United States v. Tocco, Jack William

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0002P (6th Cir.)
File Name: 00a0002p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;

UNITED STATES OF AMERICA,

Plaintiff-Appellee/

Cross-Appellant (99-1003),

Nos. 98-2312/

2426; 99-1003
v. >


Defendant-Appellant 
JACK WILLIAM TOCCO,
(98-2312/2426)/ 
Cross-Appellee. 
1
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 96-80201—John Corbett O’Meara, District Judge.
Argued: June 11, 1999
Decided and Filed: January 5, 2000
Before: WELLFORD, NELSON, and GILMAN, Circuit
Judges.
_________________
COUNSEL
ARGUED: Frank D. Eaman, BELLANCE, BEATTIE &
DeLISLE, Harper Woods, Michigan, for Appellant. Kathleen
Moro Nesi, OFFICE OF THE U.S. ATTORNEY, Detroit,
1
2 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 51
Michigan, for Appellee. ON BRIEF: Frank D. Eaman, appropriate, and also consider the place of incarceration and
BELLANCE, BEATTIE & DeLISLE, Harper Woods, its potential for monitoring Tocco’s medical problems.
Michigan, for Appellant. Kathleen Moro Nesi, OFFICE OF
THE U.S. ATTORNEY, Detroit, Michigan, for Appellee. H. Conclusion
_________________ We recognize that one of the most difficult and thankless
responsibilities of a district judge is to pass sentence upon a
OPINION defendant. The district court in this case was faced with a
_________________ complex and lengthy trial, and we give the district court its
due deference in effectuating a sentence upon Tocco, guided
HARRY W. WELLFORD, Circuit Judge. This criminal by all pertinent legal considerations. The district court must
prosecution pertains to one of six defendants who were tried ordinarily rely in considerable measure upon a presentence
on charges of conspiracy to conduct and participate in a1 report, but it is the district court that must make the hard
Detroit-based racketeer influenced and corrupt organization. decisions in cases such as this with a wide range of sentencing
Appellant Jack W. Tocco (“Tocco”) was convicted on two issues and legal determinations to be made. The district court
counts of conspiracy in violation of the Racketeer Influenced has broad discretion in dealing with requests for departure,
and Corrupt Organization Act, 18 U.S.C. § 1962(d) (“RICO”) whether upward or downward, but the Sentencing
— one for engaging in a pattern of racketeering activity and Commission and the courts expect that they will not often
one for collection of an unlawful debt (Counts One and Two) occur, and only where there are particular “aggravating or
— and one count of conspiracy to interfere with commerce by mitigating circumstances of a kind or degree not adequately
extortion in violation of 18 U.S.C. § 1951 (“Hobbs Act”) taken into consideration by the [Sentencing] Commission.”
(Count Six). Both Tocco and the government now appeal -- Koon, 518 U.S. at 94.
Tocco from the jury convictions, the government from the
sentence imposed by the trial judge. Accordingly, we AFFIRM Tocco’s convictions for the
reasons explained above, but VACATE his sentence and
A. Background2 REMAND for resentencing in a manner not inconsistent with
this opinion.
On March 14, 1996, Tocco was charged in a twenty-five
(25)-count indictment along with sixteen (16) co-defendants
on charges relating to the activities of a group called “Cosa
Nostra,” also known as “the Outfit” or, as is known to the
general public in the United States, “the Mafia.” Cosa Nostra
1
The six co-defendants were Jack W. Tocco (appellant), Anthony J.
Tocco, Anthony J. Corrado, Anthony J. Zerilli, Nove Tocco, and Paul
Corrado. Before testimony was taken, Zerilli’s case was severed due to
health reasons.
2
The factual background of this case spans three decades and will be
discussed only insofar as the facts relate to the issues on appeal.
50 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 3
departure from the guidelines based on the defendant’s wife’s allegedly is made up of “families” in various cities, including
“severe psychiatric problems” which had “potentially life Detroit, and allegedly is involved in illegal activities such as
threatening” effects and thus constituted a “truly exceptional extortion, illegal lotteries (“numbers”), bookmaking,
case.” Haversat, 22 F.3d at 797. Though the court found that loansharking, and acquiring undisclosed and illegal
the defendant’s family ties constituted a permissible basis for investments in gambling casinos. The indictment herein
a downward departure, it concluded that the particular alleged that Tocco had been involved in the Detroit branch of
circumstances did not justify the magnitude of the departure. the national Mafia organization, and that he had been the
Id. at 798 (citing Williams v. United States, 503 U.S. 193 “Boss of the Detroit Cosa Nostra Family” since about 1979.
(1992)). The district court severed the trial of Tocco and his five co-
defendants from the trials of the others named in the
On remand, we instruct the district court to revisit this issue indictment.
and to make specific findings regarding Tocco’s personal
involvement in the care of his wife or other family members. On January 27, 1998, trial commenced against Tocco and
The court should consider whether Maria Tocco has alternate his co-defendants. Approximately three months later, on
sources of support other than her husband. On that subject we April 29, 1998, the jury convicted Tocco on the two RICO
note that Tocco has eight children, seven of whom live in the conspiracies and the Hobbs Act conspiracy mentioned above.
area and one of whom is a doctor. It acquitted him on ten counts of extortion or attempted
extortion. On October 23, 1998, the district court denied the
We specifically do not adopt the rationale in this regard, government’s request for a forfeiture judgment against all the
and in respect to other factors claimed by Tocco, applied in defendants.
the case of United States v. Rioux, 97 F.3d 648,652 (2d Cir.
1996), which approved a 10 point downward departure based On November 13, 1998, the district court sentenced Tocco
on “physical condition, charitable fund-raising efforts, and to twelve months and one day in prison, departing downward
civic accomplishments.” ten levels from the applicable guideline range, and
recommended that Tocco’s sentence be served in a
Thus, we conclude that the sentence imposed upon community correction center. Tocco filed a timely appeal
defendant Tocco was “imposed in violation of law” and that from the district court’s judgment of conviction, and the
it was imposed as a result of an incorrect application of the government timely appealed Tocco’s sentence.
guidelines for the reasons stated. We must, therefore,
REMAND for re-sentencing in a manner not inconsistent B. Voir Dire
with this opinion. In addition, we order the district court to
furnish the government copies of any written Tocco first challenges the adequacy of the jury voir dire. A
recommendations from the probation office that have been district court’s manner of conducting voir dire is not
and will be used in resentencing. Any confidential reports reversible unless the court abused its discretion. See United
may be submitted under seal. States v. Phibbs, 999 F.3d 1053, 1071-72 (6th Cir. 1993). It
is well-settled that the district court enjoys broad discretion in
During the interim before re-sentencing, we direct the establishing its voir dire procedures. See United States v.
district court to consider promptly the government’s motions Lanier, 33 F.3d 639, 657-59 (6th Cir. 1994) (citing Mu’Min
for immediate revocation of Tocco’s bond. Furthermore, in v. Virginia, 500 U.S. 415, 427 (1991)), vacated on other
connection with resentencing, the district court should grounds, 114 F.3d 84 (6th Cir. 1997); see also Deel v. Jago,
reconsider whether a term of supervised release is 967 F.2d 1079, 1087 (6th Cir. 1992) (same).
4 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 49
Tocco claims that he was denied his right to a fair trial We are concerned about the discrepancy between the
because the district court declined to permit specific questions district court’s actions in Tocco’s case and in the case of
during voir dire on the subject of Mafia prejudice. Tocco’s Anthony Corrado. The district court declined to depart
counsel filed a motion requesting that the prospective jurors downward due to the medical condition of Corrado, who had
be asked whether they possessed any strong opinions about undergone seven bypass operations, had circulation problems,
the Mafia, or whether they believed that Italian-Americans and had diabetes. We shall expect the district court to
were more likely to be members of organized crime. The consider the decision in Corrado’s case when it determines
motion was accompanied by Detroit newspaper articles whether or to what extent to depart in Tocco’s case.
referring to “Detroit’s Mob” and the Detroit Mafia. Tocco
claims that the district court’s denial of that motion (c) Tocco’s wife’s health
constituted reversible error because of the very high-profile
nature of the case and the substantial unsympathetic publicity Pursuant to the guidelines, “[f]amily ties and
in the media. responsibilities . . . are not ordinarily relevant in determining
whether a sentence should be outside the guidelines.”
The government argues that the district court was not U.S.S.G. § 5H1.6. However, “[e]xtraordinary family
compelled to allow questions on the specific issue of Mafia circumstances, i.e., outside of the ‘heartland’ of cases the
prejudice, and that the questions posed to the prospective Guidelines were intended to cover, can be the basis for a
jurors were adequate to ensure Tocco a fair and impartial jury. downward departure.” United States v. Haversat, 22 F.3d
The district court asked the prospective jurors to answer the 790, 797 (8th Cir. 1994) (quoting United States v. Harrison,
following in the juror questionnaire: 970 F.2d 444, 447 (8th Cir. 1992)). T he di s t r i c t c o u r t
determined that Tocco qualified for a 2-level downward
41. You are being asked to participate in jury selection departure because of his “family ties,” specifically his need to
process that will select a jury to try a criminal case in be with his ill wife, who had cancer and emphysema.14 The
which the government prosecutors charge several presentence report included an extensive and extremely
defendants with involvement in a racketeering sympathetic family history of Tocco, including information
conspiracy. The government alleges that the defendants that his wife had recently undergone an operation, and that
are participating in a conspiracy call [sic] “Cosa Nostra” their eight children were successful and supportive.
or the “Mafia.” To the best of your knowledge, have you
heard anything about this case? ___ yes ___ no. Extraordinary and special family circumstances may justify
a downward departure in exceptional cases. Usually, this
The district court informed counsel that it would question factor is taken into account when a defendant personally is
individual jurors more specifically about the matter if the required to take care of a seriously ill spouse or family
juror’s answer to that question was affirmative. Otherwise, member. A good discussion of the type of circumstances
the court refused to ask the jury pool more specific questions necessary for such a departure can be found in United States
pertaining to the Mafia. v. Haversat, 22 F.3d 790, 793 (8th Cir. 1994). In that case,
the district court had approved of a 5-level downward
While we are aware that the district court has broad
discretion in such matters, we are mindful that this case
attracted much media attention. This court has indicated that 14
Tocco’s mother and sister are also ill, but the district court did not
the district court is in the best position to determine the rely on Tocco’s responsibilities toward those family members in departing
appropriate areas of inquiry in such cases. downward.
