623 F.

2d 188

UNITED STATES of America, Appellee,

v.
Francis P. DAVIS, Defendant, Appellant.
No. 79-1566.

United States Court of Appeals,

First Circuit.
Argued April 9, 1980.
Decided June 12, 1980.

John F. Cicilline, Providence, R. I., for defendant, appellant.

Stephen G. Milliken, Atty., U. S. Dept. of Justice, with whom Paul E.
Murray, U. S. Atty., and Edwin J. Gale, Spec. Atty., U. S. Dept. of Justice,
Providence, R. I., were on brief, for appellee.
Before, CAMPBELL and BOWNES, Circuit Judges, LOUGHLIN, *
District Judge.
LOUGHLIN, District Judge.
In the present action, the defendant-appellant, Frank Davis, following a
jury trial, was convicted of the crimes of conspiring to transfer and
conceal property of a corporation in contemplation of the corporation's
bankruptcy and to conceal corporate property from the corporation's
receiver, trustee and creditors, in violation of 18 U.S.C. 371 and 152.
Appellant was also convicted of aiding and abetting the bankruptcy fraud,
in violation of 18 U.S.C. 152 and 2.
The evidence introduced at trial established that Eugene S. Roberts in
concert with the appellant and several others engaged in a scheme to
defeat the federal bankruptcy laws. The conspiracy, which existed from
approximately February 15, 1977 until the return of the indictment on
October 19, 1978, consisted of: 1. the purchase by Roberts, Inc. of
substantial inventory on credit without intention of repayment; 2. its
storage in the Depot Warehouse; 3. the clandestine removal and
unreported sale of said inventory; 4. concealment of the alleged loss of the

inventory by burning the Depot Warehouse and creating the appearance

that its contents had been stolen and 5. the filing of a petition for
bankruptcy and continuing efforts to defraud the creditors of the
corporation.
Four issues are presented to this court on appeal: 1. whether evidence of
the sworn testimony given by Roberts before the State Fire Marshal in
February of 1978 about the Depot fire and the conversations between
Roberts and Van Beaver and Roberts and John Adams during the first
three months of 1978 was properly admitted into evidence; 2. whether the
district court erred in refusing to order the Government to immunize the
witness Parente; 3. whether testimony elicited from the witness Gallucci
by counsel for co-defendant Van Beaver denied appellant a fair trial; and
4. whether the district court correctly denied appellant's motions for
judgment of acquittal and for a new trial.
Turning to the first issue, the appellant contends that the evidence showed
only efforts to conceal the conspiracy and not acts in furtherance of the
main criminal objective of the conspiracy and as such was not admissible.
The Government contends that the evidence proved the transfer and
concealment of property of Roberts, Inc. and was properly admitted. The
Government contends that a bankruptcy fraud conspiracy is an agreement
to conceal property in contemplation of bankruptcy, and that acts and
declarations of the co-conspirators during the pendency of the bankruptcy
proceedings were admissible evidence of continuing conspiratorial efforts
to conceal the assets of Roberts, Inc. in contemplation of bankruptcy.
A brief chronology of the scheme shows that Roberts testified that he
planned the scheme with co-defendant, Van Beaver, at a meeting held
early in the summer of 1977. In August of 1977, Roberts met with
appellant and asked appellant to look for a remote warehouse to "be taken
with the possibility of a fire in mind" in connection with "certain business
plans". Subsequently, Roberts leased the Depot Warehouse and began to
store the large inventory. Two weeks after the first meeting, appellant met
with Roberts again. At that time Roberts told appellant "I'm going to take
a dive and I've got to cover up my inventory losses." Appellant informed
Roberts that he would charge $5,000.00 for burning the Depot
Warehouse. Merchandise was stored at the Warehouse and secretly
moved and sold from September through November of 1977. The Depot
Warehouse was set on fire on November 29, 1977. On December 23,
1977 Roberts filed a petition for bankruptcy in United States District
Court. In February of 1978, Roberts was called to the State Fire Marshal's
Office to give sworn testimony about the Depot fire. During the first three

