U.S. v. Nardi

• Decision Date: 12 November 1980
• Docket Number: No. 79-1450,79-1450
• Citation: 633 F.2d 972
• Parties: 7 Fed. R. Evid. Serv. 228 UNITED STATES of America, Appellee, v. Bernard V. NARDI, Jr., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 972

633 F.2d 972

7 Fed. R. Evid. Serv. 228

UNITED STATES of America, Appellee, v. Bernard V. NARDI, Jr., Defendant, Appellant.

No. 79-1450.

United States Court of Appeals First Circuit.

Argued Sept. 3, 1980.

Decided Nov. 12, 1980.

David L. Nixon, Manchester, N.H., with whom David W. Hess, Brown & Nixon Professional Association, Manchester, N.H. and Tybursky & Watson, Portsmouth, N.H., were on brief, for defendant, appellant.

Steven M. Gordon, Asst. U. S. Atty., Concord, N.H., with whom William H. Shaheen, U. S. Atty., Concord, N.H., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and KEETON, ^* District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Appellant Bernard V. Nardi, Jr. was convicted, after a ten-day bench trial, of conspiracy to commit certain bank robberies in violation of 18 U.S.C. § 371, receipt of the proceeds of one bank robbery, in violation of 18 U.S.C. § 2113(a), and being an accessory after the fact by assisting in concealment of the proceeds of another robbery, in violation of 18 U.S.C. § 3. He now challenges the sufficiency of the evidence and certain evidentiary rulings. He also claims to have been denied a fair trial, asserting that he was refused permission to interview a government witness and was denied compulsory process in regard to a potential defense witness.

Nardi's indictment occurred as a result of a series of bank robberies in New Hampshire during the spring and summer of 1977. The individuals who actually committed the robberies were Marc Levesque and Mark Dubois, both of them former inmates of the New Hampshire State Prison. Several other persons participated in the robbery plans, which were masterminded by Daniel MacLeod, who was an inmate at the New Hampshire State Prison during this period.

Nardi is an attorney who served, under a contract with the New Hampshire Bar Association, as the prison attorney for the inmates of the New Hampshire State Prison. He held that position from March of 1976 to June of 1977. In his role as prison attorney, he became acquainted with both MacLeod and Dubois. He also became acquainted with Levesque, who was not an inmate; the circumstances of that relationship are in dispute.

The government contended, and the district court found, that Nardi joined with MacLeod, Dubois and Levesque in a conspiracy to rob banks. Nardi's alleged role was to serve as the "front man," investing the proceeds of the robberies and providing whatever legal services might be needed by the group. The government's version of events was essentially as follows: In May of 1977, Nardi helped to arrange a fake job for Dubois in order to get him parole so that he could participate in the robberies. In April of 1977, Nardi received $1,000 from Levesque's first robbery and deposited the funds in MacLeod's account; also in April, he executed a bank withdrawal slip for Levesque's and Dubois' use in withdrawing those funds for expenditures related to the conspiracy. In June of 1977 Nardi transported Dubois out of the prison to begin his parole and brought him to Levesque. On June 24, 1977, the night of the second bank robbery, Nardi met with Dubois and Levesque and loaned them $75; on July 28, 1977 Nardi received either $1,000 or $1,500 of the proceeds of the fourth bank robbery, and on that date accompanied Levesque to the Nashua police for questioning. He also on that day arranged for his cousin, Stephen Lancellotti, to provide Dubois with a safe deposit box in which to deposit proceeds of the fourth robbery.

I. Sufficiency of the Evidence

Nardi argues that the evidence was insufficient to establish beyond a reasonable doubt that he knowingly participated in the conspiracy and that he knowingly received and helped to conceal proceeds of the robberies. Nardi would characterize his conduct as simply that of an attorney providing legal services to his clients. He characterizes the money he received on July 28 as a retainer paid for legal representation and returned when he withdrew from representation. Nardi asserts that the only evidence of his knowledge of, and active participation in, the conspiracy, is the testimony of Mark Dubois and Stephen Lancellotti. He challenges the credibility of both these witnesses, arguing that Dubois' testimony was "purchased" by the government's cooperation in the reduction of his sentence, that Lancellotti had demonstrated his lack of credibility through earlier false statements, and that Lancellotti's testimony was influenced by the grant of informal immunity.

