United States Court of Appeals
For the First Circuit
No. 05-2309
UNITED STATES OF AMERICA,
Appellee,
v.
EDWARD PIERRE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Rodney S. Dowell, with whom Berman & Dowell was on brief,
for appellant.
Theodore B. Heinrich, Assistant U.S. Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
April 18, 2007
LYNCH, Circuit Judge. Defendant Edward Pierre ran an
illegal wholesale and retail drug distribution business in Fall
River, Massachusetts.
In 2003, Pierre was convicted of possessing cocaine with
intent to distribute; the jury hung on a separate drug conspiracy
count. The conspiracy count was retried in 2004, and Pierre was
convicted of conspiring to distribute crack cocaine and cocaine.
Pierre's co-defendant and ex-girlfriend, Michelle Mickens, pled
guilty and testified against Pierre at both trials. Pierre
subsequently was sentenced to a 432-month term of imprisonment on
the conspiracy charge, a 240-month term of imprisonment, which was
to run concurrently, on the possession charge, and five years'
supervised release. The district court also entered a final order
of forfeiture for $500,000 against Pierre.
Pierre's appeal relates primarily to the 2004 conspiracy
conviction and the accompanying sentence, although he does assign
error to the introduction of certain evidence at both the 2003 and
2004 trials and to his sentence on the possession count. He also
claims that the district court's forfeiture order was error. On
appeal, we reject his myriad claims of error and affirm his
convictions, his combined sentence, and the forfeiture order.
I. Facts
Pierre and Mickens were indicted on August 15, 2002 for
conspiring to distribute cocaine base. On September 24, 2003, the
-2-
grand jury returned a second superceding indictment charging Pierre
and Mickens with conspiring with others, from at least April 1998
until September 2001, to distribute fifty or more grams of crack
and 500 or more grams of cocaine, and charging Pierre with
possessing with intent to distribute 500 or more grams of cocaine
on or about July 2, 2000. A forfeiture count sought criminal
forfeiture of the proceeds of the conspiracy, including $500,000
and five pieces of jewelry. Mickens pled guilty, while Pierre went
to trial. After a two-week trial in December 2003, a jury found
Pierre guilty of the possession count, but found that the quantity
of drugs was less than 500 grams. The jury was unable to reach a
verdict on the conspiracy count. The conspiracy count was retried
in April and May 2004, and a jury found Pierre guilty of the
conspiracy count. In a special verdict form as to the forfeiture
allegation, the jury found that at least $500,000 and a pair of
diamond earrings were proceeds of the drug conspiracy.
The facts in evidence at the 2004 conspiracy trial fairly
establish the following.
Pierre ran a drug business in Fall River from at least
April 1998 to September 2001. During that time, Pierre obtained
cocaine from a source in Brockton. He would then cook some of the
cocaine into crack, and he would sell both crack and powder cocaine
to customers in Fall River and New Bedford. Pierre did not have a
driver's license, so he employed people to drive him back and forth
-3-
to Brockton and around Fall River. In particular, Mickens
testified at trial that she chauffeured Pierre, in addition to
transporting drugs, collecting money, and selling crack for him.
At the height of her involvement, Mickens made retail sales of up
to $3000 worth of crack per night at Fall River bars and collected
at least $1000 twice a week from Pierre's wholesale customers.
Among Pierre's biggest wholesale customers were members of the 504
Boyz, a gang that sold crack around the Fifth Street area of Fall
River.1
Mickens testified that Pierre used the proceeds of his
drug operation to buy more drugs, to pay his living expenses and
those of Mickens and the mother of his children, and to buy luxury
items like expensive clothes and jewelry. In addition, Pierre
obtained at least seven cars for use in his drug business, all of
which he registered to other people. Mickens's testimony was
corroborated by motel, bank, and motor vehicle records, and by the
1
Two members of the 504 Boyz testified at the 2003 trial.
One member -- Nathaniel Fernandes -- testified on behalf of the
government and offered evidence about the quantities of drugs that
Pierre sold to the 504 Boyz. Another member -- Henry Sanders --
was the sole witness for Pierre. On direct examination, Sanders
testified about a source other than Pierre who supplied drugs to
the 504 Boyz. On cross-examination, however, Sanders acknowledged
that he had met Pierre many times when Pierre had come through the
Fifth Street area to drop off drugs, and he also testified that
from 1998 to 2001 Pierre was Fernandes's main source of supply.
None of the 504 Boyz testified at the 2004 conspiracy trial.
-4-
testimony of Paula Costa, who bought crack from Pierre, and Fall
River police officers.
II. Trial Error Claims
Pierre raises three claims of trial error and argues that
each of the errors entitles him to a new trial. First, Pierre
argues that the district court constructively amended the
indictment by admitting evidence of offenses not charged therein.
