UNITED STATES OF AMERICA, Aрpellee, v. VINCENT A. CIANCI, JR., FRANK E. CORRENTE, and RICHARD E. AUTIELLO, Defendants, Appellants.
Nos. 02-2158, 02-2159, 02-2165, 02-2166, 02-2188
United States Court of Appeals For the First Circuit
August 10, 2004
Vol. II of II
Before Howard, Circuit Judge, Campbell and Stahl, Senior Circuit Judges.
[Hon. Ernest C. Torres, Chief U.S. District Judge]
John A. MacFadyen for appellant Vincent A. Cianci, Jr.
Anthony M. Traini for appellant Frank E. Corrente.
Richard C. Bicki with whom Cerilli & Bicki and Edward Gerstein were on brief for appellant Richard E. Autiello.
Donald C. Lockhart, Assistant United States Attorney with whom Margaret E. Curran, United States Attorney, Richard W. Rose and Terrence P. Donnelly, Assistant United States Attorneys were on brief, for appellee.
A. Federal Bribery Conspiracy (Autiello)
Autiello argues that there was insufficient evidence to support his conviction for federal bribery conspiracy in connection with the Maggiacomo Job scheme. Autiello contends that, because there was no direct evidence about either the identity of his coconspirator or the fate of the $5,000 Mary Maggiacomo paid him, the evidence gave nearly equal circumstantial support to an inference that he pocketed the money as a payment for his efforts with the police department (with which he had influence) on behalf of Joseph Maggiacomo as it did to an inference that he passed the bribe along to some public official, or at least conspired to do so. Seе United States v. Andujar, 49 F.3d 16, 20 (1st Cir. 1995) (“If the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilty and a theory of innocence of the crime charged, this court must reverse the conviction.“) (citation and internal quotation marks omitted). The argument is unconvincing.
There was evidence that, during a face-to-face meeting in which his favorable intercessions were sought, Autiello told Mary Maggiacomo and her husband that Providence police officer positions were prized and that Joseph Maggiacomo‘s chances were not good because the Maggiacomos were not Providence taxpayers and had not made any “contributions.” In nearly the same breath, Autiello told
B. Hobbs Act Attempted Extortion and Extortion Conspiracy (Corrente)
Corrente makes three arguments in favor of reversing or vacating his convictions for Hobbs Act attempted extortion and Hobbs Act extortion conspiracy in connection with the Freitas Lease and Freitas Invoices schemes: (1) there was insufficient evidence that these schemes had the constitutionally required impact on interstate commerce; (2) there was insufficient evidence that he affirmatively acted in such a way as to be fairly accused of having attempted or conspired to engage in extortion; and (3) the district court‘s jury instructions erroneously described what was required to establish an attempt or conspiracy to engage in extortion. There is some question whether each of these arguments was made below as to each of the three convictions, but we bypass issues of forfeiture because none of the arguments is persuasive on its merits.
Corrente alternatively argues that no reasonable factfinder could have found that his offense conduct had such a de minimis effect. He is wrong.
With respect to Corrente‘s attempted extortion in connection with the Freitas Lease scheme, the jury could have found that, but for Freitas’ agreement to pay Corrente for favorable intervention on his behalf with the school department, there was a realistic probability that the City contractor (an entity engaged in interstate commerce and whose lease agreement would be a transaction affecting interstate commerce12) would have leased space in Cranston, Rhode Island. This evidence alone satisfies
With respect to the Freitas Invoices scheme, the jury could have found that a city contractor that was indisputably engaged in interstate commerce was deprived of $1,100 in order to facilitate payments to which it was entitled. This was enough. See Capozzi, 347 F.3d at 337 (“One cоmmon method for the government to establish the required ‘de minimis effect’ on interstate commerce is to show that the defendant‘s activity “minimally depletes the assets of an entity doing business in interstate commerce.“) (quoting United States v. Nguyen, 246 F.3d 52, 54 (1st Cir. 2001)).
There are hints of other arguments in Corrente‘s brief, but none is sufficiently developed to warrant consideration on the merits. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). In any event, our review of the record convinces us that there is no basis for reversing or vacating Corrente‘s attempted extortion and extortion conspiracy convictions.
