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 w
___________________
Sheldon Whitehouse, United States Attorney, and Craig N. Moo
___________________
______________
Assistant United States Attorney, was on brief for the United State
____________________
September 23, 1994
____________________

____________________
*Of the District of Massachusetts, sitting by designation.

BOUDIN, Circuit Judge.

_____________
indicted

In December

1992 a grand

Gary Garafano on one count of extortion under color

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

gist

of the

1990,

from

charge was

Garafano, then

Island,

jury

Department of

a road

paving

that from

an official

spring 1989
in the

Public Works,
firm doing

1951.

to December

Providence, Rhode

had extorted

work

The

for the

payments

city,

Forte

Brothers Construction Corporation ("Forte Brothers").

At

a first trial

in June 1993 the

jury deadlocked.

second

trial was

conducted

in the

government offered testimony

of Forte Brothers,

fall.

At

of James Forte,

that during

trial,

vice president

1988 and 1989

the firm

engaged in road repair work for the city.

In

1989,

and agreed

said Forte,

he met

with Garafano

the

was

or about March
to the

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

to cease authorizing
Forte

work to be performed by Forte Brothers.

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
from

also testified
Garafano,

additional

that in

Tocco

payments

made
to

December 1990, and that

Garafano

response to

somewhere

Garafano

further demands

between

between

April

the total amount of the

was around $100,000.

Much of the

12

and
1989

20
and

payments to

money came from

-2-2-

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
receiving

himself

any

Garafano's

money

testified
from

subsidiary

director of

Forte

denied

demanding

or

Brothers.

Various

of

statements were
but

the director

by the
no

direct knowledge of whether Garafano had received bribes.

On

guilty.

city department

contradicted

had

October

his

and

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

The

count charged

verdict was

a general

and provided

verdict on

no indication of

the single

which episodes

the jury found to have occurred.

On December 14, 1993, the
hearing.

At the hearing

that only the

by evidence and

as to further payments
defense position

himself

defense counsel took

the position

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

adequately supported

the

trial judge held a sentencing

that Tocco's testimony

was not credible.

that

after the

It

was apparently

first incident

Tocco

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
sentenced under
Guidelines which

report

had proposed

the November 1993 version

was in

effect at

-3-3-

that Garafano

be

of the Sentencing

the time of

sentencing.

The report recommended

level at

that the court

fix the base

10, as provided by U.S.S.G.

add two levels

2C1.1(b)(1).
six-level

more than

one

adjustment because the

bribe or

In addition, the report

adjustment

received by

2C1.1(a), and that it

as a specific offense

offense involved

based on

the

offense

extortion. Id.
___

recommended a further
amount

of the

Garafano; the guidelines provide

payment

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).

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

Prior to November 1989,
the

two-point adjustment

counsel

objected

that

have

ceased prior

amendment.
before the

Counsel

to

without

that the two points

the

bribes.
additional

Garafano's
payments

the extortionate conduct would

the effectiveness
argued that

amendment, then

Id.
___

the guidelines did not included

for multiple

allegedly made through Tocco,

if the

ex post facto
_____________

not be included.

Our

of that

guideline

conduct

did cease

concerns required
decisions confirm

that where a guideline amendment increases the sentence after

the

offense, the

offense

should

guidelines in
be

used.

effect at

See
___

e.g.,
____

the time

of the

United States
______________

v.

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

_________
More
then

important, if Tocco's

the total

amount

would be only $8,000.

testimony were disregarded,

gained by

the extortionate

conduct

This would eliminate not only the two-

-4-4-

point adjustment for multiple bribes (since there would be no

second

bribe

proved)

adjustment based on
Forte's testimony

amount of

money;

but

also

"the loss
alone, not

hearing, established
the

but

the

proposed

or gain table".

Of

course,

at the

sentencing

that Garafano had solicited

a bribe in

$8,000,

a single

challenged

six-point

whether or
$8,000

not Tocco

bribe would

delivered the

have

reduced the

guideline range.
At the
court

to

sentencing
find

that

hearing defense
the

1989 version

counsel

asked

of

guidelines

the

the

applied, asserting that

only on

the jury may have based

its verdict

bribe, which counsel

described as

the first $8,000

"the only corroborated event"

to

the jury.

The

that the government had proved

court replied,

dissect what a jury has done?"

"how can

you ask

Counsel responded that "[t]he

guidelines allow you exactly that power . . . ."

to

why the

court should

offered an

me to

disbelieve Tocco,

example of an asserted

Pressed as

defense counsel

contradiction between the

testimony of Tocco and other government witnesses.

The prosecutor
corroborated, and

replied that Tocco's testimony

then added: "I

don't think the

had been
Court has

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

The

court replied:

defense counsel)
are ample

"I

quite agree

with

that "the reasons

in and of themselves."

you," adding

[the prosecutor]
The court went

(to

stated

on to say

-5-5-

that it agreed that "the facts of the case

offense

occurred between

showed

the

receipt

of

April 1989
between

reflect" that the

and December
12

and

20

1990 and
payments.

