Appeal from a judgment of conviction of the United States District Court for the Eastern District of New York (Nina Gershon, Judge) entered March 18, 2011.
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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 18th day of June, two thousand twelve.
PRESENT: GUIDO CALABRESI, JOSE A. CABRANES, RAYMOND J. LOHIER, JR., Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Defendant-appellant Jozef Wolosz appeals a judgment of conviction entered on March 18, 2011, following his guilty plea, of one count of conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1343 and 1349.
Wolosz was the president of Keystone Renovation Corp. ("Keystone"), a construction contractor located in Brooklyn, NY, that, under a subcontract agreement with MCR Restoration Corp., performed carpentry and other construction work on a project funded by the New York City Department of Housing Preservation and Development ("HPD") to build affordable housing at various sites in Brooklyn, NY, known as the Watkins Avenue Cluster. Under federal law (the Davis- Bacon Act, 40 U.S.C. § 3142) and state law (New York State Labor Law, Art. 8, § 220), Keystone was required to pay the so-called "prevailing wage."*fn1 While performing the subcontract work at the Watkins Avenue Cluster, Keystone paid its employees less than the prevailing wage, by requiring that employees give back a portion of their earnings to Wolosz and an associate of his. Wolosz then signed certified U.S. Department of Labor forms that falsely overstated the wages paid to Keystone employees.
On October 27, 2005, several Keystone employees filed a civil lawsuit in federal court against, among others, Keystone and Wolosz, alleging that they had been employed at various construction projections for which the defendants had failed to pay them the required prevailing wage (the "Drej lawsuit").
Thereafter, Wolosz and other defendants in the Drej lawsuit were indicted on charges of conspiracy to intimidate and retaliate against the plaintiffs in the lawsuit for the purpose of obtaining a more favorable money settlement of their claims. The indictment alleged that from April 2006 through October 2008, Wolosz and others "agreed to assault the plaintiffs to intimidate them and retaliate for the filing the Drej lawsuit." For example, as set forth in the complaint underlying the indictment, the government alleged that Wolosz paid Darius Lapinski $15,000 to engage in intimidation of the plaintiffs--a task Lapinski fulfilled in part by pouring acid on the back of the girlfriend of one of the plaintiffs in or around May 2006.
The government also alleged that Wolosz and four other co-defendants unwittingly engaged a cooperating witness to assault the plaintiffs in January 2008. In consensually-recorded conversations with the cooperating witness, several co-defendants outlined a scheme to have the plaintiffs and their lawyers beaten and hospitalized. Although Wolosz did not directly participate in these conversations, the co-defendants referred to their "boss" sanctioning the scheme.
On September 12, 2008, after the Drej lawsuit had settled, the cooperating witness met Wolosz in a consensually-recorded conversation. During the meeting, Wolosz advised that he was broke and could not pay the cooperating witness. Wolosz proposed that he pay the cooperating witness $7,000 for his efforts, and that the cooperating witness "collect" $15,000 from Lapinski based on Lapinski's failure to end the lawsuit earlier.
On September 20, 2010, Wolosz signed a plea agreement with the government in which he agreed to plead guilty to Count One of the Superseding Indictment--the wire-fraud conspiracy. The agreement addressed the application of the Sentencing Guidelines and set forth the government's estimate of a likely Guidelines range of 22, which carried a range of ...