So too with the jury instructions. As clarified in a supplemental charge just prior to the return of the verdicts, the instructions on the attempted extortion and extortion conspiracy charges were, if anything, overly generous to Corrente. And because the evidence was sufficient to support the convictions even under the arguably too lenient instructions, any error was harmless. See
IV. Admission of the Pannone Tapes
Defendants contend that the district court violated various Rules of Evidence and their confrontation and due process
A. Petrozziello determination
Defendants argue that the district court erred when it concluded that Pannone‘s statements fell outside of the hearsay rule under
Defendants contend that there was “scanty” evidence of a conspiracy among defendants and Pannone. They argue that Pannone‘s taped statements were unreliable and there was insufficient extrinsic evidence of the conspiracies because some of the conversations on the tape were “rambling and unfocused” and not all of the defendants were ultimately convicted as part of the three racketeering acts--the Ronci Estate, Freitas Lease, and Freitas Invoices schemes--of which Pannone had first-hand knowledge.
We disagree. As we have detailed supra, the government presented sufficient еvidence of a RICO conspiracy--conspiracy, enterprise, and pattern of racketeering activity–-to satisfy the evidentiary standard set forth in Petrozziello. In particular, on tape, Corrente intimated to Freitas with respect to the Freitas Lease scheme, “Don‘t get involved with Joe unless something happens.” Corrente also admits on tape to receiving cash from Pannone in connection with the Pay-to-Get-Paid scheme. Pannone chaired the Board of Tax Assessment Review, a municipal office which we have already detailed to be crucial to the conspiracy. Both Freitas and Ead testified at trial to Pannone‘s involvement in the Ronci Estate, Freitas Lease, and Pay-to-Get Paid schemes. With regard to the Ronci Estate scheme, the evidence showed a subconspiracy among Cianci, Corrente, and Pannone to extort money from
Pannone‘s taped statements were not made “after the fact,” but were uttered as part of and in furtherance of the conspiracy. In these statements, Pannone described the roles that he, Cianci, Corrente, and Ead played in the conspiracy and in particular, what he and Freitas should do to carry out the Freitas Lease and Pay-to-Get-Paid schemes. Such statements are well within the core of
B. Confrontation Clause and Due Process claims
Defendants argue that notwithstanding Inadi and Bourjaily, Pannone‘s statements should not have been admitted because he was unavailable and unreliable. They assert that the present case is anomalous and that “corruption stings” such as this one should not fall within Inadi and Bourjaily. We find no case law excepting the case from the Inadi and Bourjaily rules. Defendants further suggest that Pannone was outside of his “natural habitat” because Freitas was eliciting incriminating statements from him as part of his cooperation with the FBI. Pannone,
To further address defendants’ contention that Pannone‘s statements are inherently unreliable, we agree with the district court that Pannone “did have or was in a position to have firsthand knowledge of some of the things that he testified about.” He was an insider to the conspiracy. Again, he was directly involved and even played a supervisory role in the Ronci Estate, Freitas Lease, and Freitas Invoices schemes. Trial testimony by Ead, Rocha, Freitas, and others corroborated Pannone‘s taped statements setting out how Corrente was often the middleman in the racket, that Cianci used Corrente as a buffer, and that money given to Corrente found its way into the campaign and eventually benefitted Cianci or the administration in some way. Taped conversations between Freitas and Corrente confirmed the same.
The government questions Cianci and Corrente‘s motive for failing to call Pannone as a witness for cross-examination as
On April 16, 2002, during a hearing to resolve defendants’ motion to exclude the Pannone tapes, Corrente complained that Pannone‘s plea agreement had “left open” the remaining counts, suggesting that Pannone‘s fear of the government‘s handling of the remaining counts would cause him to assert his Fifth Amendment rights if he were called by the defense to testify. The court, though ultimately rejecting defendants’ legal arguments, assured them thаt it would try to accelerate Pannone‘s sentencing, which at that time had been scheduled for July.
