United States Court of Appeals
For the First Circuit
No. 08-1813
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES NIEMI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Boudin and Howard, and Tashima,*
Senior Circuit Judge.
William Maselli for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
August 31, 2009
*
Of the Ninth Circuit, sitting by designation.
TASHIMA, Senior Circuit Judge. James Niemi appeals his
convictions for conspiracy to possess with intent to distribute 500
grams or more of cocaine, cocaine base, and marijuana in violation
of 21 U.S.C. §§ 841(a)(1) and 846, and for use of a communications
facility to facilitate a drug offense, in violation of 21 U.S.C. §
843(b). Niemi contends that the district court erred by refusing
to give his requested jury instruction on multiple conspiracies and
by permitting the prosecution to introduce evidence of Niemi’s
character in violation of Federal Rules of Evidence 404(b). He
also argues that his conviction should be overturned for lack of
sufficient evidence to support the charges, and because the
prosecution’s closing argument impermissibly commented on his
failure to testify at trial. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
I. Background
We begin with a brief description of the facts of the
case, which we will supplement as necessary in our discussion. We
view the facts in the light most favorable to the jury’s verdict.
United States v. Portela, 167 F.3d 687, 692 (1st Cir. 1999).
Niemi was one of fourteen people charged with taking part
from March, 2005, to November, 2006, in a drug ring centered around
Jeremy Mercier. Prosecutors introduced evidence that Mercier
bought kilograms of cocaine from suppliers in New York and sold the
drugs from a garage in Minot, Maine, where he ran a business
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selling all-terrain vehicles. Niemi was one of several regular
customers of Mercier, buying up to two ounces of cocaine at a time.
Mercier allowed Niemi, unlike other co-conspirators, to accompany
him to the attic above the garage where Mercier kept his supply of
drugs, and Niemi knew and dealt with many other conspirators,
including one of Mercier’s suppliers.
At the end of August, 2006, government agents began a
wiretap of Mercier’s phone. They recorded numerous conversations
between Niemi and Mercier in which Niemi spoke about buying and
selling cocaine using the same code words that other participants
in the operation used. Agents began acting to shut down the
conspiracy in October, 2006, causing one of Mercier’s suppliers to
be arrested and a large amount of cocaine seized. In January,
2007, two months after the end of the conspiracy as alleged in the
indictment, agents arranged a controlled buy of cocaine from
Mercier. They observed Mercier travel to Niemi’s house, apparently
to pick up some cocaine, and soon afterward they arrested both
Mercier and Niemi.
Niemi was ultimately tried alongside James Michaud,
another alleged co-conspirator. At trial, Niemi argued that there
had not been one large conspiracy, but rather many smaller
conspiracies, and that Niemi was therefore not guilty of
participating in the single conspiracy described in the indictment.
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The jury found Niemi guilty on all counts, and this appeal
followed.
II. Jury Instructions on Multiple Conspiracies
Niemi contended at trial that the overarching conspiracy
alleged in the indictment had not existed, and that instead there
had been a series of separate conspiracies among different
participants. Niemi requested that the following instruction on
multiple conspiracies be read to the jury:
1. Defendant’s Theory of the Case:
It is the Defendant Niemi’s contention that no
identifiable single conspiracy was proven by the Government in
this case, only a series of possible separate Conspiracies.
If you find this to be true, that the Government has failed to
prove an identifiable conspiracy as alleged beyond a
reasonable doubt, the verdict must be Not Guilty.
2. Multiple Conspiracies
The burden is upon the Government to prove the existence
of the charged conspiracy beyond a reasonable doubt. The
Government must also prove beyond a reasonable doubt that the
Defendant willfully entered that Conspiracy, and not some
other conspiracy or conspiracies. If you find that Defendant
Niemi was involved in some separate conspiracy or conspiracies
but that the Government has failed to prove beyond a
reasonable doubt either the existence of the charged
conspiracy or Niemi’s involvement in the charged conspiracy,
he must be found Not Guilty.
The district court declined to read this instruction to the jury,
reasoning that its own instruction was sufficient on this matter.
The court instructed the jury as follows:
For you to find either of these defendants guilty of
conspiracy, you must be convinced that the Government has
proven each of the following things beyond a reasonable doubt:
First, that the agreement specified in the indictment,
not some other agreement, existed between at least two people
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to distribute or possess with intent to distribute cocaine;
and, second, that the defendant willfully joined that
agreement.
