U.S. v. Dunn

Decision Date07 December 1984
Docket NumberNo. 84-1236,84-1236
Citation758 F.2d 30
Parties17 Fed. R. Evid. Serv. 1413 UNITED STATES of America, Appellee, v. John F. DUNN, Jr., Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

John S. Leonard, Boston, Mass., with whom Michael J. Keefe and The McLaughlin Brothers, Boston, Mass., were on brief, for defendant, appellant.

Daniel I. Small, Asst. U.S. Atty., Washington, D.C., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges.

BOWNES, Circuit Judge.

Defendant-appellant John F. Dunn, Jr., appeals from a jury conviction of conspiracy to extort and attempted extortion in violation of the Hobbs Act, 18 U.S.C. Sec. 1951. In a two-count indictment, appellant and his uncle, William Connery, were charged with conspiring to extort and attempting to extort money from Fiore Bus Service, Inc. (FBS), under color of official right. The indictment asserted that from April 1983 through August 1983 Dunn misused his office as Chairman of the Northeast Metropolitan Regional Vocational School Committee (Northeast) in Wakefield, Massachusetts, by attempting to obtain money in exchange for using his influence to secure the School District's bus contract for Fiore Bus Service. The indictment went on to allege specific overt acts committed by Connery and Dunn in the furtherance of the conspiracy during the period from April 1983 through June 1983.

Defendant's claim of error centers around the district court's admission of evidence implicating Dunn in an extortion of FBS which took place in July and August of 1983. Unlike the first extortion attempt, which had been negotiated by Connery and had fallen through in early June, the second attempt was negotiated by James Sorrento, who had been appointed by Dunn as Chairman of the ad hoc subcommittee on school bus transportation. Sorrento was not named in the indictment nor were any of Dunn's acts in relation to Sorrento alleged as overt acts of the conspiracy. Dunn argues that the admission of the evidence of a second conspiracy had the effect of constructively amending the indictment. He also argues that this evidence could not properly have been admitted for the limited purpose of showing intent, motive, or plan under Federal Rule of Evidence 404(b) and that it was inadmissible hearsay. Finally, he claims that the admission of taped telephone conversations between Sorrento and Rudolph Fiore, President of FBS, violated Dunn's sixth amendment right to confront the witnesses against him because Sorrento did not testify at the trial.

FACTS

Prior to trial, the defendant Connery entered into an agreement with the government whereby he agreed to plead guilty and cooperate in return for the government's consideration of this cooperation in making its recommendation to the sentencing judge. Connery became the government's key witness linking Dunn to the conspiracy.

Connery testified that, beginning in the fall of 1982 and through the winter of 1983, Dunn contacted him several times and inquired whether FBS might be interested in "doing business" regarding the upcoming school bus contract. Connery stated that on April 5, 1984, he was persuaded by Dunn to call Thomas Taylor, Vice-President of FBS, and arrange a meeting to discuss the bus contract. Connery recounted on direct examination two phone conversations with Dunn in which they discussed the amount of money to be requested from FBS. On April 9, 1983, Connery met with Taylor and indicated that Dunn would help FBS obtain the school bus contract in exchange for $3,000 and one percent of the contract price per year for the contract's duration.

That same evening Connery, Dunn, and Taylor met at a political fund raising event. After a brief innocuous conversation, Connery and Taylor stepped outside and Connery gave Taylor an internal draft of the proposed bid specifications as a gesture of good faith. These documents had been distributed at the April 7 Transportation subcommittee meeting which Dunn had attended. Connery himself was not employed by Northeast. Thomas Markham, Superintendent of Schools for Northeast, testified that while these documents were theoretically public, he would have known if an outsider had asked for a copy. Connery testified that he received these documents from Dunn and evidence submitted at the trial indicated that the first page bore the right thumbprint of Dunn.

After the April 9 meeting, Taylor and Rudolph Fiore (President of FBS) went to the government and agreed to cooperate with the Federal Bureau of Investigation in the further investigation of activities relating to the School Committee and the school bus contracts. Fiore and Taylor each agreed to tape record conversations between themselves and Connery and Dunn.