Thereafter, the district court moved up Pannone‘s sentencing in order to accommodate defendants in this case. Pannone was sentenced on May 24, 2002, while the government was still presenting its case-in-chief and almost two weeks before the
After this point, defendants did not attempt to call Pannone as a witness. We find no evidence that Pannone would have invoked his Fifth Amendment right against self-incrimination if called to testify, and whether the court would have permitted him to do so. There simply is no evidence of an “orchestration” by the government to keep Pannone away from defendants. Thus, there were no constitutional infringements here.14
C. Rules 403 and 404(b)
Finally, with respect to the Pannone tapes, defendants argue that the district court erred by failing to consider their objections to admission of the tapes under
We first recount the procedural history giving rise to this issue. On April 24, 2001, the government provided defendants with copies of the two hundred tapes relating to their investigation of defendants, along with an index showing the dates of the recordings and the conversation participants. Three days later, the court issued an Arraignment and Pre-trial Discovery Order, whereby the government was ordered to provide the defendants with transcripts of the tapes. The court also ordered that all pre-trial motions be filed by December 31, 2001.
The government eliminated all but twenty-two tapes as possible trial exhibits. By October 31, 2001 –- two months before the deadline for pre-trial motions and six months before the
On March 28, 2002, the district court issued a Pre-trial Scheduling Order, which read:
On or before April 12, 2002, counsel for any party disputing the audibility of admissibility of any such recording or the accuracy of any such transcript of any such transcript shall file an objection identifying the recording to which objection is being made. Memoranda in support of objections to the accuracy or completeness of transcripts shall be accompanied by copies of the transcripts objected to on which proposed deletions and corrections are noted. In offering recorded conversations, counsel shall make every effort to edit out footage that contains no audible discussion or contains irrelevant material so that the jury will not be required to listen for protracted periods of time to portions of recordings that provide little or no assistance in determining the pertinent facts. In order to achieve that objective, counsel shall meet and confer, in advance, in an effort to resolve any disputes with respect to editing. . . . Failure to comply with the provisions of this paragraph may be considered as a waiver, by the proponent, of the right to offer the recorded conversation(s) at issue; or, alternatively, as a waiver of the right to object to omission of the recorded conversation(s) and/or dispute the accuracy or completeness of the transcript, as the case may be.
On April 8, 2002, defendants filed a motion objecting to the admission of the Pannone tapes. They based their motion primarily on Petrozziello and constitutional grounds, and mentioned Rules 403 and 404 in a general observation that “any given
At the April 16 hearing on the motion, defendants again focused on Petrozziello and the constitutional theories. Corrente‘s counsel acknowledged that the government had edited the tapes to deal with Rule 403 concerns. Nothing more was said with regard to either 403 or 404. The court denied the motion to suppress the Pannone statements and refused to undertake the line-by-line analysis, explaining that it “would take easily, . . . weeks . . . and it would delay the trial by that period of time.” The court expressed its plan to “minimize the risk of a mistrial in the event that statements are presented that later are found not satisfy the requirements” by requiring the government to present “additional evidence above and beyond the statements themselves to support a finding that they qualify as admissible co-conspirator statements.”
On April 24, the second day of trial, the government in chambers mentioned that defendants had failed to propose cuts to the Pannone tapes. In response to Corrente‘s counsel‘s suggestion
Throughout trial, the court repeated that proposals for cuts to the tapes had been due by April 12, 2002, pursuant to its Pre-trial Scheduling Order. Upon challenges at trial by defendants to the admissibility of individual tapes, the court stated that they could not make these objections because they had failed to tender such an objection pre-trial.
Defendants argue that they complied with the pre-trial scheduling order because they timely filed “an objection identifying the recording to which objection is being made” as required by the Pre-trial Scheduling Order. However, they fail to mention that the order also mandates that “[m]emoranda in support of objections . . . shall be accompanied by copies of the transcripts objected to on which proposed deletions and corrections are noted.” Defendants failed to provide the district court with these specific objections. The supplemental schedule promised by defendants never materialized; the schedule, moreover, was not an “extra” offer, but explicitly required by the оrder as part of any objection to the tapes. The district court declined to perform a line-by-line assessment of the transcripts because it had specifically provided in the order that the parties do it. After repeated general objections non-compliant with the procedural
Regardless, admission of the taped statements--which defendants still have failed to itemize--did not prejudice defendants. As we have explained supra, the government has produced sufficient evidence of the tapes’ reliability and probative value. Moreover, the court followed through on its assurance that it would “minimize the risk” of improper admission by requiring the government to produce evidence corroborative of statements made in the tapes.
