United States Court of Appeals
For the First Circuit
No. 99-1387
No. 99-1388
UNITED STATES OF AMERICA,
Appellee,
v.
SAMUEL PATRICK AND JASON ARTHUR,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Boudin, Lynch, and Lipez, Circuit Judges.
Malcolm J. Barach for appellant Samuel Patrick.
Donald K. Freyleue, with whom Benjamin D. Entine was on
brief, for appellant Jason Arthur.
Karin B. Hoppmann, Attorney, Criminal Division-Appellate
Section, Department of Justice, with whom Donald K. Stern, United
States Attorney, and George Vien, Assistant United States Attorney,
were on brief, for appellee.
May 3, 2001
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LYNCH, Circuit Judge. This appeal raises questions about the
definition of the "enterprise" element of criminal charges under the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et
seq. ("RICO"), and the admissibility of evidence concerning the
adequacy of police investigations and of investigation tips received by
police officers as to who committed a crime.
Samuel Patrick and Jason Arthur were each convicted on over
six counts of a criminal RICO indictment arising out of their
membership in the Intervale Posse (IVP), a gang that distributed crack
cocaine from 1990 to 1996 in the Dorchester neighborhood of Boston.
Arthur was also convicted of the 1992 murder of a rival drug dealer.
One of their defenses was that the IVP was simply a loose connection of
individual, young drug entrepreneurs, one competing with another.
RICO, they say, was meant to counter organized crime, and there was
nothing particularly "organized" about the crimes committed by the IVP.
They argue that their convictions should be reversed because the judge
improperly instructed the jury, because the evidence did not support a
RICO conviction, and for other reasons.
I.
Jason Arthur and Samuel Patrick were each charged in 1997
with racketeering under 18 U.S.C. § 1962(c), conspiracy to commit that
offense under 18 U.S.C. § 1962(d), and conspiracy to distribute crack
cocaine under 21 U.S.C. § 846. Arthur was charged with two counts and
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Patrick with three counts of possession of crack with intent to
distribute under 21 U.S.C. § 841(a)(1).1 In addition, Arthur was
charged with murder in aid of racketeering under 18 U.S.C. § 1959.
Both were convicted and sentenced to life imprisonment.
II.
We describe the evidence as the jury could reasonably have
found it. During the 1990s, members of the IVP sold crack cocaine in
the Intervale neighborhood of Dorchester, an area of Boston. The IVP
was the successor to an earlier gang, known as "Adidas Park." The gang
gave a new spin to the concept of brand identification. IVP members
wore Adidas clothing, identified themselves and referred to the gang by
signifying the Adidas brand logo (a sign of three fingers signifying
the three stripes on Adidas products), and, in a few instances, owned
mirrors painted with their nicknames and the IVP logo. Members
referred to one another as family. Younger members, often teenagers,
1 Thirteen others were indicted along with Arthur and
Patrick. Twelve pled guilty to various charges prior to trial;
one, Terrence Williams, successfully moved to sever his case
from Arthur and Patrick's, and was convicted at trial of
conspiracy to distribute crack cocaine. The court originally
consolidated Williams' appeal with this one, but then granted
the government's motion to file a separate brief in Williams'
case.
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"pumped"2 (or sold) drugs for the older members, although some younger
members also operated on their own.
Patrick held the supplier's role within the IVP. He decided
who could sell on IVP territory, set the prices for the IVP's crack,
and directed sales by younger members. Patrick also determined when
the gang would eliminate rivals. Arthur supplied crack to the IVP and
also bought crack from Patrick. In addition, Arthur helped keep order
in the IVP, reprimanding younger members for risky behavior that
attracted police attention.
As part of the IVP's operating procedures, IVP members would
page suppliers like Patrick and Arthur to deliver drugs to a customer's
house. At the house, the crack was "cut" and "bagged" in smaller
amounts for resale on the street, and the customer was paid in crack or
money for use of the house. Although IVP members competed with one
another for individual customers, they all profited from increased
sales overall in the neighborhood. Only IVP members could sell on the
IVP's "turf," and the gang used actual and threatened violence to deter
rivals. Members held "sessions" (or meetings) where they discussed
rival drug operations as well as problems with police.
In December 1992, Courtney Thomas, a non-IVP member, was
selling drugs on IVP territory without permission. When an IVP member
2 "Pumping" described a way of serving the drug buyer, just as
a gas station attendant pumps gas for his or her customer.
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named Antwan told Thomas that he could not "pump" on IVP territory,
Thomas threatened him. Antwan informed Arthur, who said he would
"handle it." That evening Arthur met two other IVP members, Cecil
McKnight and Allen Ivy, at a wooded area where the IVP hid drugs and
weapons. Arthur carried two guns. The three men went to the house at
161 Intervale Street where Thomas was reportedly selling drugs. When
Thomas got into his car in front of the house, Arthur fired repeatedly
into the car, killing Thomas and wounding Thomas's companion, Fleurette
Farrell.
