United States v. D'Amico

United States Court of Appeals
For the First Circuit

Nos. 05-1468, 05-1573

UNITED STATES OF AMERICA,

Appellee/Cross-Appellant,

v.

MICHAEL J. D'AMICO,

Defendant, Appellant/Cross-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Selya, Circuit Judge,

Stahl, Senior Circuit Judge,

and Howard, Circuit Judge.

James L. Sultan with whom Jonathan Harwell and Rankin &
Sultan, were on brief, for appellant.
S. Theodore Merritt, Assistant United States Attorney with
whom Michael J. Sullivan, United States Attorney, was on brief
for, appellee/cross-appellant.

August 7, 2007
 HOWARD, Circuit Judge. Michael D'Amico, a former city

councillor for the City of Quincy, Massachusetts, was convicted of

extortion under color of official right in violation of the Hobbs

Act, 18 U.S.C. § 1951, and of making false statements to an agent

of the Federal Bureau of Investigation (FBI) in violation of 18

U.S.C. § 1001. The Hobbs Act conviction stems from D'Amico's

accepting $2,500 from Paul Gostoves, an FBI informant and owner of

a Dunkin' Donuts franchise, who was seeking to have the road in

front of his Quincy store widened. The false statements conviction

stems from D'Amico's lying to an FBI agent about this transaction.

D'Amico was sentenced to four months' imprisonment, even though the

applicable guidelines sentencing range (GSR) was 31-44 months.

D'Amico appeals the Hobbs Act conviction, and the government cross-

appeals the sentence.

I. D'Amico's Appeal

A. Duplicitous Indictment

D'Amico first contends that the Hobbs Act extortion

charge was duplicitous. The indictment charged D'Amico with one

count of interfering and attempting to interfere with interstate

commerce through extortion.1 D'Amico argues that attempted

1
The count read as follows:

On or about October 15, 2001 at Quincy, in the
District of Massachusetts, MICHAEL J. D'AMICO
defendant herein, who was then a city counselor for
the City of Quincy, did obtain and attempt to obtain
property, to wit: two thousand five hundred dollars

-2-
extortion and completed extortion are separate crimes which had to

be indicted in separate counts. The district court disagreed.2

Duplicity challenges to an indictment are reviewed de

novo. See United States v. Kelley, 461 F.3d 817, 830 (6th Cir.

2006); United States v. Caldwell, 302 F.3d 399, 407 (5th Cir.

2002); United States v. Trammell, 133 F.3d 1343, 1354 (10th Cir.

1998); United States v. Bryan, 868 F.2d 1032, 1037 (9th Cir. 1989).

"Duplicity is the joining in a single count of two or more distinct

and separate offenses." United States v. Verrecchia, 196 F.3d 294,

297 (1st Cir. 1999). "The prohibition against duplicitous

indictments arises primarily out of a concern that the jury may

find a defendant guilty on a count without having reached a

($2,500.00) in cash from another with his consent,
by means of extortion, that is under the color of
official right as a City Counselor (sic), for the
purpose of influencing a road construction project
in Quincy, and did thereby obstruct and attempt to
obstruct and affect commerce and the movement of
articles and commodities in commerce.
2
In making this ruling, the district court criticized D'Amico
for waiting until the eve of trial to file a motion challenging the
indictment. The government argues that, in light of the district
court's comment, we should rule that D'Amico waived his duplicity
challenge. Federal Rule of Civil Procedure 12(e) provides that a
defendant waives a defective indictment claim if the claim is made
after the deadline for pretrial motions, unless the district court
permits the late filing for "good cause." D'Amico's challenge to
the indictment was undoubtedly late, but, because the district
court rejected his argument on the merits, we shall reach the
merits as well. See United States v. Huber, 404 F.3d 1047, 1054
(8th Cir. 2005).

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unanimous verdict on the commission of any particular offense."3

United States v. Valerio, 48 F.3d 58, 63 (1st Cir. 1995) (citation

omitted). The bar against duplicitous indictments is embodied in

Fed. R. Crim. P. 8(a), which provides that separate offenses must

be charged in separate counts of an indictment. See United States

v. Damrah, 412 F.3d 618, 622 (6th Cir. 2005); United States v.

