U.S. v. Corrado, 98-2315

• Decision Date: 16 June 2000
• Docket Number: No. 98-2315,98-2315
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellant, v. Paul Corrado; Jack W. Tocco; Vito W. Giacalone; Nove Tocco; Anthony J. Corrado, Defendants-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 543

227 F.3d 543 (6th Cir. 2000)

United States of America, Plaintiff-Appellant, v. Paul Corrado; Jack W. Tocco; Vito W. Giacalone; Nove Tocco; Anthony J. Corrado, Defendants-Appellees.

No. 98-2315

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: June 16, 2000

Decided and Filed: September 27, 2000

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 96-80201--John Corbett O'Meara, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellant.

Robert M. Morgan, Detroit, Michigan, for Defendant-Appellee.

Frank D. Eaman, Bellance, Beattie & DeLisle, Harper Woods, Michigan, Christopher A. Hostage, Terrance G. Reed, REED & HOSTAGE, Washington, D.C., for Appellees.

Neil H. Fink, Law Offices of Neil H. Fink, Birmingham, Michigan, for Defendant-Appellee Vito Giacalone.

Harold Z. Gurewitz, Margaret Sind Raben, GUREWITZ & RABEN Birmingham, Michigan, for Defendant-Appellee.

Carole M. Stanyar, Detroit, Michigan, for Appellees.

Before: WELLFORD, NELSON, and GILMAN, Circuit Judges.

OPINION

HARRY W. WELLFORD, Circuit Judge.

The five named defendants in this case were 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. Based on those convictions, the government sought a forfeiture against the defendants pursuant to 18 U.S.C. § 1963(a)(3), and the parties agreed to have the district judge decide the forfeiture amount. On October 23, 1998, the district court issued an order finding that the government was not entitled to any forfeiture, because, among other things, the evidence was insufficient to trace the allegedly illegal proceeds to each particular defendant. The government has filed this timely appeal. We now reverse as to defendants Jack Tocco and Vito William Giacalone, and we will withhold our opinion as to defendants Paul Corrado, Nove Tocco, and Anthony Corrado pending the outcome of our remand of their related appeals. See United States v. (Paul) Corrado, 227 F.3d 528 (6th Cir. August 24, 2000), and United States v. (Anthony) Corrado, Nos. 98-2394, 99-1001 (6th Cir. 2000).

I. BACKGROUND

The five defendants were charged, along with twelve other defendants, in a twenty-five-count indictment relating to their alleged involvement in the Detroit branch of the national Mafia organization known as the "Cosa Nostra." Jack Tocco and Anthony Corrado were convicted on two counts of conspiracy under RICO, one based on a pattern-of-racketeering-activity (count 1) and one based upon the collection-of-unlawful-debts (count 2), and on one count of a Hobbs Act conspiracy, 18 U.S.C. § 1962(d) (count 6). Paul Corrado and Nove Tocco were convicted of the RICO pattern of racketeering activity conspiracy (count 1) and the Hobbs Act conspiracy (count 6). Vito Giacalone pled guilty to the RICO collection of unlawful debts conspiracy (count 2), and his plea agreement stated specifically that "nothing in this agreement will limit the defendant's liability [as to criminal forfeiture]."

On the basis of those convictions, the government sought a forfeiture for proceeds derived from the defendants' respective crimes. Specifically, the government alleged that all five defendants were jointly and severally liable for $234,700 that was collected in "street tax"extortions.¹ The government further claimed that Jack Tocco, Anthony Corrado, and Vito Giacalone, in addition to the $234,700 amount, were jointly and severally liable for $4.2 million in profits that the conspiratorial enterprise allegedly received from the sale of two hotels in Las Vegas (the Frontier Hotel and the Edgewater Hotel), $1 million that the conspiracy extorted from Sal Vitello, and $38,400 it received in proceeds from the collection of unlawful gambling debts. Thus, the government sought a total forfeiture amount of $5,473,100.

The district court concluded that the evidence presented by the government at trial did not provide, by a "preponderance of the evidence," a sufficiently quantified factual basis for assessing any forfeiture against the defendants. The court stated that "[t]he proceeds of the illegal activity upon which the jury based its guilty verdicts were insufficiently sourced to the illegal activities upon which the RICO convictions were based and insufficiently tracked into the hands of the co-conspirators or the individual defendants involved here for the court to make any forfeiture award." Consequently, the court denied the government's request for a forfeiture judgment. The government filed this timely appeal.

