United States v. Barone

No. 94-1593

UNITED STATES OF AMERICA,

Appellee,

v.

PASQUALE G. BARONE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Boudin, Circuit Judge,

Campbell and Bownes, Senior Circuit Judges.

Bernard Grossberg for appellant.
Cynthia A. Young, Attorney, United States Department of Justice,
with
whom
Donald
K.
Stern, United States Attorney, and Jeffrey Auerhahn,
Assistant United States Attorney, were on brief for appellee.

June 6, 1997

BOWNES, Senior Circuit Judge. Defendant-appellant

Pasquale
G.
"Patsy"
Barone and seven co-defendants were charged

in
a
sixty-five-count superseding indictment with a variety of

RICO1 and other offenses. The indictment charged Barone with

RICO conspiracy in violation of 18 U.S.C. S 1962(d) (Count

One); the underlying substantive RICO offense in violation of

18 U.S.C. S 1962(c) (Count Two); conspiracy to commit the

murder of Vincent James "Jimmy" Limoli, Jr. in aid of

racketeering
(Count Three), and the murder of Limoli in aid of

racketeering (Count Four), both in violation of 18 U.S.C.

S 1952(B), now codified as amended at 18 U.S.C. S 1959.

Because of the pendency of the government's appeal

from the district court's ruling in favor of Barone on his

motion to suppress certain post-arrest statements, see United

States v. Barone, No. 89-289-WF, 1991 WL 353883 (D. Mass.

1. RICO refers to the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. SS 1961-1968. The provisions
pertinent to this appeal, 18 U.S.C. S 1962 subsections (c)
and (d), read as follows:

(c) It shall be unlawful for any
person employed by or associated with any
enterprise engaged in, or the activities
of which affect, interstate or foreign
commerce, to conduct or participate,
directly or indirectly, in the conduct of
such enterprise's affairs through a
pattern of racketeering activity or
collection of unlawful debt.
(d) It shall be unlawful for any
person to conspire to violate any of the
provisions of subsection (a), (b), or (c)
of this section.

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2

Aug. 21, 1991), aff'd, 968 F.2d 1378 (1st Cir. 1992), the

district
court
ordered
that Barone be tried separately from his

co-defendants (who, with the exception of one who was a

fugitive at the time, subsequently pleaded guilty). On

October 20, 1993, after a nine-week trial, the case was

submitted
to
the
jury.

On October 25, and again on October 27,

1993, the district court gave the jury a "modified

Allen charge" in response to communications from the jury

indicating that it was deadlocked. On October 28, 1993, the

district court, acting pursuant to Federal Rule of Criminal

Procedure 23(b), dismissed one of the jurors for just cause

after
conducting
a
lengthy inquiry into the effect on the juror

and the jury of the juror's unsolicited receipt of extra-

judicial
information
from a Federal Protective Service Officer.

Having determined that the remaining jurors were capable of

continuing to deliberate fairly and impartially, the district

court exercised its discretion under Rule 23(b) to allow the

remaining
eleven
jurors
to deliberate to a verdict, rather than

declare a mistrial.

On
October
29, 1993, the eleven-member jury returned

verdicts of guilty as to Counts One through Three, but failed

to agree as to Count Four, the murder charge. The district

court accepted the jury's verdicts as to Counts One through

Three and declared a mistrial as to Count Four. On

December
20,
1993,
Barone filed a motion for a new trial, which

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the district court denied on January 25, 1994. United States

v. Barone, 846 F. Supp. 1016 (D. Mass. 1994). On April 25,

1994,
the
court sentenced Barone to life imprisonment on Count

Three and to twenty years on each of Counts One and Two, with

each sentence to be served concurrently with the others.

Barone now appeals his conviction. We affirm.

I.

The superseding indictment charged Barone with

agreeing to participate and participating in the following

predicate
acts
of
racketeering, see United States v. Saccoccia,

58 F.3d 754, 764 (1st Cir. 1995), cert. denied, --- U.S. ---,

116 S. Ct. 1322 (1996), as an "associate" of the Patriarca

Family
of
La
Cosa Nostra (also known as the Mafia; hereinafter

"LCN"), alleged to be the RICO enterprise: (i) assault with

intent to murder, murder of Anthony "Dapper" Corlito, and

conspiracy
to do the same; (ii) assault with intent to murder,

murder of Jimmy Limoli on behalf of Vincent M. "Vinnie"

Ferrara,
and
conspiracy to do the same; and (iii) assault with

intent
to
murder Social Services Credit Union ("credit union")

security guard Kenneth McPhee, assault with intent to rob

Kenneth McPhee and credit union employee Lucy LoPriore, and

robbery of Lucy LoPriore of property belonging to the credit

union. The indictment also charged Barone with a number of

overt acts of the racketeering conspiracy.

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We summarize the facts relating to these predicate

acts,
insofar as relevant to the issues raised in this appeal,

taking the evidence as the jury could permissibly have found

it, and viewing the record and drawing all reasonable

inferences
in
the
light
most favorable to the government. See,

e.g.
,
United
States v. Zannino, 895 F.2d 1, 4 (1st Cir. 1990).

The testimony of expert and cooperating witnesses

established the existence, structure, and nature of the

Patriarca Family -- as an organized "enterprise" within the

meaning of 18 U.S.C. S 1961(4), conspiring to and engaging in

loansharking,
bookmaking, drug trafficking, extortion, murder,

obstruction of justice, and other illegal activity -- and

Barone's
activities
and
relationships to others as an associate

of the Patriarca Family. See generally United States v.

Angiulo, 847 F.2d 956, 973-75 (1st Cir. 1988) (allowing FBI

agent to testify as an expert regarding the structure and

operations of the Patriarca Family of LCN, and the nature of

the defendants' relationships to the organization).

In the early 1980s, the Patriarca Family was run by

boss Raymond Patriarca, Sr., underboss Gennaro "Gerry"

Angiulo, consigliere Vittore Nicolo Angiulo, and capo regimes

including Donato F. "Danny" Angiulo, Samuel S. Granito, and

Ilario
M.A.
Zannino. When Raymond Patriarca, Sr. died in July

1984,
Raymond
Patriarca,
Jr. became the boss and William Grasso

became the underboss. In the late 1970s and early 1980s,

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5

Vincent Ferrara was an associate of the Patriarca Family

assigned to the regime of Danny Angiulo. In 1983, Ferrara

became
a
"made member" and soldier in Danny Angiulo's regime.2

Barone and his close friend Limoli were associates of the

Patriarca Family who both wanted to become "made members" of

the organization, and who began their efforts to accomplish

this goal by selling illegal fireworks for Ferrara in the

1970s.

Walter Anthony Jordan (hereinafter "Jordan")

testified for the government at Barone's trial. He and his

brother Chris Jordan were also associates of the Patriarca

Family. Jordan met Barone and Limoli in late 1981 or early

1982. Barone later married Jordan's sister Kim. Limoli was

Barone's
best
man
at
the
wedding and became godfather to Barone

and
Kim's
child. Beginning in the summer of 1984, Jordan sold

illegal
fireworks,
giving the money from the sales to Limoli or

Barone. Jordan testified that Barone told him that all the

2. According to the government's evidence, an LCN family is
headed by a "boss," with an "underboss" as second in command.
The official counselor or advisor to the family is known as
the "consigliere." Below the underboss are "capo regimes,"
or captains of the LCN family. Assigned to each capo regime
are "soldiers," who are "made members" of the family. An
individual who has been nominated for membership in the
family is a "proposed member," and an "associate" is one who,
although not a "made member," works for or performs services
for the family. Members and associates are required to obey
their superiors in the family, to obtain permission from
their superiors before engaging in criminal activity, and to
commit criminal acts, including murder, as directed by their
superiors.

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6

money from these sales went to Ferrara, with Barone receiving

a percentage, along with Ferrara's loyalty. Jordan also

testified that Barone told him that he needed Ferrara's

permission
in order to commit any illegal activities, and that

he was "under [Ferrara's] wing," and would be a "made member"

of the Patriarca Family one day, moving up in the ranks with

Ferrara.

One
of
the
predicate acts of racketeering with which

Barone
was
charged
is
the murder of Anthony Corlito, who, along

with Giacomo A. "Jackie" DiFronzo and others, was a member of

a rival North End gang. Jordan testified that Ferrara and

DiFronzo "didn't get along" because DiFronzo had "ripped off"

the Angiulos' North End card games during the late 1970s.

Elizabeth
DiNunzio,
Limoli's sister, testified that Limoli told

her that Gerry Angiulo hired Ferrara -- who then enlisted the

aid of Limoli -- to kill DiFronzo because DiFronzo "had a bad

drug problem" and "was robbing all the people in the North

End." DiNunzio testified that Limoli told her that, on

December
11,
1977, after fighting with DiFronzo at an Endicott

Street club, Ferrara shot DiFronzo in the head; that Limoli

thereafter
kicked
DiFronzo in the head; and that the two placed

DiFronzo in a chair and set the chair and the club on fire.

Jordan testified that Corlito swore vengeance on

Ferrara for the murder of DiFronzo, and that Corlito was

murdered by Ferrara, Limoli, and Barone on July 21, 1979.

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7

According to Jordan, Barone told him that he, Limoli, and

Ferrara came upon Corlito and his girlfriend on Fleet Street

and
started
shooting
at
Corlito. After Ferrara left the scene,

Limoli
continued to fire at Corlito and Barone urged Limoli to

leave. Eventually, Barone and Limoli ran to Hanover Street,

where they got into a car and drove off. DiNunzio testified

that
Limoli
told
her
that Ferrara paid Limoli and Barone $1,000

each for killing Corlito.

Another racketeering offense with which Barone was

charged
is
the November 5, 1982 robbery of credit union teller

Lucy
LoPriore
of
a
bag
of cash belonging to the credit union as

she and security guard Kenneth McPhee walked from the First

National Bank on Hanover Street to the credit union at the

corner of Parmenter and Salem Streets in the North End.

According
to
witnesses, the robbery occurred between 10:00 and

10:30 a.m. and was perpetrated by two masked men. In the

course of the robbery, McPhee was shot in the calf and in the

neck. The owner of a Salem Street hardware store saw Limoli

run down Salem Street from Parmenter Street.

Jordan testified that Barone told him that he and

Limoli were responsible for the robbery and that Barone had

shot the security guard in the neck. Barone said that the

stolen cash amounted to $30,000, with Ferrara taking $15,000,

and Limoli and Barone splitting the rest between them.

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8

DiNunzio
testified
that,
on the morning of the credit

union robbery, Limoli came to her house carrying a box and

asked her for lemon juice, saying that if you wash your hands

with lemon juice, "they can't tell that you shot a gun."

