United States v. Ciresi

• Citation: 697 F.3d 19
• Decision Date: 05 October 2012
• Docket Number: No. 11–1914.,11–1914.
• Parties: UNITED STATES of America, Appellee, v. Robert S. CIRESI, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

697 F.3d 19

UNITED STATES of America, Appellee,
v.
Robert S. CIRESI, Defendant, Appellant.

No. 11–1914.

United States Court of Appeals,
First Circuit.

Heard Feb. 8, 2012.
Decided Oct. 5, 2012.

[697 F.3d 22]

Martin G. Weinberg, with whom Kimberly Homan and John Cicilline were on brief, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, SOUTER, Associate Justice,^* and LIPEZ, Circuit Judge.

[697 F.3d 23]

LIPEZ, Circuit Judge.

After a jury trial in the United States District Court for the District of Rhode Island, Robert Ciresi, a seventy-eight-year-old North Providence attorney, was convicted on bribery, extortion, and conspiracy charges stemming from his involvement in a scheme to purchase the votes of three corrupt town councilmen on two zoning matters. During the trial, the district court admitted into evidence under Federal Rule of Evidence 801(d)(2)(E) a number of recorded statements about Ciresi made by one of the councilmen to a government informant. On appeal, in seeking a new trial, Ciresi argues that some of these statements should have been excluded as hearsay, and challenges the admission of all the statements on constitutional grounds under the Sixth Amendment's Confrontation Clause. He also claims that the district court erred in calculating his sentence under the United States Sentencing Guidelines (“Guidelines”). We affirm.

I. A. Factual Background

We set forth the facts in the light most favorable to the jury's verdict. See United States v. Rodríguez–Rodríguez, 663 F.3d 53, 55 (1st Cir.2011); United States v. Mitchell, 596 F.3d 18, 20 n. 1 (1st Cir.2010).

1. The Supermarket Bribe

In the fall of 2008, Richard Baccari, a commercial developer represented by Ciresi, applied to the seven-member North Providence Town Council (“Town Council”) to rezone a plot of residential land on which he hoped to build a supermarket. Shortly thereafter, a local official overheard one of the councilmen, John Zambarano, telling another councilman, Raymond Douglas, that he was eager to approve Baccari's application because he “could really use the money.” Zambarano's comment was relayed by the local official to the Federal Bureau of Investigation (“FBI”), which enlisted another councilman, Paul Caranci, to join the extortion scheme as a government informant. Caranci was directed to record his conversations with Zambarano, Douglas, and Joseph Burchfield, the third corrupt councilman.

On February 9, 2009, the day before the zoning vote, Zambarano told Caranci that Baccari had agreed to pay $25,000 in exchange for approval of his application. Caranci's share was to be $4,000. Zambarano explained that no payments would be made until the vote was completed: “I'm meeting [Baccari] and Bobby Ciresi about an hour after the meeting, and he's giving, and he's giving me the money. So ... I'll give everybody theirs too, and then Wednesday after work I'll ... give you the $4,000.” Zambarano also said that Ciresi had arranged for him to meet privately with Baccari to negotiate the bribe amount and that Ciresi had communicated to him that Baccari wanted his application approved with no conditions. Zambarano left Caranci with the impression that there would be other opportunities to mine Baccari, or different developers, for money in the future: “[T]here's something else coming down the road, in the future ... we can all be part of this again.” ¹

The next day, the Town Council unanimously approved Baccari's application. After the vote, FBI agents tailed Zambarano's

[697 F.3d 24]

car to an empty restaurant parking lot. A few minutes after Zambarano arrived, a car registered to Ciresi's wife entered the lot from the opposite direction and parked for several minutes alongside Zambarano's car, so that the driver's side windows aligned. The car's driver was an older white male with salt and pepper hair who was wearing a suit. This limited description was consistent with Ciresi's appearance. Cell phone records also show that Ciresi received a call from Zambarano one minute before the car registered to his wife arrived at the parking lot and that Ciresi's cell phone was within one mile of the lot when the call was placed.

The following day, February 11, 2009, Zambarano and Caranci met in the driveway of Zambarano's home. Zambarano handed Caranci $4,000 and then said that he “got this last night after the meeting.” Zambarano proceeded to describe in detail how Ciresi had brokered his negotiations with Baccari, noting that Zambarano was “very close to Bobby Ciresi” and that Ciresi had vouched for him to Baccari by advising Baccari that “he doesn't want to talk to anybody else.” Zambarano also referred to other extortion opportunities that might arise “in the future” and said he would demand a larger bribe “next time.”

