United States v. Salvatore Picardi ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 19-1043
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SALVATORE PICARDI,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-cr-00431-1 — Thomas M. Durkin, Judge.
ARGUED SEPTEMBER 4, 2019 — DECIDED FEBRUARY 19, 2020
Before ROVNER, SCUDDER, and ST. EVE, Circuit Judges.
ROVNER, Circuit Judge. A jury found Salvatore Picardi guilty
of one count of embezzlement by an officer or employee of the
United States, in violation of 18 U.S.C. § 654. The district court
sentenced Picardi to a term of eight months’ imprisonment and
a fine of $100,000. On appeal, Picardi objects to the amount of
the fine and to the adequacy of the district court’s explanation
2 No. 19-1043
for imposing an above-Guidelines fine. Because Picardi waived
any argument regarding the fine, we dismiss the appeal.
I.
Picardi was a United States Customs and Border Protection
(“CBP”) Officer working at the international terminal of
O’Hare International Airport in Chicago. His assignment there
was to screen passengers arriving from locations outside the
country prior to their entry into the United States. On February
22, 2016, he was working in this capacity when he decided to
steal money from a traveler who had been referred for a
secondary inspection. Picardi’s behavior that day contributed
significantly to the sentence that the court imposed, but this
appeal ultimately turns on waiver. To provide background for
the waiver issue, we will briefly summarize the events of that
day.
CBP Officer Federico Angulo was interviewing Ms. Chen,
a Chinese woman who spoke no English, when Picardi
volunteered to help with the inspection. Within moments of
intervening, Picardi asked how much money Ms. Chen was
carrying, demanded to see the money, learned that she was
carrying $5,000 in $100 bills, and then took her purse and
suitcase for a search while Officer Angulo and an interpreter
interviewed Ms. Chen. Instead of searching the bags in the
view of a security camera, Picardi placed them behind a desk
that blocked the camera, removed the money and hid it on his
person.
After Officer Angulo cleared Ms. Chen to enter the country,
he directed her to wait in the hallway with her belongings as
he completed the necessary paperwork. Ms. Chen soon
No. 19-1043 3
discovered that the money was no longer in her purse. A
frantic search began. The interpreter, the interpreter’s supervi-
sor, Officer Angulo, another CBP officer and a CBP supervisor
all participated in the search, as did Picardi. When none of the
searchers found anything in Ms. Chen’s belongings or in the
room where the interview had taken place, the CBP supervisor
conducted a body search of Ms. Chen. At that point, a watch
commander was enlisted to review security camera footage of
the interview room. While that review was taking place, the
bags were moved to another room and the officers and
interpreters continued the search through Ms. Chen’s belong-
ings. Picardi paced in and out of the new search area six times.
After the sixth exit and entry, he picked up an item of Ms.
Chen’s clothing, turned away from a security camera and
shoved the money into the clothing. He then tried to convince
the several people who had searched that very item of clothing
multiple times that the money had been there all along. He
claimed it had fallen into the lining of the clothing through a
hole in a pocket, and he then used a knife to cut the lining to
support his story. Facing an incredulous group, he then tried
to cast blame on Ms. Chen, suggesting that she was trying to
“scam” them in order to get more money. The video evidence,
of course, pointed to Picardi as the only person to have access
to the money when it disappeared.
Picardi was charged with embezzlement by an officer or
employee of the United States, in violation of 18 U.S.C. § 654.
He remained free on bond pending trial. After a jury found
him guilty, his bond was modified to require home confine-
ment. While out on bond, Picardi harassed his estranged wife
using electronic and other means. In addition to his own
4 No. 19-1043
harassing actions, he engaged a private detective in his efforts
to intimidate his wife, falsely telling the man that he was a
customs officer conducting a legitimate investigation. After
Picardi was convicted, he enlisted a friend to approach Ms.
Chen’s adult daughter to persuade her to convince her mother
to recant her testimony. Ms. Chen’s daughter instead contacted
law enforcement. Because of this conduct, the court revoked
Picardi’s bond three months before his sentencing hearing and
he was taken into custody.