Next, he argues that in failing to suppress evidence of a
particular drug seizure, the district court admitted evidence that
violated Pierre's Fourth Amendment rights and that was unduly
prejudicial and irrelevant. Finally, Pierre argues that the
district court impermissibly admitted prior bad acts evidence.
A. Constructive Amendment of the Indictment
At both of Pierre's trials, Mickens and several Fall
River police officers testified to an incident on April 14, 1998 at
the Old Colony apartment complex, where Pierre then resided.
Detective Michael Boutin testified that on that date he discovered
a bag containing cocaine, a scale, and a bottle of inositol (a
substance used to cut cocaine and crack) hidden behind a ceiling
panel in the hallway of an Old Colony building. He and other
officers seized the items in the bag, replaced them with similar-
looking items, and returned the bag to its hiding place.
The police officers then established surveillance at the
site. Officer Scott Paul testified that he saw Pierre emerge from
-5-
his apartment with a small step-ladder. Officer Alan Beausoliel
testified that he saw Pierre approach the location of the hidden
items. Although he could hear the ladder and ceiling tile being
moved, Officer Beausoliel did not observe Pierre remove the bag
from the ceiling. Officer Paul observed Pierre returning to his
apartment with the step-ladder. He then heard a thud and running.
Other officers spotted Pierre running out of the building and
fleeing in a car. A fingerprint lifted from the bottle of inositol
later was matched to Pierre.
Mickens corroborated this account. She testified that
Pierre had told her that he had hidden cocaine and a scale in the
ceiling of the building, and that when he returned to retrieve it,
he noticed that a switch had been made. When he heard a noise and
saw police, Pierre had run out of the building and fled in a car
driven by an associate named Kennisen.
In addition, Detective Steven Washington testified that
within the two weeks before the Old Colony incident he and two
other officers had observed Pierre meeting with another individual
by the name of Noel Lukenson.2 The officers initially observed
Lukenson and Pierre talking in a car parked on the street. Pierre
then left, and after entering and exiting a nearby building,
2
There seems to be some confusion over whether the
individual's name is Noel Lukenson or Lukenson Noel. We refer to
him hereafter as Lukenson.
-6-
Lukenson began crawling on the ground, took up a divot of grass,
and removed a large white bag from underneath the divot. Lukenson
then drove to Old Colony, picked up Pierre, and drove to two Fall
River bars. At the first bar, a person entered the car and left
within approximately two minutes. At the second bar, the officers
observed Pierre meeting with another man; the man handed Pierre
money, and Pierre then put his hand to his mouth, shook the other
man's hand, and left.
Pierre argues that these two incidents were unrelated to
the conspiracy charged in the indictment, and that by permitting
testimony about them, the district court constructively amended the
indictment. He argues that the indictment charged only a
conspiracy between Pierre, Mickens, and the 504 Boyz. Pierre's
position is that his supposed conspiracy with Mickens and the 504
Boyz had nothing to do with the Old Colony incident or with any
agreement he might have had with Lukenson. Rather, he argues,
these incidents were evidence of an independent, uncharged
conspiracy. In particular, he emphasizes that Mickens did not know
Lukenson, and that there was no evidence connecting the 504 Boyz to
Lukenson. He argues that there is a possibility that his
conviction "rests upon an offense not charged by the grand jury,"
and that as a result he is entitled to reversal of his conviction.
United States v. Dunn, 758 F.2d 30, 36 (1st Cir. 1985).
-7-
The government argues that Pierre has not preserved his
constructive amendment claim, and that our review is only for plain
error. See United States v. DeCicco, 439 F.3d 36, 44-45 (1st Cir.
2006). We bypass the forfeiture issue and rule on the merits.
Constructive amendment of an indictment is prohibited in
order "to preserve the right of the person accused of a[] . . .
crime to have a grand jury vote on an indictment, to prevent
reprosecution for the same offense, and to protect the right of the
accused to be informed of the charges." United States v. Vavlitis,
9 F.3d 206, 210 (1st Cir. 1993). "A constructive amendment occurs
when the charging terms of the indictment are altered, either
literally or in effect, by prosecution or court after the grand
jury has last passed upon them." United States v. Fisher, 3 F.3d
456, 462 (1st Cir. 1993) (quoting Dunn, 758 F.2d at 35) (internal
quotation marks omitted). When the facts proved at trial differ
from those alleged in the indictment, the indictment has been
constructively amended. Id. Constructive amendment is per se
prejudicial and is grounds for reversal of a conviction. Dunn, 758
F.2d at 35.