According to DiNunzio, after the robbery was reported on the

noontime news, Limoli admitted to her that he and Barone had

committed the robbery; that he had shot security guard McPhee

in the foot; and that Barone had shot McPhee in the neck.

DiNunzio testified that Barone and Chris Jordan later joined

Limoli
at
her house, at which time Barone admitted that he had

shot the guard in the neck.

Barone was also charged with the murder of Limoli,

which had its origins in a plan hatched by Limoli and Frank

Salemme,
Jr.
to commit another in a series of "drug rip-offs,"

executed by passing off wood chips or peat moss as marijuana.

Jordan
and
DiNunzio
testified that in the spring of 1985, while

Limoli was in Florida, Salemme, Jr. and others, including

Walter Jordan, went ahead with the planned rip-off scheme,

although Limoli had asked Salemme, Jr. to wait for him to

return to town before "doing the deal." When Limoli learned

that
Salemme, Jr. and his cohorts had completed the rip-off by

delivering peat moss in exchange for a $100,000 down payment,

he
vowed
to
get even with Salemme, Jr. for cheating him out of

$35,000.

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9

Jordan testified that in September of 1985, Barone

told him that Limoli had stolen a bag containing cash and

$100,000
worth
of
cocaine that he believed belonged to Salemme,

Jr., but which actually belonged to Antonio L. "Spucky"

Spagnolo, a Patriarca Family soldier. According to Jordan,

Barone
told
him that Limoli gave $30,000 of the stolen cash to

Barone and that Barone kept the cash in his freezer until the

cash
and
cocaine were eventually returned. DiNunzio testified

that Limoli told her that he took the bag to his girlfriend

Lena Chiuchiolo's house; that he was seen with the bag by

Lena's sister Annette, who was Salemme, Jr.'s girlfriend; and

that
Annette
told
Salemme, Jr. what she had seen. According to

DiNunzio, Limoli told her that the story of his theft of the

bag
eventually reached Spagnolo, the true owner of the bag, as

well as other, high-level Patriarca Family members.

Limoli
told
DiNunzio
that he was questioned about the

incident in separate meetings with Samuel Granito and Frank

Salemme, Sr., and during an alleyway "meeting" with Salemme,

Jr.,
Danny
Angiulo, Ferrara, Spagnolo, and Peter "Doc" Limone.

Limoli told DiNunzio that, in the course of the alleyway

meeting, he repeatedly denied taking the bag, but eventually

admitted
it
when
he
was
told that Annette had seen him with the

bag
and
had
told
Salemme, Jr. about it. According to DiNunzio,

Ferrara told Limoli, "I could whack you right here," but

"[w]e'll forget about it and let's go on from here." Limoli

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10

told
DiNunzio
that
"that's not the way the guys work," and that

he knew that they were going to kill him.

Jordan testified that Barone told him that, because

he
had
stolen
from
a
made member of the LCN, "Jimmy got the X,"

meaning
that
he
(Limoli)
would no longer be permitted to engage

in LCN activities. A week or two later, Barone told Jordan

that Ferrara had ordered Limoli killed because of this

incident.

According
to
Jordan, he was with Barone when Ferrara

called
Barone
at
home
on
the evening of October 28, 1985 to say

that
Limoli
had
to
be
killed. On Barone's instructions, Jordan

called Limoli to set up a deal involving the sale of drugs,

with a meeting to take place at about 8:00 p.m. that night at

D'Amore's Restaurant in the North End. The two then left

Barone's
house, each carrying gloves and Barone carrying a .38

caliber revolver.

Jordan testified that, on Barone's instructions, he

called
Limoli at D'Amore's from the nearby European Restaurant

before the two went to meet him. When they arrived at

D'Amore's, Jordan went inside to get Limoli, and when Limoli

came
out
of
the restaurant and saw Barone, he told Jordan that

he
had
wanted him to come alone. Limoli then talked privately

with Barone, after which he returned to the restaurant while

Barone
and
Jordan
left
to retrieve Barone's car, which they had

parked elsewhere. When Barone and Jordan returned to

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11

D'Amore's,
Limoli left the restaurant and got into the waiting

car, which then drove off, with Jordan driving.

Maureen Karpowicz-DiPietro, Limoli's cousin,

testified that, shortly after 8:00 p.m. on October 28, 1985,

she and a friend went with Limoli to D'Amore's, where Limoli

received a telephone call and then a visit from Jordan.

According
to
Karpowicz-DiPietro, Limoli met Jordan outside the

restaurant and apparently became angry when he saw Barone.

Limoli yelled at Jordan but then talked privately with Barone

before returning to the restaurant. Jordan and Barone then

left, returning to D'Amore's shortly after 10:00 p.m. in

Barone's car. Karpowicz-DiPietro testified that Limoli put a

cloth napkin in a brown paper bag, said "that will do it,"

asked her to meet him later, and then left the restaurant to

join Barone and Jordan. DiNunzio testified that Limoli told

her that he was going to rob Barone and Jordan that night.

Jordan testified that, after he parked the car next

to the cemetery at the intersection of Snowhill and Hull

Streets, the three men got out of the car. According to

Jordan, Barone shot Limoli in the back of the head at about

10:25
p.m.
as
the
three
men walked up Hull Street. When Limoli

fell to the ground, Jordan grabbed the brown paper bag that

Limoli was carrying and then ran back down Hull Street with

Barone.

After they crossed Snowhill Street, Jordan discovered

that the bag contained only cloth napkins. Jordan testified

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12

that, after the discovery, Barone ran back up Hull Street,

followed by Jordan, and that when he reached Limoli, Barone

leaned
over
him, shouted "Why, Jimmy?" and fired the remaining

bullets into Limoli's head. Barone then directed Jordan to

search Limoli's body for money, which Jordan did, finding and

taking
a
wad
of
$100
bills and a .45 caliber gun, both of which

he gave to Barone. At this point Barone said, "Walter, let's

go," and the two began running back down Hull Street,

eventually
arriving
at
Barone's house. While there, Barone put

the murder weapon into a plastic garbage bag, along with his

clothes
and
Jordan's clothes. The next day, Barone and Jordan

walked out onto a pier with the bag and the gun and Barone

threw them both into Boston Harbor.

II.

Barone argues that Limoli's out-of-court statements

were
inadmissible hearsay and that the district court erred by

admitting them over his objection through the testimony of

Maureen Karpowicz-DiPietro and Elizabeth DiNunzio. The

district
court admitted the hearsay testimony largely pursuant

to Federal Rule of Evidence 804(b)(3), which creates an

exception to the hearsay rule for statements against the

declarant's interest, including penal interest.

Barone argues that the statements were inadmissible

under
Rule
804(b)(3)
because they were (i) not against Limoli's

penal
interest; (ii) not sufficiently corroborated by properly

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13

admitted independent evidence; and (iii) inadmissible under

Williamson v. United States, 512 U.S. 594 (1994), which was

decided while Barone's appeal was pending, because the

statements
are not individually self-inculpatory. Barone also

objects to the admission of Limoli's statements on

constitutional grounds, arguing that the introduction of this

evidence
violated his rights under the Confrontation Clause of

the Sixth Amendment.

A.

1.

The out-of-court statements of a non-testifying

declarant ordinarily are excluded as hearsay if offered to

prove the truth of the matter asserted. See, e.g., United

States v. Sepulveda, 15 F.3d 1161, 1180 (1st Cir. 1993). The

rule against hearsay reflects concerns about the

trustworthiness of out-of-court statements, arising from the

fact
that
such
statements are not subject to the tests normally

applied to in-court testimony to ensure its reliability.

Exceptions to the hearsay rule permit courts to admit certain

hearsay statements that bear indicia of reliability and

trustworthiness sufficient to overcome these concerns.

One such exception is Federal Rule of Evidence

804(b)(3), which provides that, if the hearsay declarant is

unavailable
to
testify
as an in-court witness (a point which is

not in dispute here), the hearsay rule does not exclude

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14

A statement which was 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. A
statement tending to expose the declarant
to criminal liability and offered to
exculpate the accused is not admissible
unless
corroborating circumstances clearly
indicate the trustworthiness of the
statement.

Barone
moved
in

limine

to exclude Limoli's statements

from
DiNunzio's testimony, arguing, as he does on appeal, that

the statements do not meet the "against interest" and

"corroborating circumstances" requirements of Rule 804(b)(3),

and that the admission of these statements would violate his

confrontation
rights. Barone raised no objection in limine to

the testimony of Karpowicz-DiPietro.

The district court ruled from the bench that

DiNunzio's proposed testimony regarding what Limoli told her

about his criminal activities, including those activities

undertaken with Barone and others, was admissible under Rule

804(b)(3) as interpreted by this court in United States v.

Seeley
,
892
F.2d 1 (1st Cir. 1989), and that admission of this

testimony would not violate the Confrontation Clause. The

court found that Limoli was unavailable; that his statements

regarding his participation in crimes on behalf of the

Patriarca Family were against his penal interest; and that

sufficient corroboration and indicia of reliability attended

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the making of the statements. The court also ruled that

Federal Rule of Evidence 403 did not operate to exclude the

disputed evidence.

The district court found that the context and

circumstances in which the hearsay statements were made

demonstrated
their trustworthiness and reliability. The court

reasoned that Limoli had made the statements to a person

(DiNunzio) with whom he had a very close relationship, rather

than to the police, and that he therefore had no motive to

curry
favor
with law enforcement officials and no incentive to

diminish his role in the criminal activity described in the

statements
by
shifting
blame to Barone or to others. The court

also
found
that the detailed nature of the statements, the in-

court
testimony
of
Walter Jordan and others, and other evidence

(e.g., evidence lawfully obtained through electronic

surveillance) satisfied the corroborating circumstances

requirement
of Rule 804(b)(3) and supplied the "particularized

guarantees of trustworthiness" required by the Confrontation

Clause. In addition, while noting that, under Seeley,

DiNunzio's credibility was not part of the admissibility

analysis but was a question for the jury, the district judge

nevertheless
found
that
DiNunzio had no reason to cast blame on

Barone or to exculpate herself.

The court recognized that DiNunzio arguably could

have
been
motivated to fabricate testimony by a desire to seek

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revenge for her brother's murder, but found it to be unlikely

that someone who grew up in the North End, as DiNunzio did,

would falsely accuse Ferrara (who was well known and widely

reputed
to
be a dangerous Mafia killer) or his associates, and

that DiNunzio related to law enforcement authorities the

essential elements of the challenged testimony before Barone

and
Ferrara
were apprehended. The court concluded that issues

such
as
DiNunzio's
possible motive to fabricate ultimately went

to her credibility (a jury question), rather than to the

trustworthiness of the hearsay statements (a question of

admissibility
of
evidence to be decided by the court), and that

DiNunzio could be cross-examined on these matters.

