No. 94-1593
UNITED STATES OF AMERICA,
Appellee,
v.
PASQUALE G. BARONE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Boudin, Circuit Judge,
Campbell and Bownes, Senior Circuit Judges.
Bernard Grossberg for appellant.
Cynthia A. Young, Attorney, United States Department of Justice,
with
whom
Donald
K.
Stern, United States Attorney, and Jeffrey Auerhahn,
Assistant United States Attorney, were on brief for appellee.
June 6, 1997
BOWNES, Senior Circuit Judge. Defendant-appellant
Pasquale
G.
"Patsy"
Barone and seven co-defendants were charged
in
a
sixty-five-count superseding indictment with a variety of
RICO1 and other offenses. The indictment charged Barone with
RICO conspiracy in violation of 18 U.S.C. S 1962(d) (Count
One); the underlying substantive RICO offense in violation of
18 U.S.C. S 1962(c) (Count Two); conspiracy to commit the
murder of Vincent James "Jimmy" Limoli, Jr. in aid of
racketeering
(Count Three), and the murder of Limoli in aid of
racketeering (Count Four), both in violation of 18 U.S.C.
S 1952(B), now codified as amended at 18 U.S.C. S 1959.
Because of the pendency of the government's appeal
from the district court's ruling in favor of Barone on his
motion to suppress certain post-arrest statements, see United
States v. Barone, No. 89-289-WF, 1991 WL 353883 (D. Mass.
1. RICO refers to the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. SS 1961-1968. The provisions
pertinent to this appeal, 18 U.S.C. S 1962 subsections (c)
and (d), read as follows:
(c) It shall be unlawful for any
person employed by or associated with any
enterprise engaged in, or the activities
of which affect, interstate or foreign
commerce, to conduct or participate,
directly or indirectly, in the conduct of
such enterprise's affairs through a
pattern of racketeering activity or
collection of unlawful debt.
(d) It shall be unlawful for any
person to conspire to violate any of the
provisions of subsection (a), (b), or (c)
of this section.
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2
Aug. 21, 1991), aff'd, 968 F.2d 1378 (1st Cir. 1992), the
district
court
ordered
that Barone be tried separately from his
co-defendants (who, with the exception of one who was a
fugitive at the time, subsequently pleaded guilty). On
October 20, 1993, after a nine-week trial, the case was
submitted
to
the
jury.
On October 25, and again on October 27,
1993, the district court gave the jury a "modified
Allen charge" in response to communications from the jury
indicating that it was deadlocked. On October 28, 1993, the
district court, acting pursuant to Federal Rule of Criminal
Procedure 23(b), dismissed one of the jurors for just cause
after
conducting
a
lengthy inquiry into the effect on the juror
and the jury of the juror's unsolicited receipt of extra-
judicial
information
from a Federal Protective Service Officer.
Having determined that the remaining jurors were capable of
continuing to deliberate fairly and impartially, the district
court exercised its discretion under Rule 23(b) to allow the
remaining
eleven
jurors
to deliberate to a verdict, rather than
declare a mistrial.
On
October
29, 1993, the eleven-member jury returned
verdicts of guilty as to Counts One through Three, but failed
to agree as to Count Four, the murder charge. The district
court accepted the jury's verdicts as to Counts One through
Three and declared a mistrial as to Count Four. On
December
20,
1993,
Barone filed a motion for a new trial, which
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the district court denied on January 25, 1994. United States
v. Barone, 846 F. Supp. 1016 (D. Mass. 1994). On April 25,
1994,
the
court sentenced Barone to life imprisonment on Count
Three and to twenty years on each of Counts One and Two, with
each sentence to be served concurrently with the others.
Barone now appeals his conviction. We affirm.
I.
The superseding indictment charged Barone with
agreeing to participate and participating in the following
predicate
acts
of
racketeering, see United States v. Saccoccia,
58 F.3d 754, 764 (1st Cir. 1995), cert. denied, --- U.S. ---,
116 S. Ct. 1322 (1996), as an "associate" of the Patriarca
Family
of
La
Cosa Nostra (also known as the Mafia; hereinafter
"LCN"), alleged to be the RICO enterprise: (i) assault with
intent to murder, murder of Anthony "Dapper" Corlito, and
conspiracy
to do the same; (ii) assault with intent to murder,
murder of Jimmy Limoli on behalf of Vincent M. "Vinnie"
Ferrara,
and
conspiracy to do the same; and (iii) assault with
intent
to
murder Social Services Credit Union ("credit union")
security guard Kenneth McPhee, assault with intent to rob
Kenneth McPhee and credit union employee Lucy LoPriore, and
robbery of Lucy LoPriore of property belonging to the credit
union. The indictment also charged Barone with a number of
overt acts of the racketeering conspiracy.
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We summarize the facts relating to these predicate
acts,
insofar as relevant to the issues raised in this appeal,
taking the evidence as the jury could permissibly have found
it, and viewing the record and drawing all reasonable
inferences
in
the
light
most favorable to the government. See,
e.g.
,
United
States v. Zannino, 895 F.2d 1, 4 (1st Cir. 1990).
The testimony of expert and cooperating witnesses
established the existence, structure, and nature of the
Patriarca Family -- as an organized "enterprise" within the
meaning of 18 U.S.C. S 1961(4), conspiring to and engaging in
loansharking,
bookmaking, drug trafficking, extortion, murder,
obstruction of justice, and other illegal activity -- and
Barone's
activities
and
relationships to others as an associate
of the Patriarca Family. See generally United States v.
Angiulo, 847 F.2d 956, 973-75 (1st Cir. 1988) (allowing FBI
agent to testify as an expert regarding the structure and
operations of the Patriarca Family of LCN, and the nature of
the defendants' relationships to the organization).
In the early 1980s, the Patriarca Family was run by
boss Raymond Patriarca, Sr., underboss Gennaro "Gerry"
Angiulo, consigliere Vittore Nicolo Angiulo, and capo regimes
including Donato F. "Danny" Angiulo, Samuel S. Granito, and
Ilario
M.A.
Zannino. When Raymond Patriarca, Sr. died in July
1984,
Raymond
Patriarca,
Jr. became the boss and William Grasso
became the underboss. In the late 1970s and early 1980s,
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5
Vincent Ferrara was an associate of the Patriarca Family
assigned to the regime of Danny Angiulo. In 1983, Ferrara
became
a
"made member" and soldier in Danny Angiulo's regime.2
Barone and his close friend Limoli were associates of the
Patriarca Family who both wanted to become "made members" of
the organization, and who began their efforts to accomplish
this goal by selling illegal fireworks for Ferrara in the
1970s.
Walter Anthony Jordan (hereinafter "Jordan")
testified for the government at Barone's trial. He and his
brother Chris Jordan were also associates of the Patriarca
Family. Jordan met Barone and Limoli in late 1981 or early
1982. Barone later married Jordan's sister Kim. Limoli was
Barone's
best
man
at
the
wedding and became godfather to Barone
and
Kim's
child. Beginning in the summer of 1984, Jordan sold
illegal
fireworks,
giving the money from the sales to Limoli or
Barone. Jordan testified that Barone told him that all the
2. According to the government's evidence, an LCN family is
headed by a "boss," with an "underboss" as second in command.
The official counselor or advisor to the family is known as
the "consigliere." Below the underboss are "capo regimes,"
or captains of the LCN family. Assigned to each capo regime
are "soldiers," who are "made members" of the family. An
individual who has been nominated for membership in the
family is a "proposed member," and an "associate" is one who,
although not a "made member," works for or performs services
for the family. Members and associates are required to obey
their superiors in the family, to obtain permission from
their superiors before engaging in criminal activity, and to
commit criminal acts, including murder, as directed by their
superiors.
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6
money from these sales went to Ferrara, with Barone receiving
a percentage, along with Ferrara's loyalty. Jordan also
testified that Barone told him that he needed Ferrara's
permission
in order to commit any illegal activities, and that
he was "under [Ferrara's] wing," and would be a "made member"
of the Patriarca Family one day, moving up in the ranks with
Ferrara.
One
of
the
predicate acts of racketeering with which
Barone
was
charged
is
the murder of Anthony Corlito, who, along
with Giacomo A. "Jackie" DiFronzo and others, was a member of
a rival North End gang. Jordan testified that Ferrara and
DiFronzo "didn't get along" because DiFronzo had "ripped off"
the Angiulos' North End card games during the late 1970s.
Elizabeth
DiNunzio,
Limoli's sister, testified that Limoli told
her that Gerry Angiulo hired Ferrara -- who then enlisted the
aid of Limoli -- to kill DiFronzo because DiFronzo "had a bad
drug problem" and "was robbing all the people in the North
End." DiNunzio testified that Limoli told her that, on
December
11,
1977, after fighting with DiFronzo at an Endicott
Street club, Ferrara shot DiFronzo in the head; that Limoli
thereafter
kicked
DiFronzo in the head; and that the two placed
DiFronzo in a chair and set the chair and the club on fire.
Jordan testified that Corlito swore vengeance on
Ferrara for the murder of DiFronzo, and that Corlito was
murdered by Ferrara, Limoli, and Barone on July 21, 1979.
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7
According to Jordan, Barone told him that he, Limoli, and
Ferrara came upon Corlito and his girlfriend on Fleet Street
and
started
shooting
at
Corlito. After Ferrara left the scene,
Limoli
continued to fire at Corlito and Barone urged Limoli to
leave. Eventually, Barone and Limoli ran to Hanover Street,
where they got into a car and drove off. DiNunzio testified
that
Limoli
told
her
that Ferrara paid Limoli and Barone $1,000
each for killing Corlito.
Another racketeering offense with which Barone was
charged
is
the November 5, 1982 robbery of credit union teller
Lucy
LoPriore
of
a
bag
of cash belonging to the credit union as
she and security guard Kenneth McPhee walked from the First
National Bank on Hanover Street to the credit union at the
corner of Parmenter and Salem Streets in the North End.
According
to
witnesses, the robbery occurred between 10:00 and
10:30 a.m. and was perpetrated by two masked men. In the
course of the robbery, McPhee was shot in the calf and in the
neck. The owner of a Salem Street hardware store saw Limoli
run down Salem Street from Parmenter Street.
Jordan testified that Barone told him that he and
Limoli were responsible for the robbery and that Barone had
shot the security guard in the neck. Barone said that the
stolen cash amounted to $30,000, with Ferrara taking $15,000,
and Limoli and Barone splitting the rest between them.
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8
DiNunzio
testified
that,
on the morning of the credit
union robbery, Limoli came to her house carrying a box and
asked her for lemon juice, saying that if you wash your hands
with lemon juice, "they can't tell that you shot a gun."
According to DiNunzio, after the robbery was reported on the
noontime news, Limoli admitted to her that he and Barone had
committed the robbery; that he had shot security guard McPhee
in the foot; and that Barone had shot McPhee in the neck.