Buchmeier, 255 F.3d 415, 421 (7th Cir. 2001). "[D]etermining

whether there is duplicity [in an indictment] . . . is [often] a

difficult and subtle question." 1A Charles Alan Wright, Federal

Practice & Procedure (Criminal) § 142 (3d ed. 1999).

The question here is whether an indictment charging a

completed and attempted extortion in one count is duplicitous.

Ordinarily, it has been thought that attempt is a lesser-included

offense of the completed crime and need not be charged at all. See

Fed. R. Crim. P. 31(c); United States v. Summit Refrigeration

Group, Inc., No. 05-151, 2006 WL 3091115, at *5 (E.D. Wis. Oct. 26,

2006) (unpublished disposition) ("[I]f a defendant can be found

guilty of attempt even if attempt is not charged, it cannot be

duplicitous to charge [attempt and the completed offense] in one

3
Courts have recognized additional harms from a duplicitous
indictment, including that it may (1) fail to give the defendant
adequate notice of the nature of the charges, (2) threaten to
subject the defendant to prejudicial evidentiary rulings at trial,
and (3) produce trial records inadequate to allow a defendant to
plead prior convictions or acquittals as a bar to subsequent
prosecution for the same offense. E.g., United States v. Marshall,
75 F.3d 1097, 1111 (7th Cir. 1996).

-4-
count."); United States v. Stotts, No. 01-1001, 2002 WL 1477214,

at *6-*7 (W.D. Tenn. July 2, 2002) (unpublished disposition)

(indictment charging attempt to manufacture methamphetamine and

completed crime in same count was not duplicitous because attempt

was lesser-included offense of completed crime); United States v.

Quinn, 364 F. Supp. 432, 437 (N.D. Ga. 1973) (stating that by

including attempt in the same count of the indictment as the

completed offense, "the government is merely making explicit its

right to a verdict . . . finding [the] defendant guilty of an

attempt . . . whether an attempt is charged or not").

Where, however, attempt is not a lesser-included offense

of the completed crime, at least one court has held that an

indictment charging attempt and the completed crime in the same

count is duplicitous. See United States v. Ramirez-Martinez, 273

F.3d 903, 913-14 (9th Cir. 2001), overruled on other grounds by

United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (en banc).

In Ramirez-Martinez, the Ninth Circuit found an indictment

duplicitous where it charged a defendant, in a single count, with

both transporting and attempting to transport undocumented aliens

within the United States. See 8 U.S.C. § 1324(a)(1)(A)(ii).

According to the court, a conviction for attempted transport

requires proof that the defendant had a specific intent to

transport undocumented aliens, while a conviction for actual

transport requires proof only that the defendant had a general

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intent to transport aliens "with knowledge or reckless disregard of

their undocumented status."4 Ramirez-Martinez, 273 F.3d at 14.

The cases hold that attempts are lesser-included offenses

of completed Hobbs Act violations. United States v. Coyazo, 95

Fed. Appx. 261, 265 (10th Cir. 2004) (unpublished disposition)

(robbery); United States v. Gregory, No. 99-1765, 2000 WL 1644071,

at *2 (2d Cir. Nov. 1, 2000) (unpublished disposition) (robbery);

United States v. Barnard, No. 92-558, 1983 WL 144644, at *2 (E.D.

La. Mar. 24, 1993)(unpublished disposition) (extortion); United

States v. Blair, 762 F. Supp. 1384, 1386 n.3 (N.D. Cal. 1991)

