United States Court of Appeals
For the First Circuit
No. 08-1167
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL PELLETIER,
Defendant, Appellant.
APPEAL 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.
Stephen D. Riden, with whom Michael J. Tuteur, Erica Templeton
Spencer, Nathalie E. Cohen, Michael Thompson and Foley & Lardner
LLP were 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. After a six-day jury trial in
July 2007, Michael Pelletier was convicted of various counts
related to his role in the importation, possession and distribution
of marijuana.1 He was sentenced to life imprisonment. On appeal,
he asserts that the district court erred when it admitted certain
testimony, improperly instructed the jury, and denied his motion
for acquittal based on insufficiency of the evidence. We affirm.
I. Background
We recite the relevant factual background in the light
most favorable to the verdict. United States v. Gonzalez-Ramirez,
561 F.3d 22, 24 (1st Cir.), cert. denied, 130 S. Ct. 524 (2009).
The scheme at the heart of Pelletier's convictions was relatively
simple. A confederate of Pelletier's either swam or was driven
across the St. John River into Canada from a point near Madawaska,
Maine.2 After meeting with Canadian marijuana suppliers,
Pelletier's associate swam back across the river, most often
carrying the contraband in two, thirty-pound, watertight duffel
bags, although occasionally ferrying larger amounts. The purchase
price of the marijuana was approximately $1,000 per pound.
1
Pelletier was convicted of conspiracies to import and
distribute marijuana, money laundering and Social Security fraud.
He was one of six people indicted on the distribution count. In
addition to Pelletier, who was tried individually, two of the six,
Raymond Fogg and Anthony Caparotta, were convicted in a joint
trial. The others pled guilty.
2
Pelletier himself was confined to a wheelchair due to a
childhood accident.
-2-
Pelletier, or those working under him, later sold the marijuana for
$2,200 - $2,800 per pound.
II. Evidentiary issues
This appeal primarily invokes challenges to the testimony
of Pelletier's former girlfriend and that of Adam Hafford, who was
one of Pelletier's "swimmers."3 Pelletier attacks this testimony
in two slices. The first cantle concerns evidence of Pelletier's
criminal history. The second, directed only at Hafford's
testimony, implicates the hearsay exception for statements against
interest set forth in Federal Rule of Evidence 804(b)(3).
A. Pelletier's prior crimes
On the eve of trial, Pelletier filed a motion in limine
to exclude, inter alia, evidence of his prior drug convictions.4
During a chambers conference prior to the first trial day, defense
counsel agreed that Pelletier would not object to testimony that he
had been in prison, but counsel expressed his objection to
testimony about the reason for Pelletier's incarceration, viz.,
drug trafficking convictions. The trial judge expressed his view
that he "[didn't] think that gets in." The prosecutor responded
that he "didn't anticipate eliciting from any of the witnesses the
reason why Mr. Pelletier was in prison." At the same time,
however, the prosecutor cited various authorities for the
3
Hafford testified pursuant to a plea and cooperation
agreement.
4
According to the government, Pelletier had four felony drug
convictions in Maine state court in 1994 and 2001.
-3-
proposition that prior drug trafficking involvement can be admitted
to prove a defendant's knowledge or intent.
During the first day of trial, Pelletier's former
girlfriend, Kendra Cyr, testified that Pelletier had told her in
January 2001 that he was going to jail "for something he had done
previously." Pursuant to the parties' agreement, the trial court
instructed the jury that the fact of incarceration was offered for
context only, and was neither indicative of Pelletier's character
nor probative as to the pending charges. Things did not go as
smoothly when the subject of Pelletier's prior incarceration was
next broached.
Hafford testified on the third day of trial. He
testified that he met Pelletier "in Windham . . . sometime between
2000 and 2004." When asked why the two were "at Windham," Hafford
replied, "Um, he was there for drug charges, and I was there for -"
at which point defense counsel cut off the testimony with an
objection to the admission of Pelletier's criminal history.5 The
prosecutor immediately stated that he "didn't claim it." At
sidebar, he added that the testimony was elicited unintentionally,
as the result of "an inartfully-phrased question," and that he had
no objection to the jury being instructed to ignore the testimony.
