United States v. Ruggiero , 100 F. App'x 99 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
6-7-2004
USA v. Ruggiero
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4331
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NO. 03-4331
UNITED STATES OF AMERICA,
v.
BARBARA ANN RUGGIERO
Barbara Ruggiero,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 03-cr-00397)
District Judge: Hon. Anne E. Thompson
Submitted Under Third Circuit LAR 34.1(a)
May 26, 2004
Before: SCIRICA, Chief Judge, RENDELL, and ALARCÓN* , Circuit Judges
(Filed: June 7, 2004)
OPINION OF THE COURT
ALARCÓN, Circuit Judge.
Barbara Ruggiero pleaded guilty to one count of conspiracy to commit mail fraud,
*
Hon. Arthur L. Alarcón, Senior Judge, United States Court of Appeals for the
Ninth Circuit, sitting by designation.
a violation of 18 U.S.C. § 371. At sentencing, the district court applied a two-point
offense level enhancement based on its determination that Mrs. Ruggiero was “an
organizer, leader, manager, or supervisor” in the criminal conspiracy to which she
pleaded guilty. United States Sentencing Guidelines (“USSG”) § 3B1.1(c). The district
court also applied a two-level sentencing enhancement pursuant to section 3B1.3 of the
Guidelines after finding that Mrs. Ruggiero abused a position of trust to “facilitate[] the
commission or concealment of the offense.” USSG § 3B.13.
Mrs. Ruggiero contends that the district court’s findings were clearly erroneous.
We affirm because we conclude, after reviewing the record, that the district court did not
clearly err in finding that a two-level “organizer” enhancement was appropriate, and that
Mrs. Ruggiero abused a position of trust in order to facilitate and conceal her crimes.
I
On June 22, 1998, Mrs. Ruggiero was employed as a Claims Team Manager II by
the Liberty Mutual Insurance Company (“Liberty Mutual”). Her position gave her
supervisory authority over twenty employees and the authority to authorize the payment
of insurance claims up to $100,000. On that date, she was fired because her employer had
discovered that eighty-three claim checks were issued by her without any supporting
documentation.
Liberty Mutual filed a civil action against Mrs. Ruggiero and ten other persons on
April 18, 2000 to recover the amounts it lost as a result of fraudulent claims.
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Mrs. Ruggiero allowed a default judgment to be entered against her. On August 2, 2002,
the court entered a judgment against Mrs. Ruggiero and four other defendants awarding
Liberty Mutual $5,962,785.36.
The Government filed an Information against Mrs. Ruggiero on M ay 22, 2003, in
which she was charged with conspiracy to use the mails in the execution of a scheme to
commit fraud in violation of 18 U.S.C. § 1341. Prior to that date, the Government and
Mrs. Ruggiero’s counsel entered into a plea agreement in which she accepted
responsibility for engaging in the mail fraud scheme. The Information alleges that Mrs.
Ruggiero conspired with others to obtain money from Liberty Mutual by means of false
and fraudulent pretenses, representations, and promises by sending claim checks through
the mail to Mrs. Ruggiero’s family members and associates. The Information also alleges
that Mrs. Ruggiero received kickbacks of as much as 60 percent of the amount of the
fraudulent claim checks.
On May 22, 2002, Mrs. Ruggiero appeared before District Judge Anne E.
Thompson. Mrs. Ruggiero waived prosecution by indictment and filed an application for
permission to enter a guilty plea. In response to the court’s questions, Mrs. Ruggiero
testified under oath that, as a claims manager, she had the power to issue claim checks up
to $100,000, but not to family members or relatives. She also admitted that she received
as much as 60 percent of the face value of the fraudulent claim checks in return for
issuing them to family friends and relatives. She further testified that she issued
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fraudulent checks to the twelve persons identified in the Information. The district court
accepted M rs. Ruggiero’s guilty plea after admonishing her of her constitutional rights
and the consequences of pleading guilty.
