US v. Patriarca
Case Date: 06/06/1997
Docket No: 94-1593
|
____________________ No. 94-1593 UNITED STATES OF AMERICA, Appellee, v. PASQUALE G. BARONE, Defendant, Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Mark L. Wolf, U.S. District Judge] ____________________ Before Boudin, Circuit Judge, Campbell and Bownes, Senior Circuit Judges. ____________________ Bernard Grossberg for appellant. Cynthia A. Young, Attorney, United States Department of Justice, with whom Donald K. Stern, United States Attorney, and Jeffrey Auerhahn, Assistant United States Attorney, were on brief for appellee. ____________________ June 6, 1997 ____________________ BOWNES, Senior Circuit Judge. Defendant-appellant Pasquale G. "Patsy" Barone and seven co-defendants were charged in a sixty-five-count superseding indictment with a variety of RICO1 and other offenses. The indictment charged Barone with RICO conspiracy in violation of 18 U.S.C. S 1962(d) (Count One); the underlying substantive RICO offense in violation of 18 U.S.C. S 1962(c) (Count Two); conspiracy to commit the murder of Vincent James "Jimmy" Limoli, Jr. in aid of racketeering (Count Three), and the murder of Limoli in aid of racketeering (Count Four), both in violation of 18 U.S.C. S 1952(B), now codified as amended at 18 U.S.C. S 1959. Because of the pendency of the government's appeal from the district court's ruling in favor of Barone on his motion to suppress certain post-arrest statements, see United States v. Barone, No. 89-289-WF, 1991 WL 353883 (D. Mass. 1. RICO refers to the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. SS 1961-1968. The provisions pertinent to this appeal, 18 U.S.C. S 1962 subsections (c) and (d), read as follows: (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt. (d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section. -2- 2 Aug. 21, 1991), aff'd, 968 F.2d 1378 (1st Cir. 1992), the district court ordered that Barone be tried separately from his co-defendants (who, with the exception of one who was a fugitive at the time, subsequently pleaded guilty). On October 20, 1993, after a nine-week trial, the case was submitted to the jury. On October 25, and again on October 27, 1993, the district court gave the jury a "modified Allen charge" in response to communications from the jury indicating that it was deadlocked. On October 28, 1993, the district court, acting pursuant to Federal Rule of Criminal Procedure 23(b), dismissed one of the jurors for just cause after conducting a lengthy inquiry into the effect on the juror and the jury of the juror's unsolicited receipt of extra- judicial information from a Federal Protective Service Officer. Having determined that the remaining jurors were capable of continuing to deliberate fairly and impartially, the district court exercised its discretion under Rule 23(b) to allow the remaining eleven jurors to deliberate to a verdict, rather than declare a mistrial. On October 29, 1993, the eleven-member jury returned verdicts of guilty as to Counts One through Three, but failed to agree as to Count Four, the murder charge. The district court accepted the jury's verdicts as to Counts One through Three and declared a mistrial as to Count Four. On December 20, 1993, Barone filed a motion for a new trial, which -3- 3 the district court denied on January 25, 1994. United States v. Barone, 846 F. Supp. 1016 (D. Mass. 1994). On April 25, 1994, the court sentenced Barone to life imprisonment on Count Three and to twenty years on each of Counts One and Two, with each sentence to be served concurrently with the others. Barone now appeals his conviction. We affirm. I. The superseding indictment charged Barone with agreeing to participate and participating in the following predicate acts of racketeering, see United States v. Saccoccia, 58 F.3d 754, 764 (1st Cir. 1995), cert. denied, --- U.S. ---, 116 S. Ct. 1322 (1996), as an "associate" of the Patriarca Family of La Cosa Nostra (also known as the Mafia; hereinafter "LCN"), alleged to be the RICO enterprise: (i) assault with intent to murder, murder of Anthony "Dapper" Corlito, and conspiracy to do the same; (ii) assault with intent to murder, murder of Jimmy Limoli on behalf of Vincent M. "Vinnie" Ferrara, and conspiracy to do the same; and (iii) assault with intent to murder Social Services Credit Union ("credit union") security guard Kenneth McPhee, assault with intent to rob Kenneth McPhee and credit union employee Lucy LoPriore, and robbery of Lucy LoPriore of property belonging to the credit union. The indictment also charged Barone with a number of overt acts of the racketeering conspiracy. -4- 4 We summarize the facts relating to these predicate acts, insofar as relevant to the issues raised in this appeal, taking the evidence as the jury could permissibly have found it, and viewing the record and drawing all reasonable inferences in the light most favorable to the government. See, e.g. , United States v. Zannino, 895 F.2d 1, 4 (1st Cir. 1990). The testimony of expert and