The second superceding indictment charged that
[f]rom a time unknown to the Grand Jury, but
at least by in or about April of 1998, and
continuing thereafter until September of 2001,
in the District of Massachusetts and
elsewhere, . . . PIERRE . . . did knowingly
and intentionally conspire and agree with
[Mickens and] others known and unknown to the
Grand Jury[] to distribute 50 grams or more of
-8-
a mixture or substance which contains a
detectable amount of cocaine base, also known
as "crack," and to distribute more than 500
grams of cocaine.
The plain language of the indictment encompasses the Old Colony
incident and the activities with Lukenson, which took place in
April 1998. See id. at 37. It does not limit the charged
conspiracy to the 504 Boyz. Further, evidence of the Lukenson
incident was presented to the Grand Jury that returned the
indictment.
We find no support in the record for Pierre's argument
that the government's "primary theory of the case was that Pierre
and Mickens conspired together and with the 504 Boyz to distribute
cocaine," or his contention that the government switched theories
in the 2004 trial. The government presented the Lukenson evidence
to the Grand Jury and the Old Colony evidence at the 2003 trial.
The prosecution theory all along was that Pierre conspired with
many people, including Lukenson and women other than Mickens.
Nor did the evidence presented at the 2004 trial
necessarily show two distinct conspiracies, as Pierre argues.
Contrary to Pierre's suggestion, there is no requirement that all
of the participants in a conspiracy know or even know of one
another. United States v. Fenton, 367 F.3d 14, 19 (1st Cir. 2004).
The test for determining whether a single agreement existed among
co-conspirators is a pragmatic one, taking into account the
totality of the circumstances. Id.
-9-
The evidence at the 2004 trial showed continuity between
the two time periods at issue -- April 1998, when the Lukenson and
Old Colony events took place, and the summer of 1999, when Mickens
began a relationship with Pierre. See United States v. David, 940
F.2d 722, 734 (1st Cir. 1991). Mickens testified that Pierre told
her about the Old Colony incident, and that he told her he fled in
a car driven by a man named Kennisen. She testified that she knew
Kennisen because Pierre regularly directed her to collect money
from him and because she frequently drove Pierre to New Bedford to
meet with Kennisen.3 Likewise, Mickens testified that when she
arrived in Fall River in 1998, Pierre had an ongoing relationship
with the 504 Boyz.
The evidence also showed that Pierre's business operated
in the same way and to the same end in April 1998 as it did during
Mickens's later involvement. See id. The Old Colony and Lukenson
evidence demonstrated that in April 1998 Pierre used other people
to drive him around, hid his drugs in public spaces and outdoors,
cut his drugs with inositol, and sold his drugs at Fall River bars.
Mickens's testimony was that during the time she was involved with
Pierre's business, he used other people to drive him around, often
3
There was testimony suggesting that Pierre fled in
Lukenson's car, although no one observed the driver of the car.
"Lukenson" and "Kennisen" are phonetically similar, and it is
possible that the two names refer to the same person. Regardless,
Mickens's testimony was that she knew the person who drove the car
from the Old Colony incident, and that he was still involved when
she joined the drug operation.
-10-
hid his drugs outdoors in holes in the ground, cut his drugs with
inositol, and sold his drugs at Fall River bars.
The facts proved at trial were more than adequate to
prove one ongoing conspiracy, with Pierre at the center. See
Fenton, 367 F.3d at 19-20. There was no constructive amendment.
Dunn, 758 F.2d at 38; see also United States v. Kelly, 722 F.2d
873, 876 (1st Cir. 1983).
B. Drug Seizure Evidence
On February 21, 2001, Pierre was driving in a convenience
store parking lot when he was stopped by Fall River Police Officer
David Murphy. Officer Murphy later testified that he stopped
Pierre because he "was aware at the time [that Pierre] did not have
an active license." After confirming that Pierre's license had
been suspended, Officer Murphy arrested Pierre for driving with a
suspended license. Pierre was taken to the Fall River Police
Department where he was searched as part of the booking process.
During the search, police officers recovered cocaine from Pierre's
pocket.
Pierre filed a motion to suppress the February 21 traffic
stop evidence, arguing that Officer Murphy did not have reasonable
suspicion to stop Pierre. The district court denied the motion
after an evidentiary hearing. The court found that Pierre had
reasonable suspicion to stop Pierre for driving without a license.
The cocaine seized during the traffic stop was admitted at both the
-11-
2003 and 2004 trials. Pierre argues that the information on which
Officer Murphy based the traffic stop was stale, and that
introduction of the seized cocaine therefore violated his Fourth
Amendment rights.
We review the district court's ultimate determination of
reasonable suspicion on a motion to suppress de novo. United
States v. Capelton, 350 F.3d 231, 240 (1st Cir. 2003). We review
subsidiary factual findings for clear error. Id.
