1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-6-1998

USA v. Fiorelli

Precedential or Non-Precedential:

Docket 94-2210

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Recommended Citation

"USA v. Fiorelli" (1998). 1998 Decisions. Paper 1.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/1
Filed January 6, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 94-2210 

UNITED STATES OF AMERICA 

v. 

JOSEPH FIORELLI 

Appellant 

On Appeal From the United States District Court 

For the Eastern District of Pennsylvania 

(D.C. Crim. Action No. 94-cr-00146) 

Argued October 14, 1997 

BEFORE: STAPLETON, ALITO and ROSENN, 

Circuit Judges 

(Opinion Filed January 6, 1998) 

 Michael R. Stiles 

 U.S. Attorney 

 Robert E. Courtney III 

 Deputy U.S. Attorney 

 Walter S. Batty, Jr. 

 Assistant U.S. Attorney 

 Robert K. Gordon (Argued) 

 Assistant U.S. Attorney 

 Office of U.S. Attorney 

 615 Chestnut Street 

 Philadelphia, PA 19106 

 Attorneys for Appellee 
 Barnaby C. Wittels (Argued) 

 Stephen R. LaCheen & Associates 

 225 South 15th Street 

 3100 Lewis Tower Building 

 Philadelphia, PA 19102 

 Attorney for Appellant 

OPINION OF THE COURT 

STAPLETON, Circuit Judge: 

This is an appeal by Joseph Fiorelli from a final judgment 

of conviction and sentence following a criminal jury trial in 

the United States District Court for the Eastern District of 

Pennsylvania. We will vacate Fiorelli's sentence and remand 

for resentencing. 

I. 

From 1967 to 1991, Fiorelli was employed as the 

business representative of Drywall Finishers Local Union 

1955 of the International Brotherhood of Painters and 

Allied Trades. Fiorelli also served as a trustee for the Local 

1955 Health and Welfare Fund and several other union 

benefit funds. As business representative, Fiorelli was 

responsible for overseeing the daily operation of the union, 

whose members were employed by contractors and 

construction companies engaged in drywall finishing. The 

job of a drywall finisher is to complete the installation of 

drywall in a residential or commercial building using tape 

and joint compound. 

A federal grand jury returned a 15-count indictment

against Fiorelli, charging him with demanding and 

accepting illegal payments and gifts from contractors 

during his service as business representative. After trial, a 

petit jury found Fiorelli guilty of most of the counts in the 

indictment, including racketeering, conspiracy to violate the 

Taft-Hartley Act, unlawful request and receipt of money by 

a union official, extortion, embezzlement, and obstruction of 

justice. The jury also ordered forfeiture of $68,984 in 

racketeering proceeds. The district court sentenced Fiorelli 

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to 121 months of imprisonment, followed by three years of 

supervised release, a fine of $12,500, and special 

assessments totaling $600. This appeal followed. 

The government's case at trial consisted of a parade of 

builders and contractors who testified that they made 

periodic payments to Fiorelli or to James Siesser, his 

associate, on Fiorelli's behalf. These payments were made, 

for the most part, because the witnesses believed it was in 

their economic interest to do so. Some said they wanted to 

assure themselves of a good supply of qualified union 

workers or to avoid trouble over their having used nonunion workers. Others paid because they believed the 

payments would guarantee labor peace and acceptable

contracts. These witnesses did not report express threats of 

violence or economic harm but indicated that, based on 

their contact with Fiorelli and Siesser, they feared labor 

trouble if they did not pay. 

One witness, William Sampsel, testified that, upon 

arriving in Philadelphia to oversee his firm's execution of a 

contract to do the drywall work in a 19-story building, 

Fiorelli demanded $38,000 in return for assuring that he 

would have a supply of good workers. Siesser visited the job 

site a number of times to pressure Sampsel and ultimately 

threatened him with bodily harm if he reported Fiorelli's 

demands to the FBI. The government did not contend that 

Fiorelli ever obtained money or anything else of value from 

Sampsel. 

