United States Court of Appeals
For the First Circuit
Nos. 06-1274, 06-2390, 06-2391, 06-2392, 06-2569, 07-1086
UNITED STATES OF AMERICA,
Appellee,
v.
PAUL A. DECOLOGERO; JOHN P. DECOLOGERO, JR.; PAUL J. DECOLOGERO;
JOSEPH F. PAVONE,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Lynch, Chief Judge,
Merritt,* Senior Circuit Judge,
and Howard, Circuit Judge.
Alexander Bunin for appellant Paul A. DeCologero.
Mark W. Shea with whom Jean C. LaRocque and Shea, LaRocque &
Wood, LLP were on brief for appellant John P. DeCologero, Jr.
Jeanne M. Kempthorne with whom Doug Cannon and Law Office of
Jeanne M. Kempthorne were on brief for appellant Paul J.
DeCologero.
Raymond Mansolillo for appellant Joseph F. Pavone.
Kirby A. Heller, Attorney, Criminal Division, United States
Department of Justice, with whom Michael J. Sullivan, United States
Attorney, Timothy Q. Feeley, Assistant United States Attorney, and
Christopher F. Bator, Assistant United States Attorney, were on
*
Of the Sixth Circuit, sitting by designation.
brief for appellee.
June 23, 2008
LYNCH, Chief Judge. Paul A. DeCologero ("Paul A."), his
nephews Paul J. DeCologero ("Paul J.") and John P. DeCologero, Jr.
("John Jr."), and their friend Joseph F. Pavone appeal their
assorted RICO,1 robbery, drug dealing, witness tampering, firearms,
and related conspiracy convictions. After a thirty-nine day trial
on eighteen counts, each defendant was found guilty on some and
acquitted on other of the charges. Each now raises multiple claims
on appeal regarding the management of the trial, evidentiary
rulings, the sufficiency of the evidence against them, and other
discrete matters.
We affirm the convictions and also reject John Jr.'s
sentencing appeal.
I.
Because three of the defendants question the sufficiency
of the evidence behind their convictions, we relate the facts in
the light most favorable to the verdict. United States v. Soto-
Beníquez, 356 F.3d 1, 14 (1st Cir. 2004). We trace the general
contours of the case here and leave further recounting for the
analysis of particular arguments.
Paul A. ran a criminal enterprise (the "DeCologero crew")
based out of a gym he operated in Woburn, Massachusetts. Paul J.,
John Jr., Pavone, and other associates assisted Paul A. in his
1
Racketeer Influenced and Corrupt Organizations Act, 18
U.S.C. § 1961 et seq.
-3-
efforts to control a portion of Boston's drug trade. Part of the
crew's modus operandi was to beat up and to steal drugs and cash
from other drug dealers. Aislin Silva, a young woman who was a
friend of crew member Stephen DiCenso, was murdered and dismembered
in an effort to protect the crew's activities.
Each defendant was convicted of conspiracy to engage in
a pattern of racketeering activity, 18 U.S.C. § 1962(d), as well as
the substantive offense of engaging in a pattern of racketeering
activity, 18 U.S.C. § 1962(c). These convictions required that
each defendant be found to have committed at least two predicate
racketeering acts, which could be either state or federal crimes.
A table of the counts and racketeering acts is provided in the
appendix. We summarize the racketeering acts for which at least
some of the defendants were convicted.
A. Soccorso Robbery - 19952
In 1995, Paul A. sent John Jr. and Thomas Regan to the
house of Philip Soccorso, a marijuana dealer, to steal drugs from
him. Regan tricked Soccorso into leaving his house and then forced
him into their car at gun point. When Soccorso refused to disclose
the location of his drugs, Regan and John Jr. drove to Paul A.'s
house to pick him up and, as Regan recounted, Paul A. "read
[Soccorso] the riot act" about dealing drugs in Paul A.'s
2
There was conflicting testimony about the exact date of
this criminal episode, but it appears to have occurred at some
point in 1995.
-4-
territory. To add emphasis, John Jr. hit Soccorso with a handgun.
Eventually Soccorso told them that his supplier, Gary Ramus, who
was back at Soccorso's house, might have some drugs. They returned
to the house, and Regan forced Ramus into the car at gunpoint.3
After some more haranguing (also at gunpoint), Soccorso and Ramus
agreed to give Paul A. the marijuana stashed at Soccorso's house.
Regan, Ramus, and Soccorso testified for the government
at trial. The jury found that Paul A. and John Jr. had committed
the racketeering acts of armed robbery, the kidnaping of Soccorso
and Ramus, and possession of marijuana with intent to distribute.
B. Pesaturo Robbery - November 1995
Around November 1995, Paul A. agreed with Regan that
Richie Pesaturo, another drug dealer, needed to be taught a lesson
because he owed Regan money and had been "running his mouth" about
the crew. On Paul A.'s orders, Regan, Paul J., and John Jr. went
to Pesaturo's apartment, where John Jr. and Regan beat Pesaturo and
Regan "read[] him the riot act." The three crew members then
ransacked the apartment until they found Pesaturo's cocaine supply
and $11,000. Before leaving, the three men bound Pesaturo and his
roommate Richard Bentley, who had returned home during the course
of the robbery, with duct tape. They then went to Paul A.'s place
to divide up the proceeds.
3
This is Regan's version of the order of events. Soccorso
and Ramus testified that Paul A. was picked up after Ramus was
forced into the car.
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Regan and Bentley testified at trial about this robbery
and beating. The jury found that Paul A., John Jr., and Paul J.
had committed the racketeering acts of robbery under the Hobbs
Act,4 the kidnaping of Pesaturo and Bentley, and possession of
cocaine with intent to distribute.
C. Finethy Extortion - January/February 1996
In January or February 1996, Paul A. sent John Jr. and
Pavone to the house of Shane Finethy, who sold marijuana on Paul
A.'s behalf. Finethy had kept $8000 in proceeds from drug sales
without Paul A.'s permission, using it for a down payment on a
house, and had failed to pay Paul A. back. Upon arrival, John Jr.
realized that Finethy had sold the house in question and was
preparing to move. John Jr. became angry, and he and Pavone hit
Finethy until his face was covered with blood; after Finethy's wife
and baby came into the room, Finethy left the house and John Jr.
and Pavone followed. Out on the street, they attempted to force
Finethy into their car, with John Jr. threatening Finethy at
gunpoint. The arrival of a police cruiser broke up the scene, and
Finethy returned to his house.
4
See 18 U.S.C. § 1951(a) ("Whoever in any way or degree
obstructs, delays or affects commerce or the movement of any
article or commodity in commerce, by robbery or extortion or
attempts or conspires so to do, or commits or threatens physical
violence to any person or property in furtherance of a plan or
purpose to do anything in violation of this section shall be fined
. . . or imprisoned . . . .").
-6-
Finethy and his wife testified at trial, and the jury
found that Paul A., John Jr., and Pavone had committed the
racketeering act of extortion.
D. Sapochetti Robbery - October 1996
In the fall of 1996, Kevin Meuse and Derek Capozzi were
released from jail and joined the DeCologero crew. That October,
the crew planned to rob and kill Albert "Big Al" Sapochetti, a
bookmaker and drug dealer. With Paul A.'s agreement, John Jr. and
Meuse robbed Sapochetti at gunpoint and beat him, leaving him, his
neighbor, and his girlfriend hog tied with duct tape and wires.
John Jr. and Meuse threatened to return for more money and told
Sapochetti they were sparing his life because of his girlfriend's
presence.
Sapochetti's girlfriend testified at trial. In addition
to finding that Paul A. and John Jr. had committed the racketeering
acts of kidnaping all three victims, the jury also convicted them
of using or carrying a firearm, or aiding and abetting such use,
during the commission of a violent crime. The government alleged
that Paul J. participated in this robbery as well, but the jury
found his participation not proved.
E. Stevens Robbery - October 1996
Also in October 1996, the crew targeted Michael "Slim"
Stevens, who was selling marijuana in Paul A.'s territory. Paul A.
gave guns to Regan, Capozzi, and Meuse and sent them with Stephen
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DiCenso, another member of the DeCologero crew, to Stevens's
townhouse. Regan and Capozzi beat Stevens and threatened to cut
off his ear with a knife. Stevens eventually turned over what
money he had and led Regan and Capozzi to a stash of marijuana.
Before leaving, Regan and Capozzi tied up Stevens, his girlfriend,
and another friend of Stevens who had arrived during the robbery.
Stevens, his girlfriend, Regan, and DiCenso testified
about this incident at trial. The jury convicted Paul A. of
robbery under the Hobbs Act, possession of marijuana with the
intent to distribute, and aiding and abetting the use of a firearm
during the commission of a violent crime. These crimes, along with
armed robbery and kidnaping, were also proved as to Paul A. as
racketeering acts under RICO.
F. North Burglary - October 1996
The crew also burgled the home of Jeffrey North, another
marijuana dealer, that same October. When DiCenso told Paul A.
that North was in jail pending bail, Paul A. sent DiCenso, Paul J.,
and Regan to burgle North's apartment. DiCenso broke into the
apartment and, with the help of the others, found a cache of
weapons, two safes, night vision goggles, and about ten pounds of
marijuana.5 The burglars packed most of the goods into duffel bags
5
DiCenso testified that all three men were inside North's
apartment. Regan, however, testified that only he and DiCenso went
inside the apartment. Paul J.'s father, John P. DeCologero, Sr.,
also testified that his son had told him that he had remained
outside the apartment.
-8-
and heaved the safes over the balcony of the apartment to the yard
below. They then loaded "the bags, a box of grenades, and the
safes" into a car and returned to Paul A.'s house. There Meuse
pried open the safes in the presence of the others. The safes
contained various firearms, including two MAC-11s (submachine
gun/pistol), an Uzi (submachine gun), and another machine gun with
a silencer, as well as money and more drugs.6 Paul A. gave most of
the guns to DiCenso to store in the home of Aislin Silva, a
nineteen-year-old woman who permitted her friend DiCenso to keep
drugs in her apartment on behalf of the crew.
In connection with this burglary, Paul A. and Paul J.
were found guilty of conspiracy to possess marijuana with intent to
distribute, which the jury also found to be a racketeering act, and
of being felons in possession of a firearm.
G. Silva Witness Tampering and Murder - November 1996
Paul A. went to Silva's apartment later that month with
DiCenso and Vincent Marino (a.k.a. Gigi Portalla) to show Marino
the guns. On November 5, when DiCenso and Paul J. returned to
Silva's apartment on Paul A.'s instructions to pick up some of the
guns, they found the police, who had received a tip about the guns,
6
DiCenso testified that other guns obtained in the North
robbery included an AK-47 (assault rifle), an AR-15 (semi-automatic
rifle), and a Desert Eagle (semi-automatic pistol), as well as some
handguns. Regan put the number of weapons removed from the
apartment, other than those in the safes, at six to eight rifles in
addition to a box of hand grenades.
-9-
already there. When DiCenso and Paul J. entered the apartment, the
guns were in plain view on the floor and the police were
questioning Silva; they questioned Paul J. and DiCenso as well and
then allowed them to leave.
DiCenso and Paul J. reported back to Paul A. and the crew
-- Pavone, Meuse, Regan, Capozzi, and John P. DeCologero, Sr.
("John Sr."), the father of John Jr. and Paul J. -- who were
gathered at Pavone's house. Paul A. instructed Pavone and Meuse to
rent a motel room and sent DiCenso and Capozzi to pick up Silva.
Also on Paul A.'s instructions, DiCenso stayed with Silva for the
next two nights in different motel rooms. On November 7, another
meeting was held at Pavone's house with Silva present. DiCenso
testified that he, Capozzi, Meuse, Pavone, and Paul A. were there,
though he could not remember at what point Pavone arrived. Paul A.
told Silva that their "attorneys were out of town, but they would
take care of everything," and that in the meantime, Paul A. would
arrange for Silva to be taken on a shopping spree in New York City,
accompanied by DiCenso. Pavone drove DiCenso and Silva to New York
that night in a limousine that Paul A. had borrowed from an
associate, Anthony ("Tony") Bucci. Pavone returned to Boston while
DiCenso and Silva spent five nights in New York City.
When DiCenso and Silva returned to Boston on November 12,
they went to Pavone's house, where the others were gathered.
There, DiCenso, Paul A., and Meuse spoke privately in the kitchen.
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DiCenso told Paul A. that he did not think Silva would "hold up"
under police questioning, to which Paul A. responded, "She has to
be killed." Paul A.'s first plan was for DiCenso to give Silva
some high-grade heroin, telling her it was "really good cocaine";
DiCenso was then to wait until Silva was dead before calling 911 to
report the overdose. If Silva did not ingest sufficient heroin to
cause a fatal overdose, Meuse was to blow more of it up her nose.
To this end, Paul A. sent Paul J. to Antonio Centeno, a heroin
dealer in Lowell. Centeno testified that Paul J. asked him for
heroin "strong enough for an overdose" and that he sold Paul J.
thirty bags of heroin. Although Silva did ingest some of this
heroin, it did not have its intended effect. Moving to a new plan,
Paul A. told Meuse to kill her.
