U.S. v. Garafano, 95-1127
| Decision Date | 31 July 1995 |
| Docket Number | No. 95-1127,95-1127 |
| Parties | UNITED STATES of America, Appellee, v. Gary GARAFANO, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
John A. MacFadyen, Providence, RI, for appellant.
Margaret E. Curran, Asst. U.S. Atty., with whom Sheldon Whitehouse, U.S. Atty., and Craig N. Moore, Asst. U.S. Atty., Providence, RI, were on brief, for the U.S.
Before TORRUELLA, Chief Judge, BOUDIN and STAHL, Circuit Judges.
In 1993, Gary Garafano was tried under a single-count indictment, under the Hobbs Act, 18 U.S.C. Sec. 1951, for extortion under color of official right. The substance of the charge was that Garafano had extorted money from Forte Brothers, a construction firm with city contracts, threatening otherwise to cease authorizing construction work performed by the firm for the city. Garafano was at that time an official of the Providence, Rhode Island, Department of Public Works.
At trial, James Forte, the firm's vice president, testified that Garafano had initially demanded $8,000 and that he (Forte) gave the $8,000 to Steven Tocco, a supervisor in his firm, for delivery to Garafano. Tocco testified that he delivered the $8,000 to Garafano, that he made additional payments to Garafano (for a total of $100,000), and that Forte Brothers inflated its billings to the city to cover the payments. Garafano denied receiving any payments from Forte Brothers. The jury convicted him on a general verdict that did not indicate whether the jury had found multiple payments or only a single one.
Whether there was one payment or multiple payments affected the sentencing guideline range, see United States v. Garafano, 36 F.3d 133, 134 (1st Cir.1994), and this was the principal subject of controversy at the original sentencing hearing. There, defense counsel took the position that only the initial $8,000 payment was supported by adequate evidence and that Tocco's testimony as to further payments was an attempt to conceal his own pocketing of the money. The prosecutor replied that the court lacked "discretion to piecemeal the jury's verdict in this case."
The district judge concluded that Garafano should be sentenced on the premise that Garafano had engaged in multiple extortions amounting to $100,000, and the court sentenced Garafano accordingly. However, the judge made one or two remarks that suggested that he might be agreeing with the prosecutor's apparent suggestion that a challenge to Tocco's trial testimony was effectively a collateral attack on the jury's verdict. Garafano appealed from his sentence, claiming that the district court had refused to make an independent assessment of the Tocco testimony.
On the appeal, the government conceded the jury verdict did not resolve the question of whether there had been one bribe or multiple bribes, but it asserted that the district judge had made an independent assessment. We agreed that this was likely but "to remove the shadow of uncertainty" we determined to remand, pointing out that the potential impact on the sentence was significant and that it would take very little effort to resolve the uncertainty. Garafano, 36 F.3d at 135-36. We declined the government's suggestion that we retain jurisdiction and also declined defense counsel's alternative request for an entirely new sentencing hearing. Instead, we said the following (36 F.3d at 136):
We propose to vacate the existing sentence and remand the matter to the district court for resentencing. The district court has already given Garafano a chance to argue his evidentiary position in full and no request was made by defense counsel to offer new evidence; if the district court did (at the earlier hearing)--or did not then but now does--find (independently of the jury verdict) that bribes continued until December 1990 and were around $100,000, the court is free to say so summarily and to reimpose the same sentence. No additional proceedings, or further explanation or findings, are required. See United States v. Savoie, 985 F.2d 612, 620-21 (1st Cir.1993).
Conversely, the district court is free to order any further proceedings it deems appropriate before imposing sentence. It may do so if there was an actual misunderstanding at the original sentencing as to the district court's authority, or merely because the court thinks that this would be useful to it. But if the court does change the factual premise on which it sentences Garafano--and thereby alters the guideline range available--we think that it would be within the spirit of the rules to provide counsel and the defendant an opportunity to allocute again.
On remand, the district court invited both sides to provide written submissions detailing the support for their respective positions. Defense counsel argued that there was not enough reliable evidence to support findings of multiple bribes in excess of $8,000, and also submitted an affidavit from Anthony Stanzione, a city engineer during Garafano's service with the Public Works Department. Stanzione said that he oversaw daily work on the job sites and approved the bills and said that the Forte Brothers' invoices did not, to the best of Stanzione's knowledge, reflect inflated bills. He also made other statements that in certain respects supported Garafano's testimony at trial. Garafano's counsel requested an evidentiary hearing, which the prosecutor opposed.
After further written exchanges, the district court held a new sentencing hearing on December 13, 1994. At the conclusion, the district judge said: "There is no doubt in my mind that at the earlier hearing I independently found that bribes continued until December 1990 and were around one hundred thousand dollars." As to the request for an evidentiary hearing, the district judge said that "the testimony as a whole supports Tocco and I see nothing in Stanzione's affidavit that steers me in another direction." Accordingly, the district court reimposed the original sentence.
Garafano has now appealed again. On this appeal, Garafano's main argument is that the district court abused its discretion when it declined to hear Stanzione testify. The government says, correctly, that this court's mandate was fully satisfied by the district court. The instructions on remand explicitly permitted the district court to determine...
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