United States v. Ciresi , 697 F.3d 19 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1914
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT S. CIRESI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter, Associate Justice,*
and Lipez, Circuit Judge.
Martin G. Weinberg, with whom Kimberly Homan and John
Cicilline were on brief, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.
October 5, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
LIPEZ, Circuit Judge. After a jury trial in the United
States District Court for the District of Rhode Island, Robert
Ciresi, a seventy-eight-year-old North Providence attorney, was
convicted on bribery, extortion, and conspiracy charges stemming
from his involvement in a scheme to purchase the votes of three
corrupt town councilmen on two zoning matters. During the trial,
the district court admitted into evidence under Federal Rule of
Evidence 801(d)(2)(E) a number of recorded statements about Ciresi
made by one of the councilmen to a government informant. On
appeal, in seeking a new trial, Ciresi argues that some of these
statements should have been excluded as hearsay, and challenges the
admission of all the statements on constitutional grounds under the
Sixth Amendment's Confrontation Clause. He also claims that the
district court erred in calculating his sentence under the United
States Sentencing Guidelines ("Guidelines"). We affirm.
I.
A. Factual Background
We set forth the facts in the light most favorable to the
jury's verdict. See United States v. Rodríguez-Rodríguez, 663 F.3d
53, 55 (1st Cir. 2011); United States v. Mitchell, 596 F.3d 18, 20
n.1 (1st Cir. 2010).
1. The Supermarket Bribe
In the fall of 2008, Richard Baccari, a commercial
developer represented by Ciresi, applied to the seven-member North
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Providence Town Council ("Town Council") to rezone a plot of
residential land on which he hoped to build a supermarket. Shortly
thereafter, a local official overheard one of the councilmen, John
Zambarano, telling another councilman, Raymond Douglas, that he was
eager to approve Baccari's application because he "could really use
the money." Zambarano's comment was relayed by the local official
to the Federal Bureau of Investigation ("FBI"), which enlisted
another councilman, Paul Caranci, to join the extortion scheme as
a government informant. Caranci was directed to record his
conversations with Zambarano, Douglas, and Joseph Burchfield, the
third corrupt councilman.
On February 9, 2009, the day before the zoning vote,
Zambarano told Caranci that Baccari had agreed to pay $25,000 in
exchange for approval of his application. Caranci's share was to
be $4,000. Zambarano explained that no payments would be made
until the vote was completed: "I'm meeting [Baccari] and Bobby
Ciresi about an hour after the meeting, and he's giving, and he's
giving me the money. So . . . I'll give everybody theirs too, and
then Wednesday after work I'll . . . give you the $4,000."
Zambarano also said that Ciresi had arranged for him to meet
privately with Baccari to negotiate the bribe amount and that
Ciresi had communicated to him that Baccari wanted his application
approved with no conditions. Zambarano left Caranci with the
impression that there would be other opportunities to mine Baccari,
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or different developers, for money in the future: "[T]here's
something else coming down the road, in the future . . . we can all
be part of this again."1
The next day, the Town Council unanimously approved
Baccari's application. After the vote, FBI agents tailed
Zambarano's car to an empty restaurant parking lot. A few minutes
after Zambarano arrived, a car registered to Ciresi's wife entered
the lot from the opposite direction and parked for several minutes
alongside Zambarano's car, so that the driver's side windows
aligned. The car's driver was an older white male with salt and
pepper hair who was wearing a suit. This limited description was
consistent with Ciresi's appearance. Cell phone records also show
that Ciresi received a call from Zambarano one minute before the
car registered to his wife arrived at the parking lot and that
Ciresi's cell phone was within one mile of the lot when the call
was placed.
The following day, February 11, 2009, Zambarano and
Caranci met in the driveway of Zambarano's home. Zambarano handed
Caranci $4,000 and then said that he "got this last night after the
meeting." Zambarano proceeded to describe in detail how Ciresi had
brokered his negotiations with Baccari, noting that Zambarano was
1
Ciresi challenges the admission of the February 9, 2009,
conversation on constitutional grounds only; he attacks the
admission of the remaining conversations on both evidentiary and
constitutional grounds.
