United States Court of Appeals
For the First Circuit
____________________
No. 99-1547
UNITED STATES,
Appellee,
v.
JOHN BALTAS, SR., a/k/a Cadillac Jack,
a/k/a John DiPinto,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
____________________
Before
Boudin and Lipez, Circuit Judges,
Casellas,* District Judge.
_____________________
Robert David Dimler, by appointment of the Court, with whom
The Law Office of Robert D. Dimler , was on brief for appellant
John Baltas, Sr.
Kirby A. Heller, Attorney, Department of Justice, with whom
Donald K. Stern, United States Attorney, and Andrew Levchuk,
Assistant U.S. Attorney, were on brief, for appellee.
____________________
January 2, 2001
____________________
_____________________
* Of the District of Puerto Rico, sitting by designation.
CASELLAS, District Judge. Following a jury trial, defendant-
appellant John Baltas, Sr.1 (hereinafter “Baltas”) was convicted of
conspiracy to possess with intent to distribute and to distribute
heroin, in violation of 21 U.S.C. § 846. The district court sentenced
him to 188 months in prison, followed by 5 years of supervised release.
Baltas now challenges his conviction and sentence alleging a potpourri
of pretrial, trial, and sentencing issues. Because we conclude that
none of Baltas’s arguments have merit, we affirm.
I. BACKGROUND
A federal grand jury indicted Baltas and twelve other
individuals for various crimes arising out of their involvement in the
Connecticut and Massachusetts chapters of the Diablos Motorcycle Club
(hereinafter the “Diablos,” or the “Club”). Particularly, Baltas was
charged, either alone or in combination with other defendants, with
conspiracy to conduct and actually conducting the affairs of an
enterprise through a pattern of racketeering activity, respectively, 18
U.S.C. §§ 1962(d) (count 1, “RICO conspiracy”) and 1962(c) (count 2,
1
Baltas was tried and convicted with a number of other defendants.
Their appeals were heard at the same time, and subsequent decisions
will address their appeals. United States v. Houle, No. 99-1310 (1st
Cir. filed February 10, 1999); United States v. Lafreniere, No. 99-1318
(1st Cir. filed February 17, 1999).
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“substantive RICO”); conspiracy to possess with intent to distribute
and to distribute heroin, 21 U.S.C. § 846 (count 32); and possession
and interstate transportation of firearms as a convicted felon, 18
U.S.C. § 922(g)(1) (counts 40 and 41). The indictment also sought
forfeiture of certain property belonging to Baltas.
Before trial, Baltas unsuccessfully moved to sever and to
suppress certain evidence relevant to his count of conviction. At the
end of the government’s case, he moved for judgment of acquittal and to
strike certain evidence relating to the RICO counts. The district
court granted his motion for acquittal as to these counts, denying it
as to the remaining portions of the indictment.2 In light of this
ruling, the court then granted Baltas’s motion to strike.
Baltas also requested an instruction on the defense of
entrapment, which the district court denied. During the jury charge,
Baltas did not object to the omission of an entrapment instruction.
Finally, Baltas leveled various challenges to his presentence report,
and moved for downward departure without success.
On appeal, Baltas assigns error to the district court’s
denials of his pretrial, trial and sentencing requests. We sketch the
facts contained in the record in the light most favorable to the jury’s
verdict. See United States v. González-Vázquez, 219 F.3d 37, 40 (1st
2
Baltas renewed his motion at the end of his case, but to no
avail.
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Cir. 2000). We supplement our account as it becomes necessary to the
discussion of Baltas’s particular claims of error.
The Diablos originated in San Bernardino, California in
the 1960's, and then expanded to other areas of the country. At the
times relevant to this appeal, the Diablos were a national organization
with chapters in California, Connecticut, Florida, Indiana,
Massachusetts, and New Hampshire. They were governed by a written
constitution, which conditioned membership, inter alia, upon being at
least 21 years of age, Caucasian, and owning a firearm and a Harley-
Davidson of a particular size. Membership was by invitation only, and
neither women nor African-Americans were allowed. Members first had to
serve some time as “prospects,” a role similar to that of a pledge in
a fraternity, before being eligible for full membership. The Diablos
also had a governing structure which included both national and chapter
officers. Baltas was one of the Club’s founders and its national
president.
One of the prosecution’s primary witnesses at trial was
William Alvis (hereinafter “Alvis”). Before becoming a Diablo, Alvis
had been a member of another motorcycle club, the Barbarians, where he
became familiarized with the biker culture and language. While
affiliated with the Barbarians, Alvis was charged with the commission
of several crimes not related to the instant indictment, and eventually
began cooperating with government authorities. He infiltrated the
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Diablos at the behest of the FBI. One law enforcement concern with the
Diablos was three unsolved motorcycle-club related murders, in which it
was suspected that members of the Diablos had been involved.
At trial, Alvis stated that one important characteristic
of the Club was the sense of brotherhood among its members. Alvis’s
trust and confidence within the Diablos, together with his familiarity
with the biker culture, allowed him to become a prospect and later a
full-fledged member. He developed close relationships with several
members of the Club, and ultimately became its vice president. Alvis
was thus the FBI’s “eyes and ears inside of the Diablos organization.”
