United States Court of Appeals
For the First Circuit
No. 08-1224
UNITED STATES OF AMERICA,
Appellee,
v.
ANTHONY HOSEA BURNETT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul Barbadoro, U.S. District Judge]
Before
Boudin, Hansen,* and Lipez,
Circuit Judges.
Royston H. Delaney, with whom Robert M. Thomas, Jr. was on
brief, for appellant.
Aixa Maldonado-Quiñones, with whom Thomas P. Colantuono,
United States Attorney, was on brief, for appellee.
September 1, 2009
*
Of the Eighth Circuit, sitting by designation.
HANSEN, Circuit Judge. Following a jury trial, Anthony
Burnett was convicted of conspiring to distribute 50 or more grams
of cocaine base (crack cocaine), 21 U.S.C. §§ 841(a)(1) & 846
(2006), possessing with the intent to distribute 50 or more grams
of crack, 21 U.S.C. § 841(a)(1), possessing a firearm in
furtherance of a drug trafficking crime, 18 U.S.C. § 924(c), use of
a firearm in relation to a drug trafficking crime, 18 U.S.C.
§ 924(c), and being a felon in possession of a firearm, 18 U.S.C.
§ 922(g)(1). Based on Burnett's stipulation to two prior felony
drug offenses, Burnett received a mandatory life sentence, 21
U.S.C. §§ 841(b), and concurrent 60-month sentences on two of the
gun charges, 18 U.S.C. § 924(c), to be served consecutively to the
life sentence. On appeal, Burnett seeks a new trial based on two
evidentiary rulings, one in which the district court allowed a
Government witness to testify about seeing Burnett in possession of
a small baggy containing a white substance without establishing
that the substance was cocaine, and one in which the district court
allowed another witness to testify about death threats Burnett made
against the witness and her daughter. We affirm Burnett's
convictions.
I.
Richard "Dickey" Post went into hiding because he owed
money to Burnett for drugs. Burnett and two other men, Juan
Feliciano and Quinta Parker, went looking for Post at Post's
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apartment and found Post's girlfriend, Carrie Davis, and Post's
sister, Cynthia Strong, removing Post's items from his apartment.
Burnett confronted the two women about Post's whereabouts, pointed
at Ms. Davis and stated "yo bitch," and exposed a handgun concealed
in his waistband. Davis became upset, and Ms. Strong told the men
to leave. Strong followed the men down the road, took down the
license plate number of the truck the men left in, and called the
police.
An alert went out to local police departments, and an
officer with the Dover Police Department located the truck in the
parking lot of the Dover Comfort Inn. The night clerk, Anne Marie
Benson, directed two officers to the room to which the truck was
registered. The officers knocked on the door to the room, noticing
a strong odor of freshly burnt marijuana. Burnett finally opened
the door nearly ten minutes later. Burnett and the three other
occupants of the room, Feliciano, Parker, and Kimberley Holland,
were detained outside the room while the officers applied for a
search warrant. The officers subsequently recovered a safe from
the room, which contained a Cobra .32 caliber handgun, $3,000 in
cash, and more than 500 grams of crack cocaine packaged in 281
plastic bags. Parker's fingerprints were the only ones found on
the safe. The officers also recovered a black leather jacket
containing $2,750 in cash from the room. Burnett, Feliciano,
Parker, and Holland were arrested following the search.
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While Burnett was detained during the search of the hotel
room, he asked Joanne Rousseau, his girlfriend at the time, who
arrived at the hotel after hearing over police scanners that the
police were looking for Burnett, to tell the police officers that
he had been with her earlier that evening. He also asked her to
get rid of "those things" in the trunk of his car. The following
day, Rousseau and three other individuals took a safe out of the
trunk of Burnett's car, which was still in the Comfort Inn parking
lot. The safe contained two guns, one that Burnett had traded for
drugs and one that Rousseau had given to Burnett as a gift.
Burnett was indicted on various drug and firearm charges
and proceeded to trial. The Government introduced the evidence
seized from the hotel room. Ms. Holland, who testified under a
letter of use immunity, linked the drugs found in the room to
Burnett when she testified that Burnett was packaging the cocaine
in small baggies when the officers knocked on the hotel door and he
grabbed the baggies and a gun and gave them to Parker to conceal in
the safe before opening the door for the officers. Several other
witnesses testified about their drug dealings with Burnett in the
past, including Ms. Rousseau. Rousseau also testified that Burnett
had asked her to make up an alibi and to get rid of "those things"
in the trunk of Burnett's car, and she identified the black jacket
found in the hotel room containing $2,750 in cash as belonging to
Burnett. Ms. Benson, the hotel clerk, testified that Burnett was
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a regular at the hotel, always paid with cash, and that she once
saw him drop a small baggy containing a white substance as he was
exiting the elevator in the hotel.
II.
Burnett first challenges the testimony offered by Ms.