A traffic stop constitutes a seizure within the meaning
of the Fourth Amendment. United States v. Chhien, 266 F.3d 1, 5
(1st Cir. 2001). As a result, "the stop must be supported by a
reasonable and articulable suspicion of criminal activity." Id.
at 6. Reasonable suspicion requires more than a naked hunch that
criminal activity is afoot, but less than probable cause. Id. Its
existence is assessed on a case-by-case basis, in light of all the
attendant circumstances. Id. When evaluating a claim of
staleness, courts do not measure the timeliness of information
simply by counting the number of days that have elapsed. United
States v. Bucuvalas, 970 F.2d 937, 940 (1st Cir. 1992), abrogated
on other grounds by Cleveland v. United States, 531 U.S. 12 (2000).
Rather, a court must assess the nature of the information, the
nature and characteristics of the suspected criminal activity, and
the likely endurance of the information. Cf. id.
-12-
At the suppression hearing, Officer Murphy testified that
from September 1999 to September 2000 he had worked in the vice and
intelligence unit of the Fall River Police Department. During that
time, Pierre's name came up often in conversation; fellow officers
frequently discussed his drug dealing, and Officer Murphy was
informed that Pierre did not have an active license. Officer
Murphy testified that after he left the vice unit, he continued to
talk with detectives there regarding Pierre, and no one ever
informed him that Pierre's license status had changed.
Pierre relies on United States v. Laughrin, 438 F.3d 1245
(10th Cir. 2006), a Tenth Circuit case, to argue that Officer
Murphy's information (from the time he served in the vice unit) was
so old as to be meaningless, and therefore could not justify a
traffic stop. Laughrin, however, is distinguishable. In that
case, a police officer had stopped the defendant based on his
knowledge, which was at least twenty-two weeks old, of the
defendant's driving record. Id. at 1246-47. The officer
previously had stopped the defendant when he was driving on a
suspended license, but the court noted that there was no indication
from the officer's testimony about the length of the license
suspension. Id. at 1248. The court stated that if there had been
testimony about the length of the suspension, the court might have
been able to affirm the finding of reasonable suspicion. Id. In
-13-
the absence of such testimony, however, it held that the officer's
information was too stale to justify the stop. Id.
Here, however, Officer Murphy offered testimony
indicating that Pierre's license had been suspended during the
entire year that Officer Murphy had served in the vice unit. This
testimony suggests that Pierre's license was suspended on an
ongoing basis, rather than for a short period of time, making the
suspicion that it was still inactive some five months later more
reasonable. Moreover, Officer Murphy testified that he kept in
touch with some of the detectives in the vice unit, and that none
of those detectives ever informed him during conversations about
Pierre of any change in Pierre's license status. Although he did
not explicitly state as much, the import of Officer Murphy's
testimony was that because Pierre's license status was relevant to
future investigations and cases, he would have expected someone to
have informed him if Pierre's license status had changed. We hold
that Officer Murphy had reasonable suspicion to stop Pierre's car,
and that the district court did not err in failing to suppress the
cocaine seized incident to Pierre's arrest.
Pierre cursorily states that the February 21 evidence was
irrelevant and unduly prejudicial. See Fed. R. Evid. 403. This
argument has been waived, see United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
-14-
waived."), and is without merit in any event. Evidence that Pierre
was driving without a license served to corroborate Mickens's
testimony that Pierre did not have a license and employed people to
drive him around. Likewise, evidence that Pierre was carrying
cocaine when he was stopped in February 2001 is directly relevant
to his participation in a drug distribution conspiracy between
April 1998 and September 2001.
C. Prior Bad Acts Evidence
Pierre argues that the Old Colony, Lukenson, and February
21 traffic stop testimony should not have been admitted because it
was evidence of prior bad acts. See Fed. R. Evid. 404(b); id. 403.
He also argues that during the 2003 trial, Officer Alan Correiro,
who appeared on behalf of the government, testified about an
uncharged shooting "in an attempt to prejudice the jury concerning
the character of Pierre." The district court's determination that
evidence is not precluded by Federal Rules of Evidence 403 or
404(b) is reviewed for abuse of discretion. United States v.
Frankhauser, 80 F.3d 641, 648 (1st Cir. 1996).
Our conclusion that the Old Colony, Lukenson, and
February 21 traffic stop evidence was proof of the conspiracy
charged in the indictment defeats the prior bad acts argument as to
that evidence. See United States v. Arboleda, 929 F.2d 858, 866
(1st Cir. 1991). Moreover, none of this evidence was unduly
prejudicial. See id. at 866-67.