Because of his status within the Diablos, Alvis was able
to gather for the FBI valuable information about the Club’s structure
and day-to-day operations. He was also able to introduce several
undercover agents into the Club, and, with their help, orchestrate a
number of criminal schemes involving the Diablos. One of these schemes
concerned a reverse-sting heroin deal. The government’s evidence of
the circumstances surrounding this scheme consisted mainly of Alvis’s
trial testimony, aided by evidence derived from the interception of
certain communications made pursuant to Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq.
(hereinafter “Title III”). What follows is a summary of this evidence.
By the end of July of 1995, the Club was facing financial
difficulties. Alvis, who at that time was treasurer of the
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Massachusetts chapter, held a meeting where he informed chapter members
of the situation and told them that they would probably be evicted from
the clubhouse because the rent was in arrears. As a way of generating
money for the chapter, Alvis suggested that some members assist him in
a drug deal. Alvis specifically told the Diablos that he needed them
to “[r]un security for [a] transportation of heroin.” The plan
consisted in picking up the drugs at one point and delivering them at
another. He also explained that each participant would be paid $500,
which money would be contributed to the chapter’s treasury.
Baltas, who happened to be present at the meeting, agreed
to the idea. He voiced his support by reminding members of their
commitment to the Club, and even proposed a few ideas for carrying out
the plan without attracting attention upon the Diablos. Moreover,
Baltas directed Alvis to “[t]ake the guys . . . best suited for the
job.”
The following day, Alvis traveled to Connecticut for a
chapter meeting, where he met Baltas at the chapter’s clubhouse.
Baltas asked Alvis how many members had volunteered to participate in
the deal, and offered to recruit additional help upon learning that
only two had come forward. As promised, Baltas talked to two other
members who later got in contact with Alvis and eventually participated
in the transaction.
The deal finally took place on August 7, 1995, and Baltas
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and Alvis met in Connecticut the following day. Alvis gave Baltas
$250.00 for his recruiting efforts. Baltas did not directly
participate in the transaction.
II. DISCUSSION
A. Suppression
Baltas contends that the district court erred in denying
his motion to suppress the evidence obtained through electronic
surveillance. Below, Baltas sought suppression of the intercepted
communications alleging: (1) that the issuance of the warrant was not
grounded on probable cause; (2) that the accompanying affidavit failed
to show the unlikely success of alternative investigative procedures;
(3) that in executing the warrant, the government failed to minimize
the interceptions; (4) that the interceptions went beyond the scope of
the warrant; and (5) that the warrant failed to specify the types of
communications to be intercepted. Upon referral by the district court,
the magistrate judge, after conducting an evidentiary hearing, issued
a report and recommendation that the motion be denied. Adopting the
magistrate judge’s report and recommendation, the district court denied
the motion.
Here, Baltas renews his attack on the government’s
minimization procedures. Specifically, Baltas challenges that the
intercepting agents failed to minimize the interception of
communications from approximately 9:04 p.m. until 10:09 p.m., on April
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21, 1995. He further alleges that “during the spot checks after 10:09
p.m., the agents obviously listened to more of the conversations than
was necessary to have been able to know that they should have stopped
listening.” Focusing on these alleged violations, Baltas protests that
all the evidence obtained through electronic surveillance should have
been suppressed.
We affirm the district court’s denial of Baltas’s motion
for substantially the reasons cogently set forth in the magistrate
judge’s report and recommendation adopted by the district court.
“[W]hen a lower court produces a comprehensive, well-reasoned decision
an appellate court should refrain from writing at length to no other
end than to hear its own words resonate.” United States v. Vélez
Carrero, 140 F.3d 327, 329 (1st Cir. 1998) (quoting Lawton v. State
Mutual Life Assurance Co. of America, 101 F.3d 218, 220 (1st Cir.
1996)). We only hesitate to add two comments.
First, the evidence obtained by the April 21 interception
was not introduced at trial in relation to Baltas’s count of
conviction, to wit: conspiracy to possess with intent to distribute
heroin. In fact, none of the communications intercepted on April 21
were introduced at trial. Thus, any possible error in adequately
minimizing such interception was harmless.
Second, total suppression of electronic surveillance
evidence is not appropriate unless the moving party shows that there
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was a “taint upon the investigation as a whole sufficient to warrant
[such] sweeping relief . . . .” United States v. Charles, 213 F.3d 10,
23 (1st Cir. 2000) (quoting United States v. Hoffman, 832 F.2d 1299,
1307 (1st Cir. 1987)). That is, errors in minimizing one particular
interception within the context of a lengthy and complex investigation,
such as the one involved in this case, do not automatically warrant the
suppression of all the evidence obtained through electronic
surveillance. Even assuming that the government failed to minimize the
April 21 interception, total suppression would not follow, because
Baltas has not demonstrated that the entire surveillance was tainted.
B. Severance
Baltas next argues that the district court erred in
denying his motion for severance. He also assigns fault to the
district court’s refusal to hold a pretrial hearing on the
admissibility of coconspirator statements.
