United States v. Nason

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1166

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL NASON,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

Before

Torruella, Circuit Judge,

Bownes, Senior Circuit Judge,

and Cyr, Circuit Judge.

J. Michael McGuinness, by Appointment of the Court, with

whom McGuinness & Parlagreco, was on brief for appellant.

Margaret D. McGaughey, Assistant United States Attorney,

with whom Jay P. McCloskey, United States Attorney, was on brief

for appellee.

November 2, 1993

TORRUELLA, Circuit Judge. Appellant Michael Nason was

charged with conspiracy to distribute marijuana in violation of

21 U.S.C. 841(a)(1) & 846 and possession of marijuana in

violation of 21 U.S.C. 844(a). Following a trial in the

district court, the jury found him guilty as charged. Nason

requests that this court reverse his conviction and remand his

case for a new trial. On appeal, Nason argues that: (1) the

trial court erred in denying his motion for severance of his

trial pursuant to Federal Rule of Criminal Procedure 14; (2) this

error deprived him of the ability to confront and cross-examine

his codefendants in violation of his Sixth Amendment rights; (3)

the trial court's instructions regarding conspiracy constituted

reversible error; (4) the trial court erred regarding the

admission of certain pieces of evidence seized; (5) the

cumulative effect of the trial court's errors constituted

prejudicial error depriving him of due process and a fair trial;

and (6) the pursuit of appellant for the purpose of incriminating

him violated his due process rights. Finding appellant's claims

to be without merit, we affirm.

BACKGROUND

The government charged Michael Nason, Ellen Finch and

David Finch with conspiracy to distribute marijuana.1 In

addition, the government alleged that Nason conspired to

distribute marijuana with numerous other persons who were not

indicted. The Maine Drug Enforcement Agency ("MDEA")

1 The jury acquitted Ellen and David Finch of these charges.

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investigation that lead to Nason's conviction focused on Room 332

of the Scottish Inn Motel in Bangor, Maine.

Between May 23 and May 29, 1992, Room 332 was

registered to Nason's girlfriend, Merry Lane. Shortly

thereafter, a desk clerk added Nason's name to the registration

card so that his calls could be directed to the room. Nason

subsequently received telephone calls in Room 332 and supplies

were delivered by the motel maid to him in Room 332. Many

individuals visited Room 332, staying for only five to ten

minutes, and a black Cadillac was observed in front of the room.

The police were notified of this suspicious behavior.

When officers reviewed the motel's telephone records,

they found that the occupants of Room 332 were calling the

telephone numbers of known drug dealers. Officers then decided

to establish surveillance of the motel room and Nason. As a part

of the investigation, the government enlisted the assistance of

drug trafficker Gabriel Zappia in exchange for a plea agreement.

Zappia asked his friend, Gilbert Shubert, to arrange for the

purchase of marijuana from Nason. In response to Shubert's

request, Nason contacted a supplier in order to obtain the

marijuana.

Nason arranged to sell Zappia the marijuana on May 27,

1992. Nason, Shubert and Zappia went to pick up the marijuana in

Zappia's car. Because Nason suspected police surveillance, and

Zappia feared that the police would not observe the transaction

as previously planned, the two postponed the sale. During the

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interim, Shubert began to cooperate with the police.

Shubert and Nason met at the Ramada Inn on May 28 to

complete the drug transaction. Nason told Shubert that he had

"the dope" and that he would call his supplier who would deliver

it. Nason said that if he had not been serious he would not have

brought along white garbage bags. As they were leaving the

Ramada Inn, the two men were arrested. At the time of arrest,

Nason possessed two white garbage bags, a package of marijuana,

and $980 in cash.

Nason had arrived at the Ramada Inn in a black

Cadillac. After he got out of the Cadillac, the driver of the

car drove to the Howard Johnson's nearby and parked facing the

Ramada Inn. When Nason was arrested, the driver of the black

Cadillac attempted to back out of the motel and ran into a police

car. David and Ellen Finch were in the Cadillac. Both were

arrested.

Nason had been at Room 332 on May 26 and again on May

28, shortly before his arrest. Inside the room, police found a

suitcase containing a duffel bag with marijuana residue and a

photo album with Nason's name on it. Other items found in the

room included scales, two sandwich bags containing marijuana,

empty sandwich bags, a programmable police scanner, and a

cardboard box with Nason's name on it containing papers and

photographs.