cooperating witnesses established the existence, structure, and nature of the Patriarca Family -- as an organized "enterprise" within the meaning of 18 U.S.C. S 1961(4), conspiring to and engaging in loansharking, bookmaking, drug trafficking, extortion, murder, obstruction of justice, and other illegal activity -- and Barone's activities and relationships to others as an associate of the Patriarca Family. See generally United States v. Angiulo, 847 F.2d 956, 973-75 (1st Cir. 1988) (allowing FBI agent to testify as an expert regarding the structure and operations of the Patriarca Family of LCN, and the nature of the defendants' relationships to the organization). In the early 1980s, the Patriarca Family was run by boss Raymond Patriarca, Sr., underboss Gennaro "Gerry" Angiulo, consigliere Vittore Nicolo Angiulo, and capo regimes including Donato F. "Danny" Angiulo, Samuel S. Granito, and Ilario M.A. Zannino. When Raymond Patriarca, Sr. died in July 1984, Raymond Patriarca, Jr. became the boss and William Grasso became the underboss. In the late 1970s and early 1980s, -5- 5 Vincent Ferrara was an associate of the Patriarca Family assigned to the regime of Danny Angiulo. In 1983, Ferrara became a "made member" and soldier in Danny Angiulo's regime.2 Barone and his close friend Limoli were associates of the Patriarca Family who both wanted to become "made members" of the organization, and who began their efforts to accomplish this goal by selling illegal fireworks for Ferrara in the 1970s. Walter Anthony Jordan (hereinafter "Jordan") testified for the government at Barone's trial. He and his brother Chris Jordan were also associates of the Patriarca Family. Jordan met Barone and Limoli in late 1981 or early 1982. Barone later married Jordan's sister Kim. Limoli was Barone's best man at the wedding and became godfather to Barone and Kim's child. Beginning in the summer of 1984, Jordan sold illegal fireworks, giving the money from the sales to Limoli or Barone. Jordan testified that Barone told him that all the 2. According to the government's evidence, an LCN family is headed by a "boss," with an "underboss" as second in command. The official counselor or advisor to the family is known as the "consigliere." Below the underboss are "capo regimes," or captains of the LCN family. Assigned to each capo regime are "soldiers," who are "made members" of the family. An individual who has been nominated for membership in the family is a "proposed member," and an "associate" is one who, although not a "made member," works for or performs services for the family. Members and associates are required to obey their superiors in the family, to obtain permission from their superiors before engaging in criminal activity, and to commit criminal acts, including murder, as directed by their superiors. -6- 6 money from these sales went to Ferrara, with Barone receiving a percentage, along with Ferrara's loyalty. Jordan also testified that Barone told him that he needed Ferrara's permission in order to commit any illegal activities, and that he was "under [Ferrara's] wing," and would be a "made member" of the Patriarca Family one day, moving up in the ranks with Ferrara. One of the predicate acts of racketeering with which Barone was charged is the murder of Anthony Corlito, who, along with Giacomo A. "Jackie" DiFronzo and others, was a member of a rival North End gang. Jordan testified that Ferrara and DiFronzo "didn't get along" because DiFronzo had "ripped off" the Angiulos' North End card games during the late 1970s. Elizabeth DiNunzio, Limoli's sister, testified that Limoli told her that Gerry Angiulo hired Ferrara -- who then enlisted the aid of Limoli -- to kill DiFronzo because DiFronzo "had a bad drug problem" and "was robbing all the people in the North End." DiNunzio testified that Limoli told her that, on December 11, 1977, after fighting with DiFronzo at an Endicott Street club, Ferrara shot DiFronzo in the head; that Limoli thereafter kicked DiFronzo in the head; and that the two placed DiFronzo in a chair and set the chair and the club on fire. Jordan testified that Corlito swore vengeance on Ferrara for the murder of DiFronzo, and that Corlito was murdered by Ferrara, Limoli, and Barone on July 21, 1979. -7- 7 According to Jordan, Barone told him that he, Limoli, and Ferrara came upon Corlito and his girlfriend on Fleet Street and started shooting at Corlito. After Ferrara left the scene, Limoli continued to fire at Corlito and Barone urged Limoli to leave. Eventually, Barone and Limoli ran to Hanover Street, where they got into a car and drove off. DiNunzio testified that Limoli told her that Ferrara paid Limoli and Barone $1,000 each for killing Corlito. Another racketeering offense with which Barone was charged is the November 5, 1982 robbery of credit union teller Lucy LoPriore of a bag of cash belonging to the credit union as she and security guard Kenneth McPhee walked from the First National Bank on Hanover Street to the credit union at the corner of