The
district
judge
concluded his ruling by cautioning

that,
although
he
would
admit the testimony generally, it would

be
necessary
to "go statement by statement to see if there are

parts of it that are inadmissible."

2.

Before proceeding to our analysis of Barone's

evidentiary challenge, we must iron out a few wrinkles

concerning the extent to which Barone may be deemed to have

preserved the issue for appeal, and the related question of

what standard of review under Federal Rule of Criminal

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17

Procedure 52 -- harmless error or plain error -- should be

applied to this issue on appeal.3

At
trial,
Barone
objected at the outset of Karpowicz-

DiPietro's testimony (without stating the grounds), and this

objection led to a side-bar conference that included a

discussion of the admissibility of Limoli's statements as

declarations against penal interest. After hearing the

government's
outline
of
Karpowicz-DiPietro's proposed testimony

and
briefly
entertaining
argument by both parties, the district

court ruled that Limoli's statements were admissible as

declarations against penal interest, but that his statements

regarding what Ferrara reportedly said to him would not be

allowed. Barone made no further hearsay objection to

Karpowicz-DiP
ietro's testimony, and failed altogether to renew

his objection to the admission of Limoli's statements through

DiNunzio's testimony, although he objected several times on

other grounds.

We find Barone's contemporaneous objection to

Karpowicz-DiPietro's
test
imony to be sufficient to preserve the

3. Federal Rule of Criminal Procedure 52 provides as
follows:

(a) Harmless Error. Any error,
defect, irregularity or variance which
does not affect substantial rights shall
be disregarded.
(b) Plain Error. Plain errors or
defects affecting substantial rights may
be noticed although they were not brought
to the attention of the court.

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18

hearsay
objection as to her testimony, and therefore the issue

is subject to harmless error review under Federal Rule of

Criminal Procedure 52(a). The question whether Barone's

objection
was properly preserved as to DiNunzio's testimony is

a different matter, however, because Barone did not, as our

case law requires, renew his hearsay objection at trial.4

We have repeatedly held that a "motion in limine

without
subsequent,
contemporaneous objection at trial . . . is

ordinarily insufficient to preserve an evidentiary ruling for

appeal," and that, absent a timely objection at trial, our

review
is
solely
for
plain error under Federal Rule of Criminal

Procedure 52(b). United States v. Reed, 977 F.2d 14, 17 (1st

Cir. 1992). See United States v. Lombard, 72 F.3d 170, 189

(1st Cir. 1995). Our case law thus directs that Barone's

objection
to
DiNunzio's
testimony ordinarily would be deemed to

have
been
forfeited
and
therefore reviewable on appeal only for

plain
error.
But the question whether harmless or plain error

applies is more difficult here than in the ordinary case

because Barone's challenge in this court is based, in part,

upon the narrowing interpretation of Rule 804(b)(3) set forth

4. Barone asserts that DiNunzio's testimony as to Limoli's
statements was admitted over his objection, citing his motion
in limine to limit or exclude this testimony. Barone does
not direct our attention to any hearsay objection to
DiNunzio's testimony at trial and our review of the
transcript reveals none.

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19

in
Williamson
v. United States, 512 U.S. 594 (1994), which was

decided while this appeal was pending.

It
seems
clear
that
Barone benefits from the new rule

announced in Williamson because direct review was pending at

the
time
it
was
decided.
See Johnson v. United States, No. 96-

203, 1997 WL 235156, *5 (U.S. May 12, 1997); Griffith v.

Kentucky, 479 U.S. 314, 328 (1987); Hines v. Davidowitz, 312

U.S.
52,
60
(1941); United States v. Melvin, 27 F.3d 703, 706-

07 n.4 (1st Cir. 1994). Less clear is whether Barone's

forfeited hearsay objection -- to the extent that it turns on

the application of the rule announced in Williamson -- is

subject
to
harmless
error or plain error review. After all, it

seems unfair to fault Barone for failing to raise at trial an

objection
based upon a rule that was not announced until after

the
trial
was
concluded.
See United States v. Collins, 60 F.3d

4, 7 (1st Cir. 1995).

The question of what standard applies "where the

error was unclear at the time of trial but becomes clear on

appeal because the applicable law has been clarified" was

specifically reserved by the Supreme Court in its explication

of
the
plain
error
standard in United States v. Olano, 507 U.S.

725, 734 (1993). In the recently decided Johnson v. United

States
,
1997
WL 235156, however, the Supreme Court applied the

Olano plain error test where the petitioner failed timely to

object at trial, based upon a right announced in United

-20-
20

States v. Gaudin, 515 U.S. ---, 115 S. Ct. 2310 (1995), which

was decided while his case was pending on direct appeal.

Olano

holds
that, in order for an appellate court to

correct an error not raised at trial, it must first find that

there is "'error' that is 'plain' and that 'affect[s]

substantial rights.'" 507 U.S. at 732. When these three

elements are satisfied, an appellate court may exercise its

discretion to correct the error under Rule 52(b) only if the

forfeited error "'seriously affect[s] the fairness, integrity

or public reputation of judicial proceedings.'" Id. at 736

(quoting
Unit
ed States v. Atkinson, 297 U.S. 157, 160 (1936)).

In Johnson, the Court concluded that the petitioner

was entitled to the retroactive application of the new rule

announced in Gaudin, and therefore that the "error" prong of

the Olano test was satisfied. Johnson, 1997 WL 235156, at *5

(citing
Griffith

v.
Kentu
cky, 479 U.S. at 328). The Court then

held
that
"in a case such as this -- where the law at the time

of trial was settled and clearly contrary to the law at the

time
of
appeal -- it is enough that an error be 'plain' at the

time of appellate consideration," and that, by this analysis,

the Gaud in error met the "plain" prong of the Olano test.

Johnson
,
1997 WL 235156, at *6. Without deciding the question

whether the error had affected the petitioner's substantial

rights -- the third prong of the Olano test -- the Court

declined to notice the error under Rule 52(b) on the ground

-21-
21

that, even assuming that the "substantial rights" prong was

satisfied, there was no basis for concluding that the error

"seriously affect[ed] the fairness, integrity or public

reputation
of judicial proceedings." Johnson, 1997 WL 235156,

at *7.

Although Johnson does not purport to do so, the

conclusion
appears
to
us
to be inescapable that Johnson answers

the
question
left open in Olano and that, under Johnson, plain

error
review
applies in the circumstances presented here, even

to the extent that the resolution of Barone's challenge to

DiNunzio's testimony turns on the application of the rule of

Williamson. In all events, our review leads us to conclude

that
Barone's
challenge
would not have succeeded even under the

harmless error standard because we find that, to the extent

that
the
district court erred in admitting hearsay evidence --

under Williamson or otherwise -- the error(s) did not affect

the
outcome
of
the
trial, and therefore did not affect Barone's

substantial rights. See Olano, 507 U.S. at 734; United

States

v.
Marder
,
48
F.3d 564, 571 (1st Cir.), cert. denied, --

- U.S. ---, 115 S. Ct. 1441 (1995).

3.

In Williamson v. United States, the Supreme Court

clarified the scope of Rule 804(b)(3) for statements that

inculpate the defendant as well as subject the declarant to

criminal liability. At issue in Williamson was the

-22-
22

admissibility of hearsay statements made by the declarant

Harris,
who
had been arrested after police found large amounts

of cocaine in the car he was driving, and who made statements

to
a
DEA
agent
while
in
custody that indicated that the cocaine

belonged to Williamson. 512 U.S. at 596-97.

The Court first considered the question of what is

meant by "statement" in light of the principle that "Rule

804(b)(3)
is
founded on the commonsense notion that reasonable

people, even reasonable people who are not especially honest,

tend not to make self-inculpatory statements unless they

believe them to be true." 512 U.S. at 599. Reasoning that

this principle points clearly to a narrow definition of

"statement"
as
"a
single
declaration or remark," rather than to

a broad definition as "a report or narrative," id., the Court

concluded as follows:

In our view, the most faithful reading of
Rule 804(b)(3) is that it does not allow
admission of non-self-inculpatory
statements,
even if they are made within a
broader narrative that is generally self-
inculpatory. The district court may not
just
assume
for purposes of Rule 804(b)(3)
that a statement is self-inculpatory
because
it
is part of a fuller confession,
and this is especially true when the
statement implicates someone else.

512 U.S. at 600-01.

The
Court
explained
that
"[t]he fact that a statement

is self-inculpatory does make it more reliable; but the fact

that
a
statement is collateral to a self-inculpatory statement

-23-
23

says nothing at all about the collateral statement's

reliability." 512 U.S. at 600. Thus, the Rule 804(b)(3)

inquiry "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 all the surrounding

circumstances." 512 U.S. at 603-04 (quoting Fed. R. Evid.

804(b)(3)) (footnote omitted).

At oral argument, counsel for Barone characterized

Williamson as standing for the proposition that statements

against
interest
that
implicate anyone other than the declarant

are not admissible under Rule 804(b)(3), arguing that "a

statement
that shifts the blame to another person has no basis

for
reliability and should not be admissible under the hearsay

exception." While it is probably true in the ordinary case

that a statement that shifts blame to another should be

regarded as unreliable, we do not accept Barone's contention

that
Williams
on creates a per se bar to any and all statements

against interest that also implicate another; nor do we find

that any of the hearsay challenged here shifts blame from the

declarant Limoli to anyone else.

Far from adopting a per se rule against statements

inculpating another, the Court stated that a totality of the

circumstances test should be applied to the particular

-24-
24

statement at issue in order to determine whether it comports

with
the
rationale
upon
which Rule 804(b)(3) is premised -- the

assumption that declarations against interest are reliable

because people do not make such statements unless believing

them to be true. 512 U.S. at 603-04. A statement against

penal
interest
is
not
rendered inadmissible "merely because the

declarant names another person or implicates a possible

codefendant." Williamson, 512 U.S. at 606 (Scalia, J.,

concurring); see id. at 603. Indeed, the Court used as an

example
of
an admissible statement against penal interest "Sam

and I went to Joe's house," 512 U.S. at 603, a statement that

clearly implicates a person other than the declarant.5

In addressing the issue under the Confrontation

Clause, the Second Circuit has held that a statement

inculpating both the declarant and the defendant may be

sufficiently
reliable as to be admissible in the circumstances

that
obtain
here
--
i.e., where the statement is made in a non-

custodial
setting to an ally, rather than to a law enforcement

official, and where the circumstances surrounding the portion

of the statement that inculpates the defendant provide no

reason to suspect that this portion of the statement is any

less trustworthy than the portion that inculpates the

5. The Court reasoned that this statement "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." 512 U.S. at 603.

-25-
25

declarant. See United States v. Sasso, 59 F.3d 341, 349 (2d

Cir. 1995); United States v. Matthews, 20 F.3d 538, 546 (2d

Cir. 1994). We find this reasoning to be persuasive and

equally applicable to a Rule 804(b)(3) analysis of the

reliability of the statements challenged here.

