U.S. v. Porcaro, 79-1060

• Decision Date: 10 April 1981
• Docket Number: No. 79-1060,79-1060
• Citation: 648 F.2d 753
• Parties: UNITED STATES of America, Appellee, v. Michael PORCARO, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 753

648 F.2d 753

UNITED STATES of America, Appellee, v. Michael PORCARO, Defendant-Appellant.

No. 79-1060.

United States Court of Appeals, First Circuit.

Argued Sept. 3, 1980.

Decided Jan. 28, 1981.

Rehearing Denied April 10, 1981.

Nicholas A. Abraham, Boston, Mass., by appointment of the Court, with whom Daniel F. Lenzo, and Abraham & Pappas, P. C., Boston, Mass., were on brief, for appellant.

Kathleen A. Felton, Atty., Dept. of Justice, Washington, D. C., with whom Edward F. Harrington, U. S. Atty., and Richard D. Gregorie, Special Atty., Boston Strike Force, Dept. of Justice, Boston, Mass., were on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and KEETON, District Judge. ^*

KEETON, District Judge.

Defendant-appellant Michael Porcaro appeals from his conviction of federal conspiracy, attempted extortion, and racketeering, in violation of 18 U.S.C. § 1951 ("the Hobbs Act") and § 1962(c) and (d) ("RICO"). ¹ Appellant argues that (1) the district court erred in denying appellant's motion to sequester the jury, (2) newspaper articles appearing during the trial were so prejudicial as to deprive appellant of a fair trial, (3) the evidence was insufficient to support appellant's conviction on either of the two counts of attempted extortion under the Hobbs Act (which together constituted the RICO offense); (4) the government's delayed disclosure of certain exculpatory evidence constituted prosecutorial misconduct and deprived appellant of a fair trial; and (5) the district court erred in denying appellant's motion for a new trial based on newly discovered evidence. Finding each of these contentions to be without merit, we affirm.

I.

Appellant was one of nine individuals charged in a six-count indictment ² with racketeering and extortion offenses involving the attempted takeover of a chain of New England massage parlors. Before trial five of the defendants Angelo Mercurio, Richard Floramo, Orlando Napolitano, Samuel Nore, and Carmen Fuccillo pled guilty to the charges contained in the indictment. Of the remaining defendants, Lynette Graebert was a fugitive from justice at the commencement of the trial, and John Jannoni was murdered before trial. Only appellant and Charles Tashjian went to trial in November 1978. After a fifteen-day trial, the jury convicted appellant on counts I (RICO conspiracy), III and IV (Hobbs Act attempted extortion) and V (substantive RICO offense); he was acquitted on count II (Hobbs Act extortion). Tashjian, charged only in count III of the indictment, was acquitted.

II. Sequestration of The Jury

At the commencement of trial, appellant filed a motion to sequester the jury, on grounds that appellant anticipated an unusual amount of publicity regarding the case due to the "nature of the indictment" and the "type of people involved." The district court denied the motion, observing that there was no indication that the case would generate more than routine press coverage, that no public figures were involved, that no reporters were present in the courtroom, and that the court believed it sufficient to instruct the jury to decide the case solely on the basis of the evidence. In addition, the court had been informed that there was a shortage of available hotel rooms in Boston, and noted the potential inconvenience of transporting a sequestered jury to accommodations some distance away. The court did, however, express its willingness to reconsider a motion to sequester if later developments warranted it.

The decision whether to sequester the jury lies within the sound discretion of the district court. E. g., Mastrian v. McManus, 554 F.2d 813, 818 (8th Cir.), cert. denied, 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977). Appellant concedes that "failure to sequester a jury standing alone, could rarely, if ever, constitute reversible error." United States v. Johnson, 584 F.2d 148, 155 (6th Cir. 1978), cert. denied, 440 U.S. 918, 99 S.Ct. 1239, 59 L.Ed.2d 469 (1979). Sequestration is an extreme measure, "one of the most burdensome tools of the many available to assure a fair trial." Mastrian v. McManus, supra, 554 F.2d at 819. In light of the ample reasons stated by the district court for denying the motion to sequester, we find no abuse of discretion.