Fiorelli testified in his own behalf. He admitted that he 

received payments that he regarded as Christmas gifts and 

vacation money from contractors and builders who thought 

well of him and wanted to give him what he called "tips." 

He insisted, however, that he had never threatened violence 

or economic harm to any of the builder/contractor 

witnesses. He also specifically denied ever asking Sampsel 

for money. 

The record affirmatively reflects that the district court 

considered Fiorelli's written objections to the presentence 

report and that it afforded counsel ample opportunity at 

two sentencing hearings to address those objections and 

any other he wished to make. Ultimately, the court, with 

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one exception not here relevant, adopted the factual 

findings and guideline application set forth in that report. 

In accordance with the adopted guideline application, the 

court grouped the offenses in ten groups. Each extortion 

offense against a particular victim was placed in a separate 

group. The obstruction of justice offense, which related to 

an effort by Fiorelli to cover up his embezzlement of union 

funds to pay personal dental expenses, was not placed in a 

separate group but served as the basis for an enhancement 

of the offense level for the underlying embezzlement. After 

applying the multiple-count adjustment of U.S.S.G. 

S 3D1.4, the court determined that 27, the base offense 

level for group seven, was the "greater adjusted offense 

level." Adding five levels under U.S.S.G. S 3D1.4, reflecting 

the groups of offenses, the district court concluded that the 

combined adjusted offense level was 32 and that the

guideline range for imprisonment is 121 months to 151 

months. 

Fiorelli, in addition to challenging the presentence report 

in a number of respects, moved for a downward departure 

based on extraordinary family circumstances. This motion 

was premised on the fact that Fiorelli played an important 

role in the life of his granddaughter who suffers from 

cerebral palsy. The district court heard extensive evidence 

in support of this motion, but ultimately exercised its 

discretion to deny it. 

II. 

Since it is clear that the district court recognized that it 

had discretion to depart downward on the basis of 

extraordinary circumstances, we have no jurisdiction to 

review its decision not to depart. See United States v. 

Denardi, 892 F.2d 269, 272 (3d Cir. 1989). Accordingly, we 

turn to Fiorelli's challenges to the district court's 

calculation of the guideline range. All, save one, of those 

challenges present no substantial issue. 

First, Fiorelli contests the district court's failure to group 

the extortion offenses. He insists that they must be grouped 

together because they were all alleged in the RICO count to 

be part of a pattern of racketeering activity. U.S.S.G. 

 4 
S 3D1.2 provides the governing rules regarding grouping, 

however, and where the offenses involved are extortion 

offenses, there are different victims, and no count involves 

conduct that is treated as a specific offense characteristic 

in, or adjunct to, the guideline for another count, S 3D1.2 

does not authorize grouping. The fact that the extortions 

are a part of a pattern of racketeering activity is simply 

irrelevant to the grouping issue under these circumstances. 

Turning to the crucial calculation of the offense level for 

group seven, Fiorelli asserts that the district court made no 

findings to support its specific offense characteristic 

enhancement under U.S.S.G. S 2B3.2(b)(1) for threatening 

bodily injury, its role in the offense adjustment under 

U.S.S.G. S 3B1.1(c) for being an organizer and supervisor, 

or its role in the offense adjustment for abusing a position 

of trust under U.S.S.G. S 3B1.3. This is simply not the case. 

The district court adopted express findings (1) that 

"Sampsel threatened to go to the FBI and Siesser, under 

Fiorelli's direction, threatened bodily injury and death if 

Sampsel went to the FBI" (PSR at 24); (2) that "Fiorelli 

recruited and supervised James Siesser" (PSR at 25); and 

(3) that "Fiorelli was the business manager of Local 1955 

and in that position he was afforded substantial judgment 

that is ordinarily given considerable deference . . . and [he] 

used this position to coerce and extort money from 

contractors" (PSR at 25). None of these findings is clearly 

erroneous. Moreover, Fiorelli is also in error in arguing that 

"abuse of trust is an element inherent in the offense 

extortion" so that an adjustment for such abuse would 

somehow amount to double counting. 