Finally, applying Williamson's instruction that

courts must determine the admissibility of statements by

evaluating them in context and in view of all the

circumstances,
512
U.S.
at 603-04, we find that Barone's blame-

shifting concerns are not implicated here because none of the

challenged testimony shifts blame or exculpates either the

declarant Limoli or the defendant Barone. And, to the extent

that
any
of
the
challenged statements may be so read, the force

of
the
argument
is
blunted by the fact that the statements were

not made to law enforcement officials in a custodial setting,

as
in
Williamson

(and
as
in nearly all of the cases relied upon

by
Barone),
but to close relatives of the declarant. On these

facts,
it
cannot
seriously be argued that any of the challenged

statements
implicate
the
primary concern raised by Barone, that

they
were
intended
to
shift the blame for criminal conduct from

the declarant Limoli to another or to curry favor with law

enforcement officials.

4.

We now consider the testimony to which Barone

objects, bearing in mind the following additional standards.

-26-
26

First, the district court's construction of evidentiary rules

is a question of law which we review de novo. See United

States v. Omar, 104 F.3d 519, 522 (1st Cir. 1997); see also

United States v. Costa, 31 F.3d 1073, 1077 (11th Cir. 1994)

(the
question whether a statement is against penal interest is

a question of law, reviewable de novo). Second, the

application of an evidentiary rule to particular facts "is

normally tested by an 'abuse of discretion' standard, which

favors the prevailing party." Omar, 104 F.3d at 522. See

United
States v. Houlihan, 92 F.3d 1271, 1297 (1st Cir. 1996),

cert.

denied
,
---
U.S.
---, 117 S. Ct. 963 (1997). Finally, we

may affirm the district court's evidentiary rulings on any

ground apparent from the record on appeal. See United States

v.
Alzanki
,
54
F.3d
994,
1008 (1st Cir. 1995), cert. denied, --

- U.S. ---, 116 S. Ct. 909 (1996).

Barone contends that the district court abused its

discretion in admitting Limoli's statements to DiNunzio and

Karpowicz-DiPietro regarding his criminal associations and

activities during the 1970s and 1980s because the testimony

does not meet the requirements for admission under Rule

804(b)(3). Barone does not object to particular statements,

but complains generally that the statements were not against

Limoli's
penal interest, and that the "rambling narratives" of

DiNunzio and Karpowicz-DiPietro contained statements that are

-27-
27

inadmissible
under
Willia
mson because they are not individually

self-inculpatory.

At trial, the district court did not admit the

hearsay
testimony
of
these witnesses statement by statement, as

Williamson would seem to direct; nor did Barone object

statement by statement.6 Nevertheless, our review of the

record leads us to agree with the government that the vast

majority of the challenged testimony was admissible under the

declarations
against
interest exception; that other portions of

the testimony were admissible under other hearsay exceptions,

or
as
the
personal
knowledge of the in-court witness; and that,

to
the
extent
that
the
district court erred in admitting any of

the challenged testimony, the error(s) did not affect the

6. In his ruling on Barone's motion in limine, the district
judge stated that he would deal with the admissibility of the
disputed testimony "statement by statement to see if there
are parts of it that are inadmissible," an approach that is
fully consistent with Williamson. During the colloquy with
counsel that followed his ruling, the judge also invited
Barone's counsel to object to specific portions of DiNunzio's
proposed testimony, which Barone's counsel declined to do,
given the court's ruling on the motion. During this
colloquy, the judge also stated, however, that "the mere fact
that some of this comes in doesn't mean everything comes in.
But if they're the same conversation and . . . they tend to
corroborate even though they're not in isolation against his
penal interests, I'll let them in," an approach that is
consistent with this court's precedents at the time of the
ruling, see United States v. Barrett, 539 F.2d 244, 252-53
(1st Cir. 1976), but facially inconsistent with Williamson.

-28-
28

outcome
of
the
trial
and
so did not affect Barone's substantial

rights.7

As to Barone's contention that the district court

violated Williamson and abused its discretion in admitting

Karpowicz-DiP
ietro's testimony recounting what Limoli told her

about the events that ultimately led to his murder, we agree

with the government that any portions of the testimony that

were not admissible as declarations against Limoli's penal

interest were otherwise admissible because they fall within

another
hearsay exception (e.g., Rule 803(3)), or because they

are
not
hearsay
at
all,
but rather reflect Karpowicz-DiPietro's

personal knowledge.

As to DiNunzio's testimony regarding the murder of

Jackie
DiFronzo,
Barone
asserts that Limoli's confession to the

murder is the only statement against his penal interest. The

government responds that Limoli's statements regarding why

DiFronzo was killed, on whose orders, and his statement that

Ferrara had enlisted Limoli's help are also declarations

against
Limoli's penal interest vis-a-vis the Patriarca Family

conspiracy to engage in a pattern of racketeering. The

7. The government does not argue that Barone's objection to
DiNunzio's testimony was forfeited for failure to renew at
trial the objection he made in limine, but assumes that our
review is under the harmless error standard. The government
asserts throughout that any error in admitting the hearsay
testimony was harmless beyond a reasonable doubt, employing
the formulation of the standard applied to issues of
constitutional dimension.

-29-
29

government argues that the statements demonstrate Limoli's

relationships to Ferrara, Angiulo, and the Patriarca Family

hierarchy, as well as Limoli's participation and position in

the RICO enterprise; and that Limoli's statements link him to

Ferrara
and
Angiulo,
thereby inculpating him in a conspiracy to

kill DiFronzo as part of a pattern of racketeering in

association with the Patriarca Family.

We conclude that Limoli's statements regarding

DiFronzo's
murder were admissible under Rule 804(b)(3). These

statements
are against Limoli's penal interest insofar as they

inculpate
him in criminal acts and conspiracies with others to

commit criminal acts. See United States v. York, 933 F.2d

1343, 1360 (7th Cir. 1991); United States v. Layton, 720 F.2d

548, 560 (9th Cir. 1983). Moreover, to the extent that the

statements implicate Limoli in the Patriarca Family and its

activities, they demonstrate "an insider's knowledge" of a

criminal enterprise and its criminal activities, which is

sufficiently
against
Limoli's penal interest to come within the

exception. See United States v. Barrett, 539 F.2d 244, 252

(1st Cir. 1976); Williamson, 512 U.S. at 606-07 (Scalia, J.,

concurring). Finally, all of the statements that inculpate

Ferrara also directly inculpate Limoli -- e.g., "And he

proceeded to go and tell me that it was Vinnie Ferrara and

himself had shot him and they said they set the club on fire,

the club on Endicott Street." Accordingly, we conclude that

-30-
30

the district court's admission of these statements did not

violate the rule of Williamson. See Williamson, 512 U.S. at

603-04.

As to DiNunzio's testimony regarding the murder of

Corlito, Barone argues that the only statements against

Limoli's
penal interest are that he killed Corlito and that he

was paid to do so. The government counters that there was

nothing in Limoli's confession implicating Barone that might

have decreased Limoli's own criminal liability, thereby

detracting
from
the
self-inculpatory nature of his admission to

DiNunzio that he murdered Corlito. In addition, Limoli's

statement
that
Barone
also received $1,000 from Ferrara for his

participation in Corlito's murder demonstrates Limoli's

knowledge
of
and
participation in the Patriarca Family, and the

RICO conspiracy generally, and in the conspiracy to murder

Corlito. The government also contends that, even if this

statement
is
judged to be insufficiently self-inculpatory, the

admission of the statement was harmless beyond a reasonable

doubt. For the reasons stated in our consideration of the

testimony concerning the DiFronzo murder, supra, we conclude

that
the
testimony regarding the Corlito murder was admissible

under Rule 804(b)(3), and that any Williamson error in

admitting
Limoli's
statement regarding the payment of $1,000 to

Barone did not affect Barone's substantial rights. As is the

case with his statements regarding the DiFronzo murder,

-31-
31

Limoli's statements inculpating Ferrara and Barone in the

murder of Corlito also directly inculpate himself.

Barone's
objections
to
DiNunzio's testimony regarding

the credit union robbery are that only Limoli's statements

admitting
to
the
robbery
and to shooting McPhee in the foot are

against his penal interest, and that his statement to the

effect that Barone shot McPhee in the neck was inadmissible.

The
government replies that DiNunzio's testimony regarding the

robbery was otherwise admissible as DiNunzio's personal

knowledge.

As
to
Limoli's statement that Barone shot McPhee in

the neck, the government argues that, although the statement

may appear to shift the blame from Limoli to Barone for the

more serious offense of attempted murder, the statement is no

less
an
admissible declaration against interest; it inculpates

both Limoli and Barone because the shooting was within the

scope
of
the
robbery conspiracy, and the statement was made to

an ally in a non-custodial setting. Finally, the government

argues
that,
even
if
the
admission of this statement was error,

it
was
harmless
beyond
a
reasonable doubt in view of DiNunzio's

testimony that when Barone and Chris Jordan came to her house

after the robbery, Barone admitted that he had shot McPhee in

the
neck,
and
in
light
of Walter Jordan's testimony that Barone

made the same statement to him.

We
conclude
that
the
bulk of DiNunzio's testimony was

independently
admissible as DiNunzio's personal knowledge, and

-32-
32

that the evidence implicating Barone in the robbery and

that Barone shot the guard in the neck was als

r
indicating o
independently admissible through the testimony of Walte

Jordan. We also find that, to the extent that Limoli's

statement regarding Barone may be understood to raise any

blame-shifting concerns, we are satisfied that the

circumstances
in which the statement was made demonstrate that

the
portion
inculpating Barone is no less trustworthy than the

portion inculpating Limoli. See Sasso, 59 F.3d at 349;

Matthews, 20 F.3d at 546.8

Barone challenges the admission of DiNunzio's

testimony regarding events and circumstances related to

Limoli's "problem" and "big mistake" in having stolen cocaine

and
money
from Spagnolo (which he thought belonged to Salemme,

8. For all the reasons stated thus far, we also reject
Barone's more general arguments that Limoli's statements
concerning his relationships with Ferrara, Barone, Jordan,
and others were inadmissible because they shift the majority
of the blame for certain activities from Limoli to others --
e.g., Ferrara ordered Corlito's murder. Limoli's statements
concerning his relationship with Ferrara are against his
penal interest, directly inculpating him in a RICO conspiracy
with Ferrara (and Barone) and in the RICO enterprise, along
with other criminal activities. DiNunzio's hearsay testimony
that Limoli was involved in criminal activities with Barone
and with Chris and Walter Jordan is also against Limoli's
penal interest, particularly in view of Walter Jordan's
testimony that he, Limoli, and Barone together were engaged
in criminal activity in association with the Patriarca
Family. Although, as the government concedes, Limoli's
statements regarding Barone's criminal activities with Jordan
should not have been admitted because they do not inculpate
Limoli, the error did not affect Barone's substantial rights
as Jordan himself testified about his criminal activities
with Barone.

