USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 93-1399
UNITED STATES OF AMERICA,
Appellee,
v.
THOMAS LUONGO,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, Senior U.S. District Judge]
__________________________
_________________________
Before
Breyer, Chief Judge,
___________
Selya and Cyr, Circuit Judges.
______________
_________________________
William A. Brown on brief for appellant.
________________
A. John Pappalardo, United States Attorney, and Duane J.
___________________ _________
Deskins, Assistant United States Attorney, on brief for appellee.
_______
_________________________
December 8, 1993
_________________________
SELYA, Circuit Judge. This appeal requires us not only
SELYA, Circuit Judge.
_____________
to resolve defendant's claim of multiplicitousness, but also to
answer a question of first impression in this circuit concerning
the special assessment mandated by 18 U.S.C. 3013 (1988).
Concluding, as we do, that the indictment is not multiplicitous
and that the court below appropriately imposed the special
assessment on a "per count" basis, rather than on some broader
basis (say, "per scheme" or "per defendant"), we affirm.
I
I
_
Background
Background
__________
The indictment undergirding this appeal stemmed from
defendant-appellant Thomas Luongo's communications with an
elderly man, Albert Tompane, between August 1990 and April 1991.
Using the name Keith Symonds, appellant contacted Tompane by
telephone for the purpose of soliciting money in exchange for
lucre or property that appellant promised to provide in the
future. Appellant directed Tompane to send him funds by means of
wire transfers. As a result, Tompane wired money from
Massachusetts to Rhode Island on numerous occasions. Appellant
then pocketed the proceeds but did not send Tompane the promised
consideration.
Shortly after the grand jury returned an indictment,
appellant pled guilty to fifty-seven counts of wire fraud.1 The
____________________
1The original indictment charged appellant with causing
seventy-eight unlawful wire transfers, involving $45,525. A
superseding indictment charged him with causing fifty-seven
unlawful wire transfers. At the change-of-plea hearing, the
prosecutor stated that these fifty-seven transfers involved
2
district court sentenced him to serve thirty-six months in
prison, followed by thirty-six months of supervised release. The
court also ordered him to pay a $2,850 special assessment and
$5,000 toward restitution.2 Luongo appeals from the special
assessment.
II
II
__
Multiplicity
Multiplicity
____________
Appellant's initial contention is that, notwithstanding
his plea of guilty to fifty-seven counts of wire fraud,3 the
____________________
$29,201. The presentence report used the same dollar amount. Be
that as it may, the figures specified in the fifty-seven counts,
when added together, aggregate $31,180.
2The court levied the special assessment under a statute
that reads in pertinent part:
* * *
(a) the court shall assess on any person
convicted of an offense against the United
States
* * *
(2) in the case of a felony
(a) the amount of $50 if the
defendant is an individual; . . .
18 U.S.C. 3013(a) (1988). In this case, the $2,850 special
assessment represents the $50 sum mentioned in the law,
multiplied by the fifty-seven counts of conviction.
3The statute of conviction provides in relevant part that:
Whoever, having devised . . . any scheme or
artifice to defraud, or for obtaining money .
. . by means of false or fraudulent
pretenses, representations, or promises,
transmits or causes to be transmitted by
means of wire . . . communication in
interstate or foreign commerce, any writings,
signs, signals, pictures, or sounds for the
purpose of executing such scheme or artifice,
shall be [punished as provided by law] . . .
3
indictment against him suffered from a fatal strain of
multiplicity. Consequently, he maintains that his offenses
amounted to only a single violation of 18 U.S.C. 1343 and,
therefore, merit only a single $50 special assessment. This
claim pirouettes around our opinion in United States v. Lilly,
_____________ _____
983 F.2d 300 (1st Cir. 1992).4
In Lilly, we held an indictment charging a defendant
_____
with, inter alia, twenty-nine counts of bank fraud under 18
_____ ____
U.S.C. 1344 to be multiplicitous. Since the defendant
defrauded a single bank of a single loan through a single scheme,
albeit by submitting twenty-nine false mortgages to the lender in
perpetrating that scheme, that portion of the indictment "was
more comfortably characterized as a single execution of a scheme
rather than as 20-some-odd separate executions of a scheme." Id.
