United States Court of Appeals For the First Circuit Nos. 02-2158 Vol. II of II 02-2159 02-2165 02-2166 02-2188

UNITED STATES OF AMERICA,

Appellee,

v.

VINCENT A. CIANCI, JR., FRANK E. CORRENTE, and RICHARD E. AUTIELLO,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, Chief U.S. District Judge]

Before

Howard, Circuit Judge, Campbell and Stahl, Senior Circuit Judges.

John A. MacFadyen for appellant Vincent A. Cianci, Jr. Anthony M. Traini for appellant Frank E. Corrente. Richard C. Bicki with whom Cerilli & Bicki and Edward Gerstein were on brief for appellant Richard E. Autiello. Donald C. Lockhart, Assistant United States Attorney with whom Margaret E. Curran, United States Attorney, Richard W. Rose and Terrence P. Donnelly, Assistant United States Attorneys were on brief, for appellee.

August 10, 2004 III. The Remaining Convictions

A. Federal Bribery Conspiracy (Autiello)

Autiello argues that there was insufficient evidence to

support his conviction for federal bribery conspiracy in connection

with the Maggiacomo Job scheme. Autiello contends that, because

there was no direct evidence about either the identity of his co-

conspirator or the fate of the $5,000 Mary Maggiacomo paid him, the

evidence gave nearly equal circumstantial support to an inference

that he pocketed the money as a payment for his efforts with the

police department (with which he had influence) on behalf of Joseph

Maggiacomo as it did to an inference that he passed the bribe along

to some public official, or at least conspired to do so. See

United States v. Andujar,

(1st Cir. 1995) ("If the

evidence viewed in the light most favorable to the prosecution

gives equal or nearly equal circumstantial support to a theory of

guilty and a theory of innocence of the crime charged, this court

must reverse the conviction.") (citation and internal quotation

marks omitted). The argument is unconvincing.

There was evidence that, during a face-to-face meeting in

which his favorable intercessions were sought, Autiello told Mary

Maggiacomo and her husband that Providence police officer positions

were prized and that Joseph Maggiacomo's chances were not good

because the Maggiacomos were not Providence taxpayers and had not

made any "contributions." In nearly the same breath, Autiello told

-50- them that, if they wanted Joseph to be accepted into the police

academy, they would have to come up with $5,000 in cash. The

juxtaposition of these two comments, combined with the evidence

that Autiello himself held no authority to make police academy

admission decisions, permitted a reasonable inference that the

$5,000 was to be a political "contribution" that would serve as

Joseph's ticket of admission when passed along to someone with

authority over academy admission decisions.

B. Hobbs Act Attempted Extortion and Extortion Conspiracy (Corrente)

Corrente makes three arguments in favor of reversing or

vacating his convictions for Hobbs Act attempted extortion and

Hobbs Act extortion conspiracy in connection with the Freitas Lease

and Freitas Invoices schemes: (1) there was insufficient evidence

that these schemes had the constitutionally required impact on

interstate commerce; (2) there was insufficient evidence that he

affirmatively acted in such a way as to be fairly accused of having

attempted or conspired to engage in extortion; and (3) the district

court's jury instructions erroneously described what was required

to establish an attempt or conspiracy to engage in extortion.

There is some question whether each of these arguments was made

below as to each of the three convictions, but we bypass issues of

forfeiture because none of the arguments is persuasive on its

merits.

-51- Corrente's first argument is largely based on an

assertion that his convictions are unconstitutional because his

offense conduct had to, but did not, have more than a de minimis

effect on interstate commerce in order to jibe with the Supreme

Court's decisions in United States v. Lopez,

(1995),

and United States v. Morrison,

(2000). After briefs

were filed in this case, another panel of the court rejected this

argument, United States v. Capozzi,

(1st Cir.

2003), so we must reject it too, see, e.g., United States v. Downs-

Moses,

(1st Cir. 2003).

Corrente alternatively argues that no reasonable factfinder

could have found that his offense conduct had such a de minimis

effect. He is wrong.

With respect to Corrente's attempted extortion in

connection with the Freitas Lease scheme, the jury could have found

that, but for Freitas' agreement to pay Corrente for favorable

intervention on his behalf with the school department, there was a

realistic probability that the City contractor (an entity engaged

in interstate commerce and whose lease agreement would be a

transaction affecting interstate commerce12) would have leased space

in Cranston, Rhode Island. This evidence alone satisfies

12 The contractor, the Marriott Corporation, supplied lunches and custodial services to all Providence schools. There was evidence that the company was incorporated in New York and had offices in Washington, D.C., and Newark, Delaware.

-52- constitutional concerns, even if the space for which Corrente

advocated actually proved to be a better fit for the contractor.

See Capozzi,

(extortionate conduct need only create

a realistic probability of an effect on interstate commerce)

(citations omitted);

(conviction for attempted extortion

requires only a showing that the identified effect would have

occurred had the defendant succeeded in the extortion); United

States v. Tormos-Vega,

(1st Cir. 1992)

(extortionate conduct meets constitutional requirements even where

it "has a beneficial effect on interstate commerce") (citation and

internal quotation marks omitted);

(where the victim's

acquiescence in an extortion results in a transaction with effects

on interstate commerce, constitutional concerns are satisfied).

With respect to the Freitas Invoices scheme, the jury

could have found that a city contractor that was indisputably

engaged in interstate commerce was deprived of $1,100 in order to

facilitate payments to which it was entitled. This was enough.

See Capozzi,

("One common method for the government

to establish the required 'de minimis effect' on interstate

commerce is to show that the defendant's activity "minimally

depletes the assets of an entity doing business in interstate

commerce.") (quoting United States v. Nguyen,

(1st

Cir. 2001)).

