USCA1 Opinion
United States Court of Appeals
For the First Circuit
No. 97-2013
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN LiCAUSI,
Defendant, Appellant.
No. 97-2014
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES FOGARTY, III,
Defendant, Appellant.
____________________
No. 97-2030
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTOPHER DURFEE f/k/a CHRISTOPHER DUPRE,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Selya, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Boudin, Circuit Judge.
Glenn G. Geiger, Jr. with whom Geiger & Heiser was on brief
for appellant James Fogarty, III.
Stephen A. Cherry with whom Wright, Cherry & Callen was on
brief for appellant Christopher Durfee.
John H. LaChance with whom Victoria L. Nadel was on brief for
appellant John LiCausi.
Donald A. Feith, Assistant United States Attorney, with whom
Paul M. Gagnon, United States Attorney, was on brief for appellee.
January 27, 1999
ALDRICH, Senior Circuit Judge. John LiCausi, James
Fogarty, III, and Christopher Durfee were convicted in the
United States District Court for the District of New Hampshire
of multiple offenses in connection with the robbery and
attempted robbery of several grocery stores and restaurants.
They allege several points of error as they challenge their
convictions and sentences. We affirm.
I. BACKGROUND
A. Facts
We consider the evidence in the light most favorable
to the prosecution, see United States v. Josleyn, 99 F.3d
1182, 1185 n.1 (1st Cir. 1996), as we determine the basic
facts the jury reasonably could have found. We will add to
our sketch other facts as they become necessary to the
discussion of particular claims of error.
On several occasions in November of 1995, Bernie
Subocz and defendants Durfee and Fogarty met at Fogarty's
garage in Lawrence, Massachusetts to discuss committing armed
robberies of supermarkets. As the meetings continued into
December, defendant LiCausi was introduced to the group by
Fogarty and participated in the discussions. Subocz also had
several robbery-related telephone conversations with Fogarty
and Durfee during this time.
Topics of discussion included the division of
responsibilities in obtaining necessary equipment. Subocz
already owned a scanner for listening in on law enforcement
radio transmissions, a frequency guide to use in programming
the scanner, and two-way radios for communicating during
robberies. LiCausi was to obtain a shotgun, while Subocz
would obtain one or two pistols. Fogarty contributed $300
towards the pistol purchase, and Subocz later had his
girlfriend, Lori Munroe, buy two nine-millimeter semiautomatic
pistols, a Beretta and a Smith & Wesson, and hollow-point
ammunition. Subocz later acquired a shotgun and radio
frequency guides for several different local areas. Fogarty
later bought hats, gloves, jumpsuits, and three pairs of
rubber boots.
Members of the group soon began seeking out targets.
Subocz and Fogarty started things off by robbing a D'Angelo
Sandwich Shop in Stoneham, Massachusetts on December 8, 1995.
Wearing masks and gloves and carrying the two loaded pistols,
they made off with between one hundred and two hundred dollars
each. The pair then attempted to rob a supermarket in Ohio on
December 17. After casing the market and buying hats and a
frequency guide for the area, they entered the store wearing
gloves and hats and each concealing a pistol. Subocz
initially spoke to the manager regarding a rotten head of
lettuce he claimed to have purchased, then pulled his shirt up
to his eyes and showed his weapon. On their way to the store
safe, however, the manager stopped to speak to an employee,
unnerving the robbers and prompting them to leave immediately.
Durfee started participating in actual robberies
about a week later. A few days after spending the evening of
December 23 with Subocz but failing to find a suitable target,
the pair robbed a Burger King in Kittery, Maine after one of
the group's meetings. They each carried one of the two
pistols, Durfee having "rented" the Smith & Wesson from
Fogarty for one or two hundred dollars. They both showed
their weapons, and Subocz forced the manager to hand over all
of the cash in the office, some $1,400. The pair netted
substantially more, some $66,000 in cash, from their next
robbery, that of a Vista Foods supermarket in Manchester, New
Hampshire on January 3, 1996. Subocz first cased the market
a few days before and notified Durfee of its potential. Then,
on the designated evening, they hid in a closet next to the
manager's office with the two pistols and waited for the store
to close. They burst out of the closet, surprising the
manager, and threatened him with their weapons. They had him
open the safe, then cleaned it out and made their escape.
LiCausi started participating in actual robberies
with an attempt on a Market Basket in Woburn, Massachusetts
during that January. Subocz, Fogarty, and either Durfee or
LiCausi were slated to participate, and LiCausi ultimately got
the call. After one or more of the men had cased the store
over the course of several days, all three went there between
five and seven o'clock the morning of their attempt. In
addition to the standard robbery attire, including masks and
gloves, they had the pistols, the scanner, the frequency
guide, and the two-way radios. LiCausi wore a jumpsuit that
Fogarty had purchased. They ultimately abandoned their
attempt because they feared a newspaper delivery truck parked
in front of the store contained a SWAT team or other police
officers.
Jason Fournier, an acquaintance of Subocz, Fogarty,
and Durfee who had agreed sometime during the previous year to
become involved in robberies, then joined LiCausi and Subocz
in an attempt on a Star Market in Saugus, Massachusetts in the
early morning of February 2. LiCausi again wore a jumpsuit
that Fogarty had acquired and carried one of the radios and
the Beretta pistol. Fournier wore another jumpsuit and
carried the other radio. Subocz carried the shotgun he had
acquired. After successfully entering the store, detaining
those inside, and finding the safe, they fled empty-handed
upon seeing a man walking to an automatic teller machine
outside the store. Later that day, the trio robbed a Market
Basket in Nashua, New Hampshire, netting approximately
$18,000. This time LiCausi wore a jumpsuit and carried
Subocz's shotgun, while Fournier carried the Beretta pistol.
