United States v. Alosa

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-2480

UNITED STATES OF AMERICA,

Appellee,

v.

PASQUALE ALOSA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Shane Devine, U.S. District Judge]

Before

Breyer, Chief Judge,

Boudin, Circuit Judge,

and Pollak,* Senior District Judge.

David H. Bownes, by Appointment of the Court, with whom Law

Office of David H. Bownes, P.C. was on brief for appellant.

David A. Vicinanzo, Assistant United States Attorney, with whom

Peter E. Papps, United States Attorney, was on brief for the United

States.

January 31, 1994

*Of the Eastern District of Pennsylvania, sitting by designation.

BOUDIN, Circuit Judge. On April 9, 1992, law

enforcement agents armed with a search warrant entered the

home of Pasquale and Lisa Alosa in Loudon, New Hampshire.

The search uncovered substantial amounts of marijuana,

marijuana plants, a basement "garden" for growing them,

scales, plastic bags, two loaded handguns, and 16 other

unloaded firearms. Also found were two different collections

of papers which, for simplicity, have been referred to as

ledgers. A man named Robb Hamilton was also present on the

premises and was later implicated.

Both Alosas and Hamilton were later named in an

indictment that, as expanded by a superseding indictment,

charged Pasquale and Lisa in four counts: unlawful

manufacture of a controlled substance, 21 U.S.C. 841 (count

I); possession with intent to distribute, id. (count II); use

of a firearm--namely, the two handguns--during and in

relation to a drug trafficking crime (count III), 18 U.S.C.

924(c)(1); and conspiracy to possess with intent to

distribute, 21 U.S.C. 846 (count IV). Hamilton was charged

only in count IV.

Prior to trial Pasquale twice moved to sever his trial

on the gun count from his trial on the other three counts.

The first request merely said that Pasquale "may" want to

testify on the gun count but remain silent on the others and

would be prejudiced by joinder of the counts. The second

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request said that he did not want to testify on anything

other than the gun charge and was entitled to testify on that

charge to refute the suggestions that the guns were used in

drug trafficking. This request also pointed to its list of

witnesses who would testify for Pasquale concerning his "use

and possession of firearms." The district court denied both

requests for severance.

Then, during jury selection in August 1992, Pasquale

filed a motion in limine requesting the court to "preclude

the government or any of the co-defendants' counsel [from

eliciting testimony from him] regarding matters outside the

scope of his [contemplated direct] testimony." That direct

testimony, the motion said, would describe his longtime

involvement with firearms, explain his reasons for their

possession, and show that they were not for use in drug

trafficking. Pasquale also now pled guilty to the first two

counts--manufacture and possession with intent to distribute-

-and he argued that this further diminished the government's

need to cross-examine him about his drug activities.

The district court denied the in limine request. It

reaffirmed this denial when the request was renewed at the

close of the government's case in chief. In this renewed

request, Pasquale provided further detail as to his proposed

testimony, explaining that he would testify that the handguns

were purchased and used "for fun" and not for drug

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trafficking. In a post-trial order, the district court said

that it refused to grant the in limine requests because "a

defendant's testimony invites cross examination on topics

made relevant by his direct testimony."

The defendants were tried together using multiple

juries.1 Pasquale did not testify but did offer witnesses

who described his sporting and collector's interest in guns.

On August 31, 1992, the jury convicted Pasquale on counts III

and IV--the two counts on which he had not already pled

guilty--and he now appeals from those convictions. Lisa was

convicted on counts II and IV and acquitted on the other

counts, but died in an automobile accident before sentencing.

Hamilton was convicted of misdemeanor possession and has not

appealed.

Pasquale's first argument on appeal is that the district

court erred in denying his motions to sever the gun count

from the other counts. Severance for undue prejudice is a

matter committed to the sound discretion of the trial judge,

and a refusal to sever will be overturned only for abuse of

discretion. E.g., United States v. Olivo-Infante, 938 F.2d

1406, 1409 (1st Cir. 1991). Further, a refusal to sever

1Prior to trial Lisa made a number of admissions to the
authorities concerning the Alosas' drug sources, and she
decoded various of the transaction entries in the ledgers.
Because some evidence admissible against her was not
admissible against Pasquale, his jury was excused while such
evidence was presented to her jury.

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related counts, naming the same defendant, may be the least

likely candidate for appellate reversal. Still, Pasquale's

counsel--who appears to have played a weak hand with skill

and foresight--has built a case somewhat stronger than the

usual general claim of potential confusion or "spillover"

effects.