-53- Corrente's other two arguments are very difficult to

follow. In the main, they appear to be interrelated attacks on the

correctness of Evans v. United States,

(1992). Evans

interpreted the provision of the Hobbs Act under which Corrente was

convicted -- one which prohibits extortion by means of "the

obtaining of property from another, with his consent, . . . [2]

under color of official right,"

(b)(2) -- not to

require that the government prove that the defendant initiated the

extortionate transaction or otherwise induced the payments.

Rather, "the Government need only show that a public official has

obtained a payment to which he was not entitled, knowing that the

payment was made in return for official acts."

.

Corrente appears to believe that the Evans Court erred in

concluding that the defendant need not induce the payment or

otherwise initiate the event. See Corrente Br. at 49. To the

extent that he is so arguing, Corrente acknowledges that we are

powerless to grant him relief and that he must go to the Supreme

Court.

There are hints of other arguments in Corrente's brief,

but none is sufficiently developed to warrant consideration on the

merits. See United States v. Zannino,

(1st Cir.

1990). In any event, our review of the record convinces us that

there is no basis for reversing or vacating Corrente's attempted

extortion and extortion conspiracy convictions.

-54- Any sufficiency challenge is doomed because there was

sufficient evidence to support the convictions even under the more

demanding interpretation of the Hobbs Act for which Corrente

advocates. With respect to the Freitas Lease scheme, the jury

could have found that Corrente "induced" payments from Freitas

when, at one point prior to receiving any money related to this

scheme, he suggested to Freitas that City Hall could either hurt or

help his chances of securing the lease (depending, presumably, on

whether Freitas anted up). With respect to the Freitas Invoices

scheme, the jury could have found that Pannone, Corrente's co-

conspirator, induced payments on Corrente's behalf by encouraging

Freitas to "throw something" at Corrente – i.e., to "pay to get

paid."

So too with the jury instructions. As clarified in a

supplemental charge just prior to the return of the verdicts, the

instructions on the attempted extortion and extortion conspiracy

charges were, if anything, overly generous to Corrente. And

because the evidence was sufficient to support the convictions even

under the arguably too lenient instructions, any error was

harmless. See Fed. R. Crim. P. 52(a); United States v. Royal,

(1st Cir. 1996).

IV. Admission of the Pannone Tapes

Defendants contend that the district court violated

various Rules of Evidence and their confrontation and due process

-55- rights in admitting into evidence certain tape-recorded

conversations among Freitas (who was acting as a government agent),

Pannone, the Chairman of the Board of Tax Assessment Review and an

alleged co-conspirator, and various other individuals, some

identified and others not. They also argue that the court erred in

precluding them from interposing objections to the admission of

these tape recordings for their failure to abide by a procedural

order requiring that Rule 403 and 404(b) objections be identified

with specificity in advance of trial.

A. Petrozziello determination

Defendants argue that the district court erred when it

concluded that Pannone's statements fell outside of the hearsay

rule under Fed. R. Evid. 801(d)(2)(E).13 We review this

determination for clear error. United States v. Geronimo,

(1st Cir. 2003); Marino, 277 F.3d at 25. In determining

whether the Government has met Rule 801(d)(2)(E) prerequisites, the

district court must determine that it is "more likely than not that

the declarant and the defendant were members of a conspiracy when

the hearsay statement was made, and that the statement was in

furtherance of the conspiracy." United States v. Petrozziello, 548

13 “A statement is not hearsay if . . . [t]he statement is offered against the party[-opponent] and is . . . a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2)(E).

-56- F.2d 20, 23 (1st Cir. 1977). We refer to this determination as a

“Petrozziello ruling.” Geronimo,

.

Defendants contend that there was "scanty" evidence of a

conspiracy among defendants and Pannone. They argue that Pannone's

taped statements were unreliable and there was insufficient

extrinsic evidence of the conspiracies because some of the

conversations on the tape were "rambling and unfocused" and not all

of the defendants were ultimately convicted as part of the three

racketeering acts--the Ronci Estate, Freitas Lease, and Freitas

Invoices schemes--of which Pannone had first-hand knowledge.

We disagree. As we have detailed supra, the government

presented sufficient evidence of a RICO conspiracy--conspiracy,

enterprise, and pattern of racketeering activity–-to satisfy the

evidentiary standard set forth in Petrozziello. In particular, on

tape, Corrente intimated to Freitas with respect to the Freitas

Lease scheme, "Don't get involved with Joe unless something

happens." Corrente also admits on tape to receiving cash from

Pannone in connection with the Pay-to-Get-Paid scheme. Pannone

chaired the Board of Tax Assessment Review, a municipal office

which we have already detailed to be crucial to the conspiracy.

Both Freitas and Ead testified at trial to Pannone’s involvement in

the Ronci Estate, Freitas Lease, and Pay-to-Get Paid schemes. With

regard to the Ronci Estate scheme, the evidence showed a sub-

conspiracy among Cianci, Corrente, and Pannone to extort money from

-57- the Ronci estate in exchange for a reduction of back taxes owed to

the City and the assessment of property owned by the estate. At

the times the taped statements were made, the evidence also shows

a conspiracy between at least Corrente and Pannone to extort money

from Tony Freitas and JKL Engineering in exchange for assistance in

leasing property owned by Freitas to the City or to the Marriott

Corporation. Third, the evidence was sufficient to establish a

conspiracy between at least Corrente and Pannone to extort money

from Freitas and JKL in exchange for facilitating payments due from

the City to JKL.

Pannone’s taped statements were not made “after the

fact,” but were uttered as part of and in furtherance of the

conspiracy. In these statements, Pannone described the roles that

he, Cianci, Corrente, and Ead played in the conspiracy and in

particular, what he and Freitas should do to carry out the Freitas

Lease and Pay-to-Get-Paid schemes. Such statements are well within

the core of Rule 801(d)(2)(E). See United States v. Martinez-

Medina,

, 117 (1st Cir.), cert. denied,

(2002); United States v. Eke,

(1st Cir. 1997). The

district court did not commit clear error in admitting the Pannone

tapes and we decline to reverse defendants’ convictions on

Petrozziello grounds.

