United States v. Keene

United States Court of Appeals
For the First Circuit

No. 02-2330

UNITED STATES OF AMERICA,

Appellee,

v.

JOEL A. KEENE,

Defendant, Appellant.

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

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lynch, Circuit Judge,

R. Arnold,* Senior Circuit Judge,

and Howard, Circuit Judge.

William Maselli, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Paula D. Silsby, United States Attorney, was on brief for
appellee.

August 22, 2003

*
Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
 R. ARNOLD, Senior Circuit Judge. Joel Keene was

convicted of possession with intent to distribute more than 500

grams of cocaine and possession with intent to distribute

marijuana, and was subjected to forfeiture of his residence for his

drug convictions. He was sentenced to a total of sixty-six months’

imprisonment with forty-eight months of supervised release. He was

fined $12,500. He appeals the convictions, the fine, and the

forfeiture on a variety of grounds. We affirm in all respects.

After a decade of intermittent reports of drug dealing

by defendant Keene from four separate informants, police obtained

a nighttime, no-knock search warrant for his somewhat isolated

residence in Norway, Maine. They immediately found 23 kilograms of

compressed marijuana, 3.86 kilograms of loose marijuana, and 890.7

grams of 60 per cent. pure cocaine in a garage adjoining the house,

and smaller quantities of drugs along with drug paraphernalia in

his house. They arrested Keene and charged him with possession

with intent to distribute the drugs. His first trial ended in a

mistrial. His second trial was bifurcated, with the forfeiture

count severed from the possession with intent to distribute

charges. He was convicted by a jury after a motion to suppress

evidence obtained during the search was denied. This appeal

followed.

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 I.

Appellant raises six issues on appeal. First, he argues

that the search warrant obtained by police was not supported by

probable cause, because the information relied on was stale and

there was no nexus with the property to be searched. Second, there

was insufficient evidence of his possession of cocaine with an

intent to distribute. Third, the instructions given to the jury on

aiding and abetting and willful blindness were not supported by the

evidence. Fourth, the prosecution’s invitation to the jury to

analyze defendant’s handwriting was improper and denied him a fair

trial. Fifth, the government made references to his lifestyle in

its closing argument, which also denied him a fair trial. Finally,

the defendant argues that the imposition of a fine was improper,

and that the government’s request for a forfeiture should have been

denied.

A. Probable Cause

Defendant argues that Maine Drug Enforcement agents

relied on stale information to obtain a nighttime, no-knock warrant

for his residence, and that evidence of drug dealing suggested by

this information had an inadequate nexus to the property searched.

We disagree.

Probable cause to issue a search warrant exists when

“given all the circumstances set forth in the affidavit . . . there

is a fair probability that contraband or evidence of a crime will

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be found in a particular place.” Illinois v. Gates, 462 U.S. 213,

238 (1983). The task of the reviewing court is to determine

whether “a substantial basis” existed for the magistrate’s

determination that probable cause existed. Ibid. Factors to be

considered in determining whether a search warrant should issue

include “the value of corroboration of details of an informant’s

tips by independent police work.” Id. at 241.

Police provided detailed information from four

confidential informants to the magistrate judge in applying for the

search warrant. Maine Drug Enforcement Special Agent Tony L.

Milligan obtained this information. The first informant was

interviewed in 1992 and provided specific information, while

incarcerated, about his drug dealings with six individuals,

including defendant, at a Saracens Motorcycle Club hangout.

Members of the Saracens had been convicted of drug dealing. Other

information provided by this informant had resulted in successful

prosecution of significant drug traffickers. Two years later, a

second informant, a concerned citizen with no criminal record who

was “sick and tired” of drug activity connected with the Saracens

Motorcycle Club, came forward. He too gave specifics about Keene’s

drug distribution activities and drug delivery services, and

provided eyewitness accounts of his substantial, unexplained

wealth. This information was also corroborated. In 1996, a third

informant, a convicted felon, also provided information about

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Keene’s drug activities. Finally, a little more than a month

before Agent Milligan applied for the search warrant, he received

information from Somerset County Sheriff Detective Lt. Carl

Gottardi about his interview with a highly reliable source, who was

charged with no crime and was not paid for his information. This

informant recounted first-hand observations of Keene’s large-scale

cocaine sales, and indicated that Keene also supplied drugs to the

Saracens and Hell’s Angels Motorcycle Clubs. In the month leading

up to application for the warrant, this informant identified one of

Keene’s regular cocaine customers and provided details about

Keene’s habits which police corroborated.

