United States Court of Appeals
For the First Circuit
No. 00-2427
UNITED STATES,
Appellee,
v.
EDWARD T. PERROTTA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Lipez, Circuit Judge,
Coffin, Senior Circuit Judge,
and Barbadoro,* District Judge.
David N. Cicilline for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and James H.
Leavey, Assistant United States Attorney, were on brief for
appellee.
May 6, 2002
______________
* Of the District of New Hampshire, sitting by designation.
LIPEZ, Circuit Judge. Edward Perrotta was convicted of
conspiring with Rocco Folco and others to make extortionate
extensions of credit, aiding and abetting Folco in making
extortionate extensions of credit, and financing extortionate
extensions of credit made by Folco. He appeals on a number of
grounds. Unconvinced by his arguments, we affirm his convictions.
I. Background
In April of 1995, Perrotta loaned $50,000 to Folco at an
interest rate of one percent per week (52 percent per year).
Folco, in turn, loaned the $50,000 to Anthony Regine at an interest
rate of two percent per week (104 percent per year). Under Rhode
Island law, annual interest rates in excess of 21 percent are not
legally enforceable. Regine testified, however, that he believed
"something would happen to me or to my family" if he failed to make
timely payments to Folco.
In March of 1999 a grand jury indicted Perrotta, Folco,
and several others on various racketeering-related charges. The
indictment charged that Perrotta had financed extortionate
extensions of credit from Folco to Regine, in violation of
18 U.S.C. § 893. Most of the defendants pled guilty. In March of
2000 the grand jury returned a superceding indictment which
included the original count against Perrotta and also charged that
he had conspired with Folco and others to make extortionate
extensions of credit to Regine, in violation of 18 U.S.C. § 892,
and that Perrotta had aided and abetted Folco in making
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extortionate extensions of credit, in violation of 18 U.S.C. § 892
and § 2 (the general aiding and abetting statute).
Perrotta moved to dismiss the indictment on the ground
that § 893 (proscribing the advancement of money to a person "with
reasonable grounds to believe" that person intends to use it to
make an extortionate extension of credit) encourages the jury to
use a standard of proof less exacting than "beyond a reasonable
doubt," in violation of the Due Process Clause of the Constitution.
The district court denied his motion. Perrotta also moved to
suppress weapons seized from his home and car which had not been
described in the search warrant, and that motion was also denied.
In addition, Perrotta objected unsuccessfully (in a motion in
limine and at trial) to the admission into evidence of the seized
weapons. After the jury convicted Perrotta on all charges, the
court denied his earlier motions for a judgment of acquittal and
sentenced Perrotta to 37 months in prison.
On appeal, Perrotta argues that the evidence was
insufficient to support his convictions, that the district court
erred in admitting into evidence weapons seized during a search of
his home and car, that the seizure of the weapons violated the
Fourth Amendment, and that 18 U.S.C. § 893 invites confusion in the
application of the "beyond a reasonable doubt" standard and is
therefore unconstitutional.
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II. Sufficiency of the Evidence
A. The Charges
Under 18 U.S.C. § 892, "Whoever makes any extortionate
extension of credit, or conspires to do so, shall be fined . . . or
imprisoned not more than 20 years, or both." Federal law also
proscribes "willfully advanc[ing] money . . . to any person, with
reasonable grounds to believe that it is the intention of that
person to use the money . . . for the purpose of making
extortionate extensions of credit . . . ." 18 U.S.C. § 893. An
"extortionate extension of credit" is
[a]ny extension of credit with respect to
which it is the understanding of the creditor
and the debtor at the time it is made that
delay in making repayment or failure to make
repayment could result in the use of violence
or other criminal means to cause harm to the
person, reputation, or property of any person.
18 U.S.C. § 891(6). Recognizing that direct evidence of the
understanding of the parties concerning the consequences of delayed
repayment or non-repayment may be difficult to obtain, Congress
enumerated four factors which, if all present, would constitute
"prima facie evidence that the extension of credit was
extortionate." 18 U.S.C. § 892(b). The factors are "(1) that
repayment is unenforceable through civil judicial process; (2) that
the loan requires interest greater than 45% per year; (3) that the
loan exceeds $100; and (4) that the debtor reasonably believes that
the lender either has used [extortionate means] to collect other
debts or has a reputation for doing so." United States v. Zannino,
895 F.2d 1, 11 (1st Cir. 1990) (summarizing 18 U.S.C. § 892(b)).
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Instead of alleging that Perrotta's loan to Folco was
extortionate, the government tried to implicate Perrotta as a
participant in Folco's extortionate loan to Regine. Count One of
the indictment charged that Perrotta had conspired with Folco to
make extortionate extensions of credit to Regine, in violation of
18 U.S.C. § 892. To win a conviction on this count, the government
had to prove that Perrotta and Folco agreed and intended that Folco
would make an extortionate extension of credit to Regine (that is,
that Regine would understand that Folco would, if necessary, resort
to violence or other criminal means to collect). United States v.
