United States v. Garafano

• Court: Court of Appeals for the First Circuit
• Decided: September 23, 1994
• Docket: 93-2379
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 93-2379

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                    GARY GARAFANO,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                          __________________________

                                 ____________________

                                        Before

                                Boudin, Circuit Judge,
                                        _____________

                            Aldrich, Senior Circuit Judge,
                                     ____________________

                             and Young,* District Judge.
                                         ______________

                                 ____________________

            John A. MacFadyen for appellant.
            _________________
            Margaret E.  Curran, Assistant United  States Attorney, with  whom
            ___________________
        Sheldon  Whitehouse,  United  States  Attorney, and  Craig  N.  Moore,
        ___________________                                  ________________
        Assistant United States Attorney, was on brief for the United States.

____________________

                                  September 23, 1994
                                 ____________________

____________________

        *Of the District of Massachusetts, sitting by designation.

BOUDIN, Circuit Judge.   In December  1992 a grand  jury
                         _____________

            indicted  Gary Garafano on one count of extortion under color

            of official right under the Hobbs Act, 18 U.S.C.   1951.  The

            gist  of the  charge was  that from  spring 1989  to December

            1990,  Garafano, then  an official  in the  Providence, Rhode

            Island,  Department of  Public Works,  had extorted  payments

            from  a road  paving  firm doing  work  for the  city,  Forte

            Brothers Construction Corporation ("Forte Brothers").  

                 At  a first trial  in June 1993 the  jury deadlocked.  A

            second  trial was  conducted  in the  fall.   At  trial,  the

            government offered testimony  of James Forte,  vice president

            of Forte Brothers,  that during  1988 and 1989  the firm  was

            engaged in road repair work for the city.  In  or about March

            1989,  said Forte,  he met  with Garafano  and agreed  to the

            latter's demand for $8,000, without which Garafano threatened

            to cease authorizing  work to be performed by Forte Brothers.

            Forte  also testified that he gave the money to Steven Tocco,

            the firm's supervisor for the road repair work, to deliver to

            Garafano.

                 Tocco testified that he delivered the money to Garafano.

             Tocco  also testified  that in  response to  further demands

            from  Garafano,  Tocco  made  somewhere  between  12  and  20

            additional  payments  to  Garafano  between  April  1989  and

            December 1990, and that  the total amount of the  payments to

            Garafano  was around $100,000.   Much of the  money came from

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inflated billings by Forte Brothers on individual road repair

            and  other projects for  the city.   According to prosecution

            testimony, Garafano authorized various of these projects  and

            expedited payments.

                 Garafano  himself  testified  and  denied  demanding  or

            receiving  any  money  from   Forte  Brothers.    Various  of

            Garafano's  subsidiary  statements were  contradicted  by the

            director of  his  city department  but  the director  had  no

            direct knowledge of whether Garafano had received bribes.  On

            October  4, 1993, the jury in the second trial found Garafano

            guilty.   The  verdict was  a general  verdict on  the single

            count charged  and provided  no indication of  which episodes

            the jury found to have occurred.

                 On December 14, 1993, the  trial judge held a sentencing

            hearing.   At the hearing  defense counsel took  the position

            that only the  first payment of $8,000 in March 1989 had been

            adequately supported  by evidence and  that Tocco's testimony

            as to further payments  was not credible.  It  was apparently

            the  defense position  that  after the  first incident  Tocco

            himself  had been stealing from the firm and claiming falsely

            that the payments had been made to Garafano.  This contention

            was pertinent to sentencing in several respects.

                 The presentence  report  had proposed  that Garafano  be

            sentenced under  the November 1993 version  of the Sentencing

            Guidelines which  was in  effect at  the time of  sentencing.

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The report recommended  that the court  fix the base  offense

            level at  10, as provided by U.S.S.G.   2C1.1(a), and that it

            add two levels  as a specific offense  adjustment because the

            offense involved  more than  one  bribe or  extortion. Id.   
                                                                   ___

            2C1.1(b)(1).   In addition, the report  recommended a further

            six-level  adjustment  based on  the  amount  of the  payment

            received by  Garafano; the guidelines provide  a table fixing

            such  an adjustment at six levels where the amount is greater

            than  $70,000.  Id.      2C1.1(b)(2)(A),  2F1.1(b)(1)(G).   A
                            ___

            payment of $8,000 would have added only two levels.  Id.
                                                                 ___

                 Prior to November 1989,  the guidelines did not included

            the  two-point adjustment  for multiple  bribes.   Garafano's

            counsel  objected  that   without  the  additional   payments

            allegedly made through Tocco,  the extortionate conduct would

            have  ceased prior  to  the effectiveness  of that  guideline

            amendment.   Counsel  argued that  if the  conduct  did cease

            before the  amendment, then  ex post facto  concerns required
                                         _____________

            that the two points  not be included.  Our  decisions confirm

            that where a guideline amendment increases the sentence after

            the  offense, the  guidelines in  effect at  the time  of the

            offense  should  be  used.     See  e.g.,  United  States  v.
                                           ___  ____   ______________

