United States v. Garafano

• Court: Court of Appeals for the First Circuit
• Decided: August 7, 1995
• Docket: 95-1127
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 95-1127



                              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



                                Torruella, Chief Judge,
                                           ___________



                          Boudin and Stahl, Circuit Judges.
                                            ______________



                                 ____________________



            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, were on brief for the United States.


____________________



                                    August 7, 1995

                                 ____________________



BOUDIN, Circuit Judge.  In 1993, Gary Garafano was tried
                         _____________



            under  a single-count  indictment, under  the  Hobbs Act,  18



            U.S.C.    1951, for extortion under color  of official right.



            The substance  of the charge  was that Garafano  had extorted



            money  from Forte  Brothers, a  construction  firm with  city



            contracts,   threatening  otherwise   to  cease   authorizing



            construction  work  performed  by  the  firm  for  the  city.



            Garafano was  at that  time an  official  of the  Providence,



            Rhode Island, Department of Public Works.



                 At  trial,  James  Forte,  the  firm's  vice  president,



            testified  that Garafano  had  initially demanded  $8,000 and



            that he (Forte) gave the $8,000 to Steven Tocco, a supervisor



            in his firm, for delivery  to Garafano.  Tocco testified that



            he delivered the $8,000 to Garafano, that he  made additional



            payments  to Garafano  (for a  total of  $100,000),  and that



            Forte Brothers inflated its billings to the city to cover the



            payments.   Garafano denied receiving any payments from Forte



            Brothers.  The  jury convicted him on a  general verdict that



            did not indicate whether the jury had found multiple payments



            or only a single one.



                 Whether  there  was  one payment  or  multiple  payments



            affected the sentencing guideline range, see United States v.
                                                     ___ _____________



            Garafano, 36 F.3d 133, 134 (1st Cir. 1994), and this was  the
            ________



            principal  subject of controversy  at the original sentencing



            hearing.  There, defense counsel took the  position that only


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the initial $8,000 payment was supported by adequate evidence



            and  that Tocco's  testimony as  to further  payments was  an



            attempt  to conceal  his own  pocketing  of the  money.   The



            prosecutor  replied  that  the  court  lacked  "discretion to



            piecemeal the jury's verdict in this case."



                 The  district judge  concluded that  Garafano  should be



            sentenced  on  the  premise  that  Garafano  had  engaged  in



            multiple  extortions amounting  to  $100,000,  and the  court



            sentenced  Garafano accordingly.  However, the judge made one



            or two remarks that suggested  that he might be agreeing with
                                                   _____



            the  prosecutor's apparent  suggestion  that a  challenge  to



            Tocco's trial testimony  was effectively a  collateral attack



            on the jury's verdict.   Garafano appealed from his sentence,



            claiming  that the  district  court had  refused  to make  an



            independent assessment of the Tocco testimony.



                 On  the appeal, the government conceded the jury verdict



            did not  resolve the question  of whether there had  been one



            bribe or multiple bribes,  but it asserted that  the district



            judge had  made an  independent assessment.   We agreed  that



            this was likely but "to  remove the shadow of uncertainty" we



            determined  to remand, pointing out that the potential impact



            on the sentence  was significant and that it  would take very



            little effort to resolve the uncertainty.  Garafano,  36 F.3d
                                                       ________



            at  135-36.  We declined  the government's suggestion that we



            retain  jurisdiction  and  also  declined  defense  counsel's


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alternative request  for an entirely new  sentencing hearing.



            Instead, we said the following (36 F.3d at 136):



                      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).
                 ______



                      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. 



                 On  remand, the  district court  invited  both sides  to



            provide written  submissions detailing the  support for their



            respective  positions.  Defense counsel argued that there was



            not  enough reliable evidence to support findings of multiple



            bribes in  excess of $8,000, and also  submitted an affidavit



            from  Anthony Stanzione,  a city  engineer during  Garafano's



            service with  the Public  Works Department.   Stanzione  said



            that he oversaw daily  work on the job sites and approved the



            bills and said that the  Forte Brothers' invoices did not, to


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the best  of Stanzione's  knowledge, reflect  inflated bills.



            He  also made  other  statements  that  in  certain  respects



            supported Garafano's testimony at trial.   Garafano's counsel



            requested  an  evidentiary   hearing,  which  the  prosecutor



            opposed.



                 After further written exchanges, the district court held



            a  new sentencing  hearing  on  December 13,  1994.   At  the



            conclusion, the district  judge said:  "There is  no doubt in



            my mind that  at the  earlier hearing  I independently  found



            that bribes continued until December 1990 and were around one



            hundred  thousand  dollars."    As  to  the  request  for  an



            evidentiary  hearing,  the  district  judge  said  that  "the



            testimony  as a  whole supports  Tocco and  I see  nothing in



            Stanzione's affidavit  that steers me in  another direction."



            Accordingly,  the  district  court   reimposed  the  original



            sentence.



                 Garafano  has now  appealed  again.    On  this  appeal,



            Garafano's  main argument is  that the district  court abused



            its  discretion when it  declined to hear  Stanzione testify.



            The government says, correctly, that this court's mandate was



            fully satisfied  by the district court.   The instructions on



            remand explicitly  permitted the district court  to determine



            that  it   "did  (at  the   earlier  hearing)  .  .   .  find



            (independently of  the  jury verdict)  that bribes  continued


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until  December 1990 and  were around $100,000  . . .  ."  36



            F.3d at 136.



                 We said that,  in that event,  the district court  could



            say  so  summarily,  provide  no  additional  proceedings  or



            further explanations  or  findings,  and  reimpose  the  same



            sentence.   Id.  This  is just what  the district  judge did.
                        ___



            Although  the district court  invited the parties  to restate



            their positions, and the court reviewed again the presentence



            report and associated notes, it did so as part of  the effort



            to assure itself that it had at the original sentencing "made



            the requisite evaluation independent of  the jury verdict . .