Parmenter and Salem Streets in the North End. According to witnesses, the robbery occurred between 10:00 and 10:30 a.m. and was perpetrated by two masked men. In the course of the robbery, McPhee was shot in the calf and in the neck. The owner of a Salem Street hardware store saw Limoli run down Salem Street from Parmenter Street. Jordan testified that Barone told him that he and Limoli were responsible for the robbery and that Barone had shot the security guard in the neck. Barone said that the stolen cash amounted to $30,000, with Ferrara taking $15,000, and Limoli and Barone splitting the rest between them. -8- 8 DiNunzio testified that, on the morning of the credit union robbery, Limoli came to her house carrying a box and asked her for lemon juice, saying that if you wash your hands with lemon juice, "they can't tell that you shot a gun." According to DiNunzio, after the robbery was reported on the noontime news, Limoli admitted to her that he and Barone had committed the robbery; that he had shot security guard McPhee in the foot; and that Barone had shot McPhee in the neck. DiNunzio testified that Barone and Chris Jordan later joined Limoli at her house, at which time Barone admitted that he had shot the guard in the neck. Barone was also charged with the murder of Limoli, which had its origins in a plan hatched by Limoli and Frank Salemme, Jr. to commit another in a series of "drug rip-offs," executed by passing off wood chips or peat moss as marijuana. Jordan and DiNunzio testified that in the spring of 1985, while Limoli was in Florida, Salemme, Jr. and others, including Walter Jordan, went ahead with the planned rip-off scheme, although Limoli had asked Salemme, Jr. to wait for him to return to town before "doing the deal." When Limoli learned that Salemme, Jr. and his cohorts had completed the rip-off by delivering peat moss in exchange for a $100,000 down payment, he vowed to get even with Salemme, Jr. for cheating him out of $35,000. -9- 9 Jordan testified that in September of 1985, Barone told him that Limoli had stolen a bag containing cash and $100,000 worth of cocaine that he believed belonged to Salemme, Jr., but which actually belonged to Antonio L. "Spucky" Spagnolo, a Patriarca Family soldier. According to Jordan, Barone told him that Limoli gave $30,000 of the stolen cash to Barone and that Barone kept the cash in his freezer until the cash and cocaine were eventually returned. DiNunzio testified that Limoli told her that he took the bag to his girlfriend Lena Chiuchiolo's house; that he was seen with the bag by Lena's sister Annette, who was Salemme, Jr.'s girlfriend; and that Annette told Salemme, Jr. what she had seen. According to DiNunzio, Limoli told her that the story of his theft of the bag eventually reached Spagnolo, the true owner of the bag, as well as other, high-level Patriarca Family members. Limoli told DiNunzio that he was questioned about the incident in separate meetings with Samuel Granito and Frank Salemme, Sr., and during an alleyway "meeting" with Salemme, Jr., Danny Angiulo, Ferrara, Spagnolo, and Peter "Doc" Limone. Limoli told DiNunzio that, in the course of the alleyway meeting, he repeatedly denied taking the bag, but eventually admitted it when he was told that Annette had seen him with the bag and had told Salemme, Jr. about it. According to DiNunzio, Ferrara told Limoli, "I could whack you right here," but "[w]e'll forget about it and let's go on from here." Limoli -10- 10 told DiNunzio that "that's not the way the guys work," and that he knew that they were going to kill him. Jordan testified that Barone told him that, because he had stolen from a made member of the LCN, "Jimmy got the X," meaning that he (Limoli) would no longer be permitted to engage in LCN activities. A week or two later, Barone told Jordan that Ferrara had ordered Limoli killed because of this incident. According to Jordan, he was with Barone when Ferrara called Barone at home on the evening of October 28, 1985 to say that Limoli had to be killed. On Barone's instructions, Jordan called Limoli to set up a deal involving the sale of drugs, with a meeting to take place at about 8:00 p.m. that night at D'Amore's Restaurant in the North End. The two then left Barone's house, each carrying gloves and Barone carrying a .38 caliber revolver. Jordan testified that, on Barone's instructions, he called Limoli at D'Amore's from the nearby European Restaurant before the two went to meet him. When they arrived at D'Amore's, Jordan went inside to get Limoli, and when Limoli came out of the restaurant and saw Barone, he told Jordan that he had wanted him to come alone. Limoli then talked privately with Barone, after which he returned to the restaurant while Barone and Jordan left to retrieve Barone's car, which they had parked elsewhere. When Barone and Jordan returned to -11- 11 D'Amore's, Limoli left the restaurant and got into the waiting car, which then drove off, with Jordan driving. Maureen Karpowicz-DiPietro, Limoli's cousin, testified