U.S. v. D'Amico

• Decision Date: 07 August 2007
• Docket Number: No. 05-1468.,No. 05-1573.,05-1468.,05-1573.
• Citation: 496 F.3d 95
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. Michael J. D'AMICO, Defendant, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — First Circuit

496 F.3d 95

UNITED STATES of America, Appellee/Cross-Appellant, v. Michael J. D'AMICO, Defendant, Appellant/Cross-Appellee.

No. 05-1468.

No. 05-1573.

United States Court of Appeals, First Circuit.

Heard December 6, 2006.

Decided August 7, 2007.

James L. Sultan with whom Jonathan Harwell and Rankin & Sultan, were on brief, for appellant.

S. Theodore Merritt, Assistant United States Attorney with whom Michael J. Sullivan, United States Attorney, was on brief for, appellee/cross-appellant.

Before SELYA, Circuit Judge, STAHL, Senior Circuit Judge, and HOWARD, Circuit Judge.

HOWARD, Circuit Judge.

Michael D'Amico, a former city councillor for the City of Quincy, Massachusetts, was convicted of extortion under color of official right in violation of the Hobbs Act, 18 U.S.C. § 1951, and of making false statements to an agent of the Federal Bureau of Investigation (FBI) in violation of 18 U.S.C. § 1001. The Hobbs Act conviction stems from D'Amico's accepting $2,500 from Paul Gostoves, an FBI informant and owner of a Dunkin' Donuts franchise, who was seeking to have the road in front of his Quincy store widened. The false statements conviction stems from D'Amico's lying to an FBI agent about this transaction. D'Amico was sentenced to four months' imprisonment, even though the applicable guidelines sentencing range (GSR) was 31-44 months. D'Amico appeals the Hobbs Act conviction, and the government cross-appeals the sentence.

I. D'Amico's Appeal

A. Duplicitous Indictment

D'Amico first contends that the Hobbs Act extortion charge was duplicitous. The indictment charged D'Amico with one count of interfering and attempting to interfere with interstate commerce through extortion.¹ D'Amico argues that attempted extortion and completed extortion are separate crimes which had to be indicted in separate counts. The district court disagreed.²

Duplicity challenges to an indictment are reviewed de novo. See United States v. Kelley, 461 F.3d 817, 830 (6th Cir.2006); United States v. Caldwell, 302 F.3d 399, 407 (5th Cir.2002); United States v. Trammell, 133 F.3d 1343, 1354 (10th Cir.1998); United States v. Bryan, 868 F.2d 1032, 1037 (9th Cir.1989). "Duplicity is the joining in a single count of two or more distinct and separate offenses." United States v. Verrecchia, 196 F.3d 294, 297 (1st Cir.1999). "The prohibition against duplicitous indictments arises primarily out of a concern that the jury may find a defendant guilty on a count without having reached a unanimous verdict on the commission of any particular offense."³ United States v. Valerio, 48 F.3d 58, 63 (1st Cir.1995) (citation omitted). The bar against duplicitous indictments is embodied in Fed.R.Crim.P. 8(a), which provides that separate offenses must be charged in separate counts of an indictment. See United States v. Damrah, 412 F.3d 618, 622 (6th Cir.2005); United States v. Buchmeier, 255 F.3d 415, 421 (7th Cir.2001). "[D]etermining whether there is duplicity [in an indictment] . . . is [often] a difficult and subtle question." 1A Charles Alan Wright, Federal Practice & Procedure (Criminal) § 142 (3d ed.1999).

The question here is whether an indictment charging a completed and attempted extortion in one count is duplicitous. Ordinarily, it has been thought that attempt is a lesser-included offense of the completed crime and need not be charged at all. See Fed.R.Crim.P. 31(c); United States v. Summit Refrigeration Group, Inc., No. 05-151, 2006 WL 3091115, at *5 (E.D.Wis. Oct.26, 2006) (unpublished disposition) ("[I]f a defendant can be found guilty of attempt even if attempt is not charged, it cannot be duplicitous to charge [attempt and the completed offense] in one count."); United States v. Stotts, No. 01-1001, 2002 WL 1477214, at *6-*7 (W.D.Tenn. July 2, 2002) (unpublished disposition) (indictment charging attempt to manufacture methamphetamine and completed crime in same count was not duplicitous because attempt was lesser-included offense of completed crime); United States v. Quinn, 364 F.Supp. 432, 437 (N.D.Ga.1973) (stating that by including attempt in the same count of the indictment as the completed offense, "the government is merely making explicit its right to a verdict . . . finding [the] defendant guilty of an attempt . . . whether an attempt is charged or not").

