The defendant, attorney Robert Ciresi, was convicted by a federal jury for the crimes of bribery, extortion and conspiracy, in relation to his involvement with the bribing of local zoning officials in two matters. On appeal, Ciresi challenges the admission of recorded statements on the ground that the statements were hearsay, their introduction violated his Sixth Amendment rights, and that the District Court erred when calculating his sentence. The Court of Appeals, First Circuit affirmed.
Attorney Ciresi represented a client to secure the rezoning of a residential parcel, such that it could house a supermarket. In order to obtain unconditional approval of the application, Ciresi negotiated a bribe between his client and four councilmen, one of which being an FBI informant, Caranci. The FBI informant recorded conversations concerning the bribing scheme. Eventually, the application was approved and the bribes were paid out. The ring-leader of the corrupt councilmen, Zambarano, indicated that another opportunity for bribery would follow.
Over a year later, another bribery opportunity presented itself. Zambarano contacted an applicant’s attorney, Ciresi, and indicated that the councilmen would like a bribe for the requested rezone. Ciresi helped facilitate the bribe by advising which of the applicant-partners would be amenable to the offer and also finding a middleman. Soon thereafter, Ciresi was no longer involved. Following the delivery of the bribe, the rezone application was approved. Ciresi was then charged with bribery and abetting an extortion for the first bribery, and conspiracy to commit the same for the second bribery. Ciresi was convicted and challenges, claiming the erroneous admission of hearsay evidence, and Confrontation Clause violations.
The First Circuit initially addressed Ciresi’s claim that the out of court statements of a councilman should not have been admitted, as these statements were hearsay. The federal rules of evidence provide that a co-conspirator’s statements made “‘during the course of and in furtherance of the conspiracy’” are nonhearsay admissions. Ciresi objects to the admission of the statements on three grounds: that the two bribes were separate and Ciresi was not part of the second bribe; that even if Ciresi was part of the second bribe, he withdrew; and, that the councilman’s statements were not made in furtherance of the bribe.
Addressing the first objection, the court provided that when determining whether two acts are part of the same conspiracy, the court generally looks to the factors of a common goal, overlap of participants, and interdependence of participants. The court found that all the factors led to the existence of a single conspiracy. The acts shared a common goal, the extortion of Ciresi’s clients; there was an overlap of participants as the there was a “hub” conspirator, Zambarano; and, all the actors were interdependent, as the bribe could not occur without all the participants acting in concert. Thus, the court found one large conspiracy, and not two smaller ones.
Next, the court addressed Ciresi’s claim that he had withdrawn from the second bribery and thus could not be culpable. In order for a withdrawal defense to work, the “‘conspirator must act affirmatively either to defeat or disavow the purposes of the conspiracy.’” This usually requires a confession to police or to tell the co-conspirators of his change in heart; cessation of conspiracy-related activities will not suffice. The court found that Ciresi had not withdrawn under the law, as any communications of his change of heart where ambiguous at best.
The Second Circuit then addressed Ciresi’s claim that three groups of statements made by Zambarano concerning Ciresi’s role where not in furtherance of the second bribery, as they were mere narratives of a past act. Ciresi claimed that since the statements were not made in the furtherance of the second conspiracy, they should not have been admitted into evidence as nonhearsay under the aforementioned standard. The court provided that where a statement of a co-conspirator tends to support an object of the conspiracy, that statement will be considered to be in furtherance of the conspiracy.
The court found that the first group of statements was clearly in the furtherance of the conspiracy because the statements set up the second deal. The second group of statements was also in furtherance of the second bribery because these statements were made to assure Caranci that he would be treated fairly and to explain why the second bribe was taking so long. Lastly, the court found the final group of statements to be in the furtherance of the conspiracy because they were intended to keep the Caranci calm leading up to the culmination of the second bribe. Thus, the court found that all the challenged statements made by Zambarano to Caranci showed Ciresi’s ongoing role in the conspiracy, and, thus, were admissible nonhearsay.
Finding that the statements were admissible nonhearsay, the Second Circuit addressed Ciresi’s assertion that his Sixth Amendment Confrontation Clause rights were violated because Zambarano did not testify in court. The court provided that for the admission of an out of court statement to violate one’s right to confrontation, the statement must be “testimonial.” The Supreme Court has decided that “testimonial” does not include statements unknowingly made to a government agent, and the Second Circuit has further determined that statements made by co-conspirators are non-testimonial in nature. Given these standards, the Second Circuit determined that Zambarano’s statements were non-testimonial, and their admission did not violate Ciresi’s Confrontation Clause rights.
Lastly, the Second Circuit addressed Ciresi’s sentencing challenge. Ciresi asserted that the second bribery should not have been used in the calculation of his sentence under the federal sentencing guidelines. Having already found that Ciresi was a co-conspirator in the second bribery, the Second Circuit found no error in the District Court’s decision to include it in the sentencing determination.
United States v. Ciresi, 2012 WL 4757916 (1st Cir., Oct. 5, 2012).
The opinion can be accessed here.