United States Court of Appeals
For the First Circuit
No. 02-2219
UNITED STATES,
Appellee,
v.
MICHAEL S. FLEMMI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
John H. LaChance for appellant.
Brian T. Kelly, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, and Virginia M.
Vanderjagt, Assistant United States Attorney, were on brief, for
appellee.
March 25, 2005
STAHL, Senior Circuit Judge. Appellant Michael Flemmi
("Michael") is a retired Boston police officer and the brother of
gangster Stephen Flemmi ("Stephen"). Until Stephen's arrest in
1995 and subsequent incarceration, he and James Bulger ("Bulger")
ran a criminal enterprise in Boston (the "Bulger/Flemmi group").
In 2000, Michael was indicted and charged with two counts
of obstruction of justice, in violation of 18 U.S.C. § 1503; one
count of perjury, in violation of 18 U.S.C. § 1623; one count of
possession of unregistered machine guns, silencers, and cut-down
shotguns, in violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d),
5871; and one count of transfer and possession of machine guns, in
violation of 18 U.S.C. § 922(o). The charges were based on
allegations that he helped hide a cache of weapons and lied to a
grand jury in an attempt to impede an investigation of his brother
and other members of the Bulger/Flemmi group.
At Michael's trial, the district court allowed the jury
to hear evidence relating to the Bulger/Flemmi group and Michael's
interactions with that group. The jury ultimately convicted
Michael on all counts. At sentencing, the district court, in
calculating Michael's sentence for the perjury and obstruction of
justice counts, identified murder as the most serious offense
related to his unlawful conduct. On appeal, Michael argues that
the district court erred in admitting the abovementioned evidence
and identifying murder as the relevant offense. We affirm.
-2-
I. Background
In November 1999, Kevin Weeks ("Weeks"), a member of the
Bulger/Flemmi group, was arrested and indicted (the "Weeks
indictment") by a grand jury in Worcester, Massachusetts (the
"grand jury").1 Soon after his arrest, Weeks agreed to cooperate
with the government and disclosed information about crimes
committed by the Bulger/Flemmi group. Weeks stated that Bulger and
Stephen had committed three previously unsolved murders and buried
the bodies at a specified location in Dorchester, Massachusetts.2
Weeks also said that the Bulger/Flemmi group had an arsenal of
weapons (guns and ammunition) hidden in a structure behind the
house of Michael and Stephen's mother, Mary Flemmi ("Mrs. Flemmi"),
in Boston, Massachusetts. As a result of the information that
Weeks provided, the grand jury amended the Weeks indictment to
include Bulger and Stephen, who were each charged with engaging in
violent racketeering activities, including assault and murder.3
Thereafter, law enforcement agents obtained warrants to
search for the weapons and bodies Weeks had described. On January
13, 2000, agents searched the structure behind Mrs. Flemmi's house
1
Weeks was charged with engaging in a variety of criminal
offenses, including extortion and money laundering.
2
Weeks acknowledged that he had witnessed the murders.
3
Bulger and Stephen had previously been indicted in 1995 (the
"1995 indictment") for engaging in similar racketeering activities,
including murder.
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for the arsenal and, in a secret compartment within the structure,
found a single revolver, along with ammunition and silencers. The
hide, however, contained numerous shelves and gun racks and, thus,
appeared capable of storing a substantial number of firearms. At
the location Weeks identified in Dorchester, the agents unearthed
the skeletal remains of three murder victims, who were subsequently
identified as Arthur Barrett ("Barrett"), John McIntyre
("McIntyre"), and Deborah Hussey ("Hussey"), the latter being
Stephen's step-daughter.
On January 11, 2000, two days before the agents searched
the hide, William St. Croix ("St. Croix"), Stephen's son, visited
Stephen in prison. During the visit, Stephen asked St. Croix to
remove guns Stephen had hidden in the structure behind his mother's
house. St. Croix and his friend, Michael Allen ("Allen"), went to
Mrs. Flemmi's house that same day. Michael was present when they
arrived. St. Croix told Michael that Stephen had asked St. Croix
to remove guns from a hide in the structure because he was
concerned that Weeks, whom he knew to be cooperating with the
government, would disclose the existence and location of the hide.
Michael helped St. Croix locate the hide and load the guns into
bags, which St. Croix and Allen then transported to Allen's
residence.4
4
Some of the guns were later transported to a storage facility
in Florida, while others were buried in Somerville, Massachusetts.
Approximately fifty-four guns were ultimately recovered by law
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Michael's Grand Jury Testimony
On June 7, 2000, Michael was called to testify before the
grand jury, which was still investigating the Bulger/Flemmi group.
Michael was questioned about the structure behind his mother's
house, the hide, the missing guns, and the bodies unearthed in
Dorchester. Michael told the grand jury that "the last time [he]
was in [the structure] was about three years ago." When Michael
was asked whether he had ever seen the hide, or the items recovered
therefrom, before the January 13, 2000 search, he responded,
"Never." Michael also stated that, before January 13, 2000, he
did not know about the hide; had never conversed with anyone about
the hide; had never seen any firearms at his mother's house; did
not know whether there were ever rifles in the hide; and did not
know whose property was recovered from the hide or how it came to
be situated there. Finally, when Michael was asked whether he knew
if Stephen's step-daughter, Hussey, was alive, he answered, "I
don't know." Yet, a few months before, in January of 2000, while
he and St. Croix were visiting Stephen in prison, Stephen confessed
to killing Hussey.
The grand jury subsequently added Michael to the Weeks
indictment. He was charged with obstruction of justice and perjury
enforcement agents from the Florida storage facility and the ground
in Somerville.
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in connection with the removal of the guns from the hide and his
grand jury testimony, and with unlawful possession of firearms.
