United States Court of Appeals For the First Circuit
Nos. 96-1916
UNITED STATES OF AMERICA,
Appellee,
v.
FRED AWON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Stahl, Circuit Judge,
Coffin and Aldrich, Senior Circuit Judges.
Robert A. George for appellant.
James F. Lang, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for
appellee.
February 2, 1998
COFFIN, Senior Circuit Judge. Defendant Fred Awon appeals
his conviction for arson, use of a fire to commit a felony, and
mail fraud. He asserts that the district court erred in: (1)
admitting prior consistent statements of two government
witnesses; (2) limiting cross-examination of a witness; (3)
refusing to grant a mistrial after improper cross-examination of
defendant; and (4) imposing too high a base offense level at
sentencing. Most of this opinion deals with the first issue. We
fault the government for pressing admission and the court for
admitting the evidence, but conclude that the error could not
have affected the verdict. We affirm.
I. BACKGROUND
Defendant was convicted by a jury for twice orchestrating
the arson of a building located on Ames Street in Brockton,
Massachusetts ("the Ames building") by hiring James St. Louis,
and two brothers, Jorge and Joaquim Neves, to set the fires.1
The Ames building, owned by defendant and his father, contained
vacant retail space on the first floor and two occupied
residential apartments on the second floor at the time of both
fires. The first fire caused minimal damage; the second required
the demolition of the building and two adjacent buildings.
1 St. Louis and defendant were tried together, but St. Louis, indicted for setting both fires, was convicted for setting the second fire only. Jorge Neves, who was involved in the first fire, was never charged, but Joaquim was indicted on four separate counts and, before trial, entered into a plea agreement with the government whereby he pled guilty to arson and mail fraud counts stemming from his role in the second fire.
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We review the evidence presented at trial by defendant and
the government. Because defendant does not challenge the
sufficiency of the evidence, we describe the relevant evidence
without favor to either party to provide context for the claimed
errors. See United States v. Morla-Trinidad, 100 F.3d 1, 2 (1st
Cir. 1996).
A. The Neves Brothers
Jorge testified that, in mid-1994, St. Louis recruited him
to help set fire to the building, stating that they would receive
money and a car as payment from defendant, who owned a used car
dealership. Jorge admitted to pouring and lighting gasoline on
the first floor of the building, at the direction of St. Louis.
Firefighters arrived shortly thereafter, preventing damage to the
building; as a result, Jorge never received payment from
defendant.
Jorge's testimony also revealed that the government agreed
not to prosecute him in exchange for his cooperation in court,
that for the past six months he had been held in custody as a
material witness and wanted to be released, and that he had
several criminal cases pending against him at the time of trial.
Joaquim testified that, in the summer of 1994, he learned
from St. Louis' brother that defendant was looking for someone
who would burn down the Ames building. Joaquim reported that he
agreed to set the fire in exchange for $5,000, and then solicited
St. Louis' assistance; but, an illegal immigrant, he was detained
by the United States Immigration and Naturalization Service (INS)
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before he could act. After his release on bail, he and St. Louis
told defendant they would set the fire. Joaquim testified that
he witnessed defendant agree to pay St. Louis with a car valued
at $2,900. Joaquim admitted pouring gas on the first and second
floors of the Ames building, which was then lit by St. Louis,
resulting in an explosion and fire that destroyed the building.
Joaquim also testified that, the day after the fire, he and
St. Louis went to defendant's shop, where St. Louis signed
paperwork for the car. The following day, Joaquim went with St.
Louis to get the car from defendant, and a few days later, he
personally received $2,100 in cash from defendant.
Joaquim reported that, in exchange for his testimony and a
guilty plea, the government would request that the court depart
downward from his guidelines sentence. He also acknowledged that
he feared impending deportation, and that he had an extensive
criminal history.