-15-
As to the Correiro testimony, it was a minor issue that
was fully remedied by the district court. Correiro was called to
testify about drug-related statements that Pierre made to him in
October 2000. When questioned about an omission in his report,
Correiro explained that the initial report was not about drugs
because the investigation was of "a shooting incident." Defense
counsel objected, and the district court instructed the jury to
disregard the answer. During cross-examination, Correiro again
referred to the incident and stated that charges had been brought
against Pierre. Defense counsel then moved for a mistrial, which
the district court denied, and the court instructed the jury more
forcefully that the shooting incident had nothing to do with the
case before them, that the charges against Pierre had been
dismissed, and that they should not think or talk about the
incident. "We normally presume that a jury will follow an
instruction to disregard inadmissible evidence inadvertently
presented to it." Greer v. Miller, 483 U.S. 756, 766 n.8 (1987).
Only if there is an overwhelming probability that the jury could
not have followed the instruction and a strong likelihood that the
evidence was devastating to the defendant will we assume otherwise.
Id. This is not such a case.
III. Forfeiture-Related Claim
Pierre argues that the forfeiture order was error because
the government failed to demonstrate that he earned $500,000 as a
-16-
result of the conspiracy for which he was convicted. He further
argues that the government was improperly permitted to seize
substitute assets prior to the 2003 trial.
A. Sufficiency of the Evidence
Following the guilty verdict at the 2004 trial, the jury
returned a special verdict in which it found that at least $500,000
and a pair of diamond earrings seized by the government were
"derived, directly or indirectly," from the conspiracy.4 A
forfeiture verdict must be supported by a preponderance of the
evidence. United States v. Keene, 341 F.3d 78, 86 (1st Cir. 2003);
United States v. Rogers, 102 F.3d 641, 648 (1st Cir. 1996). We
have no problem finding a sufficient evidentiary basis for the
jury's verdict here.
The evidence in support of the forfeiture verdict at the
2004 trial included Mickens's testimony, as well as several records
documenting expenditures by Pierre. Mickens testified that from
the time she moved to Fall River in 1998 until she developed a
relationship with Pierre the following year, she saw Pierre
exchanging money with others in various locations. She further
testified that during the period of her involvement with Pierre --
from summer 1999 until her arrest in September 2001 -- Pierre
4
Pierre does not contest the forfeitability of the
earrings.
-17-
admitted to her that he had been in the drug business for years,
and she observed Pierre regularly obtain cocaine from a source in
Brockton and sell crack to customers in Fall River and New Bedford.
Mickens testified that she drove Pierre to his source in Brockton
"[q]uite a bit," "once a week, twice a week, sometimes more," and
that she drove Pierre around Fall River "[j]ust about every day" so
that he could "collect money or drop off ounces." She also
testified that she sold crack for Pierre, and at the height of her
involvement she sold up to $3000 worth of crack per night; she
further indicated that if Pierre did not need her to drive him
around, she "was in the bar [selling drugs] from the time they
opened, all day." Mickens also stated that she collected at least
$1000 two times per week from Pierre's biggest wholesale customers,
and that Pierre also collected money from them. Finally, Mickens
testified that she observed Pierre cook up part of a half-kilogram
of cocaine that he had obtained in Florida.
The documentary evidence presented by the government
showed that during the course of the conspiracy Pierre spent over
$6000 on motel rooms, over $22,000 on cars, and deposited and
withdrew nearly $40,000 from a bank account. He also spent at
least $4700 on jewelry. Finally, he paid the living expenses of
Mickens, totaling over $12,000 per year, and the expenses of his
children and their mother. Mickens testified that Pierre had no
job other than drug dealing. At the time Mickens met Pierre, he
-18-
did have a used car lot, but Mickens testified that he used the car
lot to deal drugs and sold only one or two cars before getting rid
of the lot a couple of months after she had met him.
Although one cannot, based on this testimony and
documentary evidence, tally specific amounts to arrive at $500,000,
the government may satisfy its burden of proof by either direct or
circumstantial evidence. United States v. Houlihan, 92 F.3d 1271,
1299 (1st Cir. 1996). From the time of her involvement in 1999,
Mickens estimated that she earned or collected between $3400 and
over $20,000 per week in drug money for Pierre. The jury could
easily have inferred from the evidence presented that on average
Pierre sold at least $3000 worth of cocaine or crack each week over
the life of the conspiracy. Such an inference supports the jury's
finding that $500,000 was forfeitable.
B. Substitute Assets
When Pierre was arrested, the government seized from him
various pieces of jewelry -- including a watch, necklace, ring,
bracelet, and earrings -- subsequently valued at over $60,000. It
then began administrative forfeiture proceedings, but when Pierre
filed a motion contesting the forfeiture, the government abandoned
the claim. Pierre's motion also requested immediate return of the
jewelry, but the government refused to return the jewelry to
Pierre, stating that it was evidence of criminal activity. See
Fed. R. Crim. P. 41(g) (providing that the district court "may
-19-
impose reasonable conditions to protect access to [seized] property
and its use in later proceedings"). The district court agreed that
the government was permitted to retain possession of the jewelry as
evidence and denied Pierre's motion requesting return of the
jewelry.