On July 17, 2003, a United States probation officer filed a presentence
investigation report (“PSR”) with the court, and served copies on the parties. On July 30,
2003, Mrs. Ruggiero’s counsel objected to the probation officer’s recommendation that
she receive a two-point adjustment as an organizer, leader, or supervisor of the conspiracy
under U.S.S.G. § 3B1.1(c ) because “there is no concrete evidence as to how the checks
were issued nor who issued the checks.” Defense counsel also objected to the probation
officer’s recommendation that she abused a position of trust under § 3B1.3 because “the
record is devoid of sufficient proofs regarding Barbara Ruggiero’s role in this offense.”
The district court rejected the defense’s objection to the PSR and found that Mrs.
Ruggiero was a leader of the conspiracy, and that she abused a position of trust. The
district court sentenced Mrs. Ruggiero to forty-months imprisonment and ordered her to
pay $1,704,336.41 in restitution to Liberty Mutual. Mrs. Ruggiero has timely appealed
the district court’s sentencing decision.
II
Mrs. Ruggiero contends that the district court clearly erred in applying a two-point
offense level increase based on its finding that she was an organizer, leader, manager, or
supervisor in the conspiracy to commit mail fraud and in enhancing her sentence because
4
she violated a position of trust. Mrs. Ruggiero argues that the district court improperly
relied on information in the PSR that was obtained from “a review of government
documents, and telephone conversations with the case agent,” and the unsworn statements
of the United States Attorney. This court reviews a district court’s factual findings in its
sentencing decision for clear error. United States v. Mussayek, 338 F.3d 245, 252 (3rd
Cir. 2003).
The Sentencing Guidelines provide that, in resolving a dispute concerning a factor
important to a sentencing determination, “the court may consider relevant information
without regard to its admissibility under the rules of evidence applicable at trial, provided
that the information has sufficient indicia of reliability to support its probable accuracy.”
U.S.S.G. § 6A1.3; see also 18 U.S.C. § 3661 (“No limitation shall be placed on the
information concerning the background, character, and conduct of a person convicted of
an offense which a Court of the United States may receive and consider for the purpose of
imposing an appropriate sentence”). This court has held that hearsay can be used in
support of a sentencing decision so long as it has sufficient indicia of reliability to support
its probable accuracy. United States v. Brothers, 75 F.3d 845, 848 (3rd Cir. 1996).
In his report, the probation officer summarized facts stipulated to in the plea
agreement. In the plea agreement, Mrs. Ruggiero admitted that she was authorized to
issue checks for Liberty Mutual on valid claims for up to $100,000. She also accepted
responsibility for the crime of mail fraud.
5
During the plea proceedings before Judge Thompson, Mrs. Ruggiero admitted
under oath that she authorized checks sent to family members knowing that she was not
permitted to do so under company policy, and that such conduct was illegal. She also
acknowledged that she received kickbacks in return for issuing fraudulent checks. This
court has held that “facts relevant to sentencing contained in the indictment and plea
agreement are conclusively established by the entry of a guilty plea even if they are not
elements of the offense charged.” United States v. Deckler, 64 F.3d 818, 823 n.7 (3rd
Cir. 1995).
Mrs. Ruggiero’s admissions in the plea agreement, and her plea of guilty to the
allegations set forth in the Information conclusively demonstrate that she was an
organizer, leader, manager, and supervisor of the conduct of her cohorts, and that she
abused a position of trust.
Mrs. Ruggiero also maintains that she did not occupy a position of trust because
Linda Frey, another employee, supervised her work. Pet’r Op. Brief at 28. She argues
that this court’s decision in United States v. Sokolow, 91 F.3d 396 (3d Cir. 1996) dictates
that a position of trust exists only where the employee has “sole control” and operates
“without oversight and supervision.” Id. at 413. We disagree. The Guideline
commentary notes that a person in a position of trust may be “subject to significantly less
supervision” than other employees, but does not require that an employee be subject to no
supervision. USSG § 3B1.3, cmt. n.1 (emphasis added). It is obvious that Ms. Frey’s
6
supervision was inadequate to preclude Mrs. Ruggiero from abusing her authority to issue
claim checks.
Based on the foregoing analysis, we affirm the district court’s sentencing decision.
7