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897 F.2d 1169, *; 1990 U.S. App. LEXIS 3104, **
UNITED STATES, Appellee v. Gennaro J. ANGIULO, Donato F.
Angiulo, Samuel S. Granito, Francesco J. Angiulo and Michele A. Angiulo,
Defendants, Appellants Nos. 86-1331, 89-1212, 89-1800 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
897 F.2d 1169; 1990 U.S. App. LEXIS 3104; 29 Fed. R. Evid.
Serv. (Callaghan) 1011 March 5, 1990, Decided SUBSEQUENT HISTORY: [**1] As Amended March 8, 1990. PRIOR HISTORY: Appeals from the United States District Court for the District of Massachusetts, Hon. David S. Nelson, U.S. District Judge. CORE TERMS: juror, forfeiture, conversation, tape, conspiracy, murder, accessory, game, gambling, predicate, racketeering, indictment, poker, pattern of racketeering activity, co-conspirator, forfeitable, impartiality, immunity, convicted, proportionality, yacht, tape-recorded, extortionate, recording, identification, cross-examination, informant, exposed, articulated, expert testimony COUNSEL: Anthony M. Cardinale for Gennaro Angiulo. Robert L. Sheketoff, with whom Zalkind, Sheketoff, Homan, Rodriguez & Lunt, was on brief, for Donato Angiulo. James L. Sultan, with whom Charles W. Rankin and Rankin & Sultan were on brief, for Samuel Granito. Elliot M. Weinstein, for Francesco Angiulo. Henry Katz for Michele Angiulo. Frank J. Marine, Attorney, Department of Justice, with whom Diane M. Kottmyer, Ernest S. DiNisco, Carol Schwartz, Special Attorneys, Department of Justice, and Wayne A. Budd, United States Attorney, were on brief, for the United States. JUDGES: Bownes, Breyer and Selya, Circuit Judges. OPINIONBY: BOWNES OPINION: [*1175] BOWNES, Circuit Judge. These are consolidated appeals from convictions on jury verdicts rendered after an eight-month trial. The defendants, Gennaro Angiulo, Donato Angiulo, Samuel Granito, Francesco Angiulo, and Michele Angiulo, are all members or associates of the Patriarca Family of La Cosa Nostra. They were charged with conspiracy to participate and participating in [**2] an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d) and (c), as well as with numerous racketeering, loansharking, and gambling offenses. n1 Each having been convicted and sentenced on various counts, they now appeal on a number of grounds from their convictions. They also appeal from the district court's order forfeiting certain of their assets under 18 [*1176] U.S.C. § 1963. For the reasons set forth below, we affirm the defendants' convictions and sentences, but reverse certain portions of the forfeiture order. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 The indictment initially named Vittore Nicolo Angiulo and Ilario M. A. Zannino as additional defendants, but both were severed from the trial due to health problems. Nicolo Angiulo subsequently died, while Zannino was tried separately, and convicted, on three of the original eight counts. Zannino's appeal from these convictions was consolidated with these appeals for purposes of oral argument only, and his convictions have since been affirmed. See United States v. Zannino, 895 F.2d 1 (1st Cir. 1990). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**3] I. BACKGROUND The evidence introduced against defendants at trial was, in large part, the product of court-authorized electronic surveillance conducted at 98 Prince Street and 51 North Margin Street in Boston's North End during the period January-May 1981. Through a combination of audio and video surveillance, FBI agents monitored the arrivals and departures of persons from these premises, as well as their conversations on the premises. Tapes and transcripts from this surveillance were introduced at trial, accompanied by material seized during the execution of various search warrants. There was also testimony by a number of government witnesses. Our review of the evidence is made, as required, in the light most favorable to the government. At this time, we summarize those facts most pertinent to the issues that have been raised on appeal. Defendants were all members of the Patriarca Family of La Cosa Nostra. Gennaro Angiulo was the underboss of this organization, in charge of its day-to-day operations. Immediately beneath him in the command hierarchy were "Capo Regimes" (captains) Samuel Granito and Donato Angiulo. Beneath the Capo Regimes, the organization consisted of soldiers [**4] and then of associates. Francesco Angiulo was a soldier, and also served as accountant for the organization's gambling and loansharking businesses. Michele Angiulo was an associate. The organization was headquartered at 98 Prince Street and engaged in widespread racketeering, gambling, and loansharking activities. Because the specific nature of some of these activities is significant for certain of the issues before us, we state the relevant facts regarding them in some detail. A. Gambling Activities The defendants, in various combinations, were charged with the operation of four illegal gambling businesses. The first business involved the operation by Gennaro and Francesco of a series of "Las Vegas Nights" gambling events from approximately late 1978 to mid-1981. The events were a type of bazaar, ostensibly operated to benefit non-profit, charitable organizations. The proceeds from these events, however, were not given to charitable organizations, but were kept by their La Cosa Nostra operators. The immediate manager and supervisor of the Las Vegas Nights was Gennaro's son, Jason Angiulo, assisted by Carmen Lepore. n2 Gennaro was the overall owner of the business, while [**5] Francesco acted as the accountant. All of these participants shared in the profits. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 For an independent discussion of Jason Angiulo's role in running the Las Vegas Nights, see United States v. Angiulo, 847 F.2d 956 (1st Cir.), cert. denied, 488 U.S. 928, 109 S. Ct. 314, 102 L. Ed. 2d 332 (1988). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The second gambling business involved the operation of twice-weekly barbooth games at the Demosthenes Democratic Social Club in Lowell, Massachusetts during 1980-81. Barbooth is a dice game in which, typically, twelve or more players place bets on whether the shooter of the dice will roll a winning or losing combination of numbers. The house takes a percentage -- usually 2 1/2% -- of the amount bet on each hand. The immediate manager of the Lowell barbooth games was Peter Vulgaropoulos, assisted by Vincent Roberto as assistant manager. Ilario Zannino directed the operation and had a financial interest in it. Francesco was the accountant, and Gennaro was the ultimate overseer. The [**6] third gambling business consisted of the operation of a highly organized and extensive illegal numbers betting business in the Boston area. Approximately 180 people were involved in the operation of this business, including agents to collect the bets, sub-books to control the agents and pay the winning number, and office managers to supervise the day-to-day management of the business and settle accounts with the sub-books. Gennaro was [*1177] the principal owner and overall boss of the business. Francesco was the day-to-day supervisor of the mid-level operation. Donato controlled a number of sub-book operations and had responsibility for collecting money. Finally, Michele stood in for Francesco and also assisted in controlling several of the sub-book operations. The fourth and final business involved the operation of high stakes poker games at 51 North Margin Street. Electronic surveillance revealed that a number of people participated in the running of the games and possessed a financial interest in them. Specifically, defendants Gennaro Angiulo, Samuel Granito, and co-conspirators Ilario Zannino, Ralph Lamattina and Nicola Giso each had financial interests in the game. Gennaro [**7] was the overall boss. Francesco acted as the accountant. John Cincotti managed the staff, extended credit to players, and collected their debts. Finally, Zannino supervised Cincotti and directly oversaw the operation. B. Extortionate Credit Transactions In addition to their gambling activities, certain of the defendants also were involved in extortionate credit transactions. In particular, defendants Gennaro, Donato, Francesco, and co-conspirator Zannino engaged in various loansharking operations. One such operation involved extortionate loans to Donald Smoot, a regular player in the North Margin Street poker games. In early 1981, Smoot owed $ 14,000 to Zannino and paid interest (or "vig") at the rate of one percent per week on this debt. During this same time period, Smoot owed money to Donato as well and paid him vig of 2 1/2% per week. Intercepted conversations revealed that the amount of Smoot's debt to Donato was also $ 14,000, and that Gennaro and Francesco had an interest in the loan. A separate transaction involved a $ 200,000 loan to Joseph Palladino, who was the principal in the Palladino Real Estate Trust, which owned property on Canal Street in Boston. Palladino [**8] paid interest of one percent per week on this debt. The debt eventually was cancelled after a series of real estate transactions through which Palladino's Canal Street property was transferred first to the Angiulos' sister and then from the sister to the Angiulos, doing business as Huntington Realty Trust Company. C. Murder Conspiracies The final group of racketeering activities charged in the indictment involved a series of conspiracies to obstruct justice and to commit murder. Most of these conspiracies, including the conspiracies to murder Walter LaFreniere, Walter Bennett, William Bennett and Joseph Barboza, are not at issue in this appeal. The murder of Angelo Patrizzi is, however, very much at issue and we state the facts pertaining to this murder in some detail, both here and later in the opinion. In early 1981, Angelo Patrizzi was reputedly planning to kill Frederick Simone and Cono Frizzi -- two Boston members of the Patriarca Family -- because of his belief that they were involved in the 1978 murder of his half-brother. A decision was made to kill Patrizzi before he succeeded in killing either Simone or Frizzi. As evidence of these plans to kill Patrizzi, the government [**9] introduced intercepted conversations from a March 11, 1981 meeting among Granito, Simone and Gennaro Angiulo at which Simone and Granito related to Gennaro several unsuccessful attempts on their part to kill Patrizzi. At this March 11 meeting, Gennaro indicated that he would assist in the effort, and during a conversation the next day with Zannino, enlisted Zannino's assistance as well. On March 13, 1981, Angelo Patrizzi disappeared. In a conversation intercepted on April 3, 1981, Zannino told John Cincotti and Ralph Lamattina that Patrizzi had been killed by nine men and put in a car trunk. On June 11, 1981, authorities found Patrizzi's decomposed body in the trunk of a stolen car in Lynn, Massachusetts. Gennaro Angiulo and Granito were charged with conspiring to murder Patrizzi and with being accessories before the fact to his murder. [*1178] D. The Jury's Verdict The above activities, among others, were set forth in the indictment against the relevant defendants as predicate acts constituting a pattern of racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). n3 With the exception of the murder conspiracies, the activities [**10] also were charged in the indictment as separate substantive counts against the applicable defendants. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 18 U.S.C. §§ 1961-1968 (1988). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Following an eight-month jury trial, Gennaro Angiulo, Donato Angiulo, Francesco Angiulo and Samuel Granito were each convicted, under RICO, of conspiring to participate, and participating, in the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d) and (c). Gennaro Angiulo was also convicted of the following offenses: four counts of conducting illegal gambling businesses, in violation of 18 U.S.C. § 1955; two counts of conspiring to make an extortionate extension of credit, in violation of 18 U.S.C. § 892(a); conspiring to collect, and collecting, an extortionate extension of credit, in violation of 18 U.S.C. § 894(a); obstruction of, and conspiring to obstruct, justice, in violation of 18 U.S.C. § 1503 [**11] and 18 U.S.C. § 371. Donato Angiulo was also convicted of conducting an illegal gambling business, in violation of 18 U.S.C. § 1955 and conspiring to make an extortionate extension of credit, in violation of 18 U.S.C. § 892(a). Granito was also convicted of conducting an illegal gambling business, in violation of 18 U.S.C. § 1955. Francesco Angiulo was also convicted of the following offenses: four counts of conducting illegal gambling businesses, in violation of 18 U.S.C. § 1955; two counts of conspiring to make an extortionate extension of credit, in violation of 18 U.S.C. § 892(a); and conspiring to collect an extortionate extension of credit, in violation of 18 U.S.C. § 894(a). Michele Angiulo was convicted of conducting an illegal gambling business, in violation of 18 U.S.C. § 1955. The defendants raise numerous issues on appeal, some of which apply to only one or two of them, and some of which apply to them all. We discuss each of the issues. II. RICO'S PATTERN OF RACKETEERING [**12] ACTIVITY Defendants' first challenge is to the constitutionality of the RICO provisions under which they were convicted, 18 U.S.C. § 1962(c) and (d). These provisions state, in pertinent part:
