United States v. Freeman

United States Court of Appeals
For the First Circuit

No. 99-1585

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM E. FREEMAN, JR.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Stahl, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.

William A. Brown for appellant.
Jennifer Zacks, Assistant United States Attorney, with whom
Amy B. Lederer, Assistant United States Attorney, Donald K.
Stern, United States Attorney, and the Department of
Justice were on brief for appellee.

April 14, 2000
 LIPEZ, Circuit Judge. William E. Freeman, Jr., an

officer in the Peabody, Massachusetts, police department, was

convicted by a jury on two counts of witness tampering. He was

also acquitted on one count of witness tampering and one count

of conspiracy to violate 18 U.S.C. § 666(a)(1)(B) (theft or

bribery concerning programs receiving federal funds).1 Freeman

complains that the evidence of witness tampering was

insufficient to support the convictions. Additionally, Freeman

contends that the court should have granted his motion for a

judgment of acquittal on the conspiracy charge before its

submission to the jury. If it had done so, he argues, the court

would have been forced to grant a mistrial on the remaining

witness tampering charges because the testimony admitted as

1Title 18 U.S.C. § 666 provides that an agent of, inter
alia, any local government that "in any one year period,
benefits in excess of $10,000 under a Federal program," is
criminally liable if he

corruptly solicits or demands for the benefit of any
person, or accepts or agrees to accept, anything of
value from any person, intending to be influenced or
rewarded in connection with any business, transaction,
or series of transactions of such organization,
government, or agency involving any thing of value of
$5,000 or more.

On appeal, Freeman does not contest that he is an agent of a
local government, or that Peabody receives the level of federal
benefits required for jurisdiction under this statute.

-3-
evidence of the conspiracy was unduly prejudicial to his defense

to the witness tampering charges. He further claims that he was

entitled to a mistrial because the court admitted evidence of

the statements of a coconspirator that it later had to strike,

and because of the spillover effect on the witness tampering

convictions of "bad acts" evidence admitted on the conspiracy

charge. Unconvinced by Freeman's arguments, we affirm.

I. BACKGROUND

We sketch the facts of this odd case at the outset,

adding detail below as it becomes necessary to the legal

discussion. In 1991, Freeman became associated with the "Golden

Banana," a striptease nightclub located in Peabody, and the

club's owner, Louis DiBella (DiBella). Freeman began

frequenting the Golden Banana shortly after DiBella's son,

Francis, was arrested on drug charges. Although Freeman was not

an employee of the club, DiBella paid him approximately $100 in

cash each week for almost four years. In addition, DiBella

loaned Freeman money, gave him free alcoholic beverages at the

club, allowed him to influence the hiring and firing of dancers,

tolerated his frequent visits to the dancers' dressing room,

generally off limits to men, and otherwise turned a blind eye to

Freeman's erratic and sometimes violent behavior.

-4-
 In 1995, a federal grand jury began investigating

potential violations of federal law at the Golden Banana

involving, inter alia, members of the Peabody police department.

During the investigation, Freeman approached fellow Peabody

police officer Michael Ward and warned him to keep his "mouth

shut" about "anything that went on at the Golden Banana."

Freeman also approached Amy Clarke, the master of ceremonies at

the Golden Banana, telling her to "keep the lip zipped" and "not

to say anything about the Golden Banana."

The grand jury indicted Freeman on five counts. Count

One alleged that Freeman conspired with DiBella to receive cash

payments, no-interest loans, and free alcoholic beverages, in an

attempt by DiBella "to curry favor with him and to buy his

silence about licensed premise violations which occurred at the

Golden Banana"--i.e., a conspiracy to violate 18 U.S.C. §

666(a)(1)(B). See supra note 1. The grand jury also indicted

Freeman on four counts of witness tampering in violation of 18

U.S.C. § 1512(b)(2)(A) & (b)(3): Count Two involved an unnamed

Peabody police officer,2 Count Three involved Officer Ward, and

Counts Four and Five involved Amy Clarke.

2Prior to trial, the government dismissed Count Two pursuant
to Fed. R. Crim. P. 48(a).

-5-
 In its opening statement at trial, the government

outlined its conspiracy case. According to the government,

DiBella would testify that, given the controversial nature of

the Golden Banana's business, he needed to stay on the "good

side" of the Peabody police lest they "do things like influence

his ability to retain the liquor license that he had at the

Golden Banana." In addition, DiBella would testify that he

feared that the Peabody police would "take away his son,"

Francis, because of Francis's cocaine problem. Thus, the

government expected DiBella to testify that he "willingly"

entered into a "corrupt relationship" with Freeman, in which he

"agreed to pay bribes" to Freeman and Freeman "agreed to accept

them."3

On the first day of trial, before the government called

DiBella to the stand, it presented the testimony of Deborah

Drew, the daytime manager at the Golden Banana. Drew testified

that DiBella told her he provided free alcoholic beverages to

police officers to avoid "beefs" with the police, and that

DiBella instructed her to call the Peabody police, not the state

police, in the event of a licensing violation committed on the

3
DiBella himself was not charged with conspiracy. Instead,
he was charged with four counts of filing false income tax
returns, to which he pled guilty. As part of his plea bargain,
DiBella agreed to cooperate in the government's investigation of
Freeman and to testify against him at trial.