Baltas was originally charged in a superseding indictment
with a controlled substances law violation. Although the indictment
also included various RICO charges, Baltas was not targeted in any of
them. Accordingly, he moved to sever the RICO from the non-RICO
counts, and his trial from those of his co-defendants. The magistrate
judge denied the motion without prejudice. Following the filing of the
second superseding indictment, which charged Baltas with RICO
conspiracy and substantive RICO, he renewed his motion before the
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district court, but to no avail.
In this case, joinder of counts and defendants in the
second superseding indictment was proper. Of the 28 racketeering acts
pertinent to the RICO conspiracy alleged in count 1, two implicated
Baltas, predicate acts 3 (kidnapping) and 23 (conspiracy to possess
with intent to distribute heroin). These acts were also charged as
substantive RICO violations. Furthermore, act 23 was separately
charged as an offense in count 32, Baltas’s count of conviction. Thus,
the counts were properly joined under Rule 8(a) as charging “two or
more acts or transactions connected together or constituting parts of
a common scheme or plan.” Fed. R. Crim. P. 8(a). See United States v.
Zannino, 895 F.2d 1, 16 (1st Cir. 1990) (“offenses committed pursuant
to the same (charged) racketeering enterprise and conspiracy may be
joined in a single indictment”). The defendants were also properly
joined. See United States v. Boylan, 898 F.2d 230, 245 (1st Cir.) (“So
long as there is a responsible basis for the averments, charging an
omnibus RICO conspiracy normally supplies the glue necessary to bond
multiple defendants together in a single proceeding where all are
accused of participating in the conspiracy.”).
Baltas insists nonetheless that he was unduly prejudiced
by the district court’s denial of his motion for severance. Under Rule
14, a district court may order separate trials of counts or defendants
“[i]f it appears that a defendant or the government is prejudiced by a
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joinder of offenses or of defendants in an indictment. . . or by such
joinder for trial together . . . .” Fed. R. Crim. P. 14. In making
this determination, the district court enjoys wide latitude. See
United States v. Rogers, 121 F.3d 12, 16 (1st Cir. 1997). We review a
district court’s refusal to sever for “manifest abuse of discretion,”
United States v. DeLeón, 187 F.3d 60, 63 (1st Cir. 1999), reversing
only upon a “strong showing of evident prejudice,” United States v.
O’Bryant, 998 F.2d 21, 25 (1st Cir. 1993), that joinder “deprived
defendant of a fair trial, resulting in a miscarriage of justice,”
United States v. Tejeda, 974 F.2d 210, 219 (1st Cir. 1992) (citations
and internal quotation marks omitted). Because Baltas has failed to
shoulder this burden, we affirm the district court’s ruling.
Baltas maintains that he was prejudiced because the jury
was allowed to hear evidence that would have been irrelevant or
inadmissible against him in a separate trial on the drug and firearms
counts. In trying to prove his point, Baltas cursorily refers to the
evidence relating to the predicate acts upon which the RICO charges
rested, arguing that such evidence would not have been admissible in a
trial without the RICO charges. He further contends that a separate
trial would have inoculated the jury’s verdict from being tainted by
spillover prejudice. None of these arguments have merit.
First, “[t]his court’s rule is that those ‘who are
indicted together should be tried together,’ and the district court’s
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joinder in this case appropriately followed that presumption.” DeLeón,
187 F.3d at 63 (quoting O’Bryant, 998 F.2d at 25).
Second, Baltas’s allegations of prejudice are rather
conclusory, and thus do not suffice to overcome the presumption in
favor of joinder. See United States v. Neal, 36 F.3d 1190, 1204 (1st
Cir. 1994) (conclusory allegations held insufficient to show requisite
prejudice). “There is always some prejudice in any trial where more
than one offense or offender are tried together — but such ‘garden
variety’ prejudice, in and of itself, will not suffice.” Boylan, 898
F.2d at 246. Moreover, we have consistently reiterated our reluctance
to second-guess a lower court’s refusal to sever “[e]ven where large
amounts of testimony are irrelevant to one defendant, or where one
defendant’s involvement in an overall agreement is far less than the
involvement of others . . . .” Id. at 246; see also United States v.
Levy-Cordero, 67 F.3d 1002, 1007 (1st Cir. 1995); United States v.
DeMasi, 40 F.3d 1306, 1313 (1st Cir. 1994); O’Bryant, 998 F.2d at 26.
Third, the district court took appropriate measures to
prevent potential spillover prejudice by instructing the jury, both
during the preliminary and closing charges, to consider the evidence
separately as to each count of the indictment, and to determine guilt
on an individual basis. Moreover, as it is more particularly discussed
infra, the court also gave limiting instructions during trial as to the
admissibility of certain potentially prejudicial evidence pertaining to
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Baltas. Baltas’s acquittal on the firearms charges (counts 40 and 41)
demonstrates that the jury was able to follow these instructions. See
DeLeón, 187 F.3d at 64 (considering a discriminating verdict as
evidence that the jury was capable of following the district judge’s
instructions); United States v. Edgar, 82 F.3d 499, 504 (1st Cir. 1996)
(same); Neal, 36 F.3d at 1205 (same); Boylan, 898 F.2d at 246 (same);
see also United States v. Tracy, 989 F.2d 1279, 1284 (1st Cir. 1993)
(“The jury’s selectivity in its verdict affords ‘reasonably good
assurance’ that spillover prejudice did not result from joinder of
offenses.”) (quoting United States v. Natanel, 938 F.2d 302, 308 (1st
Cir. 1991).
