United States v. Weadick

15 F.4th 1

• Court: Court of Appeals for the First Circuit
• Decided: September 24, 2021
• Docket: 18-1899P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 18-1899, 18-1933

UNITED STATES,

Appellee,

v.

PAUL M. WEADICK,

Defendant, Appellant.

No. 18-1932 UNITED STATES,

FRANCIS P. SALEMME,

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

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

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

* Of the District of Rhode Island, sitting by designation. Lawrence Gerzog for appellee Salemme. Randall Ernest Kromm, Assistant United States Attorney, with whom William J. Ferland, Assistant United States Attorney, Donald C. Lockhart, Assistant United States Attorney, and Harvey Smith, Office of General Counsel, U.S. Marshals Service, were on brief, for appellant.

September 24, 2021 KAYATTA, Circuit Judge. Francis P. Salemme and Paul M.

Weadick were tried and convicted of murdering Steven DiSarro in

1993 in order to prevent DiSarro from talking with federal agents

about his activities with Salemme, Weadick, and Salemme's son,

Frank Jr. See 18 U.S.C. § 1512(a)(1)(C). At the time of the

murder, Salemme was the boss of a criminal organization known as

the New England La Cosa Nostra ("NELCN").

The principal issues on this appeal arise from the

admission at trial of a large amount of evidence concerning the

prior criminal activities of Salemme and several witnesses.

Weadick complains, among other things, that by trying him jointly

with Salemme and then introducing evidence covering three decades

of crimes by Salemme, the government deprived him of a fair trial.

Salemme, in turn, argues that much of that evidence about his past

was inadmissible hearsay or propensity evidence. For the following

reasons, we reject these contentions and the other challenges

raised in this appeal.

I.

In 1992, DiSarro bought a closed nightclub in Boston

with funds he received from Frank Jr. Because DiSarro was under

investigation at the time, the papers listed DiSarro's stepbrother

as the owner. Frank Jr. was kept on the books as a part-time

manager, which allowed him to avoid a full curfew as a condition

of pre-trial release following his arrest on labor racketeering

- 3 - charges. Weadick, a close friend of Frank Jr., was hired as a

night manager. Weadick and Frank Jr. had a history of ripping off

drug dealers together, knowing that the specter of the NELCN would

deter any retaliation.

In March of 1993, a federal agent approached DiSarro,

telling him that he was under investigation and asking him to

cooperate. Upon hearing this news, Salemme voiced concern that

DiSarro would implicate Frank Jr. and eventually Salemme himself.

Weadick expressed similar concerns to Frank Jr. Around the same

time, Frank Jr. and Salemme also told others that they suspected

DiSarro of stealing from the nightclub. Having trouble getting a

meeting with DiSarro, Weadick and Frank Jr. discussed inviting him

to Salemme's house to make him feel safe.

Soon thereafter, DiSarro was approached by another

federal agent, who told him he had been indicted, and, for the

second time, asked him to cooperate with the government. DiSarro

reported this contact to both his stepbrother, who nominally owned

the club, and his wife. The next morning, DiSarro's wife watched

him get into a car she didn't recognize, but her description of

the vehicle matched a car Frank Jr. sometimes used. She never saw

her husband again.

Over twenty years later, a Rhode Island excavator, who

had been charged with committing various offenses, led law

enforcement officials to a location in Rhode Island where they

- 4 - unearthed DiSarro's remains. Forensic examination revealed that

DiSarro had been strangled. The excavator's information also led

to Robert DeLuca, a captain in the NELCN, who confessed that he

had received DiSarro's body from Salemme with orders to dispose of

it. DeLuca reported that he had heard from Salemme that Weadick

had driven DiSarro to Salemme's house, where Frank Jr. strangled

DiSarro as Weadick held his legs, all in Salemme's presence.

DeLuca's information provided the breakthrough law

enforcement had been looking for in investigating DiSarro's

disappearance. Eventually, the government initiated this case by

indicting Salemme and Weadick for murdering DiSarro with the

intent, at least in part, to prevent him from talking to federal

authorities. Frank Jr. had died by the time charges were filed.

At trial, Steven Flemmi -- a confessed murderer --

testified that he walked in on DiSarro's murder at Salemme's house

as it was happening, just as DeLuca described it. Weadick's

girlfriend at the time of the murder testified that she had

overheard Weadick and Frank Jr. expressing concerns that DiSarro

"had a big mouth" right before the murder. She also reported that

Weadick left their apartment shortly thereafter and was in an

agitated state when he returned. He gave her a man's bracelet and

told her that she would not need to worry about seeing DiSarro

again. Later, as they were driving south of Boston, Weadick told

- 5 - her that a location they had passed would be a good place to bury

a body.

After twenty-three days of trial, the jury found both

defendants guilty. This appeal followed.

II.

Much of the evidence admitted against Salemme and

Weadick consisted of out-of-court statements made by other

individuals associated with NELCN activities. Salemme and Weadick

each argue that various such statements were improperly admitted

under Federal Rule of Evidence 801(d)(2)(E) as statements by a

party's co-conspirator. Weadick also contends that the admission

of certain out-of-court statements made by his co-defendant,

Salemme, violated his rights under the Confrontation Clause

because Salemme did not take the stand.

