U.S. v. Connolly, No. 02-2201.

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Lipez
• Citation: 341 F.3d 16
• Parties: UNITED STATES, Appellee, v. John J. CONNOLLY, Jr., Defendant, Appellant.
• Decision Date: 14 August 2003
• Docket Number: No. 02-2201.

341 F.3d 16 UNITED STATES, Appellee,
v.
John J. CONNOLLY, Jr., Defendant, Appellant. No. 02-2201. United States Court of Appeals, First Circuit. Heard May 9, 2003. Decided August 14, 2003.

Page 17

COPYRIGHT MATERIAL OMITTED

Page 18

COPYRIGHT MATERIAL OMITTED

Page 19

Before LIPEZ, Circuit Judge, PORFILIO, Senior Circuit Judge,^* HOWARD, Circuit Judge.

Andrew Nathanson, with whom Tracy A. Miner, John J. Tangney, Jr., and Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. were on brief, for appellant.

William J. Nardini, with whom John H. Durham and Michael J. Sullivan, United States Attorney, were on brief, for appellee.

LIPEZ, Circuit Judge.

At the conclusion of a three week trial, a federal jury found former Federal Bureau of Investigation ("FBI") agent John J. Connolly, Jr., guilty of one count of racketeering under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c), two counts of obstruction of justice, 18 U.S.C. § 1503, and one count of making false statements, 18 U.S.C. § 1001. The district court subsequently imposed a sentence of 121 months of imprisonment, followed by a two-year period of supervised release. Connolly now appeals his RICO conviction, arguing that he is entitled to a judgment of acquittal on the RICO charge because the government failed to prove two critical elements of its RICO charge — participation in an "enterprise," and a "pattern of racketeering activity." See id. § 1961(4), (5) (defining "enterprise" and "pattern of racketeering activity").¹

Connolly also appeals his sentence, arguing that the district court erred in its calculation of the applicable offense level pursuant to sections 2E1.1, 2J1.2, and 2X3.1 of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"). Finally, Connolly argues that the district court erred when it denied his request to convene a post-verdict evidentiary hearing to inquire into the propriety of alleged note-taking by jurors. He asks that we remand the case to the district court for an inquiry into possible juror misconduct.

Finding no reason to disturb Connolly's conviction or sentence or to remand to the district court, we affirm.

Page 20

I.

We provide some general background facts here, saving our more detailed discussion of the evidence for our assessment in Part II of Connolly's claims of evidentiary insufficiency. Connolly joined the FBI in 1968; from 1973 until 1990 he served as an agent in the Bureau's Boston office. During his tenure, he was responsible for handling several high-ranking, confidential informants with connections to two criminal syndicates — the Winter Hill Gang, and the New England branch of La Cosa Nostra. According to the government, the Winter Hill Gang is a "clandestine criminal organization engaged in multiple crimes, including murder, bribery, extortion, loan sharking, and illegal gambling in the greater Boston, Massachusetts area." La Casa Nostra — a considerably larger, better known, and more established criminal organization — similarly engages in illegal activities in and around Boston. Despite the fact that the Winter Hill Gang and La Cosa Nostra were often rivals, members of the two groups frequently cooperated in criminal undertakings.

Two of the informants for whom Connolly was responsible, James Bulger and Stephen Flemmi, were members of the Winter Hill Gang. Bulger and Flemmi reported on the activities of both the Gang and La Cosa Nostra for over a decade. Shortly after Connolly retired from the FBI in 1990, however, Bulger and Flemmi were "closed" as FBI informants — i.e., the FBI no longer desired their services.

After Bulger and Flemmi ceased to serve as informants, their involvement with the Gang's criminal activities nonetheless continued. For example, at some point in the early 1990s, Flemmi, working with the "boss" of La Cosa Nostra's Boston family, Frank Salemme, ran an illegal "numbers" operation in the Boston area. On January 10, 1995, a federal grand jury indicted Bulger, Flemmi, Salemme, and several other persons for multiple counts of illegal gambling, extortion, assault, bribery, obstruction of justice, loansharking, and RICO violations. See United States v. Salemme, No. 94-CR-10287-MLW-2 (D.Mass. Jan. 10, 1995) (indictment). Flemmi was quickly arrested and taken into custody. Bulger and Salemme, however, forewarned of the pending indictment, disappeared a few days before its issuance. The authorities apprehended Salemme eight months later. Bulger remains at large.