Michael's Trial
Michael was tried separately from the other indicted
parties. At his trial, which began on April 16, 2002, the
government called St. Croix and Allen to testify that Michael had
helped them remove guns from the hide. The government also
presented evidence that the guns met the statutory requirements for
the firearms charges, and it played for the jury a recording of
Michael's grand jury testimony. In addition, the government was
permitted to ask St. Croix and Weeks about the Bulger/Flemmi group,
its criminal exploits, and Michael's contacts with the group.
Nevertheless, the jury was instructed, on more than one occasion,
that "Michael [was] not charged with complicity in the [crimes]
carried out by the Bulger-Flemmi organization," and it was reminded
that it was to "confine [its] deliberations to the crimes with
which Michael [was] actually charged."5
5
During the jury charge, the district court gave the following
limiting instruction (a comparable instruction was given when St.
Croix testified):
Guilt can never be established by the mere fact of
association. The fact that Stephen [], a notorious
gangster, is the defendant's brother does not prove
anything about [Michael's] possible guilt.
You also heard testimony about the criminal
organization led by Stephen [] and [] Bulger and its many
crimes. This testimony was admitted to the extent that
it was relevant to your understanding of the grand jury
investigation that [Michael] is accused of obstructing,
the origin and the purpose of the cache of firearms that
-6-
Michael's defense at trial was that he had nothing to do
with the removal of the guns from the hide--he insisted that any
testimony on the part of the government's witnesses to the contrary
was false. The jury ultimately convicted Michael on all counts.
Michael's Sentencing
Michael was sentenced on September 9, 2002. In order to
determine Michael's sentence for perjury and obstruction of
justice, the district court had to identify the most serious
substantive offense related to his unlawful conduct.6 The district
were allegedly hidden [in the structure behind Mrs.
Flemmi's house], and your assessment of the credibility
of certain witnesses who have admitted their
participation in the organization's crimes.
You must, however, remember that Michael [] is not
charged with complicity in the murders, extortions, and
drug dealing carried out by the Bulger-Flemmi
organization. Not only is he not charge[d] in these
crimes, there is no evidence that he was involved in them
in any way. You are, therefore, to confine your
deliberations to the crimes with which Michael [] is
actually charged . . . .
6
Section 2J1.2(a) of the United States Sentencing Guidelines
provides a base offense level of 12 for obstruction of justice.
(The district court used the Guidelines Manuel issued on November
1, 2001, and so do we.) But, "[i]f the offense involved
obstructing the investigation or prosecution of a criminal
offense," section 2J1.2(c) instructs the sentencing court to apply
section "2X3.1 (Accessory After the Fact) in respect to that
criminal offense, if the resulting offense level is greater than"
the calculation under the obstruction Guideline alone. The
Guideline for perjury, section 2J1.3, also has a base offense level
of 12, and a cross-reference to section 2X3.1 "[i]f the offense
involved perjury . . . in respect to a criminal offense." Note,
"the defendant need not have been convicted [of] participating in
the underlying offense" for the cross-reference to apply. E.g.,
United States v. Suleiman, 208 F.3d 32, 38 (2d Cir. 2000). The
accessory after the fact Guideline, section 2X3.1, provides a base
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court, adopting the position taken in the United States Probation
Office's Pre-Sentence Report ("PSR"), decided that the relevant
offense was murder and sentenced Michael accordingly.
Present Appeal
On appeal, Michael argues that the district court erred
in admitting St. Croix and Weeks' testimony about the Bulger/Flemmi
group, its criminal activities, and Michael's interactions with the
group. He insists that: (1) the testimony pertaining to the
Bulger/Flemmi group and its criminal exploits was irrelevant and
unfairly prejudicial and, as such, should have been excluded
pursuant to Federal Rules of Evidence 401, 402, and 403; (2) the
testimony describing his interactions with the group was unfairly
prejudicial evidence of uncharged misconduct that should have been
excluded under Federal Rules of Evidence 403 and 404(b); and (3)
even if the district court did not err in admitting the challenged
evidence for the reasons stated above, "the testimony [describing]
statements made by Stephen [] to Weeks and[] St. Croix [was hearsay
that was] erroneously admitted" under Federal Rule of Evidence
801(d)(2)(E). Furthermore, Michael asserts that the district
offense level of "6 levels lower than the offense level for the
underlying offense, but in no event less than 4, or more than 30."
And, "[w]here there is more than one [potential underlying]
offense, the most serious such offense . . . is to be used." U.S.
Sentencing Guidelines Manual § 1B1.5, cmt. n.3 (2001).
In sum, where, as here, section 2X3.1 applies, the individual
who obstructed justice or committed perjury is sentenced as though
he were an accessory after the fact to the most serious substantive
criminal offense related to his conduct.
-8-
court, in calculating his sentence for perjury and obstruction of
justice, erred in determining that the most serious offense related
to those charges was murder. We address these arguments seriatim.
II. Michael's Evidentiary Challenges
As a general matter, "[w]e review the district court's
decision to admit the disputed evidence for abuse of discretion."
United States v. McGuire, 389 F.3d 225, 228 (1st Cir. 2004); see
also Richards v. Relentless, Inc., 341 F.3d 35, 49 (1st Cir. 2003)
(reviewing relevancy determinations for abuse of discretion);
United States v. Balsam, 203 F.3d 72, 84 (1st Cir. 2000) (reviewing
rulings pursuant to Rules 403 and 404(b) for abuse of discretion).
If, however, there was no objection to the admission of the
evidence at trial, our review is only for plain error.7 See United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). We will not
find plain error unless "(1) [] an error occurred (2) which was
clear or obvious and which not only (3) affected [Michael's]
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." Id.
A. Evidence of the Bulger/Flemmi Group and its Exploits
We begin by evaluating the admission of the testimony
concerning the Bulger/Flemmi group and its criminal exploits.