II. JURISDICTION

On May 28, 1999, Jack Tocco moved to dismiss this appeal based on an alleged lack of appellate jurisdiction and on double jeopardy grounds. He claimed that 18 U.S.C. § 3742(b) does not provide a basis on which the government can appeal the district court's decision, and that, even if a statutory basis existed for the appeal, a reversal of the district court's $0 forfeiture award would violate the Double Jeopardy Clause. The other defendants joined in Jack Tocco's motion.

On August 10, 1999, a three-judge panel of this court rejected the defendants' motion to dismiss, and the basis of that decision was set out succinctly:

A criminal forfeiture is an element of sentencing and not an element of a criminal offense. See Libretti v. United States, 516 U.S. 29 (1995). Thus, an appeal by the government may be authorized by 18 U.S.C. § 3742(b). See United States v. Infelise, 159 F.3d 300 (7th Cir. 1998); United States v. Investment Enterprises, Inc., 10 F.3d 263 (5th Cir. 1994). Moreover, as a general rule, except in death penalty cases, Double Jeopardy does not apply to sentencing. Monge v. California, 524 U.S. 721 (1998). Therefore, we decline to dismiss the government's appeal at this time. However, because the issues raised in the motions to dismiss are intertwined with the merits of the appeal, the parties are directed to address these issues in their appellate briefs.

Thus, the panel denied the motion "without prejudice to subsequent reconsideration by the panel to be assigned to hear this appeal on the merits." We now reconsider the defendants' allegations.

A. Basis for Appellate Jurisdiction

Title 18 U.S.C. § 3742(b) is the principal statute that provides circumstances under which the government may appeal a district court's sentencing determination. That section provides in pertinent part:

(b) Appeal by the Government.--The Government may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence

(1) was imposed in violation of law:

(2) was imposed as a result of an incorrect application of the sentencing guidelines . . .;

(3) was imposed for an offense for which a sentencing guideline has been issued . . ., and the sentence is less than [the sentence specified or the sentence stated in any plea agreement]; or

(4) was imposed for an offense for which no sentencing guideline has been issued . . . and is less than the sentence specified in a plea agreement, if any . . .;

and the Attorney General or the Solicitor General personally approves the filing of the notice of appeal.

18 U.S.C. § 3742(b); see 15B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 3919.8 (Supp. 2000).

In this case, the government filed a certificate of compliance, which acknowledges the approval of the Solicitor General for the filing of the notice of appeal in this case. The opening statement of the government's appeal sets forth the basis of its challenge:

The Government appeals from the forfeiture judgments of $0 which the district court entered against five defendants convicted of RICO conspiracy in a case which targeted the Detroit Cosa Nostra. The Government appeals the amount of forfeiture entered as to all five defendants with regard to the amount of forfeiture assessed for the proceeds of the street tax extortion predicate act of count one. In addition, as to defendants Jack Tocco, Anthony Corrado, and Vito Giacalone only, the Government appeals the district court's failure to assess any amount of forfeiture as to the other predicate acts of count one and as to the RICO collection of unlawful debt conspiracy in count two.

The defendants argue that the government's appeal does not fall into any of the provisions of § 3742(b) and, therefore, this court lacks jurisdiction to hear the appeal. We disagree.

It is well-established "[t]hat the government has no right of appeal in a criminal case unless a statute expressly grants such a right." United States v. Investment Enterprises, Inc., 10 F.3d 263, 270 (5th Cir. 1993). A criminal forfeiture award is a part of the defendant's sentence, not part of the substantive offense of conviction. Libretti v. United States, 516 U.S. 29, 39 (1995). Thus, where the government alleges that the $0 award of forfeiture was imposed in violation of the law, the government has the statutory authorization to appeal. See United States v. Infelise, 159 F.3d 300 (7th Cir. 1998) (holding that an order of forfeiture is part of the defendant's sentence and is appealable by the government); Investment Enterprises, 10 F.3d at 270-71 (finding that forfeiture is part of the defendant's sentence and is appealable by the government where the sentence was allegedly imposed in violation of the law).

B. Double Jeopardy

The defendants argue that, even if statutory authority exists for this appeal, allowing the government to challenge the district court's $0 award of forfeiture violates the Double Jeopardy Clause.² They argue that the district court, sitting as the agreed trier of fact, reviewed the evidence and made the determination that no forfeiture award was warranted. Thus, the defendants argue, they are entitled to that "acquittal," and the government's appeal would...