48 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 5
arteriosclerotic disease, coronary artery disease, hypertension, [W]ide discretion [is] granted to the trial court in
renal insufficiency, labrynthitis, and diverticulosis. The conducting voir dire in the area of pretrial publicity and
report also mentioned that Tocco’s continuing health in other areas of inquiry that might tend to show juror
problems required “periodic monitoring.” bias. Particularly with respect to pretrial publicity, we
think this primary reliance on the judgment of the trial
We conclude that Tocco’s age alone should not be court makes good sense. The judge of that court sits in
considered as a basis for a substantial downward departure. the locale where the publicity is said to have had its
Tocco was portrayed as remaining active in civic and effect, and brings to his evaluation of any such claim his
charitable affairs and in carrying on (with family help and own perception of the depth and extent of news stories
support) a number of business interests. The district court did that might influence a juror.
not discuss any basis for consideration of Tocco’s age as a
basis of downward departure per se, as set out in the Lanier, 33 F.3d at 657 (citing Mu’Min v. Virginia, 500 U.S.
judgment. We observe in passing in this regard that eight 415, 427 (1991)). The Supreme Court and this circuit have
judges of this court, still in service, are seventy years old or set out the principles involved in determining whether the
older. Many persons in business continue to serve in failure to ask specific questions amounts to “an
important capacities beyond seventy years of age. unconstitutional abuse of discretion”:
With respect to the propriety of a downward departure There is no constitutional presumption of juror bias for
based upon Tocco’s physical condition, we note that it is or against members of any particular racial or ethnic
possible “that an aged defendant with a multitude of health groups. . . . [T]here is no per se constitutional rule in
problems may qualify for a downward departure under such circumstances requiring inquiry as to racial
§ 5H1.4 . . ., [but] such downward departures are rare.” prejudice. . . . Only when there are more substantial
United States v. Johnson, 71 F.3d 539, 545 (6th Cir. 1995). indications of the likelihood of racial or ethnic prejudice
In Johnson, the district court had departed downward from the affecting the jurors in a particular case does the trial
applicable guideline range based on the defendant’s medical court’s denial of a defendant’s request to examine the
condition. The defendant in that case had a profile similar to jurors’ ability to deal impartially with this subject amount
that of Tocco, being a 65-year-old man who suffered from to an unconstitutional abuse of discretion.
diabetes, hypertension, hypothyroidism, ulcers, potassium
loss, and reactive depression. Id. at 544-45. Rosales-Lopez v. United States, 451 U.S. 182, 190 (1981)
(citations omitted).
The Johnson court stated that “[i]n view of the fact that the
defendant will be resentenced, the District Court should make It is not required, however, that the jurors be totally
more specific findings as to whether defendant has ‘an ignorant of the facts and issues involved. In these days
extraordinary physical impairment,’ or combination of of swift, widespread and diverse methods of
impairments, worthy of departure.” Id. at 545. We find that communication, an important case can be expected to
this approach is proper in the instant case. To this end, the arouse the interest of the public in the vicinity, and
district court might obtain independent and competent scarcely any of those best qualified to serve as jurors will
medical evidence to determine the extent of Tocco’s not have formed some impression or opinion as to the
infirmities and the prison system’s ability or inability to merits of the case.
accommodate them. Id.
6 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 47
United States v. Blanton, 719 F.2d 815, 830 (6th Cir. 1983). On remand, the district court must determine whether the
It suffices “if the juror can lay aside his impression or opinion “community involvement” of Tocco is substantially financial,
and render a verdict based on the evidence presented in which would prevent the court from considering that factor in
court.” Murphy v. Florida, 421 U.S. 794, 800 (1975) departing from the guidelines on that basis. If, however, the
(quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)). See also court finds as a matter of fact that the community
Hill v. Brigano, No. 98-3714, 1999 WL 1222642, at *8-*9 involvement actually involves significant contributions of
(6th Cir. Dec. 22, 1999). Tocco’s time and personal skill and involvement, the court
may consider the factor in determining the appropriate and
Having said all that, we still believe the district court would reasonable degree of departure if the court concludes that the
have been well-advised to allow more detailed questioning to case presents truly extraordinary circumstances. The district
reveal an individual prospective juror’s prejudice, if any, court should be mindful that any departure must be reasonable
against Cosa Nostra and the obvious Italian heritage of the and must be “guided by the structure of the Guidelines.”
defendants and the Sicilian or Italian connection with the Crouse,145 F.3d at 792; see also United States v. Morken,
Mafia. We decided similar issues concerning voir dire 133 F.3d 628, 630 (8th Cir. 1998); United States v. McHan,
method and jury selection in a highly publicized case, United 920 F.2d 244, 247 (4th Cir. 1990).
States v. Blanton, 719 F.2d 815 (6th Cir. 1983) (en banc).
The court majority, in considering challenges to the (b) Tocco’s age and debilitating health
sufficiency of voir dire in the criminal trial of a recent
Tennessee governor, concluded that no reversible error The guidelines note that both age and physical condition
occurred, although the trial judge probably did not employ the may be valid grounds for a downward departure. U.S.S.G.
best voir dire procedures and we would not recommend the § 5H1.1 provides in relevant part that although not “ordinarily
manner of such voir dire. See id. at 819, 822. We have the relevant ... [a]ge may be a reason to go below the guidelines
same reservations, as did the court majority in Blanton (and when the offender is elderly and infirm and where a form of
the writer was one of those judges), about voir dire and jury punishment (e.g., home confinement) might be equally
selection in this case. efficient as and less costly than incarceration.” With respect
to physical infirmity, the guidelines provide that a defendant’s
Nevertheless, the district court sought to ensure the fairness “[p]hysical condition or appearance, including physique, is
of the jury selection through more general, progressive not ordinarily relevant in determining whether a sentence
questioning. After obtaining the prospective jurors’ answers should be outside the applicable guideline range. However, an
to the “Mafia” question in the questionnaire, the court extraordinary physical impairment may be a reason to impose
followed up with each juror individually and asked more a sentence below the applicable guideline range; e.g., in the
specific questions about their knowledge of the case. Of the case of a seriously infirm defendant, home detention may be
twelve jurors that ultimately were chosen to sit at trial, seven as efficient as, and less costly than, imprisonment.” U.S.S.G.
had heard nothing about the case, and the other five had only § 5H1.4.
had minimal knowledge. The five that had minimal
knowledge of the case individually assured the district court The district court below determined that Tocco’s age, 72
that they could, despite that knowledge, render a fair and years, and debilitating health, “which ordinarily would not be
impartial verdict. Furthermore, the jurors all informed the the basis for downward departure,” was a basis for departure
court of their ability to assume that an accused is innocent in this case. The court referred to the presentence report
until proven guilty beyond a reasonable doubt, and to accept which described all of Tocco’s illnesses, including
46 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 7
businessman much in the same category as Tocco. Though that a defendant does not forfeit his presumption of innocence
the applicable guideline range for his sentence was 15, the if he chooses not to testify. In our view, Tocco was not
district court departed downward 9 levels based on the constitutionally entitled, under the circumstances, to any more
defendant’s charitable works in order to bring his offense specific race-based questioning during voir dire. “The
level down to 6 so that the defendant would qualify for home Constitution, after all, does not dictate a catechism for voir
confinement. The court noted that the community dire, but only that the defendant be afforded an impartial
contributions consisted primarily of the defendant’s time jury.” Morgan v. Illinois, 504 U.S. 719, 729 (1992).3
commitments and not monetary contributions. Crouse, 145
F.3d at 792. On appeal, we determined that considering the This issue regarding voir dire is of serious concern to this
defendant’s charitable works, though a discouraged factor, court. We believe that the district court’s failure to ask more
was a permissible ground for the district court to consider specific questions regarding Mafia or Italian-American
departing downward. See id. at 791. We found, however, prejudice was a mistake, but not an error compelling reversal
that the defendant’s community works, while significant, under the circumstances. The district court’s voir dire
were not unusual for a prominent business man. The works sufficiently explored the prospective jurors’ knowledge about
included, but were not limited to, involvement in church the Mafia-related case and their individual ability to be fair
activities, service on the boards of various organizations, and and impartial. As the Supreme Court has stated, “[t]here is no
involvement in the Rotary Club. We concluded that, while constitutional presumption of juror bias for or against
some departure may have been warranted, the 9-level members of any particular racial or ethnic groups.” Rosales-
departure was unreasonable because the district court made no Lopez, 451 U.S. at 190. Based on the foregoing, we believe
reference to the guidelines determining the departure amount. the procedures for jury selection, viewed in their entirety,
Rather, the district court sought to reach a certain result--no afforded Tocco a fair and impartial jury. Accordingly, we
jail time--and it departed the necessary number of levels to find that any error committed in failing to allow more specific
reach the desired result. Consequently, we held that the voir dire questions on Mafia prejudice does not require a
departure was unreasonable under the circumstances. See id. reversal of Tocco’s conviction.4
at 792.
In assessing the effect of Tocco’s community involvement
in this case, we believe that much of Tocco’s contributions 3
may have consisted of contributions of money, not time and The fact that the jurors found defendant Tocco not guilty on ten
counts, and that they acquitted other defendants in part or entirely, is some
energy. If that is so, then the factor could really be considered indication of the jury’s ability to act with impartiality.
one involving Tocco’s socio-economic status, i.e., his wealth
and his ability to donate to various civic and charitable 4
Much of Tocco’s pretrial argument focused on the stigma attached
causes. Consideration of that factor is prohibited by the to the words “Cosa Nostra” and “Mafia” as those terms were used in the
guidelines. See U.S.S.G. § 5H1.10. This, perhaps, is an indictment charges. The charges in this case, however, would not differ
expression of the ancient concept of justice that a man of materially from a charge that a particular defendant was allegedly in a
wealth, position, power, and prestige should not be given particular group or gang, such as “Hell’s Angels,” or “White Citizen
special consideration in the law. In any event, a defendant’s Council,” or a subversive group such as an international terrorist
organization. We would not deem such an indictment charge to constitute
community involvement is at best a discouraged factor in prejudicial error so long as the prosecution was prepared to come forward
determining the appropriate departure from the guidelines. with proof to establish the existence of such a group, and that the
particular defendant was associated with the alleged criminal enterprise
or conspiracy.
8 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 45
C. Severance that could constitute grounds for departure in an unusual
case.” U.S.S.G. ch. 1, pt. A, intro. comment.
Tocco also argues that the district court erred in failing to
sever his trial from that of co-defendants Nove Tocco The district court in this case applied discouraged factors in
(“Nove”) and Paul Corrado (“Corrado”). A district court’s departing downward, emphasizing insistently its view that
decision to deny severance of defendants is reviewed for a this was an “extraordinary” case. The court stated that this
“clear abuse of discretion.” United States v. Critton, 43 F.3d case was outside of the heartland of cases, presenting “an
1089, 1098 (6th Cir. 1995). The defendant “has a heavy extraordinary set of facts and is highly infrequent and
burden of showing specific and compelling prejudice” from rare. . . . It can be no rarer. The Court’s [sic] never [departed
having a joint trial. United States v. Harris, 9 F.3d 493, 500 in this manner] before and the Court does not contemplate
(6th Cir. 1993). doing it again soon.” Then the court noted that the case has
spanned over three decades and related to criminal activity
Tocco claims that his trial should have been severed from that occurred over that entire period of time. The court also
that of Nove and Corrado because there was no evidence that made the determination that Tocco did not have the type of
he was a co-conspirator of those two defendants. He argues “absolute power” that would justify him being held
that certain tape recorded statements of Nove and Corrado responsible for any and all criminal acts that the members or
were entered into evidence, and that such evidence never associates of his criminal enterprise may have committed or
linked him with those defendants. Thus, he claims that the conspired to commit. Thus, the court was generally of the
evidence unfairly prejudiced his case, and he should have view that a downward departure was necessary.
been given a separate trial.