DiNunzio testified that Barone and Chris Jordan later joined
Limoli
at
her house, at which time Barone admitted that he had
shot the guard in the neck.
Barone was also charged with the murder of Limoli,
which had its origins in a plan hatched by Limoli and Frank
Salemme,
Jr.
to commit another in a series of "drug rip-offs,"
executed by passing off wood chips or peat moss as marijuana.
Jordan
and
DiNunzio
testified that in the spring of 1985, while
Limoli was in Florida, Salemme, Jr. and others, including
Walter Jordan, went ahead with the planned rip-off scheme,
although Limoli had asked Salemme, Jr. to wait for him to
return to town before "doing the deal." When Limoli learned
that
Salemme, Jr. and his cohorts had completed the rip-off by
delivering peat moss in exchange for a $100,000 down payment,
he
vowed
to
get even with Salemme, Jr. for cheating him out of
$35,000.
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Jordan testified that in September of 1985, Barone
told him that Limoli had stolen a bag containing cash and
$100,000
worth
of
cocaine that he believed belonged to Salemme,
Jr., but which actually belonged to Antonio L. "Spucky"
Spagnolo, a Patriarca Family soldier. According to Jordan,
Barone
told
him that Limoli gave $30,000 of the stolen cash to
Barone and that Barone kept the cash in his freezer until the
cash
and
cocaine were eventually returned. DiNunzio testified
that Limoli told her that he took the bag to his girlfriend
Lena Chiuchiolo's house; that he was seen with the bag by
Lena's sister Annette, who was Salemme, Jr.'s girlfriend; and
that
Annette
told
Salemme, Jr. what she had seen. According to
DiNunzio, Limoli told her that the story of his theft of the
bag
eventually reached Spagnolo, the true owner of the bag, as
well as other, high-level Patriarca Family members.
Limoli
told
DiNunzio
that he was questioned about the
incident in separate meetings with Samuel Granito and Frank
Salemme, Sr., and during an alleyway "meeting" with Salemme,
Jr.,
Danny
Angiulo, Ferrara, Spagnolo, and Peter "Doc" Limone.
Limoli told DiNunzio that, in the course of the alleyway
meeting, he repeatedly denied taking the bag, but eventually
admitted
it
when
he
was
told that Annette had seen him with the
bag
and
had
told
Salemme, Jr. about it. According to DiNunzio,
Ferrara told Limoli, "I could whack you right here," but
"[w]e'll forget about it and let's go on from here." Limoli
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10
told
DiNunzio
that
"that's not the way the guys work," and that
he knew that they were going to kill him.
Jordan testified that Barone told him that, because
he
had
stolen
from
a
made member of the LCN, "Jimmy got the X,"
meaning
that
he
(Limoli)
would no longer be permitted to engage
in LCN activities. A week or two later, Barone told Jordan
that Ferrara had ordered Limoli killed because of this
incident.
According
to
Jordan, he was with Barone when Ferrara
called
Barone
at
home
on
the evening of October 28, 1985 to say
that
Limoli
had
to
be
killed. On Barone's instructions, Jordan
called Limoli to set up a deal involving the sale of drugs,
with a meeting to take place at about 8:00 p.m. that night at
D'Amore's Restaurant in the North End. The two then left
Barone's
house, each carrying gloves and Barone carrying a .38
caliber revolver.
Jordan testified that, on Barone's instructions, he
called
Limoli at D'Amore's from the nearby European Restaurant
before the two went to meet him. When they arrived at
D'Amore's, Jordan went inside to get Limoli, and when Limoli
came
out
of
the restaurant and saw Barone, he told Jordan that
he
had
wanted him to come alone. Limoli then talked privately
with Barone, after which he returned to the restaurant while
Barone
and
Jordan
left
to retrieve Barone's car, which they had
parked elsewhere. When Barone and Jordan returned to
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D'Amore's,
Limoli left the restaurant and got into the waiting
car, which then drove off, with Jordan driving.
Maureen Karpowicz-DiPietro, Limoli's cousin,
testified that, shortly after 8:00 p.m. on October 28, 1985,
she and a friend went with Limoli to D'Amore's, where Limoli
received a telephone call and then a visit from Jordan.
According
to
Karpowicz-DiPietro, Limoli met Jordan outside the
restaurant and apparently became angry when he saw Barone.
Limoli yelled at Jordan but then talked privately with Barone
before returning to the restaurant. Jordan and Barone then
left, returning to D'Amore's shortly after 10:00 p.m. in
Barone's car. Karpowicz-DiPietro testified that Limoli put a
cloth napkin in a brown paper bag, said "that will do it,"
asked her to meet him later, and then left the restaurant to
join Barone and Jordan. DiNunzio testified that Limoli told
her that he was going to rob Barone and Jordan that night.
Jordan testified that, after he parked the car next
to the cemetery at the intersection of Snowhill and Hull
Streets, the three men got out of the car. According to
Jordan, Barone shot Limoli in the back of the head at about
10:25
p.m.
as
the
three
men walked up Hull Street. When Limoli
fell to the ground, Jordan grabbed the brown paper bag that
Limoli was carrying and then ran back down Hull Street with
Barone.
After they crossed Snowhill Street, Jordan discovered
that the bag contained only cloth napkins. Jordan testified
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12
that, after the discovery, Barone ran back up Hull Street,
followed by Jordan, and that when he reached Limoli, Barone
leaned
over
him, shouted "Why, Jimmy?" and fired the remaining
bullets into Limoli's head. Barone then directed Jordan to
search Limoli's body for money, which Jordan did, finding and
taking
a
wad
of
$100
bills and a .45 caliber gun, both of which
he gave to Barone. At this point Barone said, "Walter, let's
go," and the two began running back down Hull Street,
eventually
arriving
at
Barone's house. While there, Barone put
the murder weapon into a plastic garbage bag, along with his
clothes
and
Jordan's clothes. The next day, Barone and Jordan
walked out onto a pier with the bag and the gun and Barone
threw them both into Boston Harbor.
II.
Barone argues that Limoli's out-of-court statements
were
inadmissible hearsay and that the district court erred by
admitting them over his objection through the testimony of
Maureen Karpowicz-DiPietro and Elizabeth DiNunzio. The
district
court admitted the hearsay testimony largely pursuant
to Federal Rule of Evidence 804(b)(3), which creates an
exception to the hearsay rule for statements against the
declarant's interest, including penal interest.
Barone argues that the statements were inadmissible
under
Rule
804(b)(3)
because they were (i) not against Limoli's
penal
interest; (ii) not sufficiently corroborated by properly
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13
admitted independent evidence; and (iii) inadmissible under
Williamson v. United States, 512 U.S. 594 (1994), which was
decided while Barone's appeal was pending, because the
statements
are not individually self-inculpatory. Barone also
objects to the admission of Limoli's statements on
constitutional grounds, arguing that the introduction of this
evidence
violated his rights under the Confrontation Clause of
the Sixth Amendment.
A.
1.
The out-of-court statements of a non-testifying
declarant ordinarily are excluded as hearsay if offered to
prove the truth of the matter asserted. See, e.g., United
States v. Sepulveda, 15 F.3d 1161, 1180 (1st Cir. 1993). The
rule against hearsay reflects concerns about the
trustworthiness of out-of-court statements, arising from the
fact
that
such
statements are not subject to the tests normally
applied to in-court testimony to ensure its reliability.
Exceptions to the hearsay rule permit courts to admit certain
hearsay statements that bear indicia of reliability and
trustworthiness sufficient to overcome these concerns.
One such exception is Federal Rule of Evidence
804(b)(3), which provides that, if the hearsay declarant is
unavailable
to
testify
as an in-court witness (a point which is
not in dispute here), the hearsay rule does not exclude
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A statement which was at the time of its
making so far contrary to the declarant's
pecuniary or proprietary interest, or so
far tended to subject the declarant to
civil or criminal liability, . . . that a
reasonable person in the declarant's
position
would not have made the statement
unless believing it to be true. A
statement tending to expose the declarant
to criminal liability and offered to
exculpate the accused is not admissible
unless
corroborating circumstances clearly
indicate the trustworthiness of the
statement.
Barone
moved
in
limine
to exclude Limoli's statements
from
DiNunzio's testimony, arguing, as he does on appeal, that
the statements do not meet the "against interest" and
"corroborating circumstances" requirements of Rule 804(b)(3),
and that the admission of these statements would violate his
confrontation
rights. Barone raised no objection in limine to
the testimony of Karpowicz-DiPietro.
The district court ruled from the bench that
DiNunzio's proposed testimony regarding what Limoli told her
about his criminal activities, including those activities
undertaken with Barone and others, was admissible under Rule
804(b)(3) as interpreted by this court in United States v.
Seeley
,
892
F.2d 1 (1st Cir. 1989), and that admission of this
testimony would not violate the Confrontation Clause. The
court found that Limoli was unavailable; that his statements
regarding his participation in crimes on behalf of the
Patriarca Family were against his penal interest; and that
sufficient corroboration and indicia of reliability attended
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15
the making of the statements. The court also ruled that
Federal Rule of Evidence 403 did not operate to exclude the
disputed evidence.
The district court found that the context and
circumstances in which the hearsay statements were made
demonstrated
their trustworthiness and reliability. The court
reasoned that Limoli had made the statements to a person
(DiNunzio) with whom he had a very close relationship, rather
than to the police, and that he therefore had no motive to
curry
favor
with law enforcement officials and no incentive to
diminish his role in the criminal activity described in the
statements
by
shifting
blame to Barone or to others. The court
also
found
that the detailed nature of the statements, the in-
court
testimony
of
Walter Jordan and others, and other evidence
(e.g., evidence lawfully obtained through electronic
surveillance) satisfied the corroborating circumstances
requirement
of Rule 804(b)(3) and supplied the "particularized
guarantees of trustworthiness" required by the Confrontation
Clause. In addition, while noting that, under Seeley,
DiNunzio's credibility was not part of the admissibility
analysis but was a question for the jury, the district judge
nevertheless
found
that
DiNunzio had no reason to cast blame on
Barone or to exculpate herself.
The court recognized that DiNunzio arguably could
have
been
motivated to fabricate testimony by a desire to seek
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revenge for her brother's murder, but found it to be unlikely
that someone who grew up in the North End, as DiNunzio did,
would falsely accuse Ferrara (who was well known and widely
reputed
to
be a dangerous Mafia killer) or his associates, and
that DiNunzio related to law enforcement authorities the
essential elements of the challenged testimony before Barone
and
Ferrara
were apprehended. The court concluded that issues
such
as
DiNunzio's
possible motive to fabricate ultimately went
to her credibility (a jury question), rather than to the
trustworthiness of the hearsay statements (a question of
admissibility
of
evidence to be decided by the court), and that
DiNunzio could be cross-examined on these matters.