A.

Federal Rule of Evidence 801(d)(2)(E) allows a court to

admit out-of-court statements by a party's co-conspirator if made

during the conspiracy and in furtherance of that conspiracy. As

we apply the rule in this circuit, a party seeking to introduce a

statement under the rule must prove to the district court by a

preponderance of the evidence that: (1) when the statement was

made, the declarant was a member of a conspiracy, (2) the defendant

was also (or later became) a member of the same conspiracy, and

(3) the statement was made in furtherance of that conspiracy. See

- 6 - United States v. Saccoccia, 58 F.3d 754, 778–79 (1st Cir. 1995).

We have dubbed the district court's determination as to whether

the proponent has satisfied this burden a "Petrozziello ruling,"

after our holding in United States v. Petrozziello, 548 F.2d 20

(1st Cir. 1977). See United States v. Ciresi, 697 F.3d 19, 25

(1st Cir. 2012). The district court may provisionally admit the

statement when it is introduced and defer a final Petrozziello

ruling until the close of evidence. Id. If the district court

decides at the close of evidence that one or more provisionally

admitted statements is inadmissible, the court must "give a

cautionary instruction to the jury, or, upon an appropriate motion,

declare a mistrial if the instruction will not suffice to cure any

prejudice." United States v. Ciampaglia, 628 F.2d 632, 638 (1st

Cir. 1980).

In accord with these procedures, the district court in

this case provisionally admitted several sets of out-of-court

statements against Salemme and Weadick and then, at the close of

evidence, issued a final Petrozziello ruling finding those

statements admissible under Rule 801(d)(2)(E). Salemme and

Weadick challenge various aspects of that ruling on appeal. As we

will note, some of those challenges were properly preserved, while

others were not.

- 7 - 1.

We begin by quickly disposing of Salemme and Weadick's

general arguments that cover all the statements before moving to

objections to specific sets of statements. First, Salemme and

Weadick contend that it was improper for the district court to

find that they were members of any conspiracy at all, given that

neither of them was specifically charged with the crime of

conspiracy. But the hearsay exception under Rule 801(d)(2)(E) can

apply "regardless of whether the conspiracy furthered [by the

alleged hearsay] is charged or uncharged and regardless of whether

[the conspiracy] is identical to or different from the crime that

the statements are offered to prove." United States v. Lara, 181

F.3d 183, 196 (1st Cir. 1999) (internal citations omitted).

Therefore, whether preserved or not, this general argument fails.

Salemme and Weadick also complain that the district

court abused its discretion by making a blanket Petrozziello

ruling, finding that the Rule 801(d)(2)(E) standard was satisfied

"with regard to all of the statements that were [provisionally]

admitted under the co-conspirator exception" at once (emphasis

added). They argue that the district court should instead have

identified the particular conspiracy furthered by each challenged

statement. But this argument ignores the fact that the district

court explicitly gave Salemme and Weadick the opportunity to

request additional findings. Neither defendant requested any

- 8 - additional findings on the Petrozziello ruling, and Salemme

affirmatively indicated that he was not making any such request.1

Having thus assured the court that no more specific findings were

needed or requested, defendants cannot now complain that the

district court's ruling was too general. See United States v.

Medina, 427 F.3d 88, 91 (1st Cir. 2005); see also United States v.

Castellini, 392 F.3d 35, 50 (1st Cir. 2004) (rejecting a procedural

argument that the district court "never made explicit findings

regarding the existence of the conspiracy and whether the

statements were made in furtherance of the conspiracy" where the

defendant "did not ask the court to be more specific"). Their

second general argument to the district court's Petrozziello

rulings therefore also fails.

2.

We turn now to the specific statements whose admission

Salemme and Weadick challenge under Rule 801(d)(2)(E). Salemme

directs us first to a portion of the trial transcript containing

a recorded conversation in which Frank Jr. brags about several

1 During a conference on jury instructions prior to the district court's final ruling on the Petrozziello objection, Weadick challenged the scope of the conspiracy upon which the Petrozziello finding rested, but only to the extent it covered the statements made prior to 1989, when the acquisition of the nightclub was first pursued. The trial court seemed to agree with Weadick that the evidence only supported a finding that he participated in the alleged conspiracy after 1989, and it noted that the pre-1989 statements came in through other means rather than through the co-conspirator exception.

- 9 - exploits and successes by him and his father. Because Salemme

made no relevant objection to this testimony at trial, we would

ordinarily review the belatedly challenged admission of the

testimony only for plain error, see United States v. Sandoval, 6

F.4th 63, 92 (1st Cir. 2021), but Salemme waives even that review

by offering no explanation at all for how the testimony prejudiced

him. See Pabon, 819 F.3d at 29 (finding a defendant's argument

waived because he "made no attempt" to show how he carried his

plain error burden).

Salemme directs us to only one other specific instance

of error in allowing testimony under the co-conspirator exception:

testimony by Thomas Hillary (a person indebted to Salemme) that

DiSarro said he could not loan Hillary any money because Salemme

would kill him if he did. Again, Salemme made no timely objection

was made at trial, so we review for plain error. Because the

record otherwise supported the charge that Salemme had helped kill

DiSarro to silence him, the evidence was independently admissible

under Federal Rule of Evidence 804(b)(6). See United States v.