B. Confrontation Clause and Due Process claims

-58- Defendants contend that Pannone’s taped statements are

inherently unreliable and hence should not have been admitted in

evidence. As a constitutional matter, they claim that the

statements’ unreliability implicates Sixth Amendment witness

confrontation concerns. This Court reviews Confrontation Clause

challenges de novo. United States v. Ventura-Melendez,

(1st Cir. 2001). The Confrontation Clause does not require "a

showing of unavailability as a condition to admission of the out-

of-court statements of a nontestifying co-conspirator, when those

statements otherwise satisfy the requirements of Federal Rule of

Evidence 801(d)(2)(E)." United States v. Inadi,

(1986). It also "does not require a court to embark on an

independent inquiry into the reliability of statements that satisfy

the requirements of Rule 801(d)(2)(E)." Bourjaily v. United

States,

(1987).

Defendants argue that notwithstanding Inadi and

Bourjaily, Pannone's statements should not have been admitted

because he was unavailable and unreliable. They assert that the

present case is anomalous and that "corruption stings" such as this

one should not fall within Inadi and Bourjaily. We find no case

law excepting the case from the Inadi and Bourjaily rules.

Defendants further suggest that Pannone was outside of his "natural

habitat" because Freitas was eliciting incriminating statements

from him as part of his cooperation with the FBI. Pannone,

-59- however, was unaware that he was being stung. We see no reason how

his behavior would have been different had Freitas been making the

same conversation without the FBI’s direction.

To further address defendants’ contention that Pannone’s

statements are inherently unreliable, we agree with the district

court that Pannone “did have or was in a position to have firsthand

knowledge of some of the things that he testified about.” He was

an insider to the conspiracy. Again, he was directly involved and

even played a supervisory role in the Ronci Estate, Freitas Lease,

and Freitas Invoices schemes. Trial testimony by Ead, Rocha,

Freitas, and others corroborated Pannone’s taped statements setting

out how Corrente was often the middleman in the racket, that Cianci

used Corrente as a buffer, and that money given to Corrente found

its way into the campaign and eventually benefitted Cianci or the

administration in some way. Taped conversations between Freitas

and Corrente confirmed the same.

The government questions Cianci and Corrente's motive for

failing to call Pannone as a witness for cross-examination as Fed.

R. Evid. 806 permits. Cianci and Corrente repeatedly contend that

Pannone was unavailable to them because he would assert his Fifth

Amendment rights against self-incrimination if called to testify.

They claim that Pannone’s behavior was "orchestrated" by the

Government in their plea arrangements with him.

-60- This alleged "attempt to thwart cross-examination" forms

the basis of defendants’ Fifth Amendment due process claim. The

procedural travel of the case, however, reveals little to support

this accusation. The indictment in this case originally named

Pannone as a defendant on Counts 1, 2, 8, 9, 16-19, and 21-24. On

February 14, 2002, he signed a plea agreement in which he agreed to

plead guilty to Counts 1, 2, 8, 16, 19, and 22. The government

agreed to dismiss the remaining counts at sentencing. Hence,

dismissal of the remaining charges against Pannone was contingent

upon sentencing.

On April 16, 2002, during a hearing to resolve

defendants’ motion to exclude the Pannone tapes, Corrente

complained that Pannone’s plea agreement had “left open” the

remaining counts, suggesting that Pannone’s fear of the

government’s handling of the remaining counts would cause him to

assert his Fifth Amendment rights if he were called by the defense

to testify. The court, though ultimately rejecting defendants’

legal arguments, assured them that it would try to accelerate

Pannone’s sentencing, which at that time had been scheduled for

July.

Thereafter, the district court moved up Pannone’s

sentencing in order to accommodate defendants in this case.

Pannone was sentenced on May 24, 2002, while the government was

still presenting its case-in-chief and almost two weeks before the

-61- defense presented their own case. Immediately after sentencing,

the government moved to dismiss the remaining counts against

Pannone; the court granted the motion. During a bench conference

four days after Pannone’s sentencing, Corrente’s counsel briefly

remarked that he had been informed by Pannone’s counsel that

Pannone would persist in his Fifth Amendment claim “because of a

variety of reasons which I won’t go into right now.” Nothing more

was made of these “reasons.”

After this point, defendants did not attempt to call

Pannone as a witness. We find no evidence that Pannone would have

invoked his Fifth Amendment right against self-incrimination if

called to testify, and whether the court would have permitted him

to do so. There simply is no evidence of an "orchestration" by the

government to keep Pannone away from defendants. Thus, there were

no constitutional infringements here.14

C. Rules 403 and 404(b)

Finally, with respect to the Pannone tapes, defendants

argue that the district court erred by failing to consider their

objections to admission of the tapes under Fed. R. Evid. 40315 and

14 To the extent that defendants’ due process claim incorporates their argument that Pannone’s statements are unreliable, our affirmance of the district court’s Petrozziello ruling sufficiently responds to that claim. 15 “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless

-62- 404(b).16 They claim that they made timely objections pre-trial.

They further recount that the court decided not to address the

objections prior to trial, but then mistakenly at trial ruled that

defendants waived their right to object to admission of the tapes.

We first recount the procedural history giving rise to

this issue. On April 24, 2001, the government provided defendants

with copies of the two hundred tapes relating to their

investigation of defendants, along with an index showing the dates

of the recordings and the conversation participants. Three days

later, the court issued an Arraignment and Pre-trial Discovery

Order, whereby the government was ordered to provide the defendants

with transcripts of the tapes. The court also ordered that all

pre-trial motions be filed by December 31, 2001.

The government eliminated all but twenty-two tapes as

possible trial exhibits. By October 31, 2001 –- two months before

the deadline for pre-trial motions and six months before the

presentation of cumulative evidence.” Fed. R. Evid. 403. 16 “Other Crimes, Wrongs, or Acts–Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.” Fed. R. Evid. 404(b).