Since the information provided by the four informants

over a ten-year period was amply corroborated, was consistent with

a drug conspiracy of long duration, and had been updated within the

month before application for the warrant, there was probable cause

for issuance of the warrant.

Defendant also argues that the information provided did

not establish a sufficient nexus between drug activity and the

property to be searched, and so the warrant should not have issued.

See United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993).

However, the informants provided information about drug sales by

defendant, evidence of substantial wealth unexplained by his

workers’ compensation benefits, and the fact that he worked from

home while recovering from back injuries for which he drew the

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workers’ compensation. This information suggested that drug

distribution was being organized from Keene’s residence, a place

which was safe and accessible. United States v. Feliz, 182 F.3d

82, 87-88 (1st Cir. 1999). The information established a

sufficient nexus with the property to be searched, and probable

cause existed for the warrant to issue.

B. Sufficiency of Evidence

Drugs, drugs everywhere, but none belonged to defendant.

This is the proposition of which defendant failed to convince a

jury, and the one which he now asks this Court to accept. We do

not.

In order to prevail on a claim of insufficient evidence

a defendant must make a “formidable showing.” United States v.

Valerio, 48 F.3d 58, 63 (1st Cir. 1995). To determine whether

evidence was sufficient, “we examine the record in a light most

favorable to the government, drawing all reasonable inferences in

its favor, with an eye towards whether the proof would have allowed

a rational jury to determine beyond a reasonable doubt that the

defendant was guilty of the crime charged.” Ibid. (quoting United

States v. Ortiz, 23 F.3d 21, 24 (1st Cir. 1994)). Both direct and

circumstantial evidence are considered, and the government’s proof

may lie “entirely in circumstantial evidence.” Ibid. Defendant

argues that the drugs found by police at his home were found in a

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garage bay to which many people had access, and that the government

supplied no substantial evidence of sales of drugs by Keene.

When twenty officers executed the search warrant, after

arresting Keene, his girlfriend, and his father, they searched

defendant’s garages. On entering the first garage, Agent Milligan

was overwhelmed by the strong odor of fresh marijuana, and

immediately noticed a large white cooler and packing materials on

the floor. Inside the cooler were three large trash bags, each of

which contained kilogram-sized bricks of compressed marijuana and

a piece of paper with numbers written on it. The total weight of

the marijuana found was fifty-two pounds. On the table at the back

of the garage a triple beam balance scale and commercial digital

scale were found with marijuana residue on them. Upstairs, more

boxes with fresh marijuana residue, scales, and UPS labels were

found, along with shipping boxes. In a corner of this garage, at

the bottom of a pile of automobile tires was a metal ammunition

canister inside of which were thirty-two knotted plastic bags, each

of which contained a chunk of 60 per cent. pure rock cocaine. A

five-gallon pail sat against the back wall with ziplock bags

containing loose mildewed marijuana and bricks of fresh marijuana.

Marijuana buds were found inside unmounted motorcycle tires. A

blue plastic tub contained another ziplock bag of fresh, brick

marijuana. In a hole in the brick wall was another tub containing

marijuana in ten ziplock bags. Small amounts of marijuana,

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cocaine, and drug paraphernalia were found throughout the house, as

well as address books and ATV registrations. When confronted with

these findings after his arrest, Keene responded that someone else

must have put the drugs in his garage. The jury reasonably found

this explanation incredible. Because substantial evidence existed

to sustain defendant’s convictions, we affirm.

C. Instructions and Statements to the Jury

Appellant challenges both the District Court’s

instructions as to the government’s burden of proof for willful

blindness, and its instructions as to what was required to convict

Keene of aiding and abetting.

The standard of review for a challenge of this type to

jury instructions as erroneous is de novo. United States v.