Defense counsel did not immediately agree, noting that "the cat's
out of the bag."
5
The record reflects that in 2001 Hafford and Pelletier were
in a state correctional facility in Windham, Maine, and that
Pelletier was released before Hafford.
-4-
After excusing the jury, the court stated, "I guess my
thought, as I began to hear the questions this morning, was that I
was inclined to admit the evidence of the prior convictions
anyway." The court's reasoning was based on defense counsel's
cross-examination of an earlier witness, Jeff Dubois, regarding
purchasing marijuana from Pelletier. Dubois testified that he did
not literally get the marijuana from Pelletier, agreeing with
defense counsel's characterization that "it would just mysteriously
appear" in his car. According to the court, this "phraseology
invite[d] the jury to allow an argument, if it is going to be made,
that Mr. Pelletier essentially had nothing to do with the fact that
marijuana went into [Dubois's] car." In light of the apparent
defense strategy of showing that Pelletier was only involved with
cash, and not marijuana, the court concluded that the testimony
was probative as rebuttal to an assertion of ignorance or mistake.
Moreover, the court noted that any potential prejudice could be
countered with a limiting instruction.
Defense counsel reiterated the argument made in the
motion in limine that, under Federal Rule of Evidence 403, the
probative value of the convictions was far outweighed by the unfair
prejudice to Pelletier. The government then suggested another
basis for admissibility. Noting that cross-examination of Kendra
Cyr had elicited testimony about Pelletier's potentially legitimate
sources of income, the prosecutor posited that the prior
convictions were probative of Pelletier's intent and knowledge.
The court agreed, denied the motion in limine, and, at defense
-5-
counsel's request, immediately gave a limiting instruction to the
jury. The court first instructed the jury that the evidence could
not be used to show that Pelletier is a bad person or that he
committed the crimes for which he was standing trial, but "only to
show possible motive, his intent, his preparation, any plan, or
absence of mistake or accident." Both sides declined any further
instruction. As Pelletier's counsel requested, the court's final
jury instructions on the prior crime evidence did not include the
purposes for which the evidence could be used.
On the final day of trial, Pelletier called his sister-
in-law (and former girlfriend) Rina Pelletier to testify about his
legitimate sources of income, including watchmaking and jewelry
making. She also testified about her own employment, their joint
purchase of a home, and profits Pelletier made from selling certain
property. On cross-examination, the government asked several
questions concerning Michael Pelletier's drug trafficking
activities and arrest in 2000, prior to the charged conspiracy.
The defense did not object to the cross-examination.
Pelletier argues that admission of Hafford's statement
that Pelletier was in jail "for drug charges" and the questioning
of Rina Pelletier about Michael Pelletier's criminal past violated
Federal Rules of Evidence 403 and 404(b). Given the defense's
trial objection, we review the trial court's admission of Hafford's
statement for abuse of discretion. United States v. Hicks, 575
F.3d 130, 141 (1st Cir.), cert. denied, 130 S. Ct. 647 (2009). The
lack of objection to the government's questioning of Rina Pelletier
-6-
subjects that testimony to plain error review. United States v.
Rodríguez-Berríos, 573 F.3d 55, 63 (1st Cir. 2009), cert. denied,
130 S. Ct. 1300 (2010). There was no error in the admission of any
of the testimony, plain or otherwise.
Rule 404(b) prohibits the admission of evidence of a
person's "other crimes, wrongs, or acts . . . to prove the
character of a person in order to show action in conformity
therewith." Fed. R. Evid. 404(b). While the rule allows such
evidence as proof of "motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident," id.,
the "other acts" may not be used for the sole purpose of proving
that a defendant had a propensity to commit a crime, see Rodríguez-
Berríos, 573 F.3d at 64.