DENIAL OF MOTION FOR SEVERANCE

The decision to order severance of a trial pursuant to

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Federal Rule of Criminal Procedure 14 is a matter within the

discretion of the trial court. United States v. Sabatino, 943

F.2d 94, 96 (1st Cir. 1991). We reverse the decision to deny a

motion for severance only upon a showing of strong prejudice,

demonstrating a manifest abuse of discretion that deprived the

defendant of a fair trial. United States v. Argencourt, 996 F.2d

1300, 1304 (1st Cir. 1993).

Pursuant to Federal Rule of Criminal Procedure 8(b),

defendants may be tried together "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."

See Sabatino, 943 F.2d at 96 (quoting United States v.

Sutherland, 929 F.2d 765, 778 (1st Cir. 1991), cert. denied, 116

L.Ed.2d 56 (1991)). In this case, Nason, David Finch and Ellen

Finch were alleged to have participated in the same acts

constituting the offenses, hence, they were properly joined for

trial. Where a defendant requests a severance to secure the

testimony of a codefendant, he must comply with the requirements

set forth in United States v. Drougas, 748 F.2d 8, 19 (1st Cir.

1984):

the movant must demonstrate: (1) a bona
fide need for the testimony; (2) the
substance of the testimony; (3) its
exculpatory nature and effect; and (4)
that the co-defendant will in fact
testify if the cases are severed . . . .

Given such a showing, the court should
(1) examine the significance of the
testimony in relation to the defendant's
theory of defense; (2) consider whether
the testimony would be subject to

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substantial damaging impeachment; (3)
assess the counter arguments of judicial
economy; and (4) give weight to the
timeliness of the motion.

Id. at 19; see also United States v. Font-Ram rez, 944 F.2d 42,

45 (1st Cir. 1991), cert. denied, 117 L.Ed.2d 122 (1992).

Nason alleged that his co-defendants, Ellen and David

Finch, would testify that there was no conspiracy among the

three. Standing alone, however, such an allegation is

insufficient to entitle the defendant to a severance. Nason did

not show, as required, that either David or Ellen Finch would in

fact testify for Nason at a separate trial. He did not file an

affidavit from either David or Ellen to that effect. See

Drougas, 748 F.2d at 19; see also Font-Ram rez, 944 F.2d at 45.

Nor did counsel for the Finchs represent that either David or

Ellen Finch would testify for Nason at a separate trial. See

DeLuna, 763 F.2d at 920 (counsel for co-defendant stating in

camera that client would testify if trials were severed is

sufficient to show that co-defendant is likely to testify).

Furthermore, Nason did not show, as required, that the Finchs'

testimony would exculpate him. United States v. Perkins, 926

F.2d 1271, 1281 (1st Cir. 1991) (citing United States v. DeLuna,

763 F.2d 897, 920 (8th Cir. 1985), cert. denied, 474 U.S. 980

(1985)); see also Font-Ram rez, 944 F.2d at 45 (denial of motion

for severance was not an abuse of discretion where co-defendant's

affidavit in support of the motion did not provide the substance

of the testimony and did not explain why the testimony was

necessary or beneficial to the defense). The evidence

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demonstrated that Nason conspired with a number of people other

than David and Ellen Finch. Other potential conspirators

included Shubert, Merry Lane, and the supplier whom Nason

contacted. Thus, even without a finding of a conspiratorial

agreement with the Finchs, the government still had a strong

conspiracy case against Nason. This conclusion is evident from

the outcome of the joint trial, as the jury acquitted both Ellen

and David Finch yet convicted Nason of conspiracy.

Since Nason did not make the preliminary showing that

encompasses the first four factors of the severance test set out

in Drougas, we need not examine whether the other criteria were

met. We therefore hold that the judge below did not abuse his

discretion in denying Nason's motion for severance.

SUFFICIENCY OF THE EVIDENCE

On appeal, we look at the evidence in the light most

favorable to the prosecution. United States v. Sabatino, 943

F.2d at 97 (citing United States v. MacDonald & Watson Oil Co.,

933 F.2d 35, 40 (1st Cir. 1991)). We draw all legitimate

inferences and resolve all credibility conflicts in favor of the

prosecution. Id. We will uphold the verdict if any reasonable

trier of fact could have found the elements of the offense beyond

a reasonable doubt. Id. (citing United States v. Mena, 933 F.2d

19, 23 (1st Cir. 1991)).

Nason argues that the trial court erred in not

dismissing the charges against him at the close of the

government's case due to insufficient evidence. In essence, he

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argues that the evidence of conspiracy is inadequate because

there was no second person who conspired with Nason to either

distribute or possess marijuana. The record does not support

this argument.