The
district
judge
concluded his ruling by cautioning
that,
although
he
would
admit the testimony generally, it would
be
necessary
to "go statement by statement to see if there are
parts of it that are inadmissible."
2.
Before proceeding to our analysis of Barone's
evidentiary challenge, we must iron out a few wrinkles
concerning the extent to which Barone may be deemed to have
preserved the issue for appeal, and the related question of
what standard of review under Federal Rule of Criminal
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17
Procedure 52 -- harmless error or plain error -- should be
applied to this issue on appeal.3
At
trial,
Barone
objected at the outset of Karpowicz-
DiPietro's testimony (without stating the grounds), and this
objection led to a side-bar conference that included a
discussion of the admissibility of Limoli's statements as
declarations against penal interest. After hearing the
government's
outline
of
Karpowicz-DiPietro's proposed testimony
and
briefly
entertaining
argument by both parties, the district
court ruled that Limoli's statements were admissible as
declarations against penal interest, but that his statements
regarding what Ferrara reportedly said to him would not be
allowed. Barone made no further hearsay objection to
Karpowicz-DiP
ietro's testimony, and failed altogether to renew
his objection to the admission of Limoli's statements through
DiNunzio's testimony, although he objected several times on
other grounds.
We find Barone's contemporaneous objection to
Karpowicz-DiPietro's
test
imony to be sufficient to preserve the
3. Federal Rule of Criminal Procedure 52 provides as
follows:
(a) Harmless Error. Any error,
defect, irregularity or variance which
does not affect substantial rights shall
be disregarded.
(b) Plain Error. Plain errors or
defects affecting substantial rights may
be noticed although they were not brought
to the attention of the court.
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hearsay
objection as to her testimony, and therefore the issue
is subject to harmless error review under Federal Rule of
Criminal Procedure 52(a). The question whether Barone's
objection
was properly preserved as to DiNunzio's testimony is
a different matter, however, because Barone did not, as our
case law requires, renew his hearsay objection at trial.4
We have repeatedly held that a "motion in limine
without
subsequent,
contemporaneous objection at trial . . . is
ordinarily insufficient to preserve an evidentiary ruling for
appeal," and that, absent a timely objection at trial, our
review
is
solely
for
plain error under Federal Rule of Criminal
Procedure 52(b). United States v. Reed, 977 F.2d 14, 17 (1st
Cir. 1992). See United States v. Lombard, 72 F.3d 170, 189
(1st Cir. 1995). Our case law thus directs that Barone's
objection
to
DiNunzio's
testimony ordinarily would be deemed to
have
been
forfeited
and
therefore reviewable on appeal only for
plain
error.
But the question whether harmless or plain error
applies is more difficult here than in the ordinary case
because Barone's challenge in this court is based, in part,
upon the narrowing interpretation of Rule 804(b)(3) set forth
4. Barone asserts that DiNunzio's testimony as to Limoli's
statements was admitted over his objection, citing his motion
in limine to limit or exclude this testimony. Barone does
not direct our attention to any hearsay objection to
DiNunzio's testimony at trial and our review of the
transcript reveals none.
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19
in
Williamson
v. United States, 512 U.S. 594 (1994), which was
decided while this appeal was pending.
It
seems
clear
that
Barone benefits from the new rule
announced in Williamson because direct review was pending at
the
time
it
was
decided.
See Johnson v. United States, No. 96-
203, 1997 WL 235156, *5 (U.S. May 12, 1997); Griffith v.
Kentucky, 479 U.S. 314, 328 (1987); Hines v. Davidowitz, 312
U.S.
52,
60
(1941); United States v. Melvin, 27 F.3d 703, 706-
07 n.4 (1st Cir. 1994). Less clear is whether Barone's
forfeited hearsay objection -- to the extent that it turns on
the application of the rule announced in Williamson -- is
subject
to
harmless
error or plain error review. After all, it
seems unfair to fault Barone for failing to raise at trial an
objection
based upon a rule that was not announced until after
the
trial
was
concluded.
See United States v. Collins, 60 F.3d
4, 7 (1st Cir. 1995).
The question of what standard applies "where the
error was unclear at the time of trial but becomes clear on
appeal because the applicable law has been clarified" was
specifically reserved by the Supreme Court in its explication
of
the
plain
error
standard in United States v. Olano, 507 U.S.
725, 734 (1993). In the recently decided Johnson v. United
States
,
1997
WL 235156, however, the Supreme Court applied the
Olano plain error test where the petitioner failed timely to
object at trial, based upon a right announced in United
-20-
20
States v. Gaudin, 515 U.S. ---, 115 S. Ct. 2310 (1995), which
was decided while his case was pending on direct appeal.
Olano
holds
that, in order for an appellate court to
correct an error not raised at trial, it must first find that
there is "'error' that is 'plain' and that 'affect[s]
substantial rights.'" 507 U.S. at 732. When these three
elements are satisfied, an appellate court may exercise its
discretion to correct the error under Rule 52(b) only if the
forfeited error "'seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.'" Id. at 736
(quoting
Unit
ed States v. Atkinson, 297 U.S. 157, 160 (1936)).
In Johnson, the Court concluded that the petitioner
was entitled to the retroactive application of the new rule
announced in Gaudin, and therefore that the "error" prong of
the Olano test was satisfied. Johnson, 1997 WL 235156, at *5
(citing
Griffith
v.
Kentu
cky, 479 U.S. at 328). The Court then
held
that
"in a case such as this -- where the law at the time
of trial was settled and clearly contrary to the law at the
time
of
appeal -- it is enough that an error be 'plain' at the
time of appellate consideration," and that, by this analysis,
the Gaud in error met the "plain" prong of the Olano test.
Johnson
,
1997 WL 235156, at *6. Without deciding the question
whether the error had affected the petitioner's substantial
rights -- the third prong of the Olano test -- the Court
declined to notice the error under Rule 52(b) on the ground
-21-
21
that, even assuming that the "substantial rights" prong was
satisfied, there was no basis for concluding that the error
"seriously affect[ed] the fairness, integrity or public
reputation
of judicial proceedings." Johnson, 1997 WL 235156,
at *7.
Although Johnson does not purport to do so, the
conclusion
appears
to
us
to be inescapable that Johnson answers
the
question
left open in Olano and that, under Johnson, plain
error
review
applies in the circumstances presented here, even
to the extent that the resolution of Barone's challenge to
DiNunzio's testimony turns on the application of the rule of
Williamson. In all events, our review leads us to conclude
that
Barone's
challenge
would not have succeeded even under the
harmless error standard because we find that, to the extent
that
the
district court erred in admitting hearsay evidence --
under Williamson or otherwise -- the error(s) did not affect
the
outcome
of
the
trial, and therefore did not affect Barone's
substantial rights. See Olano, 507 U.S. at 734; United
States
v.
Marder
,
48
F.3d 564, 571 (1st Cir.), cert. denied, --
- U.S. ---, 115 S. Ct. 1441 (1995).
3.
In Williamson v. United States, the Supreme Court
clarified the scope of Rule 804(b)(3) for statements that
inculpate the defendant as well as subject the declarant to
criminal liability. At issue in Williamson was the
-22-
22
admissibility of hearsay statements made by the declarant
Harris,
who
had been arrested after police found large amounts
of cocaine in the car he was driving, and who made statements
to
a
DEA
agent
while
in
custody that indicated that the cocaine
belonged to Williamson. 512 U.S. at 596-97.
The Court first considered the question of what is
meant by "statement" in light of the principle that "Rule
804(b)(3)
is
founded on the commonsense notion that reasonable
people, even reasonable people who are not especially honest,
tend not to make self-inculpatory statements unless they
believe them to be true." 512 U.S. at 599. Reasoning that
this principle points clearly to a narrow definition of
"statement"
as
"a
single
declaration or remark," rather than to
a broad definition as "a report or narrative," id., the Court
concluded as follows:
In our view, the most faithful reading of
Rule 804(b)(3) is that it does not allow
admission of non-self-inculpatory
statements,
even if they are made within a
broader narrative that is generally self-
inculpatory. The district court may not
just
assume
for purposes of Rule 804(b)(3)
that a statement is self-inculpatory
because
it
is part of a fuller confession,
and this is especially true when the
statement implicates someone else.
512 U.S. at 600-01.
The
Court
explained
that
"[t]he fact that a statement
is self-inculpatory does make it more reliable; but the fact
that
a
statement is collateral to a self-inculpatory statement
-23-
23
says nothing at all about the collateral statement's
reliability." 512 U.S. at 600. Thus, the Rule 804(b)(3)
inquiry "is always whether the statement was sufficiently
against the declarant's penal interest 'that a reasonable
person in the declarant's position would not have made the
statement unless believing it to be true,' and this question
can only be answered in light of all the surrounding
circumstances." 512 U.S. at 603-04 (quoting Fed. R. Evid.
804(b)(3)) (footnote omitted).
At oral argument, counsel for Barone characterized
Williamson as standing for the proposition that statements
against
interest
that
implicate anyone other than the declarant
are not admissible under Rule 804(b)(3), arguing that "a
statement
that shifts the blame to another person has no basis
for
reliability and should not be admissible under the hearsay
exception." While it is probably true in the ordinary case
that a statement that shifts blame to another should be
regarded as unreliable, we do not accept Barone's contention
that
Williams
on creates a per se bar to any and all statements
against interest that also implicate another; nor do we find
that any of the hearsay challenged here shifts blame from the
declarant Limoli to anyone else.
Far from adopting a per se rule against statements
inculpating another, the Court stated that a totality of the
circumstances test should be applied to the particular
-24-
24
statement at issue in order to determine whether it comports
with
the
rationale
upon
which Rule 804(b)(3) is premised -- the
assumption that declarations against interest are reliable
because people do not make such statements unless believing
them to be true. 512 U.S. at 603-04. A statement against
penal
interest
is
not
rendered inadmissible "merely because the
declarant names another person or implicates a possible
codefendant." Williamson, 512 U.S. at 606 (Scalia, J.,
concurring); see id. at 603. Indeed, the Court used as an
example
of
an admissible statement against penal interest "Sam
and I went to Joe's house," 512 U.S. at 603, a statement that
clearly implicates a person other than the declarant.5
In addressing the issue under the Confrontation
Clause, the Second Circuit has held that a statement
inculpating both the declarant and the defendant may be
sufficiently
reliable as to be admissible in the circumstances
that
obtain
here
--
i.e., where the statement is made in a non-
custodial
setting to an ally, rather than to a law enforcement
official, and where the circumstances surrounding the portion
of the statement that inculpates the defendant provide no
reason to suspect that this portion of the statement is any
less trustworthy than the portion that inculpates the
5. The Court reasoned that this statement "might be against
the declarant's interest if a reasonable person in the
declarant's shoes would realize that being linked to Joe and
Sam would implicate the declarant in Joe and Sam's
conspiracy." 512 U.S. at 603.