We employ a two-part test to determine whether the
district court abused its discretion under Rule 404(b). First, we
evaluate whether the evidence has "special relevance," that is,
whether it is relevant to any purpose other than to prove that a
defendant has a propensity to commit a crime. Id. Then, special
relevance notwithstanding, we must determine whether the probative
value of the evidence is substantially outweighed by its danger of
unfair prejudice. Id.; Fed. R. Evid. 403.
Pelletier first argues, without citation to case law,
that the court committed reversible error simply because it
admitted the testimony without the prosecution asking for it to
reconsider its original position. We can find no support for this
-7-
reasoning, and proceed to evaluate the district court's decision
under our two-part test.6
First, we agree with the district court that the cross-
examination of government witnesses opened the door to introduction
of Pelletier's prior convictions. Where defense counsel's
questioning raised the specter of Pelletier having legitimate
sources of income, and of not taking part in the delivery of
marijuana which "mysteriously appeared" in a buyer's car, there was
no abuse of discretion in allowing the evidence in response. E.g.,
United States v. Balthazard, 360 F.3d 309, 317 (1st Cir. 2004)
(finding no error in allowing evidence in response to issue raised
by defense counsel). To the contrary, failure to allow such
evidence "could allow 'litigants to create misleading impressions,
secure in the knowledge that the other side was barred from
disabusing the jury.'" United States v. Marin, 523 F.3d 24, 29
(1st Cir. 2008) (quoting United States v. Catano, 65 F.3d 219, 226
(1st Cir. 1995)).
Pelletier next claims that the evidence of his prior drug
crimes had no special relevance. We disagree. In the context of
drug conspiracy cases, we have found prior convictions probative of
knowledge and intent where they indicate a prior relationship
between conspirators, United States v. Landrau-Lopez, 444 F.3d 19,
24 (1st Cir. 2006), and where they may be relevant to the
6
While the prosecutor immediately disclaimed Hafford's
comment, he indicated during a pretrial conference that the
defendant's prior involvement in drug trafficking might become an
issue if Pelletier disputed knowledge or intent at trial.
-8-
defendant's knowledge of the presence of contraband and intent to
distribute it, United States v. Nickens, 955 F.2d 112, 124-25 (1st
Cir. 1992). Here, given Pelletier's apparent defense, these issues
were squarely -- even if only implicitly -- placed before the jury.
Pelletier argues that none of the permissible 404(b)
factors were genuine issues in the case. Instead, he claims that
the defense strategy was to undermine government witness
credibility, rather than to contest any particular aspect of the
case. Based on our review of the transcript of the proceedings,
this claim rings hollow. "[T]he simple fact that [the defendant]
did not argue lack of knowledge or intent . . . would not, by
itself, remove those issues from the case." United States v.
Ferrer-Cruz, 899 F.2d 135, 138 (1st Cir. 1990). Where, as here,
the defendant did not stipulate to the court that he would not
dispute those issues such that the trial court would have been
justified in preventing the very cross-examination conducted below,
the court was well within its discretion in admitting the evidence
under Rule 404(b). See id. at 139.
We also have little difficulty concluding that the
probative value of the evidence exceeded any unfair prejudice to
Pelletier. As we noted in the 404(b) analysis, the evidence was
probative of Pelletier's knowledge and intent, and served to rebut
inferences raised in cross-examination. Moreover, the court's
limiting instruction cabined any potential prejudice. See United
States v. Ofray-Campos, 534 F.3d 1, 35 (1st Cir. 2008). Finally,
to the extent that Pelletier now claims that the limiting
-9-
instruction was defective because it did not pare down the list of
permissible uses of the evidence, we note that trial counsel was
apprised of the proposed language, declined an opportunity to
provide the court with any changes, and again declined comment
after the instruction was read to the jury. We thus deem his
challenge to the limiting instruction waived.7 See United States
v. Medina, 427 F.3d 88, 91-92 (1st Cir. 2005) (finding waiver in
response to "a party's considered decision not to avail itself of
a procedural right").8
Based on the foregoing, we conclude that the testimony
regarding Pelletier's prior crimes was properly admitted.