Escobar-de Jesus, 187 F.3d 148, 175 (1st Cir. 1999) ("To prove the
elements of a conspiracy, the government must show beyond a
reasonable doubt that the defendant and one or more coconspirators
intended to agree and . . . to commit the substantive criminal
offense which was the object of their unlawful agreement."
(internal quotation marks omitted)).
Count Three charged that Perrotta had aided and abetted
Folco in making extortionate extensions of credit to Regine, in
violation of 18 U.S.C. § 892 and § 2. To win a conviction on this
count, the government was required to prove that Perrotta knew that
Folco's extensions of credit to Regine were extortionate and that
Perrotta intended to assist Folco in making the extortionate loans.
See United States v. Rosario-Diaz, 202 F.3d 54, 62 (1st Cir. 2000)
(to support a conviction for aiding and abetting, the government
must prove, in addition to the commission of the offense by the
principal, that the defendant "consciously shared the principal's
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knowledge of the underlying criminal act, and intended to help the
principal.").
Count Two charged Perrotta with financing extortionate
extensions of credit from Folco to Regine in violation of 18 U.S.C.
§ 893. To win a conviction on this count, the government had to
establish that Perrotta had advanced money to Folco with
"reasonable grounds to believe" that Folco would use the money to
make an extortionate extension of credit. Id. If we conclude in
evaluating the evidence that it was sufficient to establish that
Perrotta knew of Folco's extortionate practices, we necessarily
also conclude that he had reasonable grounds to believe that Folco
would employ such practices.
Perrotta does not deny having loaned $50,000 to Folco, or
that Folco then loaned the $50,000 to Regine. Nor does he dispute
the government's claim that Folco's loan of $50,000 to Regine was
extortionate. His sole contention is that the evidence was
insufficient "to support a finding that Mr. Perrotta knew of the
intention of Mr. Folco to employ violence in his collection
efforts."
B. Folco as Loan Shark
In weighing Perrotta's challenge to the sufficiency of
the evidence against him, we view the evidence in the light most
favorable to the verdict, and draw all reasonable inferences in
favor of the verdict. United States v. Benjamin, 252 F.3d 1, 5
(1st Cir. 2001). There was ample evidence at trial that Folco was
a loan shark, including a notebook in which Folco had recorded the
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principal amount, interest rate, and payment schedule of over a
dozen debts owed to him. The interest Folco charged on these loans
was two to three percent per week. There was extensive evidence
that it was Folco's practice to use violence and threats of
violence to collect debts. For example, Folco explained to Gary
Cedroni (a Folco associate) that one of his debt collectors, who
had "just got out of the can" and was "half fucking nuts," would
"crack" a debtor in order to "scare him enough" to secure payment.1
In a second conversation, Folco told Cedroni that one of his debt
collectors had "cracked [a debtor] on the mouth" on Folco's behalf
and said "'You better have the money by six o'clock or else.'" In
a third conversation, George Melillo (another Folco associate)
indicated to Folco that the next time he encountered a certain
debtor, Melillo would "smash him in the mouth . . . [k]nock him out
cold." Folco suggested that the debtor be warned that if payment
was not made within a week, he and his father would get "a
beating." The surveillance tapes contained several other accounts
of Folco's extortionate techniques.
1
The conversations quoted in this opinion were obtained by
means of electronic listening devices installed in Folco's home and
a wiretap on Folco's telephone. (The government also installed a
hidden camera outside Folco's home.) The government transcribed
these conversations to assist the jury in understanding the
surveillance tapes. Although it was the tapes, not the
transcripts, that were admitted into evidence, our review was
limited to the transcripts. At certain points in the transcripts
Perrotta disputes the government's version of what was said, and we
have noted those disputes.
