U.S. v. Finazzo

• Decision Date: 05 April 1983
• Docket Number: Nos. 81-1218,81-1219,s. 81-1218
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Salvatore FINAZZO and Dominic Licavoli, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 300

704 F.2d 300

UNITED STATES of America, Plaintiff-Appellee, v. Salvatore FINAZZO and Dominic Licavoli, Defendants-Appellants.

Nos. 81-1218, 81-1219.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 3, 1982.

Decided April 5, 1983.

Ivan E. Barris (argued), Barris, Golob & DuMouchel, Detroit, Mich., for defendants-appellants.

Leonard R. Gilman, U.S. Atty., Detroit, Mich., John L. Newcomer, Washington, D.C., Walter Kozar (argued), Detroit, Mich., for plaintiff-appellee.

Before ENGEL and JONES, Circuit Judges, and NEESE, Senior District Judge. ^*

ENGEL, Circuit Judge.

Defendants Finazzo and Licavoli appeal from a judgment entered by the United States District Court for the Eastern District of Michigan following a jury trial in which each was convicted of (1) commanding, inducing, procuring or causing the giving of an unlawful gratuity to a public official in violation of 18 U.S.C. Secs. 201(f) and 2 (count I); (2) aiding and abetting a public official in asking, demanding, exacting, soliciting, seeking, accepting, receiving or agreeing to receive an unlawful gratuity, in violation of 18 U.S.C. Secs. 201(g) and 2 (count II); and (3) conspiracy to violate 18 U.S.C. Secs. 201(f), 201(g), 1952 and 2, all in violation of 18 U.S.C. Sec. 371 (count V). In addition, Finazzo was convicted of count IV, which charged that he and Licavoli had aided and abetted a violation of the Travel Act contrary to 18 U.S.C. Secs. 1952 and 2. Licavoli, however, was acquitted on this count.

In his direct appeal to this court, defendant Finazzo raises the following issues:

(1) That the proofs introduced at trial constituted a constructive amendment of the indictment, thereby depriving him of his Fifth Amendment right not to be prosecuted except on charges set forth in the grand jury indictment.

(2) The trial court erred in giving a "Pinkerton" charge ¹ to the jury which permitted the defendant to be convicted of substantive crimes committed by others.

(3) His conviction on counts I, II, IV, and V amounted to double jeopardy contrary to his rights guaranteed by the Fifth Amendment.

(4) The trial court erred in denying a judgment of acquittal notwithstanding the verdict or in the alternative for a new trial because of improper argument made by the government prosecutor.

On his part the defendant Licavoli, while adopting the arguments of codefendant Finazzo by reference, also lists the following claims on appeal:

(1) That the court erred in denying his motion for a judgment of acquittal, there being insufficient proof that he was a member of the conspiracy charged.

(2) The trial court erred in giving a "Pinkerton" instruction which allowed the jury to convict him of substantive crimes committed before the defendant was shown to have joined the conspiracy.

(3) The prosecutor was guilty of gross misconduct in making improper rebuttal argument which impugned the credibility and reputation of appellant's attorney and in presenting his personal opinion as to the appellant's guilt. This misconduct deprived petitioner of his rights under the Due Process Clause to a fair trial.

(4) Because the language in the substantive count of the indictment indicates the same agreement described in the conspiracy count and because the proofs of each offense at trial were the same, there was a violation of Licavoli's rights under the Double Jeopardy Clause of the Fifth Amendment.

For the reasons which follow we affirm.