months of 1978, Roberts had the conversations with John Adams about
appellant. In February of 1978, Roberts met with a co-defendant, Van
Beaver. The indictment was filed on October 9, 1978.
In oral argument counsel for the appellant argued the appellant was not
aware of the details of the plan, did not agree to further the bankruptcy
scheme, and at no time had the specific intent to violate the bankruptcy
law. Appellant argues that he was not a participant in the conspiracy,
rather that his agreement was to set the fire and had nothing to do with the
bankruptcy. As the trial record indicates, the testimony of Roberts shows
that the appellant had knowledge of the bankruptcy scheme. Indeed,
appellant's counsel conceded at trial that Robert's testimony established
that "at some point he said to Davis 'you know I'm going to go into a
bankruptcy, I'm going to defraud some people' ". The appellant Davis was
co-conspirator in the conspiracy to defeat the federal bankruptcy laws. As
the Eighth Circuit previously stated:
Once there is satisfactory proof that a conspiracy has been formed, the
question of a particular defendant's connection with it may be merely a
matter of whether the stick fits so naturally into position in the fagot as to
convince that it is part of it. It is therefore possible for the circumstances
on an individual defendant's participation in an established conspiracy to
become substantial from their weight in position and context, though in
abstraction they may seem only slight. Cf. Galatas v. United States, 8 Cir.,
80 F.2d 15, 24; Marx v. United States, 8 Cir., 86 F.2d 245, 250. And, of
course, a defendant can join a conspiracy at any time and may be found to
have done so when, with knowledge of its existence, he has undertaken to
further its design. Thomas v. United States, 8 Cir., 156 F. 897, 912, 84
C.C.A. 477, 17 L.R.A.,N.S. 720; Allen v. United States, 7 Cir., 4 F.2d
688, 691; Parnell v. United States, 10 Cir., 64 F.2d 324, 327.
Phelps v. United States, 160 F.2d 858, 867-868 (8th Cir. 1947).
As a co-conspirator, the declarations and acts of the various members of
the conspiracy made during the conspiracy in furtherance of the
conspiracy become admissible against Davis. Pinkerton v. United States,
328 U.S. 640, 646-647, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946);
United States v. U. S. Gypsum Co., 333 U.S. 364, 393, 68 S.Ct. 525, 541,
92 L.Ed. 746 (1948). Conversely, acts and declarations by a coconspirator not made in furtherance of the conspiracy during the
conspiracy are not admissible against each co-conspirator. The question
we are presented with in this case, then is whether the evidence was of
acts and declarations made during and in furtherance of the conspiracy or

was of acts and declarations made to conceal the conspiracy. The United
States Supreme Court has clearly stated that:
This prerequisite to admissibility, that hearsay statements by some
conspirators to be admissible against others must be made in furtherance
of the conspiracy charged, has been scrupulously observed by federal
courts. The Government now asks us to expand this narrow exception to
the hearsay rule and hold admissible a declaration, not made in
furtherance of the alleged criminal transportation conspiracy charged, but
made in furtherance of an alleged implied but uncharged conspiracy aimed
at preventing detection and punishment. . . . We are not persuaded to
adopt the Government's implicit conspiracy theory which in all criminal
conspiracy cases would create automatically a further breach of the
general rule against the admission of hearsay evidence.
Krulewitch v. United States, 336 U.S. 440, 443-444, 69 S.Ct. 716, 718, 93
L.Ed. 790 (1949). See also Lutwak v. United States, 344 U.S. 604, 616,
73 S.Ct. 481, 488, 97 L.Ed. 593 (1953).
While Krulewitch and Lutwak clearly state that after the central criminal
purposes of a conspiracy have been attained, a subsidiary conspiracy to
conceal may not be implied from circumstantial evidence showing merely
that the conspiracy was kept a secret and that the conspirators took care to
cover up their crime in order to escape detection and punishment, the
Court in Grunewald v. United States, 353 U.S. 391, 402, 77 S.Ct. 963,
972, 1 L.Ed.2d 931 (1957), makes a crucial distinction:
By no means does this mean that acts of concealment can never have
significance in furthering a criminal conspiracy. But a vital distinction
must be made between acts of concealment done in furtherance of the
main criminal objectives of the conspiracy, and acts of concealment done
after the central objectives have been attained, for the purpose only of
covering up after the crime. Supra, 405, 77 S.Ct. 974.
The court finds that the acts and declarations of Roberts introduced by the
evidence in question were done in furtherance of the main criminal
objectives of the conspiracy and as such were admissible against the
appellant, Davis. Forman v. U. S., 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d
412 (1960); U. S. v. Del Vallee, 587 F.2d 699, 704 (5th Cir. 1979); U. S.
v. Portner, 462 F.2d 678 (2nd Cir. 1972), cert. denied, 409 U.S. 983, 93
S.Ct. 319, 34 L.Ed.2d 246 (1972). The court is in agreement with the
district court judge that: "the conspiracy doesn't go out when the fire went
out. It continues."

