U.S. v. Foley

• Decision Date: 07 February 1989
• Docket Number: No. 88-1399,88-1399
• Citation: 871 F.2d 235
• Parties: 28 Fed. R. Evid. Serv. 258 UNITED STATES of America, Appellee, v. Richard E. FOLEY, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 235

871 F.2d 235

28 Fed. R. Evid. Serv. 258

UNITED STATES of America, Appellee, v. Richard E. FOLEY, Defendant, Appellant.

No. 88-1399.

United States Court of Appeals First Circuit.

Heard Feb. 7, 1989.

Decided April 4, 1989.

As Amended April 7, 1989.

Owen S. Walker, Federal Defender Office, Boston, Mass., for defendant, appellant.

Kevin F. Driscoll, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., U.S. Atty., Boston, Mass., was on brief for U.S.

Before BOWNES, ALDRICH and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

Defendant-appellant, Richard E. Foley, was found guilty after a jury-waived trial on four counts of perjury before a grand jury in violation of 18 U.S.C. Sec. 1623 and one count of obstruction of justice in violation of 18 U.S.C. Sec. 1503. The obstruction of justice count charged that defendant threatened a witness to prevent him from giving information to the government and that defendant planned to and did testify falsely to the grand jury.

Defendant raises three issues before us: (1) that by excluding portions of tape recorded statements he made to a witness, the district court impaired its ability to assess properly the truth or falsity of defendant's answers to grand jury questions; (2) that the district court erred in ruling that FBI reports of interviews with the government's chief witness were not Jencks Act material; and (3) the district court improperly admitted irrelevant and prejudicial evidence.

I. THE PRELUDE

Our review of the facts is made in the light most favorable to the government and drawing all reasonable inferences in its favor. United States v. Ingraham, 832 F.2d 229, 230 (1st Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988); United States v. Cintolo, 818 F.2d 980, 983 (1st Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 259, 98 L.Ed.2d 216 (1987).

Wade Federici, the chief government witness, was the manager of a restaurant-bar in Weymouth called The Great Escape. He first met the defendant in 1983. Defendant worked for a construction company and was an occasional customer of The Great Escape. Federici knew that defendant carried a handgun and used cocaine. In 1985 Defendant went to jail for assault with a dangerous weapon--a firearm. Based on the same set of facts, he was also convicted of unlawful discharge of a firearm and being a disorderly person.

In August of 1986, The Great Escape was inspected by employees of the Massachusetts Alcoholic Beverage Control Commission (ABCC). Several violations of the law were noted and the ABCC started proceedings to close The Great Escape for 28 days.

In November of 1986, defendant visited The Great Escape and left a message for Federici to the effect that by reason of his contacts he could get the ABCC case against The Great Escape fixed. Federici thought the ABCC was treating The Great Escape unfairly. He also was under the impression that the ABCC could be bought off. Federici therefore reported defendant's approach to Captain Rumble of the Weymouth police department. Rumble subsequently introduced Federici to special FBI agents James Irwin and James Burleigh. Federici agreed to wear a body recorder and tape record telephone and face-to-face conversations with defendant.

Numerous conversations between defendant and Federici were recorded: seven in December of 1986; four in January of 1987; three in February; four in March; and two in April. The conversations are larded with expletives and racial epithets. The substance of defendant's statements was far ranging. He boasted of his wealth and how tough he was and strongly intimated not only that he was capable of physical violence but that he had friends who were not adverse to strong-arm tactics. Defendant claimed that he was well acquainted with former Boston Mayor Kevin White, former Massachusetts Attorneys General McCormack and Bellotti and Massachusetts State Treasurer Robert Crane. He stated that he had been involved in deals "with White and McCormack" and knew of other deals involving them. Defendant stated that giving cash or gifts to public officials was how business was done and that he knew this because of personal observation and participation. He claimed that he had discussed real estate tax abatements privately with the former chairperson of the Boston Board of Assessors. Defendant also claimed that he had close ties to persons of national prominence, including Howard Hughes, Cardinal Cushing, Nelson Rockefeller and members of the Kennedy family. In one of the recorded conversations, defendant stated in effect that he had access to negotiable bonds which could be bought at a substantial discount. Defendant also made specific suggestions as to how the ABCC proceedings could be terminated by the payment of $4,000; the ABCC had required a cash bond of $40,000 to stay the closing of The Great Escape.

