U.S. v. Sabatino

• Decision Date: 05 April 1991
• Docket Number: 90-2192,Nos. 90-2191,s. 90-2191
• Citation: 943 F.2d 94
• Parties: UNITED STATES of America, Appellee, v. Diane SABATINO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Joseph SABATINO Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 94

943 F.2d 94

UNITED STATES of America, Appellee, v. Diane SABATINO, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Joseph SABATINO Defendant, Appellant.

Nos. 90-2191, 90-2192.

United States Court of Appeals First Circuit.

Heard April 5, 1991.

Decided Aug. 15, 1991.

Rehearing Denied Sept. 23, 1991.

Richard Abbott, for appellant Diane Sabatino.

Jeffrey A. Denner, Denner & Associates, for appellant Joseph Sabatino, with whom Marie Elena Saccoccio, was on brief.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty. and Thimi R. Mina, Asst. U.S. Atty., were on brief for appellee.

Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and TORRUELLA, Circuit Judge.

TORRUELLA, Circuit Judge.

During 1988 and 1989 appellants Joseph Sabatino and his wife Diane, a former prostitute, operated a number of escort services in the State of Maine which had clients in New Hampshire and Massachusetts and accepted payments through American Express. On March 14, 1990, a federal grand jury returned an eleven count indictment charging Joseph Sabatino with seven instances of knowingly causing, aiding and abetting the transportation of individuals across state lines for purposes of prostitution in violation of the Mann Act, 18 U.S.C. §§ 2421 & 2422, and three counts of aiding and abetting the use of a facility in interstate commerce (the American Express collection process) to promote, manage, establish, carry on and facilitate prostitution in violation of 18 U.S.C. §§ 1952(a) & (b) and 18 U.S.C. § 2. The first count of the indictment also charged Diane Sabatino and her husband with conspiracy to commit these two offenses in violation of 18 U.S.C. § 371. After three days of trial, the jury found both appellants guilty on all counts. The Sabatinos appeal both their convictions and their sentences. We address each challenge in turn.

I

The Sabatinos present four grounds on which to reverse their convictions. Diane presents three on her own behalf, specifically: that the district court erred in refusing to grant her motion for severance; that she was convicted on the basis of insufficient evidence; and that a particular violation of Fed.R.Evid. 403 & 404(b) warrants a new trial. Moreover, both Joseph and Diane submit that the district court's incorrect charge to the jury caused them to be convicted of a crime which did not actually exist. We address these matters in turn.

Denial of Motion for Severance

In determining the propriety of trying two or more defendants together, we must initially look to Fed.R.Crim.P. 8(b). Rule 8(b) provides that defendants may be tried together "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions, constituting an offense or offenses." See United States v. Sutherland, 929 F.2d 765, 778 (1st Cir.1991). Even where joinder is proper under the rule, however, a defendant may still obtain a severance if he or she can show that substantial prejudice, amounting to a miscarriage of justice, would result from a joint trial. United States v. Perkins, 926 F.2d 1271, 1280 (1st Cir.1991). Since the decision to grant or deny severance is a matter committed to the sound discretion of the trial judge, we will interfere with the trial court's determination only upon a showing of manifest abuse. United States v. Martinez-Vidal, 922 F.2d 914, 922 (1st Cir.1991).

In her attempt to establish prejudice, Diane submits that the prosecution's two most damaging witnesses, prostitutes Leola Sirois and Kelly Cook, failed to even mention her during their testimony. Sirois was 19 years old when she was assigned a prostitution call by Joseph Sabatino which resulted in her being abducted and held for twenty-four hours. When she explained to Joseph what had happened, he responded initially with laughter, then anger at the fact that she had missed a number of other calls. Cook, age 20, was brutally raped when Joseph assigned her to a regular customer named Mike Vaccaro. From Vaccaro she learned that Joseph had billed her as a "girl that looked as a Las Vegas showgirl and ... liked it rough." When Cook confronted Joseph with this information, he first demanded his share of the fee, then showed total indifference towards her situation. Diane claims that the horrifying nature of these experiences, Joseph's indifferent attitude toward them, and the dangers of guilt by association, impeded the jurors from determining her culpability fairly, impartially and solely on the basis of the evidence admissible against her. ¹