-6-
premises. Although the defense objected to this testimony as

hearsay, the court provisionally admitted it under the hearsay

exception for the statements of a coconspirator, Fed. R. Evid.

801(d)(2)(E), promising that it would "scrutinize it with care

at the end of all the evidence."

On the second day of trial, the government called

DiBella as a witness. Although DiBella testified that he made

regular cash payments to Freeman, he denied that Freeman had

agreed to perform any favors on his behalf. Moreover, DiBella's

testimony suggested that he provided benefits to Freeman because

of his fear of Freeman rather than any willing agreement between

the two. Following DiBella's testimony, the court warned the

government that "if Mr. DiBella is the chief witness, you're in

deep serious trouble on the conspiracy count," suggesting that

it did not think that the "victim of extortion is a

conspirator."

As the government neared the completion of its case in

chief, Freeman moved for a judgment of acquittal.4 In ruling on

the motion, the court also scrutinized the government's

conspiracy evidence to determine whether it had properly allowed

Drew to testify to DiBella's out-of-court statements on the

4
Although the government had not yet rested, it consented to
the court's consideration of the defendant's motion for a
judgment of acquittal at this time.

-7-
first day of trial. The court concluded that there was

insufficient evidence of a conspiracy to admit the hearsay

statements of a coconspirator, but that there was sufficient

evidence to deny the motion for a judgment of acquittal on the

conspiracy charge:

[T]he Court is not persuaded by a fair
preponderance of the evidence, as I make
findings of preliminary fact, that at any
time there existed a conspiracy between Mr.
Freeman and Mr. DiBella. That requires me
to strike so much of the testimony of Ms.
Drew as recounted things that Mr. DiBella
had to say.

At the same time . . .

I think that wholly apart from
anything I believe about the evidence, that
there is enough evidence independent of Mr.
DiBella . . . that a reasonable jury could
find a conspiracy. . . .

So, I must deny the motion for a
judgment of acquittal . . . .

Freeman then moved for a mistrial, the court took the motion

under advisement, and the government presented its final two

witnesses. After the government rested, Freeman renewed his

motions for a judgment of acquittal and a mistrial. Again, the

court denied the motion for a judgment of acquittal and left the

motion for a mistrial under advisement. After concluding his

-8-
defense,5 Freeman renewed his motions for a judgment of acquittal

and a mistrial. The court denied both motions and submitted the

conspiracy charge and three witness tampering charges to the

jury. See supra note 2.

The jury acquitted Freeman of the conspiracy charge and

the witness tampering count involving officer Ward, but

convicted him on the two counts of witness tampering involving

Amy Clarke. After the verdict, Freeman moved for a new trial,

citing the "overwhelming capacity of evidence that was

ostensibly admitted on one count which was the conspiracy[:] all

this not very subtle character assassination, Freeman's a

drinker, Freeman's going into the dressing rooms." According to

Freeman, this evidence of "bad acts," admitted for its relevance

to the conspiracy count, substantially prejudiced his defense to

the witness tampering charges.

The court denied the motion for a new trial, concluding

that "the evidence that was improperly allowed is just too

5
Freeman's defense consisted of only three witnesses. John
Carney, a captain in the Marblehead Police Department, and
Robert Marron, a Peabody police officer, were each called by the
defense to impeach the credibility of Officer Ward. (The court
found Marron's testimony inadmissible.) Robert Russell, a
Peabody police detective, testified that DiBella had spoken
favorably of Freeman and that Francis DiBella had told him that
the federal authorities were trying to get his father to say
that he had paid Freeman off. Freeman did not testify on his
own behalf.

-9-
peripheral here" (referring to Deborah Drew's hearsay account of

DiBella's statements to her), and that "the jury showed their

independence and their ability to discern between counts" by

acquitting Freeman on two of the four counts. The court

sentenced Freeman to four months' incarceration followed by

twenty-four months of supervised release, the first four of

those months in home confinement. The court also ordered

Freeman to pay a $3,000 fine and a $200 special assessment.

Freeman now appeals, arguing that the evidence was

insufficient to support his convictions on the two witness

tampering counts. Alternatively, he argues that the trial court

erred in denying his motions for a mistrial and a new trial.

