UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1166
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL NASON,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
Before
Torruella, Circuit Judge,
Bownes, Senior Circuit Judge,
and Cyr, Circuit Judge.
J. Michael McGuinness, by Appointment of the Court, with
whom McGuinness & Parlagreco, was on brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney,
with whom Jay P. McCloskey, United States Attorney, was on brief
for appellee.
November 2, 1993
TORRUELLA, Circuit Judge. Appellant Michael Nason was
charged with conspiracy to distribute marijuana in violation of
21 U.S.C. 841(a)(1) & 846 and possession of marijuana in
violation of 21 U.S.C. 844(a). Following a trial in the
district court, the jury found him guilty as charged. Nason
requests that this court reverse his conviction and remand his
case for a new trial. On appeal, Nason argues that: (1) the
trial court erred in denying his motion for severance of his
trial pursuant to Federal Rule of Criminal Procedure 14; (2) this
error deprived him of the ability to confront and cross-examine
his codefendants in violation of his Sixth Amendment rights; (3)
the trial court's instructions regarding conspiracy constituted
reversible error; (4) the trial court erred regarding the
admission of certain pieces of evidence seized; (5) the
cumulative effect of the trial court's errors constituted
prejudicial error depriving him of due process and a fair trial;
and (6) the pursuit of appellant for the purpose of incriminating
him violated his due process rights. Finding appellant's claims
to be without merit, we affirm.
BACKGROUND
The government charged Michael Nason, Ellen Finch and
David Finch with conspiracy to distribute marijuana.1 In
addition, the government alleged that Nason conspired to
distribute marijuana with numerous other persons who were not
indicted. The Maine Drug Enforcement Agency ("MDEA")
1 The jury acquitted Ellen and David Finch of these charges.
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investigation that lead to Nason's conviction focused on Room 332
of the Scottish Inn Motel in Bangor, Maine.
Between May 23 and May 29, 1992, Room 332 was
registered to Nason's girlfriend, Merry Lane. Shortly
thereafter, a desk clerk added Nason's name to the registration
card so that his calls could be directed to the room. Nason
subsequently received telephone calls in Room 332 and supplies
were delivered by the motel maid to him in Room 332. Many
individuals visited Room 332, staying for only five to ten
minutes, and a black Cadillac was observed in front of the room.
The police were notified of this suspicious behavior.
When officers reviewed the motel's telephone records,
they found that the occupants of Room 332 were calling the
telephone numbers of known drug dealers. Officers then decided
to establish surveillance of the motel room and Nason. As a part
of the investigation, the government enlisted the assistance of
drug trafficker Gabriel Zappia in exchange for a plea agreement.
Zappia asked his friend, Gilbert Shubert, to arrange for the
purchase of marijuana from Nason. In response to Shubert's
request, Nason contacted a supplier in order to obtain the
marijuana.
Nason arranged to sell Zappia the marijuana on May 27,
1992. Nason, Shubert and Zappia went to pick up the marijuana in
Zappia's car. Because Nason suspected police surveillance, and
Zappia feared that the police would not observe the transaction
as previously planned, the two postponed the sale. During the
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interim, Shubert began to cooperate with the police.
Shubert and Nason met at the Ramada Inn on May 28 to
complete the drug transaction. Nason told Shubert that he had
"the dope" and that he would call his supplier who would deliver
it. Nason said that if he had not been serious he would not have
brought along white garbage bags. As they were leaving the
Ramada Inn, the two men were arrested. At the time of arrest,
Nason possessed two white garbage bags, a package of marijuana,
and $980 in cash.
Nason had arrived at the Ramada Inn in a black
Cadillac. After he got out of the Cadillac, the driver of the
car drove to the Howard Johnson's nearby and parked facing the
Ramada Inn. When Nason was arrested, the driver of the black
Cadillac attempted to back out of the motel and ran into a police
car. David and Ellen Finch were in the Cadillac. Both were
arrested.
Nason had been at Room 332 on May 26 and again on May
28, shortly before his arrest. Inside the room, police found a
suitcase containing a duffel bag with marijuana residue and a
photo album with Nason's name on it. Other items found in the
room included scales, two sandwich bags containing marijuana,
empty sandwich bags, a programmable police scanner, and a
cardboard box with Nason's name on it containing papers and
photographs.