Durfee then joined Subocz and Fournier for two
attempts on a Market Basket in Portsmouth, New Hampshire. The
first, on March 20, involved just the three of them. Subocz
carried the shotgun and one of the radios while Durfee carried
the Beretta. Fournier stayed outside with the other radio.
They abandoned their attempt, however, when the battery in one
of the radios died. LiCausi joined them a few days later for
a second try. Fournier was to be the lookout again while
Durfee and LiCausi would enter the store armed with the
shotgun and the Beretta. They left immediately, however, when
they saw the manager become alarmed and pick up the phone.
LiCausi was also involved in the next three
incidents. He, Fournier, and Subocz made an attempt on a
Market Basket in Tewksbury, Massachusetts on April 17. After
hiding in a crawl space above the ceiling of the men's
restroom, LiCausi and Fournier dropped down wearing their
masks and gloves and carrying the Beretta and a BB pistol
LiCausi had provided. They went onto the sales floor, found
the manager, and almost had the safe open when Subocz warned
them over the radio that two people outside were running
towards a pay phone. They immediately left the store and
drove off with Subocz, then fired several shots at a pursuing
vehicle. The next day, LiCausi and Subocz made an attempt on
a Market Basket in Warner, New Hampshire. After they stole a
car, got dressed, and readied their weapons, they abandoned
the attempt when a crowd outside the store failed to disperse
and the scanner picked up a transmission about the car they
had just stolen. Finally, LiCausi, Subocz, and Fournier
attempted to rob a Pic-N-Pay in Portsmouth, New Hampshire on
April 24. LiCausi carried the shotgun, Fournier carried the
Beretta, and Subocz listened to the scanner and maintained
radio contact from the outside. After binding several
employees with duct tape, LiCausi and Fournier tried forcing
the manager to open the safe. This time, the manager fought
back, and Fournier shot and wounded him in the hand. The
robbers escaped the struggle but left behind the Beretta
pistol and one of the radios. This and other problems, along
with diligent investigative work, finally led to the group's
undoing.
As these stories indicate, each of the defendants
was involved in several aspects of the continuing criminal
association among them and others. They also used much of the
same equipment in almost all of their robberies. Many times
one or more of the persons involved in a particular robbery
used equipment that an associate had purchased.
In addition, the defendants and others used many of
the same procedures during their robberies and attempts. They
often cased their targets, sometimes for several days. Before
carrying out an attempt they carefully wiped down all of their
equipment, including their two-way radios and weapons, to
remove any fingerprints. The robberies often involved three
individuals, two of whom entered the target premises wearing
masks and gloves and carrying weapons while the third stood
lookout outside. In many cases, too, a stolen "drop" car was
used for transport to and from the robbery site while a "safe"
car waited elsewhere.
Finally, we note that, while each defendant's
participation in actual robberies ebbed and flowed over the
course of the association, communications and relationships
continued among the three defendants and others during that
time. For example, after the D'Angelo Sandwich Shop robbery,
committed by Subocz and Fogarty, the two spoke by telephone
two to three times per week, sometimes daily, and Subocz spoke
with Durfee once or twice per week. After Subocz and Durfee
robbed the Vista Foods supermarket in Manchester, New
Hampshire, Durfee lent some of his share of the proceeds to
Fogarty and took a trip to Florida with him. Subocz notified
all three defendants when he had successfully acquired a
shotgun. Later, when Fournier refused to do anything with
LiCausi because he did not know him, Subocz had him speak to
Fogarty and Durfee, who both vouched for LiCausi during
telephone conversations. Such instances illustrate the extent
of these persons' association, both personal and criminal.
B. Procedural History
A federal grand jury sitting in Concord, New
Hampshire returned a twenty-seven count superseding indictment
against the three defendants on January 8, 1997. Count 1
charged all three with participating in an overarching
conspiracy to violate the Hobbs Act, 18 U.S.C. 1951, and the
bank robbery statute, 18 U.S.C. 2113, all in violation of 18
U.S.C. 371. The remaining twenty-six counts charged one or
more of them with separate robberies, attempted robberies, and
conspiracies to commit robbery, all in violation of 18 U.S.C.
1951, possession and interstate transportation of firearms
in violation of 18 U.S.C. 922, use of firearms during crimes
of violence in violation of 18 U.S.C. 924, and interstate
transportation of stolen vehicles in violation of 18 U.S.C.
2312.
Counts 10, 13, 17, and 20, all charging conspiracy
to commit robbery, were dismissed as to all defendants on the
government's motion, and Count 9, charging conspiracy to
commit the robbery of the Saugus Star Market, was dismissed as
to Fogarty but not as to LiCausi. In sum, LiCausi was tried
on the count charging an overarching conspiracy, one count of
robbery, three counts of attempted robbery, two counts of
conspiracy to commit robbery, four counts of using a firearm
during a violent crime, and five counts of interstate
transportation of a stolen vehicle. Fogarty was tried on the
count charging an overarching conspiracy, three counts of
conspiracy to commit robbery, one count of possession of
firearms by a felon, and one count of transportation of
firearms by a felon. Durfee was tried on the count charging
an overarching conspiracy, one count of robbery, one count of
attempted robbery, two counts of conspiracy to commit robbery,
two counts of using a firearm during a violent crime, and one
count of interstate transportation of a stolen vehicle.
