from certain Tokyo
physicians for the treatment of his brother's brain tumor.
22
Sealed Suppl. A. at 57. Dr. Zaloga testified at the
sentencing hearing that he telephoned Serafini at 1:00 a.m.
seeking his assistance in raising the money. Just thirty
minutes later, Serafini called back and informed Dr. Zaloga
"that everything was in place." The letter does not state who
actually made the guarantee, or how it was accomplished.
However, the clear import of Zaloga's testimony is that it
was Serafini's money: ". . . [N]ot once did he ask me, How
are you going to pay me back? Or any other such question.
The simple statement, Just get the account numbers, we'll
wire the money in the morning." A. at 3786. In reading the
Zaloga letter, both Serafini's readiness to help and his
reluctance to seek gratitude make a str ong impression.
Such behavior is hardly part of the nor mal duties of a local
politician.
Another letter came from George E. Seig, who also
testified at the sentencing hearing. Sealed Supp. A. at 186-
89. He sustained a serious injury as a result of an accident
while he was a college student. The physicians' pr ognosis
was that he would never be able to carry on any for m of
normal social functioning. After a year of frustrating
physical therapy, Seig lost all ambition to r eturn to school.
Then, he was contacted by Serafini's office who told him
that Serafini had heard of the tragic incident and wanted
Seig to come work for him. The record r eflects that
Serafini's offer of employment went far beyond just hiring a
young person on his staff. Serafini took Seig under his
wing, mentored him, and strongly encouraged him to
attend college. He even loaned him money until Seig could
repay it. The letter from Seig -- now an attorney -- reflects
his immense gratitude and his feeling that Serafini is
responsible for turning his life ar ound.
A third letter came from a widow who appr oached
Serafini in tears because she was about to lose her house.
He wrote her a personal check for $750 to for estall
foreclosure. She expressed doubt about her future ability to
repay him, but Serafini insisted that she need not do so
unless she could afford it.
The remaining letters, taken as a whole, depict Serafini
as an exceptionally giving person. See Sealed Suppl. A. at
137 (describing Serafini's having forgiven a substantial debt
23
out of concern for a divorced mother'sfinancial situation).
For example, the letters describe Serafini's volunteer work
as an usher at St. Mary's Church, see id. at 35, 40, 107;
at the Abington Heights School District, see id. at 166; and
at Lackawanna Trail High School, see id. at 200. In
addition, he helped to establish a fund to defray the cost of
a bone marrow transplant for a man suffering from
leukemia. See id. at 209. Several letters note that Serafini
was generous with his time even with people who lived
outside his district. See id. at 33, 35, 125. The letters also
describe Serafini's financial contributions to organizations
such as The Arc (a nonprofit agency serving people with
mental retardation and their families), see id. at 14; the
Rotary Run Against Drugs, see id. at 26; the Scranton-
Lackawanna Human Development Agency, see id. at 41,
108; the Little League, see id. at 47; the Boy Scouts, see id.
at 109, 118; St. Francis of Assisi Kitchen, see id. at 157;
the Abington Heights School District, see id. at 166; and
the leukemia sufferer's fund mentioned above, see id. at
209.20 A letter from an official at the University of Scranton
refers to Serafini's financial assistance to college students,
see id. at 177, and a letter from a high school social studies
teacher describes Serafini's contributions to a scholarship
for graduating seniors, see id. at 200.
A former employee noted in one letter that when her
friend was sick with leukemia, Serafini did mor e than just
permit her to take time off to visit her . He arranged a ride
for her friend to Johns Hopkins Hospital in Maryland so
that she could obtain a second opinion regar ding her
condition. See id. at 215. Other letters indicating that
Serafini went above and beyond the call of duty as a public
servant described how he had personally financed a second
office to enable him to reach more constituents. See id. at
_________________________________________________________________
20. Several letters describe contributions to other organizations, beyond
those listed above, in terms that indicate that the contributions may be
either financial or nonfinancial in natur e. See Sealed Suppl. A. at 67
(Moosic Youth Center and Moosic Lions); id. at 80 (St. Joseph's Hospital,
the Red Cross, and the SPCA); id. at 146 (The Mental Health
Association); id. at 190 (the Northeast Regional Cancer Institute, the
Deutsch Institute, Easter Seals, Friends of the Poor , and the American
Heart Association).
