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,

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].”