United States of America v. Jack William Tocco

1
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 S TATES OF AMERICA ,
Plaintiff-Appellee/
Cross-Appellant (99-1003),
v.
J ACK W ILLIAM TOCCO ,
Defendant-Appellant
(98-2312/2426)/
Cross-Appellee.
;>

1
Nos. 98-2312/
2426; 99-1003
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,

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2 United States v. Tocco Nos. 98-2312/2426; 99-1003
1The 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.
2The factual background of this case spans three decades and will be
discussed only insofar as the facts relate to the issues on appeal.
Michigan, for Appellee. ON BRIEF: Frank D. Eaman,
BELLANCE, BEATTIE & DeLISLE, Harper Woods,
Michigan, for Appellant. Kathleen Moro Nesi, OFFICE OF
THE U.S. ATTORNEY, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
HARRY W. WELLFORD, Circuit Judge. This criminal
prosecution pertains to one of six defendants who were tried
on charges of conspiracy to conduct and participate in a
Detroit-based racketeer influenced and corrupt organization.1
Appellant Jack W. Tocco (“Tocco”) was convicted on two
counts of conspiracy in violation of the Racketeer Influenced
and Corrupt Organization Act, 18 U.S.C. § 1962(d) (“RICO”)
— one for engaging in a pattern of racketeering activity and
one for collection of an unlawful debt (Counts One and Two)
— and one count of conspiracy to interfere with commerce by
extortion in violation of 18 U.S.C. § 1951 (“Hobbs Act”)
(Count Six). Both Tocco and the government now appeal --
Tocco from the jury convictions, the government from the
sentence imposed by the trial judge.
A. Background2
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
Nos. 98-2312/2426; 99-1003 United States v. Tocco 51
appropriate, and also consider the place of incarceration and
its potential for monitoring Tocco’s medical problems.
H. Conclusion
We recognize that one of the most difficult and thankless
responsibilities of a district judge is to pass sentence upon a
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
by all pertinent legal considerations. The district court must
ordinarily rely in considerable measure upon a presentence
report, but it is the district court that must make the hard
decisions in cases such as this with a wide range of sentencing
issues and legal determinations to be made. The district court
has broad discretion in dealing with requests for departure,
whether upward or downward, but the Sentencing
Commission and the courts expect that they will not often
occur, and only where there are particular “aggravating or
mitigating circumstances of a kind or degree not adequately
taken into consideration by the [Sentencing] Commission.”
Koon, 518 U.S. at 94.
Accordingly, we AFFIRM Tocco’s convictions for the
reasons explained above, but VACATE his sentence and
REMAND for resentencing in a manner not inconsistent with
this opinion.

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50 United States v. Tocco Nos. 98-2312/2426; 99-1003
departure from the guidelines based on the defendant’s wife’s
“severe psychiatric problems” which had “potentially life
threatening” effects and thus constituted a “truly exceptional
case.” Haversat, 22 F.3d at 797. Though the court found that
the defendant’s family ties constituted a permissible basis for
a downward departure, it concluded that the particular
circumstances did not justify the magnitude of the departure.
Id. at 798 (citing Williams v. United States, 503 U.S. 193
(1992)).
On remand, we instruct the district court to revisit this issue
and to make specific findings regarding Tocco’s personal
involvement in the care of his wife or other family members.
The court should consider whether Maria Tocco has alternate
sources of support other than her husband. On that subject we
note that Tocco has eight children, seven of whom live in the
area and one of whom is a doctor.
We specifically do not adopt the rationale in this regard,
and in respect to other factors claimed by Tocco, applied in
the case of United States v. Rioux, 97 F.3d 648,652 (2d Cir.
1996), which approved a 10 point downward departure based
on “physical condition, charitable fund-raising efforts, and
civic accomplishments.”
Thus, we conclude that the sentence imposed upon
defendant Tocco was “imposed in violation of law” and that
it was imposed as a result of an incorrect application of the
guidelines for the reasons stated. We must, therefore,
REMAND for re-sentencing in a manner not inconsistent
with this opinion. In addition, we order the district court to
furnish the government copies of any written
recommendations from the probation office that have been
and will be used in resentencing. Any confidential reports
may be submitted under seal.
During the interim before re-sentencing, we direct the
district court to consider promptly the government’s motions
for immediate revocation of Tocco’s bond. Furthermore, in
connection with resentencing, the district court should
reconsider whether a term of supervised release is
Nos. 98-2312/2426; 99-1003 United States v. Tocco 3
allegedly is made up of “families” in various cities, including
Detroit, and allegedly is involved in illegal activities such as
extortion, illegal lotteries (“numbers”), bookmaking,
loansharking, and acquiring undisclosed and illegal
investments in gambling casinos. The indictment herein
alleged that Tocco had been involved in the Detroit branch of
the national Mafia organization, and that he had been the
“Boss of the Detroit Cosa Nostra Family” since about 1979.
The district court severed the trial of Tocco and his five co-
defendants from the trials of the others named in the
indictment.
On January 27, 1998, trial commenced against Tocco and
his co-defendants. Approximately three months later, on
April 29, 1998, the jury convicted Tocco on the two RICO
conspiracies and the Hobbs Act conspiracy mentioned above.
It acquitted him on ten counts of extortion or attempted
extortion. On October 23, 1998, the district court denied the
government’s request for a forfeiture judgment against all the
defendants.
On November 13, 1998, the district court sentenced Tocco
to twelve months and one day in prison, departing downward
ten levels from the applicable guideline range, and
recommended that Tocco’s sentence be served in a
community correction center. Tocco filed a timely appeal
from the district court’s judgment of conviction, and the
government timely appealed Tocco’s sentence.
B. Voir Dire
Tocco first challenges the adequacy of the jury voir dire. A
district court’s manner of conducting voir dire is not
reversible unless the court abused its discretion. See United
States v. Phibbs, 999 F.3d 1053, 1071-72 (6th Cir. 1993). It
is well-settled that the district court enjoys broad discretion in
establishing its voir dire procedures. See United States v.
Lanier, 33 F.3d 639, 657-59 (6th Cir. 1994) (citing Mu’Min
v. Virginia, 500 U.S. 415, 427 (1991)), vacated on other
grounds, 114 F.3d 84 (6th Cir. 1997); see also Deel v. Jago,
967 F.2d 1079, 1087 (6th Cir. 1992) (same).

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4 United States v. Tocco Nos. 98-2312/2426; 99-1003
Tocco claims that he was denied his right to a fair trial
because the district court declined to permit specific questions
during voir dire on the subject of Mafia prejudice. Tocco’s
counsel filed a motion requesting that the prospective jurors
be asked whether they possessed any strong opinions about
the Mafia, or whether they believed that Italian-Americans
were more likely to be members of organized crime. The
motion was accompanied by Detroit newspaper articles
referring to “Detroit’s Mob” and the Detroit Mafia. Tocco
claims that the district court’s denial of that motion
constituted reversible error because of the very high-profile
nature of the case and the substantial unsympathetic publicity
in the media.
The government argues that the district court was not
compelled to allow questions on the specific issue of Mafia
prejudice, and that the questions posed to the prospective
jurors were adequate to ensure Tocco a fair and impartial jury.
The district court asked the prospective jurors to answer the
following in the juror questionnaire:
41. You are being asked to participate in jury selection
process that will select a jury to try a criminal case in
which the government prosecutors charge several
defendants with involvement in a racketeering
conspiracy. The government alleges that the defendants
are participating in a conspiracy call [sic] “Cosa Nostra”
or the “Mafia.” To the best of your knowledge, have you
heard anything about this case? ___ yes ___ no.
The district court informed counsel that it would question
individual jurors more specifically about the matter if the
juror’s answer to that question was affirmative. Otherwise,
the court refused to ask the jury pool more specific questions
pertaining to the Mafia.
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
the district court is in the best position to determine the
appropriate areas of inquiry in such cases.
Nos. 98-2312/2426; 99-1003 United States v. Tocco 49
14Tocco’s mother and sister are also ill, but the district court did not
rely on Tocco’s responsibilities toward those family members in departing
downward.
We are concerned about the discrepancy between the
district court’s actions in Tocco’s case and in the case of
Anthony Corrado. The district court declined to depart
downward due to the medical condition of Corrado, who had
undergone seven bypass operations, had circulation problems,
and had diabetes. We shall expect the district court to
consider the decision in Corrado’s case when it determines
whether or to what extent to depart in Tocco’s case.
(c) Tocco’s wife’s health
Pursuant to the guidelines, “[f]amily ties and
responsibilities . . . are not ordinarily relevant in determining
whether a sentence should be outside the guidelines.”
U.S.S.G. § 5H1.6. However, “[e]xtraordinary family
circumstances, i.e., outside of the ‘heartland’ of cases the
Guidelines were intended to cover, can be the basis for a
downward departure.” United States v. Haversat, 22 F.3d
790, 797 (8th Cir. 1994) (quoting United States v. Harrison,
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
departure because of his “family ties,” specifically his need to
be with his ill wife, who had cancer and emphysema.14 The
presentence report included an extensive and extremely
sympathetic family history of Tocco, including information
that his wife had recently undergone an operation, and that
their eight children were successful and supportive.
Extraordinary and special family circumstances may justify
a downward departure in exceptional cases. Usually, this
factor is taken into account when a defendant personally is
required to take care of a seriously ill spouse or family
member. A good discussion of the type of circumstances
necessary for such a departure can be found in United States
v. Haversat, 22 F.3d 790, 793 (8th Cir. 1994). In that case,
the district court had approved of a 5-level downward