24
35. Additionally, there was significant testimony at the
sentencing hearing regarding Serafini's charitable activities,
including: giving a man several hundred dollars so his
electricity would not be turned off, id. at 3789; paying
mortgages, car payments, and the cost of dentur es for
those could not afford them, id. at 3791, 3800; and helping
a young man start his construction business, id. at 3803.
The District Court concluded that the letters and
testimony demonstrated that Serafini had distinguished
himself, "not by the amount of money [he has] given, but by
the amount of time that [he has] devoted." A. at 3839. The
District Court found that these efforts made Serafini's
community and charitable activities "exceptional" when
compared to what an average person in Serafini's
circumstances would have done:
Those weren't acts of just giving money, they were acts
of giving time, of giving one's self. That distinguishes
Mr. Serafini, I think, from the or dinary public servant,
from the ordinary elected official, and I had ample
testimony, today, that says that Mr. Serafini
distinguishes himself, that these are acts not just
undertaken to assure his re-election, but are taken
because of the type of person he is . . . .
A. at 3840.
We realize, as did the District Court, that Serafini's
largesse was in part financial, and in part, devotion of
himself and his time. Since he is a wealthy individual, we
must ensure that a district court does not run afoul of the
prohibition against considering socioeconomic differences
in relying on financial contributions as a basis for a
departure. See U.S.S.G. S 5H1.11; see also United States v.
Tocco, 200 F.3d 401, 434 (6th Cir . 2000). However, the
District Court here recognized this particular aspect of
Serafini's situation, but nonetheless found all his
contributions, not merely monetary ones, exceptional.
It is not our role to decide in the first instance whether
Serafini's civic and charitable contributions wer e
exceptional given Serafini's role as a public servant and his
apparent wealth. Our review is far mor e deferential. We
conclude that the District Court had an adequate basis for
25
its factual finding, and that the District Court's decision
was not clearly out of line with other reported cases. See,
e.g., United States v. Woods, 159 F.3d 1132, 1136 (8th Cir.
1998) (upholding defendant's downward departur e for
charitable activities, which included bringing two troubled
young women into her home and paying for them to attend
a private high school, as well as helping to car e for an
elderly friend, where the court found no basis to overturn
the district court's finding that these ef forts were
exceptional).
In reaching this conclusion, we have not overlooked the
decision of the Court of Appeals for the Eighth Cir cuit in
United States v. Morken, 133 F.3d 628 (8th Cir. 1998).
There, the court concluded that the defendant's activities,
which consisted of advising local business owners, hiring
young people, serving on a church council, and raising
money for charity, were "laudable, . . .[but] neither
exceptional nor out of the ordinary for someone of his
income and preeminence in a small Minnesota town with a
population barely over a thousand." Id. at 630. Accordingly,
the court of appeals reversed the district court's downward
departure.
However, in Morken, the court essentially found that,
given Morken's station in life, his contributions were not
extraordinary. Here, the District Court was careful to view
Mr. Serafini's activities in light of his career and resources,
and taking that into account, found that his charitable
activities were in fact sufficiently beyond the norm for a
wealthy politician, and were sufficiently exceptional so as to
warrant a departure under the Guidelines. While the
District Court did not allude to this, we can detect here
good works of a different nature and degree than the
somewhat impersonal giving that was demonstrated in
Morken. Also, we are aware that other appellate courts have
second guessed the trial court's view of the "nor m" for good
works performed by certain individuals, concluding that a
certain defendant did no more than other similarly situated
individuals. See United States v. Haversat, 22 F.3d 790,
796 (8th Cir. 1993) (holding that defendant's charitable and
volunteer activities did not make him an atypical defendant
in antitrust price-fixing cases); see also United States v.
26
Crouse, 145 F.3d 786, 792 (6th Cir . 1998) (finding nine-
level downward departure unsupported by defendant's civic
contributions, which were not unusual for a pr ominent
businessman). These do not provide a basis forfinding an
abuse of discretion here because, based on the evidence,
the District Court could have found, and did find, that
Serafini's acts of personal kindness and good works were
above and beyond customary political or charitable giving.