Benson, the clerk at the hotel where the police found Burnett in a
room with half a kilo of crack cocaine, in which she testified
about an incident when she saw a little baggy containing a "white
substance" fall out of Burnett's pocket when he stepped out of the
elevator. Rather than tell Burnett he lost something, Benson
picked up the baggy and then flushed it down a toilet. The
district court sustained Burnett's objection when the witness was
asked what she thought was in the baggy, but the court overruled
his objection when Benson was asked if she was suspicious about
what she picked up, to which she responded, "Yes." On cross-
examination, Burnett's counsel questioned why she did not tell
Burnett he had dropped something, and Benson responded, "I knew it
was drugs." The district court overruled Burnett's objection to
her response because his counsel's questioning had invited the
response.
Burnett claims that the district court abused its
discretion, see United States v. Mangual-Santiago, 562 F.3d 411,
425 (1st Cir. 2009) (standard of review), petition for cert. filed,
__ U.S.L.W. ___, (U.S. July 27, 2009) (No. 09-5608), when it
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admitted Benson's testimony about the baggy, arguing the evidence
was irrelevant under Federal Rules of Evidence 401 and 402. He
claims that the evidence was irrelevant because no one ever
testified that the substance in the baggy was in fact cocaine.
Burnett complains that the evidence left the jury to speculate that
this witness, who according to Burnett was the only "respectable
lay witness" (meaning not a government agent or a drug dealer/user
turned witness), saw Burnett in actual possession of cocaine even
though the substance was never identified as cocaine.
The Rules of Evidence define relevant evidence as
"evidence having 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 (emphasis added). Each specific item of evidence
offered need not "be sufficient to prove the case standing by
itself" before it is admissible. United States v. Vigneau, 187
F.3d 82, 87 (1st Cir. 1999) (holding that evidence of calls made
from defendant's residence to coconspirators was admissible even
though there was no evidence that defendant was the one who made
the calls). Rather, it is enough that the piece of evidence has
some bearing on a matter of consequence to the case. Juries are
asked every day to consider circumstantial evidence as they
determine whether a defendant has committed a crime.
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The fact that the substance in the baggy about which the
hotel employee testified was not proven to be cocaine may diminish
the weight a fact finder will give the evidence, but it did not
make the evidence completely without value. This evidence tended
to make the existence of the fact that Burnett was involved in a
conspiracy to distribute cocaine more probable than if the evidence
had not been admitted. Four people were found in a hotel room with
over 500 grams of crack cocaine, which was packaged in small
baggies and locked in a safe. The prosecution had to establish not
only that Burnett was in the room, but that he was involved in the
conspiracy to possess and distribute the cocaine. The fact that
Burnett was seen in the same hotel with a small baggy containing a
white substance, even though that substance was not identified,
provides circumstantial evidence which a jury could find
corroborated Holland's testimony that Burnett was the one packaging
the crack cocaine. See United States v. Searing, 984 F.2d 960,
965-66 (8th Cir. 1993) ("[Defendant]'s bagging of a substance which
could have been narcotics was indeed relevant to his knowledge and
participation in such an enterprise. The neighbor's inability to
definitely identify the substance . . . went to the weight and
credibility of her testimony, not its relevance.").
III.
Burnett also brings a Rule 403 challenge to the testimony
offered by Ms. Rousseau, a prosecution witness and Burnett's former
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girlfriend, about death threats that Burnett made against her and
her daughter. See Fed. R. Evid. 403 (excluding relevant evidence
if its probative value is substantially outweighed by unfair
prejudice). Because Burnett did not object to this testimony at
trial on the basis of its prejudicial effect, our review is for
plain error. See United States v. Shoup, 476 F.3d 38, 42 (1st Cir.
2007); Fed. R. Crim. P. 52(b). We may reverse only if: "(i) there
was error; (ii) the error was obvious; and (iii) the error affected
[Burnett]'s substantial rights by altering the outcome of the
trial." Shoup, 476 F.3d at 42. Even then, we are not required to
correct a plain error, and we will exercise our discretion only as
necessary to prevent a miscarriage of justice. See United States
v. Olano, 507 U.S. 725, 735-36 (1993).
Before Rousseau was allowed to testify about
communications she had had with Burnett prior to the trial, the
district court conducted voir dire with her outside of the presence
of the jury. Rousseau explained to the court that she had received
written and verbal communications from Burnett and that she did not
decide to cooperate with the Government in Burnett's case until
after he made the threat against her daughter. Burnett's only
objections to the proffered testimony were a Rule 16 discovery
challenge, which was overruled, and a concern about the possible
reference to Burnett's incarceration. At Burnett's request, the
district court instructed the jury not to draw any inferences about
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Burnett's guilt from the fact that he was incarcerated at the time
he made the statements to Rousseau.
Rousseau then testified in front of the jury that prior
to Burnett's trial, she was being detained at the same correctional
facility as Burnett. During that time Burnett sent Rousseau a note
that stated, "only you can prevent forest fires, Joe [sic]. You
hold the match." At the time, Rousseau had refused to cooperate
with the Government in Burnett's case. A few months later, while
Rousseau was still not cooperating with the Government, Burnett
screamed at her that he "will have my people come up, take you and
your daughter out." Rousseau testified that "[a]t that point,
that's when I contacted my lawyer and told him I would cooperate."