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48 United States v. Tocco Nos. 98-2312/2426; 99-1003
arteriosclerotic disease, coronary artery disease, hypertension,
renal insufficiency, labrynthitis, and diverticulosis. The
report also mentioned that Tocco’s continuing health
problems required “periodic monitoring.”
We conclude that Tocco’s age alone should not be
considered as a basis for a substantial downward departure.
Tocco was portrayed as remaining active in civic and
charitable affairs and in carrying on (with family help and
support) a number of business interests. The district court did
not discuss any basis for consideration of Tocco’s age as a
basis of downward departure per se, as set out in the
judgment. We observe in passing in this regard that eight
judges of this court, still in service, are seventy years old or
older. Many persons in business continue to serve in
important capacities beyond seventy years of age.
With respect to the propriety of a downward departure
based upon Tocco’s physical condition, we note that it is
possible “that an aged defendant with a multitude of health
problems may qualify for a downward departure under
§ 5H1.4 . . ., [but] such downward departures are rare.”
United States v. Johnson, 71 F.3d 539, 545 (6th Cir. 1995).
In Johnson, the district court had departed downward from the
applicable guideline range based on the defendant’s medical
condition. The defendant in that case had a profile similar to
that of Tocco, being a 65-year-old man who suffered from
diabetes, hypertension, hypothyroidism, ulcers, potassium
loss, and reactive depression. Id. at 544-45.
The Johnson court stated that “[i]n view of the fact that the
defendant will be resentenced, the District Court should make
more specific findings as to whether defendant has ‘an
extraordinary physical impairment,’ or combination of
impairments, worthy of departure.” Id. at 545. We find that
this approach is proper in the instant case. To this end, the
district court might obtain independent and competent
medical evidence to determine the extent of Tocco’s
infirmities and the prison system’s ability or inability to
accommodate them. Id.
Nos. 98-2312/2426; 99-1003 United States v. Tocco 5
[W]ide discretion [is] granted to the trial court in
conducting voir dire in the area of pretrial publicity and
in other areas of inquiry that might tend to show juror
bias. Particularly with respect to pretrial publicity, we
think this primary reliance on the judgment of the trial
court makes good sense. The judge of that court sits in
the locale where the publicity is said to have had its
effect, and brings to his evaluation of any such claim his
own perception of the depth and extent of news stories
that might influence a juror.
Lanier, 33 F.3d at 657 (citing Mu’Min v. Virginia, 500 U.S.
415, 427 (1991)). The Supreme Court and this circuit have
set out the principles involved in determining whether the
failure to ask specific questions amounts to “an
unconstitutional abuse of discretion”:
There is no constitutional presumption of juror bias for
or against members of any particular racial or ethnic
groups. . . . [T]here is no per se constitutional rule in
such circumstances requiring inquiry as to racial
prejudice. . . . Only when there are more substantial
indications of the likelihood of racial or ethnic prejudice
affecting the jurors in a particular case does the trial
court’s denial of a defendant’s request to examine the
jurors’ ability to deal impartially with this subject amount
to an unconstitutional abuse of discretion.
Rosales-Lopez v. United States, 451 U.S. 182, 190 (1981)
(citations omitted).
It is not required, however, that the jurors be totally
ignorant of the facts and issues involved. In these days
of swift, widespread and diverse methods of
communication, an important case can be expected to
arouse the interest of the public in the vicinity, and
scarcely any of those best qualified to serve as jurors will
not have formed some impression or opinion as to the
merits of the case.

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6 United States v. Tocco Nos. 98-2312/2426; 99-1003
United States v. Blanton, 719 F.2d 815, 830 (6th Cir. 1983).
It suffices “if the juror can lay aside his impression or opinion
and render a verdict based on the evidence presented in
court.” Murphy v. Florida, 421 U.S. 794, 800 (1975)
(quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)). See also
Hill v. Brigano, No. 98-3714, 1999 WL 1222642, at *8-*9
(6th Cir. Dec. 22, 1999).
Having said all that, we still believe the district court would
have been well-advised to allow more detailed questioning to
reveal an individual prospective juror’s prejudice, if any,
against Cosa Nostra and the obvious Italian heritage of the
defendants and the Sicilian or Italian connection with the
Mafia. We decided similar issues concerning voir dire
method and jury selection in a highly publicized case, United
States v. Blanton, 719 F.2d 815 (6th Cir. 1983) (en banc).
The court majority, in considering challenges to the
sufficiency of voir dire in the criminal trial of a recent
Tennessee governor, concluded that no reversible error
occurred, although the trial judge probably did not employ the
best voir dire procedures and we would not recommend the
manner of such voir dire. See id. at 819, 822. We have the
same reservations, as did the court majority in Blanton (and
the writer was one of those judges), about voir dire and jury
selection in this case.
Nevertheless, the district court sought to ensure the fairness
of the jury selection through more general, progressive
questioning. After obtaining the prospective jurors’ answers
to the “Mafia” question in the questionnaire, the court
followed up with each juror individually and asked more
specific questions about their knowledge of the case. Of the
twelve jurors that ultimately were chosen to sit at trial, seven
had heard nothing about the case, and the other five had only
had minimal knowledge. The five that had minimal
knowledge of the case individually assured the district court
that they could, despite that knowledge, render a fair and
impartial verdict. Furthermore, the jurors all informed the
court of their ability to assume that an accused is innocent
until proven guilty beyond a reasonable doubt, and to accept
Nos. 98-2312/2426; 99-1003 United States v. Tocco 47
On remand, the district court must determine whether the
“community involvement” of Tocco is substantially financial,
which would prevent the court from considering that factor in
departing from the guidelines on that basis. If, however, the
court finds as a matter of fact that the community
involvement actually involves significant contributions of
Tocco’s time and personal skill and involvement, the court
may consider the factor in determining the appropriate and
reasonable degree of departure if the court concludes that the
case presents truly extraordinary circumstances. The district
court should be mindful that any departure must be reasonable
and must be “guided by the structure of the Guidelines.”
Crouse,145 F.3d at 792; see also United States v. Morken,
133 F.3d 628, 630 (8th Cir. 1998); United States v. McHan,
920 F.2d 244, 247 (4th Cir. 1990).
(b) Tocco’s age and debilitating health
The guidelines note that both age and physical condition
may be valid grounds for a downward departure. U.S.S.G.
§ 5H1.1 provides in relevant part that although not “ordinarily
relevant ... [a]ge may be a reason to go below the guidelines
when the offender is elderly and infirm and where a form of
punishment (e.g., home confinement) might be equally
efficient as and less costly than incarceration.” With respect
to physical infirmity, the guidelines provide that a defendant’s
“[p]hysical condition or appearance, including physique, is
not ordinarily relevant in determining whether a sentence
should be outside the applicable guideline range. However, an
extraordinary physical impairment may be a reason to impose
a sentence below the applicable guideline range; e.g., in the
case of a seriously infirm defendant, home detention may be
as efficient as, and less costly than, imprisonment.” U.S.S.G.
§ 5H1.4.
The district court below determined that Tocco’s age, 72
years, and debilitating health, “which ordinarily would not be
the basis for downward departure,” was a basis for departure
in this case. The court referred to the presentence report
which described all of Tocco’s illnesses, including

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46 United States v. Tocco Nos. 98-2312/2426; 99-1003
businessman much in the same category as Tocco. Though
the applicable guideline range for his sentence was 15, the
district court departed downward 9 levels based on the
defendant’s charitable works in order to bring his offense
level down to 6 so that the defendant would qualify for home
confinement. The court noted that the community
contributions consisted primarily of the defendant’s time
commitments and not monetary contributions. Crouse, 145
F.3d at 792. On appeal, we determined that considering the
defendant’s charitable works, though a discouraged factor,
was a permissible ground for the district court to consider
departing downward. See id. at 791. We found, however,
that the defendant’s community works, while significant,
were not unusual for a prominent business man. The works
included, but were not limited to, involvement in church
activities, service on the boards of various organizations, and
involvement in the Rotary Club. We concluded that, while
some departure may have been warranted, the 9-level
departure was unreasonable because the district court made no
reference to the guidelines determining the departure amount.
Rather, the district court sought to reach a certain result--no
jail time--and it departed the necessary number of levels to
reach the desired result. Consequently, we held that the
departure was unreasonable under the circumstances. See id.
at 792.
In assessing the effect of Tocco’s community involvement
in this case, we believe that much of Tocco’s contributions
may have consisted of contributions of money, not time and
energy. If that is so, then the factor could really be considered
one involving Tocco’s socio-economic status, i.e., his wealth
and his ability to donate to various civic and charitable
causes. Consideration of that factor is prohibited by the
guidelines. See U.S.S.G. § 5H1.10. This, perhaps, is an
expression of the ancient concept of justice that a man of
wealth, position, power, and prestige should not be given
special consideration in the law. In any event, a defendant’s
community involvement is at best a discouraged factor in
determining the appropriate departure from the guidelines.
Nos. 98-2312/2426; 99-1003 United States v. Tocco 7
3The fact that the jurors found defendant Tocco not guilty on ten
counts, and that they acquitted other defendants in part or entirely, is some
indication of the jury’s ability to act with impartiality.
4Much of Tocco’s pretrial argument focused on the stigma attached
to the words “Cosa Nostra” and “Mafia” as those terms were used in the
indictment charges. The charges in this case, however, would not differ
materially from a charge that a particular defendant was allegedly in a
particular group or gang, such as “Hell’s Angels,” or “White Citizen
Council,” or a subversive group such as an international terrorist
organization. We would not deem such an indictment charge to constitute
prejudicial error so long as the prosecution was prepared to come forward
with proof to establish the existence of such a group, and that the
particular defendant was associated with the alleged criminal enterprise
or conspiracy.
that a defendant does not forfeit his presumption of innocence
if he chooses not to testify. In our view, Tocco was not
constitutionally entitled, under the circumstances, to any more
specific race-based questioning during voir dire. “The
Constitution, after all, does not dictate a catechism for voir
dire, but only that the defendant be afforded an impartial
jury.” Morgan v. Illinois, 504 U.S. 719, 729 (1992).3
This issue regarding voir dire is of serious concern to this
court. We believe that the district court’s failure to ask more
specific questions regarding Mafia or Italian-American
prejudice was a mistake, but not an error compelling reversal
under the circumstances. The district court’s voir dire
sufficiently explored the prospective jurors’ knowledge about
the Mafia-related case and their individual ability to be fair
and impartial. As the Supreme Court has stated, “[t]here is no
constitutional presumption of juror bias for or against
members of any particular racial or ethnic groups.” Rosales-
Lopez, 451 U.S. at 190. Based on the foregoing, we believe
the procedures for jury selection, viewed in their entirety,
afforded Tocco a fair and impartial jury. Accordingly, we
find that any error committed in failing to allow more specific
voir dire questions on Mafia prejudice does not require a
reversal of Tocco’s conviction.4

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8 United States v. Tocco Nos. 98-2312/2426; 99-1003
C. Severance
Tocco also argues that the district court erred in failing to
sever his trial from that of co-defendants Nove Tocco
(“Nove”) and Paul Corrado (“Corrado”). A district court’s
decision to deny severance of defendants is reviewed for a
“clear abuse of discretion.” United States v. Critton, 43 F.3d
1089, 1098 (6th Cir. 1995). The defendant “has a heavy
burden of showing specific and compelling prejudice” from
having a joint trial. United States v. Harris, 9 F.3d 493, 500
(6th Cir. 1993).
Tocco claims that his trial should have been severed from
that of Nove and Corrado because there was no evidence that
he was a co-conspirator of those two defendants. He argues
that certain tape recorded statements of Nove and Corrado
were entered into evidence, and that such evidence never
linked him with those defendants. Thus, he claims that the
evidence unfairly prejudiced his case, and he should have
been given a separate trial.
We find that Tocco’s position is an extension of his
argument that the evidence was insufficient to find that a
conspiracy existed between him and the other defendants. For
reasons discussed below, we find that the evidence was
sufficient to support a finding that such a conspiracy existed.
Joint trials are favored in this circuit, and “it is well-settled
that defendants are not entitled to severance merely because
they may have a better chance of acquittal in separate trials.”
Zafiro v. United States, 506 U.S. 534, 540 (1993). We must
presume that juries are “capable of sorting out the evidence
and considering the case of each defendant separately.”
Harris, 9 F.3d at 501. The fact that the jurors in this case
found Tocco not guilty on ten counts and acquitted co-
defendants on other counts is some indication that the jury
was able to sort out the issues and follow the court’s
Nos. 98-2312/2426; 99-1003 United States v. Tocco 45
that could constitute grounds for departure in an unusual
case.” U.S.S.G. ch. 1, pt. A, intro. comment.
The district court in this case applied discouraged factors in
departing downward, emphasizing insistently its view that
this was an “extraordinary” case. The court stated that this
case was outside of the heartland of cases, presenting “an
extraordinary set of facts and is highly infrequent and
rare. . . . It can be no rarer. The Court’s [sic] never [departed
in this manner] before and the Court does not contemplate
doing it again soon.” Then the court noted that the case has
spanned over three decades and related to criminal activity
that occurred over that entire period of time. The court also
made the determination that Tocco did not have the type of
“absolute power” that would justify him being held
responsible for any and all criminal acts that the members or
associates of his criminal enterprise may have committed or
conspired to commit. Thus, the court was generally of the
view that a downward departure was necessary.
With that as a preface, the court turned to the three specific
factors on which it relied in making the 10-level downward
departure in Tocco’s sentence. We now discuss those three
factors.
(a) Community service and community support
First, the court found that Tocco’s extraordinary community
involvement and community support warranted a 4-level
departure. The court noted that Tocco had participated in no
less than twelve charitable and civic organizations. A flood
of letters poured into the court that strongly supported Tocco
and urged leniency in his sentencing. The letters stated,
among other things, that Tocco is a dedicated family man and
a dependable philanthropist in the community. These
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