Michael argues that because this testimony, which is described in
7
Unless we state otherwise, it should be assumed that Michael
objected to the admission of the challenged evidence below.
-9-
detail below, "was only marginally relevant, if at all," to the
charged offenses and unfairly prejudicial, it should have been
excluded under Rules 401, 402, and 403. Evidence is relevant if it
has "any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence." Fed. R.
Evid. 401. Generally, "[a]ll relevant evidence is admissible,"
while "[e]vidence which is not relevant is not admissible." Fed.
R. Evid. 402. However, even if evidence is relevant, it "may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice."8 Fed. R. Evid. 403. We note at the
outset that "[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. Sabetta, 373 F.3d 75, 82-83 (1st Cir. 2004) (internal
quotation marks omitted).
Testimony Describing Persons Involved with the Bulger/Flemmi Group
8
Evidence is unfairly prejudicial if it "invites the jury to
render a verdict on an improper emotional basis." United States v.
Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000) (stating that a
reviewing court should be "cautious when [evidence] is [] shocking
or heinous [and, thus,] likely to inflame the jury" (internal
quotation marks omitted)); see also United States v. Currier, 836
F.2d 11, 18 (1st Cir. 1987) ("Unfairly prejudicial evidence . . .
is evidence that triggers the mainsprings of human action in such
a way as to cause a jury to base its decision on something other
than the established proposition in the case." (internal quotation
marks and brackets omitted)).
-10-
Michael first questions the admission of St. Croix's
testimony concerning individuals involved with the Bulger/Flemmi
group. Specifically, he contests the admission of statements that:
Stephen and Bulger "were partners in a criminal organization" (the
Bulger/Flemmi group)9; George Kaufman and Phil Costa were members
of, and collected money owed to, that organization; and Frank
Salemme "was the head of the New England mafia" and Stephen's ally.
The admission of these statements was not an abuse of
discretion. Michael was charged with obstructing an investigation
into the Bulger/Flemmi group and these statements were relevant
because they provided the jury with useful background information--
they introduced individuals associated with the investigation that
Michael was charged with obstructing. See United States v.
Gonzalez, 110 F.3d 936, 941 (2d Cir. 1997) ("To be relevant,
evidence need only tend to prove the government's case, and
evidence that adds context and dimension to the government's proof
of the charges can have that tendency. Relevant evidence is not
confined to that which directly establishes an element of the
crime."); see also United States v. Daly, 842 F.2d 1380, 1388 (2d
Cir. 1988) ("[T]he trial court may admit evidence that does not
directly establish an element of the offense charged, in order to
provide background for the events alleged in the indictment.").
9
Although Michael did not object to the admission of this
particular statement at trial, we find it unnecessary to engage in
the plain error analysis because we find no error in its admission.
-11-
Moreover, the testimony was not unfairly prejudicial to
Michael, as St. Croix never suggested that Michael was a member of
the Bulger/Flemmi group. And, any prejudice that it may have
caused was mitigated by the district court's limiting instructions.
Testimony About an "X Fund"
Michael next objects to the admission of Weeks' testimony
that the Bulger/Flemmi group had an "X fund"--a fund comprised of
"money that was put aside every time we made a score . . . for
expenses that would come up, . . . you know . . . payoffs." The
testimony was relevant because it indicated that the members of the
Bulger/Flemmi group were intent on concealing the group's criminal
activities, and thus, it tended to support the government's theory
that Stephen recruited St. Croix (who, in turn, recruited Michael)
to remove guns from the hide. And, any claim that the testimony
was unfairly prejudicial to Michael is weak because Weeks never
indicated that Michael had anything to do with the "X fund." There
was no error in the admission of this testimony.
Testimony About the Use of Coded Communications
Michael also asserts that the district court erred in
admitting (1) St. Croix's testimony that, when possible, St. Croix,
Weeks, Allen, and Michael avoided using intercom phones when
communicating with Stephen in prison (they would, for example, hold
up signs and gesture with their hands), and (2) Weeks' testimony
that members of the Bulger/Flemmi group used nicknames when
-12-
referring to law enforcement agents in front of Michael and that
Michael understood the coded references. This testimony was highly
relevant because it indicated that Michael was a trusted ally of
the Bulger/Flemmi group (such that it would not be unreasonable to
think that St. Croix would have enlisted his help in moving the
guns) and that he was aware of, and willing to cover up, the
group's activities (which helped establish his knowledge of the
group's--and his brother's--unlawful behavior, as well as his
intent to commit the crimes with which he was charged). We do not
think that the district court abused its discretion in admitting
the testimony based on its high probative value. We also note that
any danger of unfair prejudice was considerably lessened by the
limiting instructions the district court gave.
Testimony About the Bulger/Flemmi Group's Criminal Activities
In addition, Michael attacks the admission of Weeks'
testimony concerning: (1) the three people--Barrett, McIntyre, and
Hussey--who were murdered in Weeks' presence and buried in
Dorchester; (2) two others, Brian Halloran ("Halloran") and Michael
Donahue ("Donahue"), who were also murdered in Weeks' presence; and
(3) the Bulger/Flemmi group's unlawful acquisition of a liquor
store in which Weeks was directly involved. With regard to the
murder victims, Weeks gave a brief account of the circumstances
-13-
surrounding each murder.10 In terms of the liquor store, Weeks
stated that he intimidated the owners of the store (by brandishing
a gun) so they would sell the store to the Bulger/Flemmi group.