On September 24, 2003, the government obtained a second
superceding indictment that included a forfeiture allegation
specifying the seized jewelry and $500,000 as forfeitable. At the
2003 trial, Fernandes testified that Pierre had spent money on gold
chains and a jeweled bracelet, and the government offered the
jewelry into evidence without objection. Prior to the 2004 trial,
however, Pierre challenged the admissibility of the jewelry,
arguing that the government was unable to tie it to the alleged
conspiracy. The district court granted Pierre's motion to exclude
the jewelry from the 2004 trial, except for the pair of earrings,
which Mickens testified Pierre purchased for himself during their
relationship. Defense counsel then took possession of the excluded
jewelry.
After the jury in the 2004 trial returned a special
verdict finding that $500,000 and the earrings were forfeitable,
the district court entered a preliminary order forfeiting the
earrings and the other four pieces of jewelry as substitute assets,
21 U.S.C. § 853(p), since the government was unable to locate the
$500,000 specified in the special verdict. See United States v.
-20-
Hall, 434 F.3d 42, 58 n.7 (1st Cir. 2006) ("Substitute property may
be seized by the government to satisfy a forfeiture order where, by
an act or omission, the defendant has prevented the government from
tracing his illegally obtained assets."). Nine months later, the
district court entered a final order of forfeiture, forfeiting the
earrings and the substitute assets.
Pierre does not object to the forfeiture of the four
pieces of jewelry as substitute assets, but rather to the district
court's having permitted the government to retain possession of
them prior to the 2003 trial. As a remedy, he seeks to have the
jewelry (or its monetary equivalent) returned to him now. We
review the district court's interpretation of Rule 41(g) de novo.
See United States v. Dean, 100 F.3d 19, 20 (5th Cir. 1996). The
district court's factual determination that the jewelry had
evidentiary value to the government is reviewed for clear error.
See id.
Rule 41(g) provides that "[a] person aggrieved . . . by
the deprivation of property may move [the district court] for the
property's return." Once seized property is no longer needed as
evidence, a criminal defendant is presumed to have the right to its
return. See Dean, 100 F.3d at 20; United States v. Mills, 991 F.2d
609, 612 (9th Cir. 1993). However, "[a] Rule 41[(g)] motion is
properly denied 'if the defendant is not entitled to lawful
possession of the seized property, the property is contraband or
-21-
subject to forfeiture[,] or the government's need for the property
as evidence continues.'" Mills, 991 F.2d at 612 (quoting United
States v. Van Cauwenberghe, 934 F.2d 1048, 1061 (9th Cir. 1991));
see also United States v. Saunders, 957 F.2d 1488, 1495 (8th Cir.
1992) (holding that "[t]he motion for the return of the paperwork,
even papers that were not introduced at trial, was premature
because defendant's direct appeal was still pending"); Van
Cauwenberghe, 934 F.2d at 1061 (holding that a defendant's motion
for the return of property may be denied based on the government's
need for the property as evidence).
The district court's finding that the jewelry had
evidentiary value to the government was not clearly erroneous. The
government introduced the seized jewelry into evidence at the 2003
trial and presented testimony attempting to link the jewelry to the
proceeds of the charged conspiracy. Once it became clear that the
government's evidence on this point was not particularly strong,
the district court granted Pierre's motion to exclude four pieces
of the jewelry, and defense counsel took possession of those pieces
at that time.
Moreover, even if the district court's order permitting
the government to retain possession of the jewelry before the 2003
trial was in error, Pierre still would not be entitled to return of
the jewelry now. An illegal seizure of property does not immunize
it from forfeiture as long as the government can sustain the
-22-
forfeiture claim with independent evidence. United States v.
Rogers, 102 F.3d 641, 648 (1st Cir. 1996) (rejecting a claim that
property illegally seized by law enforcement officers was not
forfeitable). The cases cited by Pierre in support of his argument
that the jewelry must be returned do not suggest otherwise.
Rather, the remedy in each of those cases was to affirm the denial
of or vacate the grant of a pre-trial restraining order as to
substitute assets. United States v. Gotti, 155 F.3d 144, 146, 150
(2d Cir. 1998); United States v. Field, 62 F.3d 246, 247-48, 250
(8th Cir. 1995); In re Assets of Martin, 1 F.3d 1351, 1354, 1362
(3d Cir. 1993); United States v. Floyd, 992 F.2d 498, 498-99 (5th
Cir. 1993).
The forfeiture of the jewelry was not erroneous.
IV. Sentencing Error Claims
Pierre raises four claims of sentencing error. He argues
that the district court improperly calculated his base offense
level with respect to drug quantity and improperly applied a four-
level enhancement for leadership of extensive criminal activity.