18 U.S.C. § 1962 (1988). Defendants specifically challenge the "pattern of racketeering activity" element of RICO, contending that the term "pattern" is so enigmatic and ambiguous as to be void for vagueness. The applicable standard requires that we find the statute unconstitutionally vague if it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." [**13] United States v. Harriss, 347 U.S. 612, 617, 98 L. Ed. 989, 74 S. Ct. 808 (1954). Thus, we must analyze RICO's "pattern of racketeering activity" element to determine if it is sufficiently susceptible of definition to give persons of ordinary intelligence in the defendants' situation fair [*1179] notice that the gambling, loansharking and conspiracy offenses with which they were charged constituted an unlawful "pattern of racketeering activity." The Supreme Court's latest discussion of the meaning of "pattern of racketeering activity" was in H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989). In H.J. Inc., the Court stated that "to prove a pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates are related and that they amount to or pose a threat of continued criminal activity." Id. at 2900. Therefore, continuity plus relationship is the formula to be applied in determining whether a pattern exists. According to the Court, the relationship requirement is satisfied if criminal acts "'have the same or similar purposes, results, participants, [**14] victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.'" Id. at 2901 (quoting 18 U.S.C. § 3575(e)). Continuity of the activity itself can then be shown by "proving a series of related predicates extending over a substantial period of time." Id. at 2902. Continuity can also be shown by proving a threat of continued racketeering activity, which can be established "if the related predicates themselves involve a distinct threat of long-term racketeering activity, either implicit or explicit." Id. Defendants challenge this definition of "pattern" as being so susceptible of differing interpretations that it is void for vagueness. In making this challenge, they rely heavily on Justice Scalia's dictum in his H.J. Inc. concurrence. Justice Scalia noted in his concurrence that courts have been unable to define "pattern" with any meaningful degree of clarity, leading him to speculate that RICO would be vulnerable to a vagueness challenge. He left the question for another day because the vagueness issue had not been raised before the Court. See H.J. Inc., 109 S. Ct. at 2908-09 [**15] (Scalia, J., concurring). The defendants here have raised the issue, however, and we must address it. We begin by acknowledging that potential uncertainty exists regarding the precise reach of RICO's "pattern of racketeering" element. The Court itself in H.J. Inc. acknowledged that defining "pattern" has not proven to be an easy task and that the exact scope of the meaning of "continuity plus relationship" cannot be fixed in advance with precise clarity. See H.J. Inc., 109 S. Ct. at 2899, 2902. This admission, however, does not mean that defendants' vagueness challenge necessarily succeeds. The statute is not rendered unconstitutionally vague simply because potential uncertainty exists regarding the precise reach of the statute in marginal fact situations not currently before us. See United States v. Powell, 423 U.S. 87, 93, 46 L. Ed. 2d 228, 96 S. Ct. 316 (1975). Rather, in the absence of first amendment considerations, vagueness challenges must be examined in light of a case's particular facts. See id. at 92; see also New York v. Ferber, 458 U.S. 747, 767, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982); [**16] United States v. Cintolo, 818 F.2d 980, 996 (1st Cir.), cert. denied, 484 U.S. 913, 98 L. Ed. 2d 216, 108 S. Ct. 259 (1987). Thus, for defendants' vagueness challenge to succeed, they must demonstrate that the meaning and scope of RICO's "pattern" element was unclear and vague as to their conduct at issue here. Phrased another way, they must show that persons of ordinary intelligence in their situation would not have had adequate notice that the gambling, loansharking and conspiracy offenses at issue here constituted a "pattern of racketeering activity" under RICO. Defendants have not even come close to making this showing, for if anything is clear about RICO, it is that "a pattern of racketeering activity" is intended to encompass the activities of organized crime families. In H.J. Inc., the Court explicitly noted that in drafting RICO to target "patterns" of racketeering activity, Congress' main focus was the eradication of organized crime. See H.J. Inc., 109 S. Ct. at 2904; see also United States v. Turkette, 452 U.S. 576, 588-93, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981). Given [*1180] the history [**17] behind RICO, we have no doubt that the murder conspiracies and the gambling and loansharking operations for which defendants were charged and convicted here are precisely the type of activity that Congress intended to reach through RICO. See United States v. Ruggiero, 726 F.2d 913, 923 (2d Cir.), cert. denied, 469 U.S. 831, 105 S. Ct. 118, 83 L. Ed. 2d 60 (1984). Thus, although RICO's "pattern" element may be vague in some contexts, a matter on which we express no opinion, it is not vague in the context before us. A person of ordinary intelligence could not help but realize that illegal activities of an organized crime family fall within the ambit of RICO's pattern of racketeering activity. Despite this clear intent of RICO to target organized crime, defendant Granito strenuously contends that he could not have known that the acts with which he was charged were sufficiently related to fall within the parameter of RICO's "pattern of racketeering activity" element. Granito also argues that there was insufficient evidence to prove that his acts constituted a pattern. We are not persuaded. Granito was charged with three predicate acts: (1) conspiring [**18] to murder Angelo Patrizzi; (2) being an accessory before the fact to the murder of Patrizzi; and (3) conducting an illegal gambling business (North Margin Street poker games). He argues that these acts do not constitute a pattern, nor could he have known that they might constitute a pattern, because they were unrelated in any "functional" way. In making this argument, he stresses that no evidence was introduced to show that Patrizzi's death was related to the card game or vice-versa. Although this might be so if we view the acts in a piecemeal fashion, the flaws in the argument become immediately apparent once we consider the conduct as a whole. The acts with which Granito was charged were not committed in isolation; they all were related to the affairs of the enterprise. It is the relationship between the acts and the affairs of the enterprise that renders Granito's conduct a pattern of racketeering activity under RICO. As the Second Circuit stated in United States v. Indelicato, 865 F.2d 1370 (2d Cir.) (en banc), cert. denied, 