United States v. Paul Corrado (98-2269) Nove Tocco (98-2270) Vito William Giacalone (98-2365)

Citations: 227 F.3d 528; 2000 U.S. App. LEXIS 21401; 2000 WL 1199096Docket: 98-2269, 98-2270, 98-2365

Court: Court of Appeals for the Sixth Circuit; August 24, 2000; Federal Appellate Court

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Three codefendants, Paul Corrado, Nove Tocco, and Vito Giacalone, were convicted of conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO) as members of the Detroit Mafia. Corrado and Tocco challenged the trial proceedings on several grounds, including the voir dire process, prosecutorial conduct, jury impartiality, and the district court's failure to provide detailed findings at sentencing as required by Rule 32(c)(1) of the Federal Rules of Criminal Procedure. Giacalone contended that his prior plea agreement granted him immunity for one of the predicate acts charged.

The court vacated the convictions and sentences of Corrado and Tocco, remanding for a hearing to assess potential jury misconduct. If prejudice is found, they will receive a new trial; otherwise, their convictions will be reinstated with proper sentencing findings made by the district court. The court affirmed the district court's denial of Giacalone's motion to dismiss his charges. 

Factual background indicates all three were indicted on multiple counts related to their involvement in organized crime, with Giacalone pleading guilty to a RICO conspiracy charge and receiving a 78-month prison sentence. Corrado and Tocco were convicted and sentenced to 97 and 167 months respectively, with additional sentences for firearm offenses. Both filed timely appeals.

Three challenges presented by Corrado and Tocco regarding the district court's voir dire, Agent Ruffino's testimony, and instances of alleged prosecutorial misconduct were previously addressed and rejected in the appeal of co-defendant Jack Tocco. Under the law of the case doctrine, these issues cannot be revisited unless new evidence, a change in law, or clear error is shown. Corrado and Tocco failed to demonstrate such exceptional circumstances, thus the earlier decisions remain binding.

On April 15, 1998, shortly before closing arguments, Khalid Shabazz approached Corrado claiming he had a connection to a juror that could influence the verdict. Corrado's counsel reported this to authorities, leading to Shabazz's arrest after Corrado, wearing a recording device, failed to identify the juror during a meeting. The following day, discussions ensued among attorneys and the district judge regarding the jury tampering incident, with the Assistant United States Attorney indicating that Shabazz had promised to sway multiple jurors for a fee. The court considered methods to address the situation without alarming the jury, emphasizing that jurors should remain unaware of the tampering issue until deliberations were concluded.

The district court postponed jury instructions to gather more information regarding Shabazz's claims. By the following Monday, Shabazz had not cooperated with investigators, leading the court to adopt a minimalist approach to avoid influencing the jury's mindset. The court proposed three questions to assess any external influence on the jurors, allowing a fifteen-minute recess for reflection. Jurors were instructed to notify the court if they answered "yes" to any question, after which individual jurors would be questioned. No juror submitted a note, allowing the court to proceed with jury instructions.

Corrado's attorney, Morgan, objected to this procedure, expressing concern that jurors might feel pressured to alter their decisions due to the circumstances surrounding Shabazz's claims and indicated a potential motion for a mistrial. Tocco's attorney supported this motion, but the court denied it based on the available information. 

Subsequently, the jury convicted Corrado and Tocco on all counts. Corrado later filed for a new trial, claiming that Shabazz's actions compromised the jury's impartiality and citing local newspaper articles that could have prejudiced jurors against him. He argued these articles might create a misleading impression of his involvement in a sting operation. Corrado also sought disclosure of any evidence connecting Shabazz to jurors or other improper communications. Tocco supported these motions, but the district court denied them. On November 18, 1998, Shabazz pled guilty to obstruction of justice, admitting to attempting to bribe a juror for a not guilty vote.

Corrado and Tocco assert that their Sixth Amendment right to an impartial jury was compromised due to potential jury misconduct, arguing that the district court failed to thoroughly investigate possible influences from a juror approached by Shabazz and from newspaper reports on Corrado's arrest. The appellate court noted that a district court's decision on jury misconduct claims is reviewed for abuse of discretion. The court acknowledged the challenges faced by the district court when confronted with misconduct allegations shortly before jury deliberations but criticized its insufficient response to serious allegations regarding extraneous influences on the jury.

On April 17, 1998, the district court was informed that an individual claimed to have communicated with a juror, suggesting that the juror could influence others toward a particular agenda. Despite the district court's skepticism about the claims, the interpersonal approach and subsequent arrangements for payment lent credibility to the allegations. The government deemed the claims serious enough to arrest and charge Shabazz with attempted juror influence under 18 U.S.C. 1503.