B. Michael Easler's statements against interest
Hafford testified that Pelletier had recruited him to
help smuggle marijuana, asking Hafford to call when Hafford got out
of prison. Hafford did, in fact, connect with Pelletier upon his
release in 2004. He testified that at a June 2004 meeting,
Pelletier offered him two jobs: swimming marijuana across the river
7
In his reply brief, Pelletier refutes the government's waiver
argument by arguing that defense counsel "did in fact ask that a
limiting instruction not list the purposes for which the evidence
of prior crimes could be used." The transcript citation, however,
is for a colloquy which occurred prior to the court's delivery of
the final jury instructions. The fact remains that counsel
remained silent at the time of the curative instruction at issue.
8
We note that even if the district court did commit error, any
such error was harmless. As trial counsel noted during the final
charging conference, references to Pelletier's criminal past were
"brief" and "in passing." Moreover, the prosecutor did not mention
the prior conviction in his closing argument. See United States v.
Benitez-Avila 570 F.3d 364, 372 (1st Cir.) (finding improper
admission of testimony harmless where it was highly probable that
the error did not influence the verdict), cert. denied, 130 S. Ct.
429 (2009).
-10-
for Pelletier, and finding a man named Michael Easler, who --
Pelletier claimed -- had robbed him of $310,000. Coincidentally,
Hafford had met Easler during his earlier prison stint, and
although the two did not discuss Pelletier, Hafford testified that
before he left prison he learned that Easler had worked for
Pelletier.
That brings us to the second evidentiary challenge, to
Hafford's testimony about a conversation that he had with Easler
while both were in a Maine county jail in 2007. Over defense
counsel's hearsay objection, which was considered at a sidebar
conference, Hafford testified that Easler told him that he was in
jail for drug trafficking; that he had been smuggling marijuana for
Pelletier by swimming across the St. John River with sixty pounds
of marijuana beginning in "springtime" and ending when "there was
ice in the water"; and that he had stolen $110,000 from Pelletier.
Hafford's testimony about Easler's comments was
undoubtedly hearsay, as it was offered to prove the truth of the
matter asserted. Fed. R. Evid. 801(c) and 802. The trial court,
however, accepted the government's argument that it was admissible
as an exception to the hearsay prohibition pertaining to statements
against interest:
A statement which was at the time of its
making so far contrary to the declarant's
pecuniary or proprietary interest, or so far
tended to subject the declarant to civil or
criminal liability, . . . that a reasonable
person in the declarant's position would not
have made the statement unless believing it
was true. A statement tending to expose the
declarant to criminal liability and offered to
exculpate the accused is not admissible unless
-11-
corroborating circumstances clearly indicate
the trustworthiness of the statement.9
Fed. R. Evid. 804(b)(3).
Pelletier claims on appeal that Easler's statements did
not satisfy Rule 804(b)(3). He also claims that the admission of
Easler's statements violated his rights under the Sixth Amendment's
Confrontation Clause. This latter argument was not raised below,
and is therefore reviewed only for plain error. There was no error
under either theory.
1. Rule 804(b)(3)
Pelletier first argues that Easler's statements to
Hafford do not satisfy 804(b)(3) because they are not against his
penal interest, or at least not sufficiently so to warrant their
admission. The construction of the evidentiary rule presents a
question of law and is subject to de novo review. United States v.
Barone, 114 F.3d 1284, 1296 (1st Cir. 1997). The application of
the rule to particular facts is reviewed for abuse of discretion.
Id. A statement is admissible as 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). "[T]his question can only be answered
in light of all the surrounding circumstances." Barone, 114 F.3d
9
The rule also requires that the declarant be unavailable to
testify. Fed. R. Evid. 804(b). The parties so stipulated, as
Easler's counsel had indicated that Easler would invoke his Fifth
Amendment rights against self-incrimination, thus making him
"unavailable" within the meaning of the rule. See Fed. R. Evid.