Baltas alternatively argues that even if severance was not
warranted, the district court should have mitigated spillover prejudice
by holding a pretrial hearing on the admissibility of coconspirator
hearsay statements pursuant to United States v. James, 590 F.2d 575
(5th Cir.) (en banc). During the proceeding below, Baltas made various
requests for a ruling on the admissibility of coconspirator statements
relating to the RICO charges under Fed. R. Evid. 801(d)(2)(E). The
court denied the requests and provisionally allowed the evidence,
declining to make a final admissibility determination, in accordance
with United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977).
As a consequence of its ruling on Baltas’s Rule 29 motion,
the district court struck the evidence at issue either in its entirety,
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or for all but credibility purposes. Baltas argues that because the
trial court had ultimately to instruct the jury to either
compartmentalize or totally disregard this evidence, he was unfairly
prejudiced by the court’s refusal to conduct a pretrial James hearing.
According to him, if the trial court had made its evidentiary ruling
before trial, thereby preventing the evidence from reaching the jury,
his trial “would not have been contaminated by such a large amount of
harmful inadmissible evidence.”
The Fifth Circuit in James held that “[t]he district court
should, whenever reasonably practicable, require the showing of a
conspiracy and of the connection of the defendant with it before
admitting declarations of a coconspirator.” 590 F.2d at 582. The
circuit court recognized, however, that if the district court
“determines it is not reasonably practical to require a showing to be
made before admitting the evidence, [it] may admit the statement
subject to being connected up.”3 Id. All in all, “[t]his is a matter
committed to the broad discretion of the trial court.” United States
v. Fragoso, 978 F.2d 896, 900 (5th Cir. 1992) (approving deferral of
determination to admit the statement until the close of the
government’s case); see also United States v. González-Balderas, 11
3
“In that event,” similar to the procedure followed in this
circuit under United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir.
1977), “the court may conditionally admit the statement subject to a
subsequent final determination,” United States v. González-Balderas, 11
F.3d 1218, 1224 (5th Cir. 1994).
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F.3d 1218, 1224 (5th Cir. 1994) (same).
The usual course of action in this circuit, however, is to
admit the hearsay evidence provisionally, “subject to [a] final
Petrozziello determination, which should be made ‘at the close of all
the evidence’ and ‘out of the hearing of the jury.’” United States v.
Portela, 167 F.3d 687, 702 (1st Cir. 1999) (quoting United States v.
Ciampaglia, 628 F.2d 632, 638 (1st Cir. 1980)). In this case, the
district court appropriately determined to admit the statements
provisionally, even though it had to subsequently strike some of them,
in whole or in part, due to its ruling on Baltas’s Rule 29 motion. In
so doing, the court took the necessary precautions to minimize
spillover prejudice by giving appropriate cautionary instructions to
the jury. Because Baltas has not shown that the district court’s
determination to admit the evidence provisionally was clearly
erroneous, and since we have already determined that the selective
verdict demonstrates that the jury was able to follow the court’s
instructions, we sustain the trial court’s determination. See Portela,
167 F.3d at 703 (“We will sustain the trial court’s determination
[regarding admission of coconspirator statements unless it is clearly
erroneous.”).
C. Sufficiency of the Evidence
Baltas further presses the claim that the evidence was
insufficient to convict him on count 32, insisting that the trial court
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should have granted his motion for judgment of acquittal. We review
these claims de novo, see United States v. Collazo-Aponte, 216 F.3d
163, 193 (1st Cir. 2000), unitarily applying the familiar sufficiency-
of-the-evidence standard, see United States v. Hernández, 218 F.3d 58,
64 n.4 (1st Cir. 2000) (“‘[C]hallenges to the sufficiency of the
evidence and to the denial of the motion for judgment of acquittal
raise a single issue’” and thus we apply the traditional sufficiency of
the evidence standard to these claims.”) (quoting United States v.
Morillo, 158 F.3d 18, 22 (1st Cir. 1994)).
Under this standard, we review all the evidence, direct
and circumstantial, in the light most favorable to the prosecution,
drawing all reasonable inferences consistent with the verdict, and
avoiding credibility judgments, to determine whether a rational jury
could have found the defendant guilty beyond a reasonable doubt. See,
e.g., United States v. Marrero-Ortiz, 160 F.3d 768, 772 (1st Cir.
1998); United States v. Laboy-Delgado, 84 F.3d 22, 26 (1st Cir. 1996).
It is immaterial that a possible rendition of the record could support
a not guilty verdict; it is enough that a rational trier of fact could
have construed the evidence to find guilt beyond a reasonable doubt.
See Hernández, 218 F.3d at 64; Laboy-Delgado, 84 F.3d at 26-27.
“The insufficiency of the evidence in this case,” Baltas
asserts, “turns on one specific point,” to wit: that there was no
evidence that he conspired to possess heroin with intent to distribute
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and to distribute it. He protests that “[t]he government’s evidence,
at best, proved that [he] joined a conspiracy to aid and abet a drug
deal, but not to actually deal in drugs.” According to Baltas, the
evidence failed to show that he was involved in the selling or buying
of the drugs.
