Nos. 96-1916
Appellee,
v.
FRED AWON,
Defendant, Appellant.
____________________
____________________
Before
____________________
States Attorney,
appellee.
____________________
February 2, 1998
___________________
was
on
with whom
brief
for
Defendant Fred
Awon appeals
and
mail fraud.
He asserts that
admitting
prior
witnesses;
(2)
refusing
consistent
limiting
statements
of
cross-examination
erred in:
two
of
(1)
government
a witness;
(3)
defendant;
and (4)
sentencing.
fault
imposing too
high a
base offense
level at
the government
admitting the
evidence, but
conclude that
We
and the
court for
the error
could not
We affirm.
I. BACKGROUND
Defendant
the
arson of
was convicted by
a building
located
a jury for
on Ames
twice orchestrating
Street in
Brockton,
Massachusetts
and two
brothers, Jorge
The Ames
vacant
retail
space
residential apartments
fires.
by hiring James
on
the
first
on the second
to set
St. Louis,
the fires.1
floor
and
two
occupied
of both
St.
but St.
Louis, indicted for setting both fires, was convicted for setting
the second fire only.
fire, was
never
charged,
but
Joaquim
was
indicted
on
four
with
whereby he
the government
pled guilty
to arson
-2-
and mail
the
We review the
government.
Because
sufficiency
defendant
of the evidence,
errors.
does
we describe the
by defendant and
not
challenge
the
relevant evidence
Cir. 1996).
A.
recruited him
to help set fire to the building, stating that they would receive
money and
dealership.
St. Louis.
building;
as
result,
Jorge
never
received
payment
from
defendant.
Jorge's testimony
not to
prosecute him in
material
witness and
government agreed
wanted to
be
in court,
in custody as
released, and
that he
had
in the summer
of 1994, he
learned
from
who would
agreed to set the fire in exchange for $5,000, and then solicited
-3-
he witnessed
at $2,900.
floors of the
was then
lit by St.
Louis,
St.
Louis
paperwork
Louis
went to
defendant's
to get the
shop,
where St.
Louis
signed
and a few
days later, he
Joaquim
he feared impending
deportation, and
depart
that he
had an
extensive
criminal history.
Defendant
commit arson.
He explained
provide him
with bail
On
had refused to
twice ordered
buy an
and had
angry with
him about
where he would
get the
time, when
-4-
On
cross-examination,
defendant stated
that he
did
not tell
the
any existing
St.
Louis'
brother
denied
having any
conversation
with
B.
In addition to
Louis
with
car,
the
government
introduced
into
paid St.
evidence
business
records
belonging
to the
defendant's
months
earlier,
the company
auto
company.
had
purchased that
same
a few
car for
$2,220.
Defendant
legitimate
testified that
one,
for which
price of
about
he
the
sale
received
to
St.
$2,000
Louis
was
in cash.
He
had mechanical
$3,500.
the source of
he questioned
that St.
St. Louis
Louis refused to
answer him.2
Joaquim's mother
testified that,
when her
son was in
INS
his
bail and,
the following
day,
Joaquim was
released.
The
Louis
had
supplied the
remaining
$2,000,
which,
as soon
as
____________________
-5-
Joaquim repaid
On cross-examination
not know
whether St.
Louis put up
mother stated
any money
for
C.
Motive
______
The government
that the
up to
After the
negotiated
After the
an
insurance
second fire,
$91,176, and
of both
to $80,000, and
$12,000.
Awons
interruption of
settlement in
they negotiated
the
up
amount
a settlement
his father
of $4,171.
totalling
on the
property.
in the Ames
building belonged
responsibility
for
apartments.
financial
expenditures
son had
related
to
fluently
and
needed
They
their son's
the
to showing
did not
assistance
described their
as limited
son's
the
to
speak English
translate the
involvement
apartments to
with the
prospective
also stated
no
and mortgage
property
that their
the deed
documents.
to them,
that they,
-6-
received the
They
settlement
Defendant
testified
that,
mortgage
payments, or
examination,
while a
of
the Ames
pay taxes
however, the
co-owner
on
government
the property.
On
any
cross-
introduced evidence
that
other
mortgage payments.
listed on
He
also admitted
that his
name was
company, but
Neves brothers.
otherwise inadmissible as
an
exception
for
prior consistent
review admission
of hearsay
United States v.
_____________
where, as here,
statements.
evidence for
abuse of
trial under
We generally
discretion.
But
suggested motive to
court's admission
of hearsay
testimony on
any ground
apparent
v. Alzanki,
_______
54 F.3d
-7-
from the
appellate record.
United States
_____________
A.
Rule 801(d)(1)(B)
_________________
The
statements under
Fed. R. Evid.
use of the
Neves' out-of-court
801(d)(1)(B).
Under
hearsay evidence
may be
that rule,
inadmissible
when:
(1) the
that the
or that
the
513
his story,
rebut a charge
consistent out-of-court
statements
may
fabrication
or
statements
be
admitted
improper
pre-date
the
to
rebut
influence or
charged
charge
motive
of
only
fabrication,
recent
when those
influence,
or
motive3).