extortion). That is, all the elements of attempted extortion are

elements of the completed crime, unlike the separate elements

present in Ramirez-Martinez. See United States v. Bailey, 227 F.3d

792, 797 (7th Cir. 2000). As Count I of the indictment in this

case may be read to include only one Hobbs Act violation --

extortion or the lesser included offense of attempted extortion, we

agree with the district court that the indictment is not

duplicitous on its face. See United States v. Mastelotto, 717 F.2d

1238, 1244 (9th Cir. 1983) ("In reviewing an indictment for

duplicity, our task is not to review the evidence presented at

trial to determine whether it would support charging several crimes

rather than just one, but rather solely to assess whether the

4
We take no position on whether this interpretation of 8
U.S.C. § 1324(a)(1)(A)(ii) is correct.

-6-
indictment itself can be read to charge only one violation in each

count."), overruled on other grounds by United States v. Miller,

471 U.S. 130 (1985), cited with approval in United States v.

Trainor, 477 F.3d 24,32 (1st Cir. 2007).5

In asserting that he was prejudiced by the allegedly

duplicitous indictment, D'Amico argues in his reply brief, as he

did before the district court, that he was denied the right to a

unanimous jury verdict. D'Amico contends that some jurors might

have found him guilty of attempted extortion based in part on a

finding that he believed the payment of $2,500 he received from

Gostoves would deplete assets of the Dunkin' Donuts franchise.

D'Amico says that this belief, if proved, could supply the

interstate commerce nexus required for conviction for attempt under

the statute (we discuss the interstate commerce requirement further

in part C. of this opinion). But, he argues, his belief about the

source and effect of the payment was irrelevant to whether a

completed extortion was committed; an actual impact on interstate

commerce is required. Given that the proof for attempted extortion

5
In support of his duplicity argument, D'Amico relies
primarily on United States v. Stark, 515 F.2d 112, 116-118 (3d Cir.
1975). In Stark, the court held that an indictment charging a
defendant with conspiracy to extort and attempt to extort under the
Hobbs Act in the same count was duplicitous. Stark's holding is an
application of the established principle that conspiracy and the
substantive offense are distinct crimes, Iannelli v. United States,
420 U.S. 770, 777 (1975), that should be charged in separate counts
of an indictment, see Wright, supra at § 142 at 14 n.14 (citing
cases). Stark has no application here, where conspiracy was not
charged.

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and completed extortion could be different, the argument concludes,

the jury may not have been unanimous about whether D'Amico was

guilty of extortion or attempted extortion.

While, as we have noted, one of the purposes of the

prohibition against duplicitous indictments is to guard against

conviction without a unanimous jury verdict, the fact that an

indictment is not duplicitous on its face of course does not

guarantee that a jury verdict will be unanimous, based on the

evidence actually presented. We have observed a lack of clarity in

the law about the requirement for juror unanimity when, as here,

there are alternate paths to a verdict, and we have acknowledged

that a count may contain alternative theories, factual scenarios

and lines of evidentiary inference, "making generalizations about

unanimity hazardous." United States v. Pagan-Santini, 451 F.3d

258, 267 (1st Cir. 2006). We need not decide whether D'Amico would

have been entitled to a unanimity instruction, for he did not seek

one at trial, and on appeal he expressly disclaims that he is

challenging the failure to give such an instruction, preferring

instead to rest on his claim that the trial should not have

proceeded on the indictment as drafted. Because the indictment was

not duplicitous, we reject that claim.

B. Promise of an Official Act

D'Amico next challenges the district court's denial of

his Fed. R. Crim. P. 29 motion for a judgment of acquittal. He

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contends that the government failed to prove, as it must, that he

accepted the $2,500 payment from Gostoves in exchange for a promise

to perform an official act.

We review D'Amico's sufficiency of the evidence claim de

novo. See United States v. Hall, 434 F.3d 42, 49 (1st Cir. 2006).

In so doing, "we must decide, viewing the evidence in the light

most favorable to the verdict of guilt, whether a reasonable

factfinder could find the defendant guilty of the crime beyond a

reasonable doubt." United States v. Boulanger, 444 F.3d 76, 89

(1st Cir. 2006).

In relevant part, the Hobbs Act defines extortion "as the

obtaining of property from another with his consent, induced . . .

under color of official right." 18 U.S.C. § 1951(b)(2). "To

establish guilt for extortion under color official right, the

[government] must show . . . that the defendant, a public official,

has received an emolument that he was not entitled to receive, with

knowledge that the emolument was tendered in exchange for some

official act." United States v. Cruz-Arroyo, 461 F.3d 69, 73 (1st

Cir. 2006). Additionally, where the payment was treated as a

campaign contribution, the government must demonstrate that the

payment was "in return for an explicit promise or undertaking by

the official to perform or not to perform an official act."