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"very close to Bobby Ciresi" and that Ciresi had vouched for him to
Baccari by advising Baccari that "he doesn't want to talk to
anybody else." Zambarano also referred to other extortion
opportunities that might arise "in the future" and said he would
demand a larger bribe "next time."
2. The Mill Bribe
In March 2010, Zambarano told Caranci that he "might be
working on something else" on behalf of the corrupt councilmen.
Two developers, Vincent Coccoli and Kevin O'Sullivan, had applied
to the Town Council to rezone an industrial mill complex that they
hoped to convert into apartments. Zambarano was attempting to
extract a bribe from them in exchange for approval of their
application. Ciresi represented these developers as well.
On March 15, 2010, Zambarano informed Caranci that Ciresi
was "going to try" to arrange a bribe but harbored doubts about his
ability to do so because he had never before represented these
developers. Two weeks later, on March 28, 2010, Zambarano reported
to Caranci that he had asked Ciresi about negotiating a bribe with
Coccoli and that Ciresi had replied: "I don't even know him . . .
so let me feel him out." Zambarano also said that Ciresi had
subsequently warned him against approaching Coccoli for a bribe but
had suggested that O'Sullivan could be approached by his former
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business partner, Edward Imondi, whom Zambarano knew.2 Zambarano
also told Caranci that although Ciresi had received "a few thousand
dollars" for his involvement in the supermarket bribe, "[h]e seems
like he doesn't want nothing doin" in the mill bribe.
On April 4, 2010, Zambarano notified Caranci that Ciresi
was "out" but that Imondi had helped arrange a bribe from
O'Sullivan and would receive a share of this bribe, just as Ciresi
had received a share of the supermarket bribe. In response to
Caranci's questioning about how the bribes were being divided up,
Zambarano disclosed that his own share of the supermarket bribe had
been $2,200 larger than Caranci's because he had done more legwork.
On April 26, 2010, O'Sullivan delivered a down payment on
the $75,000 bribe to Imondi, who retained his own share and passed
along the remainder to Douglas and Burchfield. The Town Council
unanimously voted to approve the rezoning application the same day.
B. Procedural History
Ciresi was indicted on August 19, 20103 for one count of
bribing a local government official, in violation of 18 U.S.C.
§ 666(a)(2), one count of aiding and abetting an extortion, in
violation of 18 U.S.C. §§ 2 and 1951, and one count of conspiring
2
Phone records indicate that Zambarano and Ciresi spoke twice
on March 16, 2010, and that Ciresi called Imondi three minutes
after their second conversation.
3
Zambarano, Douglas, Burchfield, and Imondi were also
indicted. They pleaded guilty to the charges against them.
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to commit the same crimes, in violation of 18 U.S.C. § 371. The
bribery and extortion charges related only to the supermarket
bribe. The conspiracy charge also related to the mill bribe.
The indictment included references to a number of
recorded statements about Ciresi made by Zambarano to Caranci in
the course of both bribes. The government sought to introduce
these statements during trial. Zambarano did not testify. Ciresi
moved to exclude as hearsay any of Zambarano's statements that
postdated the completion of the supermarket bribe. He also
objected to the admission of all of Zambarano's statements to
Caranci, including the February 9, 2009, conversation, under the
Sixth Amendment's Confrontation Clause. Consistent with the
procedures we outlined in United States v. Ciampaglia, 628 F.2d 632(1st Cir. 1980), the district court provisionally admitted the
statements into evidence. Then, in response to Ciresi's renewal of
his hearsay objection at the trial's end, the court ruled that they
were properly admitted as nonhearsay under Federal Rule of Evidence
801(d)(2)(E). The district court also summarily rejected Ciresi's
constitutional challenge.
Ciresi was convicted on April 26, 2011. On August 3,
2011, he received a sentence that included a 63-month term of
imprisonment. The district court's Guidelines sentencing
calculation took into account both the supermarket bribe and, over
Ciresi's protest, the mill bribe. This timely appeal followed.