Rather, Pasquale has sought shelter in a doctrine,

developed elsewhere but cited approvingly in this circuit,

that a defendant may deserve a severance of counts where the

defendant makes "a convincing showing that `he has both

important testimony to give concerning one count and strong

need to refrain from testifying on the other.'"2 This in

turn requires a defendant to offer in timely fashion "enough

information" so that the court can weigh "the considerations

of judicial economy" against the defendant's "freedom to

choose whether to testify" as to a particular charge.

Scivola, 766 F.2d at 43.

It may be doubtful whether, prior to trial, Pasquale

explained his position in adequate detail; his first motion

was bland and conditional and even his second was sparse.

See United States v. Tracy, 989 F.2d 1279, 1283 (1st Cir.

1993). Still, the second request suggested that Pasquale

wanted to testify in order to deny that the guns were used

2United States v. Scivola, 766 F.2d 37, 43 (1st Cir.

1985) (quoting Baker v. United States, 401 F.2d 958, 977

(D.C. Cir. 1968), cert. denied, 400 U.S. 965 (1970)).

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for drug trafficking--a rather simple proposition. As for

not testifying on other counts, Pasquale has never explained

exactly what he feared. But we prefer to treat the case as

if Pasquale had said what we think is apparent: that the

government had overwhelming proof against him on counts I and

II but little direct proof of conspiracy, and he did not wish

to help it to close this gap.

Even assuming that Pasquale had said all this plainly

and at the outset, we think that the denial of the severance

would still have to be sustained. The limited case law on

Scivola- type motions does not greatly illuminate the

question just how "important" must be the defendant's

proffered testimony or what kind of "strong" reasons explain

the need not to testify on other counts. But obvious

considerations of judicial economy support trying all related

counts against the same defendant at one time. And while the

courts zealously guard a defendant's Fifth Amendment right

not to testify at all, the case law is less protective of a

defendant's right to testify selectively, addressing some

issues while withholding testimony on others that are

related. See Brown v. United States, 356 U.S. 148, 155-56

(1958).

The facts of this case do not argue strongly for a

severance. Pasquale's testimony that the hand guns were "for

fun" might have been of some help to him, although his

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general "gun enthusiast" story was presented through other

witnesses. Even if he had testified, it is still unclear (no

proffer was made) how he could have explained the fact that

one or both of the guns were apparently loaded, one--found

under his bed--was a semi-automatic pistol and the other--

found in a drawer near the front door--was a high-powered

.357 magnum. This testimony is some distance from, say, a

credible alibi that only the defendant can supply showing him

to have been elsewhere at the time of the crime.

As for the other side of the equation--the need not to

testify--we may assume that honest testimony from the

defendant on the conspiracy issue would have nailed down that

charge. But (as we explain below) the government needed

little help on this score once the drug ledgers and related

testimony as to Lisa's connection to them were considered.

Given the broad discretion permitted to trial courts in

deciding severance questions, Olivo-Infante, 938 F.2d at

1409, we think that in this case the denial of severance was

assuredly not an abuse of that discretion.

In short, the government charged Pasquale with closely

related offenses: drug trafficking, conspiracy, and use of a

firearm in connection with trafficking. If Pasquale wanted

to testify on the firearm charge and deny the use of the

handguns in connection with drug trafficking, the nature and

scope of his drug trafficking would normally be a fit subject

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for cross examination; and it is inherent in such an

examination that it might help the government prove the

conspiracy charge. The Fifth Amendment protects the

defendant's right to choose whether to testify. It does not

assure that the testimony will only benefit the defendant.

McGautha v. California, 402 U.S. 183, 213 (1971).

Turning to Pasquale's other arguments, the second string

to his bow on appeal is a claim that the court erred in

admitting the drug ledgers. One set of papers had been found

inside a stove in the kitchen; the other set was in the

living room. They contained entries concerning various

transactions, including amounts and customer names. The

government not only introduced the ledgers but, over

objection, offered expert handwriting and print evidence that

associated both ledgers in some degree with Lisa and one of

them with Hamilton.

Pasquale's brief says that it was error to admit the

ledgers because the government failed to offer evidence,

independent of the ledgers, to show that they qualified as

co-conspirator statements made in furtherance of the

conspiracy. Under Fed. R. Evid. 801(d)(2)(E), a statement

avoids hearsay objections if the trial judge finds by a

preponderance of the evidence that an out-of-court statement

was made by a co-conspirator and was made in furtherance of

the conspiracy. See Bourjaily v. United States, 483 U.S. 171

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(1987). It may lessen the confusion that surrounds drug

ledger evidence to point out that what needs to be proved for

admissibility depends upon the use to be made of the

evidence.