With that as a preface, the court turned to the three specific
We find that Tocco’s position is an extension of his factors on which it relied in making the 10-level downward
argument that the evidence was insufficient to find that a departure in Tocco’s sentence. We now discuss those three
conspiracy existed between him and the other defendants. For factors.
reasons discussed below, we find that the evidence was
sufficient to support a finding that such a conspiracy existed. (a) Community service and community support
Joint trials are favored in this circuit, and “it is well-settled
that defendants are not entitled to severance merely because First, the court found that Tocco’s extraordinary community
they may have a better chance of acquittal in separate trials.” involvement and community support warranted a 4-level
Zafiro v. United States, 506 U.S. 534, 540 (1993). We must departure. The court noted that Tocco had participated in no
presume that juries are “capable of sorting out the evidence less than twelve charitable and civic organizations. A flood
and considering the case of each defendant separately.” of letters poured into the court that strongly supported Tocco
Harris, 9 F.3d at 501. The fact that the jurors in this case and urged leniency in his sentencing. The letters stated,
found Tocco not guilty on ten counts and acquitted co- among other things, that Tocco is a dedicated family man and
defendants on other counts is some indication that the jury a dependable philanthropist in the community. These
was able to sort out the issues and follow the court’s circumstances, the court found, helped to show that this case
is outside of the heartland of cases.
We addressed the propriety of a departure in similar
circumstances in United States v. Crouse, 145 F.3d 786 (6th
Cir. 1998). Crouse involved the sentencing of a successful
44 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 9
be sufficiently unusual and “outside the heartland of cases” to instructions with respect to each defendant separately.5
warrant such a departure. See United States v. Crouse, 145 Accordingly, we find that the district court did not abuse its
F.3d 786, 788-89 (6th Cir. 1998). If we determine that the discretion in failing to sever Tocco’s trial from that of Nove
departure was not based on impermissible factors, we must and Corrado.
still determine whether the departure was reasonable in terms
of the amount and the extent of the departure in light of the D. Admissibility of Evidence
reasons for the departure. See id. at 789. In other words, we
must find that the reasons justify the magnitude of the Tocco raises seven alleged errors regarding the district
departure. See id. court’s admission of evidence. Generally, a district court’s
decision to admit testimony and other evidence is reviewable
Based on our conclusion that the district court must revisit under an abuse of discretion standard. United States v. Bonds,
the sentence imposed under the guidelines, we further instruct 12 F.3d 540, 554 (6th Cir. 1993). Even if the district court
the court to reconsider its decision to depart from the abuses its discretion in this regard, we will not reverse a
guideline range once that range has been redetermined. We conviction on that basis unless the “substantial rights” of a
discuss below our views regarding the downward departure in party are affected. Id. We will note below the issues to
this case to guide the district court’s decision on remand. which a different standard of review applies.
In Koon, supra, the Supreme Court discussed what factors (1) Testimony of Anthony Polizzi
may or may not be considered by a district court in
determining whether a departure from the guidelines is An important part of the government’s case against Tocco
warranted. The Court discussed some “encouraged factors,” was the testimony of Angelo Polizzi (“Angelo”). Angelo
which “are those ‘the Commission has not been able to take testified about statements made to him by his father, Michael
into account fully in formulating the guidelines.’” Koon, 518 Polizzi (“Polizzi”), who died shortly before trial in this case,
U.S. at 94 (citing U.S.S.G.§ 5K2.0). The court also discussed which the district court held to be admissible as declarations
“discouraged factors,” which “are those ‘not ordinarily against penal interest. See FED R. EVID. 804(b)(3).6 Tocco
relevant to the determination of whether a sentence should be
outside the applicable guideline range.’” Id. at 95 (quoting 5
1995 U.S.S.G. ch. 5, pt. H, intro. comment.). Examples of Tocco cites United States v. Casamento, 887 F.2d 1141, 1152 (2d
those “discouraged factors” include a defendant’s civic Cir. 1989), in arguing that “megatrials” should not be permitted and that
contributions and his family ties and responsibilities. Though there should be a presumption against a joint trial in cases that are
estimated to last more than four months. This circuit, however, has not
those factors are “not necessarily inappropriate,” the Court adopted such a policy, and we decline to do so in this case. We adhere to
noted, they should only be relied on as a basis for departure the “strong policy in favor of joint trials when charges will be proved by
“in exceptional cases.” Id. the same series of acts.” United States v. Horton, 847 F.2d 313, 317 (6th
Cir. 1988); see also United States v. Mays, 69 F.3d 116, 120 (6th Cir.
The guidelines list certain factors that may never for the 1995) (recognizing the “strong policy in favoring joint trials” and “the
basis for departure. See U.S.S.G. § 5H1.10 (race, sex, presumption of the validity of curative instructions”).
national origin, creed, religion, socio-economic status); 6
§ 5H1.4 (drug or alcohol dependence). With the exception of FEDERAL RULE OF EVIDENCE 804(b)(3) provides in pertinent part:
those factors, the guidelines do not “limit the kinds of factors, (b) Hearsay exceptions. The following are not excluded by the
whether or not mentioned anywhere else in the guidelines, hearsay rule if the declarant is unavailable as a witness:
10 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 43
now argues that the district court erred in allowing Angelo to followed the recommendations of different probation officers
testify about his father’s statements. We review de novo the in holding the two accountable for a two-level increase for
issue of whether the district court properly held those each one’s role in the offense as an organizer, leader,
statements to be admissible. See United States v. Fountain, manager, or supervisor. See U.S.S.G. § 3B1.1(c). Nove and
2 F.3d 656, 668 (6th Cir. 1993). Corrado managed John Sciaratta, John Jarjosa, and others
who collected the “street taxes” for them. The government
The statements challenged by Tocco are in one of two argues that adding the four other defendants in this case easily
categories: (1) statements that others were involved in the supports the claim that Tocco supervised five or more
conspiracies and (2) statements about Polizzi’s own participants.
involvement in the Frontier Hotel and Casino, which were
made after Polizzi had been convicted and sentenced based on We find from a review of the record that the district court
that involvement. committed clear error in concluding that Tocco did not have
a supervisory role in this case. As the government points out,
Without directing the court’s attention to specific the district court ignored the fact that the jury found Tocco
statements, Tocco claims that “[w]hile a statement of guilty on Count Six, the Hobbs Act violation. The
[Angelo] Polizzi’s father that he, himself, was involved in government’s theory of the case was that Nove and Corrado
organized crime may have been a declaration against his could not engage in their extortionate activities without the
father’s penal interest, the statements that others were permission of Tocco. The wiretapped conversations between
involved in illegal crime were not declarations against his Nove and Corrado showed that Tocco was the “boss” and that
father’s penal interest.” In support, Tocco relies on he had control over the extortionate activities of his
Williamson v. United States, 512 U.S. 594 (1994), in which underlings. The jury found Tocco guilty of conspiring to
the Supreme Court held that the declarations of a criminal that commit those extortionate activities in Count Six, indicating
implicate another person are admissible only to the extent that that they found Tocco to be the “boss” or “manager” or
they are self-inculpatory. Williamson, 512 U.S. at 599. In “supervisor.” Under these circumstances, we instruct the
determining whether Polizzi’s statements qualify as district court on remand to apply the three-level enhancement
declarations against penal interest, we must consider (1) for Tocco’s supervisory role in the offense pursuant to
whether the declarant is unavailable; (2) whether, from the U.S.S.G. §3B1.1(b).
perspective of the average, reasonable person, the statements
were truly adverse to the declarant’s penal interest, and (3) (3) Downward departure
whether corroborating circumstances truly establish the
trustworthiness of the statement. United States v. As we stated above, the district court departed downward
10 levels based upon Tocco’s overwhelming community
service and support (4 levels), Tocco’s age and debilitating
... health (4 levels), and Tocco’s wife’s poor health (2 levels).
A district court’s decision to depart downward from the
(3) Statement against interest. A statement which at applicable guideline level is reviewed for an abuse of
the time of its making so far contrary to the declarant’s discretion. Koon v. United States, 518 U.S. 81, 91 (1996).
pecuniary or proprietary interest, or so far tended to Whether a stated ground for departure is a permissible basis
subject the declarant to civil or criminal liability . . .
that a reasonable person in the declarant’s position is a question of law reviewable de novo. See id. at 98. Before
would not have made the statement unless believing it a departure is authorized, the circumstances of the case must
to be true.
42 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 11
discharge of a weapon (7 levels, § 2B3.2(b)(3)(A)(i)); and for Maliszewski, 161 F.3d 992, 1009 (6th Cir. 1998), cert. denied,
his supervisory role in the offense (3 levels, § 3B1.1(b)). The 119 S. Ct. 1126 (1999).
court also rejected the government’s contention that a 5-level
enhancement was appropriate under the grouping provisions Among other things, Polizzi told Angelo about Tocco’s role
of § 3D1.3. Whether Tocco’s offense level should be in the Cosa Nostra organization, and about the identity of
enhanced by the first three items, which are specific offense other organization leaders. Polizzi stated that Tocco had been
characteristics of extortion, will depend on whether the the leader since 1979, and that defendant Zerilli was the
district court ultimately sentences Tocco pursuant to § 2B3.2 leader before him. All were related by blood or marriage.
or some other guideline. The court did not address those Polizzi had identified Paul Corrado and Nove Tocco as
issues below because it used the minimum of 19 as the base underlings in the enterprise. Angelo at the time himself
offense level and did not refer to the specific offense assumed a role in the conspiracy by making deliveries and
characteristics in § 2B3.2(b), nor did it enhance the offense collections for his father.
level for Tocco’s supervisory role. On remand, depending
upon the district court’s review of the application of the Tocco argues that Polizzi’s statements implicating others
extortion guideline, the court must reconsider whether any were inadmissible because they were about others and were
enhancements under that guideline would apply under the not adverse to Polizzi’s own penal interest. We agree that our
circumstances. decision should be guided by Williamson. In that case, the
Supreme Court recognized that “[t]he question under Rule
At sentencing, after the district court announced that none 804(b)(3) is always whether the statement was sufficiently
of the government’s requested enhancements were applicable against the declarant’s penal interest ‘that a reasonable person
to Tocco’s offense level, the prosecutor asked whether the in the declarant’s position would not have made the statement
court adopted the presentence report’s conclusion that “none unless believing it to be true,’ and this question can only be
of the threats or acts of violence were reasonably foreseeable” answered in light of the surrounding circumstances.”
as part of the conduct involved. The district judge made no Williamson, 512 U.S. at 603-04. The court also noted that
response or explanation to this pertinent question. We find statements must be viewed in context. For example:
that the foreseeability of the threats and acts of violence may
be critical to the district court’s analysis on remand, and we “Sam and I went to Joe’s house” might be against the
direct the district court to make specific findings with respect declarant’s interest if a reasonable person in the
to that issue. declarant’s shoes would realize that being linked to Joe
and Sam would implicate the declarant in Joe and Sam’s
The government argues that the evidence supported a conspiracy. And other statements that give the police
finding that Tocco was the “boss” of the enterprise and that he significant details about the crime may also, depending
had a supervisory role over five or more persons, and that on the situation, be against the declarant’s interest.
consequently a 3-level enhancement was warranted pursuant
to U.S.S.G. § 3B1.1(b).13 The government points out that in Id. at 603; see also United States v. Price, 134 F.3d 340, 347
the sentencing of Nove Tocco and Paul Corrado the court (6th Cir.), cert. denied, 119 S. Ct. 114 (1998).