-25-
25
declarant. See United States v. Sasso, 59 F.3d 341, 349 (2d
Cir. 1995); United States v. Matthews, 20 F.3d 538, 546 (2d
Cir. 1994). We find this reasoning to be persuasive and
equally applicable to a Rule 804(b)(3) analysis of the
reliability of the statements challenged here.
Finally, applying Williamson's instruction that
courts must determine the admissibility of statements by
evaluating them in context and in view of all the
circumstances,
512
U.S.
at 603-04, we find that Barone's blame-
shifting concerns are not implicated here because none of the
challenged testimony shifts blame or exculpates either the
declarant Limoli or the defendant Barone. And, to the extent
that
any
of
the
challenged statements may be so read, the force
of
the
argument
is
blunted by the fact that the statements were
not made to law enforcement officials in a custodial setting,
as
in
Williamson
(and
as
in nearly all of the cases relied upon
by
Barone),
but to close relatives of the declarant. On these
facts,
it
cannot
seriously be argued that any of the challenged
statements
implicate
the
primary concern raised by Barone, that
they
were
intended
to
shift the blame for criminal conduct from
the declarant Limoli to another or to curry favor with law
enforcement officials.
4.
We now consider the testimony to which Barone
objects, bearing in mind the following additional standards.
-26-
26
First, the district court's construction of evidentiary rules
is a question of law which we review de novo. See United
States v. Omar, 104 F.3d 519, 522 (1st Cir. 1997); see also
United States v. Costa, 31 F.3d 1073, 1077 (11th Cir. 1994)
(the
question whether a statement is against penal interest is
a question of law, reviewable de novo). Second, the
application of an evidentiary rule to particular facts "is
normally tested by an 'abuse of discretion' standard, which
favors the prevailing party." Omar, 104 F.3d at 522. See
United
States v. Houlihan, 92 F.3d 1271, 1297 (1st Cir. 1996),
cert.
denied
,
---
U.S.
---, 117 S. Ct. 963 (1997). Finally, we
may affirm the district court's evidentiary rulings on any
ground apparent from the record on appeal. See United States
v.
Alzanki
,
54
F.3d
994,
1008 (1st Cir. 1995), cert. denied, --
- U.S. ---, 116 S. Ct. 909 (1996).
Barone contends that the district court abused its
discretion in admitting Limoli's statements to DiNunzio and
Karpowicz-DiPietro regarding his criminal associations and
activities during the 1970s and 1980s because the testimony
does not meet the requirements for admission under Rule
804(b)(3). Barone does not object to particular statements,
but complains generally that the statements were not against
Limoli's
penal interest, and that the "rambling narratives" of
DiNunzio and Karpowicz-DiPietro contained statements that are
-27-
27
inadmissible
under
Willia
mson because they are not individually
self-inculpatory.
At trial, the district court did not admit the
hearsay
testimony
of
these witnesses statement by statement, as
Williamson would seem to direct; nor did Barone object
statement by statement.6 Nevertheless, our review of the
record leads us to agree with the government that the vast
majority of the challenged testimony was admissible under the
declarations
against
interest exception; that other portions of
the testimony were admissible under other hearsay exceptions,
or
as
the
personal
knowledge of the in-court witness; and that,
to
the
extent
that
the
district court erred in admitting any of
the challenged testimony, the error(s) did not affect the
6. In his ruling on Barone's motion in limine, the district
judge stated that he would deal with the admissibility of the
disputed testimony "statement by statement to see if there
are parts of it that are inadmissible," an approach that is
fully consistent with Williamson. During the colloquy with
counsel that followed his ruling, the judge also invited
Barone's counsel to object to specific portions of DiNunzio's
proposed testimony, which Barone's counsel declined to do,
given the court's ruling on the motion. During this
colloquy, the judge also stated, however, that "the mere fact
that some of this comes in doesn't mean everything comes in.
But if they're the same conversation and . . . they tend to
corroborate even though they're not in isolation against his
penal interests, I'll let them in," an approach that is
consistent with this court's precedents at the time of the
ruling, see United States v. Barrett, 539 F.2d 244, 252-53
(1st Cir. 1976), but facially inconsistent with Williamson.
-28-
28
outcome
of
the
trial
and
so did not affect Barone's substantial
rights.7
As to Barone's contention that the district court
violated Williamson and abused its discretion in admitting
Karpowicz-DiP
ietro's testimony recounting what Limoli told her
about the events that ultimately led to his murder, we agree
with the government that any portions of the testimony that
were not admissible as declarations against Limoli's penal
interest were otherwise admissible because they fall within
another
hearsay exception (e.g., Rule 803(3)), or because they
are
not
hearsay
at
all,
but rather reflect Karpowicz-DiPietro's
personal knowledge.
As to DiNunzio's testimony regarding the murder of
Jackie
DiFronzo,
Barone
asserts that Limoli's confession to the
murder is the only statement against his penal interest. The
government responds that Limoli's statements regarding why
DiFronzo was killed, on whose orders, and his statement that
Ferrara had enlisted Limoli's help are also declarations
against
Limoli's penal interest vis-a-vis the Patriarca Family
conspiracy to engage in a pattern of racketeering. The
7. The government does not argue that Barone's objection to
DiNunzio's testimony was forfeited for failure to renew at
trial the objection he made in limine, but assumes that our
review is under the harmless error standard. The government
asserts throughout that any error in admitting the hearsay
testimony was harmless beyond a reasonable doubt, employing
the formulation of the standard applied to issues of
constitutional dimension.
-29-
29
government argues that the statements demonstrate Limoli's
relationships to Ferrara, Angiulo, and the Patriarca Family
hierarchy, as well as Limoli's participation and position in
the RICO enterprise; and that Limoli's statements link him to
Ferrara
and
Angiulo,
thereby inculpating him in a conspiracy to
kill DiFronzo as part of a pattern of racketeering in
association with the Patriarca Family.
We conclude that Limoli's statements regarding
DiFronzo's
murder were admissible under Rule 804(b)(3). These
statements
are against Limoli's penal interest insofar as they
inculpate
him in criminal acts and conspiracies with others to
commit criminal acts. See United States v. York, 933 F.2d
1343, 1360 (7th Cir. 1991); United States v. Layton, 720 F.2d
548, 560 (9th Cir. 1983). Moreover, to the extent that the
statements implicate Limoli in the Patriarca Family and its
activities, they demonstrate "an insider's knowledge" of a
criminal enterprise and its criminal activities, which is
sufficiently
against
Limoli's penal interest to come within the
exception. See United States v. Barrett, 539 F.2d 244, 252
(1st Cir. 1976); Williamson, 512 U.S. at 606-07 (Scalia, J.,
concurring). Finally, all of the statements that inculpate
Ferrara also directly inculpate Limoli -- e.g., "And he
proceeded to go and tell me that it was Vinnie Ferrara and
himself had shot him and they said they set the club on fire,
the club on Endicott Street." Accordingly, we conclude that
-30-
30
the district court's admission of these statements did not
violate the rule of Williamson. See Williamson, 512 U.S. at
603-04.
As to DiNunzio's testimony regarding the murder of
Corlito, Barone argues that the only statements against
Limoli's
penal interest are that he killed Corlito and that he
was paid to do so. The government counters that there was
nothing in Limoli's confession implicating Barone that might
have decreased Limoli's own criminal liability, thereby
detracting
from
the
self-inculpatory nature of his admission to
DiNunzio that he murdered Corlito. In addition, Limoli's
statement
that
Barone
also received $1,000 from Ferrara for his
participation in Corlito's murder demonstrates Limoli's
knowledge
of
and
participation in the Patriarca Family, and the
RICO conspiracy generally, and in the conspiracy to murder
Corlito. The government also contends that, even if this
statement
is
judged to be insufficiently self-inculpatory, the
admission of the statement was harmless beyond a reasonable
doubt. For the reasons stated in our consideration of the
testimony concerning the DiFronzo murder, supra, we conclude
that
the
testimony regarding the Corlito murder was admissible
under Rule 804(b)(3), and that any Williamson error in
admitting
Limoli's
statement regarding the payment of $1,000 to
Barone did not affect Barone's substantial rights. As is the
case with his statements regarding the DiFronzo murder,
-31-
31
Limoli's statements inculpating Ferrara and Barone in the
murder of Corlito also directly inculpate himself.
Barone's
objections
to
DiNunzio's testimony regarding
the credit union robbery are that only Limoli's statements
admitting
to
the
robbery
and to shooting McPhee in the foot are
against his penal interest, and that his statement to the
effect that Barone shot McPhee in the neck was inadmissible.
The
government replies that DiNunzio's testimony regarding the
robbery was otherwise admissible as DiNunzio's personal
knowledge.
As
to
Limoli's statement that Barone shot McPhee in
the neck, the government argues that, although the statement
may appear to shift the blame from Limoli to Barone for the
more serious offense of attempted murder, the statement is no
less
an
admissible declaration against interest; it inculpates
both Limoli and Barone because the shooting was within the
scope
of
the
robbery conspiracy, and the statement was made to
an ally in a non-custodial setting. Finally, the government
argues
that,
even
if
the
admission of this statement was error,
it
was
harmless
beyond
a
reasonable doubt in view of DiNunzio's
testimony that when Barone and Chris Jordan came to her house
after the robbery, Barone admitted that he had shot McPhee in
the
neck,
and
in
light
of Walter Jordan's testimony that Barone
made the same statement to him.
We
conclude
that
the
bulk of DiNunzio's testimony was
independently
admissible as DiNunzio's personal knowledge, and
-32-
32
that the evidence implicating Barone in the robbery and
that Barone shot the guard in the neck was als
r
indicating o
independently admissible through the testimony of Walte
Jordan. We also find that, to the extent that Limoli's
statement regarding Barone may be understood to raise any
blame-shifting concerns, we are satisfied that the
circumstances
in which the statement was made demonstrate that
the
portion
inculpating Barone is no less trustworthy than the
portion inculpating Limoli. See Sasso, 59 F.3d at 349;
Matthews, 20 F.3d at 546.8
Barone challenges the admission of DiNunzio's
testimony regarding events and circumstances related to
Limoli's "problem" and "big mistake" in having stolen cocaine
and
money
from Spagnolo (which he thought belonged to Salemme,
8. For all the reasons stated thus far, we also reject
Barone's more general arguments that Limoli's statements
concerning his relationships with Ferrara, Barone, Jordan,
and others were inadmissible because they shift the majority
of the blame for certain activities from Limoli to others --
e.g., Ferrara ordered Corlito's murder. Limoli's statements
concerning his relationship with Ferrara are against his
penal interest, directly inculpating him in a RICO conspiracy
with Ferrara (and Barone) and in the RICO enterprise, along
with other criminal activities. DiNunzio's hearsay testimony
that Limoli was involved in criminal activities with Barone
and with Chris and Walter Jordan is also against Limoli's
penal interest, particularly in view of Walter Jordan's
testimony that he, Limoli, and Barone together were engaged
in criminal activity in association with the Patriarca
Family. Although, as the government concedes, Limoli's
statements regarding Barone's criminal activities with Jordan
should not have been admitted because they do not inculpate
Limoli, the error did not affect Barone's substantial rights
as Jordan himself testified about his criminal activities
with Barone.