that, shortly after 8:00 p.m. on October 28, 1985, she and a friend went with Limoli to D'Amore's, where Limoli received a telephone call and then a visit from Jordan. According to Karpowicz-DiPietro, Limoli met Jordan outside the restaurant and apparently became angry when he saw Barone. Limoli yelled at Jordan but then talked privately with Barone before returning to the restaurant. Jordan and Barone then left, returning to D'Amore's shortly after 10:00 p.m. in Barone's car. Karpowicz-DiPietro testified that Limoli put a cloth napkin in a brown paper bag, said "that will do it," asked her to meet him later, and then left the restaurant to join Barone and Jordan. DiNunzio testified that Limoli told her that he was going to rob Barone and Jordan that night. Jordan testified that, after he parked the car next to the cemetery at the intersection of Snowhill and Hull Streets, the three men got out of the car. According to Jordan, Barone shot Limoli in the back of the head at about 10:25 p.m. as the three men walked up Hull Street. When Limoli fell to the ground, Jordan grabbed the brown paper bag that Limoli was carrying and then ran back down Hull Street with Barone. After they crossed Snowhill Street, Jordan discovered that the bag contained only cloth napkins. Jordan testified -12- 12 that, after the discovery, Barone ran back up Hull Street, followed by Jordan, and that when he reached Limoli, Barone leaned over him, shouted "Why, Jimmy?" and fired the remaining bullets into Limoli's head. Barone then directed Jordan to search Limoli's body for money, which Jordan did, finding and taking a wad of $100 bills and a .45 caliber gun, both of which he gave to Barone. At this point Barone said, "Walter, let's go," and the two began running back down Hull Street, eventually arriving at Barone's house. While there, Barone put the murder weapon into a plastic garbage bag, along with his clothes and Jordan's clothes. The next day, Barone and Jordan walked out onto a pier with the bag and the gun and Barone threw them both into Boston Harbor. II. Barone argues that Limoli's out-of-court statements were inadmissible hearsay and that the district court erred by admitting them over his objection through the testimony of Maureen Karpowicz-DiPietro and Elizabeth DiNunzio. The district court admitted the hearsay testimony largely pursuant to Federal Rule of Evidence 804(b)(3), which creates an exception to the hearsay rule for statements against the declarant's interest, including penal interest. Barone argues that the statements were inadmissible under Rule 804(b)(3) because they were (i) not against Limoli's penal interest; (ii) not sufficiently corroborated by properly -13- 13 admitted independent evidence; and (iii) inadmissible under Williamson v. United States, 512 U.S. 594 (1994), which was decided while Barone's appeal was pending, because the statements are not individually self-inculpatory. Barone also objects to the admission of Limoli's statements on constitutional grounds, arguing that the introduction of this evidence violated his rights under the Confrontation Clause of the Sixth Amendment. A. 1. The out-of-court statements of a non-testifying declarant ordinarily are excluded as hearsay if offered to prove the truth of the matter asserted. See, e.g., United States v. Sepulveda, 15 F.3d 1161, 1180 (1st Cir. 1993). The rule against hearsay reflects concerns about the trustworthiness of out-of-court statements, arising from the fact that such statements are not subject to the tests normally applied to in-court testimony to ensure its reliability. Exceptions to the hearsay rule permit courts to admit certain hearsay statements that bear indicia of reliability and trustworthiness sufficient to overcome these concerns. One such exception is Federal Rule of Evidence 804(b)(3), which provides that, if the hearsay declarant is unavailable to testify as an in-court witness (a point which is not in dispute here), the hearsay rule does not exclude -14- 14 A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. Barone moved in limine to exclude Limoli's statements from DiNunzio's testimony, arguing, as he does on appeal, that the statements do not meet the "against interest" and "corroborating circumstances" requirements of Rule 804(b)(3), and that the admission of these statements would violate his confrontation rights. Barone raised no objection in limine to the testimony of Karpowicz-DiPietro. The district court ruled from the bench that DiNunzio's proposed testimony regarding what Limoli told her about his criminal activities, including those activities undertaken with Barone and others, was admissible under Rule 804(b)(3) as interpreted by this court in United States v. Seeley , 892 F.2d 1 (1st Cir. 1989), and that admission of this testimony would not violate the Confrontation Clause. The court found that Limoli was unavailable; that his statements regarding his participation in crimes on behalf of the Patriarca Family were against his penal interest; and