At the time of the motion, appellant's counsel's prediction of extensive media coverage was purely speculative. There was no claim of adverse pretrial publicity. Although appellant now stresses the co-defendants' guilty pleas as a reason for sequestering the jury, this factor was not mentioned by appellant's counsel at the time of the motion. The district court indicated its intention to instruct the jury to disregard any publicity that might arise (see infra), and was diligent in doing so. Despite the court's offer to reconsider sequestration if a publicity problem arose, appellant never renewed his motion to sequester once objectionable publicity appeared. Appellant has not demonstrated actual prejudice or even substantial likelihood thereof resulting from the failure to sequester. See United States v. Johnson, supra, 584 F.2d at 155. Under these circumstances, the district court did not err in refusing to sequester the jury.

III. Publicity During the Trial

Appellant points to a number of newspaper articles concerning the case which appeared, principally in the Boston Globe, during the course of the trial, as being so inherently prejudicial as to require a new trial. The most prominent of these articles appeared on page three of the Globe with headlines such as "Five men admit guilt in massage plot," "Slain mobster tied to extortion," and "Suspected 'hit man' named in massage parlor trial." Articles concerning the case appeared on a majority of the days of the trial, authored by Globe reporter Richard Connolly, who regularly attended the trial. Although the reports were primarily objective accounts of the charges and the testimony and were often substantially repetitive of previous reports, several of the articles did contain objectionable, inadmissible information. The material appellant claims was most prejudicial was the disclosure of the co-defendants' guilty pleas; characterizations of various of the co-defendants as "organized crime figures" and the like; discussions of co-defendants' prior arrests, alleged bad acts, convictions and imprisonment, and Mafia ties; and repeated references to the "gangland-style" murder of Jannoni.

However, with the unfortunate exception of printing one witness's statement that appellant had "risen quite far in the (Mafia) organization" (together with the fact that the court had ordered it stricken and instructed the jury to disregard it), the various articles contained no prejudicial characterizations of appellant himself, his reputation, prior acts, arrests, or convictions, nor any speculation as to his guilt or innocence. The only explicit references to appellant merely recounted testimony heard by the jury. The crux of appellant's claim of prejudice appears to be that the articles implicitly linked appellant and his co-defendants as members of the same alleged plot, and thereby impermissibly tainted appellant with guilt by association in the mind of any juror who read the articles. Appellant argues that such frequent and relatively prominent articles in the leading local newspaper could not have failed to come to the attention of the unsequestered jury, who had not been explicitly instructed not to read the newspapers. Thus, appellant argues, the articles were per se prejudicial.

The district court's preliminary instructions stressed the jurors' duty "to decide this case solely on the basis of what you see and hear in this courtroom," pointed out the potential unreliability of edited newspaper accounts of a trial, and admonished that the jurors were not to decide "on the basis of what you may read in the paper as to what happened in the courtroom." However, the court declined to instruct the jurors to avoid exposure to media accounts of the trial, stating:

I am not going to tell you that if you see a newspaper story that has something to do with the case, don't read it. I am not going to impose that burden on you and I have not been requested by counsel to impose that burden on you.

What I am imposing on you is the burden of remembering that your responsibility is to decide the case solely on the basis of what you see and hear in the courtroom. You don't need anybody else to tell you what you saw and heard here in this courtroom. You have good eyes and ears, good common sense, and you know what you have seen and heard in this courtroom.

If there is any one of you who has read anything in the newspapers that causes you to have any doubt as to whether or not you have the ability to give all the parties in this case a fair and impartial trial then I want you to signify by raising your hand, and I will see you here at the bench

In response, one juror indicated he had read about the guilty pleas and expressed confusion regarding the conspiracy charge. After questioning at the sidebar, both appellant's counsel and the prosecutor stated that they were satisfied that the juror remained impartial. Appellant raised no objection to the court's instructions or voir dire of the jury. Nevertheless, appellant now contends that the initial publicity "was so massive and so timed that it was prima facie prejudicial."

We note that defendant did not object to the district court's instruction, quoted ante at p. 5, or request an instruction to the contrary, and in fact affirmatively endorsed the court's handling of the matter. Thus, we do not have before us the question whether it would be error, over objection, to give an instruction stating or implying, as this instruction did, that jurors are free to read media accounts of the trial. We do not wish to be understood as approving such an instruction, however, and we take note of considered recommendations that, in any...