A defendant can be indicted and convicted even if the

names of his co-conspirators are unknown, as long as the

government presents evidence of an agreement between two or more

persons. United States v. Rey, 923 F.2d 1217, 1222 (6th Cir.

1991); see also United States v. Pe agar cano-Soler, 911 F.2d

833, 840 n.5 (1st Cir. 1990). The essence of a conspiracy is the

existence of the conspiracy agreement, not the identity of those

who agree. Rey, 923 F.2d at 1222 (citations omitted).

At trial, sufficient evidence was presented from which

a jury could conclude that a conspiracy existed. Testimony was

given about other persons with whom the jury could have concluded

that Nason entered an agreement to violate the law. These include

Nason's girlfriend, Merry Lane, who rented the room that was the

focus of the drug activity and in which the agents found

marijuana; Shubert, a potential drug purchaser who later decided

to cooperate with the police; and Nason's drug supplier, whom

Nason telephoned to arrange the drug transaction. The jury also

could have found that the unknown occupants of several cars, who

entered Room 332, were co-conspirators. See United States v.

Moree, 897 F.2d 1329, 1332 (5th Cir. 1990) (evidence of agreement

with unnamed contacts, among others, was sufficient evidence for

conspiracy conviction as government produced sufficient evidence

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to form a rational basis for the jury's adjudications).

SIXTH AMENDMENT CLAIMS

Nason argues that testimony by government agent Antone

based on his interview of codefendant Ellen Finch violated his

right of cross-examination and Sixth Amendment right to confront

witnesses against him because Nason was not able to confront and

cross-examine Ellen Finch. U.S. Const. amend. VI.

Agent Antone's testimony concerned a note, purportedly

written by Nason, that was found in the Finchs' car at the time

of the arrests. Nason failed to object when Agent Antone

testified about the note. In the absence of a timely objection

our review is limited to examining the record for plain error,

and we will "correct only 'particularly egregious errors' . . .

that 'seriously affect the fairness, integrity or public

reputation of judicial proceedings.'" United States v. Young,

470 U.S. 1, 15, 105 S. Ct. 1038, 1046, 84 L.Ed.2d 1 (1985)

(quoting United States v. Frady, 456 U.S. 152, 163, 102 S. Ct.

1584, 1592, 71 L.Ed.2d 816 (1982)); United States v. Munson, 819

F.2d 337, 340 (1st Cir. 1987).

Agent Antone's testimony was based on his post arrest

interview of Ellen Finch during which she indicated that when she

and her husband drove Nason to the Ramada Inn, she gave Nason a

piece of paper and a pen. She gave Nason a second pen because

the first one did not work. She did not see Nason write on the

paper. When questioned about a piece of paper found in her car,

she indicated that the writing on the paper was not hers and that

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she did not know whose it was.

There was no confrontation clause violation. Ellen

Finch's statements to Agent Antone did not have the "powerfully

incriminating effect of one accomplice pointing the finger

directly at another, without subjecting [her]self to cross-

examination," amounting to a violation of the Sixth Amendment.

United States v. Barnett, 989 F.2d 546, 558 (1st Cir. 1993),

cert. denied, 62 U.S.L.W. 33247 (1993) (internal quotations and

citations omitted); see also Bruton v. United States, 391 U.S.

123, 135 (1968). Hence, we find no plain error in admission of

the testimony by Agent Antone regarding the note found in Ellen

Finch's car.

Nason further argues that the introduction, over his

objection, of testimony of MDEA agent Daryl Crandale, that Ellen

Finch had told him that she knew Nason had been in trouble with

drugs before, also deprived him of his Sixth Amendment right to

confrontation. We find this argument to be without merit.

Following the testimony of Agent Crandale, the district

court promptly gave a limiting instruction that confined the

jury's consideration of that evidence to Ellen Finch's state of

mind. This court has previously indicated that limiting

instructions provide an adequate safeguard against evidentiary

spill-over. United States v. Doherty, 867 F.2d 47, 63 (1st Cir.

1989), cert. denied, 412 U.S. 918 (1989) (citing Drougas, 748

F.2d at 13). In any event, any error in admitting Ellen's

statement was harmless. See Manocchio v. Moran, 919 F.2d 770,

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783-84 (1st Cir. 1990), cert. denied, 114 L.Ed.2d 89 (1991)

(subjecting material which creates Sixth Amendment Confrontation

Clause problems to harmless error analysis). Other evidence in

the record included recorded conversations between Nason and the

undercover informant in which Nason boasts about his twenty years

of drug dealings and freedom from arrests. This evidence was

substantially more damaging to Nason than was Ellen's comment.