The government defends the admission of this testimony by
pointing out that the testimony (which brought to the fore Weeks'
extensive criminal history) was important to Weeks' credibility and
arguing that such impeachment evidence may be elicited on direct
examination.11 There is support for the government's position. See
United States v. Frappier, 807 F.2d 257, 259 (1st Cir. 1986)
("[T]he prosecution, having called a witness, may then 'take the
wind out of the sails' of the defense by questions eliciting
possible bases for impeachment."); see also Fed. R. Evid. 607 ("The
credibility of a witness may be attacked by any party, including
the party calling the witness."). Michael even concedes that
informing a jury of the nature of a witness' prior criminal conduct
is "fair game." Nevertheless, he contests the admission of Weeks'
10
Weeks testified that: Bulger and Stephen strangled Hussey
(he did not explain why); Bulger shot Barrett because he had a
grudge against him; and either Bulger or Stephen shot McIntyre
after learning that he had informed law enforcement agents of the
Bulger/Flemmi group's plans to smuggle weapons to the Irish
Republican Army in Ireland. Weeks then related a conversation that
he had with Michael soon after Hussey's disappearance in which
"Mi[chael] indicated . . . that [Hussey's disappearance] was no
great loss." Finally, Weeks explained that Halloran was shot by
Bulger and a masked accomplice because he was an informant and that
Donahue was an unintended victim of the Halloran shooting.
11
We note and find it significant that, prior to trial, Michael
could have agreed to refrain from eliciting the evidence in
question on cross-examination, but that he opted not to do so.
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testimony on the ground that the prejudicial effect of permitting
the government to delve into the particulars of the Bulger/Flemmi
group's crimes substantially outweighed the testimony's probative
value. We disagree. Although there may be circumstances where a
criminal defendant would be wronged if the prosecution were allowed
to delve too deeply into the particulars of its witness' criminal
history on direct, we do not think that this is such a case. Here,
all but one of the statements had significant probative value.12
And, there was little danger of unfair prejudice: there was no
suggestion that Michael was involved in the crimes that Weeks
described and the jury was instructed to that effect. We cannot
say that the district court abused its discretion in admitting
Weeks' testimony. See United States v. Dworken, 855 F.2d 12, 28
(1st Cir. 1988) ("It is perhaps true that the government could have
[made due] without so much detail concerning the prior [events],
12
The value of the conversation that Weeks had with Michael
after Hussey's disappearance where "Mi[chael] indicated . . . that
[Hussey's disappearance] was no great loss" is not readily apparent
to us. Nonetheless, as we will later show, the error in the
conversation's admission was harmless. That conversation aside, we
think the rest of Weeks' testimony was probative not only because
it elicited impeachment evidence, but also because it established
a motive for Michael to help remove the guns from the hide and lie
to the grand jury (he did not want his brother's involvement in
crimes committed by the Bulger/Flemmi group, such as those Weeks
described, to be exposed), and because it provided useful
background by showing the purpose of the arsenal and describing
crimes that were the subject of the investigation that Michael was
charged with attempting to impede, see Daly, 842 F.2d at 1388.
-15-
but this is essentially a Rule 403 balancing decision left to the
broad discretion of the trial judge." (emphasis in original)).
Testimony that Weeks Sought a Gun from Stephen
The next challenge concerns Weeks' testimony that he
visited Stephen in prison and asked Stephen for permission to take
one of the guns from the hide so he could "act" on threats that had
been made against him. According to Weeks, Stephen agreed to the
request and stated that Stephen, Weeks, and Bulger were "the only
ones [who] knew [about the hide]." On appeal, Michael disputes
only the admission of that portion of the testimony where Weeks
stated that he sought a gun to "act" on threats made against him.
The challenged statement was relevant because it prompted, and
provided context to, the unchallenged, and clearly relevant,
testimony concerning the hide.13 See Sabetta, 373 F.3d at 83
(recognizing that testimony is relevant if it helps "explain[] the
chain of events"). Although the challenged statement's probative
value may not have been particularly high, we do not see how its
admission caused Michael unfair prejudice--there was no indication
that Michael knew of the conversation between Stephen and Weeks or
Weeks' plan to "act" on the threats made against him.
Consequently, there was no error in the testimony's admission.
13
The fact that Stephen told Weeks that he could take a gun
from the hide and that the only other person who knew about the
hide was Bulger helped establish the government's theory that the
hide was used to store a cache of guns and that the guns were in
the hide when St. Croix claimed to have moved them.
-16-
Testimony Regarding a Bombing in which Stephen was Implicated
Michael also objects to the admission of St. Croix's
testimony that he first "obtained personal knowledge [of Stephen's]
criminal activities . . . in 1974" when he learned that Stephen had
been "implicated in [a] bombing." This testimony provided relevant
background to the development of the illegal relationship between
St. Croix and his father, a relationship that culminated in the
concealment conspiracy in question. See United States v. Santana,
342 F.3d 60, 67 (1st Cir. 2003) (noting that evidence is relevant
in a conspiracy case if it explains the background of the illegal
relationship). And, the naked reference to a bombing in which
Stephen was allegedly implicated was not unfairly prejudicial to
Michael, as there was no allegation that Michael was involved in,
or knew of, the bombing. Moreover, any potential prejudice was
counteracted by the limiting instructions. The district court did
not abuse its discretion in admitting this testimony.
Testimony Concerning St. Croix's Relationship with Stephen
Michael further contends that it was an abuse of
discretion to allow St. Croix to testify that he and Stephen agreed
that if St. Croix chose a life of crime, Stephen "would show [him]
how to do things and [St. Croix would] tell [Stephen] everything
[he] was involved in . . . to make sure [that he] didn't hurt any
of [Stephen's] friends." We disagree. Immediately after St. Croix
gave the challenged testimony, he told the jury that he took his
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father up on his offer and "report[ed] to him on a regular basis."
Therefore, the testimony was relevant as it established the
background and formation of the illegal relationship between St.