We stress that the court wisely recognized that stop-and-go evidentiary evaluations of these tapes during triаl would unduly delay the case and perhaps even cause the very prejudice and confusion that defendants contemplated in their general objection. Accordingly, the court fashioned a system well before trial through which it expected both parties to whittle down the tapes to their relevant portions. See United States v. Nelson-Rodriguez, 319 F.3d 12, 34 (1st Cir. 2003) (“The trial court has wide discretion in determining admissibility under Rule 403 since the trial judge ‘is more directly familiar than a court of appeals with the need for the evidence and its likely effect.‘“) (citations omitted). An important part of this system was for defendants to produce
V. Cianci‘s Taped Statement
A. Hearsay
In 1995, a government agent posing as an air conditioning businessman taped his conversation with Cianci when he requested a city contract. Cianci assured the agent that he would refer him to Alan Sepe, who Cianci believed knew more about air conditioning matters than he did. Cianci then told the agent, “[Sepe] is honest as the day is long. He deals in governments and ____. No one will ask you for a thing. If anybody does, you pick up the phone and call me. I‘ll cut his ____ off and have him arrested, okay?” The agent had said or done nothing to prompt discussion of corruption. Then, Cianci, in introducing the agent to an unidentified man, remarked, “He‘s probably an FBI agent.”
The district court deemed Cianci‘s taped statement irrelevant because it did “not relate to any predicate act or to any specific matter with respect to which the Government has presented any evidence.” Cianci argues that the court failed to recognize the statement‘s relevance to the RICO charges in general. He asserts that the statement tends to make the existence of the enterprise less likely than without the statement,
Cianci recapitulates that if the statement in the tape is hearsay, it falls within the state of mind exceрtion to the hearsay rule.
As an initial matter, the taped statement is hearsay. Cianci offered it to prove the truth of the assertion that Cianci did not tolerate corruption. Another thing is certain: the statement was not admissible in order to show what Cianci might have done or not done on other occasions not proximate to the time the statement was uttered. The only purpose for which the statement could have been admitted would have been to establish
B. Due Process claim
Cianci claims that by denying admission of his taped statement, the district court violated his Fifth Amendment due process right to “a meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 687 (1986). We review this claim for plain error because it was not raised at trial. Under plain error review, the defendant must show (1) that an error occurred (2) which was “obvious” in the sense that governing law was clearly settled to the contrary, (3) affected the defendant‘s substantial rights, and (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings. United States v. Gomez, 255 F.3d 31, 37 (1st Cir. 2001).
Application of evidentiary rules “do not abridge an accused‘s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they arе designed to serve.’ . . . [W]e have found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused.” United States v. Scheffer, 523 U.S. 303, 308 (1998) (citing Rock v. Arkansas, 483 U.S. 44, 56 (1987)). We have described the Supreme Court‘s rule as overturning convictions only in “egregious cases.” Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001). Cianci outlines his
VI. Conclusion
Accordingly, defendants’ convictions are affirmed.
VII. Sentencing and Forfeiture Appeals
In light of the Supreme Court‘s recent decision in Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004), we do not decide the sentencing appeals raised by all defendants as well as challenges by defendants and the government to the district court‘s forfeiture order. By separate order, we have requested additional briefing and oral argument on these issues.
Separate opinion, concurring in part and dissenting in part, follows.