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44 United States v. Tocco Nos. 98-2312/2426; 99-1003
be sufficiently unusual and “outside the heartland of cases” to
warrant such a departure. See United States v. Crouse, 145
F.3d 786, 788-89 (6th Cir. 1998). If we determine that the
departure was not based on impermissible factors, we must
still determine whether the departure was reasonable in terms
of the amount and the extent of the departure in light of the
reasons for the departure. See id. at 789. In other words, we
must find that the reasons justify the magnitude of the
departure. See id.
Based on our conclusion that the district court must revisit
the sentence imposed under the guidelines, we further instruct
the court to reconsider its decision to depart from the
guideline range once that range has been redetermined. We
discuss below our views regarding the downward departure in
this case to guide the district court’s decision on remand.
In Koon, supra, the Supreme Court discussed what factors
may or may not be considered by a district court in
determining whether a departure from the guidelines is
warranted. The Court discussed some “encouraged factors,”
which “are those ‘the Commission has not been able to take
into account fully in formulating the guidelines.’” Koon, 518
U.S. at 94 (citing U.S.S.G.§ 5K2.0). The court also discussed
“discouraged factors,” which “are those ‘not ordinarily
relevant to the determination of whether a sentence should be
outside the applicable guideline range.’” Id. at 95 (quoting
1995 U.S.S.G. ch. 5, pt. H, intro. comment.). Examples of
those “discouraged factors” include a defendant’s civic
contributions and his family ties and responsibilities. Though
those factors are “not necessarily inappropriate,” the Court
noted, they should only be relied on as a basis for departure
“in exceptional cases.” Id.
The guidelines list certain factors that may never for the
basis for departure. See U.S.S.G. § 5H1.10 (race, sex,
national origin, creed, religion, socio-economic status);
§ 5H1.4 (drug or alcohol dependence). With the exception of
those factors, the guidelines do not “limit the kinds of factors,
whether or not mentioned anywhere else in the guidelines,
Nos. 98-2312/2426; 99-1003 United States v. Tocco 9
5Tocco cites United States v. Casamento, 887 F.2d 1141, 1152 (2d
Cir. 1989), in arguing that “megatrials” should not be permitted and that
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
adopted such a policy, and we decline to do so in this case. We adhere to
the “strong policy in favor of joint trials when charges will be proved by
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.
1995) (recognizing the “strong policy in favoring joint trials” and “the
presumption of the validity of curative instructions”).
6F EDERAL RULE OF EVIDENCE 804(b)(3) provides in pertinent part:
(b) Hearsay exceptions. The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:
instructions with respect to each defendant separately.5
Accordingly, we find that the district court did not abuse its
discretion in failing to sever Tocco’s trial from that of Nove
and Corrado.
D. Admissibility of Evidence
Tocco raises seven alleged errors regarding the district
court’s admission of evidence. Generally, a district court’s
decision to admit testimony and other evidence is reviewable
under an abuse of discretion standard. United States v. Bonds,
12 F.3d 540, 554 (6th Cir. 1993). Even if the district court
abuses its discretion in this regard, we will not reverse a
conviction on that basis unless the “substantial rights” of a
party are affected. Id. We will note below the issues to
which a different standard of review applies.
(1) Testimony of Anthony Polizzi
An important part of the government’s case against Tocco
was the testimony of Angelo Polizzi (“Angelo”). Angelo
testified about statements made to him by his father, Michael
Polizzi (“Polizzi”), who died shortly before trial in this case,
which the district court held to be admissible as declarations
against penal interest. See FED R. EVID . 804(b)(3).6 Tocco

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10 United States v. Tocco Nos. 98-2312/2426; 99-1003
. . .
(3) Statement against interest. A statement which at
the time of its making so far contrary to the declarant’s
pecuniary or proprietary interest, or so far tended to
subject the declarant to civil or criminal liability . . .
that a reasonable person in the declarant’s position
would not have made the statement unless believing it
to be true.
now argues that the district court erred in allowing Angelo to
testify about his father’s statements. We review de novo the
issue of whether the district court properly held those
statements to be admissible. See United States v. Fountain,
2 F.3d 656, 668 (6th Cir. 1993).
The statements challenged by Tocco are in one of two
categories: (1) statements that others were involved in the
conspiracies and (2) statements about Polizzi’s own
involvement in the Frontier Hotel and Casino, which were
made after Polizzi had been convicted and sentenced based on
that involvement.
Without directing the court’s attention to specific
statements, Tocco claims that “[w]hile a statement of
[Angelo] Polizzi’s father that he, himself, was involved in
organized crime may have been a declaration against his
father’s penal interest, the statements that others were
involved in illegal crime were not declarations against his
father’s penal interest.” In support, Tocco relies on
Williamson v. United States, 512 U.S. 594 (1994), in which
the Supreme Court held that the declarations of a criminal that
implicate another person are admissible only to the extent that
they are self-inculpatory. Williamson, 512 U.S. at 599. In
determining whether Polizzi’s statements qualify as
declarations against penal interest, we must consider (1)
whether the declarant is unavailable; (2) whether, from the
perspective of the average, reasonable person, the statements
were truly adverse to the declarant’s penal interest, and (3)
whether corroborating circumstances truly establish the
trustworthiness of the statement. United States v.
Nos. 98-2312/2426; 99-1003 United States v. Tocco 43
followed the recommendations of different probation officers
in holding the two accountable for a two-level increase for
each one’s role in the offense as an organizer, leader,
manager, or supervisor. See U.S.S.G. § 3B1.1(c). Nove and
Corrado managed John Sciaratta, John Jarjosa, and others
who collected the “street taxes” for them. The government
argues that adding the four other defendants in this case easily
supports the claim that Tocco supervised five or more
participants.
We find from a review of the record that the district court
committed clear error in concluding that Tocco did not have
a supervisory role in this case. As the government points out,
the district court ignored the fact that the jury found Tocco
guilty on Count Six, the Hobbs Act violation. The
government’s theory of the case was that Nove and Corrado
could not engage in their extortionate activities without the
permission of Tocco. The wiretapped conversations between
Nove and Corrado showed that Tocco was the “boss” and that
he had control over the extortionate activities of his
underlings. The jury found Tocco guilty of conspiring to
commit those extortionate activities in Count Six, indicating
that they found Tocco to be the “boss” or “manager” or
“supervisor.” Under these circumstances, we instruct the
district court on remand to apply the three-level enhancement
for Tocco’s supervisory role in the offense pursuant to
U.S.S.G. §3B1.1(b).
(3) Downward departure
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
applicable guideline level is reviewed for an abuse of
discretion. Koon v. United States, 518 U.S. 81, 91 (1996).
Whether a stated ground for departure is a permissible basis
is a question of law reviewable de novo. See id. at 98. Before
a departure is authorized, the circumstances of the case must

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42 United States v. Tocco Nos. 98-2312/2426; 99-1003
13That guideline provides that “[i]If the defendant was a manager or
supervisor . . . and the criminal activity involved five or more participants
or was otherwise extensive, increase by 3 levels.” U.S.S.G. § 3B1.1(b).
discharge of a weapon (7 levels, § 2B3.2(b)(3)(A)(i)); and for
his supervisory role in the offense (3 levels, § 3B1.1(b)). The
court also rejected the government’s contention that a 5-level
enhancement was appropriate under the grouping provisions
of § 3D1.3. Whether Tocco’s offense level should be
enhanced by the first three items, which are specific offense
characteristics of extortion, will depend on whether the
district court ultimately sentences Tocco pursuant to § 2B3.2
or some other guideline. The court did not address those
issues below because it used the minimum of 19 as the base
offense level and did not refer to the specific offense
characteristics in § 2B3.2(b), nor did it enhance the offense
level for Tocco’s supervisory role. On remand, depending
upon the district court’s review of the application of the
extortion guideline, the court must reconsider whether any
enhancements under that guideline would apply under the
circumstances.
At sentencing, after the district court announced that none
of the government’s requested enhancements were applicable
to Tocco’s offense level, the prosecutor asked whether the
court adopted the presentence report’s conclusion that “none
of the threats or acts of violence were reasonably foreseeable”
as part of the conduct involved. The district judge made no
response or explanation to this pertinent question. We find
that the foreseeability of the threats and acts of violence may
be critical to the district court’s analysis on remand, and we
direct the district court to make specific findings with respect
to that issue.
The government argues that the evidence supported a
finding that Tocco was the “boss” of the enterprise and that he
had a supervisory role over five or more persons, and that
consequently a 3-level enhancement was warranted pursuant
to U.S.S.G. § 3B1.1(b).13 The government points out that in
the sentencing of Nove Tocco and Paul Corrado the court
Nos. 98-2312/2426; 99-1003 United States v. Tocco 11
Maliszewski, 161 F.3d 992, 1009 (6th Cir. 1998), cert. denied,
119 S. Ct. 1126 (1999).
Among other things, Polizzi told Angelo about Tocco’s role
in the Cosa Nostra organization, and about the identity of
other organization leaders. Polizzi stated that Tocco had been
the leader since 1979, and that defendant Zerilli was the
leader before him. All were related by blood or marriage.
Polizzi had identified Paul Corrado and Nove Tocco as
underlings in the enterprise. Angelo at the time himself
assumed a role in the conspiracy by making deliveries and
collections for his father.
Tocco argues that Polizzi’s statements implicating others
were inadmissible because they were about others and were
not adverse to Polizzi’s own penal interest. We agree that our
decision should be guided by Williamson. In that case, the
Supreme Court recognized that “[t]he question under Rule
804(b)(3) is always whether the statement was sufficiently
against the declarant’s penal interest ‘that a reasonable person
in the declarant’s position would not have made the statement
unless believing it to be true,’ and this question can only be
answered in light of the surrounding circumstances.”
Williamson, 512 U.S. at 603-04. The court also noted that
statements must be viewed in context. For example:
“Sam and I went to Joe’s house” might be against the
declarant’s interest if a reasonable person in the
declarant’s shoes would realize that being linked to Joe
and Sam would implicate the declarant in Joe and Sam’s
conspiracy. And other statements that give the police
significant details about the crime may also, depending
on the situation, be against the declarant’s interest.
Id. at 603; see also United States v. Price, 134 F.3d 340, 347
(6th Cir.), cert. denied, 119 S. Ct. 114 (1998).
We believe that Tocco’s argument ignores the context in
which Polizzi’s statements were made to his son. The
statements described Polizzi’s own participation in the RICO
enterprise, and inculpated himself and others as participants