-33-
33

Jr.), and to the drug deal between Limoli and Barone that was

to take place the night Limoli was murdered. Barone contends

that
a
"mistake" cannot be classified as a declaration against

penal interest, and that there was no reasonable likelihood

that Limoli's statements regarding, inter alia, the Prince

Street alley meeting and the drug deal with Barone could have

resulted in criminal liability. The government responds that

Limoli's statements regarding his "big mistake" and related

events
were
admissible
under Rules 803(3) and 804(b)(3) because

they reflect Limoli's then state of mind; demonstrate his

knowledge
of
the workings of the Patriarca Family; incriminate

him
in
the
possession
of
narcotics and in a theft of money; and

inculpate
him
in
the
Patriarca Family and RICO conspiracy. The

government
contends further that Limoli's statements regarding

his recognition of the mistake -- violating the LCN rules by

stealing from a made member -- and how the Patriarca Family

responded to it demonstrate Limoli's knowledge of and

involvement with the Patriarca Family.

We conclude for the reasons already stated that

Limoli's statements regarding his "big mistake" and his

resultant
"problem"
are
sufficiently against his penal interest

as
to
be
admissible. See, e.g., Barrett, 539 F.2d at 252. We

further find that the circumstances surrounding the making of

these
statements demonstrate their self-inculpatory nature and

that a reasonable person in Limoli's position would not have

-34-
34

made such statements unless he believed them to be true.

See Williamson, 512 U.S. at 603 (explaining that "whether a

statement
is
self-inculpatory or not can only be determined by

viewing
it
in
context,"
and that "[e]ven statements that are on

their face neutral may actually be against the declarant's

interest").

In this regard, the government wisely concedes that

DiNunzio's testimony regarding Limoli's description of how

members of the Patriarca Family learned that he had stolen

Spagnolo's
cocaine was inadmissible under Rule 804(b)(3). The

government also correctly asserts that DiNunzio's

identificatio
ns of Annette and Lena Chiuchiolo were admissible

as personal knowledge. We find, however, that the district

court's
error
in
admitting this hearsay evidence did not affect

Barone's substantial rights, particularly given that Jordan's

testimony and the evidence obtained through electronic

surveillance established the same facts, which were not

significant to the case against Barone, as the government

points out.

DiNunzio testified that Limoli told her that Barone

had
"skimmed" cocaine from him. The government maintains that

this
statement inculpates Limoli in the possession of cocaine,

but concedes that DiNunzio's testimony regarding Barone's

actions
was
inadmissible under Rule 804(b)(3). The government

argues, however, that because Barone elicited this testimony

-35-
35

for
the
first time on cross-examination, he cannot be heard to

complain
about its admission, citing United States v. Angiulo,

897 F.2d 1169, 1216 (1st Cir. 1990); United States v. Vachon,

869
F.2d
653,
658-59
(1st Cir. 1989), and that other statements

elicited
for
the first time on cross-examination were harmless

beyond a reasonable doubt (DiNunzio's testimony that Limoli

said that Walter Jordan had robbed him of a gun and a set of

pearls; harmless in view of Jordan's own admissions), or

generally admissible as prior inconsistent statements

(DiNunzio's testimony regarding prior statements she had made

to the police, the FBI, and the grand jury). We agree.

B.

Barone also challenges the admission of Limoli's

statements on the grounds that they do not satisfy Rule

804(b)(3)'s
"corroborating circumstances" requirement and that

the statements lack the "particularized guarantees of

trustworthiness" required by the Confrontation Clause.9

The
Rule
804(b)(3)
and
Confrontation Clause inquiries

are
not
coterminous, and evidence that is admissible under the

former
may
still be inadmissible under the latter. See, e.g.,

White v. Illinois, 502 U.S. 346, 352-53 (1992); Idaho v.

Wright
,
497
U.S.
805,
814 (1990); California v. Green, 399 U.S.

9. The Confrontation Clause of the Sixth Amendment
provides, in pertinent part, that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him."

-36-
36

149, 155 (1970). But the hearsay rules and the Confrontation

Clause share the purpose of permitting the use of probative

evidence that is trustworthy and excluding that which is not.

See Houlihan, 92 F.3d at 1281. Accordingly, we will consider

Barone's
"corroborating
circumstances" and Confrontation Clause

challenges together, deeming that which satisfies the

Confrontation Clause to be sufficient to satisfy Rule

804(b)(3)'s
corroboration
requirement as well. Cf. Wright, 497

U.S. at 821 ("Because evidence possessing 'particularized

guarantees
of trustworthiness' must be at least as reliable as

evidence admitted under a firmly rooted hearsay exception, we

think
that
evidence admitted under the former requirement must

similarly
be
so trustworthy that adversarial testing would add

little to its reliability.") (citations omitted).

1.

Barone argues that the district court abused its

discretion in admitting Limoli's out-of-court statements

because the statements are insufficiently corroborated or are

entirely lacking in corroboration.10 We disagree.

10. By its terms, Rule 804(b)(3) requires corroboration only
for statements "tending to expose the declarant to criminal
liability and offered to exculpate the accused." Fed. R.
Evid. 804(b)(3) (emphasis added). See Fed. R. Evid.
804(b)(3) advisory committee's note (explaining that
declarations against interest "tending to exculpate the
accused are more suspect and so should have their
admissibility conditioned upon some further provision
insuring trustworthiness"). The rule does not explicitly
require corroboration for the type of statements at issue
here, those offered by the government to inculpate the

-37-
37

First, Barone misconstrues Rule 804(b)(3)'s

corroboration t

s

11 The corroboration that is required by

Rule
804(b)(3)
is
not
independent evidence supporting the truth

of
the
matters
asserted
by the hearsay statements, but evidence

that clearly indicates that the statements are worthy of

belief, based upon the circumstances in which the statements

were
made.

S
ee United States v. Innamorati, 996 F.2d 456, 475
requirement to the extent that he argues tha
there is a lack of evidence "corroborating" the event
described by Limoli.

(1st
Cir.
1993) ("'[F]or the declaration to be trustworthy the

declarant must have known it was against his interest at the

time he made the statement.'") (quoting Filesi v. United

accused. See, e.g., United States v. Fields, 871 F.2d 188,
192 (1st Cir. 1989). Nevertheless, a number of courts have
interpreted Rule 804(b)(3) to require corroboration whether
the statement inculpates or exculpates the accused. See
United States v. Mendoza, 85 F.3d 1347, 1351 (8th Cir. 1996);
United States v. Thomas, 62 F.3d 1332, 1337 (11th Cir. 1995),
cert. denied, --- U.S. ---, 116 S. Ct. 1058 (1996); United
States v. Casamento, 887 F.2d 1141, 1170 (2d Cir. 1989);
United States v. Boyce, 849 F.2d 833, 836 (3d Cir. 1988);
United States v. Alvarez, 584 F.2d 694, 701 (5th Cir. 1978).
Although this court has not expressly extended the
corroboration requirement to statements that inculpate the
accused, see Fields, 871 F.2d at 192, we have applied the
rule as if corroboration were required for such statements,
see Seeley, 892 F.2d at 2. The Supreme Court has not decided
the issue, explicitly declining to do so in Williamson, 512
U.S. at 605.

11. Barone asserts, inter alia, that DiNunzio's testimony
regarding what Limoli told her about events relevant to the
prosecution of this case comprises the only evidence against
Barone regarding certain events, and that, while Karpowicz-
DiPietro's testimony appears to corroborate some of
DiNunzio's testimony, this testimony, like DiNunzio's, was
also hearsay, improperly admitted at trial.

-38-
38

States, 352 F.2d 339, 343 (4th Cir. 1965) (alteration in

Innamorati); United States v. Casamento, 887 F.2d 1141, 1170

(2d Cir. 1989) (in determining whether a declaration against

penal
interest is sufficiently trustworthy as to be admissible

under Rule 804(b)(3), "the district court must look to the

circumstances in which the declarant made the statement").

Analysis
of
trustworthiness under the Confrontation Clause also

focuses upon the circumstances surrounding the making of the

statement. See Wright, 497 U.S. at 819 (in determining the

trustworthiness of hearsay evidence under the Confrontation

Clause, the court should consider "only those [circumstances]

that surround the making of the statement and that render the

declarant
particularly
worthy of belief"); Lee v. Illinois, 476

U.S. 530, 544 (1986) (determining trustworthiness from the

circumstances surrounding the making of the statement).

Second, Barone misapprehends the corroboration

requirement
to the extent that he argues that corroboration is

required because DiNunzio is not credible. The corroboration

requirement
is not concerned with the veracity of the in-court

witness but with the trustworthiness of the out-of-court

statement; moreover, the credibility of witnesses is a matter

for the jury. See Seeley, 892 F.2d at 3 (agreeing with the

Second
Circuit in United States v. Katsougrakis, 715 F.2d 769,

777 (2d Cir. 1983), that neither Rule 804(b)(3) nor the

Confrontation Clause "requires the trial court to make a

-39-
39

special
assessment of the credibility of a witness who relates

an
out-of-court
declaration against penal interest; rather, the

credibility of an in-court witness is ordinarily a matter for

the jury").

Third, the corroboration requirement "should be

construed in such a manner as to effectuate its purpose of

circumventing fabrication," Fed. R. Evid. 804(b)(3) advisory

committee's note, and "[t]he fear that inculpatory statements

are unreliable stems largely from the presumption that such

statements are self-serving, offered only to shift the blame

from the declarant to another." York, 933 F.2d at 1363. See

Innamorati, 996 F.2d at 474-75. These concerns do not arise

where, as here, the portions of the statements that are

inculpatory as to the defendant are also directly against the

declarant's penal interest; where the statements were made to

close
relatives
of
the
declarant;12 and where we can discern no

attempt on the part of the declarant to diminish his role in

the
criminal
activity described in the statements. See Sasso,

59 F.3d at 349; Matthews, 20 F.3d at 546.

We
conclude
that the portions of the statements that

are inculpatory as to Barone are in no way self-serving as to

12. While the fact that the challenged statements were made
to allies has no bearing on the question whether the
statement is against the declarant's penal interest, it is
relevant to the determination of whether the circumstances
indicate that the declarant was motivated to shift blame to
the other individual inculpated by the statement.