Where, however, attempt is not a lesser-included offense of the completed crime, at least one court has held that an indictment charging attempt and the completed crime in the same count is duplicitous. See United States v. Ramirez-Martinez, 273 F.3d 903, 913-14 (9th Cir.2001), overruled on other grounds by United States v. Lopez, 484 F.3d 1186 (9th Cir.2007) (en banc). In Ramirez-Martinez, the Ninth Circuit found an indictment duplicitous where it charged a defendant, in a single count, with both transporting and attempting to transport undocumented aliens within the United States. See 8 U.S.C. § 1324(a)(1)(A)(ii). According to the court, a conviction for attempted transport requires proof that the defendant had a specific intent to transport undocumented aliens, while a conviction for actual transport requires proof only that the defendant had a general intent to transport aliens "with knowledge or reckless disregard of their undocumented status."⁴ Ramirez-Martinez, 273 F.3d at 914.

The cases hold that attempts are lesser-included offenses of completed Hobbs Act violations. United States v. Coyazo, 95 Fed.Appx. 261, 265 (10th Cir.2004) (unpublished disposition) (robbery); United States v. Gregory, No. 99-1765, 2000 WL 1644071, at *2 (2d Cir. Nov. 1, 2000) (unpublished disposition) (robbery); United States v. Bernard, No. 92-558, 1983 WL 144644, at *2 (E.D.La. Mar. 24, 1993)(unpublished disposition) (extortion); United States v. Blair, 762 F.Supp. 1384, 1386 n. 3 (N.D.Cal.1991) (extortion). That is, all the elements of attempted extortion are elements of the completed crime, unlike the separate elements present in Ramirez-Martinez. See United States v. Bailey, 227 F.3d 792, 797 (7th Cir.2000). As Count I of the indictment in this case may be read to include only one Hobbs Act violation — extortion or the lesser included offense of attempted extortion, we agree with the district court that the indictment is not duplicitous on its face. See United States v. Mastelotto, 717 F.2d 1238, 1244 (9th Cir.1983) ("In reviewing an indictment for duplicity, our task is not to review the evidence presented at trial to determine whether it would support charging several crimes rather than just one, but rather solely to assess whether the indictment itself can be read to charge only one violation in each count."), overruled on other grounds by United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985), cited with approval in United States v. Trainor, 477 F.3d 24, 32 (1st Cir.2007).⁵

In asserting that he was prejudiced by the allegedly duplicitous indictment, D'Amico argues in his reply brief, as he did before the district court, that he was denied the right to a unanimous jury verdict. D'Amico contends that some jurors might have found him guilty of attempted extortion based in part on a finding that he believed the payment of $2,500 he received from Gostoves would deplete assets of the Dunkin' Donuts franchise. D'Amico says that this belief, if proved, could supply the interstate commerce nexus required for conviction for attempt under the statute (we discuss the interstate commerce requirement further in part C. of this opinion). But, he argues, his belief about the source and effect of the payment was irrelevant to whether a completed extortion was committed; an actual impact on interstate commerce is required. Given that the proof for attempted extortion and completed extortion could be different, the argument concludes, the jury may not have been unanimous about whether D'Amico was guilty of extortion or attempted extortion.

While, as we have noted, one of the purposes of the prohibition against duplicitous indictments is to guard against conviction without a unanimous jury verdict, the fact that an indictment is not duplicitous on its face of course does not guarantee that a jury verdict will be unanimous, based on the evidence actually presented. We have observed a lack of clarity in the law about the requirement for juror unanimity when, as here, there are alternate paths to a verdict, and we have acknowledged that a count may contain alternative theories, factual scenarios and lines of evidentiary inference, "making generalizations about unanimity hazardous." United States v. Pagan-Santini, 451 F.3d 258, 267 (1st Cir.2006). We need not decide whether D'Amico would have been entitled to a unanimity instruction, for he did not seek one at trial, and on appeal he expressly disclaims that he is challenging the failure to give such an instruction, preferring instead to rest on his claim that the trial should not have proceeded on the indictment as drafted. Because the indictment was not duplicitous, we reject that claim.

B. Promise of an Official Act

D'Amico next challenges the district court's denial of his Fed.R.Crim.P. 29 motion for a judgment of acquittal. He contends that the government failed to prove, as it must, that he accepted the $2,500 payment from Gostoves in exchange for a promise to perform an official act.

We review D'Amico's sufficiency of the evidence claim de novo. See United States v. Hall, 434 F.3d 42, 49 (1st Cir.2006). In so doing, "we must decide, viewing the evidence in the light most favorable to the verdict of guilt, whether a reasonable factfinder could find the defendant guilty of the crime beyond a reasonable doubt." United States v. Boulanger, 444 F.3d 76, 89 (1st Cir.2006).

In relevant part, the Hobbs Act defines extortion "as the obtaining of property from another with his consent, induced ... under color of official right." 18 U.S.C. § 1951(b)(2). "To establish guilt for extortion under color official right, the [government] must...