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.
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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).
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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.
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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.
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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
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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.
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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
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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
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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."
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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
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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.
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"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
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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
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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
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. . . 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
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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
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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.
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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
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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.
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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
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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
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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.
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"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
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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
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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
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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
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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.
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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
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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).
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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.
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