-40-
40

Limoli, and therefore we see no reason to question the

trustworthiness of any of the challenged statements on blame-

shifting grounds. See York, 933 F.2d at 1362-63 (explaining

that the circumstances surrounding the declarant's statements

inculpating the defendant -- speaking to acquaintances

unconnected to law enforcement authorities -- make them

"eminently
trustworthy,"
and noting that the advisory committee

used that scenario as an example of an inculpatory statement

that "would have no difficulty in qualifying" for admission

under Rule 804(b)(3)).

In the final analysis, the Rule 804(b)(3)

corroboration
inquiry is concerned only with the admissibility

of hearsay evidence based upon its trustworthiness, a

determination
committed
to the sound discretion of the district

court. See United States v. Vretta, 790 F.2d 651, 659 (7th

Cir.
1986)
("A trial judge has considerable discretion, within

the
parameters
of
the
rules of evidence, in determining whether

the hearsay statements contain the necessary circumstantial

guarantees of trustworthiness."). See also Barrett, 539 F.2d

at 253. Matters such as the truth of what is asserted by

hearsay statements, the credibility of witnesses, and the

weight to be accorded evidence are for the finder of fact.

Here, the district court, in ruling on Barone's

motion in limine, determined that the challenged portions of

DiNunzio's testimony were sufficiently corroborated and

-41-
41

trustworthy as to be admissible under Rule 804(b)(3) and the

Confrontation Clause. We agree with the district court that

the detailed nature of Limoli's statements; the fact that

Limoli made the statements to close relatives in a non-

custodial
setting rather than to the police; and the fact that

Limoli
had
no discernible motivation to lie to either DiNunzio

or Karpowicz-DiPietro in making these statements constitute

"corroborating circumstances [that] clearly indicate the

trustworthiness
of
the
statement[s]." Accordingly, we conclude

that
the
district
court
did not abuse its discretion in finding

Limoli's statements to be sufficiently corroborated as to be

reliable and admissible under Rule 804(b)(3).

-42-
42

2.

Barone argues that the admission of Limoli's

statements violated his confrontation rights.13 The Supreme

Court has explained that "[t]he central concern of the

Confrontation Clause is to ensure the reliability of the

evidence against a criminal defendant by subjecting it to

rigorous testing in the context of an adversary proceeding

before the trier of fact." Maryland v. Craig, 497 U.S. 836,

845 (1990). See Zannino, 895 F.2d at 5. When a hearsay

declarant is not present for cross-examination, the

Confrontation
Clause requires a showing that (i) the declarant

is
unavailable,
14

and
(ii) the statements sought to be admitted

bear adequate "indicia of reliability." Ohio v. Roberts, 448

U.S. 56, 66 (1980).

Where the evidence is admitted under a "firmly

rooted"
hearsay exception, reliability may be inferred without

more.

See

id
. at 66; Wright, 497 U.S. at 817 (explaining that

"[a]dmission
under a firmly rooted hearsay exception satisfies

13. In Williamson, the Supreme Court did not reach the
Confrontation Clause issue because it remanded the case,
rather than declare any statements to be admissible under
Rule 804(b)(3). 512 U.S. at 605.

14. Although unavailability is not in dispute here, we note
that, while the unavailability of the declarant is required
under Rule 804 as a matter of evidence law, a demonstration
of unavailability (or production of the declarant at trial)
is not always required by the Confrontation Clause. See
White v. Illinois, 502 U.S. at 353-57; United States v.
Inadi, 475 U.S. 387, 392-400 (1986); Manocchio v. Moran, 919
F.2d 770, 774-76 (1st Cir. 1990).

-43-
43

the constitutional requirement of reliability because of the

weight accorded longstanding judicial and legislative

experience
in
assessing
the trustworthiness of certain types of

out-of-court statements"); id. at 821 ("statements admitted

under a 'firmly rooted' hearsay exception are so trustworthy

that adversarial testing would add little to their

reliability"). Statements that do not fall within a firmly

rooted
exception
are
"presumptively unreliable and inadmissible

for Confrontation Clause purposes," Lee v. Illinois, 476 U.S.

at 543, and therefore "must be excluded, at least absent a

showing of particularized guarantees of trustworthiness,"

Roberts, 448 U.S. at 66 (footnote omitted).

Barone maintains that the hearsay exception for

declarations against interest is not firmly rooted and,

therefore, such declarations are presumptively untrustworthy

and inadmissible in the absence of proof by the government of

the reliability of the statements. In making this argument,

Barone simply ignores the fact that this court has held the

declarations against interest exception to be firmly rooted.

See

Saccoccia
,
58
F.3d
at 779; Innamorati, 996 F.2d at 474 n.4.

We
recognize
that
some
courts have questioned whether

the declarations against interest exception is firmly rooted,

and whether it should be treated as such where the statement

implicates another person in addition to the declarant. See

United States v. Dean, 59 F.3d 1479, 1493 & n.24 (5th Cir.

-44-
44

1995), c ert. denied, --- U.S. ---, 116 S. Ct. 794 (1996);

Matthews, 20 F.3d at 545 (collecting cases); United States v.

Flores
,
985
F.2d
770
(5th Cir. 1993).15 We find these cases to

be inapposite to our analysis of the instant case because, in

contrast to the statements at issue here, the hearsay

statements in these cases were made under circumstances in

which the declarant had a "strong motivation to implicate the

defendant and to exonerate himself," thereby raising the

concern that the statements were made in order to shift blame

to
another
or to curry favor with law enforcement authorities.

See, e.g., Lee v. Illinois, 476 U.S. at 541.

We think that where, as here, it is clear that the

statements inculpating both the declarant and the defendant

were not made in order to limit the declarant's exposure to

criminal
liability,
the
declarations against interest exception

is properly treated as firmly rooted for Confrontation Clause

purposes. See York, 933 F.2d at 1362-64. Nevertheless,

because
we
agree
with
the district court that the statements at

issue
in
this
case
bear
sufficient indicia of reliability as to

be
admissible under the Confrontation Clause, we need not rely

15. Although the Williamson Court did not decide whether the
declarations against interest exception is firmly rooted, the
Court did point out that "the very fact that a statement is
genuinely self-inculpatory -- which our reading of Rule
804(b)(3) requires -- is itself one of the 'particularized
guarantees of trustworthiness' that makes a statement
admissible under the Confrontation Clause." 512 U.S. at 605
(citing Lee v. Illinois, 476 U.S. at 543-45).

-45-
45

upon the firmly rooted status of the exception in order to

sustain the district court's ruling.

"The
critical
inquiry
for determining 'particularized

guarantees of trustworthiness' is whether 'the test of cross-

examination would be of marginal utility.'" United States v.

Trenkler, 61 F.3d 45, 64 (1st Cir. 1995) (quoting Wright, 497

U.S. at 820) (footnote omitted). We are satisfied that the

circumstances
surrounding the making of Limoli's statements to

DiNunzio
and
Karpowicz-DiPietro demonstrate that the statements

are "so trustworthy that adversarial testing would add little

to their reliability." See Wright, 497 U.S. at 821.

In arguing that the testimony of DiNunzio and

Karpowicz-DiPietro lacked the corroboration and indicia of

reliability required by Rule 804(b)(3) and the Confrontation

Clause,
Barone relies heavily upon United States v. Mokol, 939

F.2d 436, 439 (7th Cir. 1991). Citing Mokol, Barone urges us

to consider the following factors: "the character of the

witness for truthfulness and honesty and the availability of

evidence
on
the issues and the witness' relationship with both

the defendant and government and his motivation to testify."

Appellant's Br. at 28-29. He invites us to conclude from our

consideration of these factors that DiNunzio16 was not a

16. Barone does not explicitly attack the credibility of
Karpowicz-DiPietro, but does argue that her testimony was
admitted in violation of his confrontation rights.

-46-
46

credible witness and, therefore, that her testimony as to

Limoli's statements lacks adequate indicia of reliability.

Barone's reliance upon Mokol is grossly misplaced

for a number of reasons. First, Mokol did not address the

admissibility of hearsay statements made by an unavailable

declarant to an ally under Rule 804(b)(3), but the distinct

question of the admissibility of prior testimony under the

residual
hearsay exception of Rule 804(b)(5). In this regard,

it is important to recognize that the Supreme Court has held

that the residual hearsay exception is not firmly rooted for

purposes of Confrontation Clause analysis. See Wright, 497

U.S.
at
817-18 (explaining that "[h]earsay statements admitted

under the residual exception, almost by definition, . . . do

not share the same tradition of reliability that supports the

admissibility of statements under a firmly rooted hearsay

exception," and that "were we to agree that the admission of

hearsay statements under the residual exception automatically

passed
Confrontation Clause scrutiny, virtually every codified

hearsay exception would assume constitutional stature, a step

this Court has repeatedly declined to take"). See also

Government
of
Virgin
Islands v. Joseph, 964 F.2d 1380, 1387 (3d

Cir. 1992) (equating the state-law residual hearsay exception

at issue in Wright with Rule 804(b)(5), and applying to Rule

804(b)(5)
Wri
ght's holding that the residual hearsay exception

is not firmly rooted and therefore requires a showing of

-47-
47

particularized guarantees of trustworthiness); Trenkler, 61

F.3d
at
64
n.32
(explaining that the residual hearsay exception

contained in Federal Rule of Evidence 803(24) is not a firmly

rooted exception, citing Wright and Joseph). But see United

States v. Panzardi-Lespier, 918 F.2d 313, 319 (1st Cir. 1990)

(rejecting a Confrontation Clause challenge to testimony

admitted
under
the
residual hearsay exception of Rule 804(b)(5)

on
the
ground that Rule 804(b)(5) is a firmly rooted exception

to the hearsay rule).

Second, Barone errs in equating the hearsay

declarant, the reliability of whose testimony in prior

proceedings
was
at
issue
in Mokol, with DiNunzio and Karpowicz-

DiPietro, whose live in-court testimony contains the hearsay

statements.

Moreover, and as we have stated, the focus of the

trustworthine
ss inquiry is not on the in-court witness, but on

the circumstances in which the declarant's out-of-court

statements were made. See Wright, 497 U.S. at 819-20;

Innamorati
,
996
F.2d
at
475; Casamento, 887 F.2d at 1170. Also

as
noted
previously, the credibility of the in-court witnesses

DiNunzio and Karpowicz-DiPietro is not an element of the

admissibility inquiry (as a matter of Rule 804(b)(3) or

Confrontation
Clause analysis) but is a question for the jury.

See Seeley, 892 F.2d at 3.

III.

-48-
48

On October 20, 1993, after a nine-week trial, the

jury began its deliberations. On October 25, 1993, the court

gave a "modified Allen charge" in response to a note from the

jury stating that it had reached an impasse and seeking the

court's guidance. See Allen v. United States, 164 U.S. 492

(1896) (approving a supplemental jury instruction designed to

encourage a deadlocked jury to reach a verdict).

