United States v. Murphy

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-2035



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                        JOSEPH P. MURPHY,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



         [Hon. Douglas P. Woodlock, U.S. District Judge]


Before



                    Selya, Boudin and Lipez,

                                

                        Circuit Judges.


James C. Rehnquist with whom Goodwin, Procter & Hoar LLP was

on brief for appellant.

     Ben T. Clements, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, and S. Theodore Merritt,

Assistant United States Attorney, were on brief for the United

States.


September 30, 1999


BOUDIN, Circuit Judge.  Joseph Murphy, a criminal defense 

lawyer, was indicted on charges that he participated in an

extortion scheme with two Boston police detectives.  The

detectives, Kenneth Acerra and Walter Robinson, pled guilty to a

number of offenses involving a much greater range of misconduct

than that for which Murphy was charged.  But Murphy stood trial,

was convicted by a jury, and now appeals.  The evidence offered by

the government at trial permitted the jury to find that the

following occurred.

  Over a substantial period starting in 1990 and extending

to 1996, Acerra and Robinson engaged in a scheme that included

obtaining warrants based on information supplied by them and known

by them to be false.  Acerra and Robinson made a number of searches

and seizures using warrants based on such falsified applications

before and after the Murphy incidents.  In the raids, the

detectives seized cash, representing drug sale proceeds, that they

kept for themselves instead of turning it over to the Boston Police

Department.  Theft, not extortion, was the central element in these

crimes.

  The two incidents involving Murphy and leading to the

extortion charges against him both occurred in 1992.  The first

began on May 6, 1992, when a third detective, John Brazil, obtained 

search warrants to search an apartment on Forest Hills Street in

Jamaica Plain and a taxicab owned by Bruno Machore.  Brazil

prepared the warrant applications at Acerra's direction,

fabricating most of the "facts" alleged in the applications.  The

warrants were executed by all three detectives, cocaine and $10,000

in cash were seized, and Machore and two others were arrested and

held on state charges.  Apparently fearing that someone would

reveal the seizure of cash, the detectives reported to their

superiors that they had seized $7,500; they kept the balance for

themselves.

  After Machore's arrest, Murphy (who was Machore's

attorney) told him that for payments of $1,000 each to Acerra and

Robinson the case would be dismissed.  Machore agreed, believing

the money would come from the seized funds.  In an initial effort

to obtain dismissal, all three detectives failed to appear at

Machore's district court trial; but no dismissal was obtained since

Machore had not been brought from jail to the trial court.

Thereafter, Robinson managed to get the case against Machore

dismissed by conveying untrue information about the case to the

assistant district attorney.  

  Murphy then moved for the return of the $7,500 on the

ground that it had been improperly seized, and based on false

statements by Robinson and without objection from the prosecutor,

the judge ordered a return of the money.   Murphy had Machore

authorize the attorney to receive the $7,500 from the Boston Police

Department.  Murphy obtained the money on June 29, 1992, put $1,500

in his business account, and took out the balance in cash; whether

some was then paid to the detectives is unknown.  In any event,

none of the money was ever returned to Machore.  

  The second incident began even before the first one

ended, on May 29, 1992, when Acerra and Robinson obtained warrants

(again, based on false statements) to search two apartments in a

building on Edgemere Road in West Roxbury.  Machore and his

associate, Francisco Almonte, used one apartment to store cocaine

and the other for drug sale proceeds and as living quarters.  Using

the warrants, detectives, including Acerra and Robinson, conducted 

searches of the apartments on May 29, 1992, and seized cocaine and

between $16,000 and $17,500 in cash.  None of the cash was reported

to the Boston Police Department.

  Almonte, Machore and two others were arrested in

connection with these new searches.  Murphy, representing Machore,

told the latter that this time Robinson and Acerra wanted a total

of $50,000 for the release of Machore and his three co-defendants. 

Since it was believed that Almonte had access to money, Murphy

visited Almonte in jail four times (always without the knowledge of

Almonte's own attorney).  Murphy advised Almonte of the $50,000

demand and brushed aside Almonte's suggestion that the funds just

seized from the Edgemere Road apartments might count toward the

larger amount now demanded.