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C. The Transactions
On April 22, 1995, Folco agreed to loan Regine $25,000 at
an interest rate of two percent per week. Regine needed this money
to pay off other loan sharks who were charging him even higher
rates of interest.2 Folco told Regine that he would get the money
from a third party, who turned out to be Perrotta, and Regine
expressed his understanding that Folco would "charge me a point,"
that is, one percent per week, on top of the interest the third
party (Perrotta) would be charging Folco.
On April 24, Folco told Cedroni that he had said to "the
old man" (Perrotta was 52 years old in 1995) that he "might
need . . . 50,000 more." Folco reported that he had asked Perrotta
"who am I gonna go to if I need that kind of money?", and "the old
man" had responded: "Me! Come to me. . . . I'll give you anything
you want." That same day, Perrotta telephoned Folco, and the
following conversation ensued:
Perrotta: Hey, I got you a putter for ya.
Folco: Yeah.
Perrotta: Do you want me to bring it over
tomorrow?
Folco: Yeah.
They agreed that Perrotta would deliver the "putter" at 8:30 the
next morning. Also on April 24, Folco told Regine "[o]ne guy is
gonna give me 25 G's tomorrow morning." Folco also indicated that
he could get Regine an additional $25,000 in the near future.
2
Regine also had a pre-existing debt to Folco of $80,000.
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At 8:19 a.m. on April 25, Folco told Regine (by
telephone) "that guy's coming at eight thirty . . . . He's gonna
bring me that -- package." Perrotta arrived at Folco's home at
8:33, without a golf putter. Perrotta asked Folco, "You want to
count it?" Folco replied, "No, no, I'll let him [presumably
Regine] count it . . . . There is 25 there?"3 Perrotta indicated
that there was. Folco explained his understanding of the terms of
the loan: "that'll be 250 [one percent of $25,000) I'll give you
every Tuesday." Perrotta indicated his assent.
Three minutes after Perrotta departed, Regine arrived at
Folco's residence. He thanked Folco and explained that he would
"take it [the $25,000] to . . . Joe," another loan shark to whom
Regine was indebted at an even higher rate of interest. In an
apparent reference to the second $25,000 loan which Folco and
Regine had discussed, Folco said: "I talked to a guy, gonna get
back to me. Gave me the bullshit, Jesus, ahh . . . I want a point
and a half [one and a half percent], he give me that shit." Folco
told Regine that he had rejected this proposal, but that he
expected to hear from the "guy" before the end of the week.
Indeed, Perrotta phoned Folco two days later about a
second "putter":
Perrotta: You didn't like that, you didn't
like that ah that putter I got yah, I got you
another one.
3
According to the government's transcript of the surveillance
tape, Folco made a second reference to Regine, who drove a beige
Infinity, in this conversation: "You probably seen the car. Ah, a
beige Infin-Infinity." Perrotta disputes this interpretation of
the tape, hearing instead a reference to a beige couch.
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Folco: Alright.
Perrotta: You know and then you you whichever
one you like ah you keep and ah the one you
don't like you can give it to me back so I can
give it to somebody else.
Folco: I'll be here.
Later that day, Perrotta showed up at Folco's residence, again
without a golf putter. In what the jury could have found was a
reference to the schedule for interest payments, Folco said to
Perrotta "[e]very Wednesday," and there was evidence that Folco and
Perrotta in fact met on subsequent Wednesdays. Folco also said
"I'll be like ten weeks, that's all," which the jury could have
found was a statement of the term of the loan.
The following day Regine came to Folco's home. Folco
reported that "[t]he guy that brought me the money yesterday[]" had
supplied "[a]ll twenties." The two men counted the money and
determined that it indeed amounted to "25 thousand." Regine
promised to pay Folco "the other five [hundred] [two percent of
$25,000] Tuesdays" (earlier in the conversation he had reiterated
his existing obligation to give Folco "five" on Tuesday for the
original $25,000). In other words, Folco got his money on Tuesday
and Perrotta got his on Wednesday.
Consistent with the evidence summarized above, a notebook
found in Folco's residence contained entries that the jury could
have found were a record of two loans of $25,000 each from Perrotta
to Folco. FBI expert Jerome Simpson offered the opinion that these
loans, at an interest rate of one percent per week -- "below the
rate of all of the other loans in this [notebook], and . . . below
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the rate of any other loan that I've ever seen for a loan shark to
make, putting money out on the street" -- were probably loans from
one loan shark to another. As Folco explained his financial
arrangements to Regine, "the guys I go see that lend money, I
guarantee that money out."