The morning of November 13, Meuse arrived at DiCenso's
apartment, where Silva was staying, and sent DiCenso to the
hardware store to buy a hacksaw and sheet metal cutters. When
DiCenso returned, Silva was dead, and Meuse told DiCenso he had
broken her neck. Capozzi arrived to help, and the three men
dismembered Silva's body in the bathtub and packed her remains into
trash bags. They drove north, stopping at a Home Depot to purchase
lime and a shovel, and buried Silva's remains in the woods along
the North Shore. They then disposed of the remaining evidence in
a dumpster in Danvers, washed the car, and stopped at a department
store to buy three pairs of sneakers and three sweatsuits.
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DiCenso testified to the details of the murder described
above at trial; his testimony was supported by physical evidence
recovered by the police. Paul A., Paul J., and Pavone were all
convicted of conspiracy to tamper with a witness and tampering with
a witness by misleading conduct; Paul A. and Paul J. were also
convicted of tampering with a witness by attempted murder, and Paul
A. was convicted of tampering with a witness by murder. These
crimes, along with the state-law crimes of murder, attempted
murder, and conspiracy to murder, were also found as racketeering
acts under the substantive RICO charge.
II.
Paul A., Paul J., John Jr., Pavone, John Sr., and Capozzi
were indicted by a federal grand jury in the District of
Massachusetts on October 17, 2001.7
Paul A. moved to dismiss the RICO charges against him on
double jeopardy grounds, an argument based on an earlier trial.
The motion was denied; the denial was appealed. In United States
7
On the government's motion, a seventh co-defendant,
Daniel Tsoukalas, was severed from the case and tried separately.
Shortly after Silva's murder, DiCenso and his friends
overdosed on the heroin originally intended to kill Silva. Two of
the friends died; DiCenso survived but suffered serious and
permanent injuries. Once the government was able to prove Dicenso
was still competent enough to stand trial, DiCenso agreed to plead
guilty and testified at this trial through the use of special
equipment.
Regan also agreed to testify for the government as part
of a plea agreement. Meuse hanged himself in 1997.
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v. DeCologero, 364 F.3d 12 (1st Cir. 2004), this court rejected
that appeal. We explain the background.
In an earlier trial, United States v. Carrozza, No. 4:97-
cr-40009-NMG (D. Mass. 1999), Paul A. was prosecuted for helping
the Carrozza faction of the Patriarca crime family undertake a
violent "war" between 1989 and 1994 in an attempt to wrest control
of that criminal organization from Frank Salemme's faction. See
United States v. Marino, 277 F.3d 11, 19-21 (1st Cir. 2002)
(describing the factual background of the Carrozza case). Paul A.
was acquitted of all charges in that case, and he argued in his
pre-trial motion in this case that the present indictment violated
his double jeopardy rights because it alleged the same conspiracy.
DeCologero, 364 F.3d at 16-17. The district court disagreed, and
on interlocutory appeal this court affirmed, holding that the two
cases dealt with different patterns of racketeering activity. Id.
at 19. That double jeopardy claim is renewed here based on the
evidence actually introduced at trial.
John Sr. pled guilty to a RICO charge on February 28,
2003, and testified for the government at trial. United States v.
Capozzi (Capozzi II), 486 F.3d 711, 714 (1st Cir. 2007). In July
2004, Capozzi moved to disqualify the attorneys for Paul A., Paul
J., and John Jr., arguing they had conflicts of interests. Id.
The attorneys for the three defendants then withdrew, and because
of the delay required for the new attorneys to prepare for trial,
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the district court, on the government's motion, severed Capozzi's
case so that his trial could begin as planned in September 2004.
Id. The court gave the remaining four defendants fifteen months to
prepare, with the present trial beginning on January 9, 2006. The
jury returned its verdict on March 20, 2006. The district court
sentenced Paul A. to life imprisonment, Paul J. to 25 years
imprisonment, John Jr. to 210 months imprisonment, and Pavone to 72
months imprisonment. This appeal followed.
III.
Because Paul J., John Jr., and Pavone raise similar and
overlapping issues on appeal, we consider their claims together.
A. Severance and Mistrial
Paul J., John Jr., and Pavone argue that the district
court abused its discretion in denying their motions, based on
several grounds, to sever their trial from that of Paul A. or to
declare a mistrial.8 Those grounds include Paul A.'s alleged
admission to being a gang leader, his odd behavior in the
courtroom, his responsibility for the heinous act of the murder of
Aislin Silva, and the risk of jury confusion. We find no abuse of
discretion.
8
The government asserts that John Jr. waived these
arguments because his attempt to incorporate the arguments of his
co-defendants under Federal Rule of Appellate Procedure 28(i) was
insufficient. We do not reach this or other waiver questions as we
do not find an abuse of discretion on the merits.
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1. Standard of Review
Trial judges' decisions regarding severance and mistrial
are treated with a considerable amount of deference because
appellate courts lack the "first-hand exposure to a case" that
better enables trial judges to "strike the delicate balance between
fending off prejudice, on the one hand, and husbanding judicial
resources, on the other hand." United States v. O'Bryant, 998 F.2d
21, 25-26 (1st Cir. 1993). Thus we review a district court's
denial of a motion for severance or motion for mistrial under the
same standard: manifest abuse of discretion. United States v.
Tejeda, 481 F.3d 44, 54 (1st Cir. 2007), cert. denied, 128 S. Ct.
612 (2007); United States v. Glenn, 389 F.3d 283, 287 (1st Cir.
2004).
The risks of prejudice and jury confusion in this case
were not negligible, but they were not uncommon either. By their
nature, RICO cases involve many defendants, sometimes with family
relationships, and often include multiple repulsive acts. There
are ways, with skillful trial management and diligent counsel, to
prevent these risks from growing into actual harm. Trial judges
"have broad power to cope with the complexities and contingencies
inherent in the adversary process." Geders v. United States, 425
U.S. 80, 86 (1976). The trial judge in this case was particularly
aware of and sensitive to the complexity of this case and the
possibility of jury confusion. DeCologero, 364 F.3d at 20. (An
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earlier case management order splitting off some of the charges
into a separate trial was vacated by this court to avoid double
jeopardy problems. Id. at 21-25.)
As to severance, "the general rule is that those indicted
together are tried together to prevent inconsistent verdicts and to
conserve judicial and prosecutorial resources." Soto-Beníquez, 356
F.3d at 29. The district court can, however, sever defendants'
trials or provide other relief if "there is a serious risk that a
joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment
about guilt or innocence." Zafiro v. United States, 506 U.S. 534,
539 (1993); see also Fed R. Crim. P. 14(a). If the district court
decides not to sever the trial, the defendant bears the burden of
making a strong showing that prejudice resulted from the denial of
severance, and prejudice in this context "means more than just a
better chance of acquittal at a separate trial." United States v.
Boylan, 898 F.2d 230, 246 (1st Cir. 1990) (quoting United States v.
Martinez, 479 F.2d 824, 828 (1st Cir. 1973)) (internal quotation
mark omitted); accord Zafiro, 506 U.S. at 540. "This is a
difficult battle for a defendant to win." Boylan, 898 F.2d at 246.
2. Severance Based on Antagonistic Defenses
Paul J., John Jr., and Pavone argue strenuously that as
the trial went on it became clear that Paul A.'s defense was
antagonistic to theirs. Antagonistic defenses can require
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severance when they are truly irreconcilable, or at least
substantially incompatible. Tejeda, 481 F.3d at 55; United States
v. Peña-Lora, 225 F.3d 17, 34 (1st Cir. 2000). "[W]here there is
merely some dissonance," however, "we will usually not reverse a
trial court's denial of severance." Tejeda, 481 F.3d at 55. Here,
the defenses were not truly irreconcilable, nor were they
substantially incompatible.
The other defendants characterize Paul A.'s testimony as
admitting that he ran a criminal enterprise during the time in
question. This, they say, was incompatible with their defense of
non-criminality. The record does not support their
characterization.
Paul A. testified that he had originally, back in the
1980s, delivered drugs on behalf of Whitey Bulger and Stephen
Flemmi, two infamous Boston-area organized crime bosses, but he
described his connection with them as minimal and explained that he
had refused to continue even in this minimal role after he served
his first term in prison (from 1984 to 1992). Paul A. asserted
that his refusal irked the mob leaders. His primary defense was
that Regan worked for what had become the Salemme faction of the
Patriarca Family and was thus motivated to testify falsely against
Paul A., setting him up to take the fall for crimes in fact
committed by Regan and other followers of Salemme.
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In developing this defense, Paul A. did bring up his
prior indictment in the Carrozza case, as well as the allegation
that the Carrozza and Salemme factions were at odds. In Paul A.'s
cross-examination of Regan, there were also some references to "the
DeCologero crew," but these were references to what others had
alleged, such as the language of the indictment. While this tack
might have muddied the waters for the jury, it did not (contrary to
his co-defendants' arguments) set Paul A. up before the jury as "an
open and notorious underworld figure."
Instead, the jury heard Paul A. flatly deny running a
criminal enterprise (the alleged DeCologero crew), insist that he
was not affiliated with any organized criminals, and explain
repeatedly that only his son (and, on rare occasion, his brother
John Sr.) assisted him in his drug deals after his release from
prison. While Paul A. admitted that he had continued some limited
drug dealing in the mid-1990s, he explained that he stopped such
activity once his side business selling high-protein muffins to
other gyms started doing well enough to meet his gym's operating
deficit. Paul A. admitted knowing Regan, DiCenso, and Meuse, but
he denied ever asking them for assistance in any criminal conduct.
The jury could accept Paul A.'s testimony that he was an
occasional drug dealer, and even that he was disliked and targeted
by mob leaders, while also accepting the other defendants' claims
that they had engaged in no criminal wrongdoing. Paul A. did not
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implicate the others, nor did his defense as presented to the jury,
if accepted, preclude acquittal of the others. There was no
substantial incompatibility.
3. Severance Based on "Spillover" Effects and
Mistrial Based on Paul A.'s Courtroom Antics
At the core, these three defendants argue that Paul A.'s
admitted criminality, the more severe crimes with which he was
charged, and his inappropriate courtroom behavior cast a pall over
all four defendants, prejudicing his co-defendants before the jury.
This tack also fails.
As Justice Jackson famously noted, co-defendants in a
conspiracy trial like this one occupy "an uneasy seat. There
generally will be evidence of wrongdoing by somebody. It is
difficult for the individual to make his own case stand on its own
merits in the minds of jurors who are ready to believe that birds
of a feather are flocked together." Krulewitch v. United States,
336 U.S. 440, 454 (1949) (Jackson, J., concurring). Such
uneasiness is inherent in joint RICO trials, and the unsavoriness
of one's co-defendant (including past criminal conduct) is not
enough, by itself, to mandate severance. Tejeda, 481 F.3d at 56.
Defendants must still make a strong showing of prejudice to
overturn the trial court's decision not to sever.
Paul J., John Jr., and Pavone have also not met that
burden with their argument that they suffered from a "spillover"
effect due to Paul A.'s prosecution for Aislin Silva's gruesome
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murder. While only Paul A. was on trial for the actual murder of
Silva, Paul J. and Pavone were charged with closely related crimes
(attempted murder and tampering with a witness) involving the same
victim. Further, all four men were convicted of RICO conspiracy,
and the scope of that conspiracy included protecting their criminal
enterprise by silencing witnesses like Silva. Thus even if some of
the defendants were not directly charged with Silva's murder, the
murder was still relevant to the RICO counts as it tended to prove
the existence and nature of the RICO enterprise and conspiracy.
See, e.g., United States v. Diaz, 176 F.3d 52, 103 (2d Cir. 1999).
As a result, even if the defendants had received separate trials,
evidence of the murder would have been independently admissible
against each, and it is far from clear that the potentially
prejudicial impact of that evidence would have rendered it
inadmissible under Federal Rule of Evidence 403. See Soto-
Beníquez, 356 F.3d at 29-30. This is why, "[i]n the context of
conspiracy, severance will rarely, if ever, be required" due to
evidentiary spillover. United States v. DeLuca, 137 F.3d 24, 36
(1st Cir. 1998) (quoting United States v. Flores-Rivera, 56 F.3d
319, 325 (1st Cir. 1995)) (internal quotation marks omitted).
The defendants' fear of being found guilty by association
with Paul A. has a third aspect: his distracting courtroom
behavior. Paul A.'s testimony was often unresponsive or
tangential, provoking repeated objections from the prosecution and
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rebukes from the bench. During the prosecution's case, the judge
admonished Paul A. for interfering with the work of his defense
counsel, warning that his disruptive behavior was hurting rather
than helping him in the eyes of the jury. Generally, however, if
"a defendant misbehaves in the jury's presence, the misbehavior
usually will not compel a separate trial for his codefendants";
rather, the co-defendant seeking severance or mistrial must
"demonstrate the existence of some special prejudice" that the
court could not remedy through other means. United States v.
Pierro, 32 F.3d 611, 616 (1st Cir. 1994). If the rule were
otherwise, co-defendants could provoke mistrials at will. United
States v. Tashjian, 660 F.2d 829, 838 (1st Cir. 1981).
Paul A.'s co-defendants do not point to any specific
prejudice, asserting more generally that they "were prejudiced by
his conduct and the court's inability to rein him in." Nor do they
provide any case law to support their argument that such behavior
warrants a mistrial. Rather, under the case law, Paul A.'s conduct
is not comparable to the severity of other co-defendant outbursts
analyzed in prior cases in which we upheld denials of severance
motions. See United States v. Mazza, 792 F.2d 1210, 1224 (1st Cir.
