Appeals by defendants Raoul and Fausto Rivalta from judgments of conviction, and from sentences imposed thereon, in the United States District Court for the Southern District of New York, Kevin T. Duffy, J., on one count of interstate transportation of stolen property in violation of 18 U.S.C. § 2314, and one count of sale of stolen property in violation of 18 U.S.C. § 2315. Convictions affirmed. Case remanded for findings regarding, and reconsideration of, sentences.
Kaufman, Feinberg and Cardamone, Circuit Judges.
Raoul and Fausto Rivalta appeal from judgments of conviction, and from sentences imposed thereon, on one count of interstate transportation of stolen property in violation of 18 U.S.C. § 2314, and one count of sale of stolen property in violation of 18 U.S.C. § 2315. The Rivalta brothers were tried separately, and were represented by separate counsel, before a jury and Judge Kevin T. Duffy in the United States District Court for the Southern District of New York. Raoul and Fausto Rivalta were sentenced, on March 21 and April 12, 1989 respectively, to ten years of imprisonment on each count, to be served consecutively, and a fine of $500,000. They took separate appeals, which have been heard by the same panel at their request.
Because appellants' underlying acts occurred after November 1, 1987, the Federal Sentencing Guidelines (Guidelines) apply. The judge imposed the statutory maximum on each defendant on each count, departing approximately tenfold from the high end of the recommended range of imprisonment in the Guidelines for the two crimes considered together. Appellants raise a number of issue in their appeals, including whether the judge could properly find that the Rivalta brothers' criminal activity resulted in death and whether the judge's upward departure from the Guidelines was justified.
For reasons given below, we affirm the convictions of each appellant, but remand for further findings regarding, and reconsideration of, the sentences.
The government maintains that its evidence at trial demonstrated that the Rivalta brothers knowingly transported and sold a stolen 3.97 carat diamond and that this diamond was acquired by means of an elaborate ruse. This ruse purportedly involved convincing Barbara Mangiameli, a neophyte, free-lance diamond dealer, that the brothers could introduce her to a diplomat interested in purchasing investment-quality diamonds. In support of its theory, the government introduced evidence from which a jury could find the following:
Ms. Mangiameli resided in the same apartment building as Fausto Rivalta, a friend and neighbor. His older brother Raoul held a clerical position at the investment firm of Bear, Stearns & Co., and had financial problems. On February 1, 1989, Mangiameli called free-lance diamond dealer Charles Fischler and informed him that she needed investment-quality diamonds for a potential purchaser, who was a client of Fausto's brother Raoul, "the vice president of Bear, Stearns brokerage firm." The next day, Mangiameli again phoned Fischler to inquire about the amount of commission Raoul Rivalta would earn if his client purchased the diamonds, and during this conversation she indicated that Raoul was present in her apartment.
On February 3, 1989, Fischler gave Mangiameli a total of six diamonds, including a flawless, pear-shaped, 3.97 carat diamond. The six diamonds had an aggregate value of over $500,000; the 3.97 carat diamond had been purchased earlier for $48,000. (Appellants were convicted for the transportation and sale of the 3.97 carat diamond; the other five diamonds have apparently never been recovered). Mangiameli indicated to Fischler that the prospective purchaser was a Third World diplomat, with whom she had an appointment to meet that evening at the United Nations. Shortly before the scheduled meeting, Fausto Rivalta called Mangiameli and informed her that the appointment was cancelled because the diplomat had a function to attend. Mangiameli was upset by the change in arrangements, but later that evening she had dinner with the brothers, and they went over the diamond deal with her.
On the morning of February 4, 1988, the diamonds were still in Mangiameli's possession. That morning, she cancelled a lunch meeting with a potential customer (and friend), explaining that Raoul Rivalta had arranged a noontime business meeting at the United Nations with a diplomat. Later that morning, at 11:49, Raoul placed a telephone call to Fausto at his apartment. The conversation, which took place in Italian, was recorded by Bear, Stearns. (That company had a practice of taping the outgoing calls of its employees). According to the government's translation, Fausto told Raoul, "She came here and went out again, she went up and I couldn't do anything," adding, "She came here and she didn't want anything to drink." Raoul indicated that he was coming to Fausto's apartment, and four minutes later, at 11:53, clocked out of work. At 12:30 p.m. a neighbor saw Mangiameli talking into the intercom in the vestibule of their apartment building, saying "Fausto, I can't hear you . . . Faust." Family, friends and acquaintances never saw or heard from Mangiameli again.
At about 5:00 p.m. on February 4, the Rivalta brothers went to a Manhattan car rental agency and requested a station wagon or minivan. The brothers, after being informed that no such vehicles were available, accepted a hatchback. On the evening of February 5, 1988, a Friday, Fausto Rivalta asked a friend to use her credit card to obtain two airline tickets to Italy, one departing on Sunday and the other on Monday. He insisted on these departure dates.
The next morning, February 6, 1988, Fausto Rivalta called this friend from a public pay phone about the tickets. She had learned that the police wanted to speak to Fausto in connection with a missing person, and she refused to help him until he spoke with the police. That night, the brothers did not return to their homes. On or after February 8, the brothers left New York City, and travelled to Florida in their rented hatchback.
On February 16 or 17, 1988, Fausto Rivalta sold the 3.97 carat diamond at a West Palm Beach pawn shop for $14,000 in cash, approximately one-quarter of its value. On or about February 26, 1988, Raoul Rivalta returned to New York in the rented hatchback, and abandoned the car on a New York street.
Subsequently, Raoul and Fausto Rivalta made lengthy, videotaped statements, on separate occasions, at the Office of the District Attorney, New York County. Both admitted to meeting with Mangiameli, viewing the diamonds, and discussing the possibility of Raoul's arranging a diamond deal with his "wealthy friends." The brothers both insisted that this meeting occurred on Tuesday, February 2, two days before Mangiameli's disappearance, and that the deal had been called off on February 3, 1988. Raoul claimed never to have seen Mangiameli again after the February 2, 1988 meeting. Fausto also indicated that he last saw Mangiameli on that date (or possibly on the morning of either February 3 or 4), a claim contradicted by his contention now to us that Mangiameli met him in Florida in mid-February and asked him to sell the diamond. The brothers also made other false exculpatory ...