This was not the first time Perrotta had advanced money
to Folco, as evidenced by the following conversation between Folco
and Eddie Lato, one of his "business" partners:
Lato: You know, what he [Perrotta] does
sometimes . . . you ask him for two [thousand]
he freezes. He's got something about . . . I
don't know if he thinks you're gonna try and
rob him. . . .
Folco: Today it wasn't that. Last time I
asked him, "Ya, anything you want?" Took ten
off him, remember."4
In addition, Folco made reference in a recorded conversation to an
earlier "deal" he had done (for "a point") with the source of the
$50,000 he was lending to Regine.
D. The Seizure of Perrotta's Cash and Weapons
A search conducted on June 23, 1995, turned up $4,703 in
cash on Perrotta's person, $4,800 in cash around Perrotta's house,
two handguns and ammunition in a nightstand in a first-floor
bedroom, a third handgun, brass knuckles, a fake bomb in Perrotta's
garage, and a billy club in his car. The next day, Folco had the
following conversation with Lato:
4
Perrotta's version of this exchange denotes as
unintelligible Folco's final five words ("Took ten off him,
remember.")
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Lato: Um. Perrotta, they got. I'm afraid.
Folco: What they [unintelligible] on him?
Lato: Bombs, guns, everything.
Folco: He ain't worried about
[unintelligible]. If he blows up. Hm.
[Unintelligible] he's dead.5
Lato then informed Folco that (presumably the police) "[t]ook 10
off of Perrotta," consistent with the seizure the day before of
$9503 from Perrotta. Lato reported that he had spoken to Perrotta
after the raid, and that either he or Perrotta had said to the
other: "it's over for us."6 Folco expressed concern that
"[s]omebody will rat." Lato agreed: "And they gonna say that we,
we, we bankrolled the whole fucking thing."
E. The Evidence of Perrotta's Knowledge of Folco's "Business"
First, there was evidence tending to show that Perrotta
had repeated dealings with Folco in relation to Folco's money-
lending operation. The jury could have inferred from Folco's
report to Cedroni that he had told "the old man" that he "might
need . . . 50,000 more" (emphasis added) that Perrotta was an
ongoing participant in Folco's loan sharking business. The same
inference is supported by Folco's reference to a previous "deal" he
5
Perrotta's version of this conversation denotes as
unintelligible Folco's final remarks, transcribed by the government
as "If he blows up. Hm. [Unintelligible] he's dead."
6
The jury could have so interpreted the following statement
by Lato to Folco: "Took 10 off of Perrotta. BREAK (2 seconds)
[unintelligible] were, were all the time saying it's over for us.
They took a shot at us huh. I was with him last night. He call me
up. He said uh, will you come by and take me for a ride?"
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had done with the source of the $50,000, and by the conversation in
which Lato and Folco discussed what Perrotta "sometimes" does when
asked for money. Based on this evidence, the jury could have
concluded that Perrotta was more than an unwitting, peripheral
participant in Folco's loan sharking business. That inference
could have been reinforced for the jury by the concern Lato
expressed to Folco, after the search of Perrotta's home, that "they
got" Perrotta, "I'm afraid" ("[b]ombs, guns, everything"), and by
the statement by Lato or Perrotta that "it's all over for us."
Second, if the jury found that Perrotta knew that Folco
was re-lending the $50,000 to a third person -- as Folco's
statement to Perrotta, "I'll let him [presumably Regine] count it
[the money Perrotta had just delivered]," suggests -- it could also
have concluded that Perrotta must have realized that Folco and that
person understood that violence or other criminal collection
techniques might be used. This is because, for Folco to turn a
profit, he would have had to charge interest in excess of the one
percent per week he was paying Perrotta, which would make the
obligation legally unenforceable in Rhode Island. See United
States v. Oreto, 37 F.3d 739, 752-53 (1st Cir. 1994) (fact that
loan was "grossly usurious" was a factor indicating violence might
be used to collect). The jury could have credited Simpson's
testimony that, in his opinion, the loan from Perrotta to Folco at
the relatively low rate of one percent per week "was probably a
loan from one loan shark to another," and that Folco's role in the
transactions was, as he explained to Regine, to "guarantee
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[Perrotta's] money out." If the jury believed that Perrotta
himself was a loan shark, it could have reasoned that he must have
realized that Folco was one too, and that Folco might use
extortionate methods to collect the $50,000 he had borrowed from
Perrotta and loaned to Regine.