The Presentence Investigation Report (“PSR”) was prepared
approximately one year prior to Picardi’s sentencing hearing,
before some of the conduct that led to bond revocation came to
light. The PSR calculated a base offense level of six, and
recommended a two-level enhancement for abuse of trust
under Sentencing Guideline 3B1.3, for a total of eight. With a
Criminal History Category I, that calculation resulted in a
Guidelines range of zero to six months’ imprisonment and a
fine between $2,000 and $20,000. The probation officer also
submitted a Sentencing Recommendation which, like the PSR,
had been drafted a year before the sentencing hearing. The
probation officer advocated for a prison term at the high end
of the range and a fine of $100,000, noting Picardi’s capacity to
pay a fine in that amount. Calling attention to the many
aggravating factors in Picardi’s case, the probation officer
remarked that, although the Guidelines failed to account for
the serious nature of Picardi’s offense, she had considered
other Guideline enhancements and found none applicable.
R. 57, at 2.
At the sentencing hearing, both defense counsel and the
defendant confirmed that they had read and discussed the PSR
No. 19-1043 5
and the Sentencing Recommendation. Defense counsel offered
one correction to the PSR regarding Picardi’s participation in
mental health counseling, which the court accepted. The
government indicated that it was requesting two enhance-
ments not mentioned in the PSR. The court then adopted the
PSR except for the sentencing calculation.
The government proposed two two-point enhancements:
one for vulnerable victim under Guideline section 3A1.1(b)(1),
and one for obstruction of justice under Guideline section
3C1.1. The court rejected the vulnerable victim enhancement
but agreed that a two-point obstruction enhancement was
appropriate based on Picardi’s use of a friend to attempt to
influence a witness to recant testimony prior to sentencing.
That resulted in an offense level of ten which carried a revised
Guidelines range of six to twelve months’ imprisonment and
a fine of $4,000 to $40,000. The court then turned to the section
3553(a) factors, noting that it would consider under those
factors whether a sentence outside the Guidelines range was
appropriate.
The government argued for a prison sentence within the
guidelines range of six to twelve months, mentioning several
aggravating factors and a few mitigating factors. The govern-
ment offered no argument regarding the recommended fine.
Defense counsel emphasized how much Picardi had already
suffered for his actions. He felt terrible guilt over the death of
his father from a stroke that he suffered after Picardi was
charged with this crime. Picardi’s wife divorced him after he
committed the offense, and he was unable to return to any job
in law enforcement with a felony conviction on his record.
Defense counsel also advised the court that the conviction
6 No. 19-1043
might result in Picardi losing his real estate license. Counsel
also noted mitigating factors, including Picardi’s participation
in mental health treatment, and his commitment to ceasing
harassment towards his ex-wife.
But the crux of counsel’s argument was how much Picardi
had suffered in prison during the three months following the
revocation of bond. Noting that he knew what the government
had asked for in terms of sentencing and what the probation
department had recommended, counsel asked the court to
limit the sentence to time served, arguing that Picardi had
experienced significant difficulties in prison. R. 108, Sentencing
Transcript, at 41–50 (hereafter “Sent. Tr.”). At first, the other
inmates misidentified him as a pedophile and threatened to
physically harm him. Once the inmates learned that he was a
law enforcement officer, they threatened him and labeled him
a snitch. He had trouble eating and sleeping, and had lost a
significant amount of weight. He became hyper-vigilant, and
counsel described him as “terrified.” Counsel continued:
And I think that in the 90 days he has been in jail, he
has experienced things that would rival any of the
deeper recesses of Dante’s hell. I ask your Honor to
please cut short the abject terror of his life circum-
stances and say, while clearly more would be appro-
priate, what would be sufficient, but not greater
than necessary.
