United States v. Rosa, 82-1497

• Citation: 705 F.2d 1375
• Decision Date: 11 April 1983
• Docket Number: 82-1513.,No. 82-1497,82-1497
• Parties: UNITED STATES of America, Appellee, v. Anthony ROSA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Lawrence SKELTON, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

705 F.2d 1375

UNITED STATES of America, Appellee, v. Anthony ROSA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Lawrence SKELTON, Defendant, Appellant.

Nos. 82-1497, 82-1513.

United States Court of Appeals, First Circuit.

Argued January 31, 1983.

Decided April 11, 1983.

Willie J. Davis, Boston, Mass., for Anthony Rosa.

Matthew H. Feinberg, with whom Harry C. Mezer, Boston, Mass., was on brief, for Lawrence Skelton.

Paul F. Healy, Jr., Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before ALDRICH, BOWNES and BREYER, Circuit Judges.

PER CURIAM.

Appellants Anthony Rosa and Lawrence Skelton and another co-defendant were convicted on all counts of a three-count indictment and sentenced to two years imprisonment — six months to be served and the balance to be suspended with probation. The indictment had charged the defendants with violations of 18 U.S.C. §§ 371, 659, 2315, and 2 for conspiring to receive, possess, and dispose of stolen Polaroid film and for aiding and abetting these crimes. In appealing their convictions the appellants individually and jointly allege that errors meriting reversal were committed during their joint jury trial in the district court. Our review leads us to conclude that their convictions should stand.

We have gleaned the pertinent facts from the trial transcript. On March 28, 1980, a tractor-trailer truck loaded with film and traveling from the Polaroid plant in Needham, Massachusetts, to California was hijacked in Connecticut. About two weeks earlier Donald Smoot met with Thomas Lane and Henry Gonsalves and told them that Edwin Mason had lined up a Polaroid truck to be hijacked. They ultimately agreed to a plan under which Mason would steal the truck, Lane would arrange for selling the film, Gonsalves would assist both Lane and Mason, and Smoot would provide protection.

After the initial meeting Lane discussed arrangements to sell the stolen film with Anthony Rosa, a Woburn, Massachusetts, police officer who Lane had known for four years. Rosa offered to speak with Anthony Cerullo, a Woburn store operator who might be interested in purchasing the film. Ten days before the hijacking Lane and Rosa met with Cerullo, who expressed interest in purchasing the film.

Several days later Lane told Rosa that the truck would be taken to Lane's rented house in Woburn. Rosa said he would watch out for the hijackers and try to get the other police officers on duty to go to another section of town. He also agreed to alert the hijackers if anything went wrong.

After the truck was stolen Mason, Gonsalves, Lane, and Peter Carter — the third codefendant at the joint trial — unloaded three pallets of film at the Woburn residence. They departed with the truck when the owner of the house arrived, and called Lawrence Skelton to ask if they could unload the remaining film at his Billerica, Massachusetts, home. Skelton agreed and assisted them in unloading the film there. After the truck was driven off and abandoned, Skelton, Mason, Gonsalves, and Lane obtained a U-Haul truck and brought it to Skelton's house to load it with film. On March 31 Lane and Rosa met Gonsalves and Skelton at Skelton's place to load a second U-Haul truck with film. Lane, Rosa, and Gonsalves drove this truck to Cerullo's home and unloaded it. They then drove to Lane's Woburn home and loaded the truck with the film that had been left there.

Eventually all of the film was sold to various buyers; Cerullo paid Lane about $100,000 for the film he received. Lane retained $30,000 of the overall sales proceeds and paid, directly or indirectly, $30,000 to Gonsalves, $30,000 to Mason, $24,000 to Smoot, and $1,500 to Carter. The appellants, Rosa and Skelton, received $1,000 and $3,500 respectively.

A substantial portion of the prosecution's case at the joint trial of Rosa, Skelton, and Carter comprised the testimony of Lane, Gonsalves, and Mason. Each of them admitted to a long history of criminal behavior in addition to this hijacking. They each had bargained with the government for their testimony and had received in return various promises and considerations.

I. Evidence of a Death Threat to a Witness Made by Defendant Skelton

During the trial Lane testified that in March or April of 1981 he had had a conversation with Skelton during which Skelton threatened to kill him if he became a government witness. Skelton argues that this alleged threat was improperly admitted into evidence because, under Federal Rule of Evidence 403, its tendency to cause unfair prejudice outweighed its probative value.