We also note that while many of Serafini's acts involved the
giving of money, the monetary aid was only one aspect of
otherwise charitable conduct on his part, distinguishing his
acts from the impersonal writing of checks that is the norm
for many wealthy individuals. By taking such giving into
account, the District Court did not grant the departure
based on socioeconomic conditions. We conclude that the
District Court did not abuse its discretion byfinding that
Serafini's civic and charitable contributions wer e
exceptional and thus warranted a downward departure.
The government also challenges the extent of the District
Court's three-level departure, claiming that this departure
was reached by a result-oriented and incorrect
methodology. We do not agree. In United States v.
Kikumura, 918 F.2d 1084 (3d Cir. 1990), we noted that our
scope of review over the extent of the District Court's
discretionary departure is deferential. See id. at 1110 ("This
[final] step involves what is quintessentially a judgment
call. District courts are in the front lines, sentencing flesh-
and-blood defendants. . . . Therefore, appellate review must
occur with full awareness of, and respect for, the trier's
superior `feel' for the case.") (quoting United States v. Diaz-
Villafane, 874 F.2d 43, 49-50 (1st Cir. 1989)); see also 18
U.S.C. SS 3742(f)(2), (f)(3) (stating that the courts of appeals
should affirm all departures that ar e not unreasonable).
However, in Kikumura, we outlined"objective standards to
guide the determination of reasonableness," Kikumura, 918
F.2d at 1110, stating that the sentence imposed must be
"minimally sufficient to satisfy concer ns of retribution,
general deterrence, specific deterrence, and rehabilitation,"
id. at 1111. We also observed that the appropriate way to
meet these goals may often be determined by analogy to
specific guidelines or to the structure of the Guidelines in
general. See id. at 1112 ("[A]nalogy to the guidelines is also
27
a useful and appropriate tool for deter mining what offense
level a defendant's conduct most closely appr oximates."); id.
at 1113 ("[B]y attempting to link the extent of departure to
the structure of the guidelines, the courts can avoid the
kind of standardless determinations of r easonableness that
inevitably produce unwanted disparity.") (quoting United
States v. Ferra, 900 F.2d 1057, 1062 (7th Cir. 1990))
(internal quotation marks and citation omitted).
The District Court heeded Kikumura's instruction to look
to the structure of the Guidelines, but noted that it could
not find "any particularly apt analogy" in any specific
guideline. A. at 3851. Therefore, the District Court
compared the mitigating effect of Serafini's charitable and
community contributions with the sentence-enhancing
effect of his substantial interfer ence with the
administration of justice. The District Court concluded that
these two effects were similar in magnitude:
And there are no other specifically-mentioned
adjustments, in this particular case, that pr ovides [sic]
a sound foundation for analogic reasoning. I do think,
however, that it's appropriate to look at this case as if
it were perjury without the enhancement, without the
three-level enhancement. I think that an appr opriate
downward departure, in this case, is thr ee levels.
A. at 3851-52. In the absence of any clearly r elevant
analogy to a specific guideline, we conclude that the
District Court did not abuse its discretion in determining
that the effects of the enhancement and the downward
departure should be similar in magnitude, nor in
concluding that the net effect was to r eturn Serafini to the
base level of culpability for perjury -- a level 12.
The government's argument that the departure was
result-oriented is based on a single statement by the
sentencing judge: "And I will say that I am most influenced,
in the final decision that I make, that I have departed three
levels, that takes me to Zone C." A. at 3852. W e find this
statement too ambiguous to support the gover nment's
contention that the District Court abused its discr etion. It
is not apparent to us, from this one statement, that the
sentencing judge meant that the reason for his departure
28
was to arrive at Zone C of the Sentencing Table. Read in
the entire context of the District Court's departure
discussion, the statement is equally susceptible to a
simpler reading: that the District Court simply found that
the result of the three-level departure was to put Serafini in
Zone C, not that the goal of the departur e was to put him
in Zone C.21
3. Recommendation as to Location of Confinement
The government argues that the District Court erred in
recommending to the Bureau of Prisons that the
imprisonment portion of Serafini's service be served in the
Catholic Social Services of Lackawanna County Residential
Program. See A. at 3879 (District Court's judgment of
sentence). The government asserts that such a facility
cannot serve as the location for "imprisonment" within the
meaning of U.S.S.G. S 5C1.1, which reads in pertinent part:
If the applicable guideline range is in Zone C of the
Sentencing Table, the minimum term may be satisfied
by --
(1) a sentence of imprisonment; or
(2) a sentence of imprisonment that includes a ter m
of supervised release with a condition that
substitutes community confinement or home
detention . . . provided that at least one-half of the
minimum term is satisfied by imprisonment.
