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United States v. Garafano, 95-1127 (1995)

Court: Court of Appeals for the First Circuit Number: 95-1127 Visitors: 6
Filed: Aug. 07, 1995
Latest Update: Mar. 02, 2020
Summary:  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.sentencing hearing had not occurred.
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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Source:  CourtListener

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