The court referenced prior rulings mandating sufficient investigation into credible claims of extraneous influence to protect a defendant's constitutional rights. It emphasized that refusal to conduct an evidentiary hearing on such allegations could constitute an abuse of discretion. Given the credible evidence of jury tampering presented by Shabazz, further investigation was warranted. Additionally, the potential impact of media reports about Shabazz's arrest, which were accessible to non-sequestered jurors, raised concerns about improper influence, necessitating investigation to ensure juror impartiality.

The Supreme Court's decision in Remmer v. United States establishes that when credible allegations of jury misconduct arise, an evidentiary hearing is necessary to assess the circumstances and potential prejudicial impact on jurors. In the present case, the district court's investigation did not meet these requirements, as it posed broad questions to the jury collectively and allowed jurors to self-report any issues, which proved inadequate. A juror who had been contacted regarding potential misconduct did not come forward, highlighting the failure of the court's approach. Although the defendants did not formally request a Remmer hearing, the district court was aware of the serious allegations and had a duty to initiate a hearing on its own. Subsequent revelations have intensified the need for investigation; specifically, Shabazz's guilty plea for obstruction of justice included an admission of offering a juror $25,000 for a favorable verdict. Testimony from the approached juror, Edward Kennedy, confirmed discussions with Shabazz regarding influencing the jury, indicating a clear need for further inquiry into the misconduct claims.

Kennedy, an alternate juror, had discussions about the evidence against the defendants with other jurors before being separated from them on April 20. This raises concerns about potential jury influence since, without a hearing, the extent of Kennedy's interactions and their effects cannot be fully assessed. The government argues that any influence would not have prejudiced the defendants, but there is a risk that jurors may have perceived Kennedy's discussions as attempts to sway their verdict, especially in light of media reports on Corrado's arrest, which could lead to bias against the defendants. Consequently, Corrado's and Tocco's convictions and sentences are vacated, and a Remmer hearing is ordered to investigate juror interactions with Kennedy and the impact of the news reports.

Additionally, Corrado and Tocco have appealed the denial of their motion to unseal Kennedy's grand jury testimony and FBI interview report. While district courts generally have discretion over such decisions, given their relevance to the Remmer inquiry and the conclusion of Shabazz's criminal case, the court is instructed to reconsider the request for disclosure, referencing precedents like United States v. Moten.

Regarding prosecutorial misconduct, Corrado alleged improper communication when the government addressed a plea-negotiation letter directly to him instead of through his attorney. The district court found no actual interference with his right to counsel, a conclusion not deemed clearly erroneous. The government's error did not constitute a violation of Corrado's rights, as no potential harm to his defense was demonstrated.

Corrado contends the district court wrongly denied his motion for the disclosure of exculpatory evidence under Brady v. Maryland. The appellate court reviews such denials de novo to assess if the suppressed evidence undermines confidence in the trial's outcome. To warrant a new trial under Brady, a defendant must show that suppressed evidence was discovered post-trial, could not have been identified with due diligence earlier, and is material. Corrado claims the government failed to disclose grand jury transcripts of alleged bookmakers and gamblers, suggesting their testimony could be beneficial for the defense. The district court denied the motion, reasoning that Corrado was not indicted for extorting these individuals, thus their testimony could not be deemed exculpatory for the charges he faced. This aligns with precedent that material favorable to the accused must either impeach a government witness or be directly exculpatory. Additionally, Corrado did not demonstrate an inability to locate these individuals himself, as their names arose from recorded conversations involving the defendants. The court emphasized that the Brady rule does not grant broad discovery rights and affirmed the district court's decision. Furthermore, Corrado and Tocco argued on appeal that certain wiretap recordings should have been suppressed due to inadequate justification in the government's surveillance applications, as required by Title III of the Omnibus Crime Control and Safe Streets Act of 1968.

Defendants Corrado and Tocco do not contest the initial electronic surveillance order from December 17, 1991, or its extensions in January and February 1992. However, they challenge the validity of the March 17, 1992, order (a de facto extension) and its subsequent five extensions, arguing that the affidavits demonstrate that sufficient evidence had already been collected, making further surveillance unnecessary. The court emphasizes that it grants "great deference" to the issuing judge’s determinations regarding electronic surveillance orders. The purpose of the necessity requirement is to inform the judge of the challenges faced in using traditional investigative techniques, not to mandate the exhaustion of all alternatives before permitting surveillance.

The government’s affidavits, which are detailed and extensive, justify continued surveillance based on the nature of the organized crime family under investigation, the likelihood of witness intimidation, and the ineffectiveness of conventional methods. The court finds no abuse of discretion by the magistrate judges in granting the extension applications, referencing past cases where similar circumstances justified surveillance.