1986) (no abuse of discretion in refusal to sever even though co-
defendant shouted in middle of witness testimony, "He is lying. I
got shot for you, you mother piece of shit. This is my pay
back."); Tashjian, 660 F.2d at 837 (no abuse of discretion in
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denial of mistrial even though defendant threatened a witness in
front of the jury and yelled that his co-defendants were in the
mafia). Paul A.'s unruly behavior in the courtroom was
unfortunate, but his co-defendants have not made a sufficient
showing of prejudice.
Paul A.'s conduct also did not go unchecked by the
district court. The court, outside the presence of the jury, told
Paul A. to change his behavior, and this had at least some effect
on him. For example, before Paul A. began his second day of
testimony, the court warned him -- again outside the presence of
the jury -- that:
[T]his is not fun and games. . . .
This is a court of law, and there are rules .
. . . [Y]ou will answer only the questions
that are put to you and not blurt out a whole
bunch of other stuff.
I do believe that you are doing that on
purpose.
Number one, it doesn't help you. You
may wish to look at the jury at times, and you
will see that they are not buying it; and,
number two, it is improper and inappropriate
for you to do that.
It is important for you that the story
be told in some reasonably coherent fashion,
and you're making it impossible for the story
to be told in a coherent fashion; apart from
which you are violating the orders of the
Court every time you go off on a frolic of
your own. So stop doing that. If you don't
stop doing it, I will need to take further
steps.
-22-
Paul A.'s subsequent testimony, though still subject to objections
and occasional reprimands, was more restrained.9
4. Severance Based on Jury Confusion
In another line of arguments, Paul J., John Jr., and
Pavone assert that severance was warranted because of Paul A.'s
much greater degree of culpability, the number of crimes for which
only Paul A. was on trial, and the similarity of the defendants'
names. All of these factors, defendants argue, could easily lead
to jury confusion, a type of prejudice that can be grounds for
severance. See United States v. Rodriguez-Marrero, 390 F.3d 1, 26
(1st Cir. 2004). Again, we cannot say that the district court
abused its discretion.
It is true that "markedly different degrees of
culpability" among co-defendants can "heighten[]" the risk of
prejudice. Zafiro, 506 U.S. at 539. But again, disparity between
the relative culpability of co-defendants does not entitle a
defendant to severance. Soto-Beníquez, 356 F.3d at 30; United
States v. Welch, 15 F.3d 1202, 1210 (1st Cir. 1993). Prejudice
must be shown, and "[e]ven where large amounts of testimony are
irrelevant to one defendant, or where one defendant's involvement
9
Defendants also accuse the trial court of refusing to
consider their motions for mistrial, and they cite to one instance
where the judge denied a mistrial motion on the spot. This
argument is off the mark: an instantaneous ruling does not mean
that a judge has refused to exercise her discretion. A trial judge
immersed in a case is quite capable of ruling on in-court motions
quickly, even immediately.
-23-
. . . is far less than the involvement of others, we have been
reluctant to secondguess severance denials." Boylan, 898 F.2d at
246.
Further, such disparity is not uncommon in RICO cases,
nor is it unusual in such cases for a co-defendant to be charged
with only a subset of the crimes alleged in the indictment. In
Flores-Rivera, for example, this court found no abuse of discretion
in the denial of severance for a defendant "named in less than ten
percent of all overt acts charged in the indictment." 56 F.3d at
325; see also United States v. Welch, 97 F.3d 142, 147 (6th Cir.
1996) (no abuse of discretion in denial of severance even though
defendant was only charged with three of the twenty-nine counts of
the indictment). The RICO counts, of which all defendants were
charged and all were convicted, provided the logical scope and
overarching unity for the indictment. See, e.g., United States v.
Turkette, 656 F.2d 5, 9 (1st Cir. 1981).
As for the defendants' similar names, defendants appear
to assume that the similarities resulted in jury confusion. We
cannot make such an assumption, especially as the jury spent two
months in the same room with these defendants and their distinct
personalities. See United States v. Castillo, 77 F.3d 1480, 1491
n.20 (5th Cir. 1996) (dismissing defendants' arguments of jury
confusion in trial involving a Thomas Brown, Sr., and a Thomas
Brown, Jr., in addition to three other defendants who shared the
-24-
last name of Castillo). The defendants here have failed to
demonstrate any prejudice greater than the "possible risk of
prejudice that almost always exists when multiple defendants with
different roles are tried together." United States v. Cresta, 825
F.2d 538, 554-55 (1st Cir. 1987).
Two additional factors cut against the defendants' jury
confusion argument. First, the district court noted to the jury at
the outset of the trial that the jury must be careful to consider
each defendant separately, a point repeated several times during
the jury instructions at the trial's close. See, e.g., Zafiro, 506
U.S. at 540-41 (noting that proper jury instructions can alleviate
risk of prejudice).
Second, and more tellingly, the jury returned highly
individualized verdicts: there were some charges for which the jury
acquitted all defendants, and others for which the jury convicted
some defendants while acquitting others. Even within some of the
charged racketeering acts under the substantive RICO count, the
jury found some but not all of the individual, closely related
predicate acts proved. See Appendix. These were not the verdicts
of a jury confused about the identity and culpability of the
individual defendants. See United States v. Houle, 237 F.3d 71, 75
(1st Cir. 2001) ("With regard to the jury's ability to segregate
the evidence and understand the judge's instructions, the verdict
itself is often quite telling. . . . This discriminating verdict
-25-
shows that the jury was able to compartmentalize evidence and apply
it to each defendant . . . ."); Boylan, 898 F.2d at 246; Turkette,
656 F.2d at 9. Given the considerable discretion a district court
has to decide a motion for severance or mistrial, these additional
factors further indicate that the district court did not abuse that
discretion. In sum, we will not second guess the court's decision
without a greater showing of prejudice. See United States v.
DeLeon, 187 F.3d 60, 63-64 (1st Cir. 1999).
B. Judge's Trial Demeanor
Paul J., John Jr., and Pavone next argue that the
district court judge's criticisms of their counsel in the presence
of the jury deprived them of a fair trial. With allegations of
judicial bias, we consider whether the comments were improper and,
if so, whether the complaining party can show serious prejudice.
Owens v. United States, 483 F.3d 48, 66 (1st Cir. 2007). "Charges
of partiality should be judged not on an isolated comment or two,
but on the record as a whole." United States v. Polito, 856 F.2d
414, 418 (1st Cir. 1988); accord United States v. Candelaria-Silva,
166 F.3d 19, 35 (1st Cir. 1999). As the Supreme Court has noted in
the context of the recusal of judges, "judicial remarks during the
course of a trial that are critical or disapproving of, or even
hostile to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge. . . . A judge's ordinary
efforts at courtroom administration -- even a stern and short-
-26-
tempered judge's ordinary efforts at courtroom administration --
remain immune." Liteky v. United States, 510 U.S. 540, 555-56
(1994). This was a complex and lengthy trial, handled with skill
by a seasoned trial judge who did not let things get out of
control. The defendants have exaggerated; the record does not
support their claims. The comments of which defendants complain
were few (eleven comments spread over thirty-six days of
testimony), balanced, and reasonable in context.
Defendants first argue that the judge referred to their
objections as "picky" in front of the jury. During the
government's direct examination of DiCenso, defense counsel
repeatedly objected to leading questions, objections which the
court sustained. After the fourth sustained defense objection in
a brief stretch of questioning, the judge addressed the jury:
Let me explain, members of the jury. I told
you yesterday that leading questions in
general are a no-no when counsel conducted
direct examination, but you can also be too
picky about that. So, part of the reason that
I have not always sustained the objection is
because I thought at times it was a bit too
picky. There is a certain judgment call that
one has to make. However, at the moment, [the
prosecutor] is leading [DiCenso] rather too
much.
Immediately thereafter, the court ruled sua sponte that the
government was asking another leading question. The court's
"picky" comment had very little to do with the defense; if
anything, the court was reprimanding the government.
-27-
Defendants also accuse the court of unfair, sua sponte
rulings that defense questions were argumentative. The court was
even-handed: at times it raised sua sponte concerns about the
government's questioning. There was no preferential treatment.
Further, the rulings were correct. The court was trying, in this
difficult case, to keep the focus on the evidence.
We do not address additional exchanges regarding
objections, but we do note that the court emphasized in its final
instructions to the jury that it should not take into account the
exchanges between counsel and the bench regarding evidentiary
matters:
In the course of the trial, you have heard
many times when counsel rose to object. You
should not hold that against them or their
clients. It is their right to do that.
Indeed, it is their duty to do it. It's the
way in which counsel bring to the attention of
the Court when they think one or another of
what you now know are very complicated rules
are not being adhered to.
See Candelaria-Silva, 166 F.3d at 36 ("Assuming arguendo that the
trial court exhibited frustration from time to time during this
rather lengthy, heated trial, the strong instructions given by the
trial court . . . should have eliminated any conceivable
prejudice."); Logue v. Dore, 103 F.3d 1040, 1046-47 (1st Cir. 1997)
("jury instructions can be a means of allaying potential prejudice"
in this context). In sum, the court's treatment of objections
raised by both sides was even-handed and not unfair.
-28-
The three defendants also take issue with comments by the
court that, they argue, suggested they curtail their cross-
examination of witnesses. These comments, too, when taken in
context, were appropriate. Defendants do not argue, nor could
they, that the district court cut their cross-examination short at
any point. Instead, the court at times encouraged counsel to move
more rapidly after lengthy questioning about minimally relevant
information. We read a comment that counsel should limit his
cross-examination to "thirty seconds" as a reflection of the late
hour; the court dismissed the jury shortly thereafter, and when
questioning resumed the next day, the attorney -- who indeed had
very few questions -- was given all the time he needed, without
further comment. The same explanation holds for a similar incident
earlier in the trial, when the court asked defense counsel to try
to conclude cross-examination of a witness that day: the judge's
comment that some defense counsel might skip cross-examination
altogether might have been a light quip, a reference to the
imminent end of the trial day, or an acknowledgment that the
remaining counsel might have few or no questions for the witness --
indeed, one counsel did not have any questions, the other two had
very few, and no one's questioning was curtailed by the judge.
"Trial judges are justifiably accorded broad latitude to
ensure proper courtroom behavior." United States v. Rodríguez-
Rivera, 473 F.3d 21, 27 (1st Cir. 2007) (quoting United States v.
-29-
Gomes, 177 F.3d 76, 80 (1st Cir. 1999)) (internal quotation marks
omitted). Even if such comments could be read as rebukes, a judge,
in managing a trial, may rebuke counsel for inappropriate behavior
and may reasonably limit cross-examination. Id.; see also Boylan,
898 F.2d at 254. The comments of concern here were appropriate
exercises of the court's responsibilities to manage the trial. As
the comments were not improper, we do not reach the question of
prejudice.
C. Evidentiary Rulings
1. Testimonial Exclusions
Paul J., John Jr., and Pavone argue that several of the
trial court's evidentiary rulings were in error and were
prejudicial. We review the district court's interpretation of the
rules of evidence de novo, but we review the court's application of
those rules for abuse of discretion. United States v. Muñoz-
Franco, 487 F.3d 25, 34 (1st Cir. 2007). We start with their
objections to the court's exclusion of certain testimony.
a. Hearsay. Defendants object that the court
excluded as hearsay statements which were not. The hearsay rule
applies to out-of-court statements "offered in evidence to prove
the truth of the matter asserted." Fed. R. Evid. 801(c). However,
"[i]f the significance of an offered statement lies solely in the
fact that it was made, no issue is raised as to the truth of
anything asserted, and the statement is not hearsay." Fed. R.
-30-
Evid. 801(c) advisory committee's note. Defendants argue that two
conversations that allegedly occurred at Paul A.'s gym fall into
this latter category. The district court's rulings to the contrary
were not an abuse of discretion.
Paul A. attempted to introduce these gym conversations
through his own testimony and the testimony of his sister JoAnne
and a gym employee named Peter Ippolito.10 We summarize the
testimony that defendants desired to introduce. In the first
conversation, DiCenso and Silva allegedly came to Paul A. at his
gym to seek his help because the guns had been discovered in
Silva's apartment and because DiCenso was afraid of how Regan would
respond. Paul A., who claimed the guns were not his, asserted that
he got angry when he learned that DiCenso was storing the guns for
Bobby Luisi, a member of the Salemme faction; Paul A. yelled out
Luisi's name and told them, "Get out of here. Those people are
trying to kill me." In the end, Paul A. agreed to help DiCenso get
a lawyer and called Tony Bucci to request a limousine on their
behalf. In the second conversation, Meuse and Regan came to Paul
A. and, in a heated argument, told him to "stay out of their
business, that that business with Stephen DiCenso and Aislin Silva
was their business and had nothing to do with [Paul A.]."
10
Paul A. also objects to the district court's hearsay
rulings pertaining to these two conversations, and we incorporate
his arguments here.
-31-
The court allowed Ippolito to testify that DiCenso and
Silva came to the gym, that Paul A. got angry, and that Paul A.
yelled out someone's name. But the court did not allow testimony
as to the name he yelled out (allegedly "Bobby Luisi"). Ippolito
was also allowed to testify that the conversation between Meuse,
Regan, and Paul A. took place and that they were "very, very
angry," but not to the content of that conversation. Paul A.
testified that the conversation with DiCenso and Silva took place,
that he tried calling an attorney for them, and that he called
Bucci to order the limousine for DiCenso. JoAnne was allowed to
testify to much more regarding the first conversation: that the
three of them were talking about guns, that Paul A. yelled at
DiCenso, "Well, why are you coming to me" because "these are people
who are after us," that Paul A. told them to leave the gym, and
that he then tried to help DiCenso get in touch with an attorney
and called for a limousine.