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II.
A. The Hearsay Challenge
The government sought to admit Zambarano's out-of-court
statements under Federal Rule of Evidence 801(d)(2)(E). The rule
provides that a statement made by a defendant's coconspirator
"during the course of and in furtherance of the conspiracy" may be
introduced as the nonhearsay admission of a party opponent. Fed.
R. Evid. 801(d)(2)(E); see also United States v. Díaz, 670 F.3d
332, 348 (1st Cir. 2012); United States v. Fogg, 666 F.3d 13, 15
(1st Cir. 2011). The proponent of such a statement must prove, by
a preponderance of the evidence, that the declarant and the
defendant were members of a conspiracy when the statement was made,
and that the statement was made in furtherance of the conspiracy.
See United States v. Famania-Roche, 537 F.3d 71, 76 (1st Cir.
2008); United States v. Bradshaw, 281 F.3d 278, 283 (1st Cir.
2002). A district court's determination "as to whether this burden
has been met is known in this circuit as a Petrozziello ruling,"
after our holding in United States v. Petrozziello, 548 F.2d 20(1st Cir. 1977). United States v. Mitchell, 596 F.3d 18, 23 (1st
Cir. 2010); see also Famania-Roche, 537 F.3d at 75.
As we explained in Ciampaglia, a district court is not
required to make a Petrozziello ruling prior to admitting a
statement under Rule 801(d)(2)(E). Instead, the court may admit
the statement provisionally when it is introduced, deferring a
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final decision until the close of evidence. See 628 F.2d at 638;
see also Bradshaw, 281 F.3d at 283. To preserve a challenge to a
district court's Petrozziello ruling, a defendant must object on
hearsay grounds when his or her coconspirator's statement is
provisionally admitted and must renew the objection at the close of
evidence. See United States v. Avilés-Colón, 536 F.3d 1, 13-14
(1st Cir. 2008). We review preserved challenges for clear error.
See United States v. Fernández-Hernández, 652 F.3d 56, 74 (1st Cir.
2011); United States v. Thompson, 449 F.3d 267, 273 (1st Cir.
2006). Unpreserved challenges are reviewed for plain error. See
Fernández-Hernández, 652 F.3d at 74.
In this case, when the first of Zambarano's recorded
statements to Caranci was introduced at trial, Ciresi objected on
hearsay grounds, citing Petrozziello. When the next statement was
introduced, Ciresi objected again, noting that he construed our
precedent to require him to interrupt proceedings with a hearsay
objection each time one of Zambarano's statements was mentioned.
The government agreed to "waive any argument that he would have to
[object] every time," and the district court permitted Ciresi to
lodge a continuing objection to all of Zambarano's recorded
statements. At the close of evidence, Ciresi renewed his hearsay
objection, again adverting to Petrozziello.
In light of these circumstances, we review Ciresi's
challenge for clear error. "This deferential standard of review
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places a heavy burden on a defendant seeking to overturn a . . .
Petrozziello ruling." United States v. Newton, 326 F.3d 253, 257
(1st Cir. 2003).
Ciresi raises three arguments in his hearsay challenge to
Zambarano's statements. First, he contends that the supermarket
bribe and the mill bribe were in fact separate conspiracies
involving separate actors, and that he never participated in the
mill bribe. Second, he argues that even if the two bribes were
part of the same scheme, he affirmatively withdrew from the
conspiracy before the mill bribe occurred. Third, he asserts that
Zambarano's statements were not made in furtherance of the
conspiracy. We address each argument in turn.
1. Separate Conspiracies
Ciresi argues that the district court should have drawn
a hard line between the supermarket bribe and the mill bribe
because they were separate conspiracies and he only partook in the
former. To determine whether a set of criminal activities
constitutes a single conspiracy, we generally look to three
factors: (1) the existence of a common goal, (2) overlap among the
activities' participants, and (3) interdependence among the
participants. See United States v. Dellosantos, 649 F.3d 109, 117
(1st Cir. 2011); United States v. Sánchez-Badillo, 540 F.3d 24, 29
(1st Cir. 2008). None of these factors is conclusive standing
alone; instead, "[w]e look to the totality of the evidence to see
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if it supports a finding of a single conspiracy." United States v.