Connery did not hear from Taylor again until April 23. During this period, however, he was in constant contact with Dunn regarding the bus contract. On April 25, Taylor called and confirmed the deal with Connery, but added that Fiore wanted some guarantees. In a meeting on April 28, Taylor and Connery further discussed the terms of the contract and the agreement. During this conversation, Connery mentioned to Taylor that Sorrento might be trying to "jump in." At trial, Connery explained that Dunn had informed him that Sorrento was trying to arrange something with Kathy Fiore, Rudolph's daughter, who also worked at the bus company. Connery testified that he reported back to Dunn after this meeting with Taylor and after all subsequent conversations.

In several conversations throughout the first week of May, Taylor asked Connery to set up a meeting between Dunn and Fiore. Connery testified that he relayed this request to Dunn but that Dunn repeatedly refused to meet until he received the "up front" money. On May 6, Connery informed Taylor that Dunn insisted upon this or the deal was off.

From May 6 to May 26 Connery had no contact with FBS. On May 26 Fiore called Dunn directly in a tape recorded conversation:

RF: Is Bill Connery really speaking for you?

....

RF: Well regarding, ah you know, ah, ah he called, ah he called me up about ah some sort of a deal.

JD: Whaa .. he handles a lot of my ah political things, ah, I don't know what you're talking about.

RF: Well ... he wanted certain things from me so ah about the ah bid he said to me that he wants some money down and ah and one percent a year, something like that. Ah, [i]s that ah what he ah, is he speaking for you?

JD: I, I don't know what you're talking about, I think you should call him. I talk to him I, and I really don't know what you're talking about.

RF: ... I don't know what's going on here, you know. Ah, if he's not speaking for you then that's what it is....

JD: Let me say this, he handles a lot of things for me.

....

RF: I don't know if I'm gonna be ah ah if be taken care of or not you know.

....

JD: I'm telling you, why don't you call him, you know I don't know all the, why don't you call him? That would be the best thing. Why don't you call him?

RF: [I]f I deal through him, is everything gonna be okay with you? ... Am I gonna get your full cooperation up there?

JD: OK alright, if you need anything from me, and he says that ah it's okay, it's okay.

....

When Fiore attempted to engage in further discussion, Dunn gave him Connery's phone number and told him to call Connery. Connery testified that Dunn called him to report that Fiore had telephoned and the deal was on again. Subsequently, Fiore contacted Connery and arranged a meeting for the following day.

On May 27, Connery met with Fiore and they planned that Connery and Taylor meet and exchange the $3,000 up front payment as originally agreed upon. On June 1, Connery received $1,500 from Taylor. Taylor explained that FBS had difficulty getting the entire $3,000 out of the business at that time. During this meeting, Connery again inquired of Taylor if anything was going on between FBS and Sorrento. Taylor assured Connery that he knew nothing about any deals with Sorrento and that he would only work through Connery.

Connery testified that Dunn was angry that Connery had received only one-half of the payment. Connery stated that he suggested to Dunn that the money be returned. On June 7, Connery and Taylor met and Connery returned the $1,500. Thereafter, Connery had no further contact with Taylor or Fiore.

Connery testified that after this initial approach to FBS fell through, Dunn continued to contact him two or three times a week. According to Connery, Dunn told him that he had spoken to Sorrento and that he would probably go in on a deal with Sorrento regarding the bus contract. On June 23, the School Committee convened with the bus contract on the agenda. Markham, the school superintendent, testified that he was prepared to recommend that a new three-year contract be awarded to FBS as they were the low bidder. He was, however, never given the opportunity to make this recommendation; Dunn recognized Sorrento who moved that all bids be rejected and the contract be set out for rebidding.

According to Connery's testimony, Dunn went to Connery's house in late July and announced that he had arranged a meeting with Sorrento to find out what was going on with the FBS contract and to see "if he could get in on it." In late July or early August, Dunn told Connery in a telephone conversation that the meeting with Sorrento had taken place and that they had agreed to ask FBS for $2,000 up front and a $10,000 lump sum payment as consideration for their efforts in getting him the contract. On August 11, Dunn again telephoned Connery and told him that he was meeting with Sorrento before the school committee that evening to collect his one-half share of the $2,000 payment Sorrento had received from FBS. Connery testified that he then told Dunn he should not meet with Sorrento because after the previous deal had fallen through he...

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