that sufficient corroboration and indicia of reliability attended -15- 15 the making of the statements. The court also ruled that Federal Rule of Evidence 403 did not operate to exclude the disputed evidence. The district court found that the context and circumstances in which the hearsay statements were made demonstrated their trustworthiness and reliability. The court reasoned that Limoli had made the statements to a person (DiNunzio) with whom he had a very close relationship, rather than to the police, and that he therefore had no motive to curry favor with law enforcement officials and no incentive to diminish his role in the criminal activity described in the statements by shifting blame to Barone or to others. The court also found that the detailed nature of the statements, the in- court testimony of Walter Jordan and others, and other evidence (e.g., evidence lawfully obtained through electronic surveillance) satisfied the corroborating circumstances requirement of Rule 804(b)(3) and supplied the "particularized guarantees of trustworthiness" required by the Confrontation Clause. In addition, while noting that, under Seeley, DiNunzio's credibility was not part of the admissibility analysis but was a question for the jury, the district judge nevertheless found that DiNunzio had no reason to cast blame on Barone or to exculpate herself. The court recognized that DiNunzio arguably could have been motivated to fabricate testimony by a desire to seek -16- 16 revenge for her brother's murder, but found it to be unlikely that someone who grew up in the North End, as DiNunzio did, would falsely accuse Ferrara (who was well known and widely reputed to be a dangerous Mafia killer) or his associates, and that DiNunzio related to law enforcement authorities the essential elements of the challenged testimony before Barone and Ferrara were apprehended. The court concluded that issues such as DiNunzio's possible motive to fabricate ultimately went to her credibility (a jury question), rather than to the trustworthiness of the hearsay statements (a question of admissibility of evidence to be decided by the court), and that DiNunzio could be cross-examined on these matters. The district judge concluded his ruling by cautioning that, although he would admit the testimony generally, it would be necessary to "go statement by statement to see if there are parts of it that are inadmissible." 2. Before proceeding to our analysis of Barone's evidentiary challenge, we must iron out a few wrinkles concerning the extent to which Barone may be deemed to have preserved the issue for appeal, and the related question of what standard of review under Federal Rule of Criminal -17- 17 Procedure 52 -- harmless error or plain error -- should be applied to this issue on appeal.3 At trial, Barone objected at the outset of Karpowicz- DiPietro's testimony (without stating the grounds), and this objection led to a side-bar conference that included a discussion of the admissibility of Limoli's statements as declarations against penal interest. After hearing the government's outline of Karpowicz-DiPietro's proposed testimony and briefly entertaining argument by both parties, the district court ruled that Limoli's statements were admissible as declarations against penal interest, but that his statements regarding what Ferrara reportedly said to him would not be allowed. Barone made no further hearsay objection to Karpowicz-DiP ietro's testimony, and failed altogether to renew his objection to the admission of Limoli's statements through DiNunzio's testimony, although he objected several times on other grounds. We find Barone's contemporaneous objection to Karpowicz-DiPietro's test imony to be sufficient to preserve the 3. Federal Rule of Criminal Procedure 52 provides as follows: (a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. (b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. -18- 18 hearsay objection as to her testimony, and therefore the issue is subject to harmless error review under Federal Rule of Criminal Procedure 52(a). The question whether Barone's objection was properly preserved as to DiNunzio's testimony is a different matter, however, because Barone did not, as our case law requires, renew his hearsay objection at trial.4 We have repeatedly held that a "motion in limine without subsequent, contemporaneous objection at trial . . . is ordinarily insufficient to preserve an evidentiary ruling for appeal," and that, absent a timely objection at trial, our review is solely for plain error under Federal Rule of Criminal Procedure 52(b). United States v. Reed, 977 F.2d 14, 17 (1st Cir. 1992). See United States v. Lombard, 72 F.3d 170, 189 (1st Cir. 1995). Our case law thus directs that Barone's objection to DiNunzio's testimony ordinarily would be deemed to have been forfeited and therefore reviewable on appeal only for plain error. But the question whether harmless or plain error applies is more difficult here than in the ordinary case because Barone's