Houlihan, 92 F.3d 1271, 1281–82 (1st Cir. 1996) (hearsay objection

waived by homicide); see also Giles v. California, 554 U.S. 353,

367 (2008) (noting that Rule 804(b)(6) codified the forfeiture-

by-wrongdoing doctrine). Thus, any potential error on this point

was harmless. See United States v. Barone, 114 F.3d 1284, 1296–

97 (1st Cir. 1997) ("[W]e may affirm the district court's

- 10 - evidentiary rulings on any ground apparent from the record on

appeal.").

For his part, Weadick points us to five sets of

statements that he says were admitted over his timely objection on

hearsay grounds. Given that Weadick's counsel made several

statements that might be construed as timely objections, and that

he "noted [Weadick's] objections" to the district court's

Petrozziello findings at the close of evidence, we give Weadick

the benefit of the doubt and review the admission of these five

sets of statements for abuse of discretion, see United States v.

Delgado-Marrero, 744 F.3d 167, 179 (1st Cir. 2014), keeping in

mind that "[w]e may not disturb the verdict if [an] error was

harmless," id. at 207 (citing Fed. R. Evid. 103(a) and Fed. R.

Crim. P. 52(a)).

The first two sets of challenged statements involved

Salemme blaming others (including Flemmi) for DiSarro's murder,

which Weadick contends could not have been made in furtherance of

a conspiracy involving him and thus were impermissible hearsay.

But the government did not offer those statements to prove that

they were true. See Fed. R. Evid. 801(c)(2). To the contrary,

the government contended that they were obviously false, and for

- 11 - that reason evidenced Salemme's consciousness that he was guilty

of something that needed to be blamed on others.2

The third set of statements Weadick challenges came from

an intercepted recording of a conversation between Salemme and

Natale Richichi, a member of the Gambino family of New York, during

a 1991 meeting at a Hilton Hotel in Boston. The transcript of the

recording reveals that Richichi and Salemme discussed DiSarro

owing someone money. During that discussion, Salemme said that he

told his son, "DiSarro is gonna turn on you, he's a snake, he's a

sneak, he's no fuckin' good." Weadick contends that these

statements were not in furtherance of any conspiracy that he was

a part of, while the government maintains that these statements

were in furtherance of a conspiracy between Weadick and Salemme

because the discussion was apparently aimed at getting Richichi's

support for Salemme as leader of the NELCN. Whatever one makes of

these statements, their admission caused no material harm. Weadick

argues only that the statements were prejudicial because they

revealed Salemme's disdain for DiSarro. But plenty of evidence in

the record echoed these same sentiments, including one witness's

testimony that Salemme believed DiSarro was stealing from the

2 The government also admitted as to Salemme a plea agreement in which Salemme admitted to lying when he tried to blame DiSarro's murder on a person named Nicky Bianco. Weadick expressly waived any objection to that evidence, albeit preserving his spillover argument, which we address later in this opinion. See infra Part IV.A.

- 12 - nightclub and another witness's testimony that DiSarro believed

Salemme was "crazy" and was "going to kill" him.

The fourth set of statements came from an audiotaped

conversation of Frank Jr. talking to another individual in 1990.

In it, Frank Jr. explained that he was in the process of acquiring

the nightclub. He also mentioned collecting illicit payments in

exchange for providing protection of some sort. Weadick again

argues that these statements were not in furtherance of a

conspiracy he was a part of. But given the collateral and

attenuated substance of these conversations, which had little if

any link to Weadick, it is highly improbable that these statements

influenced the verdict. Accordingly, any potential error was

harmless.

The fifth -- and potentially most prejudicial -- set of

statements relates to two conversations between Salemme and Robert

DeLuca. For context, DeLuca testified that on the day of the

murder, Salemme told him to have "a hole dug" because Salemme would

be delivering him "a package." The next day, DeLuca received the

"package," a dead body wrapped in a blue tarp. The day after that,

Salemme told DeLuca that Frank Jr. had strangled and killed

DiSarro, and that Flemmi had walked in, coincidentally, during the

murder. Then came the challenged statements: DeLuca testified

that, a couple weeks later, Salemme told him that law enforcement

had contacted Weadick about DiSarro's murder. When DeLuca asked

- 13 - about Weadick's involvement, Salemme responded that Weadick had

taken DiSarro to the house where he was murdered and held his legs

while Frank Jr. strangled him. Sometime later, when DeLuca and

Salemme were incarcerated together, Salemme said that law

enforcement had gone to see Weadick again but that Weadick would

"stand" (i.e., not talk).

Weadick maintains that the statements tying him to the

murder were not made during or in furtherance of a conspiracy

involving him and Salemme because they were "made weeks and months

after the conspiracy to kill DiSarro had concluded" and provided

"no significant benefit" to the members of that conspiracy. This

argument might have more pull if the district court had determined

that Weadick was only part of a conspiracy to murder DiSarro, and

not part of some other conspiracy with Salemme. That is because

a conspiracy endures only "as long as the co-conspirators endeavor

to attain the 'central criminal purposes' of the conspiracy,"

United States v. Berroa, 856 F.3d 141, 155 (1st Cir. 2017) (quoting

United States v. Upton, 559 F.3d 3, 10 (1st Cir. 2009)), and

"[m]ere efforts to conceal a crime do not automatically extend the

life of the crime itself," unless "the proof shows 'an express

original agreement among the conspirators to continue to act in

concert in order to cover up' their crime," United States v.