II. SUFFICIENCY OF THE EVIDENCE

To obtain convictions for witness tampering in

violation of 18 U.S.C. § 1512(b)(2)(A) & (b)(3), the government

had to prove beyond a reasonable doubt that Freeman (1)

"knowingly use[d] intimidation or physical force, threaten[ed],

or corruptly persuad[ed]" Amy Clarke, (2) intending to induce

Clarke to "withhold testimony," or to "hinder, delay, or prevent

the communication to a law enforcement officer or judge of the

United States of information relating to the commission or

possible commission of a Federal offense." 18 U.S.C. § 1512.

In evaluating the sufficiency of the evidence of witness

-10-
tampering, we must view the facts and witness credibility

determinations, as well as draw reasonable inferences, in favor

of the government. See United States v. Valle, 72 F.3d 210, 216

(1st Cir. 1995). "So long as the evidence, taken as a whole,

warrants a judgment of conviction," the evidence is legally

sufficient. United States v. Olbres, 61 F.3d 967, 970 (1st Cir.

1995). Viewed in the light most favorable to the government,

the evidence shows that Freeman made statements to Clarke on two

occasions that a reasonable jury could have found beyond a

reasonable doubt were criminally culpable.

Freeman was aware that there was a federal

investigation of activity at the Golden Banana. Based on the

evidence presented by the government, the jury could infer that

Freeman was also aware that his own conduct might subject him to

criminal liability as a result of the investigation. Thus,

Freeman had a motive to prevent potential witnesses from

relaying damaging information to the government. Clarke

testified that Freeman approached her at the Golden Banana and

said, "I hear you've been talking and the feds are around," and

stated, "remember, mum's the word." Later in the same

conversation Freeman said, "remember with the feds around

talking, keep the lip zipped," drawing his finger across his

-11-
lips in an accompanying gesture. Clarke testified that this

exchange made her feel "a little bit intimidated."

In light of his motive to curtail the flow of

information to the government, the jury could reasonably infer

that Freeman selected language that he thought would intimidate,

threaten, or corruptly persuade Clarke, and that Freeman did so

intending to cause her to "withhold testimony" or to "hinder,

delay, or prevent the communication" of information to the

federal authorities investigating the Golden Banana. Although

Freeman's words did not contain overt threats, a reasonable jury

could infer that Freeman knew Clarke would be threatened by such

words, given his status as a police officer and her first-hand

knowledge of his erratic personality and violent temper.

Similarly, Freeman's statements to Clarke several weeks

later at her house were sufficient to support a conviction on a

second count of witness tampering. Freeman went to Clarke's

house immediately following the appearance of a newspaper

article about the Golden Banana that featured a front-page

picture of Clarke. The jury could have inferred that Freeman

went to her house at this time because the article had renewed

his fear that Clarke was cooperating in the investigation.

Freeman said to Clarke, "the feds [are] coming down heavy," and

warned her "not to say anything about the Golden Banana."

-12-
Clarke testified that this conversation made her feel

"intimidated," "very uneasy," and "awkward," and that she was so

afraid of Freeman that she hid in the basement the next time he

came to her house.

Again, Freeman's statements to Clarke, made in the

context of a visit to her home shortly after the appearance of

a newspaper article that Clarke had reason to believe had

angered him, were sufficient to permit a jury to conclude that

Freeman knowingly acted in a way designed to intimidate,

threaten, or corruptly persuade Clarke, with the specific intent

to cause her to "withhold testimony" or to "hinder, delay, or

prevent the communication" of information to the federal

authorities. See United States v. Shotts, 145 F.3d 1289, 1301

(11th Cir. 1998) (finding defendant's statement to his secretary

to "just not say anything [to the FBI] and I wasn't going to be

bothered" sufficient to support a conviction under 18 U.S.C. §

1512).

III. THE MOTION FOR A MISTRIAL

Freeman argues that the trial court abused its

discretion in denying his motion for a mistrial or a new trial

for three reasons.6 First, if the trial court had granted his

6
Because Freeman's motion for a new trial is not based upon
grounds arising subsequent to judgment, the appeal is from the
judgment, with the denial of his motions for a mistrial and a

-13-
motion for a judgment of acquittal on the conspiracy charge as

it should have, it would have realized that so much "bad acts"

testimony had been admitted as evidence of the conspiracy that

Freeman could not get a fair trial on the witness tampering

charges. Second, the trial court had exacerbated the

prejudicial effect of the conspiracy evidence by allowing the

government to present the hearsay testimony of a coconspirator,

only to strike that evidence once it determined that the

government had failed to show the existence of a conspiracy by

a preponderance of the evidence. Third, even if the court

properly submitted the conspiracy charge to the jury, the "bad

acts" evidence admitted in support of that charge substantially

prejudiced the jury's consideration of the witness tampering

charges.