III. 

A more serious issue is presented by the district court's 

two level adjustment of the offense level of group seven for 

an obstruction of justice through perjured testimony at 

trial. 

A. The Controlling Law 

An adjustment is authorized by U.S.S.G. S 3C1.1 "[i]f the 

defendant willfully obstructed or impeded, or attempted to 

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obstruct or impede, the administration of justice during the 

investigation, prosecution, or sentencing of the instant 

offense." Perjurious testimony by a defendant at trial can 

clearly constitute such an obstruction of justice. 

Application Note 3(b); United States v. Dunnigan, 507 U.S. 

87 (1993). 

At the time of Fiorelli's crime and at the time of his 

sentencing, Application Note 1 to S 3C1.1 read, in relevant 

part, as follows:1 

 This provision is not intended to punish a defendant 

 for the exercise of a constitutional right. A defendant's 

 denial of guilt (other than a denial of guilt under oath 

 that constitutes perjury) . . . is not a basis for 

 application of this provision. In applying this provision 

 in respect to alleged false testimony or statements by 

 the defendant, such testimony or statements should be 

 evaluated in a light most favorable to the defendant. 

The Supreme Court and this court have provided a gloss 

on S 3C1.1 that is helpful here. We begin with United States 

v. Dunnigan, 507 U.S. 87 (1993). The Court there held that 

"the Constitution permits a court to enhance a defendant's 

sentence under [S 3C1.1] if the court finds the defendant 

committed perjury at trial." Id. at 88-89. Because fear of an 

unjustified enhancement may chill exercise of the 

defendant's constitutional right to testify in his own 

defense, however, there was an important caveat to this 

holding: "the trial court must make findings to support all 

the elements of a perjury violation in the specific case," id. 

at 97, that is, factual findings that the defendant (1) gave 

false testimony (2) concerning a material matter (3) with the 

willful intent to provide false testimony. Id. at 94. 

We first had occasion to apply the teachings of Dunnigan 

in United States v. Boggi, 74 F.3d 470 (3d Cir. 1996). We 

there held that "express separate findings are not required" 

under Dunnigan. Id. at 479. We explained that where "the 

record establishes that the district court's application of the 

enhancement necessarily included a finding as to the 

_________________________________________________________________ 

1. This segment of Application Note 1 was amended, effective November 

1, 1997. See footnote 3, infra. 

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elements of perjury, and those findings are supported by 

the record, we will not remand merely because the district 

court failed to engage in a ritualistic exercise and state the 

obvious for the record." Id. 

Boggi, like Fiorelli, was a union official who had been 

found guilty of extorting money and services from 

contractors. When reviewing the perjury enhancement

imposed by the district court under S 3C1.1, we stressed 

that the record reflected that Boggi took the stand in his 

own defense and specifically denied receiving anything of 

value from each of the contractors named in the 

indictment. Id. at 478-79.2 The district court, at sentencing, 

_________________________________________________________________ 

2. The colloquy we cited in support of this proposition as follows: 

Q. Okay, Mr. Boggi, you've been charged with accepting money from 

Mr. and Mrs. Magac. Did you ever accept any money from Mr. and Mrs. 

Magac? 

A. No, I did not. 

Q. You've been charged with accepting money from Mr. Meister or 

Philmont Contractors. Did you ever accept any money from him or them 

or it? 

A. No, I did not. 

Q. You've been charged with accepting money from Samuel Kaufman, 

Inc. Did you ever accept any money from Mr. Kaufman or his 

corporation? 