-33-
33
Jr.), and to the drug deal between Limoli and Barone that was
to take place the night Limoli was murdered. Barone contends
that
a
"mistake" cannot be classified as a declaration against
penal interest, and that there was no reasonable likelihood
that Limoli's statements regarding, inter alia, the Prince
Street alley meeting and the drug deal with Barone could have
resulted in criminal liability. The government responds that
Limoli's statements regarding his "big mistake" and related
events
were
admissible
under Rules 803(3) and 804(b)(3) because
they reflect Limoli's then state of mind; demonstrate his
knowledge
of
the workings of the Patriarca Family; incriminate
him
in
the
possession
of
narcotics and in a theft of money; and
inculpate
him
in
the
Patriarca Family and RICO conspiracy. The
government
contends further that Limoli's statements regarding
his recognition of the mistake -- violating the LCN rules by
stealing from a made member -- and how the Patriarca Family
responded to it demonstrate Limoli's knowledge of and
involvement with the Patriarca Family.
We conclude for the reasons already stated that
Limoli's statements regarding his "big mistake" and his
resultant
"problem"
are
sufficiently against his penal interest
as
to
be
admissible. See, e.g., Barrett, 539 F.2d at 252. We
further find that the circumstances surrounding the making of
these
statements demonstrate their self-inculpatory nature and
that a reasonable person in Limoli's position would not have
-34-
34
made such statements unless he believed them to be true.
See Williamson, 512 U.S. at 603 (explaining that "whether a
statement
is
self-inculpatory or not can only be determined by
viewing
it
in
context,"
and that "[e]ven statements that are on
their face neutral may actually be against the declarant's
interest").
In this regard, the government wisely concedes that
DiNunzio's testimony regarding Limoli's description of how
members of the Patriarca Family learned that he had stolen
Spagnolo's
cocaine was inadmissible under Rule 804(b)(3). The
government also correctly asserts that DiNunzio's
identificatio
ns of Annette and Lena Chiuchiolo were admissible
as personal knowledge. We find, however, that the district
court's
error
in
admitting this hearsay evidence did not affect
Barone's substantial rights, particularly given that Jordan's
testimony and the evidence obtained through electronic
surveillance established the same facts, which were not
significant to the case against Barone, as the government
points out.
DiNunzio testified that Limoli told her that Barone
had
"skimmed" cocaine from him. The government maintains that
this
statement inculpates Limoli in the possession of cocaine,
but concedes that DiNunzio's testimony regarding Barone's
actions
was
inadmissible under Rule 804(b)(3). The government
argues, however, that because Barone elicited this testimony
-35-
35
for
the
first time on cross-examination, he cannot be heard to
complain
about its admission, citing United States v. Angiulo,
897 F.2d 1169, 1216 (1st Cir. 1990); United States v. Vachon,
869
F.2d
653,
658-59
(1st Cir. 1989), and that other statements
elicited
for
the first time on cross-examination were harmless
beyond a reasonable doubt (DiNunzio's testimony that Limoli
said that Walter Jordan had robbed him of a gun and a set of
pearls; harmless in view of Jordan's own admissions), or
generally admissible as prior inconsistent statements
(DiNunzio's testimony regarding prior statements she had made
to the police, the FBI, and the grand jury). We agree.
B.
Barone also challenges the admission of Limoli's
statements on the grounds that they do not satisfy Rule
804(b)(3)'s
"corroborating circumstances" requirement and that
the statements lack the "particularized guarantees of
trustworthiness" required by the Confrontation Clause.9
The
Rule
804(b)(3)
and
Confrontation Clause inquiries
are
not
coterminous, and evidence that is admissible under the
former
may
still be inadmissible under the latter. See, e.g.,
White v. Illinois, 502 U.S. 346, 352-53 (1992); Idaho v.
Wright
,
497
U.S.
805,
814 (1990); California v. Green, 399 U.S.
9. The Confrontation Clause of the Sixth Amendment
provides, in pertinent part, that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him."
-36-
36
149, 155 (1970). But the hearsay rules and the Confrontation
Clause share the purpose of permitting the use of probative
evidence that is trustworthy and excluding that which is not.
See Houlihan, 92 F.3d at 1281. Accordingly, we will consider
Barone's
"corroborating
circumstances" and Confrontation Clause
challenges together, deeming that which satisfies the
Confrontation Clause to be sufficient to satisfy Rule
804(b)(3)'s
corroboration
requirement as well. Cf. Wright, 497
U.S. at 821 ("Because evidence possessing 'particularized
guarantees
of trustworthiness' must be at least as reliable as
evidence admitted under a firmly rooted hearsay exception, we
think
that
evidence admitted under the former requirement must
similarly
be
so trustworthy that adversarial testing would add
little to its reliability.") (citations omitted).
1.
Barone argues that the district court abused its
discretion in admitting Limoli's out-of-court statements
because the statements are insufficiently corroborated or are
entirely lacking in corroboration.10 We disagree.
10. By its terms, Rule 804(b)(3) requires corroboration only
for statements "tending to expose the declarant to criminal
liability and offered to exculpate the accused." Fed. R.
Evid. 804(b)(3) (emphasis added). See Fed. R. Evid.
804(b)(3) advisory committee's note (explaining that
declarations against interest "tending to exculpate the
accused are more suspect and so should have their
admissibility conditioned upon some further provision
insuring trustworthiness"). The rule does not explicitly
require corroboration for the type of statements at issue
here, those offered by the government to inculpate the
-37-
37
First, Barone misconstrues Rule 804(b)(3)'s
corroboration t
s
11 The corroboration that is required by
Rule
804(b)(3)
is
not
independent evidence supporting the truth
of
the
matters
asserted
by the hearsay statements, but evidence
that clearly indicates that the statements are worthy of
belief, based upon the circumstances in which the statements
were
made.
S
ee United States v. Innamorati, 996 F.2d 456, 475
requirement to the extent that he argues tha
there is a lack of evidence "corroborating" the event
described by Limoli.
(1st
Cir.
1993) ("'[F]or the declaration to be trustworthy the
declarant must have known it was against his interest at the
time he made the statement.'") (quoting Filesi v. United
accused. See, e.g., United States v. Fields, 871 F.2d 188,
192 (1st Cir. 1989). Nevertheless, a number of courts have
interpreted Rule 804(b)(3) to require corroboration whether
the statement inculpates or exculpates the accused. See
United States v. Mendoza, 85 F.3d 1347, 1351 (8th Cir. 1996);
United States v. Thomas, 62 F.3d 1332, 1337 (11th Cir. 1995),
cert. denied, --- U.S. ---, 116 S. Ct. 1058 (1996); United
States v. Casamento, 887 F.2d 1141, 1170 (2d Cir. 1989);
United States v. Boyce, 849 F.2d 833, 836 (3d Cir. 1988);
United States v. Alvarez, 584 F.2d 694, 701 (5th Cir. 1978).
Although this court has not expressly extended the
corroboration requirement to statements that inculpate the
accused, see Fields, 871 F.2d at 192, we have applied the
rule as if corroboration were required for such statements,
see Seeley, 892 F.2d at 2. The Supreme Court has not decided
the issue, explicitly declining to do so in Williamson, 512
U.S. at 605.
11. Barone asserts, inter alia, that DiNunzio's testimony
regarding what Limoli told her about events relevant to the
prosecution of this case comprises the only evidence against
Barone regarding certain events, and that, while Karpowicz-
DiPietro's testimony appears to corroborate some of
DiNunzio's testimony, this testimony, like DiNunzio's, was
also hearsay, improperly admitted at trial.
-38-
38
States, 352 F.2d 339, 343 (4th Cir. 1965) (alteration in
Innamorati); United States v. Casamento, 887 F.2d 1141, 1170
(2d Cir. 1989) (in determining whether a declaration against
penal
interest is sufficiently trustworthy as to be admissible
under Rule 804(b)(3), "the district court must look to the
circumstances in which the declarant made the statement").
Analysis
of
trustworthiness under the Confrontation Clause also
focuses upon the circumstances surrounding the making of the
statement. See Wright, 497 U.S. at 819 (in determining the
trustworthiness of hearsay evidence under the Confrontation
Clause, the court should consider "only those [circumstances]
that surround the making of the statement and that render the
declarant
particularly
worthy of belief"); Lee v. Illinois, 476
U.S. 530, 544 (1986) (determining trustworthiness from the
circumstances surrounding the making of the statement).
Second, Barone misapprehends the corroboration
requirement
to the extent that he argues that corroboration is
required because DiNunzio is not credible. The corroboration
requirement
is not concerned with the veracity of the in-court
witness but with the trustworthiness of the out-of-court
statement; moreover, the credibility of witnesses is a matter
for the jury. See Seeley, 892 F.2d at 3 (agreeing with the
Second
Circuit in United States v. Katsougrakis, 715 F.2d 769,
777 (2d Cir. 1983), that neither Rule 804(b)(3) nor the
Confrontation Clause "requires the trial court to make a
-39-
39
special
assessment of the credibility of a witness who relates
an
out-of-court
declaration against penal interest; rather, the
credibility of an in-court witness is ordinarily a matter for
the jury").
Third, the corroboration requirement "should be
construed in such a manner as to effectuate its purpose of
circumventing fabrication," Fed. R. Evid. 804(b)(3) advisory
committee's note, and "[t]he fear that inculpatory statements
are unreliable stems largely from the presumption that such
statements are self-serving, offered only to shift the blame
from the declarant to another." York, 933 F.2d at 1363. See
Innamorati, 996 F.2d at 474-75. These concerns do not arise
where, as here, the portions of the statements that are
inculpatory as to the defendant are also directly against the
declarant's penal interest; where the statements were made to
close
relatives
of
the
declarant;12 and where we can discern no
attempt on the part of the declarant to diminish his role in
the
criminal
activity described in the statements. See Sasso,
59 F.3d at 349; Matthews, 20 F.3d at 546.
We
conclude
that the portions of the statements that
are inculpatory as to Barone are in no way self-serving as to
12. While the fact that the challenged statements were made
to allies has no bearing on the question whether the
statement is against the declarant's penal interest, it is
relevant to the determination of whether the circumstances
indicate that the declarant was motivated to shift blame to
the other individual inculpated by the statement.