In 1995, Jennifer Monteiro, a neighborhood resident and
reported drug dealer, was arrested on unrelated charges involving the
use of fraudulent or stolen credit cards. Monteiro agreed to cooperate
with the police and began making purchases from the IVP, including
several purchases in 1996 from Arthur and Patrick. Audio tapes of
these transactions were made. One purchase occurred on July 24, 1996,
when Monteiro paged Patrick for two ounces of crack. Patrick directed
her to go to a park near a neighborhood school, where Monteiro was met
by a go-between named Terrence. Terrence handed Monteiro the drugs and
then gave the money to Patrick, who was in his parked truck nearby. In
August 1996, police arrested several IVP members, including Patrick and
Arthur. Police seized cash, drugs, scales, and items with the IVP or
Adidas logo from the homes of IVP members. From Jason Arthur's home,
police seized over 300 grams of crack cocaine, several thousand
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dollars, a scale, and a mirror with the IVP logo and the name "Kilo J."
They also seized a handgun from Patrick's truck.
III.
A. RICO Enterprise: Instructions and Sufficiency
Both defendants claim that the district court erred in
rejecting their proposed jury instruction which defined a criminal
"enterprise" under 18 U.S.C.§ 1962(c)3 as having an "ascertainable
structure," and that the jury’s verdict cannot stand on the evidence.
The district court did not err, and the evidence supports the verdict.
The district court charged the jury that under RICO the term
"enterprise":
includes any individual, partnership,
corporation, association or other legal entity,
and any group of individuals associated in fact
although not a legal entity. An enterprise may
be a formal or an informal organization of
individuals so long as they have associated
together for a common purpose. . . . In the
present case, it is alleged that each defendant,
and others, were associated in fact to form an
3 Section 1962(c) makes it unlawful:
for any person employed by or associated with any
enterprise engaged in, or the activities of which
affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly,
in the conduct of such enterprise’s affairs
through a pattern of racketeering activity or
collection of unlawful debt.
Section 1962(d) prohibits conspiracy to violate section 1962(c).
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enterprise, called among other names, Intervale,
the Intervale Posse, and IVP. To find that an
association in fact existed, you must find that
the alleged enterprise had an ongoing
organization, formal or informal, and that its
various associates functioned as a continuing
unit for a common purpose. This means that
although individuals may come and go, the
enterprise must continue in an essentially
unchanged form during substantially the entire
period alleged in the indictment.
Note that the enterprise element is
different from the racketeering activity element.
Although the proof to establish these elements
may overlap, proof of one does not necessarily
establish the other. Rather, the enterprise must
be an entity separate and apart from the pattern
of racketeering activity in which it engages.
The defendants requested that the district court further
define the term "enterprise" by instructing the jury that "[a]t a
minimum, the enterprise must exhibit some sort of structure for the
making of decisions, whether it be hierarchical or consensual." The
court refused, and defendants now appeal its "enterprise" instruction.
Defendants based their request on a line of cases which they
say support the requirement of an explicit "ascertainable structure"
jury instruction under RICO. See Chang v. Chen, 80 F.3d 1293, 1297
(9th Cir. 1996); United States v. Riccobene, 709 F.2d 214, 222 (3d Cir.
1983), overruled on other grounds by Griffin v. United States, 502 U.S.
46 (1991); United States v. Bledsoe, 674 F.2d 647, 664 (8th Cir. 1982).
Defendants refer to their proposed language as the Bledsoe test. In
Bledsoe, which involved securities fraud, the Eighth Circuit required
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"proof of some structure separate from the racketeering activity and
distinct from the organization which is a necessary incident to the
racketeering" in order to avoid to collapse of the "enterprise" element
with the separate "pattern of racketeering activity" element of a RICO
offense. 674 F.2d at 664. Bledsoe thus required that a RICO
enterprise have an "ascertainable structure distinct from that inherent
in the conduct of a pattern of racketeering activity. . . . [which]
might be demonstrated by proof that a group engaged in a diverse
pattern of crimes or that it has an organizational pattern or system of
authority beyond what was necessary to perpetrate the predicate
crimes." Id. at 665 (internal quotation marks and citation omitted);
see also Chang, 80 F.3d at 1297 (adopting "ascertainable structure"
requirement to avert the danger of the "enterprise [being] no more than
the sum of the predicate racketeering acts"). The prosecution rejoins
that Bledsoe and its successors like Chang use the concept of
"ascertainable structure" simply as an analytic device in determining
whether the evidence was sufficient to support the verdict, and also
argues, in a bit of non-sequitur, that the phrase has no use as a jury
instruction. Cf. Riccobene, 709 F.2d at 223 (evidence sufficient to
satisfy "enterprise" prong where, inter alia, it showed "an
organization with a leader and a group of supervisors, each running his
own operations with 'his own people,' but coordinated with the
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operations of other supervisors to provide greater profits and fewer
conflicts").
Here, the district court took its instruction almost directly
from the language of the Supreme Court's decision in United States v.
Turkette, 452 U.S. 576 (1981), and no more was needed to define the
term "enterprise" for the jury. This court was before asked to adopt
the Bledsoe test; it did not need to resolve the question because the
evidence was sufficient even assuming arguendo the Bledsoe test
applied. See United States v. London, 66 F.3d 1227, 1244 (1st Cir.
1995); see also United States v. Owen, 167 F.3d 739, 752 n.6 (1st Cir.
