U.S. v. Awon, 96-1916

• Decision Date: 07 November 1997
• Docket Number: No. 96-1916,96-1916
• Citation: 135 F.3d 96
• Parties: 48 Fed. R. Evid. Serv. 956 UNITED STATES of America, Appellee, v. Fred AWON, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 96

135 F.3d 96

48 Fed. R. Evid. Serv. 956

UNITED STATES of America, Appellee, v. Fred AWON, Defendant, Appellant.

No. 96-1916.

United States Court of Appeals First Circuit.

Heard Nov. 7, 1997.

Decided Feb. 2, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 25, 1998.

Robert A. George, Boston, MA, for appellant.

James F. Lang, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, Boston, MA, was on brief, for appellee.

Before STAHL, Circuit Judge, COFFIN and ALDRICH, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

Defendant Fred Awon appeals his conviction for arson, use of a fire to commit a felony, and mail fraud. He asserts that the district court erred in: (1) admitting prior consistent statements of two government witnesses; (2) limiting cross-examination of a witness; (3) refusing to grant a mistrial after improper cross-examination of defendant; and (4) imposing too high a base offense level at sentencing. Most of this opinion deals with the first issue. We fault the government for pressing admission and the court for admitting the evidence, but conclude that the error could not have affected the verdict. We affirm.

I. BACKGROUND

Defendant was convicted by a jury for twice orchestrating the arson of a building located on Ames Street in Brockton, Massachusetts ("the Ames building") by hiring James St. Louis, and two brothers, Jorge and Joaquim Neves, to set the fires. ¹ The Ames building, owned by defendant and his father, contained vacant retail space on the first floor and two occupied residential apartments on the second floor at the time of both fires. The first fire caused minimal damage; the second required the demolition of the building and two adjacent buildings.

We review the evidence presented at trial by defendant and the government. Because defendant does not challenge the sufficiency of the evidence, we describe the relevant evidence without favor to either party to provide context for the claimed errors. See United States v. Morla-Trinidad, 100 F.3d 1, 2 (1st Cir.1996).

A. The Neves Brothers

Jorge testified that, in mid-1994, St. Louis recruited him to help set fire to the building, stating that they would receive money and a car as payment from defendant, who owned a used car dealership. Jorge admitted to pouring and lighting gasoline on the first floor of the building, at the direction of St. Louis. Firefighters arrived shortly thereafter, preventing damage to the building; as a result, Jorge never received payment from defendant.

Jorge's testimony also revealed that the government agreed not to prosecute him in exchange for his cooperation in court, that for the past six months he had been held in custody as a material witness and wanted to be released, and that he had several criminal cases pending against him at the time of trial.

Joaquim testified that, in the summer of 1994, he learned from St. Louis' brother that defendant was looking for someone who would burn down the Ames building. Joaquim reported that he agreed to set the fire in exchange for $5,000, and then solicited St. Louis' assistance; but, an illegal immigrant, he was detained by the United States Immigration and Naturalization Service (INS) before he could act. After his release on bail, he and St. Louis told defendant they would set the fire. Joaquim testified that he witnessed defendant agree to pay St. Louis with a car valued at $2,900. Joaquim admitted pouring gas on the first and second floors of the Ames building, which was then lit by St. Louis, resulting in an explosion and fire that destroyed the building.

Joaquim also testified that, the day after the fire, he and St. Louis went to defendant's shop, where St. Louis signed paperwork for the car. The following day, Joaquim went with St. Louis to get the car from defendant, and a few days later, he personally received $2,100 in cash from defendant.

Joaquim reported that, in exchange for his testimony and a guilty plea, the government would request that the court depart downward from his guidelines sentence. He also acknowledged that he feared impending deportation, and that he had an extensive criminal history.

Defendant denied soliciting either of the Neves brothers to commit arson. He explained that Joaquim had become angry with him sometime prior to the fire because defendant had refused to provide him with bail from INS custody, and had twice ordered Joaquim off his car lot. On the first occasion, about two weeks before the second fire, Joaquim told defendant that he wanted to buy an expensive car, and became angry when defendant questioned him about where he would get the money; the second time, when defendant asked Joaquim whether he had been involved in the fire, Joaquim responded in the negative, but smirked suspiciously. On cross-examination, defendant stated that he did not tell the police when they interviewed him before trial about any existing hostility between himself and Joaquim.