-40-
40
Limoli, and therefore we see no reason to question the
trustworthiness of any of the challenged statements on blame-
shifting grounds. See York, 933 F.2d at 1362-63 (explaining
that the circumstances surrounding the declarant's statements
inculpating the defendant -- speaking to acquaintances
unconnected to law enforcement authorities -- make them
"eminently
trustworthy,"
and noting that the advisory committee
used that scenario as an example of an inculpatory statement
that "would have no difficulty in qualifying" for admission
under Rule 804(b)(3)).
In the final analysis, the Rule 804(b)(3)
corroboration
inquiry is concerned only with the admissibility
of hearsay evidence based upon its trustworthiness, a
determination
committed
to the sound discretion of the district
court. See United States v. Vretta, 790 F.2d 651, 659 (7th
Cir.
1986)
("A trial judge has considerable discretion, within
the
parameters
of
the
rules of evidence, in determining whether
the hearsay statements contain the necessary circumstantial
guarantees of trustworthiness."). See also Barrett, 539 F.2d
at 253. Matters such as the truth of what is asserted by
hearsay statements, the credibility of witnesses, and the
weight to be accorded evidence are for the finder of fact.
Here, the district court, in ruling on Barone's
motion in limine, determined that the challenged portions of
DiNunzio's testimony were sufficiently corroborated and
-41-
41
trustworthy as to be admissible under Rule 804(b)(3) and the
Confrontation Clause. We agree with the district court that
the detailed nature of Limoli's statements; the fact that
Limoli made the statements to close relatives in a non-
custodial
setting rather than to the police; and the fact that
Limoli
had
no discernible motivation to lie to either DiNunzio
or Karpowicz-DiPietro in making these statements constitute
"corroborating circumstances [that] clearly indicate the
trustworthiness
of
the
statement[s]." Accordingly, we conclude
that
the
district
court
did not abuse its discretion in finding
Limoli's statements to be sufficiently corroborated as to be
reliable and admissible under Rule 804(b)(3).
-42-
42
2.
Barone argues that the admission of Limoli's
statements violated his confrontation rights.13 The Supreme
Court has explained that "[t]he central concern of the
Confrontation Clause is to ensure the reliability of the
evidence against a criminal defendant by subjecting it to
rigorous testing in the context of an adversary proceeding
before the trier of fact." Maryland v. Craig, 497 U.S. 836,
845 (1990). See Zannino, 895 F.2d at 5. When a hearsay
declarant is not present for cross-examination, the
Confrontation
Clause requires a showing that (i) the declarant
is
unavailable,
14
and
(ii) the statements sought to be admitted
bear adequate "indicia of reliability." Ohio v. Roberts, 448
U.S. 56, 66 (1980).
Where the evidence is admitted under a "firmly
rooted"
hearsay exception, reliability may be inferred without
more.
See
id
. at 66; Wright, 497 U.S. at 817 (explaining that
"[a]dmission
under a firmly rooted hearsay exception satisfies
13. In Williamson, the Supreme Court did not reach the
Confrontation Clause issue because it remanded the case,
rather than declare any statements to be admissible under
Rule 804(b)(3). 512 U.S. at 605.
14. Although unavailability is not in dispute here, we note
that, while the unavailability of the declarant is required
under Rule 804 as a matter of evidence law, a demonstration
of unavailability (or production of the declarant at trial)
is not always required by the Confrontation Clause. See
White v. Illinois, 502 U.S. at 353-57; United States v.
Inadi, 475 U.S. 387, 392-400 (1986); Manocchio v. Moran, 919
F.2d 770, 774-76 (1st Cir. 1990).
-43-
43
the constitutional requirement of reliability because of the
weight accorded longstanding judicial and legislative
experience
in
assessing
the trustworthiness of certain types of
out-of-court statements"); id. at 821 ("statements admitted
under a 'firmly rooted' hearsay exception are so trustworthy
that adversarial testing would add little to their
reliability"). Statements that do not fall within a firmly
rooted
exception
are
"presumptively unreliable and inadmissible
for Confrontation Clause purposes," Lee v. Illinois, 476 U.S.
at 543, and therefore "must be excluded, at least absent a
showing of particularized guarantees of trustworthiness,"
Roberts, 448 U.S. at 66 (footnote omitted).
Barone maintains that the hearsay exception for
declarations against interest is not firmly rooted and,
therefore, such declarations are presumptively untrustworthy
and inadmissible in the absence of proof by the government of
the reliability of the statements. In making this argument,
Barone simply ignores the fact that this court has held the
declarations against interest exception to be firmly rooted.
See
Saccoccia
,
58
F.3d
at 779; Innamorati, 996 F.2d at 474 n.4.
We
recognize
that
some
courts have questioned whether
the declarations against interest exception is firmly rooted,
and whether it should be treated as such where the statement
implicates another person in addition to the declarant. See
United States v. Dean, 59 F.3d 1479, 1493 & n.24 (5th Cir.
-44-
44
1995), c ert. denied, --- U.S. ---, 116 S. Ct. 794 (1996);
Matthews, 20 F.3d at 545 (collecting cases); United States v.
Flores
,
985
F.2d
770
(5th Cir. 1993).15 We find these cases to
be inapposite to our analysis of the instant case because, in
contrast to the statements at issue here, the hearsay
statements in these cases were made under circumstances in
which the declarant had a "strong motivation to implicate the
defendant and to exonerate himself," thereby raising the
concern that the statements were made in order to shift blame
to
another
or to curry favor with law enforcement authorities.
See, e.g., Lee v. Illinois, 476 U.S. at 541.
We think that where, as here, it is clear that the
statements inculpating both the declarant and the defendant
were not made in order to limit the declarant's exposure to
criminal
liability,
the
declarations against interest exception
is properly treated as firmly rooted for Confrontation Clause
purposes. See York, 933 F.2d at 1362-64. Nevertheless,
because
we
agree
with
the district court that the statements at
issue
in
this
case
bear
sufficient indicia of reliability as to
be
admissible under the Confrontation Clause, we need not rely
15. Although the Williamson Court did not decide whether the
declarations against interest exception is firmly rooted, the
Court did point out that "the very fact that a statement is
genuinely self-inculpatory -- which our reading of Rule
804(b)(3) requires -- is itself one of the 'particularized
guarantees of trustworthiness' that makes a statement
admissible under the Confrontation Clause." 512 U.S. at 605
(citing Lee v. Illinois, 476 U.S. at 543-45).
-45-
45
upon the firmly rooted status of the exception in order to
sustain the district court's ruling.
"The
critical
inquiry
for determining 'particularized
guarantees of trustworthiness' is whether 'the test of cross-
examination would be of marginal utility.'" United States v.
Trenkler, 61 F.3d 45, 64 (1st Cir. 1995) (quoting Wright, 497
U.S. at 820) (footnote omitted). We are satisfied that the
circumstances
surrounding the making of Limoli's statements to
DiNunzio
and
Karpowicz-DiPietro demonstrate that the statements
are "so trustworthy that adversarial testing would add little
to their reliability." See Wright, 497 U.S. at 821.
In arguing that the testimony of DiNunzio and
Karpowicz-DiPietro lacked the corroboration and indicia of
reliability required by Rule 804(b)(3) and the Confrontation
Clause,
Barone relies heavily upon United States v. Mokol, 939
F.2d 436, 439 (7th Cir. 1991). Citing Mokol, Barone urges us
to consider the following factors: "the character of the
witness for truthfulness and honesty and the availability of
evidence
on
the issues and the witness' relationship with both
the defendant and government and his motivation to testify."
Appellant's Br. at 28-29. He invites us to conclude from our
consideration of these factors that DiNunzio16 was not a
16. Barone does not explicitly attack the credibility of
Karpowicz-DiPietro, but does argue that her testimony was
admitted in violation of his confrontation rights.
-46-
46
credible witness and, therefore, that her testimony as to
Limoli's statements lacks adequate indicia of reliability.
Barone's reliance upon Mokol is grossly misplaced
for a number of reasons. First, Mokol did not address the
admissibility of hearsay statements made by an unavailable
declarant to an ally under Rule 804(b)(3), but the distinct
question of the admissibility of prior testimony under the
residual
hearsay exception of Rule 804(b)(5). In this regard,
it is important to recognize that the Supreme Court has held
that the residual hearsay exception is not firmly rooted for
purposes of Confrontation Clause analysis. See Wright, 497
U.S.
at
817-18 (explaining that "[h]earsay statements admitted
under the residual exception, almost by definition, . . . do
not share the same tradition of reliability that supports the
admissibility of statements under a firmly rooted hearsay
exception," and that "were we to agree that the admission of
hearsay statements under the residual exception automatically
passed
Confrontation Clause scrutiny, virtually every codified
hearsay exception would assume constitutional stature, a step
this Court has repeatedly declined to take"). See also
Government
of
Virgin
Islands v. Joseph, 964 F.2d 1380, 1387 (3d
Cir. 1992) (equating the state-law residual hearsay exception
at issue in Wright with Rule 804(b)(5), and applying to Rule
804(b)(5)
Wri
ght's holding that the residual hearsay exception
is not firmly rooted and therefore requires a showing of
-47-
47
particularized guarantees of trustworthiness); Trenkler, 61
F.3d
at
64
n.32
(explaining that the residual hearsay exception
contained in Federal Rule of Evidence 803(24) is not a firmly
rooted exception, citing Wright and Joseph). But see United
States v. Panzardi-Lespier, 918 F.2d 313, 319 (1st Cir. 1990)
(rejecting a Confrontation Clause challenge to testimony
admitted
under
the
residual hearsay exception of Rule 804(b)(5)
on
the
ground that Rule 804(b)(5) is a firmly rooted exception
to the hearsay rule).
Second, Barone errs in equating the hearsay
declarant, the reliability of whose testimony in prior
proceedings
was
at
issue
in Mokol, with DiNunzio and Karpowicz-
DiPietro, whose live in-court testimony contains the hearsay
statements.
Moreover, and as we have stated, the focus of the
trustworthine
ss inquiry is not on the in-court witness, but on
the circumstances in which the declarant's out-of-court
statements were made. See Wright, 497 U.S. at 819-20;
Innamorati
,
996
F.2d
at
475; Casamento, 887 F.2d at 1170. Also
as
noted
previously, the credibility of the in-court witnesses
DiNunzio and Karpowicz-DiPietro is not an element of the
admissibility inquiry (as a matter of Rule 804(b)(3) or
Confrontation
Clause analysis) but is a question for the jury.
See Seeley, 892 F.2d at 3.
III.