A. No, I did not. 

Q. You've been charged with accepting money from Stuart Gray or 

Denver Drywall Company, Inc. Did you ever accept any money from it or 

him? 

A. No, I did not. 

Q. You've been charged with accepting kitchen cabinets from 

Calvanese Corporation, CGC Corporation -- CJC Corporation, excuse 

me, or Carmen Calvanese. Did you ever accept as a gift any kitchen 

cabinets from Mr. Calvanese, from Calvanese Corporation or from CJC 

Construction Company? 

A. No, sir. 

Q. You've been charged with accepting a gift of two tickets to the 

Super Bowl from 1990 from Mr. Wyatt. Did you receive the two ticket -- 

two Super Bowl tickets from Mr. Wyatt? 
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recognized that " `a guilty verdict . . . binds the sentencing 

court to accept the facts necessarily implicit in the 

verdict.' " Id. at 478-79 (quoting United States v. Weston, 

960 F.2d 212, 218 (1st Cir. 1992)). It understandably 

concluded: "I don't see how, in view of his flat denials and 

the jury's conviction, that you can find otherwise than that 

he testified falsely on the stand." Id. at 478. Given that 

receipt of something of value was an essential element of 

the charges against Boggi, his testimony on this issue "was 

necessarily material" as a matter of law. Id. at 479. 

Moreover, given his specific and unambiguous "flat denials" 

concerning an issue that was the central focus of the trial, 

the record provided ample assurance "that Boggi provided 

false testimony with willful intent, `rather than as a result 

of confusion, mistaken or faulty memory.' " Id. at 479 

(quoting Dunnigan, 507 U.S. at 94). Thus, while there were 

no express findings of the district court in Boggi on 

materiality and willfulness, "the record establishe[d] that 

[its] application of the enhancement necessarily included a 

finding as to the elements of perjury." Id. 

In United States v. Arnold, 106 F.3d 37 (3d Cir. 1997), we 

turned our attention to Application Note 1 to S 3C1.1. 

There, the district court had made a finding that specific 

testimony of the defendant going to a critical issue at his 

trial had been willfully false. The defendant insisted on 

appeal, however, that S 3C1.1 and Application Note 1 

required the government to prove each of the elements of 

perjury by "a higher standard than a preponderance of the 

evidence." Id. at 44. We agreed and found it necessary to 

remand for resentencing because there was "no indication 

in the record that the district judge . . . placed the burden 

of proof upon the government and viewed the evidence in 

the light most favorable to Arnold." Id. We instructed that 

_________________________________________________________________ 

A. Yes, I did. 

Q. Mr. Boggi, did you ever accept any money from any contractor 

with whom you had dealings as a union representative? 

A. No, I did not. 

Boggi, App. at 1118-19. 

 8 
"[o]n remand, the district court must use the clear and 

convincing standard, place the burden of proof upon the 

government, and support its decision with the findings 

required by the Supreme Court's decision in Dunnigan." Id.3 

Since Arnold, we added further to our gloss on S 3C1.1 in 

_________________________________________________________________ 

3. Application Note 1 was amended, effective November 1, 1997, to 

substitute the following for the concluding sentence quoted above in the 

text: 

 In applying this provision in respect to alleged false testimony or 

 statements by the defendant, the court should be cognizant that 

 inaccurate testimony or statements sometimes may result from 

 confusion, mistake, or faulty memory and, thus, not all inaccurate 

 testimony or statements necessarily reflect a willful attempt to 

 obstruct justice. 

The Sentencing Commission adopted this change so that the 

Application Note "no longer suggests the use of a heightened standard of 

proof. Instead, it clarifies that the court should be mindful that not all 

inaccurate testimony or statements reflect a willful attempt to obstruct 

justice." U.S.S.G. Appendix C, Amendment 566 (1997). 