McCormick v. United States, 500 U.S. 257, 273 (1991). In other

words, where the payment takes the form of a campaign contribution,

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the government must prove a "specific quid pro quo" between the

public official and the payor. United States v. Cruzado-Laureano,

404 F.3d 470, 482 (1st Cir. 2005).

This last requirement is rooted in the recognition that

candidates for political office must raise money to fund their

campaigns and that, to do so effectively, they often must make

promises concerning their plans if elected. As the Supreme Court

explained:

Money is constantly being solicited on behalf
of candidates, who run on platforms and who
claim support on the basis of their views and
what they intend to do or have done. Whatever
ethical considerations and appearances may
indicate, to hold that legislators commit the
federal crime of extortion when they act for
the benefit of constituents . . . shortly
before or after campaign contributions are
solicited and received from the beneficiaries,
is an unrealistic assessment of what Congress
could have meant by making it a crime to obtain
property from another, with his consent, 'under
color of official right.' To hold otherwise
would open to prosecution not only conduct that
has long been thought to be well within the law
but also conduct that in a very real sense is
unavoidable so long as election campaigns are
financed by private contributions or
expenditures, as they have been from the
beginning of the Nation.

McCormick, 500 U.S. at 272.

The government contends that the quid pro quo requirement

does not apply in this case because there was evidence from which

a jury could conclude that Gostoves' payment to D'Amico was not a

campaign contribution. But, whatever inference the evidence may

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have permitted, the district court instructed the jury that to find

D'Amico guilty, it had to conclude that "the payment was made in

return for an agreement or a promise by [D'Amico] to perform some

official act . . . . The quid pro quo is a promise to use the

office for the benefit of the payor." This instruction, unobjected

to by the government, is the law of the case and supplies the

standard by which we measure the sufficiency of the evidence. See

United States v. Zanghi, 189 F.3d 71, 79 (1st Cir. 1999).6 Thus,

for the conviction to stand, there must be adequate evidence from

which a reasonable jury could find that D'Amico promised to perform

an official act in exchange for the payoff from Gostoves.

D'Amico contends that, by the time Gostoves paid him, the

plan to widen the road in front of Gostoves' Dunkin' Donuts had

already been approved by the city council. This undisputed fact,

D'Amico contends, compels the conclusion that there was no quid pro

quo. We disagree.

A reasonable jury could have found the following facts.

In August 2001, the Quincy City Council considered issuing a permit

to allow Home Depot, Inc. to construct a new building on the same

6
The government has not argued that the court's instruction
was "patently incorrect," see United State v. Gomes, 969 F.2d 1290,
1294 (1st Cir. 1992) (stating that unobjected-to jury instruction
is law of the case unless instruction is patently incorrect or
internally inconsistent), nor could it so argue in light of the
several circuits that have held that a quid pro quo requirement
applies in all extortion under color of official right
prosecutions. See United States v. Giles, 246 F.3d 966, 971-72
(7th Cir. 2001) (citing cases).

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street as Gostoves' Dunkin' Donuts. At the Council meeting where

this permit was considered, D'Amico told the Quincy traffic

engineer, Jack Gillon, that he would oppose the permit unless Home

Depot was required to pay for widening the road in front of the

Dunkin' Donuts. As a result of D'Amico's demand, Home Depot agreed

to pay for the road-widening project as part of the permit

requirements.

On October 15, 2001, approximately two months after Home

Depot agreed to pay to widen the road, Gostoves and D'Amico met at

10:30 p.m. in the parking lot of Gostoves' Dunkin' Donuts to

execute the payoff.7 Gostoves made clear that he was paying

D'Amico "for the road improvement" and because he needed "a friend

. . . to make sure that this is going to happen and happen the

right way." D'Amico assured Gostoves that the widening project

would proceed but also promised that he "would meet periodically

with the traffic department just to keep it going." Promising to

meet with the traffic department was not an empty gesture because

there was a further approval process for the project, even after

the Home Depot permit issued. In fact, D'Amico, as promised,

contacted the traffic engineer shortly after receiving the payoff

to make sure that the project remained on track.