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12 United States v. Tocco Nos. 98-2312/2426; 99-1003
7When Polizzi made the statements about involvement in organized
crime in Detroit and about Cosa Nostra, the statements were not made
with the hope of implicating others to gain favor with the police. Under
the circumstances, we believe that other corroborating factors also support
admissibility of the Polizzi testimony. See Price, 134 F.3d at 348
(discussing what types of corroborating evidence demonstrate
trustworthiness).
in the conspiracy. Those statements are not rendered
inadmissible simply because they implicate others. Justice
Scalia explained a similar situation in his concurring opinion
in Williamson:
For example, if a lieutenant in an organized crime
operation described the inner workings of an extortion
and protection racket, naming some of the other actors
and thereby inculpating himself on racketeering and/or
conspiracy charges, I have no doubt that some of those
remarks could be admitted as statements against penal
interest.
Id. at 606-07 (Scalia, J., concurring). Here, Polizzi’s
statements about the conspiracy linked himself to the others
in the conspiracy, and were therefore against his own penal
interest. Thus, we decline to hold that those statements were
rendered inadmissible by virtue of the fact that others were
implicated.7 See United States v. Barone, 114 F.3d 1284,
1295 (1st Cir. 1997) (finding admissible statements that
“demonstrate ‘an insider’s knowledge’ of a criminal
enterprise and its criminal activities”).
Tocco also claims that any statements about Polizzi’s
involvement in the Frontier Hotel and Casino case were not
against his penal interest because he had been convicted and
sentenced for that conduct at the time he made the statements.
In other words, Polizzi was already in prison, so no penal
interest was at stake. We disagree, because Polizzi’s
involvement in the Frontier Hotel and Casino was a predicate
act of the RICO conspiracy charged in this case, a conspiracy
Nos. 98-2312/2426; 99-1003 United States v. Tocco 41
of the conspiracy and what activities were reasonably
foreseeable by Tocco. We remand these issues to the district
court, and we instruct the district court to determine which
underlying offenses may properly be attributable to Tocco for
purposes of sentencing him under § 2E1.1. The court should
then determine the offense levels applicable to those offenses
and “make the appropriate adjustments under Parts A through
D of Chapter Three of the guidelines, using the [alternative]
base offense levels in turn, and compare the results.” United
States v. Sarault, 975 F.2d 17, 18 (1st Cir. 1992) (determining
that the district court properly followed the “protocol” of
comparing the offense levels to determine whether it should
use the minimum level of 19 or the offense level attributable
to the underlying racketeering activity in sentencing the
defendant); see also United States v. Damico, 99 F.3d 1431,
1436-37 (7th Cir. 1996) (noting that parties agreed on four
“groups” of underlying racketeering activity).
The district court should note that any enhancement for
grouping pursuant to § 3D1.3 would be added to the offense
level calculation in § 2E1.1(a)(2), but not to the minimum
offense level calculation in § 2E1.1(a)(1) for purposes of
determining which equation produces the greater result. See
Damico, 99 F.3d at 1435 (finding that 4-level adjustment
under § 3D1.4 caused the subsection (a)(2) calculation to
exceed the calculation using the minimum level in subsection
(a)(1)); United States v. Boggi, 74 F.3d 470, 473 (3d Cir.
1996) (reasoning that the (a)(2) calculation is greater because
“only the subsection (a)(2) offense level will receive a four-
level adjustment under section 3D1.4"). When the court
arrives at the alternative adjusted offense levels, it must apply
the highest adjusted offense level in sentencing Tocco.
(2) Enhancements
As we have indicated, the district court rejected the
government’s contentions that Tocco’s offense level should
have been increased because of the threat of death, bodily
injury, or kidnapping (2 levels, § 2B3.2(b)(1)); because the
loss exceeded $10,000 (1 level, § 2B3.2(b)(2)); for the

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40 United States v. Tocco Nos. 98-2312/2426; 99-1003
with, the criminal activity jointly undertaken by the
defendant is relevant conduct under this provision. The
conduct of others that was not in furtherance of the
criminal activity jointly undertaken by the defendant, or
was not reasonably foreseeable in connection with that
criminal activity, is not relevant conduct under this
provision.
In determining the scope of the criminal activity that the
particular defendant agreed to jointly undertake (i.e., the
scope of the specific conduct and objectives embraced by
the defendant’s agreement), the court may consider any
explicit agreement or implicit agreement fairly inferred
from the conduct of the defendant and others.
U.S.S.G. § 1B1.3, note 2.
We agree with the government that the offense level
applicable to the conduct involved in the underlying
racketeering activity may exceed the offense level produced
by the § 2E1.1(a)(1) minimum level of 19, depending on what
conduct is considered. The difficulty in this case is that the
district court failed to make any specific findings on what
conduct may be considered, and it failed to make any
comparisons of the resulting offense levels from the
underlying racketeering offenses. As we have stated, this case
involves more than one underlying offense, and the district
court must “treat each underlying offense as if contained in a
separate count of conviction of the purposes of (a)(2).”
U.S.S.G. § 2E1.1, note 1.
We agree with Tocco that he can only be held responsible
for actions of his co-conspirators that were in furtherance of
the jointly undertaken activity and that were reasonably
foreseeable in connection with that activity. See U.S.S.G.
§ 1B1.3. He is, however, “potentially liable for the
foreseeable criminal acts of others in furtherance of th[e
criminal] enterprise even though he did not personally
participate in them.” United States v. Carrozza, 4 F.3d 70, 75
(1st Cir. 1993). The district court made no findings
whatsoever as to what criminal activities were in furtherance
Nos. 98-2312/2426; 99-1003 United States v. Tocco 13
of which Polizzi was a member and for which he was never
tried and convicted.
Tocco did not raise an argument that the admission of
Polizzi’s statements violated his Sixth Amendment right to
confront witnesses testifying against him. See Lilly v.
Virginia, 119 S.Ct. 1887, 1899 (1999). Even if we had, the
argument would have been unavailing. In Lilly, the Supreme
Court concluded that an accomplice’s out-of-court statements
that inculpate a defendant cannot be admitted against that
defendant unless they bear “particularized guarantees of
trustworthiness.” Id. at 1899-1900. Those guarantees must
be inherent in the circumstances of the testimony itself; the
fact that other evidence corroborates the testimony in question
does not suffice. Id. at 1900. We find that the circumstances
surrounding Polizzi’s statements in this case indicate that the
statements were trustworthy, particularly in light of the fact
that Polizzi’s statements were made to his son in confidence,
rather than to the police or to any other authority for the
purpose of shifting the blame to Tocco. See Burton v.
Phillips, 64 F.Supp.2d 669, 680 (E.D. Mich. 1999) (reasoning
that statements made to a perceived ally rather than to police
officers during an interrogation are trustworthy, citing Latine
v. Mann, 25 F.3d 1162, 1166-67 (2d Cir. 1994)). Therefore,
the admission of Polizzi’s statements would withstand a Sixth
Amendment challenge.
Accordingly, we reject Tocco’s argument that the district
court erred in allowing into evidence Polizzi’s out-of-court
statements.
(2) Documentary evidence relating to Polizzi
We review the admission of exhibits under an abuse of
discretion standard. Bonds, 12 F.3d at 554. The government
argues that it sought to introduce Angelo Polizzi’s plea
agreement and other exhibits relating to this witness “to blunt
any cross-examination impeaching of Polizzi’s credibility”
with respect to cooperating with the prosecution. The plea
agreement provided, among other things, that Angelo Polizzi
would “provide truthful and complete information.” Tocco

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14 United States v. Tocco Nos. 98-2312/2426; 99-1003
maintains that introduction of this evidence impermissibly
constituted a vouching for Polizzi’s credibility, particularly
since he was a key witness for the prosecution. We have
considered this question previously and have concluded that
“[i]ntroduction of the entire plea agreement permits the jury
to consider fully the possible conflicting motivations
underlying the witness’ testimony.” United States v.
Townsend, 796 F.2d 158, 163 (6th Cir. 1986). We noted
further:
While the existence of a plea agreement may support the
witness’ credibility by showing his or her interest in
testifying truthfully, the plea agreement may also
impeach the witness’ credibility by showing his or her
interest in testifying as the government wishes regardless
of the truth.
Id.; accord, United States v. Mealy, 851 F.2d 890, 898-99 (7th
Cir. 1988) (holding that prosecutor may elicit testimony
regarding plea agreement and may enter agreement into
evidence).
Tocco counters with reliance upon United States v. Carroll,
26 F.3d 1380 (6th Cir. 1994), which held that the prosecutor’s
improper reliance in closing argument on such an agreement
amounted to personal vouching for the truthfulness of the
witness’ testimony under the circumstances. The prosecutor
argued and emphasized in Carroll that the witness who had
entered into a similar plea agreement “would be in jeopardy”
if he were not testifying truthfully. Id. at 1389.
Circumstances were not the same in this case; the prosecutor
made no similar closing argument and did not personally
vouch for the truthfulness of Polizzi’s testimony. We do not
agree with Tocco that Carroll supports reversal by reason of
the introduction of the plea agreement as an exhibit. Indeed,
the prosecutor may refer to such agreement in appropriate
circumstances to deflect defendant’s use of a plea agreement
to attack the witness’ credibility. See Mealy, 851 F.2d at 898-
99. Thus, we find no error in the admission of these exhibits,
Nos. 98-2312/2426; 99-1003 United States v. Tocco 39
sentencing court to apply the adjustments contained in
Chapter 3 of the guidelines to determine if the underlying
offense would produce an offense level greater than 19.
Tocco claims that the government’s argument must fail
because there was no evidence adduced at trial to show that
Tocco, himself, “committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused” the
criminal activity that the government seeks to use against him,
or that the acts of his co-conspirators were “reasonably
foreseeable” in furtherance of a “jointly undertaken criminal
activity.” See U.S.S.G. § 1B1.3(a)(1). Tocco argues that the
government impermissibly relies on the charges in the
indictment, rather than what conduct was proven at trial, in
determining the relevant conduct for sentencing. Tocco relies
on the application notes of § 1B1.3(a)(1):
In the case of a jointly undertaken criminal activity,
subsection (a)(1)(B) provides that a defendant is
accountable for the conduct (acts or omissions) of others
that was both:
(i) in furtherance of the jointly undertaken activity; and
(ii) reasonably foreseeable in connection with that
criminal activity.
Because a count may be worded broadly and include the
conduct of many participants over a period of time, the
scope of the criminal activity jointly undertaken by the
defendant (the “jointly undertaken criminal activity”) is
not necessarily the same as the scope of the entire
conspiracy, and hence relevant conduct is not necessarily
the same for every participant. In order to determine the
defendant’s accountability for the conduct of others
under subsection (a)(1)(B), the court must first determine
the scope of the criminal activity the particular defendant
agreed to jointly undertake (i.e., the scope of the specific
conduct and objectives embraced by the defendant’s
agreement). The conduct of others that was both in
furtherance of, and reasonably foreseeable in connection

