
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2379                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    GARY GARAFANO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                             and Young,* District Judge.                                         ______________                                 ____________________            John A. MacFadyen for appellant.            _________________            Margaret E.  Curran, Assistant United  States Attorney, with  whom            ___________________        Sheldon  Whitehouse,  United  States  Attorney, and  Craig  N.  Moore,        ___________________                                  ________________        Assistant United States Attorney, was on brief for the United States.                                 ____________________                                  September 23, 1994                                 ____________________                                    ____________________        *Of the District of Massachusetts, sitting by designation.                 BOUDIN, Circuit Judge.   In December  1992 a grand  jury                         _____________            indicted  Gary Garafano on one count of extortion under color            of official right under the Hobbs Act, 18 U.S.C.   1951.  The            gist  of the  charge was  that from  spring 1989  to December            1990,  Garafano, then  an official  in the  Providence, Rhode            Island,  Department of  Public Works,  had extorted  payments            from  a road  paving  firm doing  work  for the  city,  Forte            Brothers Construction Corporation ("Forte Brothers").                   At  a first trial  in June 1993 the  jury deadlocked.  A            second  trial was  conducted  in the  fall.   At  trial,  the            government offered testimony  of James Forte,  vice president            of Forte Brothers,  that during  1988 and 1989  the firm  was            engaged in road repair work for the city.  In  or about March            1989,  said Forte,  he met  with Garafano  and agreed  to the            latter's demand for $8,000, without which Garafano threatened            to cease authorizing  work to be performed by Forte Brothers.            Forte  also testified that he gave the money to Steven Tocco,            the firm's supervisor for the road repair work, to deliver to            Garafano.                 Tocco testified that he delivered the money to Garafano.             Tocco  also testified  that in  response to  further demands            from  Garafano,  Tocco  made  somewhere  between  12  and  20            additional  payments  to  Garafano  between  April  1989  and            December 1990, and that  the total amount of the  payments to            Garafano  was around $100,000.   Much of the  money came from                                         -2-                                         -2-            inflated billings by Forte Brothers on individual road repair            and  other projects for  the city.   According to prosecution            testimony, Garafano authorized various of these projects  and            expedited payments.                 Garafano  himself  testified  and  denied  demanding  or            receiving  any  money  from   Forte  Brothers.    Various  of            Garafano's  subsidiary  statements were  contradicted  by the            director of  his  city department  but  the director  had  no            direct knowledge of whether Garafano had received bribes.  On            October  4, 1993, the jury in the second trial found Garafano            guilty.   The  verdict was  a general  verdict on  the single            count charged  and provided  no indication of  which episodes            the jury found to have occurred.                 On December 14, 1993, the  trial judge held a sentencing            hearing.   At the hearing  defense counsel took  the position            that only the  first payment of $8,000 in March 1989 had been            adequately supported  by evidence and  that Tocco's testimony            as to further payments  was not credible.  It  was apparently            the  defense position  that  after the  first incident  Tocco            himself  had been stealing from the firm and claiming falsely            that the payments had been made to Garafano.  This contention            was pertinent to sentencing in several respects.                 The presentence  report  had proposed  that Garafano  be            sentenced under  the November 1993 version  of the Sentencing            Guidelines which  was in  effect at  the time of  sentencing.                                         -3-                                         -3-            The report recommended  that the court  fix the base  offense            level at  10, as provided by U.S.S.G.   2C1.1(a), and that it            add two levels  as a specific offense  adjustment because the            offense involved  more than  one  bribe or  extortion. Id.                                                                      ___            2C1.1(b)(1).   In addition, the report  recommended a further            six-level  adjustment  based on  the  amount  of the  payment            received by  Garafano; the guidelines provide  a table fixing            such  an adjustment at six levels where the amount is greater            than  $70,000.  Id.      2C1.1(b)(2)(A),  2F1.1(b)(1)(G).   A                            ___            payment of $8,000 would have added only two levels.  Id.                                                                 ___                 Prior to November 1989,  the guidelines did not included            the  two-point adjustment  for multiple  bribes.   Garafano's            counsel  objected  that   without  the  additional   payments            allegedly made through Tocco,  the extortionate conduct would            have  ceased prior  to  the effectiveness  of that  guideline            amendment.   