We believe that Tocco’s argument ignores the context in
13 which Polizzi’s statements were made to his son. The
That guideline provides that “[i]If the defendant was a manager or
supervisor . . . and the criminal activity involved five or more participants statements described Polizzi’s own participation in the RICO
or was otherwise extensive, increase by 3 levels.” U.S.S.G. § 3B1.1(b). enterprise, and inculpated himself and others as participants
12 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 41
in the conspiracy. Those statements are not rendered of the conspiracy and what activities were reasonably
inadmissible simply because they implicate others. Justice foreseeable by Tocco. We remand these issues to the district
Scalia explained a similar situation in his concurring opinion court, and we instruct the district court to determine which
in Williamson: underlying offenses may properly be attributable to Tocco for
purposes of sentencing him under § 2E1.1. The court should
For example, if a lieutenant in an organized crime then determine the offense levels applicable to those offenses
operation described the inner workings of an extortion and “make the appropriate adjustments under Parts A through
and protection racket, naming some of the other actors D of Chapter Three of the guidelines, using the [alternative]
and thereby inculpating himself on racketeering and/or base offense levels in turn, and compare the results.” United
conspiracy charges, I have no doubt that some of those States v. Sarault, 975 F.2d 17, 18 (1st Cir. 1992) (determining
remarks could be admitted as statements against penal that the district court properly followed the “protocol” of
interest. comparing the offense levels to determine whether it should
use the minimum level of 19 or the offense level attributable
Id. at 606-07 (Scalia, J., concurring). Here, Polizzi’s to the underlying racketeering activity in sentencing the
statements about the conspiracy linked himself to the others defendant); see also United States v. Damico, 99 F.3d 1431,
in the conspiracy, and were therefore against his own penal 1436-37 (7th Cir. 1996) (noting that parties agreed on four
interest. Thus, we decline to hold that those statements were “groups” of underlying racketeering activity).
rendered inadmissible by virtue of the fact that others were
implicated.7 See United States v. Barone, 114 F.3d 1284, The district court should note that any enhancement for
1295 (1st Cir. 1997) (finding admissible statements that grouping pursuant to § 3D1.3 would be added to the offense
“demonstrate ‘an insider’s knowledge’ of a criminal level calculation in § 2E1.1(a)(2), but not to the minimum
enterprise and its criminal activities”). offense level calculation in § 2E1.1(a)(1) for purposes of
determining which equation produces the greater result. See
Tocco also claims that any statements about Polizzi’s Damico, 99 F.3d at 1435 (finding that 4-level adjustment
involvement in the Frontier Hotel and Casino case were not under § 3D1.4 caused the subsection (a)(2) calculation to
against his penal interest because he had been convicted and exceed the calculation using the minimum level in subsection
sentenced for that conduct at the time he made the statements. (a)(1)); United States v. Boggi, 74 F.3d 470, 473 (3d Cir.
In other words, Polizzi was already in prison, so no penal 1996) (reasoning that the (a)(2) calculation is greater because
interest was at stake. We disagree, because Polizzi’s “only the subsection (a)(2) offense level will receive a four-
involvement in the Frontier Hotel and Casino was a predicate level adjustment under section 3D1.4"). When the court
act of the RICO conspiracy charged in this case, a conspiracy arrives at the alternative adjusted offense levels, it must apply
the highest adjusted offense level in sentencing Tocco.
(2) Enhancements
7
When Polizzi made the statements about involvement in organized As we have indicated, the district court rejected the
crime in Detroit and about Cosa Nostra, the statements were not made government’s contentions that Tocco’s offense level should
with the hope of implicating others to gain favor with the police. Under have been increased because of the threat of death, bodily
the circumstances, we believe that other corroborating factors also support
admissibility of the Polizzi testimony. See Price, 134 F.3d at 348 injury, or kidnapping (2 levels, § 2B3.2(b)(1)); because the
(discussing what types of corroborating evidence demonstrate loss exceeded $10,000 (1 level, § 2B3.2(b)(2)); for the
trustworthiness).
40 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 13
with, the criminal activity jointly undertaken by the of which Polizzi was a member and for which he was never
defendant is relevant conduct under this provision. The tried and convicted.
conduct of others that was not in furtherance of the
criminal activity jointly undertaken by the defendant, or Tocco did not raise an argument that the admission of
was not reasonably foreseeable in connection with that Polizzi’s statements violated his Sixth Amendment right to
criminal activity, is not relevant conduct under this confront witnesses testifying against him. See Lilly v.
provision. Virginia, 119 S. Ct. 1887, 1899 (1999). Even if we had, the
argument would have been unavailing. In Lilly, the Supreme
In determining the scope of the criminal activity that the Court concluded that an accomplice’s out-of-court statements
particular defendant agreed to jointly undertake (i.e., the that inculpate a defendant cannot be admitted against that
scope of the specific conduct and objectives embraced by defendant unless they bear “particularized guarantees of
the defendant’s agreement), the court may consider any trustworthiness.” Id. at 1899-1900. Those guarantees must
explicit agreement or implicit agreement fairly inferred be inherent in the circumstances of the testimony itself; the
from the conduct of the defendant and others. fact that other evidence corroborates the testimony in question
does not suffice. Id. at 1900. We find that the circumstances
U.S.S.G. § 1B1.3, note 2. surrounding Polizzi’s statements in this case indicate that the
statements were trustworthy, particularly in light of the fact
We agree with the government that the offense level that Polizzi’s statements were made to his son in confidence,
applicable to the conduct involved in the underlying rather than to the police or to any other authority for the
racketeering activity may exceed the offense level produced purpose of shifting the blame to Tocco. See Burton v.
by the § 2E1.1(a)(1) minimum level of 19, depending on what Phillips, 64 F. Supp. 2d 669, 680 (E.D. Mich. 1999) (reasoning
conduct is considered. The difficulty in this case is that the that statements made to a perceived ally rather than to police
district court failed to make any specific findings on what officers during an interrogation are trustworthy, citing Latine
conduct may be considered, and it failed to make any v. Mann, 25 F.3d 1162, 1166-67 (2d Cir. 1994)). Therefore,
comparisons of the resulting offense levels from the the admission of Polizzi’s statements would withstand a Sixth
underlying racketeering offenses. As we have stated, this case Amendment challenge.
involves more than one underlying offense, and the district
court must “treat each underlying offense as if contained in a Accordingly, we reject Tocco’s argument that the district
separate count of conviction of the purposes of (a)(2).” court erred in allowing into evidence Polizzi’s out-of-court
U.S.S.G. § 2E1.1, note 1. statements.
We agree with Tocco that he can only be held responsible (2) Documentary evidence relating to Polizzi
for actions of his co-conspirators that were in furtherance of
the jointly undertaken activity and that were reasonably We review the admission of exhibits under an abuse of
foreseeable in connection with that activity. See U.S.S.G. discretion standard. Bonds, 12 F.3d at 554. The government
§ 1B1.3. He is, however, “potentially liable for the argues that it sought to introduce Angelo Polizzi’s plea
foreseeable criminal acts of others in furtherance of th[e agreement and other exhibits relating to this witness “to blunt
criminal] enterprise even though he did not personally any cross-examination impeaching of Polizzi’s credibility”
participate in them.” United States v. Carrozza, 4 F.3d 70, 75 with respect to cooperating with the prosecution. The plea
(1st Cir. 1993). The district court made no findings agreement provided, among other things, that Angelo Polizzi
whatsoever as to what criminal activities were in furtherance would “provide truthful and complete information.” Tocco
14 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 39
maintains that introduction of this evidence impermissibly sentencing court to apply the adjustments contained in
constituted a vouching for Polizzi’s credibility, particularly Chapter 3 of the guidelines to determine if the underlying
since he was a key witness for the prosecution. We have offense would produce an offense level greater than 19.
considered this question previously and have concluded that
“[i]ntroduction of the entire plea agreement permits the jury Tocco claims that the government’s argument must fail
to consider fully the possible conflicting motivations because there was no evidence adduced at trial to show that
underlying the witness’ testimony.” United States v. Tocco, himself, “committed, aided, abetted, counseled,
Townsend, 796 F.2d 158, 163 (6th Cir. 1986). We noted commanded, induced, procured, or willfully caused” the
further: criminal activity that the government seeks to use against him,
or that the acts of his co-conspirators were “reasonably
While the existence of a plea agreement may support the foreseeable” in furtherance of a “jointly undertaken criminal
witness’ credibility by showing his or her interest in activity.” See U.S.S.G. § 1B1.3(a)(1). Tocco argues that the
testifying truthfully, the plea agreement may also government impermissibly relies on the charges in the
impeach the witness’ credibility by showing his or her indictment, rather than what conduct was proven at trial, in
interest in testifying as the government wishes regardless determining the relevant conduct for sentencing. Tocco relies
of the truth. on the application notes of § 1B1.3(a)(1):
Id.; accord, United States v. Mealy, 851 F.2d 890, 898-99 (7th In the case of a jointly undertaken criminal activity,
Cir. 1988) (holding that prosecutor may elicit testimony subsection (a)(1)(B) provides that a defendant is
regarding plea agreement and may enter agreement into accountable for the conduct (acts or omissions) of others
evidence). that was both:
Tocco counters with reliance upon United States v. Carroll, (i) in furtherance of the jointly undertaken activity; and
26 F.3d 1380 (6th Cir. 1994), which held that the prosecutor’s
improper reliance in closing argument on such an agreement (ii) reasonably foreseeable in connection with that
amounted to personal vouching for the truthfulness of the criminal activity.