-63- commencement of trial –- the government had provided transcripts of

these twenty-two tapes to defendants.

On March 28, 2002, the district court issued a Pre-trial

Scheduling Order, which read:

On or before April 12, 2002, counsel for any party disputing the audibility of admissibility of any such recording or the accuracy of any such transcript of any such transcript shall file an objection identifying the recording to which objection is being made. Memoranda in support of objections to the accuracy or completeness of transcripts shall be accompanied by copies of the transcripts objected to on which proposed deletions and corrections are noted. In offering recorded conversations, counsel shall make every effort to edit out footage that contains no audible discussion or contains irrelevant material so that the jury will not be required to listen for protracted periods of time to portions of recordings that provide little or no assistance in determining the pertinent facts. In order to achieve that objective, counsel shall meet and confer, in advance, in an effort to resolve any disputes with respect to editing.

. . . Failure to comply with the provisions of this paragraph may be considered as a waiver, by the proponent, of the right to offer the recorded conversation(s) at issue; or, alternatively, as a waiver of the right to object to omission of the recorded conversation(s) and/or dispute the accuracy or completeness of the transcript, as the case may be.

On April 8, 2002, defendants filed a motion objecting to

the admission of the Pannone tapes. They based their motion

primarily on Petrozziello and constitutional grounds, and mentioned

Rules 403 and 404 in a general observation that “any given

-64- statement may also be inadmissible” under those rules. They did

not identify which statements were inadmissible, but instead

suggested that the court itself should “go through” the tapes

“line-by-line, making individual assessments as to each declarative

statement.” Defendants stated that they would provide the court

with a schedule identifying offending statements and detailing the

bases for their exclusion. They never provided this schedule.

At the April 16 hearing on the motion, defendants again

focused on Petrozziello and the constitutional theories.

Corrente’s counsel acknowledged that the government had edited the

tapes to deal with Rule 403 concerns. Nothing more was said with

regard to either 403 or 404. The court denied the motion to

suppress the Pannone statements and refused to undertake the line-

by-line analysis, explaining that it “would take easily, . . .

weeks . . . and it would delay the trial by that period of time.”

The court expressed its plan to “minimize the risk of a mistrial in

the event that statements are presented that later are found not

satisfy the requirements” by requiring the government to present

“additional evidence above and beyond the statements themselves to

support a finding that they qualify as admissible co-conspirator

statements.”

On April 24, the second day of trial, the government in-

chambers mentioned that defendants had failed to propose cuts to

the Pannone tapes. In response to Corrente’s counsel’s suggestion

-65- that the defense would later in the trial move to excise other

taped statements pursuant to Rules 403 and 404, the court stated

that such motions “should have been done long ago.”

Throughout trial, the court repeated that proposals for

cuts to the tapes had been due by April 12, 2002, pursuant to its

Pre-trial Scheduling Order. Upon challenges at trial by defendants

to the admissibility of individual tapes, the court stated that

they could not make these objections because they had failed to

tender such an objection pre-trial.

Defendants argue that they complied with the pre-trial

scheduling order because they timely filed "an objection

identifying the recording to which objection is being made" as

required by the Pre-trial Scheduling Order. However, they fail to

mention that the order also mandates that "[m]emoranda in support

of objections . . . shall be accompanied by copies of the

transcripts objected to on which proposed deletions and corrections

are noted." Defendants failed to provide the district court with

these specific objections. The supplemental schedule promised by

defendants never materialized; the schedule, moreover, was not an

“extra” offer, but explicitly required by the order as part of any

objection to the tapes. The district court declined to perform a

line-by-line assessment of the transcripts because it had

specifically provided in the order that the parties do it. After

repeated general objections non-compliant with the procedural

-66- order, the court decided that the defendants waived their right to

object pursuant to the order. It did not abuse its discretion in

refusing to entertain piecemeal objections to evidence in the

Pannone tapes.

Regardless, admission of the taped statements--which

defendants still have failed to itemize--did not prejudice

defendants. As we have explained supra, the government has

produced sufficient evidence of the tapes’ reliability and

probative value. Moreover, the court followed through on its

assurance that it would “minimize the risk” of improper admission

by requiring the government to produce evidence corroborative of

statements made in the tapes.

We stress that the court wisely recognized that stop-and-

go evidentiary evaluations of these tapes during trial would unduly

delay the case and perhaps even cause the very prejudice and

confusion that defendants contemplated in their general objection.

Accordingly, the court fashioned a system well before trial through

which it expected both parties to whittle down the tapes to their

relevant portions. See United States v. Nelson-Rodriguez,

(1st Cir. 2003) (“The trial court has wide discretion in

determining admissibility under Rule 403 since the trial judge ‘is

more directly familiar than a court of appeals with the need for

the evidence and its likely effect.”) (citations omitted). An

important part of this system was for defendants to produce

-67- transcripts of the tapes denoting which portions they wished to

redact out of Rule 403, Rule 404, constitutional, or Petrozziello

concerns. Even in their appeal, defendants persist in the

ambiguity of their objection to the tapes. Other circuits have not

tolerated this type of objection. See, e.g., United States v.

Holland,

(9th Cir. 1989) (where some parts

of audiotape were admissible but “much of the tape was irrelevant,”

the defendant’s “blanket objection to the admission of the tape

does not preserve an objection to failure to redact the tape”). We

find no abuse in the district court’s exercise of its broad

discretion over Rule 403 and 404 considerations.

V. Cianci’s Taped Statement

A. Hearsay

In 1995, a government agent posing as an air conditioning

businessman taped his conversation with Cianci when he requested a

city contract. Cianci assured the agent that he would refer him to

Alan Sepe, who Cianci believed knew more about air conditioning

matters than he did. Cianci then told the agent, "[Sepe] is honest

as the day is long. He deals in governments and ____. No one will

ask you for a thing. If anybody does, you pick up the phone and

call me. I'll cut his ____ off and have him arrested, okay?" The

agent had said or done nothing to prompt discussion of corruption.