Counsel  argued that  if the  conduct  did cease            before the  amendment, then  ex post facto  concerns required                                         _____________            that the two points  not be included.  Our  decisions confirm            that where a guideline amendment increases the sentence after            the  offense, the  guidelines in  effect at  the time  of the            offense  should  be  used.     See  e.g.,  United  States  v.                                           ___  ____   ______________            Rodriguez, 26 F.3d 4, 7-8 (1st Cir. 1994).            _________                 More  important, if Tocco's  testimony were disregarded,            then  the total  amount  gained by  the extortionate  conduct            would be only $8,000.  This would eliminate not only the two-                                         -4-                                         -4-            point adjustment for multiple bribes (since there would be no            second   bribe  proved)  but   also  the  proposed  six-point            adjustment based on  "the loss  or gain table".   Of  course,            Forte's testimony  alone, not  challenged  at the  sentencing            hearing, established  that Garafano had solicited  a bribe in            the  amount of  $8,000,  whether or  not Tocco  delivered the            money;  but  a single  $8,000  bribe would  have  reduced the            guideline range.                 At the  sentencing  hearing defense  counsel  asked  the            court  to  find  that  the  1989 version  of  the  guidelines            applied, asserting that  the jury may have based  its verdict            only on  the first $8,000  bribe, which counsel  described as            "the only corroborated event"  that the government had proved            to  the jury.   The  court replied,  "how can  you ask  me to            dissect what a jury has done?"  Counsel responded that "[t]he            guidelines allow you exactly that power . . . ."   Pressed as            to  why the  court should  disbelieve Tocco,  defense counsel            offered an  example of an asserted  contradiction between the            testimony of Tocco and other government witnesses.                 The prosecutor  replied that Tocco's testimony  had been            corroborated, and  then added: "I  don't think the  Court has            the discretion to piecemeal the jury's verdict in this case."            The  court replied:  "I  quite agree  with  you," adding  (to            defense counsel)  that "the reasons  [the prosecutor]  stated            are ample  in and of themselves."   The court went  on to say                                         -5-                                         -5-            that it agreed that "the facts of the case  reflect" that the            offense  occurred between  April 1989  and December  1990 and            showed   the  receipt   of  between   12  and   20  payments.            Accordingly the court rejected the ex post facto claim.                                               _____________                 Defense counsel  then went on  to argue at  even greater            length  that Tocco  should not  be believed.   This  time the            argument was to support counsel's claim that, in applying the            loss or gain table, the court should treat as proved only the            first $8,000.  The court listened courteously to the argument            and  then rejected  it,  saying that  "there was  substantial            evidence  . .  .  [that]  could  convince  a  jury  beyond  a            reasonable doubt."   Defense counsel then said  that the jury            could have convicted solely on the basis of the $8,000 bribe.            The  court replied:  "I'm not  going to  dissect this  jury's            verdict."                 After  other largely  unrelated  discussion,  the  court            heard final statements from defense counsel and Garafano.  It            then summed up:                    We have a base offense level of 10 in this case,                 and since there was more than one bribe, two points                 have  to be added.   And since  the amount involved                 approximately $100,000.00, that's an additional six                 points, which  gives a total adjusted  level of 18.                 He has  a criminal  history category of  one, which                 means the sentencing range is from 27 to 33 months.            Concluding that  Garafano had been motivated  by "sheer greed            and  nothing else," the court imposed a sentence of 31 months            imprisonment  and  a  $6,000  fine, together  with  an  order                                         -6-                                         -6-            requiring  Garafano to  make restitution  of $100,000  to the            city.  This appeal followed.                 The only issue on  appeal is the defense claim  that the            district court erred because it allegedly refused to make  an            independent assessment  of the  Tocco testimony and  make its            own finding  as to  whether bribes of  approximately $100,000            had been  paid during  a period  extending to December  1990.            The government agrees  that an independent determination  was            required  but  says  that the  district  court  made  such an            assessment.  We agree  with the government that  the district            court  probably did  make  an independent  assessment but  to            remove the shadow of uncertainty, we have decided to remand.                 The uncertainty  is apparent from our  recitation of the            facts.   Normally the trial court makes its own assessment of            the  facts  that  pertain  to sentencing,  drawing  on  trial            evidence, the presentence report, any evidence offered at the            hearing, and other appropriate sources.  See United States v.                                                     ___ _____________            Tavano, 12 F.3d 301, 306-07 (1st Cir. 1993).  