United States v. Weadick

• Decision Date: 24 September 2021
• Docket Number: No. 18-1932,Nos. 18-1899,18-1933,s. 18-1899,18-1932
• Citation: 15 F.4th 1
• Parties: UNITED STATES, Appellee, v. Paul M. WEADICK, Defendant, Appellant. United States, Appellee, v. Francis P. Salemme, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

15 F.4th 1

UNITED STATES, Appellee,

v.Paul M. WEADICK, Defendant, Appellant.

United States, Appellee,

v.Francis P. Salemme, Defendant, Appellant.

Nos. 18-1899

18-1933

No. 18-1932

United States Court of Appeals, First Circuit.

September 24, 2021

Mark W. Shea, with whom Shea and LaRocque, LLP was on brief, for appellee Weadick.

Lawrence Gerzog for appellee Salemme.

Randall Ernest Kromm, Assistant United States Attorney, with whom William J. Ferland, Assistant United States Attorney, Donald C. Lockhart, Assistant United States Attorney, and Harvey Smith, Office of General Counsel, U.S. Marshals Service, were on brief, for appellant.

Before Kayatta and Barron, Circuit Judges, and Smith, District Judge.^*

KAYATTA, Circuit Judge.

Francis P. Salemme and Paul M. Weadick were tried and convicted of murdering Steven DiSarro in 1993 in order to prevent DiSarro from talking with federal agents about his activities with Salemme, Weadick, and Salemme's son, Frank Jr. See 18 U.S.C. § 1512(a)(1)(C). At the time of the murder, Salemme was the boss of a criminal organization known as the New England La Cosa Nostra ("NELCN").

The principal issues on this appeal arise from the admission at trial of a large amount of evidence concerning the prior criminal activities of Salemme and several witnesses. Weadick complains, among other things, that by trying him jointly with Salemme and then introducing evidence covering three decades of crimes by Salemme, the government deprived him of a fair trial. Salemme, in turn, argues that much of that evidence about his past was inadmissible hearsay or propensity evidence. For the following reasons, we reject these contentions and the other challenges raised in this appeal.

I.

In 1992, DiSarro bought a closed nightclub in Boston with funds he received from Frank Jr. Because DiSarro was under investigation at the time, the papers listed DiSarro's stepbrother as the owner. Frank Jr. was kept on the books as a part-time manager, which allowed him to avoid a full curfew as a condition of pre-trial release following his arrest on labor racketeering charges. Weadick, a close friend of Frank Jr., was hired as a night manager. Weadick and Frank Jr. had a history of ripping off drug dealers together, knowing that the specter of the NELCN would deter any retaliation.

In March of 1993, a federal agent approached DiSarro, telling him that he was under investigation and asking him to cooperate. Upon hearing this news, Salemme voiced concern that DiSarro would implicate Frank Jr. and eventually Salemme himself. Weadick expressed similar concerns to Frank Jr. Around the same time, Frank Jr. and Salemme also told others that they suspected DiSarro of stealing from the nightclub. Having trouble getting a meeting with DiSarro, Weadick and Frank Jr. discussed inviting him to Salemme's house to make him feel safe.

Soon thereafter, DiSarro was approached by another federal agent, who told him he had been indicted, and, for the second time, asked him to cooperate with the government. DiSarro reported this contact to both his stepbrother, who nominally owned the club, and his wife. The next morning, DiSarro's wife watched him get into a car she didn't recognize, but her description of the vehicle matched a car Frank Jr. sometimes used. She never saw her husband again.

Over twenty years later, a Rhode Island excavator, who had been charged with committing various offenses, led law enforcement officials to a location in Rhode Island where they unearthed DiSarro's remains. Forensic examination revealed that DiSarro had been strangled. The excavator's information also led to Robert DeLuca, a captain in the NELCN, who confessed that he had received DiSarro's body from Salemme with orders to dispose of it. DeLuca reported that he had heard from Salemme that Weadick had driven DiSarro to Salemme's house, where Frank Jr. strangled DiSarro as Weadick held his legs, all in Salemme's presence.

DeLuca's information provided the breakthrough law enforcement had been looking for in investigating DiSarro's disappearance. Eventually, the government initiated this case by indicting Salemme and Weadick for murdering DiSarro with the intent, at least in part, to prevent him from talking to federal authorities. Frank Jr. had died by the time charges were filed.