The instant criminal proceeding began in December 1999, when another federal grand jury indicted Flemmi and Connolly on charges of racketeering, obstruction of justice, and conspiracy.² A superceding indictment was filed in October 2000 with additional charges of obstruction of justice and making a false statement. According to the superceding indictment, Connolly had led a double-life for over two decades. While serving as an FBI agent, Connolly had been intimately involved in the criminal activities of the Winter Hill Gang and its members, receiving and making bribes from and on behalf of members of the Gang. Even after his retirement from the Bureau, Connolly allegedly continued to exploit his connections within the Bureau to become privy to confidential information that he would then pass along to members of the Winter Hill Gang.

Specifically, the superceding indictment included nine counts, which we summarize as follows:

Page 21

Counts 1 & 2 — RICO and Conspiracy to Violate RICO, alleging that Connolly had, through a pattern of racketeering activity, participated in the affairs of an association-in-fact enterprise whose members included Bulger, Flemmi, himself, and unidentified others. The purpose of the enterprise was to protect Bulger, Flemmi, and their associates (including Salemme and members of the Winter Hill Gang) from arrest and prosecution, and to facilitate their criminal activities. The two counts detail fourteen different "racketeering acts," including allegations of bribery, extortion, and obstruction of justice.

Count 3 — Conspiracy to Obstruct Justice, alleging that Connolly and Flemmi, together with others, had conspired to obstruct justice in the prosecution of Bulger, Flemmi, and Salemme in United States v. Salemme.

Count 4 — Obstruction of Justice, alleging that Connolly had informed Salemme of the pending indictment in United States v. Salemme.

Count 5 — Obstruction of Justice, alleging that Flemmi had also provided Salemme with news of the pending indictment.

Count 6 — Obstruction of Justice, alleging that Connolly had caused an anonymous letter to be sent to Judge Mark Wolf who was presiding over United States v. Salemme. The letter purported to come from three unnamed Boston Police Officers and credited certain claims made by the defense.

Counts 7 & 8 — Obstruction of Justice, alleging that Connolly had persuaded Flemmi to give false testimony in United States v. Salemme. Specifically, Connolly persuaded Flemmi to testify that another FBI agent — and not Connolly — had alerted him and Bulger to the pending indictment.

Count 9 — False Statement, alleging that Connolly had lied to an FBI agent when he told the agent that he had not been in contact with the defense team in United States v. Salemme.

Flemmi ultimately pleaded guilty to Counts 3 and 5 (the only two counts in which he was named) and was sentenced to 41 months of imprisonment.

In May 2002, the trial against Connolly began on Counts 1, 4, 6, 7, and 9.³ At the close of the government's case and at the close of all of the evidence, Connolly moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29. The court denied the motions. The jury returned guilty verdicts against Connolly on four of the five counts at issue — Counts 1, 6, 7 and 9 — and acquitted on Count 4. Connolly renewed his Rule 29 motion after the verdict, and the court once again denied it.

On September 16, 2002, the district court sentenced Connolly to a term of incarceration of 121 months followed by a two-year period of supervised release. The district court denied Connolly's request for release on bail pending appeal, and we denied a similar, subsequent application. We now address Connolly's arguments of error by the trial court.

II.

Connolly claims that he is entitled to a judgment of acquittal on the RICO count because the government failed to present sufficient evidence to prove beyond a reasonable doubt two essential elements of the RICO charge: (1) Connolly's participation

Page 22

in an "enterprise," and (2) a "pattern of racketeering activity," as defined by statute and applicable case law. See 18 U.S.C. § 1961(4), (5).

In evaluating a claim of insufficiency of the evidence, we review the record de novo, and "[w]e will affirm the conviction if, `after assaying all the evidence in the light most amiable to the government, and taking all reasonable inferences in its favor, a rational factfinder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements of the crime.'" United States v. Boulerice, 325 F.3d 75, 79 (1st Cir.2003) (quoting United States v. O'Brien, 14 F.3d 703, 706 (1st Cir.1994)). We "need not believe that no verdict other than a guilty verdict could sensibly be reached." United States v. Gomez, 255 F.3d 31, 35 (1st Cir.2001) (quoting United States v. Echeverri, 982 F.2d 675, 677 (1st Cir.1993)). Rather, the operative inquiry is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (original emphasis).

To that end, a reviewing court must play "a very circumscribed role in gauging the sufficiency of the evidentiary foundation upon which a criminal conviction rests." United States v. Blasini-Lluberas, 169 F.3d 57, 62 (1st...