United States v. Campbell

United States Court of Appeals
For the First Circuit

No. 00-2493

UNITED STATES,

Appellee,

v.

BEVIL CAMPBELL, A/K/A WHOOPY, A/K/A WHOPS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.

Paul J. Haley for appellant.
John Wortmann, Assistant United States Attorney, with whom
Jennifer Hay Zacks, Assistant United States Attorney, and Donald
K. Stern, United States Attorney, were on brief for appellee.

October 11, 2001
 STAHL, Senior Circuit Judge. In this appeal, defendant

Bevin Campbell challenges his convictions and sentence for

conspiracy to import a controlled substance, 21 U.S.C. § 963;

aiding and abetting the importation of a controlled substance,

21 U.S.C. § 952(a); and conspiracy to possess a controlled

substance with intent to distribute, 21 U.S.C. § 846.

Specifically, the defendant appeals from the decision of the

district court to admit out-of-court statements made by his

alleged coconspirators. In addition to these purportedly

incorrect evidentiary rulings, the defendant claims that the

district court erred when it denied his motion for a judgment of

acquittal and/or his motion for a new trial, because, defendant

maintains, the government failed to prove that he was part of a

conspiracy to import and distribute cocaine. Defendant also

alleges that his counsel was constitutionally ineffective as an

additional justification for a new trial. Finally, defendant

argues that, if his convictions are affirmed, his case should

be returned for resentencing, claiming that his sentence

violates the constitutional rule announced in Apprendi v. New

Jersey, 530 U.S. 466 (2000). As none of defendant's arguments

have merit, his convictions and sentence are affirmed.

I.

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 On November 15, 1998, at approximately 8:30 p.m.,

Noiyota Swinson and Ann DePolo arrived at Logan Airport on a

flight originating in Jamaica. Customs officials observed

Swinson place two pieces of checked luggage on DePolo's luggage

cart, and became suspicious when the two women then went in

separate directions. When individually interrogated, Swinson

and DePolo initially denied traveling together. The customs

agents then opened the women's luggage, revealing 17 shampoo

bottles containing more than 3.2 kilograms of cocaine. Upon

further interrogation, Swinson and DePolo separately stated that

they were planning to meet a black man known as “Whoopy” in a

black Lexus or BMW outside the international terminal. Swinson

had a piece of paper with a phone number in her possession at

the time of her apprehension.

When customs officials went outside the terminal, they

observed Campbell, a black male, in a black BMW. Campbell, at

the request of the customs officials, accompanied them into the

international arrivals building. He stated that he was there to

meet a friend, who was purportedly arriving on an 8:30 flight,

outside the KLM ticket counter. The customs officials soon

ascertained that there was no such incoming flight. When told

that he was possibly implicated in a seizure of drugs from two

women who had just arrived from Jamaica, Campbell denied knowing

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the women. But while he was being interviewed, the door to one

of the search rooms opened and Swinson and DePolo positively

identified the defendant as “Whoopy” and as the person who had

provided them with the shampoo bottles and their tickets to and

from Jamaica. An interrogating agent asked Campbell for his

pager number, which matched the number on the piece of paper in

Swinson's possession. In addition, although Campbell denied

going by the name “Whoopy,” he had a note in his possession

addressed to “Whops.”

Although Campbell was not detained at the airport, a

grand jury subsequently returned a superseding indictment,

charging him with the three counts on which, after a seven-day

trial, he was ultimately convicted to 121 months' imprisonment,

to be served concurrently, followed by 48 months' supervised

release. The defendant appealed both his convictions and his

sentence.

II.

Campbell maintains that the district court improperly

allowed the jury to consider statements made by unindicted

coconspirators who were unavailable to testify at trial.

Pursuant to Fed. R. Evid. 801(d)(2)(E), a “statement [made] by

a coconspirator of a party during the course and in furtherance

of the conspiracy” is not considered hearsay, and may be

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considered by the jury for the truth of the matter asserted.