  Since neither Almonte nor Machore had cash available, a

plan developed to get them released from jail so that they could

raise the $50,000.  Murphy explained to Almonte, and also to

Machore's girlfriend (who was Almonte's sister), that the

detectives would fail to appear at the grand jury, leading to the

release of the defendants under a state law that required release

when a grand jury does not indict within two sittings.  From July

to September 1992, Robinson failed to appear at the grand jury five

times in a row, and Machore and two of his co-defendants were

eventually released.

  Almonte was kept in jail on another case.  Machore and

Almonte were thereafter indicted on drug charges incident to the

Edgemere Road seizure.  When he was released on bail about two

weeks later, Almonte was called in by Murphy and told that the

detectives had done their part and "now it's your turn."  Instead

of paying, Almonte went to trial and was acquitted, due in part to

the fact that none of the detectives testified about finding any

money in the apartment in which Almonte was arrested.  Much later,

when an investigation began into the detectives' warrant practices,

Murphy made false statements to help conceal the detectives'

failure to report funds seized in both of the incidents.

  In March 1997, Robinson, Acerra and Murphy were indicted

in federal district court. On October 2, 1997, an amended

superseding indictment against all three defendants was returned.

While the indictment charged the detectives with a broad scheme and

many wrongful seizures, Murphy was named in only three counts:

count 2, based on both of the incidents just described, charged

Murphy (and the two detectives) with conspiracy to commit extortion

under color of official right, 18 U.S.C.  1951; and counts 3 and

4, under the same statute together with the aiding and abetting

statute, id.  2, charged extortion (based on the first incident)

and attempted extortion (based on the second).

  The two detectives pled guilty in March 1998 to a broadly

framed conspiracy count and two other offenses.  Murphy's trial

took place in April 1998 and included government testimony from

Brazil and Machore, among others.  The jury found Murphy guilty on

all three counts.  Thereafter, in August 1998, the district court

sentenced Murphy to 24 months imprisonment.  Murphy now appeals,

challenging both his conviction and his sentence.

  Murphy's first ground of appeal concerns alleged errors

by the district court in admitting what Murphy claims were hearsay 

statements under the co-conspirator exception to the hearsay rule. 

Fed. R. Evid. 801(d)(2)(E).  In this circuit, a predicate to the

admission of hearsay evidence under the co-conspirator exception is

a finding by the district judge that a conspiracy existed of which

the defendant was a member, and that the statement was made in

furtherance of that conspiracy.  See United States v. Petrozziello,

548 F.2d 20, 23 (1st Cir. 1977).  Murphy argues that the district 

judge did not make a timely Petrozziello finding of conspiracy

before the case went to the jury, that the Petrozziello finding

made after the jury returned with the verdict was erroneous, and

that the admission of the alleged hearsay was prejudicial and did

not constitute harmless error.

  Although the government says that the hearsay objection

was not preserved, the point is debatable and it is easier to deal

with the claims on their merits.  A number of the specific

statements to which Murphy objects on appeal were from Brazil's

testimony.  The gist of some of these statements was that Robinson

and Acerra had a practice of instructing Brazil to falsify

information in warrant applications and further instructing him not

to report moneys seized in subsequent raids conducted pursuant to

such warrants.  Brazil testified that he was generally so

instructed in other, unnamed incidents and, specifically, that he

was told to falsify the May 6 warrant applications and not to

report the May 29 seizure (as previously described).

  Whether the detectives' conduct in other, unspecified

incidents should be made known to the jury had been the subject of

disagreement prior to trial.  In resolving an in limine motion to

suppress filed by Murphy, the district court had concluded, over

objections based on relevance and prejudice, that the government

could offer evidence of the detectives' general practice of

falsifying warrants and not reporting cash, but that evidence as to

specific instances must be confined to the two incidents involving

Murphy.  When the general practice evidence was offered at trial,

Murphy says that he made an adequate hearsay objection and that the

court rejected the objection, relying on the co-conspirator

exception.

