UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1056
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM A. TWITTY,
Defendant, Appellant.
ERRATA SHEET
ERRATA SHEET
The opinion of this court issued December 28, 1995, is amended as
follows:
Page 3, line 22: Change "July 1990" to "July 1991".
Page 6, second full paragraph, line 9: Insert the word "not"
after the word "does".
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1056
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM A. TWITTY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Circuit Judge,
Aldrich and Coffin, Senior Circuit Judges.
Evan Slavitt, by Appointment of the Court, with whom Mary P.
Murray, and Hinckley, Allen & Snyder were on briefs for appellant.
Michael J. Pelgro, Assistant United States Attorney, Organized
Crime Drug Enforcement Task Force, with whom Donald K. Stern, United
States Attorney, was on brief for the United States.
December 28, 1995
BOUDIN, Circuit Judge. By a superseding indictment,
William Twitty was charged with four others with conspiring
to violate federal firearms laws by unlawfully purchasing,
possessing and selling handguns. 18 U.S.C. 371. Twitty
was also named in two other counts: one for unlawfully
dealing in firearms, id. 922(a)(1)(A), and the other for
unlawfully possessing handguns with obliterated serial
numbers, id. 922(k). The events alleged took place in the
Boston area from 1990 to 1993.
Prior to trial, three co-defendants--Erik Martin, his
wife Stephanie Martin, and Twitty's half-brother Stephen
Jordan--pled guilty. The last co-defendant, Pierre Cameron,
pled guilty after the jury was selected for his joint trial
with Twitty. The evidence against Twitty, taken in the light
most favorable to the verdict, United States v. Brien, 59
F.3d 274, 275 (1st Cir.), cert. denied, 116 S. Ct. 401
(1995), permitted the jury to find the following facts (which
we supplement, as required, in discussing individual issues).
In January 1990, Cameron assisted Erik Martin in
securing a federal firearms license, enabling the latter to
order firearms wholesale through the mails and to deal in
firearms. Twitty and the Martins were very close friends.
Beginning in March 1990, Erik Martin used his federal license
and local permits to acquire handguns for Twitty, Cameron,
and later Jordan. Stephanie Martin was involved primarily in
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receiving the shipments and, in one instance, in placing an
order at Twitty's behest when Erik Martin was unavailable.
Twitty introduced Jordan to Erik Martin in September
1990. While Jordan often dealt directly with Erik Martin,
Twitty and Jordan were involved with each other on certain
occasions. For example, Twitty delivered purchase money from
Jordan to Martin in one instance in late 1990. In the same
period, Twitty drove Jordan and Erik Martin to a store where
Jordan bought a grinding device, later used to obliterate
serial numbers from the guns and stored for a time in
Twitty's basement.
In early 1991, shortly after Jordan's apartment was
raided by police, Twitty began to order handguns through Erik
Martin on a large scale. Twitty acquired a beeper. Despite
having a very low paying job, Twitty began to show signs of
unusual prosperity, buying new clothes, jewelry, and cars and
making large deposits in a new bank account. There was
evidence, including police seizures of firearms, that the
guns ordered by Twitty were being resold illegally in the
Boston area and that Twitty and Erik Martin were obliterating
the serial numbers. Cameron also bought guns from Erik
Martin but in much smaller numbers.
In July 1991, federal agents tracing a recovered firearm
sought to interview Erik Martin. The last gun shipment to
Martin arrived on July 10 and that same day he conferred with
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Twitty about the federal inquiry. Over the next several
days, Twitty sought to destroy evidence of the transactions
at the Martin house and asked Martin to have Cameron make up
phony paperwork to help conceal the disposition of the
weapons. Twitty also told Erik Martin to file a false police
report that the latter's records, required to be kept by him
as a licensed dealer, had been stolen.
At the end of July, Twitty left his home and his job
without explanation. Erik Martin met him by accident in
November 1991 and they discussed the continuing federal
investigation, Twitty promising to help Martin "straighten
the whole matter out" so that Martin could avoid jail. In
December 1991, Twitty was interviewed by federal agents and
denied knowledge of the firearms conspiracy. Shortly after
his arrest, in September 1993, Twitty gave handwriting
exemplars that were intentionally distorted.
At trial, Twitty did not contest the existence of a
firearms conspiracy, virtually conceding that a conspiracy
existed among Erik Martin and others. Instead, Twitty denied
his own participation in the conspiracy and sought to
undermine the credibility of Erik Martin, who provided much
of the direct evidence of Twitty's involvement. The jury
convicted Twitty on all three counts. He was later sentenced
to 97 months' imprisonment and now appeals both his
conviction and his sentence.