In sum, while there was no direct evidence that Perrotta
understood the extortionate nature of Folco's transactions with
Regine, there is enough circumstantial evidence to support a jury
finding that he must have realized how Folco would enforce, if
necessary, Regine's repayment obligations.
III. Admission of the Weapons
Perrotta filed a pre-trial motion in limine "to exclude,
as evidence against him, all tangible evidence seized from his
residence as such evidence is inadmissible pursuant to Federal Rule
of Evidence 404(b) and introduction of the same would deny the
defendant the fair trial to which he is entitled." At the motion
hearing, Perrotta argued that introduction of the guns, brass
knuckles, billy club, and fake bomb would be "highly prejudicial."
Those items, he contended, are "irrelevant to the crimes charged
and will clearly result in the [j]ury being invited to convict Mr.
Perrotta . . . because . . . of bad character or things that the
[j]ury in this climate will not like -- possession of firearms
and . . . other weapons." The district court denied the motion.
At trial, police officers testified to the discovery of
the guns, brass knuckles, and fake bomb in Perrotta's residence,
and the billy club in Perrotta's car. Except with respect to the
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brass knuckles, Perrotta made no objection to this testimony. Nor
did he raise a 404(b) objection to the recorded conversation in
which Lato said to Folco "they got" Perrotta, "[b]ombs, guns,
everything."7 However, when the government requested that the
seized items be marked as exhibits, Perrotta objected on the ground
of "relevance."
On appeal, Perrotta argues that the district court should
have excluded the weapons under Fed. R. Evid. 404(b) as evidence of
other crimes, wrongs, or acts, or because their probative value was
substantially outweighed by the danger of unfair prejudice under
Fed. R. Evid. 403.8
To admit evidence of [other] bad acts, a trial
court must find that the evidence passes two
tests. First, the evidence must have 'special
relevance' to an issue in the case . . . , and
must not include "bad character or propensity
as a necessary link in the inferential chain."
Second, under Rule 403, evidence that is
specially relevant may still be excluded if
its probative value is substantially
outweighed by the danger of unfair prejudice.
United States v. Varoudakis, 233 F.3d 113, 118 (1st Cir. 2000)
(quoting United States v. Frankhauser, 80 F.3d 641, 648 (1st Cir.
1996)). We review the district court's evidentiary rulings for
abuse of discretion. United States v. Gilbert, 181 F.3d 152, 160
(1st Cir. 1999).
7
At trial, Perrotta objected to the Folco-Lato conversation
on hearsay grounds. He does not pursue his hearsay argument on
appeal.
8
On appeal, Perrotta does not renew his objection to the
testimony about the brass knuckles.
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A. Rule 404(b)
Although Perrotta argues that the weapons had none of the
special relevance to the charges against him required by Rule
404(b), he did not challenge the police testimony that the weapons
were found in his possession. Nor did he challenge Lato's
"[b]ombs, guns, everything" remark on special relevance grounds.
Thus, even if we were to conclude that the introduction of the
actual weapons lacked the special relevance required by the rule
and only served to create a negative inference about Perrotta's
character, we would have to consider the important fact that
evidence about Perrotta's possession of the weapons was already in
the case because of the testimony to which Perrotta did not object
on 404(b) grounds. "Under Fed. R. Evid. 103(a), this court must
review a challenged evidentiary decision to determine whether 'a
substantial right of the party is affected.'" Doty v. Sewall, 908
F.2d 1053, 1057 (1st Cir. 1990) (quoting Fed. R. Evid. 103(a)). We
have held that "no substantial right of the party is affected where
the evidence admitted was cumulative as to other admitted
evidence." Id. To the extent that Perrotta was concerned that the
admission of the weapons into evidence wrongly alerted the jury to
the fact that he had possessed them, any such error would be
harmless. The jury already knew that fact from the testimony of
witnesses about the weapons.
For the sake of completeness, however, and to dispel any
notion of unfairness surrounding the admission of the testimony
about the weapons, we add that if Perrotta had objected to the
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testimony about the weapons, and had not limited his objection to
their introduction into evidence, his objection would have been
meritless. Testimony about the discovery of the guns, brass
knuckles, billy club, and fake bomb in Perrotta's home and car had
the special relevance to the government's case required by Rule
404(b). In a conversation recorded the day after the search of
Perrotta's home and car, Lato said to Folco that he was "afraid"
that "[b]ombs, guns, everything" had been taken from Perrotta. The
Folco-Lato conversation in all of its detail was probative of the
relationship between Perrotta and Folco, revealing an alarmed
reaction by Folco and Lato to the investigation of Perrotta, and
thereby suggesting that Perrotta was a significant player in their
loansharking operation. In addition, their awareness of the
details of the seizure from Perrotta so soon after it happened was
further evidence of their close relationship with him. Perrotta's
contention that the weapons had no relevance except to support a
negative inference about his character is therefore without merit.