DENIAL OF MOTION FOR SEVERANCE
The decision to order severance of a trial pursuant to
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Federal Rule of Criminal Procedure 14 is a matter within the
discretion of the trial court. United States v. Sabatino, 943
F.2d 94, 96 (1st Cir. 1991). We reverse the decision to deny a
motion for severance only upon a showing of strong prejudice,
demonstrating a manifest abuse of discretion that deprived the
defendant of a fair trial. United States v. Argencourt, 996 F.2d
1300, 1304 (1st Cir. 1993).
Pursuant to Federal Rule of Criminal Procedure 8(b),
defendants may be tried together "if they are alleged to have
participated in the same act or transaction or in the same series
of acts or transactions, constituting an offense or offenses."
See Sabatino, 943 F.2d at 96 (quoting United States v.
Sutherland, 929 F.2d 765, 778 (1st Cir. 1991), cert. denied, 116
L.Ed.2d 56 (1991)). In this case, Nason, David Finch and Ellen
Finch were alleged to have participated in the same acts
constituting the offenses, hence, they were properly joined for
trial. Where a defendant requests a severance to secure the
testimony of a codefendant, he must comply with the requirements
set forth in United States v. Drougas, 748 F.2d 8, 19 (1st Cir.
1984):
the movant must demonstrate: (1) a bona
fide need for the testimony; (2) the
substance of the testimony; (3) its
exculpatory nature and effect; and (4)
that the co-defendant will in fact
testify if the cases are severed . . . .
Given such a showing, the court should
(1) examine the significance of the
testimony in relation to the defendant's
theory of defense; (2) consider whether
the testimony would be subject to
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substantial damaging impeachment; (3)
assess the counter arguments of judicial
economy; and (4) give weight to the
timeliness of the motion.
Id. at 19; see also United States v. Font-Ram rez, 944 F.2d 42,
45 (1st Cir. 1991), cert. denied, 117 L.Ed.2d 122 (1992).
Nason alleged that his co-defendants, Ellen and David
Finch, would testify that there was no conspiracy among the
three. Standing alone, however, such an allegation is
insufficient to entitle the defendant to a severance. Nason did
not show, as required, that either David or Ellen Finch would in
fact testify for Nason at a separate trial. He did not file an
affidavit from either David or Ellen to that effect. See
Drougas, 748 F.2d at 19; see also Font-Ram rez, 944 F.2d at 45.
Nor did counsel for the Finchs represent that either David or
Ellen Finch would testify for Nason at a separate trial. See
DeLuna, 763 F.2d at 920 (counsel for co-defendant stating in
camera that client would testify if trials were severed is
sufficient to show that co-defendant is likely to testify).
Furthermore, Nason did not show, as required, that the Finchs'
testimony would exculpate him. United States v. Perkins, 926
F.2d 1271, 1281 (1st Cir. 1991) (citing United States v. DeLuna,
763 F.2d 897, 920 (8th Cir. 1985), cert. denied, 474 U.S. 980
(1985)); see also Font-Ram rez, 944 F.2d at 45 (denial of motion
for severance was not an abuse of discretion where co-defendant's
affidavit in support of the motion did not provide the substance
of the testimony and did not explain why the testimony was
necessary or beneficial to the defense). The evidence
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demonstrated that Nason conspired with a number of people other
than David and Ellen Finch. Other potential conspirators
included Shubert, Merry Lane, and the supplier whom Nason
contacted. Thus, even without a finding of a conspiratorial
agreement with the Finchs, the government still had a strong
conspiracy case against Nason. This conclusion is evident from
the outcome of the joint trial, as the jury acquitted both Ellen
and David Finch yet convicted Nason of conspiracy.
Since Nason did not make the preliminary showing that
encompasses the first four factors of the severance test set out
in Drougas, we need not examine whether the other criteria were
met. We therefore hold that the judge below did not abuse his
discretion in denying Nason's motion for severance.
SUFFICIENCY OF THE EVIDENCE
On appeal, we look at the evidence in the light most
favorable to the prosecution. United States v. Sabatino, 943
F.2d at 97 (citing United States v. MacDonald & Watson Oil Co.,
933 F.2d 35, 40 (1st Cir. 1991)). We draw all legitimate
inferences and resolve all credibility conflicts in favor of the
prosecution. Id. We will uphold the verdict if any reasonable
trier of fact could have found the elements of the offense beyond
a reasonable doubt. Id. (citing United States v. Mena, 933 F.2d
19, 23 (1st Cir. 1991)).
Nason argues that the trial court erred in not
dismissing the charges against him at the close of the
government's case due to insufficient evidence. In essence, he
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argues that the evidence of conspiracy is inadequate because
there was no second person who conspired with Nason to either
distribute or possess marijuana. The record does not support
this argument.
