United States v. Fogg

United States Court of Appeals
For the First Circuit

Nos. 09-1094
09-1132

UNITED STATES OF AMERICA,

Appellee/Cross-Appellant,

v.

RAYMOND FOGG, a/k/a ROCKY,

Defendant, Appellant/Cross-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.

Peter E. Rodway, with whom Rodway & Horodyski, P.A. was on
brief, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Paula D. Silsby, United States Attorney, was on brief, for
appellee.

December 1, 2011
 HOWARD, Circuit Judge. Raymond Fogg, Jr. appeals his

convictions for conspiracy to possess with intent to distribute

marijuana and for social security fraud,1 claiming that the

district court erred by admitting several hearsay statements. The

government cross-appeals the district court's decision not to

impose a forfeiture order. That decision was based on a finding of

Fogg's inability to pay. We affirm appellant's conviction. We

reverse the court's decision to decline to issue a final order of

forfeiture and remand for entry of that order.

I. Background

Fogg's conviction was based on his participation in a

conspiracy to import marijuana from Canada into Maine for re-sale.

The operation was headed by Michael Pelletier, whose conviction we

have affirmed. See United States v. Pelletier, No. 08-1167, slip

op. (1st Cir. December 1, 2011). The gist of the scheme was that

Pelletier paid associates to transport marijuana from Canada by

swimming with the contraband across the St. John River near

Madawaska, Maine. The marijuana was then distributed to various

customers for their use or sale. Fogg was one of those customers.

1
See 18 U.S.C. § 2, 21 U.S.C. § 841(a)(1) and 42 U.S.C. §
408(8)(4).

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 II. Evidentiary issues

During the course of Fogg's five-day trial, three

witnesses testified that Pelletier made statements to them

implicating Fogg in the conspiracy. Pelletier also provided

handwritten notes to one of the witnesses detailing Fogg's

involvement. The testimony and the handwritten notes were admitted

without objection. On appeal, Fogg claims that all of this

evidence was inadmissible hearsay.

A. Testimony of Kendra Cyr

Kendra Cyr2 met Michael Pelletier in 2000 and the two

began dating after Pelletier was released from jail in 2001. She

testified that Pelletier told her that Fogg was one of his

customers.3 Cyr also testified that she collected money from Fogg

on Pelletier's behalf while Pelletier was incarcerated.

Fogg argues that the trial court erroneously admitted

Cyr's testimony under Federal Rule of Evidence 801(d)(2)(E), which

provides that statements by coconspirators during the course of and

in furtherance of a conspiracy are not hearsay. He takes specific

aim at the "in furtherance of" prong of the rule. As there was no

objection at trial, we review for plain error. See United States

v. Rodriguez, 525 F.3d 85, 100 (1st Cir. 2008) (employing plain

2
Cyr testified pursuant to an immunity agreement.
3
She referred to Fogg by his nickname, "Rocky," which the
indictment lists as Fogg's alias.

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error review where defendant did not seek a ruling at the close of

the evidence regarding coconspirator statements) (citing United

States v. Petroziello, 548 F.2d 20 (1st Cir. 1977)).4 To succeed

under this exacting standard, Fogg must demonstrate that the

district court made an error that was clear or obvious, which

affected the defendant's substantial rights and also seriously

impaired the fairness, integrity, or public reputation of judicial

proceedings. United States v. Mitchell, 596 F.3d 18, 25 (1st Cir.

2010).

Admission of a coconspirator statement requires that four

elements be satisfied by a preponderance of the evidence: 1) a

conspiracy must have existed; 2) the defendant must have been a

member of it; 3) the declarant must also have been a member; and 4)

the declarant's statement must have been in furtherance of the

conspiracy. United States v. Colón-Díaz, 521 F.3d 29, 35-36 (1st

Cir. 2008).

As previously noted, Fogg contests only whether

Pelletier's statement to Cyr that Fogg was one of his drug

customers "was in furtherance of the conspiracy." We have little

trouble answering in the affirmative. A statement is in

furtherance of a conspiracy if it "tends to advance the objects of

4
Defense counsel raised the issue of Cyr's testimony with the
court prior to trial. Such in limine consideration, however, does
not serve to preserve the objection for appeal. See Walton v.
Nalco Chem. Co., 272 F.3d 13, 24 n.17 (1st Cir. 2001).