Although the eliminated sentence can accurately be described as 

ambiguous with respect to whether a clear and convincing standard is 

required and although the Commission's explanation for its amendment 

uses the word "clarifies," this is not a situation in which the Commission 

has amended an application note to resolve an ambiguity by explaining 

what the intent behind the ambiguous provision was. The Commission's 

explanation acknowledges that the concluding sentence of the prior 

version, which originated in 1990, suggested a standard higher than a 

preponderance of the evidence and indicates that it was stricken to 

eliminate that suggestion for the future. Moreover, it is clear from a 

comparison of the texts of the new sentence and the stricken one that 

the new sentence was not intended to set forth the intended meaning of 

the stricken one. Rather, the new sentence is intended to clarify the 

intended application of the guideline and the application notes by calling 

attention to the 1993 teachings of the Supreme Court in United States 

v. Dunnigan, 507 U.S. 87 (1993). Accordingly, this is not a situation in 

which we, as a panel, are free to reexamine our decision in United States 

v. Arnold, 106 F.3d 37 (3d Cir. 1997), in light of the subsequent 

amendment to Application Note 1. Cf. United States v. Joshua, 976 F.2d 

844 (3d Cir. 1992). The 1990 version of Application Note 1 is applicable 

here, and we are bound by its interpretation in Arnold. See United States 

v. Bertoli, 40 F.3d 1384 (3d Cir. 1994); United States v. Menon, 24 F.3d 

550 (3d Cir. 1994). 

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United States v. McLaughlin, 126 F.3d 130 (3d Cir. 1997). 

McLaughlin was convicted of income tax evasion. At trial, 

he testified that a particular bank account was a reserve 

against future warranty claims and that its balance

therefore was being treated as accrued income over a ten 

year period. As a result, McLaughlin contended that there 

was no tax loss attributable to the income deposited in that 

account. 

At the sentencing hearing in McLaughlin, the district 

court imposed a S 3C1.1 enhancement. It concluded in 

conclusory fashion that McLaughlin was guilty of "a willful 

impediment to obstruction of justice." Id. at 139. It then 

gave the following, sole example: 

 For example, . . . Mark McLaughlin testified . . . that, 

 in order to add additional money to "the reserve," "we 

 formed a bank account in South Jersey into which we 

 deposited cash into that account." The defense 

 concedes that the jury convicted the Defendants of 

 failing to report this income . . . . 

Id. 

We held that the enhancement was "clear error." Id. at 

140. We first noted that the jury had "returned a general 

verdict of guilty that [did] not distinguish between the 

[various] accounts." Id. at 138. It thus did "not disclose 

whether the jury rejected all or only part of Mark's 

testimony." Id. at 140 n.11. Accordingly, the falsity of 

McLaughlin's testimony regarding the First Fidelity account 

was not necessarily implicit in the verdict. 

We went on to point out that even if the falsity of this 

testimony had been necessarily inherent in the jury's 

verdict, "the jury's having disbelieved him" would not "alone 

. . . support a finding that Mark testified `with the willful 

intent to provide false testimony.' " Id. at 140 (emphasis 

supplied). The record did not contain evidence from which 

a conclusion of willfulness was unavoidable and the district 

court provided no explanation as to whether or why it had 

become clearly convinced that the referenced testimony was 

willfully false. Accordingly, we held that the district court 

had "failed to hold the government to [the clear and 

 10 
convincing] burden of proof" standard required by Arnold. 

Id. 

In the course of making the point that a jury finding of 

falsity does not necessarily mean there has been perjury, 

we quoted from our pre-Dunnigan decision in United States 

v. Colletti, 984 F.2d 1339 (3d Cir. 1992). We italicized the 

portion of the quoted sentence which supported that point. 

Another portion of that sentence repeated dicta from Colletti 

to the effect that the government must prove not only 

perjury to support a S 3C1.1 adjustment but also that the 

perjury was so "far-reaching as to impose some incremental 

burdens upon the government." 126 F.3d at 140. Fiorelli 

points to this portion of McLaughlin in support of his 

argument that the government's case here was deficient. 