804(a)(1).
-12-
at 1295 (quoting Williamson v. United States, 512 U.S. 594, 599
(1994)).
In support of his argument, Pelletier notes that Easler's
statements to his fellow inmate were mere "boasts," and were
indistinguishable from the "braggadocio" and "boasting" that we
have previously found lacking in reliability. See, e.g., United
States v. Connolly, 504 F.3d 206, 215 (1st Cir. 2007). This
reliance on Connolly is misplaced. Connolly, and cases it relies
on, involved recantations, which we have described as "generally
viewed with considerable skepticism." Id. at 214 (quoting United
States v. Carbone, 880 F.2d 1500, 1502 (1st Cir. 1989)). Easler's
comments were the opposite of a recantation. Indeed, Easler
implicated himself in the very conspiracy for which Pelletier was
convicted.
Pelletier also suggests that by the time Easler made
those statements, he had already been indicted on charges related
to this case and thus could not have believed his statements to
Hafford would further subject him to criminal liability. This
argument is meritless: the statements "inculpate[d] him in
criminal acts and conspiracies with others to commit criminal
acts." Barone, 114 F.3d at 1297. They 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. Against this backdrop, we
conclude that Easler's statements were sufficiently adverse to his
penal interests to fall within Rule 804(b)(3).
-13-
Our inquiry does not end there, however, as the rule also
requires "corroborating circumstances [that] clearly indicate the
trustworthiness of the statement."10 It is not necessary that the
corroboration consist of "independent evidence supporting the truth
of the matter asserted by the hearsay statements, but evidence that
clearly indicates that the statements were worthy of belief, based
upon the circumstances in which the statements were made." Barone,
114 F.3d at 1300.
The thrust of Pelletier's argument is that Easler had a
strong motive to lie because he had stolen a considerable amount of
money from Pelletier and would therefore benefit from Pelletier's
lengthy incarceration. However, the fact that Easler made the
statements to fellow inmate Hafford, rather than in an attempt to
curry favor with police, cuts in favor of admissibility. See id.
at 1301 (finding fact that declarant made statements to relatives
rather than police a corroborating circumstance). Pelletier also
claims that Easler's attempt to minimize his own role as little
more than that of a swimming drug mule, while at the same time
puffing up Pelletier's role as ringleader, suggests
untrustworthiness. Although this may be a plausible view of
Easler's statements, it is not the only one. The record reflects
that Easler's description of his involvement tracked Hafford's
10
By its terms, the rule in effect during Pelletier's trial
required corroboration only for statements offered to exculpate the
accused. See Fed. R. Civ. P. 804(b)(3) (1975) (repealed 2010). We
have required corroboration for inculpatory statements as well,
Barone, 114 F.3d at 1300 n.10, and the current rule includes the
inculpatory corroboration requirement. Fed. R. Evid. 804(b)(3)
(effective Dec. 1, 2010).
-14-
description of his own aquatic smuggling. This suggests that
Easler was not, in fact, minimizing his role in the conspiracy.
"[T]he 804(b)(3) corroboration inquiry is concerned only
with the admissibility of hearsay evidence based upon its
trustworthiness, a determination committed to the sound discretion
of the district court." Id. Even where the call is close, and we
do not find to it be especially close here, we respect the district
court's determination, absent clear abuse. Barone, 114 F.3d at
1296. We conclude that the district court did not abuse its
discretion in admitting Easler's statements under Federal Rule of
Evidence 804(b)(3).
2. Confrontation Clause
The Confrontation Clause provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him." U.S. Const. amend. VI.
In Davis v. Washington, 547 U.S. 813 (2006), the Court held that
the Confrontation Clause applies only to "testimonial" hearsay.
Id. at 821. Thus, "[t]he threshold question in every case is
whether the challenged statement is testimonial. If it is not, the
Confrontation Clause 'has no application.'" United States v.