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38 United States v. Tocco Nos. 98-2312/2426; 99-1003
12The 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
those increases separately. Here we are concerned with the appropriate
base offense level, or starting point, for Tocco’s sentence.
levels for Tocco’s supervisory role pursuant to U.S.S.G.
§ 3B1.1(b). Finally, the government argues that a 5-level
enhancement for grouping the offenses is appropriate under
U.S.S.G. § 3D1.3. Thus, if the enhancements included by the
government were applicable, Tocco’s offense level applicable
to the conduct related to the underlying racketeering activity
would be 36 [18 + 2 + 1 + 7 + 3 + 5 = 36]. According to the
government, the minimum base offense level of 19 under
subsection (a)(1) would produce an offense level of 22,
adding only the 3-level enhancement for a supervisory role to
the base offense level of 19 [19 + 3 = 22]. Thus, because
using the offense level applicable to the racketeering activity
produces a higher adjusted level, the government argues that
the court must use that number.12
We must determine, then, whether the district court erred in
applying the base offense level of 19 pursuant to
§ 2E1.1(a)(1) or whether, according to § 2E1.1(a)(2), the
court should have used “the offense level applicable to the
underlying racketeering activity.” The question becomes,
then, what conduct must be considered in determining what
constitutes “the underlying racketeering activity.”
In this case, Tocco was convicted based on more than one
underlying offense. The government claims that those
offenses include, but are not limited to, (1) the extortion
conspiracy (Count Six), (2) the illegal gambling operation, (3)
& (4) the involvement in the Edgewater and the Frontier
Hotels, (5) obstruction of justice, and (6) the Harry Bowman
murder conspiracy. Application Note 1 to § 2E1.1 states that
“[w]here there is more than one underlying offense, [the court
should] treat each underlying offense as if contained in a
separate count of conviction for purposes of subsection
(a)(2).” Id. In addition, that Application Note 1 directs the
Nos. 98-2312/2426; 99-1003 United States v. Tocco 15
8See Kraft v. Jacka, 872 F.2d 862, 867-68 (9th Cir. 1989), which sets
out the Nevada regulatory procedures and controls involved.
and this assignment of error, therefore, does not support a
reversal of Tocco’s conviction.
(3) Vitello’s testimony about labor racketeering
The district court permitted Vitello to testify about Vito
Giacolone’s taking care of labor problems in Toledo. Tocco
claims that allowing the “labor racketeering” testimony
impermissibly “enlarged the scope of the indictment” and
strayed away “from the elements of the charges.” We are
hard pressed to see any unfair prejudice inherent in this brief
testimony. We agree with the district court that the evidence
related to the charged conspiracy. Tocco requested no
limiting instruction, and we cannot conclude that the district
court’s decision constituted reversible error.
(4) Investigative reports by the Nevada Gaming
Commission
Through Clifton Copher, chief of the enforcement division
of the Nevada State Gaming Control Board, the government
introduced records of the Board, also called “investigative
summaries,” into evidence.8 The government claims that
these documents pertained to the application for a gaming
license for the Edgewater Casino and corroborated and placed
into context the conversations of co-conspirators that had
been intercepted. Also, the records were relevant to the
defendants obtaining a hidden interest in the Nevada
gambling industry.
Tocco objected to the admission of the documents on the
basis that they contained opinions and were speculative. The
district court overruled that objection, finding that 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

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16 United States v. Tocco Nos. 98-2312/2426; 99-1003
later, the parties placed into the record an agreed-upon
redaction of only one of the reports.
In this appeal, Tocco claims that the district court erred in
admitting the Board’s records into evidence. Upon
examination, we agree with the government that much of the
documentary evidence was not hearsay because it was based
on facts that the Board had received from information
supplied by the applicants. The objectionable portions which
might arguably be hearsay were redacted by agreement of the
parties. Furthermore, the exhibits were admissible for a non-
hearsay purpose--they showed the predicate act of the
defendants obtaining a hidden interest in the Edgewater, and
they assisted in showing why the Gaming Board granted the
applicants only a temporary gaming license. Thus, we are not
persuaded that the district court should have excluded these
documents as inadmissible hearsay, and in view of the court’s
action in allowing redactions to particular objectionable
portions, no error in this regard has been established.
(5) Judgments of conviction
At trial, the district court allowed the government to admit
into evidence the certified convictions against certain of
Tocco’s co-defendants. Tocco generally objected to the
admission of that evidence, but at no time did he specifically
complain that this was an improper use of offensive collateral
estoppel. Because we find that the admission of those
convictions was permissible, we will assume for purposes of
our analysis that the issue was properly preserved for review.
Tocco argues that the government is not permitted to rely
on the judgments of conviction to prove the predicate acts of
a RICO charge. Such use of those convictions, he claims,
constitutes improper offensive collateral estoppel, relying on
the reasoning in United States v. Pelullo, 14 F.3d 881 (3d Cir.
1994). In Pellulo, however, the district court held that the
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
Pellulo, 14 F.3d at 889-90. The instant case is different,
Nos. 98-2312/2426; 99-1003 United States v. Tocco 37
11The government claims that the Harry Bowman murder conspiracy
would also require the same offense level.
(1) The proper base offense level
First, the government contends that the district court erred
in determining the base offense level for Tocco’s RICO
conviction. Because the proper application of the guidelines
is a question of law, we will review this issue de novo.
United States v. Bazel, 80 F.3d 1140, 1141 (6th Cir. 1996);
see also United States v. Morgano, 39 F.3d 1358, 1378 (7th
Cir. 1994).
The appropriate offense level should be determined by
reference to U.S.S.G. § 2E1.1, which provides that the base
offense level for unlawful conduct related to racketeer
influenced and corrupt organizations is either 19 or “the
offense level applicable to the underlying racketeering
activity,” whichever is greater. Here, the district court
concluded, consistently with the recommendation in the
presentence report, that 19 was the appropriate base offense
level in this case. The report reviewed all of the overt acts of
Tocco and determined that the guideline for the underlying
offense was § 2E3.1, relating to gambling offenses, which
requires a base offense level of 12. Because the RICO
minimum is 19 was higher, the court used that number as the
base offense level for sentencing purposes.
The government argues that the extortion of Ramzi Yaldoo
produced the highest base offense level as that level would
have been calculated under U.S.S.G. § 2B3.2, which pertains
to extortion by force or threats. According to the
government’s calculations, that extortion would dictate a base
offense level of 18 and would be increased by 10 levels
because that crime involved an express or implied threat of
death, bodily injury, or kidnapping (increase of 2 levels,
§ 2B3.2(b)(1)), a loss in excess of $10,000 (increase of 1
level, § 2B3.2(b)(2)), and the discharge of a weapon (increase
of 7 levels, § 2B3.2(b)(3)(A)(i)).11 In addition, as we will
discuss below, the government advocates an increase of 3

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36 United States v. Tocco Nos. 98-2312/2426; 99-1003
criminal activity of which he was convicted. The report takes
pains to discredit the testimony of Angelo Polizzi, a key
witness for the government, referring to his criminal offenses,
the loss of his license to practice law, and his receiving a
sentence of probation in connection with his testimony.
It also makes reference to the affidavit of Tocco’s deceased
former attorney and to the statements of other “defense
attorneys” who maintain that Tocco “has been under constant
FBI surveillance,” and that certain past events “justify any
feelings of harassment that he may hold against the
government.” The probation officer concluded that
“surveillance never produced a single instance where JACK
WILLIAM TOCCO was observed committing a crime or
overheard discussing a crime,” and then added that “[n]o
evidence was introduced that JACK WILLIAM TOCCO has
ever been in the company of all of the six men who are
alleged by the Indictment to be ‘capos’ of the alleged Detroit
organized crime group.” Also along those lines, the report
criticizes the government for its longstanding pursuit of
Tocco, stating that Tocco has been under investigation for
thirty years “and for some reason, the government waited
until 1996, or until the defendant was aged and infirm, to
indict him.”
Overall, the probation office appears to have been
preoccupied with expressing its concern that Tocco was
unjustly pursued by the government or that his conviction was
based on evidence that was not credible. We have addressed
the concerns regarding the sufficiency of the evidence, and we
will not reconsider those concerns at this juncture. Rather, we
must focus on whether Tocco was lawfully and appropriately
sentenced pursuant to the United States Sentencing
Guidelines with reference to the record in this case, keeping
in mind the three counts on which Tocco was convicted.
We now turn to the government’s assignments of error.
Nos. 98-2312/2426; 99-1003 United States v. Tocco 17
because the district court here entered into evidence the
convictions of Tocco’s co-defendants, who had the
opportunity to show the jury that he was not involved in their
crimes. Furthermore, the court did not give a “collateral
estoppel” instruction as the court did in Pellulo. The
government explained that “[w]hether or not Mr. Tocco was
connected to that is a jury-question for the jury to determine.”
Also, there was other evidence that corroborated the
information about the convictions in question. Thus, because
no collateral estoppel effect was given to the challenged
evidence, Tocco’s argument is unfounded.
(6) FBI Agent Ruffino as an expert witness
The district court allowed one of the case agents, Samuel J.
Ruffino, to testify as an expert on organized crime. Tocco
claims that allowing that testimony constituted error because
he received insufficient pretrial notice that Ruffino would be
testifying in that capacity, and because Ruffino should not
have been permitted to testify both as a fact witness and an
expert witness. We review the district court’s admission of
expert testimony under an abuse of discretion standard.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct.
1167, 1174-75 (1999).
After the jury had been selected but before the trial began,
the government moved to have Alfonso D’Arco qualified as
an expert to testify about the nature, organization, rules, and
structure of the national Cosa Nostra enterprise. Though the
district court initially agreed to allow that testimony, it
reversed itself two days later with the agreement that it would
consider a renewed motion later in the trial. On March 2,
1998, the government renewed its motion to qualify D’Arco,
and it also informed the court of its intent to call Ruffino if
D’Arco was not allowed to testify. About ten days later, more
than a month before he testified, the government formally
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