Indeed, we have            ______            held  that a judge may  attribute conduct to  a defendant for            "relevant conduct" purposes even where a jury has declined to            convict on counts pertaining to  such conduct.  United States                                                            _____________            v. Carrozza, 4 F.3d 70, 80 (1st Cir. 1993), cert. denied, 114               ________                                 ____________            S.Ct. 1644  (1994); United States  v. Mocciola, 891  F.2d 13,                                _____________     ________            16-17 (1st Cir. 1989).                                         -7-                                         -7-                 Whether  the   trial  court  could  ever   be  bound  at            sentencing  by the jury's  determination against  a defendant            (e.g., through  collateral estoppel) is  an interesting issue             ____            but is  irrelevant here: the government agrees  that the jury            could  in  theory  have  convicted  solely  on  the  evidence            pertaining to the first  $8,000 bribe solicitation; and since            the jury delivered a general verdict there is no way to  tell            what it actually found as  to the number of bribes.   In sum,            even if a jury verdict against the defendant  on a fact issue                                   _______            could ever constrain the sentencing judge, but cf. Tavano, 12                                                           ___ ______            F.3d at 305,  307, this  jury verdict could  not resolve  the            amount and timing issues faced at sentencing.                 We have  read the sentencing transcript in  full and are            inclined to  think that the  trial judge, an  experienced and            respected jurist,  fully understood that he  could and should            decide  himself when the offense ended and how much was paid.            Further, his statement quoted above  ("the facts of the  case            reflect  . .  .") is  reasonably clear  evidence that  he did            resolve  those issues  against Garafano  and was  not relying            upon  the jury verdict or  any misinterpretation of  it.  Nor            does  Garafano argue on appeal that the evidence at trial was            insufficient  to  support  findings  at sentencing  that  the            bribes continued to December 1990 and equaled about $100,000.                 If this  were all, we  would affirm  without a  moment's            hesitation.  But we agree with Garafano that the record is at                                         -8-                                         -8-            least blurred by  the agreement  of the trial  judge and  the            prosecutor  that the  jury  verdict could  not be  dissected.            Quite likely  both meant only  that peering into  the verdict            was  infeasible and  served  no purpose;  but abstractly  the            prosecutor's words  could be  taken as  an argument  that the            jury  had resolved  the  issue of  timing and  amount against            Garafano and that this decision was binding.                   The prosecutor's statement--"I don't think the Court has            the discretion to piecemeal the jury's verdict in this case"-            - happens to  sound like  a refutation  of defense  counsel's                          _____            earlier  argument to the  court that "[y]ou  [the court] have            the ability,  the discretion in sentencing"  to determine the            amount  and  timing  of  the  loss.    As  government counsel            properly says  on appeal,  the prosecutor's statement  was an            "unfortunate"  choice  of words.    The  district judge  then            followed the prosecutor's statement by saying, "I quite agree            with you"  and telling defense counsel  that the prosecutor's            reasons  were  "ample"   basis  for  rejecting   the  defense            position.                 In  saying  that these  colloquies  leave  a measure  of            uncertainty,  we do  not  intend the  slightest criticism  of            either  the court  or  counsel.    Court colloquies  are  not            scripted   events  like  television   commercials  or  public            speeches.  Lawyers are usually trying to advance  and explain            conflicting positions, and the judge is seeking to resolve on                                         -9-                                         -9-            the spot  often arcane  issues and tangled  factual disputes.            In   this  case,  it  is  quite  likely  that  there  was  no            misunderstanding whatever.                 Still, the  difference between a total  offense level of            18, with a range of 27 to 33 months, and a total level of 12,            with a range  of 10  to 16  months, is  substantial; and  the            latter's maximum 16 months is just about half of the sentence                     _______            actually imposed.  It takes very little effort to resolve the            uncertainty.   Defense counsel  suggested at oral  argument a            remand for an entirely new sentencing hearing; the government            said  that if any remedy were needed, this court could retain            jurisdiction and simply ask the district court to clarify the            record.  We have in mind a third course.                 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).                                         -10-                                         -10-                 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.                 The sentence, but not the conviction, is vacated and the                                                          _______            case  remanded  for  resentencing  in  accordance  with  this                  ________            opinion.                                         -11-                                         -11-