witness’ testimony under the circumstances. The prosecutor
argued and emphasized in Carroll that the witness who had Because a count may be worded broadly and include the
entered into a similar plea agreement “would be in jeopardy” conduct of many participants over a period of time, the
if he were not testifying truthfully. Id. at 1389. scope of the criminal activity jointly undertaken by the
Circumstances were not the same in this case; the prosecutor defendant (the “jointly undertaken criminal activity”) is
made no similar closing argument and did not personally not necessarily the same as the scope of the entire
vouch for the truthfulness of Polizzi’s testimony. We do not conspiracy, and hence relevant conduct is not necessarily
agree with Tocco that Carroll supports reversal by reason of the same for every participant. In order to determine the
the introduction of the plea agreement as an exhibit. Indeed, defendant’s accountability for the conduct of others
the prosecutor may refer to such agreement in appropriate under subsection (a)(1)(B), the court must first determine
circumstances to deflect defendant’s use of a plea agreement the scope of the criminal activity the particular defendant
to attack the witness’ credibility. See Mealy, 851 F.2d at 898- agreed to jointly undertake (i.e., the scope of the specific
99. Thus, we find no error in the admission of these exhibits, conduct and objectives embraced by the defendant’s
agreement). The conduct of others that was both in
furtherance of, and reasonably foreseeable in connection
38 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 15
levels for Tocco’s supervisory role pursuant to U.S.S.G. and this assignment of error, therefore, does not support a
§ 3B1.1(b). Finally, the government argues that a 5-level reversal of Tocco’s conviction.
enhancement for grouping the offenses is appropriate under
U.S.S.G. § 3D1.3. Thus, if the enhancements included by the (3) Vitello’s testimony about labor racketeering
government were applicable, Tocco’s offense level applicable
to the conduct related to the underlying racketeering activity The district court permitted Vitello to testify about Vito
would be 36 [18 + 2 + 1 + 7 + 3 + 5 = 36]. According to the Giacolone’s taking care of labor problems in Toledo. Tocco
government, the minimum base offense level of 19 under claims that allowing the “labor racketeering” testimony
subsection (a)(1) would produce an offense level of 22, impermissibly “enlarged the scope of the indictment” and
adding only the 3-level enhancement for a supervisory role to strayed away “from the elements of the charges.” We are
the base offense level of 19 [19 + 3 = 22]. Thus, because hard pressed to see any unfair prejudice inherent in this brief
using the offense level applicable to the racketeering activity testimony. We agree with the district court that the evidence
produces a higher adjusted level, the government argues that related to the charged conspiracy. Tocco requested no
the court must use that number.12 limiting instruction, and we cannot conclude that the district
court’s decision constituted reversible error.
We must determine, then, whether the district court erred in
applying the base offense level of 19 pursuant to (4) Investigative reports by the Nevada Gaming
§ 2E1.1(a)(1) or whether, according to § 2E1.1(a)(2), the Commission
court should have used “the offense level applicable to the
underlying racketeering activity.” The question becomes, Through Clifton Copher, chief of the enforcement division
then, what conduct must be considered in determining what of the Nevada State Gaming Control Board, the government
constitutes “the underlying racketeering activity.” introduced records of the Board, also called “investigative
summaries,” into evidence.8 The government claims that
In this case, Tocco was convicted based on more than one these documents pertained to the application for a gaming
underlying offense. The government claims that those license for the Edgewater Casino and corroborated and placed
offenses include, but are not limited to, (1) the extortion into context the conversations of co-conspirators that had
conspiracy (Count Six), (2) the illegal gambling operation, (3) been intercepted. Also, the records were relevant to the
& (4) the involvement in the Edgewater and the Frontier defendants obtaining a hidden interest in the Nevada
Hotels, (5) obstruction of justice, and (6) the Harry Bowman gambling industry.
murder conspiracy. Application Note 1 to § 2E1.1 states that
“[w]here there is more than one underlying offense, [the court Tocco objected to the admission of the documents on the
should] treat each underlying offense as if contained in a basis that they contained opinions and were speculative. The
separate count of conviction for purposes of subsection district court overruled that objection, finding that the
(a)(2).” Id. In addition, that Application Note 1 directs the documents were admissible as business records. After the
witness was dismissed, the district court granted Tocco’s
request to redact certain portions of the reports. Six weeks
12
The government also argues that the court should have added 3
levels for Tocco’s supervisory or managerial role, and 5 levels according
to the grouping rules in U.S.S.G. § 3D1.4. We will address the basis for 8
those increases separately. Here we are concerned with the appropriate See Kraft v. Jacka, 872 F.2d 862, 867-68 (9th Cir. 1989), which sets
base offense level, or starting point, for Tocco’s sentence. out the Nevada regulatory procedures and controls involved.
16 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 37
later, the parties placed into the record an agreed-upon (1) The proper base offense level
redaction of only one of the reports.
First, the government contends that the district court erred
In this appeal, Tocco claims that the district court erred in in determining the base offense level for Tocco’s RICO
admitting the Board’s records into evidence. Upon conviction. Because the proper application of the guidelines
examination, we agree with the government that much of the is a question of law, we will review this issue de novo.
documentary evidence was not hearsay because it was based United States v. Bazel, 80 F.3d 1140, 1141 (6th Cir. 1996);
on facts that the Board had received from information see also United States v. Morgano, 39 F.3d 1358, 1378 (7th
supplied by the applicants. The objectionable portions which Cir. 1994).
might arguably be hearsay were redacted by agreement of the
parties. Furthermore, the exhibits were admissible for a non- The appropriate offense level should be determined by
hearsay purpose--they showed the predicate act of the reference to U.S.S.G. § 2E1.1, which provides that the base
defendants obtaining a hidden interest in the Edgewater, and offense level for unlawful conduct related to racketeer
they assisted in showing why the Gaming Board granted the influenced and corrupt organizations is either 19 or “the
applicants only a temporary gaming license. Thus, we are not offense level applicable to the underlying racketeering
persuaded that the district court should have excluded these activity,” whichever is greater. Here, the district court
documents as inadmissible hearsay, and in view of the court’s concluded, consistently with the recommendation in the
action in allowing redactions to particular objectionable presentence report, that 19 was the appropriate base offense
portions, no error in this regard has been established. level in this case. The report reviewed all of the overt acts of
Tocco and determined that the guideline for the underlying
(5) Judgments of conviction offense was § 2E3.1, relating to gambling offenses, which
requires a base offense level of 12. Because the RICO
At trial, the district court allowed the government to admit minimum is 19 was higher, the court used that number as the
into evidence the certified convictions against certain of base offense level for sentencing purposes.
Tocco’s co-defendants. Tocco generally objected to the
admission of that evidence, but at no time did he specifically The government argues that the extortion of Ramzi Yaldoo
complain that this was an improper use of offensive collateral produced the highest base offense level as that level would
estoppel. Because we find that the admission of those have been calculated under U.S.S.G. § 2B3.2, which pertains
convictions was permissible, we will assume for purposes of to extortion by force or threats. According to the
our analysis that the issue was properly preserved for review. government’s calculations, that extortion would dictate a base
offense level of 18 and would be increased by 10 levels
Tocco argues that the government is not permitted to rely because that crime involved an express or implied threat of
on the judgments of conviction to prove the predicate acts of death, bodily injury, or kidnapping (increase of 2 levels,
a RICO charge. Such use of those convictions, he claims, § 2B3.2(b)(1)), a loss in excess of $10,000 (increase of 1
constitutes improper offensive collateral estoppel, relying on level, § 2B3.2(b)(2)), and the discharge of a weapon (increase
the reasoning in United States v. Pelullo, 14 F.3d 881 (3d Cir. of 7 levels, § 2B3.2(b)(3)(A)(i)).11 In addition, as we will
1994). In Pellulo, however, the district court held that the discuss below, the government advocates an increase of 3
previous conviction of the defendant established the existence
of a predicate act under RICO, and the court instructed the
jury to recognize the predicate act as a matter of law. See 11
The government claims that the Harry Bowman murder conspiracy
Pellulo, 14 F.3d at 889-90. The instant case is different, would also require the same offense level.
36 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 17
criminal activity of which he was convicted. The report takes because the district court here entered into evidence the
pains to discredit the testimony of Angelo Polizzi, a key convictions of Tocco’s co-defendants, who had the
witness for the government, referring to his criminal offenses, opportunity to show the jury that he was not involved in their
the loss of his license to practice law, and his receiving a crimes. Furthermore, the court did not give a “collateral
sentence of probation in connection with his testimony. estoppel” instruction as the court did in Pellulo. The
government explained that “[w]hether or not Mr. Tocco was
It also makes reference to the affidavit of Tocco’s deceased connected to that is a jury-question for the jury to determine.”
former attorney and to the statements of other “defense Also, there was other evidence that corroborated the
attorneys” who maintain that Tocco “has been under constant information about the convictions in question. Thus, because
FBI surveillance,” and that certain past events “justify any no collateral estoppel effect was given to the challenged
feelings of harassment that he may hold against the evidence, Tocco’s argument is unfounded.
government.” The probation officer concluded that
“surveillance never produced a single instance where JACK (6) FBI Agent Ruffino as an expert witness
WILLIAM TOCCO was observed committing a crime or
overheard discussing a crime,” and then added that “[n]o The district court allowed one of the case agents, Samuel J.
evidence was introduced that JACK WILLIAM TOCCO has Ruffino, to testify as an expert on organized crime. Tocco
ever been in the company of all of the six men who are claims that allowing that testimony constituted error because
alleged by the Indictment to be ‘capos’ of the alleged Detroit he received insufficient pretrial notice that Ruffino would be
organized crime group.” Also along those lines, the report testifying in that capacity, and because Ruffino should not
criticizes the government for its longstanding pursuit of have been permitted to testify both as a fact witness and an
Tocco, stating that Tocco has been under investigation for expert witness. We review the district court’s admission of
thirty years “and for some reason, the government waited expert testimony under an abuse of discretion standard.
until 1996, or until the defendant was aged and infirm, to Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct.
indict him.” 1167, 1174-75 (1999).
