U.S.A. v. Murphy

• Decision Date: 06 August 1999
• Docket Number: No. 98-2035,98-2035
• Citation: 193 F.3d 1
• Parties: (1st Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. JOSEPH P. MURPHY, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

193 F.3d 1 (1st Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. JOSEPH P. MURPHY, Defendant, Appellant.

No. 98-2035.

United States Court of Appeals for the First Circuit.

Heard Aug. 6, 1999.

Decided Sept. 30, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Copyrighted Material Omitted] James C. Rehnquist with whom Goodwin, Procter & Hoar LLP was on brief for appellant.

Ben T. Clements, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, and S. Theodore Merritt, Assistant United States Attorney, were on brief for the United States.

Before Selya, Boudin and Lipez, Circuit Judges.

BOUDIN, Circuit Judge.

Joseph Murphy, a criminal defense lawyer, was indicted on charges that he participated in an extortion scheme with two Boston police detectives. The detectives, Kenneth Acerra and Walter Robinson, pled guilty to a number of offenses involving a much greater range of misconduct than that for which Murphy was charged. But Murphy stood trial, was convicted by a jury, and now appeals. The evidence offered by the government at trial permitted the jury to find that the following occurred.

Over a substantial period starting in 1990 and extending to 1996, Acerra and Robinson engaged in a scheme that included obtaining warrants based on information supplied by them and known by them to be false. Acerra and Robinson made a number of searches and seizures using warrants based on such falsified applications before and after the Murphy incidents. In the raids, the detectives seized cash, representing drug sale proceeds, that they kept for themselves instead of turning it over to the Boston Police Department. Theft, not extortion, was the central element in these crimes.

The two incidents involving Murphy and leading to the extortion charges against him both occurred in 1992. The first began on May 6, 1992, when a third detective, John Brazil, obtained search warrants to search an apartment on Forest Hills Street in Jamaica Plain and a taxicab owned by Bruno Machore. Brazil prepared the warrant applications at Acerra's direction, fabricating most of the "facts" alleged in the applications. The warrants were executed by all three detectives, cocaine and $10,000 in cash were seized, and Machore and two others were arrested and held on state charges. Apparently fearing that someone would reveal the seizure of cash, the detectives reported to their superiors that they had seized $7,500; they kept the balance for themselves.

After Machore's arrest, Murphy (who was Machore's attorney) told him that for payments of $1,000 each to Acerra and Robinson the case would be dismissed. Machore agreed, believing the money would come from the seized funds. In an initial effort to obtain dismissal, all three detectives failed to appear at Machore's district court trial; but no dismissal was obtained since Machore had not been brought from jail to the trial court. Thereafter, Robinson managed to get the case against Machore dismissed by conveying untrue information about the case to the assistant district attorney.

Murphy then moved for the return of the $7,500 on the ground that it had been improperly seized, and based on false statements by Robinson and without objection from the prosecutor, the judge ordered a return of the money. Murphy had Machore authorize the attorney to receive the $7,500 from the Boston Police Department. Murphy obtained the money on June 29, 1992, put $1,500 in his business account, and took out the balance in cash; whether some was then paid to the detectives is unknown. In any event, none of the money was ever returned to Machore.

The second incident began even before the first one ended, on May 29, 1992, when Acerra and Robinson obtained warrants (again, based on false statements) to search two apartments in a building on Edgemere Road in West Roxbury. Machore and his associate, Francisco Almonte, used one apartment to store cocaine and the other for drug sale proceeds and as living quarters. Using the warrants, detectives, including Acerra and Robinson, conducted searches of the apartments on May 29, 1992, and seized cocaine and between $16,000 and $17,500 in cash. None of the cash was reported to the Boston Police Department.

Almonte, Machore and two others were arrested in connection with these new searches. Murphy, representing Machore, told the latter that this time Robinson and Acerra wanted a total of $50,000 for the release of Machore and his three co-defendants. Since it was believed that Almonte had access to money, Murphy visited Almonte in jail four times (always without the knowledge of Almonte's own attorney). Murphy advised Almonte of the $50,000 demand and brushed aside Almonte's suggestion that the funds just seized from the Edgemere Road apartments might count toward the larger amount now demanded.