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18 United States v. Tocco Nos. 98-2312/2426; 99-1003
individuals.” Thus, Tocco knew before trial that some form
of “organized crime” expert would testify, and he knew one
month before the actual testimony that Ruffino would be the
expert. Tocco did not request a continuance, nor did he claim
that he did not have sufficient time to examine the witness
prior to his testimony. We conclude that, under these
circumstances, this notice concerning Ruffino was adequate
and sufficient.
Tocco also claims that the district court erred in admitting
Ruffino’s testimony as an expert witness because of the undue
prejudice involved in Ruffino testifying as both a fact witness
and an expert witness. We rejected a similar argument in
United States v. Thomas, 74 F.3d 676 (6th Cir. 1996), where
the defendant argued that a police officer should not be able
to testify in a single case as both a fact witness and an expert
witness. We noted that although “there is a significant risk
that the jury will be confused by the officer’s dual role,” we
are not willing to adopt a per se prohibition of the practice of
allowing an officer to testify in two capacities. Thomas, 74
F.3d at 682-83. If the district court and the prosecutor take
care to assure that the jury is informed of the dual roles of a
law enforcement officer as a fact witness and an expert
witness, then the officer’s “expert” testimony may be proper.
See id. at 683.
In this case, Ruffino’s dual roles were emphasized to the
jury by the fact that he testified at two different times – once
early in the trial as a fact witness, and again at the conclusion
of trial as an expert witness. Furthermore, the district court
instructed the jury, both before he gave his opinion and again
in the jury charge, that it should consider Ruffino’s dual roles
in determining what weight, if any, to give Ruffino’s expert
testimony. Under these circumstances, the district court did
not abuse its discretion in allowing Ruffino to testify in both
capacities.
Ruffino’s testimony was certainly relevant and reliable
under the principles of Daubert v. Merrill Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). This type of
Nos. 98-2312/2426; 99-1003 United States v. Tocco 35
10We do not address the propriety of the district court’s decision to
deny the government’s request for a forfeiture because the government
did not raise that as an issue in its appeal.
category of cases, and departed downward 10 levels from the
guideline range based on Tocco’s overwhelming community
service (4 levels), Tocco’s age and debilitating health (4
levels), and Tocco’s wife’s poor health (2 levels).
Consequently, the final total offense level was 12, and with a
criminal history category of I, the court noted that the
applicable guideline range was 10 to 16 months. The court
sentenced Tocco to 12 months and one day for each of the
three counts of conviction, to be served concurrently,
followed by two years of supervised release, and
recommended a community corrections center as the place of
confinement. In addition, the court ordered Tocco to
complete 705 hours of community service and imposed a fine
of $75,000 plus and amount equal to the cost of incarceration
and supervision (approximately $20,000). The district court
denied the government’s request for a forfeiture judgment.10
The government now appeals, claiming that the district
court erred in applying the § 2E1.1(a)(1) minimum base
offense level of 19 rather than the offense level applicable to
the underlying racketeering activity of extortion pursuant to
§ 2E1.1(a)(2). The government also claims that the district
court should have enhanced Tocco’s sentence for his role in
the conspiracy, and for specific characteristics of the extortion
crime including the use of threats, the discharging of a
firearm, and because the total loss was in excess of $10,000.
According to the government, Tocco’s offense level should
have been 36, calculated pursuant to § 2B3.2, for a guideline
range of 188-235 months. Furthermore, the government
contends that the district court erred in departing downward
ten levels. We will discuss each argument below.
At the outset, we note that we can recall no presentence
report comparable to the one pertaining to Tocco in the
instant case, containing what might well be construed as
“arguments” that Tocco was not involved in most of the

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34 United States v. Tocco Nos. 98-2312/2426; 99-1003
evidence also showed that agents Finnigan and Ruffino had
met with Tocco to inform him that he would be held
responsible personally for violent acts that two of his
unnamed associates were planning. At the time, Tocco
claimed ignorance and denied that any such association
existed. Less than forty-eight (48) hours later, however, Nove
and Corrado received the message that the FBI had visited
Tocco and had given him that warning.
That evidence, when viewing all inferences in a light most
favorable to the government, supports a finding that Tocco
was involved in the conspiracy to commit extortion. Though
the jury may have found it justifiable to acquit Tocco on the
substantive extortion counts, it could very well have found
contemporaneously that Tocco was involved to some degree
in a conspiracy to commit those crimes.
In sum, from our review of the voluminous record in this
case, we conclude that the evidence against Tocco on the
three counts for which he was convicted was not only
sufficient, but it was substantial. The portions of testimony
and evidence mentioned above constitute only a portion of the
evidence admitted into evidence during the course of the
lengthy trial. Thus, we are firmly convinced that the district
court did not err in failing to grant Tocco a judgment of
acquittal on any of the three counts of conviction.
G. Sentencing of Tocco
The district court sentenced Tocco according to the
recommendation in the presentence report, finding those
calculations to be “accurate and correct.” The report assigned
Tocco a base offense level of 19, which is the minimum level
for RICO convictions pursuant to U.S.S.G. § 2E1.1(a)(1).
Three points were added pursuant to U.S.S.G. § 3D1.4, which
sets out the enhancements due to the grouping of the various
counts, making the adjusted offense level 22. The court
agreed with the report’s conclusion that no other
enhancements were applicable, so the total offense level
remained at 22. The district court then determined that this
case was an extraordinary case, outside the “heartland”
Nos. 98-2312/2426; 99-1003 United States v. Tocco 19
evidence regarding the inner-workings of organized crime has
been held to be a proper subject of expert opinion because
such matters are “generally beyond the understanding of the
average layman.” Thomas, 74 F.3d at 682; see also United
States v. Amuso, 21 F.3d 1251, 1264 (2d Cir. 1994); United
States v. Locascio, 6 F.3d 924, 936-37 (2d Cir. 1993); United
States v. Pungitore, 910 F.2d 1084, 1148-49 (3d Cir. 1990).
Further, to the extent that Tocco challenges Ruffino’s
qualifications on the subject about which he testified, we
reject any such contention in light of the undisputed facts.
Ruffino has extensive experience in the investigation of
organized crime in the Detroit area, including 22 years with
the FBI, 17 of which were spent in organized crime
investigations, and his role since 1990 as the Cosa Nostra
coordinator for the Detroit division, and as liason with other
FBI offices and FBI headquarters. Thus, he was amply
qualified to opine about the machinations of organized crime.
In summary, we conclude that the district court did not
abuse its discretion in allowing agent Ruffino to testify as an
expert and that his testimony met the standards of relevance
and reliability. Furthermore, the dual role played by Ruffino
as both a fact witness and an expert did not, under the
circumstances, preclude his testimony because the transition
from one role to another was separated by time and was
explained to the jury.
(7) Co-conspirator statements
Tocco contends that the district court erroneously admitted
tapes (wire intercepts) of conversations between Nove Tocco
and Paul Corrado because they were not “in furtherance of the
conspiracy” charged. Rather, Tocco claims, those tapes
contained nothing more than idle, malicious gossip and
inflammatory statements which unduly prejudiced his case.
If the conversations admitted were “nothing more than idle
chatter or casual conversation about past events,” they were
not properly admissible. United States v. Shores, 33 F.3d
438, 444 (4th Cir. 1994); see also United States v. Doerr, 886
F.2d 944, 951-52 (7th Cir. 1989). The court in Doerr

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20 United States v. Tocco Nos. 98-2312/2426; 99-1003
acknowledged that “statements ‘in furtherance’ of a
conspiracy can take many forms,” such as keeping co-
conspirators advised, or concealing aspects of the scheme. Id.
at 951. The statement may also be “susceptible of alternative
interpretations.” Id. at 952; see also Shores, 33 F.3d at 444.
Shores goes further to indicate that a statement may be
admissible as “in furtherance of a conspiracy” even if “not
‘exclusively, or even primarily, made to further the
conspiracy.’” Id. (quoting United States v. Shoffner, 826 F.2d
619, 628 (7th Cir. 1987)); see also United States v. Hitow,
889 F.2d 1573, 1581 (6th Cir. 1989); United States v.
Hamilton, 689 F.2d 1262, 1270 (6th Cir. 1982).
We are satisfied, after examining the record, that the great
bulk of the admitted evidence tended to demonstrate (1) that
the conspiracy in question existed; (2) that those whose
statements were overheard were members of the conspiracy
that included Tocco; and (3) that the statements were, in fact,
made “during the course and in furtherance of the conspiracy
at issue” according to FED . R. E VID . 801(d)(2)(E). The
provision applies when “a court is satisfied that the statement
actually falls within the definition of the rule.” Bourjaily v.
United States, 483 U.S. 171, 175 (1987). “[T]he existence of
the conspiracy and [defendant’s] involvement in it are
preliminary questions of fact that under [FED . R. EVID .] 104,
must be resolved by the court.” Id.
Bourjaily held also in considering this issue “that there is
little doubt that a co-conspirator’s statements could
themselves be probative of the existence of a conspiracy.” Id.
at 180. Here, Nove Tocco’s and Paul Corrado’s
conversations are probative of the existence of a conspiracy
in which defendant Tocco was involved, and other evidence
was probative on this matter as well. It was not error to
consider that the controverted statements were made in the
course and scope of the conspiracy.
We are concerned, however, with certain remarks of a
racial nature that were made in the conversations that should
have been excised from the tapes. For example, one of the
Nos. 98-2312/2426; 99-1003 United States v. Tocco 33
in an illegal gambling business (sports betting and numbers)
by bankrolling the operation. The overt acts charged in Count
Two were periodic distributions of funds realized from this
operation to the charged partners or co-conspirators.
Therefore, the separate counts were justified in this case.
The unlawful collection involved in Count Two was shown
through the testimony of Angelo Polizzi, who explained that
the proceeds of his father’s illegal gambling business were
pooled by the enterprise and then filtered to the partners in the
form of weekly draws and year-end bonuses. The unlawful
debt is the gambling proceeds. The government notes that
only the partners who received these payments, including
Tocco, were charged in Count Two. Under these
circumstances, the testimony of Angelo is sufficient for a
reasonable jury to find that the elements of Count Two have
been supported by the evidence.
(4) Count Six — Hobbs Act Conspiracy
Tocco claims that the evidence was insufficient to show
that Tocco knew of the purpose of the conspiracy to commit
extortion by Nove Tocco and Paul Corrado, which is the basis
for the Hobbs Act charge in Count Six. The jury acquitted
Tocco of the underlying extortions or attempted extortions
that were charged against him in the indictment, but convicted
him only of the conspiracy to commit those crimes. Tocco
suggests that such verdicts are inconsistent and represent a
compromise by some jurors who may not have thought that
Tocco was actually involved in Nove Tocco’s and Paul
Corrado’s affairs.
We agree with the government that the tape recorded
conversations of Nove and Corrado, coupled with the
Finnigan and Ruffino evidence, were sufficient to support
Tocco’s conviction on this count. Specifically, the tape
recorded conversations of Nove and Corrado candidly showed
a conspiracy to commit extortion by the collection of a “street
tax,” and also tended to show that Tocco had the authority to
influence from whom they would extort money and how the
collection of the “street taxes” would be enforced. The

