U.S. v. Corrado

Decision Date10 September 2002
Docket NumberNo. 01-1660.,No. 01-1561.,No. 01-1658.,01-1561.,01-1658.,01-1660.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Paul CORRADO, Defendant-Appellant. United States of America, Plaintiff-Appellant/Cross-Appellee, v. Anthony Corrado, Defendant-Appellee/Cross-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Kathleen Moro Nesi (argued and briefed), Asst. U.S. Attorney, Detroit, MI, for Plaintiff-Appellee in 01-1561.

Robert M. Morgan (argued and briefed), Detroit, MI, for Defendant-Appellant in 01-1561.

Kathleen Moro Nesi (argued and briefed), Asst. U.S. Attorney, Detroit, MI, for Plaintiff-Appellant Cross-Appellee in 01-1658 and 01-1660.

Carole M. Stanyar (argued and briefed), Detroit, MI, for Defendant-Appellee Cross-Appellant in 01-1658 and 01-1660.

Before: DAUGHTREY and MOORE, Circuit Judges; ECONOMUS, District Judge.*

OPINION

MOORE, Circuit Judge.

Defendants Paul Corrado ("Paul") and Anthony Corrado ("Anthony") appeal the district court's reinstatement of their convictions, following remand, and their sentences following resentencing. The United States cross-appeals Anthony's sentence. For the following reasons, we AFFIRM the reinstatement of the Corrados' convictions and Paul's sentence, but we VACATE Anthony's sentence and REMAND to the district court for resentencing.

I. BACKGROUND

Paul and Anthony, along with fifteen others, were charged in a twenty-five count indictment that included two counts under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., and several extortion, conspiracy, and firearm counts. See United States v. [Paul] Corrado, 227 F.3d 528, 532 (6th Cir.2000) ["Corrado I"]; United States v. Anthony Joseph Corrado, Nos. 98-2394 & 99-1001, 2000 WL 1290343, at *1 (6th Cir. Sept. 8, 2000) ["Corrado II"]. Paul and Anthony were allegedly members of the Detroit Cosa Nostra; Paul, the nephew of Anthony, engaged in a scheme with Nove Tocco to "shake down" bookmakers in the Detroit metropolitan area, allegedly under the supervision of Anthony, a Mafia "capo," and others. The extensive underlying facts of the case can be found in the opinions cited supra. See also United States v. Corrado, 286 F.3d 934 (6th Cir.2002) (forfeiture-related issues) ["Corrado IV"]; United States v. Corrado, 227 F.3d 543 (6th Cir. 2000) (same) ["Corrado III"]; United States v. Tocco, 200 F.3d 401 (6th Cir.2000) (appeal of coconspirator Jack Tocco).

After a jury trial, Paul was convicted on Counts 1 (RICO conspiracy, 18 U.S.C. § 1962(d)), 6 (Hobbs Act conspiracy violation, 18 U.S.C. § 1951(a), conspiracy to interfere with commerce by extortion), 10, 12, 20, 23, 24 (Hobbs Act substantive violations, interference with commerce by extortion), 11, 17, 21 (Hobbs Act attempt violations, attempted interference with commerce by extortion), 5, 9, and 16 (using or carrying a firearm during or in relation to a crime of violence, 18 U.S.C. § 924(c)(1)), see Joint Appendix ("J.A.".) at 1229-30. Anthony was convicted of Counts 1 and 2 (RICO conspiracy to collect an illegal debt), 6 (conspiracy to interfere with commerce by extortion), 13, 20, 23, 24 (aiding and abetting interference with commerce by extortion), 21 (aiding and abetting attempted interference with commerce by extortion), and 18 (obstruction of justice), see J.A. at 1156-57. Paul was sentenced to ninety-seven months' imprisonment plus sixty months to run consecutively based on the firearm counts; Anthony was sentenced to fifty-one months' imprisonment.1

Paul and Anthony then appealed their convictions and sentences to this court. We vacated both defendants' convictions, holding that the district court erred in not holding a Remmer hearing2 to determine whether the jury verdict had been tainted by an attempted act of jury tampering. See Corrado I, 227 F.3d at 537; Corrado II, 2000 WL 1290343, at *1. We also instructed that, if the district court reinstated the Corrados' convictions, the district court should then resentence the Corrados. With respect to Paul's sentence, we held that the district court failed to comply with the requirements of Federal Rule of Criminal Procedure 32(c)(1), which requires a sentencing court to make adequate findings of fact in sentencing. See Corrado I, 227 F.3d at 540. Instead, we concluded that the district court had "either summarily adopted the findings of the presentence report or simply declared that the enhancement in question was supported by a preponderance of the evidence." Id.