Soto-Beniquez, 356 F.3d 1, 19 (1st Cir. 2003). A general scheme
may exist "notwithstanding variations in personnel and their roles
over time." United States v. Shea, 211 F.3d 658, 665 (1st Cir.
2000) (quoting United States v. Bello-Perez, 977 F.2d 664, 668 (1st
Cir. 1992)) (internal quotation marks omitted).
These factors all point toward the existence of a single
conspiracy. Broadly construed, see Dellosantos, 649 F.3d at 117,
the bribes in this case shared a common goal: extorting clients of
Ciresi who had submitted rezoning applications to the Town Council.
The second factor, overlap among the participants, "is satisfied by
the pervasive involvement of a single core conspirator, or hub
character." Id. (quoting United States v. Mangual-Santiago, 562
F.3d 411, 422 (1st Cir. 1999)) (internal quotation marks omitted).
Zambarano played such a role here - he participated in both bribes,
shuttled information back and forth among the participants, and
facilitated the activities of the various conspirators.4 His
consistent involvement strongly supports the existence of overlap
between the two schemes.
4
Ciresi himself was also arguably part of the conspiracy's
"hub." Due to his representation of the parties seeking to bribe
the councilmen, he had relationships to and crucial information
about all the relevant players. With Zambarano's aid, he used
these connections to link the conspirators with one another and
suggested useful means of effectuating their common goals. Ciresi
and Zambarano can therefore be seen as joint members of the "hub."
See Newton, 326 F.3d at 255 n.2 (noting that "individual or group
of individuals" may comprise hub of "single, illegal enterprise").
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The third element, interdependence, addresses “whether
the activities of one aspect of the scheme are necessary or
advantageous to the success of another aspect of the scheme.” Id.(citations omitted) (quoting Mangual-Santiago, 562 F.3d at 422).
"Each individual must think the aspects of the venture
interdependent, and each defendant's state of mind, and not his
mere participation in some branch of the venture, is key." United
States v. Portela, 167 F.3d 687, 695 (1st Cir. 1999). Here, each
of the participants understood the bribes' success to hinge on the
others' cooperation. For example, each of the three councilmen
knew the others' votes were potentially necessary for the seven-
member Town Council to approve the rezoning applications.
Hence, all of Zambarano's statements about Ciresi fell
within the course of a conspiracy of which he was a member.
2. Withdrawal
Ciresi next contends that even if the two bribes were
part of the same scheme, he withdrew from the conspiracy before the
participants engaged in the mill bribe. See United States v. Abou-
Saada, 785 F.2d 1, 7-8 (1st Cir. 1986); United States v. Mardian,
546 F.2d 973, 978 n.5 (D.C. Cir. 1976) ("Had [the defendant]
withdrawn, the declarations of coconspirators uttered after the
date of his withdrawal would not be admissible against him."). "In
order to withdraw, a conspirator must act affirmatively either to
defeat or disavow the purposes of the conspiracy." United States
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v. Juodakis, 834 F.2d 1099, 1102 (1st Cir. 1987) (per curiam); see
also United States v. Pizarro-Berríos, 448 F.3d 1, 10 (1st Cir.
2006). "Typically, that requires either . . . a full confession to
authorities or a communication by the accused to his
co-conspirators that he has abandoned the enterprise and its
goals.” United States v. Piper, 298 F.3d 47, 53 (1st Cir. 2002)
(quoting Juodakis, 834 F.2d at 1102) (internal quotation marks
omitted). Moreover, the "[m]ere cessation of activity in
furtherance of the conspiracy does not constitute withdrawal."
