US v. Doherty

• Decision Date: 26 March 1987
• Docket Number: Crim. No. 86-240-Y.
• Citation: 675 F. Supp. 714
• Court: U.S. District Court — District of Massachusetts
• Parties: UNITED STATES of America, Plaintiff, v. Thomas K. DOHERTY, Nelson E. Barner, Nicholas Salerno, Arthur Pino, Robert W. Clemente, Sr., John A. Deliere, and Michael Doherty, Defendants.

675 F. Supp. 714

UNITED STATES of America, Plaintiff, v. Thomas K. DOHERTY, Nelson E. Barner, Nicholas Salerno, Arthur Pino, Robert W. Clemente, Sr., John A. Deliere, and Michael Doherty, Defendants.

Crim. No. 86-240-Y.

United States District Court, D. Massachusetts.

March 26, 1987.

Robert Mueller, III and John Pappallardo, Boston, Mass., for the U.S.

Thomas Troy, Reading, Mass., for Thomas K. Doherty.

Richard Bachman, Boston, Mass., for Gerald W. Clemente.

Thomas Finnerty, Boston, Mass., for Nelson E. Barner.

Michael Collora, Boston, Mass., for Richard J. Madden.

George Gormley, Boston, Mass., for Nicholas Salerno.

Frank Marchetti, Somerville, Mass., for Arthur Pino.

Thomas May, Boston, Mass., for Frank Ray.

Thomas Noone, Malden, Mass., for Robert W. Clemente Sr.

Richard Egbert, Boston, Mass., for John A. Deliere.

Joseph Flak, Boston, Mass., for Michael J. Doherty.

MEMORANDUM AND ORDER

YOUNG, District Judge.

The defendant John A. Deliere ("Deliere") has been charged with conspiracy under 18 U.S.C. § 371 (1982) in count six of a multi-count, multi-defendant indictment. Deliere moves that this Court strike certain evidence previously admitted pursuant to Fed.R.Evid. 404(b) or, alternatively, sever him from the joint trial. Deliere also moves for a mistrial on the same grounds.

All the defendants charged in this indictment are being tried together. The gravamen of the indictment charges Gerald W. Clemente, Thomas K. Doherty, Nelson E. Barner, and Nicholas Salerno with conspiracy to steal certain Massachusetts police promotional civil service examinations and sell them to aspirants in advance of the examinations being administered (hereinafter "the general conspiracy"). Deliere is charged in count six with conspiring to obtain one of these examinations; he is not implicated in the general conspiracy. Gerald W. Clemente, having pleaded guilty to certain of the charges against him, is testifying as one of the government's principal witnesses. The trial is now in its 36th day after extensive pre-trial proceedings and a lengthy jury empanelment.

In the course of testifying, the Court has permitted Gerald Clemente (and other witnesses) to testify to the sale and receipt of purloined examinations to persons other than those on trial. Such evidence has been admitted against the alleged general conspirators — the Court has not yet made the findings necessary under United States v. Petrozziello, 548 F.2d 20 (1st Cir.1977) since those findings are required to be made at the close of all the evidence, United States v. Patterson, 644 F.2d 890, 896 (1st Cir.1981); see generally United States v. Silvano, 812 F.2d 754, 760-62 (1st Cir.1987) — as probative of the existence of the general conspiracy charged and the carrying out of overt acts thereunder.

As to Deliere, however, only so much of this evidence as details sales prior to the alleged sale to Deliere has been admitted and then only under Fed.R.Evid. 404(b) as probative primarily of Gerald Clemente's opportunity to obtain and sell exams illegally and his intent, plans, preparations, and manner of so doing. The jury has been instructed as to the limited purposes for which this evidence has been received against Deliere. See United States v. Scelzo, 810 F.2d 2, 4 (1st Cir.1987).

On the 19th day of trial Deliere's counsel brought to the Court's attention his offer to the United States Attorney to stipulate to Gerald Clemente's opportunity to obtain and sell exams illegally and as to his general intent, plans, preparation, and manner of doing so. Deliere's position is simple and straightforward — he denies his involvement and claims Gerald Clemente fingered him due to a long standing hostility and vindictiveness toward him. He is quite ready, however, to concede that Gerald Clemente was himself up to no good and will stipulate to each of the points for which the evidence admitted under Fed.R. Evid. 404(b) has been or will be offered against him, if only such evidence is striken as to him. The government refuses to accept the proffered stipulation. Deliere's offer of a stipulation has also provoked objections from other defense counsel¹ who are not nearly so fond of this procedure, thereby giving rise to Deliere's alternative request for the relief of severance as well as his motion for mistrial.

I.