U.S.S.G. S 5C1.1(d). We agree with the government's
reading of this portion of the Guidelines, and its view that
the imposition of a community confinement sentence would
violate the Guidelines. However, because the District
Court's statement as to the place of confinement was
merely a recommendation, i.e., was not a final order
_________________________________________________________________
21. Because we conclude that the departur e was permissible, the District
Court was correct to calculate a guideline range of 10 to 16 months for
Serafini, which placed Serafini in Zone C. The split sentence -- five
months' imprisonment followed by five months' home detention -- was
appropriate for this guideline range. See U.S.S.G. S 5C1.1(d)(2).
29
imposed by the District Court, we conclude that we have no
jurisdiction to review this statement.22
It is true that under section S 5C1.1 of the Guidelines,
"community confinement" cannot constitute
"imprisonment" for purposes of fulfilling the requirement
that one-half of a split sentence be satisfied by
imprisonment. See United States v. Horek , 137 F.3d 1226,
1228-29 (10th Cir. 1998); United States v. Adler, 52 F.3d
20, 21 (2d Cir. 1995); United States v. Swigert, 18 F.3d 443,
446 (7th Cir. 1994); United States v. Jalili, 925 F.2d 889,
892-93 (6th Cir. 1991); see also United States v. Jordan,
734 F. Supp. 687, 688 (E.D. Pa. 1990). Ther efore, if the
District Court had so ordered this confinement as satisfying
the requirement for imprisonment, it would clearly be
reversible error.23 However, we reject the government's
contention that we can or must reverse the District Court's
sentencing order that included a recommendation to that
effect. The District Court recognized that the final decision
as to the location of imprisonment was the Bur eau of
Prisons'. See A. at 3879 (District Court's judgment of
sentence) ("The defendant is hereby committed to the
custody of the United States Bureau of Prisons to be
imprisoned for a term of five (5) months. . . . The court
makes the following recommendations to the Bur eau of
Prisons: The Court recommends that the Bur eau of Prisons
designate the Catholic Social Services of Lackawanna
County Residential Program, Scranton, Pennsylvania, as
the place for service of this sentence.") (emphasis added).
Its recommendation, while erroneous, was not an order and
is technically not reviewable. See e.g., United States v.
Pineyro, 112 F.3d 43 (2d Cir . 1997) (per curiam). In our
_________________________________________________________________
22. Because we conclude that we have no jurisdiction over this portion
of the government's cross-appeal, we need not reach Serafini's argument
that the government forfeited this issue by failing to raise it in the
District Court.
23. In fact, a district court has no power to dictate or impose any place
of confinement for the imprisonment portion of the sentence. Rather, the
power to determine the location of imprisonment rests with the Bureau
of Prisons. See 18 U.S.C. S 3621(b) ("The Bureau of Prisons shall
designate the place of the prisoner's imprisonment."); see also Jalili,
925
F.2d at 892.
30
view, the recommendation did not amount to the imposition
of a community confinement sentence. The sentence the
District Court imposed -- namely five months'
imprisonment -- was appropriate and we will affirm it. That
part of the order that contains the recommended place of
imprisonment -- which would violate the guidelines if
followed by the Bureau of Prisons -- is either beyond our
jurisdiction, or, if reviewable as part of the order, a nullity.
We think the former is the better analytic route. We need
not disturb a suggestion or recommendation, and have no
power to do so because our review is limited to a sentence
imposed in violation of the law or imposed as a result of an
incorrect application of the Sentencing Guidelines. See 18
U.S.C. SS 3742(a)(1), (a)(2). While the gover nment correctly
notes that the community confinement sentence, if
imposed, would violate the law, we do not see the place of
Serafini's commitment as having been imposed by the
District Court, and we will not reverse the sentencing order
on that basis because we lack jurisdiction over the District
Court's recommendation.
