208 F.3d 332 (1st Cir. 2000), 99-1585, United States v Freeman

Docket Nº:99-1585
Citation:208 F.3d 332
Case Date:April 14, 2000
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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208 F.3d 332 (1st Cir. 2000)




No. 99-1585

United States Court of Appeals, First Circuit

April 14, 2000

Heard December 10, 1999

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William A. Brown For appellant

Jennifer Zacks, Assistant United States Attorney, with whom Amy B. Lederer, Assistant United States Attorney, Donald K. Stern, United States Attorney, and the Department of Justice were on brief for appellee.

Before Stahl, Circuit Judge, Cyr, Senior Circuit Judge, and Lipez, Circuit Judge.

Lipez, Circuit Judge.

William E. Freeman, Jr., an officer in the Peabody, Massachusetts, police department, was convicted by a jury on two counts of witness tampering. He was also acquitted on one count of witness tampering and one count of conspiracy to violate 18 U.S.C. § 666(a)(1)(B) (theft or bribery concerning programs receiving federal funds).1 Freeman complains that the evidence of witness tampering was insufficient to support the convictions. Additionally, Freeman contends that the court should have granted his motion for a judgment of acquittal on the conspiracy charge before its submission to the jury. If it had done so, he argues, the court would have been forced to grant a mistrial on the remaining witness tampering charges because the testimony admitted as evidence of the conspiracy was unduly prejudicial to his defense to the witness tampering charges. He further claims that he was entitled to a mistrial because the court admitted evidence of the statements of a coconspirator that it later had to strike, and because of the spillover effect on the witness tampering convictions of "bad acts" evidence admitted on the conspiracy charge. Unconvinced by Freeman's arguments, we affirm.


We sketch the facts of this odd case at the outset, adding detail below as it becomes necessary to the legal discussion. In 1991, Freeman became associated with the "Golden Banana," a striptease nightclub located in Peabody, and the club's owner, Louis DiBella (DiBella). Freeman began frequenting the Golden Banana shortly after DiBella's son, Francis, was arrested on drug charges. Although Freeman was not an employee of the club, DiBella paid him approximately $100 in cash each week for almost four years. In addition, DiBella loaned Freeman money, gave him free alcoholic beverages at the club, allowed him to influence the hiring and firing of dancers, tolerated his frequent visits to the dancers' dressing room, generally off limits to men, and otherwise turned a blind eye to Freeman's erratic and sometimes violent behavior.

In 1995, a federal grand jury began investigating potential violations of federal law at the Golden Banana involving, inter alia, members of the Peabody police department. During the investigation, Freeman approached fellow Peabody police officer Michael Ward and warned him to keep his "mouth shut" about "anything that went on at the Golden Banana." Freeman also approached Amy Clarke, the master of ceremonies at the Golden Banana, telling her to "keep the lip zipped" and "not to say anything about the Golden Banana."

The grand jury indicted Freeman on five counts. Count One alleged that Freeman conspired with DiBella to receive cash payments, no-interest loans, and free alcoholic

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beverages, in an attempt by DiBella "to curry favor with him and to buy his silence about licensed premise violations which occurred at the Golden Banana"--i.e., a conspiracy to violate 18 U.S.C. § 666(a)(1)(B). See supra note 1. The grand jury also indicted Freeman on four counts of witness tampering in violation of 18 U.S.C. § 1512(b)(2)(A) & (b)(3): Count Two involved an unnamed Peabody police officer,2 Count Three involved Officer Ward, and Counts Four and Five involved Amy Clarke.

In its opening statement at trial, the government outlined its conspiracy case. According to the government, DiBella would testify that, given the controversial nature of the Golden Banana's business, he needed to stay on the "good side" of the Peabody police lest they "do things like influence his ability to retain the liquor license that he had at the Golden Banana." In addition, DiBella would testify that he feared that the Peabody police would "take away his son," Francis, because of Francis's cocaine problem. Thus, the government expected DiBella to testify that he "willingly" entered into a "corrupt relationship" with Freeman, in which he "agreed to pay bribes" to Freeman and Freeman "agreed to accept them."3

On the first day of trial, before the government called DiBella to the stand, it presented the testimony of Deborah Drew, the daytime manager at the Golden Banana. Drew testified that DiBella told her he provided free alcoholic beverages to police officers to avoid "beefs" with the police, and that DiBella instructed her to call the Peabody police, not the state police, in the event of a licensing violation committed on the premises. Although the defense objected to this testimony as hearsay, the court provisionally admitted it under the hearsay exception for the statements of a coconspirator, Fed. R. Evid. 801(d)(2)(E), promising that it would "scrutinize it with care at the end of all the evidence."