Marino, 277 F.3d 11, 28 (1st Cir. 2002). A willful-blindness

instruction “is proper if a defendant claims a lack of knowledge,

the facts suggest a conscious course of deliberate ignorance, and

the instruction, taken as a whole, cannot be misunderstood as

mandating an inference of knowledge.” United States v. Masse, 816

F.2d 805, 812 (1st Cir. 1987). As this Court recently pointed out

in another drug distribution case, “whether there was knowledge of

drug dealing, or so much awareness that ignorance was willful

blindness,” may turn exclusively on circumstantial evidence.

United States v. Corchado-Peralta, 318 F.3d 255, 258 (1st Cir.

2003). The District Court instructed members of the jury that they

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“may” infer knowledge from conscious ignorance, not that they were

required to do so. See United States v. Bilis, 170 F.3d 88, 92

(1st Cir. 1999). The instructions contained a clear explanation of

what the jury was required to find in order to determine whether

Mr. Keene had been willfully blind to the presence of large

quantities of drugs on his property. In particular, the lower

court explained that it was “important to bear in mind that mere

negligence or mistake in failing to learn the facts is not

sufficient. There must be a deliberate effort to remain ignorant

of the fact.” Jury Instructions at 10 (#32). The instructions

gave an accurate statement of the pertinent law.

Appellant also argues that, because the crime of aiding

and abetting was not charged in the indictment, the jury should not

have been instructed about it. A defendant may be convicted as an

aider and abettor if the evidence shows: (1) that the underlying

offense was committed by a principal; (2) that the defendant

consciously shared the principal’s knowledge; and (3) that he

“willfully associated himself in some way with the crime and

willfully participated in it as he would in something he wished to

bring about.” United States v. Henderson, 320 F.3d 92, 109-10 (1st

Cir. 2003). When asked about the fifty-two pounds of marijuana in

his garage, Keene observed, “It’s been there for a while.” When

told he faced serious drug charges, he asked that his girlfriend

not be charged, stating “it’s my house, it’s my garage . . . . I

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guess it’s my responsibility.” He later speculated that “whoever

put the marijuana there must have put the coke there as well.”

An instruction on aiding and abetting may be given

although there is no reference to the crime in the indictment.

United States v. Footman, 215 F.3d 145, 154 (1st Cir. 2000).

Indeed, a charge of aiding and abetting is implicit in indictments

for substantive offenses. Ibid. The revisor’s note to 18 U.S.C.

§ 2 states that “one who puts in motion or assists in the illegal

enterprise . . . is guilty as a principal even though he

intentionally refrained from the direct act constituting the

completed offense.” The instruction was proper, and since it had

been given in Keene’s first trial, which ended in a mistrial, he

cannot claim that the charge came as a surprise to him in the

second trial. The instructions on aiding and abetting and willful

blindness were proper.

D. Prosecutorial Statements

Defendant claims that in its closing argument the

government erred in a manner serious enough to require reversal of

the jury verdict, both by inviting the jurors to examine

handwriting evidence in an improper fashion and by maligning

defendant’s character. These claims are without merit.

The prosecution suggested that jurors could analyze

handwriting evidence on numbered labels from drug containers by

comparing it with samples of defendant’s handwriting to establish

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a connection between Mr. Keene and the drugs found on his property.

Under 28 U.S.C. § 1731, “[t]he admitted or proved handwriting of

any person shall be admissible, for purposes of comparison, to

determine genuineness of other handwriting attributed to such

person.” The trier of fact is authorized to make such a

comparison, with or without the benefit of expert testimony. Fed.

R. Evid. 901(b)(3). See United States v. Scott, 270 F.3d 30, 49

n.13 (1st Cir. 2001).

To emphasize that handwriting comparisons could indeed be

performed with only handwritten numbers (rather than letters) for

comparison, the prosecution suggested that if jurors themselves

wrote the same numbers on a piece of paper and compared them with

the samples, they would see that written numbers too were

distinctive. Defendant argues that in making this suggestion, the

prosecutor asked the jurors to make a determination they were

unqualified to make, and encouraged them to create evidence for the

purpose of comparison. But the prosecutor merely suggested this

mode of comparison and argued for a factual finding favorable to

the government. He did not suggest it would be determinative of

guilt. The jury was free to disregard the suggestion, especially

since other substantial evidence connected Keene to the drugs. The

prosecutorial statement did not constitute reversible error.