-48-
48
On October 20, 1993, after a nine-week trial, the
jury began its deliberations. On October 25, 1993, the court
gave a "modified Allen charge" in response to a note from the
jury stating that it had reached an impasse and seeking the
court's guidance. See Allen v. United States, 164 U.S. 492
(1896) (approving a supplemental jury instruction designed to
encourage a deadlocked jury to reach a verdict).
Prior
to
administering
the charge, the judge informed
counsel
of
the
language
he intended to use and deleted language
in
response
to
Barone's
objection. After the charge was given,
Barone objected to the court's use of certain language which
the
judge
had not mentioned in the pre-charge conference. The
judge responded by preserving the objection, stating that he
would
give
it
further
thought should he have occasion to repeat
the charge. At 3:15 p.m., the jury informed the judge that
there had been no change in their deliberations and asked the
court's permission to return the following morning.
In the afternoon of the next day, October 26, 1993,
the jury communicated to the court that they had made no
progress and saw "no potential for coming to a unanimous
decision on any of the four counts through continued rational
discussion." Barone moved for a mistrial, which the court
denied. The court then informed the jury that it would not
accept the jury's conclusion as "the final word in this
matter," but would dismiss the jury for the remainder of the
-49-
49
day and begin the next day by repeating the modified Allen
charge. Barone did not object to the proposed second Allen
charge, but did object to the judge's statement to the effect
that, in his experience, the jury had not deliberated for an
unusually
long period of time. He again moved for a mistrial,
and the court denied the motion.
The following day, October 27, 1993, the judge
repeated the modified Allen charge, omitting the language to
which
Barone
had objected after the judge had administered the
first Allen charge. On October 28, 1993, the district judge
dismissed a juror pursuant to Federal Rule of Criminal
Procedure 23(b), see infra, and on October 29, 1993, the
eleven-member
jury
returned verdicts of guilty as to Counts One
through Three, but failed to reach a verdict as to Count Four
(charging Barone with Limoli's murder).
Barone contends that, in giving the jury a second
Allen charge, the district court violated his Fifth Amendment
right
to
due
process of law and his Sixth Amendment right to a
fundamentally
fair trial, arguing that the practical effect of
the district court's dismissal of a juror after having given
two
modified
Allen charges was to force the eleven-member jury
to render coerced and suspect verdicts.
Barone
argues that a trial court should never give a
second
modified Allen charge. Several circuits, including the
Second Circuit in particular, have rejected the use of a flat
-50-
50
ban,
and
judge
the
propriety of a second charge in light of the
United States Ruggiero, 928 F.2d 1289,
1299
circumstances. See v.
(2d Cir. 1991).17 The Ninth Circuit, over a strong
dissent, has adopted a per se rule against multiple Allen
charges, although this rule is subject to at least one major
exception,
permitting a successive charge if the jury requests
a
repetition
of
the
instruction. United States v. Seawell, 550
F.2d 1159, 1163 (9th Cir. 1977).
The danger with an Allen charge is that jurors who
hold a minority opinion will feel that the judge is putting
pressure
on
them
to
surrender their viewpoint. Even though the
modified Allen charge expressly warns that this is not its
purpose, many have been concerned that it pushes in this
direction. See United States v. Angiulo, 485 F.2d 37, 38-39
(1st
Cir.
1973).
Although the courts have held that the charge
is accepted as a reasonable compromise of conflicting
interests,
the problem is exacerbated when the charge is given
a second time, after the jury has already been told to
reconsider and again has found itself in deadlock. A
successive
charge
tends
to create a greater degree of pressure,
and one could argue that at this point the limit has been
reached.
17. See also United States v. Seeright, 978 F.2d 842, 850
(4th Cir. 1992); United States v. Reed, 686 F.2d 651, 653
(8th Cir. 1982); United States v. Fossler, 597 F.2d 478, 485
(5th Cir. 1979).
-51-
51
In the present case, the second charge came very
after the first, when the district court apparently
concluded that the jury had not seriously reconsidered.
ollowing
the
first
modif charge, the jury deliberated
quickly
F ied Allen
only for the remainder of the day on which it received the
charge and part way into the next day before reporting back
that it remained deadlocked. Given the length and complexity
of the case -- a nine-week trial with very difficult RICO
instructions
--
the
district court was surely within its rights
in thinking that the jury had not absorbed the message of the
first Allen charge, that the jury should make a reasonable
effort to break the deadlock.18
Although we sustain the district court in this case
without
much
difficulty and decline to adopt a per se rule, we
do think that caution needs to be used before the modified
Allen charge is given for a second time. At a minimum, there
ought normally to be special circumstances, and not merely a
continued
inability by the jury to decide, to justify a second
charge.
But
circumstances vary enormously; the trial judge is
closer to the facts, and with this one note of warning, we
adhere to the majority view that each case must be judged on
its own facts.
18. See Reed, 686 F.2d at 652-53 (jury deliberated for only
about one hour between first and second charge); United
States v. Robinson, 560 F.2d 507, 517-18 (2d Cir. 1977) (en
banc) (jury deliberated for only three hours between first
and second charge).
-52-
52
IV.
Federal Rule of Criminal Procedure 23(b) commits to
the
discretion of the district court both the determination of
whether in the circumstances "just cause" exists to excuse a
juror after the jury has retired to deliberate, and the
decision to proceed with a jury of eleven in the event that a
juror
is
excused
for
just cause. Fed. R. Crim. P. 23(b). See,
e.g. , Casamento , 887 F.2d at 1187.
Barone contends that the district court abused its
discretion under Rule 23(b) and violated his Fifth Amendment
right to due process of law by excusing a juror during
deliberations
over his objection. He asserts that the court's
removal
of
the
juror
"irreparably altered not only the dynamics
of the jury, but its impartiality as well." Barone argues
further
that, in permitting the eleven-member jury to continue
to
deliberate
after
the
juror's dismissal, rather than granting
his
motion
to
declare
a
mistrial, the district court abused its
discretion under Rule 23(b) and violated his Sixth Amendment
right to a unanimous verdict.
A.
On
October
27,
1993,
the
jury foreperson informed the
court that, during the jury's lunch break that day, a Federal
Protective Service Officer ("FPO") told one of the jurors,
Douglas Berger, that Berger's cousin had been represented in
another matter by one of Barone's attorneys. The court
-53-
53
promptly met with counsel and discussed at length the problem
and what ought to be done about it. At several points during
this discussion, Barone moved for a mistrial, but the court
decided
to
question the jury foreperson, Berger, and the other
jurors before ruling on the motion.19
The district judge first spoke with the jury
foreperson. Then, after discussion with counsel, the court
called for Berger, instructing him as follows:
I
want
you
to listen to the questions
I'm going to ask you, carefully. Try to
answer those questions fully, but don't
tell
me
more
than I ask you about, because
there's some things I need to know and
some things that at the moment, I don't
intend to get into. Basically, I want to
know what happened downstairs in the
lunchroom and how you feel about it. I
don't want to know what has been going on
upstairs in the jury room. So, those are
sort of the general areas that I'm
interested in and with regard to what has
gone on upstairs, at the moment, I don't
want you to tell me.
After listening to Berger's recollection of his
conversation with the FPO, the judge asked Berger "And what
effect, if any, does this have on your ability, or may this
have
on
your
ability
to
deliberate and decide the case based on
the evidence and the law and on nothing else, including this
information and event?" Berger replied,
19. The district court's investigation into the matter is
chronicled in greater detail in United States v. Barone, 846
F. Supp. 1016 (D. Mass. 1994).
-54-
54
Well, this is going to -- I have no
problem with it. It's just that things
I'd have problems with if the jury, say,
is hung and someone thinks that I had
something to do with it. I don't want
someone to be pointing a finger at me and
saying, well, you know, he defended your
cousin and you were going with him, and
you know, I don't know what the deal --
what happened with my cousin. If someone
could
say,
well, it would be out of spite.
I just -- It's something I don't want to
deal with. I think it would be very
difficult for everyone upstairs, also.
After asking Berger to step out, the judge again
conferred
with counsel before recalling Berger to question him
further regarding a discrepancy between his version and the
FPO's version of events. After Berger stepped out again, the
judge expressed doubts about his credibility, candor, and
ability to continue to serve as a juror, but deferred his
decision as to how to resolve the matter until the next day.
On the morning of October 28, 1993, the judge began
by stating his view that Berger's ability to deliberate had
been
impaired and that he should be excused from the jury. He
also stated that, in order to decide under Rule 23(b) whether
to declare a mistrial or proceed with eleven jurors, he would
question each of the remaining jurors individually. Barone's
counsel
stated
that
if
the court did not grant a mistrial, then
Berger should not be excused.
After further consultation with counsel, the judge
called
for
Berger.
The
judge reminded Berger that he was under
oath and again instructed him that, in answering the court's
-55-
55
questions, he should take care not to reveal anything,
"directly or indirectly, about how you're voting up there, or
how
the
jury
is divided, or what your view of the evidence is,
or
anybody
else's." The judge then questioned Berger again in
an effort to determine whether he was able to deliberate and
vote solely on the basis of the evidence and the law as
instructed
by
the
court.
In response to the court's questions,
Berger
stated that he would "have a hard time" and that he did
not "feel right." When asked whether he wished to be excused
from
the
case, Berger replied, "I wouldn't object. I wouldn't
say I don't want to be, but I really don't feel I should be
here
anymore
.
.
.
I
don't think it's right that I stay." When
the court asked him for his "most candid responses" as to
whether he could avoid being influenced in deliberating and
voting by concerns about how it might look later, Berger
replied, "I don't know if I can really [d]o that and that
concerns
me.
It
concerns me a lot. Maybe it shouldn't, but it
does."
The judge concluded that Berger's receipt of extra-
judicial information had impaired his ability to continue to
deliberate
as
an
impartial juror and, therefore, that there was
just cause to excuse Berger from the jury under Rule 23(b).
Over Barone's objection, the court excused Berger, with
instructions not to discuss the matter with anyone.
-56-
56
The court then announced its intention to determine
whether the remaining eleven jurors could continue to
deliberate fairly and impartially. The judge stated that he
would not declare a mistrial without further inquiry because
the trial had been a long one and would require considerable
government,
defense, and judicial resources to retry, but that
he would let counsel be heard on how to proceed if, after his
individual voir dire of the eleven remaining jurors, he
determined that the jurors were impartial. He explained that
"[t]his is the type of situation Rule 23(b) was intended to
address,
according
to
the Advisory Committee notes, by allowing
juries
of
eleven, in the court's discretion, and my overriding
concern is with the fairness of the trial."
After further consultation with counsel, and
following counsel for Barone's requests regarding what
questions to ask, the court conducted an individual voir dire
of each juror. The court concluded that no juror had been
affected by the information that Berger received or by his
dismissal;
that each juror was fair and impartial; and that no
evidence
of
pressure
or
anxiety was discernible in the demeanor
of any of the remaining jurors. Accordingly, the district
court
denied
Barone's motion for a mistrial, opting instead to
continue deliberations with eleven jurors pursuant to Rule
23(b).