“‘To prove a drug conspiracy charge under 21 U.S.C. § 846,
the government is obliged to show that a conspiracy existed and that a
particular defendant agreed to participate in it, intending to commit
the underlying substantive offense.’” Collazo-Aponte, 216 F.3d at 191
(quoting United States v. Sepúlveda, 15 F.3d 1161, 1173 (1st Cir.
1993)). Thus, “the government must show two kinds of intent: ‘intent
to agree and intent to commit the substantive offense.’” Hernández,
218 F.3d at 65 (quoting United States v. Gómez-Pabón, 911 F.2d 847, 852
(1st Cir. 1990)). It need not show, however, “that a given defendant
took part in all aspects of the conspiracy.” Sepúlveda, 15 F.3d at
1173. As the Supreme Court in Salinas v. United States, 522 U.S. 52,
65 (1997) explained:
A conspirator must intend to further an
endeavor which, if completed, would satisfy all
of the elements of a substantive criminal
offense, but it suffices that he adopt the goal
of furthering or facilitating the criminal
endeavor. He may do so in any number of ways
short of agreeing to undertake all of the acts
necessary for the crime's completion. One can be
a conspirator by agreeing to facilitate only some
of the acts leading to the substantive offense.
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The evidence established that Baltas actively participated
in the preliminary discussions of the plan for the heroin transaction
by encouraging Club member participation and suggesting ways in which
to minimize the risk of exposure. He was well aware that the plan
entailed the transportation of the heroin from one location to another.
Furthermore, he played an active role in arranging for the provision of
armed security for the deal.
Based on this evidence a reasonable jury was entitled to
find, beyond a reasonable doubt, that Baltas agreed to participate in
a conspiracy with the intent to distribute heroin. The fact that he
may not have been personally involved in selling or buying the drugs is
of no importance, for it is well settled that “‘proof of direct
participation in the sale of drugs is not required to convict in a drug
conspiracy case.’” Collazo-Aponte, 216 F.3d at 193 (quoting Marrero-
Ortiz, 160 F.3d at 773). What is important is that he was cognizant
that the heroin would be delivered from one place to another in the
course of the distribution; such delivery alone constitutes
distribution for purposes of the drug statute. 21 U.S.C. § 802(11)
(defining “distribute” to mean “deliver.”); see also United States v.
Ocampo-Guarin, 968 F.2d 1406, 1410 (1st Cir. 1992). Therefore, his
conviction must be affirmed.
D. Instructional Claim
Baltas also assigns error to the district court’s denial
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of his request for an instruction on entrapment. Because Baltas did
not register a post-charge objection to the omission of an entrapment
charge, as mandated by Fed. R. Crim. P. 30,4 we review the district
court’s decision for plain error. See United States v. Arthurs, 73
F.3d 444, 448 (1st Cir. 1996).
To be entitled to a defense on entrapment, a defendant
must produce “some evidence” of both improper government inducement and
lack of criminal predisposition. See United States v. Gamache, 156
F.3d 1, 9 (1st Cir. 1998). The defense is not available unless both
elements exist. See United States v. Vega, 102 F.3d 1301, 1304 (1st
Cir. 1996).
Baltas challenges that Alvis improperly induced him to
join the conspiracy by exploiting his Diablo “pride and joy,” and by
“playing up the financial troubles of the club, and the need for
revenue.” This is a far stretch. Improper inducement “goes beyond
providing an ordinary opportunity to commit a crime.” United States v.
Gendron, 18 F.3d 955, 961 (1st Cir. 1994) (citation and internal
quotation marks omitted). “An inducement consists of an ‘opportunity’
plus something else—typically, excessive pressure by the government
4
Rule 30 of the Federal Rules of Criminal Procedure establishes
that “[n]o party may assign as error any portion of the charge or
omission therefrom unless that party objects thereto before the jury
retires to consider its verdict, stating distinctly the matter to which
that party objects and the grounds of the objection.” Fed. R. Crim. P.
30.
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upon the defendant or the government’s taking advantage of an
alternative, non-criminal type of motive.” Id.
In this case, the evidence at trial established that
Baltas joined the conspiracy on his own accord. Alvis merely presented
the Massachusetts Diablos with a plan to alleviate their strangling
financial situation. Alvis may have been well regarded by his fellow
Diablos and loyalty to the Club may have been strong among its members.
Yet, the existence of these circumstances, without a plea predicated
upon them, is legally not enough to constitute improper inducement.
See United States v. Young, 78 F.3d 758, 761 (1st Cir. 1996) (rejecting
“the proposition that friendship, without a plea predicated upon
friendship, suffices legally as inducement”). Contrary to his claim,
the record shows that it was Baltas — who quickly seized on Alvis’s
idea — and who played upon the Diablos’s commitment to the Club to
promote participation in the plan, by stating: “Well, you know what?
This is an outlaw motorcycle club. It’s not a 50/50 club, it’s not a
70/70 club. . . . [Y]ou got to take your shot.” Absent improper
inducement, the district court was not obliged to instruct the jury on
entrapment, and thus our inquiry should end here. Nevertheless, we
note that Baltas also failed to show at trial that he lacked the
requisite predisposition. Therefore, because we conclude that Baltas
was not entitled to have the jury consider his defense of entrapment,
we affirm the district court’s decision.