The rest of the conversations the court excluded on
hearsay grounds. Further details from the first conversation, it
ruled, were only offered for "the truth that DiCenso had another
agenda": that is, to establish that the guns were not Paul A.'s and
that DiCenso was not working for Paul A. As for the second
conversation, Paul A. argued it was relevant because it showed he
"was not in a conspiracy with Regan and Meuse. He was not the
leader of an organization where he gave them orders, that they had
-32-
their own thing going." The court reasoned, however, that this
proffered relevance required the content of the statements -- that
the guns and Silva had nothing to do with Paul A. -- to be true.
These exclusion rulings were correct.
Defendants argue that the statements should have been
admitted as verbal acts, but that label applies to statements which
"affect[] the legal rights of the parties." Fed. R. Evid. 801(c)
advisory committee's note; see also United States v. Stover, 329
F.3d 859, 870 (D.C. Cir. 2003) ("[Verbal] acts are limited to
statements that have independent legal significance, such as
contractual offers or inter vivos gifts.").
The defendants perhaps mean to refer more broadly to the
category of statements that are not hearsay because they are not
offered for their truth. See Stover, 329 F.3d at 870. At trial,
Paul A. argued that the conversations were offered to provide
context for other actions and events, not to prove the truth of the
statements. See United States v. Page, 521 F.3d 101, 106-07 (1st
Cir. 2008); United States v. Meserve, 271 F.3d 314, 319 (1st Cir.
2001). Statements that provide "context" only if they are true,
however, are still considered hearsay. See Stover, 329 F.3d at
870.
The only relevant context the defendants could point to
here was the need to explain why Paul A. called a lawyer for
DiCenso. Based on this argument, the court allowed into evidence
-33-
testimony to the effect that Paul A. called a lawyer for DiCenso,
not because DiCenso worked for him, but as a favor when DiCenso
came to him with legal troubles. Defendants have put forward no
further argument as to what other contextual background the
remaining, excluded statements might provide without relying on the
truth of those statements.
Contrary to defendants' assertion, the court did not make
broad rulings regarding hearsay, but carefully parsed each proffer,
often ruling in defendants' favor in unclear situations. There was
no abuse of discretion.11
b. Impeachment. In arguments that overlap with their
hearsay arguments, defendants assert that the district court
improperly excluded testimony meant to challenge the credibility of
government witnesses.
The ability to use extrinsic evidence to impeach a
witness by contradiction is linked to the question of hearsay.
Generally, extrinsic evidence (such as the testimony of another
witness) cannot be used to impeach a witness if it relates only to
a collateral matter. Marino, 277 F.3d at 24. This common law rule
is a manifestation of the district court's general discretion to
exclude otherwise relevant evidence "if its probative value is
substantially outweighed by the danger of unfair prejudice,
11
It is also not immediately clear how the exclusion of
this testimony, which was meant to further Paul A.'s defense,
caused any harm to the other three defendants.
-34-
confusion of the issues, . . . or by considerations of undue delay
[or] waste of time." Fed. R. Evid. 403; see also United States v.
Beauchamp, 986 F.2d 1, 4 (1st Cir. 1993) (citing United States v.
Tarantino, 846 F.2d 1384, 1409 (D.C. Cir. 1988)). Evidence is
collateral if it is relevant only because it contradicts the in-
court testimony of another witness. Marino, 277 F.3d at 24. If
what makes the statement otherwise relevant and thus not collateral
relies on the truth of the statement, then the statement is hearsay
and inadmissable on that ground.12 See 28 Wright & Gold, Federal
Practice and Procedure: Evidence § 6206, at 537 n.14 (1993). The
decision on whether a matter is collateral or material is within
the district court's discretion. Marino, 277 F.3d at 24.
Defendants take issue with the court's refusal to let a
defense witness recount a conversation in which Agent John Mercer
allegedly tried to coerce him into testifying for the government.
The court ruled that the testimony was only relevant to the extent
it bore on Mercer's credibility and was thus collateral.
Defendants note that "a witness's self-interest or motive to
testify falsely is generally considered to be a non-collateral
issue." Beauchamp, 986 F.2d at 4. If the argument is that the
defendants were attempting to impeach Mercer not through
12
For this reason, the gym conversations excluded on
hearsay grounds could also not be used to attack the credibility of
Regan or DiCenso: the conversations only bear on the witnesses'
motive to lie if the content of those conversations is true.
-35-
contradiction but by establishing his bias against defendants and
his motive to lie, this argument was not fully developed on appeal
and is thus waived. United States v. Zannino, 895 F.2d 1, 17
("[I]ssues adverted to in a perfunctory manner [on appeal],
unaccompanied by some effort at developed argumentation, are deemed
waived."). Further, while extrinsic evidence is admissible to show
bias, the trial judge still has discretion under Rule 403 to
exclude such evidence if it would distract from the main issues of
the case. Gomes, 177 F.3d at 81. This ruling was well within the
court's discretion given the court's interest in avoiding a mini-
trial on Mercer's conduct, which could distract the jury in an
already complex case. See Beauchamp, 986 F.2d at 4.
Defendants also argue that the district court should have
issued bench warrants for three witnesses. The court refused to do
so because the witnesses would only testify to collateral matters
in order to contradict government witnesses, such as DiCenso and
Regan. The court was correct that the witnesses would not be
allowed, under the rules of evidence, to testify on those
collateral matters. Further, the court did not abuse its
discretion in determining that the proposed testimony of the
witnesses, as proffered by Paul A., regarded only collateral
matters.13
13
The court also did not abuse its discretion in
determining that it was not material whether DiCenso's sister had
told State Trooper Robert Irwin that she knew DiCenso was dating
-36-
2. Pre-Trial Identification
John Jr. appeals the denial of his motions to suppress
pre-trial identifications made by Soccorso and Bentley, which he
argues were based on an impermissibly suggestive photo array.
There was no violation of John Jr.'s due process rights in the
presentation of this identification evidence to the jury.
Our review of a district court's decision to deny a
suppression motion as to identification is plenary, but with the
usual deference to any findings of fact. United States v.
Brennick, 405 F.3d 96, 99-100 (1st Cir. 2005). A court should
exclude an out-of-court identification based on a photo array only
in those "extraordinary cases" where there is "a very substantial
likelihood of irreparable misidentification," a situation which
could result in an unfair trial in violation of the defendant's due
process rights. United States v. Henderson, 320 F.3d 92, 100 (1st
Cir. 2003) (quoting United States v. de Jesus-Rios, 990 F.2d 672,
677 (1st Cir. 1993)); see also United States v. Holliday, 457 F.3d
121, 125 (1st Cir. 2006). "Short of that point, such evidence is
for the jury to weigh . . . , for evidence with some element of
untrustworthiness is customary grist for the jury mill. Juries are
Silva, so it was not improper for the court to curtail the cross-
examination of Irwin on this point. Defendants note additional
instances of defense witnesses not being allowed to testify to
conversations but do not explain why those conversations were
relevant, how the court abused its discretion, or why they were
prejudiced as a result. See Zannino, 895 F.2d at 17.
-37-
not so susceptible that they cannot measure intelligently the
weight of identification testimony that has some questionable
feature." Manson v. Brathwaite, 432 U.S. 98, 116 (1977).
John Jr. moved before trial to suppress the Bentley and
Soccorso pretrial identifications, but the district court denied
both motions, holding that "these matters are properly addressed
through cross-examination." The district court did not explicitly
go through the two-step analysis described below.
At trial, Soccorso and Bentley both testified that they
picked John Jr. out of a six-photo array, more than three years
after the robbery in Soccorso's case and over two years later for
Bentley. That photo array was provided for the jury. John Jr.'s
counsel cross-examined both witnesses extensively. He walked each
of them through the characteristics of the six photographed men,
arguing that four of them clearly did not match the age or hair-
style descriptions that the witnesses had provided the police.
Under defense counsel's questioning, Soccorso acknowledged that it
was dark at the time of his abduction and that John Jr. was sitting
behind him for much of their encounter; from Bentley, counsel drew
a description of the pain medications Bentley had been taking at
the time he made the identification as well as during the trial,
and Bentley acknowledged that his doctor had written a letter to
the effect that Bentley should not testify because the medications
severely affected his recall.
-38-
John Jr. also produced an expert witness, Dr. Steven
Penrod, to testify about factors that decrease the reliability of
witness identifications, many of which factors John Jr. argued to
the jury were present in this case. Neither Bentley nor Soccorso
made an in-court identification.
John Jr. renewed his motion to suppress before the court
charged the jury; that motion was also denied. John Jr.'s counsel
then argued repeatedly and at length during his closing that the
identifications were unreliable and should be discredited. The
court, during its charge, instructed the jury that "if the
government's theory is that a particular defendant was a principal,
. . . then you need to decide whether the evidence shows he was
there, and if so, was he identified by the victim, was it a good or
a questionable identification."
We use a two-step analysis when considering whether a
pretrial identification procedure raises a "very substantial
likelihood of irreparable misidentification": we first determine
whether the identification procedure was impermissibly suggestive,
and if it was, we then look to the totality of the circumstances to
decide whether the identification was still reliable. Henderson,
320 F.3d at 100; see also Holliday, 457 F.3d at 125. At the first
step, we consider whether the photo array included, as far as was
practicable, a reasonable number of persons similar in appearance
to the suspect. Holliday, 457 F.3d at 125-26. "The police
-39-
authorities are required to make every effort reasonable under the
circumstances to conduct a fair and balanced presentation of
alternative possibilities for identification. The police are not
required to search for identical twins . . . ." Id. at 126 n.5
(quoting Wright v. State, 175 N.W.2d 646, 652 (Wisc. 1970))
(emphasis added) (internal quotation marks omitted).
As for the second step's totality-of-the-circumstances
analysis, the Supreme Court in Neil v. Biggers, 409 U.S. 188
(1972), enumerated five factors for consideration:
(1) the opportunity of the witness to view the
criminal at the time of the crime; (2) the
witness' degree of attention to the crime; (3)
the accuracy of the witness' prior description
of the defendant; (4) the level of certainty
demonstrated by the witness at the
confrontation; and (5) the length of time
between the crime and confrontation.
Henderson, 320 F.3d at 100 (summarizing Biggers, 409 U.S. at 199-
200).
Starting with the first step, the photo array for John
Jr. was impermissibly suggestive. John Jr. has no unusual features
that might complicate the search for others with similar
appearances, yet the other photos in the array were not of men who
looked similar to John Jr. beyond being white men with short hair.
Comparison with the eight-photo array used for the identification
of Paul J. is informative. In that array, the eight men appear to
be of the same age group, seven of the eight have fairly similar
hair, and the overall impression is one of resemblance. The array
-40-
used for John Jr., however, included only six photos, two of which
are of men who appear younger than John Jr. and two of which are of
men clearly older; one of the latter has a noticeably receding
hairline. Two of the men appear more heavyset than John Jr., and
at least two have hair that is markedly different and not
interchangeable with that of the defendant. In all, only one of
the five photos depicts a man as similar to John Jr. as the photos
in Paul J.'s array are to Paul J. Further, given the familial
resemblance between the brothers, the existence of the other photos
in Paul J.'s array makes all the more clear that the police should
not have had trouble locating men who resembled John Jr. more
closely.
However, given the totality of the circumstances, we
conclude that the array did not raise a substantial likelihood of
misidentification and that the remaining question of reliability
was appropriately left to the jury. Cf. Biggers, 409 U.S. at 200-
01. Soccorso spent a substantial amount of time in the car with
his assailant; Bentley watched as the crew ransacked his apartment
and tied him up. Both witnesses were victims of the crimes and not
accidental eyewitnesses whose attention might have been distracted.
On cross-examination, despite thorough questioning, both witnesses
stood by their identifications. Some of the Bigger factors cut in
defendant's favor -- Bentley did incorrectly describe two of the
robbers as being the same height, and (more significantly) there
-41-
was a lengthy time delay between the crimes and the identifications
-- but not all the Biggers factors must point in one direction for
an identification to be upheld. See Henderson, 320 F.3d at 100.
"[I]t is only in extraordinary cases that identification evidence
should be withheld from the jury," id. (quoting de Jesus-Rios, 990
F.2d at 677), and this is not one of them.
The weighing of the factors in this case, however, is a
close question, so we also note that the jury was provided with
extensive information about the identifications with which to make
its own reliability determination. The defendant's counsel did a
highly competent examination, eliciting testimony from multiple
witnesses that cast doubt on the identifications of John Jr.,
especially in terms of the Biggers factors. The jury was clearly
and properly instructed on the question and had before it a
thorough record of why the identification might be untrustworthy.
We are thus further reassured that John Jr.'s due process rights
were not violated by the submission of the identification evidence,
with all of defendant's caveats, to the jury.
3. Pavone's Claim of Prosecutorial Misconduct
Pavone argues that his Fifth and Sixth Amendment rights
were violated by prosecutorial misconduct. We start by describing
the underlying dispute.
Pavone alleges that an old acquaintance, John Dana, and
his colleague Wayne David Collins approached him around the time of
-42-
his indictment and offered to hire an attorney on his behalf. That
attorney, John Cicilline, did briefly take over Pavone's case.