  As it happens, the bulk of Brazil's "instruction"

evidence in question was not hearsay at all.  Hearsay is an out-of-

court statement offered as evidence of the truth of the matter

asserted therein, Fed. R. Evid. 801(c); and while Brazil certainly

testified to statements made by the detectives out of court, those

statements--namely, the instructions given to Brazil to falsify

applications and withhold information about seizures--were not

offered for the truth of the matter asserted but rather to show

that the detectives gave such instructions.  For the most part, the

out-of-court statements in question were simply directions (e.g.,

to make false statements in the warrant applications) and not

statements of fact at all. 

  Murphy objects that the statements were not "verbal acts" 

(e.g., the "I accept" that shows that an agreement has been

formed), but that is beside the point.  Verbal acts are simply one

example among many of out-of-court statements offered for something

other than their truth.  So long as out-of-court statements are

not offered for their truth, they are not hearsay, see Gutierrez-

Rodriguez v. Cartagena, 882 F.2d 553, 575 (1st Cir. 1989); it is

unnecessary to fit such statements into one particular category,

like verbal act, although this is often done, primarily as a short-

hand way of explaining the non-hearsay purpose for which the

statement is offered.

  Here, Brazil's testimony as to what the other detectives

told him to do showed that the detectives' method of operation was

to use false warrant applications and not to report seized cash. 

Such evidence tended to support other evidence from Brazil that the

detectives took similar steps in the two episodes in which Murphy

was involved and this, in turn, was pertinent to showing Murphy's

role in the two extortion efforts growing out of the two seizures. 

Whether or not the proof of general practice was more prejudicial

than probative is a different issue raised in the district court

but not here pursued by Murphy.  Nor does Murphy appear to have

claimed that the testimony was character evidence restricted by

Fed. R. Evid. 404(a).

  Since the out-of-court statements just described were not

hearsay, why then did the district court make a Petrozziello

finding at all?  The main answer is that other out-of-court

statements by Acerra and Robinson, concerning the very episodes at

issue in Murphy's trial, were (or arguably were) offered for their

truth.  Those statements were thus hearsay and so inadmissible

against Murphy (absent some other exception) unless the district

court found that Murphy was part of a conspiracy and that the

statements were made by a fellow conspirator (Acerra or Robinson)

during and in furtherance of the conspiracy.  This hearsay label is

most easily applied to the next piece of testimony objected to by

Murphy on this appeal.  

  Specifically, Brazil testified that at the police station

on the night of the Edgemere Road search, he heard Robinson say

that he knew Machore's attorney (i.e., Murphy) and "words to the

effect that `I know the attorney, I'll talk to him, we can work

this out,' words to that effect."  Robinson's statement--seemingly

pure hearsay--that he knew Murphy helped explain Murphy's early

appearance as a go-between; whether the balance of the sentence,

expressing Robinson's intention to have a discussion with Murphy,

would be subject to a hearsay objection depends on how one

interprets the state of mind exception, Fed. R. Evid. 803(3), and

associated case law.  In all events, admissibility of at least part

of the full statement depended on the Petrozziello finding. 

  This brings us to Murphy's dual attack on the

Petrozziello finding.  On the factual side, Murphy's argument is in

substance that the district judge confused two different

conspiracies, the broad continuing conspiracy (from 1990 through

1996) between Acerra and Robinson to commit unlawful seizures and

keep the proceeds and the narrower extortion conspiracy (from May

through September of 1992) to which Murphy was a party.  The

distinction matters:  statements made solely in the course of the

former would not be admissible against Murphy under the co-

conspirator exception because (according to the government) Murphy

never became a member of that conspiracy.  Fed. R. Evid.

801(d)(2)(E); United States v. Ciampaglia, 628 F.2d 632, 638 (1st

Cir. 1980); Petrozziello, 548 F.2d at 23.

  This charge builds on an ambiguity in the district

court's own statements.  After the verdict, the district court

found, as required by Petrozziello, that "there was a specific

conspiracy between Mr. Murphy, Mr. Robinson, and Mr. Acerra to

obtain money through means of extortion" and "conspiratorial

preparation and conspiratorial coverup . . . ."  But in explaining

the import of the finding, the district court used words arguably

suggesting that the finding supported not only the admission of

out-of-court statements made by Robinson and Acerra during the

extortion conspiracy but also some made before the extortion

conspiracy's formation.

