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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
___________________
Sheldon Whitehouse, United
___________________

States

States Attorney,

Attorney,

and

with w

Craig N. Moo
______________

Assistant United States Attorney, were on brief for the United Stat

____________________

August 7, 1995
____________________

BOUDIN, Circuit Judge.


_____________

under

U.S.C.

a single-count

In 1993, Gary Garafano was tried

indictment, under

1951, for extortion under color

The substance

of the charge

the

Hobbs Act,

18

of official right.

was that Garafano

had extorted

money

from Forte

contracts,

Brothers, a

threatening

construction

work

Garafano was

at that

construction

otherwise

performed

time an

by

to

the

firm with

cease

firm

official

authorizing

for

of the

city

the

city.

Providence,

Rhode Island, Department of Public Works.

At

testified

trial,

James

Forte,

that Garafano

had

the

firm's

vice

president,

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

payments

to Garafano

(for a

total of

made additional

$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
________

principal

hearing.

subject of controversy

at the original sentencing

There, defense counsel took the

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the

position that only

the initial $8,000 payment was supported by adequate evidence

and

that Tocco's

attempt

to conceal

prosecutor

replied

testimony as

his own

that

to further

pocketing

the

court

payments was

of the

lacked

money.

an

The

"discretion to

piecemeal the jury's verdict in this case."

The

sentenced

multiple

sentenced

district judge

on

the

concluded that

premise

that

extortions amounting

to

Garafano accordingly.

or two remarks that suggested

Garafano

Garafano

$100,000,

had

should be

engaged

and the

in

court

However, the judge made one

that he might be agreeing with


_____

the

prosecutor's apparent

suggestion

that a

challenge

to

Tocco's trial testimony

was effectively a

on the jury's verdict.

Garafano appealed from his sentence,

claiming

that the

district

court had

collateral attack

refused

to make

an

independent assessment of the Tocco testimony.

On

did not

the appeal, the government conceded the jury verdict

resolve the question

bribe or multiple bribes,

judge had

made an

but it asserted that

independent assessment.

this was likely but "to

determined

of whether there had

been one

the district

We agreed

that

remove the shadow of uncertainty" we

to remand, pointing out that the potential impact

on the sentence

was significant and that it

little effort to resolve the uncertainty.

would take very

Garafano,
________

36 F.3d

at

135-36.

retain

We declined

jurisdiction

and

the government's suggestion that we

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

resentencing.

to

the

district

court

for

The district court has already given

Garafano a chance to argue his evidentiary position


in full and no request was made by
to

offer new evidence;

(at the earlier


does

defense counsel

if the district

hearing)

court did

or did not then

but now

find (independently of the jury verdict) that

bribes

continued

around

$100,000, the

summarily

until

December

court

and to reimpose

additional proceedings,
findings,

are

is

1990
free

to

say

the same sentence.

or further

required.

and

were
so
No

explanation or

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

so if there

was

imposing sentence.

an

actual

It may do

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


thereby

alters the

think that
rules to

guideline range

it would
provide

be within

counsel

and

opportunity to allocute again.

available

the spirit of
the

defendant

and
we
the
an

On

remand, the

provide written

respective

not

invited

submissions detailing the

positions.

both sides

to

support for their

Defense counsel argued that there was

enough reliable evidence to support findings of multiple

bribes in

from

district court

excess of $8,000, and also

Anthony Stanzione,

service with

the Public

that he oversaw daily

bills and said that the

a city

submitted an affidavit

engineer during

Works Department.

Garafano's

Stanzione

said

work on the job sites and approved the

Forte Brothers' invoices did not, to

-4-4-

the best

He

of Stanzione's

also made

other

knowledge, reflect

statements

that

in

supported Garafano's testimony at trial.

requested

an

evidentiary

hearing,

inflated bills.

certain

respects

Garafano's counsel

which

the

prosecutor

opposed.

After further written exchanges, the district court held

new sentencing

hearing

conclusion, the district

my mind that

at the

on

December 13,

judge said:

earlier hearing

1994.

"There is

At

the

no doubt in

I independently

found

that bribes continued until December 1990 and were around one

hundred

thousand

evidentiary

testimony

dollars."

hearing,

as a

the

to

district

whole supports

Stanzione's affidavit

Accordingly,

the

As

the

judge

Tocco and

that steers me in

district

court

request

said

for

that

I see

an

"the

nothing in

another direction."

reimposed

the

original

this

appeal,

sentence.

Garafano

Garafano's

its

has now

appealed

main argument is

discretion when it

again.

On

that the district

declined to hear

court abused

Stanzione testify.

The government says, correctly, that this court's mandate was

fully satisfied

remand explicitly

by the district court.

