## Facts

- Robert S. Ciresi, a North Providence attorney, represented real-estate developers seeking favorable zoning decisions from the town council.
- In 2008–2009, FBI investigators used cooperating councilman Paul Caranci to record conversations involving councilman John Zambarano and others concerning payments for zoning approvals.
- In the “supermarket” matter, recordings captured Zambarano describing a $25,000 payment from a developer in exchange for rezoning approval and portraying Ciresi as the intermediary who arranged the payoff.
- The council approved the rezoning; Zambarano later distributed money and discussed repeating the same approach on future projects.
- In the later “mill” matter, recordings captured Zambarano stating that Ciresi was working on another payoff related to rezoning, and later stating that Ciresi was “out” of the final transaction even though the payoff and approval proceeded.
- A federal jury convicted Ciresi of bribery, extortion, and conspiracy.
- Over objection, the district court admitted Zambarano’s recorded statements under Federal Rule of Evidence 801(d)(2)(E) using provisional admission followed by an end-of-evidence finding that the Rule’s requirements were met.
- The district court also treated both projects as relevant conduct when calculating the advisory Sentencing Guidelines range.

## Issues

1. Whether Zambarano’s recorded statements to Caranci were admissible under Federal Rule of Evidence 801(d)(2)(E) as statements by a co-conspirator made during and in furtherance of the conspiracy, including whether the two projects reflected one conspiracy and whether Ciresi withdrew as to the mill project.
2. Whether admitting the recorded statements violated the Sixth Amendment Confrontation Clause because Zambarano did not testify.
3. Whether the district court erred in applying Sentencing Guidelines calculations and enhancements based on the scope and value of the bribery conduct.

## Decision

- The First Circuit affirmed Ciresi’s convictions and sentence.
- The court held the statements were properly admitted under Rule 801(d)(2)(E) because the evidence supported a single continuing vote-selling conspiracy, Ciresi did not prove withdrawal, and the statements served conspiratorial functions (e.g., coordination and reassurance).
- The court held the Confrontation Clause was not violated because the statements were non-testimonial communications made to an apparent co-conspirator during the scheme.
- The court upheld the Guidelines calculations, including treating both projects as relevant conduct, finding no reversible error.

## Legal Principles

- A statement is admissible under Rule 801(d)(2)(E) if the government shows by a preponderance of the evidence that (1) a conspiracy existed, (2) the declarant and defendant were members, and (3) the statement was made during and in furtherance of the conspiracy.
- Separate criminal episodes may be treated as a single conspiracy when they share core participants, a common objective, and a consistent method of operation.
- Withdrawal from a conspiracy requires an affirmative act that clearly disavows or defeats the conspiracy’s purpose; inactivity or a co-conspirator’s assertion that a participant is “out” is insufficient without proof of affirmative renunciation.
- “In furtherance” includes statements that update co-conspirators on progress, maintain trust, encourage continued participation, or facilitate planning, even if they recount past events.
- Co-conspirator statements admitted under Rule 801(d)(2)(E) do not violate the Confrontation Clause when they are non-testimonial, including statements made in the ordinary course of the scheme to someone the declarant believes is a fellow participant.
- Sentencing courts may treat conduct as relevant under the Guidelines when it is part of the same course of conduct or common scheme or plan supported by record evidence.

## Conclusion

The First Circuit left intact Ciresi’s corruption convictions and sentence, holding that recorded co-conspirator statements describing the bribery arrangements were admissible as non-hearsay and non-testimonial, that Ciresi failed to prove withdrawal from the ongoing conspiracy, and that the district court’s Guidelines-based sentencing determinations were supported by the evidence.


United States v. Ciresi, 697 F.3d 19 (1st Cir. 2012)