A jury trial began on April 2, 1997, and the jury
returned verdicts on May 5, 1997. LiCausi was convicted on
all counts. Fogarty was convicted on the overarching
conspiracy count, the firearms counts, and one of the counts
charging conspiracy to commit robbery, but was acquitted on
the other two counts charging conspiracy to commit robbery.
Durfee was convicted on all counts except for one count
charging conspiracy to commit robbery.
LiCausi was sentenced to 1,042 months in prison plus
three years of supervised release and ordered to pay a $1,600
assessment and $21,206.51 in restitution. Fogarty was
sentenced to 387 months in prison plus three years of
supervised release and ordered to pay a $250 assessment and
$294 in restitution. Durfee was sentenced to 437 months in
prison plus three years of supervised release and ordered to
pay a $700 assessment and $85,385.35 in restitution. All
three defendants filed timely appeals outlining multiple and
often overlapping claims of error.
II. DISCUSSION
A. Waived Claims of Error
We briefly mention at the outset those claims that
the complaining defendants have not adequately preserved.
First, Durfee moved for severance immediately before the
government called Matthew O'Brien as a rebuttal witness but
not before trial. By failing to raise the issue before trial,
he has waived his right to pursue it here. See Fed. R. Crim.
P. 12(b)(5); United States v. McLaughlin, 957 F.2d 12, 18 (1st
Cir. 1992).
Second, Fogarty claims that venue was not properly
established as to the counts charging conspiracy to commit the
robbery of the D'Angelo Sandwich Shop in Stoneham,
Massachusetts and possession and transportation, respectively,
of firearms by a felon. "It is settled beyond peradventure
that venue is a personal privilege which can be waived."
United States v. Santiago, 83 F.3d 20, 24 (1st Cir. 1996).
Fogarty did not challenge venue on the conspiracy count until
his motion for judgment of acquittal, and he challenges venue
as to the firearms counts for the first time on appeal. His
failure to raise these challenges prior to trial prevents him
from raising them now. See id. (citing Fed. R. Crim. P.
12(b)(2) (mandating waiver of most defenses that could have
been, but were not, raised prior to trial)).
Third, LiCausi challenges the sentences he received
for his four convictions for using a firearm during a violent
crime. See 18 U.S.C. 924(c)(1). He was sentenced under the
statute to one five-year term for his first violation and
three twenty-year terms for his second and subsequent
violations, all to be served consecutively to each other and
to the sentences imposed for his other offenses. LiCausi
preserved an objection to these sentences based on the
proposition that a defendant must have already served the
five-year sentence for his first offense before a twenty-year
sentence could be imposed. LiCausi abandoned this argument
on appeal, thereby waiving it. See United States v. Dietz,
950 F.2d 50, 54 (1st Cir. 1991). He argues instead that
multiple sentences imposed under 924(c) in one proceeding,
while required to run consecutively to non- 924(c) sentences,
may run concurrently with each other. The law is clear that
a defendant may not raise arguments for the first time on
appeal that he did not seasonably address to the trial court.
See id. at 55 ("A criminal defendant, dissatisfied with the
district court's rulings at sentencing yet persuaded that his
original arguments lacked merit, cannot switch horses mid-
stream in hopes of locating a swifter steed."). LiCausi's
claim, then, is dead on arrival.
Having disposed of these contentions, we may now
address those that were properly preserved.
B. Challenges Relating to the Convictions as to
a Single Overarching Conspiracy
All three defendants claim, first, that the evidence
presented at trial was insufficient to prove a single,
overarching conspiracy among them and the government's
cooperating witnesses. They claim further that, given this
alleged variance between the conspiracy charged and the proof
at trial, they were prejudiced by the admission of
inadmissible hearsay and by evidentiary spillover. Finally,
both LiCausi and Fogarty claim that they should not have been
sentenced for both conspiracy to violate the laws of the
United States in violation of 18 U.S.C. 371 and conspiracy
to commit robbery in violation of 18 U.S.C. 1951.
Addressing each one of these claims in turn, we find no reason
to disturb the judge's rulings or the jury's verdict.
Whether a single conspiracy or a multiple conspiracy
exists is, of course, a question of fact for the jury. See
United States v. Drougas, 748 F.2d 8, 17 (1st Cir. 1984). In
assessing a sufficiency-of-the-evidence challenge to such a
finding, we credit both direct and circumstantial evidence,
resolve all evidentiary conflicts and credibility questions in
the prosecution's favor, and choose from among competing
inferences the one best fitting the prosecution's theory of
guilt. See United States v. Olbres, 61 F.3d 967, 970 (1st
Cir. 1995). To uphold a conviction, we "need not believe that
no verdict other than a guilty verdict could sensibly be
reached, but must only satisfy [ourselves] that the guilty
verdict finds support in 'a plausible rendition of the
record.'" United States v. Echeverri, 982 F.2d 675, 677 (1st
Cir. 1993) (quoting United States v. Ortiz, 966 F.2d 707, 711
(1st Cir. 1992)).
In reviewing a jury's finding that a single
conspiracy existed, we consider specifically such factors as
the commonality vel non of the nature, motive, design,
implementation, and logistics of the illegal activities as
well as the scope of coconspirator involvement. See United
States v. Randazzo, 80 F.3d 623, 629 (1st Cir. 1996). While
these factors inform our inquiry, however, we will leave
undisturbed the jury's finding so long as the totality of the
evidence sufficiently demonstrates "that all of the alleged
coconspirators directed their efforts towards the
accomplishment of a common goal or overall plan." Drougas,
748 F.2d at 17. The government need not prove that each
defendant participated in every transaction necessary to
fulfill the aim of the overall agreement, see id., nor must it
prove that each defendant knew every detail of the conspiracy
or knew or had contact with every other coconspirator. See
United States v. Mena-Robles, 4 F.3d 1026, 1033 (1st Cir.