491 U.S. 907, 109 S. Ct. 3192, 105 L. Ed. 2d 700 (1989): Id. at 1383. The Second Circuit noted further that "if the racketeering acts were performed at the behest of an organized crime group, that fact would tend to belie any notion that the racketeering acts were sporadic or isolated." Id. at 1384. The evidence here proved beyond a reasonable doubt that the acts with which Granito was charged were linked to the affairs of the Patriarca Family. This link renders the acts sufficiently related to constitute a pattern under the meaning of RICO. Nor are we persuaded that Granito could have been unaware that these acts fell within the ambit of RICO's pattern of racketeering activity; the express intent of RICO was to target organized crime. Thus, we must reject his vagueness challenge as well. Other defendants have adopted Granito's arguments as these arguments pertain to their particular factual situations. We need not address each defendant's situation [**20] individually. Our holding with respect to Granito is equally applicable to all. III. JURY IMPARTIALITY Defendant Gennaro Angiulo, joined by various co-defendants, argues that in two respects, his sixth amendment right to a fair trial by an impartial jury was violated. We consider each of his arguments in turn. A. Change of Venue Gennaro's first argument is that the district court committed constitutional error in denying his repeated motions for a change of venue due to extensive prejudicial pretrial publicity. There can be no dispute [*1181] that extensive publicity surrounded this case from the moment of the defendants' indictment. There also can be little dispute that jurors in the venire, including some of those ultimately selected for the trial, were exposed to this publicity to one extent or another. The issue is whether this publicity was so extensive and so prejudicial as to require a change of venue. We begin by noting the fundamental principle that "the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors," Irvin v. Dowd, 366 U.S. 717, 722, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961), [**21] and that "a change of venue may be granted if the court determines that there exists in the district 'so great a prejudice against the defendant that he cannot obtain a fair and impartial trial.'" United States v. Drougas, 748 F.2d 8, 29 (1st Cir. 1984) (quoting United States v. Gullion, 575 F.2d 26, 28 (1st Cir. 1978)). It is also established that a motion for change of venue "is addressed to the sound discretion of the trial court and will not be reversed in the absence of an abuse of discretion." Id.; see also United States v. Kelly, 722 F.2d 873, 881 (1st Cir. 1983), cert. denied, 465 U.S. 1070, 104 S. Ct. 1425, 79 L. Ed. 2d 749 (1984). In determining whether sufficient prejudice existed to require a change of venue, we must conduct two inquiries: 1) whether jury prejudice should be presumed given the facts before us; or 2) if prejudice should not be presumed, whether the jury was actually prejudiced. Although courts often blend the two inquiries, we will endeavor to keep them distinct. See generally Harris v. Pulley, 885 F.2d 1354, 1359-65 (9th Cir. 1988) (distinguishing between [**22] presumed prejudice and actual prejudice), cert. denied, 493 U.S. 1051, 58 U.S.L.W. 3450, 107 L. Ed. 2d 848, 110 S. Ct. 854 (1990). 1. Presumed Prejudice There are two factors that could call for a presumption of prejudice. First, prejudice may properly be presumed where "'prejudicial, inflammatory publicity about [a] case so saturated the community from which [the defendant's] jury was drawn as to render it virtually impossible to obtain an impartial jury.'" United States v. McNeill, 728 F.2d 5, 9 (1st Cir. 1984) (quoting United States v. Chagra, 669 F.2d 241, 250 (5th Cir.), cert. denied, 459 U.S. 846, 74 L. Ed. 2d 92, 103 S. Ct. 102 (1982)); see also Harris, 885 F.2d at 1361. To justify a presumption of prejudice under this standard, the publicity must be both extensive and sensational in nature. If the media coverage is factual as opposed to inflammatory or sensational, this undermines any claim for a presumption of prejudice. See, e.g., Murphy v. Florida, 421 U.S. 794, 802, 44 L. Ed. 2d 589, 95 S. Ct. 2031 (1975); United States v. Medina, 761 F.2d 12, 19 (1st Cir. 1985); [**23] McNeill, 728 F.2d at 9; see also Harris, 885 F.2d at 1362. After examining the volumes of newspaper clippings and television news transcripts submitted by the defendants in support of their motions for a change of venue, we find that the media coverage was not so inflammatory or sensational as to require a presumption of prejudice. Although the news coverage was extensive, it largely was factual in nature, summarizing the charges against the defendants and the alleged conduct that underlay the indictment. We acknowledge that frequent references were made to "reputed crime figure Gennaro Angiulo," "mafia boss Angiulo," or "reputed leader of Boston underworld." We find, however, that such references, although not phrased in the most genteel or flattering manner, fall significantly short of the type of emotionally charged, inflammatory, sensationalistic coverage needed to support a presumption of prejudice. A second factor that could support a presumption of prejudice is a more indirect measure that looks at the "length to which the trial court must go in order to select jurors who appear to be impartial." Murphy, 421 U.S. at 802. [**24] Where a high percentage of the venire admits to a disqualifying prejudice, a court may properly question the remaining jurors' avowals of impartiality, and choose to [*1182] presume prejudice. See id. at 802-03; United States v. Moreno Morales, 815 F.2d 725, 734 (1st Cir. 1987), cert. denied, 484 U.S. 966, 98 L. Ed. 2d 397, 108 S. Ct. 458 (1988). In Moreno Morales, twenty-five percent of the venire admitted believing that defendants were guilty. We found this percentage to be too low to require a presumption that the jurors actually seated at trial -- all of whom proclaimed impartiality -- were indeed prejudiced. See Moreno Morales, 815 F.2d at 735. The defendants here do not point to any indicia of prejudice as strong as those that were rejected by us in Moreno Morales. At most, they claim that jurors in the venire were familiar with the Angiulo name, and some associated it with the Mafia. Mere knowledge or awareness of a defendant's past, however, is not sufficient to presume prejudice. More must be shown, such as the actual existence of a present predisposition against defendants for the crimes [**25] currently charged. See Murphy, 421 U.S. at 800 & n. 4. The defendants point to no such indications of prejudice in the venire, and we therefore decline to draw any presumptions of prejudice on the part of the jurors seated at trial. 2. Actual Prejudice The next question is whether the jurors seated at trial demonstrated actual partiality that they were incapable of setting aside. See Harris, 885 F.2d at 1363. In pursuing this inquiry, special deference is due the trial court's determination that the jurors were impartial. As we stated in United States v. McNeill:
