U.S. v. Arruda

• Decision Date: 12 August 1983
• Docket Number: Nos. 82-1295,82-1297,s. 82-1295
• Citation: 715 F.2d 671
• Parties: 13 Fed. R. Evid. Serv. 1979 UNITED STATES of America, Appellee, v. John M. ARRUDA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Edward RINGLAND, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 671

715 F.2d 671

13 Fed. R. Evid. Serv. 1979

UNITED STATES of America, Appellee, v. John M. ARRUDA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Edward RINGLAND, Defendant, Appellant.

Nos. 82-1295, 82-1297.

United States Court of Appeals First Circuit.

Argued April 6, 1983.

Decided Aug. 12, 1983.

Jeffrey S. Entin, Fall River, Mass., with whom Sahady, Entin & Entin, P.C., Fall River, Mass., was on brief, for John M. Arruda.

John J. Bonistalli, Boston, Mass., with whom Carhart, Bonistalli & McCarthy, Boston, Mass., was on brief, for Edward Ringland.

Amos Hugh Scott, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Mark E. Robinson, Asst. U.S. Atty., Boston, Mass., were on brief, for appellee.

Before COFFIN and BOWNES, Circuit Judges, and TAURO, ^* District Judge.

BOWNES, Circuit Judge.

Defendants-appellants John Arruda and Edward Ringland were each found guilty by a jury of one count of conspiracy, 18 U.S.C. § 371, ¹ and one count of violating the Travel Act, 18 U.S.C. § 1952. ² They raise the following issues on appeal: (1) whether defendants and offenses were properly joined in one indictment and tried at one trial; (2) whether there was sufficient evidence to convict Arruda on the conspiracy and Travel Act counts and Ringland on the Travel Act count; (3) whether defendants are entitled to a new trial because two key government witnesses were in contact with each other during the trial and before one testified; (4) whether certain evidence was properly admissible against Arruda; (5) whether the trial court erred in its instructions to the jury concerning multiple versus single conspiracies; (6) whether the government failed to produce Brady material for Ringland; and (7) whether the trial court erred in refusing to admit evidence offered by Arruda. We find no error and affirm the defendants' convictions.

The convictions stem from defendants' involvement in a scheme to obtain kickbacks from renovation work performed for the Fall River Housing Authority (FRHA). During the relevant time period Arruda served as Executive Director of the FRHA and Ringland was a Modernization Specialist at the Massachusetts Department of Community Affairs (DCA). The facts, viewed in the light most favorable to the government are as follows:

William Hammond, an engineer from New York, was interested in obtaining architectural/engineering contracts in the Fall River area. He met Owen Eagan, then the Chairperson of the FRHA, through a mutual friend in 1977. Eagan, after discussions with Joseph DiSanti, then the Assistant Executive Director of FRHA, agreed to award architectural/engineering work to Hammond in return for a kickback. An acquaintance of Hammond, Robert Olshever, agreed to become Hammond's partner for the Fall River work, and they formed Hammond Associates, Incorporated. Olshever was to be responsible for carrying out the work in Fall River.

The first project awarded to Hammond Associates was for renovation work at FRHA's Sunset Hills housing project. In return for award of the contract, Hammond paid Eagan a total of $8,000. Hammond understood that part of this money was used to pay off "the main people" at FRHA, such as Arruda and DiSanti. ³

In early 1978 Hammond Associates contracted with FRHA for architectural/engineering services in connection with renovation work at three FRHA housing projects. Prior to entering the contract, Hammond, Olshever, Eagan, and DiSanti agreed to a kickback arrangement, similar to the one for Sunset Hills. The work involved replacement of windows at the Maple Garden, Pleasant View, and Watuppa Heights projects, as well as siding work at Watuppa Heights. This contract was funded by DCA, and Ringland was appointed the DCA Modernization Specialist for the work. The Modernization Specialist's job was to ensure that the project progressed smoothly and that the paperwork concerning the bids and contracts entered into by FRHA complied with all legal and fiscal requirements.

Ringland met Hammond and Olshever in the spring or early summer of 1978 over lunch in Fall River. Ringland and Olshever met frequently throughout the summer to discuss the plans and specifications to be used in bidding for the window projects. The final plans and specifications were completed in August 1978 and then submitted to DCA. Olshever's final draft specified use of an A-2 window (an industry standard) and mentioned American Aluminum Window Corp.'s window as a typically acceptable window for the job. Olshever included this specific window and manufacturer at Ringland's instruction.