1999) (noting that First Circuit has not adopted Bledsoe test;
concluding that evidence sufficiently established "enterprise" separate
from "pattern of racketeering activity"). We today explicitly reject
the Bledsoe test as an additional requirement beyond the Turkette
instruction. Indeed, we think the defendants' proposed
Bledsoe instruction could be misleading. The important concept
underlying Bledsoe was that the government must prove both an
"enterprise" and a "pattern of racketeering activity." See Bledsoe,
674 F.2d at 663-65. That concept was specifically captured in the
instruction given by the district court in this case. Bledsoe should
not be torn from its conceptual moorings. So too were instructions
given here on the important concepts that an enterprise is proved, as
Turkette had said, by evidence of an "ongoing organization" that was
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"formal or informal" and by evidence that "the various associates
function as a continuing unit." Turkette, 452 U.S. at 583; see also
Riccobene, 709 F.2d at 221 (saying Turkette defined "illegal
enterprise" for RICO purposes to avoid the danger that the statute
would be construed too broadly). While "enterprise" and "pattern of
racketeering activity" are separate elements of a RICO offense, proof
of the these two elements need not be separate or distinct but may in
fact "coalesce." Turkette, 452 U.S. at 583. The defendants' proposed
jury instruction here addressed not the ongoing nature of the
enterprise -- a problem addressed in Turkette -- but rather its
structure. Here, on the issue of structure and its ascertainability,
the slope is slippery, and the district court appropriately avoided the
slope's edge. Since Congress intended the term "enterprise" to include
both legal and criminal enterprises, see id. at 580-81, and because the
latter may not observe the niceties of legitimate organizational
structures, we refuse to import an "ascertainable structure"
requirement into jury instructions.
Defendants also argue that there was insufficient evidence
of any enterprise. Not so. The gang was ongoing and identifiable: it
changed its name from Adidas to the IVP, it had colors and signs, it
had older members who instructed younger ones, its members referred to
the gang as family, and it had "sessions" where important decisions
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were made, including decisions about taking action against rival drug
dealers.
Defendants protest that the IVP is just a motley crew of
young criminals and that it hardly constitutes the type of highly
sophisticated organized crime that spurred Congress to enact RICO.
Even if the IVP were a fledgling criminal organization, we doubt that
Congress meant to give a pass to such fledgling organizations. In any
event, the IVP was no innocent group of teenagers, but rather was
sophisticated and experienced in its own way in the rough, often
violent business of drug dealing. That there was yet no evidence the
IVP had infiltrated legitimate businesses as organized crime frequently
has done does not insulate the IVP from RICO’s reach. The IVP was well
within Congress’ intended scope. See Turkette, 452 U.S. at 591 ("RICO
is equally applicable to a criminal enterprise that has no legitimate
dimension or has yet to acquire one. Accepting that the primary
purpose of RICO is to cope with the infiltration of legitimate
businesses, applying the statute . . . so as to reach criminal
enterprises, would seek to deal with the problem at its very source.").
B. Sufficiency of the Evidence of Conspiracy
Arthur argues that there was no evidence of any meetings
among the alleged conspirators resulting in Arthur’s agreement to
perform the predicate acts under RICO. Arthur says the fact that he
actually committed two or more acts of racketeering activity is not
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enough to show he was a conspirator. For these purposes, we focus on
the predicate acts of murder and drug dealing.
The government, citing United States v. Shifman, 124 F.3d 31
(1st Cir. 1997), says that a RICO conspiracy may be shown by evidence
that the defendant agrees to commit two or more predicate acts "or in
fact commit[s]" such acts. Id. at 35.4 We rely on an alternate ground:
the well-established legal principle that a conspiracy may be based on
a tacit agreement shown from an implicit working relationship -- here
the relationship between Arthur and other IVP members -- to commit the
Thomas murder. The evidence supports the jury’s conclusion that there
was at least a tacit agreement. There was evidence that the IVP
routinely eliminated the competition by murdering rival drug dealers.
When Arthur was given a report by an IVP member about Thomas selling
drugs on IVP turf, Arthur replied that he would "handle it." Arthur
handled it by murdering Thomas, with the assistance of two other IVP
members.
4 Shifman says that the government must prove: (1) the
existence of an enterprise affecting interstate commerce, (2) that the
defendant knowingly joined the conspiracy to participate in the conduct
of the affairs of the enterprise, (3) that the defendant participated
in the conduct of the affairs of the enterprise, and (4) that the
defendant did so through a pattern of racketeering activity by agreeing
to commit, or in fact committing, two or more predicate offenses. Id.
(emphasis added).
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As to the drug dealing, there was evidence that the IVP had
"sessions" where members discussed the gang's drug distribution
business. That was enough to permit the inference of an agreement.
Patrick raises the same argument in a summary fashion in his
brief, and we reject it for the same reasons.
C. Evidentiary Rulings
Questions of admissibility and relevance of evidence are
reviewed for abuse of discretion. United States v. Reeder, 170 F.3d
93, 107 (1st Cir.), cert. denied, 528 U.S. 872 (1999).