728 F.2d at 9; see also Patton v. Yount, 467 U.S. 1025, 1032, 1038, 81 L. Ed. 2d 847, 104 S. Ct. 2885 (1984); Moreno Morales, 815 F.2d at 733; Medina, 761 F.2d at 20. The defendants [**26] rest their allegations of actual prejudice on the extensive pretrial publicity that existed and the jurors' exposure to that publicity. In particular, they emphasize that of the 18 jurors impanelled for trial, only 3 had not been exposed to the Patriarca-Angiulo names, and of the 12 jurors that returned verdicts, only one had not been so exposed. They also note that a number of jurors drew an association between the Angiulo name and the Mafia. To meet the standards of the sixth amendment and due process, however, it is not mandated that each and every juror's mind be a blank slate with respect to the defendant. See e.g., Medina, 761 F.2d at 19-20; see also Dobbert v. Florida, 432 U.S. 282, 303, 53 L. Ed. 2d 344, 97 S. Ct. 2290 (1977). The relevant question is whether the jurors "had such fixed opinions that they could not judge impartially the guilt of the defendant." Patton, 467 U.S. at 1035. As the Supreme Court articulated in Irvin v. Dowd: It is not required . . . . that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important [**27] case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. 366 U.S. at 722-23. Thus, the mere fact that a majority of the impanelled jurors had been exposed to the Patriarca-Angiulo names, or that some linked the Angiulo name with the Mafia, is [*1183] not sufficient to support a finding of actual prejudice. The defendants have put forth nothing to warrant a conclusion that the jurors were unable to lay aside any implications associated with the Angiulo name and reach a verdict based only on the evidence presented at trial. The defendants' position is further weakened by the exhaustive procedures [**28] employed by the trial court below to screen prospective jurors and impanel an impartial jury. The court examined 260 prospective jurors, requiring each to answer comprehensive written questionnaires and respond to oral questions regarding, among other things, their exposure to pretrial publicity, their knowledge of the case or familiarity with any of the parties, their attitude towards organized crime, and the like. Those who indicated partiality were excused for cause, and the 18 jurors ultimately impanelled stated that they had formed no opinions or conclusions about the case and could render an impartial verdict based on the evidence at trial. Although we do not blindly accept such avowals of impartiality, to justify disregarding them there must be solid evidence of distinct bias. See Medina, 761 F.2d at 20 (reviewing, with approval, extensive voir dire procedures employed by the trial court); McNeill, 728 F.2d at 10. We have found none. In light of the thorough voir dire procedures employed by the trial court, and the repeated assurances of impartiality given by the impanelled jurors, we find that no actual prejudice tainted the jury. [**29] This determination, when combined with our rejection of the claim of presumed prejudice, leads us to hold that no constitutional error resulted from the trial court's denial of the motion for change of venue. B. Juror Misconduct The defendants also contend that their constitutional right to an impartial jury was violated due to the trial court's failure to dismiss several jurors on the grounds of bias and misconduct arising from three distinct incidents. We first summarize the three incidents that allegedly fostered juror bias, and then analyze defendants' constitutional claims. The first incident involved a juror who requested that the court excuse him from the jury due to his girlfriend's extreme fears that his service on the jury would lead to retribution by the Mafia. The juror notified the court that he had spoken with three other members of the jury about his girlfriend's fears. In response, the district court excused the juror and then questioned individually the three jurors with whom the juror had spoken to ascertain what they had been told and whether any difficulties had arisen with respect to their continued ability to remain impartial. The three jurors assured [**30] the court that they had merely been told of the girlfriend's fears and that this would have no effect on their ability to remain impartial. In light of these responses, the court retained the three jurors on the jury, and informed the rest of the jury that the first juror had been excused for personal reasons. The court also asked each of the remaining jurors separately whether anything had occurred to affect his or her impartiality, and all responded in the negative. The second incident occurred during closing arguments when a juror informed the court that a friend of hers had relayed to her a bribe offer from third parties to vote not guilty. She told the court that she had rejected the offer, and had not spoken with any other jurors about the bribe attempt. After an examination of this juror, the court excused her, and notified the remaining jurors that she had been excused for personal reasons. The court also notified the jurors that they would be sequestered for the remainder of the trial. Not surprisingly, this story was reported in the press almost immediately. Subsequent questioning of each juror by the court revealed that four jurors had been exposed, in varying degrees, [**31] to the news coverage. Juror # 37 said that while on the subway she had seen a newspaper headline reporting that a juror had been threatened. She admitted that she was concerned by the story, had tried to read more, but was unable to do so. Juror # 68 reported that [*1184] juror # 37 had told her of this newspaper headline. Juror # 25 also reported seeing a newspaper headline about a juror being approached, but had read no more of the article. Finally, juror # 4 reported overhearing two people talking about the case and the fact that somebody had talked to a juror. In response to individual questioning, each of these jurors assured the court that he or she had not formed any conclusions about the case as a result of exposure to the news coverage, and would be able to render a verdict impartially based only on the evidence introduced at trial. Over the defendants' objections, all of these jurors were retained. The third and final incident occurred at the outset of the jury's deliberations when juror # 104 approached a United States marshal and handed him two newspaper articles concerning the case that had been found in the jury room. In response to questioning, juror # 104 stated [**32] that he had seen juror # 64 pull the articles from an exhibit box, and had seized the articles from juror # 64 immediately because he knew the articles were not supposed to be there. Juror # 104 admitted glancing through approximately the first third of each article, but stated that he had not read the articles in their entirety. The limited portions of the articles that he could recall summarized past incidents involving certain Angiulo jurors, reporting that one juror had been dismissed because he feared for his safety; that another had been dismissed after being approached by a neighbor; and that a friend of a third juror had reported that some of the jurors had made up their minds as to the defendants' guilt or innocence prior to deliberations. Juror # 104 also said that juror # 37 may have seen the articles. Juror # 64 then was questioned and acknowledged finding the articles between two exhibit boxes in the deliberation room. He stated, though, that he saw one line at most before juror # 104 seized the articles from him. He also acknowledged that juror # 37 may have observed the articles, but he was not completely sure that she had. Juror # 37 was questioned and denied seeing [**33] any part of the articles. Finally, both juror # 104 and juror # 64 assured the court that their exposure to the news coverage had not affected their ability to remain impartial and render a verdict based solely on the evidence introduced at trial. All three jurors were retained. Defendants raise allegations of juror bias and misconduct with respect to each of these three incidents. We consider each incident in turn. 1. Girlfriend's Fears The threshold question with respect to this incident is whether or not the girlfriend's expressions of fear about possible Mafia retaliation should be analyzed under the standard governing ex parte contacts with jurors. In Remmer v. United States, 347 U.S. 227, 98 L. Ed. 654, 74 S. Ct. 450 (1954), the Supreme Court stated that "any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is deemed presumptively prejudicial." Id. at 229. The burden then shifts to the government to show that the contact was harmless to the defendant. Id. The paradigmatic example of such an ex parte contact with a juror is a threat, bribe, [**34] or statement containing prejudicial information made directly to a juror by a third party stranger. The situation before us differs in notable respects from this paradigm. First, the "contact," if it can be called that, was initiated by an intimate relation of a juror, rather than by a third party stranger. Second, direct contact was limited solely to the girlfriend and her boyfriend juror; the other affected jurors only learned indirectly of the situation through the boyfriend. Third, the contact involved only subjective expressions of fear, rather than the traditional threat, bribe, or statement containing prejudicial substantive information. These facts raise a real question as to whether this incident is properly governed by the standards that apply to true [*1185] ex parte contacts. Because the resolution of defendants' allegation does not turn on the answer to this question, however, we will assume without deciding that the standards governing ex parte contacts do apply and that, under Remmer, the girlfriend's conduct raised a presumption of prejudice that shifted the burden to the government to show that the contact was harmless. In an effort to avoid [**35] the ensuing burden were we to apply such a presumption, the government states in a footnote in its brief that the Supreme Court abandoned Remmer's presumption of prejudice standard in Smith v. Phillips, 455 U.S. 209, 71 L. Ed. 2d 78, 102 S. Ct. 940 (1982), and Rushen v. Spain, 464 U.S. 114, 78 L. Ed. 2d 267, 104 S. Ct. 453 (1983), and instead placed the burden on the defendant to establish actual prejudice. See Brief for the Government at 91 n. 106. Although the government is careful to cite the two circuit opinions that have accepted, in whole or in part, this abandonment theory, see United States v. Madrid, 842 F.2d 1090 (9th Cir.), cert. denied, 488 U.S. 912, 109 S. Ct. 269, 102 L. Ed. 2d 257 (1988); United States v. Pennell, 737 F.2d 521 (6th Cir. 1984), cert. denied, 469 U.S. 1158, 83 L. Ed. 2d 921, 105 S. Ct. 906 (1985), it neglects to cite to any of the many circuit opinions that resoundingly have rejected this abandonment theory. See, e.g., Stockton v. Virginia, 852 F.2d 740, 744 (4th Cir. 1988), cert. denied, 489 U.S. 1071, 109 S. Ct. 1354, 103 L. Ed. 2d 822 (1989); [**36] United States v. Butler, 262 U.S. App. D.C. 129, 822 F.2d 1191, 1195 n. 2 (D.C.Cir. 1987) (listing the Sixth Circuit as the only circuit court that has accepted the abandonment theory, and citing the Fourth, Fifth, Seventh, Eighth, Ninth, and Tenth Circuits as continuing to apply Remmer); United States v. Littlefield, 752 F.2d 1429, 1431-32 (9th Cir. 1985); see also United States v. Hornung, 848 F.2d 1040, 1044 (10th Cir. 1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989); United States v. Caporale, 806 F.2d 1487, 1503 (11th Cir. 1986), cert. denied, 483 U.S. 1021, 97 L. Ed. 2d 763, 107 S. Ct. 3265 (1987); United States v. Robinson, 756 F.2d 56, 59 (8th Cir. 1985). Because we find that the government has made an adequate showing to overcome any presumption of prejudice, however, we have no occasion to decide today whether the girlfriend's conduct triggers a Remmer-type presumption. In reaching this determination, we have found several factors regarding the incident to have dispositive significance. First, the girlfriend's conduct [**37] did not provide any juror, either directly or indirectly, with substantive extra-judicial information going to the question of defendants' guilt or innocence. Courts frequently examine the nature of the information provided through a challenged ex parte contact and are more likely to deem the contact harmless if the content of the communication does not pertain to substantive matters involved in the trial. See, e.g., Butler, 822 F.2d at 1196; Sher v. Stoughton, 666 F.2d 791, 794-95 (2d Cir. 1981). This refutes the defendants' claims of prejudice, because the girlfriend's conduct merely involved her own subjective expressions of fear, rather than furnishing any information touching upon substantive matters at issue in the trial. Second, we note with approval the immediate and thorough steps taken by the district court to ascertain the extent of any juror prejudice. The trial court quickly excused the juror whose girlfriend expressed the fear. The court also thoroughly questioned the three jurors who indirectly learned of the girlfriend's fears to determine whether their impartiality had been compromised. These jurors assured the court that their [**38] impartiality had not been affected and that they would base