JURY INSTRUCTIONS

By failing to object to the jury instructions after the

charge was given, Nason waived any such objections. Wartski v.

Bedford, 926 F.2d 11, 22 (1st Cir. 1991). Although Nason filed

requests to charge before trial began and noted objections at the

chambers conference regarding the court's proposed instruction,

he did not object to the instructions after the charge was given.

An objection noted in chambers before delivery does not preserve

for review issues relating to the charge. United States v.

Edilberto, 950 F.2d 1, 4 (1st Cir. 1991). Where a party has

failed to preserve a claim for error by proper objection below,

this court will review the issue on appeal only for plain error.

United States v. McMahon, 938 F.2d 1501, 1510 (1st Cir. 1991).

Thus, reversal will follow only in "exceptional cases or under

peculiar circumstances to prevent a clear miscarriage of

justice." United States v. Griffin, 818 F.2d 97, 100 (1st Cir.

1987), cert. denied, 484 U.S. 844 (1987) (quotation omitted).

This court has held that the failure to give a

requested jury instruction is reversible error only if the

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requested instruction is substantially correct, was not

substantially covered in the charge actually given, and covers an

important point in the trial so that the failure to give it

seriously impaired the defendant's ability to present a given

defense. United States v. Newton, 891 F.2d 944, 949 (1st Cir.

1989). In describing the elements of a conspiracy, the district

court told the jury:

you must be convinced that the government
has proved . . . beyond a reasonable
doubt . . . the existence of an
agreement. The government must show that
some time between May 21, 1992, and May
28, 1992, the agreement specified in the
indictment, and not some other agreement
or agreements, existed between at least
two people, not including government
agents, to commit the enumerated federal
crime. This does not have to be a formal
agreement or plan in which everyone who
is involved sat down together and worked
out the details. It is enough that the
government prove beyond a reasonable
doubt that there was a common agreement
among those who were involved to commit
the crime of distributing marijuana . . .
.

It is not necessary to find that the
individual defendants agreed specifically
to or knew about all the details of the
crime, but the government must prove that
the defendants knew the essential
features and the general aims of the
venture . . . .

[T]he government must prove . . . there
was an agreement to commit the crime . .
. and that the defendant intentionally
joined in that agreement.

The court's instructions substantially covered the

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legal concepts requested by Nason in his proposed instructions.2

Having covered the necessary and requested principles of law, the

district court did not err.

Nason also requested an instruction on withdrawal from

a conspiracy.3 A defendant is entitled to instructions on his

theory of defense if he produces some evidence to support all

2 Nason's first two proposed instructions were as follows:

#1. As it takes two to conspire, there
can be no conspiracy with a government
informer who secretly intends to
frustrate the conspiracy. United States

v. Debright, 742 F.2d 1196, 1198-1200

(9th Cir. 1984).

#2. Any conspiracy "agreement" must be
complete. There must exist proof beyond
a reasonable doubt that there existed a
"meeting of the minds" between the
defendant and an alleged co-conspirator.
The jury must consider whether a
Defendant's insistence on certain
conditions precedent, where those
conditions are unacceptable to his would-
be co-conspirators, prevented a "meeting
of the minds" so that no complete
agreement existed. United States v.

Melchor-L pez, 627 F.2d 886 (9th Cir.

1980).

3 Nason proposed the following instruction:

#3. An alleged conspirator may withdraw
from membership in the conspiracy.
There must exist evidence that the
Defendant abandoned, withdrew from, or
disavowed the conspiracy or defeated its
purpose. Once evidence of withdrawal has
been presented, the government must
disprove withdrawal beyond a reasonable
doubt. Hyde v. United States, 225 U.S.

347 (1912); United States v. Krasn, 614

F.2d 1229 (9th Cir. 1980); United States

v. Read, 658 F.2d 1225 (7th Cir. 1981).

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elements of his theory. See United States v. Panet-Collazo, 960

F.2d 256, 259 (1st Cir. 1992), cert. denied, 121 L.Ed.2d 158

(1992). In order to withdraw, a conspirator must:

act affirmatively either to defeat or
disavow the purposes of the conspiracy.
Typically, there must be evidence either
of a full confession to authorities or a
communication by the accused to his co-
conspirators that he has abandoned the
enterprise and its goals.

United States v. Juodakis, 834 F.2d 1099, 1102 (1st Cir. 1987)

(citations omitted). This court has held that "[m]ere cessation

of activity in furtherance of [a] conspiracy does not constitute

withdrawal." Juodakis, 834 F.2d at 1102 (citations omitted).