On sentencing issues, both defendants contest their base offense level of 28 for RICO convictions linked to a conspiracy to murder, enhancements for gun possession during extortion, and leadership role enhancements. Corrado additionally argues for downward departures based on the government's actions and the provocation by his victims, while Tocco challenges the lack of factual findings by the district court on disputed sentencing matters. The court notes that it will not reverse the district court's factual findings unless clearly erroneous, but will review the application of guidelines to facts de novo.

The Federal Rules of Criminal Procedure mandate that for each contested sentencing matter, a court must either make a factual finding or determine that no finding is necessary if the matter does not impact sentencing. A written record of these findings must accompany the presentence report provided to the Bureau of Prisons. The court's strict adherence to this requirement ensures accurate sentencing and provides a clear record for future review.

In this case, the district court failed to comply with Rule 32(c)(1) as both defendants, Corrado and Tocco, objected to key findings in the presentence report, including their leadership roles, a conspiracy to murder, and the use of a firearm during extortion. Instead of addressing these objections, the court either adopted the presentence report's findings or claimed that the enhancements were supported by a preponderance of the evidence, without making specific findings on the contested issues.

Citing precedent, the court noted that simply adopting the findings from the presentence report without making independent factual determinations is not permissible. This led to the conclusion that Corrado and Tocco must be resentenced in accordance with Rule 32, as the lack of a record of the district court's findings hinders meaningful appellate review of the sentencing enhancements. The court indicated it would address a legal issue raised on appeal to guide the district court during resentencing.

The district court assigned a base offense level of 28 for Corrado and Tocco's RICO conspiracy, citing a conspiracy to murder Bowman as part of the plot. The jury's guilty verdict on the RICO conspiracy count did not clarify whether they found the defendants conspired to murder Bowman. During the appeal, a dispute arose regarding the burden of proof for establishing an underlying offense not specified in the jury's verdict. Corrado and Tocco argue that the government must prove the underlying offense beyond a reasonable doubt, while the government contends that a preponderance of the evidence suffices.

The defendants liken their situation to multi-object conspiracies, where the guidelines necessitate careful consideration of which offenses were established by the jury's verdict. Specifically, the Sentencing Guidelines' application notes indicate that a court should only apply relevant conduct if it would convict the defendant of the object offense based on a reasonable doubt standard. Although the defendants were convicted of a RICO conspiracy, not a multi-object conspiracy, the distinction affects the applicable burden of proof. A RICO conspiracy is treated as a single-object conspiracy aimed at violating RICO itself, with underlying acts of racketeering serving as relevant conduct rather than distinct objects of the conspiracy.

Consequently, at resentencing, the district court need only find that the defendants conspired to murder Bowman by a preponderance of the evidence to adjust their base offense level. This standard aligns with precedents that affirm the use of the preponderance standard for relevant conduct in RICO cases. Furthermore, the Supreme Court's ruling in Apprendi v. New Jersey does not alter this requirement, as it pertains to factors that increase penalties beyond statutory maximums, not to the determination of relevant conduct for sentencing. Corrado and Tocco faced a maximum twenty-year sentence for the RICO conspiracy, irrespective of the murder conspiracy.

The district court did not impose sentences exceeding twenty years on the RICO counts, which means the Apprendi rule was not activated, and a jury was not required to decide on the murder conspiracy under the reasonable doubt standard. G. Vito Giacalone was indicted in 1992 for inducing Theodore Forman, a DOJ attorney, to unlawfully disclose grand jury materials. He pleaded guilty to conspiracy to defraud the U.S. in exchange for not being charged regarding the theft of those documents and served three years in prison. In the current case, Giacalone faced two counts of RICO conspiracy and various Hobbs Act extortion charges. He sought to dismiss the charges or obtain severance, arguing that one predicate act for the RICO conspiracy overlapped with the Forman case. The government countered that including the Forman incident among multiple predicate acts did not breach Giacalone's plea agreement and suggested the court could use a limiting instruction and a special verdict form to address his concerns. The district court denied the motions but indicated it would uphold Giacalone's plea agreement rights during a multi-defendant trial and allowed for the renewal of his motion if new facts arose. On January 5, 1998, Giacalone entered a plea agreement, pleading guilty to a RICO conspiracy charge related to unlawful debts while reserving the right to appeal the denial of his motion to dismiss. Giacalone contended that his plea agreement prevented the government from charging him with the RICO conspiracy based on unlawful debts. The government argued that the general obstruction charge did not specifically refer to the Forman incident and that the charge in count two was unrelated to it. Ultimately, the court found that the mention of "obstruction of justice" did not violate Giacalone's plea agreement. The conclusion vacated the convictions and sentences of other defendants, ordering a Remmer hearing for potential jury misconduct, while affirming the denial of Giacalone's motion to dismiss.