Because of concerns about the reliability of these statements,

however, the Supreme Court in Bourjaily v. United States, 483

U.S. 171 (1987), announced that, prior to admitting a

coconspirator statement over an objection, “a court must be

satisfied that the statement actually falls within the

definition of the Rule,” meaning that “[t]here must be evidence

that there was a conspiracy involving the declarant and the non-

offering party, and that the statement was made 'during the

course and in furtherance of the conspiracy.'” Id. at 175. The

party wishing to offer these statements to the jury must first

demonstrate by a preponderance of the evidence that the

statements fall within the purview of the Rule. See id. at 176;

see also id. at 175 (noting that “preliminary questions

concerning the admissibility of evidence shall be determined by

the court,” and the existence of a conspiracy is one such

preliminary question) (quoting Fed. R. Evid. 104(a)). District

courts in this circuit, guided by United States v. Petrozziello,

548 F.2d 20 (1st Cir. 1977), which was decided prior to, but

consistently with the Supreme Court's pronouncement in

Bourjaily, make these preliminary gate-keeping determinations

regarding the admissibility of coconspirator statements during

so-called Petrozziello hearings.

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 Because the defendant failed to object to the district

court's ultimate determination that the statements were, in

fact, declarations by a coconspirator, we review the district

court's decision for clear error. See United States v. Mojica-

Baez, 229 F.3d 292, 303 (1st Cir. 2000). During Swinson's

testimony, but prior to the issue being raised formally by the

defendant, the trial judge explained to counsel at a sidebar

conference how he would proceed in deciding any questions

regarding coconspirator statements:

Now, at this point, my attention has not
been called, I believe to any coconspirator
statement that will make it necessary for me
to have such a hearing. I don't know
whether it will or not, but in any event, on
the basis of the evidence I have heard thus
far, the proffer suggested in the
government's opening statement, it appears
to me very likely, most probable, that if I
hold a Petrozziello hearing, it will support
findings by a preponderance of the evidence
which is a standard I am supposed to use in
making the findings of conspiracy. So
unless you can call my attention to some
particular problem that I am not aware of, I
think the appropriate thing for me to do is
to receive in this evidence over objection
at this point.

See Trans. Vol. 2 (Afternoon) at 28. As demonstrated by this

excerpt from the transcript, the trial judge correctly

anticipated this issue and demonstrated his awareness of the

appropriate legal standard for making his determination.

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 When Swinson began to recount for the jury the

statements made to her by “Corey,” an alleged coconspirator with

the defendant,1 the government made the following proffer in

response to defendant's objection:

Respectfully, this statement is being
offered as a coconspirator declaration under
Federal Rules of Evidence 801(d)(2)(E),
Corey is a coconspirator, and the Court has
already heard testimony that Corey
instructed the girls at Wollaston Beach they
were bringing back flav in conjunction with
Whoppy [sic], and we would submit that this
is a probative statement. It is being
offered for the truth of the matter asserted
as a coconspirator declaration.

Id. at 78. At that point, the trial court announced that it had

“already heard enough to have a view that it is more likely than

not after I have heard all the evidence and hold a Petrozziello

hearing, that I will make findings that this is admissible as

that [sic] coconspirator statement . . . .” Id. Consequently,

the judge lifted the limiting instruction that he had previously

1 During the trial, the government incorrectly stated
that Corey was an indicted coconspirator, see Trans. Vol. 2
(afternoon) at 78, when, in fact, he was an unindicted
coconspirator. See Appellee's Brief at 9 n.5. Nevertheless,
this misstatement by counsel for the government is irrelevant to
our analysis, as Rule 801 makes no distinction between indicted
and unindicted coconspirators. See, e.g., United States v.
Ziperstein, 601 F.2d 281, 294 (7th Cir. 1979) (“[I]t is well
established that co-conspirators need not be indicted, and a
fortiori need not be named, for the [Rule 801] exception to be
applicable.”).

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given to the jury regarding the consideration of this testimony.

When Swinson testified regarding statements made by “Carl,”

“Dred,” and “Culture,” who were also alleged conspiracy

participants residing in Jamaica, the defendant renewed his

objection and again requested a limiting instruction. The trial

court, however, accepted the government's argument that these

statements were also covered by Rule 801(d)(2)(E), and told

counsel, “[If] you see a problem that I have not ruled on, you

may let me know.” See Trans. Vol. 3 at 20. Upon the conclusion

of the evidence, and after charging the jury, the trial judge

reiterated his decision to admit the coconspirator testimony

without limitation, and confirmed with counsel that a formal

Petrozziello hearing would not be necessary.2

As explained in United States v. Ortiz, 966 F.2d 707

(1st Cir. 1992), the jurisprudence of our circuit requires that

the district court make its Petrozziello determination “at the

2 THE COURT: All right, now, one other thing that I want
to call attention to is that I explicitly have decided
not to give any modification of instructions on my
evidentiary rulings during the course of the trial,
and no one has requested such modifications, and in
those circumstances a Petrozziello hearing is not
required. I just wanted to be sure that everybody
understood that.