The problem with Diane's argument is this. Although the evidence she cites primarily depicts Joseph's participation in the illegal venture, it was nevertheless also admissible against her under a basic tenet of traditional conspiracy theory, namely, that a conspirator is responsible for acts his or her co-conspirators executed during the existence and in furtherance of the conspiracy. United States v. Crocker, 788 F.2d 802, 806 (1st Cir.1986); United States v. Cranston, 686 F.2d 56, 62 (1st Cir.1982). While this evidence might have been susceptible to a Fed.R.Evid. 403 analysis, see United States v. Shenker, 933 F.2d 61, 63 (1st Cir.1991), even under such a prism we do not deem its prejudicial value to have outweighed its probativeness. Moreover, in its final instructions the court stressed to the jury, as counsel for both sides had already done in closing, its obligation to consider the evidence against each defendant separately, see United States v. Boylan 98 F.2d 230, 246 (1st Cir.1990), thereby adequately safeguarding against any "spillover" effect, see United States v. Silvestri, 790 F.2d 186, 189 (1st Cir.1986). Diane's claim of prejudice thus boils down to a complaint that she was tried with a more culpable defendant. But, as we said in Martinez-Vidal, 922 F.2d at 923:

"[P]rejudice means more than just a better chance of acquittal at a separate trial." United States v. Martinez, 479 F.2d 824, 828 (1st Cir.1973). Incidental prejudice, such as that which is almost always encountered when multiple defendants playing different roles are tried together, will not suffice. United States v. Cresta, 825 F.2d 538, 554-555 (1st Cir.1987), cert. denied, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988).

Finally, we note that the joinder clearly satisfied the requirements of Fed.R.Crim.P. 8(b), since both defendants were alleged to have participated in the same series of acts or transactions constituting the offenses.

All circumstances considered, then, the trial court's denial of severance did not constitute manifest abuse.

Sufficiency of the Evidence

On appeal, we look at the evidence in the light most favorable to the prosecution, drawing all legitimate inferences and resolving all credibility conflicts in its favor. United States v. MacDonald & Watson Oil Co., 933 F.2d 35, 40 (1st Cir.1991). Analyzed from that perspective, the verdict will be upheld if any reasonable trier of fact could have found the elements of the offense beyond a reasonable doubt. United States v. Mena, 933 F.2d 19, 23 (1st Cir.1991). Diane was charged with conspiracy to commit two offenses, to wit, aiding and abetting the transportation of individuals across state lines for purposes of prostitution, and using the American Express accounts to facilitate the commission of that crime. To convict, the jury was required to find that she knowingly agreed to violate these federal laws and that at least one overt act was perpetrated in furtherance of that agreement. United States v. Yamin, 868 F.2d 130, 133 (5th Cir.1989).

Far from being the innocent bystander she portrays herself to be, the evidence presented at trial established that Diane Sabatino played an active role in the prostitution ventures operated by her husband, particularly an escort service operated from Warren Avenue in Westbrook, Maine called "Classic Escort and Massage." Married to the Classic Escort's President, Diane was the company's Vice-President, its second ranking officer, and herself an experienced prostitute. She helped to interview most of the prostitutes who later testified against her and actively discussed effective prostitution techniques with them. Diane lived on the business premises and shared an office with her husband, thus situating herself in a position from which she could oversee and participate in all of the business operations. Several of the prostitutes testified to the fact that Diane was one of the two people (the other one being her husband Joseph) empowered to call American Express for payment authorizations and from whom they had to obtain approval on credit card slips for tips. (Records seized from the company premises demonstrated that Classic Escort collected $39,000 through American Express). A logbook containing the names and numbers of Boston area clients, which was in Diane's handwriting and which she admitted to an FBI agent she maintained, was seized from behind her desk and introduced into evidence, thus proving Diane's awareness of, and her active supervisory involvement in, the interstate aspects of this prostitution ring. Moreover, Diane later became the license holder for "Diana's Health Club," a facility operated by her husband which, although not advertised as a prostitution service, regularly put clients in contact with girls who were willing to have sex for a fee.

The evidence also showed that Diane was the resident trainer, coach and psychological counsellor for the company's employees. For example, when 21-year-old Leslie Ann Tardiff was interviewed by the Sabatinos and confessed to her lack of experience in the escort field, Diane took her into another room for graphic individual instruction with an actual customer. Moreover when Andrea Ross, the company's 19-year-old secretary, expressed anxiety over the prospect of her first prostitution assignment, Diane gave her significant points of advice. When Ross'...