As with any review of a denial of a motion for a

mistrial, we consider the totality of the circumstances to

determine whether the defendant has demonstrated the kind of

new trial being assigned as an error in the judgment. See 2
Charles Alan Wright, Federal Practice & Procedure: Criminal 2d
§ 559, at 367 (West 1982 & 1999 Supp.); Gray v. United States,
299 F.2d 467, 468 (D.C. Cir. 1962). Freeman's arguments in
support of a mistrial and a new trial are the same, and they are
subject to the same standard of review, see United States v.
Wihbey, 75 F.3d 761, 773 (1st Cir. 1996) ("We review a trial
judge's ruling on a motion for a mistrial, or for a new trial,
only for abuse of discretion."). We therefore simplify our
discussion by referring hereafter only to the motion for a
mistrial.

-14-
"clear" prejudice that would render the court's denial of his

motion for a mistrial a "manifest abuse of discretion." United

States v. Torres, 162 F.3d 6, 12 (1st Cir. 1998). In conducting

this inquiry, we are mindful that the trial court has a

"superior point of vantage," and that "it is only rarely--and in

extremely compelling circumstances--that an appellate panel,

informed by a cold record, will venture to reverse a trial

judge's on-the-spot decision." United States v. Pierro, 32

F.3d. 611, 617 (1st Cir. 1994). Where "a curative instruction

is promptly given, a mistrial is warranted only in rare

circumstances implying extreme prejudice." Torres, 162 F.3d at

12 (emphasis added). This is so because a mistrial is viewed as

a "last resort, only to be implemented if the taint is

ineradicable, that is, only if the trial judge believes that the

jury's exposure to the evidence is likely to prove beyond

realistic hope of repair." United States v. Sepulveda, 15 F.3d

1161, 1184 (1st Cir. 1993).

We conclude that the trial court did not abuse its

discretion by denying Freeman's motion for a mistrial for the

following reasons: (A) the court properly denied the motion for

a judgment of acquittal on the conspiracy charge; (B) the

minimal hearsay statements of a coconspirator, later stricken

from the record, did not substantially prejudice the jury's

-15-
consideration of the witness tampering charges; and (C) the "bad

acts" evidence admitted in support of the conspiracy charge did

not spill over to substantially prejudice the jury's

consideration of the witness tampering charges.

A. The Denial of the Motion for a Judgment of Acquittal on the
Conspiracy Charge

We must first note the unusual nature of this mistrial

argument, premised as it is on the allegedly erroneous denial of

a motion for a judgment of acquittal on a charge later rejected

by the jury with a not guilty verdict. Although Freeman's logic

in pursuing this argument is not always clear, we divine this

meaning in his claim. If a defendant in a trial involving

multiple charges succeeds in obtaining a judgment of acquittal

on some of the charges at the completion of the government's

case, the defendant can argue that he cannot get a fair trial on

the charges that remain in the case because of the evidence

presented on the now dismissed charges, and hence he is entitled

to a mistrial on the remaining charges. See United States v.

McNatt, 842 F.2d 564, 565-66 (1st Cir. 1988); see also United

States v. Hamblin, 911 F.2d 551, 559 (11th Cir. 1990); Leach v.

United States, 402 F.2d 268, 268 (5th Cir. 1968) (per curiam).

Although Freeman was ultimately acquitted on the conspiracy

charge, and therefore has no basis for challenging as a discrete

issue on appeal the denial of his motion for a judgment of

-16-
acquittal on that charge, he argues that he should be able to

make on appeal the same mistrial argument that would have been

available to him if he had persuaded the court to dismiss the

conspiracy charge at the completion of the government's case.

That is, he should be able to argue that the denial of the

mistrial request was erroneous because of the substantial

prejudice created by the evidence that went to the jury in

support of a conspiracy charge that should have been dismissed.

Under the scenario in this case, the challenge to the judge's

ruling on the motion for a judgment of acquittal, instead of

being the basis for a discretely appealable issue, becomes the

predicate for Freeman's first challenge to the trial court's

ruling on the motion for a mistrial. See United States v.

Guiliano, 644 F.2d 85, 88-89 (2d Cir. 1981) (ordering a retrial

on a bankruptcy fraud count, even though the evidence was

sufficient to support the conviction, because it reversed on

appeal a RICO conviction and concluded that there was a

"distinct risk that the jury was influenced in its disposition

of [the bankruptcy fraud] count by improper evidence and by the

allegations of the RICO count").

We accept the theory of Freeman's appeal on this

mistrial issue. That is a pyrrhic victory, however, because we

agree with the trial court's decision to deny Freeman's motion

-17-
for a judgment of acquittal on the conspiracy charge. We

explain.

Federal Rule of Criminal Procedure 29(a) provides,

"[t]he court on a motion of a defendant or of its own motion

shall order the entry of judgment of acquittal of one or more

offenses charged in the indictment or information after the

evidence on either side is closed if the evidence is

insufficient to sustain a conviction of such offense or

offenses." Pursuant to this standard, the defendant may claim

a "hopeless variance in the proof" between the crime charged and

the evidence produced at trial. See 2 Charles Alan Wright,

Federal Practice & Procedure: Criminal 2d § 466, at 654 (West

1982). Freeman argued that the government's evidence,

especially DiBella's testimony that he was motivated by fear

rather than by an agreement with Freeman, indicated that Freeman

was guilty if at all of extortion, an offense not charged by the

government.

