227 F.3d 528 (6th Cir. 2000), 98-2269, United States v Corrado
|Docket Nº:||Paul Corrado (98-2269); Nove Tocco (98-2270); Vito William Giacalone (98-2365), Defendants-Appellants.|
|Citation:||227 F.3d 528|
|Party Name:||United States of America, Plaintiff-Appellee, v.|
|Case Date:||August 24, 2000|
|Court:||United States Courts of Appeals, Court of Appeals for the Sixth Circuit|
Argued: June 16, 2000
Appeal from the United States District Courtfor the Eastern District of Michigan at Detroit. No. 96-80201--John Corbett O'Meara, District Judge.
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Robert M. Morgan, Detroit, Michigan, for Defendant-Appellant Corrado.
Harold Z. Gurewitz, Margaret Sind Raben, GUREWITZ & RABEN, Birmingham, Michigan, for Defendant-Appellant Tocco.
Neil H. Fink, LAW OFFICES OF NEIL H. FINK, Birmingham, Michigan, for Appellants.
Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
Before: WELLFORD, NELSON, and GILMAN, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge.
This case involves three codefendants convicted of conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d), as alleged members of the Detroit Mafia. Two of the defendants, Paul Corrado and Nove Tocco, raise substantially similar arguments on appeal, challenging the scope of the voir dire, the conduct of the prosecutor, the impartiality of the jury, and the district court's failure to detail its findings at sentencing as required by Rule 32(c)(1) of the Federal Rule of Criminal Procedure. The third defendant, Vito Giacalone, raises only one issue on appeal, arguing that his motion to dismiss all charges against him should have been granted because, in an earlier plea agreement, the government granted him immunity regarding one of the predicate acts charged in this case.
For the reasons set forth below, we VACATE the convictions and sentences of Corrado and Tocco and REMAND for a hearing pursuant to Remmer v. United States, 347 U.S. 227 (1954). If the district court finds that these defendants were prejudiced by jury misconduct, then they will be entitled to a new trial. If not, then their convictions should be reinstated and they should be resentenced, this time with the district court setting out its findings as to contested factual matters pursuant to Rule 32(c)(1) of the Federal Rules of Criminal Procedure. Finally, we AFFIRM the district court's denial of Giacalone's motion to dismiss.
A. Factual background
Corrado, Tocco, and Giacalone were indicted on charges relating to their alleged involvement in the Detroit branch of the national Mafia organization, also known as the Cosa Nostra. Among the twenty-five counts charged were two counts of conspiracy under RICO (one based upon a pattern of racketeering activity and one based upon the collection of unlawful debts), several individual counts of extortion pursuant to 18 U.S.C. § 1951, one count of a Hobbs Act conspiracy, 18 U.S.C. § 1951, and several counts of using or carrying a firearm in relation to a crime of violence pursuant to 18 U.S.C. § 924(c)(1).
B. Procedural background
Giacalone pled guilty to one count of RICO conspiracy on January 6, 1998 and was sentenced to a 78-month term of imprisonment and a 2-year term of supervised release. In tendering this plea, Giacalone reserved his right to appeal the denial of a previous motion to dismiss. He filed a timely notice of appeal on November 30, 1998.
On April 29, 1998, the jury convicted Corrado and Tocco on all counts. The district court sentenced Corrado to a term of 97 months of imprisonment on the extortion and racketeering counts, 60 additional months of imprisonment for a related firearm offense, and a 3-year term of supervised release. It sentenced Tocco to a term of 167 months of imprisonment on the extortion and racketeering counts, 60 additional months of imprisonment for a related firearm offense, and a 3-year term of supervised release. Both defendants filed timely notices of appeal on November 6, 1998.
A. Law of the case
Three of the challenges raised in the briefs of Corrado and Tocco--regarding
the sufficiency of the district court's voir dire, Agent Ruffino's testimony, and three specific instances of alleged prosecutorial misconduct--were considered and rejected by this court in the earlier appeal of Jack Tocco, a codefendant of Corrado's and Tocco's, who appealed individually. See United States v. Jack William Tocco, 200 F.3d 401 (6th Cir. 2000). An earlier appellate court's decision as to a particular issue may not be revisited unless "substantially new evidence has been introduced, . . . there has been an intervening change of law, or . . . the first decision was clearly erroneous and enforcement of its command would work substantial injustice." Miles v. Kohli & Kaliher Assocs., Ltd., 917 F.2d 235, 241 n.7 (6th Cir. 1990).