Prior
to
administering
the charge, the judge informed

counsel
of
the
language
he intended to use and deleted language

in
response
to
Barone's
objection. After the charge was given,

Barone objected to the court's use of certain language which

the
judge
had not mentioned in the pre-charge conference. The

judge responded by preserving the objection, stating that he

would
give
it
further
thought should he have occasion to repeat

the charge. At 3:15 p.m., the jury informed the judge that

there had been no change in their deliberations and asked the

court's permission to return the following morning.

In the afternoon of the next day, October 26, 1993,

the jury communicated to the court that they had made no

progress and saw "no potential for coming to a unanimous

decision on any of the four counts through continued rational

discussion." Barone moved for a mistrial, which the court

denied. The court then informed the jury that it would not

accept the jury's conclusion as "the final word in this

matter," but would dismiss the jury for the remainder of the

-49-
49

day and begin the next day by repeating the modified Allen

charge. Barone did not object to the proposed second Allen

charge, but did object to the judge's statement to the effect

that, in his experience, the jury had not deliberated for an

unusually
long period of time. He again moved for a mistrial,

and the court denied the motion.

The following day, October 27, 1993, the judge

repeated the modified Allen charge, omitting the language to

which
Barone
had objected after the judge had administered the

first Allen charge. On October 28, 1993, the district judge

dismissed a juror pursuant to Federal Rule of Criminal

Procedure 23(b), see infra, and on October 29, 1993, the

eleven-member
jury
returned verdicts of guilty as to Counts One

through Three, but failed to reach a verdict as to Count Four

(charging Barone with Limoli's murder).

Barone contends that, in giving the jury a second

Allen charge, the district court violated his Fifth Amendment

right
to
due
process of law and his Sixth Amendment right to a

fundamentally
fair trial, arguing that the practical effect of

the district court's dismissal of a juror after having given

two
modified
Allen charges was to force the eleven-member jury

to render coerced and suspect verdicts.

Barone
argues that a trial court should never give a

second
modified Allen charge. Several circuits, including the

Second Circuit in particular, have rejected the use of a flat

-50-
50

ban,
and
judge
the
propriety of a second charge in light of the

United States Ruggiero, 928 F.2d 1289,

1299
circumstances. See v.
(2d Cir. 1991).17 The Ninth Circuit, over a strong

dissent, has adopted a per se rule against multiple Allen

charges, although this rule is subject to at least one major

exception,
permitting a successive charge if the jury requests

a
repetition
of
the
instruction. United States v. Seawell, 550

F.2d 1159, 1163 (9th Cir. 1977).

The danger with an Allen charge is that jurors who

hold a minority opinion will feel that the judge is putting

pressure
on
them
to
surrender their viewpoint. Even though the

modified Allen charge expressly warns that this is not its

purpose, many have been concerned that it pushes in this

direction. See United States v. Angiulo, 485 F.2d 37, 38-39

(1st
Cir.
1973).

Although the courts have held that the charge

is accepted as a reasonable compromise of conflicting

interests,
the problem is exacerbated when the charge is given

a second time, after the jury has already been told to

reconsider and again has found itself in deadlock. A

successive
charge
tends
to create a greater degree of pressure,

and one could argue that at this point the limit has been

reached.

17. See also United States v. Seeright, 978 F.2d 842, 850
(4th Cir. 1992); United States v. Reed, 686 F.2d 651, 653
(8th Cir. 1982); United States v. Fossler, 597 F.2d 478, 485
(5th Cir. 1979).

-51-
51

In the present case, the second charge came very

after the first, when the district court apparently

concluded that the jury had not seriously reconsidered.

ollowing
the
first
modif charge, the jury deliberated
quickly
F ied Allen

only for the remainder of the day on which it received the

charge and part way into the next day before reporting back

that it remained deadlocked. Given the length and complexity

of the case -- a nine-week trial with very difficult RICO

instructions
--
the
district court was surely within its rights

in thinking that the jury had not absorbed the message of the

first Allen charge, that the jury should make a reasonable

effort to break the deadlock.18

Although we sustain the district court in this case

without
much
difficulty and decline to adopt a per se rule, we

do think that caution needs to be used before the modified

Allen charge is given for a second time. At a minimum, there

ought normally to be special circumstances, and not merely a

continued
inability by the jury to decide, to justify a second

charge.

But
circumstances vary enormously; the trial judge is

closer to the facts, and with this one note of warning, we

adhere to the majority view that each case must be judged on

its own facts.

18. See Reed, 686 F.2d at 652-53 (jury deliberated for only
about one hour between first and second charge); United
States v. Robinson, 560 F.2d 507, 517-18 (2d Cir. 1977) (en
banc) (jury deliberated for only three hours between first
and second charge).

-52-
52

IV.

Federal Rule of Criminal Procedure 23(b) commits to

the
discretion of the district court both the determination of

whether in the circumstances "just cause" exists to excuse a

juror after the jury has retired to deliberate, and the

decision to proceed with a jury of eleven in the event that a

juror
is
excused
for
just cause. Fed. R. Crim. P. 23(b). See,

e.g. , Casamento , 887 F.2d at 1187.

Barone contends that the district court abused its

discretion under Rule 23(b) and violated his Fifth Amendment

right to due process of law by excusing a juror during

deliberations
over his objection. He asserts that the court's

removal
of
the
juror
"irreparably altered not only the dynamics

of the jury, but its impartiality as well." Barone argues

further
that, in permitting the eleven-member jury to continue

to
deliberate
after
the
juror's dismissal, rather than granting

his
motion
to
declare
a
mistrial, the district court abused its

discretion under Rule 23(b) and violated his Sixth Amendment

right to a unanimous verdict.

A.

On
October
27,
1993,
the
jury foreperson informed the

court that, during the jury's lunch break that day, a Federal

Protective Service Officer ("FPO") told one of the jurors,

Douglas Berger, that Berger's cousin had been represented in

another matter by one of Barone's attorneys. The court

-53-
53

promptly met with counsel and discussed at length the problem

and what ought to be done about it. At several points during

this discussion, Barone moved for a mistrial, but the court

decided
to
question the jury foreperson, Berger, and the other

jurors before ruling on the motion.19

The district judge first spoke with the jury

foreperson. Then, after discussion with counsel, the court

called for Berger, instructing him as follows:

I
want
you
to listen to the questions
I'm going to ask you, carefully. Try to
answer those questions fully, but don't
tell
me
more
than I ask you about, because
there's some things I need to know and
some things that at the moment, I don't
intend to get into. Basically, I want to
know what happened downstairs in the
lunchroom and how you feel about it. I
don't want to know what has been going on
upstairs in the jury room. So, those are
sort of the general areas that I'm
interested in and with regard to what has
gone on upstairs, at the moment, I don't
want you to tell me.

After listening to Berger's recollection of his

conversation with the FPO, the judge asked Berger "And what

effect, if any, does this have on your ability, or may this

have
on
your
ability
to
deliberate and decide the case based on

the evidence and the law and on nothing else, including this

information and event?" Berger replied,

19. The district court's investigation into the matter is
chronicled in greater detail in United States v. Barone, 846
F. Supp. 1016 (D. Mass. 1994).

-54-
54

Well, this is going to -- I have no
problem with it. It's just that things
I'd have problems with if the jury, say,
is hung and someone thinks that I had
something to do with it. I don't want
someone to be pointing a finger at me and
saying, well, you know, he defended your
cousin and you were going with him, and
you know, I don't know what the deal --
what happened with my cousin. If someone
could
say,
well, it would be out of spite.
I just -- It's something I don't want to
deal with. I think it would be very
difficult for everyone upstairs, also.

After asking Berger to step out, the judge again

conferred
with counsel before recalling Berger to question him

further regarding a discrepancy between his version and the

FPO's version of events. After Berger stepped out again, the

judge expressed doubts about his credibility, candor, and

ability to continue to serve as a juror, but deferred his

decision as to how to resolve the matter until the next day.

On the morning of October 28, 1993, the judge began

by stating his view that Berger's ability to deliberate had

been
impaired and that he should be excused from the jury. He

also stated that, in order to decide under Rule 23(b) whether

to declare a mistrial or proceed with eleven jurors, he would

question each of the remaining jurors individually. Barone's

counsel
stated
that
if
the court did not grant a mistrial, then

Berger should not be excused.

After further consultation with counsel, the judge

called
for
Berger.

The
judge reminded Berger that he was under

oath and again instructed him that, in answering the court's

-55-
55

questions, he should take care not to reveal anything,

"directly or indirectly, about how you're voting up there, or

how
the
jury
is divided, or what your view of the evidence is,

or
anybody
else's." The judge then questioned Berger again in

an effort to determine whether he was able to deliberate and

vote solely on the basis of the evidence and the law as

instructed
by
the
court.
In response to the court's questions,

Berger
stated that he would "have a hard time" and that he did

not "feel right." When asked whether he wished to be excused

from
the
case, Berger replied, "I wouldn't object. I wouldn't

say I don't want to be, but I really don't feel I should be

here
anymore
.
.
.
I
don't think it's right that I stay." When

the court asked him for his "most candid responses" as to

whether he could avoid being influenced in deliberating and

voting by concerns about how it might look later, Berger

replied, "I don't know if I can really [d]o that and that

concerns
me.

It
concerns me a lot. Maybe it shouldn't, but it

does."

The judge concluded that Berger's receipt of extra-

judicial information had impaired his ability to continue to

deliberate
as
an
impartial juror and, therefore, that there was

just cause to excuse Berger from the jury under Rule 23(b).

Over Barone's objection, the court excused Berger, with

instructions not to discuss the matter with anyone.

-56-
56

The court then announced its intention to determine

whether the remaining eleven jurors could continue to

deliberate fairly and impartially. The judge stated that he

would not declare a mistrial without further inquiry because

the trial had been a long one and would require considerable

government,
defense, and judicial resources to retry, but that

he would let counsel be heard on how to proceed if, after his

individual voir dire of the eleven remaining jurors, he

determined that the jurors were impartial. He explained that

"[t]his is the type of situation Rule 23(b) was intended to

address,
according
to
the Advisory Committee notes, by allowing

juries
of
eleven, in the court's discretion, and my overriding

concern is with the fairness of the trial."

After further consultation with counsel, and

following counsel for Barone's requests regarding what

questions to ask, the court conducted an individual voir dire

of each juror. The court concluded that no juror had been

affected by the information that Berger received or by his

dismissal;
that each juror was fair and impartial; and that no

evidence
of
pressure
or
anxiety was discernible in the demeanor

of any of the remaining jurors. Accordingly, the district

court
denied
Barone's motion for a mistrial, opting instead to

continue deliberations with eleven jurors pursuant to Rule

23(b).