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32 United States v. Tocco Nos. 98-2312/2426; 99-1003
allegations of family connections and relationships, and a
pattern of criminal activity. In Salinas, supra, the Supreme
Court stated that “[t]here is no requirement of some overt act
or specific act in the [RICO] statute before us. . . . [Section
1962] is even more comprehensive than the general
conspiracy offense in §371.” Id. at 63. “[S]o long as the
purpose of the agreement is to facilitate commission of a
crime, the actor need not agree ‘to commit’ the crime.” Id. at
65 (quoting the American Law Institute, Model Penal Code,
Tent. Draft No. 10, p. 117 (1960)).
We believe that there was sufficient evidence for a rational
jury to find that defendant Tocco agreed to “facilitate . . .
some of the acts leading to the substantive offense[s]”
charged. Id. Indeed, Angelo Polizzi testified that Tocco was
the boss of the organization. Even if the proof did not show
that all the substantive offenses related to the RICO
conspiracy actually occurred, “[i]t is elementary that a
conspiracy may exist and be punished whether or not the
substantive crime ensues, for the conspiracy is a distinct evil,
dangerous to the public, and so punishable in itself.” Id. The
testimony confirmed the general nature of the enterprise, and
that Tocco knew that the enterprise extended beyond his role
therein.
(3) Count Two — Collection of an Unlawful Debt
Tocco argues that Count Two is duplicitous of Count One,
because Count Two charges another RICO conspiracy which
has as its object the collection of an unlawful debt. It is true
that Count Two relies on the same enterprise as is involved in
Count One, but the crime charged in Count Two is not part of
the predicate acts in Count One. These counts are not
duplicitous, but they are related. In a collection of an
unlawful debt conspiracy, the government need only show an
agreement as to one act of collection, whereas a pattern of
racketeering activity RICO conspiracy requires an agreement
to commit at least two predicate acts. See United States v.
Oreto, 37 F.3d 739, 751 (1st Cir. 1994); Eufrasio, 935 F.2d
at 576. The predicate acts in count one involved Tocco’s part
Nos. 98-2312/2426; 99-1003 United States v. Tocco 21
comments on the tapes was that “I think you might win up
here [in Detroit] with a nigger trial, nigger jury.” Also, a
statement was made that “they seem to have success over
there [in New York City] because there’s so many Italians and
American people, the Wasps or whatever, are so used to being
around other Italians, they’re accepted.”
Although we agree that those particular denigrating
comments were unfairly prejudicial, they were only a very
minor portion of the total discussion on the tapes.
Accordingly, the district court did not commit reversible error
in refusing to strike the tapes in total as urged by defendant
Tocco, though it would have been advisable to strike the parts
that we have mentioned. We note that a case relied upon by
Tocco, United States v. Johnson, 927 F.2d 999 (7th Cir.
1991), found that certain co-conspirator statements were
improperly admitted against defendant, but that the error did
not affect the “substantial rights” of the defendant and was
therefore not reversible. Johnson, 927 F.2d at 1003. Here, as
in Johnson, the prosecution presented substantial other
evidence “from which the jury might have concluded”
defendant’s guilt, and his conviction will not be reversed
based on the admission of the co-conspirator’s statements. Id.
In sum, none of the evidentiary issues raised by Tocco
require this court to reverse his conviction.
E. Prosecutorial Misconduct
Tocco moved for a mistrial based upon several aspects of
alleged prosecutorial misconduct, and the district court denied
that motion. We review the district court’s decision for an
abuse of discretion. United States v. Carroll, 26 F.3d 1380,
1383 (6th Cir. 1994). “An abuse of discretion exists when the
reviewing court is firmly convinced that a mistake has been
made.” Id.
When reviewing claims of prosecutorial misconduct,
we determine first whether the statements were improper.
See United States v. Krebs, 788 F.2d 1166, 1177 (6th
Cir.1986). If they appear improper, we then look to see

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22 United States v. Tocco Nos. 98-2312/2426; 99-1003
if they were flagrant and warrant reversal. See United
States v. Carroll, 26 F.3d 1380, 1388 (6th Cir. 1994). To
determine flagrancy, the standard set by this Court is: 1)
whether the statements tended to mislead the jury or
prejudice the defendant; 2) whether the statements were
isolated or among a series of improper statements; 3)
whether the statements were deliberately or accidentally
before the jury; and 4) the total strength of the evidence
against the accused. United States v. Monus, 128 F.3d
376, 394 (6th Cir.1997) (citing United States v. Cobleigh,
75 F.3d 242, 247 (6th Cir. 1996)); Carroll, 26 F.3d at
1385 (citing United States v. Leon, 534 F.2d 667, 679
(6th Cir.1976)). To reverse a conviction because of an
improper non-flagrant statement, a reviewing court must
determine that: 1) the proof of the defendant's guilt is not
overwhelming; 2) the defense counsel objected; and 3)
the trial court failed to cure the impropriety by failing to
admonish the jury. Monus, 128 F.3d at 394; Carroll, 26
F.3d at 1385-86 (citing United States v. Bess, 593 F.2d
749, 757 (6th Cir.1979)).
United States v. Francis, 170 F.3d 546, 549-50 (6th Cir.
1999); see also Pritchett v. Pitcher, 117 F.3d 959, 964 (6th
Cir. 1997) (quoting Serra v. Michigan Dept. of Corrections,
4 F.3d 1348, 1355-56 (6th Cir. 1993)). We will not overturn
a verdict unless the prosecutorial misconduct is “so
pronounced and persistent that it permeate[d] the entire
atmosphere of the trial, . . . or so gross as probably to
prejudice the defendant.” Pritchett, 117 F.3d at 964 (citations
omitted).
Tocco raises seven categories of government misconduct
that, taken together, allegedly require reversal. For the
following reasons, we are not “firmly convinced that a
mistake has been made,” nor are we persuaded that there has
been a denial of a fair trial by the actions of the prosecutor.
See Carroll, 26 F.3d at 1383.
We turn to the specifics of the alleged misconduct.
Nos. 98-2312/2426; 99-1003 United States v. Tocco 31
9Tocco briefly argues that the RICO conspiracy charges are barred
by the five-year statute of limitations. However, “a RICO conspiracy
offense is complete, thus commencing the running of the five-year statute
of limitations, only when the purposes of the conspiracy have either been
accomplished or abandoned.” United States v. Salerno, 868 F.2d 524,
534 (2d Cir. 1989) (citing United States v. Persico, 832 F.2d 705, 713 (2d
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
abandoned the ongoing enterprise. Certainly, Tocco has not shown any
affirmative withdrawal. See United States v. Rogers, 118 F.3d 466 (6th
Cir. 1997).
Thus, the government submitted sufficient evidence to show
that an enterprise existed.9
(2) Count One — Pattern of Racketeering
Tocco claims that the evidence did not show a pattern of
racketeering. To show a pattern of racketeering activity
conspiracy, a defendant need not personally agree to commit
two predicate acts; rather, he need only “kn[ow] about and
agree[ ] to facilitate the scheme.” Salinas v. United States,
522 U.S. 52, 66 (1997). Further, a defendant need not know
about every member and component of the enterprise; he need
only know “the general nature of the enterprise and that the
enterprise extends beyond his role.” United States v.
Eufrasio, 935 F.3d 553, 577 n.29 (3d Cir. 1991).
Tocco argues that the government failed in its burden of
showing a pattern of racketeering with respect to himself
because the evidence showed no more than a series of
unrelated acts by people not acting in concert with each other,
although many knew each other. Tocco argues that he had no
knowledge of many of the acts committed by the others in the
purported conspiracy.
The testimony at trial belies Tocco’s assertions. Angelo
Polizzi, if believed, provided evidence to show the criminal
enterprise in operation, with Tocco as a “boss” thereof. The
tapes of Corrado and Nove Tocco, if believed, supported

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30 United States v. Tocco Nos. 98-2312/2426; 99-1003
(1) Counts One and Two — Proof of the Enterprise
Tocco first challenges the sufficiency of the evidence of an
enterprise. The existence of an enterprise is shown “by
evidence of an ongoing organization, formal or informal, and
by evidence that the various associations function as a
continuing unit.” Turkette, 452 U.S. at 583. “Continuity of
structure exists where there is an organizational pattern or
system of authority that provides a mechanism for directing
the group’s affairs on a continuing, rather than ad hoc, basis.”
United States v. Kragness, 830 F.2d 842, 856 (6th Cir. 1987).
The government claims that it presented sufficient evidence
to show the existence of an enterprise, which was the Detroit
organized crime family called La Cosa Nostra. The majority
of this proof, the government notes, came through the
testimony of Angelo Polizzi and Ruffino, and through the
recorded conversations admitted at trial. The testimony
showed a highly structured organization with Tocco as the
boss. According to the testimony, there were ten to twelve
partners, all associated by blood or by marriage, including
Michael Polizzi and Anthony Corrado, and several lower-
level members, including Paul Corrado and Nove Tocco.
Tocco argues that the evidence fails to show an
ascertainable structure distinct from any structure inherent in
the conduct of a pattern of racketeering activity. Tocco’s
position, however, ignores the testimony of Angelo Polizzi,
who testified as to statements made by his father regarding his
involvement in La Cosa Nostra and the expert testimony of
Ruffino, who testified about the general structure of La Cosa
Nostra and other details involved in organized crime. As the
Eighth Circuit has recognized, “the command system of a
Mafia family is an example of th[e] type of structure” that is
distinct from the pattern of racketeering activity. See United
States v. Flynn, 852 F.2d 1045, 1052 (8th Cir. 1988) (quoting
United States v. Bledsoe, 674 F.2d 647, 665 (8th Cir. 1982)).
Nos. 98-2312/2426; 99-1003 United States v. Tocco 23
(1) Blurt-outs
Tocco claims that the prosecution improperly orchestrated
questions and answers that intentionally brought before the
jury opinions of experienced FBI agents that Tocco and others
were “known members of the Cosa Nostra family.” Tocco
promptly objected to such “blurt-outs” at trial, and the district
court forcefully sustained those objections and admonished
counsel in that respect.
At the end of the first day of trial, the court expressed its
preference that the terms “La Cosa Nostra” or “Mafia” not be
used unless the defendants’ participation in that group was
first established. The court further stated that “it’s not going
to be any kind of a terminal problem if [the improper
terminology] slips out.” Later in the trial, when government
agent Stejskal was asked why he was engaged in a
surveillance of Tocco, he said because “Jack Tocco was
considered to be a member of the Detroit family of La Cosa
Nostra.” Tocco did not object at that time, but he objected
when Stejskal subsequently stated that Raffaele Qusarano was
a member of the Detroit family. The district court sustained
the objection, then later warned that there should be no “more
conclusory testimony about we knew that these men were
such and such.” When Tocco moved for a mistrial on the
basis of the improper comments, the district court denied the
motion and explained that it had effectively sustained any
objections in that regard and that a new trial was not
warranted. Tocco did not request any curative instruction on
the issue.
We agree, as the district court recognized, that any
testimony that Tocco was a “known” member or “boss” of La
Cosa Nostra was improper. The impropriety, however, was
not flagrant, nor was it so pervasive as to “permeate the entire
atmosphere of the trial.” Rather, when Tocco objected to the
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

