U.S. v. Tocco

• Decision Date: 11 June 1999
• Docket Number: Nos. 98-2312,98-2426,s. 98-2312
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellee/ Cross-Appellant (99-1003), v. Jack William Tocco, Defendant-Appellant (98-2312/2426)/ Cross-Appellee. ; 99-1003 Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 401

200 F.3d 401 (6th Cir. 2000)

United States of America, Plaintiff-Appellee/ Cross-Appellant (99-1003), v. Jack William Tocco, Defendant-Appellant (98-2312/2426)/ Cross-Appellee.

Nos. 98-2312, 98-2426; 99-1003

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: June 11, 1999

Decided and Filed: January 5, 2000

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

Frank D. Eaman, BELLANCE, BEATTIE & DeLISLE, Harper Woods, Michigan, for Appellant.

Kathleen Moro Nesi, OFFICE OF THE U.S. ATTORNEY, Detroit, Michigan, for Appellee.

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

OPINION

HARRY W. WELLFORD, Circuit Judge.

This criminal prosecution pertains to one of six defendants who were tried on charges of conspiracy to conduct and participate in a Detroit-based racketeer influenced and corrupt organization.¹ Appellant Jack W. Tocco ("Tocco") was convicted on two counts of conspiracy in violation of the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. § 1962(d) ("RICO") -- one for engaging in a pattern of racketeering activity and one for collection of an unlawful debt (Counts One and Two) -- and one count of conspiracy to interfere with commerce by extortion in violation of 18 U.S.C. § 1951 ("Hobbs Act") (Count Six). Both Tocco and the government now appeal -- Tocco from the jury convictions, the government from the sentence imposed by the trial judge.

A. Background²

On March 14, 1996, Tocco was charged in a twenty-five (25)-count indictment along with sixteen (16) co-defendants on charges relating to the activities of a group called "Cosa Nostra," also known as "the Outfit" or, as is known to the general public in the United States, "the Mafia." Cosa Nostra allegedly is made up of "families" in various cities, including Detroit, and allegedly is involved in illegal activities such as extortion, illegal lotteries ("numbers"), bookmaking, loansharking, and acquiring undisclosed and illegal investments in gambling casinos. The indictment herein alleged that Tocco had been involved in the Detroit branch of the national Mafia organization, and that he had been the "Boss of the Detroit Cosa Nostra Family" since about 1979. The district court severed the trial of Tocco and his five co-defendants from the trials of the others named in the indictment.

On January 27, 1998, trial commenced against Tocco and his co-defendants. Approximately three months later, on April 29, 1998, the jury convicted Tocco on the two RICO conspiracies and the Hobbs Act conspiracy mentioned above. It acquitted him on ten counts of extortion or attempted extortion. On October 23, 1998, the district court denied the government's request for a forfeiture judgment against all the defendants.

On November 13, 1998, the district court sentenced Tocco to twelve months and one day in prison, departing downward ten levels from the applicable guideline range, and recommended that Tocco's sentence be served in a community correction center. Tocco filed a timely appeal from the district court's judgment of conviction, and the government timely appealed Tocco's sentence.

B. Voir Dire

Tocco first challenges the adequacy of the jury voir dire. A district court's manner of conducting voir dire is not reversible unless the court abused its discretion. See United States v. Phibbs, 999 F.3d 1053, 1071-72 (6th Cir. 1993). It is well-settled that the district court enjoys broad discretion in establishing its voir dire procedures. See United States v. Lanier, 33 F.3d 639, 657-59 (6th Cir. 1994) (citing Mu'Min v. Virginia, 500 U.S. 415, 427 (1991)), vacated on other grounds, 114 F.3d 84 (6th Cir. 1997); see also Deel v. Jago, 967 F.2d 1079, 1087 (6th Cir. 1992) (same).