Twitty, 72 F.3d 228, 233 (1st Cir. 1995) (quoting Grunewald v.

United States, 353 U.S. 391, 404 (1957)).

- 14 - But the district court's Petrozziello ruling was not so

narrow, and the record supports a finding that a larger, ongoing

NELCN conspiracy existed. See United States v. Marino, 277 F.3d

11, 26 (1st Cir. 2002) (explaining that membership in the same

crime family with common goals can establish a conspiracy, even if

"organized crime membership alone" does not (quoting United States

v. Gigante, 166 F.3d 75, 82 (2d Cir. 1999))). Salemme's statements

to DeLuca were plainly made "in furtherance" of that larger

conspiracy. Salemme informed DeLuca of Weadick's involvement in

the murder to reassure DeLuca that, despite being questioned by

law enforcement, Weadick would not expose them. We have previously

held that statements keeping co-conspirators "abreast of current

developments and problems facing the group" or "provid[ing]

reassurance" are in furtherance of a conspiracy. Ciresi, 697 F.3d

at 29–30.

And the record supports the conclusion that Weadick was

a member of the larger NELCN conspiracy. Simply put, it seems

quite unlikely that Weadick would work scams with Frank Jr. backed

by the threat of the NELCN muscle, have access to the club's books

while managing it as a front for NELCN leadership, and participate

with Salemme himself in the murder of a threat to NECLN, all

without himself having signaled his support of the criminal

conspiracy known as NELCN. Cf. United States v. Azubike, 564 F.3d

59, 65 (1st Cir. 2009) ("[D]rug organizations do not usually take

- 15 - unnecessary risks by trusting critical transactions to outsiders."

(quoting United States v. Azubike, 504 F.3d 30, 37 (1st Cir.

2007))). Although several people associated with the NELCN

testified that they did not know Weadick, "each coconspirator need

not know of or have contact with all other members." United States

v. Cortés-Cabán, 691 F.3d 1, 13 (1st Cir. 2012) (quoting United

States v. Martínez-Medina, 279 F.3d 105, 113 (1st Cir. 2002)). We

therefore find no abuse of discretion in the district court's

Petrozziello ruling admitting Salemme's statements to DeLuca.

B.

Weadick next contends that the statements we just

discussed -- the statements Salemme made to DeLuca -- raise a

problem under Bruton v. United States, 391 U.S. 123 (1968). Bruton

held that the introduction at trial of statements made by a non-

testifying co-defendant violates a defendant's Sixth Amendment

right to confront the witnesses against him if the statements

"facially incriminate" the defendant. United States v. Figueroa-

Cartagena, 612 F.3d 69, 85 (1st Cir. 2010). But not all such

statements implicate the Sixth Amendment; only "testimonial" ones

do. Davis v. Washington, 547 U.S. 813, 821 (2006). And the

Supreme Court has explained that "statements in furtherance of a

conspiracy" are "by their nature . . . not testimonial." Crawford

v. Washington, 541 U.S. 36, 56 (2004). Thus, Bruton "does not bar

the use of a co-conspirator statement made in furtherance of the

- 16 - conspiracy and admissible under a traditional hearsay exception."

United States v. De La Paz-Rentas, 613 F.3d 18, 29 (1st Cir. 2010).

Since we have held that the district court did not abuse its

discretion in admitting Salemme's statements to DeLuca under the

co-conspirator exception to hearsay, the admission of those

statements poses no Bruton problem.

III.

Weadick and Salemme make several challenges to the jury

instructions. Because neither defendant made a timely objection

to the relevant instructions, see Fed. R. Crim. P. 30(d), we review

only for plain error, see United States v. McPhail, 831 F.3d 1, 9

(1st Cir. 2016).

Weadick and Salemme each challenge an instruction by the

district court addressing the element of motive. Weadick also

argues that there was insufficient evidence of his intent to

support his conviction.

1.

The statute under which the defendants were charged

makes it a crime to kill someone "with intent to . . . prevent the

communication by any person to a law enforcement officer or judge

of the United States of information relating to the commission or

possible commission of a Federal offense . . . ." 18 U.S.C.

§ 1512(a)(1)(C). Obviously, as here, when the killing is achieved

- 17 - as intended, no actual communication takes place. So the trial

judge decided to instruct the jury that the communication that was

prevented by the killing need only have been "possible."

Specifically, the trial judge instructed the jury that the

government bore the burden of proving "beyond a reasonable doubt

that at least some part of a defendant's motive in killing Steven

DiSarro was to prevent a communication or possible communication

to a federal officer or judge" (emphasis added).

Weadick and Salemme argue that the government was

required to prove a "reasonable likelihood" that DiSarro would

have made a communication of concern, and that the district court

erred by instructing the jury that the relevant communication need

only have been "possible." They rely chiefly on the Supreme

Court's opinion in United States v. Fowler, 563 U.S. 668 (2011).