According to Pavone, Collins claimed to have a special,
preferential relationship with the FBI, and Dana and Cicilline
repeatedly asked Pavone to cooperate with the government. After
his initial detention hearing, Pavone was approached by another
inmate, Arlindo Dossantos, who warned Pavone that Collins and Dana
were FBI informants who hired attorneys for criminal defendants in
order to obtain confidential information that they could then pass
on to the government. Pavone confronted Cicilline, Cicilline
withdrew as counsel, and Pavone's former counsel was reappointed.
Pavone moved to dismiss the indictment against him. He
asserted that he had shared confidential information with
Cicilline, that Cicilline transmitted that information to Collins
and Dana, and that all three "acted with the knowledge and approval
of the government." He supported this motion with his own
affidavit and that of his mother, who had spoken with Dana on
multiple occasions during the time in question. Pavone also moved
for discovery of sealed documents filed in Dossantos's prosecution
regarding similar accusations against Collins, Dana, and the U.S.
Attorney's Office.
In response, the government submitted affidavits from the
three Assistant U.S. Attorneys who prosecuted this case. They
denied having ever met or communicated with Dana or Collins and
-43-
asserted that, to the best of their knowledge, no one involved in
the investigation had obtained any information from Dana, Collins,
or Cicilline. One of them also explained that the case was
investigated not by the FBI, but by the Drug Enforcement Agency
("DEA"), the Bureau of Alcohol, Tobacco, Firearms & Explosives
("ATF"), and the Massachusetts State Police. The lead
investigators from the ATF (Mercer) and the Massachusetts State
Police (Irwin) also submitted affidavits, stating that neither they
nor, to the best of their knowledge, anyone else working on the
investigation had ever sought or received information from Dana,
Collins, or Cicilline.
The district court denied Pavone's motions to dismiss the
indictment. Based on the government's affidavits "and in the
absence of any contradictory factual support," the court was "not
persuaded" that Pavone could show that the government received any
confidential information, even if he were allowed access to
documents in the Dossantos case. It is this denial that Pavone
appeals.
"[T]he government's intrusion into the attorney-client
relationship" is not a per se Sixth Amendment violation; there must
also be some demonstration of resulting prejudice. United States
v. Mastroianni, 749 F.2d 900, 907 (1st Cir. 1984). Because such
intrusions pose a serious risk to defendants' constitutional
rights, and because it would be unreasonably difficult for most
-44-
defendants to prove prejudice, we only require defendants to make
a prima facie showing of prejudice by "prov[ing] that confidential
communications were conveyed as a result" of the government
intrusion into the attorney-client relationship. Id. at 907-08.
The burden then shifts to the government to show that the defendant
was not prejudiced; that burden is a demanding one. Id. at 908.
Even taking all his allegations as true, Pavone did not
show or even allege that Collins and Dana passed any confidential
information they received from Cicilline on to the government.
"[U]nless [the informant] communicated the substance of the
[attorney-client] conversations [to the government] and thereby
created at least a realistic possibility of injury to [the
defendant] or benefit to the State, there can be no Sixth Amendment
violation." Weatherford v. Bursey, 429 U.S. 545, 558 (1977); see
also Greater Newburyport Clamshell Alliance v. Pub. Serv. Co. of
N.H., 838 F.2d 13, 20 (1st Cir. 1988) ("Only information
communicated to the prosecutor is capable of prejudicing a criminal
defendant's sixth amendment rights at trial."); United States v.
Dyer, 821 F.2d 35, 38 (1st Cir. 1987) (where "no confidential
attorney-client information was relayed to, or obtained by, the
prosecution," "[t]he defense suffered no prejudice" and thus no
Sixth Amendment violation). We affirm the denial of Pavone's
motion to dismiss.
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Pavone also makes a related argument that the government
improperly withheld Brady material (the Dossantos files) which he
claims "contain[] certain and definitive exculpatory material,"
presumably evidence that Collins and Dana were government
informants. Under Brady v. Maryland, 373 U.S. 83 (1963), "the
suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution." Id. at 87. But "Brady did not
create" a "general constitutional right to discovery in a criminal
case." Weatherford, 429 U.S. at 559. "To establish a violation of
Brady, a defendant must provide the court with some indication that
the materials to which he or she needs access contain material and
potentially exculpatory evidence." United States v. Brandon, 17
F.3d 409, 456 (1st Cir. 1994).
"[M]ethods of enforcing disclosure requirements in
criminal trials are generally left to the discretion of the trial
court," and we review Brady determinations for abuse of discretion.
United States v. Caro-Muñiz, 406 F.3d 22, 29 (1st Cir. 2005). The
district court here concluded that the Dossantos documents would
not "suffice to sustain Pavone's burden" in establishing his prima
facie case of a Sixth Amendment violation. In light of the record
created by the prosecution that there was no contact by the
prosecution with Collins and Dana in this case, and in the absence
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of any allegation by Pavone to the contrary, this ruling was
plainly correct.
D. Sufficiency of the Evidence
Paul J., John Jr., and Pavone all appeal their
convictions on one or more charges, arguing that the government
presented insufficient evidence for a reasonable jury to find them
guilty.
We review the sufficiency of the evidence de novo,
scrutinizing the record as a whole, drawing all reasonable
inferences in favor of the verdict, and avoiding any credibility
judgments, to determine whether any rational factfinder could have
found each element of the crime proved beyond a reasonable doubt.
Muñoz-Franco, 487 F.3d at 41. "To uphold a conviction, the court
need not believe that no verdict other than a guilty verdict could
sensibly be reached, but must only satisfy itself that the guilty
verdict finds support in 'a plausible rendition of the record.'"
United States v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993)
(quoting United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.
1992)). Further, "evidence sufficient to convict may be entirely
circumstantial, with the factfinder remaining free to choose among
reasonable interpretations of the evidence." United States v.
Wight, 968 F.2d 1393, 1395 (1st Cir. 1992).
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1. Tampering with Witness by Misleading Conduct
Pavone and Paul J. argue there was insufficient evidence
to convict them of witness tampering (of Silva) by misleading
conduct. The witness-tampering law prohibits "engag[ing] in
misleading conduct toward another person, with intent to . . .
hinder, delay, or prevent the communication to a law enforcement
officer . . . of the United States of information relating to the
commission . . . of a Federal offense." 18 U.S.C. § 1512(b)(3).
"Misleading conduct" is further defined, as relevant here, as
"knowingly making a false statement" or "intentionally omitting
information from a statement and thereby causing a portion of such
statement to be misleading, or intentionally concealing a material
fact, and thereby creating a false impression by such statement."
Id. § 1515(a)(3)(A)-(B). These two defendants were indicted for
and convicted of conspiracy to tamper with a witness through
misleading conduct, as well as the substantive crime of tampering
with a witness or aiding and abetting another to do so; tampering
with a witness was also found to be a racketeering act for each
under RICO.
At trial, the government argued that the relevant
misleading conduct was the isolation of Silva, "all the while
telling her that everything would be okay, their lawyers would take
[] care [of everything] -- their lawyers would be back in town
soon, telling her those things to mislead her about her situation."
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According to the government's trial theory, Pavone and Paul J.
furthered that plan by being at the meetings where decisions about
what to do with Silva were made, by renting hotel rooms, and by
obtaining the heroin.
The jury heard testimony that Paul A. and the crew were
worried about what Silva had already told the police, made
significant efforts to keep her away from the police while weighing
the likelihood that she would betray them, and, to encourage her
continued isolation and silence, reassured her repeatedly that
their lawyers were away temporarily but would take care of
everything upon their return.
As for Pavone specifically, DiCenso testified that Pavone
was present at the first meeting of the crew right after Silva had
been discovered talking with the police; that DiCenso and Paul J.
told "everybody [present] what had happened in relation to the
discovery of the guns"; and that the mood of that meeting was "[a]n
overall general feeling of shock." Regan and DiCenso both
testified that following the first meeting and at Paul A.'s behest,
Pavone rented a motel room for Silva (which removed her from the
apartment where she had met with the police), and Pavone did not
deny driving DiCenso and Silva from Boston to New York (an act
which made it even less likely that the police could find her).
Given that Pavone participated in multiple parts of the scheme,
that he spent several hours in a confined space with DiCenso and
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Silva during the drive to New York, that all three meetings about
how to handle Silva occurred at Pavone's house, and that he was in
the right place at the right time on multiple occasions to have
heard the crew discuss the problem of Silva, a reasonable jury
could have inferred that he knew the crew was misleading Silva to
keep her from talking further with the police. The jury could have
easily concluded that Pavone, rather than acting as a simple
"gofer," was knowingly assisting with that scheme.
As for Paul J., he was with DiCenso when they went to
Silva's apartment and discovered Silva being questioned by the
police. He and DiCenso debriefed the crew about Silva's contact
with the police at the first meeting. It was reasonable for the
jury to infer that the plan to prevent Silva from talking further
with the police was hatched at this meeting and that Paul J. was
privy to it. Further, when the crew decided to kill Silva with an
overdose to ensure that she would not betray them to the police, it
was Paul J. who went to buy the heroin. He knew what it was for
(he asked Centeno, the dealer, for heroin "strong enough for an
overdose"), and it is a permissible inference that he knew the
heroin would be provided to Silva under the guise of being a non-
lethal drug. From all of this, a reasonable jury could have
concluded that Paul J. knew of the scheme to convince Silva not to
talk to the authorities and to prevent her from doing so, and that
he knowingly assisted with that effort.
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These convictions of Pavone and Paul J. are affirmed.
2. Felon in Possession of a Firearm
Paul J. also appeals his conviction under 18 U.S.C.
§ 922(g)(1) for being a felon in possession of a firearm.14 He does
not dispute that he is a felon under the terms of the statute or
that the firearms in question were related to interstate commerce.
See Wight, 968 F.2d at 1397. Instead he argues that the government
did not provide sufficient evidence that he knowingly possessed the
six firearms, derived from the North burglary, that it accused him
of possessing.
Knowing possession under § 922(g)(1) can be established
by proving that the defendant had constructive possession of a
firearm; that is, that he "knowingly ha[d] the power and the
intention at a given time of exercising dominion and control over
a firearm . . . , directly or through others." Id. at 1398
(emphasis added). Constructive possession can be joint, does not
require actual ownership of the firearm, and can be established
through circumstantial evidence, though "mere presence or
association with another who possessed the contraband is
insufficient." Id. at 1397; see also United States v. Liranzo, 385
14
18 U.S.C. § 922(g)(1) provides that "[i]t shall be
unlawful for any person -- (1) who has been convicted in any court
of [] a crime punishable by imprisonment for a term exceeding one
year . . . to ship or transport in interstate or foreign commerce,
or possess in or affecting commerce, any firearm or ammunition; or
to receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce."
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F.3d 66, 69 (1st Cir. 2004). Possession, whether actual or
constructive, can be extremely brief: "a minute of possession is as
much an offense as a year of possession." United States v. Zavala
Maldonado, 23 F.3d 4, 8 (1st Cir. 1994).
There was enough evidence for the jury to find that Paul
J. knowingly possessed the North firearms at some point. While
other testimony was to the contrary, DiCenso testified that Paul J.
was with him in North's apartment during the burglary. See Wight,
968 F.2d at 1395 (credibility issues resolved in favor of
government). Even if Paul J. was outside the apartment and helped
the other two burglars load the stolen goods into the car, the jury
could have reasonably inferred that he knew the duffel bags with
the stolen goods contained guns. Paul A. sent them to search for
drugs and guns, the weight and shape of the duffel bags would have
belied their contents, and the box of grenades, which was loaded
into the car separately, would have made clear that the expected
weaponry had been found and stolen. The jury could have concluded,
then, that Paul J. physically possessed the guns at that time.
Second, a jury could have found that after the North
robbery, when the crew was opening the safes in the garage and
examining the weapons, Paul J. constructively possessed the
firearms. A defendant has the power to exercise dominion over a
firearm if he was "close enough to pick it up at any time." United
States v. McLean, 409 F.3d 492, 504 (1st Cir. 2005). Regan
-52-
described the guns as laid out "all over the garage floor" and
specified that at least he and Meuse were physically handling the
weapons; it could be inferred that Paul J. had the same access to
them. As for the intent to exercise dominion over the firearms,
although Paul A. stopped Regan from keeping some of the weapons,
the jury could still have concluded that the weapons were being
kept for the use of the crew as a whole. As DiCenso put it,
"because the guns belonged to the crew, . . . that means they
belonged to me, too," as a member of the crew.
The basis for a joint possession finding is also
demonstrated by Paul J. and DiCenso having gone to retrieve the
weapons from Silva's apartment on behalf of the crew: they assumed
that they would be able to remove the weapons at will. The weapons
did not belong to Silva; the weapons belonged to the crew, and Paul
J. acted as a member of the crew.
We affirm this conviction.
3. Use of a Firearm in Relation to Crime of Violence
John Jr. appeals his conviction under 18 U.S.C. § 924(c)
for using or carrying a firearm "during and in relation to any
crime of violence . . . for which he may be prosecuted in a court
of the United States." The government based its § 924(c) charge on
John Jr.'s robbery of Sapochetti in alleged violation of the Hobbs
Act. Thus the government had to prove that John Jr. used or
carried a firearm, that his use of the firearm was in relation to
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the robbery, and that he did in fact commit a Hobbs Act robbery.