Defendant testified before the grand jury on January 21, 1987. The questions asked of defendant were, of course, based on his recorded statements.

Prior to trial, the district court granted the government's motion-in-limine to exclude portions of the tape recording and other evidence which the government claimed was not relevant. Defendant's motion-in-limine to exclude irrelevant and prejudicial evidence was denied. There were about 650 pages of taped conversations; the government introduced about 90 pages of them at trial.

II. THE ISSUES

A. The Exclusion of Portions of Defendant's Tape Recorded Statements.

Defendant does not deny that the answers he gave to the grand jury questions contradicted his recorded statements and were false. His defense is that the government did not prove as required under 18 U.S.C. Sec. 1623 that the false answers were made knowingly. ¹ Defendant argues that in order to prove that the answers were made knowingly, the government had to show that when he denied making the recorded statements, he remembered the discussions he had with Federici and deliberately lied about them. Defendant points out that many of the grand jury questions did not focus on specific statements made on certain dates. Rather, the majority of the questions were broad and impersonal such as: "Have you ever given cash for any reason to any public official? Do you have any knowledge, directly or indirectly, of anyone else giving cash gifts or anything of value to any public official?" There were also more specific questions based on defendant's recorded statements about claimed contacts with former Mayor White and former Attorney General McCormack.

The excluded tape recorded conversations showed that defendant claimed personal contacts with a number of other persons: Cardinal Cushing; the Kennedy family; Howard Hughes; Nelson Rockefeller; Governor Dukakis; Dwight Evans and Carl Yastrzemski (Boston Red Sox); and the Anguillo and Patriarca families (reputed to be prominent in the New England mafia). It is defendant's contention that if the district judge had listened to the excluded tape recordings, he might have had doubts as to whether the defendant was a person who would remember particular discussions he had with Federici about former Mayor White, Attorney General McCormack and other persons. Defendant argues that the exclusion of a great deal of the tape recorded evidence narrowed and distorted the district court's perspective of the case. The recorded statements put in evidence made defendant appear to be an active and corrupt wheeler and dealer who would lie to the grand jury to protect himself and his alleged friends. But if all of the recorded conversations had been included in evidence, a different picture would have emerged. Defendant would have been revealed not to be a real wheeler and dealer but a Walter Mitty living in a fantasy world who could not possibly remember the statements he had made about persons he claimed to know. Therefore, defendant asserts, the excluded statements were relevant and it was reversible error to grant the government's motion-in-limine.

Defendant's argument construct is ingenious but founders on the rocks of reality. It is important to point out that defendant never told the grand jury that he could not remember making the statements about which he was questioned. He denied making them. It was his credibility, not his memory, that was at issue. We also note that defendant has not raised any issue as to his mental state. There was testimony by a psychiatrist at the trial to the effect that although defendant had a problem forming memories while intoxicated, ² he had no psychotic disorder, knew the difference between right and wrong and would not make up something totally false.

Fed.R.Evid. 401 defines relevant evidence as: "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 402 provides that relevant evidence is, subject to specific exceptions, generally admissible. Rule 403 is one of the specific exceptions to admissibility. It states: "Although 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." The test for reviewing exclusion of evidence under Fed.R.Evid. 403 is abuse of discretion. United States v. King, 827 F.2d 864, 867 (1st Cir.1987); United States v. Jarabek, 726 F.2d 889, 903 (1st Cir.1984).

Although the district court did not specify the grounds for excluding a portion of the recorded conversations, it would not have been an abuse of discretion to exclude the evidence solely on the basis of the quoted language from Fed.R.Evid. 403. It had before it all that was necessary to decide the issue of relevancy and the applicability of Rule 403. Both counsel submitted memoranda of law and presented oral argument on the...