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E. Sentencing
1. Acceptance of Responsibility
Baltas claims that the district court erroneously declined
to reduce his offense level for acceptance of responsibility under
U.S.S.G. § 3E1.1(a). A defendant qualifies for this adjustment when he
“clearly demonstrates acceptance of responsibility for his offense.”
Id. It is incumbent upon the defendant to prove entitlement to a
decrease in the offense level. See United States v. Rosario-Peralta,
199 F.3d 552, 570 (1st Cir. 1999). We will not reverse a district
court’s decision to withhold a reduction in the offense level unless
clearly erroneous. See id.
Although a defendant does not necessarily forfeit the
possibility of obtaining a reduction for acceptance of responsibility
by going to trial, doing so “greatly diminishe[s] his chances of
receiving [such an] adjustment.” Id. Only in “rare situations” a
defendant who elects to exercise his constitutional right to a trial
will qualify for a decrease in his offense level for acceptance of
responsibility.5 As explained in Note 2 of the Comment to § 3E1.1:
This adjustment is not intended to apply to a defendant
who puts the government to its burden of proof at trial
by denying the essential factual elements of guilt, is
5
We note that although “[t]he guideline admittedly imposes a tough
choice on a defendant . . ., it is not unconstitutional . . . .” See
United States v. DeLeón Ruiz, 47 F.3d 452, 456 (1st Cir. 1995)
(citations omitted); see also United States v. Rosario-Peralta, 199
F.3d 552, 570-71 (1st Cir. 1999).
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convicted, and only then admits guilt and expresses
remorse. Conviction by trial, however, does not
automatically preclude a defendant from consideration
for such a reduction. In rare situations a defendant
may clearly demonstrate an acceptance of responsibility
for his criminal conduct even though he exercises his
constitutional right to a trial. This may occur, for
example, where a defendant goes to trial to assert and
preserve issues that do not relate to factual guilt
(e.g., to make a constitutional challenge to a statute
or a challenge to the applicability of a statute to his
conduct). In each such instance, however, a
determination that a defendant has accepted
responsibility will be based primarily upon pre-trial
statements and conduct.
U.S.S.G. § 3E1.1 cmt. note 2.
In the case at bar, the district court correctly
determined that Baltas was not entitled to an offense level reduction
pursuant to § 3E1.1. First, the record is barren of any pretrial
statements or conduct indicating that Baltas accepted responsibility.
Second, his situation does not fit any of the examples presented in the
guideline commentary, and it is by no means “rare.” He asserts
nonetheless that he did not proceed to trial to contest factual guilt,
but to “to test the strength of the government’s case . . . .”6 In this
6
Baltas also contends that “[t]o the extent that he also wanted to
argue entrapment, he was not thereby failing to take responsibility for
his actions.” Some circuits have held that a defendant’s going to
trial to allege entrapment does not preclude a reduction for acceptance
of responsibility, see, e.g., United States v. Fleener, 900 F.2d 914,
918 (6th Cir. 1990), while others have held that the defense of
entrapment and U.S.S.G. § 3E1.1 are incompatible, see, e.g., United
States v. Kirkland, 104 F.3d 1403, 1405 (D.C. Cir. 1997). Today, we
have no need to decide the issue because the record belies any claim
that Baltas “clearly demonstrate[d] acceptance of responsibility for
(continued...)
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view, he suggests that the trial court’s dismissal of the RICO counts,
and the jury’s not-guilty verdicts as to the firearms counts tilt the
balance in his favor. This argument is unavailing; Baltas could have
pleaded to the drug count and still gone to trial on the remaining
ones. See United States v. DeLeón Ruiz, 47 F.3d 452, 455 (1st Cir.
1995) (“[A]bsent unusual facts, we will . . . generally sustain a
district court that denies acceptance of responsibility to a defendant
who declined to plead guilty on the count or counts of which he was
convicted.”). Moreover, from the beginning of the case, Baltas
contested his guilt.7 As his counsel stated in opening:
Now, I told you, before Mr. Baltas comes into this
courtroom he’s presumed innocent. As soon as the first
time that he was brought before a court and said you’ve
been indicted, how do you plead, and he pleaded not
guilty, he join[ed] that issue for trial.
At the sentencing hearing, the district court, in refusing
to adjust Baltas’s offense level for acceptance of responsibility,
expressed:
As I understand it, I think Mr. Baltas takes the
position, which I don’t blame him for if that’s his
position, that he never participated in any kind of a
heroin conspiracy; that he never assisted the group of
people to carry out that conspiracy; that he never had
6
(...continued)
his offense.” U.S.S.G. § 3E1.1.
7
Even his statements before this court confirms this. For
example, in his supplemental brief, Baltas asserts that he has
“consistently maintained that he is innocent[, and] that [h]e never
conceded that he was part of any conspiracy to possess heroin.”
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any intent to associate with them, and so on, and that
just strikes me as not acceptance of responsibility.
I’m not saying he ought to, but what I am saying is
given his position, I have a very hard time
understanding how that equals acceptance of
responsibility.