Although the evidence presented by the government

arguably would have lent more support to a charge of extortion

than a charge of conspiracy, the evidence was sufficient to

submit the conspiracy charge to the jury. To prove a conspiracy,

the government must show beyond a reasonable doubt that the

"defendant and one or more coconspirators intended to agree and

-18-
. . . to commit the substantive criminal offense which was the

object of their unlawful agreement." United States v. Tejeda,

974 F.2d 210, 212 (1st Cir. 1992) (alteration in original).

Here, the "substantive criminal offense" charged was a violation

of 18 U.S.C. § 666(a)(1)(B), which prohibits an agent of a local

government, like a police officer, from "corruptly solicit[ing]

or demand[ing] for the benefit of any person, or accept[ing] or

agree[ing] to accept, anything of value from any person,

intending to be influenced or rewarded in connection with any

business, transaction, or series of transactions of such

organization, government, or agency involving anything of value

of $5,000 or more." Stated in terms of the government's theory

of the case, the government needed to prove that Freeman and

DiBella entered into an agreement in which Freeman would "accept

or agree to accept" valuable benefits from DiBella, including

cash payoffs, loans, and special treatment at the Golden Banana,

intending to be "influenced or rewarded" for helping DiBella and

his son avoid trouble with the Peabody police or the Peabody

officials who oversee the Golden Banana's license to sell

liquor.

There was sufficient evidence to support the

government's conspiracy theory. First, the evidence showed that

Freeman received "something of value" from DiBella in the form

-19-
of money payments and special treatment at the Golden Banana.

DiBella paid Freeman approximately $100 per week in cash for

almost four years, and loaned money to Freeman's brother and to

one of Freeman's friends--money that was never repaid. Freeman

drank for free at the Golden Banana, spent time in the dancers'

dressing room, a location generally off limits to men, and

enjoyed influence over DiBella's decisions to hire and fire

particular dancers. DiBella continued to tolerate Freeman's

presence at the club despite Freeman's erratic and sometimes

violent behavior. Amy Clarke testified that Freeman would

become "belligerent" when she asked him to leave the dancers'

dressing room. Similarly, Thomas LeGault, the night manager at

the Golden Banana, testified that on one occasion, when he asked

Freeman to leave the dressing room, Freeman said, "I'll cut

fucking LeGault's throat with a bottle," and threw a chair at

the door.

Moreover, a reasonable trier of fact could have found

that the cash payments, loans, and other special treatment that

DiBella bestowed upon Freeman were not given in consideration

for any legitimate work that Freeman performed on DiBella's

behalf. During the relevant time, Freeman was not working as a

security guard or in any other capacity at the club. Indeed,

several witnesses testified that Freeman was usually drinking at

-20-
the club and was often seen intoxicated. These facts cast doubt

on Freeman's defense, advanced mainly through cross-examination

and in his closing argument, that he was somehow performing

surreptitious security duties for DiBella.

Second, there was some evidence that Freeman obtained

the cash payments, loans, and special treatment "intending to be

influenced or rewarded" for his help in insulating the Golden

Banana and Francis DiBella from trouble with local police and

city officials. That Freeman began to patronize the club

regularly only after Francis's arrest on drug charges might

suggest that Freeman, who worked in the area of narcotics,

viewed the arrest as an opportunity to trade his influence as a

police officer for favors. Deborah Drew testified that shortly

before Francis was arrested, Freeman said to her that DiBella

"shouldn't fuck with him . . . [and that] because of the things

that Frankie [Francis] was doing, that he [Freeman] could close

the club." Francis DiBella testified that Freeman warned him

that he was on the "top of the [DEA's] list," but that Freeman

"would take care of it and [Francis] would have no problems."

Freeman argues that the testimony of DiBella, who was

the government's star witness, fatally undermined the

government's conspiracy case, requiring a judgment of acquittal.

-21-
When asked why he made cash payments to Freeman, DiBella

responded:

Why? Because I, you know, every time you
talk to him it was drugs, drugs, drugs. And
your son is on the top of the DEA list.
And, you know, they're watching him and you
got to be careful, because the City of
Peabody is looking to shut you down, they
want to take your license away from you.
And the least little excuse they get,
they'll take it away from you. So, he had
me in a, like in a fearful, like something
that you grow up in the North End with all
the wise guys looking down your throat. If
you're making a dollar, they want part of
that dollar.