But Fowler addressed a different question: When a defendant kills

a person to prevent the person from talking with law enforcement

officials generally, rather than federal officials specifically,

is there a violation of the federal witness tampering law? 563

U.S. at 670. Relying in part on the need to have a federal nexus

so as not to federalize the treatment of witness tampering in run-

of-the-mill state law matters, id. at 677, the Court held that the

federal witness tampering statute requires the government to prove

a "reasonable likelihood" that "at least one of the relevant

communications would have been made to a federal officer," id. at

- 18 - 677–78. In this case, the evidence clearly meets that standard:

Salemme and Weadick first expressed concern after a federal agent

sought cooperation from DiSarro, and his death occurred the day

after he reported a second contact from a federal agent.

Still, Weadick and Salemme argue, perhaps DiSarro would

not have made any communication at all. Whether Fowler's

"reasonable likelihood" standard applies equally to that issue is

unclear. We have not considered the question previously, but two

circuits that have considered it have concluded that Fowler does

not apply. See United States v. Tyler, 956 F.3d 116, 127 n.15 (3d

Cir. 2020); Stuckey v. United States, 603 F. App'x 461, 461–62

(6th Cir. 2015). Accordingly, Weadick and Salemme have not

established plain error. See United States v. Rivera-Morales, 961

F.3d 1, 13 (1st Cir. 2020) ("[A] criminal defendant generally

cannot show that a legal error is clear or obvious in the absence

of controlling precedent resolving the disputed issue in his

favor.").

Relatedly, Weadick argues that the government did not

provide sufficient evidence of his intent to prevent a

communication with a federal law enforcement officer or judge. He

says that, even assuming there was sufficient evidence that he

assisted in murdering DiSarro, there was no evidence that he did

so with the specific intent of preventing DiSarro from becoming a

- 19 - federal witness. The district court denied Weadick's Rule 29

motion on this point. See United States v. Salemme, No. 16-CR-

10258-ADB, 2018 WL 3429909, at *2 (D. Mass. July 16, 2018). We

review that denial de novo, asking "whether, after assaying all

the evidence in the light most amiable to the government, and

taking all reasonable inferences in its favor, a rational

factfinder could find, beyond a reasonable doubt, that the

prosecution successfully proved the essential elements of the

crime." United States v. Martínez-Mercado, 919 F.3d 91, 98 (1st

Cir. 2019) (quoting United States v. George, 841 F.3d 55, 61 (1st

Cir. 2016)). In doing so, however, we decline to weigh the

evidence or make credibility judgments, as those tasks fall "solely

within the jury's province." United States v. Acevedo, 882 F.3d

251, 259 n.8 (1st Cir. 2018) (quoting United States v. Hernández,

218 F.3d 58, 64 (1st Cir. 2000)).

Here, a reasonable jury could have found that Weadick

killed DiSarro with the specific intent to prevent him from

speaking with federal law enforcement officers. Weadick's

girlfriend at the time testified that she dated and lived with him

for over a year and that she heard Weadick and Frank Jr. talk about

"law enforcement quite a bit and their concern about it." She

also testified that, at one point, Weadick "had gotten quite angry"

at DiSarro because DiSarro "had a big mouth" and "was talking about

things he shouldn't be." She further testified that Weadick was

- 20 - also involved in conversations where the participants said that

DiSarro was "probably worried that someone's going to kill him

because of the way he's talking, running his mouth." Finally,

DiSarro's murder occurred the morning after a second federal agent

contacted him, and after Weadick had already expressed concerns

about DiSarro implicating the Salemmes. That chronology added yet

another basis for inferring that DiSarro was murdered precisely to

keep him from caving into pressure from law enforcement.

A rational factfinder also could have found a reasonable

likelihood that the communication Weadick intended to prevent

would have been made to one or more federal law enforcement

officers. See Fowler, 563 U.S. at 678. As we have already

explained, it is at least reasonably likely that any relevant

communication made by DiSarro would have been directed to the

federal agents who had recently sought his cooperation. We

therefore see no error in the district court's denial of Weadick's

Rule 29 motion.

At the end of trial, both defendants asked the court to

instruct the jury on the elements of the offense of being an

accessory after the fact.3 The theory was that if the jurors

3 An accessory after the fact is a person "who helped the principal after the basic criminal event took place." See Figueroa-Cartagena, 612 F.3d at 73 (quoting Gonzales v. Duenas- Alvarez, 549 U.S. 183, 189 (2007)); 18 U.S.C. § 3.

- 21 - disbelieved most of the government's evidence, but believed some

of what DeLuca said about Salemme's effort to have the body buried,

then Weadick or Salemme was guilty only of being an accessory after

the fact, not of committing or aiding and abetting a murder. The

district court refused to give the instruction, and Salemme

challenges that refusal on appeal. Despite Salemme requesting

this instruction with specificity and the district court rejecting

his request on the merits, our review under current circuit

precedent is still for plain error because Salemme failed to object

after the jury was charged. See McPhail, 831 F.3d at 9. But see

United States v. Pérez-Rodríguez, No. 19-1538, 2021 WL 3928896, at

*20–22 (1st Cir. Sept. 2, 2021) (Lipez, J., concurring). That

being said, as we will explain, the standard of review makes no

difference in this instance because there was no error.