Overall, the probation office appears to have been After the jury had been selected but before the trial began,
preoccupied with expressing its concern that Tocco was the government moved to have Alfonso D’Arco qualified as
unjustly pursued by the government or that his conviction was an expert to testify about the nature, organization, rules, and
based on evidence that was not credible. We have addressed structure of the national Cosa Nostra enterprise. Though the
the concerns regarding the sufficiency of the evidence, and we district court initially agreed to allow that testimony, it
will not reconsider those concerns at this juncture. Rather, we reversed itself two days later with the agreement that it would
must focus on whether Tocco was lawfully and appropriately consider a renewed motion later in the trial. On March 2,
sentenced pursuant to the United States Sentencing 1998, the government renewed its motion to qualify D’Arco,
Guidelines with reference to the record in this case, keeping and it also informed the court of its intent to call Ruffino if
in mind the three counts on which Tocco was convicted. D’Arco was not allowed to testify. About ten days later, more
than a month before he testified, the government formally
We now turn to the government’s assignments of error. notified the court and all the defendants that it intended to call
Ruffino as its expert on “the structure, the organization, the
rules, the interpretation of phrases, and jargon that’s been
used in [the] trial, on the tapes, the hierarchy and the roles of
18 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 35
individuals.” Thus, Tocco knew before trial that some form category of cases, and departed downward 10 levels from the
of “organized crime” expert would testify, and he knew one guideline range based on Tocco’s overwhelming community
month before the actual testimony that Ruffino would be the service (4 levels), Tocco’s age and debilitating health (4
expert. Tocco did not request a continuance, nor did he claim levels), and Tocco’s wife’s poor health (2 levels).
that he did not have sufficient time to examine the witness Consequently, the final total offense level was 12, and with a
prior to his testimony. We conclude that, under these criminal history category of I, the court noted that the
circumstances, this notice concerning Ruffino was adequate applicable guideline range was 10 to 16 months. The court
and sufficient. sentenced Tocco to 12 months and one day for each of the
three counts of conviction, to be served concurrently,
Tocco also claims that the district court erred in admitting followed by two years of supervised release, and
Ruffino’s testimony as an expert witness because of the undue recommended a community corrections center as the place of
prejudice involved in Ruffino testifying as both a fact witness confinement. In addition, the court ordered Tocco to
and an expert witness. We rejected a similar argument in complete 705 hours of community service and imposed a fine
United States v. Thomas, 74 F.3d 676 (6th Cir. 1996), where of $75,000 plus and amount equal to the cost of incarceration
the defendant argued that a police officer should not be able and supervision (approximately $20,000). The district court
to testify in a single case as both a fact witness and an expert denied the government’s request for a forfeiture judgment.10
witness. We noted that although “there is a significant risk
that the jury will be confused by the officer’s dual role,” we The government now appeals, claiming that the district
are not willing to adopt a per se prohibition of the practice of court erred in applying the § 2E1.1(a)(1) minimum base
allowing an officer to testify in two capacities. Thomas, 74 offense level of 19 rather than the offense level applicable to
F.3d at 682-83. If the district court and the prosecutor take the underlying racketeering activity of extortion pursuant to
care to assure that the jury is informed of the dual roles of a § 2E1.1(a)(2). The government also claims that the district
law enforcement officer as a fact witness and an expert court should have enhanced Tocco’s sentence for his role in
witness, then the officer’s “expert” testimony may be proper. the conspiracy, and for specific characteristics of the extortion
See id. at 683. crime including the use of threats, the discharging of a
firearm, and because the total loss was in excess of $10,000.
In this case, Ruffino’s dual roles were emphasized to the According to the government, Tocco’s offense level should
jury by the fact that he testified at two different times – once have been 36, calculated pursuant to § 2B3.2, for a guideline
early in the trial as a fact witness, and again at the conclusion range of 188-235 months. Furthermore, the government
of trial as an expert witness. Furthermore, the district court contends that the district court erred in departing downward
instructed the jury, both before he gave his opinion and again ten levels. We will discuss each argument below.
in the jury charge, that it should consider Ruffino’s dual roles
in determining what weight, if any, to give Ruffino’s expert At the outset, we note that we can recall no presentence
testimony. Under these circumstances, the district court did report comparable to the one pertaining to Tocco in the
not abuse its discretion in allowing Ruffino to testify in both instant case, containing what might well be construed as
capacities. “arguments” that Tocco was not involved in most of the
Ruffino’s testimony was certainly relevant and reliable
under the principles of Daubert v. Merrill Dow 10
We do not address the propriety of the district court’s decision to
Pharmaceuticals, Inc., 509 U.S. 579 (1993). This type of deny the government’s request for a forfeiture because the government
did not raise that as an issue in its appeal.
34 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 19
evidence also showed that agents Finnigan and Ruffino had evidence regarding the inner-workings of organized crime has
met with Tocco to inform him that he would be held been held to be a proper subject of expert opinion because
responsible personally for violent acts that two of his such matters are “generally beyond the understanding of the
unnamed associates were planning. At the time, Tocco average layman.” Thomas, 74 F.3d at 682; see also United
claimed ignorance and denied that any such association States v. Amuso, 21 F.3d 1251, 1264 (2d Cir. 1994); United
existed. Less than forty-eight (48) hours later, however, Nove States v. Locascio, 6 F.3d 924, 936-37 (2d Cir. 1993); United
and Corrado received the message that the FBI had visited States v. Pungitore, 910 F.2d 1084, 1148-49 (3d Cir. 1990).
Tocco and had given him that warning. Further, to the extent that Tocco challenges Ruffino’s
qualifications on the subject about which he testified, we
That evidence, when viewing all inferences in a light most reject any such contention in light of the undisputed facts.
favorable to the government, supports a finding that Tocco Ruffino has extensive experience in the investigation of
was involved in the conspiracy to commit extortion. Though organized crime in the Detroit area, including 22 years with
the jury may have found it justifiable to acquit Tocco on the the FBI, 17 of which were spent in organized crime
substantive extortion counts, it could very well have found investigations, and his role since 1990 as the Cosa Nostra
contemporaneously that Tocco was involved to some degree coordinator for the Detroit division, and as liason with other
in a conspiracy to commit those crimes. FBI offices and FBI headquarters. Thus, he was amply
qualified to opine about the machinations of organized crime.
In sum, from our review of the voluminous record in this
case, we conclude that the evidence against Tocco on the In summary, we conclude that the district court did not
three counts for which he was convicted was not only abuse its discretion in allowing agent Ruffino to testify as an
sufficient, but it was substantial. The portions of testimony expert and that his testimony met the standards of relevance
and evidence mentioned above constitute only a portion of the and reliability. Furthermore, the dual role played by Ruffino
evidence admitted into evidence during the course of the as both a fact witness and an expert did not, under the
lengthy trial. Thus, we are firmly convinced that the district circumstances, preclude his testimony because the transition
court did not err in failing to grant Tocco a judgment of from one role to another was separated by time and was
acquittal on any of the three counts of conviction. explained to the jury.
G. Sentencing of Tocco (7) Co-conspirator statements
The district court sentenced Tocco according to the Tocco contends that the district court erroneously admitted
recommendation in the presentence report, finding those tapes (wire intercepts) of conversations between Nove Tocco
calculations to be “accurate and correct.” The report assigned and Paul Corrado because they were not “in furtherance of the
Tocco a base offense level of 19, which is the minimum level conspiracy” charged. Rather, Tocco claims, those tapes
for RICO convictions pursuant to U.S.S.G. § 2E1.1(a)(1). contained nothing more than idle, malicious gossip and
Three points were added pursuant to U.S.S.G. § 3D1.4, which inflammatory statements which unduly prejudiced his case.
sets out the enhancements due to the grouping of the various
counts, making the adjusted offense level 22. The court If the conversations admitted were “nothing more than idle
agreed with the report’s conclusion that no other chatter or casual conversation about past events,” they were
enhancements were applicable, so the total offense level not properly admissible. United States v. Shores, 33 F.3d
remained at 22. The district court then determined that this 438, 444 (4th Cir. 1994); see also United States v. Doerr, 886
case was an extraordinary case, outside the “heartland” F.2d 944, 951-52 (7th Cir. 1989). The court in Doerr
20 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 33
acknowledged that “statements ‘in furtherance’ of a in an illegal gambling business (sports betting and numbers)
conspiracy can take many forms,” such as keeping co- by bankrolling the operation. The overt acts charged in Count
conspirators advised, or concealing aspects of the scheme. Id. Two were periodic distributions of funds realized from this
at 951. The statement may also be “susceptible of alternative operation to the charged partners or co-conspirators.
interpretations.” Id. at 952; see also Shores, 33 F.3d at 444. Therefore, the separate counts were justified in this case.
Shores goes further to indicate that a statement may be
admissible as “in furtherance of a conspiracy” even if “not The unlawful collection involved in Count Two was shown
‘exclusively, or even primarily, made to further the through the testimony of Angelo Polizzi, who explained that
conspiracy.’” Id. (quoting United States v. Shoffner, 826 F.2d the proceeds of his father’s illegal gambling business were
619, 628 (7th Cir. 1987)); see also United States v. Hitow, pooled by the enterprise and then filtered to the partners in the
889 F.2d 1573, 1581 (6th Cir. 1989); United States v. form of weekly draws and year-end bonuses. The unlawful
Hamilton, 689 F.2d 1262, 1270 (6th Cir. 1982). debt is the gambling proceeds. The government notes that
only the partners who received these payments, including
We are satisfied, after examining the record, that the great Tocco, were charged in Count Two. Under these
bulk of the admitted evidence tended to demonstrate (1) that circumstances, the testimony of Angelo is sufficient for a
the conspiracy in question existed; (2) that those whose reasonable jury to find that the elements of Count Two have
statements were overheard were members of the conspiracy been supported by the evidence.
that included Tocco; and (3) that the statements were, in fact,
made “during the course and in furtherance of the conspiracy (4) Count Six — Hobbs Act Conspiracy
at issue” according to FED. R. EVID. 801(d)(2)(E). The
provision applies when “a court is satisfied that the statement Tocco claims that the evidence was insufficient to show
actually falls within the definition of the rule.” Bourjaily v. that Tocco knew of the purpose of the conspiracy to commit
United States, 483 U.S. 171, 175 (1987). “[T]he existence of extortion by Nove Tocco and Paul Corrado, which is the basis
the conspiracy and [defendant’s] involvement in it are for the Hobbs Act charge in Count Six. The jury acquitted
preliminary questions of fact that under [FED. R. EVID.] 104, Tocco of the underlying extortions or attempted extortions
must be resolved by the court.” Id. that were charged against him in the indictment, but convicted
him only of the conspiracy to commit those crimes. Tocco
Bourjaily held also in considering this issue “that there is suggests that such verdicts are inconsistent and represent a
little doubt that a co-conspirator’s statements could compromise by some jurors who may not have thought that
themselves be probative of the existence of a conspiracy.” Id. Tocco was actually involved in Nove Tocco’s and Paul
at 180. Here, Nove Tocco’s and Paul Corrado’s Corrado’s affairs.
conversations are probative of the existence of a conspiracy
in which defendant Tocco was involved, and other evidence We agree with the government that the tape recorded
was probative on this matter as well. It was not error to conversations of Nove and Corrado, coupled with the
consider that the controverted statements were made in the Finnigan and Ruffino evidence, were sufficient to support
course and scope of the conspiracy. Tocco’s conviction on this count. Specifically, the tape
recorded conversations of Nove and Corrado candidly showed
We are concerned, however, with certain remarks of a a conspiracy to commit extortion by the collection of a “street
racial nature that were made in the conversations that should tax,” and also tended to show that Tocco had the authority to
have been excised from the tapes. For example, one of the influence from whom they would extort money and how the
collection of the “street taxes” would be enforced. The
32 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 21
allegations of family connections and relationships, and a comments on the tapes was that “I think you might win up
pattern of criminal activity. In Salinas, supra, the Supreme here [in Detroit] with a nigger trial, nigger jury.” Also, a
Court stated that “[t]here is no requirement of some overt act statement was made that “they seem to have success over
or specific act in the [RICO] statute before us. . . . [Section there [in New York City] because there’s so many Italians and
1962] is even more comprehensive than the general American people, the Wasps or whatever, are so used to being
conspiracy offense in §371.” Id. at 63. “[S]o long as the around other Italians, they’re accepted.”
purpose of the agreement is to facilitate commission of a
crime, the actor need not agree ‘to commit’ the crime.” Id. at Although we agree that those particular denigrating
65 (quoting the American Law Institute, Model Penal Code, comments were unfairly prejudicial, they were only a very
Tent. Draft No. 10, p. 117 (1960)). minor portion of the total discussion on the tapes.