Defendant denied soliciting either of the Neves brothers to
commit arson. He explained that Joaquim had become angry with
him sometime prior to the fire because defendant had refused to
provide him with bail from INS custody, and had twice ordered
Joaquim off his car lot. On the first occasion, about two weeks
before the second fire, Joaquim told defendant that he wanted to
buy an expensive car, and became angry when defendant questioned
him about where he would get the money; the second time, when
defendant asked Joaquim whether he had been involved in the fire,
Joaquim responded in the negative, but smirked suspiciously. On
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cross-examination, defendant stated that he did not tell the
police when they interviewed him before trial about any existing
hostility between himself and Joaquim.
St. Louis' brother denied having any conversation with
defendant or Joaquim about burning defendant's property.
B. The Car Transfer
In addition to Joaquim's testimony that defendant paid St.
Louis with a car, the government introduced into evidence
business records belonging to the defendant's auto company.
These indicate that defendant sold a car to St. Louis for $2,000
one day after the second fire. They also indicate that, a few
months earlier, the company had purchased that same car for
$2,220.
Defendant testified that the sale to St. Louis was a
legitimate one, for which he received $2,000 in cash. He
explained that he sold at a loss because the car had mechanical
problems and had failed to sell for a few months at the intended
price of $3,500. Defendant said that he questioned St. Louis
about the source of the $2,000, and that St. Louis refused to
answer him.2
Joaquim's mother testified that, when her son was in INS
custody, she gave St. Louis $1,000 toward the $3,000 needed for
his bail and, the following day, Joaquim was released. The
defense argued that this evidence showed, inferentially, that St.
Louis had supplied the remaining $2,000, which, as soon as
2 St. Louis did not testify at trial.
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Joaquim repaid it, St. Louis used to buy the car from defendant.
On cross-examination by the government, Joaquim's mother stated
that she did not know whether St. Louis put up any money for
Joaquim's release on bail from INS custody.
C. Motive
The government introduced evidence showing that the Awons
were losing money on the Ames buildings and, at the time of both
fires, the property was insured for loss to the structure of up
to $80,000, and losses attributable to business interruption of
up to $12,000. After the first fire, defendant and his father
negotiated an insurance settlement in the amount of $4,171.
After the second fire, they negotiated a settlement totalling
$91,176, and then used this money to pay their mortgage on the
property.
Defendant's parents testified that all of the money invested
in the Ames building belonged to them, that their son had no
responsibility for financial expenditures related to the
building, and that he had never received rental income from the
apartments. They explained that their son's name was included on
the deed and mortgage only because they did not speak English
fluently and needed their son's assistance to translate the
documents. They described their son's involvement with the
property as limited to showing the apartments to prospective
tenants and responding on occasion to maintenance requests. They
also stated that they, not their son, received the settlement
money after the fires.
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Defendant testified that, while a co-owner of the Ames
building, he did not put up any of the purchase money, make any
mortgage payments, or pay taxes on the property. On cross-
examination, however, the government introduced evidence that
defendant had made at least one mortgage payment on the property.
Defendant then stated that he could not remember having made any
other mortgage payments. He also admitted that his name was
listed on the settlement check from the insurance company, but
maintained that his father received all the proceeds.
II. ADMISSION OF THE NEVES' OUT-OF-COURT STATEMENTS
The first and only difficult issue we consider in this case
is the admission at trial of out-of-court statements made by the
Neves brothers. Each brother made a written and oral statement
to police months before trial, implicating himself, St. Louis and
defendant in the respective arsons. These statements, which were
otherwise inadmissible as hearsay, were admitted at trial under
an exception for prior consistent statements. We generally
review admission of hearsay evidence for abuse of discretion.
United States v. Paulino, 13 F.3d 20, 25 (1st Cir. 1994). But
where, as here, the issue concerns a factual determination, such
as when the statement was made relative to a suggested motive to
fabricate, we review for clear error. See United States v. Vest,
842 F.2d 1319, 1329 (1st Cir. 1988). We may affirm the district
court's admission of hearsay testimony on any ground apparent
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from the appellate record. United States v. Alzanki, 54 F.3d
994, 1008 (1st Cir. 1995).