1993). We think that the facts outlined above, which include
meetings involving all of the defendants and relating to
supermarket robberies, shared equipment contributed by
different members of the group, common participants and
similar logistical arrangements, and close contact among
members of the group during the life of their association,
adequately support the jury's finding that a common goal or
overall plan existed.
As for individual defendants and their culpability
vel non for involvement in that overarching conspiracy, we
start with the principle that a defendant who has committed
only one or a few of the crimes necessary to fulfill the aim
of a multiple-crime conspiracy can nevertheless be convicted
for that conspiracy if the evidence supports a finding that he
had "knowledge or foresight of the conspiracy's multiplicity
of objectives." United States v. Morrow, 39 F.3d 1228, 1234
(1st Cir. 1994) (emphasis omitted). This is so "even if the
conspiracy is open-ended (e.g., a conspiracy to rob banks) and
the specifics of the future crimes (e.g., which banks) is
undetermined or at least unknown to the defendant." Id. A
defendant can be found guilty of a narrower conspiracy only if
he agreed with others to commit one or a few crimes and had no
knowledge or foresight of the conspiracy's broader scope. See
id. We have no trouble finding here that each of the
defendants had knowledge or foresight of the conspiracy's
multiplicity of objectives. Indeed, the association formed
here appears very much like the hypothetical one described in
Morrow: an open-ended conspiracy where the specifics of
future crimes were undetermined or unknown to particular
defendants. See id. Thus, the jury properly found beyond a
reasonable doubt that all three defendants and others formed
a single, overarching conspiracy.
We may therefore spend very little time on
defendants' other claims regarding admissibility of evidence
offered to prove the individual crimes. As to the hearsay
testimony, "[h]earsay statements are admissible against a
defendant when it is more likely than not that he was a
coconspirator of the speaker, that the conspiracy existed at
the time the statements were made, and that they were made in
furtherance of it." United States v. Rivera, 68 F.3d 5, 7
(1st Cir. 1995); see also Fed. R. Evid. 801(d)(2). Since the
overarching conspiracy was adequately proven at trial, the
testimony as to statements made regarding the individual
robberies was properly admitted. As to the prejudicial
spillover claim, the evidence presented was relevant not only
to prove that the individual robberies, attempts, and
associated crimes took place, but also to the issue of whether
an overall conspiracy existed. See United States v. Gomez-
Pabon, 911 F.2d 847, 853 (1st Cir. 1990) (holding that proof
of a conspiracy may consist of circumstantial evidence and
inferences from surrounding circumstances). It was therefore
relevant to all of the defendants, and "[w]here evidence
featuring one defendant is independently admissible against a
codefendant, the latter cannot convincingly complain of an
improper spillover effect." United States v. O'Bryant, 998
F.2d 21, 26 (1st Cir. 1993). Moreover, the jury acquitted
Durfee on one count and Fogarty on two counts, including one
on which Durfee was convicted, indicating to us that the jury
was able to assess the guilt of each defendant on each count
separately.
Nor do we see any merit in LiCausi's and Fogarty's
claims that imposing separate, consecutive sentences for the
overarching conspiracy and the individual Hobbs Act
conspiracies violates Double Jeopardy principles. Under
Blockburger v. United States, 284 U.S. 299 (1932), and its
progeny, "[a] single act may constitute two different offenses
for double jeopardy purposes so long as two different statutes
were violated and each requires an element that the other does
not." United States v. Claudio, 44 F.3d 10, 13 (1st Cir.
1995). This is true of conspiracy as well as other crimes.
See id. (citing Albernaz v. United States, 450 U.S. 333
(1981)). The test is satisfied here. The Hobbs Act, 18
U.S.C. 1951, requires proof that the objective of the
conspiracy was obstruction of the flow of commerce or an
article in commerce. Such proof is not necessary under the
general conspiracy provision, 18 U.S.C. 371. Section 371
requires proof of an overt act in furtherance of the
conspiracy, an element that the government need not prove to
establish a Hobbs Act conspiracy. Thus, the charged
conspiracies are two separate offenses and can be punished as
such.
C. Sufficiency of the Evidence as to Durfee's
Other Convictions
In addition to claiming that the government failed
to prove a single overarching conspiracy, Durfee has launched
a sufficiency-of-the-evidence attack on the rest of his
convictions. Durfee was convicted of conspiring to commit,
actually committing, and using a firearm in connection with
the January 3 robbery of Vista Foods in Manchester, New
Hampshire, attempted robbery and use of a firearm in
connection with the attempted robbery of the Market Basket in
Portsmouth, New Hampshire in March of 1996, and transportation
of a stolen Ford Thunderbird from New Hampshire to Vermont.
We believe a rational factfinder could have found
Durfee guilty of these crimes beyond a reasonable doubt.
Subocz, one of the government's cooperating witnesses,
testified at length and in great detail regarding Durfee's
role in the Vista Foods robbery, discussing, among other
things, where they parked their car, where they hid within the
store, what they wore and the weapons they carried, and what
they succeeded in taking from the store. In addition, Lori
Munroe, Subocz's girlfriend, testified that on that evening
she saw Subocz and Durfee come home with a box with money in
it. As to the attempted robberies of the Market Basket in
Portsmouth, New Hampshire, Subocz testified in detail
regarding the participants' roles, the equipment used and
clothing worn, which gun Durfee carried, and what caused them
to abort their attempts. Fournier testified to many similar
details, including Durfee's reluctance to go forward with the
first attempt and the theft of a 1996 Ford Thunderbird for the
second attempt. Finally, as to the stolen vehicle
transportation, both Subocz and Fournier testified that they,
LiCausi, and Durfee drove to Vermont and left the Thunderbird
in a parking lot there.
