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11 F.3d 7

Docket No. 93-1399.

United States v. Luongo

First Circuit Court of Appeals

Submitted Nov. 11, 1993.

Decided Dec. 8, 1993.

First Circuit Court of Appeals · decided 1993-12-08

2 counsel of record

Key passage — most relied on by later courts

“`It is well established that each use of the wires constitutes a separate crime under 18 U.S.C. S 1343, even if the several uses are in pursuance of but one criminal enterprise.'”

quoted by 1 later decision, including United States v. Garlick

Applies 18 U.S.C. § 1341 (White-Collar Crime Penalty Enhancement Act of 2002) · 18 U.S.C. § 1343 · 18 U.S.C. § 1344 · 18 U.S.C. § 3013

Relies on Blum v. Stenson · Mansion House Center South Redevelopment Co. v. United States · Bullock v. United States

Good law ✅— No negative treatment on recordhow we know

Decided 1993-12-08

How this case has been cited

Cited by 14 later decisions — most recently May 2022

7 federal appellate · 3 district ·

501993200020102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1William A. Brown, Boston, MA, on brief for appellant.

¶2A. John Pappalardo, U.S. Atty., and Duane J. Deskins, Asst. U.S. Atty., Boston, MA, on brief, for appellee.

¶3Before BREYER, Chief Judge, SELYA and CYR, Circuit Judges.

¶4SELYA, Circuit Judge.

¶5This appeal requires us not only to resolve defendant’s claim of multiplieitousness, but also to answer a question of first impression in this circuit concerning the special assess*8ment mandated by 18 U.S.C. § 3013 (1988). Concluding, as we do, that the indictment is not multiplieitous 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.

¶6I

¶7Background

¶8The 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 Sy-monds, 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, Tom-pane wired money from Massachusetts to Rhode Island on numerous occasions. Appellant then pocketed the proceeds but did not send Tompane the promised consideration.

¶9Shortly after the grand jury returned an indictment, appellant pled guilty to fifty-seven counts of wire fraud.1 The 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.

¶10II

¶11Multiplicity

¶12Appellant’s initial contention is that, notwithstanding his plea of guilty to fifty-seven counts of wire fraud,3 the 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

¶13In 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 multiplieitous. 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 *9through a single scheme, necessitating that we merge the fifty-seven counts in the superseding indictment and construe them as one. We disagree.

¶14The 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, 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

¶15Once 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. 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, 102 S.Ct. 2927, 73 L.Ed.2d 1328 (1982). On this point, Lilly does not prop up appellant’s argument, but batters it, for Lilly expressly reaffirms the Fermín 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.”).

¶16For 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

¶17Ill

¶18Construing the Special Assessment Statute

¶19The second question we must confront is whether 18 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.

¶20We 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, *10896, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (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.

¶21The 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. 3607, 3619. Because the aim of section 3018 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.

¶22We 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, 107 S.Ct. 667, 93 L.Ed.2d 719 (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

¶23Affirmed. See 1st Cir.Loc.R. 27.1.

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