Sent. Tr. at 48. Finally, counsel urged the court to consider
imposing a fine rather than additional time in prison:
And if there is a balancing consideration, to please
strongly consider answering the question of what is
No. 19-1043 7
sufficient, with the response that the time he has
already served in punishment is enough. There are
other ways to punish an individual. This is a crime
of taking someone else’s money. Then a response in
addition to the custody that he has served is one that
has been recommended by the probation depart-
ment, which is a fine.
Money this man can make honestly, legitimately,
and has his whole life. His freedom and liberty has
caused him to dwindle away physically and emo-
tionally to a point where I fear for him. Not because
I hope your Honor will give him a lighter sentence,
but because I truly do. And I ask your Honor to
consider that.
Sent. Tr. at 50.
After hearing Picardi’s allocution, the court first determined
that the probation office’s recommendation of three years of
supervised release was appropriate, and the court set the
conditions for that period of release. The court then announced
its decision as to the fine:
All right. I am going to impose a fine, the recom-
mended fine of $100,000 – the defendant has the
ability to pay it – and also a special assessment of
$100. Given the fact that there is a fine, it should be
paid during the period of supervised release.
Sent. Tr. at 61–62. The court said nothing more on the issue of
the fine during the remainder of the sentencing hearing.
8 No. 19-1043
The court next turned to the issue of custody. The court
found an extensive list of aggravating factors, and rejected
much of the argument that Picardi had already suffered
enough, finding much of the loss and pain to be self-inflicted.
Citing the airport security video, the court deemed Picardi’s
conduct “callous and greedy,” as well as calculating rather
than impulsive and desperate as defense counsel had argued.
Moreover, Picardi was acting as a law enforcement officer at
the time he committed his crime, tarnishing the integrity of an
important federal agency. He took advantage of an elderly
Chinese woman who did not speak English, hoping that she
would not discover his theft until she had left the airport. He
caused her to undergo a body search knowing that the money
was in his own pocket. And he attempted to deflect responsi-
bility from himself by casting blame on his victim. The court
noted that this was not a “paper crime” but instead involved
a real victim who endured significant distress. The court
remarked on Picardi’s failure to apologize to the victim during
his allocution to the court. The court also noted that Picardi
had harassed his wife with electronic communications and had
sent a private investigator to his mother-in-law’s home. He had
done all of these things in spite of having a happy, healthy
upbringing, a good education, a supportive family, and no
economic wants, which the court also considered to be aggra-
vating circumstances. In mitigation, the court noted that
Picardi had no prior criminal record, had undergone mental
health treatment, and had many supportive letters from family
and friends. The court indicated that it was inclined to go much
higher than the six month sentence recommended by the
probation officer because of the amount of aggravating
No. 19-1043 9
conduct, but the court was moved by some of the letters from
family members. The court rejected the suggestion that time
served was sufficient and sentenced Picardi to eight months’
imprisonment, a term within the Guidelines range as recalcu-
lated to account for Picardi’s attempt at obstruction of justice.
Picardi appeals.
II.
On appeal, Picardi challenges only the fine imposed. He
faults the district court for failing to make specific findings
under Guideline 5E1.2(d), and 18 U.S.C. §§ 3553(a) and 3572(a),
in order to explain why the above-Guidelines fine was im-
posed. He characterizes the failure to adequately explain the
fine as a procedural error. Picardi also asserts that the fine was
substantively unreasonable. He concedes that he failed to
object to the fine, but urges this court to find that he merely
forfeited rather than waived his claims, rendering them
reviewable under the plain error standard.
We must first consider whether Picardi forfeited or waived
the arguments that he now makes on appeal. “Whereas
forfeiture is the failure to make the timely assertion of a right,
waiver is the ‘intentional relinquishment or abandonment of a
known right.’” United States v. Olano, 507 U.S. 725, 733 (1993)
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). We may
review a forfeited claim for plain error. Fed. R. Crim. P. 52(b);
Olano, 507 U.S. at 733–34. Waiver, however, extinguishes any
claim of error, precluding appellate review. Olano, 507 U.S. at
733; United States v. Young, 908 F.3d 241, 246 (7th Cir. 2018);
United States v. Aslan, 644 F.3d 526, 537 (7th Cir. 2011).