Figueroa-Cartegena, 612 F.3d 69, 85 (1st Cir. 2010) (quoting
Whorton v. Bockting, 549 U.S. 406, 420 (2007)).
The testimony about Easler's statements during inmate-to-
inmate conversation was subject to cross-examination in court. The
evidence was not contained in ex parte in-court testimony or an
affidavit. The "primary purpose" of the statements was not the
-15-
establishing or proving of some fact at trial. Bullcoming v. New
Mexico, 564 U.S. , (2011) (slip op., at 9); id. (Sotomayor,
J., concurring, at 1); Michigan v. Bryant, 562 U.S. , (2011)
(slip op., at 11).
Although we have not previously had occasion to apply
Davis to the situation presented here -- statements made by one
inmate to another -- we have little difficulty holding that such
statements are not testimonial. Our position is consistent with
that of both the Supreme Court, see Davis, 547 U.S. at 823 n.2
(noting, in dicta, that statements from one prisoner to another are
"clearly nontestimonial") (citing Dutton v. Evans, 400 U.S. 74, 87-
89 (1970) (plurality opinion)), and other circuit courts that have
held inmate conversations to be nontestimonial, see United States
v. Smith, 383 F. App'x 355, 357 (4th Cir. 2010) (unpublished);
United States v. Spotted Elk, 548 F.3d 641, 662 (2nd Cir. 2008);
United States v. Johnson, 495 F.3d 951, 976 (8th Cir. 2007); United
States v. Johnson, 192 App'x 935, 938 (11th Cir. 2006)
(unpublished); see also United States v. Smalls, 605 F.3d 765, 778
(10th Cir. 2010) (finding statement made to confidential informant
nontestimonial where declarant knew informant only as an inmate);
United States v. Johnson, 581 F.3d 320, 323-24 (6th Cir. 2009)
(same).
Moreover, Easler's jailhouse statements to Hafford bear
none of the characteristics of testimonial hearsay. They were made
not under formal circumstances, but rather to a fellow inmate with
a shared history, under circumstances that did not portend their
-16-
use at trial against Pelletier. See Davis, 547 U.S. at 824 ("An
accuser who makes a formal statement to government officers bears
testimony in a sense that a person who makes a casual remark to an
acquaintance does not." (quoting Crawford, 541 U.S. at 51)); see
also United States v. Brito, 427 F.3d 53, 60 (1st Cir. 2004)
(describing testimonial statements as those that a declarant would
reasonably understand will be preserved for prosecutorial use);
Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004) (finding
statements non-testimonial where they were part of a private
conversation with a non-police officer). Accordingly, we conclude
that the Confrontation Clause was not implicated by the admission
of Hafford's testimony.11
III. Jury Instructions
Pelletier was convicted of, inter alia, conspiracy to
import marijuana and conspiracy to possess with intent to
distribute marijuana. See 21 U.S.C. §§ 841(b)(1)(A)(vii), 846,
960(b)(1)(G), 963. At the close of evidence, the trial judge first
instructed the jury on the elements of conspiracy, including the
requirement that the government prove that Pelletier intended that
the underlying crimes -- importation of marijuana and possession
with intent to distribute marijuana -- be committed.
11
In a footnote to his brief, Pelletier acknowledges Davis's
holding that non-testimonial evidence does not fall within the
Sixth Amendment's proscription, but baldly states that we should
avoid a "rubber-stamp" application of Davis because "the attributes
of Easler's jailhouse statements make them unique." Pelletier does
not, however, elaborate any further. Finding nothing unique about
Easler's statements to Hafford, we see no reason to depart from the
path cut by Davis.
-17-
The court's instruction on the underlying importation
crime included the following language: "It is against federal law
to import marijuana into the United States. To import means to
bring or transport into the United States from someplace outside
the United States." With respect to distribution, the charge
stated: "It is against federal law to have marijuana in your
possession with the intention of distributing it to someone else,
and it is against -- it is against federal law to distribute
marijuana."