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the conspiracy as opposed to thwarting its purpose." Rodriguez,

525 F.3d at 101. Fogg asserts that rather than enhancing the

object of the conspiracy, Pelletier's statements about Fogg's

involvement was "mere idle chatter underlain by personal rather

than conspiratorial motives." We disagree. Cyr admitted to having

a role in the conspiracy in which she accompanied Pelletier on drug

deliveries and also collected money for him while he was in jail.

Without question, Pelletier's relaying to Cyr the identity of a

customer who owed Pelletier money so that Cyr could collect it was

in furtherance of the conspiracy. See United States v. Sepulveda,

15 F.3d 1161, 1180 (1st Cir. 1993) ("We think it is common ground

-- and common sense -- that the reporting of significant events by

one coconspirator to another advances the conspiracy."). We find

no error, plain or otherwise, in the admission of Pelletier's

statements to Cyr.

B. Testimony of John Parker

John Parker testified that he met Michael Pelletier while

both were incarcerated in a Maine county jail in 2004 and 2005.

After casual conversations between the two led Parker to reveal

that he was skilled in the martial arts, Pelletier offered him a

job both "induc[ing] collections and sales" and swimming marijuana

from Canada across the St. John River into Maine. Parker expressed

interest in the job, and Pelletier, expecting Parker to be released

first, provided him oral and written instructions regarding the

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drug operation. Pelletier also invited Parker to stay at his house

while Parker was working for him, and provided him with handwritten

maps and directions.

Pelletier's handwritten instructions consisted of pages

dedicated to each of his customers, which Parker annotated with his

own handwritten notes. One page indicated that Fogg was a customer

of Pelletier's, and included Pelletier's handwritten instructions

on finding Fogg's home and the price Fogg would have to pay for

marijuana that Parker delivered to him. Parker testified that a

second page with Fogg's name on it indicated that Fogg received

five pounds of marijuana per purchase and that he owed Pelletier

two debts of $25,000 and $12,000, respectively.

Fogg claims that neither Pelletier's statements to Parker

nor the notes he provided to Parker were made during the conspiracy

or were in furtherance of the conspiracy. Once again, however, we

discern no error in the admission of this evidence. Fogg first

argues that the conspiracy ended with Pelletier's November 2004

incarceration, which was before his exchange of information with

Parker. The record suggests otherwise. Pelletier's arrest did not

mandate a finding that the conspiracy had ended. See United States

v. Hudson, 970 F.2d 948, 958 (1st Cir. 1992) (finding that arrest

of one coconspirator did not end defendant's involvement).

Moreover, as Cyr's testimony made clear, both drug delivery and

money collection continued after Pelletier's arrest. In addition,

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Fogg himself testified that the meeting with Cyr to pay down drug

debts took place in approximately September 2005, well after

Pelletier's arrest. Finally, we observe that the indictment

charges that the conspiracy continued "until a date unknown, but

not earlier than March 31, 2006 . . . ." We thus conclude that

Pelletier's oral and written statements to Parker were made during

the course of the conspiracy.

We reach the same conclusion with respect to the

statements' furtherance of the conspiracy. Where, as here, Parker

testified that Pelletier wanted him to "take over everything for

him," we are left with no doubt that the statements at issue were

made to "advance the objects of the conspiracy." Rodriguez, 525

F.3d at 101. Accordingly, there was no error in the admission of

Parker's testimony.

C. Testimony of Adam Hafford

Adam Hafford was one of the swimmers who ferried

marijuana into Maine from Canada on Michael Pelletier's behalf.

While incarcerated in 2007, Hafford met Michael Easler, who had

previously served in the same role under Pelletier. According to

Hafford's testimony, while he and Easler discussed their common

history, Easler told him that he had previously delivered marijuana

to Fogg. Fogg claims on appeal that Hafford's testimony was

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inadmissible hearsay.5 Once again, there was no objection to this

testimony at trial, so we review for plain error.