To prove a Hobbs Act robbery, the government had to establish that
the Sapochetti robbery "in any way or degree obstruct[ed],
delay[ed], or affect[ed] commerce." 18 U.S.C. § 1951(a). John Jr.
argues the government failed to prove this nexus with interstate
commerce.
"The Hobbs Act's scope extends to the limit of Congress'
Commerce Clause authority." United States v. Capozzi (Capozzi I),
347 F.3d 327, 335 (1st Cir. 2003). Because of this, and because
the Hobbs Act by its terms criminalizes robberies that affect
interstate commerce "in any way or degree," the government need
only show that the robbery created "a realistic probability of a de
minimis effect on interstate commerce."15 Id. (quoting United
States v. Butt, 955 F.2d 77, 80 n.2 (1st Cir. 1992)) (internal
quotation marks omitted). This required showing is "not onerous."
Capozzi II, 486 F.3d at 726 (quoting United States v. DiGregorio,
605 F.2d 1184, 1191 (1st Cir. 1979)) (internal quotation marks
omitted).
A reasonable jury could have concluded that John Jr.
robbed Sapochetti and that the probable effect of that robbery was
an impact on interstate commerce, albeit largely illicit commerce.
The robbing of a drug dealer typically has the required nexus with
15
This standard is unaffected by United States v. Lopez,
514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598
(2000). Capozzi I, 347 F.3d at 336 & n.3.
-54-
interstate commerce. See, e.g., id.; United States v. Parkes, 497
F.3d 220, 231 (2d Cir. 2007), cert. denied, 128 S. Ct. 1320 (2008);
United States v. Ostrander, 411 F.3d 684, 692 (6th Cir. 2005);
United States v. Williams, 342 F.3d 350, 355 (4th Cir. 2003) ("Drug
dealing . . . is an inherently economic enterprise that affects
interstate commerce."); United States v. Bailey, 227 F.3d 792, 798-
99 (7th Cir. 2000); United States v. Box, 50 F.3d 345, 353 (5th
Cir. 1995). A robbery can affect interstate commerce when it
depletes the assets of a business, even if the business is that of
drug dealing. See, e.g., Capozzi II, 486 F.3d at 726; Williams,
342 F.3d at 354-55; Bailey, 227 F.3d at 798. It was sufficient for
the government to demonstrate that the robbery of cocaine dealers
generally affects interstate commerce and that John Jr. intended to
rob Sapochetti of money he believed was derived from or intended to
finance cocaine sales. See Bailey, 227 F.3d at 798.16
DiCenso and Regan both testified that Sapochetti was a
known cocaine dealer. The interstate aspect was nailed down by a
DEA agent who, testifying as an expert witness, explained that the
coca plant from which cocaine is derived is native to South America
and is not (to his knowledge) capable of being grown in
Massachusetts. From this the jury could conclude that Sapochetti
16
Thus, contrary to John Jr.'s assertion, under the
depletion-of-the-assets theory the government did not have to
provide specific proof that the stolen money was connected to
Sapochetti's interstate commerce activity.
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was engaged in a business that affected interstate commerce.
Further, the government presented plentiful evidence that the
crew's modus operandi was to rob rival drug dealers of their drugs
and drug proceeds, both to decrease competition and to increase the
crew's supplies for their own sales. Both DiCenso and Regan
testified that the crew obtained around $18,000 from Sapochetti.
The jury could have reasonably inferred that John Jr. intended to
and did deplete Sapochetti's business assets, thereby affecting
interstate commerce to some degree.
John Jr. makes a related argument that the jury's
"inconsistent" verdict demonstrated that it did not find an effect
on interstate commerce but was confused about the elements of
§ 924(c) because the judge's instructions on this charge were
convoluted. This argument fails. Although the jury did acquit
John Jr. on the substantive offense of a Hobbs Act robbery of
Sapochetti, "inconsistent verdicts are not sufficient grounds for
reversing a criminal conviction as long as the appellate court is
satisfied that there was sufficient evidence to support the
conviction." United States v. Richard, 234 F.3d 763, 768 (1st Cir.
2000). This is so even where, as here, the jury acquits the
defendant of a predicate felony while convicting on the compound
felony. United States v. Powell, 469 U.S. 57, 67-68 (1984). We
have held that a defendant can be convicted under § 924(c) even if
he was acquitted of the drug trafficking crime on which the
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§ 924(c) charge was premised. United States v. Figueroa-
Encarnacion, 343 F.3d 23, 30 (1st Cir. 2003). At least one other
circuit has addressed the specific situation presented by this case
and affirmed a § 924(c) conviction where the jury acquitted on the
predicate Hobbs Act robbery. United States v. Smith, 182 F.3d 452,
458 (6th Cir. 1999). Because there was sufficient evidence to
establish the jurisdictional element of a Hobbs Act robbery, John
Jr.'s conviction for using or carrying a firearm during the
commission of that offense must be affirmed. See generally 3
Wright, King & Klein, Federal Practice and Procedure: Criminal
§ 514, at 27-28 (3d ed. 2004) (collecting cases).
Further, the Supreme Court has explicitly rejected any
role for individualized assessments of inconsistent verdicts when
a defendant argues the inconsistency was caused by a trial error,
such as the argument here that the jury instructions were unclear.
This is because such inquiries "would be based either on pure
speculation, or would require inquiries into the jury's
deliberations that courts generally will not undertake." Powell,
469 U.S. at 66. Indeed, much of defendant's argument on this point
takes the form of speculation about what the jury might or might
not have believed about the law or concluded about the facts of the
case.17
17
We also see no error in the court's instructions. The
court explained the Hobbs Act, including its jurisdictional
element, clearly and at length; contrasted it to the state law
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John Jr.'s conviction under § 924(c) is affirmed.
E. Sentencing
Finally, John Jr. appeals his sentence on one basis. The
jury found that the government had not proved John Jr.'s
involvement in racketeering act 13, possession of cocaine with
intent to distribute. However, John Jr. had pled guilty to the
same offense conduct in 1997 and was sentenced to 249 days of
imprisonment. John Jr. argues that the time he served for that
crime -- in which calculation he also includes the twenty-one
months he served for violating the terms of his supervised release
following his 249-day sentence -- should have been taken into
account as a sort of mitigating factor in his sentencing in this
case. As he put it in his sentencing memorandum to the district
court, "[a]t a minimum, an innocent man who serves time should be
remunerated for the time he served. [The district court] should
sentence below the guideline sentencing range by the same amount of
time that the defendant served for the crime that he did not
commit, 29 months . . . ." The district court, however, concluded
that it "cannot give credit for time served on a sentence that
someone else imposed in a case in which Mr. DeCologero admitted
guilt" and sentenced John Jr. to 210 months of imprisonment.
crime of armed robbery; and explained that a Hobbs Act robbery
constituted a violent federal crime under § 924(c). While the
instructions were complicated, so was the case, and the jury had to
assist it the redacted indictment and a chart of elements for each
crime charged.
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We review the substantive reasonableness of a sentence
for abuse of discretion, but we first consider whether the court
below committed a "significant procedural error, such as . . .
treating the Guidelines as mandatory." Gall v. United States, ___
U.S. ___, 128 S. Ct. 586, 597 (2007). To the extent that John Jr.
argues that the trial court did not believe it could grant him a
variance based on this particular factor, that argument is
preserved. On appeal, John Jr. focuses on the trial judge's use of
the word "cannot" in her decision not to take the prior conviction
into account.
When considering a sentencing appeal, however, we do not
look at comments in isolation but consider the sentencing record as
a whole. Cf. United States v. Jiménez-Beltre, 440 F.3d 514, 519
(1st Cir. 2006) (en banc) ("[A] court's reasoning can often be
inferred by comparing what was argued by the parties or contained
in the pre-sentence report with what the judge did."). It is clear
that the trial court did not consider the Guidelines to be
mandatory. The court sentenced John Jr. below the Guidelines
range, which it calculated to be between 324 and 405 months. It
based this lower sentence on a number of the 18 U.S.C. § 3553(a)
factors, especially § 3553(a)(1), and on other factors specific to
John Jr.'s case: that the conviction came ten years after the
commission of the crimes, that Paul A. and other "elders"
(presumably including his father) had "subjected" John Jr. "to
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cruel control . . . most of his life," that John Jr. had "made
strides" in changing his life, and that the formal Guidelines
calculation double-counted some of the underlying offenses,
resulting in an "artificially high" Guidelines range. We do not
doubt that the trial court recognized its discretion to take John
Jr.'s prior conviction and imprisonment into account; the court
simply did not agree with defendant that his previous incarceration
for a crime to which he pled guilty should lead to a sentence
reduction.
To the extent that John Jr. argues that the district
court committed a Guidelines error by not taking into account a
possible downward departure under U.S.S.G. §§ 5G1.3 and 5K2.23, he
did not present that argument to the trial court. We thus review
the sentence on this ground for plain error only. United States v.
Goodhue, 486 F.3d 52, 57 (1st Cir. 2007); United States v. Wallace,
461 F.3d 15, 35 & n.11 (1st Cir. 2006). We pass over the questions
of which Guidelines apply (the trial court applied the 1995
Guidelines, in effect at the time of the offense conduct) and
whether, if the 1995 Guidelines do apply, the later amendments
relevant here were retroactive. Even taking these questions in
defendant's favor, John Jr.'s argument does not survive the plain
terms of § 5G1.3.
Under the current Guidelines, § 5G1.3(b) provides for an
adjustment of the sentence to account for an undischarged term of
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imprisonment that "resulted from another offense that is relevant
conduct to the instant offense of conviction . . . and that was the
basis for an increase in the offense level for the instant
offense." Id. (emphasis added). Application note 4, which cross-
references and uses the same language as § 5K2.23, approves the use
of a downward departure when the prior term of imprisonment has
been fully discharged, as long as the other requirements of
§ 5G1.3(b) are met. Neither section is applicable here, then, as
the offense underlying racketeering act 13 was not taken into
account in the Guidelines calculation; much less was it a "basis
for an increase in the offense level" in this case.18 See United
States v. Kornegay, 410 F.3d 89, 99 (1st Cir. 2005); see also
United States v. Parker, 512 F.3d 1037, 1040 (8th Cir. 2008).
The sentence is affirmed.
IV.
We turn to Paul A.'s appeals but find them likewise
unavailing.
18
The language in the 1995 Guidelines differs slightly but
not in a material way. The older version of § 5G1.3(b) covered an
"undischarged term of imprisonment [that] resulted from offense(s)
that have been fully taken into account in the determination of the
offense level for the instant offense." Again, the alleged offense
conduct covered by racketeering act 13 was not taken into account
in the trial court's Guidelines determination.
The parties also dispute whether that offense conduct, to
which John Jr. pled guilty in 1997, was relevant conduct to the
instant offense. We do not need to resolve that question.
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A. Double Jeopardy
This court rejected Paul A.'s pre-trial double jeopardy
claims. DeCologero, 364 F.3d at 19. Paul A. renews his double
jeopardy claim in this post-conviction appeal based on the evidence
actually presented at trial. See United States v. Laguna-Estela,
394 F.3d 54, 59 (1st Cir. 2005). Our review is de novo. United
States v. Cartagena-Carrasquillo, 70 F.3d 706, 714 (1st Cir. 1995).
In our prior consideration of this issue, we noted that
"double jeopardy only bars successive RICO charges involving both
the same enterprise and the same pattern of racketeering activity."
DeCologero, 364 F.3d at 18. The court recognized that it was
perhaps a "hard question" whether the enterprises in the Carrozza
case and this case were the same, but concluded that the patterns
of racketeering activity were not. Id. Having assessed the
evidence post-trial, we reach the same conclusion.
In comparing the charged patterns of racketeering, we
consider the totality of the circumstances, including the
similarities of "the time, the place, the people, and the nature
and scope of the activities involved in each indictment." Id.
Paul A. first argues that the time periods covered by the two
trials overlap. We recognized in our earlier opinion the overlap
in the time periods covered by the two indictments but found it
insubstantial. Id. at 19. We noted then that the Carrozza
indictment focused on 1989 to 1994 but that the Carrozza trial
included evidence of events occurring as late as 1998. Id. The
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DeCologero indictment focused on the years 1995 to 1997, but the
prosecution introduced evidence reaching back to 1994. For
example, there was conflicting testimony about whether the Soccorso
robbery occurred in late 1994 or late 1995, and the prosecution
sought to establish that Finethy incurred his drug debt in 1994 as
background for the alleged 1996 extortion. These exceptions were
minor, however, and Paul A. points to no other instances of
proffers of pre-1995 evidence. We again conclude that the overlap
between the time periods is insubstantial. Cf. United States v.
Ciancaglini, 858 F.2d 923, 929 (3d Cir. 1988) (finding distinct
patterns of racketeering activity despite overlap of twenty-five
months).
Paul A. concedes that he is the only common defendant
between the two indictments, but he argues that does not end the
analysis of common participants. We need not address his premise,
for in any event, the only common character Paul A. points to is
Vincent Marino, a Carrozza defendant, who Paul A. argues is a
missing link in the Silva murder. That connection is tenuous, and
it does not even suggest that the two indictments charged the same
pattern of racketeering activity. Cf. United States v. Russotti,
717 F.2d 27, 33 (2d Cir. 1983) (finding different patterns of
racketeering activity even though two individuals were named in
both indictments).
