U.S. v. Scivola

• Decision Date: 02 July 1985
• Docket Number: No. 84-1648,84-1648
• Citation: 766 F.2d 37
• Parties: UNITED STATES of America, Appellee, v. Alfred SCIVOLA, Jr., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 37

766 F.2d 37

UNITED STATES of America, Appellee, v. Alfred SCIVOLA, Jr., Defendant, Appellant.

No. 84-1648.

United States Court of Appeals First Circuit.

Argued May 9, 1985.

July 2, 1985.

Joseph L. DeCaporale, Providence, R.I., for defendant, appellant.

Edwin J. Gale, Sp. Atty., U.S. Dept. of Justice, Providence, R.I., with whom Jeremiah T. O'Sullivan, Sp. Atty., U.S. Dept. of Justice, Boston, Mass., and Lincoln C. Almond, U.S. Atty., Providence, R.I., were on brief for appellee.

Before CAMPBELL, Chief Judge, VAN DUSEN, ^* Senior Circuit Judge, and BOWNES, Circuit Judge.

VAN DUSEN, Senior Circuit Judge.

Defendant, Alfred Scivola, Jr., was convicted of committing perjury in violation of 18 U.S.C. Sec. 1623(a) (1982). The alleged perjury occurred when defendant was testifying in his own behalf while on trial, along with several others, for the offense of receiving stolen property. While testifying, defendant expressly denied having knowledge that certain property he had purchased was stolen. Nevertheless, after testifying and before the jury retired to consider its verdict, he decided to change his plea from "not guilty" to "guilty." The district court accepted defendant's guilty plea, and he was therefore convicted. The Government then brought an indictment against defendant on two counts: (I) conspiracy to suborn perjury and (II) perjury. Following a trial on these two counts, defendant was acquitted on the conspiracy count but convicted on the perjury count.

Defendant filed a timely appeal to this court contending that he was prejudiced by the district court's refusal to try the conspiracy count separately from the perjury count. He further alleges that his guilty plea was an effective recantation of any false testimony he may have given at his stolen-property trial, and that, therefore, his prosecution for perjury was barred under 18 U.S.C. Sec. 1623(d) (1982). We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 (1982). We will affirm defendant's perjury conviction for the reasons stated in this opinion.

I. Factual History

In January 1983, defendant was placed on trial, along with his codefendant, Frank Marrapese, for allegedly purchasing one hundred La-Z-Boy chairs that they knew to be stolen. Alfred Smith, the seller of the chairs and the principal Government witness in the trial, testified that he transported the stolen chairs to Rhode Island, where he sold them to the defendant and Marrapese.

Following the conclusion of the Government's case in chief, defendant testified in his own behalf. He made two false statements while testifying that served as the basis for his subsequent indictment on perjury charges: (1) he stated that he purchased thirty-five chairs, not one hundred as the Government had contended, and (2) he stated that the seller, Alfred Smith, told him that the chairs were salvaged, not stolen.

The only other witness called by the defense was Alfred Smith's brother, William Smith. Prior to the trial, Marrapese had contacted William in an effort to persuade him to give false testimony on behalf of defendant and Marrapese. William notified the Federal Bureau of Investigation (FBI) about his conversations with Marrapese. At the suggestion of the FBI, William then arranged another meeting with Marrapese and Marrapese's attorney, John F. Cicilline. It was this meeting that served as the basis for the indictment of defendant, along with Marrapese and Cicilline, on charges of conspiracy to suborn perjury.

Prior to attending the meeting, William was equipped by the FBI with a body recorder so that the meeting could be tape recorded in its entirety. During the meeting, Marrapese and Cicilline explained that they wanted William to testify, among other things, that his brother Alfred called him in November 1981 and told him that he (Alfred) had sold some chairs to defendant, representing that the chairs were salvaged. If given, this false testimony by William would have corroborated the false testimony given by defendant.

Nevertheless, when called to the stand by defense counsel, William was asked a series of questions designed to elicit this false testimony. To the surprise of defense counsel, however, William did not give the desired answers, but instead testified that he had absolutely no knowledge of any alleged telephone call with Alfred in November 1981.

Following William's testimony, the Government informed defendant that it had made, and was prepared to offer as evidence, its tape recordings of the meeting in which Marrapese and Cicilline attempted to persuade William to give false testimony. At that point, defendant decided to change his plea from "not guilty" to "guilty." The district court accepted his guilty plea on January 27, 1983.