First, if records manifestly are or are shown by other

evidence to be drug records, they are admissible "real

evidence" tending to make it more likely that a drug business

was being conducted, see United States v. Tejada, 886 F.2d

483, 487 (1st Cir. 1989), and for this use there is

ordinarily no hearsay problem to be overcome. Rather, the

records help to show "the character and use of the place

where the notebooks were found," United States v. Wilson, 532

F.2d 641, 645 (8th Cir. 1976), just like drugs, scales and

guns. Here, the nature of the ledgers was indicated not only

by the type of entry--which would have been sufficient--but

also by expert testimony from a DEA agent who gave his

opinion that the records related to drug transactions.3

Second, in this case the ledgers served the further

purpose of helping to prove the existence of a conspiracy.

3Using the entries to show the character of the ledgers
as drug records does, of course, present some of the risks of
hearsay; but under the modern definition of hearsay, such a
use does not render the entries hearsay because the entries
are not being used to prove the truth of the matter asserted
in the entries (e.g., that a specific transaction took place

on a particular date). See Fed. R. Evid. 801(c) (hearsay is
an out of court statement offered "to prove the truth of the
matter asserted"); 2 J. Strong, McCormick on Evidence 250,

at 112 (1992) (collecting cases).

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Pasquale's own involvement in drugs was established by his

pleas and much other evidence, but relatively little direct

evidence in his trial showed active participation by Lisa in

the business (her own admissions to the police were not made

known to Pasquale's jury). Most of the drugs and related

items were found either in Pasquale's areas of the house or

in common areas. But the ledgers, once they were tied to

Lisa by handwriting and print evidence, made the inference of

conspiracy easy.

Once again this use of the ledgers presented no hearsay

problem in this case. The "truth" of individual statements

in the ledgers is beside the point; all that matters is that

the ledgers are drug records to which Lisa may be linked by

other evidence. Nor is there a hearsay problem posed by

testimony from a handwriting or print expert that connected

Lisa to the ledgers. Thus, for the most important use of the

ledgers in this case--to help show more than one participant

and thus a conspiracy--there was no need for a preliminary

finding of likely conspiracy nor any need to satisfy Rule

801(d)(2)(E).

Third, when it made its proffer in support of the

ledgers, the government reserved the right to use the ledgers

to show not only the fact of conspiracy but also, by relying

on specific entries, the dimensions of the conspiracy. To

the extent that the prosecutor wanted to argue that an

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individual entry was "true"--say, one showing a specific sale

of a specific amount to a specific person--then some hearsay

exception or exclusion did need to be satisfied. Here, Rule

801(d)(2)(E) was invoked. In admitting the evidence, the

district court expressly found by a preponderance of the

evidence that the ledgers were made by conspirators in

furtherance of the conspiracy.

These findings were amply supported by admissible non-

hearsay evidence.4 Lisa's presence in the home, with a

marijuana garden in the cellar and drugs and paraphernalia

throughout was highly suggestive. The notion that "presence"

at a crime does not equal guilt is not a ban on common sense

inferences: the evidence of pervasive drug production and

dealing in Lisa's home was material evidence that made her

involvement more plausible. Once she was linked to the drug

ledgers--a linkage that also did not happen to depend on

hearsay--the trial judge could easily conclude that a

conspiracy had been shown and admit the ledgers for the truth

of the statements contained within them.

4Actually, Fed. R. Evid. 104(a) permits the judge to
consider the hearsay statements for their truth in making the
admissibility findings, see Bourjaily, 483 U.S. at 178-80,

although this court has recently joined other circuits in
holding that there must be some evidence of conspiracy
independent of the hearsay statements themselves. United

States v. Sepulveda, Nos. 92-1362 et al., slip op. at 30,

(1st Cir., Dec. 20, 1993). Here, consideration of the
statements in the ledgers for their truth was entirely
unnecessary (and largely irrelevant) to those admissibility
findings.

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Not only did the evidence of joint drug dealing by

husband and wife satisfy Rule 801(d)(2)(E)--which requires

only a probability or likelihood of conspiracy--but the

evidence amply satisfied the higher standard of proof beyond

a reasonable doubt required for conviction. Although

Pasquale purports to dispute the sufficiency of the evidence

to convict him of conspiracy, we think that this is not a

serious argument and requires no further discussion. Other

claims of error have been considered but need no separate

comment.

Affirmed.

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