DiBella also testified that Freeman never so much as "fixed an

overdue library card" on his behalf. Asked whether he "ever

agreed with Sergeant Freeman to have him turn his back on

licensing violations," DiBella answered, "I never agreed to

anything like that." Freeman insists that DiBella's testimony

conclusively establishes that DiBella never voluntarily agreed

to trade benefits with Freeman in return for favors, but rather

that DiBella was "shaken down," the victim of extortion. This,

according to Freeman, foreclosed a conspiracy conviction.

The trial court disagreed and so do we. Although

DiBella denied that he entered into an agreement with Freeman,

the jury was entitled to disregard DiBella's testimony on this

point and draw opposing inferences from DiBella's course of

conduct and the testimony of other witnesses. It is elementary

-22-
that the agreement necessary to support a conspiracy conviction

can "be inferred from the facts and circumstances of the case."

Ianelli v. United States, 420 U.S. 770, 778 n.10 (1975). "[T]he

agreement may be express or tacit and may be proved by direct or

circumstantial evidence." United States v. Escobar-de Jesus, 187

F.3d 148, 175 (1st Cir. 1999). Moreover, although DiBella may

have been afraid of Freeman, "a generalized fear of harm" is no

defense to a conspiracy charge. United States v. Alzanki, 54

F.3d 994, 1003 (1st Cir. 1995). Evidence precluding the

inference of an agreement would have to show that the duress to

which DiBella was subject was "enough to overbear [his] will and

make his participation in the conspiracy involuntary." Slater

v. United States, 562 F.2d 58, 62 (1st Cir. 1976). While there

is some evidence that Freeman acted in a generally threatening

manner toward DiBella, a reasonable trier of fact could have

found that the threats were not so coercive as to "overbear"

DiBella's will. DiBella was a seasoned businessman7 and the

owner of a controversial adult entertainment business, as well

as an admitted felon who pled guilty to lying on his federal

income taxes for many years. A reasonable trier of fact may

well have questioned DiBella's credibility and doubted whether

7
DiBella also owned a fruit distributorship that specialized
in, among other things, bananas.

-23-
DiBella could have been easily scared into making payoffs to

Freeman without getting anything in return. Alternatively, the

jury might have concluded that DiBella testified as he did in a

self-serving attempt to deny his own participation in the

alleged conspiracy.

Despite Freeman's entreaties, our conclusion upholding

the trial court's denial of Freeman's motion for a judgment of

acquittal on the conspiracy charge is not altered by the fact

that the trial court simultaneously concluded that the

government produced insufficient evidence of a conspiracy to

invoke the hearsay exception for statements made by a

coconspirator. Federal Rule of Evidence 801(d) provides in

relevant part that a "statement is not hearsay if . . . (2)

[t]he statement is offered against a party and is . . . (E) a

statement by a coconspirator of a party during the course and in

furtherance of the conspiracy." The rules further provide that

qualification for the Rule 801 hearsay exception is to be

"determined by the court." Fed. R. Evid. 104(a).

In United States v. Petrozziello, we specified that the

court, in making this determination, must adhere to the ordinary

civil standard of proof, allowing the testimony "if it is more

likely than not that the declarant and the defendant were

members of a conspiracy . . . and that the statement was in

-24-
furtherance of the conspiracy," 548 F.2d 20, 23 (1st Cir.

1977); see also United States v. Portela, 167 F.3d 687, 702 n.13

(1st Cir. 1999). We have also stated that a trial court's own

evaluation of the evidence for the purposes of an evidentiary

ruling does not preclude it from concluding that the jury might

view the evidence differently. See United States v. Pitochelli,

830 F.2d 401, 403 (1st Cir. 1987).

Our trial system makes a sharp distinction between

functions: the judge is "not a thirteenth juror, much less [is]

he a super-juror whose views of credibility could override the

jury's verdict." Id. Accordingly, although in a Petrozziello

ruling the court can make credibility assessments and draw

inferences from the facts, it must take the evidence in the

light most favorable to the government in ruling on a motion for

a judgment of acquittal. It is not inconsistent for a court to

conclude, therefore, based on its own inferences and credibility

assessments, that it is more likely than not that no conspiracy

existed, while, at the same time, concluding that the evidence,

viewed in the light most favorable to the government, would

permit a rational juror to find the defendant guilty beyond a

reasonable doubt.

For all of these reasons, we conclude that the trial

court did not err in denying Freeman's motion for a judgment of

-25-
acquittal on the conspiracy charges. The court properly

submitted that charge to the jury.8

B. The Statements of a Coconspirator

As an additional argument for a mistrial, Freeman

contends that the court erred in allowing "hearsay testimony in

support of an existing conspiracy," and that this error

8
Despite these rulings, the court remained concerned about
the closeness of the conspiracy/extortion issue. It therefore
took special care in its jury instructions to distinguish
extortion, which was not charged, from the conspiracy charge at
issue in this case:

[T]here's some evidence here, if you believe
it, evidence of a shakedown. Squeezing
money out of people. But that's not one of
the crimes charged here. That's a crime.
That's extortion. But that's not one of the
crimes charged here.