In assessing the sufficiency of the evidence, we must view it in the light most favorable to the prosecution and decide whether a rational trier of fact could have found guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Davis, 623 F.2d, slip op. at 195 (1st Cir. June 12, 1980); United States v. Indelicato, 611 F.2d 376, 384 (1st Cir. 1979). Our role is not to assess the credibility of the witnesses; that judgment is for the trier of fact. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 468, 86 L.Ed. 680 (1942).

Here, the district court, sitting as the trier of fact, issued a comprehensive opinion, analyzing the evidence and making specific findings. It found the testimony of Dubois and Lancellotti to be credible, despite Nardi's attempts at impeachment. Accepting that finding, as in large measure we must, we believe the evidence of Nardi's knowing participation to be more than adequate to support the court's verdict. Even without those witnesses, the evidence of Nardi's knowing participation was significant. The district court, in fact, indicated that it based its judgment primarily on inferences from Nardi's own conduct and on its disbelief in his explanations for that conduct, using the testimony of Dubois and Lancellotti largely as corroboration.

II. Hearsay Testimony

Several witnesses testified to statements made by Daniel MacLeod which implicated Nardi in the conspiracy. The district court admitted these statements under the co-conspirator exception to the hearsay rule, Rule 801(d) (2)(E) of the Federal Rules of Evidence. Under that exception, hearsay testimony of statements made by a co-conspirator during and in furtherance of the conspiracy may be received if the court finds that the existence of a conspiracy in which the defendant participated is established by a preponderance of independent, non-hearsay evidence. United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977).

The district court explicitly found that "a preponderance of the evidence exists to demonstrate that a conspiracy existed, that Levesque, Dubois, MacLeod and the defendant were members of such conspiracy." Nardi argues, however, that the required independent proof of his membership in the conspiracy was not forthcoming. We do not agree. Both Dubois and Lancellotti testified to conversations and dealings with and by Nardi, forming strong evidence, if believed, of Nardi's complicity. As indicated, however, the lower court appears to have predicated its finding of Nardi's involvement largely on inferences drawn from Nardi's own testimony and other evidence concerning his conduct including its adverse impression of his veracity. As the court correctly observed, "(a) defendant's own conduct, acts, and statements may be sufficient to provide the independent proof to establish his membership in a criminal conspiracy." The court noted that Nardi's testimony that he first met Levesque on April 5, 1977 was disproved by telephone records showing a call from Nardi's office to Levesque's father's Arco station on March 1, 1977. The court found that Nardi had concealed from prison officials the source of the $1,000 which he received from Levesque and sought to deposit in MacLeod's prison account, and that he delivered Dubois from the prison to Levesque with whom Dubois had been instructed to avoid contact. The court found that Nardi had testified falsely regarding Levesque's involvement in arranging false employment for Dubois, and regarding his own contacts with Levesque during the spring of 1977. The court found Nardi's involvement in arranging employment and transportation for Dubois to be unusual and unprecedented. The court found that Nardi concealed his contacts with Dubois from Dubois' parole officer, and that no legitimate reason for this concealment was offered.

Strong evidence of Nardi's participation in the conspiracy was his receipt of the $1,000 "retainer" on July 28. The court noted that none of this money was credited to Levesque's account with Nardi's law firm, and that Nardi's claimed failure to inquire into the source of the funds was not credible in the light of his recent loan to Levesque and Dubois.

The court registered its disbelief of Nardi's testimony regarding his trip with Levesque to meet with the Nashua police, finding implausible Nardi's assertion that he thought the Nashua police wanted to question Levesque about a federal parole violation, and noting that Nardi made no record of the trip in his lawyer's diary. The court also noted Nardi's admitted advice to Dubois that he travel to Rhode Island while parole authorities sought him in New Hampshire; the court found implausible Nardi's assertion that he intended to resolve the parole problem while Dubois waited in Rhode Island.

The court also indicated disbelief of Nardi's testimony with regard to his efforts to arrange for Lancellotti to assist Dubois; the court noted contradictions between this testimony and Nardi's statement to the FBI, as well as contradictions between Nardi's testimony and that of Levesque, Lancellotti, and Dubois concerning this transaction.

We are satisfied after reviewing the court's findings and the record that the determination that Nardi was a member of the conspiracy rested on sufficient independent, non-hearsay evidence to meet the Petrozziello standard. We therefore...