To support his claim of insufficient evidence,
Durfee points out that his convictions rest largely on the
testimony of cooperating witnesses. This may be true, but it
does not help Durfee's cause. The law is clear that "an
accomplice is qualified to testify as long as any agreements
he has made with the government are presented to the jury and
the 'judge gave complete and correct instructions detailing
the special care the jury should take in assessing the
testimony.'" United States v. Hernandez, 109 F.3d 13, 15 (1st
Cir. 1997) (quoting United States v. Ortiz-Arrigoitia, 996
F.2d 436, 438-39 (1st Cir. 1993)). "Indeed, a conviction
based solely upon the uncorroborated testimony of an
accomplice can be upheld, as long as the jury is properly
instructed and the testimony is not incredible as a matter of
law." Id. (citing United States v. Andujar, 49 F.3d 16, 21
(1st Cir. 1995)).
Here, the government elicited on direct examination
the cooperation arrangements for each witness and introduced
into evidence their plea agreements. The cooperating
witnesses were extensively cross examined regarding their
credibility, and the trial judge carefully instructed the
jurors as to the caution they should use in evaluating their
testimony. Finally, we do not think that the contradictions
Durfee describes amount to the "overwhelming evidence"
contemplated in Hernandez as necessary to make the witnesses'
testimony unbelievable to any rational juror and therefore
incredible as a matter of law. We hold, then, that the jury
could have concluded beyond a reasonable doubt that Durfee in
fact committed the crimes of which he was accused.
D. Sufficiency of the Evidence as to LiCausi's
Conviction for Attempted Robbery of the
Warner, New Hampshire Market Basket
LiCausi claims that the evidence at trial was
insufficient to prove attempted robbery of the Market Basket
in Warner, New Hampshire. To prove attempt, the government
must establish an intent to commit the substantive offense and
a substantial step towards its commission that is more than
preparation but less than the last act necessary to commit the
crime itself. See United States v. Chapdelaine, 989 F.2d 28,
33 (1st Cir. 1993) (citing United States v. Figueroa, 976 F.2d
1446, 1459 (1st Cir. 1992); United States v. Manley, 632 F.2d
978, 987 (2d Cir. 1980)). According to LiCausi, the evidence
at trial failed to establish the "substantial step." We
disagree.
The evidence showed that on April 18, 1996 Subocz
and Munroe, their daughter Brianna, and LiCausi were in the
Warner area looking for potential robbery targets. The group
saw the Market Basket from the highway and turned off to
determine its viability as a target. Munroe and LiCausi went
inside, looked over the store, and returned to tell Subocz
that its arrangement was similar to that of most other Market
Baskets. Subocz and LiCausi decided to rob it. LiCausi then
stole a car, which they placed in a McDonald's parking lot
right next to the Market Basket. Subocz and LiCausi began
observing the store through binoculars, and Subocz set the
radio scanner to pick up local police frequencies. At some
point, the group drove in Munroe's car to a secluded area not
far from the store, where Subocz and LiCausi changed into
their robbery clothes, including gloves, and readied their
weapons, the shotgun and the Beretta pistol. Then they
returned to the McDonald's parking lot and continued to
observe the Market Basket. The scanner picked up a radio
transmission having something to do with a water treatment
center. Concerned that this might mean a greater police
presence in the area, they drove back to the area where
LiCausi had stolen the car and saw some state troopers there.
Unsure whether the police presence was due to the stolen car
or the intercepted radio call, the group returned to the
McDonald's parking lot. Subocz and LiCausi ultimately
abandoned their plan because a group of people in front of the
store showed no signs of leaving and because they heard
another radio transmission related to the car they had stolen.
We have found the "substantial step" requirement
satisfied in similar circumstances. In Chapdelaine, for
example, the defendant and his associates had "'cased' the
BayBank branch and the armored truck, positioned stolen
vehicles for an escape, acquired weapons and disguises,
arrived at the scene ready to commit the crime and were
frustrated only by an accidental change in the truck's
schedule." Chapdelaine, 989 F.2d at 33. In another case, the
group's conduct "in casing the bank, stealing a car, and
arriving armed at the bank shortly before the Wells Fargo
truck was to arrive, constituted a 'substantial step' toward
the robbery that demonstrated that this [intent to commit the
robbery] was no idle whim." United States v. Del Carmen
Ramirez, 823 F.2d 1, 2 (1st Cir. 1987).
The robbers in Del Carmen Ramirez were alerted to
a police stakeout of the robbery location, tried to put their
guns in some tall grass and leave the area on foot, and were
subsequently arrested. See id. LiCausi's and Subocz's
preparations were virtually identical to those in Del Carmen
Ramirez. The reason for the abandonment, be it impossibility,
as in Chapdelaine, or fear of capture, as in Del Carmen
Ramirez, is irrelevant. The only issue is whether the actions
Subocz and LiCausi took before abandoning their plans
constituted the requisite "substantial step." Given First
Circuit precedent, we think it clear that they did.
E. Denial of Fogarty's Motion to Sever
Fogarty claims that his pretrial motion to sever
should have been allowed and that, as a result of its denial,
he was significantly prejudiced by the admission of evidence
relating to several crimes in which he was not involved. We
find no error.