He also argues that his sentence on the conspiracy count is
unreasonable as a matter of law because of disparities with
sentences imposed on other participants in the conspiracy.
Finally, he argues that his sentence on the possession count is
unreasonable because it exceeds the Guidelines range (although not
the statutory maximum) for that count.
-23-
We review de novo sentencing issues involving questions
of law. United States v. McCarthy, 77 F.3d 522, 535 (1st Cir.
1996). We review the district court's determination of the
reliability of sentencing information for abuse of discretion.
United States v. Luciano, 414 F.3d 174, 180 (1st Cir. 2005).
Factual determinations are reviewed for clear error. Id.
A. Drug Quantity
At sentencing, the district court found that Pierre was
responsible for 1.5 kilograms or more of cocaine base, and that the
appropriate base offense level therefore was 38. Pierre argues
that this finding was unsupported by either of the jury verdicts
(one of which found that he did not, on a particular occasion,
possess 500 or more grams of cocaine but rather possessed a lesser
amount, and one of which found that he was responsible over the
course of the conspiracy for 50 grams or more of crack and 500
grams or more of powder cocaine), and that it therefore infringed
on his Fifth Amendment due process and Sixth Amendment jury trial
rights.
Our prior caselaw forecloses any such argument. See
United States v. Yeje-Cabrera, 430 F.3d 1, 17-18 (1st Cir. 2005)
("Since Booker we have made it clear that the district courts may
make drug quantity determinations for sentencing purposes
. . . ."); United States v. Pérez-Ruiz, 421 F.3d 11, 14-15 (1st
Cir. 2005) (rejecting the claim that "the district judge violated
-24-
the Sixth Amendment by himself making the determinations as to drug
quantity and other enhancements").
To the extent Pierre argues that there was insufficient
evidence to support the district court's drug quantity finding,5
the argument fails. At Pierre's first trial, in 2003, Fernandes
testified that Pierre supplied the 504 Boyz with half a kilogram of
crack every month for two years. At the sentencing hearing, the
district court specifically commented on Fernandes's credibility
and concluded that he was "credible in [his] testimony about the
drug quantity." This credibility determination was not an abuse of
discretion, see Luciano, 414 F.3d at 180, and Fernandes's testimony
amply supports the court's drug quantity finding. There was thus
no clear error in the district court's drug quantity determination.
See id.
B. Leadership Enhancement
Pierre makes similar objections to the district court's
imposition of a four-level enhancement for leadership of extensive
criminal activity. He argues first that no jury verdict
established that he was "an organizer or leader of a criminal
activity that involved five or more participants or was otherwise
extensive," U.S.S.G. § 3B1.1(a), and that imposition of the
enhancement therefore was improper. He next argues that the
5
It is not at all clear that Pierre makes any such
argument. See Zannino, 895 F.2d at 17.
-25-
evidence was insufficient to establish that he was a leader of
extensive criminal activity, even by a preponderance of the
evidence.
There is no requirement that the jury find that the
leadership enhancement applies. "Under the advisory guidelines
regime, the district court can use the preponderance of the
evidence standard to determine whether an enhancement applies."
United States v. Holliday, 457 F.3d 121, 130 (1st Cir. 2006).
We review the district court's "factbound" determination
that Pierre was a leader for clear error. United States v.
Ventura, 353 F.3d 84, 89 (1st Cir. 2003). The district court
stated that it based its determination that Pierre was a leader of
extensive criminal activity on "the number of people involved, the
number of places in which drugs were sold, . . . the fact that
drugs were sold both at the wholesale level and at the retail
level, . . . and at the center of all this is Mr. Pierre." The
district court also mentioned the quantity of drugs involved and
the period of time over which the drug business extended as factors
contributing to its conclusion. The record bears out the district
court's conclusion. There was testimony that a number of different
people assisted Pierre with his drug operations; that Pierre made
wholesale drug sales to groups like the 504 Boyz, as well as retail
sales at bars in and around Fall River; that Pierre's business
-26-
involved significant quantities of drugs; and that it extended over
a period of at least three years.
The district court's application of the leadership
enhancement thus was not clearly erroneous. See United States v.
Colón-Muñoz, 318 F.3d 348, 364 (1st Cir. 2003) (noting that the
extent of criminal activity within the meaning of U.S.S.G. § 3B1.1
is assessed based on "the totality of the circumstances, including
not only the number of participants but also the width, breadth,
scope, complexity, and duration of the scheme" (quoting United
States v. Dietz, 950 F.2d 50, 53 (1st Cir. 1991)) (internal
quotation marks omitted)).