We first note that Skelton has waived this argument on appeal because he did not raise it at the trial. During a conference at the bench both the trial judge and defense counsel were made aware of the prosecutor's expectation that Lane would testify about the threat. The judge expressed to Skelton's counsel his willingness to give a limiting instruction if requested. Counsel neither objected to the testimony nor requested a limiting instruction.

Even assuming that the issue has not been waived, we think the district court did not act improperly in admitting Lane's testimony. This court has held that "evidence of threats to witnesses can be relevant to show consciousness of guilt." United States v. Monahan, 633 F.2d 984, 985 (1st Cir.1980) (per curiam) (citing Fed.R.Evid. 404(b)). Such threats may imply that the defendant "has something to hide" or a "desire `to cover something up.'" United States v. Gonsalves, 668 F.2d 73, 75 (1st Cir.) (citing 2 Wigmore on Evidence §§ 273-77 (Chadbourne Rev.1979)), cert. denied, 456 U.S. 909, 102 S.Ct. 1759, 72 L.Ed.2d 168 (1982).

Although tending to prove consciousness of guilt, evidence of a threat to a witness should not be admitted if its probative value is "substantially outweighed" by the danger of undue prejudice. Fed.R. Evid. 404 advisory committee note. In Monahan, which concerned a threat of "unspecified" harm and not a death threat, we reserved the question of whether an "inflammatory or macabre" threat should be excluded under Rule 403. 633 F.2d at 985 (citing cases in other circuits holding that evidence of inflammatory threats tending to portray defendants as unusually violent is extremely prejudicial and should be excluded). Subsequently Gonsalves provided us an opportunity to consider a death threat. Our analysis in that case clearly controls here.

In Gonsalves we noted that a district court's weighing of probative value against unfair prejudice is reviewable on appeal only for abuse of discretion. 668 F.2d at 75 (citing Dente v. Riddell, Inc., 664 F.2d 1, 5 (1st Cir.1981)). The trial judge in that case had expressly weighed probative value against prejudice as required by Rule 403 and we found no abuse of discretion. In the instant case the judge was not as explicit in weighing these factors. Nonetheless, his invitation to Skelton's attorney to request a limiting instruction if desired suggests that he had come to the conclusion that the danger of unfair prejudice did not outweigh the probative value of the evidence. The judge had no need to be more explicit because, unlike in Gonsalves, defense counsel did not object to the evidence on the basis of unfair prejudice.

The judge exercised his discretion reasonably. As in Gonsalves, 668 F.2d at 75, the government had a substantial need for supplementary evidence; the prosecution's case was based largely on the accomplices' testimony about the hijacking and any evidence showing consciousness of guilt was significant. Defense counsel had the opportunity to cross-examine Lane on his testimony about the threat and we think the court could reasonably have concluded that the ultimate probative weight of the evidence was best left to the jury to decide.

Furthermore, the statement does not appear to have been particularly inflammatory. We reached the same conclusion in Gonsalves in which the defendant made the statement "that broad is dead" in referring to a putative witness. 668 F.2d at 76. The statement here, made during a conversation with Lane after Skelton had received word that Lane might become a government witness, could be viewed as an emotional or impulsive reaction. As such it would have a less prejudicial impact than evidence of calculated, advanced plans to commit one or more murders, such as the evidence considered in United States v. McManaman, 606 F.2d 919, 923-26 (10th Cir.1979), and United States v. Weir, 575 F.2d 668, 669-71 (8th Cir.1978). Although a death threat of any kind is inflammatory and triggers concern about the dangers of prejudice, we do not think the trial judge abused his discretion in admitting the evidence of Skelton's threat to kill Lane.

Skelton presents a second argument under Federal Rule of Evidence 403 concerning Lane's testimony leading up to his statement that Skelton had threatened him. As Lane was questioned by the prosecutor about his conversation with Skelton during which the threat occurred, he apparently started to testify that Skelton had said he had heard from a person who had heard from Ira Feinberg that Lane was going to be a government witness. Ira Feinberg is the brother of Skelton's attorney and represented codefendant Carter. Lane's testimony was interrupted by defense counsel's immediate objection after he mentioned Feinberg's name. After a conference at the bench the judge instructed the jury on the matter¹ and allowed the prosecutor to ask a "bottom line" question designed to elicit directly Lane's testimony about the threat. Skelton's attorney moved for a mistrial on the basis that an instruction would be inadequate to clear up the confusion and erase any inference of a connection between the attorney, his brother, and the threat, or of a link between Skelton and Carter. The trial judge denied the motion and Skelton now argues that the judge erred. Our review of the record leads us to conclude that the...