Before the project was open for public bidding, Ringland introduced Olshever to Michael Sullivan of A.A. Windows, a window installer, who was interested in bidding on the project. A.A. Windows purchased its windows from American Aluminum, the company Ringland directed Olshever to name in the bid specifications. Olshever showed Sullivan around the project sites, but Sullivan, it turned out, was unable to bid on the project. At that point DiSanti suggested that Olshever look for "friendly contractors." Olshever had heard that term before in conversations with Ringland and Eagan. DiSanti had defined the term as a contractor that was willing to make kickbacks.

Olshever turned to a New York acquaintance, Peter Savino, for assistance in finding a contractor for the window installation job. Savino referred Olshever to Peter Van Oss, the principal of Parkway Windows, Inc., a New York window installation company. In discussing the project with Van Oss, Olshever explained that when Parkway submitted its bid, it had to include an extra $45,000 as the architects' fee. Olshever stated that "plans for that money were that $30,000 would be going back to the Housing Authority, $2,000 was going back to Pete Savino as a finder's fee, and the balance was going to be split by [him]self and Mr. Hammond."

Olshever brought Van Oss to Fall River to see the three project sites, and thereafter they dined with DiSanti, Eagan, and Ringland. The purpose of this meeting was for these government officials to confirm that with Olshever's assistance, Van Oss "would stand a better than average chance of getting [the contract]," despite the project's being publicly bid. Olshever arranged a meeting for himself, Hammond, and Van Oss; after this meeting Van Oss agreed to submit a bid.

At a later point that August FRHA publicly advertised the bid. Shoor Elias Glass Company was interested in bidding on the contract, but wanted to use a window that differed from the one called for in the specifications. Shoor Elias contacted Olshever, and Olshever referred Shoor Elias to DiSanti. Olshever then discussed Shoor Elias' interest with DiSanti, and they agreed not to discourage Shoor Elias since it would look better to have at least one contractor in addition to Parkway bid on the work.

When the bids were opened on September 29, 1978, Shoor Elias was the low bidder at $730,000. Parkway's bid was $829,000. Acting on Hammond Associates' recommendation, FRHA disqualified Shoor Elias because the window they proposed to use did not conform to the project specifications. FRHA then voted to award the contract to Parkway.

Reacting to this turn of events, Shoor Elias filed a protest with the Massachusetts Department of Labor and Industries (DLI) alleging that Olshever had misled them into believing their proposed window was an acceptable alternative. Olshever discussed the protest with DiSanti and Ringland, and they all agreed that Olshever could best meet the allegations by filing an affidavit rebutting the claims. DLI eventually upheld the disqualification of Shoor Elias, exonerating Olshever. Eagan expressed his surprise at the results of the protest to Ringland, who replied "that Parkway owed him [Ringland] a great deal for his help that he had given Parkway in order for them to be qualified and have Shoor Elias disqualified...."

Olshever learned about the DLI decision from Ringland at lunch on November 1, 1978. At that meeting Olshever informed Ringland that Parkway was interested in substituting its own window for the American Aluminum window called for in the specifications for the FRHA projects. Ringland said that this would cost Parkway an additional $25,000 and assured Olshever that the fee would cover not only this job, "but [Parkway's window] would be recommended to be put in the specs of all the other window contracts that would be coming out in the state." ⁴

Olshever returned to New York that same day to report to Van Oss. Van Oss realized he was in over his head and decided that Parkway could not go through with the contract. This left Olshever in somewhat of a bind, and he immediately contacted Savino. They arranged a meeting for the following day to be attended by themselves, Hammond, and Van Oss. When Van Oss persisted in his refusal to perform under the contract, Savino, Hammond, and Olshever decided to set up another Parkway Window Corporation [Parkway II] to do the work in Fall River. They agreed that it would be Savino's corporation, and Hammond and Olshever would receive ten percent of the contract price, roughly $82,000. Olshever intended to use the $82,000 as follows: $32,000 was to go to the people at FRHA, $25,000 to Ringland, and the remainder, about $25,000, would be split between Hammond and Olshever.

On November 6, 1978, Parkway II received a certificate of incorporation from Delaware. Parkway II faced an immediate problem. It needed payment and performance bonds, which were required to be submitted to FRHA within thirty days after the contract award. These documents, along with the contract between FRHA and Parkway, had to be submitted to DCA for final approval. Unable to obtain legitimate performance and payment bonds, Olshever manufactured phony bonds in his basement in New York using facsimiles of legitimate bonds provided to him by Ringland. Olshever was assisted by William Sceviour, Savino's...