Broker is resentenced
for misrepresentation
A stockbroker hired by Local 5 of the Employees and Restaurant Employees Union was resentenced yesterday to 30 months in federal prison for misrepresenting his qualifications so he would be hired as an investment consultant for the union's pension fund.
Anthony DiPace was convicted in U.S. District Court in February 2000 on 11 counts of mail fraud and sentenced to five years in prison. The 9th U.S. Circuit Court of Appeals affirmed DiPace's conviction in July 2002 but vacated his sentence after concluding that the district court had misapplied sentencing guidelines, and sent his case back for resentencing.
Under sentencing guidelines, DiPace faced a range of 27 to 33 months.
Assistant U.S. Attorney Marshall Silverberg asked for 33 months based on an expert's testimony at trial who said hiring DiPace would have been disastrous for the fund, which had about $160 million in assets at the time.
"Our argument was because his entire association with the union and pension fund was based on false representation of his credentials, the money earned as a result of his false representation should be money he should be held accountable for in determining the appropriate sentence range," Silverberg said.
DiPace earned a total $247,000 -- $50,000 from the union for consulting services and $197,000 from the pension fund for executing some stock trades on behalf of the pension fund -- amounts that U.S. District Judge David Ezra ruled yesterday should be included in calculations to determine his appropriate sentence.
Defense attorney Rustam Barbee had argued the money DiPace received was for work he actually performed and should not be held against him.
The court's calculations are not supported by law, he said, and will be the basis of their second appeal to the 9th Circuit, where he said they will likely prevail.
DiPace disputes that he was not qualified and believes the San Diego securities company he worked for as an agent was licensed.
He had already served nine months and 11 days in federal custody before the 9th Circuit released him on bail pending appeal. He asked Ezra yesterday to allow him to remain free.
Ezra rejected DiPace's request, saying the 9th Circuit had already affirmed the conviction. DiPace was ordered to turn himself in on April 5.