In United States v. John Trasacco, 23-cr-6344, September 26, 2024 (2d Cir.), the Circuit affirmed the conviction and 96-month sentence for substantive and conspiracy to commit wire fraud based on a scheme to defraud the City of West Haven of $400,000 in covid relief funds. (Lohier, Nathan, and Parker, dissenting in part). Trasacco conspired with three others, all of whom pled guilty and received sentences of 27 months, 13 months, and 6 months. Tasacco was the only defendant who went to trial. Trasacco argued that his sentence, more than twice the top of the Guidelines range, was substantively unreasonable because it was punishment for his refusal to plead guilty as the others had done. The panel split on this issue, with the majority accepting the district court’s “express statement” that the defendant would not be punished for exercising his right to trial, even as it referred to Trasacco’s refusal to accept responsibility. The majority viewed the much lower sentences for the codefendants as an appropriate exercise of leniency for admitting guilt.
Judge Parker dissented, concluding that the sentence was substantively unreasonable because the district court’s comments about Trasacco’s failure to accept responsibility and the markedly lower sentences imposed on the codefendants were “bright red flags” and “clear signs” that its sentence was punishment for going to trial. In particular, Judge Parker pointed to the district court’s statements that Trasacco was “distinguishable, and not in a good way, from the other codefendants . . .[who] accepted responsibility and did so relatively quickly;” that Trasacco “would not get the benefit of accepting responsibility” because he had “continued to profess his innocence;” and that his failure to pay “upfront restitution” – before sentence, when he had no restitution obligation – “merited a longer sentence.” Judge Parker reasoned that these were “at best reasons not to depart downward; but in my view, they do not justify a significant upward departure.” (Emphasis in original). These statements, combined with the significantly lower sentence imposed on the more culpable co-conspirator – a state representative and town employee who exploited his position of trust to engage in a more extensive series of frauds than those committed with Trasacco– created a risk that the sentence was a trial penalty.
Notable quote from Judge Parker:
“I reach no conclusion as to whether the sentence imposed by the district court on Trasacco shocks the conscience. I am somewhat relieved because I, for one, find it difficult to say with any confidence what is, or should be, considered conscience-shocking when navigating a criminal justice regime that is arguable among the most punitive in the world.”
The full panel affirmed the sufficiency of the evidence and rejected evidentiary challenges. It found the government’s reference to Trasacco as a member of “the Doma gang” as harmless. It ruled that evidence that Trasacco told his coconspirator that he had been to prison was admissible as probative of his efforts to intimidate and the relationship between the men.
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