U.S. v. Kepreos

Decision Date26 April 1985
Docket NumberNo. 84-1051,84-1051
Citation759 F.2d 961
Parties17 Fed. R. Evid. Serv. 1461 UNITED STATES of America, Appellee, v. Constantine T. KEPREOS, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Joan A. Lukey, Boston, Mass., by appointment of the court, with whom Hale & Dorr, Boston, Mass., was on brief, for defendant, appellant.

Brackett B. Denniston, III, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL, Chief Judge, McGOWAN, * Senior Circuit Judge, and TORRUELLA, Circuit Judge.

TORRUELLA, Circuit Judge.

In his second trial, after the first ended in mistrial, a jury found appellant Constantine T. Kepreos guilty of two counts of mail fraud in violation of 18 U.S.C. Sec. 1341 and two counts of Commodity Exchange Act violations under 7 U.S.C. Secs. 13(b) and 60(1). The government charged appellant and others with engaging in a scheme to defraud investors who had purchased interests in commodity pools operated by two companies, Northeast Investment Services, Inc. (NIS) and Boston Trading Group, Inc. (BTG), both of which were partially owned by appellant.

The indictment alleged that defendants had mailed fraudulent sales literature, and "churned" commodity pools operated by NIS and BTG. 1 Counts in the first category pertained primarily to Northeast, and those in the second primarily to BTG.

Appellant's first trial began on June 13, 1983. His principal defense was that he was unaware of the fraudulent schemes alleged by the government, and that he could not have been expected to recognize them due to certain organic and psychological deficiencies that he suffered. As a result of these alleged deficiencies, he claimed that he lacked the specific intent necessary to support a conviction. After a five-week jury trial, a mistrial was declared because the jury was unable to reach agreement on a verdict. 2

A second jury trial commenced on October 3, 1983. The government presented forty-seven witnesses and over one hundred and seventy-five exhibits, numbering in the thousands of pages. Appellant called fourteen witnesses and testified in his own defense. The jury found appellant guilty of two counts of mail fraud as to the NIS scheme and two counts of fraud in violation of the Commodity Exchange Act in connection with the BTG scheme. He was acquitted on nine other counts dealing with both schemes, and the jury reported that it was unable to reach an agreement as to three other counts. On January 9, 1984, appellant was sentenced to eighteen months imprisonment and a three-year term of probation.

This appeal essentially arises from the trial court's rulings in four areas: the exclusion of expert psychiatric and psychological testimony offered by appellant; the exclusion in the second trial of a record, admitted in the first trial, that a codefendant who testified for the government had once pleaded guilty to a charge of accepting a bribe as a witness; the denial of appellant's motion seeking that immunity be given to a witness; and, finally, denial of appellant's motion to dismiss the indictment and, otherwise, failure to provide adequate curative actions against alleged prosecutorial misconduct in connection with the prosecutor's contacting of jurors after the first trial.

With this background in mind, we turn to appellant's claims.

I. Exclusion of Expert Testimony

Appellant first claims error in the exclusion of expert testimony by the district court. He offered this testimony to show that he suffered from physical and psychological difficulties which adversely influenced his ability to attend to subtle details in his surroundings and to draw conclusions therefrom. The evidence was excluded by the trial court.

Appellant contends that the expert testimony was relevant to the issue of his intent. It was offered, he argues, not to show diminished capacity or lack of capacity to form specific intent, but to present an expert basis for his lack of awareness as to the existence of schemes to defraud. Appellant also contends that because the testimony was exculpatory and critical to his defense, its exclusion violated his sixth amendment right to present a defense and rebut the Government's charges.