Nason's refusal to agree to Shubert's proposed terms of the sale,

after which he got up and left the Ramada Inn, is not sufficient

evidence of withdrawal to require an instruction on that defense.

Thus, we find that the trial court's refusal to give Nason's

proposed instruction on withdrawal did not constitute plain

error.

EVIDENTIARY ISSUES

Appellant argues that the trial court erred in

admitting into evidence items such as scales, bags, and baggies,

seized from Room 332 of the Scottish Inn, which was registered to

his girlfriend, Merry Lane. He argues that there was no evidence

that he occupied Room 332 and that the evidence was not

sufficiently linked to Nason to make its admission permissible.

In essence, he argues that the admission into evidence of items

seized from Room 332 was irrelevant, highly prejudicial and in

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violation of Rule 403 of the Rules of Evidence.

The threshold for relevance is very low under Federal

Rule of Evidence 401. United States v. Rodr guez-Cort s, 949

F.2d 532, 542 (1st Cir. 1991). Evidence is relevant under Rule

401 if it has "any tendency to make the existence of any fact

that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence."

Fed. R. Evid. 401. Even where evidence is relevant, Rule 403

permits the district court, in its discretion, to exclude

evidence where the "probative value is substantially outweighed

by the danger of unfair prejudice." Fed. R. Evid. 403,4 see

also United States v. Williams, 985 F.2d 634, 637 (1st Cir.

1993); United States v. Gonz lez-S nchez, 825 F.2d 572, 580 (1st

Cir. 1987), cert. denied, 484 U.S. 989 (1987). We review the

district court's weighing of the evidence for abuse of

discretion. United States v. Walters, 904 F.2d 765, 768 (1st

Cir. 1990); Gonz lez-S nchez, 825 F.2d at 580.

Although Room 332 was registered to Merry Lane, Nason

was strongly connected to it. Nason's name was noted on the

registration card to the motel room so that incoming calls could

4 Fed. R. Evid. 403 states:

Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger of
unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of
time, or needless presentation of
cumulative evidence.

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be directed to him. In fact, a number of people called Nason at

the motel room. Nason gave Shubert the motel's telephone number

as a place to reach him and Shubert called Nason at the motel to

discuss Nason's interest in reviving the deal. Nason was seen at

Room 332 by the maid, two custodians, the owner of the motel, and

the police officers who photographed him. Furthermore, inside

the room, inside a suitcase, beside a duffle bag containing

marijuana residue, was an album that contained photographs of

Nason and had Nason's name written on it. The above factors

indicated that Nason had been in the room with the marijuana and

made the evidence found in the room relevant to his participation

in a conspiracy. The objects found in Room 332 are also

probative of the conspirators' intent to distribute marijuana and

were not likely to suggest a decision on an improper basis to the

jury. Although the evidence may be damaging to Nason's case, it

is not unfairly prejudicial. See Rey, 923 F.2d at 1222

(admission of electronic equipment and books not unfairly

prejudicial in trial for drug charge). The district court did

not abuse its discretion in admitting that evidence.

MISCELLANEOUS

Appellant raises two further arguments that were not

raised before the district court. First, he argues that, by

targeting him for investigation, law enforcement agents violated

his due process rights. This court has previously ruled that:

arguments not seasonably addressed to the
trial court may not be raised for the
first time in an appellate venue . . . .
A criminal defendant, dissatisfied with

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the district court's rulings . . . yet
persuaded that his original arguments
lacked merit, cannot switch horses mid-
stream in hopes of locating a swifter
steed.

See United States v. Deitz, 950 F.2d 50, 55 (1st Cir. 1991)

(citations omitted).

Second, appellant argues that his sentence, premised

upon career offender status, is invalid and that the sentence

should therefore be vacated and the matter remanded for

imposition of sentence. See United States v. Price, 990 F.2d

1367 (D.C. Cir. 1993) (career offender guidelines do not apply to

conspiracy to commit controlled substance crimes). Nason made

this second argument in a letter filed pursuant to Federal Rule

of Appellate Procedure 28(j). He did not make this argument in

his brief, and "a letter submitted pursuant to Rule 28(j) cannot

raise a new issue." United States v. LaPierre, 998 F.2d 1460,

1466 n.5 (9th Cir. 1993), amended, 1993 U.S. App. LEXIS 20872

(9th Cir. Aug. 19, 1993), (citing Brady v. Gebbie, 859 F.2d 1543,

1557 n.13 (9th Cir. 1988)).

Affirmed.

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