The instructions on

permitted the district court

to determine

that

it

"did

(independently of

(at

the

the

earlier

jury verdict)

hearing)

that bribes

find

continued

-5-5-

until

December 1990 and

F.3d at 136.

were around $100,000

. . .

."

36

We said that,

say

so

in that event,

summarily,

provide

further explanations

sentence.

Although

Id.
___

This

or

no

the district court

additional

findings,

and

is just what

the district court

could

proceedings

reimpose

the

or

same

the district

judge did.

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

independently

of the

not change

mandate.

if we

The

viewed the

right to

matter

present live

testimony at sentencing is not automatic and is reviewed only

for abuse of

F.2d

discretion.

364, 367

(1st

See United States


___ _____________

Cir. 1989).

It

v. Gerante, 891
_______

is fairly

common for

district courts to consider affidavits, proffers and far less

formal

sources

of

where--as here--the

information

at

sentencing,

sentencing judge

especially

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

affidavit,

the

the substance of what was

district

court

-6-6-

would

contained in his

still

have accepted

Tocco's version of

and

if there

events.

were, we

There is no

would reject

it--that the

judge was rationally obligated to accept

of events.

could

have

Indeed, at least some

been

accepted

claim by Garafano--

district

Stanzione's version

of Stanzione's assertions

without

disproving

Tocco's

testimony.

Defense

counsel

says

important, the judge needs

that

where

credibility

to listen to the witness

is

testify

in his own

words in open

argument that there

testimony

not

possibilities

depending on

can be

court; and counsel

were bound to be helpful

captured

that

in

would

the

have

the facts, and

fashioned.

considerations

It

are

determination not

is

part

to

added at

details in the

proffer.

greater

There

or

lesser

we think that no

enough to

of

the

hear live

are

force

absolute rule

say here

calculus

oral

and

testimony here

that

these

that

the

was not

an

abuse of discretion.

After all, the district court

evidence

present at

on multiple

trial.

testimony was

payments that

When

made, the

piece to fit into

had heard all of the live

either

side sought

to

the belated proffer

of Stanzione's

district

only one

judge had

a puzzle with which the judge

more

was already

familiar.

court

On

the facts

made a legitimate

before us,

we think

practical judgment

the district

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

suggestion is without merit.

sentencing

hearing.

The

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

range available."

36 F.3d at 136.

not

the

change either

alters

the guideline

The district

factual predicate

court did

(multiple

bribes

amounting to $100,000) or the guideline range.

At oral argument, counsel

assuming

for Garafano suggested

that the mandate was complied

court, this court

that,

with by the district

lacked authority to fashion such a limited

remand; put differently, the suggestion is that this court by

vacating

Garafano

the

to

original

start

sentence

from ground

sentencing hearing had

automatically

zero,

not occurred.

as

entitled

if the

We flatly

original

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.

affirm, modify,
judgment,

2106 to

vacate, set aside

decree, or

order

-8-8-

of

or reverse
a court

any

lawfully

brought
cause

before it for
and

direct the

review, and may


entry

of such

remand the
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

appellate courts the

the particular problem

efficient and

formula

flexibility to adapt their

is

to allow

mandates to

discerned on appeal and to provide an

sensible solution.

This

provision authorizes

just the kind of "middle way" that this court adopted when it

rejected the government's request that we

question to

the

district court

pose only a single

and Garafano's

alternative

request that the district court be required to start afresh.

The

apparent.

reason

why

we

original

multiple

middle

course

the case, the district court had

sentencing

bribes.

expectation)

simply on

the

is

An entirely new sentencing hearing was unnecessary

if, as we suspected was

the

followed

the

the jury

made

and obtain a

independent

On the

other hand,

district

judge said

verdict, then

would be necessary, and we

that authority

an

embraced both possibilities.

if (contrary

that

he

some further

of

to our

had relied

proceedings

wanted the district court to have

without having to

new mandate.

finding

at

report back to

this court

Accordingly, our limited


_______

remand

Of course,

we would not

violence to the substance of

designed to

give

frame a remand order

Rule 32(c)(3)(C).

the defendant

an opportunity

that did

That rule is

"to make

-9-9-

statement

and present any

information in mitigation

of the

sentence."

Garafano and his

full at the first

hearing.

counsel had this opportunity in

There is nothing in

its rationale that requires a

the rule or

defendant to be given a second

opportunity if all else remains unchanged.

In this

case, all

district court

else did

reaffirmed its

bribes, a $100,000

original finding

total, and the original

The defendant had no more right

a new allocution

remain unchanged once

under these circumstances to

than to a new presentence

report.

that Stanzione's proffer

on

new allocution,

base a

effectively rejected by the district

argument.

Affirmed.
________

of multiple

guideline range.

counsel's suggestion

which to

the

after the

Defense

was something

proffer was

judge, is not a serious

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