A reasonable jury thus could have concluded that D'Amico

7
At this point, Gostoves was cooperating with the FBI after he
had been indicted for federal tax evasion. The money that Gostoves
paid to D'Amico was provided by the FBI.

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explicitly promised Gostoves that, in exchange for the $2,500

payment, he would use his influence as a city councillor to

pressure the traffic department to pursue the road-widening

project. This conclusion is sufficient to ground a conviction.

Until the project was completed, Gostoves had an interest in having

an influential public official advocating for the project, and

D'Amico willingly agreed to serve as that advocate.

C. Interstate Commerce Requirement

In addition to the requirements discussed above, to prove

a completed extortion, the government had to satisfy the Hobbs

Act's jurisdictional element of showing that D'Amico's conduct

"obstruct[ed], delay[ed], or affect[ed] commerce." 18 U.S.C. §

1951. To meet this requirement, the government had to prove only

that there was a "realistic probability" that D'Amico's conduct

would affect interstate commerce. United States v. Capozzi, 347

F.3d 327, 335 (1st Cir. 2003).

In an vein similar to his duplicity contention, D'Amico

argues that the jury was presented with a legally invalid theory

for establishing this realistic probability. As mentioned above,

the money that Gostoves paid to D'Amico belonged to the FBI. Supra

at n.7. Relying on United States v. DiCarlantonio, 870 F.2d 1058,

1060 (6th Cir. 1989), D'Amico contends that the jurisdictional

requirement for a completed Hobbs Act violation is not met where

the money used for an extortion belongs to the government. He does

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not dispute, however, that the government established a valid

effect on interstate commerce through evidence that the extortion

depleted assets of Home Depot, a business engaged in interstate

commerce, by requiring it to pay for the road-widening project.

See United States v. Rodriguez-Casiano, 425 F.3d 12, 15 (1st Cir.

2005) (recognizing depletion of assets of business in interstate

commerce as valid way of showing effect on commerce under the Hobbs

Act). Thus, D'Amico does not contend that he is entitled to a

judgment of acquittal. Rather, he seeks a new trial, relying on

the rule that a general verdict cannot stand where the jury was

presented with valid and legally flawed theories of liability and

may have relied on the flawed theory to convict. See Griffin v.

United States, 502 U.S. 46, 49 (1991).8

The primary problem with D'Amico's argument is that it

does not appear that the jury was presented with the theory that

Gostoves' payment of FBI money to D'Amico established the effect on

interstate commerce required for a substantive extortion

conviction. The government did not make this argument, and the

jury instructions, unchallenged on this point, did not suggest this

8
The Griffin rule does not apply where the jury is presented
with two theories and one is factually flawed. In such cases, the
conviction stands. We assume, arguendo, that D'Amico has made a
legal insufficiency argument to which Griffin could apply. See
United States v. Syme, 276 F.3d 131, 145 (3d Cir. 2002) ("A theory
upon which a criminal charge rests is legally invalid under Griffin
if the indictment or the district court's jury instructions are
based on an erroneous interpretation of law or a mistaken
description of the law.").

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theory. Thus, even if we assume that the payment of FBI money was

insufficient to ground the jurisdictional finding, there is little

likelihood that the jury was led astray.

D. Closing Argument

Finally, D'Amico claims that statements made by the

prosecutor during her closing argument were improper and require a

new trial. We review de novo whether the challenged statements

were improper. United States v. Nelson-Rodriguez, 319 F.3d 12, 38

(1st Cir. 2003). The district court's decision whether to award a

new trial on the basis of any identified improper statements is

reviewed for an abuse of discretion. Id.

During the trial, the government had sought to introduce

evidence that in 1996, while a city counselor, D'Amico had accepted

another $2,500 payment from Gostoves. The district court excluded

this evidence. It did, however, allow the FBI agent who arranged

Gostoves' October 2001 payoff to D'Amico to testify that she was

investigating D'Amico because Gostoves told her about an alleged

prior payment to D'Amico. This testimony was admitted only to

explain the reason for the FBI's investigation. The agent did not

testify that Gostoves told her that the prior payment had been in

the amount of $2,500.