A. Rule 801(d)(1)(B)
The district court allowed use of the Neves' out-of-court
statements under Fed. R. Evid. 801(d)(1)(B). Under that rule,
prior consistent statements that would otherwise be inadmissible
hearsay evidence may be admitted into evidence when: (1) the
declarant testifies at trial and is subject to cross-examination;
(2) the challenged statements and trial testimony are consistent;
and (3) the challenged statements are offered to rebut a charge
that the declarant recently fabricated his story, or that the
declarant became subject to some improper influence or motive to
falsify after making the statements. See Tome v. United States,
513 U.S. 150, 158 (1995) (holding that consistent out-of-court
statements may be admitted to rebut a charge of recent
fabrication or improper influence or motive only when those
statements pre-date the charged fabrication, influence, or
motive3).
The issue of the Neves' pre-trial cooperation was raised
initially on cross-examination. In response to defense
3 In Tome, the prosecution introduced a child's out-of-
court statements concerning sexual abuse by her father, who had primary custody, made while the child was on vacation with her mother. The defense argued at trial that the child's testimony was motivated by her desire to live with her mother. The trial court admitted the statements, but the Supreme Court reversed, reasoning that their admission was improper because the child possessed the same motive -- to live with her mother -- at the time she made the out-of-court statements as when she testified in court. 513 U.S. at 150-55, 166.
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questions, Jorge testified that he first made statements
implicating himself, defendant, and St. Louis in the fire only
after the police said they knew he was involved and promised not
to charge him if he cooperated. Similarly, Joaquim explained on
cross-examination that he made out-of-court statements to
investigators only after they said they knew he had set the fire,
had a lengthy criminal record, and was being sought for
deportation, and then promised that they would bring any
cooperation to the prosecutor's attention.
On redirect of each brother, the court allowed the
government to introduce their out-of-court oral and written
statements under Rule 801(d)(1)(B). The oral statements were
introduced through the testimony of a government agent; the
written statements were admitted as evidence. The government
argued, and the court agreed, that these statements were
admissible to rebut the motive to fabricate presented by the
defense, namely, incentive by the brothers to reduce their
punishment for arson. The defense objected, arguing that the
alleged motive to fabricate pre-dated these statements, rendering
Rule 801(d)(1)(B) unavailable. Defendant renews this objection
on appeal.
Our review persuades us that the defendant is correct. The
motive to fabricate alleged by the defense -- desire for leniency
-- was the same when the Neves brothers first spoke with police
as at the time of their testimony at trial. The government
attempts to justify use of the out-of-court statements by
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pointing out that the defense ascribed additional motives and
influences to the Neves that did not exist when the out-of-court
statements were made. These were, as to Jorge, that (1) he
testified to obtain release from a six-week long incarceration as
a material witness; (2) he hoped to receive in exchange for his
testimony some dispensation in a different -- and new -- matter
pending against him; (3) his testimony was influenced by pre-
trial preparation with the agent who interviewed him. As to
Joaquim, these were (1) anticipation of a lesser sentence under a
plea agreement that promised a government request for a downward
departure of his sentence following his testimony at trial, and
(2) trial preparatory sessions with the government. While it is
true that these allegations post-dated the out-of-court oral and
written statements, the overarching motive alleged by the defense
always was hope of leniency, and therefore, the "new" motives
amount to no more than smaller subsets of the larger theme. For
instance, the assertion that the prosecution directed the Neves'
testimony assumes that the brothers had a reason to do as the
government requested, namely, hope of a reduced sentence or
charge. Likewise, Jorge's desire to obtain release from custody
as a material witness was just a specific incarnation of his more
general desire not to be jailed for his role in the first fire.
See United States v. Albers, 93 F.3d 1469, 1482-84 (10th Cir.