Juodakis, 834 F.2d at 1102 (quoting United States v. Dunn, 758 F.2d
30, 37 (1st Cir. 1985)) (internal quotation marks omitted). This
standard is "strict" and not easily met. Id.Ciresi's argument relies primarily on a statement made
during Zambarano's March 28, 2010, discussion with Caranci
regarding the pending mill bribe. Zambarano reported that Ciresi
"seems like he doesn't want nothing doin." Zambarano also told
Caranci on April 4, 2010, that Ciresi was "out."
These remarks are ambiguous, however, and do not clearly
evince a "change of heart or abandonment." United States v.
Arboleda, 929 F.2d 858, 871 (1st Cir. 1991). Indeed, Zambarano's
statements are even more equivocal when viewed in their full
context. As the district court noted in its Petrozziello ruling,
Ciresi played a crucial role in facilitating the mill bribe.
According to Zambarano, Ciresi said he was "going to try" to
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arrange a bribe and then steered Zambarano away from Coccoli and
toward O'Sullivan, proposing Imondi as a middleman. Phone records
corroborate that Ciresi spoke to Zambarano and Imondi in quick
succession on March 16, 2010, during the mill bribe's planning
stage. Against this backdrop, that Ciresi was "out" could easily
have just meant that he would not again directly broker
negotiations or hand-deliver the bribe, as he had with the
supermarket bribe. See Juodakis, 834 F.2d at 1102. As a result,
we are satisfied that Ciresi's membership in the conspiracy
extended through the mill bribe phase, and any statement made by
Zambarano in the context of either bribe was made during the course
of a conspiracy involving Ciresi.
3. In Furtherance of the Conspiracy
Ciresi argues that even if he was a participant in the
entire conspiracy, any statements about Ciresi's role that
Zambarano made after the completion of the supermarket bribe were
mere narratives of past events that did not satisfy Rule
801(d)(2)(E)'s "in furtherance" requirement. See, e.g., United
States v. Warman, 578 F.3d 320, 338 (6th Cir. 2009) ("[M]ere idle
chatter or casual conversation about past events is not considered
a statement in furtherance of the conspiracy.") (quoting United
States v. Darwich, 337 F.3d 645, 657 (6th Cir. 2003)); United
States v. Santos, 20 F.3d 280, 286 (7th Cir. 1994) ("[N]arrative
discussions of past events . . . do not satisfy the 'in
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furtherance' requirement of Rule 801(d)(2)(E).").
There are three such statements, or groups of statements.
We consider each in turn, keeping in mind that "a coconspirator's
statement is considered to be in furtherance of the conspiracy as
long as it tends to promote one or more of the objects of the
conspiracy." United States v. Piper, 298 F.3d 47, 54 (1st Cir.
2002). "To be deemed 'in furtherance,' a statement 'need not be
necessary or even important to the conspiracy, or even made to a
coconspirator, as long as it can be said to advance the goals of
the conspiracy in some way.'" Id. (quoting United States v.
Martínez-Medina, 279 F.3d 105, 117 (1st Cir. 2002)). It is
immaterial that the person to whom the statement is made is a
government informant, like Caranci, as long as the statement itself
was made in furtherance of the common scheme. See Avilés-Colón,
536 F.3d at 15.5
The first statements at issue were made on February 11,
2009, the day after the Town Council approved Baccari's rezoning
5
We note that while a government agent cannot be considered
a part of a conspiracy, this rule "has relevance only in situations
where the conspiracy involves only [one] defendant and a government
informer. In that situation there can be no conspiracy because it
takes two to conspire . . . ." United States v. Giry, 818 F.2d
120, 126 (1st Cir. 1987) (alteration in original) (citation
omitted) (quoting United States v. Martino, 648 F.2d 367, 405 (5th
Cir. Unit A June 1981)) (internal quotation mark omitted). By
contrast, the Rule 801(d)(2)(E) analysis focuses on whether the
speaker "regarded" or "viewed" the listener as a coconspirator when
making the statements, regardless of whether the listener truly
shared the conspiracy's goals. Avilés-Colón, 536 F.3d at 15-16.
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application. After paying Caranci his share of the supermarket
bribe, and thereby effectively bringing that bribe to a close, cf.