III. Conclusion
For the foregoing reasons, we will AFFIRM the District
Court's orders of conviction and sentence.
31
ROSENN, Circuit Judge, Concurring in part and Dissenting
in part:
I concur and join with the majority except with r espect to
Part E(2) pertaining to the Downward Departur e for
Community and Charitable Activities. For reasons set forth
below, I respectfully dissent from this aspect of the opinion.
The trial judge tried this hard fought case skillfully,
patiently and without error. However , I believe that when it
came to sentencing, the voluminous letters fr om the
defendant's political constituents, colleagues, and other
friends misled the Court to depart downward fr om the
Guidelines. The majority appropriately r ejects the first two
categories of these letters but concludes that the third
category of letters provide "an adequate basis" for the
District Court's conclusion to depart downwar d. Maj. op. at
22. In reaching its conclusion, the majority gives "quite
deferential" review to the District Court's finding that
Serafini's civic and charitable contributions did exist to an
exceptional degree, or in an extraordinary manner. Maj. op.
at 21.
The general rule of "deference" is not without limitation:
it has many restraints. It must be consistent with
Congressional purpose and, in this case, the Sentencing
Guidelines. Even in cases where administrative agencies
enjoy much deference in interpreting their own regulations,
Justice Jackson has stated that the weight of defer ence
"will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, .. . , and all
those factors which give it power to persuade, if lacking
power to control." Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944), quoted affirmatively in General Electric Co. v.
Gilbert, 429 U.S. 125, 141-142 (1976). Accor d, Daughters of
Miriam Ctr. for the Aged v. Mathews, 590 F.2d 1250, 1258
(3d Cir. 1978).
Although I agree wholeheartedly that the District Court's
sentencing finding is entitled to deference,"this deference is
constrained by our obligation to honor the clear meaning of
a statute, as revealed by its language, purpose, and
history." Teamsters v. Daniel, 439 U.S. 551, 566 n.20
(1979) (quoted in Southeastern Community College v. Davis,
32
442 U.S. 397, 411 (1979)). When invoked as a guide to the
exercise of judicial action, discretion must be sound, and
not exercised arbitrarily or without regar d to what is right
and equitable under the circumstances and the law. See
Koon v. United States, 518 U.S. 81 (1996).
Discretion, like the hole in a doughnut, does not exist
except as an area left open by a surrounding belt of
restriction. See Ronald Dworkin, T aking Rights Seriously 31
(1977). Discretion, even the discretion r esting with a
sentencing trial judge, must be restricted by the applicable
statutory meaning, purpose and history. The United Sates
Sentencing Guidelines, which apply here, whether we
empathize with them or find them frustrating, ar e binding
upon the sentencing judge and the appellate courts. See
Mistratta v. United States, 488 U.S. 361 (1989)(holding that
the Guidelines are constitutional). Unless courts uphold the
surrounding belt of restriction, discr etion, even the little
discretion that remains with a judge under the Sentencing
Guidelines, will override the parameters of statutory
limitation.
Prior to the Sentencing Reform Act (SRA) of 1984, 18
U.S.C. S 3551 et seq., 28 U.S.C. SS 997-998 (the "Act"), the
federal sentencing system had been "predominantly
standardless and indeterminate." Federal Sentencing
Manual, G.T. McFadden, J.C. Clarke, J. L. Staniels,
S 1.01[2]. The Act created the United States Sentencing
Commission and empowered it to promulgate guidelines
and policy statements pertaining to sentencing decisions.
"Those statutory changes and the guidelines have
significantly altered the scope and natur e of judicial
discretion." Id. at 1.01[3]. In enacting the SRA, Congress
was concerned not only with equal punishment to offenders
who commit crime, but also with the need to pr omote
respect for the law and to limit judicial discr etion in
sentencing. Id. at 1.64.