A defendant "is ordinarily entitled to a lesser-included

charge" or an instruction for a complete defense if doing so is

"consistent with the evidence." United States v. Rivera-Figueroa,

149 F.3d 1, 6 (1st Cir. 1998) (citing Schmuck v. United States,

489 U.S. 705, 715–16 & n.8 (1989)). But, as the district court

correctly noted, being an accessory after the fact is neither a

complete defense to the charged crime nor a lesser-included

offense. See id. at 6 n.5. And as we have previously observed,

giving an instruction on an uncharged accessory-after-the-fact

offense poses a risk of confusing the jury. United States v.

- 22 - Otero-Méndez, 273 F.3d 46, 56 (1st Cir. 2001). Under these

circumstances, a defendant cannot establish an abuse of discretion

(let alone plain error) unless, among other things, he can show

that the "requested instruction was essential to the effective

presentation of the particular defense." See id. at 55 (quoting

United States v. Rosario-Peralta, 199 F.3d 552, 567 (1st Cir.

1999)). Salemme makes no such showing. Indeed, any claim that

Salemme helped out afterward would have likely undercut his

defense, which was that he took no part in the killing at all.

All in all, we agree with the district court that it was not

necessary to instruct the jury as to the elements of being an

accessory after the fact.

Salemme also makes a separate, slightly different

argument on appeal. He contends that the district court, in

instructing on aiding-and-abetting liability, should have added a

warning that helping a perpetrator only after the fact was not

aiding and abetting. Salemme never raised this particular argument

in the district court. And even on appeal he does not dispute

that the instruction given clearly set out the elements of aiding

and abetting. Nor does he show that it was clear or obvious that

the requested instruction was necessary to his defense. We

therefore reject this argument for the lack of any plain error.

- 23 - IV.

Finally, we turn to several miscellaneous, allegedly

prejudicial errors Weadick and Salemme argue were made by the

district court. We discuss each in turn.

Weadick challenges the district court's denial of his

motion to sever. We review that denial only for an abuse of

discretion. United States v. Azor, 881 F.3d 1, 10 (1st Cir. 2017).

Weadick contends that severance was necessary to avoid evidentiary

spillover. Evidentiary spillover occurs "where evidence

establishing the guilt of one defendant, but not admissable [sic]

against the other, may create an atmosphere clouding the jury's

ability to evaluate fairly the guilt or innocence of the latter."

United States v. Perkins, 926 F.2d 1271, 1281 (1st Cir. 1991); see

also United States v. Martínez, 994 F.3d 1, 15–16 (1st Cir. 2021)

(describing spillover as "where the crimes of some defendants are

more horrific or better documented than the crimes of others"

(quoting United States v. Innamorati, 996 F.2d 456, 469 (1st Cir.

1993))).

Some amount of spillover is inherent in trying multiple

defendants together. See United States v. DeLuca, 137 F.3d 24, 36

(1st Cir. 1998). "To prevail on an evidentiary spillover claim,

the defendant must prove 'prejudice so pervasive that a miscarriage

of justice looms.'" United States v. Paz-Alvarez, 799 F.3d 12, 30

- 24 - (1st Cir. 2015) (quoting United States v. Levy-Cordero, 67 F.3d

1002, 1008 (1st Cir. 1995)). "[W]here the evidence against a

defendant might show [his] association with his co-defendants even

if he were tried alone, the argument for prejudice becomes much

weaker." Azor, 881 F.3d at 12 (citing King v. United States, 355

F.2d 700, 704 (1st Cir. 1966)). "Even 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, we have been reluctant to secondguess

severance denials." Id. (quoting United States v. Boylan, 898

F.2d 230, 240 (1st Cir. 1990)).

With these principles in mind, we turn to Weadick's

arguments. First, echoing his earlier contention that he was not

a member of any conspiracy with Salemme or the NELCN beyond

arguably a narrow conspiracy to murder DiSarro, Weadick contends

that a number of co-conspirator statements admitted against

Salemme at trial would not have been admissible against him in a

separate trial. However, as we have already explained, the

specific statements Weadick points to, with one exception, were

either equally admissible against him or harmless. See supra

Part II.A. As such, the admission of these statements did not

require severance. See United States v. Floyd, 740 F.3d 22, 37

(1st Cir. 2014) (explaining that there was no plausible basis for

severance where "[m]uch of the evidence about which the defendants

- 25 - complain would have been admissible against them even if they had

been tried separately").

The one exception is Salemme's admission that he lied

when he claimed that a third party was responsible for DiSarro's

murder in his 1999 proffer to the government, which was admissible

against Salemme alone. But, like the statements just discussed,

Salemme's admission did not create the sort of "extreme prejudice"

that would warrant a separate trial for Weadick. Houlihan, 92

F.3d at 1295. The district court made clear during jury

instructions, and Weadick argued in closing, that the jury was

free to convict Salemme and acquit Weadick. See United States v.