The government also argues that the seized weapons were
relevant generally as "tools of the trade" of extortion because
they are useful to protect the lender and intimidate borrowers, and
thus they tend to show that Perrotta was a loan shark. We have
said that "in drug trafficking firearms have become 'tools of the
trade' and thus are probative of the existence of a drug
conspiracy." United States v. Green, 887 F.2d 25, 27 (1st Cir.
1989). The government urges us to extend the "tools of the trade"
rationale for the admission of weapons to the crime of extortion,
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reasoning that weapons are tools of the loan shark's trade just as
they are tools of the drug dealer's trade, and thus are probative
of loan sharking activity. United States v. Gilley, 836 F.2d 1206,
1214 n.9 (9th Cir. 1988) (noting that the "tools of the trade"
doctrine might be applicable to extortion). The district court
appeared to endorse the government's "tools of the trade" theory in
denying Perrotta's motion to exclude the weapons. In our view,
however, there are three reasons why this was a poor case for the
government to urge extending the tools of the trade doctrine to the
crime of extortion: (1) the government does not claim that Perrotta
himself used threats of violence to enforce debts owed to him; (2)
there was little left of Perrotta's relevance objection after he
did not object to the testimony about the weapons; and (3) the
weapons had a case-specific relevance to the charges against
Perrotta that we have already described. See Gilley, 836 F.2d at
1214 n.9 ("Where, as here, a clear nexus exists between the
evidence and the crime charged, no resort need be made to the
'tools of the trade' doctrine."). Because resort to the tools of
the trade doctrine was unnecessary in this case, we do not address
the merits of the government's argument.
B. Rule 403
Perrotta also argues that the weapons should have been
excluded under Rule 403, as their probative value was substantially
outweighed by the danger of unfair prejudice. Since the jury was
not being asked to make any specific determinations concerning the
physical characteristics of the weapons, we discern no particular
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reason why the jury needed to see the actual weapons. However, it
is a commonplace of trial practice that testimony about physical
objects often leads to their introduction into evidence. That
introduction serves to corroborate the testimony about the
existence of the objects, a purpose captured by the familiar phrase
"seeing is believing."9 This added increment of probative value is
appropriate unless it is substantially outweighed by the danger of
unfair prejudice to the defendant. Fed. R. Evid. 403; see also
United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir.
1989) ("[A]ll evidence is meant to be prejudicial; it is only
unfair prejudice which must be avoided." (emphasis in original)).
"'[O]nly rarely -- and in extraordinarily compelling
circumstances -- will we, from the vista of a cold appellate
record, reverse a district court's on-the-spot judgment concerning
the relative weighing of probative value and unfair effect.'"
United States v. Pitrone, 115 F.3d 1, 8 (1st Cir. 1997)(quoting
Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988)).
Here, the government has been unable to explain why the jury needed
to see the actual weapons, beyond the usual corroborative purpose
9
See 2 McCormick on Evidence § 212 (5th ed. 1999) ("Since
'seeing is believing,' and demonstrative evidence appeals directly
to the senses of the trier of fact, it is today universally felt
that this kind of evidence possesses an immediacy and reality which
endow it with particularly persuasive effect." (footnote omitted)).
Of course, McCormick is not the author of this phrase, which the
Second Circuit has described as "[a] proverb current even in the
days of ancient Rome." Coca-Cola Co. v. Tropicana Products, Inc.,
690 F.2d 312, 314 (2d Cir. 1982); see also Johnson v. United
States, 162 F.2d 562, 563 (9th Cir. 1947) ("well-known maxim");
O'Leary v. Liggett Drug Co., 150 F.2d 656, 666 (6th Cir. 1945)
("common-sense adage"). But see Finley v. Marathon Oil Co., 75
F.3d 1225, 1231 (7th Cir. 1996) ("misleading old saw").