___
at 303. Appellant asseverates that he, too, defrauded a single
victim through a single scheme, necessitating that we merge the
fifty-seven counts in the superseding indictment and construe
them as one. We disagree.
The principal flaw in appellant's construct is that he
and Lilly were charged under different statutes and, therefore,
the cases are not fair congeners. Lilly dealt with bank fraud,
_____
____________________
.
18 U.S.C. 1343 (Supp. 1990).
4Appellant also tries to derive sustenance from the fact
that the lower court imposed a single 36-month prison term and a
unitary term of supervised release. For our part, those features
of the sentence do not portend multiplicity. Absent clear
language indicating a contrary intent, it is to be presumed that
sentences imposed on more than one count at the same time are to
run concurrently. See, e.g., United States v. Schulz, 384 F.2d
___ ____ _____________ ______
374, 375 (5th Cir. 1967).
4
not wire fraud. This is no mere scrivener's discrepancy, for the
Lilly court held that the bank fraud statute, 18 U.S.C. 1344,
_____
could not be construed in pari passu with the mail and wire fraud
____ _____
statutes, 18 U.S.C. 1341, 1343. See Lilly, 983 F.2d at 304 &
___ _____
n.8. While the former statute criminalizes only the execution,
or attempted execution, of a scheme to defraud a bank, see 18
___
U.S.C. 1344 (rendering it unlawful for a person to "knowingly
execute[], or attempt[] to execute, a scheme or artifice . . . to
defraud a financial institution"), the latter statutes
criminalize specifically enumerated actions, e.g., interstate
____
wire transmissions, see 18 U.S.C. 1343, so long as any such
___
action is for the purpose of executing a scheme to defraud. This
salient difference routs appellant's reliance on Lilly.5
_____
Once Lilly is placed into proper perspective,
_____
appellant's multiplicity claim is easily dismantled. "It is well
established that each use of the wires constitutes a separate
crime under 18 U.S.C. 1343, even if the several uses are in
pursuance of but one criminal enterprise." United States v.
_____________
____________________
5Of course, beyond the all-important difference between
section 1344's focus on execution of a scheme as opposed to
_________
section 1343's focus on the individual (covered) acts undertaken
in executing the scheme, there are also factual distinctions
between Lilly and this case. Although appellant, like Lilly,
_____
devised one scheme to defraud one victim, he procured multiple
sums of money through multiple wire transfers. Lilly, however,
engaged in one transaction with one bank, procuring one large sum
of money in one loan a set of facts critical to the analysis of
the twenty-nine counts at issue there. See Lilly, 983 F.2d at
___ _____
304. We take no view on the purely hypothetical question of how
appellant's case might fare if he, like Lilly, had victimized a
financial institution and had been charged with bank fraud rather
than wire fraud.
5
Fermin Castillo, 829 F.2d 1194, 1199 (1st Cir. 1987). Because
_______________
each of the fifty-seven counts laid against appellant reflects a
distinct wire transfer of funds, each count describes a separate
violation of 18 U.S.C. 1343 even if the transfers
collectively comprised a single execution of a single scheme.
See id.; United States v. Benmuhar, 658 F.2d 14, 21 (1st Cir.
___ ___ _____________ ________
1981), cert. denied, 457 U.S. 1117 (1982). On this point, Lilly
_____ ______ _____
does not prop up appellant's argument, but batters it, for Lilly
_____
expressly reaffirms the Fermin Castillo principle. See Lilly,
________________ ___ _____
983 F.2d at 303 n.7 ("Courts have routinely construed the mail
and wire fraud statutes to criminalize each mailing or use of the
wires.").