Baltas also makes reference to his allocution, where he
told the trial judge: “[l]ike I said, I can accept my responsibility
for what I did.” When viewed in proper context, this statement loses
almost all significance. In berating the government for conducting the
heroin sting operation, Baltas declared:
I made up my mind several years ago that I was done
with being a wiseguy. It didn’t work out apparently
because this guy [Alvis] got me tied up. I purposefully
— I want to do this with a little respect. I want to
thank you for what you did with my son, Shane. I want
to thank you for what you did with me with the bail
hearings, for my family, my kids. But it’s tough for me
to want to say I’m sorry because I’m not.
What I’ve done all my life I’ve paid for, I was man
enough to stand up and say, okay, I did it. Let me go
do my time. This I didn’t do, and I’m going to jail for
it.8
These are hardly words of contrition. Therefore, we conclude that the
district court’s determination not to reduce Baltas’s offense level for
acceptance of responsibility was not clearly erroneous, and thus affirm
it.
2. Role in the Offense
8
Moreover, in his objections to the presentence report, Baltas
maintained “that he never agreed to participate in the Government sham
transaction plan nor did he need to approve of it or assist in
recruiting persons to carry it out.”
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Baltas further assigns error to the district court’s
refusal to decrease his offense level as a minor participant under
U.S.S.G. § 3B1.2(b). Like a denial of a reduction for acceptance of
responsibility, a district court’s refusal to adjust a defendant’s
offense level due to his minor participation is reviewed for clear
error. See Rosario-Peralta, 199 F.3d at 571. However, because Baltas
never raised the issue below, “he must show that the district court’s
failure to adjust his sentence downward was ‘plain error.’” See United
States v. Daniel, 962 F.2d 100, 102-03 (1st Cir. 1992).
“[A]ny participant who is less culpable than most other
participants, but whose role could not be described as minimal,” is
considered a minor participant under the Guidelines. U.S.S.G. §
3B1.2(b) cmt. note 3. To be entitled to a sentence adjustment for
minor participation, a defendant must shoulder the burden of proving
“both that he is less culpable than most others involved in the offense
of conviction and less culpable than most other miscreants convicted of
similar crimes.” United States v. Ortiz-Santiago, 211 F.3d 146, 149
(1st Cir. 2000). This determination “is heavily dependent upon the
facts of a particular case.” U.S.S.G. § 3B1.2(b) (backg’d); see also
United States v. Mangos, 134 F.3d 460, 466 (1st Cir. 1998) (“role-in-
the-offense determinations are fact-bound”). Moreover, “[w]e have
declared, with a regularity bordering on the echolalic, that barring a
mistake of law . . ., ‘battles over a defendant’s status . . . will
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almost always be won or lost in the district court.’” United States v.
Conley, 156 F.3d 78, 85 (1st Cir. 1998). Baltas did not fight his
battle in the district court, and he stands no better chance of victory
in this one.
The record sufficiently demonstrates that Baltas was “a
player rather than a . . . dabbler,” Ortiz-Santiago, 211 F.3d at 149;
he (1) participated in the initial planning of the heroin-trafficking
conspiracy, (2) knew the scope of the activity, and (3) took the
initiative of recruiting two Club members to provide security for the
transaction. Under these circumstances, the district court’s failure
to adjust Baltas’s offense level for minor participation was no error,
plain or otherwise.
C. Downward Departure
Baltas argues that the district court erred in refusing to
depart downward on two grounds. First, he contends that the district
court should have departed downward pursuant to U.S.S.G. § 4A1.3,
because his criminal history category over-represented the seriousness
of his criminal history. Specifically, Baltas complains that three of
the five points which led to his criminal history III category resulted
from a prior sentence which barely qualified as a such under §§
4A1.1(a) and 4A1.2(e).
Guideline § 4A1.1(a) mandates a 3-point addition to a
defendant’s criminal history computation “for each prior sentence of
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imprisonment exceeding one year and one month.” U.S.S.G. § 4A1.1(a).
Under this section, “[a] sentence imposed more than fifteen years prior
to the defendant’s commencement of the instant offense is not counted
unless the defendant’s incarceration extended into this fifteen-year
period.” Id. cmt. note 1; see also id. § 4A1.2(e).
In the case at bar, Baltas objected to the 3-point
computation under § 4A1.1(a) because the prior sentence in question was
imposed more than 15 years before his offense of conviction. However,
the district court overruled this objection because it found that
Baltas was in prison within the guideline’s 15-year period. Because
Baltas does not claim that the district court committed legal error in
making this determination — and indeed he could not — we lack
jurisdiction to review his claim. See Collazo-Aponte, 216 F.3d at 204
(“the defendant may not appeal from a sentence within the guideline
range if there was no legal error and the only claim is that the
district court acted unreasonably in declining to depart”) (quoting
United States v. Saldaña, 109 F.3d 100, 102 (1st Cir. 1997)); see also
United States v. Tucker, 892 F.2d 8, 10 (1st Cir. 1989).