On the second day of trial, the government called DiBella as a witness. Although DiBella testified that he made regular cash payments to Freeman, he denied that Freeman had agreed to perform any favors on his behalf. Moreover, DiBella's testimony suggested that he provided benefits to Freeman because of his fear of Freeman rather than any willing agreement between the two. Following DiBella's testimony, the court warned the government that "if Mr. DiBella is the chief witness, you're in deep serious trouble on the conspiracy count," suggesting that it did not think that the "victim of extortion is a conspirator."

As the government neared the completion of its case in chief, Freeman moved for a judgment of acquittal.4 In ruling on the motion, the court also scrutinized the government's conspiracy evidence to determine whether it had properly allowed Drew to testify to DiBella's out-of-court statements on the first day of trial. The court concluded that there was insufficient evidence of a conspiracy to admit the hearsay statements of a coconspirator, but that there was sufficient evidence to deny the motion for a judgment of acquittal on the conspiracy charge:

[T]he Court is not persuaded by a fair preponderance of the evidence, as I make findings of preliminary fact, that at any time there existed a conspiracy between Mr. Freeman and Mr. DiBella. That requires me to strike so much of

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the testimony of Ms. Drew as recounted things that Mr. DiBella had to say.

At the same time...

I think that wholly apart from anything I believe about the evidence, that there is enough evidence independent of Mr. DiBella... that a reasonable jury could find a conspiracy....

So, I must deny the motion for a judgment of acquittal

Freeman then moved for a mistrial, the court took the motion under advisement, and the government presented its final two witnesses.

After the government rested, Freeman renewed his motions for a judgment of acquittal and a mistrial. Again, the court denied the motion for a judgment of acquittal and left the motion for a mistrial under advisement. After concluding his defense,5 Freeman renewed his motions for a judgment of acquittal and a mistrial. The court denied both motions and submitted the conspiracy charge and three witness tampering charges to the jury. See supra note 2.

The jury acquitted Freeman of the conspiracy charge and the witness tampering count involving officer Ward, but convicted him on the two counts of witness tampering involving Amy Clarke. After the verdict, Freeman moved for a new trial, citing the "overwhelming capacity of evidence that was ostensibly admitted on one count which was the conspiracy[:] all this not very subtle character assassination, Freeman's a drinker, Freeman's going into the dressing rooms." According to Freeman, this evidence of "bad acts," admitted for its relevance to the conspiracy count, substantially prejudiced his defense to the witness tampering charges.

The court denied the motion for a new trial, concluding that "the evidence that was improperly allowed is just too peripheral here" (referring to Deborah Drew's hearsay account of DiBella's statements to her), and that "the jury showed their independence and their ability to discern between counts" by acquitting Freeman on two of the four counts. The court sentenced Freeman to four months' incarceration followed by twenty-four months of supervised release, the first four of those months in home confinement. The court also ordered Freeman to pay a $3,000 fine and a $200 special assessment.

Freeman now appeals, arguing that the evidence was insufficient to support his convictions on the two witness tampering counts. Alternatively, he argues that the trial court erred in denying his motions for a mistrial and a new trial.


To obtain convictions for witness tampering in violation of 18 U.S.C. § 1512(b)(2)(A) & (b)(3), the government had to prove beyond a reasonable doubt that Freeman (1) "knowingly use[d] intimidation or physical force, threaten[ed], or corruptly persuad[ed]" Amy Clarke, (2) intending to induce Clarke to "withhold testimony," or to "hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense." 18 U.S.C. § 1512. In evaluating the sufficiency of the evidence of...

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