Accordingly, the district court did not commit reversible error
We believe that there was sufficient evidence for a rational in refusing to strike the tapes in total as urged by defendant
jury to find that defendant Tocco agreed to “facilitate . . . Tocco, though it would have been advisable to strike the parts
some of the acts leading to the substantive offense[s]” that we have mentioned. We note that a case relied upon by
charged. Id. Indeed, Angelo Polizzi testified that Tocco was Tocco, United States v. Johnson, 927 F.2d 999 (7th Cir.
the boss of the organization. Even if the proof did not show 1991), found that certain co-conspirator statements were
that all the substantive offenses related to the RICO improperly admitted against defendant, but that the error did
conspiracy actually occurred, “[i]t is elementary that a not affect the “substantial rights” of the defendant and was
conspiracy may exist and be punished whether or not the therefore not reversible. Johnson, 927 F.2d at 1003. Here, as
substantive crime ensues, for the conspiracy is a distinct evil, in Johnson, the prosecution presented substantial other
dangerous to the public, and so punishable in itself.” Id. The evidence “from which the jury might have concluded”
testimony confirmed the general nature of the enterprise, and defendant’s guilt, and his conviction will not be reversed
that Tocco knew that the enterprise extended beyond his role based on the admission of the co-conspirator’s statements. Id.
therein.
In sum, none of the evidentiary issues raised by Tocco
(3) Count Two — Collection of an Unlawful Debt require this court to reverse his conviction.
Tocco argues that Count Two is duplicitous of Count One, E. Prosecutorial Misconduct
because Count Two charges another RICO conspiracy which
has as its object the collection of an unlawful debt. It is true Tocco moved for a mistrial based upon several aspects of
that Count Two relies on the same enterprise as is involved in alleged prosecutorial misconduct, and the district court denied
Count One, but the crime charged in Count Two is not part of that motion. We review the district court’s decision for an
the predicate acts in Count One. These counts are not abuse of discretion. United States v. Carroll, 26 F.3d 1380,
duplicitous, but they are related. In a collection of an 1383 (6th Cir. 1994). “An abuse of discretion exists when the
unlawful debt conspiracy, the government need only show an reviewing court is firmly convinced that a mistake has been
agreement as to one act of collection, whereas a pattern of made.” Id.
racketeering activity RICO conspiracy requires an agreement
to commit at least two predicate acts. See United States v. When reviewing claims of prosecutorial misconduct,
Oreto, 37 F.3d 739, 751 (1st Cir. 1994); Eufrasio, 935 F.2d we determine first whether the statements were improper.
at 576. The predicate acts in count one involved Tocco’s part See United States v. Krebs, 788 F.2d 1166, 1177 (6th
Cir.1986). If they appear improper, we then look to see
22 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 31
if they were flagrant and warrant reversal. See United Thus, the government submitted sufficient evidence to show
States v. Carroll, 26 F.3d 1380, 1388 (6th Cir. 1994). To that an enterprise existed.9
determine flagrancy, the standard set by this Court is: 1)
whether the statements tended to mislead the jury or (2) Count One — Pattern of Racketeering
prejudice the defendant; 2) whether the statements were
isolated or among a series of improper statements; 3) Tocco claims that the evidence did not show a pattern of
whether the statements were deliberately or accidentally racketeering. To show a pattern of racketeering activity
before the jury; and 4) the total strength of the evidence conspiracy, a defendant need not personally agree to commit
against the accused. United States v. Monus, 128 F.3d two predicate acts; rather, he need only “kn[ow] about and
376, 394 (6th Cir.1997) (citing United States v. Cobleigh, agree[ ] to facilitate the scheme.” Salinas v. United States,
75 F.3d 242, 247 (6th Cir. 1996)); Carroll, 26 F.3d at 522 U.S. 52, 66 (1997). Further, a defendant need not know
1385 (citing United States v. Leon, 534 F.2d 667, 679 about every member and component of the enterprise; he need
(6th Cir.1976)). To reverse a conviction because of an only know “the general nature of the enterprise and that the
improper non-flagrant statement, a reviewing court must enterprise extends beyond his role.” United States v.
determine that: 1) the proof of the defendant's guilt is not Eufrasio, 935 F.3d 553, 577 n.29 (3d Cir. 1991).
overwhelming; 2) the defense counsel objected; and 3)
the trial court failed to cure the impropriety by failing to Tocco argues that the government failed in its burden of
admonish the jury. Monus, 128 F.3d at 394; Carroll, 26 showing a pattern of racketeering with respect to himself
F.3d at 1385-86 (citing United States v. Bess, 593 F.2d because the evidence showed no more than a series of
749, 757 (6th Cir.1979)). unrelated acts by people not acting in concert with each other,
although many knew each other. Tocco argues that he had no
United States v. Francis, 170 F.3d 546, 549-50 (6th Cir. knowledge of many of the acts committed by the others in the
1999); see also Pritchett v. Pitcher, 117 F.3d 959, 964 (6th purported conspiracy.
Cir. 1997) (quoting Serra v. Michigan Dept. of Corrections,
4 F.3d 1348, 1355-56 (6th Cir. 1993)). We will not overturn The testimony at trial belies Tocco’s assertions. Angelo
a verdict unless the prosecutorial misconduct is “so Polizzi, if believed, provided evidence to show the criminal
pronounced and persistent that it permeate[d] the entire enterprise in operation, with Tocco as a “boss” thereof. The
atmosphere of the trial, . . . or so gross as probably to tapes of Corrado and Nove Tocco, if believed, supported
prejudice the defendant.” Pritchett, 117 F.3d at 964 (citations
omitted).
9
Tocco raises seven categories of government misconduct Tocco briefly argues that the RICO conspiracy charges are barred
by the five-year statute of limitations. However, “a RICO conspiracy
that, taken together, allegedly require reversal. For the offense is complete, thus commencing the running of the five-year statute
following reasons, we are not “firmly convinced that a of limitations, only when the purposes of the conspiracy have either been
mistake has been made,” nor are we persuaded that there has accomplished or abandoned.” United States v. Salerno, 868 F.2d 524,
been a denial of a fair trial by the actions of the prosecutor. 534 (2d Cir. 1989) (citing United States v. Persico, 832 F.2d 705, 713 (2d
See Carroll, 26 F.3d at 1383. Cir. 1987)). Tocco has not persuaded us that the purposes of the
conspiracy had been accomplished more than five years before his
continuing involvement was shown, nor has it been demonstrated that he
We turn to the specifics of the alleged misconduct. abandoned the ongoing enterprise. Certainly, Tocco has not shown any
affirmative withdrawal. See United States v. Rogers, 118 F.3d 466 (6th
Cir. 1997).
30 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 23
(1) Counts One and Two — Proof of the Enterprise (1) Blurt-outs
Tocco first challenges the sufficiency of the evidence of an Tocco claims that the prosecution improperly orchestrated
enterprise. The existence of an enterprise is shown “by questions and answers that intentionally brought before the
evidence of an ongoing organization, formal or informal, and jury opinions of experienced FBI agents that Tocco and others
by evidence that the various associations function as a were “known members of the Cosa Nostra family.” Tocco
continuing unit.” Turkette, 452 U.S. at 583. “Continuity of promptly objected to such “blurt-outs” at trial, and the district
structure exists where there is an organizational pattern or court forcefully sustained those objections and admonished
system of authority that provides a mechanism for directing counsel in that respect.
the group’s affairs on a continuing, rather than ad hoc, basis.”
United States v. Kragness, 830 F.2d 842, 856 (6th Cir. 1987). At the end of the first day of trial, the court expressed its
preference that the terms “La Cosa Nostra” or “Mafia” not be
The government claims that it presented sufficient evidence used unless the defendants’ participation in that group was
to show the existence of an enterprise, which was the Detroit first established. The court further stated that “it’s not going
organized crime family called La Cosa Nostra. The majority to be any kind of a terminal problem if [the improper
of this proof, the government notes, came through the terminology] slips out.” Later in the trial, when government
testimony of Angelo Polizzi and Ruffino, and through the agent Stejskal was asked why he was engaged in a
recorded conversations admitted at trial. The testimony surveillance of Tocco, he said because “Jack Tocco was
showed a highly structured organization with Tocco as the considered to be a member of the Detroit family of La Cosa
boss. According to the testimony, there were ten to twelve Nostra.” Tocco did not object at that time, but he objected
partners, all associated by blood or by marriage, including when Stejskal subsequently stated that Raffaele Qusarano was
Michael Polizzi and Anthony Corrado, and several lower- a member of the Detroit family. The district court sustained
level members, including Paul Corrado and Nove Tocco. the objection, then later warned that there should be no “more
conclusory testimony about we knew that these men were
Tocco argues that the evidence fails to show an such and such.” When Tocco moved for a mistrial on the
ascertainable structure distinct from any structure inherent in basis of the improper comments, the district court denied the
the conduct of a pattern of racketeering activity. Tocco’s motion and explained that it had effectively sustained any
position, however, ignores the testimony of Angelo Polizzi, objections in that regard and that a new trial was not
who testified as to statements made by his father regarding his warranted. Tocco did not request any curative instruction on
involvement in La Cosa Nostra and the expert testimony of the issue.