C. Reasonableness
Pierre argues that his 432-month sentence on the
conspiracy count is unreasonable as a matter of law.6 See United
States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en
banc), cert. denied, 127 S. Ct. 928 (2007); see also 18 U.S.C.
§ 3553(a). He bases this argument on the fact that his sentence is
over three times as long as that imposed on any other member of the
conspiracy. He makes a related argument that the district court
failed to explain adequately the reasons why his sentence is so
much longer than his co-conspirators' sentences.
6
The district court calculated Pierre's Guidelines range
on the conspiracy count to be 360 months to life.
-27-
Pierre fails to present us with any evidence that he is
similarly situated to other members of the conspiracy and so
therefore arguably should have received a comparable sentence. Our
review of the evidence indicates quite the contrary -- that Pierre
was not similarly situated to other members of the conspiracy. For
example, Pierre is not similarly situated to Mickens, who reported
to and took orders from Pierre. Mickens testified that Pierre beat
her on a number of occasions, that he threatened to kill her, and
that he forced her to have sex with other men while he watched.
Likewise, Pierre's criminal history included incidents that
distinguished him from his co-conspirators. Pierre's pre-sentence
report, which included information from the grand jury
investigation that had been excluded at trial, stated that Pierre
previously had been convicted of threatening to kill a former
girlfriend and "cut up her face and dump her body." Moreover, both
Mickens and Fernandes pled guilty and provided substantial
assistance to the government. A defendant's sentence is not
"unreasonable simply because his co-defendants agreed to help the
government in exchange for reduced sentences." United States v.
Vázquez-Rivera, 470 F.3d 443, 449 (1st Cir. 2006); see also United
States v. Saez, 444 F.3d 15, 18 (1st Cir. 2006), cert. denied, 127
S. Ct. 224 (2006). Finally, all of the participants in the
-28-
conspiracy except for Mickens were sentenced by a different judge
from the one who sentenced Pierre.7 See Saez, 444 F.3d at 19.
The district court explained its reasons for imposing the
sentence that it did. The court repeatedly expressed
disappointment that Pierre, in his statement to the court, refused
to take any responsibility for the situation in which he found
himself and failed to express any remorse for his actions. In its
Statement of Reasons, the court wrote that it viewed Pierre as "an
unrepentant and dangerous dealer in illicit drugs and firearms."
It explained that it found a sentence of 432 months "sufficient to
punish [Pierre] and to deter him and others from similar conduct,"
while still preserving the possibility that Pierre would "have some
period of freedom in the sunset of his life."
Although the district court did not explicitly state why
it imposed on Pierre a sentence much more substantial than those
received by other members of the conspiracy, we can infer its
reasoning "by comparing what was argued by the parties . . . with
what the [court] did." Jiménez-Beltre, 440 F.3d at 519. Pierre
argued in his sentencing memorandum and at his sentencing hearing
that he should receive a sentence no greater than that imposed on
7
We further note that Congress's aim in enacting 18 U.S.C.
§ 3553(a)(6), which directs the sentencing court to consider "the
need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct," "almost certainly" was to reduce unwarranted disparities
in sentencing on a national level. Saez, 444 F.3d at 18.
-29-
his co-conspirators. The district court rejected this argument
and, having found that Pierre was a dangerous and unrepentant
criminal, sentenced Pierre within the Guidelines range.
Pierre's sentence on the conspiracy count is reasonable
and is adequately explained. See Saez, 444 F.3d at 17.
D. Sentence on Possession Count
Because Pierre was sentenced to serve concurrent
sentences,8 he was not prejudiced by any error he alleges with
respect to the possession count. See United States v. Ziskind, 471
F.3d 266, 271 (1st Cir. 2006); see also United States v. Dominguez
Benitez, 542 U.S. 74, 81-82 (2004) ("[R]elief for error is tied in
some way to prejudicial effect . . . [and requires a] showing of 'a
reasonable probability that, but for [the error claimed], the
result of the proceeding would have been different.'" (third
alteration in original) (quoting United States v. Bagley, 473 U.S.
667, 682 (1985) (opinion of Blackmun, J.))). His 240-month
sentence on the possession count runs concurrently with his 432-
month sentence on the conspiracy count.
8
"[I]n the usual case, at least one count in a multiple-
count indictment will be able to accommodate the total punishment
for the offenses of conviction . . . . [W]hen that is so, '[t]he
sentence on each of the other counts will then be set at the lesser
of the total punishment and the applicable statutory maximum, and
be made to run concurrently with all or part of the longest
sentence.'" United States v. Quinones, 26 F.3d 213, 215-16 (1st
Cir. 1994) (third alteration in original) (quoting U.S.S.G. § 5G1.2
comment).
-30-
Pierre's convictions, his combined sentence, and the
forfeiture order entered against him are affirmed.
-31-