The Sentencing Guidelines are clear that a defendant's
record of charitable work and community service are a
discouraged justification for a sentencing departure. See
United States v. DeMasi, 40 F.3d 1306, 1324 (1st Cir.
1994). The historical note to the Civic and Charitable
Amendment to the Guidelines (S 5H1.11) "expresses the
33
Commission's intent that the factors set forth in this part
are not ordinarily relevant in deter mining whether a
sentence should be outside the applicable guideline range;
but that, unless expressly stated, these policy statements
do not mean that the Commission views such factors as
necessarily inappropriate to the determination of the
sentence within the applicable guideline range."
Discouraged-feature factors are not usually relevant to a
departure decision. See Koon v. United States, 518 U.S. at
95. A court may depart only if a discouraged factor is
present to an exceptional degree or in some other way that
makes the case different from the or dinary case where the
factor is present. See id., at 96. Ther efore, a downward
departure from the Sentencing Guidelines on the ground of
community and charitable activities is only appr opriate if
the defendant performed charitable acts to an exceptional
degree. This appears to be a recognition that in our culture
and society, every person is expected reasonably to
contribute charity to the poor and to non-pr ofit
organizations dedicated to educational, health, and
religious purposes.1
Thus, the critical question is whether the discouraged
factor is present in this case to "an exceptional degree or in
some other way that makes this case differ ent from the
ordinary case where the factor is pr esent." The majority,
relying on United States v. Jones, 158 F.3d 492 (10th Cir.
1998) and United States v. Woods, 159 F.3d 1132 (8th Cir.
1998), concludes that the District Court had "an adequate
basis," maj. op at p. 27, for its departur e. In Woods, the
District Court allowed a one level departure to a woman
who pleaded guilty to one count of bankruptcy fraud. The
District Court found that the defendant's money laundering
offense fell outside the "heartland" of such cases and that
taking two troubled young women into her own home and
paying for them to attend a private high school warranted
the departure. In affirming, in one paragraph of a five page
_________________________________________________________________
1. According to a national survey by Independent Sector on "Giving and
Volunteering in the United States," appr oximately 69% of all households
in the United States made voluntary contributions to charity in 1995.
See Statistical Abstract of the United States 404 (1999).
34
opinion, the court did not even cite or discuss the Guideline
under which it affirmed the departur e, but merely stated
"we have no basis for holding that [the ef forts by the
defendant] were not [exceptional]." Unlike the Woods case,
we have a substantial record here fr om which to assess. It
shows that Serafini's charitable works wer e not exceptional
or extraordinary by any reasonable standar d.
United States v. Jones, cited by the majority, is
inapposite. Jones was charged with unlawfully possessing
a firearm. The District Court r elied on eleven factors for
departure, not merely the defendant's long history of
community service. Among these factors were the aberrant
nature of defendant's conduct in unlawfully possessing a
firearm, the collateral consequences of his incarceration in
the economically depressed community in which he lived,
his "highly unusual" voluntary disclosur e of circumstances
of his making a false statement to obtain the fir earm, his
post-offense conduct, and the negative ef fect incarceration
would have on both the quality and quantity of Jones's
rehabilitation. See Jones, 158 F .3d at 504. The Government
criticized the District Court's inclusion of community
service as a factor, but as the appellate court noted, "the
Government provides nothing in the r ecord to the
contrary." Id. at 500-01. But, ther e is substantial evidence
in our record to the contrary generated by Serafini himself.
Also, Serafini suffers from an absence of the other factors
that played a dominant role in the Jones court's decision to
depart.
In the ordinary course of events, a taxpayer , especially
one with substantial annual income, will specifically list
every available charitable contribution as a tax deduction in
his federal income tax return. Serafinifiled such returns
and specifically claimed charitable deductions. These
returns are the best evidence of his charitable
contributions; they are not vague, indefinite opinions of
friends and political constituents tendered to a sentencing
judge in an effort to obtain a reduced sentence. The tax
returns are concrete evidence of Serafini's charitable giving,
and are the most logical place to begin an analysis of
whether his charitable acts were exceptional.
35
The defendant is not only "a wealthy individual," maj. op
at 25, but his federal income tax retur ns show substantial
income from sources other than his salary as a state
official. Included are substantial royalties from the Empire
Landfill. A financial analysis of his pertinent income
returns for the period 1991 through 1996 reveals the
following undisputed evidence.