MR. FAHEY (DEFENSE COUNSEL): That's correct, your
Honor.

Trans. Vol. 7 at 112.

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close of all the evidence.” Id. at 715 (quoting United States

v. Ciampaglia, 628 F.2d 632, 638 (1st Cir.), cert. denied, 449

U.S. 1038 (1980)). However, in Ortiz, we also made clear that

a “defendant's failure to object to the omission of such an

express trial-end determination bars him from raising the point

on appeal in the absence of plain error.” Id. (quoting United

States v. Perkins, 926 F.2d 1271, 1283 (1st Cir. 1991)).

Here, the trial judge made his provisional

determination regarding admissibility early on during the trial,

and reaffirmed his holding upon the conclusion of evidence.

Nevertheless, he did offer counsel the opportunity to request a

formal Petrozziello hearing. In light of counsel's failure to

accept the Court's invitation, the defendant waived this

objection. Even if we assume arguendo that the defendant did

not waive this issue, we find no error, plain or otherwise, in

the lower court's decision to admit the coconspirator

statements. Although the defendant correctly notes that a trial

judge may not rely solely on coconspirator statements to

establish the existence of a conspiracy, see United States v.

Sepulveda, 15 F.3d 1161, 1182 (1st Cir. 1993), here the court

had before it ample extrinsic evidence demonstrating that a

conspiracy existed. There was, inter alia, testimony that the

defendant had been in the vehicle with Corey, Swinson and Avery

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Fortes,3 and, while they were driving around, had instructed

Corey to tell the two women why they were getting a free trip to

Jamaica. The defendant also drove the two drug couriers

(Swinson and DePolo) to the airport, gave them the shampoo

bottles that they subsequently used to transport the drugs,

purchased their tickets for them through his friend Gregg Bush,

told the two women not to be seen together while traveling so as

not to arouse suspicion, and told Swinson to braid her hair so

that she would look more like a tourist. Along with the acts and

statements of the defendant himself, the government offered

evidence linking the defendant with his alleged coconspirators

in the drug scheme.4 The district court did not commit error,

plain or otherwise, when it ruled that the government had

demonstrated the existence of a conspiracy by a preponderance of

the evidence and allowed the jury to consider the statements of

unindicted coconspirators without a limiting instruction.

3 Avery Fortes was originally offered the “opportunity”
to go to Jamaica, but chose not to go. Swinson invited DePolo
to take Fortes' place.
4 For example, there was testimony that “Carl” and “Dred”
picked Swinson and DePolo up at the airport in Jamaica and
brought them to their hotel. Furthermore, the government
presented documentary evidence of defendant's phone records,
revealing numerous calls made to Jamaica during the time that
the drug transactions were consummated; part of an envelope with
“Carl's” phone number on it, which had been in DePolo's
possession at the time of her arrest; and Swinson's calendar,
which included the notation, “Wait for Carl.”

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 III.

The defendant argues next that the trial court erred

in denying his motion for acquittal and/or motion for new trial

filed pursuant to Fed. R. Crim. P. 29 and 33, because, defendant

maintains, there was no evidence linking him to the conspiracy

charged. The denial of a Rule 29 motion for judgment of

acquittal is reviewed de novo to determine “whether any rational

factfinder could have found that the evidence presented at

trial, together with all reasonable inferences, viewed in the

light most favorable to the government, established each element

of the particular offense beyond a reasonable doubt.” United

States v. Richard, 234 F.3d 763, 767 (1st Cir. 2000) (quoting

United States v. Gabriele, 63 F.3d 61, 67 (1st Cir. 1995)). The

denial of a motion for a new trial, on the other hand, is

reviewed for abuse of discretion, provided that the motion is

not based on grounds arising subsequent to trial or due to an

alleged error in the legal standard applied, neither of which

applies here. See United States v. Freeman, 208 F.3d 332, 339

& n.6 (1st Cir. 2000).