Despite the fact that no evidence had been allowed about

the amount of the prior payment, the prosecutor stated that the

agent "told you that when she debriefed Mr. Gostoves . . . he said

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that he made a $2,500 payment to the defendant in the past. And

[the agent] told you that she wanted to corroborate that

information by seeing if the defendant would take another such

$2,500 payment" from Gostoves. D'Amico objected to this statement.

The court immediately sustained the objection, commenting that it

did "not recall [this] evidence," and told the jury "to disregard

any of this." At the end of the government's argument, D'Amico

moved for a mistrial. The court denied the motion, ruling that,

while the prosecutor's comment about the prior payment was

improper, D'Amico had failed to show prejudice, "especially in

light of the [court's] instruction to the jury members that they

disregard the remark."

D'Amico contends that the prosecutor's entire statement

concerning the prior payment was improper because there was no

substantive evidence that Gostoves had ever made such a payment to

D'Amico. The government acknowledges impropriety, but only to the

extent that the prosecutor mentioned the amount of the prior

payment. We agree with the government.

The prosecutor did not argue that there was proof of a

prior payment from Gostoves to D'Amico; she stated only that the

FBI was investigating D'Amico to corroborate Gostoves' claim that

he had made such a payment. This was consistent with the evidence

admitted without objection at trial and thus was a proper ground

for argument. See United States v. McKeeve, 131 F.3d 1, 14 (1st

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Cir. 1997) (stating that at "least in the absence of highly

exceptional circumstances, a comment by counsel in the course of

jury summation that merely recounts properly admitted testimony,

accurately and without embellishment or distortion, cannot

constitute reversible error"). Accordingly, the prosecutor erred

only to the extent that she stated the amount of the alleged prior

payment.9

The question before us is whether this misstatement

warrants a new trial. To determine whether a prosecutor's improper

statement "so poisoned the well "that a new trial is necessary, we

consider (1) whether the prosecutor's misconduct was deliberate

and/or isolated; (2) whether the [district] court gave a strong and

explicit cautionary instruction; and (3) whether it is likely that

any prejudice surviving the [court's] instruction could have

affected the outcome of the case." United States v. Cormier, 468

F.3d 63, 73 (1st Cir. 2006). As stated above, a district court's

negative answer to this question is entitled to deference.

The misstatement does not appear to have been a

deliberate distortion of the evidence. As mentioned above, the FBI

agent testified that Gostoves had reported making a prior payment

9
D'Amico also challenges a statement by the prosecutor quoting
Gostoves as saying to D'Amico, in reference to the October 2001
payoff, that they would do something "like in the past." Gostoves'
statement to this effect was admitted without restriction, and thus
it was proper for the prosecutor to rely on it in her argument.
McKeeve, 131 F.3d at 14.

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to D'Amico. This evidence was not admitted to prove that such a

payment had actually taken place, and the prosecutor was careful

not to characterize it as such. The prosecutor did go beyond the

evidence by stating the amount of the supposed prior payment. But

there is no reason to suppose that the error was intentional,

especially given that the prosecutor did not have a transcript of

the agent's testimony at her disposal. See United States v.

Carrasquillo-Plaza, 873 F.2d 10, 13 (1st Cir. 1989 (stating that

"allowance must be made for an attorney, even Government counsel,

who out of haste or confusion misunderstands the substance of the

previous testimony"). Moreover, the misstatement was a one-time

event. See United States v. Palmer, 203 F.3d 55, 58 (1st Cir.

2000).

The misstatement was followed by a timely and direct

curative instruction. The district judge stated that she did not

remember any evidence about the prior payment and told the jury to

disregard the prosecutor's entire discussion of the topic. This

instruction was even broader than necessary because, as discussed

above, the prosecutor's statement was only improper to the extent

that she mentioned the $2,500 figure. Moreover, in its final

instructions, the court stated that counsels' arguments are not

evidence, and that it is the jury's recollection of the evidence

that controls. See id.