The
jury
returned its verdicts the following afternoon.

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57

"When
a
non-frivolous suggestion is made that a jury

may be biased or tainted by some incident, the district court

must undertake an adequate inquiry to determine whether the

alleged incident occurred and if so, whether it was

prejudicial."

United
States v. Ortiz-Arrigoitia, 996 F.2d 436,

442
(1st
Cir.
1993)
(citations omitted). See Angiulo, 897 F.2d

at 1184-86. The district court is not, however, bound by a

rigid set of rules and procedures "that compel any particular

form or scope of inquiry," but is "vested with the discretion

to fashion an appropriate and responsible procedure to

determine whether misconduct actually occurred and whether it

was
prejudicial." Ortiz-Arrigoitia, 996 F.2d at 443 (citation

omitted). "Substantial deference is due the trial court's

exercise of its discretion in handling situations involving

potential
juror
bias
or
misconduct," Angiulo, 897 F.2d at 1185,

and
the
deference
due
the court's ultimate finding on the issue

of continued juror impartiality is enhanced because this

determination is a question of fact, id. at 1186.

Here, the trial judge promptly addressed the matter

in
open
court, and the inquiry was as thorough as the response

was prompt. The judge conferred with counsel at great length

over
a
period of two days, affording counsel ample opportunity

to
express
their
concerns, and entertaining their arguments and

suggestions regarding questions to ask of jurors and how to

proceed. The judge interviewed all the jurors -- taking care

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58

in his questions not to intrude upon their deliberations and

consulting
with
counsel
throughout -- and carefully weighed the

testimony, demeanor, and credibility of Berger and the other

jurors. A more careful and thorough approach than the one

taken by the district judge here is difficult to imagine. In

the end, the district court reasonably concluded that Berger

could
not
continue
to
deliberate as a fair and impartial juror,

but that his incapacity had not impaired the ability of the

remaining jurors to carry out their service fairly and

impartially.

The
trial
judge
has
substantial discretion under Rule

23(b) to remove a juror after deliberations have commenced

where the judge has determined that the juror's ability to

perform her duties has been impaired. See United States v.

Walsh, 75 F.3d 1, 5 (1st Cir. 1996). Barone protests that

"Berger's
concerns were not about his ability to be impartial,

but the perceptions of others"; that Berger indicated his

ability to deliberate and vote based solely on the evidence;

and that the district court "discounted juror Berger's

assurances of his own capability to decide the case based on

the evidence." Barone's argument seems to be that Berger's

initial representation that his receipt of extra-judicial

information
from the FPO had not affected his ability to serve

as an impartial juror was sufficient to establish his

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59

competence to deliberate impartially and, therefore, the

district court acted improperly in dismissing him.

But a juror's representations regarding her ability

to perform fairly and impartially are not dispositive, see

Murphy

v.
Flo
rida, 421 U.S. 794, 800 (1975); rather, the trial

court
must
make
its
own
determination of the juror's ability to

be
fair
and
impartial, see United States v. Egbuniwe, 969 F.2d

757, 761-62 (9th Cir. 1992). In all events, the question is

not whether the district court could have kept Berger on the

jury based upon his initial representation, but whether the

court acted within its discretion in excusing him from the

jury. See Casamento, 887 F.2d at 1187 ("Whether or not the

judge
properly could have kept this juror on the jury based on

her representation is not the issue here. Even if he could

have done so, it does not follow that he was obligated to do

so.").

We
conclude
that
the
district court did not abuse its

discretion under Rule 23(b) in excusing Berger after jury

deliberations
had
begun;
nor did the court violate Barone's due

process rights by removing Berger. In this context, due

process demands no more than what Barone received here, "'a

jury capable and willing to decide the case solely on the

evidence
before it, and a trial judge ever watchful to prevent

prejudicial occurrences and to determine the effect of such

occurrences when they happen.'" Olano, 507 U.S. at 738

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60

(quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)).

B.

Barone
also
argues
that
the district court abused its

discretion under Rule 23(b), and violated Barone's Fifth

Amendment right to due process of law and his Sixth Amendment

right to a unanimous verdict by allowing deliberations to

continue (rather than declaring a mistrial), and in accepting

verdicts
returned
by
a
jury of less than twelve members. In so

doing,
Barone
contends,
the district court committed reversible

error
by
depriving him of "one of the safeguards of liberty, a

hung jury."

Rule 23(b) was amended in 1983 in order to address

the very problem presented here, that of how to deal with the

necessity
of
excusing
a
juror after deliberations have begun.20

As amended, Rule 23(b) gives judges the discretion to permit

eleven-member juries to deliberate to a verdict if one juror

becomes unavailable.21 See Fed. R. Crim. P. 23(b) advisory

20. We note that under the federal rules the substitution of
an alternate juror is not within the district court's
discretion once the jury has begun to deliberate. See Fed.
R. Crim. P. 24(c) ("An alternate juror who does not replace a
regular juror shall be discharged after the jury retires to
consider its verdict."); Olano, 507 U.S. at 737-41 (treating
the presence of alternate jurors during deliberations as a
violation of Rule 24(c)); Houlihan, 92 F.3d at 1285-88
(same).

21. The Supreme Court has made clear that the Constitution
does not require twelve jurors for conviction. See Williams
v. Florida, 399 U.S. 78 (1970). We have stated that Williams

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61

committee's
note;
United
States v. Smith, 789 F.2d 196, 204 (3d

Cir.
1986).

The amendment was intended to provide a preferred

mechanism for avoiding a mistrial where a juror is excused

after
deliberations have begun, United States v. Stratton, 779

F.2d
820,
831 (2d Cir. 1985), particularly "when the trial has

been a lengthy one and consequently the remedy of mistrial

would necessitate a second expenditure of substantial

prosecution, defense and court resources," Fed. R. Crim. P.

23(b) advisory committee's note.

The district court determined that, at the time of

Berger's dismissal, the trial had been in progress for nearly

eleven weeks and would require "considerable government,

defense,
and
judicial
resources to retry," and that each of the

remaining jurors could continue to deliberate fairly and

impartially, based solely upon the evidence and the court's

instructions.

In United States v. Brown, 823 F.2d 591, 597 (D.C.

Cir. 1987), the court held that "Rule 23(b) is not available

when
the
record
evidence
discloses a possibility that the juror

believes that the government has failed to present sufficient

evidence to support a conviction." See also United States v.

"effectively answers the claim that 11 jurors are too few,"
Walsh, 75 F.3d at 6, and all courts to have considered the
matter have held Rule 23(b) to be constitutional, see United
States v. Ahmad, 974 F.2d 1163, 1164 (9th Cir. 1992); United
States v. Armijo, 834 F.2d 132, 134 (8th Cir. 1987); United
States v. Smith, 789 F.2d 196, 204-05 (3d Cir. 1986); United
States v. Stratton, 779 F.2d 820, 831-35 (2d Cir. 1985).

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62

Hernandez, 862 F.2d 17, 23 (2d Cir. 1988). In this case the

record reveals that, during his colloquies with Berger, the

district
judge
repeatedly instructed him not to disclose how he

was voting or how the deliberations had been going. Still,

some of Berger's responses to the court's questions arguably

suggest
the
possibility
that Berger may not have been persuaded

that
the
government had proven Barone guilty. For example, on

October 27, 1993, Berger stated:

It's just that things I'd have problems
with
if
the
jury, say, is hung and someone
thinks
that
I had something to do with it.
I don't want someone to be pointing a
finger at me and saying, well, you know,
he
defended
your cousin and you were going
with him . . . .

And on October 28, 1993, Berger said:

I don't feel right. . . . I don't want
anybody, whether it be someone in the
general public finding out, or anybody up
in
the
jury.
I don't want to be looked at
as, well, you know, he had a reason. I
don't want anyone to think how I vote, I
have a reason to do it other than the
evidence presented in court.

But, in contrast to Brown, in which the record

evidence "indicate[d] a substantial possibility that juror

Spriggs
requested
to
be
discharged because he believed that the

evidence offered at trial was inadequate to support a

conviction,"
823 F.2d at 596, here the record contains no true

evidence regarding Berger's views on the merits of the case.

Moreover,
the
district
judge in this case "did not construe any

remark by Mr. Berger as a statement of how he was voting and

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63

certainly did not consider which party he might have been

supporting in deciding whether to excuse him." United States

v. Barone, 846 F. Supp. at 1020.

Thus, in contrast to the juror in Brown (who

indicated to the judge that he was unable to discharge his

duties
because
he
disagreed with the RICO laws and was troubled

by the presentation of evidence), Berger was excused for a

valid
reason
that
was
entirely unrelated to the issue of how he

felt
about
the sufficiency of the government's proof; i.e., he

was excused because the district court determined that his

receipt
of
extra-judicial information from the FPO had impaired

his ability to carry out his role fairly and impartially.

We
think
that,
where,
as
here, a juror is removed for

a just cause that is unrelated to the juror's views of the

sufficiency of the evidence, and there is no indication that

the
removed
juror was a holdout juror, Brown's admonition that

"a court may not dismiss a juror during deliberations if the

request
for
discharge
stems from doubts the juror harbors about

the
sufficiency
of
the
government's evidence," 823 F.2d at 596,

does not apply. We conclude that the district court did not

abuse its discretion in permitting the eleven-member jury to

deliberate
to
a
verdict,
rather than declaring a mistrial. See

United States v. Gambino, 598 F. Supp. 646, 660-61 (D.N.J.

1984)
(stating
that
it
would have been "unthinkable" to declare

a mistrial rather than proceed with eleven jurors, given the

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64

investment of judicial resources in a six-week trial and over

twenty hours of jury deliberation), aff'd, 788 F.2d 938 (3d

Cir. 1986). See also United States v. Armijo, 834 F.2d 132,

135 (8th Cir. 1987) (holding that the district court did not

abuse its discretion in permitting an eleven-member jury to

render a verdict in a five-day trial).

Finally, we reject Barone's argument that the

verdicts
in
this
case
were not unanimous, and therefore violate

the
Constitution, as merely a rephrasing of his constitutional

challenge to the verdict rendered by an eleven-member jury.

Although
the
Supreme Court has not ruled on the constitutional

permissibility
of
a
less-than-unanimous verdict, see Apodaca v.

Oregon
,
406
U.S. 404 (1972), we have stated that "rendition of

a
verdict
agreed
to
by
all jurors, after one juror with unknown

views has been dismissed for cause, is a unanimous verdict,"

Walsh, 75 F.3d at 6.

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65

V.

For the foregoing reasons, the judgment of the

district court is affirmed.

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66