Rule 403 provides that even 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 presentation of cumulative evidence." It is well established that district courts have broad discretion to exclude evidence under this rule. United States v. Hooton, 662 F.2d 628, 636 (9th Cir.1981), cert. denied, 455 U.S. 1004, 102 S.Ct. 1640, 71 L.Ed.2d 873 (1982); United States v. Medico, 557 F.2d 309, 317 (2d Cir.), cert. denied, 434 U.S. 986, 98 S.Ct. 614, 54 L.Ed.2d 480 (1977). Only in exceptional circumstances will reversible error be found in the district court's determination of the probative value of testimony in a particular case. United States v. Schmidt, 711 F.2d 595, 599 (5th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 705, 79 L.Ed.2d 169 (1984). Besides, a wide assortment of relevant evidence is, constitutional arguments notwithstanding, deliberately excluded by trial courts by reason of counterbalancing factors that are believed to be of greater moment than the unfettered admission of relevant testimony. See Wahrlich v. State of Arizona, 479 F.2d 1137, 1138 (9th Cir.) (per curiam), cert. denied, 414 U.S. 1011, 94 S.Ct. 375, 38 L.Ed.2d 249 (1973); see also United States v. Schmidt, supra.

With these principles as a framework, we first note that appellant was capable of forming the intent required by the statutes under which he was prosecuted. Kepreos did not rely on an insanity defense, and the evidence in question was allegedly not offered to prove either diminished capacity or lack of capacity to form specific intent. In other words, he did not question his capacity to form intent but nonetheless was interested in having the jury receive psychiatric evidence on such issue.

We find psychiatric testimony in these circumstances to be both misleading and of questionable utility. 3 The district court, therefore, correctly excluded the evidence. United States v. Castell, 584 F.2d 87, 89 (5th Cir.), cert. denied, 440 U.S. 925, 99 S.Ct. 1256, 59 L.Ed.2d 480 (1978). 4

Next, appellant argues that the trial court erred in rejecting the proffered testimony as evidence of character or personality traits under Fed.R.Evid. 404(a)(1) and 405(a). In his view, expert testimony would have shown that he had the following "personality traits": avoidance, denial, repression, naivete, dependency, and tunnel vision.

The term "character trait" is nowhere defined in the Federal Rules of Evidence. There is no indication whatsoever that either the draftmen or Congress had in mind admitting evidence of broad psychological traits or clinical states such as "repression" or "dependency" or the other similar characteristics about which appellant's experts proposed to testify, perhaps most notably "tunnel vision." The trial judge excluded the testimony on the basis of her legitimate concern that it might confuse the jury, an opinion which we fully share. We are thus satisfied that there was no error below on this point. See United States v. MacDonald, 688 F.2d 224, 227-28 (4th Cir.1982), cert. denied, 459 U.S. 1103, 103 S.Ct. 726, 74 L.Ed.2d 951 (1983).

Appellant's third point with respect to the exclusion of expert testimony relates to the jury instructions given at trial. The court had instructed the jurors that an intent to defraud could be based on a finding of either positive knowledge of events, or a deliberate indifference to them. Nonetheless, appellant contends, the court refused to allow expert testimony that could have rebutted the charge that he was deliberately indifferent. On the basis of the admissible evidence presented, we find that the trial court gave the jury correct instructions on the issue of specific intent. See United States v. Brien, 617 F.2d 299, 312 (1st Cir.), cert. denied sub nom. Labus v. United States, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980). Since the trial court thus acted well within the parameters imposed upon it by the law, we cannot find a violation of constitutional rights in the combination of the district court's valid judgment on proffered evidence and the charge given on the issue of intent.

II. Other Evidentiary Claims

In 1976, appellant's codefendant, Richard Shaw, pleaded guilty in a Florida state court to the crime of accepting a bribe as a witness. Adjudication of guilt was withheld pursuant to a procedure established by a Florida statute. See West's F.S.A. Sec. 948.01(3). The district court refused to admit evidence of the Florida plea despite appellant's contention that it was relevant to challenge Shaw's credibility. Appellant claims the court committed reversible error in limiting his cross-examination of this witness.

Trial courts are granted broad discretion to determine the scope and extent of cross-examination. United States v. Honneus, 508 F.2d 566, 572 (1st Cir.1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975). However, it is fully recognized that the right of a defendant in a criminal case to establish the bias of witnesses against him through cross-examination is an important component of the sixth amendment right to confrontation. Davis v. Alaska, 415 U.S. 308, 315-17, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974); United States v. Jarabek, 726 F.2d 889, 992 (1st Cir.1984). Thus, a trial court may limit cross-examination, but only after there has been permitted a certain threshold level of cross-examination that satisfies the constitutional requirement. Niziolek v. Ashe, 694 F.2d 282,...

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