In addition to the properly admitted coconspirator

statements and the testimony of Fortes, Swinson and DePolo, the

government offered substantial testimonial and documentary

evidence, discussed supra, linking the defendant to, and

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suggesting that he was, in fact, the leader of the conspiracy to

import and to distribute cocaine. The fact that Swinson and

DePolo may have been under the mistaken impression that they

were being asked to transport marijuana rather than cocaine into

the United States is irrelevant because, based on the evidence

presented, a rational factfinder could conclude that the

defendant and his American and Jamaican (unindicted)

coconspirators were of one mind in conspiring to import and

distribute cocaine.5 With the exception of his claim of

ineffective assistance, which is discussed infra, the defendant

has failed to offer any additional argument or evidence to

support his claim that the trial judge abused his discretion in

failing to grant a new trial. The decision of the trial court

denying both the motion for judgment of acquittal and the motion

for a new trial is hereby affirmed.

IV.

Finally, the defendant suggests two additional grounds

of error. Defendant first argues that he is entitled to a new

trial because his counsel's performance was constitutionally

deficient. Second, the defendant maintains that his sentence

must be vacated in light of the Supreme Court's pronouncement in

5 The trial testimony of Fortes suggests that, in certain
communities, “flav” is commonly understood as a slang term for
cocaine. See Trans. Vol. 2 (morning) at 86.

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Apprendi v. New Jersey, 530 U.S. 466 (2000). We dispose of

these arguments summarily, as the former issue has been raised

prematurely and the latter is without merit.

A.

In raising a claim of ineffective assistance of

counsel, the defendant alleges that his trial counsel (1) failed

to question two witnesses on their prior testimony regarding

their knowledge of the conspiracy; (2) failed to raise the issue

of racial profiling; (3) failed to call defense witnesses; (4)

failed to argue the absence of proof of a conspiracy in the Rule

29 motion; and (5) failed to request a charge relating to the

perjury of a witness. However, “[t]he rule in this circuit is

that a fact-specific claim of ineffective legal assistance

cannot be raised initially on direct review of a criminal

conviction, but must originally be presented to the district

court.” United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir.

1989). In order for the defendant's claim to be considered

fully, he must first build a record in district court

cataloguing his complaints regarding his counsel's allegedly

faulty strategic choices and general performance. Therefore,

any consideration of defendant's ineffective assistance claim by

this Court is premature. See also United States v. Natanel, 938

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F.2d 302, 309 (1st Cir. 1991) (“We do not normally consider

ineffective-assistance-of-counsel claims on direct appeal.”).

B.

The defendant also alleges that the trial judge ran

afoul of Apprendi v. New Jersey when determining the applicable

penalty range under the Sentencing Guidelines, because he

calculated the sentence based on the amount of drugs involved in

the offense, even though a specific drug quantity had not been

included in the indictment.6 As this Court has held on numerous

occasions, “[n]o Apprendi violation occurs when the district

court sentences a defendant below the default statutory

maximum.” United States v. Barnes, 244 F.3d 172, 177-78 (1st

Cir. 2001); see also United States v. Robinson, 241 F.3d 115,

119 (1st Cir. 2001).7 The trial judge sentenced the defendant

to 121 months, which falls below the statutory maximum of 240

months provided by the catch-all provision of the controlled

6 The defendant only disputes the propriety of his term
of incarceration. He did not raise any challenge to his term of
supervised release either at sentencing or in his appellate
brief.
7 It is unclear whether the Supreme Court contemplated
the impact of its decision in Apprendi on the calculation of
sentencing guidelines ranges generally, and drug violation
guideline ranges in particular, where drug quantity is one of
the most important variables in determining where a guideline
range will fall. Nevertheless, until the Supreme Court offers
us additional guidance, First Circuit jurisprudence on this
point has been well-established.

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substances statute for offenses involving cocaine, 21 U.S.C. §

841(b)(1)(C). Therefore, no Apprendi violation has occurred,

and the defendant's sentence is affirmed.

V.

For all of the foregoing reasons, we hereby affirm

defendant's conviction and sentence.

Affirmed.

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