Then, Cianci, in introducing the agent to an unidentified man,

remarked, "He's probably an FBI agent."

-68- The district court refused to admit this tape on

relevancy grounds, holding that the conversation in it “does not

relate to any predicate act or to any specific matter with respect

to which the Government has presented any evidence.” In response

to Cianci’s argument that the statements were admissible under the

“state of mind” exception to the hearsay rule, see Fed. R. Evid.

803(3), the court concluded, “This statement or the import of the

statement is to show what Mr. Cianci did or didn’t do on other

occasions with respect to unrelated matters, so therefore it does

not fall under the exception to the hearsay rule created by Rule

803(3) for state of mind existing at the time of the event in

question.” Cianci argues that the district court's refusal to

admit this taped statement in evidence was an abuse of discretion

and violated his right to due process. Colasanto v. Life Ins. Co.

of North America,

(1st Cir. 1996).

The district court deemed Cianci’s taped statement

irrelevant because it did "not relate to any predicate act or to

any specific matter with respect to which the Government has

presented any evidence." Cianci argues that the court failed to

recognize the statement’s relevance to the RICO charges in general.

He asserts that the statement tends to make the existence of the

enterprise less likely than without the statement, Fed. R. Evid.

401, and that the court “conflat[ed] the provisions of Rule 803(3)

. . . with the relevancy requirements of Rule 401.”

-69- Cianci recapitulates that if the statement in the tape is

hearsay, it falls within the state of mind exception to the hearsay

rule. Fed. R. Evid. 803(3). “To be admissible under this

exception, a declaration, among other things, must 'mirror a state

of mind, which, in light of all the circumstances, including

proximity in time, is reasonably likely to have been the same

condition existing at the material time.’” Colasanto,

(quoting 2 John W. Strong, McCormick on Evidence § 274 (4th ed.

1992)). Cianci contends that the statement evinces a

contemporaneous intent not to endorse bribery in his

administration, rather than a statement denying past instances of

corrupt acts. In addition to adopting the district court’s

conclusion that the statement evinced a “state of mind” as to

events or behavior on other occasions, the government argues that

Cianci's statements were self-serving, and hence outside the ambit

of Rule 803(3), because he knew that he was talking to a federal

agent.

As an initial matter, the taped statement is hearsay.

Cianci offered it to prove the truth of the assertion that Cianci

did not tolerate corruption. Another thing is certain: the

statement was not admissible in order to show what Cianci might

have done or not done on other occasions not proximate to the time

the statement was uttered. The only purpose for which the

statement could have been admitted would have been to establish

-70- Cianci's state of mind at the time the statement was made. Because

"disputes over whether particular statements come within the state-

of-mind exception are fact-sensitive, the trial court is in the

best position to resolve them." Colasanto,

. That

the statement was made at one point during the time of charged

conspiracy cannot be sufficient to mandate its admission,

especially where the latter part of the statement--“He's probably

an FBI agent"--places doubt on what Cianci claims is the probative

value and relevance of the statement as a whole. Whether Cianci’s

statement is “forward-looking” or refers to past acts and events is

unclear from the statement itself. Ths issue is further

complicated by the fact that Cianci’s mention of pay-offs was

“gratuitous” and not provoked by anything the agent said or did.

Hence, it was within the district court’s discretion to conclude

that the statement, at least in part, applied to past acts of the

Cianci administration and were to a large extent “self-serving”

attempts to cover tracks already made. Such observations are

well-established grounds for non-admission. See, e.g., United

States v. Bishop,

(5th Cir. 2001), cert. denied,

(2002); United States v. Miller,

, 1265-

66 (9th Cir. 1989); United States v. Jackson,

, 1313-

15 (7th Cir. 1986). Thus, as the district court determined that

Cianci sought to admit the statement "to show that he did not and

does not take bribes or engage in corrupt activity," we are loath

-71- to disturb the court’s exercise of discretion to deny admission of

the statement.

B. Due Process claim

Cianci claims that by denying admission of his taped

statement, the district court violated his Fifth Amendment due

process right to “a meaningful opportunity to present a complete

defense.” Crane v. Kentucky,

(1986). We review

this claim for plain error because it was not raised at trial.

Under plain error review, the defendant must show (1) that an error

occurred (2) which was "obvious" in the sense that governing law

was clearly settled to the contrary, (3) affected the defendant's

substantial rights, and (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings. United

States v. Gomez,

(1st Cir. 2001).

Application of evidentiary rules "do not abridge an

accused's right to present a defense so long as they are not

'arbitrary' or 'disproportionate to the purposes they are designed

to serve.' . . . [W]e have found the exclusion of evidence to be

unconstitutionally arbitrary or disproportionate only where it has

infringed upon a weighty interest of the accused." United States

v. Scheffer,

(1998) (citing Rock v. Arkansas,

(1987)). We have described the Supreme Court's rule as

overturning convictions only in "egregious cases." Fortini v.

Murphy,

(1st Cir. 2001). Cianci outlines his

-72- "weighty interest" as his effort to disprove the government's

theory of criminal intent. Even if we were to give some

exculpatory value to the statement, given the amount of evidence of

Cianci’s criminal knowledge and intent presented at trial, its

absence from the evidence does not rise to an “egregious” violation

of Cianci’s interest in defeating this part of the government’s

case. Arguably, the statement itself indicates that Cianci knew he

was talking to an FBI agent. Regardless, the court acted well

within its discretion in determining that Cianci’s taped statement

did not pass muster under Rule 401 and that its value, if any, fell

outside of Rule 803(3)’s exception to the hearsay rule.

Accordingly, we conclude that the court’s refusal to admit his

taped statement did not constitute error, let alone plain error,

and thus, Cianci’s due process claim fails.

VI. Conclusion

Accordingly, defendants’ convictions are affirmed.