Second, Baltas alleges that the district court should have
departed downward under U.S.S.G. § 5K2.0. In essence, Baltas’s
contention is that the fact that his conviction stemmed from the
government’s reverse sting operation takes his case outside the
“heartland” of typical cases contemplated by the Guidelines. The
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district court did not deny Baltas’s request because it thought it
lacked the authority to depart, but because it declined to exercise its
discretion to do so. Its decision, therefore, is not subject to review
by this court. See Portela, 167 F.3d at 708.
D. Apprendi
After oral argument was held, a letter was
transmitted to the court under Fed. R. App. P. 28(j) calling our
attention to the recent Supreme Court decision in Apprendi v.
New Jersey, — U.S. — (2000), 120 S. Ct. 2348 (2000). We granted
both Baltas and the government time to submit supplementary
memoranda addressing the possible relevance of Apprendi and,
assuming that Apprendi applies, addressing the issue of
prejudice. Such memoranda having been filed, the matter is
properly submitted for disposition.
Invoking the rule set forth in Apprendi, where the
Supreme Court held as a matter of constitutional law that
“[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt,” 120 S. Ct. at 2362-63, Baltas now seeks to
have his sentence vacated. Because Baltas did not raise this
issue below, we review for plain error. See United States v.
Mojica-Báez, 229 F.3d 292, 307 (1st Cir. 2000).
-28-
The issue presented is whether the district court’s
finding of drug quantity under 21 U.S.C. § 841(b)(1), which was
made at the sentencing under a preponderance-of-the-evidence
standard, was error under Apprendi. In support of his claim of
error, Baltas argues: (1) that we should read Apprendi as
applying where any fact (other than the fact of a prior
conviction) exposes the defendant to an increased penalty,
instead of as applying only in situations where the prescribed
sentence exceeds the statutory maximum, and that (2) assuming
Apprendi is applicable, the district court’s finding constitutes
plain error.
Baltas was convicted of conspiracy to possess with
intention to distribute and to distribute heroin, in violation
of 21 U.S.C. § 846. The amount of heroin attributed to him was
neither submitted to the jury, nor found by the jury beyond a
reasonable doubt. Instead, it was determined by the district
court at the sentencing hearing under a preponderance of the
evidence standard. Under this standard, the district court
determined that the transaction involved at least one kilogram
of heroin. This finding mandated a base offense level of 34.
With a criminal history category of III, Baltas’s Guideline
range was of 188 to 235 months’ imprisonment, which as we
explain below is within the statutory maximum.
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Under the pertinent statutory scheme, Section 846
provides that the penalty for an attempt or conspiracy to commit
a drug trafficking offense shall be the same as the penalty for
the offense that was the object of the attempt or conspiracy. 21
U.S.C. § 846. The underlying offense is set out in section
841(a)(1), which makes it unlawful to “manufacture, distribute,
or dispense, or possess with intent to manufacture, distribute,
or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1).
Section 841(b), in turn, establishes the penalties applicable to
a violation of section 841(a)(1). Section 841(b)(1)(C)
authorizes a term of imprisonment for a schedule I narcotic,
such as heroin, without reference to drug quantity, of “not more
than 20 years.” 21 U.S.C. § 841(b)(1)(C). Using this framework,
the district court sentenced Baltas to a term of 188 months of
imprisonment.
Notwithstanding his sentence at the low end of the
penalty range, Baltas argues that Apprendi must not be construed
so narrowly; and should apply in situations where any fact
(other than the fact of a prior conviction) exposes the
defendant to an increased penalty, instead of as applying only
in situations where the prescribed sentence exceeds the
statutory maximum. However, as held by the Eighth Circuit,
“[t]his argument goes too far, and is not supported by the
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Supreme Court’s opinion in Apprendi.” United States v. Aguayo-
Delgado, 220 F.3d 926, 933 (8th Cir. 2000). The rule in
Apprendi only applies in situations where the judge-made factual
determination increases the maximum sentence beyond the
statutory maximum, and not in situations where the Defendant’s
potential exposure is increased within the statutory range. Id.
Therefore, if the judge-made factual determination merely
narrows the judge’s discretion within the range already
authorized by the offense of conviction, then no Apprendi
violation occurs. Id. at 934-35.
Based on the Supreme Court’s decision in Apprendi,
we hold that no constitutional error occurs when the district
court sentences the defendant within the statutory maximum,
regardless that drug quantity was never determined by the jury
beyond a reasonable doubt. Therefore, Baltas’s sentence of 188
months, below the twenty year maximum provided by 21 U.S.C. §
841(b)(1)(C), does not constitute an error under Apprendi. This
decision is consistent with those of our sister circuits which
have had the opportunity to address challenges similar to the
one presented by Baltas. See, e.g., United States v. Meshack,
225 F.3d 556, 576 (5th Cir. 2000); Aguayo-Delgado, 220 F.3d at
933; United States v. Gerrow, 2000 WL 1675594, at *2 (11th Cir.
Nov. 8, 2000); United States v. Angle, 230 F.3d 113, 123 (4th
-31-
Cir. 2000); United States v. Chavez, 230 F.3d 1089, 1091 (8th
Cir. 2000).
Baltas goes on to explain in his brief, that assuming
an Apprendi violation occurred below, the error was plain.
However, since we find no error in the district court’s
sentencing, plain or otherwise, we need not go any further.
III. CONCLUSION
For the foregoing reasons, we affirm the conviction and
sentence.
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