1996) (even where the circumstances underlying a motive to
fabricate have changed somewhat -- a formal plea agreement was
entered after the statement was made, but before testimony at
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trial -- prior consistent statements remain inadmissible if the
motive remains essentially the same).
Because all the defense allegations of motive to fabricate
grew from the same foundation -- a pursuit of leniency -- the
brothers' out-of-court statements were erroneously admitted under
Rule 801(d)(1)(B).
B. The Doctrine of Completeness
The inadmissibility of these statements under Rule
801(d)(1)(B) does not end our discussion, as we must explore
whether the statements could be properly admitted on some other
ground apparent from the appellate record. Alzanki, 54 F.3d at
1008. The government argues that Joaquim's prior statements4 are
admissible under the doctrine of completeness. This doctrine,
codified in Fed. R. Evid. 106, holds that an otherwise
inadmissible recorded statement may be introduced into evidence
where one side has made a partial disclosure of the information,
and full disclosure would avoid unfairness to the other party.
See Irons v. FBI, 880 F.2d 1446, 1453 (1st Cir. 1989); United
States v. Range, 94 F.3d 614, 620 (11th Cir. 1996).
While defense counsel cross-examined Joaquim concerning the
substance of his written interview statement, and did highlight
some inconsistencies between that statement and Joaquim's trial
4 The government makes no such claim as to Jorge's statements, but our analysis considers the doctrine as to both defendants, as we may affirm on any legal ground.
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testimony,5 there is no evidence that -- and the government has
made no allegation that -- the introduction of these pieces of
information created any unfairness or potential for
misimpression. To the contrary, the government's primary
argument is that the written statements bolster the Neves' in-
court testimony. The doctrine of completeness does not permit
the admission of otherwise inadmissible evidence simply because
one party has referred to a portion of such evidence, or because
a few inconsistencies between out-of-court and in-court
statements are revealed through cross-examination; rather, it
operates to ensure fairness where a misunderstanding or
distortion created by the other party can only be averted by the
introduction of the full text of the out-of-court statement. See
United States v. Ellis, 121 F.3d 908, 921 (4th Cir. 1997). Here,
the inconsistencies revealed were minute insofar as defendant's
basic involvement is concerned, and the Neves clearly identified
defendant at trial as the mastermind of the Ames building arsons.
The doctrine of completeness therefore does not provide a basis
for introduction of the earlier statements.
C. Harmless Error
The government argues that, even if the introduction of the
statements constitutes error, the error was harmless. The
erroneous admission of hearsay requires reversal unless the error
5 Among other minor inconsistencies, the defense brought out Joaquim's earlier claims that he was solicited to set the fire by defendant directly rather than by St. Louis' brother, that he received $2,500 rather than $2,100 in payment, and that, though both were together, he and not St. Louis lit the gasoline.
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is shown to be harmless beyond a reasonable doubt. See United
States v. Lombard, 72 F.3d 170, 187 (1st Cir. 1995).
By definition, prior consistent statements do not consist of
new substantive information. Their impact comes from
corroborating other, perhaps less compelling, evidence. The form
in which the material is presented to the jury also may affect
its weight if legitimacy, possibly otherwise weak, is thereby
attached to the statements. See United States v. Siegel, 717
F.2d 9, 19 (2d Cir. 1983). The question we must answer is
whether corroboration resulting from the introduction of the
prior consistent statements influenced the jury to the
defendant's detriment. See United States v. Quinto, 582 F.2d
224, 236 (2d Cir. 1978) (finding such influence where the
erroneously admitted out-of-court written statement was an
official Internal Revenue Service document, and a lengthy,
detailed "condensation of the government's whole case against
defendant").
As with the typical admission of prior consistent
statements, the introduction of the out-of-court statements did
not themselves supply any new information to the jury. Rather,
the testimony adduced at trial was complete and convincing in
tying defendant to the crime. Not only did the Neves implicate
themselves, St. Louis and defendant at trial, but on cross-
examination, they revealed having reported defendant's
solicitation of them to authorities months before trial.