YEAR $ TOTAL INCOME $ CHARITABLE CHARITY AS %
ROUNDED DEDUCTIONS OF INCOME
1991 724,019 13,407 1.8
1993 857,000 22,604 2.6
1994 855,000 16,620 1.9
1995 908,172 17,385 1.9
1996 1,101,276 20,310 1.8
Except for 1993, in which his contributions exceeded 2%,
all of his contributions are less than 2% per annum.
Donating less than 2% of one's income to charity-- even
2.6% -- is lackluster and pedestrian by any measur e; it is
not exceptional. It is far below the average measur e of
giving in the United States by people in the defendant's
socioeconomic status.2
Serafini's charitable contributions of his annual income
is ordinary at best when compared to national figures. It
_________________________________________________________________
2. According to the Statistical Abstract of the United States, the average
American household contributed 2.2% of its income to charity in 1991.
See Statistical Abstract of the United States 404 (1999). In 1993, the
average was 2.1%. See id. In 1995, the average was 2.2%. See id. In
1995, households with greater than $100,000 income contributed 3.4%
of their household income to charity. See id. According to a 1999 report
by the Independent Sector, of the American households that gave to
charity, in 1998, they contributed 2.1% of their income; in 1995, 2.2%
was contributed; in 1993, 2.1% was contributed; in 1991, 2.2% was
contributed; in 1989, 2.5% was contributed, and in 1987, 1.9% was
contributed. See Statistical Abstract of the United States 391 (1997);
http://www.independentsector.or g/GandV/s_keyf.htm>>.
36
pales in comparison to tithing, the practice in many
religious organizations of giving ten per cent of one's income
to one's religious institution. Serafini's charitable
contributions are extraordinarily low when considering that
many religious institutions throughout history have
encouraged charitable giving in addition to the tithe. See
Carl Bakal, Charity USA 21 (1979).
Serafini appears to have made many appearances at
public events, but he did not contribute money or r esources
according to his means. He has helped some people with
small debts, cost of indentures, and other acts of kindness,
but he never paid out any exceptional amount of money.
The District Court was sensitive to this; it observed that the
defendant had distinguished himself "not by the amount of
money [he has] given, but by the amount of time that [he
has] devoted." Maj. Op. at 25.
As noted, the majority and the District Court wer e
persuaded by Serafini's non-financial charitable acts. But
much of Serafini's civic participation was either honorary or
obligatory because of his job as a Representative.
Numerous letters submitted on his behalf wer e written by
constituents or other beneficiaries of his public position.
The majority finds three letters noteworthy. Maj. Op. at 22.
One comes from William Drazdowski, "a close personal
friend," which explains defendant's role in providing a
$300,000 guarantee to Dr. Edward Zaloga to enable him to
obtain new medical data from Tokyo physicians for the
treatment of his brother's brain tumor . The doctor testified
that thirty minutes after a telephone call to him at 1:30
a.m. for assistance, Serafini called back to tell him "that
everything was in place." Neither Drazdowski, an
accountant, nor Dr. Zaloga claim that Serafini personally
made the guarantee; nor does the defendant. Ther e is no
information how the guarantee was accomplished, to whom
it was made, who made it, and the substance of the
guarantee, or the relationship between Dr . Zaloga and the
defendant. The majority believes this assistance"is hardly
part of the normal duties of a local politician." On the other
hand, the entirely obscure and mysterious incident may
very well have its genesis in defendant's political agenda. In
any event, it hardly rises to the level of significant
community service.
37
The Seig letter attests to Serafini's offer to employ Seig, a
young friend of the family, on the defendant's legislative
staff, a loan to him of an unstated sum of money, and
encouragement to Seig to attend college. The thir d letter
reports a personal check of $750 from the defendant to a
widow who was about to lose her home through foreclosure.
The widow expressed doubt about her ability to repay and
defendant insisted she need not do so unless able.
These three "noteworthy" letters do r eflect commendable
action by the defendant, but neither they, nor the other
letters, show community service to an exceptional or
extraordinary degree. A few acts of personal kindness to
individual friends do not add up to community service; they
do not fulfill the purpose of the Guidelines. The District
Court relied considerably on the defendant's gift "of time."