Corrado and Tocco have not demonstrated that such exceptional circumstances exist in the present case. This court's earlier decisions as to those issues are therefore the law of the case and will not be disturbed. See United States v. Wilson, No. 91-1510, 1992 WL 179240, at *8 (6th Cir. July 28, 1992) (ruling that a panel's holdings in the appeals of three codefendants became the law of the case as to the identical issues raised in the subsequent appeal of a fourth codefendant); Heathcoat v. Potts, 905 F.2d 367, 370 (11th Cir. 1990) ("[F]indings of fact and conclusions of law by an appellate court are generally binding in all subsequent proceedings in the same case in the trial court or on a later appeal." (citation omitted)).
B. Jury tampering
On April 15, 1998, only two days before closing arguments were scheduled, an individual later identified as Khalid Shabazz approached Corrado and told him that he had a "friend" on the jury and that he could assist Corrado in obtaining a favorable verdict. Corrado's counsel immediately reported the incident to the government and to the district court. Federal agents asked Corrado to contact Shabazz and set up a meeting, which Corrado did. On the evening of April 16, 1998, Corrado, wearing a recording device, met with Shabazz. He attempted to elicit the name of the juror that Shabazz allegedly knew, but was unsuccessful. Federal agents then moved in and arrested Shabazz.
On the following morning, Friday, April 17, 1998, the district judge met with the attorneys involved in the case to discuss the jury-tampering attempt. Time was of the essence because closing arguments were scheduled to be made that very day. Assistant United States Attorney Keith Corbett informed the district court and the defense attorneys as follows:
Yesterday[,] with Mr. Morgan and his client's [Corrado's] cooperation, we arrested an individual who contacted Mr. Morgan's client and advised that he knew one of the male jurors on this jury, that for an undisclosed amount of money, he could guarantee a hung jury, that he would, that his friend was confident that he could carry two or three of the jurors with him, that they'd had some preliminary discussions during the course of the trial about the case and he had expressed his opinions, they had expressed their opinions, and he felt comfortable that he could, as I said, secure two or three people's assistance in pushing his particular agenda.
A discussion then ensued concerning the problem and various methods that could be employed to address it. Corbett commented that "it may turn out that Monday at some point in time I think the court may have to bring the 12 people that constitute the final jury in one by one and perhaps begin some sort of independent examination of them . . . ." Later in the conference, Morgan asked: "Judge, you haven't foreclosed . . . some kind of inquiry individually or voir dire . . . of the jury?" The district court responded: "Oh, no." However, the court then added:
At the same time, not suggesting that anybody's rights to look into what has
gone on, if anything untoward has gone on, as is given up [sic], and that to me means that until the jury has deliberated, if, if we can get them that far and they come to verdicts, the people deliberating shouldn't know that there's a problem. It seems to me that they should know as little as possible and should have curative instructions if they know anything.
The district court ultimately decided to postpone instructing the jury until the following Monday morning, in the hope that more information would emerge over the weekend about the truth of Shabazz's claims.
On Monday morning, April 20, 1998, the district court and the attorneys reconvened. Shabazz had refused to cooperate with investigators, so little new information was available. The district court stated as follows: "I started out from the position that we got to talk to everybody and I've fallen back from that and I'm pretty much moving in the direction of minimalism is better. . . . And I want to say as little as possible to disturb their state of mind and get them out there doing their, doing their work . . . ."
The district court therefore proposed that it would ask the jury three questions in open court and give them a fifteen-minute recess to reflect on those questions. Those questions were: "[H]as anyone outside the jury tried to influence you in any way about this case. Has anyone on the jury tried to influence what you will do in any, in your deliberations in any way and[,] is there any reason you believe that you could not continue to serve as a fair and impartial juror on this case." If the answer to any of those questions was "yes," an individual juror would be instructed to send the...
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