889 F.2d 1158 (1st Cir. 1989), 89-1152, United States v. Nazzaro

Docket Nº89-1152.
Citation889 F.2d 1158
Party NameUNITED STATES of America, Appellee, v. Richard A. NAZZARO, Defendant, Appellant.
Case DateNovember 16, 1989
CourtUnited States Courts of Appeals, Court of Appeals for the First Circuit

Page 1158

889 F.2d 1158 (1st Cir. 1989)

UNITED STATES of America, Appellee,

v.

Richard A. NAZZARO, Defendant, Appellant.

No. 89-1152.

United States Court of Appeals, First Circuit

November 16, 1989

Heard Sept. 13, 1989.

Rehearing and Rehearing En Banc Denied Jan. 16, 1990.

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[Copyrighted Material Omitted]

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J. Albert Johnson, with whom Johnson, Mee & May, Boston, Mass., Thomas J. May, Brookline, Mass., and Richard C. Bardi, Boston, Mass., were on brief for appellant.

Alexandra Leake, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief for the U.S.

Before TORRUELLA, SELYA and MAYER [*], Circuit Judges.

SELYA, Circuit Judge.

It is with a sense of deja vu that we revisit a tawdry chapter in the annals of Massachusetts law enforcement known familiarly as "Examscam," a network of alleged conspiracies aimed at purloining advance copies of civil service examinations and selling them to police officers so they could fraudulently obtain promotions. Earlier this year, we disposed of a group of appeals arising from the prosecution of nine gendarmes and a state legislative aide said to be mired in the muck of Examscam. See United States v. Doherty, 867 F.2d 47 (1st Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3243, 106 L.Ed.2d 590 (1989). Today, we confront the appeal of another purported Examscam participant, defendant-appellant Richard A. Nazzaro, who was indicted and tried separately. After consideration of appellant's avalanche of arguments, and discussion concerning the more ponderable boulders in the asseverational array, we affirm his convictions on three counts, while reversing on one.

I. BACKGROUND

The general nature of the overall scheme has been expounded in great detail in Doherty, 867 F.2d at 51-54, and it would be pleonastic to repeat it here. A succinct summary suffices, supplemented by the specifics of Nazzaro's involvement. At trial below, the evidence showed that, from the late 1970s until well into 1984, Gerald Clemente and Thomas Doherty repeatedly stole copies of upcoming civil service examinations from the state agency in charge of such testing, the Massachusetts Department of Personnel Administration (MDPA). Clemente's purpose, and practice, was to sell (or sometimes, to give) the exams, with answer sheets, to persons aspiring for appointments or promotions.

On April 21, 1979, the MDPA administered a sergeant's examination for the Metropolitan District Commission (MDC). Prior to that date, Doherty and Clemente gave an advance copy of the test, with an answer sheet, to Nazzaro, an MDC police officer. Nazzaro paid Clemente $3,000 in cash. Not surprisingly, appellant performed superbly on the exam. On April 18, 1980, he was promoted to the rank of sergeant. When the MDPA announced that a lieutenant's examination would be held for the MDC on April 23, 1983, Nazzaro again purchased a stolen advance copy of the test and answers, paying Clemente another $3,000. The examination went well, and appellant became a lieutenant on August 19, 1984.

Thereafter, the tangled web began to fray. A federal grand jury was convened to investigate allegations that certain law enforcement officers had provided illegal assistance to individuals seeking appointments to, or promotions within, local police departments. On May 15, 1986, appellant testified under oath before the grand jury. By that time, the web was fast unravelling, and the government suspected that Nazzaro perjured himself. The grand jury charged him with two counts of conspiracy to commit mail fraud, 18 U.S.C. Sec. 371, and two counts of perjury, 18 U.S.C. Sec. 1623. The conspiracy counts charged that appellant purchased and used illegal, advance copies of two civil service promotions exams from Clemente, his coconspirator and fellow police officer. Count One related to the 1979 sergeant's examination; Count Two related to the 1983 lieutenant's examination. The perjury counts were paired along the same axis: Count Three related to Nazzaro's false grand jury testimony concerning the sergeant's examination; and Count Four related to his testimony anent the lieutenant's examination.

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At trial in the United States District Court for the District of Massachusetts, Clemente (who had pled guilty to racketeering charges) was the prosecution's star witness. He was, apparently, convincing. The jury found defendant guilty on all counts. This appeal ensued.