            Rodriguez, 26 F.3d 4, 7-8 (1st Cir. 1994).
            _________

                 More  important, if Tocco's  testimony were disregarded,

            then  the total  amount  gained by  the extortionate  conduct

            would be only $8,000.  This would eliminate not only the two-

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point adjustment for multiple bribes (since there would be no

            second   bribe  proved)  but   also  the  proposed  six-point

            adjustment based on  "the loss  or gain table".   Of  course,

            Forte's testimony  alone, not  challenged  at the  sentencing

            hearing, established  that Garafano had solicited  a bribe in

            the  amount of  $8,000,  whether or  not Tocco  delivered the

            money;  but  a single  $8,000  bribe would  have  reduced the

            guideline range.

                 At the  sentencing  hearing defense  counsel  asked  the

            court  to  find  that  the  1989 version  of  the  guidelines

            applied, asserting that  the jury may have based  its verdict

            only on  the first $8,000  bribe, which counsel  described as

            "the only corroborated event"  that the government had proved

            to  the jury.   The  court replied,  "how can  you ask  me to

            dissect what a jury has done?"  Counsel responded that "[t]he

            guidelines allow you exactly that power . . . ."   Pressed as

            to  why the  court should  disbelieve Tocco,  defense counsel

            offered an  example of an asserted  contradiction between the

            testimony of Tocco and other government witnesses.

                 The prosecutor  replied that Tocco's testimony  had been

            corroborated, and  then added: "I  don't think the  Court has

            the discretion to piecemeal the jury's verdict in this case."

            The  court replied:  "I  quite agree  with  you," adding  (to

            defense counsel)  that "the reasons  [the prosecutor]  stated

            are ample  in and of themselves."   The court went  on to say

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that it agreed that "the facts of the case  reflect" that the

            offense  occurred between  April 1989  and December  1990 and

            showed   the  receipt   of  between   12  and   20  payments.

            Accordingly the court rejected the ex post facto claim.
                                               _____________

                 Defense counsel  then went on  to argue at  even greater

            length  that Tocco  should not  be believed.   This  time the

            argument was to support counsel's claim that, in applying the

            loss or gain table, the court should treat as proved only the

            first $8,000.  The court listened courteously to the argument

            and  then rejected  it,  saying that  "there was  substantial

            evidence  . .  .  [that]  could  convince  a  jury  beyond  a

            reasonable doubt."   Defense counsel then said  that the jury

            could have convicted solely on the basis of the $8,000 bribe.

            The  court replied:  "I'm not  going to  dissect this  jury's

            verdict."

                 After  other largely  unrelated  discussion,  the  court

            heard final statements from defense counsel and Garafano.  It

            then summed up:

                    We have a base offense level of 10 in this case,
                 and since there was more than one bribe, two points
                 have  to be added.   And since  the amount involved
                 approximately $100,000.00, that's an additional six
                 points, which  gives a total adjusted  level of 18.
                 He has  a criminal  history category of  one, which
                 means the sentencing range is from 27 to 33 months.

            Concluding that  Garafano had been motivated  by "sheer greed

            and  nothing else," the court imposed a sentence of 31 months

            imprisonment  and  a  $6,000  fine, together  with  an  order

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requiring  Garafano to  make restitution  of $100,000  to the

            city.  This appeal followed.

                 The only issue on  appeal is the defense claim  that the

            district court erred because it allegedly refused to make  an

            independent assessment  of the  Tocco testimony and  make its

            own finding  as to  whether bribes of  approximately $100,000

            had been  paid during  a period  extending to December  1990.

            The government agrees  that an independent determination  was

            required  but  says  that the  district  court  made  such an

            assessment.  We agree  with the government that  the district

            court  probably did  make  an independent  assessment but  to

            remove the shadow of uncertainty, we have decided to remand.

                 The uncertainty  is apparent from our  recitation of the

            facts.   Normally the trial court makes its own assessment of

            the  facts  that  pertain  to sentencing,  drawing  on  trial

            evidence, the presentence report, any evidence offered at the

            hearing, and other appropriate sources.  See United States v.
                                                     ___ _____________

            Tavano, 12 F.3d 301, 306-07 (1st Cir. 1993).  Indeed, we have
            ______

            held  that a judge may  attribute conduct to  a defendant for

            "relevant conduct" purposes even where a jury has declined to

            convict on counts pertaining to  such conduct.  United States
                                                            _____________

            v. Carrozza, 4 F.3d 70, 80 (1st Cir. 1993), cert. denied, 114
               ________                                 ____________

            S.Ct. 1644  (1994); United States  v. Mocciola, 891  F.2d 13,
                                _____________     ________

            16-17 (1st Cir. 1989).