Since neither Almonte nor Machore had cash available, a plan developed to get them released from jail so that they could raise the $50,000. Murphy explained to Almonte, and also to Machore's girlfriend (who was Almonte's sister), that the detectives would fail to appear at the grand jury, leading to the release of the defendants under a state law that required release when a grand jury does not indict within two sittings. From July to September 1992, Robinson failed to appear at the grand jury five times in a row, and Machore and two of his co-defendants were eventually released.

Almonte was kept in jail on another case. Machore and Almonte were thereafter indicted on drug charges incident to the Edgemere Road seizure. When he was released on bail about two weeks later, Almonte was called in by Murphy and told that the detectives had done their part and "now it's your turn." Instead of paying, Almonte went to trial and was acquitted, due in part to the fact that none of the detectives testified about finding any money in the apartment in which Almonte was arrested. Much later, when an investigation began into the detectives' warrant practices, Murphy made false statements to help conceal the detectives' failure to report funds seized in both of the incidents.

In March 1997, Robinson, Acerra and Murphy were indicted in federal district court. On October 2, 1997, an amended superseding indictment against all three defendants was returned. While the indictment charged the detectives with a broad scheme and many wrongful seizures, Murphy was named in only three counts: count 2, based on both of the incidents just described, charged Murphy (and the two detectives) with conspiracy to commit extortion under color of official right, 18 U.S.C. § 1951; and counts 3 and 4, under the same statute together with the aiding and abetting statute, id. § 2, charged extortion (based on the first incident) and attempted extortion (based on the second).

The two detectives pled guilty in March 1998 to a broadly framed conspiracy count and two other offenses. Murphy's trial took place in April 1998 and included government testimony from Brazil and Machore, among others. The jury found Murphy guilty on all three counts. Thereafter, in August 1998, the district court sentenced Murphy to 24 months imprisonment. Murphy now appeals, challenging both his conviction and his sentence.

Murphy's first ground of appeal concerns alleged errors by the district court in admitting what Murphy claims were hearsay statements under the co-conspirator exception to the hearsay rule. Fed. R. Evid. 801(d)(2)(E).¹ In this circuit, a predicate to the admission of hearsay evidence under the co-conspirator exception is a finding by the district judge that a conspiracy existed of which the defendant was a member, and that the statement was made in furtherance of that conspiracy. See United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977). Murphy argues that the district judge did not make a timely Petrozziello finding of conspiracy before the case went to the jury, that the Petrozziello finding made after the jury returned with the verdict was erroneous, and that the admission of the alleged hearsay was prejudicial and did not constitute harmless error.

Although the government says that the hearsay objection was not preserved, the point is debatable and it is easier to deal with the claims on their merits. A number of the specific statements to which Murphy objects on appeal were from Brazil's testimony. The gist of some of these statements was that Robinson and Acerra had a practice of instructing Brazil to falsify information in warrant applications and further instructing him not to report moneys seized in subsequent raids conducted pursuant to such warrants. Brazil testified that he was generally so instructed in other, unnamed incidents and, specifically, that he was told to falsify the May 6 warrant applications and not to report the May 29 seizure (as previously described).

Whether the detectives' conduct in other, unspecified incidents should be made known to the jury had been the subject of disagreement prior to trial. In resolving an in limine motion to suppress filed by Murphy, the district court had concluded, over objections based on relevance and prejudice, that the government could offer evidence of the detectives' general practice of falsifying warrants and not reporting cash, but that evidence as to specific instances must be confined to the two incidents involving Murphy. When the general practice evidence was offered at trial, Murphy says that he made an adequate hearsay objection and that the court rejected the objection, relying on the co-conspirator exception.

As it happens, the bulk of Brazil's "instruction" evidence in question was not hearsay at all. Hearsay is an out-of-court statement offered as evidence of the truth of the matter asserted therein, Fed. R. Evid. 801(c); and while Brazil certainly testified to statements made by the detectives out of court, those statements--namely, the instructions given to Brazil...