At trial, Steven Flemmi -- a confessed murderer -- testified that he walked in on DiSarro's murder at Salemme's house as it was happening, just as DeLuca described it. Weadick's girlfriend at the time of the murder testified that she had overheard Weadick and Frank Jr. expressing concerns that DiSarro "had a big mouth" right before the murder. She also reported that Weadick left their apartment shortly thereafter and was in an agitated state when he returned. He gave her a man's bracelet and told her that she would not need to worry about seeing DiSarro again. Later, as they were driving south of Boston, Weadick told her that a location they had passed would be a good place to bury a body.

After twenty-three days of trial, the jury found both defendants guilty. This appeal followed.

II.

Much of the evidence admitted against Salemme and Weadick consisted of out-of-court statements made by other individuals associated with NELCN activities. Salemme and Weadick each argue that various such statements were improperly admitted under Federal Rule of Evidence 801(d)(2)(E) as statements by a party's co-conspirator. Weadick also contends that the admission of certain out-of-court statements made by his co-defendant, Salemme, violated his rights under the Confrontation Clause because Salemme did not take the stand.

A.

Federal Rule of Evidence 801(d)(2)(E) allows a court to admit out-of-court statements by a party's co-conspirator if made during the conspiracy and in furtherance of that conspiracy. As we apply the rule in this circuit, a party seeking to introduce a statement under the rule must prove to the district court by a preponderance of the evidence that: (1) when the statement was made, the declarant was a member of a conspiracy, (2) the defendant was also (or later became) a member of the same conspiracy, and (3) the statement was made in furtherance of that conspiracy. See United States v. Saccoccia, 58 F.3d 754, 778–79 (1st Cir. 1995). We have dubbed the district court's determination as to whether the proponent has satisfied this burden a " Petrozziello ruling," after our holding in United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977). See United States v. Ciresi, 697 F.3d 19, 25 (1st Cir. 2012). The district court may provisionally admit the statement when it is introduced and defer a final Petrozziello ruling until the close of evidence. Id. If the district court decides at the close of evidence that one or more provisionally admitted statements is inadmissible, the court must "give a cautionary instruction to the jury, or, upon an appropriate motion, declare a mistrial if the instruction will not suffice to cure any prejudice." United States v. Ciampaglia, 628 F.2d 632, 638 (1st Cir. 1980).

In accord with these procedures, the district court in this case provisionally admitted several sets of out-of-court statements against Salemme and Weadick and then, at the close of evidence, issued a final Petrozziello ruling finding those statements admissible under Rule 801(d)(2)(E). Salemme and Weadick challenge various aspects of that ruling on appeal. As we will note, some of those challenges were properly preserved, while others were not.

1.

We begin by quickly disposing of Salemme and Weadick's general arguments that cover all the statements before moving to objections to specific sets of statements. First, Salemme and Weadick contend that it was improper for the district court to find that they were members of any conspiracy at all, given that neither of them was specifically charged with the crime of conspiracy. But the hearsay exception under Rule 801(d)(2)(E) can apply "regardless of whether the conspiracy furthered [by the alleged hearsay] is charged or uncharged and regardless of whether [the conspiracy] is identical to or different from the crime that the statements are offered to prove." United States v. Lara, 181 F.3d 183, 196 (1st Cir. 1999) (internal citations omitted). Therefore, whether preserved or not, this general argument fails.

Salemme and Weadick also complain that the district court abused its discretion by making a blanket Petrozziello ruling, finding that the Rule 801(d)(2)(E) standard was satisfied "with regard to all of the statements that were [provisionally] admitted under the co-conspirator exception" at once (emphasis added). They argue that the district court should instead have identified the particular conspiracy furthered by each challenged statement. But this argument ignores the fact that the district court explicitly gave Salemme and Weadick the opportunity to request additional findings. Neither defendant requested any additional findings on the Petrozziello ruling, and Salemme affirmatively indicated that he was not making any such request.¹ Having thus assured the court that no more specific findings were needed or requested, defendants cannot now complain that the district court's ruling was too general. See United States v. Medina, 427 F.3d 88, 91 (1st Cir. 2005) ; see also United States v. Castellini, 392 F.3d 35, 50 (1st Cir. 2004) (rejecting a procedural argument that the district court "never made explicit findings regarding the existence of the conspiracy and whether the statements were made in furtherance of the conspiracy" where the defendant "did not ask the court to be more specific"). Their second general argument to the district court's Petrozziello rulings therefore also fails.

2.

We turn now to the specific statements whose admission Salemme and Weadick challenge under Rule 801(d)(2)(E). Salemme directs us first to a portion of the trial transcript containing a recorded conversation in which Frank Jr. brags about several exploits and...