The
jury
returned its verdicts the following afternoon.
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57
"When
a
non-frivolous suggestion is made that a jury
may be biased or tainted by some incident, the district court
must undertake an adequate inquiry to determine whether the
alleged incident occurred and if so, whether it was
prejudicial."
United
States v. Ortiz-Arrigoitia, 996 F.2d 436,
442
(1st
Cir.
1993)
(citations omitted). See Angiulo, 897 F.2d
at 1184-86. The district court is not, however, bound by a
rigid set of rules and procedures "that compel any particular
form or scope of inquiry," but is "vested with the discretion
to fashion an appropriate and responsible procedure to
determine whether misconduct actually occurred and whether it
was
prejudicial." Ortiz-Arrigoitia, 996 F.2d at 443 (citation
omitted). "Substantial deference is due the trial court's
exercise of its discretion in handling situations involving
potential
juror
bias
or
misconduct," Angiulo, 897 F.2d at 1185,
and
the
deference
due
the court's ultimate finding on the issue
of continued juror impartiality is enhanced because this
determination is a question of fact, id. at 1186.
Here, the trial judge promptly addressed the matter
in
open
court, and the inquiry was as thorough as the response
was prompt. The judge conferred with counsel at great length
over
a
period of two days, affording counsel ample opportunity
to
express
their
concerns, and entertaining their arguments and
suggestions regarding questions to ask of jurors and how to
proceed. The judge interviewed all the jurors -- taking care
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58
in his questions not to intrude upon their deliberations and
consulting
with
counsel
throughout -- and carefully weighed the
testimony, demeanor, and credibility of Berger and the other
jurors. A more careful and thorough approach than the one
taken by the district judge here is difficult to imagine. In
the end, the district court reasonably concluded that Berger
could
not
continue
to
deliberate as a fair and impartial juror,
but that his incapacity had not impaired the ability of the
remaining jurors to carry out their service fairly and
impartially.
The
trial
judge
has
substantial discretion under Rule
23(b) to remove a juror after deliberations have commenced
where the judge has determined that the juror's ability to
perform her duties has been impaired. See United States v.
Walsh, 75 F.3d 1, 5 (1st Cir. 1996). Barone protests that
"Berger's
concerns were not about his ability to be impartial,
but the perceptions of others"; that Berger indicated his
ability to deliberate and vote based solely on the evidence;
and that the district court "discounted juror Berger's
assurances of his own capability to decide the case based on
the evidence." Barone's argument seems to be that Berger's
initial representation that his receipt of extra-judicial
information
from the FPO had not affected his ability to serve
as an impartial juror was sufficient to establish his
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59
competence to deliberate impartially and, therefore, the
district court acted improperly in dismissing him.
But a juror's representations regarding her ability
to perform fairly and impartially are not dispositive, see
Murphy
v.
Flo
rida, 421 U.S. 794, 800 (1975); rather, the trial
court
must
make
its
own
determination of the juror's ability to
be
fair
and
impartial, see United States v. Egbuniwe, 969 F.2d
757, 761-62 (9th Cir. 1992). In all events, the question is
not whether the district court could have kept Berger on the
jury based upon his initial representation, but whether the
court acted within its discretion in excusing him from the
jury. See Casamento, 887 F.2d at 1187 ("Whether or not the
judge
properly could have kept this juror on the jury based on
her representation is not the issue here. Even if he could
have done so, it does not follow that he was obligated to do
so.").
We
conclude
that
the
district court did not abuse its
discretion under Rule 23(b) in excusing Berger after jury
deliberations
had
begun;
nor did the court violate Barone's due
process rights by removing Berger. In this context, due
process demands no more than what Barone received here, "'a
jury capable and willing to decide the case solely on the
evidence
before it, and a trial judge ever watchful to prevent
prejudicial occurrences and to determine the effect of such
occurrences when they happen.'" Olano, 507 U.S. at 738
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60
(quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)).
B.
Barone
also
argues
that
the district court abused its
discretion under Rule 23(b), and violated Barone's Fifth
Amendment right to due process of law and his Sixth Amendment
right to a unanimous verdict by allowing deliberations to
continue (rather than declaring a mistrial), and in accepting
verdicts
returned
by
a
jury of less than twelve members. In so
doing,
Barone
contends,
the district court committed reversible
error
by
depriving him of "one of the safeguards of liberty, a
hung jury."
Rule 23(b) was amended in 1983 in order to address
the very problem presented here, that of how to deal with the
necessity
of
excusing
a
juror after deliberations have begun.20
As amended, Rule 23(b) gives judges the discretion to permit
eleven-member juries to deliberate to a verdict if one juror
becomes unavailable.21 See Fed. R. Crim. P. 23(b) advisory
20. We note that under the federal rules the substitution of
an alternate juror is not within the district court's
discretion once the jury has begun to deliberate. See Fed.
R. Crim. P. 24(c) ("An alternate juror who does not replace a
regular juror shall be discharged after the jury retires to
consider its verdict."); Olano, 507 U.S. at 737-41 (treating
the presence of alternate jurors during deliberations as a
violation of Rule 24(c)); Houlihan, 92 F.3d at 1285-88
(same).
21. The Supreme Court has made clear that the Constitution
does not require twelve jurors for conviction. See Williams
v. Florida, 399 U.S. 78 (1970). We have stated that Williams
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61
committee's
note;
United
States v. Smith, 789 F.2d 196, 204 (3d
Cir.
1986).
The amendment was intended to provide a preferred
mechanism for avoiding a mistrial where a juror is excused
after
deliberations have begun, United States v. Stratton, 779
F.2d
820,
831 (2d Cir. 1985), particularly "when the trial has
been a lengthy one and consequently the remedy of mistrial
would necessitate a second expenditure of substantial
prosecution, defense and court resources," Fed. R. Crim. P.
23(b) advisory committee's note.
The district court determined that, at the time of
Berger's dismissal, the trial had been in progress for nearly
eleven weeks and would require "considerable government,
defense,
and
judicial
resources to retry," and that each of the
remaining jurors could continue to deliberate fairly and
impartially, based solely upon the evidence and the court's
instructions.
In United States v. Brown, 823 F.2d 591, 597 (D.C.
Cir. 1987), the court held that "Rule 23(b) is not available
when
the
record
evidence
discloses a possibility that the juror
believes that the government has failed to present sufficient
evidence to support a conviction." See also United States v.
"effectively answers the claim that 11 jurors are too few,"
Walsh, 75 F.3d at 6, and all courts to have considered the
matter have held Rule 23(b) to be constitutional, see United
States v. Ahmad, 974 F.2d 1163, 1164 (9th Cir. 1992); United
States v. Armijo, 834 F.2d 132, 134 (8th Cir. 1987); United
States v. Smith, 789 F.2d 196, 204-05 (3d Cir. 1986); United
States v. Stratton, 779 F.2d 820, 831-35 (2d Cir. 1985).
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62
Hernandez, 862 F.2d 17, 23 (2d Cir. 1988). In this case the
record reveals that, during his colloquies with Berger, the
district
judge
repeatedly instructed him not to disclose how he
was voting or how the deliberations had been going. Still,
some of Berger's responses to the court's questions arguably
suggest
the
possibility
that Berger may not have been persuaded
that
the
government had proven Barone guilty. For example, on
October 27, 1993, Berger stated:
It's just that things I'd have problems
with
if
the
jury, say, is hung and someone
thinks
that
I had something to do with it.
I don't want someone to be pointing a
finger at me and saying, well, you know,
he
defended
your cousin and you were going
with him . . . .
And on October 28, 1993, Berger said:
I don't feel right. . . . I don't want
anybody, whether it be someone in the
general public finding out, or anybody up
in
the
jury.
I don't want to be looked at
as, well, you know, he had a reason. I
don't want anyone to think how I vote, I
have a reason to do it other than the
evidence presented in court.
But, in contrast to Brown, in which the record
evidence "indicate[d] a substantial possibility that juror
Spriggs
requested
to
be
discharged because he believed that the
evidence offered at trial was inadequate to support a
conviction,"
823 F.2d at 596, here the record contains no true
evidence regarding Berger's views on the merits of the case.
Moreover,
the
district
judge in this case "did not construe any
remark by Mr. Berger as a statement of how he was voting and
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63
certainly did not consider which party he might have been
supporting in deciding whether to excuse him." United States
v. Barone, 846 F. Supp. at 1020.
Thus, in contrast to the juror in Brown (who
indicated to the judge that he was unable to discharge his
duties
because
he
disagreed with the RICO laws and was troubled
by the presentation of evidence), Berger was excused for a
valid
reason
that
was
entirely unrelated to the issue of how he
felt
about
the sufficiency of the government's proof; i.e., he
was excused because the district court determined that his
receipt
of
extra-judicial information from the FPO had impaired
his ability to carry out his role fairly and impartially.
We
think
that,
where,
as
here, a juror is removed for
a just cause that is unrelated to the juror's views of the
sufficiency of the evidence, and there is no indication that
the
removed
juror was a holdout juror, Brown's admonition that
"a court may not dismiss a juror during deliberations if the
request
for
discharge
stems from doubts the juror harbors about
the
sufficiency
of
the
government's evidence," 823 F.2d at 596,
does not apply. We conclude that the district court did not
abuse its discretion in permitting the eleven-member jury to
deliberate
to
a
verdict,
rather than declaring a mistrial. See
United States v. Gambino, 598 F. Supp. 646, 660-61 (D.N.J.
1984)
(stating
that
it
would have been "unthinkable" to declare
a mistrial rather than proceed with eleven jurors, given the
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64
investment of judicial resources in a six-week trial and over
twenty hours of jury deliberation), aff'd, 788 F.2d 938 (3d
Cir. 1986). See also United States v. Armijo, 834 F.2d 132,
135 (8th Cir. 1987) (holding that the district court did not
abuse its discretion in permitting an eleven-member jury to
render a verdict in a five-day trial).
Finally, we reject Barone's argument that the
verdicts
in
this
case
were not unanimous, and therefore violate
the
Constitution, as merely a rephrasing of his constitutional
challenge to the verdict rendered by an eleven-member jury.
Although
the
Supreme Court has not ruled on the constitutional
permissibility
of
a
less-than-unanimous verdict, see Apodaca v.
Oregon
,
406
U.S. 404 (1972), we have stated that "rendition of
a
verdict
agreed
to
by
all jurors, after one juror with unknown
views has been dismissed for cause, is a unanimous verdict,"
Walsh, 75 F.3d at 6.
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65
V.
For the foregoing reasons, the judgment of the
district court is affirmed.
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66