United States v. Fields, 871 F.2d 188, 199 (1st Cir. 1989) (stating
that conspiracy had not ended because "[p]roceeds . . . were still
to be distributed"), Zambarano hinted that other bribes might be in
store for them and described how simple the supermarket bribe had
been to arrange:
I went down to Baccari's. . . . Because
remember that all the councilmen were invited
to go down there. . . . Well, what happened
was I'm very close to Bobby Ciresi. I'm very
close to him. And he said to me, "John, I'm
gonna make you last," he said, "Because if you
want, if youse want something, you're the guy
that's gonna do the deal. I already told
[Baccari] that he doesn't want to talk to
anybody else about it." So I went down there
and we, we showed [Baccari] the plans and he
said to Bobby, "Did you say you had to go
bring something to my secretary?" That was a
way of getting him out of the office. . . . He
says . . . "Now we're here to do business."
So I said "All right." And I said, "How does
twenty-five sound?" He said, "That's fine."
Just like that.
Zambarano added that he "could have said fifty" and that "next
time" he would ask for more money.
These comments were not simply idle chatter or narratives
of past events. They were calculated to impress upon Caranci the
ease with which other bribes could be solicited in the future. As
such, they set the table for the mill bribe and furthered the
conspiracy. See United States v. Pelletier, 845 F.2d 1126, 1128
(1st Cir. 1988) ("Statements . . . made for the purpose of inducing
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continuing participation in the conspiracy, are statements made in
furtherance of the conspiracy."); see also United States v.
Sepulveda, 15 F.3d 1161, 1181 (1st Cir. 1993) ("[T]he sharing of
pertinent information about a conspiracy's mode of operation
furthers the conspiratorial ends . . . ."). They also served to
reassure Caranci that Zambarano was looking out for the
conspiracy's profitability, see Newton, 326 F.3d at 260, and to
familiarize Caranci with the respective roles Zambarano and Ciresi
had played in the supermarket bribe and, presumably, would continue
to play down the road, see Avilés-Colón, 536 F.3d at 15.
The second group of statements was made on March 28,
2010. In a conversation about the mill bribe's progress, Zambarano
told Caranci that Ciresi had never before worked with Coccoli and
was apprehensive about approaching him for a bribe. Zambarano then
alluded to Ciresi's role in the supermarket bribe: "Bobby was
involved in the other one. . . . See him and . . . Baccari they
were like that. So it was easy." He also repeated the details of
how Ciresi had introduced him to Baccari, mentioning for the first
time that Ciresi had been unaware of Caranci's involvement in the
supermarket bribe but that he had recently notified Ciresi that the
mill bribe would have to be split four ways among the councilmen:
[T]he last one Bobby was a party to. . . .
[H]e was the one that set up the meeting with
. . . Baccari. And I went down there and I
was, sat in his office. I told you that
story. And he said you know what's going on
and I told him what was going on. . . . So
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. . . we gave Bobby some money. We gave him a
few thousand dollars . . . but this time I
said, Bob, there's four votes, I said it's
gonna be four. . . . [H]e never even knows who
was involved with the last time. He just,
Bobby Ciresi, he just knows with me.
These statements plainly were in furtherance of the
ongoing conspiracy. They were intended to reassure Caranci that
Zambarano was dealing squarely with him and that he would receive
a fair share of the mill bribe. See United States v. Siegelman,
640 F.3d 1159, 1181 (11th Cir. 2011) ("[S]tatements between
conspirators which provide reassurance [or] serve to maintain trust
and cohesiveness among them . . . further the ends of the
conspiracy . . . ." (second alteration in original) (quoting United
States v. Ammar, 714 F.2d 238, 252 (3d Cir. 1983))). In addition,
they helped explain why, by comparison to the supermarket bribe,
the mill bribe was proceeding slowly: there was no close personal
relationship, such as had existed between Ciresi and Baccari, to
speed along the mill bribe. Therefore, they furthered the
conspiracy by keeping Caranci "abreast of current developments and
problems facing the group." United States v. Flemmi, 402 F.3d 79,
95 (1st Cir. 2005) (quoting United States v. Jefferson, 215 F.3d
820, 824 (8th Cir. 2000)); see also United States v. Rivera-Donate,
682 F.3d 120, 131-32 (1st Cir. 2012); Diaz, 670 F.3d at 349.
The third group of statements was made on April 4, 2010.