challenge in this court is based, in part, upon the narrowing interpretation of Rule 804(b)(3) set forth 4. Barone asserts that DiNunzio's testimony as to Limoli's statements was admitted over his objection, citing his motion in limine to limit or exclude this testimony. Barone does not direct our attention to any hearsay objection to DiNunzio's testimony at trial and our review of the transcript reveals none. -19- 19 in Williamson v. United States, 512 U.S. 594 (1994), which was decided while this appeal was pending. It seems clear that Barone benefits from the new rule announced in Williamson because direct review was pending at the time it was decided. See Johnson v. United States, No. 96- 203, 1997 WL 235156, *5 (U.S. May 12, 1997); Griffith v. Kentucky, 479 U.S. 314, 328 (1987); Hines v. Davidowitz, 312 U.S. 52, 60 (1941); United States v. Melvin, 27 F.3d 703, 706- 07 n.4 (1st Cir. 1994). Less clear is whether Barone's forfeited hearsay objection -- to the extent that it turns on the application of the rule announced in Williamson -- is subject to harmless error or plain error review. After all, it seems unfair to fault Barone for failing to raise at trial an objection based upon a rule that was not announced until after the trial was concluded. See United States v. Collins, 60 F.3d 4, 7 (1st Cir. 1995). The question of what standard applies "where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified" was specifically reserved by the Supreme Court in its explication of the plain error standard in United States v. Olano, 507 U.S. 725, 734 (1993). In the recently decided Johnson v. United States , 1997 WL 235156, however, the Supreme Court applied the Olano plain error test where the petitioner failed timely to object at trial, based upon a right announced in United -20- 20 States v. Gaudin, 515 U.S. ---, 115 S. Ct. 2310 (1995), which was decided while his case was pending on direct appeal. Olano holds that, in order for an appellate court to correct an error not raised at trial, it must first find that there is "'error' that is 'plain' and that 'affect[s] substantial rights.'" 507 U.S. at 732. When these three elements are satisfied, an appellate court may exercise its discretion to correct the error under Rule 52(b) only if the forfeited error "'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Id. at 736 (quoting Unit ed States v. Atkinson, 297 U.S. 157, 160 (1936)). In Johnson, the Court concluded that the petitioner was entitled to the retroactive application of the new rule announced in Gaudin, and therefore that the "error" prong of the Olano test was satisfied. Johnson, 1997 WL 235156, at *5 (citing Griffith v. Kentu cky, 479 U.S. at 328). The Court then held that "in a case such as this -- where the law at the time of trial was settled and clearly contrary to the law at the time of appeal -- it is enough that an error be 'plain' at the time of appellate consideration," and that, by this analysis, the Gaud in error met the "plain" prong of the Olano test. Johnson , 1997 WL 235156, at *6. Without deciding the question whether the error had affected the petitioner's substantial rights -- the third prong of the Olano test -- the Court declined to notice the error under Rule 52(b) on the ground -21- 21 that, even assuming that the "substantial rights" prong was satisfied, there was no basis for concluding that the error "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." Johnson, 1997 WL 235156, at *7. Although Johnson does not purport to do so, the conclusion appears to us to be inescapable that Johnson answers the question left open in Olano and that, under Johnson, plain error review applies in the circumstances presented here, even to the extent that the resolution of Barone's challenge to DiNunzio's testimony turns on the application of the rule of Williamson. In all events, our review leads us to conclude that Barone's challenge would not have succeeded even under the harmless error standard because we find that, to the extent that the district court erred in admitting hearsay evidence -- under Williamson or otherwise -- the error(s) did not affect the outcome of the trial, and therefore did not affect Barone's substantial rights. See Olano, 507 U.S. at 734; United States v. Marder , 48 F.3d 564, 571 (1st Cir.), cert. denied, -- - U.S. ---, 115 S. Ct. 1441 (1995). 3. In Williamson v. United States, the Supreme Court clarified the scope of Rule 804(b)(3) for statements that inculpate the defendant as well as subject the declarant to criminal liability. At issue in Williamson was the -22- 22 admissibility of hearsay statements made by the declarant Harris, who had been arrested after police found large amounts of cocaine in the car he was driving, and who made statements to a DEA agent while in custody that indicated that the cocaine belonged to Williamson. 