10 No. 19-1043
Although we have characterized the line between forfeiture
and waiver as often blurry, we have noted some distinctions
that aid the analysis. United States v. Garcia, 580 F.3d 528, 541
(7th Cir. 2009). Forfeiture typically results from an accidental
or negligent omission; waiver arises from a knowing and
intentional decision. Garcia, 580 F.3d at 541. When a defendant
chooses as a matter of strategy not to present an argument or
objection, we generally view that choice as waiver. Young,
908 F.3d at 247 (if a defendant fails to raise a specific objection
at sentencing, we will view it as having been waived if the
defendant had a strategic reason to forgo the argument);
Garcia, 580 F.3d at 541 (in distinguishing between forfeiture
and waiver, the important concern is whether the defendant
chose, as a matter of strategy, not to present an argument);
United States v. Allen, 529 F.3d 390, 395 (7th Cir. 2008) (if a
specific objection was not raised at sentencing, we will view it
as having been waived if the defendant had a strategic reason
to forgo the argument, that is, only if the defendant's counsel
would not be deficient for failing to raise the objection).
For example, a defendant who accepted a plea agreement
that contained a stipulation as to the amount of the loss and
restitution for a fraud charge waived any later claim regarding
that amount on appeal. Young, 908 F.3d at 246–47. This was
because the defendant made a strategic decision to stipulate to
certain loss and restitution amounts in order to avoid a trial
and the possible inclusion of additional amounts. Id. Similarly,
a defendant who did not object to the scope of jointly under-
taken criminal activity in order to preserve a sentencing
reduction for acceptance of responsibility waived any objection
No. 19-1043 11
to that scope. Aslan, 644 F.3d at 537; United States v. Salem,
597 F.3d 877, 890 (7th Cir. 2010) (same).
In this case, the strategic decision is obvious on the face of
the record, and Picardi has waived his objections both to the
amount of the fine and to the adequacy of the explanation. We
begin by noting that both Picardi and his lawyer affirmed at
the sentencing hearing that they had read and discussed the
probation officer’s Sentencing Recommendation. That docu-
ment included the proposed $100,000 fine, a recommendation
made at a time when the maximum Guidelines fine had been
calculated to be $20,000. That maximum was adjusted upward
to $40,000 at the sentencing hearing, and Picardi does not
assert that the court miscalculated the correct Guidelines range
for the fine. Moments before making his case for a sentence of
time served, counsel affirmed again that he knew “what the
probation department has recommended.” Sent. Tr. at 45.
There can be little doubt that both Picardi and his lawyer knew
what was at stake: the maximum under the Guidelines was
$40,000, and the probation department recommendation was
$100,000.
In the context of a sentencing recommendation for custody
at the high end of the Guidelines and a $100,000 fine, Picardi’s
counsel made an extensive plea for a sentence of time served
because of the extreme difficulties that Picardi had encountered
in his three months in prison. Aware that “clearly more [time]
would be appropriate,” (Sent. Tr. at 48), and that the court
might not accede to a request for time served, counsel offered
the court a “balancing consideration.” Sent. Tr. at 50. Specifi-
cally, he argued that time served was punishment enough, and
that “[t]here are other ways to punish an individual.” Sent. Tr.
12 No. 19-1043
at 50. Namely, because the nature of the crime was “taking
someone else’s money,” “[t]hen a response in addition to the
custody that he has served is one that has been recommended by
the probation department, which is a fine.” Sent. Tr. at 50 (empha-
sis added). That was a third and explicit acknowledgment that
counsel was aware of the probation department’s recommen-
dation and was now proposing to balance the request for time
served (three months) with the recommended fine ($100,000).