The second issue before the court on appeal is whether the district court
erred in refusing to order the Government to immunize the witness,
Parente. Anthony Parente was subpoenaed by the Government as a
witness. He subsequently refused to answer all material questions on the
grounds of self-incrimination. Parente was the Battalion Fire Chief with
whom Eugene Roberts testified he entered into an agreement, whereby
Parente was to delay the Fire Department's response to the fire for thirtyfive hundred ($3,500.00) dollars. The appellant argues that by refusing to
order the Government to immunize the witness, Parente, the appellant was
denied his due process rights as guaranteed by the fifth amendment and
his right to "compulsory process for obtaining witnesses in his favor"
granted by the sixth amendment. It is the contention of the appellee that
the court did not err in refusing to order the Government to immunize the
witness and that appellant was not denied a fair trial by reason of the
refusal. Under the theory of immunity statutes, a witness in return for the
surrender of his fifth amendment right to remain silent on the grounds that
he might incriminate himself, is promised that he will not be prosecuted
based on the inculpatory evidence he gives in exchange. U. S. v.
Tramunti, 500 F.2d 1334, 1342 (2nd Cir. 1974).
Courts have clearly stated that the power to apply for immunity pursuant
to 18 U.S.C. 6002-03 (1970), rests solely with the Government, being
confined to the United States Attorney and his superior officers. United
States v. Graham, 548 F.2d 1302, 1315 (8th Cir. 1977); United States v.
Allstate Mortgage Corp., 507 F.2d 492, 495 (7th Cir. 1974); In re Kilgo,
484 F.2d 1215, 1222 (4th Cir. 1973). The trial court has no power to grant
immunity to a witness whose testimony the defendant may wish to offer
and the Government cannot be forced to grant such immunity. United
States v. Benveniste, 564 F.2d 335, 339 fn. 4 (9th Cir. 1977); United
States v. Jenkins, 470 F.2d 1061, 1063 (9th Cir. 1972), cert. denied, 411
U.S. 920, 93 S.Ct. 1544, 36 L.Ed.2d 313 (1973); Earl v. United States,
361 F.2d 531, 534 (D.C.Cir. 1966), cert. denied, 388 U.S. 921, 87 S.Ct.
2121, 18 L.Ed.2d 1370 (1967). The role which the court is to play in the
granting of immunity has been clearly defined for it:
The court may scrutinize the record to ascertain that a request for
immunity is, under the statute, jurisdictionally and procedurally wellfounded and accompanied by the approval of the Attorney General. See
Ullmann v. U. S., 350 U.S. 422 at 432-34, 76 S.Ct. 497 (at 503-04, 100
L.Ed. 511). Under no circumstances, however, may a federal court
prescribe immunity on its own initiative, or determine whether application
for an immunity order which is both jurisdictionally and procedurally
well-founded is necessary, advisable or reflective of the public interest, for

the federal judiciary may not arrogate a prerogative specifically withheld

by Congress. Earl v. United States, 124 U.S.App.D.C. 77, 361 F.2d 531
(1966); Ellis v. United States, 135 U.S.App.D.C. 35, 416 F.2d 791 (1969);
In re Kilgo, 484 F.2d 1215 (4th Cir. 1973).
In re Daley, 549 F.2d 469, 479 (7th Cir. 1977), cert. denied, 434 U.S. 829,
98 S.Ct. 110, 54 L.Ed.2d 89 (1977).
Here the appellant argues that his fifth and sixth amendment rights have
been violated by the district court's refusal to order the Government to
immunize the witness. Some circuits have held that there are
circumstances under which it appears that due process may demand that
the Government request use immunity for a defendant's witness. United
States v. Morrison, 535 F.2d 223, 229 (3rd Cir. 1976). See dicta in United
States v. Leonard, 494 F.2d 955, 985 n. 79 (D.C.Cir. 1974) (concurring
and dissenting opinion of Bazelon, C. J.); and Cf. Earl v. United States,
361 F.2d 531, 534 n. 1 (D.C.Cir. 1966). See also Virgin Islands v. Smith,
615 F.2d 964 (3rd Cir. 1980) (discussing circumstances under which a
court's ordering of immunity might be proper).
We need not decide to what extent we agree with these decisions since no
such circumstances exist in the instant case. In Morrison, the
circumstances were created when prosecutorial misconduct caused the
defendant's principal witness to withhold out of fear of self-incrimination
testimony which would otherwise allegedly have been available. There
has been absolutely no allegation of any type of prosecutorial misconduct
in the present situation. Nor is it a situation like that presented
hypothetically in Earl v. United States, 361 F.2d 531, 534 n. 1 (D.C.Cir.
1966) where the Government secured testimony from one eyewitness by
granting him immunity while declining to seek an immunity grant for
defendant's witness to free him from possible incrimination to testify for
the defendant. In United States v. Alessio, 528 F.2d 1079 (9th Cir. 1976),
cert. denied, 426 U.S. 948, 96 S.Ct. 3167, 49 L.Ed.2d 1184 (1976),
rehearing denied, 429 U.S. 873, 97 S.Ct. 193, 50 L.Ed.2d 156 (1976).
Where the Government had sought and obtained immunity for one
prosecution witness while refusing to exercise its authority to seek
immunity for witnesses on behalf of the defense the Court stated:
To interpret the Fifth and Sixth Amendments as conferring on the
defendant the power to demand immunity for co-defendants, potential codefendants, or others whom the Government might in its discretion wish to
prosecute would unacceptably alter the historic role of the Executive
Branch in criminal prosecutions. Of course, whatever power the