The majority has done an excellent job of summarizing the relevant legal principles, the nature of the associated-in-fact RICO enterprise alleged in this case, and the pattern of racketeering activity underlying the RICO and RICO conspiracy
Defendants contest their RICO-related convictions, in part, on the ground that the evidence introduced at trial in support of the nine alleged schemes was inadequate to establish that the schemes were conducted through the amalgam of persons and entities alleged in the indictment to have constituted the RICO enterprise. Defendants premise this argument on an underlying assertion that there was no proof to ground an inference of a shared purpose among defendants and all of the municipal entities named as associates of the enterprise -- a required finding (at least usually, see ante at 13) if an unlawful criminal association is to be regarded as a RICO enterprise. Defendants say that their position is bolstered by two “findings” made by the district court and not contradicted by the government (or at least not clearly so): (1) “there is no evidence that the [City] departments and/or agencies, themselves, shared [the enterprise‘s] purposes,” United States v. Cianci, 210 F. Supp. 2d 71, 73 (D. R.I. 2002), and (2) “none of [defendants‘] acts . . . resulted in any significant disruption of a Governmental function.” Thus, the argument goes, even if we were to assess the adequacy of the evidence supporting the RICO convictions by looking at the whole record and construing it in favor of the government (despite the nine judgments of
The government‘s response tracks the grounds on which the district court rejected the defendants’ motions for judgments of acquittal: (1) we should follow the Ninth Circuit and hold that “RICO does not require intentional or ‘purposeful’ behavior by corporations charged as members of an association-in-fact,” United States v. Feldman, 853 F.2d 648, 657 (9th Cir. 1988); and (2) the jury‘s enterprise finding was sufficiently supported by evidence that Cianci and Corrente (Autiello, who was not a municipal employee, is not mentioned) “using the Office of the Mayor and the Office of Director of Administration as base camps, . . . controlled” the municipal entities named as enterprise associates. The government‘s first suggestion, that we reject defendants’ argument on the basis of the Feldman principle, faces insurmountable obstacles. This court has identified the “common purpose” requirement discussed in United States v. Turkette, 452 U.S. 576, 580-83 (1981), as one of the principal tools a factfinder should use to distinguish a RICO enterprise from an ad hoc criminal confederation. See ante at 13; see also Ryan v. Clemente, 901 F.2d 177, 180 (1st Cir. 1990) (emphasizing that the common purpose requirement is necessary to “limit the potentially boundless scope of the word ‘enterprise‘” and thereby “distinguish culpable, from non-culpable, associations“).17 Indeed, we have applied the requirement (albeit without acknowledging Feldman) in a case involving an unlawful purpose RICO association-in-fact involving corporate legal entities. See United States v. London, 66 F.3d 1227, 1243-45 (1st Cir. 1995). Moreover, and decisively, the district court instructed the jury without objection from the government: “[I]t is not necessary in proving the existence of an enterprise to show that each member of the enterprise participated in or even knew of all of its activities, but it is necessary to show that all members of the alleged enterprise shared a common purpose.” The government has not attempted to reconcile Feldman with Turkette, Ryan, London, or our other cases applying Turkette. See ante at 13. Thus, as the majority concedes, we cannot disregard the common-purpose instruction in analyzing defendants’ sufficiency challenges. See ante at 18-19 (citing United States v. Zanghi, 189 F.3d 71, 79-80 (1st Cir. 1999)). The
question whether Feldman correctly states the law must be left to another day.18
This leaves the government‘s undeveloped assertion -- an assertion that the majority finds convincing -- that the jury‘s enterprise finding is sustainable because therе was evidence that Cianci and Corrente exercised “control” over the municipal entities named as members of the enterprise. Because the common-purpose instruction binds for purposes of our analysis, I shall assume that the government intends by this assertion to argue that such “control” is sufficient to impute to the entities the unlawful purposes of those alleged to control them -- i.e., Cianci and Corrente. Compare London, 66 F.3d at 1243-45 (involving closely held corporations operated by the defendant and alleged to be members of his unlawful associated-in-fact RICO enterprise); United States v. Masters, 924 F.2d 1362, 1366-67 (7th Cir. 1991) (involving a law firm and two police departments associated in fact with those who controlled or manipulated them). I also shall assume that it would be fair to sustain the defendants’ convictions on evidence of such control, notwithstanding the absence of jury instructions explaining that a municipal entity‘s “purposes” may be