1. Audio Tape Recordings
Patrick argues that it was error to admit into evidence audio
tape recordings made by government informant Monteiro of her drug
transactions with IVP members, including Patrick. Patrick says the
tapes did not accurately reflect what was said and that he should have
been permitted to inspect the original recordings and to cross examine
as to the equipment used. The net result of the exclusion of this
evidence, he says, violated the Confrontation Clause of the Sixth
Amendment and Rule 403, Fed. R. Evid.
Patrick, however, did cross examine Monteiro about the tapes
and the equipment used, and his objections to the tapes at trial were
more limited than those on appeal. At trial he objected on the grounds
that one tape had only a one-sided conversation and that another tape
had a conversation in which Patrick did not take part.
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In any event, we ignore the issue of waiver because there was
no error in admitting the tapes. Monteiro authenticated the tapes
under Rule 901, Fed. R. Evid., and the tapes were relevant,
corroborating Monteiro’s testimony. Further, Patrick was given funds
to pay for an analysis of at least one tape, a tape on which Patrick
quoted Monteiro the price for an ounce of crack. The court rejected
the conclusion of Patrick's "expert" that something had been added to
the tapes, finding the expert unqualified and his conclusion
unsupported. The trial judge’s determination that the original tape
would be best preserved for trial use by not turning it over to Patrick
was very reasonable.5
2. Exclusion of Handwritten Notes of Informant Tips
Arthur complains that the district court excluded from
evidence certain handwritten notes found in police files, including one
purporting to contain a statement from a Peter Eden. In common, the
notes recorded tips the police had received about who committed the
Thomas murder. The defense theory was that the police had not
adequately investigated the murder, as evidenced by these notes.
Arthur argues that the notes therefore were not hearsay because they
were not offered for their truth but rather for the inadequacy of the
police investigation of other possible suspects.
5 Finally, to the extent Patrick complains that a second motion
for more money for analysis of the tapes was denied, the court did not
abuse its discretion in denying that motion.
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The precise question is whether the trial court abused its
discretion in excluding police notes (and related testimony) of
anonymous calls from tipsters about who committed the Thomas murder.
This involves several doctrines, starting with relevance. In fact,
Arthur has two theories, each of which he says created doubt as to his
own guilt: (1) that the notes were evidence that someone else committed
the murder;6 and (2) that the notes were evidence that the police
investigation was unreliable.7 As to the first, evidence that tends to
prove that a person other than the defendant committed the crime is
relevant. See United States v. Crosby, 75 F.3d 1343, 1347 (9th Cir.
1996). It must, however, be evidence that there is a connection
between the other perpetrator and the crime, and not mere speculation.
Cf. United States v. Camuti, 78 F.3d 738, 742 (1st Cir. 1996)
6 That is the thrust of State v. Flores, 595 N.W.2d 860
(Minn. 1999), a case relied on by Arthur. Flores says a
defendant may seek to introduce evidence of prior bad acts by a
third person tending to show that third person committed the
crime. Id. at 868. Flores also held that such evidence must
have a proper foundation, such as proof of facts that connect
the third person to the crime, "to avoid the consideration of
matters collateral to the crime." Id. (internal quotation marks
omitted).
7 These two theories overlap in places. When, for
example, Arthur asserts that the tipsters said "flatly" that
another person murdered Thomas, he seems less to be defining the
notes as non-hearsay showing the inadequacy of the police
investigation than claiming the notes should have been admitted
for their truth, i.e., that such third person, and not Arthur,
murdered Thomas.
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(concluding that inferences that investors were responsible for alleged
real estate fraud were "so thin that they can barely, if at all, meet
the generous test of relevance under Fed. R. Evid. 401"). When the
evidence is that person X, a non-party, said outside the courtroom that
person Y committed the crime, that evidence is offered for the truth of
the statement and is hearsay. The defendant can call person X as a
witness and have him testify.8 That is not, however, the nature of the
evidence that concerns us. What Arthur sought to introduce were police
notes that person X (often not identified at all) told the police that
person Y (often identified only by a single name) had committed the
Thomas murder. In order to offer the police notes for the truth of
their contents: (a) the notes must be admissible themselves under some
exception to the hearsay rule or be sufficiently trustworthy as to fall
within the residual exception of Fed. R. Evid. 807; (b) the hearsay
within the notes must be admissible; and (c) the evidence must not be
so prejudicial as to violate Fed. R. Evid. 403. See generally 40A Am.
Jur. 2d Homicide § 286 (1999) ("In a prosecution for homicide, as in
prosecutions for other crimes, the accused may introduce any legal
evidence tending to prove that another person may have committed the
crime with which the defendant is charged, provided such evidence is
8 We recognize that anonymous tipsters are hardly likely
to make themselves available to defense counsel.
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not otherwise subject to objection.") (internal footnotes omitted)
(emphasis added).
Arthur argues that police notes may be admissible as business
records under Fed. R. Evid. 803(6), and we shall assume so for purposes
of argument. But where those notes contain information from informants
who are not themselves part of the business of police, that information
is not admissible as an exception to the hearsay rule. The district
court properly ruled that such hearsay within hearsay is not itself
admissible. See Fed. R. Evid. 803 advisory committee's note to para.