The circumstantial use of character evidence, i.e., the use of extrinsic evidence to prove that a person committed a particular crime or act because he acted in a similar way at some other time not charged, is prohibited under Fed.R.Evid. 404. "Although this `propensity evidence' is relevant, the risk that a jury will convict for crimes other than those charged — or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment — creates a prejudicial effect that outweighs ordinary relevance." United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982). Evidence of other crimes, wrongs, or acts is admissible, though, when introduced for other relevant purposes. Fed.R. Evid. 404(b); see Moccia, 681 F.2d at 63 ("where the evidence has some `special' probative value ... it `may' be admitted"). Other relevant purposes include, but are not limited to,² proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. The evidence must not only be relevant to an issue in the case, but also its probative value must not be outweighed by its unfair prejudice to the defendant. United States v. Scelzo, 810 F.2d 2, 3-4 (1st Cir. 1987); Moccia, 681 F.2d at 63.

In the instant case, the government argues that the other crimes of Gerald W. Clemente are admissible to show his intent and motive to steal and distribute exams, his opportunity to gain access to the exams to effectuate his intended scheme, his preparation for the same over a number of years, and his general plan or scheme to create a network or market for his purloined exams. Deliere does not dispute the government's arguments. Rather, he wishes to stipulate to any and all of the above theories of admissibility. The government has declined to accept the stipulation. The issue is thus whether the government should be compelled to accept the proffered stipulation and whether this Court should strike the previously admitted "other crimes" evidence as to Deliere and preclude the admission of any further 404(b) evidence proffered by the government as against him.

II.

The United States Court of Appeals for the First Circuit has not ruled directly on the authority or propriety of a district court judge compelling a prosecutor to accept a defendant's stipulation as to 404(b) evidence. Cf. Moccia, 681 F.2d at 63 (upholding a district court's admission of prior conviction evidence on issue of knowledge of presence of drugs and noting that defendant did not stipulate to his knowledge); United States v. Timpani, 665 F.2d 1, 6 (1st Cir.1981) (noting the recitation of two prior convictions in the context of a firearms possession case was reasonable in the absence of a stipulation which "would have gone far towards showing that the recitation of two where only one was required under 18 U.S.C.App. § 1202(a)(1) prior convictions was unnecessary, unfair, and prejudicial"). The circuit courts that have addressed the matter are not in complete accord, although "the weight of authority in federal courts seems to hold that the defendant has no right to have his stipulation accepted." 22 C. Wright & K. Graham, Federal Practice and Procedure, § 5194, at 198-99 (1978) (emphasis added).³ Deliere relies upon a series of cases emanating from the United States Court of Appeals for the Second Circuit wherein the prosecutor was held to be bound to accept stipulations as to 404(b) evidence.

In United States v. Mohel, 604 F.2d 748 (2d Cir.1979), the leading case to explicate the Second Circuit Court of Appeals' reasoning on this issue, the court adopted the position that, once a defendant unequivocally offers to concede to the issue of intent and knowledge, other crimes evidence is inadmissible on the issue. The court reasoned that once the intent and knowledge issues are removed, any other crimes evidence would not be probative, but would be highly prejudicial. In effect, the court performed the balancing under 404(b) ex ante as matter of law thereby removing it from the district court's discretion. The reasoning of the court in Mohel was later followed in United States v. Figueroa, 618 F.2d 934 (2d Cir.1980) (error to admit prior conviction as to the issue of intent where previously stipulated to).

More recently, in United States v. Pedroza, 750 F.2d 187 (2d Cir.1984), cert. denied, ___ U.S. ___, 107 S.Ct. 151, 93 L.Ed.2d 92 (1986), the same court concluded that the district court did not abuse its discretion in admitting evidence of a prior cocaine transaction over a defense counsel's offer to stipulate. The court stated that a "bare stipulation" was insufficient to explain the "rather unusual theories offered to explain the events. A party is normally permitted `to present to the jury a picture of the events relied upon. To substitute for such a picture a naked admission might ... rob the evidence of much of its fair and legitimate weight.'" Id. at 201 (emphasis added) (quoting Dunning v. Maine C.R.R., 91 Me. 87, 97, 39 A. 352, 356 1897); United States v. King, 616 F.2d 1034, 1042 (8th Cir.), cert. denied, 446 U.S. 969, 100 S.Ct. 2950, 64 L.Ed.2d 829 (1980). The Eleventh Circuit Court of Appeals has since interpreted the Second Circuit Court's decision in Pedroza as holding that "whether to accept a stipulation is a matter in the discretion of the trial court." United States v. Williford, 764 F.2d 1493, 1498 (11th Cir.1985) (distinguishing Mohel as involving an unequivocal offer to stipulate issue of intent).

Even assuming that Pedroza only liberalized Mohel in those particular situations where the stipulation goes to evidence necessary to provide an ...