Pelletier argues that the instruction on importation was
missing two elements related to scienter: that the importation was
knowing and intentional; and that Pelletier knew the marijuana came
from outside the United States. See United States v. Geronimo, 330
F.3d 67, 72 (1st Cir. 2002) ("[T]o convict a principal actor of
importing a controlled substance, the prosecution must prove that
the accused knew the drugs were imported.") He cites a similar
putative defect in the distribution instruction: that the
instruction lacked the elements of specific intent to distribute,
as well as knowing and intentional possession. United States v.
Dyer, 589 F.3d 520, 534 (1st Cir. 2009) ("[W]e have consistently
held that to prove possession with intent to distribute in
violation of 21 U.S.C. § 841, the government must establish that
the defendant knowingly and intentionally possessed a controlled
substance with specific intent to distribute."), cert. denied, 130
S. Ct. 2422 (2010).
-18-
As no objection was lodged at trial, we review for plain
error. United States v. Garcia-Pastrana, 584 F.3d 351, 382 (1st
Cir. 2009) (noting that plain error standard requires a defendant
to "show an error that was plain (i.e., obvious and clear under
current law), prejudicial (i.e., affected the outcome of the
district court proceedings), and that seriously impaired the
fairness, integrity, or public reputation of the judicial
proceedings" (quoting United States v. Griffin, 524 F.3d 71, 76
(1st Cir. 2008))), cert. denied, 130 S. Ct. 1724 (2010). An
unpreserved objection to a jury instruction will only rarely
justify reversal of a conviction. Id. (citing United States v.
Weston, 960 F.2d 212, 216 (1st Cir. 1992)).
The government claims that there was no error, citing to
the court's preliminary instructions -- given prior to the parties'
opening statements -- which included the following language:
The underlying crime of importing a
drug requires intentional and knowing
importation of that drug and knowledge that
the drug came from outside the United States.
The underlying crime of possessing a
drug with the intent to distribute it requires
intentional possession of the drug with the
specific intent to transfer it to someone
else.
Even if we assume, however, that the preliminary
instructions did not cure subsequent flaws in the final
instructions, Pelletier is not necessarily entitled to relief. A
trial court's failure to instruct the jury on all statutory
elements is not a structural error, and thus Pelletier must show
prejudice to warrant reversal of his conviction. Neder v. United
-19-
States, 527 U.S. 1, 9 (1999); United States v. Hebshie, 549 F.3d
30, 44 (1st Cir. 2008). To meet this burden, Pelletier must show
a "reasonable probability that, but for [the error claimed], the
result of the proceeding would have been different." Hebshie, 549
F.3d at 44; United States v. Moran, 393 F.3d 1, 13 (1st Cir. 2004)
(noting that, in context of jury instructions, plain error requires
showing that allegedly erroneous instruction affected outcome of
trial). We can affirm the conviction if "the result would quite
likely have been the same despite an erroneous instruction."
Hebshie, 549 F.3d at 44 (quoting United States v. O'Brien, 435 F.3d
36, 40 (1st Cir. 2006)) (internal quotation marks omitted).
While the final instruction easily and quickly could have
been corrected if either the defense or prosecution had brought the
issue to the court's attention, we nevertheless conclude that the
result at trial was quite likely unaffected. With respect to the
importation charge, Pelletier's ex-girlfriend Cyr testified about
meeting Pelletier's Canadian drug source at least five times. She
also related Pelletier's tale of hiding money in his wheelchair
seat during a trip to Canada. Hafford, in addition to his
testimony about his conversations with Easler, testified that
Pelletier told him how the scheme worked. The evidence was thus
overwhelming that Pelletier knew the marijuana he was selling came
from outside the United States. Additionally, Cyr's testimony that
Pelletier informed her that Easler was bringing marijuana from
Canada, distributing it for him, and bringing him drug sale
proceeds -- which Cyr testified she counted and stacked with
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Pelletier -- proved beyond doubt Pelletier's knowledge and intent.