The government concedes that the jailhouse conversations

between Hafford and Easler likely occurred after the conspiracy

ended, and were not likely to further the conspiracy because Easler

had already exhibited conduct consistent with thwarting the

conspiracy when he stole money and drugs from Pelletier. Thus, the

statements implicating Fogg would not be admissible under Federal

Rule of Evidence 801(d)(2)(E).

Our inquiry does not end there, however. In Pelletier,

we held that Easler's jailhouse statements to Hafford implicating

Michael Pelletier in the conspiracy were admissible as an exception

to the hearsay prohibition pertaining to statements against

interest. Pelletier, slip op. at 12-15; see Fed. R. Evid.

804(b)(3). The same outcome obtains here. A statement is against

the declarant's penal interest if it "tend[s] to subject the

declarant to criminal liability to such an extent that a reasonable

person would not make the statement unless it were true." United

States v. Jiménez, 419 F.3d 34, 43 (1st Cir. 2005) (citing

Williamson v. United States, 512 U.S. 594, 599 (1994)). In

describing the delivery of marijuana to Fogg, Easler undoubtedly

"inculpate[d] him[self] in criminal acts and conspiracies with

5
Hafford also testified about his own dealings with Fogg, as
well as Pelletier's statements implicating Fogg. This testimony is
not at issue on appeal.

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others to commit criminal acts." United States v. Barone, 114 F.3d

1284, 1297 (1st Cir. 1997). He also demonstrated "an insider's

knowledge of a criminal enterprise and its criminal activities,"

which is another indication that the statements were against his

penal interest. Id. Moreover, as we found in Pelletier, the fact

that Easler was speaking to an inmate with whom he was acquainted,

rather than a police officer, is a circumstance that corroborates

the statements' trustworthiness, and thus their admissibility.

Pelletier, slip op. at 14; Barone, 14 F.3d at 1301. Accordingly,

we conclude that there was no plain error in admitting Hafford's

testimony.

III. Forfeiture

Shortly after the jury verdict, the district court

granted the government's motion for a preliminary forfeiture order

against Fogg in the amount of $264,000, approximating his share of

the drug trafficking proceeds.6 The order was based on 21 U.S.C.

§ 853(a)(1), which provides that persons convicted of certain

federal drug crimes "shall forfeit to the United States . . . any

property constituting, or derived from, any proceeds the person

obtained, directly or indirectly, as the result of such violation

6
The government's proposed figure was based on a combination
of the jury verdict, which found Fogg responsible for at least 50
kilograms (110 pounds) of marijuana, and evidence that it was sold
at $2,400 per pound, for a total of $264,000. Fogg did not object
to the forfeiture, except so as to preserve the issue should his
substantive drug conviction be reversed on appeal.

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. . . ." See also Fed. R. Crim. P. 32.2(b)(2) ("If the court finds

that property is subject to forfeiture, it must promptly enter a

preliminary order of forfeiture setting forth the amount of any

money judgment . . . .").7

In addition to forfeiture, the government, based on

Fogg's conviction for Social Security fraud, also sought at

sentencing restitution of approximately $40,000 -- the amount of

benefits Fogg received during his participation in the conspiracy.8

See 18 U.S.C. § 3663. The district court addressed this latter

issue first and outlined Fogg's considerable debts, including child

support arrearage of $110,000 and $30,000 in credit card and

personal loan debts. Relying on the statutory mandate that the

defendant's ability to pay be taken into consideration, see 18

U.S.C. § 3663(a)(1)(B)(i)(II), the district court declined to order

restitution.9 See also United States v. Theodore, 354 F.3d 1, 8-9

7
In issuing the preliminary order, the district court agreed
with the government that the term "proceeds" meant gross receipts,
rather than net profits, an issue addressed after Fogg's
indictment, but before his sentencing, by a divided Supreme Court
in United States v. Santos, 553 U.S. 507 (2008). Fogg does not
contest the district court's interpretation of Santos, so we leave
it undisturbed. Nevertheless, we note that since Fogg's
sentencing, we have held that it was not plain error to instruct a
jury that "proceeds" meant "gross proceeds." United States v.
Bucci, 582 F.3d 108, 124 (1st Cir. 2009).
8
The fraud charge was based on the fact that Fogg did not
report his income from drug dealing while receiving Social Security
disability benefits due to a serious injury suffered years earlier.
9
At certain points during the sentencing hearing, the district
court appeared to conflate the restitution and forfeiture analyses,