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1. In this court, Twitty's boldest argument is to
claim, essentially for the first time, that the evidence
showed three different conspiracies (between Erik Martin and,
respectively, Cameron, Twitty, and Jordan). Twitty agrees
now that the evidence was sufficient to show his own
involvement but only in the narrow conspiracy between him and
Erik Martin. And he argues that he was prejudiced by the
admission of evidence that related solely to the other two
supposedly separate conspiracies, those between Martin and
Cameron and between Martin and Jordan.
Twitty's argument is a common one in conspiracy appeals.
Whenever a conspiracy involves successive transactions and
multiple players, it is usually possible to slice the
enterprise into discrete portions. Even a single conspiracy
is likely to involve subsidiary agreements relating to
different individuals and transactions. And more often than
not, none of the agreements is explicit; agreement is
inferred from conduct; and the conceptual tests used to
distinguish between one conspiracy and many are not sharp
edged. See, e.g., United States v. Drougas, 748 F.2d 8, 17
(1st Cir. 1984).
In this case, the government offers a number of answers
to Twitty's argument, including a claim that he waived it,
but we think that taken together two points are sufficient.
First, ample evidence linked Twitty and Jordan to single
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conspiracy with the Martins. Twitty introduced Jordan to
Erik Martin; conveyed money from Jordan to Martin; traveled
with both when Jordan purchased a grinding device that could
obliterate serial numbers; pressed Martin to expand
operations after Martin lost some of Jordan's gun-purchasing
money; discussed gun deliveries with Jordan; and stayed in
continuing touch with him.
On the bases of these and other connections, the jury
did not have to stretch to conclude that Twitty, Erik and
Stephanie Martin, and Jordan conspired together to traffick
in weapons. Twitty's and Jordan's illegal dealings with the
Martins occurred in the same time frame, in the same area and
in the same manner. Taking these overlaps together with the
direct contacts between Twitty and Jordan, we think that a
single hub and spoke conspiracy among the four was shown.
E.g., see United States v. Dworken, 855 F.2d 12, 24 (1st Cir.
1988).
Second, it is more of a stretch to include Cameron in
the same conspiracy, although perhaps not impossible. But if
we assume arguendo that Cameron engaged in a separate
conspiracy with the Martins, we think that the variance
between the larger five-person conspiracy charged, and the
smaller four-person conspiracy amply proved against Twitty,
was harmless. So long as the statutory violation remains the
same, the jury can convict even if the facts found are
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somewhat different than those charged--so long as the
difference does not cause unfair prejudice. United States v.
Glenn, 828 F.2d 855, 858 (1st Cir. 1987).
No such prejudice has been shown here. Even if the
conspiracy charged had been narrowed to four persons, some of
the evidence against Cameron could have been admitted to
explain how Erik Martin began his business and how, at the
end, Twitty attempted to use Cameron to conceal his own
wrongdoing. While the evidence against Jordan involved
drugs, Twitty's appeal briefs point to nothing especially
dramatic about the bulk of the evidence against Cameron.
Some guns were recovered from Cameron's apartment but, given
the guns recovered from Jordan and the Martins and the large
volume of orders by Martin, the presence of guns was hardly
in doubt.
2. Twitty's next set of objections involves the
admissibility of evidence designed to show that the guns
obtained through the Martins were unlawfully re-sold by
Twitty and others. The first objection is easily resolved.
During 1991 and 1992, the police recovered from third parties
handguns with obliterated serial numbers. The government at
trial offered evidence of such incidents to show that the
serial numbers (restored in whole or part) and gun types
matched those ordered by Martin and passed on to Twitty,
Jordan, or Cameron. Much of this evidence was undisputed.
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As to two such instances, however, Twitty says that the
evidence was insufficient to connect the seized guns to guns
ordered through Martin. In one, the gun types matched a
delivery to Martin on the same day; Martin testified that he
had delivered them to Twitty, who immediately ground down the
numbers; and the partly restored numbers matched those of the
guns Martin had received. All that was required for
admission was evidence sufficient to permit a reasonable jury
to conclude that the guns were the same, Fed. R. Evid.
901(a), and that was plainly present.
In the other instance, a handgun was recovered six days
after delivery of three guns of the same type to Martin for
Twitty. Although the recovered weapon had an obliterated
serial number, an expert testified that three restored digits
(two others could not be restored) were consistent with those
on one of the guns received by Martin six days earlier.
Again, this was sufficient for the court to admit the
evidence, since a rational jury could find that this weapon
was one of the guns received by Martin.