The balance he proposed was thus for a below-Guidelines
sentence of three months,1 in exchange for the above-Guide-
lines fine recommended by the probation department. Counsel
concluded by expounding on Picardi’s ability to make money,
and drove home his point that custody had “caused him to
dwindle away physically and emotionally to the point where
I fear for him.” Sent. Tr. at 50. It was only after this argument
that the court announced that it was fining Picardi the amount
recommended by the probation officer.
This was not simply an inadvertent failure to object to the
imposition of an above-Guidelines fine; it was a calculated,
strategic decision. Counsel was aware of the many aggravating
factors present in the case. Before pitching his “balancing
consideration” argument, counsel had twice indicated that he
was aware of the probation department’s sentencing recom-
mendation, which of course included the proposed $100,000
fine. He then referred a third time to the recommendation by
1
Three months constituted half of the bottom of the Guidelines range (six
months), and only one-quarter of the top of the range (twelve months). The
recommended fine of $100,000 was two and a half times the top of the range
($40,000).
No. 19-1043 13
suggesting that the court impose that fine in lieu of additional
prison time. Those three references to the probation depart-
ment’s recommendation, without any accompanying objection
to the above-Guidelines fine, would have led any judge to
believe that counsel knew the amount and had no problem
with the recommended fine. The failure to flag the amount of
the recommended fine as an issue was clearly the result of a
strategic decision made in the hope that it would work to his
client’s benefit on the custody determination. See Young,
908 F.3d at 247 (finding an objection to loss and restitution
amounts waived when defendant had stipulated to the
amounts in the hopes of avoiding greater liability). That the
strategy was not entirely successful (because the court ordered
additional custody as well as the fine) does not mean that it
was not a strategy. Moreover, Picardi can hardly complain that
the court failed to explain adequately its decision to impose the
above-Guidelines fine when counsel led the court to believe
that he had no objection to the fine. See United States v. Walton,
255 F.3d 437, 442 (7th Cir. 2001) (“A party may not by his own
actions lull the court into believing that an express finding is
unnecessary and then object when it makes no such finding.”).
In general, the better practice is for a court to explain its
reasons for imposing an above-Guidelines fine. In the usual
course of reviewing sentences, we first ensure that the district
court committed no significant procedural error such as
incorrectly calculating the Guidelines range or failing to
explain adequately the chosen sentence, among other things.
Gall v. United States, 552 U.S. 38, 51 (2007). Guideline 5E1.2 and
18 U.S.C. § 3572(a) (which incorporates by reference section
14 No. 19-1043
3553(a)) set forth factors for courts to consider in setting a fine.2
A court need not offer express or specific findings for every
factor, and it is sometimes clear from the record that the court
has properly considered the relevant factors. United States v.
Artley, 489 F.3d 813, 826 (7th Cir. 2007). But we will remand
where it is unclear whether the court has considered the
relevant factors, such as when the court adopts the factual
findings of the PSR but then deviates from the recommenda-
tion of the probation office, or if the court declines to adopt the
findings of the PSR and makes no findings of its own. Id; United
States v. Bauer, 129 F.3d 962, 968 (7th Cir. 1997). See also United
States v. Washington, 739 F.3d 1080, 1082 (7th Cir. 2014) (up-
holding below-Guidelines fine because it was not inconsistent
with the recommendation of the adopted PSR). But the
defendant here waived any objection to the fine and led the
court to believe that there was no reason to further explain its
decision. That waiver extinguishes any claim of error, preclud-
ing appellate review. The appeal is therefore DISMISSED.
2
Sentencing Guideline 5E1.2 directs courts to impose fines in all cases
except those where the defendant establishes that he is unable to pay and
is not likely to become able to pay. The court did in fact find that Picardi
had the ability to pay the fine imposed, and the PSR (which the court
adopted without objection) established a solid factual basis for that finding,
namely, Picardi’s significant net worth. Interestingly, counsel’s argument
at the sentencing hearing touched on many of the factors that courts must
consider under Guideline 5E1.2(d) and section 3572(a) in setting the amount
of the fine. The “balancing consideration” plea that counsel offered
supports the above-Guidelines amount under those factors.