In my view, there is no proof that Cianci and Corrente so controlled the activities of all the municipal entities alleged to be associates of the charged enterprise that the two‘s shared criminal purposes are reasonably imputed to each such entity. There is no evidence that, for example, Cianci and Corrente themselves could provide those willing to pay bribes with jobs in City departments over which they lacked hiring authority; or that they could contractually bind City departments under separate leadership; or that they could sell City property; or that they could grant or deny construction variances. Nor did the government show that the persons, committees, and boards within the municipal departments, offices, and agencies whose assistance the schemes required abdicated their decision-making responsibilities to Cianci or Corrente.19 In short, neither Cianci nor Corrente was shown to have so dominated the affairs of the departments, offices, and agencies claimed to be associated with the unlawful purpose enterprise that each of these municipal entities might fairly be found to have been an alter ego of Cianci or Corrente with respect
to the transactions in question.20 Rather, the evidence showed only that Cianci and Corrente periodically used the power inherent in
The question arises why this evidence of influence is not sufficient to make the persons and entities influenced part of the alleged enterprise. The answer, I believe, lies in the fact that we are here deciding what is required for membership in an associated-in-fact RICO enterprise defined only by the common
There was in this case significant evidence of public corruption. Perhaps the government could have proved that Cianci and Corrente ran the Office of the Mayor or the Office of the Director of Administration as a RICO enterprise. Or perhaps the defendants (or, more likely, a subset thereof) might have been shown to be members of one or more smaller, associated-in-fact RICO enterprises. But the government successfully persuaded the grand jury to cast a wider net and to allege that the persons named as enterprise associates, along with the campaign contribution fund, the City of Providence, and many of its departments, offices and agencies, functioned as a de facto organized crime syndicate. Framing the case in this way permitted the government to allege that defendants were responsible under RICO‘s conspiracy provision for all of the illegal and unethical conduct put on display in this
[I]t must be stressed that the government, through its ability to craft indictments, is the master of the scope of the charged RICO conspiracy . . . . [RICO‘s conspiracy provision] is capable of providing for the linkage in one proceeding of a number of otherwise distinct crimes and/or conspiracies through the concept of enterprise conspiracy. The government, through the vehicle of the indictment, provides the linking conspiratorial objective of a specific RICO violation. The “specific” violation can be broad or narrow. It is the prosecution which sets the parameters to which a RICO conspiracy trial must be confined; having set the stage, the government must be satisfied with the limits of its own creation.
United States v. Weissman, 899 F.2d 1111, 1115 (11th Cir. 1990) (quoting United States v. Neapolitan, 791 F.2d 489, 501 (7th Cir. 1986)) (internal quotation marks omitted; emphasis in original).
RICO is a powerful weapon that can cause mischief if abused by an overzealous prosecutor.24 While I do not doubt that
In this case, the government proved only that many of the municipal entities named in the indictment were used as tools by defendants. For reasons I have explained, this is not enough to prove that these entities were part of a RICO enterprise defined
I respectfully dissent from part I of the majority opinion and would not reach the issues addressed in parts IV-VI (which are rendered immaterial by my conclusion that the defendants’ RICO-related convictions must be reversed).
Notes
Ante at 20 n.3. But importantly, even in connection with these latter two schemes, Sepe and Dunham were not shown to have known of and willingly joined the alleged RICO enterprise conspiracy. Nor was there a basis for finding that a majority of the Board of Contract and Supply, the entity which ultimately voted to accept the Jere Realty lease, did so for purposes of furthering the alleged RICO enterprise conspiracy, or even with knowledge that it was ratifying a contract that had been formed in disregard of standard operating procedures.[T]he evidence depicted a behavioral spectrum ranging from innocent cooperation to willful complicity in unlawful conduct. For example, with respect to the Freitas Invoices scheme, the evidence was merely that an employee within the City‘s Finance Department (Lorraine Lisi), acting at Corrente‘s request, paid valid invoices more promptly than usual. Similarly, with respect to the Ise Job scheme, the evidence was merely that the Deputy Director of the Department of Planning and Development (Thomas Deller) created a temporary position for Ise within the department at Cianci‘s request. At the more culpable end of the spectrum, however, there was evidence that, in connection with the Jere Lease scheme, the head of the Department of Public Property (Alan Sepe) and the Director of Business Relations for the School Department (Mark Dunham) were influenced by Corrente to tailor the specifications in a School Department lease bid to fit the dimensions of Jere Realty‘s building, and then to support the Jere Realty lease before the Board of Contract and Supply (which was the entity formally empowered to accept or reject bids of City contracts). Similarly, in connection with the Freitas Lease scheme, there was evidence that Corrente again contacted Dunham prior to finalization of the lease and influenced him to drop consideration of an alternative lease.