United States v. Michael Licciardi

30 F.3d 1127 UNITED STATES of America, Plaintiff-Appellee, v. Michael LICCIARDI, Defendant-Appellant. No. 92-10046. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 1, 1993. Opinion Withdrawn July 22, 1994. Decided July 22, 1994. Michael Babitzke, Stockton, CA, for defendant-appellant. Steven Lapham, Asst. U.S. Atty., Sacramento, CA, for plaintiff-appellee. ORDER The opinion of this court filed January 11, 1994 is withdrawn. Before: FLETCHER, REINHARDT, and NOONAN, Circuit Judges. OPINION NOONAN, Circuit Judge: 1 Michael Licciardi appeals his conviction under 18 U.S.C. Sec. 371 of conspiracy to defraud the United States by obstructing the functions of the Bureau of Alcohol, Tobacco and Firearms (the BATF); of two convictions under 18 U.S.C. Sec. 1341 of mail fraud; and of his conviction under 18 U.S.C. Sec. 1001 of making a false statement. This case involves an effort of the government to extend substantially the scope of the general conspiracy statute. Despite disagreeing with one major theory of the government, we affirm Licciardi's conviction for conspiracy and his conviction on the other counts. We remand for resentencing. THE INDICTMENT 2 Licciardi…

concurring in part and dissenting in part:

I join all of Judge Noonan’s well-reasoned opinion except that part which affirms the conspiracy conviction. I agree with Judge Noonan that this case is an example of the government’s attempt to expand the conspiracy statute significantly. As he persuasively explains, it is our obligation to hold the government strictly to its burden of proof in conspiracy cases, for history shows that prosecutors have too often sought to extend the conspiracy statute far beyond its limits.

I cannot agree, however, that the government has demonstrated sufficient evidence of a second object of the charged conspiracy. As the majority rightly notes, “[t]he government says nothing on this appeal about the charged objective of Liceiardi conducting financial transactions to conceal unlawful activities.” Majority opinion at 1133. Rather, the government relies solely on the charged objective of mail fraud. To support this objective, it points only to Licciardi’s convictions on Counts 5 and 6. Yet these convictions are insufficient to show, as the government must, that the use of the mails was actually contemplated at the time Liceiardi entered into the…

ORDER

The opinion of this court filed January 11, 1994 is withdrawn.

OPINION

Michael Licciardi appeals his conviction under 18 U.S.C. § 371 of conspiracy to defraud the United States by obstructing the functions of the Bureau of Alcohol, Tobacco and Firearms (the BATF); of two convictions under 18 U.S.C. § 1341 of mail fraud; and of his conviction under 18 U.S.C. § 1001 of making a false statement. This case involves an effort of the government to extend substantially the scope of the general conspiracy statute. Despite disagreeing with one major theory of the government, we affirm Lieciardi’s conviction for conspiracy and his conviction on the other counts. We remand for resentencing.

THE INDICTMENT

Licciardi was indicted for the following offenses:

Count 1. From January 1987 to April 1989 Licciardi was charged with a conspiracy whose “object” was to “defraud the United States and its agency, the BATF, by obstructing, impairing and defeating the lawful function of the BATF to assure the integrity and varietal designations of wine through examination and analysis of records maintained honestly and accurately and free from deceit, trickery, fraud and dishonesty, in violation…

concurring specially

I concur in Judge Noonan’s opinion except as I express my disagreements below.

I

I agree with the majority that the conspiracy indictment is not duplicitous, but I believe it is worth spelling out in greater detail why this is so. Under United States v. Gordon, 844 F.2d 1397, 1401 (9th Cir.1988), an indictment which charges a coverup conspiracy distinct from the primary conspiracy is duplicitous because it poses the risk of a nonunanimous jury verdict. This ease initially appeared to be similar to Gordon , because the mail fraud conspiracy charged in the indictment appeared to have been carried out pursuant to a separate agreement, and at a different time than the primary conspiracy to defraud. In other words, the mail fraud conspiracy charged in Count 1 appeared to track precisely that kind of coverup conspiracy which Gordon held must be charged separately.

The government has convincingly argued, however, that the primary activity of defrauding the winery and the subsidiary conspiracy of concealing the fraud overlapped. Alfieri testified that the purpose behind writing the letters which eventually became the basis of the Count 5 mail fraud “was to justify…