Finally, Paul A. points to references in the Carrozza
case to robberies of drug dealers in arguing that the two cases
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dealt with the same types of crime. First, the references in
Carrozza are not new information, derived from the actual
prosecution of this case, and thus would not affect the conclusion
we reached in the interlocutory appeal. Second, the overlap of
some types of crimes between two indictments does not necessarily
mean the indictments charge the same pattern of racketeering
activity. See, e.g., United States v. Ruggiero, 754 F.2d 927, 933-
34 (11th Cir. 1985) (finding different patterns of racketeering
activity even though both indictments charged crimes under the same
gambling, drug, and robbery statutes). Third, the alleged overlap
was minimal.
We thus conclude again that, whether or not the same
enterprise was involved, the indictments did charge and the
government did try two different patterns of racketeering activity.
Taken as a whole and based on the trial records, the Carrozza case
"focused on the systematic murder of rival mafia members . . . to
seize control of the Patriarca family," while this case focused on
"a more conventional collection of robberies and drug trafficking
offenses, the single murder being merely a means of protecting the
conspiracy from the police." DeCologero, 364 F.3d at 18-19. There
has been no violation of Paul A.'s double jeopardy rights by his
standing trial in this case.
B. Ability to Present Defense
Paul A. raises several arguments pertaining to his
ability to present his defense theory in full. He claims that the
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district court curtailed the testimony of witnesses in violation of
his Fifth and Sixth Amendment rights, that the court failed to
compel the production of a witness in violation of his Sixth
Amendment rights, and that the prosecution withheld exculpatory
evidence in contravention of its Brady duties and in violation of
his Fifth Amendment rights. These arguments all fall short.
1. Trial Management and Evidentiary Rulings
Paul A.'s primary defense was that Regan was aligned with
the Salemme faction of the Patriarca Family and thus would not have
been working with Paul A. if Paul A. was, as the government had
previously alleged, aligned with the Carrozza faction. Paul A.
complains that the trial judge curtailed his ability to present
this defense by restricting his cross-examination of Regan and
other witnesses and by cutting short his own testimony. He argues
that these rulings violated his Fifth and Sixth Amendment rights to
present his defense.
"Whether rooted directly in the Due Process Clause of the
[Fifth] Amendment or in the Compulsory Process or Confrontation
clauses of the Sixth Amendment, the Constitution guarantees
criminal defendants 'a meaningful opportunity to present a complete
defense.'" Crane v. Kentucky, 476 U.S. 682, 690 (1986) (quoting
California v. Trombetta, 467 U.S. 479, 485 (1984)) (citations
omitted). What constitutes the "basic elements" of a fair trial
under the Fifth Amendment is determined "largely through the
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several provisions of the Sixth Amendment." Strickland v.
Washington, 466 U.S. 668, 685 (1984).19
However, "[a] defendant's right to present relevant
evidence is not unlimited, but rather is subject to reasonable
restrictions." United States v. Scheffer, 523 U.S. 303, 308
(1998). For example, the Supreme Court has "never questioned the
power of States to exclude evidence through the application of
evidentiary rules that themselves serve the interests of fairness
and reliability -- even if the defendant would prefer to see that
evidence admitted." Crane, 476 U.S. at 690. Thus, "federal
rulemakers have broad latitude under the Constitution to establish
rules excluding evidence from criminal trials. . . . so long as
[those rules] are not 'arbitrary' or 'disproportionate to the
purposes they are designed to serve.'" Scheffer, 523 U.S. at 308
(quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)).
The Supreme Court reaffirmed this principle recently,
emphasizing that "well-established rules of evidence [that] permit
trial judges to exclude evidence if its probative value is
outweighed by certain other factors such as unfair prejudice,
confusion of the issues, or potential to mislead the jury" do not
normally breach defendants' constitutional rights. Holmes v. South
Carolina, 547 U.S. 319, 326 (2006). In Holmes, the Court
19
As relevant here, the Sixth Amendment protects the
accused's right, in a criminal trial, "to be confronted with the
witnesses against him" and "to have compulsory process for
obtaining witnesses in his favor." U.S. Const. amend. VI.
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specifically noted as one such "well-established rule" the rule
that a court may exclude a defendant's evidence proffered to show
that someone else committed the crime in question if that evidence
is too speculative, remote, or immaterial. Id. at 327, 330.
Paul A. argues that he was unable to question Regan fully
during cross-examination about his affiliation with Salemme's
group. But the court did allow Regan to be questioned about the
structure of the Patriarca family, his association with Frank
Salemme Jr., and related issues despite continued objections by the
prosecution. The limits which were placed on questioning were
based on the judge's well-founded concerns about relevance and were
within her discretion. The prohibited questions pertained
primarily to events that occurred before 1995 and thus before the
crimes alleged in the indictment. There was a risk of jury
confusion from this line of questioning in an already complex and
confusing case. See, e.g., United States v. Gonzalez-Vazquez, 219
F.3d 37, 45 (1st Cir. 2000) ("The district court 'retains wide
latitude to impose reasonable limits' on cross-examination in order
to avoid confusion of the issues or extended discussion of
marginally relevant material." (quoting United States v. Twomey,
806 F.2d 1136, 1139 (1st Cir. 1986))).20
20
Paul A. also complains of restrictions on his ability to
present evidence that Regan was somehow involved in Silva's murder,
but he does not specify any objectionable rulings. Regardless, the
evidence in question is highly tangential and circumstantial; there
would have been no abuse of discretion in its exclusion.
-67-
Paul A.'s objection to the court's curtailing of his own
testimony is also misplaced. Regardless of what theory a defendant
might wish to present, that does not entitle him to provide non-
responsive (and provocative) answers, even to his own attorney's
questions. In addition, much of the information pertinent to Paul
A.'s defense came in through the cross-examination of Regan.
Finally, Paul A. complains of the court's rulings on the
inadmissibility of most testimony pertaining to the gym
conversations, but we have already found those rulings not to be in
error.21
Paul A. was able to present his defense, and the court
did not abuse its discretion in restricting the admission of a
fraction of his evidence. Cf. O'Brien v. Marshall, 453 F.3d 13,
19-20 (1st Cir. 2006) (no constitutional violation where
defendant's evidence that someone else committed the crime was
restricted based on traditional hearsay rules); DiBenedetto v.
Hall, 272 F.3d 1, 7-9 (1st Cir. 2001) (no constitutional violation
where defendant's evidence that others had motive in mob killing
and that key government witness was lying to regain favor with mob
faction was excluded because it was unreliable and tangential).
2. Denial of Compulsory Process
21
Paul A. also alleges that the trial court curtailed his
opening and closing arguments, but our review of the record
revealed no basis for these allegations.
-68-
Paul A. also attempted at trial to show that Vincent
Marino, a.k.a. Gigi Portalla, was involved in the North burglary
and in Silva's murder, a showing presumably meant to exonerate Paul
A. He argues that the district court's refusal to expedite
Marino's transport from a federal penitentiary in Pennsylvania or
to provide a continuance until Marino's presence could be secured
deprived him of compulsory process under the Sixth Amendment.
Paul A. filed his motion for Marino's transport to
testify on February 28, two days before the prosecution rested.
The district court allowed the motion, but refused to order the
U.S. Marshals to expedite their transport process or to provide
extra funds to do so. Paul A. moved for a continuance, which the
court also denied.
If the court had denied Paul A.'s motion to transport
Marino, our review would be for abuse of discretion. United States
v. Nivica, 887 F.2d 1110, 1117 (1st Cir. 1989). As the court
granted the motion but simply refused to expedite the request, we
see no reason why a more stringent standard of review should be
used. Trial judges are best situated to weigh the competing
demands of trial management -- "factors such as timeliness,
materiality, relevancy, competency, practicality, and utility" --
and thus we accord the trial court's determinations in these areas
"considerable respect." Id. at 1118.
As the trial court noted, Paul A. submitted his request
quite belatedly. There was no reason for that delay. Other
-69-
circuits faced with similar circumstances have found no abuse of
discretion. Where a defendant waited until seven business days
before the trial started to request the production of an
incarcerated witness, the Eighth Circuit concluded that, "[i]n view
of the modest benefit that [the] testimony might have offered, . .
. the district court correctly ruled that the countervailing public
interests in the efficient administration of justice were
sufficient reason to deny the motion for a continuance of the
trial." United States v. Sparkman, 500 F.3d 678, 683 (8th Cir.
2007). The Eighth Circuit also found no abuse of discretion where
the trial court denied a further continuance when the marshals
could not locate witnesses subpoenaed at government expense (under
Federal Rule of Criminal Procedure 17(b)), given that the defendant
had waited until the day before trial to request the subpoena.
United States v. DeCoteau, 648 F.2d 1191, 1192-93 (8th Cir. 1981).
As the Second Circuit succinctly stated, where the defendant had
waited until two business days before the beginning of trial to
request a continuance so that an incarcerated prisoner could be
produced, "any detriment suffered by [the defendant] resulted from
his own dilatory conduct and not from the court's ruling." United
States v. King, 762 F.2d 232, 235 (2d Cir. 1985). In all these
cases, the defendants' efforts to secure the testimony of
incarcerated witnesses were considered tardy even though they were
made prior to the commencement of trial; Paul A. waited until the
twenty-ninth day of trial to make his request. The comparison is
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not in his favor. Further, the proffered testimony of Marino was
tangential and potentially cumulative. Any benefit of the
testimony would have been slight.
The Compulsory Process Clause is more a sword than a
shield because "[t]he decision whether to employ it in a particular
case rests solely with the defendant. The very nature of the right
requires that its effective use be preceded by deliberate planning
and affirmative conduct." Taylor v. Illinois, 484 U.S. 400, 410
(1988). The fault here lies with Paul A.
3. Brady Disclosures
Finally, Paul A. alleges that the prosecution withheld
exculpatory evidence in contravention of its Brady obligations.
Again, we review Brady determinations for abuse of discretion.
Caro-Muñiz, 406 F.3d at 29. Paul A. repeatedly requested materials
pertaining to investigations of Vincent Marino, specifically
evidence linking Marino to Silva's death, but the prosecution
opposed and the court denied the motions.
The prosecution represented that it had disclosed all
potentially exculpatory material.22 Paul A. points to no specific
materials or information he believes are in the prosecution's
possession that would exculpate him. Without such a specific
request, it is the prosecution "that decides which information must
22
This included alerting the defense in 2001 and 2002 that
a witness (DiCenso) linked Marino to a gun deal gone bad and that
a confidential informant had linked Marino to the guns being stored
by Silva.
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be disclosed. Unless defense counsel becomes aware that other
exculpatory evidence was withheld and brings it to the court's
attention, the prosecutor's decision on [Brady] disclosure is
final." Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987) (footnote
omitted); see also Brandon, 17 F.3d at 456 (finding insufficient a
defendant's "speculat[ion] that the . . . files might contain
exculpatory evidence" without "any supporting evidence or arguments
to indicate this was, in fact, the case"). There was no abuse of
discretion in crediting the prosecution's adamant assertion that it
had no further material and exculpatory evidence.
C. Conflict of Interest
Paul A. requests a new trial based on his trial
attorney's alleged conflicts of interest and the trial court's
unwillingness to hold an evidentiary hearing on the matter. We
review this question de novo. Reyes-Vejerano v. United States,
276 F.3d 94, 97 (1st Cir. 2002).
Paul A. alleges that his counsel, John Salsberg, suffered
from two conflicts of interests: that his law partner previously
represented Jon Minotti, a potential defense witness, and that his
associate had previously worked for an attorney who had represented
Vincent Marino in the Carrozza case. See United States v. Ramirez-
Benitez, 292 F.3d 22, 29 (1st Cir. 2002) ("Representation of co-
indictees by members of the same law firm may create a conflict of
interest similar to that when a single attorney represents two or
more co-defendants."). Paul A. argues there was some evidence that
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Minotti had additional information about Silva's murder, owned some
of the guns found in Silva's apartment, and had told an
acquaintance that he had participated in the Stevens robbery.
Salsberg's partner withdrew his representation of Minotti when
Salsberg was appointed to represent Paul A. Salsberg's motion for
a writ of habeas corpus to procure Minotti's testimony was denied
because the court concluded that his testimony would be
inadmissible. As for Marino, Paul A. does not describe what, if
any, work Salsberg's associate might have done on Marino's case at
his prior firm. The court did approve Salsberg's motion requesting
Marino's transport from prison to testify but did not order the
marshals to expedite the process; as a result, Marino never
testified.
Prior to jury impanelment, Paul A. filed a pro se motion
requesting new counsel, but that motion and the in-court discussion
it generated focused on whether Salsberg was prepared for trial.
Towards the very end of the trial, Paul A. filed a series of pro se
motions requesting new counsel; those motions focused on Salsberg's
alleged conflicts of interest. The court summarily denied these
later pro se motions.