. . . .

[L]et's suppose you believe that Mr. Freeman
was shaking down Mr. DiBella; that he was
extorting money from him. Now, extortion is
when someone pays money under a fear that if
they do not pay the money that something
will be done to them. If you believe
evidence that the conduct here took place
and the payments took place, and they took
place because if they were not taking place,
given Mr. Freeman's conduct, what was going
on in Mr. DiBella's mind was that Mr.
Freeman would trump up a charge, he would
fabricate a charge, and that would injure
the business. That's not the conspiracy
that's being charged here.

-26-
"unfairly prejudiced Mr. Freeman with respect to the witness

tampering charges." Before the trial court made its

Petrozziello ruling, it had provisionally admitted the hearsay

testimony of Deborah Drew. This approach is consistent with the

law of this circuit which provides that "[h]earsay evidence may

be admitted provisionally, subject to the trial court's final

Petrozziello determination, which should be made 'at the close

of all the evidence.'" Portela, 167 F.3d at 702-03 (quoting

United States v. Ciampaglia, 628 F.2d 632, 638 (1st Cir. 1980)).

When a court ultimately concludes that hearsay evidence

provisionally admitted does not meet the Petrozziello standards,

the court must "give a cautionary instruction to the jury, or,

upon an appropriate motion, declare a mistrial if the

instruction will not suffice to cure any prejudice."

Ciampaglia, 628 F.2d at 638. The court gave a cautionary

instruction. We conclude that it sufficed to cure the effect of

Drew's hearsay testimony.

Deborah Drew testified that DiBella told her that he

provided free alcohol to police officers to prevent the police

from "causing beefs" for the club, and that DiBella instructed

her to contact the local police rather than the state police if

there were any licensing violation problems. Later in the

trial, after DiBella testified that there was no agreement with

-27-
Freeman, the court became more reluctant to admit hearsay

statements made by DiBella under the coconspirator exception.

The court sustained objections to Philip Freeman, the

defendant's brother, and to Amy Clarke, testifying to out-of-

court statements made by DiBella. The prosecution protested the

ruling with respect to Amy Clarke, prompting an admonition from

the court:

Understand that by pressing this, even if
there is sufficient evidence to get to the
jury on conspiracy under [Fed. R. Evid.]
104(a), I have to be persuaded by a fair
preponderance of the evidence that there was
a conspiracy. That's a different standard.
It's not a standard that gives you all the
breaks. It's the standard do I think these
people were conspiring. If I do, fine. But
if I don't we have to strike it out. Since
you cannot unring the bell, what we're faced
with is a motion for mistrial . . . .

Following this admonition, the government abandoned its strategy

of questioning Clarke about DiBella's statements. As it turned

out, that was a wise decision by the government because it meant

that, other than the testimony of Drew, no hearsay testimony was

provisionally admitted under the hearsay exception for

statements of a coconspirator.

As the government's case in chief came to a close, the

court made its Petrozziello ruling: "[T]he Court is not

persuaded by a fair preponderance of the evidence, as I make

findings of preliminary fact, that at any time there existed a

-28-
conspiracy between Mr. Freeman and Mr. DiBella. That requires

me to strike so much of the testimony of Ms. Drew as recounted

things that Mr. DiBella had to say." The trial court then

instructed the jury:

I let you hear what Ms. Drew had to say
about what Mr. DiBella said to her about
certain things. And now having thought
about it, and it's my responsibility, I must
strike out that part of the testimony. What
Ms. Drew said the older DiBella said to her,
that's just out of the case. . . . Disregard
it.

Striking the evidence and issuing this curative instruction were

sufficient to shield Freeman from prejudice caused by the

provisional admission of Drew's hearsay testimony. Jurors are

presumed to follow the court's instructions. See United States

v. Magana, 127 F.3d 1, 6 (1st Cir. 1997). Even assuming that

the jurors wrongly considered the stricken testimony, Drew's

hearsay testimony had scant relevance to the witness tampering

charges of which Freeman was convicted, and their provisional

admission was not likely to have had any significant prejudicial

impact on the jury's evaluation of the witness tampering

charges. Moreover, Drew's brief hearsay testimony occurred in

a trial that lasted seven days.

Given the minimal hearsay testimony provisionally

admitted under the coconspirator exception, the peripheral

impact, if any, of such testimony on the witness tampering

-29-
offenses of which Freeman was convicted, and the trial court's

clear instructions to the jury to disregard the testimony, we

conclude that the trial court did not abuse its discretion in

denying Freeman's request for a mistrial on the basis of this

provisionally admitted hearsay testimony.