512 U.S. at 596-97. The Court first considered the question of what is meant by "statement" in light of the principle that "Rule 804(b)(3) is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true." 512 U.S. at 599. Reasoning that this principle points clearly to a narrow definition of "statement" as "a single declaration or remark," rather than to a broad definition as "a report or narrative," id., the Court concluded as follows: In our view, the most faithful reading of Rule 804(b)(3) is that it does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self- inculpatory. The district court may not just assume for purposes of Rule 804(b)(3) that a statement is self-inculpatory because it is part of a fuller confession, and this is especially true when the statement implicates someone else. 512 U.S. at 600-01. The Court explained that "[t]he fact that a statement is self-inculpatory does make it more reliable; but the fact that a statement is collateral to a self-inculpatory statement -23- 23 says nothing at all about the collateral statement's reliability." 512 U.S. at 600. Thus, the Rule 804(b)(3) inquiry "is always whether the statement was sufficiently against the declarant's penal interest 'that a reasonable person in the declarant's position would not have made the statement unless believing it to be true,' and this question can only be answered in light of all the surrounding circumstances." 512 U.S. at 603-04 (quoting Fed. R. Evid. 804(b)(3)) (footnote omitted). At oral argument, counsel for Barone characterized Williamson as standing for the proposition that statements against interest that implicate anyone other than the declarant are not admissible under Rule 804(b)(3), arguing that "a statement that shifts the blame to another person has no basis for reliability and should not be admissible under the hearsay exception." While it is probably true in the ordinary case that a statement that shifts blame to another should be regarded as unreliable, we do not accept Barone's contention that Williams on creates a per se bar to any and all statements against interest that also implicate another; nor do we find that any of the hearsay challenged here shifts blame from the declarant Limoli to anyone else. Far from adopting a per se rule against statements inculpating another, the Court stated that a totality of the circumstances test should be applied to the particular -24- 24 statement at issue in order to determine whether it comports with the rationale upon which Rule 804(b)(3) is premised -- the assumption that declarations against interest are reliable because people do not make such statements unless believing them to be true. 512 U.S. at 603-04. A statement against penal interest is not rendered inadmissible "merely because the declarant names another person or implicates a possible codefendant." Williamson, 512 U.S. at 606 (Scalia, J., concurring); see id. at 603. Indeed, the Court used as an example of an admissible statement against penal interest "Sam and I went to Joe's house," 512 U.S. at 603, a statement that clearly implicates a person other than the declarant.5 In addressing the issue under the Confrontation Clause, the Second Circuit has held that a statement inculpating both the declarant and the defendant may be sufficiently reliable as to be admissible in the circumstances that obtain here -- i.e., where the statement is made in a non- custodial setting to an ally, rather than to a law enforcement official, and where the circumstances surrounding the portion of the statement that inculpates the defendant provide no reason to suspect that this portion of the statement is any less trustworthy than the portion that inculpates the 5. The Court reasoned that this statement "might be against the declarant's interest if a reasonable person in the declarant's shoes would realize that being linked to Joe and Sam would implicate the declarant in Joe and Sam's conspiracy." 512 U.S. at 603. -25- 25 declarant. See United States v. Sasso, 59 F.3d 341, 349 (2d Cir. 1995); United States v. Matthews, 20 F.3d 538, 546 (2d Cir. 1994). We find this reasoning to be persuasive and equally applicable to a Rule 804(b)(3) analysis of the reliability of the statements challenged here. Finally, applying Williamson's instruction that courts must determine the admissibility of statements by evaluating them in context and in view of all the circumstances, 512 U.S. at 603-04, we find that Barone's blame- shifting concerns are not implicated here because none of the challenged testimony shifts blame or exculpates either the declarant Limoli or the defendant Barone. And, to the extent that any of the challenged statements may be so read, the force of the argument is blunted by the fact that the statements were not made to law enforcement officials in a custodial setting, as in Williamson (and as in nearly all of the cases relied upon by Barone), but to close relatives of the declarant. On these facts, it cannot seriously be argued that any of the challenged statements implicate the primary concern raised by Barone, that they were intended to shift the blame for criminal conduct from the declarant Limoli to another or to |