Capelton, 350 F.3d 231, 239 (1st Cir. 2003) (upholding the denial

of a severance motion in part because the district court instructed

the jury to evaluate each defendant individually). Salemme's

admission did not change that. It was offered only to show

Salemme's consciousness of guilt, and it did not mention Weadick

or otherwise implicate him in DiSarro's murder. Certainly someone

killed DiSarro and had him buried, so evidence that implicated

Salemme, and not Weadick, was a mixed bag at worst for Weadick.

And given the testimony of Weadick's girlfriend, of Flemmi, and of

DeLuca, as well as the evidence of Weadick's relationship with

Frank Jr., it is very unlikely that Salemme's admitted lying made

any difference. See United States v. Appolon, 695 F.3d 44, 54

(1st Cir. 2012) (requiring a defendant moving to sever to show

- 26 - "more than just a better chance of acquittal at a separate trial"

(quoting United States v. DeCologero, 530 F.3d 36, 52 (1st Cir.

2008))).

Second, Weadick argues that he was prejudiced by the

introduction of certain witnesses' prior crimes. For example,

Flemmi testified to his involvement in the murders or attempted

murders of over a dozen individuals. Weadick asserts that he was

prejudiced by the sheer volume of prior-acts evidence, as well as

by the brutal detail elicited regarding two murders in particular

-- one that took place at Salemme's house in Flemmi's presence,

see infra Part IV.C, and another that Salemme ordered DeLuca to

commit.

Salemme does not challenge the admissibility of this

testimony. Indeed, he elicited some of it himself in what Weadick

presumes was an actual or anticipated attempt to impeach the

witnesses. Weadick, though, points out that some of the evidence

of murders predated his earliest possible involvement in any NELCN

conspiracy and was prejudicial spillover evidence that never would

have been admitted had he been tried alone. We are skeptical. It

would be an unusual defendant who would not want the jury to know

that the government's key witness is a murderer many times over.

Be that as it may, even if we assume that Weadick --

unlike Salemme -- would not have impeached Flemmi, et al. with

their prior crimes, a divergence in defense strategy generally

- 27 - poses no mandatory severance absent a true antagonism, "such that

if the jury believe[d] one defense, it [was] compelled to convict

the other defendant." United States v. Peña-Lora, 225 F.3d 17, 33

(1st Cir. 2000) (emphasis in original) (quoting United States v.

Woods, 210 F.3d 70, 79 (1st Cir. 2000)). Clearly, no such

antagonism existed here. With or without the impeachment, both

defendants took the position that Flemmi was not to be believed,

and neither sought to use the evidence (or its absence) to point

the finger at the other. At most, we have an example of a

disagreement in how best to use (or not use) evidence toward a

shared end, and Weadick's inability to pursue his preferred tactic

is unlikely to have caused any cognizable harm. See DeCologero,

530 F.3d at 53.

Finally, as to prejudice, precisely because the

testimony did not concern Weadick, its prejudicial impact was

muted. We do agree that in painting Salemme and his associates so

badly, the testimony created some risk of guilt by association.

But evidence plainly admissible against Weadick already made clear

that Weadick was close to the Salemmes and they were very bad guys.

The district court, too, told the jury that it could acquit Weadick

while convicting Salemme, and that it could not use evidence of

any prior crimes to establish a propensity to commit the charged

crime. All in all, we find no error of law or abuse of discretion

in holding a single trial to adjudicate the charges that Weadick

- 28 - and Salemme together murdered DiSarro to keep him from talking

with federal authorities.

Weadick next says the district court erred in allowing

the government to introduce evidence showing that, prior to

DiSarro's murder, he and Frank Jr. had worked together to con drug

dealers and users. He argues that this evidence was irrelevant,

see Fed. R. Evid. 402, that it amounted to improper propensity

evidence, see Fed. R. Evid. 404(b), and that, in any event, its

probative value was outweighed by the risk of unfair prejudice it

posed, see Fed. R. Evid. 403. Assuming a proper objection was

made, we review for abuse of discretion. Grossmith v. Noonan, 607

F.3d 277, 279 (1st Cir. 2010).

The evidence Weadick challenges includes testimony from

a witness with NELCN connections that Frank Jr. and Weadick "robbed

together." Another witness, a former officer for the New Hampshire

State Police, testified that while he was undercover posing as a

prospective seller of cocaine in 1987, Weadick and Frank Jr.

approached him about buying drugs. He testified that they became

uninterested and left when the officer told them that he did not

have the drugs in the car and that they would have to go to another

location to get them. Other troopers later stopped Weadick and

Frank Jr.'s vehicle and searched the car for money. Although no

money was found, the officers found a package of flour, wrapped

- 29 - tightly in tape, which the officer testified was roughly the size

and bulk of the amount of money they would have been dealing with.

Finally, a third witness, DiSarro's stepbrother, testified that

DiSarro had told him that Weadick and Frank Jr. had "ripped off a

drug dealer and then pushed him out of the car while it was going

down the road."

We see no abuse of discretion in the district court's

finding that the drug-transaction evidence was admissible against

Weadick. Rule 404(b) prohibits the use of evidence of "any other

crime, wrong, or act . . . to prove a person's character in order

to show that on a particular occasion the person acted in

accordance with the character." Fed. R. Evid. 404(b)(1). For

example, if the drug-con evidence had been offered solely to

suggest that Weadick was a criminal and was therefore more likely

to have committed the charged crime, the evidence would be

inadmissible under Rule 404(b). But that is not what happened

here. Rather, the drug-con evidence was admitted "to help the

jury understand the basis for the co-conspirators' relationship of

mutual trust," which in turn would help it evaluate whether and

why Weadick might have agreed to help Frank Jr. murder DiSarro.