The government may join multiple defendants in a
single indictment where "at least one count alleges a
conspiracy . . . and the indictment separately alleges that
the appellant committed a substantive offense." United States
v. DeLuca, 137 F.3d 24, 36 (1st Cir. 1998); see also Fed. R.
Crim. P. 8(d). "The federal courts have long recognized that
consolidated trials tend to promote judicial economy, conserve
prosecutorial resources, and foster the consistent resolution
of factual disputes common to properly joined defendants."
United States v. Josleyn, 99 F.3d 1182, 1188 (1st Cir. 1996).
Where, as here, multiple defendants have been
properly joined for trial, a defendant may nevertheless
request severance when it appears that he is prejudiced by the
joinder. See Fed. R. Crim. P. 14. "We reverse the decision
to deny a motion for severance only upon a showing of strong
prejudice, demonstrating a manifest abuse of discretion that
deprived the defendant of a fair trial." United States v.
Nason, 9 F.3d 155, 158 (1st Cir. 1993). The appellants thus
bear the burden of proving "prejudice greater than that which
necessarily inheres whenever multiple defendants . . . are
jointly tried." United States v. Walker, 706 F.2d 28, 30 (1st
Cir. 1983). They must prove "prejudice so pervasive that a
miscarriage of justice looms." United States v. Pierro, 32
F.3d 611, 615 (1st Cir. 1994). This high standard accords
with the Supreme Court's instruction that "a district court
should grant a severance under Rule 14 only if there is a
serious risk that a joint trial would compromise a specific
trial right of one of the defendants, or prevent the jury from
making a reliable judgment about guilt or innocence." Zafiro
v. United States, 506 U.S. 534, 539 (1993).
We find no abuse of discretion in this case. While
the jury did hear extensive testimony relating to several
crimes in which Fogarty was not involved, that fact does not,
by itself, create sufficient prejudice: "It is well settled
that, '[e]ven where large amounts of testimony are irrelevant
to one defendant, or where one defendant's involvement in an
overall agreement is far less than the involvement of others,'
the court of appeals must be 'reluctant to second guess
severance denials.'" United States v. O'Bryant, 998 F.2d 21,
26 (1st Cir. 1993) (quoting United States v. Boylan, 898 F.2d
230, 246 (1st Cir. 1990)).
Moreover, since all three defendants were charged
as coconspirators, almost all of the evidence relating to
other defendants was relevant to, and therefore independently
admissible in, the prosecution's case against Fogarty. As we
have said, this circumstance precludes a spillover argument.
See id.; see also United States v. Brandon, 17 F.3d 409, 440
(1st Cir. 1994)(quoting United States v. Searing, 984 F.2d
960, 965 (8th Cir. 1993) ("In the context of conspiracy,
severance will rarely, if ever, be required.")).
Finally, the fact that the jury acquitted Fogarty
on two counts indicates that the jury was not prevented from
making reliable judgments about guilt or innocence, but was
able to weigh the evidence independently against each
defendant. See United States v. Flores-Rivera, 56 F.3d 319,
326 n.2 (1st Cir. 1995) (finding that acquittals suggested
"that the jury was able to sift through the evidence in an
analytical fashion and that the alleged spillover effect did
not cause the jury merely to enter a lump sum conviction");
Brandon, 17 F.3d at 440 (finding acquittals to be a relevant
factor in upholding a district court's denial of a severance).
For all of these reasons we affirm the judge's decision to
deny Fogarty's motion to sever.
F. Hearsay Testimony of Laura Watson and Lisa
Munroe
LiCausi claims that certain testimony from two
witnesses, Laura Watson and Lori Munroe, was inadmissible
hearsay. We find error only in the admission of Munroe's
testimony but find insufficient prejudice to warrant a new
trial for LiCausi.
LiCausi challenges, first, the testimony of Watson,
an acquaintance of Fournier's, as to certain statements by
Fournier after the attempted robbery of the Pic-N-Pay in
Portsmouth, New Hampshire. Watson testified that she left
work at Bickford's restaurant in Portsmouth at about 11:30 PM.
She saw Fournier, who asked for a ride home and for help
finding a friend he had lost near the Holiday Inn. Watson was
then allowed to testify, over objection, that Fournier's
friend's name was "John." When they could not find "John,"
she drove him to his residence. LiCausi argues that
Fournier's statement identifying his friend as "John" was
improperly admitted as a statement in furtherance of a
conspiracy.
As we discussed earlier, a hearsay statement is
admissible against a defendant if the trial court finds that
it is more likely than not that (1) the defendant was a
coconspirator of the speaker; (2) the conspiracy existed at
the time the statement was made; and (3) it was made in
furtherance of the conspiracy. See United States v. Rivera,
68 F.3d 5, 7 (1st Cir. 1995) (citing United States v.
Petroziello, 548 F.2d 20, 23 (1st Cir. 1977)). A district
court's findings of fact in applying this test must be upheld
unless they are clearly erroneous. See United States v.
Fields, 871 F.2d 188, 193 (1st Cir. 1989).
Given our discussion as to the conspiracy counts,
supra, we have no difficulty accepting the trial court's
finding that a conspiracy existed and that both Fournier and
LiCausi were members of it. The closer question is whether
the trial judge permissibly found that Fournier's statement
identifying his "friend" as "John" was in furtherance of the
conspiracy. We have observed in the past that "there is no
'talismanic formula for ascertaining when a conspirator's
statements are 'in furtherance' of the conspiracy.'" See id.
at 194 (quoting United States v. Reyes, 798 F.2d 380, 384
(10th Cir. 1986)). The statement is admissible if it "tends
to advance the objects of the conspiracy as opposed to
thwarting its purpose." United States v. Fahey, 769 F.2d 829,
838 (1st Cir. 1985). We accept that looking for LiCausi was
in furtherance of the conspiracy. To help by identifying him
as John may have been of questionable value, but it was
presumably so intended. We are not "left with the definite
and firm conviction that a mistake has been made." Mitchell
v. United States, 141 F.3d 8, 17 (1st Cir. 1998).