. . .
A conspiracy is an agreement, spoken or unspoken. The
conspiracy does not have to have a formal agreement or plan in
which everyone involved sat down and worked out all the
details. But the Government must prove beyond a reasonable
doubt that those who were involved shared a general
understanding about the crime. Mere similarity of conduct
among various people or the fact that they may have associated
with each other or discussed common names and interests does
not necessarily establish proof of the existence of a
conspiracy. But you may consider such factors.
Niemi now argues that the district court’s instructions
were insufficient to make clear to the jury that Niemi could be
convicted only if he had been guilty of participating in the
specific conspiracy alleged in the indictment.
It is true that “a court should instruct on the issue [of
multiple conspiracies] ‘if, on the evidence adduced at trial, a
reasonable jury could find more than one such illicit agreement, or
could find an agreement different from the one charged.’” United
States v. Balthazard, 360 F.3d 309, 315 (1st Cir. 2004) (quoting
United States v. Brandon, 17 F.3d 409, 449 (1st Cir.1994)) (further
internal quotation marks and citations omitted). In Balthazard,
the defendants, who operated a marijuana growing business, argued
that they engaged only in a series of short-lived conspiracies, not
the overarching conspiracy alleged in the indictment. Id. at 312.
The trial court gave the jury an instruction almost identical to
the one here, stating that the government was required to prove
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beyond a reasonable doubt “that the agreement or conspiracy
specified in the indictment, and not some other agreement, or
agreements existed, between at least two people to manufacture,
possess, or distribute 1,000 or more marijuana plants.” Id. at
316. The defendants argued that the instructions should have gone
further and listed factors to assist the jury in deciding whether
there was a single conspiracy or multiple conspiracies, but we
upheld the district court’s instructions as sufficient. Id. Those
instructions were equally sufficient in Niemi’s case. Because the
substance of the requested instruction was covered in the district
court’s instructions, Niemi’s claim fails. See United States v.
Prigmore, 243 F.3d 1, 17 (1st Cir. 2001).
III. Sufficiency of the Evidence
Niemi argues that the evidence did not show that there
was a single, overarching conspiracy as alleged in the indictment,
but rather a series of individual conspiracies. Whether evidence
shows one or many conspiracies is a question of fact for the jury
and is reviewed only for sufficiency of the evidence. United
States v. David, 940 F.2d 722, 732 (1st Cir. 1991). Under this
standard of review, “we examine the evidence – direct and
circumstantial – as well as all plausible inferences drawn
therefrom, in the light most favorable to the verdict, and
determine whether a rational fact finder could conclude beyond a
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reasonable doubt that the defendant committed the charged crime.”
United States v. Wyatt, 561 F.3d 49, 54 (1st Cir. 2009).
In evaluating whether a single conspiracy existed, rather
than several, “courts consider the totality of the circumstances,
paying particular heed to factors such as the existence of a common
goal, evidence of interdependence among the participants, and the
degree to which their roles overlap.” United States v. Fenton, 367
F.3d 14, 19 (1st Cir. 2004). These characteristics can exist in a
hub-and-spoke conspiracy to sell drugs, in which one core figure
supplies drugs to multiple participants. See Portela, 167 F.3d at
695-96. The intent to sell drugs may be the common goal, and the
presence of the hub figure may be sufficient to establish overlap
among many members. Id. Interdependence may be shown where one
participant knows that his own success depends on the continued
existence and health of the drug distribution organization as a
whole. Id. at 697. A group may engage in a single conspiracy even
if they are somewhat loosely related: “the proof need not show that
each conspirator knew of all the others, nor that the group
remained intact throughout the duration of the enterprise.”
Fenton, 367 F.3d at 19.
In this case, there was ample evidence to support the
jury’s conclusion that Niemi took part in a single conspiracy with
Mercier at the center. Several co-conspirators testified that they
purchased drugs from Mercier from his garage, and that they knew
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Niemi as another of Mercier’s customers. Niemi used the same code
words for drugs as other members of the conspiracy, and there was
evidence that he coordinated with Mercier on at least one occasion
to provide cash and help arrange for a supply of drugs. In short,
the evidence showed a classic hub-and-spoke conspiracy with Mercier
at the center and Niemi as an important spoke. The jury could have
reasonably concluded that Niemi knew of the existence and scope of
Mercier’s operations, and knew that his own ability to obtain and
sell drugs depended on the success of the conspiracy as a whole.