Tocco claims that he was denied his right to a fair trial because the district court declined to permit specific questions during voir dire on the subject of Mafia prejudice. Tocco's counsel filed a motion requesting that the prospective jurors be asked whether they possessed any strong opinions about the Mafia, or whether they believed that Italian-Americans were more likely to be members of organized crime. The motion was accompanied by Detroit newspaper articles referring to "Detroit's Mob" and the Detroit Mafia. Tocco claims that the district court's denial of that motion constituted reversible error because of the very high-profile nature of the case and the substantial unsympathetic publicity in the media.

The government argues that the district court was not compelled to allow questions on the specific issue of Mafia prejudice, and that the questions posed to the prospective jurors were adequate to ensure Tocco a fair and impartial jury. The district court asked the prospective jurors to answer the following in the juror questionnaire:

41. You are being asked to participate in jury selection process that will select a jury to try a criminal case in which the government prosecutors charge several defendants with involvement in a racketeering conspiracy. The government alleges that the defendants are participating in a conspiracy call [sic] "Cosa Nostra" or the "Mafia." To the best of your knowledge, have you heard anything about this case? ___ yes ___ no.

The district court informed counsel that it would question individual jurors more specifically about the matter if the juror's answer to that question was affirmative. Otherwise, the court refused to ask the jury pool more specific questions pertaining to the Mafia.

While we are aware that the district court has broad discretion in such matters, we are mindful that this case attracted much media attention. This court has indicated that the district court is in the best position to determine the appropriate areas of inquiry in such cases.

[W]ide discretion [is] granted to the trial court in conducting voir dire in the area of pretrial publicity and in other areas of inquiry that might tend to show juror bias. Particularly with respect to pretrial publicity, we think this primary reliance on the judgment of the trial court makes good sense. The judge of that court sits in the locale where the publicity is said to have had its effect, and brings to his evaluation of any such claim his own perception of the depth and extent of news stories that might influence a juror.

Lanier, 33 F.3d at 657 (citing Mu'Min v. Virginia, 500 U.S. 415, 427 (1991)). The Supreme Court and this circuit have set out the principles involved in determining whether the failure to ask specific questions amounts to "an unconstitutional abuse of discretion":

There is no constitutional presumption of juror bias for or against members of any particular racial or ethnic groups. . . . [T]here is no per se constitutional rule in such circumstances requiring inquiry as to racial prejudice. . . . Only when there are more substantial indications of the likelihood of racial or ethnic prejudice affecting the jurors in a particular case does the trial court's denial of a defendant's request to examine the jurors' ability to deal impartially with this subject amount to an unconstitutional abuse of discretion.

Rosales-Lopez v. United States, 451 U.S. 182, 190 (1981) (citations omitted).

It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.

United States v. Blanton, 719 F.2d 815, 830 (6th Cir. 1983). It suffices "if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Murphy v. Florida, 421 U.S. 794, 800 (1975) (quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)). See also Hill v. Brigano, No. 199 F.3d 833, 843-44 (6th Cir. Dec. 22, 1999).

Having said all that, we still believe the district court would have been well-advised to allow more detailed questioning to reveal an individual prospective juror's prejudice, if any, against Cosa Nostra and the obvious Italian heritage of the defendants and the Sicilian or Italian connection with the Mafia. We decided similar issues concerning voir dire method and jury selection in a highly publicized case, United States v. Blanton, 719 F.2d 815 (6th Cir. 1983) (en banc). The court majority, in considering challenges to the sufficiency of voir dire in the criminal trial of a recent Tennessee governor, concluded that no reversible error occurred, although the trial judge probably did not employ the best voir dire procedures and we would not recommend the manner of such voir dire. See id. at 819, 822. We have the same reservations, as did the court majority in Blanton (and the writer was one of those judges), about voir dire and jury selection in this case.

Nevertheless, the district court sought to ensure the fairness of the jury selection through more general, progressive questioning. After obtaining the prospective jurors' answers to the "Mafia" question in the questionnaire, the court followed up with each juror individually and asked more specific questions about their knowledge of the case. Of the twelve jurors that ultimately were chosen to sit at trial, seven had heard nothing about the case, and the other five had only had minimal knowledge. The five that had minimal knowledge of the case individually assured the district court that they could, despite that knowledge, render a fair and impartial verdict. Furthermore, the jurors all informed the court of...