Accordingly, the instruction on the count charging conspiracy to
import was not plainly erroneous.
We have little difficulty reaching the same conclusion on
the distribution count. In addition to the evidence limned above,
the jury heard Cyr testify that Pelletier met with customers in
Portland, Maine, and the jury also heard Dubois's testimony about
paying Pelletier for marijuana to sell after he moved to New
Hampshire. Again, the evidence was overwhelming that Pelletier
possessed marijuana with the specific intent to distribute it, and
that he did so knowingly and intentionally.
In sum, Pelletier has failed to demonstrate that the
instructions at issue affected the outcome of the trial. We
therefore conclude that the allegedly improper instructions did not
amount to plain error.
IV. Drug quantity
Pelletier's post-trial motion for acquittal focused
solely on the issue of whether there was sufficient evidence to
support the jury's verdict that the amount of marijuana
attributable to him equaled or exceeded 1,000 kilograms. See 21
U.S.C. § 841(b)(1)(A)(vii); Fed. R. Crim. P. 29. We review de novo
the district court's denial of Pelletier's Rule 29 motion. United
States v. Rodriguez-Lozada, 558 F.3d 29, 39 (1st Cir.), cert.
denied, 130 S. Ct. 283 (2009). We examine the evidence in the
light most favorable to the jury verdict, id., and we must be
satisfied that "the guilty verdict finds support in a plausible
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rendition of the record," United States v. Hatch, 434 F.3d 1, 4
(1st Cir. 2006).
The district court based its denial of Pelletier's motion
primarily, but not exclusively, on Adam Hafford's testimony
regarding both his and Michael Easler's smuggling efforts. Hafford
testified that he carried at least sixty pounds of marijuana on
each international swim, which took place "every week or two weeks"
from June to November 2004. All told, Hafford estimated that he
ferried between 1,000 and 1,500 pounds of marijuana while in
Pelletier's employ. From this testimony, the district court
concluded that the jury was entitled (although not required) to
take the higher number, 1,500 pounds, which translates to 680.38
kilograms.
Next, the district court considered Michael Easler's
contribution to the operation, as related by Hafford's testimony.
As previously discussed, Hafford testified that Easler told him
that he carried sixty pounds of marijuana across the river from
springtime until "there was ice in the water." The district court
found that the jury could reasonably conclude that Easler had
smuggled the same amount of marijuana as did Hafford -- 680.38
kilograms -- bringing the total to 1,360.76 kilograms. To this
total the district court added the amount of marijuana represented
by Easler's theft of drug proceeds from Pelletier. Concluding that
the evidence supported a finding that Easler stole between $250,000
and $310,000, and noting that Pelletier bought the marijuana for
$1,000 per pound, the court found that the cash represented between
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250 and 300 pounds, or 113.39 to 140.61 kilograms. Thus, the
district court concluded that the evidence supported a jury finding
well in excess of 1,000 kilograms.
Pelletier's appellate argument boils down to two
contentions. The first is that Easler's hearsay statements should
not have been placed before the jury, an argument we have already
rejected. Beyond the evidentiary argument, Pelletier also asserts
that Hafford's estimate of his own involvement and Easler's
"springtime to ice in the water" time frame were too imprecise to
form the basis for a jury verdict. We disagree. Reduced to its
essence, Pelletier's argument is that the jury should have rejected
the numbers provided by Hafford and Easler (through Hafford), or
that could have been inferred from their statements. Our review,
however, "requires that we assume that the jury accepted the
government's evidence and drew inferences in its favor." United
States v. Santiago, 560 F.3d 62, 65 (1st Cir.) (emphasis added),
cert. denied, 130 S. Ct. 140 (2009). Sufficient evidence existed
for a reasonable jury to have found beyond a reasonable doubt that
Pelletier conspired to import and possess with the intent to
distribute 1,000 kilograms or more of marijuana.
Affirmed.
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