In the course of a conversation about how the mill bribe would be
divided, Caranci expressed some concern about whether his share of
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the supermarket bribe had been equivalent to everyone else's,
saying that he "felt bad after . . . thinking about it." Zambarano
explained that his portion had been $2,200 larger because he had
assumed the risk of meeting face-to-face with Baccari:
I went there twice in this fucking guy's
office, face to face with, ah, Richard Baccari
negotiating this deal. . . . Well, when I went
down to Richard's, that was the first time I
ever did something like that, right, and he
said come on in, come on in. Now Bobby was
like, Bobby Ciresi's like this with him so he
knew. And Bobby says "He does that all the
time, Johnny, but you gotta go talk to him."
Zambarano then described how he also had been the one who
rendezvoused with Ciresi after the rezoning vote:
I called Bobby on his cell phone and I said
what's the plan? He said meet him down there
in the parking lot. So I go down there in the
parking lot. So I go down there I got, I was
in this car, right. I pulled up, his . . .
his Mercedes, whatever were parked this way.
There was, I pulled up close, close, I opened
the window, he threw the money in it, a bag
right on my lap. He says thank you,
bud. . . . So that wasn't worth $2,200 more?
. . . . I mean I'm, I'm, I'm a pretty fair
guy.
From Zambarano's perspective, these statements served to placate
Caranci and forestall any dissension among the councilmen in the
weeks leading up to the mill bribe. As such, they were in
furtherance of the charged conspiracy. See Siegelman, 640 F.3d at
1181; Newton, 326 F.3d at 260.
In sum, Zambarano's recorded statements to Caranci about
Ciresi were all made during the course of and in furtherance of an
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ongoing, multi-phase conspiracy in which Ciresi was an active
member. Accordingly, they were admissible as nonhearsay under Rule
801(d)(2)(E). There was no clear error in the district court's
Petrozziello ruling.
B. The Constitutional Challenge
Because Zambarano did not testify during the trial, and
hence was not subject to cross-examination, Ciresi argues that the
admission of his recorded statements violated the Confrontation
Clause of the Sixth Amendment, which provides that "[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him." U.S. Const. amend.
VI.
As Ciresi acknowledges, however, the Supreme Court has
held that the Confrontation Clause only applies to statements that
are deemed testimonial. Davis v. Washington, 547 U.S. 813, 821
(2006). The Court has also commented that statements made
unwittingly to a government informant are "clearly nontestimonial."
Id. (citing Bourjaily v. United States, 483 U.S. 171, 181-84
(1987)); see also Crawford v. Washington, 541 U.S. 36, 56 (2004)
(stating that "statements in furtherance of a conspiracy" are "by
their nature" not testimonial). Ciresi attempts to dismiss these
statements as mere dicta, but the Court's instruction cannot be
cast aside so easily. See United States v. Jiminéz-Beltre, 440
F.3d 514, 517 (1st Cir. 2006) (en banc); McCoy v. MIT, 950 F.2d 13,
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19 (1st Cir. 1991) (concluding that “federal appellate courts are
bound by the Supreme Court's considered dicta almost as firmly as
by the Court's outright holdings, particularly when . . . a dictum
is of recent vintage and not enfeebled by any subsequent
statement”).
Moreover, we have already addressed this issue post-
Crawford and concluded that coconspirator statements such as
Zambarano's are, by their nature, not testimonial. See Rivera-
Donate, 682 F.3d at 132 n.11; United States v. De La Paz-Rentas,
613 F.3d 18, 28 (1st Cir. 2010); United States v. Malpica-Garcia,
489 F.3d 393, 397 (1st Cir. 2007) (holding that coconspirator
statements were nontestimonial because they were "made in the
course of private conversations or in casual remarks that no one
expected would be preserved or used later at trial").6 Even if the
Court's statements do not explicitly bind us, our prior precedents
do.