For these reasons, we conclude that Lilly, properly
_____
read, is more bludgeon than crutch so far as appellant is
concerned. It follows that appellant's multiplicity claim is
meritless. The counts of conviction need not be merged.6
III
III
___
Construing the Special Assessment Statute
Construing the Special Assessment Statute
_________________________________________
The second question we must confront is whether 18
____________________
6Appellant suggests that the rule of lenity pertains in this
case because 18 U.S.C. 1343 does not specifically require that
a defendant be punished for each act in furtherance of a scheme
to defraud. But a criminal statute must be ambiguous before the
rule of lenity becomes relevant. See Bifulco v. United States,
___ _______ _____________
447 U.S. 381, 387 (1980). As the wire fraud statute is
unambiguous, and the principle that each use of the wires
constitutes a separate violation of section 1343 has been widely
accepted for many years, see, e.g., United States v. Calvert, 523
___ ____ _____________ _______
F.2d 895, 903 n.6 (8th Cir. 1975), cert. denied, 424 U.S. 911
_____ ______
(1976); United States v. Henderson, 425 F.2d 134, 138 n.4 (5th
______________ _________
Cir. 1970), we have no occasion to engage the rule of lenity.
6
U.S.C. 3013, quoted supra note 2, required the district court
_____
to impose the monetary equivalent of fifty-seven special
assessments in this case. We think that it did.
We begin with bedrock. When "resolution of a question
of federal law turns on a statute and the intention of Congress,
we look first to the statutory language and then to its
legislative history if the statutory language is unclear." Blum
____
v. Stenson, 465 U.S. 886, 896 (1984). The statute at issue here
_______
provides that a district court "shall" impose the special
assessment "on any person convicted of an offense." 18 U.S.C.
__ _______
3013(a) (emphasis supplied); see also id. at 3013(a)(2)
___ ____ ___
(providing for the assessment "in the case of a felony")
_ ______
(emphasis supplied). This language admits of only one plausible
construction: that a $50 special assessment must be imposed on a
defendant who stands convicted of a federal offense that is a
felony. And because the statute is phrased in the singular, its
terms imply that each offense each felony calls for a
separate special assessment, even when a single defendant is
simultaneously convicted of multiple charges.
The legislative history suggests the same
interpretation. The statute was enacted as part of the 1984
Comprehensive Crime Control Act. The Senate Report which
accompanied section 3013 states that "[t]he purpose of imposing
nominal assessment fees is to generate needed income" to stock a
victims' assistance fund, simultaneously created. S. Rep. No.
497, 98th Cong., 2d Sess. 13, reprinted in 1984 U.S.C.C.A.N.
_________ __
7
3607, 3619. Because the aim of section 3013 is to generate
revenue, and because construing it according to the tenor of its
text will maximize that goal, we are hard pressed to see how the
statute can bear a contrary reading.
We are not pioneers in reaching the conclusion that,
under 18 U.S.C. 3013, a defendant convicted of multiple
felonies is subject to multiple assessments. Every court of
appeals thus far to consider the question has ruled that the
special assessment required by section 3013 must be imposed on a
"per count" basis. See United States v. McGuire, 909 F.2d 440,
___ _____________ _______
441-42 (11th Cir. 1990); United States v. Smith, 857 F.2d 682,
______________ _____
686 (10th Cir. 1988); United States v. Dobbins, 807 F.2d 130, 132
_____________ _______
(8th Cir. 1986) (per curiam); United States v. Donaldson, 797
______________ _________
F.2d 125, 126-29 (3d Cir. 1986); United States v. Pagan, 785 F.2d
_____________ _____
378, 381 (2d Cir.), cert. denied, 479 U.S. 1017 (1986). We agree
_____ ______
that this is the correct approach. We hold, therefore, that the
court below did not err in imposing an aggregate special
assessment of $2,850, corresponding to the number of counts of
conviction. We need go no further.7
____________________
7Appellant's claim that his self-professed indigency affects
the validity of the special assessment is not properly before us
and we express no opinion on it. Absent an indication "that the
government has attempted or will attempt to collect the special
assessment while [the defendant] lacks the ability to pay,"
United States v. Rivera-Velez, 839 F.2d 8, 8 (1st Cir. 1988) (per
_____________ ____________
curiam) and there is no such indication in this record
appellant's challenge is prematurely posed. See id.; accord
___ ___ ______
Pagan, 784 F.2d at 381; cf. United States v. Levy, 897 F.2d 596,
_____ ___ ______________ ____
598 (1st Cir. 1990) (holding to like effect with respect to a
stand-committed fine).
8
Affirmed. See 1st Cir. Loc. R. 27.1.
Affirmed. See 1st Cir. Loc. R. 27.1.
________ ___
9