VII. Sentencing and Forfeiture Appeals

In light of the Supreme Court’s recent decision in

Blakely v. Washington,

(June 24, 2004), we do not

decide the sentencing appeals raised by all defendants as well as

challenges by defendants and the government to the district court’s

forfeiture order. By separate order, we have requested additional

briefing and oral argument on these issues.

Separate opinion, concurring in part and dissenting in part, follows.

-73- HOWARD, Circuit Judge, concurring in part and dissenting

in part. The majority has skillfully analyzed a number of very

difficult issues, and I concur in parts II and III of its opinion,

which affirm Corrente's and Autiello's non-RICO-related

convictions. As to the RICO-related convictions, I am not

persuaded that the majority correctly disregards the jury's

interrogatory answers in conducting its sufficiency review, see

ante part I-E, or that it has convincingly fended off defendants'

argument that a municipal entity, which is incapable of being found

to have acted with an unlawful purpose, cannot coherently be

regarded as a member of an associated-in-fact RICO enterprise that

is defined by the shared unlawful purposes of its associates, see

ante part I-B. But even if I assume that the jury's interrogatory

answers are irrelevant and that municipal entities can be named as

associates of the type of RICO enterprise that was alleged in this

case, I still must dissent from the majority's conclusion that

there is sufficient record evidence to sustain defendants' RICO-

related convictions. In my view, the RICO-related judgments

(including the forfeiture judgment) should be reversed and this

matter should be remanded for resentencing.

The majority has done an excellent job of summarizing the

relevant legal principles, the nature of the associated-in-fact

RICO enterprise alleged in this case, and the pattern of

racketeering activity underlying the RICO and RICO conspiracy

-74- allegations. See ante at 4-10 & 11-13. I adopt this discussion by

reference and turn to the particulars of the argument I find

persuasive.

Defendants contest their RICO-related convictions, in

part, on the ground that the evidence introduced at trial in

support of the nine alleged schemes was inadequate to establish

that the schemes were conducted through the amalgam of persons and

entities alleged in the indictment to have constituted the RICO

enterprise. Defendants premise this argument on an underlying

assertion that there was no proof to ground an inference of a

shared purpose among defendants and all of the municipal entities

named as associates of the enterprise -- a required finding (at

least usually, see ante at 13) if an unlawful criminal association

is to be regarded as a RICO enterprise. Defendants say that their

position is bolstered by two “findings” made by the district court

and not contradicted by the government (or at least not clearly

so): (1) "there is no evidence that the [City] departments and/or

agencies, themselves, shared [the enterprise's] purposes," United

States v. Cianci,

(D. R.I. 2002), and (2)

"none of [defendants'] acts . . . resulted in any significant

disruption of a Governmental function." Thus, the argument goes,

even if we were to assess the adequacy of the evidence supporting

the RICO convictions by looking at the whole record and construing

it in favor of the government (despite the nine judgments of

-75- acquittal entered by the district court and the special

interrogatory answers collectively indicating that much of the

government's RICO case was not "proven"), we would find only a few,

relatively inconsequential interactions between the defendants and

these municipal entities during the nearly eight years the

enterprise was alleged to have existed.

The government's response tracks the grounds on which the

district court rejected the defendants' motions for judgments of

acquittal: (1) we should follow the Ninth Circuit and hold that

"RICO does not require intentional or 'purposeful' behavior by

corporations charged as members of an association-in-fact," United

States v. Feldman,

(9th Cir. 1988); and (2) the

jury's enterprise finding was sufficiently supported by evidence

that Cianci and Corrente (Autiello, who was not a municipal

employee, is not mentioned) "using the Office of the Mayor and the

Office of Director of Administration as base camps, . . .

controlled" the municipal entities named as enterprise associates.

The government's first suggestion, that we reject defendants'

argument on the basis of the Feldman principle, faces

insurmountable obstacles. This court has identified the "common

purpose" requirement discussed in United States v. Turkette,

(1981), as one of the principal tools a factfinder

should use to distinguish a RICO enterprise from an ad hoc criminal

confederation. See ante at 13; see also Ryan v. Clemente, 901 F.2d

-76- 177, 180 (1st Cir. 1990) (emphasizing that the common purpose

requirement is necessary to "limit the potentially boundless scope

of the word 'enterprise'" and thereby "distinguish culpable, from

non-culpable, associations").17 Indeed, we have applied the

requirement (albeit without acknowledging Feldman) in a case

involving an unlawful purpose RICO association-in-fact involving

corporate legal entities. See United States v. London,

(1st Cir. 1995). Moreover, and decisively, the

district court instructed the jury without objection from

the government: "[I]t is not necessary in proving the existence of

an enterprise to show that each member of the enterprise

participated in or even knew of all of its activities, but it is

necessary to show that all members of the alleged enterprise shared

a common purpose." The government has not attempted to reconcile

Feldman with Turkette, Ryan, London, or our other cases applying

Turkette. See ante at 13. Thus, as the majority concedes, we

cannot disregard the common-purpose instruction in analyzing

defendants' sufficiency challenges. See ante at 18-19 (citing

United States v. Zanghi,

(1st Cir. 1999)). The

17 Ryan, which was authored by then-Judge Breyer, involved a civil RICO claim, but precedent generated in civil RICO cases applies to criminal RICO cases. See United States v. Shifman,

, 35 n.1 (1st Cir. 1997).

