and 00-3639 UNITED STATES OF AMERICA v. Anthony Solano

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 00-2956 and 00-3639
UNITED STATES OF AMERICA
v.
ANTHONY SOLANO,
Appellant in No. 00-2956
UNITED STATES OF AMERICA
v.
MICHAEL MCCARRIN,
Appellant in No. 00-3639
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. Nos. 99-00488-3 and 2)
District Judge: Honorable James T. Giles
Submitted under Third Circuit LAR 34.1(a)
January 16, 2002
BEFORE: SCIRICA, GREENBERG, and BRIGHT,* Circuit Judges
*Honorable Myron H. Bright, Senior Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
(Filed: January 29, 2002)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
These matters come on before this court on appeals from judgments of
convictions and sentences in these criminal cases. In particular appellant Anthony Solano
was convicted on four counts of violation of the Travel Act, interstate travel to promote
commercial bribery, in violation of 18 U.S.C. 1952, and appellant Michael McCarrin
was convicted on nine counts of mail fraud and two counts of money laundering in
violation of 18 U.S.C. 1341 an 1957. The district court sentenced Solano to a
custodial term of 15 months followed by a three-year term of supervised release and
sentenced McCarrin to a custodial term of 24 months followed by a two-year term of
supervised release. In addition, the court ordered McCarrin to pay $414,028 restitution to
Lloyd’s of London, the victim’s insurer.
On this appeal Solano claims that his convictions should be reversed because

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application of the Travel Act here constitutes an unconstitutional exercise of commerce
clause jurisdiction and because the government failed to present sufficient evidence that
he engaged in interstate travel with the specific intent to commit bribery in violation of
Pennsylvania law. McCarrin contends that it was possible that he was convicted of mail
fraud predicated on impermissible cobbling together of different theories. Moreover, he
argues that he might have been convicted on an invalid legal theory, the jury instructions
with respect to unanimity were improper, and the court did not make sufficient findings
concerning his ability to make restitution.
After a careful review of this matter we are convinced that application of the
Travel Act here was well within the constitutional limits set by United States v. Lopez,
514 U.S. 549, 115 S.Ct. 1624 (1995). See United States v. Galo, 239 F.3d 572, 575 (3d
Cir. 2001). Moreover, we are satisfied that there was no error in the theories underlying
the mail fraud charges or with respect to the jury instructions concerning them. See
United States v. Yeaman, 194 F.3d 442, 452-55 (3d Cir. 1999); United States v. Vinyard,
266 F.3d 320, 326-30 (4th Cir. 2001); United States v. Haber, 251 F.3d 881, 887-88 (10th
Cir. 2001). Finally, we hold that appellants’ other arguments are without merit except for
one exception.
The exception relates to the order for McCarrin to pay restitution. The parties
are in agreement that a court should take a defendant’s ability to pay into account in
ordering restitution. See United States v. Copple, 24 F.3d 535, 549 (3d Cir. 1994). Here,
however, the district court did not make sufficient findings on this point, and our review
of the record suggests that the order for restitution, though merely compensating Lloyd’s
of London for its loss as the victim’s insurer, may have been excessive.
For the foregoing reasons, the judgment of conviction and sentence entered
against Solano on October 5, 2000, will be affirmed, and the judgment of conviction and
sentence entered against McCarrin on October 24, 2000, will be affirmed except that the
provision providing for restitution will be vacated. We will remand the matter to the
district court for resentencing of McCarrin insofar as restitution is concerned.
TO THE CLERK:
Please file the foregoing memorandum opinion.
/s/Morton I. Greenberg
Circuit Judg

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