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Nonetheless, both the oral and written statements
unquestionably had some effect. The government agent's testimony
about the oral confessions lent a measure of credibility to the
Neves' stories, if only because a government agent was shown to
have believed them. Similarly, the written statements, because
they were reduced to print and reviewable during deliberations,
added weight to the in-court testimony. See id. (describing the
introduction of written consistent statements as "[t]he
government witnesses in effect accompan[ying] the jury into the
jury room.") But, unlike the statements in Quinto, the written
confessions were not detailed, official documents from an agency
denoting authority. Rather, they were fairly compact -- one just
over one page, the other, just over two pages -- handwritten
statements made by the witnesses themselves, replete with
grammatical and spelling errors. While revealing slight
inconsistencies, the out-of-court statements essentially amounted
to an abbreviation of the Neves' in-court testimony implicating
defendant.6 This in-court testimony, supported by the
circumstantial evidence of motive and car transfer, was
unwavering and unambiguous.
6 On direct, the prosecution failed to elicit testimony from Jorge implicating defendant, but on cross-examination, the defense several times led Jorge to affirm defendant's involvement, which testimony was confirmed on redirect. Because Jorge's testimony on direct alone did not clearly implicate defendant and did not reveal the prior statements to authorities, our analysis would be different if we had only this testimony to consider.
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The exculpatory evidence presented by defendant was minimal
and largely unsupported. For example, it seems unlikely that
defendant would sell a car at a loss, and $1,500 less than asking
price, without first attempting to sell it at a price slightly
reduced from $3,500. In addition, the timing of the sale,
shortly after the second fire, was highly suspect, and defendant
had an undeniable economic motive to burn the property, even if
the jury believed his claim that his parents received the
insurance proceeds. Nor does defendant's explanation of how St.
Louis came into $2,000 seem plausible; first, it assumes that St.
Louis had $2,000 to lend Joaquim for bail and second, Joaquim's
mother testified that she had no knowledge that St. Louis had
contributed toward Joaquim's bail. Similarly, while defendant
and his parents claimed that he had no financial interest in the
Ames building, the circumstantial evidence presented indicated
otherwise; for instance, his name was listed on all Ames building
legal documents, including the settlement check, and, despite his
initial testimony to the contrary, he made at least one mortgage
payment on the property. Finally, defendant's claim that Joaquim
would have sufficient animosity toward him to set the fire or
testify against him seems unlikely, and is unsupported by
evidence other than defendant's own testimony. As the evidence
against defendant was plentiful and in no way illuminated by the
out-of-court statements, we are persuaded beyond a reasonable
doubt that the statements did not influence the jury to
defendant's detriment. We emphasize that it is the strength of
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the evidence properly introduced at trial implicating defendant
that renders this serious error harmless.
That the statements constituted unnecessary emphasis makes
the government's efforts to introduce them particularly difficult
for us to understand. Where the law so clearly bars such
statements and the evidence is so weighty against the defendant,
the government's arguments for their introduction strike us as a
serious and careless abuse of the rules of evidence. This fact
notwithstanding, the evidence compels us to find that the error
was a legally harmless one.
III. ALLEGED ERRORS DURING CROSS-EXAMINATION AND SENTENCING
Defendant argues that the district court erred in limiting
his cross-examination of Joaquim, that the prosecutor improperly
implied, without basis, that he had funded his codefendant's
defense, and finally, that the court erred in calculating the
defendant's base offense level for two arson counts. We examine
each allegation in turn.
Defendant contends that the trial court violated his Sixth
Amendment right to confront adverse witnesses when it refused to
allow him to question Joaquim about his history of drug dealing.