II. ISSUES PRESENTED

Many of Nazzaro's initiatives smack more of hope than reason, and can be rejected without exegetic comment. When his briefs are stripped of prettified ruffles and rhetorical flourishes, two sets of questions merit detailed discussion: (1) Were either or both of the conspiracy counts time-barred? (2) Did the government prove that Nazzaro's allegedly false statements were material to the grand jury's inquiry? Alternatively, did the district court botch its handling of the materiality issue? Having been supplied with no ready-made answer sheet, we deal with these queries in extenso. We also treat briefly with two additional points. The first of these concerns juror impartiality. The second concerns what defendant tells us is a vital evidentiary ruling, influencing all counts.

III. THE CONSPIRACY COUNTS

Appellant argues that the 5-year statute of limitations, 18 U.S.C. Sec. 3282, barred prosecution of the conspiracy counts. We believe that this contention impacts differently upon each of the two affected counts.

  1. Count One.

    The indictment against Nazzaro was returned on June 21, 1988. All of the critical events pertaining to Count One--the theft of the test papers, the advance dissemination of questions and answers, defendant's payment to Clemente, the examination session, and defendant's ensuing elevation--took place before 1980 ended. Except for the fact that Nazzaro continued to receive his sergeant's salary during 1983 and 1984, no overt act appurtenant to this conspiracy occurred within the 5-year limitation period. On these facts, Doherty--a case decided by us after appellant was convicted--is dispositive as to the first count.

    In the case of Robert Clemente, a codefendant of Doherty's, we reversed a conspiracy conviction on materially identical facts. Doherty, 867 F.2d at 62. In that case, as here, the entire panoply of key events antedated the limitation period. Although the prosecution argued that the acceptance of salary within the limitation period was adequate grounding for the charge, we viewed Robert Clemente's continuing salary payments from his new, undeserved post "as taking place well after, and isolated from, all other concerted activities" anent the charged conspiracy. Id. Under such circumstances, mere receipt of salary attributable to the fraudulently obtained position, without more, was not enough to forestall the running of the statute of limitations. Id.

    At oral argument before us, the government conceded that, as to the sergeant's examination, the record facts concerning Nazzaro were materially indistinguishable from those concerning Robert Clemente. That being so, the ball game is over. As a panel, we are bound to adhere to prior circuit precedent. See Jusino v. Zayas, 875 F.2d 986, 993 (1st Cir.1989); United States v. Reveron Martinez, 836 F.2d 684, 687 (1st Cir.1988); Lacy v. Gardino, 791 F.2d 980, 985 (1st Cir.), cert. denied, 479 U.S. 888, 107 S.Ct. 284, 93 L.Ed.2d 259 (1986). If order and fairness are to attend the legal process, identically situated parties should be treated identically. Prosecution of Count One was time-barred. Appellant's conviction thereunder must be reversed.

  2. Count Two.

    Count Two involved a distinct, separately charged conspiracy with respect to the lieutenant's examination. The facts are different in an important respect, for here defendant's challenge falls between the Doherty stools. Compare, e.g., Doherty, 867 F.2d at 62 (reversing conspiracy conviction of Robert Clemente) with id. (upholding conspiracy convictions of defendants Pino and Deliere because of their involvement in other activities, in addition to receipt of salary payments, during prescriptive

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    period). For that reason, careful perscrutation of our earlier opinion is required before plunging into a zone which Doherty left unexplored.

    In Doherty, the government argued that a conspiracy remains in existence until its objective is achieved; and that obtaining higher salary payments was an objective of the prototypical Examscam conspiracy, making the continuing receipt of such salary payments "overt acts" for the purpose of defining the conspiracy's temporal scope. 867 F.2d at 61. The Doherty panel (per Breyer, J.) acknowledged that higher salary payments were an objective of the conspiracy and were received within the relevant time frame; the legal question, then, was "whether each defendant's receipt of salary payments ... can count as an 'overt act' for statute of limitations purposes." Id. The panel set the stage by noting:

    It may seem reasonable to say that the act of receiving a conspiratorial objective is part of the conspiracy, where the receiving consists of one action, or a handful of actions, taking place over a limited period of time, or where some evidence exists that the special dangers attendant to conspiracies, the dangers of "concerted" activity and "group association" for criminal purposes, remain present until the payoff is received.

    Id. Judge Breyer then turned to the other side of the coin:

    [W]here receiving the payoff merely consists of a lengthy, indefinite series of ordinary, typically noncriminal, unilateral actions, such as receiving salary payments, and there is no evidence that any concerted activity posing the special societal dangers of conspiracy is still taking place, we do not see how one can reasonably say that the conspiracy continues.

    Id. Any other stance "would for all practical purposes wipe out the...

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