U.S. v. Vest, 86-2054

• Decision Date: 11 September 1987
• Docket Number: No. 86-2054,86-2054
• Citation: 842 F.2d 1319
• Parties: 25 Fed. R. Evid. Serv. 320 UNITED STATES of America, Appellee, v. George H. VEST, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1319

842 F.2d 1319

25 Fed. R. Evid. Serv. 320

UNITED STATES of America, Appellee, v. George H. VEST, Defendant, Appellant.

No. 86-2054.

United States Court of Appeals First Circuit.

Heard Sept. 11, 1987.

Decided March 21, 1988.

Willie J. Davis, Boston, Mass., with whom Davis and Robinson, was on brief, for defendant, appellant.

John F. De Pue, Dept. of Justice, Washington, D.C., with whom Mark E. Robinson, Dept. of Justice, and Frank L. McNamara, Jr., Acting U.S. Atty., Boston, Mass., were on brief, for appellee.

Before CAMPBELL, Chief Judge, GARTH, ^* Senior Circuit Judge, and BOWNES, Circuit Judge.

LEVIN H. CAMPBELL, Chief Judge.

George Vest appeals from conviction on two counts of making false declarations to a grand jury. 18 U.S.C. Sec. 1623 (1982). Vest contends that the district court committed four reversible errors: 1) it refused to conduct an individual voir dire of prospective jurors; 2) it admitted into evidence "bad acts" evidence in alleged violation of Fed.R.Evid. 404(b); 3) it admitted into evidence prior consistent statements in alleged violation of the Fed.R.Evid. 801(d)(1)(B) exception to the hearsay rule; and 4) it denied Vest's motion for acquittal on one of the two counts. In addition, because the grand jury was presented with certain illegal evidence, Vest asks this court to exercise its supervisory powers and dismiss the indictment. We find that the district court did not commit reversible error, and we decline to exercise our supervisory powers to dismiss the indictment. The conviction is affirmed.

I. FACTS

This case revolves around four men: George Vest, Frank Tarantino, Jesse Waters, and Herbert Davis. George Vest, defendant-appellant, was a Boston police detective. Frank Tarantino was also a Boston police detective, and at one time was George Vest's partner. Jesse Waters was a notorious resident of Roxbury, Boston, who traded in marijuana and bootleg liquor through a chain of variety stores. Herbert Davis, also a resident of Roxbury, was Waters's friend, business associate, and employee. He acted as "sort of a general manager" for Waters's illegal enterprises.

On July 17 and 19, 1985, Vest appeared before a federal grand jury investigating allegations of corruption within the Boston Police Department. Vest testified pursuant to a grant of use immunity. During the course of his appearances, Vest was questioned about his relationship with Jesse Waters. The grand jury returned an indictment against Vest and Waters. This appeal concerns Vest's conviction on Counts II and IV of the indictment, which charge that two of Vest's responses were false declarations in violation of 18 U.S.C. Sec. 1623 (1982).

The first allegedly false declaration (Count II) concerned Vest's involvement in a payoff scheme between Waters and Frank Tarantino. The indictment charged that the underscored statement in the following pair of questions and answers was a false declaration.

Q. Do you have any knowledge, sir, of a payment that was made by Mr. Waters to Mr. Tarrentino [sic] at any time or for any reason?

A. I have no knowledge but I heard it in the street.

Q. And you had no participation in the payment of monies by Waters to Tarrentino [sic]?

A. No.

The second declaration (Count IV) concerned payoffs from Waters to Vest himself. The indictment charged that the following underscored testimony was a false declaration.

Q. Have you ever received anything--I believe I asked you that the last time you were here in front of the Grand Jury--Have you ever received any money from Jesse Waters for any reason? And you said, "No." That's correct?

A. Yes, sir.

Q. Have you ever received anything else of value from Mr. Waters other than money?

A. No.

Q. You've never been given money from cash registers in any of Mr. Waters' stores that he owns; any of his variety stores?

A. No, I haven't.

To prove that the above statements were false, the government presented evidence that Vest had acted as a middleman in the bribery scheme between Tarantino and Waters (Count II) and that Vest had received certain payoffs from Waters (Count IV). Discussing the counts in reverse order, we summarize the evidence produced by the government during the 17-day jury trial.