6 (citing Johnson v. Lutz, 253 N.Y. 124 (1930), and Gencarella v. Fyfe,
171 F.2d 419 (1st Cir. 1948)); see also United States v. Vigneau, 187
F.3d 70, 75-76 (1st Cir. 1999) (further discussing the issue). Nor do
police notes contain findings of a public agency charged with making
those findings, which would render the notes admissible under Fed. R.
Evid. 803(8). E.g., Beech Aircraft Corp. v. Rainey, 488 U.S. 153
(1988). Thus, the informant tips are not admissible for their truth
under the standard exceptions to the hearsay rule and are not otherwise
sufficiently trustworthy to qualify for admission under the residual
exception provided in Rule 807.
Arthur tries to avoid this problem by turning to his second
theory: that the tips are admissible not for their truth but to show
the inadequacy of the police investigation. He relies primarily on a
state case that does use such broad language, Commonwealth v. Reynolds,
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708 N.E.2d 658, 661 (Mass. 1999), but which most likely stands for a
narrower proposition. 9 The phrase "inadequacy of the police
investigation" covers a variety of different problems and cuts across
the full spectrum of relevant and irrelevant evidence. Certain
inadequacies -- for example, those that go to the chain of custody or
the preservation of evidence -- may undercut the reliability of
physical evidence against the accused. See, e.g., Lowenfield v.
Phelps, 817 F.2d 285, 291-92 (5th Cir. 1987) (reasonable trial strategy
for counsel to argue that "sloppy police work" tainted the chain of
custody for certain guns seized by police and "set the stage for an
argument that others were implicated in the murders"). That is not the
problem here. Other inadequacies may lead to the destruction of
exculpatory evidence. That is also not the problem here. The point is
that the phrase "inadequacy of the police investigation" is too broad
and itself says nothing about the relevance of the proffered evidence.
Merely showing that an investigation is sloppy does not establish
relevance. See United States v. Veal, 23 F.3d 985, 989 (6th Cir. 1994)
(no abuse of discretion where district court excluded as irrelevant
evidence that the government's investigation of the case was "sloppy").
Here, the defense theory is that someone else committed the
murder, that this is shown by the fact that other names were given to
9 Reynolds is in any event a case not decided under the
federal rules of evidence.
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the police by the tipsters, and that the police failed to take steps to
adequately eliminate other possible suspects before settling on Arthur,
thereby creating doubt as to Arthur's guilt. However, there was little
to show that the notes of the tipsters' calls in fact furthered
Arthur's theory, or that there was an inadequate investigation,10 and
so the note contents were of questionable materiality under Fed. R.
Evid. 401. But even if the notes had some probative value, the
district court did not abuse its discretion in excluding them under
Fed. R. Evid. 403.
Such speculative evidence of the inadequacy of the police
investigation would have shifted the jury's focus from the accusations
against Arthur to accusations against the police, thus creating a real
danger of unfair prejudice and jury confusion that "substantially
outweighed" the evidence's probative value. Fed. R. Evid. 403;
see United States v. McVeigh, 153 F.3d 1166, 1190-92 (10th Cir. 1998),
cert. denied, 526 U.S. 1007 (1999). Arthur wrongly relies on Crosby,
supra, which was concerned with the exclusion of evidence that a
victim's husband was more likely her assailant than was the defendant.
See 75 F.3d at 1346-48. The Crosby court's determination that it was
error to exclude evidence of sloppy police work was tied to its more
10 Detective Mahoney, the officer in charge of the Thomas
investigation, testified on voir dire that his usual practice was to
follow up on informant tips, though he could not recall, six years and
"400 homicides" later, what action he took on each and every tip. This
does not suggest an inadequate investigation of the Thomas murder.
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fundamental assessment that it was error to exclude the strong direct
evidence that someone else (the victim's husband) had committed the
crime, which was the defendant's theory of the case. See id. at 1348
("The excluded evidence [of sloppy police investigation] would have
lent support to the defendant's theory that someone else beat [the
victim] and undermined the prosecutor's claim that a more thorough
investigation would have turned up nothing of value. Rather than being
limited to poking holes in the prosecution's case, defendant's counsel
could have plausibly argued that a more thorough investigation would
have produced evidence incriminating [the victim's husband]."). Crosby
thus does not stand for the proposition that evidence of sloppy police
investigations is per se admissible.
Arthur also argues that a note based on the statement from
Peter Eden, a drug dealer, should have been admitted under the hearsay
exception for declarations against penal interest. See Fed. R. Evid.
804(b)(3). The note of Peter Eden's statement around the time of his
arrest says that his (Eden's) boss ordered the murder of Thomas, which
Arthur argues inculpates Eden himself in both a drug conspiracy and the
murder.11 At trial, Eden invoked his Fifth Amendment privilege against
11 The note attributes the statement to a Paul Eden, not
Peter Eden, but is apparently a record of Peter Eden's arrest.
Arthur's contention is sheer speculation that this shows that
the "Paul" referred to in the note was Peter Eden's boss, and
therefore that this Paul, and not Arthur, murdered Thomas. The
record also shows there was an IVP member named Paul.