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Whether  the   trial  court  could  ever   be  bound  at

            sentencing  by the jury's  determination against  a defendant

            (e.g., through  collateral estoppel) is  an interesting issue
             ____

            but is  irrelevant here: the government agrees  that the jury

            could  in  theory  have  convicted  solely  on  the  evidence

            pertaining to the first  $8,000 bribe solicitation; and since

            the jury delivered a general verdict there is no way to  tell

            what it actually found as  to the number of bribes.   In sum,

            even if a jury verdict against the defendant  on a fact issue
                                   _______

            could ever constrain the sentencing judge, but cf. Tavano, 12
                                                           ___ ______

            F.3d at 305,  307, this  jury verdict could  not resolve  the

            amount and timing issues faced at sentencing.

                 We have  read the sentencing transcript in  full and are

            inclined to  think that the  trial judge, an  experienced and

            respected jurist,  fully understood that he  could and should

            decide  himself when the offense ended and how much was paid.

            Further, his statement quoted above  ("the facts of the  case

            reflect  . .  .") is  reasonably clear  evidence that  he did

            resolve  those issues  against Garafano  and was  not relying

            upon  the jury verdict or  any misinterpretation of  it.  Nor

            does  Garafano argue on appeal that the evidence at trial was

            insufficient  to  support  findings  at sentencing  that  the

            bribes continued to December 1990 and equaled about $100,000.

                 If this  were all, we  would affirm  without a  moment's

            hesitation.  But we agree with Garafano that the record is at

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least blurred by  the agreement  of the trial  judge and  the

            prosecutor  that the  jury  verdict could  not be  dissected.

            Quite likely  both meant only  that peering into  the verdict

            was  infeasible and  served  no purpose;  but abstractly  the

            prosecutor's words  could be  taken as  an argument  that the

            jury  had resolved  the  issue of  timing and  amount against

            Garafano and that this decision was binding.  

                 The prosecutor's statement--"I don't think the Court has

            the discretion to piecemeal the jury's verdict in this case"-

            - happens to  sound like  a refutation  of defense  counsel's
                          _____

            earlier  argument to the  court that "[y]ou  [the court] have

            the ability,  the discretion in sentencing"  to determine the

            amount  and  timing  of  the  loss.    As  government counsel

            properly says  on appeal,  the prosecutor's statement  was an

            "unfortunate"  choice  of words.    The  district judge  then

            followed the prosecutor's statement by saying, "I quite agree

            with you"  and telling defense counsel  that the prosecutor's

            reasons  were  "ample"   basis  for  rejecting   the  defense

            position.

                 In  saying  that these  colloquies  leave  a measure  of

            uncertainty,  we do  not  intend the  slightest criticism  of

            either  the court  or  counsel.    Court colloquies  are  not

            scripted   events  like  television   commercials  or  public

            speeches.  Lawyers are usually trying to advance  and explain

            conflicting positions, and the judge is seeking to resolve on

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the spot  often arcane  issues and tangled  factual disputes.

            In   this  case,  it  is  quite  likely  that  there  was  no

            misunderstanding whatever.

                 Still, the  difference between a total  offense level of

            18, with a range of 27 to 33 months, and a total level of 12,

            with a range  of 10  to 16  months, is  substantial; and  the

            latter's maximum 16 months is just about half of the sentence
                     _______

            actually imposed.  It takes very little effort to resolve the

            uncertainty.   Defense counsel  suggested at oral  argument a

            remand for an entirely new sentencing hearing; the government

            said  that if any remedy were needed, this court could retain

            jurisdiction and simply ask the district court to clarify the

            record.  We have in mind a third course.

                 We propose  to vacate  the existing sentence  and remand

            the  matter to  the  district court  for  resentencing.   The

            district  court has already given  Garafano a chance to argue

            his evidentiary position in  full and no request was  made by

            defense counsel  to offer new evidence; if the district court

            did  (at the earlier hearing)--or did not then but now does--

            find  (independently   of  the  jury  verdict)   that  bribes

            continued until  December 1990 and were  around $100,000, the

            court is  free to say so  summarily and to reimpose  the same

            sentence.  No additional proceedings, or  further explanation

            or  findings, are required.  See United States v. Savoie, 985
                                         ___ _____________    ______

            F.2d 612, 620-21 (1st Cir. 1993).

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Conversely,  the district  court  is free  to order  any

            further  proceedings  it  deems  appropriate  before imposing

            sentence.     It   may  do   so  if   there  was   an  actual

            misunderstanding   at  the  original  sentencing  as  to  the

            district  court's authority,  or  merely  because  the  court

            thinks that  this would be  useful to it.   But if  the court

            does  change  the  factual  premise  on  which  it  sentences

            Garafano--and thereby alters the guideline  range available--

            we think that  it would be within the spirit  of the rules to

            provide counsel and the  defendant an opportunity to allocute

            again.

                 The sentence, but not the conviction, is vacated and the
                                                          _______

            case  remanded  for  resentencing  in  accordance  with  this
                  ________

            opinion.

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