
USCA1 Opinion

	




                               [NOT FOR PUBLICATION]                                 ____________________          No. 96-1353                              UNITED STATES OF AMERICA,                                      Appellee,                                         v.                                   KENNETH RAPOSA,                                Defendant, Appellant.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ernest C. Torres, U.S. District Judge]                                ____________________                                       Before                                Selya, Circuit Judge,                       Coffin and Cyr, Senior Circuit Judges.                                ____________________               Edward                      J.                         Romano, by Appointment of the Court, for appellant.               Margaret E. Curran,  Assistant United States Attorney,  with          whom Sheldon Whitehouse, United States Attorney, James H. Leavey,          Assistant                    United States Attorney, and Kenneth P. Madden, Assistant          United States Attorney, were on brief for appellee.                                ____________________                                    July 3, 1997                                 ___________________               Per Curiam.  Appellant was convicted, after a jury trial, of          participating  in the  collection of  an extension  of credit  by          extortionate                       means,                             in                                violation of 18 U.S.C. SS 894, 2.  He raises          three issues on appeal.  At this juncture, after a hard and  ably          fought trial below, no issue merits extended discussion.               Appellant first challenges the sufficiency of the  evidence.          The              evidence                       as the jury could have found it was that (1) Duxbury,          the              key                 government                            witness, was confronted by co-defendant Ouimette          and              accused                      of                        shaking                                down a friend; (2) Duxbury's response earned          him a beating by a third defendant, Gellerman, who pleaded guilty          and              testified as a cooperating witness at trial; (3) Ouimette then          grabbed Duxbury by the  throat and announced that, as a  penalty,          Duxbury must pay $5,000  by the following night; (4) after  this,          Ouimette slapped Duxbury in the face and appellant kicked Duxbury          in the  leg; and  (5) most importantly,  just before Duxbury  was          escorted out of the room, appellant raised his hand, and pointing          at             Duxbury,                      said,                           "Do                               not forget the five thousand dollars tomorrow          night."               Appellant                         asserted flaws and inconsistencies in the testimony          of the various witnesses, but this comes down to a question as to          which                witness                        the                           jury                                believed.  There is nothing to set this case          apart from the general deference due a jury's verdict.  Not  only          was there  Duxbury's unshaken testimony,  but the  jury also  had          before  it nonverbal  evidence  of  appellant's  kicks  following          Ouimette's announcement of the penalty.                                         -2-               The second issue  is whether the  district court abused  its          discretion by refusing  the defense a  continuance to obtain  the          testimony                    of                       a                        polygraph                                  examiner whose testing allegedly supported          appellant's assertion that he had not reminded Duxbury about  the          $5,000.  The colloquy below and the briefs on appeal discuss many          facets of polygraph test admissibility, but we need rely on  only          one ground particular to this case.               A prior counsel for appellant, before his removal to avoid a          conflict based on representation of a co-defendant, had  obtained          the  test from  his expert.   The  attorney had  proposed to  the          government that  it secure  an impartial  examiner to  administer          another test,  "provided that you agree  that the results of  the          polygraph                    examination will be admitted at the trial of this matter          on the  issue of  Mr. Raposa's credibility,  should he choose  to          testify at trial."  (Emphasis added.)  As it happened,  appellant          decided not to testify  and the precondition to admission of  the          results of the examination therefore did not materialize.               Under                     these                           circumstances, we cannot fault the district court          for              refusing                       a mid-trial continuance for the defense to locate the          expert                 so                    that                        he                           could                                 attempt to justify admission of his report.          Indeed,                  we                    read                         appellant's brief on appeal as implicitly conceding          this with  the following  language:   "In the  present case,  the          polygraph evidence  would  directly corroborate  the  defendant's          testimony, if he chose to testify, regarding specific fact  [sic]          alleged by the government  and denied by the defendant which  the          jury               must                    determine . . . ."   It is also worthy of note that this                                         -3-          language                   is                      identical to that used in a "Motion to Admit Polygraph          Evidence"                    filed                          in                            the                                district court by appellant's trial counsel.               The third issue  concerns the court's refusal to strike  the          testimony  of a dancer  who stated that  appellant had asked  her          "something like, are you a cop  or something."  She was not  sure          that  this was  said on  the  day after  the basic  incident  and          appellant's                      counsel moved to strike on the ground that the witness          did not remember on which day the statement was made.  The  court          allowed                  the                      testimony to stand, saying that its weight was for the          jury.               We                  cannot                         say                            that                                 this                                      was an abuse of discretion.  There was          no objection that this was impermissible character evidence,  nor          did this undercut appellant's defense that he did not participate          in an extortionate activity (as opposed to some type of  criminal          activity, such as an assault).               Affirmed.                                         -4-