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self-incrimination and refused to testify. Arthur then sought
admission of the note under Fed. R. Evid. 804(b)(3). Arthur argued
that the Eden statement was exculpatory as to Arthur because it tended
to implicate Eden's boss (whom, he says, was certainly not Arthur), and
that the information was corroborated by the fact that the police files
were "fairly bursting with notes and memoranda" detailing tips
identifying someone named "Paul, "Paulo" or "Pablo" as Thomas's killer.
The district court refused to admit the note because it
doubted that the note exculpated Arthur, thought Arthur might himself
be the "boss" referred to, and found no corroborating circumstantial
evidence indicating the trustworthiness of the statement.
There was no abuse of discretion in excluding the note. Rule
804(b)(3) provides that a statement "tending to expose the declarant to
criminal liability and offered to exculpate the accused is not
admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement." Id. (emphasis added). It was up to
Arthur, as the proponent, to clearly indicate the admissibility of the
statement, and he did not establish that it was either trustworthy or
exculpatory. The district court correctly viewed the statement in
context. Williamson v. United States, 512 U.S. 594, 603 (1994). The
author of the Eden note was never identified; the arresting officer
denied it was his note, said he did not know who wrote the note, and
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did not recall speaking with Eden about a homicide. The note
apparently misidentifies Peter Eden as Paul Eden and refers to an
unnamed boss. There is no firm evidence as to whether the universe of
plausible bosses includes or excludes Arthur.12 That there were
anonymous tips from others identifying the murderer as a Latino man
named Paul, Paulo, or Pablo suggests that Jason Arthur was not the
murderer, but it is not an abuse of discretion to conclude that those
tips do not particularly corroborate the trustworthiness of this note.
Arthur argues, alternatively, that the various tip notes are
admissible because his Sixth Amendment right to present exculpatory
evidence here trumps the rules against hearsay evidence. Arthur cites,
inter alia, Chambers v. Mississippi, 410 U.S. 284 (1973), which
declared unconstitutional the mechanistic exclusion under Mississippi
law of a third person's multiple confessions to the crime for which the
defendant was tried. See id. at 299-301; see also Pettijohn v. Hall,
599 F.2d 476, 480-81 (1st Cir. 1979) (violation of defendant's Sixth
Amendment rights to exclude testimony of eyewitness who had identified
another person as the guilty party). Here, the tip information lacked
the indicia of reliability of the testimony in Chambers, and, in
12 Arthur says that Peter Eden operated out of 161
Intervale Street, an area not within IVP territory. The
district court thought the evidence was otherwise.
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contrast to Chambers, was outside the basic rationale of the exception
for declarations against penal interest. There was no error.
3. Exclusion of Portions of Search Warrant Affidavit
The district court excluded two portions of an affidavit in
support of the search warrant for Fleurette Farrell's belongings.
Arthur concedes that the statements in the affidavit are hearsay but
says they are nonetheless trustworthy and should have been admitted
because the statements about the timing of certain events would have
been useful to impeach the government’s principal witnesses against
him. First, Arthur claims that the statement in the affidavit that
police were still executing a search warrant at 161 Intervale Street
when investigators arrived on the scene of the Thomas homicide
contradicts the testimony of McKnight and Ivy, the key government
witnesses, that the police had left the building before the shooting.
Second, he argues that other statements in the affidavit contradict
Farrell's testimony concerning the time she arrived at 161 Intervale
Street and whether she actually entered the building.
The district court acted within its discretion.13 Both
statements contain multiple levels of hearsay, and Arthur points to no
specific rule supporting admission of the testimony. Nor does the
13 Arthur also claims that the district court erred in allowing
the government to cite Farrell's testimony in closing argument, where,
based on the affidavit, it had reason to know her testimony contained
false and misleading statements. There was no error.
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residual exception provided in Fed. R. Evid. 807 help Arthur since he
did not raise the argument. The exception was, in any event,
unavailable since Arthur could have called as a witness any officer who
actually conducted the search of 161 Intervale Street, rather than
simply relying on the hearsay statements. See Fed. R. Evid. 807
(requiring proof that "the statement is more probative on the point for
which it is offered than any other evidence which the proponent can
procure through reasonable efforts").
4. Altering a Chalk on Rebuttal Summation
Arthur argues the district court erred in allowing the
prosecutor to "alter" a chronology used as a chalk (or jury aid) on
rebuttal summation to support the government's position as to the time
of Thomas's death. Although prosecution witness Farrell testified that
the shooting occurred around 10:15 p.m., the defense theory was that it
occurred earlier, between 8:30 and 9:00 p.m. On summation, the
prosecutor used a timeline to assist the jury in understanding the
sequence of events surrounding the Thomas murder. The chalk, which was
never entered into evidence, initially listed the following times:
undercover purchase (8:45 p.m.); search warrant (9:00 p.m.); and time
of homicide (10:17 p.m.). On rebuttal summation, the prosecutor added
to the chalk that Thomas was pronounced dead at 10:46 p.m., a fact
already in evidence. This was entirely proper. Cf. United States v.
Morse, 491 F.2d 149, 153 n.6 (1st Cir. 1978) ("use [of chalks] must be
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fully supported in all respects by corroborating admissible evidence").
Not only was there no prejudice, but the prosecutor actually reinforced
Arthur's position that 10:46 p.m. represented not the time Thomas died
but rather the time he was pronounced dead.