C. The Spillover Effect

In urging this third ground for a mistrial, Freeman

laments that "by the close of evidence, the government had

characterized [him] as a drunk, a violent man, a shakedown

artist, a philanderer, an adulterer, and a rouge [sic] cop, and

an all-around low life," and he complains that "the conspiracy

charge was the vehicle for the admission of this evidence."

Since we have concluded that the conspiracy charge was properly

submitted to the jury, it follows that the jury was entitled to

hear the evidence relevant to that charge. The evidence of

Freeman's "bad acts" at the Golden Banana--excessive drinking,

invading the dancers' dressing room, erupting in fits of

violence--was relevant to the conspiracy charge because it

showed that Freeman received special treatment at the nightclub:

that is, that DiBella and his employees allowed Freeman to

behave in a manner that would never have been tolerated if

Freeman were an ordinary patron. That was the object of the

unlawful agreement for which Freeman was charged--i.e., to

-30-
receive things of value, including special treatment at the

nightclub, in exchange for favors provided to DiBella.

We acknowledge that the "bad acts" evidence admitted

for its relevance to the conspiracy charge may have had a

spillover effect on the witness tampering charges. This

potential exists whenever multiple counts or defendants are

joined in a single trial. Because the witness tampering

offenses grew out of an attempt to cover up the conspiracy

scheme, however, there is no doubt that the two offenses were

properly joined. See, e.g., United States v. Davis, 752 F.2d

963, 972 (5th Cir. 1985) (finding joinder proper where "the

coverup attempts bear a logical relationship to underlying . .

. crimes").9 While we have acknowledged that "[t]here is always

some prejudice in any trial where more than one offense or

offender are tried together," United States v. Boylan, 898 F.2d

230, 246 (1st Cir. 1990); see also United States v. Turoff, 853

F.2d 1037, 1043 (2d Cir. 1988), the possibility that a jury may

think worse of the defendant because multiple related offenses

are tried together is not, standing alone, grounds for a

mistrial, see, e.g., United States v. Fagan, 821 F.2d 1002,

1007 (5th Cir. 1987).

9
We note that Freeman neither opposed joinder nor moved to
sever the conspiracy and witness tampering counts.

-31-
 Also, and importantly, much of the "bad acts" evidence

admitted for its relevance to the conspiracy charge was also

admissible to show a motive for witness tampering. Although

evidence of a defendant's bad acts may not be used "to prove

character of a person in order to show action in conformity

therewith," it may be "admissible for other purposes, such as

proof of motive." Fed. R. Evid. 404(b). The evidence of

Freeman's bad conduct at the Golden Banana was relevant to show

that Freeman was aware of the criminal nature of his underlying

conduct--whether characterized as conspiracy or extortion--which

created a motive for witness tampering. See, e.g., United

States v. Romero, 54 F.3d 56, 60 (2d Cir. 1995) (evidence

relating to narcotics charges admissible to show motive to

murder a government witness); Fagan, 821 F.2d at 1007 (evidence

of mail fraud admissible to show motive for witness tampering).

Indeed, Freeman's erratic and sometimes violent behavior

provides the context for understanding why Amy Clarke felt

threatened and intimidated by Freeman.

Finally, any prejudicial impact from the evidence of

Freeman's conduct at the Golden Banana was mitigated by the

court's clear instructions to the jury:

It is not a crime for him to go to a strip
joint. It is not a crime for him to flirt
with the strippers, whatever you may think
of that. Nor is it a crime for him to

-32-
 drink, even to drink to excess. It is not a
crime for him to go into the dancers'
dressing room and act like a bo[o]r.
Whatever you think of that, that is not a
crime.

The court further emphasized that Freeman was not to be judged

on any of his underlying conduct, and that "he's to be judged

only on" the conspiracy and witness tampering charges.

We have held that "within wide margins, the potential

for prejudice . . . can be satisfactorily dispelled by

appropriate curative instructions." Sepulveda, 15 F.3d at 1184.

"Jurors are presumed to follow such instructions, except in

extreme cases." Magana, 127 F.3d at 6. Here, the trial court's

instructions were adequate to safeguard Freeman from any

substantial prejudice. Indeed, the jury demonstrated its

ability to distinguish among the various counts and offenses by

acquitting Freeman of conspiracy and one count of witness

tampering and convicting him of the remaining two witness

tampering counts. See McNatt, 842 F.2d at 566 ("The fact that

the jury distinguished between different charges . . . is strong

evidence that the jury actually followed the instruction.");

United States v. Porter, 764 F.2d 1, 13 (1st Cir. 1985)

(discriminating verdict indicated that the jurors were able to

follow the court's instructions and discern among the various

defendants and charges).

-33-
 Simply put, upon reviewing the totality of the

circumstances, we are unable to find that Freeman suffered any

substantial prejudice in his defense to the witness tampering

charges. The trial court did not abuse its discretion by

denying Freeman's motion for a mistrial.

Affirmed.

-34-