With more cause, Twitty objects to statistical evidence
offered at trial by the government for the same general
purpose, namely, to show the conspiracy's resale of guns. A
Boston police ballistic expert testified that, in the summer
of 1991, he noticed a sharp increase in police recoveries of
Davis .380 caliber semiautomatic pistols with serial numbers
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obliterated in the same manner. Based on police department
computer records, he testified that there were no such
recoveries from 1988 to May 1991 and that from mid-May 1991
to the end of the year, there were 30 such recoveries, plus
13 in 1992 and 9 in 1993.
According to the witness, similar, but less dramatic,
increases occurred in the same time frames in two other
categories of weapons with obliterated serial numbers: the
Raven .25 caliber semiautomatic pistol and the Intratec Tec-9
9mm semiautomatic pistol. The significance of these figures
was that other government evidence showed that Martin had
received at least 255 handguns from July 1990 to July 1991,
all but about 30 being delivered after April 1, 1991; and 206
of these weapons were of the three types whose street
seizures had increased markedly in 1991 and thereafter.
On appeal, Twitty says that the evidence was irrelevant,
unnecessary, duplicative, and prejudicial. As to relevance,
Twitty does not attack the quality of the data, see, e.g.,
United States v. Trenkler, 61 F.3d 45, 59 n.21 (1st Cir.
1995), nor does this case involve the kind of statistical
inference whose remoteness from the facts of the case has on
occasion troubled courts. See, e.g., Smith v. Rapid Transit,
Inc., 58 N.E.2d 754, 755 (Mass. 1945). Twitty argues only
that the evidence did not show that the seized guns listed in
the computer came from the conspiracy, but we think that the
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inference from the statistics, the weapon types, and the
timing showed enough of a connection.
Twitty next argues--to support his claim that this
statistical evidence was unnecessary and duplicative--that
the existence of a gun trafficking conspiracy was effectively
conceded at trial and that other non-statistical evidence
sufficed to prove that some guns ordered by Martin had been
resold. But other considerations aside, the statistical
evidence tended to support claims of sales by or through
Twitty since he had prompted many of the orders and the
increase in recoveries coincided with his greater
involvement. This reinforced the very connection to the
conspiracy that Twitty sought to deny at trial.
Twitty's most direct argument is that the statistical
evidence was unduly prejudicial, tending to link him with a
gun epidemic in Boston. Yet proving that the weapons reached
the street merely spells out what was implicit in the proof
that large numbers of guns were delivered to Martin for
Twitty and that Twitty's financial condition had improved
sharply. The statistical evidence from the ballistics expert
was not lurid or blood-curdling. The balancing of probative
value against unfair prejudice is weighted in favor of
admissibility, see Fed. R. Evid. 403, and confided primarily
to the sound discretion of the trial judge. United States v.
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Sutton, 970 F.2d 1001, 1008 (1st Cir. 1992). There was no
abuse of discretion here.
3. Twitty's most potent claim relates to his sentence.
Under amendments effective on November 1, 1991, the
Sentencing Guidelines increased the penalties for firearms
offenses. Twitty points out that no more guns were obtained
after July 1991, no sales after that time were proved, and
that after July his own contacts with other conspirators were
minimal. He contends that either the conspiracy was
abandoned or he had withdrawn from it prior to November 1,
1991, entitling him to the lower penalty available under the
earlier version of the guidelines. See United States v.
Garafano, 36 F.3d 133, 134 (1st Cir. 1994).
The pre-sentence report said that the conspiracy should
be deemed to continue past November 1, 1991, because not all
of the weapons had been recovered by that date; but on appeal
even the government does not defend this position, which
would extend many such conspiracies indefinitely. Nor does
it matter that the indictment alleged a conspiracy continuing
to on or around December 1991 and the jury convicted, for on
the evidence presented, and under the charge given to it, the
jury had no reason to care whether the conspiracy ended in
July or December or whether Twitty withdrew from it in its
wind-down phase.
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There is one other basis for applying the amended
guideline but we think that it is insufficient, although
possibly a close call. In an alternative finding, the
district judge ruled that the conspiracy included a cover-up
effort that did continue past November 1991. Mere efforts to
conceal a crime do not automatically extend the life of the
crime itself, but acts of concealment can extend the life of
a conspiracy if the proof shows "an express original
agreement among the conspirators to continue to act in
concert in order to cover up" their crime. Grunewald v.
United States, 353 U.S. 391, 404 (1957); e.g., United States
v. Bigos, 459 F.2d 639, 643 (1st Cir.), cert. denied, 409
U.S. 847 (1972) (hijacking plan included explicit agreement
to cover up).