Ruffino, who testified about the general structure of La Cosa
Nostra and other details involved in organized crime. As the We agree, as the district court recognized, that any
Eighth Circuit has recognized, “the command system of a testimony that Tocco was a “known” member or “boss” of La
Mafia family is an example of th[e] type of structure” that is Cosa Nostra was improper. The impropriety, however, was
distinct from the pattern of racketeering activity. See United not flagrant, nor was it so pervasive as to “permeate the entire
States v. Flynn, 852 F.2d 1045, 1052 (8th Cir. 1988) (quoting atmosphere of the trial.” Rather, when Tocco objected to the
United States v. Bledsoe, 674 F.2d 647, 665 (8th Cir. 1982)). improper remarks, the district court promptly sustained any
objections and the government complied with the court’s
admonishments. Furthermore, the government was charged
with proving its allegation that Tocco was a member of La
24 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 29
Cosa Nostra, so every reference to the group can not be omitted). The jury may draw any reasonable inferences from
deemed to have been improper. The improper witness direct, as well as circumstantial, proof. See United States v.
comments constituted a very small part of the total evidence Locascio, 6 F.3d 924, 944 (2d Cir. 1993). Once a conspiracy
against Tocco. The district court did not decline any has been proven, only slight evidence is necessary to
precautionary instructions suggested by Tocco. implicate a defendant as a participant in that conspiracy if the
evidence shows the connection beyond a reasonable doubt.
In conclusion, we deem Tocco’s concerns to be legitimate, See United States v. Braggs, 23 F.3d 1047, 1051 (6th Cir.
but, on balance, we find that the district court did not abuse its 1994).
discretion in failing to grant a new trial based on the improper
episodes. See United States v. Forrest, 17 F.3d 916, 920-21 At the conclusion of the government’s proof, Tocco moved
(6th Cir. 1994) (holding that the challenge was legitimate, but for acquittal “relying on the brief filed by co-defendant
finding that the episodes did not warrant a mistrial). [Anthony Tocco].” We have not been furnished in the
substantial joint appendix a copy of that motion, so we look
(2) “Vouching” for the credibility of Angelo Polizzi to Tocco’s appellate brief for his position with respect to this
“heavy burden” of persuasion. In an opinion filed July 30,
Tocco claims that the government improperly “vouched” 1998, the district court simply concluded as to this defendant
for the credibility of Angelo Polizzi by entering into evidence that “[a]dequate evidence was adduced at trial to support the
Polizzi’s plea agreement and related documents which stated jury’s verdict on all charges,” and, therefore, denied Tocco’s
that he had to testify truthfully in order to obtain lenity. motion for acquittal and for a new trial. Here, Tocco again
Whether improper vouching amounts to prosecutorial argues that the evidence was insufficient to convict him on all
misconduct and whether it renders the trial fundamentally three counts of which he was found guilty.
unfair are mixed questions of law and fact reviewable de
novo. Francis, 170 F.3d at 549. Proof of a charge under § 1962(d) requires proof that the
association or enterprise existed and that the named
Tocco argues that this situation is like that described in defendants were associated with and agreed to participate in
Carroll, supra, where this court held that the government may the conduct of its affairs, which affect interstate commerce,
not “vouch” for the credibility of its witnesses by disclosing through a pattern of racketeering activity (Count One) or
to the jury the witness’s obligation under his plea agreement through the collection of an unlawful debt (Count Two). See
or by prosecutor comments suggesting that a witness will be United States v. Turkette, 452 U.S. 576, 583 (1981); United
punished by not testifying truthfully. Such a practice, we States v. Qaoud, 777 F.2d 1105, 1116 (6th Cir. 1985). These
found, “improperly place[s] the prestige of the government, elements are separate and distinct. Turkette, 452 U.S. at 583.
and even of the court, behind the credibility of the [witnesses] Evidence used to show the existence of the enterprise may
by stating that, if the government or the judge did not believe also support the participation element. Id. The RICO statute
that the witnesses were being truthful, the witnesses would be defines an enterprise as “includ[ing] any individual,
in jeopardy. . . . This constitutes improper vouching. . . . We partnership, corporation, association or other legal entity, and
cannot overstate the extent to which we disapprove of this any union or group of individuals associated in fact although
sort of improper vouching by prosecutors.” Carroll, 26 F.3d not a legal entity.” 18 U.S.C. § 1961(4).
at 1389.
In this case, the government introduced into evidence
documents related to the benefits that Angelo received for his
28 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 25
(7) FBI escort of cooperating witness to witness cooperation with the government. Those documents were
stand/testifying about witness’s fears redacted to exclude the phrase that Angelo “provided truthful
and very valuable testimony.” In his examination of Angelo,
At trial, FBI agents escorted the first government witness, the prosecutor never referred to the parts of the documents
Angelo Polizzi, into the courtroom and all the way to the that explained the benefits that were conferred in exchange
witness chair, which Tocco claims indicated to the jury that for Angelo’s testimony. Tocco fails to point out any
government witnesses were in danger from the defendants. comments made by the prosecutor to the effect that the
Tocco objected, and the district court directed that there be no government and the court would prosecute Polizzi for perjury
more escorting of witnesses to the stand. Tocco argues that and revoke his plea agreement if he did not testify truthfully.
the district court committed reversible error in failing to grant Nor did the prosecutor indicate that he had any other
him a mistrial because of the FBI escort of Polizzi. independent means of discerning Polizzi’s truthfulness. Thus,
the only basis for Tocco’s claim is the unredacted portions of
The agents that escorted Polizzi were in plain clothes and Polizzi’s plea agreement and related documents, the
without weapons. There were no prosecutorial comments admissibility of which we have discussed and affirmed above.
relating to the escort and the need for witness protection. There being no improper prosecutorial statements, we must
Though witness endangerment could have possibly been reject Tocco’s contention of improper vouching. See Francis,
inferred, the district court resolved the issue by disallowing 170 F.3d at 549-50 (reasoning that court must first determine
such escorts for the other witnesses. We find no error, much whether the prosecutor’s statements are improper).
less any “egregious” error, in the action taken by the district
court and denial of the motion for mistrial based upon this (3) Impermissible comments on the exercise of Tocco’s
alleged misconduct. right to seek counsel
In sum, we find that none of the alleged instances of Tocco claims that prosecutorial misconduct occurred when
prosecutorial misconduct, alone or collectively, justify a new the prosecution elicited testimony during trial from various
trial in this case. witnesses indicating that Tocco had requested to see an
attorney, that he had consulted an attorney, and that he
F. Insufficiency of the Evidence consulted an attorney in the company of co-conspirators.
This, Tocco argues, constituted “an impermissible comment
We review a challenge to the sufficiency of the evidence de on the defendant’s exercise of his constitutional right.”
novo, considering “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of We find this argument to be without merit. First, it seems
fact could have found the essential elements of the crime that Tocco did not object to most of this evidence at the time
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. it was admitted. Rather, counsel for Anthony Tocco objected
307, 319 (1979); see also United States v. Jones, 102 F.3d to the possible prejudice of surveillance evidence that Tocco
804, 807-08 (6th Cir. 1996). A defendant making such a went to Peter Bellanca’s law offices. He feared that such
challenge bears a very heavy burden. United States v. evidence would prejudice his client, Anthony Tocco. The
Spearman, 186 F.3d 743, 746 (6th Cir. 1999), petition for district court rejected that argument because the evidence
cert. filed (U.S. Oct. 29, 1999) (No. 99-6812). tended to show Tocco’s association with an illegal casino
“Circumstantial evidence alone is sufficient to sustain a matter. It was not offered for any improper purpose.
conviction and such evidence need not remove every Assuming that Anthony’s objection preserves the issue for
reasonable hypothesis except that of guilt.” Id. (citation
26 United States v. Tocco Nos. 98-2312/2426; 99-1003 Nos. 98-2312/2426; 99-1003 United States v. Tocco 27
Tocco in this appeal, we find that the evidence of Tocco’s When Tocco objected to the second comment (he did not
visit to Bellanca’s law office — or evidence that Tocco object to the first), the prosecutor explained that he was
sought out or consulted the advice of an attorney generally — arguing his recollection of Vitello’s testimony. Vitello
simply does not invade the attorney-client relationship, nor actually testified that when he had problems Tocco referred
does such evidence impinge on the exercise of Tocco’s him to Tony Lapiana, who had previously helped him handle
constitutional right to consult with an attorney. The mere act union grievances.
of hiring an attorney is simply not probative of Tocco’s guilt
or innocence under these circumstances. We have examined this contention in light of the record
and, again, find no justifiable basis for concluding that this
(4) Admitting evidence of an unrelated murder episode amounted to prosecutorial misconduct. At most, as
the district court apparently concluded, the prosecutor argued
Tocco argues that prosecutorial misconduct occurred when a mistaken recollection of the facts and the jury was reminded
the government introduced evidence that the cousin of the that it was the determiner of the true facts from the evidence.
bookmaker Yatooma was murdered. The government claims Under the circumstances, Tocco is not entitled a new trial
that it had offered that evidence to explain when and why based on this assignment of error.
Yatooma’s bookmaking business suddenly increased sharply.
Yatooma testified that his cousin’s bookmaking customers (6) Shuffling of documents in Exhibit 116
started dealing with him after his cousin died. Tocco did not
object to that evidence. When asked in cross-examination Tocco argues that the prosecutor added pages to Exhibit
whether the defendants were involved in the murder, 116, a Nevada Gaming Commission record, after the exhibit
Yatooma responded, “Oh, no, sir, no.” Though the court gave had been entered into evidence. Tocco alleges that an
an instruction for the jury to disregard such testimony, Tocco egregious error was committed when the prosecutor was
now claims that the prejudice from that evidence was too allowed to refer to the pages that had been added during his
prejudicial for a curative instruction to mitigate. closing argument. He claimed that the prosecutor
impermissibly “shuffled” the exhibit to include the
We disagree. The prosecution did not imply that the investigative summaries that were not a part of the exhibit
murder was related to defendant Tocco, and the evidence did when it was admitted.
not by its own nature imply such a conclusion. The witness
specifically denied that Tocco or any other defendant was From our review of the record, it is apparent that the
involved, and the district court issued a curative instruction on reference to the pertinent pages of Exhibit 116 did not
the matter. Under these circumstances, we find no basis for constitute prosecutorial misconduct. Tocco has failed to
concluding that there was prosecutorial misconduct. show that the portions to which the prosecutor referred were
not included in the exhibit during trial, and that reference to
(5) Arguing facts not in evidence those portions prejudiced him in any way. The district court
was in the best position to assay the merits of the parties’
Tocco argues that the prosecution twice argued facts that arguments and to determine exactly what was included in
were not in evidence during closing argument, in that the Exhibit 116 according to the redaction agreement of the
prosecuting attorney embellished the testimony of Silverio parties. From this record, we are not persuaded that the
Vitello. The prosecutor first argued that after Vitello saw prosecutor engaged in misconduct with respect to its reference
Tocco, Vitello’s union problem was taken care of, and second to Exhibit 116.
that “Tocco worked that union problem out for [Vitello].”