A defendant can be indicted and convicted even if the
names of his co-conspirators are unknown, as long as the
government presents evidence of an agreement between two or more
persons. United States v. Rey, 923 F.2d 1217, 1222 (6th Cir.
1991); see also United States v. Pe agar cano-Soler, 911 F.2d
833, 840 n.5 (1st Cir. 1990). The essence of a conspiracy is the
existence of the conspiracy agreement, not the identity of those
who agree. Rey, 923 F.2d at 1222 (citations omitted).
At trial, sufficient evidence was presented from which
a jury could conclude that a conspiracy existed. Testimony was
given about other persons with whom the jury could have concluded
that Nason entered an agreement to violate the law. These include
Nason's girlfriend, Merry Lane, who rented the room that was the
focus of the drug activity and in which the agents found
marijuana; Shubert, a potential drug purchaser who later decided
to cooperate with the police; and Nason's drug supplier, whom
Nason telephoned to arrange the drug transaction. The jury also
could have found that the unknown occupants of several cars, who
entered Room 332, were co-conspirators. See United States v.
Moree, 897 F.2d 1329, 1332 (5th Cir. 1990) (evidence of agreement
with unnamed contacts, among others, was sufficient evidence for
conspiracy conviction as government produced sufficient evidence
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to form a rational basis for the jury's adjudications).
SIXTH AMENDMENT CLAIMS
Nason argues that testimony by government agent Antone
based on his interview of codefendant Ellen Finch violated his
right of cross-examination and Sixth Amendment right to confront
witnesses against him because Nason was not able to confront and
cross-examine Ellen Finch. U.S. Const. amend. VI.
Agent Antone's testimony concerned a note, purportedly
written by Nason, that was found in the Finchs' car at the time
of the arrests. Nason failed to object when Agent Antone
testified about the note. In the absence of a timely objection
our review is limited to examining the record for plain error,
and we will "correct only 'particularly egregious errors' . . .
that 'seriously affect the fairness, integrity or public
reputation of judicial proceedings.'" United States v. Young,
470 U.S. 1, 15, 105 S. Ct. 1038, 1046, 84 L.Ed.2d 1 (1985)
(quoting United States v. Frady, 456 U.S. 152, 163, 102 S. Ct.
1584, 1592, 71 L.Ed.2d 816 (1982)); United States v. Munson, 819
F.2d 337, 340 (1st Cir. 1987).
Agent Antone's testimony was based on his post arrest
interview of Ellen Finch during which she indicated that when she
and her husband drove Nason to the Ramada Inn, she gave Nason a
piece of paper and a pen. She gave Nason a second pen because
the first one did not work. She did not see Nason write on the
paper. When questioned about a piece of paper found in her car,
she indicated that the writing on the paper was not hers and that
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she did not know whose it was.
There was no confrontation clause violation. Ellen
Finch's statements to Agent Antone did not have the "powerfully
incriminating effect of one accomplice pointing the finger
directly at another, without subjecting [her]self to cross-
examination," amounting to a violation of the Sixth Amendment.
United States v. Barnett, 989 F.2d 546, 558 (1st Cir. 1993),
cert. denied, 62 U.S.L.W. 33247 (1993) (internal quotations and
citations omitted); see also Bruton v. United States, 391 U.S.
123, 135 (1968). Hence, we find no plain error in admission of
the testimony by Agent Antone regarding the note found in Ellen
Finch's car.
Nason further argues that the introduction, over his
objection, of testimony of MDEA agent Daryl Crandale, that Ellen
Finch had told him that she knew Nason had been in trouble with
drugs before, also deprived him of his Sixth Amendment right to
confrontation. We find this argument to be without merit.
Following the testimony of Agent Crandale, the district
court promptly gave a limiting instruction that confined the
jury's consideration of that evidence to Ellen Finch's state of
mind. This court has previously indicated that limiting
instructions provide an adequate safeguard against evidentiary
spill-over. United States v. Doherty, 867 F.2d 47, 63 (1st Cir.
1989), cert. denied, 412 U.S. 918 (1989) (citing Drougas, 748
F.2d at 13). In any event, any error in admitting Ellen's
statement was harmless. See Manocchio v. Moran, 919 F.2d 770,
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783-84 (1st Cir. 1990), cert. denied, 114 L.Ed.2d 89 (1991)
(subjecting material which creates Sixth Amendment Confrontation
Clause problems to harmless error analysis). Other evidence in
the record included recorded conversations between Nason and the
undercover informant in which Nason boasts about his twenty years
of drug dealings and freedom from arrests. This evidence was
substantially more damaging to Nason than was Ellen's comment.