  Of course, the co-conspirator exception operated against

Murphy only as to statements made during a conspiracy of which he 

was a member (although they could have been made before he joined,

see United States v. United States Gypsum Co., 333 U.S. 364, 393

(1948); United States v. Goldberg, 105 F.3d 770, 775-76 & n.1 (1st

Cir. 1997)).  The government does not claim to have proved that

Murphy was ever a member of the broader conspiracy and, indeed,

early in the case disclaimed any such intention.  Thus, to the

extent that the detectives made out-of-court statements before the

extortion conspiracy began, they could not be offered against

Murphy for their truth.  If the district court thought otherwise

(which we very much doubt), it was mistaken.

  But the mistake, if there was one, had no consequence. 

The detectives' general practice of false warrant applications and

unreported cash seizures was proved, as already noted, by Brazil's

non-hearsay testimony as to the instructions he was given.  If

somewhere in Brazil's testimony there was also some real hearsay to

the same effect--and none is clearly identified by Murphy--it was

duplicative and harmless.  Nor does Murphy try to identify any

other specific out-of-court statements of the two detectives, not

made during the narrower extortion conspiracy, that were admitted

against him for their truth.

  This brings us to Murphy's procedural attack on the

Petrozziello finding.  The finding, clearly necessary for admission

of hearsay statements of the detectives made during the extortion

conspiracy, was rendered by the trial judge after the jury verdict. 

Indeed, prior to jury deliberations, the district judge told

counsel that the finding would be made after the verdict, by which

time the judge would have had an opportunity to review the trial

evidence.  This delay, says Murphy, was error and should invalidate

the finding (and evidence admitted pursuant to it) because this

court's precedent allegedly requires the finding before the case

goes to the jury.  See Ciampaglia, 628 F.2d at 638.

  Well, yes and no.  The case law in this circuit

anticipates that the finding will be made after all of the evidence

is in but before the case goes to the jury.  The case law

explicitly provides that the Petrozziello finding should be based

on all of the evidence, see Ciampaglia, 628 F.2d at 638, which

explains why the judge must wait until all parties have presented

their cases.  And, of course, trial counsel normally need to know,

before they sum up and argue about the evidence to the jury,

whether the evidence to be considered by the jury in its

deliberations will include hearsay statements provisionally

admitted (in the expectation that "all" of the evidence may lead to

an affirmative Petrozziello finding).  

  But we are confident from reading the transcript that

defense counsel knew before closing arguments that the jury was

going to be allowed to consider the co-conspirator hearsay

statements in its deliberations.  In all likelihood, the district

court assumed that counsel understood that the statements were now

to be treated as admitted--since the jury, having heard the

testimony, was not being told to disregard it--and that the court

was postponing its formal finding so that it could review the trial

evidence at greater leisure.  This, in turn, would permit the

district court more easily to bolster its finding with specific

record references.

  An explicit Petrozziello finding, before the case goes to

the jury, is surely the better practice (absent very unusual

circumstances).  But if there was any doubt in defense counsel's

mind as to the evidence properly subject to closing argument and

jury consideration, counsel should have asked for a ruling by the

court.  Here, no such inquiry was made when the district court

said that it was postponing its formal finding.  And, when the

prosecutor in closing argument relied explicitly on an arguable

hearsay statement previously recounted (the "we'll work something

out" colloquy), defense counsel did not object.  Of course, the

district court would have faced some difficulty if its post-verdict

review of the record had persuaded it to come out the other way on

its formal Petrozziello finding, but that interesting problem did

not arise.

  We turn now to Murphy's second, and quite different,

ground of appeal.  At sentencing, the district court refused

Murphy's request to adjust his offense level downward to reflect

his claim that he had played only a "minor" or "minimal" role in

the offense.  U.S.S.G.  3B1.2.  This is normally a fact-bound

decision, reviewed only for clear error and rarely reversed.  See,

e.g., United States v. Mateo-Sanchez, 166 F.3d 413, 417 (1st Cir.