In addition, the government appealed Anthony's sentence. We held that the district court erred because, given Anthony's conviction based on the Hobbs Act conspiracy and substantive extortion charges, the district court had failed to enhance his sentence based on his supervisory role. Thus, we held that, on remand, Anthony Corrado's sentence should be enhanced by three levels pursuant to the United States Sentencing Guidelines ("U.S.S.G.") § 3B1.1(b) (1997). See Corrado II, 2000 WL 1290343, at *4. In addition, the district court was instructed to make factual findings with respect to whether the actions of Paul Corrado and Nove Tocco, which triggered the specific offense characteristic enhancements found in U.S.S.G. §§ 2B3.2(b)(1), 2B3.2(b)(3)(A)(i), and 2B3.2(b)(2), were reasonably foreseeable to Anthony Corrado. See Corrado II, 2000 WL 1290343 at *4.

On remand, the district court first held a Remmer hearing, which is discussed at length infra. The court concluded that the verdict had not been tainted by the attempted jury tampering and thus reinstated the Corrados' convictions. The court then resentenced the Corrados.

A. Paul Corrado's Resentencing

Prior to resentencing, an evidentiary hearing was held at which Nove Tocco, another defendant in the RICO case, testified with respect to some of the factual findings remanded to the district court. Nove Tocco was called as a witness by the defense, although he is now cooperating with the government. On direct examination, Nove Tocco testified, among other things, (1) that he, rather than Paul, had recruited various individuals into their extortion scheme, and that Paul's role in the scheme declined over time; (2) that he did not see Paul with a handgun during the extortion of George Sophiea; and (3) that there had never been a plan to kidnap or murder Ramzi Yaldoo or Jesus Morales. These factual issues were relevant to the specific offense characteristics at issue in Paul's resentencing.

The district court then resentenced Paul to ninety-seven months' imprisonment plus sixty months to run consecutively. See J.A. at 1239 (Resentencing Mem.). In its written memorandum, the district court stated:

The Court of Appeals Decision remanding this case directed this court to make findings of facts supporting its conclusions with regard to the leadership roles of the defendant, the involvement of the defendant to conspiracy to murder Bowman, and the determination that the defendant was armed when he extorted money from George Sophiea.

Prior to sentencing, the defendant's attorney requested that the court also consider the fact that the defendant's only victims were, so the defendant argued, themselves engaged in criminal activity.

J.A. at 1232. The district court first found that the two-level adjustments based on Paul Corrado's leadership role, pursuant to U.S.S.G. § 3B1.1(c), were supported by trial testimony and the testimony of Nove Tocco at the resentencing hearing. In sum, the district court found that:

Defendant Corrado recruited John Jarjosa and Tom Lenhard to assist in the extortion of Ramzi Yaldoo. Defendant Corrado also recruited John Jarjosa to assist in the extortion of money from George Yatooma and Sam Martin. Paul Corrado, along with Nove Tocco, utilized Peter Jack Corrado and Peter Tocco to assist them in the extortion of money from George Sophiea. The court finds all of these 3B1.1(c) increases in offense level are supported by a preponderance of the evidence.

J.A. at 1232-33. This conclusion was followed by a discussion of specific findings with respect to each enhancement.

The district court then found, by a preponderance of the evidence, that Paul Corrado participated in a conspiracy to murder Harry "Taco" Bowman, the president of the Outlaws Motorcycle Club; that Paul Corrado was armed during the extortion of George Sophiea; and that "the fact that the only victims of the defendant's criminal activities were themselves engaged in criminal activity as bookmakers" was not an appropriate basis for a downward departure pursuant to the Sentencing Guidelines, J.A. at 1238.

B. Anthony Corrado's Resentencing

At resentencing, the district court sentenced Anthony Corrado to seventy months' imprisonment. With respect to the Count 1 RICO conspiracy, the district court concluded that Anthony should be held responsible for only one of the six underlying racketeering activities alleged in the indictment, obstruction of justice charged in Overt Act 22 of Count 1 and Count 18. See J.A. at 1202.3 The district court declined to hold Anthony responsible, under the RICO count, for, inter alia, the extortion conspiracy and the substantive acts of extortion, finding these extortion activities independent of the larger RICO conspiracy.

Next, in calculating Anthony's sentence on Count 6, the extortion conspiracy charge, the district court included as underlying acts the five substantive extortion counts for which Anthony was convicted. See J.A. at 1197 (Sophiea), 1199 (Yaldoo), 1200 (Yatooma), 1201 (Martin and Abraham).4 With respect to the four substantive extortion counts for which Anthony was not convicted, the district court concluded that "[n]o evidence[ ] tie[d] Anthony Corrado to the[ ] acts" involved in the Monro, Wierzba, Morales, and Johns extortions, J.A. at 1192 (Monro...

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