Subsequently, on May 12, 1983, a federal grand jury filed a two-count indictment. Count I charged defendant, Marrapese, and Cicilline with conspiracy to suborn perjury in violation of 18 U.S.C. Sec. 1622 (1982). Count II charged defendant with committing perjury in violation of 18 U.S.C. Sec. 1623 (1982). Following a jury trial on both counts, defendant was acquitted on Count I and convicted on Count II.

II. Denial of Motion to Sever

Defendant alleges that the district court erred by denying his motion to sever count I from count II of the indictment against him. Defendant had requested separate trials for each count. Prior to the commencement of trial, defendant made a motion to sever the counts, claiming that he wanted to testify in his own behalf on the perjury count but not on the conspiracy count. The district court denied the motion, reasoning that defendant had not demonstrated that he would be unduly prejudiced by a single trial on both counts. Nevertheless, the court indicated that defendant could renew his motion to sever at a later time if, during the conduct of the trial, the possibility of prejudice had become more apparent. ¹

The conspiracy and perjury counts had been originally joined in the same indictment pursuant to Federal Rule of Criminal Procedure 8(a), which provides:

"Rule 8. Joinder of Offenses and of Defendants.

(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan."

Fed.R.Crim.P. 8(a). Joinder was proper under Rule 8(a) because, under the Government's theory, both defendant's perjury and the attempt to persuade William Smith to commit perjury were parts of a common scheme or plan. The Government's theory was that the hoped-for false testimony of Smith was designed to corroborate the false testimony given by defendant, and therefore the subornation of Smith's perjury together with defendant's perjury were part of one plan to commit a fraud upon the court. Certainly, the Government's theory is plausible, even though the jury ultimately found that there was insufficient evidence to implicate defendant in the attempt to suborn Smith's perjury. Thus, the joinder of the two counts was justified.

Notwithstanding the propriety of the initial joinder of the conspiracy and perjury counts in the indictment, defendant argues that he was entitled to a severance of the two counts pursuant to Federal Rule of Criminal Procedure 14. Rule 14 permits such severance upon a proper showing of prejudice. Rule 14 states:

"If it appears that a defendant or the government is prejudiced by a joinder of offenses ... in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts ... or provide whatever other relief justice requires."

Fed.R.Crim.P. 14.

It is within the sound discretion of the district court to deny a motion to sever pursuant to Rule 14. On review, this court may reverse a district court's denial of such a motion only if the court has abused its discretion. United States v. O'Connell, 703 F.2d 645, 649 (1st Cir.1983); United States v. Ciampaglia, 628 F.2d 632, 643 (1st Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 365, 66 L.Ed.2d 221 (1980). Reversal of a conviction on the ground that a district court abused its discretion by denying a motion to sever is extremely rare. United States v. Barrett, 505 F.2d 1091, 1106 (7th Cir.1974), cert. denied, 421 U.S. 964, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975).

In order for defendant to successfully challenge the district court's refusal to sever counts I and II, he must make a strong showing that he was prejudiced at trial. United States v. Bautista, 731 F.2d 97, 100 (1st Cir.1984); United States v. Arruda, 715 F.2d 671, 679 (1st Cir.1983); United States v. Thomann, 609 F.2d 560, 564 (1st Cir.1979). Generally, there are three types of prejudice that may result from trying a defendant for several different offenses at one trial: (1) the defendant may become embarrassed or confounded in presenting separate defenses, Drew v. United States, 331 F.2d 85, 88 (D.C.Cir.1964); (2) proof that defendant is guilty of one offense may be used to convict him of a second offense, even though such proof would be inadmissible in a separate trial for the second offense, Baker v. United States, 401 F.2d 958, 974 (D.C.Cir.1968), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970); and (3) a defendant may wish to testify in his own behalf on one of the offenses but not another, forcing him to choose the unwanted alternative of testifying as to both or testifying as to neither, Cross v. United States, 335 F.2d 987 (D.C.Cir.1964).

It was this third type of prejudice that defendant claims to have resulted from the district court's refusal to sever the conspiracy and the perjury counts against him. Defendant claims that, because the Government produced no evidence in its case in chief...