In this case the government does urge that there were
express agreements to conceal when, as already recounted,
Twitty in July 1991 enlisted Martin to persuade Cameron to
provide a false cover story to mislead federal agents and to
file a false theft report with the Boston police. While
these events occurred prior to November 1991, Twitty met the
Martins in November, promising to help keep Martin out of
jail and thereafter lied to federal agents. If ordinary
conspiracy rules governed, the July actions might be enough
to infer that the conspiracy had been enlarged to include
concealment as an objective.
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Grunewald, however, laid down special requirements of
proof resting upon a distinct policy concern, namely, that
"every conspiracy is by its very nature secret"; that "every
conspiracy will inevitably be followed by actions taken to
cover the conspirators' traces"; and that if these facts were
enough for a conspiracy to conceal, then the statute of
limitations and other safeguards would be virtually "wipe[d]
out." 353 U.S. at 402. For this reason, it held that even
egregious and organized acts of concealment were not
sufficient,1 unless agreed to as part of the original
conspiratorial plan. It summarized the point thusly:
[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 these central objectives
have been attained, for the purpose only of
covering up after the crime.
Id. at 405.
1In Grunewald itself, as the Court recounted,
[G]reat efforts were made to conceal the
conspiracy when the danger of exposure
appeared. For example, Bolich got rid of
certain records showing that he had used
Grunewald's hotel suite in Washington;
Patullo's accountant was persuaded to lie
to the grand jury concerning a check made
out to an associate of the conspirators;
Grunewald attempted to persuade his
secretary not to talk to the grand jury;
and the taxpayers were repeatedly told by
Halperin and his associates to keep
quiet.
353 U.S. at 403.
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While there were arguably explicit agreements to conceal
between Twitty and Martin, they occurred late in the day when
the conspirators knew that agents were on their trail and
active trafficking in guns had come to an abrupt halt. On
any realistic view of the matter, Twitty and Martin were
engaged "only [in] covering up after the crime." This might
be a closer case if the conspirators had continued their gun
trafficking and agreed to new measures of concealment as part
of an expanded conspiracy. Id. (distinguishing concealment
"in furtherance of" an ongoing conspiracy).
We do not think that our conclusion involves a
disagreement with the able trial judge about facts he found
or even characterizations, matters on which the clearly
erroneous standard is normally applied. United States v.
Wright, 873 F.2d 437, 444 (1st Cir. 1989). Rather, we read
Grunewald to impose a special burden to show that an express
agreement to conceal was, or at least became, part of the
central conspiratorial agreement and that the later acts
relied upon were in furtherance of this agreement. There are
no findings to this effect in our case and no evidence that
we think would permit such findings.2
2The government does rely on one set of concealment
measures that occurred during the course of the conspiracy--
the obliterating of serial numbers. But these arrangements,
probably designed in part to increase the selling price of
the weapons, were a narrow effort having nothing directly to
do with the acts occurring in or after November.
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Twitty also objects to the district court's decision to
apply a four-level enhancement for his role in the offense as
an organizer or leader. U.S.S.G. 3B1.1(a). This status
requires that the criminal activity of the organizer or
leader either involve five or more participants or be
"otherwise extensive." The sentencing judge found all of
these requisites, namely, that Twitty was an organizer or
leader, that there were five members in the conspiracy, and
that the activities were otherwise extensive.
The evidence indicated that during the first half of
1991, Twitty made the basic decisions about how many guns to
purchase and when to buy and sell them, substantially
increasing the number of weapons acquired through the
Martins. A defendant who "makes the critical strategic and
operational decisions" in a group enterprise can be deemed an
organizer or leader. United States v. Talladino, 38 F.3d
1255, 1261 (1st Cir. 1994). By this test, Twitty qualifies
even without regard to other evidence that tends to reinforce
his prominent role in the group.
Unless Cameron is considered a member of the conspiracy,
an issue that we do not reach, the number of clearly
established conspirators is only four. Regardless of numbers
the criminal activities themselves were "otherwise
extensive." The number of guns obtained and sold was
substantial; the conspiracy extended over many months; and
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the arrangements--acquisition from out of state sources,
obliterating of serial numbers, and distribution--was
reasonably elaborate. That is enough to support the district
court's findings. See United States v. Rostoff, 53 F.3d 398,
414 (1st Cir. 1995).
Twitty has raised several other claims regarding the
admissibility of other evidence (e.g., testimony as to an
admission made by Twitty) and the lack of an evidentiary
hearing at sentencing on Twitty's use of drugs. We have
examined his arguments on these issues but conclude that they
are without merit and do not require individual discussion.
This is not intended as criticism of counsel; the case has
been well briefed on both sides.
The judgment of conviction is affirmed. The sentence is
vacated and the case remanded for resentencing under the
earlier version of the Sentencing Guidelines.
It is so ordered.
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