Croix and Stephen, and it explained why Stephen would feel
comfortable telling St. Croix about the hide and asking him to move
the guns. See id. (noting that, in a conspiracy case, evidence is
relevant if it explains "the background [and] formation . . . of
the illegal relationship and . . . help[s] the jury understand the
basis for the co-conspirators' relationship of mutual trust"
(internal quotation marks omitted)). In addition, it is not clear
how the testimony could have caused Michael unfair prejudice
because there was no suggestion that he was in any way involved in
St. Croix's life of crime.
Michael also finds fault in the admission of St. Croix's
statements concerning Stephen's reaction after he learned that St.
Croix's brother, Stephen's other son, refused to visit him because
he was "angry" at him. According to St. Croix, Stephen said, "What
the hell has he got to worry about? All he had to do was 18
months. I may spend the rest of my life in prison." Michael,
however, used the testimony pertaining to the length of Stephen's
prison term to his advantage when he later relied on the likelihood
that Stephen would spend the rest of his life in prison in
presenting his defense: In his closing argument, Michael argued
that St. Croix was angry at his father for killing Hussey and that,
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because he could not take direct revenge against his father, who
would likely spend "the rest of his natural life" in prison, he
falsely testified against Michael as an indirect way to punish
Stephen. Under the circumstances, Michael can hardly complain of
prejudicial error. See, e.g., United States v. Carrillo-Figueroa,
34 F.3d 33, 39 (1st Cir. 1994).
In any event, there was no error in the admission of this
testimony. The testimony was relevant because it helped establish
that St. Croix was upset with his father (St. Croix testified that
his father's "cavalier" reaction to his brother's anger "really []
upset" him),14 and thus, it supported Michael's defense that St.
Croix falsely testified against him as a way to punish Stephen.
See Frappier, 807 F.2d at 259 (stating that the prosecution may
elicit possible bases for impeachment on direct). Moreover, we do
not see how the testimony, which in no way reflected on Michael,
could have caused Michael unfair prejudice.
Testimony that Stephen Confessed to Murdering Hussey
Michael next disputes the admission of St. Croix's
testimony that, on January 20, 2000, Stephen admitted to killing
Hussey in front of St. Croix and Michael. He did not object to the
admission of this testimony below, and we do not find any error,
much less plain error, in its admission. The testimony was highly
14
The fact that St. Croix's brother was jailed for eighteen
months was relevant because it explained the reason for the
brother's anger towards Stephen. See Daly, 842 F.2d at 1388.
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relevant because Michael was charged with, among other things,
perjuring himself before the grand jury, and on June 7, 2000,
subsequent to the conversation in question, he told the grand jury
that he had no idea whether Hussey was alive.15 Although the
testimony was certainly damaging to Michael, the district court did
not err in finding that the danger of unfair prejudice did not
outweigh the testimony's probative value.
Testimony About Defense Funds
This brings us to the final piece of testimony pertinent
to the Bulger/Flemmi group and its criminal exploits that Michael
challenges on appeal: St. Croix's testimony about the existence of
defense funds for members of the group. Despite Michael's
insistence to the contrary, the district court did not err in
allowing St. Croix to testify that a portion of the proceeds from
the illegal activities in which he was involved were used to pay
the legal expenses of Stephen and some of his associates. The
testimony was relevant for impeachment purposes (its admission
enabled the government to bring out on direct examination the fact
that St. Croix was engaged in illegal activities), see Frappier,
807 F.2d at 259, and because it provided insight into the
15
The testimony was also relevant to show that Michael knew of
Stephen's past crimes, and thus, it helped establish that Michael
had a motive to help move the guns and lie to the grand jury. See
supra note 12. In addition, the testimony demonstrated that
Stephen trusted Michael and St. Croix to the extent that it would
be reasonable to believe that he asked St. Croix to move the guns
and that St. Croix recruited Michael to assist in the endeavor.
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relationship between St. Croix and Stephen, see Santana, 342 F.3d
at 67. The district court did not abuse its discretion in finding
that the probative value of the evidence was not substantially
outweighed by the danger of unfair prejudice, because the testimony
did not implicate Michael in St. Croix's illegal activities.
B. Evidence of Michael's Interactions with the Bulger/Flemmi
Group
We now consider whether the district court erred in
admitting testimony pertaining to Michael's interactions with the
Bulger/Flemmi group. Michael argues that this testimony
constituted unduly prejudicial evidence of uncharged misconduct
that should have been excluded pursuant to Rules 403 and 404(b).
Rule 404(b) provides that "[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order
to show action in conformity therewith." Nevertheless,
other bad acts evidence is admissible so long
as the following, two-part test is satisfied:
First, in accordance with Rule 404(b), the
evidence must have special relevance to an
issue in the case such as [motive,] intent or
knowledge, and must not include bad character
or propensity as a necessary link in the
inferential chain. . . . Second, consistent
with Rule 403, the probative value of the
evidence must not be substantially outweighed
by the danger of unfair prejudice.
United States v. McGuire, 389 F.3d 225, 229 (1st Cir. 2004)
(internal quotation marks and citations omitted). We identify, and
evaluate Michael's objections to, the relevant statements below.
Testimony Concerning Michael's Interactions with Weeks
-21-
Weeks was permitted to tell the jury that he engaged in
loan sharking in Michael's presence without trepidation because
Michael was "Ste[phen's] brother" and Weeks "trusted him." Weeks
also testified that, after his gun license was revoked, Michael saw
him with guns and, on two occasions, loaned him a gun. Weeks
stated that he was not "afraid [that Michael] was going to arrest
[him] for [carrying a gun without a license]." Michael objects to
the admission of this testimony for the first time on appeal, and
as a result, our review is for plain error.