-77- question whether Feldman correctly states the law must be left to

another day.18

This leaves the government's undeveloped assertion -- an

assertion that the majority finds convincing -- that the jury's

enterprise finding is sustainable because there was evidence that

Cianci and Corrente exercised "control" over the municipal entities

named as members of the enterprise. Because the common-purpose

instruction binds for purposes of our analysis, I shall assume that

the government intends by this assertion to argue that such

"control" is sufficient to impute to the entities the unlawful

purposes of those alleged to control them -- i.e., Cianci and

Corrente. Compare London,

(involving closely

held corporations operated by the defendant and alleged to be

members of his unlawful associated-in-fact RICO enterprise); United

States v. Masters,

(7th Cir. 1991)

(involving a law firm and two police departments associated in fact

with those who controlled or manipulated them). I also shall

assume that it would be fair to sustain the defendants' convictions

on evidence of such control, notwithstanding the absence of jury

instructions explaining that a municipal entity's "purposes" may be

18 Even under the Feldman approach, the court still would face the question whether entities not controlled by those accused of operating the alleged association-in-fact enterprise are properly considered part of such an enterprise. For the reasons that follow, I do not think that they are. Thus, my conclusion that the Feldman rule does not apply under the facts of this case is not outcome determinative.

-78- so ascertained. Even so, I do not see how the convictions can

stand.

In my view, there is no proof that Cianci and Corrente so

controlled the activities of all the municipal entities alleged to

be associates of the charged enterprise that the two’s shared

criminal purposes are reasonably imputed to each such entity.

There is no evidence that, for example, Cianci and Corrente

themselves could provide those willing to pay bribes with jobs in

City departments over which they lacked hiring authority; or that

they could contractually bind City departments under separate

leadership; or that they could sell City property; or that they

could grant or deny construction variances. Nor did the government

show that the persons, committees, and boards within the municipal

departments, offices, and agencies whose assistance the schemes

required abdicated their decision-making responsibilities to Cianci

or Corrente.19 In short, neither Cianci nor Corrente was shown to

have so dominated the affairs of the departments, offices, and

agencies claimed to be associated with the unlawful purpose

enterprise that each of these municipal entities might fairly be

found to have been an alter ego of Cianci or Corrente with respect

19 This statement is subject to the following two qualifications. First, the jury could have found that Corrente himself had the ability to dictate which towers were placed on the police department's tow list. Second, the jury could have found that the Board of Tax Assessment Review was effectively controlled by Cianci and Corrente through the corrupt machinations of RICO co- conspirators Joseph Pannone (BTAR's Chairman) and David Ead (BTAR's Vice-Chairman).

-79- to the transactions in question.20 Rather, the evidence showed only

that Cianci and Corrente periodically used the power inherent in

20 By this statement, I do not mean to imply that those municipal actors to whom Cianci and Corrente directed their successful requests and demands (compare infra note 5) always acted within standard operating procedures or even lawfully. To the contrary, as the majority explains it:

[T]he evidence depicted a behavioral spectrum ranging from innocent cooperation to willful complicity in unlawful conduct. For example, with respect to the Freitas Invoices scheme, the evidence was merely that an employee within the City's Finance Department (Lorraine Lisi), acting at Corrente's request, paid valid invoices more promptly than usual. Similarly, with respect to the Ise Job scheme, the evidence was merely that the Deputy Director of the Department of Planning and Development (Thomas Deller) created a temporary position for Ise within the department at Cianci's request. At the more culpable end of the spectrum, however, there was evidence that, in connection with the Jere Lease scheme, the head of the Department of Public Property (Alan Sepe) and the Director of Business Relations for the School Department (Mark Dunham) were influenced by Corrente to tailor the specifications in a School Department lease bid to fit the dimensions of Jere Realty's building, and then to support the Jere Realty lease before the Board of Contract and Supply (which was the entity formally empowered to accept or reject bids of City contracts). Similarly, in connection with the Freitas Lease scheme, there was evidence that Corrente again contacted Dunham prior to finalization of the lease and influenced him to drop consideration of an alternative lease.

Ante at 20 n.3. But importantly, even in connection with these latter two schemes, Sepe and Dunham were not shown to have known of and willingly joined the alleged RICO enterprise conspiracy. Nor was there a basis for finding that a majority of the Board of Contract and Supply, the entity which ultimately voted to accept the Jere Realty lease, did so for purposes of furthering the alleged RICO enterprise conspiracy, or even with knowledge that it was ratifying a contract that had been formed in disregard of standard operating procedures.

-80- their positions to influence (or attempt to influence)21 the

decisions of other municipal actors -- actors who, with the

exceptions noted in the preceding footnote, were not shown to be

privy to, let alone supportive of, the alleged enterprise's

purposes.

The question arises why this evidence of influence is not

sufficient to make the persons and entities influenced part of the

alleged enterprise. The answer, I believe, lies in the fact that

we are here deciding what is required for membership in an

associated-in-fact RICO enterprise defined only by the common

21 The majority acknowledges that Cianci and Corrente "did not always get their way . . . ." Ante at 24. As the majority notes, there was uncontradicted evidence that, in connection with the Freitas Lots scheme, Cianci was displeased that elements within the Providence Redevelopment Agency, the entity empowered to sell the lots, did not sufficiently accede to his wishes. See id. n.7. There also was uncontradicted evidence that, in connection with the University Club scheme, Cianci was angered when members of the Providence Building Board of Review ignored his wishes and granted the club some of the variances that it sought. See id. Finally, there was uncontradicted evidence that, in connection with the Maggiacomo Job scheme, the Chief of Police declined to admit Maggiacomo to the police academy because he had a criminal history and had been untruthful during a screening interview. See id. The majority suggests that this evidence "does not defeat the integrity of the charged enterprise" because the jury could have concluded that "these glitches in the schemes only meant that certain substantive crimes went uncompleted . . . ." Id. With respect, I think that the evidence is more telling on the point in question -- whether there was sufficient evidence that Cianci and Corrente so controlled the Providence Redevelopment Agency, the Providence Building Board of Review, and the Department of Public Safety that their unlawful purposes should be imputed to these entities -- than the majority acknowledges. There was, after all (and as the majority concedes, see ante at 17), no other evidence from which the jury might have found that defendants controlled these agencies (or at least relevantly so).