1999); United States v. Gonzalez-Soberal, 109 F.3d 64, 73 (1st Cir.

1997).  However, in denying the adjustment, the district court said

the following:

      Now, turning to the question of

  adjustment for role in the offense, I don't

  want to spend too much time on that.  I view

  the role that Mr. Murphy had to be not a minor

  role, not a minimal role.  It's really at the

  core of what goes on in these kinds of

  transactions.  There is a middle man. Mr.

  Murphy was found to be that middle man.  I

  find it to be shown to a fair preponderance of

  the evidence that he was.  I do not find any

  basis for adjusting the role in the offense.



  Murphy now argues that the district court denied the

adjustment on the premise, mistaken as a matter of law, that

middlemen in extortion schemes are automatically disqualified from

minor or minimal role adjustments.  He invokes cases where

appellate  courts have reversed because they thought that such a

categorical approach had been used in lieu of an assessment of the

defendant's specific actions; for example, in one case, the

sentencing judge used language suggesting to the appeals court that

he thought the adjustment was always and forever unavailable to

drug couriers regardless of circumstances.  See United States v.

Campbell, 139 F.3d 820, 821-22 (11th Cir. 1998); see also United

States v. Donaldson, 915 F.2d 612, 615 (10th Cir. 1990).

  The line between categorical and case specific refusals

to decrease offense levels is more blurred than most courts

acknowledge because descriptive terms, applied to individuals, are

themselves categories (e.g., drug courier; middle man).  What is

needed, if sentencing judges are not to be forced to read

boilerplate from scripts, is use of common sense in determining

what the judge meant.  Here,  we think that the district court

meant only that Murphy as the middle man played a central part in

this extortion scheme; and we are sure, or at least sure enough to

eschew a remand, that the court was not expressing a per se rule

disqualifying every "middle man" in an extortion scheme from 

showing that his role in the case at hand was in fact minor or

minimal.

  Murphy also refers us to the statements in the guideline

commentary that the minimal role adjustment is "intended to cover

defendants who are plainly among the least culpable of those

involved" in a group crime, U.S.S.G.  3B1.2, comment. (n.1), and

that the minor role adjustment is available for one "who is less

culpable than most other participants" but whose role was not

"minimal."  Id., comment. (n.3).  However, this language has not

been read to make the "least" or "less" culpable person in a given

group crime automatically entitled to the adjustment.  See United

States v. Royal, 100 F.3d 1019, 1030 (1st Cir. 1996); United States

v. Ocasio, 914 F.2d 330, 332-33 (1st Cir. 1990).

  Rather, the defendant must be less culpable than the

ordinary average participant in such crimes and not just relative

to those with whom he perpetrated the crime.  See United States v.

Nunez-Rodriguez, 92 F.3d 14, 24 (1st Cir. 1996); Ocasio, 914 F.2d

at 332-33.  Otherwise, a substantial participant might get an

adjustment just for being less important than others.  Given the

knowing and important role played by Murphy here, it was not clear

error to deny him the adjustment.

  Murphy's next objection to his conviction is that the

prosecutor offered leniency in state proceedings to Machore and

other witnesses against Murphy, as well as unidentified 

"immigration assistance."  The objection, made in a motion for a

new trial that the district court denied, was based on the Tenth

Circuit's later discarded decision in United States v. Singleton,

144 F.3d 1343 (10th Cir. 1998), vacated, 165 F.3d 1297, 1298 (10th

Cir. 1999) (en banc), cert. denied, 119 S. Ct. 2371 (1999),

treating leniency and other benefits as "a thing of value" offered

to a witness in violation of 18 U.S.C.  201(c)(2).  Although

Murphy understands that the original Singleton decision was

overturned in its own circuit and widely disapproved of elsewhere,

see United States v. Ramsey, 165 F.3d 980, 986-87 (D.C. Cir. 1999)

(collecting cases), he urges on us a more limited version of

Singleton.