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served by the introduction of the objects themselves. By the same
token, however, we see no unfair prejudice from the introduction of
the guns and the fake bomb into evidence. The district court
instructed the jury that there was no evidence that Perrotta had
possessed the guns illegally, and there was testimony that the bomb
was a fake. Nothing in the record suggests that the guns or the
fake bomb would have inflamed the jury or inspired them to decide
the case on an emotional basis. See Varoudakis, 233 F.3d at 122
("Usually, courts use the term 'unfair prejudice' for evidence that
invites the jury to render a verdict on an improper emotional
basis.").
Similarly, although the brass knuckles and billy club
were surely unfamiliar items to the jurors,10 and were real rather
than fake, we again see nothing in the record to suggest that the
brass knuckles and billy club would have inflamed the jury to
decide the case on an emotional basis. See id. We therefore
conclude that the district court did not abuse its broad discretion
in admitting the weapons seized from Perrotta into evidence.
IV. Suppression of the Weapons
Perrotta argues that the seizure of his weapons violated
the Fourth Amendment because the weapons were not described in the
search warrant. His argument ignores the plain view doctrine,
which permits the seizure of items located in plain view if "(1)
the seizing officer has a prior justification for being in a
10
The possession of brass knuckles and billy clubs is illegal
in Rhode Island. The jurors, however, were not so advised.
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position to see the item in plain view and (2) the evidentiary
value of the item is immediately apparent." United States v.
Owens, 167 F.3d 739, 746 (1st Cir. 1999). Evidentiary value is
"immediately apparent" if there are "enough facts for a reasonable
person to believe that the items in plain view may be contraband or
evidence of a crime." United States v. Hamie, 165 F.3d 80, 83 (1st
Cir. 1999).
Perrotta fails to explain why the plain view exception is
inapplicable to this case. The search was conducted pursuant to an
investigation of a loansharking conspiracy that used violence to
enforce repayment obligations. The officers had reason to believe
that the weapons could have evidentiary value in connection with
their investigation, as Perrotta could have used the weapons to
collect debts or to protect his cash. It makes no difference that
the weapons were not used to commit the crimes for which Perrotta
was convicted; the Fourth Amendment requires simply that the
investigators, at the time of the seizure, had reasonable grounds
to believe that the items "may [have been] contraband or evidence
of a crime."11 Id.
V. Due Process
Perrotta argues that 18 U.S.C. § 893 violates the Due
Process Clause of the United States Constitution in proscribing the
advancement of money to a person "with reasonable grounds to
11
The justification for the seizure of the billy club and
brass knuckes is even more straightforward: these items are illegal
in Rhode Island.
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believe" that the person intends to use the money to make an
extortionate extension of credit. Perrotta's position is that the
quoted language "invites confusion in the application of the
'beyond a reasonable doubt' standard, and could easily lead the
jury to convict under this statute if the jury has 'reasonable
grounds' to believe the Defendant is guilty."
Perrotta cites no precedent that supports his view of
§ 893, or of its implications for any of the other federal statutes
that include the same or similar language. See, e.g., 18 U.S.C.
§ 2388(c) (activities affecting armed forces during war) (punishing
"[w]hoever harbors or conceals any person who he knows, or has
reasonable grounds to believe or suspect, has committed . . . an
offense under this section") (emphasis added); 18 U.S.C.
§ 1030(a)(1) (punishing, inter alia, whoever "having knowingly
accessed a computer without authorization . . . and by means of
such conduct having obtained information that has been determined
by the United States Government . . . to require protection against
unauthorized disclosure, . . . with reason to believe that such
information so obtained could be used to the injury of the United
States, . . . willfully communicates, delivers, transmits, or
causes to be communicated, delivered, or transmitted . . . the same
to any person not entitled to receive it") (emphasis added); 18
U.S.C. § 842(c) ("It shall be unlawful for any licensee to
distribute explosive materials to any person who the licensee has
reason to believe intends to transport such explosive materials
into a State where the purchase, possession, or use of explosive
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materials is prohibited. . . .") (emphasis added). Nor does he
explain why the government is wrong to suggest that "Congress
surely has the power to adopt different standards of intent for the
mens rea elements of federal crimes, so long as the jury must find
beyond a reasonable doubt that the defendant acted with the given
level of intent in committing the crime." In the absence of any
explanation, his argument verges on the frivolous.
Affirmed.
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United States v. Filippi
Court: Court of Appeals for the First Circuit
Date filed: 2002-05-06
Citations: 211 F.3d 649
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