While evidence that a defendant threatened a witness
prior to trial cannot be introduced to show the defendant's
propensity to commit bad acts, see Fed. R. Evid. 404, such evidence
can be introduced for other purposes, such as demonstrating
consciousness of guilt by showing the lengths to which a defendant
will go to keep damaging testimony out of his trial, see United
States v. Rosa, 705 F.2d 1375, 1377 (1st Cir. 1983) (per curiam);
United States v. Monahan, 633 F.2d 984, 985 (1st Cir. 1980) (per
curiam). Such evidence can be highly prejudicial, however, and it
"should not be admitted if its probative value is 'substantially
outweighed' by the danger of undue prejudice." See Rosa, 705 F.2d
at 1377 (quoting Fed. R. Evid. 403).
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Burnett argues that the district court did not weigh the
probative value of the evidence against its unfair prejudice as
required by Rules 403 and 404. The reason the district court did
not make explicit findings concerning how the factors balanced
against each other was because Burnett made no objection to the
evidence on the basis of unfair prejudice. Nonetheless, the
district court did voir dire the witness outside of the presence of
the jury before allowing her to testify about the threats. We
interpret the district court's decision to allow Rousseau to
testify about the threat as an implicit finding by the district
court that the probative value of the evidence was not
substantially outweighed by any unfair prejudice. See id. at 1378
(The district court's "invitation to Skelton's attorney to request
a limiting instruction if desired suggests that he had come to the
conclusion that the danger of unfair prejudice did not outweigh the
probative value of the evidence. The judge had no need to be more
explicit because . . . defense counsel did not object to the
evidence on the basis of unfair prejudice.").
While death threats against a witness, particularly
threats against a witness's children, can be inflammatory, any
evidence of such threats is not so prejudicial per se that the
unfair prejudice from the threat always substantially outweighs its
probative value. We must also look at whether the jury heard
graphic details of how the threat would be carried out, see United
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States v. Gonsalves, 668 F.2d 73, 75 (1st Cir.) (distinguishing
cases involving a detailed description of an attempt to murder a
witness), cert. denied, 456 U.S. 909 (1982), whether the threat was
made as an emotional or impulsive reaction, see Rosa, 705 F.2d at
1378 (noting that impulsive threats are less inflammatory than
calculated, advanced plans to murder a witness), and how important
the evidence about the threat was to the Government's case, cf.
United States v. Pina, 844 F.2d 1, 9 (1st Cir. 1988) ("[A] threat
made after a witness has already testified does not demonstrate
that the defendant is willing to take action to prevent the
introduction of relevant evidence . . . [and] any probative value
of the evidence is outweighed by its inflammatory potential.").
While the Government's need for the evidence is one factor we
consider, we decline Burnett's suggestion that evidence of death
threats against witnesses should be admissible only when there is
a "clear need for the prosecution to use such evidence." United
States v. Check, 582 F.2d 668, 685 (2d Cir. 1978).
We accept that Burnett's threat was inflammatory because
it was aimed at Rousseau's daughter. Nonetheless, the threat did
not convey graphic details or suggest a specific, premeditated plan
to carry out the threat. Nor did it unnecessarily paint Burnett as
an "unusually violent person or as a cold-blooded killer."
Gonsalves, 668 F.2d at 75. Further, the threat can fairly be read
as an impulsive reaction, shouted through a closed jailhouse door.
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Finally, Ms. Rousseau's testimony about the threat was important to
the Government's case to show that Burnett was trying to keep other
evidence she knew about out of his trial–evidence that only she had
to offer. It also helped to establish Rousseau's motive for
testifying against Burnett. Rousseau's credibility was critical to
the Government as Rousseau was the witness who identified Burnett's
jacket found in the hotel room and who identified the guns taken
from Burnett's car as belonging to Burnett. As in Rosa, the
Government's case rested largely on Burnett's coconspirator's
testimony linking Burnett to the drugs found in the safe. The
factors that the district court would have explicitly considered
had Burnett made a Rule 403 objection do not so clearly weigh on
the side of unfair prejudice that we can say that the district
court plainly erred in allowing Rousseau to testify about the
threat. See Shoup, 476 F.3d at 43 (concluding that the district
court's admission of a 911 tape was not plain error where there was
no bright line test precluding the evidence and the court
considered the proper factors in reaching its conclusion that the
tape met the excited utterance hearsay exception).
IV.
We have considered the cumulative effect of the claimed
evidentiary rulings, see United States v. Villarman-Oviedo, 325
F.3d 1, 18 (1st Cir. 2003), and conclude that Burnett received a
fair trial. We have also considered the arguments in Burnett's pro
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se brief, arguments we find to be meritless for both procedural and
substantive reasons. The district court's evidentiary rulings are
upheld, and Burnett's convictions are affirmed.
Affirmed.
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