07-5363-cr, 07-5551-cr, 09-3135-pr
United States v. Andrew Capoccia




                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
SUM M ARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS
COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF
OR OTHER PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN
W HICH A CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL
APPENDIX OR BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING
A SUM M ARY ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER WITH THE
PAPER IN W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY
COUNSEL UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE
W HICH IS PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE
AVAILABLE AT HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF
THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE
REFERENCE TO THAT DATABASE AND THE DOCKET NUM BER OF THE CASE IN WHICH THE
ORDER W AS ENTERED.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 30th day of November, two thousand and nine.

Present:       JON O. NEWMAN,
               ROSEMARY S. POOLER,
               ROBERT A. KATZMANN,
                          Circuit Judges.


_____________________________________________________

UNITED STATES OF AMERICA.,

                                             Appellee,

                        -v-                                         Nos.   07-5363-cr
                                                                           07-5551-cr
                                                                           09-3135-pr
ANDREW CAPOCCIA,

                                             Defendant-Appellant.


Appearing for Appellant:      STEPHANIE M. CARVLIN, Law Offices of Stephanie M.
                              Carvlin, New York, NY
Appearing for Appellee:        GREGORY L. WAPLES, Assistant United States Attorney, of
                               counsel to Thomas D. Anderson, United States Attorney for the
                               District of Vermont, Burlington, Vermont (James J. Gelber, Paul J.
                               Van de Graaf, on the brief).




      Appeal from the United States District Court for the District of Vermont (J. Garvan
Murtha, Judge).

         In docket numbers 07-5363-cr and 07-5551-cr, defendant-appellant (“defendant”) appeals
the November 16, 2007, order of the United States District Court for the District of Vermont
(Murtha, J.) denying defendant’s motion to dismiss his second superseding indictment pursuant
to Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure. Defendant filed a pro se motion
to dismiss the indictment after his conviction and sentence had been affirmed but while his case
was remanded to the district court for recalculation of the court’s forfeiture award. See United
States v. Capoccia, 247 Fed. Appx. 311, 318 (2d Cir. 2007) (affirming defendant’s conviction
and sentence); United States v. Capoccia, 

(2d Cir. 2007) (Sotomayor, J.) (vacating
in part the district court’s forfeiture award). After the district court denied defendant’s motion,
the government conceded that counts 14 and 15 of the indictment — the money laundering
counts — should be dismissed.

        Additionally, in docket number 09-3135-pr, defendant moves for a certificate of
appealability, to proceed in forma pauperis, for appointment of counsel, for immediate
adjudication, and for bail pending review of the appeal from the denial of his habeas corpus
petition. We assume the parties’ familiarity with the underlying facts and procedural history.

       Defendant’s motion in No. 09-3135-pr for a certificate of appealability is without merit.
While Nos. 07-5363-cr and 07-5551-cr were pending, defendant petitioned for habeas relief.1
The able district court, faced with a vexing number of motions, properly denied the habeas
motion as premature in view of the pendency of defendant’s numerous appeals and in view of the
absence of “extraordinary circumstances” justifying immediate consideration of a section 2255
motion. See Capaldi v. Pontesso, 

, 1124 (6th Cir. 1998).

      Defendant’s appeal from the order denying his motion to dismiss his indictment is more
compelling. Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure provides that “at any
time while the case is pending, the court may hear a claim that the indictment or information fails


       1
          Defendant also continued to actively challenge his conviction in the district court, filing
multiple additional motions to dismiss the indictment. His appeals from the denials of some of
these motions have been consolidated under docket number 08-5843-cr. Judge Winter stayed
briefing in that appeal pending the resolution of No. 07-5363-cr. That case should go to another
panel in the ordinary course.

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to invoke the court's jurisdiction or to state an offense.” Thus, a claim that an indictment fails to
state an offense may be raised for the first time on appeal. United States v. Wexler, 

, 1223 (2d Cir. 1980). Again, the government concedes on appeal that counts 14 and 15 of
the indictment should be dismissed and defendant’s convictions on these counts vacated. Where
a count of a conviction is overturned, the ordinary procedure is to remand for de novo
resentencing. See United States v. Quintieri, 

, 1229 n.6 (2d Cir. 2002); United
States v. Rigas, No. 08-3485-cr, 

, at *5 (2d Cir. Oct. 5, 2009). Accordingly,
this case must be REMANDED for resentencing.

