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United States v. Vitrano

United States Court of Appeals, Seventh Circuit

April 4, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
THOMAS VITRANO, Defendant-Appellant

Argued February 19, 2014

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:09-cr-00140 -- Lynn Adelman, Judge.

For United States of America, Plaintiff - Appellee: Gordon P. Giampietro, Office of The United States Attorney, Milwaukee, WI.

For Thomas Vitrano, Defendant - Appellant: Mark S. Rosen, Rosen & Holzman, Waukesha, WI.

Before POSNER, RIPPLE, and KANNE, Circuit Judges.

OPINION

Page 923

Kanne, Circuit Judge

This case marks the fifth time Thomas Vitrano has appeared before us since his conviction for possessing a firearm as a felon and while under a domestic abuse injunction. He has already exhausted his appeals for those initial convictions and sentence, which he challenged in part by fabricating a Wisconsin discharge certificate. Now he appeals his subsequent conviction for the fraud and perjury he committed in those prior proceedings.

I. Background

Over a decade ago, Thomas Vitrano pled guilty to one count of possessing a firearm as a felon and one count of possessing a firearm while subject to a domestic abuse injunction. He was sentenced to 30 years in prison under the Armed Career Criminal Act (" ACCA" ), 18 U.S.C. § 924(e)(1), because he had prior convictions for escape and reckless endangerment.[1]

In March 2008, Vitrano filed a pro se motion under 28 U.S.C. § 2255, seeking a reduction in his sentence because his business partner, Scott Valona, had allegedly found a discharge certificate relating to his 1977 conviction for reckless endangerment. If valid, the certificate would have purged the reckless endangerment conviction from Vitrano's criminal history for ACCA purposes and thus precluded the statute's application to him.

But the certificate was not valid. Both the copy Vitrano sent to the Bureau of Alcohol, Tobacco, and Firearms and the copy Vitrano kept for himself were " provably fake." Although Vitrano (who referred to himself in a letter to Valona as " the laminator" ) attempted to prevent forensic testing of his copy of the document by covering it in Scotch tape, it differed from valid discharge certificates in printing method, formatting, font size, and paper type. With this evidence before it, the district court denied Vitrano's § 2255 motion.

After determining that the certificate was fake, the government charged Vitrano with perjury, 18 U.S.C. § 1623(a), attempting to corruptly influence official proceedings, 18 U.S.C. § 1512(c)(2), and threatening a witness, 18 U.S.C. § 1512(b)(1).

The case proceeded to a jury trial. Testifying for the government, Valona explained that Vitrano had sent him the forged certificate; Valona had not found it, as Vitrano had alleged in previous filings. The government also ...


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