JURY INSTRUCTIONS
By failing to object to the jury instructions after the
charge was given, Nason waived any such objections. Wartski v.
Bedford, 926 F.2d 11, 22 (1st Cir. 1991). Although Nason filed
requests to charge before trial began and noted objections at the
chambers conference regarding the court's proposed instruction,
he did not object to the instructions after the charge was given.
An objection noted in chambers before delivery does not preserve
for review issues relating to the charge. United States v.
Edilberto, 950 F.2d 1, 4 (1st Cir. 1991). Where a party has
failed to preserve a claim for error by proper objection below,
this court will review the issue on appeal only for plain error.
United States v. McMahon, 938 F.2d 1501, 1510 (1st Cir. 1991).
Thus, reversal will follow only in "exceptional cases or under
peculiar circumstances to prevent a clear miscarriage of
justice." United States v. Griffin, 818 F.2d 97, 100 (1st Cir.
1987), cert. denied, 484 U.S. 844 (1987) (quotation omitted).
This court has held that the failure to give a
requested jury instruction is reversible error only if the
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requested instruction is substantially correct, was not
substantially covered in the charge actually given, and covers an
important point in the trial so that the failure to give it
seriously impaired the defendant's ability to present a given
defense. United States v. Newton, 891 F.2d 944, 949 (1st Cir.
1989). In describing the elements of a conspiracy, the district
court told the jury:
you must be convinced that the government
has proved . . . beyond a reasonable
doubt . . . the existence of an
agreement. The government must show that
some time between May 21, 1992, and May
28, 1992, the agreement specified in the
indictment, and not some other agreement
or agreements, existed between at least
two people, not including government
agents, to commit the enumerated federal
crime. This does not have to be a formal
agreement or plan in which everyone who
is involved sat down together and worked
out the details. It is enough that the
government prove beyond a reasonable
doubt that there was a common agreement
among those who were involved to commit
the crime of distributing marijuana . . .
.
It is not necessary to find that the
individual defendants agreed specifically
to or knew about all the details of the
crime, but the government must prove that
the defendants knew the essential
features and the general aims of the
venture . . . .
[T]he government must prove . . . there
was an agreement to commit the crime . .
. and that the defendant intentionally
joined in that agreement.
The court's instructions substantially covered the
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legal concepts requested by Nason in his proposed instructions.2
Having covered the necessary and requested principles of law, the
district court did not err.
Nason also requested an instruction on withdrawal from
a conspiracy.3 A defendant is entitled to instructions on his
theory of defense if he produces some evidence to support all
2 Nason's first two proposed instructions were as follows:
#1. As it takes two to conspire, there
can be no conspiracy with a government
informer who secretly intends to
frustrate the conspiracy. United States
v. Debright, 742 F.2d 1196, 1198-1200
(9th Cir. 1984).
#2. Any conspiracy "agreement" must be
complete. There must exist proof beyond
a reasonable doubt that there existed a
"meeting of the minds" between the
defendant and an alleged co-conspirator.
The jury must consider whether a
Defendant's insistence on certain
conditions precedent, where those
conditions are unacceptable to his would-
be co-conspirators, prevented a "meeting
of the minds" so that no complete
agreement existed. United States v.
Melchor-L pez, 627 F.2d 886 (9th Cir.
1980).
3 Nason proposed the following instruction:
#3. An alleged conspirator may withdraw
from membership in the conspiracy.
There must exist evidence that the
Defendant abandoned, withdrew from, or
disavowed the conspiracy or defeated its
purpose. Once evidence of withdrawal has
been presented, the government must
disprove withdrawal beyond a reasonable
doubt. Hyde v. United States, 225 U.S.
347 (1912); United States v. Krasn, 614
F.2d 1229 (9th Cir. 1980); United States
v. Read, 658 F.2d 1225 (7th Cir. 1981).
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elements of his theory. See United States v. Panet-Collazo, 960
F.2d 256, 259 (1st Cir. 1992), cert. denied, 121 L.Ed.2d 158
(1992). In order to withdraw, a conspirator must:
act affirmatively either to defeat or
disavow the purposes of the conspiracy.
Typically, there must be evidence either
of a full confession to authorities or a
communication by the accused to his co-
conspirators that he has abandoned the
enterprise and its goals.
United States v. Juodakis, 834 F.2d 1099, 1102 (1st Cir. 1987)
(citations omitted). This court has held that "[m]ere cessation
of activity in furtherance of [a] conspiracy does not constitute
withdrawal." Juodakis, 834 F.2d at 1102 (citations omitted).