government possesses may not be exercised in a manner which denies the

defendant the due process guaranteed by the Fifth Amendment. . . . The
key questions, then, is whether appellant was denied a fair trial because of
the Government's refusal to seek immunity for defense witnesses.
Alessio, supra, 1082.
The court finds in the instant case that the appellant was not denied a fair
trial because of the Government's refusal to seek immunity for the defense
witnesses. The testimony sought by appellant went merely to the
credibility of Eugene Roberts' testimony. Moreover, other means existed
by which the defense could have challenged Roberts' testimony.
The trial was not rendered unfair because of the absence of the witness
Parente's testimony. Appellant was not, therefore, denied due process. The
trial court did not err in refusing to order the Government to immunize the
witness.
The third issue before the court is whether the testimony elicited from the
witness Gallucci by counsel for co-defendant Van Beaver denied
appellant a fair trial. William Gallucci was the Police Chief of West
Warwick, Rhode Island. Witness Roberts testified that he was friendly
with Gallucci and that while the fire investigation was going on he'd
spoken to him. The appellant contends that the net result of the
examination of Chief Gallucci by co-defendant's counsel was to give the
jury a poor impression of the Chief, thereby giving the Government's
principal witness Eugene Roberts greater credibility. The appellee
contends that appellant's claim of denial of a fair trial by the ineffective
assistance rendered by co-defendant's counsel is in effect a contention that
he was prejudiced by joinder of the trials where conflicting defense
strategies were asserted.
In the instant action, the appellant was tried jointly with co-conspirator,
Frank Van Beaver. Joinder of defendants is allowed under Rule 8(b) of the
Federal Rules of Criminal Procedure which states that: "Two or more
defendants may be charged in the same indictment or information if they
are alleged to have participated in the same act or transaction or in the
same series of acts or transactions constituting an offense or offenses." If,
however, the defendant will be prejudiced by joinder, he may move for
severance under Rule 14 of the Federal Rules of Criminal Procedure
which states that: "If it appears that a defendant or the Government is
prejudiced by a joinder of offenses or of defendants in an indictment or
information or by such joinder for trial together, the court may order an

election or separate trials of counts, grant a severance of defendants or

provide whatever other relief justice requires."

Rule 14 permits a severance despite the propriety of the original joinder, if it is

needed to avoid prejudice. 1 Wright and Miller 221, p. 432. The appellant
filed a motion to sever on November 24, 1978 which was subsequently denied.
(This motion was not based on the examination of Gallucci.) The grant or
denial of severance is clearly within the sound discretion of the trial court and
its action on such a motion will be overturned only when there has been a clear
abuse of such discretion. United States v. Becker, 585 F.2d 703 (4th Cir. 1978),
cert. denied, 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 50 (1979); United States
v. Jamar, 561 F.2d 1103, 1106 (4th Cir. 1977); United States v. Truslow, 530
F.2d 257, 261 (4th Cir. 1975); United States v. Gambrill, 449 F.2d 1148, 1159
(D.C.Cir. 1971).

The inconvenience and expense to the Government and witnesses of separate

trials must be weighed by the trial court against the prejudice to the defendants
inherent in a joint trial. The trial court's determination will not be disturbed
unless the denial of a severance deprives the defendants of a fair trial and
results in a miscarriage of justice. United States v. Becker, 585 F.2d 703, 706
(4th Cir. 1978), cert. denied, 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 50
(1979); United States v. Walsh, 544 F.2d 156, 160 (4th Cir. 1976), cert. denied,
429 U.S. 1093, 97 S.Ct. 1105, 51 L.Ed.2d 539 (1977); United States v.
Shuford, 454 F.2d 772, 775-76 (4th Cir. 1971).

