
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1127                              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                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            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, were on brief for the United States.                                 ____________________                                    August 7, 1995                                 ____________________                 BOUDIN, Circuit Judge.  In 1993, Gary Garafano was tried                         _____________            under  a single-count  indictment, under  the  Hobbs Act,  18            U.S.C.    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                                         -2-                                         -2-            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                                         -3-                                         -3-            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                                         -4-                                         -4-            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            that  it   "did  (at  the   earlier  hearing)  .  .   .  find            (independently of  the  jury verdict)  that bribes  continued                                         -5-                                         -5-            until  December 1990 and  were around $100,000  . . .  ."  36            F.3d at 136.                 We said that,  in that event,  the district court  could            say  so  summarily,  provide  no  additional  proceedings  or            further explanations  or  findings,  and  reimpose  the  same            sentence.   Id.  This  is just what  the district  judge did.                        ___            Although  the district court  invited the parties  to restate            their positions, and the court reviewed again the presentence            report and associated notes, it did so as part of  the effort            to assure itself that it had at the original sentencing "made            the requisite evaluation independent of  the jury verdict . .            . ."                 The  result would  not change  if we  viewed the  matter            independently  of the  mandate.   The  right to  present live            testimony at sentencing is not automatic and is reviewed only            for abuse of  discretion.  See United States  v. Gerante, 891                                       ___ _____________     _______            F.2d  364, 367  (1st  Cir. 1989).   It  is fairly  common for            district courts to consider affidavits, proffers and far less            formal  sources  of  information  at  sentencing,  especially            where--as here--the  sentencing judge  presided over a  trial            that involved the same issues presented at sentencing.                   In this instance, we read the district court's ruling as            a determination by the district judge that, even if Stanzione            had testified to  the substance of what was  contained in his            affidavit,  the  district  court  would  still  have accepted                                         -6-                                         -6-            Tocco's version of  events.  There is no  claim by Garafano--            and  if there  were, we  would reject  it--that the  district            judge was rationally obligated to accept  Stanzione's version            of events.   Indeed, at least some  of Stanzione's assertions            could   have  been   accepted   without  disproving   Tocco's            testimony.                 Defense   counsel  says   that   where  credibility   is            important, the judge needs  to listen to the witness  testify            in his own  words in open  court; and counsel  added at  oral            argument that there  were bound to be helpful  details in the            testimony  not   captured  in   the  proffer.     There   are            possibilities   that  would  have  greater  or  lesser  force            depending on  the facts, and  we think that no  absolute rule            can be  fashioned.   It  is  enough to  say here  that  these            considerations   are  part  of  the  calculus  and  that  the            determination not  to  hear live  testimony here  was not  an            abuse of discretion.                 After all, the district court  had heard all of the live            evidence  on multiple  payments that  either  side sought  to            present at  trial.  When  the belated proffer  of Stanzione's            testimony was  made, the  district  judge had  only one  more            piece to fit into  a puzzle with which the judge  was already            familiar.   On  the facts  before us,  we think  the district            court  made a legitimate  practical judgment  that converting                                         -7-                                         -7-            the  proffer into live testimony would not materially improve            the court's ability to make this judgment.                 Finally, Garafano suggests that, in violation of Fed. R.            Crim. P. 32(c)(3)(C), he was improperly denied an opportunity            for  allocution  at  his  second  sentencing  hearing.    The            suggestion is without merit.   This court said in its mandate            that an opportunity to allocute again should  be afforded "if            the [district] court does change the factual premise on which            it  sentences  Garafano" and  "thereby  alters  the guideline            range available."   36 F.3d at 136.   The district  court did            not  change either  the  factual predicate  (multiple  bribes            amounting to $100,000) or the guideline range.                 At oral argument, counsel  for Garafano suggested  that,            assuming  that the mandate was complied  with by the district            court, this court  lacked authority to fashion such a limited            remand; put differently, the suggestion is that this court by            vacating   the  original   sentence  automatically   entitled            Garafano  to  start  from ground  zero,  as  if the  original            sentencing hearing had  not occurred.  We flatly  reject this            kind of legal formalism that sacrifices substance in favor of            ritual.                 Federal  appellate  courts,   including  the  courts  of            appeals as well as the Supreme Court, have been granted broad            authority under 28 U.S.C.   2106 to                 affirm, modify,  vacate, set aside  or reverse  any                 judgment,  decree, or  order  of  a court  lawfully                                         -8-                                         -8-                 brought  before it for  review, and may  remand the                 cause  and  direct the  entry  of such  appropriate                 judgment, decree, or order, or require such further                 proceedings to  be  had as  may be  just under  the                 circumstances.            One  effect  of  this long-established  formula  is  to allow            appellate courts the  flexibility to adapt their  mandates to            the particular problem  discerned on appeal and to provide an            efficient and  sensible solution.  This  provision authorizes            just the kind of "middle way" that this court adopted when it            rejected the government's request that we  pose only a single            question to  the  district court  and Garafano's  alternative            request that the district court be required to start afresh.                  The   reason  why  we  followed  the  middle  course  is            apparent.  An entirely new sentencing hearing was unnecessary            if, as we suspected was  the case, the district court had  at            the  original  sentencing  made  an  independent  finding  of            multiple  bribes.   On the  other hand,  if (contrary  to our            expectation)  the  district  judge said  that  he  had relied            simply on  the jury  verdict, then  some further  proceedings            would be necessary, and we  wanted the district court to have            that authority  without having to  report back to  this court            and obtain a  new mandate.   Accordingly, our limited  remand                                                          _______            embraced both possibilities.                 Of course,  we would not  frame a remand order  that did            violence to the substance of  Rule 32(c)(3)(C).  That rule is            designed to  give  the defendant  an opportunity  "to make  a                                         -9-                                         -9-            statement  and present any  information in mitigation  of the            sentence."  Garafano and his  counsel had this opportunity in            full at the first  hearing.  There is nothing in  the rule or            its rationale that requires a  defendant to be given a second            opportunity if all else remains unchanged.                 In this  case, all  else did  remain unchanged once  the            district court  reaffirmed its  original finding  of multiple            bribes, a $100,000  total, and the original  guideline range.            The defendant had no more right  under these circumstances to            a new allocution  than to a new presentence  report.  Defense            counsel's suggestion  that Stanzione's proffer  was something            on  which to  base a  new allocution,  after the  proffer was            effectively rejected by the district  judge, is not a serious            argument.                 Affirmed.                 ________                                         -10-                                         -10-