We come to a different conclusion regarding the
admissibility of Munroe's testimony as to certain statements
by Subocz. Before going to Ohio with Fogarty to rob a
supermarket, Subocz told her that he was going away to do a
carpet job. Sometime after he returned, he told her that at
one point he and Fogarty had been in a supermarket with a gun
but did not attempt a robbery because it did not feel right.
Subocz also told Munroe details of what happened during the
Saugus Star Market robbery attempt, the Nashua Market Basket
robbery, and the Portsmouth Pic-N-Pay robbery attempt. These
statements cannot fairly be considered in furtherance of the
conspiracy. All but one were made after the crimes they
described took place, and they do not appear to have yielded
significant enough information to constitute reports to a
coconspirator, assuming Munroe could be considered as such.
Rather, they appear to us to be instances where Subocz was
merely blowing off steam or venting anxiety. Subocz's lie
about his trip to Ohio is a closer call, but we think that it
is more appropriately characterized as made simply to avoid an
argument with his girlfriend. Thus, we think the statements
were not made to advance the conspiracy and were inadmissible.
While these statements may have been improperly
admitted, we do not think they worked such prejudice that a
new trial is necessary. The testimony was cumulative and the
weight of the additional evidence overwhelming. That
additional evidence pointed to LiCausi's deep involvement in
the conspiracy and the individual crimes that Subocz discussed
with Munroe. The government elicited extensive testimony on
those topics, some of which was corroborated by toll records
and other evidence. Accordingly, we think it highly probable
that the error in admitting Lori Munroe's hearsay testimony
did not contribute to the verdicts. See United States v.
Rose, 104 F.3d 1408, 1414 (1st Cir. 1997). The error
therefore need not concern us.
G. Admissibility of Special Agent Mulvaney's
Testimony
Durfee claims that the trial court erroneously
allowed FBI Special Agent John Mulvaney to testify regarding
a telephone call, charged to Munroe's account, made on January
2, 1996 to that number. Based on investigation he conducted
on April 9, 1997, Agent Mulvaney testified that the number
from which the call was made was that of a pay phone located
at the Vista Foods supermarket in Manchester, New Hampshire.
According to other testimony, Subocz and Durfee attempted to
rob that supermarket on January 3, the day after the call was
made. Durfee argues that Agent Mulvaney's testimony was
erroneously admitted because disclosure of Agent Mulvaney's
report after Subocz had testified regarding the Vista Foods
robbery attempt deprived defense counsel of the opportunity to
cross examine Subocz regarding the call, because the testimony
was irrelevant given Subocz's testimony that no advance
planning occurred before the attempt, and because the evidence
was more prejudicial than probative. We reject all three
contentions.
First, we see no prejudice in the disclosure of the
projected testimony after Subocz had testified. Durfee
apparently had the phone records and an investigator and could
have made his own investigation had he deemed it necessary.
In addition, he had no right to the results of Agent
Mulvaney's investigation under the Federal Rules of Criminal
Procedure, see Fed. R. Crim. P. 16(2) (including as
information not subject to disclosure "reports, memoranda, or
other internal government documents made by the attorney for
the government or any other government agent investigating or
prosecuting the case"), nor was the information Brady or
Jencks Act material. Absent a special right to disclosure of
information, the trial lawyer must make judgments about what
information is significant and what information is not. Then,
based on those judgments, he must prepare to meet what he
thinks opposing counsel will present as evidence. When the
lawyer miscalculates, he risks being caught unprepared. That
is apparently what happened here, and we will not recast
defense counsel's tactical decision (or oversight, perhaps)
into a trial error.
Moreover, the trial judge invited defense counsel
to recall Subocz if he wished, but defense counsel failed to
do so. He contended during oral argument that, assuming the
nondisclosure was improper, this remedy was inadequate because
later cross examination would be less effective. But the
opportunity was there, and, given this and all of the
circumstances, we fail to see how Durfee's due process rights
have been violated.
Durfee's second argument, that the results of Agent
Mulvaney's investigation were irrelevant, fares no better.
The test for relevance is, of course, whether the piece of
evidence sought to be introduced has "any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence." Fed. R. Evid. 401.
The occurrence of a phone call from the Vista Foods parking
lot charged to Subocz's telephone account and made to Durfee's
residence clearly is circumstantial evidence tending to make
it more probable that Subocz cased the supermarket, that he
told Durfee it was a good robbery target, and that the two
ultimately robbed it. Subocz's testimony that they committed
this robbery with no planning, radios, lookout, safe car, or
drop car does not change matters. It does not follow
automatically from that acknowledgment that Subocz and Durfee
were simply walking by the store and decided without prior
discussion to rob it. While the pair did not make the same
preparations that became standard operating procedure in other
robberies, testimony did establish that Subocz did case the
store and tell Durfee about it. In light of this evidence we
think that testimony as to the location of the number listed
in the toll records was most certainly relevant.
Nor do we believe that the testimony was more
prejudicial than probative. See Fed. R. Evid. 403. We review
such a claim only for abuse of discretion, United States v.