The convictions underlying these appeals were based upon events which commenced in the summer of 1973 when a small construction company, BIM, Inc., sought to obtain two contracts for the excavation and underground installation work at a proposed shopping center in Akron, Ohio. The two contracts were together worth approximately $3,000,000.00, and in order to bid thereon the company was required by the principal contractor to secure performance bonds for the full amount of the contract. No surety company would write performance bonds in the amount required without a guarantee from the Small Business Administration ("SBA") that, should BIM default on the contract, the SBA would indemnify the surety company for up to 90% of the face value of the bond. The principals of BIM, John Bobal and Frank Ilacqua, contacted one Salvatore Lauricella, Chief of the Surety Bond Guarantee Program of the SBA in Washington, D.C. Bobal and Ilacqua offered and promised Lauricella $18,000.00 in return for the latter's assistance in obtaining SBA guarantees for the requisite performance bonds. With Lauricella's assistance, BIM eventually obtained the guarantees from the SBA and performance bonds from the Cincinnati Insurance Company. Thereafter, Bobal and Ilacqua refused to pay Lauricella the $18,000.00 which they had promised and instead stated that they would give him only $10,000.00 in full payment. Lauricella, obviously desiring to obtain the entire $18,000.00 promised him, approached his "buddy," defendant Dominic Licavoli, and asked for help. Licavoli in turn brought the problem to the attention of defendant Salvatore Finazzo. During a November 1, 1973 meeting between Licavoli and Finazzo--a meeting intercepted and recorded on tape by the Federal Bureau of Investigation ("FBI")--Finazzo agreed to help Lauricella recover the promised $18,000.00 from Bobal and Ilacqua.

At the November 1 meeting the two defendants drafted a letter to an individual referred to as "Skippy." This letter sought to enlist Skippy's aid in obtaining the full $18,000.00 promised to Lauricella. ² This letter was delivered to Skippy by Finazzo's daughter who was at the time visiting her hospitalized mother in Detroit. On December 10, 1973, Finazzo received a telephone call (also intercepted and recorded on tape by the FBI) from an unidentified person, who told Finazzo that the matter Finazzo requested "Skip" to handle in Finazzo's letter to Skip would be "straightened out in full" on December 14, 1973. On or about December 14, 1973, Bobal and Ilacqua each wrote a check in the amount of $11,500.00 on their company account, which they then cashed. Lauricella flew to Detroit on the same day, and the government claimed at trial that the $18,000.00 debt owed Lauricella was paid by Bobal and Ilacqua in Detroit on December 14, 1973.

I.

Finazzo and Licavoli contend that the Double Jeopardy Clause of the Fifth Amendment prevents their cumulative punishment for the substantive bribery charges of counts I and II and for the conspiracy charges of count V. Finazzo in addition contends that the Double Jeopardy Clause prevents his cumulative punishment for the same substantive bribery counts and his conviction on the Travel Act violation (count IV).

The Double Jeopardy Clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S.Const.Amend. V. It was held in North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) that the Double Jeopardy Clause provides three separate protections. It "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. at 717, 89 S.Ct. at 2076. Defendants' claims here involve only the third protection, that against multiple punishments for the same offense. ³

In a careful and articulate opinion, United States District Judge Horace W. Gilmore, who presided at the jury trial, rejected each of the defendants' double jeopardy claims. United States v. Finazzo, 520 F.Supp. 1085 (E.D.Mich.1981). Recent decisions of the United States Supreme Court and indeed of our circuit have discussed the application of the Double Jeopardy Clause and, with respect to federal criminal offenses at least, have made it clear that where separate offenses have been charged and tried in the same proceeding, the question whether separate punishments may be imposed is primarily one of Congressional intent.

In Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), the Supreme Court considered a District of Columbia court's imposition of consecutive punishment for rape and felony murder committed in the course of rape. The Court held that the rape itself was a lesser and included offense of the felony murder charge and that Congress had not authorized consecutive sentences under such circumstances. The Court observed:

The Double Jeopardy Clause at the very least precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so. The Fifth Amendment guarantee against double jeopardy embodies in this respect simply one aspect of the basic principle that within our federal constitutional framework the legislative power, including the power to define criminal offenses and to prescribe the punishments to be imposed upon those found guilty of them, resides wholly within the Congress. If a federal court exceeds its own authority by imposing multiple punishments not authorized by Congress, it violates not only the specific guarantee against double jeopardy, but also the constitutional principle of separation of powers in a manner that trenches particularly harshly on individual liberty.

Whalen, 445 U.S. at 689, 100 S.Ct. at 1436 (citations and footnotes omitted).

Left uncertain in Whalen was whether the Double Jeopardy Clause would prohibit multiple punishment in a situation where Congress clearly intended for multiple punishment to exist. That question was answered in Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). While admitting that the decisional law in the area was a "veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator," Justice Rehnquist in Albernaz v. United States, 450 U.S. 333, 343, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275 (1981), affirmed a Fifth Circuit determination that...