15 F.4th 1
1st Cir.2021Background
- In 1993 Steven DiSarro disappeared after two contacts from federal agents; his remains were later found and forensics showed strangulation. Robert DeLuca and Steven Flemmi implicated Frank Salemme, his son Frank Jr. (deceased), and Paul Weadick in the killing.
- Salemme (NELCN boss) and Weadick were tried jointly for murdering DiSarro to prevent him from speaking to federal authorities in violation of 18 U.S.C. § 1512(a)(1)(C); jury convicted both after a 23-day trial.
- The government introduced many out-of-court statements by NELCN associates under the co-conspirator hearsay exception (Fed. R. Evid. 801(d)(2)(E)) and also relied on forfeiture-by-wrongdoing principles (Fed. R. Evid. 804(b)(6)).
- Defendants challenged admission of prior-acts evidence, breadth of co-conspirator rulings (Petrozziello ruling), alleged Confrontation/Bruton problems from non-testifying Salemme, jury instructions on motive/intent and denial of accessory-after-the-fact instruction, and argued severance was required due to evidentiary spillover.
- The First Circuit upheld the district court: it found the co-conspirator admissions and other evidentiary rulings proper or harmless, rejected Bruton and Napue claims, affirmed denial of severance and accessory-after-the-fact instruction, and affirmed convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of out-of-court statements under Fed. R. Evid. 801(d)(2)(E) | Gov't: statements admissible if made during and in furtherance of an ongoing NELCN conspiracy; district court's Petrozziello ruling supported by record | Salemme/Weadick: rulings too broad; some statements not in furtherance or outside conspiracy scope | Affirmed: court may provisionally admit and make a final Petrozziello ruling; record supported a broader ongoing NELCN conspiracy and admission was not an abuse of discretion |
| Bruton / Confrontation Clause | Gov't: co-conspirator statements in furtherance are non-testimonial; admission doesn't trigger Bruton | Weadick: Salemme's out-of-court accusatory statements to DeLuca incriminated Weadick without Salemme testifying | Affirmed: statements were in furtherance of conspiracy and non-testimonial; no Bruton violation |
| Jury instruction on motive/ federal nexus (reasonable likelihood vs. "possible") | Gov't: jury may be instructed that preventing a "possible" communication suffices; evidence showed federal contacts | Defendants: Fowler requires a "reasonable likelihood" the communication would be to federal officials; instruction was too lenient | No plain error: evidence met Fowler's federal-nexus standard and absence of controlling precedent precluded plain-error reversal |
| Sufficiency of evidence for specific intent (Rule 29) | Gov't: timeline and witness testimony support intent to prevent federal communication | Weadick: insufficient proof he acted with intent to prevent DiSarro from speaking to federal authorities | Affirmed: viewing evidence in government’s favor, rational jury could find intent beyond a reasonable doubt |
| Severance / evidentiary spillover | Gov't: joint trial appropriate; much evidence admissible against both; jury instructions mitigated spillover | Weadick: Salemme's abundant prior-crime evidence and admissions prejudiced him and warranted severance | Affirmed: no pervasive prejudice; many contested items admissible against Weadick or harmless; jury could convict one and acquit the other |
| Admission of prior bad acts / Rule 404(b) (drug cons, Flemmi's murder testimony) | Gov't: prior acts showed trust/relationship and motive, not propensity; properly admitted or intrinsic | Defendants: prior-act testimony was prejudicial propensity evidence and irrelevant | Affirmed: evidence served permissible non-propensity purposes (trust, relationship, consciousness of guilt); probative value outweighed prejudice or error was harmless |
| Accessory-after-the-fact instruction request | Defendants: requested lesser-offense instruction as alternative theory | Gov't: not consistent with defense theory; instruction unnecessary and confusing | Affirmed: no error in refusing instruction; accessory-after-the-fact is not a lesser-included offense and request was not essential to defense |
| Napue (prosecutorial failure to correct false testimony) | Weadick: DeLuca's testimony that Salemme called DiSarro an informant was false and not corrected | Gov't: testimony was offered only to show Salemme's belief/motive; actual truth irrelevant to element | Rejected: no Napue violation because evidence was to show defendants' belief/motive and belief was genuinely asserted by Salemme |
Key Cases Cited
- United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977) (standard for admissibility of co-conspirator statements and district-court findings)
- United States v. Saccoccia, 58 F.3d 754 (1st Cir. 1995) (preponderance standard for co-conspirator statements)
- United States v. Ciresi, 697 F.3d 19 (1st Cir. 2012) (Petrozziello procedure and co-conspirator admission practice)
- Crawford v. Washington, 541 U.S. 36 (2004) (testimonial vs. non-testimonial statements)
- Davis v. Washington, 547 U.S. 813 (2006) (distinguishing testimonial statements for Confrontation Clause)
- Bruton v. United States, 391 U.S. 123 (1968) (co-defendant confessions and Confrontation Clause)
- United States v. Fowler, 563 U.S. 668 (2011) ("reasonable likelihood" federal-nexus requirement for § 1512)
- Giles v. California, 554 U.S. 353 (2008) (forfeiture-by-wrongdoing doctrine and admission under Rule 804(b)(6))
- United States v. Ciampaglia, 628 F.2d 632 (1st Cir. 1980) (remedies when co-conspirator evidence later excluded)
- United States v. Houlihan, 92 F.3d 1271 (1st Cir. 1996) (homicide hearsay exception and forfeiture-by-wrongdoing)