  Murphy argues that it is one thing for the prosecutor to

offer an implicated co-defendant a plea bargain in the case at hand

and altogether different and less defensible to offer to help the

defendant in unrelated state criminal proceedings or to offer

immigration assistance (presumably, help in avoiding deportation or

regularizing a doubtful status).  The former, says Murphy, may now

be permitted, if section 201(c)(2) is glossed by relying on other

statutes and past practice; but the latter should still be

forbidden as outside the gloss or else the prosecutor could just

pay witnesses money for their testimony.  Murphy points to language

supporting his distinction in two different cases, United States v.

Singleton (Singleton II), 165 F.3d 1297, 1303-08 (10th Cir. 1999)

(en banc) (Luccro, J. concurring), and United States v. Medina, 41

F. Supp.2d 38, 42 (D. Mass. 1999).

  After Murphy filed his brief in this court, another panel

decided United States v. Lara, 181 F.3d 183, 197 (1st Cir. 1999),

whose "explicit and unqualified" holding is "that section 201(c)(2)

does not apply at all to the federal sovereign qua prosecutor." 

That decision, which governs this panel, Williams v. Ashland Eng'g

Co., Inc., 45 F.3d 588, 592 (1st Cir. 1995), cert. denied, 516 U.S.

807 (1995), disposes of Murphy's narrower argument.  We add that

independent of section 201(c)(2), there are surely outer limits on

what a prosecutor can do in offering benefits to a witness.  But

even without Lara, we would not be inclined to view leniency in

state proceedings or forestalling deportation as markedly different

in character or consequence than a lesser sentence or no

prosecution at all in the case at hand.

  Murphy's final argument on the merits of his conviction

is that the evidence in support of one of the counts--the charge of

extorting money from Machore following the May 6 arrests--did not

establish the necessary link to interstate commerce.  This count,

which involved actual extortion of money the Boston Police

Department handed over to Murphy, required the government to prove

that Murphy participated or assisted in extortion that "in any way

or degree obstruct[ed], delay[ed], or affect[ed] [interstate]

commerce or the movement of any article or commodity in

[interstate] commerce . . . ."  18 U.S.C.  1951(a).  The

"commerce" requirement is the basis for Congress's power to

criminalize the conduct under the Constitution.  See Stirone v.

United States, 361 U.S. 212, 218 (1960).

  Murphy argues that the government's commerce showing

rested on the theory that the money diverted from the Boston Police

Department to Murphy would otherwise have been available to the

police to purchase articles in interstate commerce.  Murphy agrees

that it is enough that money is diverted from a pool of funds that

is otherwise used (at least in part) to purchase goods that flow in

interstate commerce.  United States v. DiGregorio, 605 F.2d 1184,

1190-91 (1st Cir.), cert. denied, 444 U.S. 944 (1979).  But he says

that in this case the drug proceeds seized in the taxi search

would, if retained by the police, have been available under state

law only for limited purposes and not for general "operating

needs."  Mass. Gen. Laws ch. 94C,  47(d).  

  At trial, the government offered evidence that in the

year the extortion occurred, the Boston Police Department made

substantial purchases of goods and services in interstate commerce. 

In response to Murphy's argument, the government says that state

law on its face generously permits use of forfeited drug funds for

"protracted investigations, to provide additional technical

equipment or expertise . . . or to accomplish such other law

enforcement purposes" as the police deem fit.  Id.  Given the

breadth of this statutory language and the proof that the police

did buy goods and services interstate, we agree that a rational

jury could find the minimal effect needed for the jurisdictional

showing.  United States v. Olbres, 61 F.3d 967, 970 (1st Cir.

1995).

  Apparently there was no specific evidence that the

restricted funds were in fact used for interstate purchases (even

though they could have been so used).  But even assuming that this

was beyond the jury's power to infer--a point we need not decide--

the diversion of forfeited funds could hardly help but constrain

the availability of operating funds at least in some minimal

degree; and little is needed to satisfy the very low jurisdictional

threshold.  DiGregorio, 605 F.2d at 1190-92.  We therefore need not

consider the government's other and quite independent theories of

how the extortion scheme affected commerce, offered as alternative

grounds for upholding the verdict.

  Affirmed.