A trial court's restriction of cross-examination may be reversed
only for abuse of discretion. United States v. Ovalle-Marquez,
36 F.3d 212, 217 (1st Cir. 1994). To show abuse, the defendant
must demonstrate that the restriction left the jury without
sufficient information to make a discriminating assessment of the
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witness' bias or motives. United States v. Twomey, 806 F.2d
1136, 1140 (1st Cir. 1986).
Defendant maintains that the testimony should have been
admitted because it supports the defense theory that Joaquim set
fire to the Ames building on his own initiative to dissuade
defendant, a past informant for the Drug Enforcement
Administration ("DEA"), from reporting his drug dealing, or,
alternatively, as revenge because he believed defendant had
already reported him. During a sidebar discussion, the court
asked for some offer of proof from defendant that Joaquim had
reason to believe that defendant would report him. Defendant
offered evidence that, before the second fire, Joaquim told
defendant that he would soon be getting a great deal of money and
that Joaquim became hostile when defendant questioned him about
its source. Joaquim, however stated on voir dire that he had
been unaware that defendant was a DEA informant, and defendant
offered no evidence in rebuttal. Concluding that defendant's
offered evidence was too tenuous, the court prohibited the cross-
examination about drug dealing.
In light of the sparse evidence presented by defendant
linking Joaquim's drug-dealing to a motive to burn down the Ames
building, no showing that Joaquim knew that defendant had
reported drug dealers to the DEA, and extensive opportunity for
the defense to question Joaquim as to bias and motive on a
variety of other issues for which there was an evidentiary basis,
we find that the court did not abuse its discretion in excluding
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this line of questions. Defendant also challenges the
court's failure to grant a mistrial after the government asked
him whether he had agreed to pay St. Louis' defense costs. St.
Louis' attorney objected to this questioning and requested a
mistrial on the ground that the information on which it was based
was unreliable and misleading. The court sustained the objection
but denied the mistrial, opting instead for a curative
instruction which directed the jury to disregard the question
because the government offered no evidentiary basis for it.
Although joining in the request for a curative instruction,
defendant's attorney did not join in the request for a mistrial,
and at no time did he object to any portion of the instruction or
allege its insufficiency.
Because the defense failed to raise this issue below, we
review it only for plain error. United States v. Crochiere, 129
F.3d 233, 237 (1st Cir. 1997). Even assuming the questioning was
improper, we conclude that the court properly refused to grant a
mistrial, and that it presented the jury with a comprehensive
curative instruction, wholly satisfactory under the
circumstances. "Declaring a mistrial is a last resort, only to
be implemented if the taint [from improper information] is
ineradicable, that is, only if the trial judge believes that the
jury's exposure to the evidence is likely to prove beyond
realistic hope of repair." United States v. Sepulveda, 15 F.3d
1161, 1184 (1st Cir. 1993). In this case, the questioning was
brief, and the judge was careful to explain to the jury that (1)
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the question was improper; (2) there was no offered evidentiary
basis for the facts suggested by the question; and (3) the
question should be disregarded "entirely." As we presume that
juries follow the court's instructions, and defendant has not
shown that the questioning resulted in serious prejudice as
required to overcome the presumption, United States v. Rullan-
Rivera, 60 F.3d 16, 18 (1st Cir. 1995), we conclude that the
court did not commit plain error.
Finally, defendant contends that the court erred in using a
base offense level of twenty-four rather than twenty on the arson
counts. The higher level applies if the defendant can be found
to have knowingly created a substantial risk of death or serious
bodily injury; the lower level applies where the "knowing"
element is not met. U.S.S.G. 2K1.4(a)(1), (2). Defendant was
convicted for two separate acts of arson, based on evidence that
he hired others to burn down a residential and commercial
property to collect insurance proceeds. It does not follow that,
as defendant contends, because the fires were carried forth in an
"amateurish" fashion, his effort to burn a building in which
people lived was anything other than a knowing creation of a
substantial risk of death or serious bodily injury. We therefore
reject the argument as without merit.
For the reasons stated above, we affirm the judgment of the affirm
district court.
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