2. The Mill Bribe

In March 2010, Zambarano told Caranci that he “might be working on something else” on behalf of the corrupt councilmen. Two developers, Vincent Coccoli and Kevin O'Sullivan, had applied to the Town Council to rezone an industrial mill complex that they hoped to convert into apartments. Zambarano was attempting to extract a bribe from them in exchange for approval of their application. Ciresi represented these developers as well.

On March 15, 2010, Zambarano informed Caranci that Ciresi was “going to try” to arrange a bribe but harbored doubts about his ability to do so because he had never before represented these developers. Two weeks later, on March 28, 2010, Zambarano reported to Caranci that he had asked Ciresi about negotiating a bribe with Coccoli and that Ciresi had replied: “I don't even know him ... so let me feel him out.” Zambarano also said that Ciresi had subsequently warned him against approaching Coccoli for a bribe but had suggested that O'Sullivan could be approached by his former business partner, Edward Imondi, whom Zambarano knew.² Zambarano also told Caranci that although Ciresi had received “a few thousand dollars” for his involvement in the supermarket bribe, “[h]e seems like he doesn't want nothing doin” in the mill bribe.

On April 4, 2010, Zambarano notified Caranci that Ciresi was “out” but that Imondi had helped arrange a bribe from O'Sullivan and would receive a share of this bribe, just as Ciresi had received a share of the supermarket bribe. In response to Caranci's questioning about how the bribes were being divided up, Zambarano disclosed that his own share of the supermarket bribe had been $2,200 larger than Caranci's because he had done more legwork.

On April 26, 2010, O'Sullivan delivered a down payment on the $75,000 bribe to Imondi, who retained his own share and passed along the remainder to Douglas and Burchfield. The Town Council unanimously voted to approve the rezoning application the same day.

[697 F.3d 25]

B. Procedural History

Ciresi was indicted on August 19, 2010 ³ for one count of bribing a local government official, in violation of 18 U.S.C. § 666(a)(2), one count of aiding and abetting an extortion, in violation of 18 U.S.C. §§ 2 and 1951, and one count of conspiring to commit the same crimes, in violation of 18 U.S.C. § 371. The bribery and extortion charges related only to the supermarket bribe. The conspiracy charge also related to the mill bribe.

The indictment included references to a number of recorded statements about Ciresi made by Zambarano to Caranci in the course of both bribes. The government sought to introduce these statements during trial. Zambarano did not testify. Ciresi moved to exclude as hearsay any of Zambarano's statements that postdated the completion of the supermarket bribe. He also objected to the admission of all of Zambarano's statements to Caranci, including the February 9, 2009, conversation, under the Sixth Amendment's Confrontation Clause. Consistent with the procedures we outlined in United States v. Ciampaglia, 628 F.2d 632 (1st Cir.1980), the district court provisionally admitted the statements into evidence. Then, in response to Ciresi's renewal of his hearsay objection at the trial's end, the court ruled that they were properly admitted as nonhearsay under Federal Rule of Evidence 801(d)(2)(E). The district court also summarily rejected Ciresi's constitutional challenge.

Ciresi was convicted on April 26, 2011. On August 3, 2011, he received a sentence that included a 63–month term of imprisonment. The district court's Guidelines sentencing calculation took into account both the supermarket bribe and, over Ciresi's protest, the mill bribe. This timely appeal followed.

II. A. The Hearsay Challenge

The government sought to admit Zambarano's out-of-court statements under Federal Rule of Evidence 801(d)(2)(E). The rule provides that a statement made by a defendant's coconspirator “during the course of and in furtherance of the conspiracy” may be introduced as the nonhearsay admission of a party opponent. Fed.R.Evid. 801(d)(2)(E); see also United States v. Díaz, 670 F.3d 332, 348 (1st Cir.2012); United States v. Fogg, 666 F.3d 13, 15 (1st Cir.2011). The proponent of such a statement must prove, by a preponderance of the evidence, that the declarant and the defendant were members of a conspiracy when the statement was made, and that the statement was made in furtherance of the conspiracy. See United States v. Famania–Roche, 537 F.3d 71, 76 (1st Cir.2008); United States v. Bradshaw, 281 F.3d 278, 283 (1st Cir.2002). A district court's determination “as to whether this burden has been met is known in this circuit as a Petrozziello ruling,” after our holding in United States v. Petrozziello, 548 F.2d 20 (1st Cir.1977). United States v. Mitchell, 596 F.3d 18, 23 (1st Cir.2010); see also Famania–Roche, 537 F.3d at 75.

As we explained in Ciampaglia, a district court is not required to make a Petrozziello ruling prior to admitting a statement under Rule 801(d)(2)(E). Instead, the court may admit the statement...