Nason's refusal to agree to Shubert's proposed terms of the sale,
after which he got up and left the Ramada Inn, is not sufficient
evidence of withdrawal to require an instruction on that defense.
Thus, we find that the trial court's refusal to give Nason's
proposed instruction on withdrawal did not constitute plain
error.
EVIDENTIARY ISSUES
Appellant argues that the trial court erred in
admitting into evidence items such as scales, bags, and baggies,
seized from Room 332 of the Scottish Inn, which was registered to
his girlfriend, Merry Lane. He argues that there was no evidence
that he occupied Room 332 and that the evidence was not
sufficiently linked to Nason to make its admission permissible.
In essence, he argues that the admission into evidence of items
seized from Room 332 was irrelevant, highly prejudicial and in
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violation of Rule 403 of the Rules of Evidence.
The threshold for relevance is very low under Federal
Rule of Evidence 401. United States v. Rodr guez-Cort s, 949
F.2d 532, 542 (1st Cir. 1991). Evidence is relevant under Rule
401 if it has "any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence."
Fed. R. Evid. 401. Even where evidence is relevant, Rule 403
permits the district court, in its discretion, to exclude
evidence where the "probative value is substantially outweighed
by the danger of unfair prejudice." Fed. R. Evid. 403,4 see
also United States v. Williams, 985 F.2d 634, 637 (1st Cir.
1993); United States v. Gonz lez-S nchez, 825 F.2d 572, 580 (1st
Cir. 1987), cert. denied, 484 U.S. 989 (1987). We review the
district court's weighing of the evidence for abuse of
discretion. United States v. Walters, 904 F.2d 765, 768 (1st
Cir. 1990); Gonz lez-S nchez, 825 F.2d at 580.
Although Room 332 was registered to Merry Lane, Nason
was strongly connected to it. Nason's name was noted on the
registration card to the motel room so that incoming calls could
4 Fed. R. Evid. 403 states:
Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger of
unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of
time, or needless presentation of
cumulative evidence.
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be directed to him. In fact, a number of people called Nason at
the motel room. Nason gave Shubert the motel's telephone number
as a place to reach him and Shubert called Nason at the motel to
discuss Nason's interest in reviving the deal. Nason was seen at
Room 332 by the maid, two custodians, the owner of the motel, and
the police officers who photographed him. Furthermore, inside
the room, inside a suitcase, beside a duffle bag containing
marijuana residue, was an album that contained photographs of
Nason and had Nason's name written on it. The above factors
indicated that Nason had been in the room with the marijuana and
made the evidence found in the room relevant to his participation
in a conspiracy. The objects found in Room 332 are also
probative of the conspirators' intent to distribute marijuana and
were not likely to suggest a decision on an improper basis to the
jury. Although the evidence may be damaging to Nason's case, it
is not unfairly prejudicial. See Rey, 923 F.2d at 1222
(admission of electronic equipment and books not unfairly
prejudicial in trial for drug charge). The district court did
not abuse its discretion in admitting that evidence.
MISCELLANEOUS
Appellant raises two further arguments that were not
raised before the district court. First, he argues that, by
targeting him for investigation, law enforcement agents violated
his due process rights. This court has previously ruled that:
arguments not seasonably addressed to the
trial court may not be raised for the
first time in an appellate venue . . . .
A criminal defendant, dissatisfied with
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the district court's rulings . . . yet
persuaded that his original arguments
lacked merit, cannot switch horses mid-
stream in hopes of locating a swifter
steed.
See United States v. Deitz, 950 F.2d 50, 55 (1st Cir. 1991)
(citations omitted).
Second, appellant argues that his sentence, premised
upon career offender status, is invalid and that the sentence
should therefore be vacated and the matter remanded for
imposition of sentence. See United States v. Price, 990 F.2d
1367 (D.C. Cir. 1993) (career offender guidelines do not apply to
conspiracy to commit controlled substance crimes). Nason made
this second argument in a letter filed pursuant to Federal Rule
of Appellate Procedure 28(j). He did not make this argument in
his brief, and "a letter submitted pursuant to Rule 28(j) cannot
raise a new issue." United States v. LaPierre, 998 F.2d 1460,
1466 n.5 (9th Cir. 1993), amended, 1993 U.S. App. LEXIS 20872
(9th Cir. Aug. 19, 1993), (citing Brady v. Gebbie, 859 F.2d 1543,
1557 n.13 (9th Cir. 1988)).
Affirmed.
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