Accordingly the court rejected the ex post facto claim.

_____________
Defense counsel
length

that Tocco

then went on
should not

to argue at

be believed.

even greater
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.
and

The court listened courteously to the argument

then rejected

evidence

. .

it,
[that]

reasonable doubt."

saying that
could

"there was

convince

Defense counsel then said

substantial

jury

beyond

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
and

Garafano had been motivated

by "sheer greed

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

imprisonment

and

$6,000

fine, together

-6-6-

with

an

order

requiring
city.

Garafano to

make restitution

of $100,000

to the

This appeal followed.

The only issue on

appeal is the defense claim

that the

district court erred because it allegedly refused to make

independent assessment
own finding
had been

as to

a period

The government agrees

but

assessment.
court

Tocco testimony and

whether bribes of

paid during

required

of the

says
We agree

probably did

make its

approximately $100,000

extending to December

1990.

that an independent determination

that the

district

court

made

with the government that

make

an

an independent

was

such an

the district

assessment but

to

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

The uncertainty
facts.
the

is apparent from our

recitation of the

Normally the trial court makes its own assessment of

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

a defendant for

that a judge may

attribute conduct to

"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).

-7-7-

Whether
sentencing

the

by the jury's

(e.g., through
____
but is
could

trial

court

could

ever

determination against

collateral estoppel) is

theory

have

pertaining to the first

convicted

bound

a defendant

solely

on

that the jury

the

evidence

$8,000 bribe solicitation; and since

the jury delivered a general verdict there is no way to

what it actually found as

at

an interesting issue

irrelevant here: the government agrees

in

be

to the number of bribes.

even if a jury verdict against the defendant

_______

tell

In sum,

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
inclined to

read the sentencing transcript in

think that the

respected jurist,
decide

trial judge, an

fully understood that he

full and are

experienced and
could and should

himself when the offense ended and how much was paid.

Further, his statement quoted above

reflect

. .

.") is

resolve

those issues

("the facts of the

reasonably clear

evidence that

against Garafano

and was

case
he did

not relying

upon

the jury verdict or

does

Garafano argue on appeal that the evidence at trial was

insufficient

to

support

any misinterpretation of

findings

at sentencing

it.

that

Nor

the

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

If this
hesitation.

were all, we

would affirm

without a

moment's

But we agree with Garafano that the record is at

-8-8-

least blurred by
prosecutor
Quite likely

the agreement

that the

jury

of the trial

verdict could

both meant only

judge and

not be

that peering into

the

dissected.
the verdict

was

infeasible and

served

no purpose;

prosecutor's words

could be

taken as

jury

the

had resolved

issue of

but abstractly
an argument

timing and

the

that the

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
earlier

argument to the

the ability,
amount

sound like
_____

and

a refutation

of defense

counsel's

court that "[y]ou

[the court] have

the discretion in sentencing"

to determine the

timing

of

the

properly says

on appeal,

"unfortunate"

choice

loss.

As

government counsel

the prosecutor's statement

of words.

The

was an

district judge

then

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

with you"
reasons

and telling defense counsel

were

"ample"

basis

for

that the prosecutor's

rejecting

the

defense

position.
In

saying

uncertainty,
either

that these

we do

the court

not
or
like

colloquies

intend the

counsel.
television

leave

a measure

of

slightest criticism

of

Court colloquies

scripted

events

commercials

speeches.

Lawyers are usually trying to advance

are
or

not

public

and explain

conflicting positions, and the judge is seeking to resolve on

-9-9-

the spot
In

this

often arcane
case,

it

issues and tangled

is

quite

likely

factual disputes.

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.
uncertainty.

It takes very little effort to resolve the

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
the

matter to

district

to vacate
the

district court

court has already given

his evidentiary position in

defense counsel
did
find

the existing sentence

for

and remand

resentencing.

The

Garafano a chance to argue

full and no request was

made by

to offer new evidence; if the district court

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

continued until

of

the

jury

verdict)

December 1990 and were

that

bribes

around $100,000, the

court is

free to say so

sentence.
or

summarily and to reimpose

No additional proceedings, or

findings, are required.

the same

further explanation

See United States v. Savoie, 985

___ _____________
______

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

-10-10-

Conversely,
further

the district

proceedings

sentence.

It

misunderstanding
district

deems

may

do

at

the

court's authority,

thinks that
does

it

this would be

change

the

court

factual

so

appropriate
if

there

original
or

is free

on

which

it would be within the spirit

provide counsel and the

an
as

But if

Garafano--and thereby alters the guideline

we think that

was

because

useful to it.

any

before imposing

sentencing

merely

premise

to order

it

actual
to

the

the
court

the court
sentences

range available-of the rules to

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.

-11-11-