On appeal, Paul A. is mistaken as to the law: reversal is
not automatic when a trial judge fails to conduct a proper inquiry
into a potential conflict of interest. See Mickens v. Taylor, 535
U.S. 162, 170-73 (2002); United States v. Newton, 326 F.3d 253,
263-64 (1st Cir. 2003). This is because, as the Supreme Court has
-73-
explained, "defects in assistance [of counsel] that have no
probable effect upon the trial's outcome do not establish a
constitutional violation." Mickens, 535 U.S. at 166. Even if the
possibility of a conflict of interest was apparent enough to
require the trial court to conduct a formal inquiry into the issue
-- a question that is not immediately clear on the facts of this
case -- "the trial court's failure to make [that] inquiry does not
reduce [Paul A.'s] burden of proof." Id. at 173-74; see also id.
at 168-69 (discussing when a court has a duty to inquire into a
potential conflict of interest). Paul A. still bears the burden
of showing that the conflict of interest he alleges went beyond a
"mere theoretical division of loyalties" and in fact "adversely
affected his counsel's performance." Id. at 171, 174.23
This showing by a defendant of an actual conflict is less
burdensome than that required to establish ineffective assistance
of counsel claims. United States v. Burgos-Chaparro, 309 F.3d 50,
52 (1st Cir. 2002). Here the defendant must demonstrate that his
23
Contrary to Paul A.'s assertions, nothing in Mickens
suggests that the Court intended its holding to apply to only those
cases in which the defendant did not raise a conflict of interest
concern during the trial, nor does the automatic reversal rule of
Holloway v. Arkansas, 435 U.S. 475 (1978) -- which the Mickens
Court cabined very narrowly -- apply here where counsel did not
himself object at trial. See Mickens, 535 U.S. at 168 (Holloway's
automatic reversal rule applies "only where defense counsel is
forced to represent codefendants over his timely objection, unless
the trial court has determined that there is no conflict" (emphasis
added)). While Salsberg did raise other concerns before the trial
court about his ability to represent Paul A., he never informed the
court that he himself believed that he was unable to represent Paul
A. due to a conflict of interest.
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counsel's performance was affected by the conflict, but need not
also establish that the difference in performance prejudiced him in
the same sense as in an ineffective assistance claim. Id.24
Showing an adverse effect, however, still requires more than mere
speculation, id. at 53; the defendant "must show that [the
attorney] might plausibly have pursued an alternative defense
strategy, and that the alternative strategy was in conflict with,
or may not have been pursued because of, [the attorney's] other
loyalties or interests," Ramirez-Benitez, 292 F.3d at 30; see also
United States v. Lachman, 521 F.3d 12, 21 (1st Cir. 2008). This
Paul A. fails to do.
Paul A. makes no viable argument as to what Salsberg
might have done differently. He accuses Salsberg of not obtaining
Minotti's testimony, but Salsberg did attempt to procure Minotti's
testimony; that the court denied the request for evidentiary
reasons is unrelated to the question of Salsberg's allegedly
divided loyalties. As for Marino, Paul A. accuses Salsberg of not
actively interviewing Marino or requesting his appearance in a
timely manner. This, however, is not an accusation that Salsberg
24
The Supreme Court in Mickens expressly did not reach the
question of whether this "actual conflict" standard, requiring some
showing of an actual adverse effect but not of prejudice, should
apply to cases of successive representation, such as this one.
Mickens, 535 U.S. at 176. Like the Mickens Court, we reserve this
question for another day and grant Paul A. the benefit of the
assumption that the actual conflict standard is available to him;
from the record before us, we doubt Paul A. could otherwise muster
a showing of prejudice.
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failed to pursue an alternative defense strategy, but that he did
not pursue Paul A.'s desired strategy to Paul A.'s satisfaction.
Cf. Lachman, 521 F.3d at 21-22 (finding no conflict of interest
where counsel did present defendant's desired defense theory).25
Nor does Paul A. clarify how any inaction on Salsberg's part was in
fact the manifestation of divided loyalties.26 Cf. Burgos-Chaparro,
309 F.3d at 53 (defendant must offer some showing that attorney's
alleged shortcomings were in fact due to divided loyalties).
There is thus no showing of an actual conflict of
interest. This claim fails.
D. Pre-Indictment Delay
Paul A. complains that the government could have brought
the robbery- and drug-related charges in this case at the same time
as the charges prosecuted in the Carrozza trial. He asserts that
the failure to press these charges earlier was a tactical decision
by the government and that he was prejudiced by having to mount a
separate defense at the later DeCologero trial. We review the
district court's refusal to dismiss the charges due to pre-
25
Such allegations might instead go to the effectiveness of
Salsberg's representation, but that tack would likely fail for lack
of prejudice -- required to establish an ineffectiveness of counsel
claim -- resulting from these alleged shortcomings.
26
Paul A.'s argument that the failure of Tony Bucci to
testify for the defense had anything to do with Salsberg's alleged
conflicts of interest is simply not borne out by the record. The
debate over Bucci's testimony revolved primarily around Bucci's
Fifth Amendment rights; there is no indication that Salsberg tried
to prevent Bucci from testifying due to the role of Minotti as a
government witness in Bucci's concurrent criminal case.
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indictment delay for abuse of discretion. Muñoz-Franco, 487 F.3d
at 58. The court correctly determined there was no constitutional
violation here.
Pre-indictment delay does not implicate the Sixth
Amendment's Speedy Trial provision, but the Supreme Court has
acknowledged that the Due Process Clause of the Fifth Amendment
"has a limited role to play in protecting against oppressive [pre-
indictment] delay." United States v. Lovasco, 431 U.S. 783, 789
(1977) (summarizing United States v. Marion, 404 U.S. 307, 324
(1971)). The Due Process Clause has only a limited role in this
context because the statutes of limitations provide the primary
protection against undue pre-indictment delays. Id.; Soto-
Beníquez, 356 F.3d at 25. To rise to the level of a due process
violation despite the applicable statute of limitations not having
run, the delay (1) must have "caused substantial prejudice to
[defendant's] rights to a fair trial" and (2) "was an intentional
device" used by the prosecution "to gain tactical advantage over
the accused." Marion, 404 U.S. at 324; see also Soto-Beníquez, 356
F.3d at 25. "Substantial prejudice" means more than inconvenience;
it requires a showing of actual prejudice, and even the
unavailability of witnesses or evidence might not be sufficient to
meet this burden. See Muñoz-Franco, 487 F.3d at 59.
Paul A. argues that the separate trials prevented him
from developing his defense -- that Regan worked for Salemme and
was framing Paul A. in the context of the war between the Carrozza
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and Salemme factions -- in the second case. The exclusion of some
evidence in the present trial did not cause Paul A. substantial
prejudice, as he was still allowed to present his defense theory to
the jury, even if not to the full extent he desired.
There is also no evidence suggesting a prosecutorial
purpose of obtaining tactical advantage as there is no evidence
that the prosecution knew in 1997 what Paul A.'s defense would be
in the present case.
There is, on the other hand, a reasonable explanation for
the prosecution's delay. As Lovasco makes clear, prosecutors
retain discretion to delay charges until investigations are
complete and all other considerations have been weighed. Lovasco,
431 U.S. at 790-91. Paul A. attempts to distinguish Lovasco by
arguing that the delay here was not due to an ongoing
investigation. First, ongoing investigations are not the only
constitutionally acceptable explanations for pre-indictment delays.
See id. 792-95. Second, Paul A. concedes that the investigation
into Silva's murder was not completed at the time of the Carrozza
trial. Contrary to Paul A.'s characterization, that crime was
closely related to the other crimes charged in the present
indictment: Silva's murder was an effort to avoid prosecution for
and was thus part of the conspiracy to commit the robberies, drug
dealing, and other crimes that Paul A. argues should have been
prosecuted sooner. There was no unconstitutional pre-indictment
delay.
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E. Denial of Continuances
We turn to the final issue on appeal. After the court
appointed Paul A. a new lawyer on September 23, 2004, it pushed the
trial back from that week until January 9, 2006 -- a delay of
fifteen months. Defense counsel requested a further six-month
continuance in November 2005, which the court denied. On January
6, 2006, Paul A.'s attorney sought a one- or two-week continuance,
which the court again denied. Paul A. argues on appeal that the
court's refusal to grant these continuances violated his Sixth
Amendment right to effective assistance of counsel. We disagree.
We review for abuse of discretion a district court's
denial of a motion for continuance. Rodriguez-Marrero, 390 F.3d at
21-22. "[B]road discretion must be granted trial courts on matters
of continuances; only an unreasoning and arbitrary 'insistence upon
expeditiousness in the face of a justifiable request for delay'
violates the right to assistance of counsel." Morris v. Slappy,
461 U.S. 1, 11-12 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575,
589 (1964)). "A defendant is generally not entitled to a new trial
unless he or she can identify specific ways in which the court's
erroneous denial of a continuance prejudiced his or her defense."
Rodriguez-Marrero, 390 F.3d at 22.
Paul A. points to no such prejudice. Instead, he argues
in general terms that his counsel did not have enough time to
prepare. This was a complex case with extensive discovery.
However, counsel was given twice as long as Paul A.'s formal
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counsel had estimated would be necessary (even accounting for the
new counsel's participation in another lengthy trial during those
fifteen months). As the district court pointed out, conscientious
lawyers will always feel that they could do more to prepare. The
district court's decision to go forward after a fifteen-month delay
was well within its discretion.27
V.
After careful review, we deny all appeals and affirm the
district court and the convictions on all counts.
27
Paul A. also argues that the district court abused its
discretion in denying his motion for a continuance on the first day
of trial so he could seek advice on his lawyer's potential conflict
of interest, see supra. This motion was untimely, especially as
the question of his representation had been thoroughly canvassed in
pre-trial motion practice. See, e.g., Rodriguez-Marrero, 390 F.3d
at 22. It was also, in the district court's view, a purely
dilatory tactic.
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Appendix
Key:
G = Guilty
NG = Not Guilty
RA = Racketeering Act
(Some counts for which no defendants were convicted are not
discussed in this opinion.)
Count Crime Paul A. Paul J. John Jr. Pavone
1 RICO Conspiracy G G G G
2 Substantive RICO G G G G
RA 1-A: Conspiracy G G
to Murder (Silva)
RA 1-B: Attempted G G
Murder (Silva)
RA 1-C: Murder G
(Silva)
RA 1-D: Witness G G
Tampering (Attempt
to Kill)
RA 1-E: Witness G
Tampering (Killing)
RA 2: Witness G G G
Tampering
(Misleading)
RA 3: Hobbs Act G G G NG
Conspiracy (Robbery)
RA 4-A: Hobbs Act NG NG NG
Robbery (Godreau)
RA 4-B: Possession NG NG NG
of Marijuana with
Intent to Distribute
RA 4-C: Kidnaping NG NG
(Godreau)
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Count Crime Paul A. Paul J. John Jr. Pavone
RA 4-D: Armed NG NG NG
Robbery (Godreau)
RA 5-A: Hobbs Act G
Robbery (Stevens)
RA 5-B: Possession G
of Marijuana with
Intent to Distribute
RA 5-C: Kidnaping G
(Stevens)
RA 5-D: Armed G
Robbery (Stevens)
RA 5-E: Kidnaping G
(Diaz)
RA 5-F: Kidnaping G
(Mahlo)
RA 6-A: Hobbs Act NG NG NG
Robbery (Sapochetti)
RA 6-B: Kidnaping G NG G
(Sapochetti)
RA 6-C: Kidnaping G NG G
(Bolger)
RA 6-D: Kidnaping G NG G
(Sullivan)
RA 7: Hobbs Act NG NG
Robbery (North)28
RA 8-A: Hobbs Act NG NG
Robbery (Soccorso)
RA 8-B: Armed G G
Robbery (Soccorso)
RA 8-C: Kidnaping G G
(Soccorso)
RA 8-D: Kidnaping G G
(Ramus)
28
This RA charged a robbery of North prior to the October
1996 burglary of North's apartment.
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Count Crime Paul A. Paul J. John Jr. Pavone
RA 8-E: Possession G G
of Marijuana with
Intent to Distribute
RA 9-A: Hobbs Act G G G
Robbery (Pesaturo)
RA 9-B: Hobbs Act G G G
Robbery (Bentley)
RA 9-C: Kidnaping G G G
(Pesaturo)
RA 9-D: Kidnaping G G G
(Bentley)
RA 9-E: Possession G G G
of Cocaine with
Intent to Distribute
RA 10-A: Attempted NG NG
Hobbs Act Robbery
(Pollard)
RA 10-B: Kidnaping NG NG
(Pollard)
RA 11: Conspiracy to G G
Possess Marijuana
with Intent to
Distribute (North)
RA 12: Conspiracy to G G
Possess Cocaine with
Intent to Distribute
(Silva)
RA 13: Possession of G NG
Cocaine with Intent
to Distribute
RA 14: Extortion G G G
(Finethy)
3 Conspiracy to Tamper G G G
with a Witness
4 Tampering with a G G G
Witness (Misleading)
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Count Crime Paul A. Paul J. John Jr. Pavone
5 Tampering with a G G
Witness (Attempted
Murder)
6 Tampering with a G
Witness (Murder)
7 Hobbs Act Conspiracy G G G NG
(Robbery)
8 Hobbs Act Robbery G
(Stevens)
9 Possession of G
Marijuana with
Intent to Distribute
(Stevens)
10 Using/Carrying a G
Firearm (Stevens)
11 Hobbs Act Robbery NG NG NG
(Sapochetti)
12 Using/Carrying a G NG G
Firearm (Sapochetti)
13 Hobbs Act Robbery NG NG NG
(Godreau)
14 Possession of NG NG NG
Marijuana with
Intent to Distribute
15 Using/Carrying a NG NG
Firearm (Godreau)
16 Conspiracy to G G
Possess Marijuana
with Intent to
Distribute (North)
17 Felon-in-Possession G G
of a Firearm
18 Conspiracy to G G
Possess Cocaine with
Intent to Distribute
(Silva)
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