We find no error, and therefore, no plain error, in the
admission of this testimony. The government tried Michael on the
theory that he lied and obstructed justice to shield members of the
Bulger/Flemmi group from prosecution. Thus, the testimony had
special relevance in that it demonstrated Michael's knowledge that
members of the group engaged in unlawful activities and evidenced
his intent16 to protect those individuals from facing the legal
consequences of their actions.17 Moreover, we do not think that the
16
Michael's argument that the district court should not have
admitted Rule 404(b) evidence to prove intent because his defense
was a general denial of the crimes with which he was charged is
unavailing. We have held that "[Rule 404(b)] evidence may be
admitted when it is probative of an issue other than character even
when the defense is a general denial of the charges." United
States v. Oppon, 863 F.2d 141, 146 (1st Cir. 1988); but see United
States v. Ortiz, 857 F.2d 900, 904 (2d Cir. 1988) ("When a
defendant unequivocally relies on such a defense, evidence of other
acts is not admissible for the purpose of proving intent.").
17
The testimony also helped explain the trust that existed
between Michael and members of the Bulger/Flemmi group. See
-22-
district court abused its discretion in balancing the probative
value of this testimony against the danger of unfair prejudice.
Testimony that Michael Handled Stephen's Criminal Affairs
The next challenge involves testimony that Michael helped
handle Stephen's affairs while Stephen was in prison. St. Croix
testified that "after Phil Costa died and [] Weeks was indicted,
[he and Michael were the only people] left to handle [Stephen's]
affairs on the outside." St. Croix also testified that, after
Stephen's arrest, Michael "was picking up money from various
bookmakers . . . owed to [Stephen]."18 In addition, Weeks testified
that Michael "participate[d] in th[e] process of picking up
[proceeds from an extortionate] sale."19
Michael insists that the district court should have
excluded the above statements. We disagree. The statements were
specially relevant not only to show that Michael had knowledge of,
Santana, 342 F.3d at 67.
18
Michael did not object to the admission of this statement at
trial, so our review of its admission is for plain error. However,
because we do not find any error in its admission, we need not
engage in the plain error analysis.
19
Michael also objects to Weeks' statement that Weeks
"collected some of the proceeds" for Stephen from the extortionate
sale, a statement Weeks made immediately before testifying that
Michael also picked up money in connection with the sale. We do
not think that the district court erred in admitting this
statement. It was relevant because it put into context Weeks'
comment about Michael's involvement in the extortionate sale, and
it is not clear how the statement (which itself did not implicate
Michael in the sale) caused Michael unfair prejudice. See Sabetta,
373 F.3d at 83.
-23-
and occasionally assisted in, Stephen's illegal activities (which
helped establish that he had a motive to engage in the crimes with
which he was charged--to conceal from the grand jury his and his
brother's wrongdoing, as well as the intent to do so), but also to
demonstrate that while Stephen was in prison, St. Croix and Michael
were among the few people he trusted to help him with his illegal
activities. This explains why Stephen would feel comfortable
telling St. Croix about the hide and asking him to move the guns
(and why St. Croix would then feel comfortable enlisting Michael to
help). See Santana, 342 F.3d at 67 (allowing the admission of Rule
404(b) evidence to explain the trust that existed among the
coconspirators). Although the testimony may have caused the jury
to view Michael in a negative light, we do not think that the
district court erred in admitting the evidence after balancing its
significant probative value against the danger of unfair prejudice.
Testimony that Michael Informed Weeks of Stephen's Arrest
Michael also contests the admission of Weeks' statement
that Michael told him that Stephen had been arrested soon after the
arrest. Michael's claim is unavailing. The statement had special
relevance that could reasonably have been found to outweigh any
danger of unfair prejudice, as it helped establish Michael's
knowledge of Stephen's legal troubles and wrongdoing. Moreover,
the statement was independently admissible as a necessary component
of Weeks' ensuing testimony, the admission of which Michael does
-24-
not contest. Weeks testified that he responded to the news about
Stephen's arrest by telling Michael, "I told [Stephen] to take
off," to which Michael replied, "I know, I know." This exchange is
probative of Michael's knowledge of Stephen's criminal wrongdoing
and intent to obstruct justice (Michael acknowledged that he was
aware that Stephen had been told to "take off" to avoid capture).
C. Coconspirator Statements
Having disposed of Michael's claims involving the
testimony of his interactions with the Bulger/Flemmi group, we turn
our attention to his final evidentiary challenge, which is premised
on his assertion that the district court erred in admitting all of
the above testimony that describes statements Stephen made to Weeks
and St. Croix because that testimony related inadmissible hearsay.20
Michael claims that, despite the district court's apparent finding
to the contrary, the statements did not satisfy the requirements of
Rule 801(d)(2)(E), which provides that a statement is not hearsay
if it is offered against a party and is "a statement by a
coconspirator of a party during the course and in furtherance of
the conspiracy." As an initial matter, there are only two
statements made by Stephen that would even arguably constitute
20
Michael does not challenge on hearsay grounds the admission
of statements made by anyone other than Stephen. Hearsay is "an
oral or written assertion . . . , other than one made by the
declarant while testifying at the trial . . . , offered in evidence
to prove the truth of the matter asserted." Fed. R. Evid. 801.
"Hearsay evidence ordinarily is inadmissible in criminal trials."
United States v. Piper, 298 F.3d 47, 51 (1st Cir. 2002).
-25-
hearsay but for the application of Rule 801(d)(2)(E): (1) his
statement to Weeks that only he, Weeks, and Bulger knew of the
hide, and (2) his statement to Michael and St. Croix that he killed
Hussey.21
To invoke Rule 801(d)(2)(E), the government "bears the
burden of establishing, by a preponderance of the evidence, that a
conspiracy embracing both the declarant and the defendant existed,
and that the declarant uttered the statement[s] during and in
furtherance of the conspiracy." United States v. Bradshaw, 281
F.3d 278, 283 (1st Cir. 2002) (internal quotation marks omitted).
