Professional Documents
Culture Documents
No. 95-1127
Appellee,
v.
GARY GARAFANO,
Defendant, Appellant.
____________________
____________________
Before
____________________
States
States Attorney,
Attorney,
and
with w
Craig N. Moo
______________
Assistant United States Attorney, were on brief for the United Stat
____________________
August 7, 1995
____________________
under
U.S.C.
a single-count
indictment, under
The substance
of the charge
the
Hobbs Act,
18
of official right.
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,
At
testified
trial,
James
Forte,
that Garafano
had
the
firm's
vice
president,
initially demanded
$8,000 and
to Garafano.
payments
to Garafano
(for a
total of
made additional
$100,000),
and that
payments.
Brothers.
The
did not indicate whether the jury had found multiple payments
Whether
there
was
one payment
or
multiple
payments
Garafano, 36 F.3d 133, 134 (1st Cir. 1994), and this was
________
principal
hearing.
subject of controversy
-2-2-
the
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
The
sentenced
multiple
sentenced
district judge
on
the
concluded that
premise
that
extortions amounting
to
Garafano accordingly.
Garafano
Garafano
$100,000,
had
should be
engaged
and the
in
court
the
prosecutor's apparent
suggestion
that a
challenge
to
was effectively a
claiming
that the
district
court had
collateral attack
refused
to make
an
On
did not
judge had
made an
independent assessment.
determined
been one
the district
We agreed
that
on the sentence
Garafano,
________
36 F.3d
at
135-36.
retain
We declined
jurisdiction
and
also
declined
defense
counsel's
-3-3-
alternative request
sentencing hearing.
remand
the
matter
resentencing.
to
the
district
court
for
defense counsel
if the district
hearing)
court did
but now
bribes
continued
around
$100,000, the
summarily
until
December
court
and to reimpose
additional proceedings,
findings,
are
is
1990
free
to
say
or further
required.
and
were
so
No
explanation or
v.
Conversely,
the
district
court
is free
to
appropriate
before
so if there
was
imposing sentence.
an
actual
It may do
misunderstanding
at the
original
useful to
it.
But if the
court does
change the
alters the
think that
rules to
guideline range
it would
provide
be within
counsel
and
available
the spirit of
the
defendant
and
we
the
an
On
remand, the
provide written
respective
not
invited
positions.
both sides
to
bribes in
from
district court
Anthony Stanzione,
service with
the Public
a city
submitted an affidavit
engineer during
Works Department.
Garafano's
Stanzione
said
-4-4-
the best
He
of Stanzione's
also made
other
knowledge, reflect
statements
that
in
requested
an
evidentiary
hearing,
inflated bills.
certain
respects
Garafano's counsel
which
the
prosecutor
opposed.
new sentencing
hearing
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
declined to hear
court abused
Stanzione testify.
fully satisfied
remand explicitly
The instructions on
to determine
that
it
"did
(independently of
(at
the
the
earlier
jury verdict)
hearing)
that bribes
find
continued
-5-5-
until
F.3d at 136.
. . .
."
36
We said that,
say
so
in that event,
summarily,
provide
further explanations
sentence.
Although
Id.
___
This
or
no
additional
findings,
and
is just what
could
proceedings
reimpose
the
or
same
the district
judge did.
to restate
the effort
. ."
The
result would
independently
of the
not change
mandate.
if we
The
viewed the
right to
matter
present live
for abuse of
F.2d
discretion.
364, 367
(1st
Cir. 1989).
It
v. Gerante, 891
_______
is fairly
common for
formal
sources
of
where--as here--the
information
at
sentencing,
sentencing judge
especially
presided over a
trial
had testified to
affidavit,
the
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
of events.
could
have
been
accepted
claim by Garafano--
district
Stanzione's version
of Stanzione's assertions
without
disproving
Tocco's
testimony.
Defense
counsel
says
that
where
credibility
is
testify
in his own
words in open
testimony
not
possibilities
depending on
can be
captured
that
in
would
the
have
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.
evidence
present at
on multiple
trial.
testimony was
payments that
When
made, the
either
side sought
to
of Stanzione's
district
only one
judge had
more
was already
familiar.
court
On
the facts
made a legitimate
before us,
we think
practical judgment
the district
that converting
-7-7-
the
for
allocution
at
his
second
sentencing
hearing.
The
be afforded "if
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
assuming
that,
vacating
Garafano
the
to
original
start
sentence
from ground
automatically
zero,
not occurred.
as
entitled
if the
We flatly
original
reject this
ritual.
Federal
appellate
courts,
including
the
courts
of
affirm, modify,
judgment,
2106 to
decree, or
order
-8-8-
of
or reverse
a court
any
lawfully
brought
cause
before it for
and
direct the
of such
remand the
appropriate
be
had as
may be
just under
the
circumstances.
One
effect
of
this long-established
efficient and
formula
is
to allow
mandates to
sensible solution.
This
provision authorizes
just the kind of "middle way" that this court adopted when it
question to
the
district court
and Garafano's
alternative
The
apparent.
reason
why
we
original
multiple
middle
course
sentencing
bribes.
expectation)
simply on
the
is
the
followed
the
the jury
made
and obtain a
independent
On the
other hand,
district
judge said
verdict, then
that authority
an
if (contrary
that
he
some further
of
to our
had relied
proceedings
without having to
new mandate.
finding
at
report back to
this court
remand
Of course,
we would not
designed to
give
Rule 32(c)(3)(C).
the defendant
an opportunity
that did
That rule is
"to make
-9-9-
statement
information in mitigation
of the
sentence."
hearing.
There is nothing in
the rule or
In this
case, all
district court
else did
reaffirmed its
bribes, a $100,000
original finding
a new allocution
report.
on
new allocution,
base a
argument.
Affirmed.
________
of multiple
guideline range.
counsel's suggestion
which to
the
after the
Defense
was something
proffer was
-10-10-