Recognizing this obstacle, Ciresi contends that Davis and
Michigan v. Bryant, 131 S. Ct. 1143 (2011), have clarified that
"[i]n determining whether a declarant's statements are testimonial,
courts should look to all of the relevant circumstances," including
6
Our sister circuits are in accord. See, e.g., United States
v. Farhane, 634 F.3d 127, 162-63 (2d Cir. 2011); United States v.
Underwood, 446 F.3d 1340, 1347-48 (11th Cir. 2006); United States
v. Jenkins, 419 F.3d 614, 618 (7th Cir. 2005); United States v.
Delgado, 401 F.3d 290, 299 (5th Cir. 2005); United States v.
Hendricks, 395 F.3d 173, 183-84 (3d Cir. 2005).
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the "statements and actions of both the declarant and interrogators
. . . ." Id. at 1160-62; see also Davis, 547 U.S. at 828 (stating
that circumstances surrounding encounter with law enforcement
personnel did not "objectively indicate" that declarant's statement
was testimonial). This language, Ciresi argues, constitutes an
"express rejection" of Crawford's focus on the intentions of the
declarant and demands that we revisit our previous holding. Ciresi
ignores, however, that the Supreme Court recently placed
coconspirator remarks in a category of statements that, "by their
nature, [are] made for a purpose other than use in a prosecution,"
suggesting their nontestimonial nature. Bryant, 131 S. Ct. at 1157
n.9. Accordingly, we perceive nothing in Crawford's recent progeny
that mandates a reevaluation of our prior opinions.
In short, Supreme Court precedents and our prior opinions
foreclose Ciresi's arguments. Thus we find no constitutional error
in the admission of Zambarano's statements.
C. The Sentencing Challenge
During sentencing, Ciresi argued that he should be held
accountable only for the $25,000 supermarket bribe, and not for the
$75,000 mill bribe. Overruling his objections, the district court
added to Ciresi's base offense level a two-level increase for being
"involved in more than one bribe," USSG § 2C1.1(b)(1), and an
eight-level increase because the bribes had totaled more than
$70,000 but less than $120,000, see id. §§ 2B1.1(b)(1)(E),
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2C1.1(b)(2). These increases brought Ciresi's total offense level
to 26 and, paired with a criminal history category of I, produced
a Guidelines sentencing range of 63 - 78 months imprisonment. The
district court imposed an incarcerative term at the bottom of the
range: 63 months. If Ciresi's objections had been sustained, and
the mill bribe had not been counted against him, his Guidelines
sentencing range would have been 33 - 41 months imprisonment.
We review the district court's Guidelines calculation de
novo and any predicate factual findings for clear error. United
States v. Thomas, 635 F.3d 13, 16 (1st Cir. 2011). On appeal,
Ciresi challenges the district court's factual finding that he
should be held responsible for the mill bribe as well as the
supermarket bribe.
We discern no error. As we have already established,
Ciresi was actively involved in both phases of the charged
conspiracy. He was instrumental in bringing about the mill bribe,
dissuading Zambarano from approaching Coccoli for a bribe, advising
him instead to approach O'Sullivan, and proposing Imondi as a
middleman. Therefore, the increases to his base offense level were
warranted.
The only remaining issue is a minor one. The supermarket
bribe and the mill bribe add up to $100,000, and the district court
apparently relied upon that sum in sentencing Ciresi. However, the
written judgment of conviction incorrectly reflects a total bribe
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amount of $107,000. This figure includes two bribes in which, as
the government concedes, Ciresi was uninvolved. This mistake
appears to have been inadvertent, and it did not affect Ciresi's
sentence. Nevertheless, it must be corrected.
III.
We affirm with an instruction to the district court to
correct Ciresi's written judgment of conviction to reflect a total
bribe amount of $100,000, not $107,000.
So ordered.
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