I can find no evidence of the amount of time given to
community service, as distinguished from some personal
favors to friends and political constituents.
The Guidelines do not suggest a sentence departur e for
time spent aiding friends or family, or time in per forming
acts of kindness -- even unusual acts of kindness to
individuals. Construing such personal acts to individuals
as exceptional community service under the Guidelines
opens up an area as vast and deep as the Seven Seas. The
Guidelines speak in terms of community service and there
is nothing in the record of this case that definitively shows
Serafini gave community service, independent of his
political activities. The 1999 Statistical Abstract of the
United States reveals that in the year 1995, persons in the
United States with income of $100,000 or mor e contributed
an average of 4.4 hours per week to volunteer work without
monetary pay. In this case, although Serafini ear ned many
times more than $100,000 in 1994 and 1995, we have no
record that he gave any amount of time to volunteer work,
whether it was for one or more weeks during the year, or for
fifty-two weeks.
The cases support the foregoing analysis. Courts may not
leniently interpret the requirement of extraordinary
circumstances to grant a downward departur e. See, e.g.,
United States v. Rybicki, 96 F.3d 754, 758 (4th Cir. 1996)
(Defendant was a highly-decorated Vietnam veteran, had
38
saved an innocent civilian during the My Lai massacr e, and
had served with the Secret Service; these deeds did not
warrant a departure); United States v. McHan, 920 F.2d
244, 247 (4th Cir. 1990)(Defendant's work history, family
ties and responsibilities, and extensive contribution to the
town's economic well-being could not justify downwar d
departure.)
United States v. Morken, 133 F.3d 628 (8th Cir. 1998),
contains factual similarities to this case, particularly with
respect to the defendant's socioeconomic status. In
commenting upon the defendant's commendable r ecord as
a neighbor and good friend who advised local business
owners, hired young people, served on his chur ch council
and raised money for charity, the court ther e also noted
that the defendant's annual income exceeded $500,000.
The court found that it was "neither exceptional nor out of
the ordinary for someone of the defendant's income and
preeminence" in his small community to engage in
charitable works and community services of this nature."
Id. at 630. The majority here notes, maj. op. at 26, that the
Morken court found that given Morken's station in life, his
contributions were not extraordinary. Her e, Serafini's
annual income over the years was substantially higher than
Morken's, and for several years prior to his indictment, was
almost double. Serafini's contributions, like Morken's, were
not exceptional or out of the ordinary. Serafini's
contributions were even less exceptional, considering his
much larger income and preeminence.
We have no information of recor d of time spent by
Serafini in behalf of fund raising efforts or other services of
the United Way or the colleges and other community service
organizations in his county. In United States v. Crouse, 145
F.3d 786 (6th Cir. 1998) the defendant, Crouse, served on
the boards of various community organizations over many
years. In commenting on his service in connection with his
request for sentencing departure, the court of appeals
observed:
Crouse's community works, while found to be
significant by the District Court, are not unusual for a
prominent businessman. Examples of Crouse's
community involvement include church activities;
39
service on the boards of various community
organizations, including a local hospital, the United
Way, and regional airport authority; and his
membership and active involvement with the Rotary
Club. These examples of community involvement
spanned over at least a 25-year period.
Crouse, 145 F.3d at 792.
Measured by any reasonable standar d, whether it be
tithing to his church and community, or other charitable
contributions of money or community time, Serafini's
charitable and community service was far from exceptional
or extraordinary. It was quite ordinary for a man in his
preeminent position and financial cir cumstances. Nor were
his charitable contributions or community services of the
level or character exacting personal sacrifice, a deprivation
of something of substance because of his contributions.3
I therefore conclude that it was imper missible under the
Guidelines for the District Court to depart fr om the
Sentencing Guidelines.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________
3. According to Laurie Nieb, Coordinator for the Archdiocese Office of
Stewardship in Denver, Colorado, sacrificial giving means "a gift that
impacts your life; give from your sustenance, not your abundance." The
Denver Post, October 21, 1999, Section A , pg. A-01.
40