D. Brady Claim
Patrick argues vaguely that the prosecution withheld
exculpatory information in violation of Brady v. Maryland, 373 U.S. 83
(1963). Under Brady, the government must provide the defense with
evidence in its possession "where the evidence is material either to
guilt or to punishment." Id. at 87. Evidence relating to the
impeachment of prosecution witnesses is deemed to be exculpatory within
the meaning of the Brady rule. See Giglio v. United States, 405 U.S.
150, 154-55 (1972). For evidence to be "material" under Brady, there
must be "a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different." United States v. Bagley, 473 U.S. 667, 682 (1985); see
United States v. Perkins, 926 F.2d 1271, 1275 (1st Cir. 1991). "Where
. . . the defense is confronted not with complete suppression, but with
delayed disclosure, reversal will be granted only if defendants were
denied the opportunity to use the disclosed material effectively."
United States v. Drougas, 748 F.2d 8, 23 (1st Cir. 1984).
Patrick's brief fails to describe fully the nature of the
problem or why he was prejudiced by learning the information at trial
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and not earlier. The government's brief helpfully explains the issue.
Two police officers who were conducting surveillance at the time,
government informant Jennifer Monteiro, and IVP member Allen Ivy all
testified about the same July 24, 1996 sale of drugs. They had
different recollections about whether it was Patrick or another IVP
member who was in the area on a bicycle around the time of the
transaction. However, there is no evidence the government knew of the
discrepancy before trial, and defense counsel cross examined on the
different versions. During trial the names of the two police officers
were given to defense counsel. Both officers were called and
testified.14 There was neither a Brady violation nor prejudice.
E. Post-Trial Motion for Investigative Funds
Arthur claims the district court abused its discretion in
denying his motion for additional funds under 18 U.S.C. § 3006A to
conduct a post-trial investigation. Arthur's counsel told the trial
court he needed the funds to find additional witnesses who would cast
doubt on Farrell's testimony. Although he knew the name of one witness
who was at 161 Intervale Street on the night of the Thomas murder,
counsel conceded he was "speculating on precisely what [these
witnesses] would say." The district court found no evidence to support
the conclusion that exculpatory evidence was withheld and denied the
14 Neither officer was able to identify the male who "burned"
their surveillance operation by looking into their vehicle.
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motion on that basis alone.15 A denial of a motion for funds under
section 3006A is reviewed for abuse of discretion. See United States
v. De Jesus, 211 F.3d 153, 155-56 (1st Cir. 2000). We have carefully
reviewed the record, and find that the district court did not abuse its
discretion in denying the motion.
F. Sentencing
Defendants also challenge their sentences on various grounds.
Patrick asserts that the district court wrongly sentenced him
based on its finding that he was involved with more than 1.5 kilograms
of crack cocaine because the court denied his motion under 18 U.S.C. §
3006A for an independent examination of some of the crack cocaine to
determine its weight. Patrick also challenges his four-level
enhancement for his role as a "leader or supervisor" under U.S.S.G. §
3B1.1 and the district court's refusal to depart downward based on his
family ties and responsibilities.
Arthur argues that the district court erred in imposing a
three-level enhancement for his role as a "manager or supervisor" under
U.S.S.G. § 3B1.1 and a two-level enhancement for employing juveniles in
the drug operations under U.S.S.G. § 3B1.4.
Patrick and Arthur also each make claims based on Apprendi
v. New Jersey, 120 S. Ct. 2348 (2000).
15 The court denied Arthur's new trial motion on the same
basis.
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We discuss these arguments in turn and affirm the sentences.
1. Denial of Motion for Funds to Conduct Independent Weighing
In connection with his sentence, Patrick appeals the district
court's denial of his motion for funds to conduct an independent
weighing and examination of the amount of crack cocaine attributed to
him. We review his claim for abuse of discretion, see De Jesus, 211
F.3d at 155, and find none. Patrick correctly points out that due
process considerations animate motions for investigative funds under
section 3006A. Still, "concern for fairness does not mean that all
applications should be granted regardless of merit." United States v.
Mateos-Sanchez, 864 F.2d 232, 240 (1st Cir. 1998). Here, Patrick was
able to extensively cross examine the government chemist, who testified
as to the weight of the crack cocaine from the various transactions,
and Patrick presented the court with no reason why the chemist's
determinations might be questionable. Moreover, the issue Patrick
argues would not affect his sentence since his conspiracy conviction
renders him responsible for all reasonably foreseeable amounts of drugs
distributed in furtherance of the conspiracy. See U.S.S.G. §
1B1.3(a)(1)(B) (Relevant Conduct); United States v. Collazo-Aponte, 216
F.3d 163, 200 (1st Cir. 2000) ("In the context of a drug conspiracy, a
defendant is also accountable for the conduct of others if that conduct
is (1) reasonably foreseeable to the defendant and (2) committed in
furtherance of a jointly undertaken criminal activity."). The district
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court found this amount to be well over 1.5 kilograms, and there is no
real claim that this finding was wrong.