Finally, the misstatement was not so central to the case

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that it likely affected the outcome. D'Amico's primary defense

was that the October 2001 payment was not made in return for a

promise to perform an official act. The jury, however, was not

told that D'Amico had promised Gostoves anything in exchange for

the prior payment. And the mere fact of the prior payment was not

particularly probative concerning whether D'Amico had made a

specific promise to perform an official act in exchange for the

October 2001 payment. Moreover, the jury had before it a tape

recording of the October 2001 payment and thus had direct evidence

concerning the promises that D'Amico made to Gostoves in exchange

for the payment. This direct evidence was almost certainly at the

forefront of the jury's deliberation in light of D'Amico's defense

that, while he accepted the 2001 payment from Gostoves, he did not

promise him anything as part of the transaction. In these

circumstances, where the focus was not on the fact of payment but

rather on the existence vel non of a quid pro quo, it is highly

unlikely that the prosecutor's misstatement concerning evidence

about the fact of a prior payment affected the trial's outcome.

Before leaving this issue, we emphasize that we are not

saying that mentioning the amount was a minor mistake by the

prosecutor; it created a real risk of infecting to a material

degree what was otherwise proper argument. We have found no abuse

of discretion in the ruling on the motion for new trial only

because the statement was not intentionally erroneous, the argument

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itself was proper, there was a curative instruction, and the focus

of the trial was not on whether there was a $2,500 payment in

October 2001 but on whether there was a quid pro quo for the

payment.

II. The Government's Cross-Appeal

The government appeals D'Amico's sentence. The district

court calculated the GSR at 31-41 months of imprisonment but

sentenced D'Amico to four months' imprisonment. The court provided

the following explanation for the sentence:

The factors that I have considered include:
[T]hat the defendant clearly is an
energetic, highly motivated person. He's been
a hustler. He's worked hard all of his life.
He has often had more than one job . . . . He
has accomplished much, both by achieving
appointed and elected office. He clearly
cares about public service, with the emphasis
on the service, and with a large altruistic
component. He was in many ways a very good
legislator, who served his constituents with
dedication, with energy, and with imagination.

I am particularly impressed and credit the
letters about his conscientiousness and
effective service and on the fact that he
returned phone calls, an unusual
characteristic among people who don't have to
do that or think they don't have to do it.

In apparent reference to the collateral consequences of D'Amico's

conviction, viz., its probable effect on his ability to seek

public office, practice law, or engage in other professional work

in the future, the court further noted that it "should keep in

mind the very high price that the defendant has paid for just the

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conviction even before any sentence is pronounced."

The government argues that these reasons do not justify

a substantial variance from the GSR. In particular, the

government contends that the district court overvalued D'Amico's

individual characteristics in determining his sentence.

In fashioning D'Amico's sentence, the district court

followed the procedural approach outlined in United States v.

Jimenez-Beltre, 440 F.3d 514, 518-19 (1st Cir. 2006) (en banc),

for imposing sentences after United States v. Booker, 543 U.S.

220, 259 (2005) (recasting the sentencing guidelines as advisory).

It first calculated the GSR and then permitted the parties to

argue for a higher or lower sentence based on the statutory

factors set forth in 18 U.S.C. § 3553(a). See Jimenez-Beltre, 440

F.3d at 518. These factors include, inter alia, the nature and

circumstances of the offense; the history and characteristics of

the defendant; the need for the sentence to promote respect for

the law, to provide just punishment, and to afford adequate

deterrence; and the applicable GSR. 18 U.S.C. § 3553(a).

In reviewing a particular sentence for reasonableness,

we stress the need for "a plausible explanation and a defensible

overall result." Jimenez-Beltre, 440 F.3d at 519. The GSR is an

"important consideration" in our review because it "represent[s]

the only integration of the multiple sentencing factors set forth

in § 3553(a), often reflect[s] past practice, and bear[s] the

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 imprimatur of the Sentencing Commission, the expert agency charged

with developing them." United States v. Thurston, 456 F.3d 211,

215 (1st Cir. 2006). "Thus, we consider the reasonableness of a

below-guidelines sentence on a sliding scale: the farther the

judge's sentence departs from the guidelines sentence, the more

compelling the justification based on the factors in § 3553(a)

that the judge must offer."10 Id. (quoting United States v. Smith,

445 F.3d 1, 4 (1st Cir. 2006)).

Here, the district court concluded that an 88 percent

variance from the bottom of the GSR was warranted primarily

because of D'Amico's good works as a city councillor. Prior to

Booker, a district court could only depart from the GSR if the

defendant's good works were exceptional. See Thurston, 456 F.3d

at 219. Post-Booker, however, good works that do not qualify as

exceptional may still justify the imposition of a somewhat shorter

sentence. Id.