            . ."



                 The  result would  not change  if we  viewed the  matter



            independently  of the  mandate.   The  right to  present live



            testimony at sentencing is not automatic and is reviewed only



            for abuse of  discretion.  See United States  v. Gerante, 891
                                       ___ _____________     _______



            F.2d  364, 367  (1st  Cir. 1989).   It  is fairly  common for



            district courts to consider affidavits, proffers and far less



            formal  sources  of  information  at  sentencing,  especially



            where--as here--the  sentencing judge  presided over a  trial



            that involved the same issues presented at sentencing.  



                 In this instance, we read the district court's ruling as



            a determination by the district judge that, even if Stanzione



            had testified to  the substance of what was  contained in his



            affidavit,  the  district  court  would  still  have accepted


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Tocco's version of  events.  There is no  claim by Garafano--



            and  if there  were, we  would reject  it--that the  district



            judge was rationally obligated to accept  Stanzione's version



            of events.   Indeed, at least some  of Stanzione's assertions



            could   have  been   accepted   without  disproving   Tocco's



            testimony.



                 Defense   counsel  says   that   where  credibility   is



            important, the judge needs  to listen to the witness  testify



            in his own  words in open  court; and counsel  added at  oral



            argument that there  were bound to be helpful  details in the



            testimony  not   captured  in   the  proffer.     There   are



            possibilities   that  would  have  greater  or  lesser  force



            depending on  the facts, and  we think that no  absolute rule



            can be  fashioned.   It  is  enough to  say here  that  these



            considerations   are  part  of  the  calculus  and  that  the



            determination not  to  hear live  testimony here  was not  an



            abuse of discretion.



                 After all, the district court  had heard all of the live



            evidence  on multiple  payments that  either  side sought  to



            present at  trial.  When  the belated proffer  of Stanzione's



            testimony was  made, the  district  judge had  only one  more



            piece to fit into  a puzzle with which the judge  was already



            familiar.   On  the facts  before us,  we think  the district



            court  made a legitimate  practical judgment  that converting


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the  proffer into live testimony would not materially improve



            the court's ability to make this judgment.



                 Finally, Garafano suggests that, in violation of Fed. R.



            Crim. P. 32(c)(3)(C), he was improperly denied an opportunity



            for  allocution  at  his  second  sentencing  hearing.    The



            suggestion is without merit.   This court said in its mandate



            that an opportunity to allocute again should  be afforded "if



            the [district] court does change the factual premise on which



            it  sentences  Garafano" and  "thereby  alters  the guideline



            range available."   36 F.3d at 136.   The district  court did



            not  change either  the  factual predicate  (multiple  bribes



            amounting to $100,000) or the guideline range.



                 At oral argument, counsel  for Garafano suggested  that,



            assuming  that the mandate was complied  with by the district



            court, this court  lacked authority to fashion such a limited



            remand; put differently, the suggestion is that this court by



            vacating   the  original   sentence  automatically   entitled



            Garafano  to  start  from ground  zero,  as  if the  original



            sentencing hearing had  not occurred.  We flatly  reject this



            kind of legal formalism that sacrifices substance in favor of



            ritual.



                 Federal  appellate  courts,   including  the  courts  of



            appeals as well as the Supreme Court, have been granted broad



            authority under 28 U.S.C.   2106 to



                 affirm, modify,  vacate, set aside  or reverse  any

                 judgment,  decree, or  order  of  a court  lawfully


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brought  before it for  review, and may  remand the

                 cause  and  direct the  entry  of such  appropriate

                 judgment, decree, or order, or require such further

                 proceedings to  be  had as  may be  just under  the

                 circumstances.



            One  effect  of  this long-established  formula  is  to allow



            appellate courts the  flexibility to adapt their  mandates to



            the particular problem  discerned on appeal and to provide an



            efficient and  sensible solution.  This  provision authorizes



            just the kind of "middle way" that this court adopted when it



            rejected the government's request that we  pose only a single



            question to  the  district court  and Garafano's  alternative



            request that the district court be required to start afresh. 



                 The   reason  why  we  followed  the  middle  course  is



            apparent.  An entirely new sentencing hearing was unnecessary



            if, as we suspected was  the case, the district court had  at



            the  original  sentencing  made  an  independent  finding  of



            multiple  bribes.   On the  other hand,  if (contrary  to our



            expectation)  the  district  judge said  that  he  had relied



            simply on  the jury  verdict, then  some further  proceedings



            would be necessary, and we  wanted the district court to have



            that authority  without having to  report back to  this court



            and obtain a  new mandate.   Accordingly, our limited  remand
                                                          _______



            embraced both possibilities.



                 Of course,  we would not  frame a remand order  that did



            violence to the substance of  Rule 32(c)(3)(C).  That rule is



            designed to  give  the defendant  an opportunity  "to make  a


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statement  and present any  information in mitigation  of the



            sentence."  Garafano and his  counsel had this opportunity in



            full at the first  hearing.  There is nothing in  the rule or



            its rationale that requires a  defendant to be given a second



            opportunity if all else remains unchanged.



                 In this  case, all  else did  remain unchanged once  the



            district court  reaffirmed its  original finding  of multiple



            bribes, a $100,000  total, and the original  guideline range.



            The defendant had no more right  under these circumstances to



            a new allocution  than to a new presentence  report.  Defense



            counsel's suggestion  that Stanzione's proffer  was something



            on  which to  base a  new allocution,  after the  proffer was



            effectively rejected by the district  judge, is not a serious



            argument.



                 Affirmed.
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