their deliberations solely on the evidence introduced at trial. We can find no fault with the actions taken by the district court and his decision to retain the three jurors in light of their assurances of impartiality. Substantial deference is due the trial court's exercise of its discretion in handling situations involving potential juror bias or misconduct. See, e.g., United States v. Aiello, 771 F.2d 621, 629 (2d Cir. 1985); United States v. Webster, 750 F.2d 307, 338 (5th Cir. 1984), cert. denied, 471 U.S. 1106, 85 L. Ed. 2d 855, 105 S. Ct. 2340 (1985); United States v. Kelly, 722 F.2d 873, 881 (1st Cir. 1983), cert. [*1186] denied, 465 U.S. 1070, 104 S. Ct. 1425, 79 L. Ed. 2d 749 (1984). Because the trial court's determination regarding continued juror impartiality is a question of fact, this enhances the deference due its ultimate finding on the issue. See, e.g., Rushen v. Spain, 464 U.S. 114, 120, 78 L. Ed. 2d 267, 104 S. Ct. 453 (1983); Aiello, 771 F.2d at 630; United States v. Williams, 737 F.2d 594, 612 (7th Cir. 1984), [**39] cert. denied, 470 U.S. 1003, 105 S. Ct. 1354, 84 L. Ed. 2d 377 (1985). Here, the trial court was persuaded of the three jurors' continued impartiality after individually questioning each one. He properly could rely on their assurances of impartiality, given in response to his questions. See, e.g., Aiello, 771 F.2d at 630; Williams, 737 F.2d at 612; Sher, 666 F.2d at 795. We cannot say the court erred in declining to dismiss the three jurors challenged by the defendants. 2. The Bribe Attempt There can be little dispute that the juror who was offered the bribe would be presumed, under Remmer, to have been prejudiced. This juror, however, was immediately dismissed, and thus our inquiry turns to the four other jurors who learned of the incident. Of these four jurors, two learned of the bribe offer from glimpses of newspaper headlines; the third learned of it from one of the first two, and the fourth overheard two strangers talking, apparently, about the same newspaper coverage. Directly or indirectly, therefore, all four jurors learned of the incident because of the news coverage. Consequently, the most appropriate [**40] standard for us to apply in considering this incident is the standard we have articulated in cases where jurors were exposed to potentially prejudicial publicity during the course of trial. In United States v. Porcaro, 648 F.2d 753 (1st Cir. 1981), we set forth a three-prong standard for courts to apply to determine whether publicity during the course of a trial has prejudiced the jury. First, a court should determine whether the news coverage is prejudicial. Second, if it is, the court should determine whether any jurors were exposed to the coverage. Third, if exposure did occur, the court should examine the exposed jurors to determine if this exposure compromised their impartiality. See id. at 757; see also United States v. Gaggi, 811 F.2d 47, 51 (2d Cir.), cert. denied, 482 U.S. 929, 96 L. Ed. 2d 701, 107 S. Ct. 3214 (1987). As with ex parte contacts, a trial court's finding of continued jury impartiality despite exposure to news coverage should be upheld absent abuse of discretion. See Gaggi, 811 F.2d at 51. Applying this standard, we reject defendants' challenges to the four jurors. [**41] Although there can be no dispute that the jurors were exposed to the news coverage (prong two of the standard), the defendants cannot succeed on the other two prongs of the test. First, we have substantial reservations about whether the minimal news coverage to which the jurors were exposed can truly be deemed prejudicial. The jurors were exposed, directly or indirectly, to no more than a brief newspaper headline reporting that a juror had been approached. They were not exposed to any substantive information about issues at trial or about the defendants' guilt with respect to the charges against them. See id. at 52. The coverage also was factually oriented rather than sensational in nature. See Porcaro, 648 F.2d at 758. Furthermore, with respect to the third prong of the standard, we note that the trial court individually questioned each of the four jurors about their continued impartiality and accepted their assurances of impartiality as credible. In light of the prompt action by the trial court, the non-sensational nature of the minimal amounts of coverage to which the jurors were exposed, and the jurors' avowals of continued impartiality, we [**42] find that the trial court's retention of the four challenged jurors on the jury was not error. See United States v. Chang An-Lo, 851 F.2d 547, 559 (2d Cir.), cert. denied, 488 U.S. 966, 109 S. Ct. 493, 102 L. Ed. 2d 530 (1988); Gaggi, 811 F.2d at 51-53; see also United States v. Maceo, 873 F.2d 1, 6 (1st Cir.), cert. denied, 493 U.S. 840, 110 S. Ct. 125, 107 L. Ed. 2d 86 (1989). 3. Newspaper Articles in Jury Room Defendants' final jury challenge pertains to the incident involving the newspaper articles [*1187] in the jury room at the outset of the jury's deliberations. As with the bribe attempt, defendants' argument alleges juror exposure to prejudicial news coverage. Thus, Porcaro's three element standard governs our consideration of this incident as well. For essentially the same reasons articulated in our discussion of the bribe attempt coverage, we find that defendants cannot succeed under Procaro's three-prong test. At the outset, we note that prong two has been satisfied: there was juror exposure to news coverage. Specifically, juror # 104 admitted to glancing at portions of [**43] the articles found in the deliberation room. As with the bribe attempt incident, however, defendants fail on the other two elements of the test. First, we have doubts about whether the articles to which at least juror # 104 was exposed were prejudicial within the meaning of the three-prong standard. The articles were factually oriented accounts of incidents allegedly involving certain jurors. They do not appear to have been sensational in nature. Nor did the articles contain extra-judicial substantive information about issues at trial or the defendants' guilt with respect to the charges against them. In addition, as it did in the other incidents, the district court thoroughly questioned each of the challenged jurors to ascertain the extent of their exposure and their continued ability to judge the defendants impartially. Each juror assured the court of his continued impartiality, and the court was satisfied with these assurances. In light of the deference due the district court's determinations, we find no error in its retention of the challenged jurors on the jury. See Chang An-Lo, 851 F.2d at 559. IV. TESTIMONIAL AND PROCEDURAL CHALLENGES Defendants raise a host [**44] of challenges regarding various testimonial and procedural issues that arose at trial. We consider each of their