        Although the government’s concession forces us to remand for resentencing, in doing so
we note that defendant’s other challenges to the indictment are without merit. Because defendant
did not challenge the indictment prior to appealing his conviction, we review defendant’s claims
for plain error. United States v. Cotton, 

, 633 (2002); United States v. Thomas, 

, 664-66 (2d Cir. 2001) (en banc). “It is generally sufficient that an indictment set forth
the offense in the words of the statute itself, as long as those words of themselves fully, directly
and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to
constitute the offense intended to be punished.” Hamling v. United States, 

, 117
(1974) (internal quotation marks omitted); United States v. Frias, 

, 235 (2d Cir.
2008). See also Fed. R. Crim. P. 7(c) (“indictment or information must be a plain, concise, and
definite written statement of the essential facts constituting the offense charged”).

        In his motion below and his initial briefs on appeal, defendant argued that the indictment
was defective because the allegations contained in the Interstate Transportation of Stolen
Property (“ITSP”) counts were factually false. However, in reviewing the facial sufficiency of an
indictment, we assume that the facts recited in it are true. Boyce Motor Lines, Inc. v. United
States, 

, 343 n.16 (1952); United States v. Von Barta, 

, 1002 (2d Cir.
1980). Thus, even if defendant were right that as a factual matter, the wire transfers that formed
the basis for his ITSP convictions were intrastate transfers—the jury, it should be noted, found
otherwise—this would not undermine the facial sufficiency of the indictment.

        In his supplemental reply brief, defendant makes the additional argument that the
inclusion of language describing defendant’s “scheme” to convert unearned retainer fees to his
personal benefit renders the ITSP counts fatally problematic. Various portions of the indictment
purport to describe defendant’s “scheme, between 1997 and 2002, to convert to his own benefit
and to the benefit of others unearned retainer fees paid by clients to the Capoccia Law Centers.”
Defendant argues that, although “[t]he entire structure of the indictment is designed to charge an
ITSP scheme,” the ITSP statute, 18 U.S.C. § 2314, does not prohibit “schemes.” Thus,
defendant claims that the ITSP counts fail to state an offense.

        We are bound by the previous panel’s conclusions regarding the indictment. E.g.,
Agostini v. Felton, 

, 236 (1997); United States v. Quintieri, 

, 1225
(2d Cir. 2002); Santamarina v. Sears, Roebuck & Co., 

, 571-72 (7th Cir. 2006). In
the present case, a previous panel of this Court has held that “[t]he Indictment does not charge
any misconduct prior to May 2000 … either as part of an ongoing scheme or as discrete acts …
while it refers to the existence of a scheme, it does not charge a scheme.” 

(emphasis


                                                  3
added). Under the law of the case doctrine, these remarks are dispositive of defendant’s
argument that the indictment failed to charge ITSP because it charged a “scheme.”

        Even if we were not bound by the previous panel’s conclusion that the indictment did not
charge a scheme, we would still conclude that the inclusion of the word “scheme” in the ITSP
counts did not render the indictment facially defective. The ITSP counts explicitly charge all the
elements of the corresponding statute, which is identified at the bottom of the count: they allege
that on a series of listed dates, defendant transmitted in interstate commerce various identified
sums of money knowing these moneys to have been stolen. The inclusion of the word “scheme”
at various points in the indictment merely put defendant on notice that the government’s theory
was that his various ITSP offenses were part of a pattern of misconduct. Thus, defendant’s
argument that the indictment charged something other than ITSP is without merit. We have
considered the defendant’s remaining arguments in support of his appeals in Nos. 07-5363-cr and
07-5551-cr and conclude that they are without merit.

        Upon due consideration, it is hereby ORDERED that defendant’s motions in 09-3135-pr
are DENIED and the order of the district court is AFFIRMED, and in 07-5363-cr and 07-5551-
cr, the November 16, 2007 order of the District Court is REVERSED to the extent that it denied
dismissal of Counts 14 and 15, and is AFFIRMED in all other respects, and this case is
REMANDED for resentencing.




                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk

                                                    By:_______________________________




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