St. Louis' brother denied having any conversation with defendant or Joaquim about burning defendant's property.

B. The Car Transfer

In addition to Joaquim's testimony that defendant paid St. Louis with a car, the government introduced into evidence business records belonging to the defendant's auto company. These indicate that defendant sold a car to St. Louis for $2,000 one day after the second fire. They also indicate that, a few months earlier, the company had purchased that same car for $2,220.

Defendant testified that the sale to St. Louis was a legitimate one, for which he received $2,000 in cash. He explained that he sold at a loss because the car had mechanical problems and had failed to sell for a few months at the intended price of $3,500. Defendant said that he questioned St. Louis about the source of the $2,000, and that St. Louis refused to answer him. ²

Joaquim's mother testified that, when her son was in INS custody, she gave St. Louis $1,000 toward the $3,000 needed for his bail and, the following day, Joaquim was released. The defense argued that this evidence showed, inferentially, that St. Louis had supplied the remaining $2,000, which, as soon as Joaquim repaid it, St. Louis used to buy the car from defendant. On cross-examination by the government, Joaquim's mother stated that she did not know whether St. Louis put up any money for Joaquim's release on bail from INS custody.

C. Motive

The government introduced evidence showing that the Awons were losing money on the Ames buildings and, at the time of both fires, the property was insured for loss to the structure of up to $80,000, and losses attributable to business interruption of up to $12,000. After the first fire, defendant and his father negotiated an insurance settlement in the amount of $4,171. After the second fire, they negotiated a settlement totalling $91,176, and then used this money to pay their mortgage on the property.

Defendant's parents testified that all of the money invested in the Ames building belonged to them, that their son had no responsibility for financial expenditures related to the building, and that he had never received rental income from the apartments. They explained that their son's name was included on the deed and mortgage only because they did not speak English fluently and needed their son's assistance to translate the documents. They described their son's involvement with the property as limited to showing the apartments to prospective tenants and responding on occasion to maintenance requests. They also stated that they, not their son, received the settlement money after the fires.

Defendant testified that, while a co-owner of the Ames building, he did not put up any of the purchase money, make any mortgage payments, or pay taxes on the property. On cross-examination, however, the government introduced evidence that defendant had made at least one mortgage payment on the property. Defendant then stated that he could not remember having made any other mortgage payments. He also admitted that his name was listed on the settlement check from the insurance company, but maintained that his father received all the proceeds.

II. ADMISSION OF THE NEVES' OUT-OF-COURT STATEMENTS

The first and only difficult issue we consider in this case is the admission at trial of out-of-court statements made by the Neves brothers. Each brother made a written and oral statement to police months before trial, implicating himself, St. Louis and defendant in the respective arsons. These statements, which were otherwise inadmissible as hearsay, were admitted at trial under an exception for prior consistent statements. We generally review admission of hearsay evidence for abuse of discretion. United States v. Paulino, 13 F.3d 20, 25 (1st Cir.1994). But where, as here, the issue concerns a factual determination, such as when the statement was made relative to a suggested motive to fabricate, we review for clear error. See United States v. Vest, 842 F.2d 1319, 1329 (1st Cir.1988). We may affirm the district court's admission of hearsay testimony on any ground apparent from the appellate record. United States v. Alzanki, 54 F.3d 994, 1008 (1st Cir.1995).

A. Rule 801(d)(1)(B)

The district court allowed use of the Neves' out-of-court statements under Fed.R.Evid. 801(d)(1)(B). Under that rule, prior consistent statements that would otherwise be inadmissible hearsay evidence may be admitted into evidence when: (1) the declarant testifies at trial and is subject to cross-examination; (2) the challenged statements and trial testimony are consistent; and (3) the challenged statements are offered to rebut a charge that the declarant recently fabricated his story, or that the declarant became subject to some improper influence or motive to falsify after making the statements. See Tome v. United States, 513 U.S. 150, 158, 115 S.Ct. 696, 701, 130 L.Ed.2d 574 (1995) (holding that consistent out-of-court statements may be...