-81- unlawful purposes of its members. This is a highly ramified

decision with implications, criminal and civil, that extend far

beyond this case. Were we to permit a person or entity to be named

part of an unlawful purpose enterprise on mere evidence that the

person or entity acceded to a mobster's request (but without

knowledge of the purposes underlying the request), we would be

heading down the slippery slope against which then-Judge Breyer

warned in Ryan: that of failing to differentiate between

associations that fall within the sweep of RICO and associations

involving only the exploitation of others by criminals. See 901

F.2d at 180-81 (emphasizing the need to limit "the potentially

boundless scope of the word 'enterprise' so as to distinguish

culpable from non-culpable associations," and recognizing "the

serious consequences for any man or woman, state official or

private person, who is publicly accused of racketeering"); see

also Fitzgerald v. Chrysler Corp.,

(7th Cir.

1997).22 As Ryan suggests, membership in an unlawful purpose RICO

22 To illustrate, suppose there was evidence that a young law school graduate made a $5,000 "campaign contribution" to Cianci and asked for a recommendation to the hiring partner of a Providence law firm that does a substantial amount of city business. Suppose further that there was evidence that Cianci called the firm's hiring partner and asked that the firm give serious consideration to hiring the young lawyer. If the firm did so, would it become a member of the common purpose enterprise alleged in this case? If the answer is "no" (as I think it clearly should be), on what principled basis can we find that the Department of Planning and Development -- the agency that created a temporary position for Christopher Ise at the request of Cianci -- was proved to be part of the enterprise?

-82- enterprise implies potential culpability under the RICO statute.

See 901 F.2d at 181; see also

(d) (allowing for the

imposition of RICO liability under conspiracy principles). Thus,

as a matter of logic (not to mention due process), one who lacks

the mental state necessary for the imposition of RICO liability

because he is unaware of the enterprise or its purposes also lacks

the mental state necessary to be part of a RICO enterprise that is

defined solely by the shared, culpable mental state of its members.

This is ultimately what, in my view, dooms the government's

enterprise allegations in this case.

There was in this case significant evidence of public

corruption. Perhaps the government could have proved that Cianci

and Corrente ran the Office of the Mayor or the Office of the

Director of Administration as a RICO enterprise. Or perhaps the

defendants (or, more likely, a subset thereof) might have been

shown to be members of one or more smaller, associated-in-fact RICO

enterprises. But the government successfully persuaded the grand

jury to cast a wider net and to allege that the persons named as

enterprise associates, along with the campaign contribution fund,

the City of Providence, and many of its departments, offices and

agencies, functioned as a de facto organized crime syndicate.

Framing the case in this way permitted the government to allege

that defendants were responsible under RICO's conspiracy provision

for all of the illegal and unethical conduct put on display in this

-83- trial -- even that in which they were not shown to have personally

participated.23 But this broad case theory obligated the government

to prove that each municipal entity alleged to have engaged in

conduct that constituted part of the "pattern of racketeering

activity" identified in the indictment was itself a member of the

enterprise. As another court has put it:

[I]t must be stressed that the government, through its ability to craft indictments, is the master of the scope of the charged RICO conspiracy . . . . [RICO's conspiracy provision] is capable of providing for the linkage in one proceeding of a number of otherwise distinct crimes and/or conspiracies through the concept of enterprise conspiracy. The government, through the vehicle of the indictment, provides the linking conspiratorial objective of a specific RICO violation. The "specific" violation can be broad or narrow. It is the prosecution which sets the parameters to which a RICO conspiracy trial must be confined; having set the stage, the government must be satisfied with the limits of its own creation.

United States v. Weissman,

(11th Cir. 1990)

(quoting United States v. Neapolitan,

(7th Cir.

1986)) (internal quotation marks omitted; emphasis in original).

23 For example, Autiello was responsible under RICO for the unlawful conduct underlying the Freitas Lease and Freitas Invoice schemes -- schemes on which the jury returned substantive convictions but in which he was not involved -- on the theory that he was a member of a conspiracy to conduct the enterprise that carried out these schemes.

-84- RICO is a powerful weapon that can cause mischief if

abused by an overzealous prosecutor.24 While I do not doubt that

RICO will sometimes apply in cases of political corruption, I fear

the consequences of making the statute too easy to invoke -- or too

easy to apply broadly -- in the political context, where persons

who have made a contribution to a politician routinely receive

favorable treatment from offices or agencies over which the

politician has influence. I therefore agree with Justice Breyer

that we must place comprehensible limits on RICO's reach and that

an important way of cabining the statute is to require true

culpability before one may be named part of an associated-in-fact

RICO enterprise defined by the common unlawful purposes of its

constituents. See Ryan, 901 F.2d at 180-81. Such a limitation

helps to ensure that cases involving claims of political corruption

will not also inevitably give rise to a RICO charge, and that cases

involving multiple acts of common law fraud will not also

inevitably give rise to civil liability under the statute.

In this case, the government proved only that many of the

municipal entities named in the indictment were used as tools by

defendants. For reasons I have explained, this is not enough to

prove that these entities were part of a RICO enterprise defined

24 I am speaking generally here and in no way intend to impugn those who brought this case. Indeed, there is no reason to doubt that the government’s enterprise allegations were made in a good faith attempt to comply with circuit precedent in this tricky area of the law.

-85- only by the shared unlawful goals of its members. Thus, the

government failed to prove the existence of the enterprise alleged

in connection with the RICO counts, and the RICO convictions cannot

stand. See United States v. Morales,

(2d Cir.

1999) (reversing on sufficiency grounds where the proof failed as

to the specific enterprise charged in the indictment); Weissman,

(vacating a conviction obtained after the trial

court constructively amended the indictment in a supplemental jury

instruction by permitting the jury to find a different enterprise

than that charged in the indictment).

I respectfully dissent from part I of the majority

opinion and would not reach the issues addressed in parts IV-VI

(which are rendered immaterial by my conclusion that the

defendants’ RICO-related convictions must be reversed).

-86-