2. Sentencing Enhancements
Review of challenges to the evidentiary support of a
sentencing guidelines enhancement is for clear error. See, e.g.,
United States v. Coviello, 225 F.3d 54, 64-65 (1st Cir. 2000). Patrick
challenges the four-level enhancement for his role as an "organizer or
leader" of an extensive criminal activity under U.S.S.G. § 3B1.1(a).
The district court found that Patrick occupied "the primary role" in
the IVP and was considered "the undisputed leader" by older and younger
members alike. The record clearly supports this finding. Patrick had
ultimate decisionmaking authority in the IVP (Arthur, for one, referred
to Patrick as "chief" and "top dog"). He determined who could sell on
IVP territory, decided when to take action against rival drug dealers,
recruited juvenile accomplices, and supplied the IVP with a large
quantity of drugs. See U.S.S.G. § 3B1.1 comment (n. 4) (listing
factors distinguishing "a leadership and organizational role from one
of mere management or supervision").
Arthur objects to the three-level enhancement for his role
as a "manager or supervisor" under U.S.S.G. § 3B1.1(b). The district
court found that while Arthur was lower in the IVP hierarchy than
Patrick, he supervised and managed drug transactions since he
determined the quantity involved in each particular transaction.
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Arthur also objects to the two-level enhancement under section 3B1.4
for "using a minor to commit a crime." The district court found that
numerous minors were used in the RICO and drug conspiracies and that
Arthur himself used minors to sell drugs. Neither finding was clearly
erroneous.
The three-level enhancement for Arthur's managerial or
supervisory role was supported by evidence that he owned and
distributed large quantities of crack (over 300 grams were found in his
house), gave orders to younger IVP members, and used violence to
eliminate rivals like Thomas. See United States v. Alicea, 205 F.3d
480, 485 (1st Cir.) ("[T]he inference that the [defendant] was [the
gang's] leader flows rationally from the evidence that he owned the
drugs, that he gave orders freely, and that he was prepared to use
extreme measures if anything went awry."), cert. denied, 121 S. Ct. 256
(2000). With respect to the two-level enhancement for employing
juveniles, Arthur relies on evidence that juveniles worked for Patrick
or another IVP member, and that no witness testified that Arthur
himself employed juveniles. However, because Arthur was convicted of
conspiracy, his sentence could be enhanced based on his co-
conspirators' reasonably foreseeable use of juveniles to further the
IVP's activities. See U.S.S.G. § 1B1.3(a) ("adjustments in Chapter
Three" must be determined in a conspiracy based on "all reasonably
foreseeable acts and omissions of others in furtherance of the jointly
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undertaken criminal activity"); see also United States v. Li, 206 F.3d
78, 86-87 (1st Cir.), cert. denied, 121 S. Ct. 379 (2000).
3. Downward Departure
A district court's discretionary refusal to depart downward
is unreviewable unless the court believed it lacked authority to do
so. See, e.g., United States v. Snyder, 235 F.3d 42, 51 (1st Cir.
2000); United States v. Lauzon, 938 F.2d 326, 330 (1st Cir. 1991).
Here, the district court, exercising its discretion, found it
inappropriate to depart because Patrick had not identified any factors
that took his case outside the "heartland." See Koon v. United States,
518 U.S. 81, 95 (1996). Finding no indication that the district court
believed it lacked authority to depart downward, we affirm.
4. Apprendi Claims
Neither defendant raised any Apprendi argument before the
district court, and so we review their Apprendi arguments here for
plain error. See United States v. Robinson, 241 F.3d 115, 119 (1st
Cir. 2001); United States v. Mojica-Baez, 229 F.3d 292, 306-07 (1st
Cir. 2000). In Apprendi, the Supreme Court held 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.
We reject Patrick's Apprendi argument because Patrick was previously
convicted of a drug felony, and because the record establishes that no
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jury would have failed to find beyond a reasonable doubt that his
(various) drug crimes here involved over 5.0 grams of cocaine base,
thus triggering a maximum sentence of life imprisonment. See 21 U.S.C.
§ 841(b)(1)(B)(iii); 18 U.S.C. § 1963. Patrick relies on United States
v. Fields, 242 F.3d 393 (D.C. Cir. 2001), which found plain error under
Apprendi where there was arguably insufficient evidence of drug
quantity to meet the proof beyond a reasonable doubt standard. Id. at
397. There was no such insufficiency here.
Arthur cites Apprendi as bearing upon his attack on his
sentencing guideline enhancements. We reject that challenge.
See, e.g., Robinson, 241 F.3d at 121-22. As to Arthur's drug
crimes, the record establishes that no jury could have failed to
find beyond a reasonable doubt that all of those crimes involved
more than five grams of crack cocaine. The drug crimes, coupled
with Arthur's two prior felony drug convictions, subjected him
to a maximum sentence of life imprisonment. See 21 U.S.C. §
841(b)(1)(B)(iii). In addition, the jury found beyond a
reasonable doubt that Arthur committed murder, which carries a
mandatory sentence of life imprisonment under Massachusetts law,
see Mass. Gen. Laws ch. 265, § 2, as one of his predicate acts
of racketeering. Thus, Arthur's maximum sentence for
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racketeering and racketeering conspiracy was life imprisonment.
See 18 U.S.C. § 1963.
IV.
Defendants' convictions and sentences are affirmed.
So ordered.
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