Cruz-Kuilan, 75 F.3d 59, 61 (1st Cir. 1996), and find none
here. Durfee argues that the government created an unfair
inference as to the call's content and significance by merely
presenting evidence of the call and failing to question Subocz
as to its contents. However, the evidence of the call was
circumstantial evidence of Durfee's participation in the
robbery, evidence upon which the jury was entitled to rely in
determining Durfee's guilt. Such evidence is, of course,
always prejudicial to the defense, and we do not think that
the government's failure to question Subocz regarding the
phone call, whether by oversight or by design, made Agent
Mulvaney's testimony unfairly prejudicial such that Rule 403
mandated exclusion.
H. Admissibility of Matthew O'Brien's Testimony
LiCausi claims that the trial judge erred in
admitting as the government's rebuttal evidence the testimony
of Matthew O'Brien. O'Brien testified that he had seen
Fogarty and LiCausi at the Hillsborough County Jail while he
was awaiting sentencing for an unrelated offense. Fogarty and
LiCausi, who were being held pretrial, asked him to tell
Fogarty's lawyer that Fournier told him that Fournier's
brother and Subocz's brother, not LiCausi and Fogarty, had
been involved with Subocz and Fournier in the armed robberies.
LiCausi claims here that the evidence was not proper rebuttal
and was so inflammatory that allowing its admission at such a
late stage of the case amounted to an abuse of discretion. We
disagree.
"Rebuttal evidence may be introduced to explain,
repel, contradict or disprove an adversary's proof." United
States v. Laboy, 909 F.2d 581, 588 (1st Cir. 1990). The fact
that testimony would have been more appropriately offered
during the proponent's case-in-chief does not preclude its
admission as rebuttal evidence. See United States v. Clotida,
892 F.2d 1098, 1107 (1st Cir. 1989) (citing United States v.
Luschen, 614 F.2d 1164, 1170 (8th Cir. 1980)). Rather, the
decisions as to what constitutes proper rebuttal evidence and
the order in which the parties present their evidence lie
within the sound discretion of the trial judge and are subject
to substantial deference. See id.; United States v. Thuna,
786 F.2d 437, 444 (1st Cir. 1986).
In this case, Subocz testified in great detail
regarding the attempted robbery of the Saugus Star Market in
the early morning hours of February 2, 1996 and the events of
the evening before. He also testified in detail regarding the
robbery of the Nashua Market Basket that evening. He named
LiCausi as a participant in both incidents. Munroe also
testified that LiCausi was with Subocz the night and early
morning of the Star Market attempt. Fournier also testified
as to LiCausi's involvement in the two incidents.
In his defense, LiCausi called several alibi witness
who testified that LiCausi was out with friends almost all
night on February 1 and arrived at his sister's house between
5:30 and 6:00 PM on the evening of February 2 to babysit her
children. Accepting this testimony over that of Subocz,
Munroe, and Fournier would mean that LiCausi could not have
participated in the Star Market attempt or the Market Basket
robbery.
We note first that Matthew O'Brien's testimony had
no particular connection to any defense witness, and therefore
as a practical matter could not be offered during cross
examination. As such, the evidence could have been offered
only during the government's case-in-chief or as rebuttal.
The potential admissibility during the case-in-chief is not
controlling, of course, and we find no abuse of discretion as
to its admission on rebuttal. Matthew O'Brien's testimony,
while not directly contradicting the testimony of LiCausi's
alibi witnesses, certainly tended to disprove or refute their
testimony by undermining its credibility. Given these facts,
we do not think that the trial judge abused his broad
discretion in allowing O'Brien to testify.
I. The Restitution Order as to Durfee
Finally, Durfee argues that the district court erred
in ordering restitution in the amount of $85,385.35 without
properly considering his financial resources. We review
restitution orders for abuse of discretion, see United States
v. Newman, 49 F.3d 1, 10 (1st Cir. 1995), and find none here.
We have repeatedly pointed out that the provision
addressing restitution, 18 U.S.C. 3664(a) (1994), does not
require an explicit finding that the defendant has the ability
to pay the restitution ordered. Rather, "it is sufficient if
the record on appeal reveals that the judge made implicit
findings or otherwise adequately evinced his consideration of
those factors." Newman, 49 F.3d at 10. Here, the record
reveals just that. First, the court explicitly adopted the
factual findings of the presentence investigation report,
which included information relating to Durfee's financial
condition, earning ability, and ability to pay.
Second, the court recognized the possibility that
Durfee's financial prospects might improve. As this court has
held, "there is no requirement that the defendant be found
able to pay now." United States v. Lombardi, 5 F.3d 568, 573
(1st Cir. 1993); see also United States v. Vankin, 112 F.3d
579, 592 (1st Cir. 1997) ("A defendant's impoverishment today
is no assurance of future poverty, and, hence, present
impecuniousness is not a bar to the imposition of
restitution."); Newman, 49 F.3d at 10. Accordingly, "[a]
sentencing court permissibly may take into account a
defendant's earning capacity and the prospect that his
fortunes will improve." Vankin, 112 F.3d at 592. Here, the
court refused to speculate on Durfee's inability to pay after
his release, thereby acknowledging the possibility that
Durfee's fortunes might improve. Thus, we think this record
shows that the trial judge adequately considered Durfee's
financial situation and did not abuse his discretion in
arriving at a restitution amount.
III. CONCLUSION
Despite the defendants' valiant efforts at finding
error compelling us to reverse, careful analysis of the issues
presented leads us to conclude that neither a new trial nor
resentencing is warranted. The defendants' convictions and
sentences are therefore affirmed.