A. Count IV

Jesse Waters's payments to George Vest were part of a larger scheme involving several members of the Boston police force. Waters testified that the Roxbury community and numerous Boston police officers were well aware of the illegal commerce carried out in Waters's chain of variety stores. In corroboration, several witnesses testified that marijuana was sold over the counter at Waters's Warren Street store in Roxbury while police officers passively looked on. Waters explained that he was able to operate this illegal business because he paid "protection" money to the police. According to Waters, over a period of years he made regular payments to numerous Boston police officers in order to ensure police inaction. Waters testified that one of the officers to whom he regularly made payments was Vest. Likewise, Herbert Davis, Waters's partner and "manager," testified that he made payments to Vest in order to "keep in good."

Waters's payoffs were usually distributed from his store on Warren Street in Roxbury. When an officer entered the store to make a pickup, the officer was given a sum of money in a small paper bag. These bags were filled either from the cash register or from a bag (the "marijuana stash") located beneath the cash register.

B. Count II

Waters's attempted bribery of Tarantino arose out of the disputed events of the night of May 16, 1983. On that evening, Jesse Waters shot detective Frank Tarantino. The following facts about the shooting are uncontested: On the evening of May 16, 1983, Tarantino and his partner (at that time, a detective other than George Vest) drove to Waters's store on Warren Street in Roxbury. Tarantino was in plainclothes. He entered the store, jumped on the counter, and brandished his gun. Waters, sitting in the back of the store, opened fire with a pistol, and shot Tarantino twice. Waters was subsequently charged by the Commonwealth of Massachusetts with, inter alia, assault with intent to murder and assault and battery by means of a dangerous weapon. In addition, Tarantino brought a $1.5 million civil suit against Waters.

Waters's pending criminal prosecution led to the Waters-Tarantino bribery scheme. Waters testified that after he was charged for the shooting, several police officers, including George Vest, approached him and stated that he and Tarantino should smooth over their relationship. Out of context, the idea of police officers negotiating with someone who had shot a fellow officer seems bizarre. However, Waters explained that he was well acquainted with several police officers--those whom he had paid off--and that these officers knew that the shooting was accidental. As Waters tells it, he thought the man who jumped on the counter was a stick-up man, not Detective Tarantino. If Waters had recognized Tarantino, Waters would never have shot him. Waters had nothing to fear from the police in general, and Tarantino, in fact, was an officer to whom Waters regularly gave payoffs. The police officers who approached Waters had also received payoffs and were well aware of the context. Given Waters's extensive involvement in police corruption, it can be inferred the officers feared that if Waters were convicted for the shooting, he might incriminate all of the officers in an attempt to receive a reduced sentence.

Waters was in favor of reaching some agreement with Tarantino. He believed that he could make a payment to Tarantino and that this payment would prevent him from having to go to trial over the shooting. Of the officers who approached him, Waters chose Vest to help him "work it out" with Tarantino. Vest proceeded to arrange two face-to-face meetings between Waters and Tarantino.

At the second such meeting, Waters and Tarantino entered into an agreement. Waters promised Tarantino $200,000 as settlement for the civil suit, and an additional $100,000 under the table so that Tarantino would not have to share this sum with his attorney. In return for the payments, Tarantino would fix Waters's criminal suit so that Waters would not even receive probation or a suspended sentence; a fine was the heaviest punishment Waters would receive for shooting Tarantino. Waters did not explain just how he thought Tarantino could affect the outcome of the criminal prosecution for attempted murder. He mainly relied on his belief that his lawyer and Tarantino's lawyer could "work it out" with the District Attorney's office. He also believed that Tarantino's attorney might have some special influence with the District Attorney because Tarantino's attorney's father was a police captain.

Vest had a role in the agreement--he was the middleman who would transfer the under-the-table payments from Waters to Tarantino. Vest denied this role before the grand jury, and this denial is the subject of Count II of the indictment.

During the summer of 1984, Waters paid about half of the promised $300,000. All of the under-the-table money was paid. In his role as a middleman, Vest delivered $50,000 in three installments to Tarantino. The final $50,000 was delivered by Waters directly to Tarantino. Waters also gave about $50,000 of the over-the-table money to Tarantino's attorney.

The second of the three payments for which George Vest acted as middleman is of particular importance in this appeal. On June 15, 1984, Vest picked up $35,000 from Waters for delivery to Tarantino. This payment has special significance for two reasons. First, Waters managed to obtain a "receipt" for the payment. Unbeknownst to Vest, Waters tape-recorded the conversation wherein he gave Vest the $35,000 for delivery to Tarantino. This tape was Waters's insurance; he knew it was the one incontrovertible piece of evidence that he could hold over the heads...