We decline to recognize this requirement as part of the law 

of our circuit. 

The quotation in McLaughlin regarding the necessity of an 

"incremental burden" was dicta in that case as well as in 

Colletti. Our confidence that it was not advanced by the 

McLaughlin court as a basis for the conclusion reached 

comes not only from the text of the opinion but also from 

the fact that such a holding would have been clearly 

inconsistent with the application notes and the decision of 

the Supreme Court in Dunnigan. At the time McLaughlin 

was decided, and at the time of Fiorelli's sentencing, as is 

true today, Application Note 3(b) expressly stated that 

"committing . . . perjury" was "conduct to which this 

enhancement applies." The Supreme Court took note of this 

fact in Dunnigan. It then went on to observe: 

 Were we to have the question before us without 

 reference to this commentary, we would have to 

 acknowledge that some of our precedents do not 

 interpret perjury to constitute an obstruction of justice 

 unless the perjury is part of some greater design to 

 interfere with judicial proceedings. 

Dunnigan, 507 U.S. at 93. The Supreme Court concluded, 

however, that a construction of S 3C1.1 that would require 

more than proof of the existence of perjury would be 

"inconsistent with its accompanying commentary." Id. at 94.4 

Thus, even if our statement in Colletti had not been dicta, 

_________________________________________________________________ 

4. We note, as well, that in sharp contrast to Application Note 3(b), 

Application Note 3(g) requires that a materially false statement to a law 

enforcement officer must significantly obstruct or impede the official 

investigation before a S 3C1.1 enhancement is appropriate. 

 11 
its vitality would not have survived Dunnigan. 

B. Application 

Application of these governing principles to the record in 

this case involves a close judgment call. The only relevant 

comments of the district court are cryptic. At the same 

time, however, the record bears strong evidence that would 

support a finding of perjury in connection with the offenses 

in group seven. Ultimately, we conclude that this case is 

more like McLaughlin than Boggi, and out of an abundance 

of caution, decide to remand to provide an opportunity for 

the district court to make its views clear. 

Fiorelli's Presentence Report, in explaining its 

recommended S 3C1.1 enhancement to the group seven 

offense level, states that "Fiorelli obstructed justice by 

perjuring himself repeatedly on the stand." PSR at 25. In 

response to Fiorelli's objection, the presentence officer 

added, "Defense counsel admitted that Fiorelli denied 

extorting money or services and that the jury did not accept 

Fiorelli's denial. This constitutes perjury under United 

States v. Dunnigan." PSR Addendum at 2. These statements 

of the probation officer were directed not only to group 

seven but to each group of offenses that included an 

extortion charge. In addition to adopting the presentence 

report, the district court quoted this response to Fiorelli's 

objection at the sentencing hearing and indicated that it 

was "persuaded by the statement of the Probation Officer." 

It then overruled the objection. There are no other relevant 

findings in the record. 

Two racketeering acts of Fiorelli have been grouped in 

group seven. The jury found that the government had

proved both beyond a reasonable doubt. The first was to 

demand $38,000 from William Sampsel and his firm, Alpha 

Painting and Restorations, Inc., while serving as a

representative of one or more of its employees in violation 

of 29 U.S.C. S 186. The second of these racketeering 

activities was attempting to obtain $38,000 from Alpha "by 

wrongful use of . . . threatened force, violence and fear, 

including fear of economic harm" in violation of 18 U.S.C. 

S 1951. As we have earlier noted, Fiorelli took the stand 

 12 
and specifically denied ever asking William Sampsel for 

money. The fact that he did so ask is necessarily inherent 

in the jury's verdict on both of these racketeering acts. 

