[NOT FOR PUBLICATION]
No. 96-1353
UNITED STATES OF AMERICA,
Appellee,
v.
KENNETH RAPOSA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Edward
J.
Romano, by Appointment of the Court, for appellant.
Margaret E. Curran, Assistant United States Attorney, with
whom Sheldon Whitehouse, United States Attorney, James H. Leavey,
Assistant
United States Attorney, and Kenneth P. Madden, Assistant
United States Attorney, were on brief for appellee.
July 3, 1997
Per Curiam. Appellant was convicted, after a jury trial, of
participating in the collection of an extension of credit by
extortionate
means,
in
violation of 18 U.S.C. SS 894, 2. He raises
three issues on appeal. At this juncture, after a hard and ably
fought trial below, no issue merits extended discussion.
Appellant first challenges the sufficiency of the evidence.
The
evidence
as the jury could have found it was that (1) Duxbury,
the
key
government
witness, was confronted by co-defendant Ouimette
and
accused
of
shaking
down a friend; (2) Duxbury's response earned
him a beating by a third defendant, Gellerman, who pleaded guilty
and
testified as a cooperating witness at trial; (3) Ouimette then
grabbed Duxbury by the throat and announced that, as a penalty,
Duxbury must pay $5,000 by the following night; (4) after this,
Ouimette slapped Duxbury in the face and appellant kicked Duxbury
in the leg; and (5) most importantly, just before Duxbury was
escorted out of the room, appellant raised his hand, and pointing
at
Duxbury,
said,
"Do
not forget the five thousand dollars tomorrow
night."
Appellant
asserted flaws and inconsistencies in the testimony
of the various witnesses, but this comes down to a question as to
which
witness
the
jury
believed. There is nothing to set this case
apart from the general deference due a jury's verdict. Not only
was there Duxbury's unshaken testimony, but the jury also had
before it nonverbal evidence of appellant's kicks following
Ouimette's announcement of the penalty.
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The second issue is whether the district court abused its
discretion by refusing the defense a continuance to obtain the
testimony
of
a
polygraph
examiner whose testing allegedly supported
appellant's assertion that he had not reminded Duxbury about the
$5,000. The colloquy below and the briefs on appeal discuss many
facets of polygraph test admissibility, but we need rely on only
one ground particular to this case.
A prior counsel for appellant, before his removal to avoid a
conflict based on representation of a co-defendant, had obtained
the test from his expert. The attorney had proposed to the
government that it secure an impartial examiner to administer
another test, "provided that you agree that the results of the
polygraph
examination will be admitted at the trial of this matter
on the issue of Mr. Raposa's credibility, should he choose to
testify at trial." (Emphasis added.) As it happened, appellant
decided not to testify and the precondition to admission of the
results of the examination therefore did not materialize.
Under
these
circumstances, we cannot fault the district court
for
refusing
a mid-trial continuance for the defense to locate the
expert
so
that
he
could
attempt to justify admission of his report.
Indeed,
we
read
appellant's brief on appeal as implicitly conceding
this with the following language: "In the present case, the
polygraph evidence would directly corroborate the defendant's
testimony, if he chose to testify, regarding specific fact [sic]
alleged by the government and denied by the defendant which the
jury
must
determine . . . ." It is also worthy of note that this
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language
is
identical to that used in a "Motion to Admit Polygraph
Evidence"
filed
in
the
district court by appellant's trial counsel.
The third issue concerns the court's refusal to strike the
testimony of a dancer who stated that appellant had asked her
"something like, are you a cop or something." She was not sure
that this was said on the day after the basic incident and
appellant's
counsel moved to strike on the ground that the witness
did not remember on which day the statement was made. The court
allowed
the
testimony to stand, saying that its weight was for the
jury.
We
cannot
say
that
this
was an abuse of discretion. There was
no objection that this was impermissible character evidence, nor
did this undercut appellant's defense that he did not participate
in an extortionate activity (as opposed to some type of criminal
activity, such as an assault).
Affirmed.
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