A defendant who wishes to preserve for appeal a challenge to the
admission of statements under Rule 801(d)(2)(E) must request, at
the close of all the evidence, that the district court make a
determination as to whether the government carried its burden. See
21
St. Croix did not recount hearsay when he testified about the
composition of the Bulger/Flemmi group because he testified from
his own experiences (he did not report oral or written assertions).
In addition, St. Croix did not relate hearsay when he testified
that Stephen told him that if he chose a life of crime, Stephen
"would show [him] how to do things." Stephen's statement was not
admitted to prove the truth of the matter asserted (that Stephen
would or did tutor St. Croix in crime); rather, it was an
instruction admitted to provide background for the development of
St. Croix and Stephen's criminal relationship. See United States
v. Murphy, 193 F.3d 1, 5 (1st Cir. 1999) ("So long as out-of-court
statements are not offered for their truth, they are not hearsay .
. . ."). Similarly, the statements discussing the prison terms of
St. Croix's brother and Stephen are not hearsay because they were
not offered for the truth of the matters asserted (that St. Croix's
brother spent eighteen months in prison and that Stephen would
likely spend the rest of his life in prison) but, instead, for
their effect on St. Croix. See United States v. DeVincent, 632
F.2d 147, 151 (1st Cir. 1980).
-26-
United States v. Ortiz, 966 F.2d 707, 715 (1st Cir. 1992). "[A]
defendant's failure to object to the omission of such an express
trial-end determination bars him from raising the point on appeal
in the absence of plain error." Id. (internal quotation marks
omitted). Because the district court did not make, and Michael did
not ask for, "an express trial-end determination," our review is
for plain error. Id.
We do not think that Michael has demonstrated that the
admission of the challenged statements was error (and, ergo, he has
not shown plain error). The government certainly established that
Michael was involved in a conspiracy with Stephen, Weeks, St.
Croix, and Allen to conceal the illegal activities of the
Bulger/Flemmi group.22 Nevertheless, Michael asserts that the
statements should have been excluded because there was no evidence
22
For example, St. Croix testified that Michael helped St.
Croix and Allen move the group's guns from the hide after learning
that Stephen had requested their removal because he feared that a
search of the hide was imminent. And, after providing that
assistance, Michael professed his ignorance of the hide before a
grand jury investigating the Bulger/Flemmi group. There was also
testimony indicating that Stephen, Weeks, and St. Croix trusted
Michael to remain silent about the group's exploits: Weeks
testified that he openly conducted illegal activities on behalf of
the Bulger/Flemmi group in front of Michael; and Weeks and St.
Croix testified that Michael helped collect illegal debts for
Stephen while Stephen was in prison.
Michael argues that because the district court stated that he
was not involved "in the murders, extortions, and drug dealing
carried out by the Bulger-Flemmi organization," he could not have
been a coconspirator. However, the fact that Michael was not
involved in the organization's "murders, extortions, and drug
dealing" does not mean that he was not a participant in a
conspiracy to conceal its criminal acts.
-27-
that he was a coconspirator "at the time" they were made. But,
whether Michael was a coconspirator at the time the statements were
made is irrelevant--we have held that an individual who joins a
conspiracy "at a later date, . . . effectively adopt[s]
coconspirator declarations previously made." United States v.
Saccoccia, 58 F.3d 754, 778 (1st Cir. 1995).
In addition, Michael claims that the statements were not
made in furtherance of the conspiracy, but that claim also fails.
"[A] coconspirator's statement is considered to be in furtherance
of the conspiracy as long as it tends to promote one or more of the
objects of the conspiracy." United States v. Piper, 298 F.3d 47,
54 (1st Cir. 2002). Stephen's statement to Weeks that Stephen,
Weeks, and Bulger were the only people who knew of the hide
furthered the conspiracy because it informed a coconspirator
(Weeks) of those with knowledge of the hide, which was important to
ensure that the knowledge remained contained. Likewise, Stephen's
statement to Michael and St. Croix (in response to a direct
question from St. Croix) that he killed Hussey furthered the
conspiracy because it fostered a relationship of trust among the
three, and it kept Michael and St. Croix "abreast of current
developments and problems facing the group," United States v.
Jefferson, 215 F.3d 820, 824 (8th Cir. 2000) (internal quotation
marks omitted).
-28-
D. Harmless Error
We conclude our evidentiary discussion by noting that the
one error we have identified, see supra note 12, was harmless and,
as such, does not merit reversal of the jury verdict. It is
settled that "[a] non-constitutional evidentiary error is harmless
(and, therefore, does not require a new trial) so long as it is
highly probable that the error did not influence the verdict."
Piper, 298 F.3d at 56. Here, that standard is met. This is
because the jury was presented with ample direct evidence that
Michael obstructed justice, committed perjury, and possessed guns.
Moreover, the fact that the jury was instructed that it was to
"confine [its] deliberations to the crimes with which Michael [was]
actually charged" and that "[g]uilt can never be established by the
mere fact of association" makes it even more unlikely that the
error affected the verdict.23
III. Michael's Sentencing Challenge
We now focus on Michael's sentencing challenge. Michael
argues that the district court erred in using murder, as opposed to
gun possession, as the most serious offense underlying his
23
Michael asserts that the cumulative effect of the admission
of the challenged statements requires that he receive a new trial.
But, "[b]ecause we have found that none of [Michael's] individual
complaints resulted in substantial prejudice and that most are
completely without merit, we reject the final contention that his
conviction was tainted by cumulative error." United States v.
DeMasi, 40 F.3d 1306, 1322 (1st Cir. 1994).