Defendant objects as well to the government’s disparaging

references in its closing statement to his lifestyle and character.

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Because this issue is raised for the first time on appeal, we

review only for plain error. Henderson, 320 F.3d at 105. Mr.

Keene must show not only that the arguments were prejudicial and

affected his substantial rights, but that, absent reversal, a

miscarriage of justice would occur. Mr. Keene draws particular

attention to the prosecution’s emphasis on the fact that he had

drawn workers’ compensation for a period of years as an example of

the government’s attempt to malign his character by implying he was

lazy or parasitical. Defendant misconstrues the thrust of this

part of the closing argument. The transcript makes clear that the

prosecution drew the jury’s attention to the fact that Keene was

not working a regular job in order to raise a question as to how,

without regular income, he was able to afford a luxurious

lifestyle. This was an eminently reasonable argument to make,

given that it pointed to the likelihood that Mr. Keene’s lifestyle

was made possible by income from the sale of drugs. The

prosecutor’s statements were proper.

E. Fine and Forfeiture

Defendant argues that the imposition of a fine of $12,500

by the court, when the pre-sentence investigation report (PSI)

recommended against a fine, and the government failed to object to

this recommendation, is improper. In these circumstances, we

review imposition of a fine for abuse of discretion. United States

v. Cunan, 152 F.3d 29, 37 (1st Cir. 1998). Cf. United States v.

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Thurston, 2003 WL 21782339 at *23 (1st Cir.)(holding that where a

lower court declines to impose a fine when it is mandated by

statute, review of questions of law is de novo).

In recommending against a fine, the PSI had made the

erroneous assumption that, after forfeiture of his residence,

defendant would have no assets left with which to pay a fine. In

fact, his known assets, even after forfeiture of his house, totaled

over $50,000. The imposition of a fine at the lowest end of the

Guideline range is well within judicial discretion, and Keene has

not argued that he is unable to pay the amount. Further, the court

offered Keene additional time to develop a response to the

government’s request for a fine at sentencing - time he chose not

to use. We find no abuse of discretion in the imposition of a fine

here. Whether to impose a fine is the prerogative of the court.

That the PSI recommended against a fine, whether or not the

recommendation was based on a mistake of fact, cannot be

dispositive.

Having convicted defendant of possession of drugs with

intent to distribute, the jury found defendant’s residence was

forfeit to the government. Defendant asserts that Fed. R. Crim. P.

32.2 requires a “more active and searching inquiry” than that

engaged in by the District Court to justify this forfeiture, and

that the government did not meet its burden of proof.

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 For the first time on appeal, defendant argues that under

Apprendi v. New Jersey, 530 U.S. 466 (2000), the applicable

standard of proof was proof beyond a reasonable doubt. However,

other circuits have consistently refused to apply Apprendi

requirements to criminal forfeitures. United States v. Vera, 278

F.3d 672, 673 (7th Cir. 2002); United States v. Cabeza, 258 F.3d

1256, 1257 (11th Cir. 2001) (per curiam); United States v. Corrado,

227 F.3d 543, 550-51 (6th Cir. 2000). The forfeiture is not viewed

as a separate charge, but as “an aspect of punishment imposed

following conviction of a substantive offense.” Cabeza, 258 F.3d

at 1257 (quoting Libretti v. United States, 516 U.S. 29, 39

(1995)). This is because “drug trafficking is at the core of the

conduct at which the forfeiture statutes are directed.” United

States v. One Clipper Bow Ketch Nisku, 548 F.2d 8, 11 (1st Cir.

1977). This Court has observed with approval that “almost every

circuit that has pronounced on the issue has held that the standard

of proof as to forfeiture issues under section 853 . . . is a

preponderance of the evidence.” United States v. Rogers, 102 F.3d

641, 647 (1st Cir. 1996). The evidentiary standard used to impose

the forfeiture was proper, as was the forfeiture itself. The

preponderance standard was certainly satisfied here.

For the foregoing reasons, we affirm.

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