

                     [NOT FOR PUBLICATION] 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

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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.

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