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24 United States v. Tocco Nos. 98-2312/2426; 99-1003
Cosa Nostra, so every reference to the group can not be
deemed to have been improper. The improper witness
comments constituted a very small part of the total evidence
against Tocco. The district court did not decline any
precautionary instructions suggested by Tocco.
In conclusion, we deem Tocco’s concerns to be legitimate,
but, on balance, we find that the district court did not abuse its
discretion in failing to grant a new trial based on the improper
episodes. See United States v. Forrest, 17 F.3d 916, 920-21
(6th Cir. 1994) (holding that the challenge was legitimate, but
finding that the episodes did not warrant a mistrial).
(2) “Vouching” for the credibility of Angelo Polizzi
Tocco claims that the government improperly “vouched”
for the credibility of Angelo Polizzi by entering into evidence
Polizzi’s plea agreement and related documents which stated
that he had to testify truthfully in order to obtain lenity.
Whether improper vouching amounts to prosecutorial
misconduct and whether it renders the trial fundamentally
unfair are mixed questions of law and fact reviewable de
novo. Francis, 170 F.3d at 549.
Tocco argues that this situation is like that described in
Carroll, supra, where this court held that the government may
not “vouch” for the credibility of its witnesses by disclosing
to the jury the witness’s obligation under his plea agreement
or by prosecutor comments suggesting that a witness will be
punished by not testifying truthfully. Such a practice, we
found, “improperly place[s] the prestige of the government,
and even of the court, behind the credibility of the [witnesses]
by stating that, if the government or the judge did not believe
that the witnesses were being truthful, the witnesses would be
in jeopardy. . . . This constitutes improper vouching. . . . We
cannot overstate the extent to which we disapprove of this
sort of improper vouching by prosecutors.” Carroll, 26 F.3d
at 1389.
In this case, the government introduced into evidence
documents related to the benefits that Angelo received for his
Nos. 98-2312/2426; 99-1003 United States v. Tocco 29
omitted). The jury may draw any reasonable inferences from
direct, as well as circumstantial, proof. See United States v.
Locascio, 6 F.3d 924, 944 (2d Cir. 1993). Once a conspiracy
has been proven, only slight evidence is necessary to
implicate a defendant as a participant in that conspiracy if the
evidence shows the connection beyond a reasonable doubt.
See United States v. Braggs, 23 F.3d 1047, 1051 (6th Cir.
1994).
At the conclusion of the government’s proof, Tocco moved
for acquittal “relying on the brief filed by co-defendant
[Anthony Tocco].” We have not been furnished in the
substantial joint appendix a copy of that motion, so we look
to Tocco’s appellate brief for his position with respect to this
“heavy burden” of persuasion. In an opinion filed July 30,
1998, the district court simply concluded as to this defendant
that “[a]dequate evidence was adduced at trial to support the
jury’s verdict on all charges,” and, therefore, denied Tocco’s
motion for acquittal and for a new trial. Here, Tocco again
argues that the evidence was insufficient to convict him on all
three counts of which he was found guilty.
Proof of a charge under § 1962(d) requires proof that the
association or enterprise existed and that the named
defendants were associated with and agreed to participate in
the conduct of its affairs, which affect interstate commerce,
through a pattern of racketeering activity (Count One) or
through the collection of an unlawful debt (Count Two). See
United States v. Turkette, 452 U.S. 576, 583 (1981); United
States v. Qaoud, 777 F.2d 1105, 1116 (6th Cir. 1985). These
elements are separate and distinct. Turkette, 452 U.S. at 583.
Evidence used to show the existence of the enterprise may
also support the participation element. Id. The RICO statute
defines an enterprise as “includ[ing] any individual,
partnership, corporation, association or other legal entity, and
any union or group of individuals associated in fact although
not a legal entity.” 18 U.S.C. § 1961(4).

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28 United States v. Tocco Nos. 98-2312/2426; 99-1003
(7) FBI escort of cooperating witness to witness
stand/testifying about witness’s fears
At trial, FBI agents escorted the first government witness,
Angelo Polizzi, into the courtroom and all the way to the
witness chair, which Tocco claims indicated to the jury that
government witnesses were in danger from the defendants.
Tocco objected, and the district court directed that there be no
more escorting of witnesses to the stand. Tocco argues that
the district court committed reversible error in failing to grant
him a mistrial because of the FBI escort of Polizzi.
The agents that escorted Polizzi were in plain clothes and
without weapons. There were no prosecutorial comments
relating to the escort and the need for witness protection.
Though witness endangerment could have possibly been
inferred, the district court resolved the issue by disallowing
such escorts for the other witnesses. We find no error, much
less any “egregious” error, in the action taken by the district
court and denial of the motion for mistrial based upon this
alleged misconduct.
In sum, we find that none of the alleged instances of
prosecutorial misconduct, alone or collectively, justify a new
trial in this case.
F. Insufficiency of the Evidence
We review a challenge to the sufficiency of the evidence de
novo, considering “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319 (1979); see also United States v. Jones, 102 F.3d
804, 807-08 (6th Cir. 1996). A defendant making such a
challenge bears a very heavy burden. United States v.
Spearman, 186 F.3d 743, 746 (6th Cir. 1999), petition for
cert. filed (U.S. Oct. 29, 1999) (No. 99-6812).
“Circumstantial evidence alone is sufficient to sustain a
conviction and such evidence need not remove every
reasonable hypothesis except that of guilt.” Id. (citation
Nos. 98-2312/2426; 99-1003 United States v. Tocco 25
cooperation with the government. Those documents were
redacted to exclude the phrase that Angelo “provided truthful
and very valuable testimony.” In his examination of Angelo,
the prosecutor never referred to the parts of the documents
that explained the benefits that were conferred in exchange
for Angelo’s testimony. Tocco fails to point out any
comments made by the prosecutor to the effect that the
government and the court would prosecute Polizzi for perjury
and revoke his plea agreement if he did not testify truthfully.
Nor did the prosecutor indicate that he had any other
independent means of discerning Polizzi’s truthfulness. Thus,
the only basis for Tocco’s claim is the unredacted portions of
Polizzi’s plea agreement and related documents, the
admissibility of which we have discussed and affirmed above.
There being no improper prosecutorial statements, we must
reject Tocco’s contention of improper vouching. See Francis,
170 F.3d at 549-50 (reasoning that court must first determine
whether the prosecutor’s statements are improper).
(3) Impermissible comments on the exercise of Tocco’s
right to seek counsel
Tocco claims that prosecutorial misconduct occurred when
the prosecution elicited testimony during trial from various
witnesses indicating that Tocco had requested to see an
attorney, that he had consulted an attorney, and that he
consulted an attorney in the company of co-conspirators.
This, Tocco argues, constituted “an impermissible comment
on the defendant’s exercise of his constitutional right.”
We find this argument to be without merit. First, it seems
that Tocco did not object to most of this evidence at the time
it was admitted. Rather, counsel for Anthony Tocco objected
to the possible prejudice of surveillance evidence that Tocco
went to Peter Bellanca’s law offices. He feared that such
evidence would prejudice his client, Anthony Tocco. The
district court rejected that argument because the evidence
tended to show Tocco’s association with an illegal casino
matter. It was not offered for any improper purpose.
Assuming that Anthony’s objection preserves the issue for

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26 United States v. Tocco Nos. 98-2312/2426; 99-1003
Tocco in this appeal, we find that the evidence of Tocco’s
visit to Bellanca’s law office — or evidence that Tocco
sought out or consulted the advice of an attorney generally —
simply does not invade the attorney-client relationship, nor
does such evidence impinge on the exercise of Tocco’s
constitutional right to consult with an attorney. The mere act
of hiring an attorney is simply not probative of Tocco’s guilt
or innocence under these circumstances.
(4) Admitting evidence of an unrelated murder
Tocco argues that prosecutorial misconduct occurred when
the government introduced evidence that the cousin of the
bookmaker Yatooma was murdered. The government claims
that it had offered that evidence to explain when and why
Yatooma’s bookmaking business suddenly increased sharply.
Yatooma testified that his cousin’s bookmaking customers
started dealing with him after his cousin died. Tocco did not
object to that evidence. When asked in cross-examination
whether the defendants were involved in the murder,
Yatooma responded, “Oh, no, sir, no.” Though the court gave
an instruction for the jury to disregard such testimony, Tocco
now claims that the prejudice from that evidence was too
prejudicial for a curative instruction to mitigate.
We disagree. The prosecution did not imply that the
murder was related to defendant Tocco, and the evidence did
not by its own nature imply such a conclusion. The witness
specifically denied that Tocco or any other defendant was
involved, and the district court issued a curative instruction on
the matter. Under these circumstances, we find no basis for
concluding that there was prosecutorial misconduct.
(5) Arguing facts not in evidence
Tocco argues that the prosecution twice argued facts that
were not in evidence during closing argument, in that the
prosecuting attorney embellished the testimony of Silverio
Vitello. The prosecutor first argued that after Vitello saw
Tocco, Vitello’s union problem was taken care of, and second
that “Tocco worked that union problem out for [Vitello].”
Nos. 98-2312/2426; 99-1003 United States v. Tocco 27
When Tocco objected to the second comment (he did not
object to the first), the prosecutor explained that he was
arguing his recollection of Vitello’s testimony. Vitello
actually testified that when he had problems Tocco referred
him to Tony Lapiana, who had previously helped him handle
union grievances.
We have examined this contention in light of the record
and, again, find no justifiable basis for concluding that this
episode amounted to prosecutorial misconduct. At most, as
the district court apparently concluded, the prosecutor argued
a mistaken recollection of the facts and the jury was reminded
that it was the determiner of the true facts from the evidence.
Under the circumstances, Tocco is not entitled a new trial
based on this assignment of error.
(6) Shuffling of documents in Exhibit 116
Tocco argues that the prosecutor added pages to Exhibit
116, a Nevada Gaming Commission record, after the exhibit
had been entered into evidence. Tocco alleges that an
egregious error was committed when the prosecutor was
allowed to refer to the pages that had been added during his
closing argument. He claimed that the prosecutor
impermissibly “shuffled” the exhibit to include the
investigative summaries that were not a part of the exhibit
when it was admitted.
From our review of the record, it is apparent that the
reference to the pertinent pages of Exhibit 116 did not
constitute prosecutorial misconduct. Tocco has failed to
show that the portions to which the prosecutor referred were
not included in the exhibit during trial, and that reference to
those portions prejudiced him in any way. The district court
was in the best position to assay the merits of the parties’
arguments and to determine exactly what was included in
Exhibit 116 according to the redaction agreement of the
parties. From this record, we are not persuaded that the
prosecutor engaged in misconduct with respect to its reference
to Exhibit 116.

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