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(1st Cir. 2003) (noting requirement that defendant have ability to

pay restitution). The government has not appealed this portion of

the district court's sentencing order. We highlight it here only

to provide context.

Next, without further analysis, the district court

declined to issue a final order of forfeiture.

The district court sua sponte raised this Court's then

recent decision in United States v. Levesque, 546 F.3d 78 (1st Cir.

2008), at the sentencing hearing on January 14, 2009. We set the

context. The defendant did not at any point in the trial court

object to the forfeiture order on Eighth Amendment grounds, nor did

he at any time claim that imposition of the forfeiture amount would

constitute a deprivation of his livelihood and amount to a

constitutional violation. The defendant did not at the hearing

raise Levesque, an Eighth Amendment case decided on October 30,

2008, nor did he ask for a continuance based on Levesque, nor did

he ask for an opportunity to brief Levesque. Indeed, after

consultation with the defendant, counsel expressly declined to

continue the hearing.

seemingly applying Levesque's Eighth Amendment scrutiny to the
restitution issue, even though Levesque itself concerned
forfeiture, not restitution. On balance, however, the record amply
demonstrates that the court ultimately -- and permissibly -- based
its restitution order on the statutorily mandated consideration of
Fogg's ability to pay.

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 The initial discussion at the hearing assumed that

Levesque applied to restitution, the topic then under discussion.

Levesque, by its terms, applies to forfeitures, not to restitution.

The court, as stated, determined that no restitution would be

ordered because defendant lacked the ability to pay. The

prosecutor conceded this order was within the court's power under

the statute.

As to forfeiture, the only argument advanced by the

defendant was that he intended to appeal the drug convictions, and

the forfeiture order was based on the convictions. The court

suggested that it could delay the forfeiture decision "and if the

government wants to make an argument that he does have financial

resources, consistent with Levesque, it could do so." The

prosecution responded that forfeiture should be decided at

sentencing, but unfortunately provided no substantive argument as

to whether Levesque applied to these facts. The court stated, "I

don't see any evidence here that the defendant has the ability to

pay either the forfeiture or the restitution and for that reason,

I'm going to decline to issue a forfeiture and restitution."

The court cited Fogg's inability to pay and its concern

that a forfeiture order in that circumstance would run afoul of the

Excessive Fines Clause of the Eighth Amendment, which we had

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addressed in Levesque.10 In support of its decision, the court

noted that the government had not demonstrated that Fogg had

financial resources to pay. Although the district court's concern

for punctilious adherence to Levesque was admirable, we conclude on

de novo review, United States v. Reiner, 500 F.3d 10, 18 (1st Cir.

2007), that the court did not correctly apply Levesque and

committed other errors. Among them were: first, basing its

forfeiture decision on Fogg's inability to pay; second, placing the

burden on the government to prove that he could pay; and third,

overlooking the fact that defendant had made no Eighth Amendment

argument, no Levesque argument, and had presented no evidence that

the forfeiture order would deprive him of his livelihood.

As noted, our decision in Levesque was issued only a few

months prior to the sentencing in this case. There, we reviewed an

Eighth Amendment challenge to a forfeiture order exceeding $3

million entered against a "mule" in a marijuana distribution

conspiracy. 546 F.3d at 79. At the outset, we noted the

unremarkable proposition that a criminal forfeiture violates the

Excessive Fines Clause if it is "grossly disproportional to the

gravity of the defendant's offense." Id. at 83 (quoting United

States v. Bajakajian, 524 U.S. 321, 337 (1998)); see also United

States v. Jose, 499 F.3d 105, 111 (1st Cir. 2007); United States v.