The evidence was sufficient to support the jury’s verdict, and we
therefore reject Niemi’s challenge.
IV. Bad Acts Evidence
Niemi contends that the district court erred by admitting
evidence regarding bad acts committed by Niemi after the end of the
conspiracy as charged in the indictment. Drug enforcement agents
testified that, in January 2007, two months after the indictment
alleged in the conspiracy ended, agents arranged a controlled
purchase of drugs from Mercier. Agents observed Mercier drive to
Niemi’s house and then return home. They then searched Niemi’s
house and found Niemi’s cell phone, which had Mercier’s contact
information in it. Niemi did not object to the introduction of
this evidence at trial.
According to Niemi, this evidence should have been
excluded pursuant to Federal Rule of Evidence 404(b) as evidence of
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other crimes or bad acts with which Niemi was not charged. This
type of evidence is not forbidden in all cases, however, but only
“to prove the character of a person in order to show action in
conformity therewith.” Fed. R. Evid. 404(b). It may be admissible
“as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Id.
Because Niemi failed to object to the introduction of the evidence
at trial, we review the district court’s decision for plain error.
United States v. Washington, 434 F.3d 7, 11 (1st Cir. 2006).
The evidence in question “was not just some random drug
crime by [the defendant] from which could be inferred a propensity
on his part to commit drug crimes.” United States v. Fanfan, 468
F.3d 7, 12 (1st Cir. 2006). It was closely linked in time to the
alleged conspiracy and proved the identities and relationships of
the conspirators.2 See id. The district court’s admission of the
evidence was far from plain error.
V. Comments by Prosecutor at Closing Argument
Niemi argues that his conviction should be reversed
because the prosecution commented during closing arguments on
Niemi’s refusal to testify. The allegedly improper statements
occurred when the prosecution discussed the matter of code words
used to refer to drugs, in anticipation of the defendants’
2
For the same reason, the evidence was not irrelevant and
therefore inadmissible under Fed. R. Evid. 402, as Niemi contends.
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arguments that no code words had been used. The prosecutor
referred to phone recording #1975, a conversation between Mercier
and Michaud, who was Niemi’s co-defendant. In this conversation,
Michaud asked Mercier, “How’s life?” and Mercier responded that it
was “expensive” because his friend was in Greece. According to the
prosecution, Michaud was referring to Niemi’s primary supplier of
drugs, who was on vacation in Greece at the time of the
conversation. In the closing argument, the prosecution told the
jury, “[S]ee how [the defense attorneys] address the evidence I’ve
addressed. How do they address call [number] 1975? How does
[Michaud’s attorney] say that his client, that how’s life,
expensive, is not cocaine?”
At no point in these statements did the prosecution make
reference to Niemi’s failure to testify. In pointing out the
defense’s failure to respond to the government’s evidence, the
prosecution referred not to Niemi, but to his co-defendant’s
attorney. As we have previously noted,
the prosecutor is entitled to draw the jury’s attention to the
balance of evidence on contested issues. After all, putting on
the government’s case is a sort of compulsion of the defendant
to answer it; and the government “must also be free to engage
in normal advocacy so long as it does not point a finger at
the accused’s remaining silent in the courtroom.”
United States v. Stroman, 500 F.3d 61, 65 (1st Cir. 2007) (quoting
United States ex rel. Leak v. Follette, 418 F.2d 1266, 1268 (2d
Cir. 1969)). The prosecutor did not overstep these bounds by
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arguing to the jury that the defense could not rebut the
prosecution’s evidence on the use of code words.
Furthermore, even if the district court had erred in
failing to strike the prosecutor’s statement, the error would have
been harmless. Immediately after the prosecution’s closing
argument was finished, the court reminded the jury “that the
Government has the burden of proving all elements of this case
beyond a reasonable doubt. The defendants don’t have to prove
anything and the defendants don’t have to explain anything.” The
prosecutor’s statement was isolated and was quickly followed by a
cautionary instruction, and there was little chance that Niemi
suffered any prejudice as a result. Thus, there is no need to
overturn the conviction. See United States v. Joyner, 191 F.3d 47,
54 (1st Cir. 1999).
VI. Conclusion
For these reasons, we reject Niemi’s contentions and
AFFIRM the judgment of the district court.
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