U.S. v. Carroll, 88-1028

• Decision Date: 02 November 1988
• Docket Number: No. 88-1028,88-1028
• Citation: 860 F.2d 500
• Parties: 26 Fed. R. Evid. Serv. 1310 UNITED STATES of America, Appellee, v. Richard A. CARROLL, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 500

860 F.2d 500

26 Fed. R. Evid. Serv. 1310

UNITED STATES of America, Appellee, v. Richard A. CARROLL, Defendant, Appellant.

No. 88-1028.

United States Court of Appeals, First Circuit.

Argued June 7, 1988.

Decided Nov. 2, 1988.

Robert B. Mann, Providence, R.I., for defendant-appellant.

Edwin J. Gale, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for appellee.

Before COFFIN and BREYER, Circuit Judges, and ACOSTA, ^* District Judge.

ACOSTA, District Judge.

Richard A. Carroll ("appellant") appeals the District Court's denial of his motion for a new trial. He was convicted by a jury for violations of the Hobbs Act. 18 U.S.C. Sec. 1951. We affirm the judgment.

PROCEDURAL BACKGROUND

Appellant and codefendant Joseph DiSanto ("DiSanto") were charged with conspiracy to violate and a substantive violation of the Hobbs Act. Their first trial resulted in a jury verdict of guilty on all counts against both appellant and DiSanto, which was set aside by the trial judge who granted their motions for a new trial.

After some procedural matters which are not relevant herein were disposed of, appellant and DiSanto were re-tried.

In their second trial, appellant was once again convicted on both counts and DiSanto was acquitted of all charges. The trial judge granted appellant's motion to vacate the conspiracy conviction based on DiSanto's acquittal, but he declined to order a new trial as to the substantive count. United States v. Carroll, Cr. No. 85-0022(P), slip opinion (D.R.I. October 29, 1987).

Appellant claims that a third trial is warranted because the trial judge erred (1) in admitting into evidence statements attributed to his co-conspirator, (2) in admitting into evidence copies of two checks, and (3) in giving undue prominence to these checks by first admitting them, then excluding them, and finally allowing them back into evidence.

The district judge found that there was enough independent evidence to support the conviction, and did not address the possibility of error in the admission of the checks or of DiSanto's statements. He found that the main witness' testimony in the new trial was credible and that his (the witness') possible deal with the government (which gave him a reason to lie) had been disclosed to the jury which chose to believe the testimony. He was not willing to conclude that the jury acted unreasonably in believing the star witness.

A denial of a motion for a new trial ¹ will only be reversed if such denial would result in a "miscarriage of justice or * * * the evidence heavily preponderates against the verdict." United States v. Thornley, 707 F.2d 622, 626 (1st Cir.1983). As discussed below, we hold that the court's refusal to grant the motion for a new trial was proper but on the slightly different ground that we simply find no error in the rulings regarding the coconspirator statements and the admissibility of the duplicates of two bribe checks.

FACTUAL BACKGROUND

The government charged that appellant, who was the Chairman of the Water Supply The star witness for the prosecution was Robert J. Riccitelli ("Riccitelli") the owner and operator of Elaine Plumbing and Heating Company, Inc. ("Elaine").

Board of the City of Providence, Rhode Island, and DiSanto, who was the Director of the Department of Public Works, demanded and received kickbacks from the owner of a plumbing company in return for a $79,000 contract to replace a boiler at the Board's offices. The contract was awarded in 1979 and the work was completed in 1980.

Riccitelli testified that he started to attend local political functions in order to improve his chances of obtaining government contracts. As part of this strategy, he purchased tickets to the Sixth Ward "Republican Italian Night" fund-raising function at Caruso's Restaurant in Providence. While there, DiSanto "caught [Riccitelli's] eye and asked [him] to come over to where he [DiSanto] was standing with Mr. Carroll." DiSanto asked Riccitelli whether or not he would be interested in a "large job" for the Water Supply Board, to which he replied affirmatively. While appellant silently stood at arms-length near the bar at Caruso's, DiSanto explained the kickback scheme, which Riccitelli described at trial as follows:

Okay. At this point, Mr. DiSanto had told me that it was a large job, and if I wanted it I could have it, and with conditions that if I accepted, that there would be a kickback on the job. It was a 15 or 20 percent for the job, I forgot, to make me low, and 50 percent for any extras, that I would have to determine what they would be. He agreed to that, and then I accepted it.