The burden is upon the appellant to show affirmatively an abuse of discretion

on the part of the trial court in denying severance. Becker, supra, 707; United
States v. Crisona, 271 F.Supp. 150 (D.C.N.Y.1967). The appellant has not met
that burden in the instant action. The appellant was ably represented by
counsel. Appellant does not allege that his attorney did not provide competent
counsel, rather he questions the trial tactics of co-defendant's counsel.

"Antagonistic defenses do not per se require severance, even if the defendants

are hostile or attempt to cast the blame on each other." Becker, supra, 707;
United States v. Barber, 442 F.2d 517, 530 (3rd Cir. 1971), cert. denied, 404
U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1971). Rather, to obtain severance on
the ground of conflicting defenses, it must be demonstrated that the conflict is
so prejudicial that defenses are irreconcilable, and the jury will unjustifiably
infer that this conflict alone demonstrates that both are guilty. Becker, supra,
707; United States v. Robinson, 432 F.2d 1348, 1351 (D.C.Cir. 1970); United
States v. Ehrlichman, 546 F.2d 910 (D.C.Cir. 1976), cert. denied, 429 U.S.

1120, 97 S.Ct. 1155, 51 L.Ed.2d 570 (1977). The court finds that the conflict
present here is not so prejudicial, and that the trial court did not abuse its
discretion in failing to grant a severance. The testimony elicited from the
witness Gallucci by counsel for co-defendant Van Beaver did not deny
appellant a fair trial.
5

The fourth and final issue presented to this court is whether the district court
correctly denied the appellant's motions for judgment of acquittal and for a new
trial. The appellant moved at the close of the Government's case pursuant to
Rule 29 of the Rules of Criminal Procedure for a judgment of acquittal. After
the verdict, appellant moved for a new trial pursuant to Rule 33 of the Federal
Rules of Criminal Procedure. Appellant contends that the evidence was
insufficient to sustain his convictions for the conspiracy and the underlying
bankruptcy fraud. Appellant argues that, if he did anything, he burned some
debris and charred a building for money. Appellee contends that appellant was
an integral part of the conspiracy and specifically intended to further the
bankruptcy fraud when he agreed to burn, and then did burn the Depot
Warehouse.

In reviewing the evidence, it must be taken in the light most favorable to the
Government. United States v. Doran, 483 F.2d 369, 372 (1st Cir. 1973), cert.
denied, 416 U.S. 906, 94 S.Ct. 1612, 40 L.Ed.2d 111 (1974); United States v.
Brown, 495 F.2d 593 (1st Cir. 1974), cert. denied, 419 U.S. 965, 95 S.Ct. 226,
42 L.Ed.2d 179 (1974). A verdict must be sustained if there is substantial
evidence, viewed in the light most favorable to the Government to uphold the
jury's decision. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86
L.Ed. 680 (1942); Burks v. United States, 437 U.S. 1, 17-18, 98 S.Ct. 2141,
2150-51, 57 L.Ed.2d 1 (1978). And it is clear that "a conviction can rest on the
uncorroborated testimony of a co-defendant or accomplice". United States v.
Micciche, 525 F.2d 544, 546 (8th Cir. 1975), cert. denied, 424 U.S. 966, 96
S.Ct. 1460, 47 L.Ed.2d 732 (1976), rehearing denied, 425 U.S. 985, 96 S.Ct.
2193, 48 L.Ed.2d 810 (1976), quoting United States v. Guy, 456 F.2d 1157,
1161 (8th Cir. 1972), cert. denied, 409 U.S. 896, 93 S.Ct. 136, 34 L.Ed.2d 153
(1972), rehearing denied, 409 U.S. 1002, 93 S.Ct. 327, 34 L.Ed.2d 263 (1972);
Wood v. United States, 361 F.2d 802 (8th Cir. 1966), cert. denied, 385 U.S.
978, 87 S.Ct. 520, 17 L.Ed.2d 439 (1966).

The court finds that there is substantial evidence viewed in the light most
favorable to the Government to uphold the jury's decision. Direct evidence was
introduced through the testimony of co-conspirator, Eugene S. Roberts, that he
had told the appellant about the bankruptcy fraud scheme stating "I'm going to
take a dive and I've got to cover up my inventory losses."

Substantial circumstantial evidence was also introduced showing that the arson
was knowingly committed in furtherance of the bankruptcy fraud conspiracy.
The trial court thus did not err in denying appellant's motion for a judgment of
acquittal and for a new trial.

The court affirms the trial court on the four issues presented to it today.

10

Judgment affirmed.

Of the District of New Hampshire, sitting by designation