The issue
initially
of the
on
Neves' pre-trial
cross-examination.
In
cooperation was
response
raised
to
defense
____________________
introduced a child's
court statements
primary custody,
mother.
The
court
their admission
motive -- to live
The trial
Court reversed,
because the
with her
reasoning that
out-of-
child
at the
-8-
questions,
Jorge
testified
implicating himself,
that
he
first
made
Louis in the
to charge him if he
cross-examination
cooperated.
that
he
statements
fire only
promised not
made
out-of-court
statements
to
investigators only after they said they knew he had set the fire,
had
lengthy
criminal
record,
and
was
being
sought
for
deportation,
and
then
promised
that
they
would
bring
any
allowed
the
On
redirect
government
to
each
introduce
statements under
introduced
of
brother,
their
the
were admitted
argued,
court
admissible
defense,
punishment
and
the
to rebut
the motive
by
that
to
the
The defense
and
written
oral statements
government
as evidence.
agreed,
namely, incentive
for arson.
The
testimony of
written statements
court
out-of-court oral
Rule 801(d)(1)(B).
through
the
these
The
agent; the
government
statements
fabricate presented
brothers
to
were
by the
reduce
objected, arguing
were
their
that the
Rule 801(d)(1)(B)
unavailable.
Defendant
on appeal.
The
-- was the
as at
the time
attempts
to
of
justify
their testimony
use
of
the
-9-
at trial.
out-of-court
The
government
statements
by
pointing out
that the
defense ascribed
statements were
made.
additional motives
and
These
were, as
to Jorge,
that (1)
he
pending against
trial
him; (3)
preparation with
in a different -- and
the agent
for his
new -- matter
influenced by
who interviewed
him.
pre-
As to
departure
true
the government.
While it is
of leniency,
and therefore,
the "new"
motives
instance,
the brothers
government
namely,
charge.
For
requested,
had a reason
hope of
to do as
reduced
the
sentence or
from custody
general desire
1996)
(even where
fabricate
the
Albers, 93 F.3d
______
circumstances
entered after
the statement
1469, 1482-84
(10th Cir.
underlying
motive
-- a formal
was made,
-10-
to
but before
testimony at
trial -- prior
if the
grew from
the same
foundation -- a
to fabricate
pursuit of leniency
-- the
Rule 801(d)(1)(B).
B.
The
inadmissibility
801(d)(1)(B) does
not end
1008.
of
these
statements
our
discussion, as
we must
under
Rule
explore
on some other
Alzanki,
_______
54 F.3d at
admissible
codified
in
Fed.
R.
Evid.
of completeness.
This doctrine,
106,
an
and full
FBI, 880
___
that
otherwise
be introduced into
evidence
See Irons v.
___ _____
holds
unfairness to the
other party.
United
______
the
substance of his
did highlight
trial
____________________
The
statements, but
government makes
no
such
claim
to
Jorge's
the doctrine as
to both
-11-
as
testimony,5 there is
made no
allegation that --
information
created
misimpression.
argument is
To
any
the
unfairness
contrary,
court testimony.
the admission of
statements
are revealed
to
ensure
distortion created
government's
between
through
fairness
for
primary
Neves' in-
inconsistencies
pieces of
potential
The doctrine of
few
operates
or
the
permit
simply because
out-of-court
and
in-court
cross-examination; rather,
where
misunderstanding
it
or
See
___
United States v. Ellis, 121 F.3d 908, 921 (4th Cir. 1997).
_____________
_____
basic
minute insofar as
Here,
defendant's
The doctrine
provide a basis
C.
Harmless Error
______________
statements
constitutes error,
the
error
was
harmless.
The
out Joaquim's
fire by
earlier claims
defendant directly
that he was
rather than
solicited to
by St. Louis'
brought
set the
brother,
though both were together, he and not St. Louis lit the gasoline.
-12-
is shown
to be harmless beyond
a reasonable doubt.
See United
___ ______
new
substantive
information.
Their
impact
comes
from
The form
its weight
if legitimacy,
attached to
F.2d
9,
prior
224,
The question
corroboration resulting
statements
defendant's detriment.
236
(2d
erroneously
Cir.
See
___
from
(finding
Internal
Revenue
detailed
"condensation of
Service
affect
thereby
Siegel, 717
______
we must
answer is
introduction of
influenced
out-of-court
official
the
the
United States
_____________
1978)
admitted
weak, is
Cir. 1983).
consistent
possibly otherwise
the statements.
19 (2d
whether
is presented to
jury
to
v. Quinto, 582
______
such influence
written
the government's
and
the
F.2d
where
the
was
an
statement
document,
the
lengthy,
whole case
against
defendant").
As
with
the
typical
admission
of
prior
consistent
statements,
the introduction of
the testimony
tying
adduced at
trial was
themselves,
St. Louis
and
examination,
they
revealed
jury.