-29-
obstruction of justice and perjury charges.24 The government
defends the use of murder and, in the alternative, claims that
using the most serious gun possession charge would have yielded the
same sentence. "We review the sentencing court's application of
the guidelines de novo and . . . the factual findings underlying
that application for clear error." United States v. Reyes-
Echevarria, 345 F.3d 1, 6 (1st Cir. 2003).
We find no error in the use of murder as the underlying
offense. When Michael testified before the grand jury about his
knowledge of the Bulger/Flemmi group's reserve arsenal and Hussey's
whereabouts, the grand jury was investigating, and he had reason to
know it was investigating, whether "members and associates of
[that] Group [were involved] in violent racketeering activities,
such as . . . murder." And, Michael was later charged with, and
convicted of, perjury and obstruction of justice in connection with
that investigation. Therefore, the district court was justified in
using murder, and not gun possession, as the underlying offense.25
See U.S. Sentencing Guidelines Manual § 1B1.5, cmt. n.3 (2001)
24
We note that Michael has made no arguments in the district
court or in this court questioning the constitutionality of the
Guidelines or their application to his sentence. Therefore, we
need not consider the effect of United States v. Booker, 543 U.S.
___, 125 S. Ct. 738 (2005), with respect to Michael's sentence.
25
Because we find that the district court did not err in using
murder as the underlying offense, we need not, and do not, address
the government's alternative argument.
-30-
("Where there is more than one [potential underlying] offense, the
most serious such offense . . . is to be used.").
Michael, nevertheless, insists that his sentence should
be vacated because the district court, in determining the
underlying offense, looked to the 1995 indictment, see supra note
3, an indictment in which he was not charged, rather than to the
Weeks indictment. Michael's argument fails because the district
court in fact looked to both indictments. At sentencing, the
government asserted that Michael's "actions clearly were to benefit
the [Bulger/Flemmi group], whether it was as set forth in the
[1995] indictment . . . , or . . . in the [Weeks] indictment."
And, the district court subsequently stated that it was "adopt[ing]
the government's position."26 Moreover, even if the district court
had looked only to the 1995 indictment, Michael's argument would
still fail. The 1995 indictment, like the Weeks indictment,
charged Stephen and other members of the Bulger/Flemmi group with
26
Although the district court later issued a written document
in which it said that, in determining Michael's sentence, it had
adopted the reasoning of the PSR, which mentions only the 1995
indictment, the district court's oral statement at the sentencing
hearing controls. See United States v. Muniz, 49 F.3d 36, 42 n.5
(1st Cir. 1995) (recognizing that "[w]here . . . the district
court's oral expression of its sentencing rationale varies
materially from its subsequent written expression of that
rationale, appellate courts have tended to honor the former at the
expense of the latter"); see also United States v. Melendez-
Santana, 353 F.3d 93, 100 (1st Cir. 2003) ("[W]e conclude that
where the conditions of supervised release announced at the
sentencing hearing conflict in a material way with the conditions
of supervised release in the written sentencing order, the oral
conditions control.").
-31-
engaging in violent racketeering acts, including murder. Because
the litigation involving the crimes charged in the 1995 indictment
was ongoing when Michael testified before the grand jury, reference
to the 1995 indictment would have been appropriate, as Michael's
testimony was relevant to that prosecution. See U.S. Sentencing
Guidelines Manual § 2J1.2(c) (2001) (sentencing court is to apply
the accessory after the fact Guideline "[i]f the offense involved
obstructing the investigation or prosecution of a criminal offense"
(emphasis added)).
Michael also asserts that because he did not know "the
full nature and scope of his brother's criminal activities" or
whether "any of the guns removed from the hid[e] had been used in
a murder or other violent offense," the district court could not
use murder as the underlying offense. However, such knowledge was
not a prerequisite to the use of murder as the relevant offense.
Cf. United States v. McQueen, 86 F.3d 180, 184 (11th Cir. 1996)
("[Defendant's] lack of knowledge of the specific offenses under
investigation is irrelevant."). All that was required was that
Michael endeavored to "obstruct[] the investigation or prosecution
of a [murder],"27 U.S. Sentencing Guidelines Manual § 2J1.2(c)
27
For an individual to qualify for the section 2J1.2(c)
enhancement, it is not necessary that he succeed in obstructing
justice--he may simply endeavor to do so. United States v. Aragon,
983 F.2d 1306, 1315 (4th Cir. 1993) ("[E]ndeavoring to obstruct
justice . . . is to be included within § 2J1.2." (citation
omitted)).
-32-
(2001), and that he committed "perjury . . . in respect to a
[murder],"28 id. at § 2J1.3(c). When Michael told the grand jury
that he did not know Whether Hussey was alive, he knew, or at least
had reason to know, that it was investigating whether she had been
murdered by members of the Bulger/Flemmi group,29 and the trial jury
found that he attempted to impede that investigation. That is
sufficient to justify the use of murder as the underlying offense.
As a final matter, Michael challenges the use of murder
on the ground that there was no evidence connecting the guns from
the hide to any specific murder. But, whether the guns were
connected to a specific murder is irrelevant. Michael had reason
to know that the grand jury was investigating a murder, and the
trial jury found that he sought to hamper that investigation.
Nothing more was required for murder to qualify as the underlying
offense.
Affirmed.
28
"Perjury is in respect to a criminal offense where the
defendant knew or had reason to know, at the time of his perjury,
that his testimony concerned such a criminal offense." United
States v. Leon-Reyes, 177 F.3d 816, 824 (9th Cir. 1999) (internal
quotation marks omitted); see also United States v. Suleiman, 208
F.3d 32, 39 (2d Cir. 2000) ("[A]s long as the witness has been
alerted to the fact that the grand jury is investigating a criminal
offense, false answers to material questions will almost always
merit enhanced punishment.").
29
It was only a few months before that Michael witnessed
Stephen confess to her murder.
-33-