Accordingly, if there were some record indication that the 

district court relied on Fiorelli's testimony that he had 

never asked Sampsel for money, this case would be 

indistinguishable from Boggi. Since a finding that this 

testimony was false was implicit in the verdict, that verdict 

would establish that falsity had been proven by more than 

clear and convincing evidence. Moreover, as in Boggi, the 

conclusion would be inescapable in the context of the 

charges being defended against and the unambiguity of 

Fiorelli's denial that this falsehood was deliberate, rather 

than the result of confusion, mistake, or lapse of memory. 

Finally, as in Boggi, the jury's verdict and the record would 

permit us to say with confidence that the government 

carried its heavy burden in proving all of the elements of 

perjury.5 

The difficulty from the government's point of view arises 

from the fact that neither the presentence report nor the 

district court at the sentencing hearing focused on Fiorelli's 

denial of a request of money from Sampsel or, indeed, on 

the particular allegations, testimony, or verdict with respect 

to the group seven offenses. To the extent there was any 

focus on the perjury issue, it was not on Fiorelli's having 

denied requesting money from Sampsel, but rather on his 

having denied obtaining money and services from others by 

extortionate means. This fact changes our analysis because, 

as we have noted, Fiorelli freely acknowledged receiving 

money and services from contractors and builders other 

than Sampsel. He denied only making threats or promises 

in connection with his receiving those funds and services. 

Moreover, as we have also noted, the testimony of the 

builder/contractors was not that Fiorelli made explicit 

threats but rather that they interpreted his conduct to 

imply that there was cause for fear if they did not pay.6 

_________________________________________________________________ 

5. Judge Rosenn believes this case is indistinguishable from Boggi. He 

would therefore affirm the judgment of conviction and the sentence as is. 

6. While Sampsel testified to an express threat of bodily injury, that 

threat was in connection with a demand by Siesser that Sampsel not go 

to the FBI, rather than in connection with the demand for $38,000. 

 13 
The operative portions of the extortion allegations of the 

indictment are that the specified payments were made "with 

the consent of the contractors having been induced by the 

wrongful use of . . . fear, including fear of economic harm." 

See Gov't App. at 14. In a labor racketeering case involving 

similar allegations and a denial by the defendant that any 

threats were made, the Court of Appeals for the Fourth 

Circuit upheld the conviction, ruling as follows: 

 The fear need not be the consequence of a direct or 

 implicit threat by the defendant, and the government's 

 burden of proof is satisfied if it shows that the victim 

 feared an economic harm, and that the circumstances 

 surrounding the alleged extortionate conduct rendered 

 that fear reasonable. . . . 

 [S]o long as the defendant intends to exploit the 

 reasonable fear of the victim, his actions will constitute 

 extortion under the Hobbs Act. 

United States v. Billups, 692 F.2d 320, 330-31 (4th Cir. 

1982) (citations omitted).7 

Given the concerns reflected in Dunnigan's requirement 

of findings, if a sentencing court is going to rely on the 

verdict of the jury as laying part of the foundation for a 

S 3C1.1 enhancement, there should be no question but that 

the relevant finding was necessarily made by the jury. In 

this context, we are hesitant to conclude that the falsity of 

Fiorelli's testimony about the absence of any threats by him 

is necessarily inherent in the jury's verdict on the extortion 

charges. Moreover, we find inadequate other assurance in 

the record that the district court, in reaching its decision 

on the S 3C1.1 enhancement, held the government to its 

heavy burden of proving falsity and willfulness by clear and 

convincing evidence as required by Arnold. 

IV. 

We will reverse the judgment of the district court and 

remand for resentencing only. On remand, the district court 

_________________________________________________________________ 

7. See also United States v. Williams, 952 F.2d 1504, 1513 (6th Cir. 

1991) (collecting cases). 

 14 
should determine whether the government met its burden 

of proving each of the elements of perjury as set forth above 

and should make appropriate specific findings to reflect its 

decision. We do not foreclose the district court from 

imposing a S 3C1.1 perjury enhancement provided it does 

so in a manner consistent with this opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 15