contentions. A. Expert Witness Testimony At trial, the government called FBI Agents Arthur Eberhart and James Nelson to give expert testimony. Eberhart was the government's gambling expert and testified at length as to various defendants' roles in different gambling operations. Nelson gave more general expert testimony on the structure and operations of La Cosa Nostra and also gave his opinion, based on the wiretap tapes, regarding each defendant's role in the criminal organization. Among other things, it was his opinion that Raymond Patriarca was the boss of the Boston-Providence Family of La Cosa Nostra and that Gennaro Angiulo was the underboss. Defendants raise two objections to this expert testimony. First, they argue that it violated their sixth amendment right to confrontation because the trial court allowed the agents to testify without requiring that they disclose the identity of, or information received from, certain government informants. Second, they contend that permitting the experts to testify as to the defendants' roles in various activities invaded [**45] the province of the jury by effectively telling the jury what results to reach. 1. Nondisclosure of Informant Information Defendants raise a two-part challenge to the trial court's failure to require the disclosure of informant information. First, they contend that allowing the FBI agents' testimony without requiring the disclosure of informant information violated Rule 705 of the Federal Rules of Evidence, which states that on cross-examination, an expert witness may be required to disclose the facts and data underlying his opinion. n4 Second, defendants argue that their sixth [*1188] amendment right to confrontation was violated because they could not effectively cross-examine the agents without the disclosure of the informant information. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 Fed.R.Evid. 705 states: The expert may testify in terms of opinion or inference and give reasons there for without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**46] In United States v. Angiulo, 847 F.2d 956 (1st Cir.), cert. denied, 488 U.S. 928, 109 S. Ct. 314, 102 L. Ed. 2d 332 (1988), we considered and rejected virtually identical arguments raised on appeal after the trial and conviction of Jason Angiulo, Gennaro's son, and various other associates of the Patriarca Family. In that trial, Agent Nelson also gave expert testimony on the operations of La Cosa Nostra and the roles of the defendants in the organization without being required to disclose the identity of informants. We upheld that testimony against sixth amendment and Rule 705 challenges on several grounds. First, we noted that the trial court had instructed Nelson not to answer any questions on direct examination that would be based on informant information he could not disclose on cross-examination. Second, we emphasized that Nelson had testified explicitly that his opinions regarding the defendants were based solely on the tapes presented at trial. Finally, we noted that defendants had the opportunity to cross-examine Nelson extensively on his opinions. In those circumstances, we found no error in the trial court's refusal to require the disclosure [**47] of informant information. See id. at 974. We find the same reasoning to be dispositive here. The sole distinction between Angiulo and the situation before us is that the trial court here did not expressly instruct the expert witnesses not to answer any questions on direct examination that would be based on informant information that could not be disclosed on cross-examination, as had been done in Angiulo. This distinction, however, does not require a different result. The experts here gave the same type of testimony that was given in Angiulo, stating their opinions as to the roles played by defendants. As in Angiulo, the expert testimony was based solely on tape recordings presented at trial. Nelson repeatedly stated, both on direct examination and on cross-examination, that his testimony as to the roles played by the defendants was based only on the taped conversations that he had reviewed. n5 Although it might have been preferable for the trial court explicitly to instruct the experts as had been done in Angiulo, it was not reversible error to fail to do so where the experts testified that the opinions given were based only on the tape recordings. [**48] - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 For example, during the cross-examination of Nelson, the following exchange took place:
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Defendants attempt to distinguish Angiulo by pointing to various admissions by the experts that informant information had provided a basis for certain of their conclusions. We have carefully reviewed the relevant portions of the record and find that the experts testified only that information from past cooperating witnesses had contributed to their knowledge about La Cosa Nostra in general. Phrased another way, the experts acknowledged that information gleaned from informants over the course of their FBI careers was part of the vast mix of material that contributed [**49] to their background expertise on La Cosa Nostra. This expertise, in turn, enabled them to listen to the tapes and form opinions on defendants' criminal activities. The fact that informant information furnished some part of the experts' background knowledge does not implicate the sixth amendment. Regardless of the information that contributed to their background expertise, the experts' testimony regarding the particular charges against these defendants was based solely on an analysis of the tape recordings. We find no error in the trial court's failure to require the disclosure of informant information. n6 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 We note, parenthetically, that any background role played by informant information in this case can be no different than the role played by informant information in Angiulo. The factors underlying Agent Nelson's expertise on La Cosa Nostra have not changed. Thus, we do not find that defendants have isolated any distinction from Angiulo, and for the reasons previously discussed, we conclude that its holding governs here. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**50] [*1189] 2. Invasion of the Jury's Province Defendant Granito, joined by Gennaro Angiulo, raises an additional objection to the expert testimony. Specifically, Granito challenges Agent Eberhart's testimony regarding the roles played by various defendants in the North Margin Street poker operation -- in particular, Eberhart's testimony that, based on his analysis of the tape recordings, it was his opinion that Granito was a "partner" in the poker game. n7 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 The testimony was as follows:
|