Rather,
in
defendant at
having
trial,
reported
but on
defendant's
-13-
cross-
Nonetheless,
both
the
oral
of
written
government witnesses in
confessions
statements
credibility to the
jury room.")
written
Neves' stories, if
introduction
and
testimony.
consistent
was shown to
statements, because
during deliberations,
statements
as
"[t]he
into the
denoting authority.
over
one page,
statements
made
grammatical
and
the other,
by
the
spelling
just over
witnesses
errors.
two pages
-- handwritten
themselves,
While
replete
revealing
with
slight
to an abbreviation
defendant.6
This
in-court
circumstantial
evidence
of
testimony,
motive
and
testimony implicating
supported
car
by
the
transfer,
was
____________________
On direct,
from Jorge
defense
involvement,
times
led
Jorge
elicit testimony
on cross-examination, the
to
affirm
defendant's
Because
Jorge's
testimony
on direct
alone
did not
clearly implicate
consider.
-14-
The exculpatory
and largely
unsupported.
For
example, it
seems unlikely
that
defendant would sell a car at a loss, and $1,500 less than asking
price, without
first attempting to
sell it at a
price slightly
reduced
from $3,500.
In
addition, the
had an undeniable
the
jury
timing
insurance proceeds.
his
claim that
sale,
believed
of the
his
property, even if
parents
received
the
St.
Louis came into $2,000 seem plausible; first, it assumes that St.
mother testified
that she
contributed toward
had no knowledge
Joaquim's bail.
that St.
Louis had
Similarly, while
defendant
Ames building,
the circumstantial
evidence presented
in the
indicated
otherwise; for instance, his name was listed on all Ames building
would have
testify
sufficient animosity
against
him
seems
toward him to
unlikely,
and
set the
is
fire or
unsupported
testimony.
out-of-court
statements, we
doubt
the
that
statements
defendant's detriment.
are persuaded
did
not
beyond a
influence
We emphasize that it is
-15-
As the
by
the
evidence
reasonable
jury
to
the strength of
at trial implicating
defendant
makes
for
us
to understand.
Where
the
the law
so
clearly
bars such
notwithstanding, the
This
fact
his
in limiting
implied,
without basis,
defense, and
that he
finally, that
had
funded his
codefendant's
in calculating
the
We examine
his Sixth
refused to
discretion.
United States v.
_____________
To show
Ovalle-Marquez,
______________
must
demonstrate
that
the restriction
left
the
jury without
-16-
witness'
bias or
motives.
United States
_____________
v. Twomey,
______
806 F.2d
Defendant
maintains that
the
testimony
should have
been
fire
to the
defendant,
Ames building
past
his own
informant
Administration
("DEA"),
alternatively,
as revenge
already
on
for
from reporting
because
he
reported him.
During a
asked for
some offer
of proof from
reason to
offered
evidence
that,
initiative to
the
Drug
his
Enforcement
drug dealing,
believed
defendant
sidebar discussion,
defendant that
would report
before the
second
dissuade
had
the court
Joaquim had
him.
fire,
or,
Defendant
Joaquim told
its source.
been
Joaquim,
however stated on
offered no
evidence in
was a DEA
rebuttal.
him about
he had
Concluding that
defendant's
offered evidence was too tenuous, the court prohibited the cross-
In
light
of
the sparse
evidence
building,
no
showing
that
the
defense to
question
Joaquim
presented
by defendant
defendant
had
for
Joaquim as
knew
that
to bias
and
motive on
we find that
-17-
court's failure
to grant a
Louis'
Defendant
also
challenges
government asked
attorney objected
to this
the
questioning
costs.
and requested
St.
but
denied
the
instruction which
because
Although
the
mistrial,
opting
directed the
government
joining
in
jury to
offered no
the request
instead
for
curative
disregard the
question
evidentiary
for
basis
for it.
curative instruction,
Because
the defense
review it only
failed to
below, we
mistrial,
curative
and that
instruction,
circumstances.
be
it presented the
wholly
"Declaring
implemented if
the
exposure to
realistic hope of
the
a comprehensive
satisfactory
under
a mistrial is a last
taint
jury's
jury with
[from
resort, only to
information]
is
evidence
repair."
improper
the
is
likely
United States v.
_____________
to
prove
beyond
Sepulveda, 15 F.3d
_________
Cir. 1993).
questioning was
-18-
basis
for the
facts
question should be
juries follow
suggested
by the
no offered evidentiary
question;
disregarded "entirely."
the court's
instructions, and
and (3)
As we presume
defendant has
the
that
not
shown
that
required
the
questioning resulted
to overcome the
Rivera, 60
______
F.3d 16,
in
serious
prejudice as
18 (1st
Cir. 1995),
v. Rullan_______
we conclude that
the
counts.
bodily
injury; the
lower
level
U.S.S.G.
he hired
others
to
burn
down
applies
where
2K1.4(a)(1), (2).
the
"knowing"
Defendant was
residential
and
commercial
"amateurish"
people
fashion, his
lived was
effort to
anything other
burn a
than a
building in
knowing creation
which
of a
We therefore
district court.
-19-