In other words: the contractor had to pay a bribe to get the contract, fifteen percent (15%) of the contract amount if he was the low bidder, and twenty percent (20%) if appellant and DiSanto had to make him the low bidder; plus fifty (50%) of the charges for the so-called "extras," i.e., work not contemplated in the original contract. Riccitelli demanded and received the right to determine what the extras would be, and thereafter he accepted the arrangement.

Later, in a meeting at his city hall office, DiSanto told Riccitelli that a bid in the eighty to ninety thousand dollar range would probably get him the job.

During a conversation with either appellant or DiSanto, ² Riccitelli was told that the matter of a required performance bond, which he had been unable to obtain, "would be taken care of." The contract was signed and no bond was ever demanded although it was normally required on such contracts.

Some time thereafter, Riccitelli called appellant to ask about a "progress payment," i.e., partial payment for work already completed on the contract. Riccitelli requested about $30,000 in order to pay for labor and materials costs actually incurred, but appellant told him to request more so he (appellant) could get his bribe money. A few days later, appellant called Riccitelli to ask when he (Riccitelli) would deliver the kickback money to appellant. Riccitelli advised appellant it would be delivered in a few days. Shortly thereafter, Riccitelli received a $45,000 check from the city of Providence which he deposited in Elaine's checking account. Riccitelli then obtained $11,000 ³ in cash and delivered the kickback money to appellant at his place of business, a jewelry store in Providence.

Riccitelli then made up an inflated bill for extra work and submitted the pertinent invoice to the City in the amount of $18,425. Later, Riccitelli called appellant requesting payment. Some time after that, the city paid Riccitelli in full even though the architect who had done the design work for the job reviewed the invoice and told appellant that he "was being ripped off" by the contractor. Soon after he had received the money for the extras, appellant called Riccitelli to ask when the fifty percent kickback would be paid. Riccitelli again replied that he would deliver the money in a few The kickback scheme was uncovered when Riccitelli was subpoenaed by a Grand Jury investigating corruption in the Providence City government. In 1984, he testified before a Grand Jury under a grant of "use immunity." ⁵ Riccitelli's testimony at trial was also given under a grant of full immunity. ⁶

days. Several days later, Riccitelli delivered $9,212.00 in cash ⁴ to appellant's store.

The mishandling of Elaine's funds, the doctoring of its financial records, ⁷ as well as Riccitelli's tax evasion conviction became important issues at appellant's trial for the following reasons: (1) Riccitelli's testimony about pay-offs to appellant was supported by introducing copies of several checks into evidence, and (2) the defense argued that Riccitelli made-up the kickback scheme in order to cover up conversions of moneys from Elaine's account to his personal use.

Two of the checks, Exhibits 7 and 8, were prints of the microfilm records of the bank from which they were issued. There were two checks for $4,606.00 paid to "cash" for a total of $9,212.00. Riccitelli testified that these checks were used to generate the cash for appellant's kickback on the extras ($9,212.00 is approximately half of the $18,425 that the City paid for extras).

A bank custodian of records presented the prints and described them as true and accurate copies of records kept in the regular course of business, i.e., microfilm copies of all checks drawn from their customer's accounts. The checks were first admitted into evidence contingent upon their being properly identified by the person who wrote and cashed them. When Riccitelli testified that he could not say whether the signature on the checks was written by him or by Martin (since either one of them signed Elaine checks using Riccitelli's name), the judge excluded the exhibits and instructed the jury as follows:

* * * [Exhibits] 7 and 8, you were shown those two checks earlier in the day. You're shaking your head[§ in the affirmative] * * *. Those checks are stricken from this record. The exhibits, as exhibits, are stricken from the record. They have proven to have no relevancy, no nexus, no connection with the testimony in this case and play no part in the evidence that you are to consider at the conclusion of this trial. Do all understand me clearly? I don't even want those checks as being discussed at anytime, because they just simply are no part of this case and have nothing to do with this case. They're stricken from the record, is that clear? Okay.

However, after further testimony and argument on the matter, the trial judge ruled that the evidence was admissible under the Federal Rules of Evidence. He first found that the checks were what they purported to be, i.e., checks drawn on Elaine's bank account, and that the jury would decide the question of how the funds obtained through those checks were used. The judge then ruled that the checks were relevant and that their probative value was not substantially outweighed by the...