United States v. Escobar-de Jesus, 187 F.3d 148, 169 (1st Cir.

1999). That is a relevant and permissible purpose in a conspiracy

- 30 - case such as this.4 Id.; see also United States v. Vizcarrondo-

Casanova, 763 F.3d 89, 94 (1st Cir. 2014).

It is true that the government likely could have

introduced other evidence establishing a relationship between

Weadick and Frank Jr. But, as the district court pointed out, the

drug-con evidence was the only evidence showing that their

relationship included criminal activities, which strengthens the

inference of loyalty and mutual trust and shows that Weadick's

involvement in the Salemme family's crimes was not limited to

DiSarro's murder. And any danger of unfair prejudice stemming

from this evidence was low: The drug cons that Weadick allegedly

participated in with Frank Jr. were not similar to the charged

crime of murder, and they were far less serious. Moreover, the

details elicited regarding the drug cons were not excessive. See

Vizcarrondo-Casanova, 763 F.3d at 94–95 (asking whether the

evidence of this type included more details than necessary to

establish trust and whether the government had other evidence to

establish a relationship of trust). As such, the district court

did not abuse its discretion in finding that the probative value

of this evidence was not substantially outweighed by the danger of

unfair prejudice or other related concerns. See Fed. R. Evid. 403;

4 We therefore need not address the district court's alternate basis for admitting the drug-con evidence under Rule 404(b), namely that it was "intrinsic to the charge[d] conspiracy."

- 31 - Martínez-Mercado, 919 F.3d at 101 (explaining that Rule 404(b)

requires a determination as to whether (1) the evidence has a non-

propensity purpose, and if so, (2) the probative value of the

evidence is substantially outweighed by the danger of unfair

prejudice).

Pushing back, Weadick argues that the government's

evidence showing his involvement in the drug scams was weak. For

example, he notes that on cross-examination, one witness admitted

that he only "vaguely" remembered the Weadick drug robberies and

that he could not remember specifics. Likewise, DiSarro's

stepbrother on cross-examination admitted that he could not recall

for certain whether Weadick was involved in the cons and that he

may have been wrong in saying he had been. Weadick also points

out that some law enforcement officers who conducted surveillance

of Frank Jr. never observed Weadick with him -- implying that

Weadick and Frank Jr. were not as close as the other evidence made

it seem or that the witnesses testifying to Weadick's involvement

in the drug cons were mistaken. But all these arguments go to the

weight of the evidence, not to its admissibility. See United

States v. Mehanna, 735 F.3d 32, 65 (1st Cir. 2013).

C.

Salemme challenges on propensity grounds the

introduction of Flemmi's testimony that he was with Salemme at

Salemme's home in 1968 when another person was murdered. Salemme

- 32 - points to no indication that he objected to this evidence, so we

review only for plain error. It is not obvious that the evidence

had no non-propensity relevance and purpose -- it explained why

Salemme would not have been concerned when Flemmi stumbled upon

Salemme, Frank Jr., and Weadick committing the DiSarro murder.

See Escobar-de Jesus, 187 F.3d at 169 (allowing evidence of a prior

crime to help demonstrate a relationship of mutual trust). The

evidence also had a potential for unfair prejudice given certain

similarities between Flemmi's testimony and the DiSarro murder.

But there is no reason to treat as plain error the district court's

balancing of these attributes in favor of admitting the evidence.5

D.

Lastly, Weadick argues that the prosecutor committed

Napue error by failing to correct allegedly false testimony a

witness gave during the trial. In Napue v. Illinois, the Supreme

Court held that "a conviction obtained through use of false

evidence, known to be such by representatives of the State, must

fall under the Fourteenth Amendment," including when "the State,

although not soliciting false evidence, allows it to go uncorrected

when it appears." 360 U.S. 264, 269 (1959).

5 Although the district court at the end of trial concluded this evidence was intrinsic to the charged crime, we may affirm a district court's evidentiary ruling on any ground apparent in the record. See United States v. Brown, 669 F.3d 10, 21 (1st Cir. 2012).

- 33 - Weadick focuses on DeLuca's testimony that Salemme had

told him DiSarro "was an informant" who "was giving information

to" an Assistant United States Attorney. Weadick asserts that

"DiSarro never communicated with [that Assistant] at any time prior

to his death." But that is beside the point. As the government

explained to the jury, this testimony from DeLuca was elicited

only to show that Salemme believed DiSarro was cooperating with

federal authorities:

Now, was Steven DiSarro actually cooperating with the federal government? No. No. But it doesn't matter because to satisfy the element of this offense, all the government needs to show is that the defendant is motivated by his belief . . . that the person is a cooperator.

Weadick does not dispute that Salemme in fact expressed such a

belief, accurate or not, to DeLuca. Accordingly, we reject his

claim of Napue error.

For the foregoing reasons, we affirm the convictions of

both Salemme and Weadick.

- 34 -