10
The Eighth Amendment prohibits "excessive bail," imposition
of "excessive fines," and imposition of "cruel and unusual
punishment." U.S. Const. amend. VIII.

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Heldeman, 402 F.3d 220, 223 (1st Cir. 2005). We also outlined the

traditional factors that a court is to consider in performing the

"grossly disproportional" analysis: 1) whether the defendant falls

into the class of citizens targeted by the criminal statute; 2)

other penalties authorized by the legislature or Sentencing

Commission; and 3) the harm caused by the defendant. Levesque, 546

F.3d at 83 (citing Heldeman, 402 F.3d at 223). It is the

defendant's burden to show unconstitutionality. Jose, 499 F.3d at

108.

After finding that the district court properly considered

the Heldeman factors, we noted that our Excessive Fines inquiry

runs deeper where a defendant raises the issue of deprivation of

livelihood: "[A] court should also consider whether forfeiture

would deprive the defendant of his or her livelihood." Levesque,

546 F.3d at 83, (citing Jose, 499 F.3d at 113) (emphasis added).11

Because the district court did not consider this additional factor,

we remanded Levesque for further consideration. Id. at 85.

11
We first addressed this issue in Jose, where, after
recounting the Supreme Court's Eighth Amendment disquisition in
Bajakajian, we held that "it would be appropriate to consider" the
potential deprivation of the defendant's livelihood. Jose, 499
F.3d at 113. As we observed in Levesque, the additional factor
does not come explicitly from Bajakajian, 546 F.3d at 85, but is
our gloss on the Court's comment that the defendant there "d[id]
not argue . . . that full forfeiture would deprive him of his
livelihood, and the District Court made no factual findings in this
regard," Bajakajian, 524 U.S. at 340 n.15.

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 Apart from the error in considering a claim never made by

defendant, the court misconstrued Levesque. Here, instead of

hewing to the analytical framework drawn in Heldeman, the district

court ostensibly proceeded directly to the "extra factor"

delineated in Jose and Levesque. Moreover, although the court

purported to apply Levesque, in doing so the court mistakenly

inquired as to whether Fogg had the means to satisfy the judgment

and never reached the actual inquiry under Levesque of whether

Fogg's post-incarceration livelihood would be imperiled by the

forfeiture.

This error was compounded by the court's requiring the

government to shoulder the burden of proving that Fogg could pay a

forfeiture judgment. See also United States v. Katz, No. 10-1138,

2010 WL 4627872 (1st Cir. Nov. 15, 2010) (finding no plain error in

district court forfeiture order where defendant argued for the

first time on appeal, without citing authority, that

"excessiveness" may be established with reference to the financial

burden created by the forfeiture order).

While we have not "define[d] the contours of this

inquiry." Levesque, 546 F.3d at 85, it is enough to say, as we did

in Levesque, that "a defendant's inability to satisfy a forfeiture

at the time of conviction, in and of itself, is not at all

sufficient to render a forfeiture unconstitutional, nor is it even

the correct inquiry." Id. at 85. Because a money judgment allows

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the government to collect on the forfeiture order "in the same way

that a successful plaintiff collects a money judgment from a civil

defendant[,] . . . even if a defendant does not have sufficient

funds to cover the forfeiture at the time of conviction, the

government may seize future assets to satisfy the order." Id.

IV. Conclusion

A forfeiture that is not "grossly disproportional to the

gravity of the defendant's offense," Bajakajian, 524 U.S. at 337,

violates the Eighth Amendment only if it is "so onerous as to

deprive a defendant of his or her ability to earn a living,"

Levesque, 546 F.3d at 85. While the record contains letters and

other testimonials on Fogg's behalf attesting to his volunteer

contributions in such wide-ranging pursuits as construction and

snowmobile trail building and maintenance, there was no evidence

that the forfeiture order would deprive Fogg of his livelihood.

Appellant's conviction is affirmed. We reverse the

district court's decision to decline to issue a final order of

forfeiture and remand for entry of a final order of forfeiture

consistent with this opinion.

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