While we accept the district court's characterization

of D'Amico as a responsive city councillor who made worthy

contributions to Quincy during his time in office, we are left

with the firm conviction that the court overvalued these

contributions in imposing D'Amico's sentence. It was D'Amico's

job to respond to the needs of his constituents and to make

10
We see nothing in the Supreme Court's recent decision in Rita v.
United States, 127 S. Ct. 2456 (2007), that is inconsistent with our
approach to post-Booker sentencing.

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positive contributions to his community. He was compensated for

these efforts, which were essential to D'Amico's reelection and

prospects for other political office.

The Seventh Circuit has held that a district court

placed too much emphasis on the charitable efforts of a convicted

bank president in substantially reducing his sentence for fraud.

United States v. Repking, 467 F.3d 1091, 1095-96 (7th Cir. 2006).

The court reasoned that affording the bank president so much

credit for his charitable endeavors was inappropriate because such

endeavors were "entirely consistent with a bank's business

development plan." Id. at 1096.

We agree with the Seventh Circuit that it is usually not

appropriate to excuse a defendant almost entirely from

incarceration because he performed acts that, though in society's

interest, also were the defendant's responsibility to perform and

stood to benefit the defendant personally and professionally.

Thus, D'Amico's performance of good works as a city councillor

does not support such a substantial variance from the GSR.

This leaves the district court's view that a large

variance from the GSR was appropriate because D'Amico had already

suffered substantially from the fact of conviction. In

particular, D'Amico argued that the conviction itself would

effectively ruin his political career and would impede his ability

to pursue a career as a lawyer.

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 White collar defendants, such as D'Amico, often have

achieved more tangible successes than other defendants, thereby

making it easier for white collar defendants to articulate

specific losses stemming from the fact of conviction, such as the

loss of a high paying job or a professional license. But other

defendants also suffer losses, financial and otherwise, from a

conviction. Permitting a substantial variance based on a

defendant's ability to articulate specific collateral losses from

a conviction will inevitably lead to sentencing courts treating

white collar defendants more leniently (in the relative sense)

simply because of their societal status -- a result that would be

contrary to one of Congress' primary objectives in enacting the

current federal sentencing scheme. See U.S.S.G. ch. 1, pt. A, §

3 (stating that one goal of the Sentencing Commission was to

eliminate the pre-guidelines inequity of "punishing economic crime

less severely that other apparent equivalent behavior"); Pub. L.

No. 107-204, § 905(b)(1)(2) (2002) (instructing the Sentencing

Commission to review the guidelines to consider whether they "are

sufficient to deter . . . [white collar] offense . . .").

We find support for this conclusion in a recent Second

Circuit opinion, in which the court rejected a substantial

reduction from the GSR on similar grounds. See United States v.

Rattoballi, 452 F.3d 127, 135 (2d Cir. 2006). In Rattoballi, the

defendant, a successful business owner, was convicted of mail

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fraud and was subject to a GSR of 27-33 months. Id. at 128. The

district court sentenced the defendant to one year of home

confinement and five years of supervised release, concluding that

a large variance was appropriate, in part, because the conviction

"had already taken a severe toll on the defendant's business."

Id. at 128, 131. The Second Circuit rejected this rationale,

stating that it was "disinclined to accord the prospect of a

business failure decisive weight" when it is the direct result of

"the defendant's own unlawful conduct." Id. at 135. D'Amico's

professional and political losses also result from his "own

unlawful conduct," and we share the disinclination to accord

decisive weight to these asserted losses. While we do not hold

that a court could not consider D'Amico's losses in setting an

appropriate sentence, an 88 percent variance from the GSR is not

reasonable under the circumstances.

In sum, the reasons provided do not support the variance

from the GSR awarded in this case. Accordingly, D'Amico must be

resentenced.

III. Conclusion

For the reasons stated, the judgment of conviction is

affirmed but the sentence is vacated. The case is remanded for

further proceedings consistent with this opinion.

So ordered.

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