United States Court of Appeals
For the First Circuit
No. 02-2330
UNITED STATES OF AMERICA,
Appellee,
v.
JOEL A. KEENE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Circuit Judge,
R. Arnold,* Senior Circuit Judge,
and Howard, Circuit Judge.
William Maselli, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Paula D. Silsby, United States Attorney, was on brief for
appellee.
August 22, 2003
*
Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
R. ARNOLD, Senior Circuit Judge. Joel Keene was
convicted of possession with intent to distribute more than 500
grams of cocaine and possession with intent to distribute
marijuana, and was subjected to forfeiture of his residence for his
drug convictions. He was sentenced to a total of sixty-six months’
imprisonment with forty-eight months of supervised release. He was
fined $12,500. He appeals the convictions, the fine, and the
forfeiture on a variety of grounds. We affirm in all respects.
After a decade of intermittent reports of drug dealing
by defendant Keene from four separate informants, police obtained
a nighttime, no-knock search warrant for his somewhat isolated
residence in Norway, Maine. They immediately found 23 kilograms of
compressed marijuana, 3.86 kilograms of loose marijuana, and 890.7
grams of 60 per cent. pure cocaine in a garage adjoining the house,
and smaller quantities of drugs along with drug paraphernalia in
his house. They arrested Keene and charged him with possession
with intent to distribute the drugs. His first trial ended in a
mistrial. His second trial was bifurcated, with the forfeiture
count severed from the possession with intent to distribute
charges. He was convicted by a jury after a motion to suppress
evidence obtained during the search was denied. This appeal
followed.
-2-
I.
Appellant raises six issues on appeal. First, he argues
that the search warrant obtained by police was not supported by
probable cause, because the information relied on was stale and
there was no nexus with the property to be searched. Second, there
was insufficient evidence of his possession of cocaine with an
intent to distribute. Third, the instructions given to the jury on
aiding and abetting and willful blindness were not supported by the
evidence. Fourth, the prosecution’s invitation to the jury to
analyze defendant’s handwriting was improper and denied him a fair
trial. Fifth, the government made references to his lifestyle in
its closing argument, which also denied him a fair trial. Finally,
the defendant argues that the imposition of a fine was improper,
and that the government’s request for a forfeiture should have been
denied.
A. Probable Cause
Defendant argues that Maine Drug Enforcement agents
relied on stale information to obtain a nighttime, no-knock warrant
for his residence, and that evidence of drug dealing suggested by
this information had an inadequate nexus to the property searched.
We disagree.
Probable cause to issue a search warrant exists when
“given all the circumstances set forth in the affidavit . . . there
is a fair probability that contraband or evidence of a crime will
-3-
be found in a particular place.” Illinois v. Gates, 462 U.S. 213,
238 (1983). The task of the reviewing court is to determine
whether “a substantial basis” existed for the magistrate’s
determination that probable cause existed. Ibid. Factors to be
considered in determining whether a search warrant should issue
include “the value of corroboration of details of an informant’s
tips by independent police work.” Id. at 241.
Police provided detailed information from four
confidential informants to the magistrate judge in applying for the
search warrant. Maine Drug Enforcement Special Agent Tony L.
Milligan obtained this information. The first informant was
interviewed in 1992 and provided specific information, while
incarcerated, about his drug dealings with six individuals,
including defendant, at a Saracens Motorcycle Club hangout.
Members of the Saracens had been convicted of drug dealing. Other
information provided by this informant had resulted in successful
prosecution of significant drug traffickers. Two years later, a
second informant, a concerned citizen with no criminal record who
was “sick and tired” of drug activity connected with the Saracens
Motorcycle Club, came forward. He too gave specifics about Keene’s
drug distribution activities and drug delivery services, and
provided eyewitness accounts of his substantial, unexplained
wealth. This information was also corroborated. In 1996, a third
informant, a convicted felon, also provided information about
-4-
Keene’s drug activities. Finally, a little more than a month
before Agent Milligan applied for the search warrant, he received
information from Somerset County Sheriff Detective Lt. Carl
Gottardi about his interview with a highly reliable source, who was
charged with no crime and was not paid for his information. This
informant recounted first-hand observations of Keene’s large-scale
cocaine sales, and indicated that Keene also supplied drugs to the
Saracens and Hell’s Angels Motorcycle Clubs. In the month leading
up to application for the warrant, this informant identified one of
Keene’s regular cocaine customers and provided details about
Keene’s habits which police corroborated.
Since the information provided by the four informants
over a ten-year period was amply corroborated, was consistent with
a drug conspiracy of long duration, and had been updated within the
month before application for the warrant, there was probable cause
for issuance of the warrant.
Defendant also argues that the information provided did
not establish a sufficient nexus between drug activity and the
property to be searched, and so the warrant should not have issued.
See United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993).
However, the informants provided information about drug sales by
defendant, evidence of substantial wealth unexplained by his
workers’ compensation benefits, and the fact that he worked from
home while recovering from back injuries for which he drew the
-5-
workers’ compensation. This information suggested that drug
distribution was being organized from Keene’s residence, a place
which was safe and accessible. United States v. Feliz, 182 F.3d
82, 87-88 (1st Cir. 1999). The information established a
sufficient nexus with the property to be searched, and probable
cause existed for the warrant to issue.
B. Sufficiency of Evidence
Drugs, drugs everywhere, but none belonged to defendant.
This is the proposition of which defendant failed to convince a
jury, and the one which he now asks this Court to accept. We do
not.
In order to prevail on a claim of insufficient evidence
a defendant must make a “formidable showing.” United States v.
Valerio, 48 F.3d 58, 63 (1st Cir. 1995). To determine whether
evidence was sufficient, “we examine the record in a light most
favorable to the government, drawing all reasonable inferences in
its favor, with an eye towards whether the proof would have allowed
a rational jury to determine beyond a reasonable doubt that the
defendant was guilty of the crime charged.” Ibid. (quoting United
States v. Ortiz, 23 F.3d 21, 24 (1st Cir. 1994)). Both direct and
circumstantial evidence are considered, and the government’s proof
may lie “entirely in circumstantial evidence.” Ibid. Defendant
argues that the drugs found by police at his home were found in a
-6-
garage bay to which many people had access, and that the government
supplied no substantial evidence of sales of drugs by Keene.
When twenty officers executed the search warrant, after
arresting Keene, his girlfriend, and his father, they searched
defendant’s garages. On entering the first garage, Agent Milligan
was overwhelmed by the strong odor of fresh marijuana, and
immediately noticed a large white cooler and packing materials on
the floor. Inside the cooler were three large trash bags, each of
which contained kilogram-sized bricks of compressed marijuana and
a piece of paper with numbers written on it. The total weight of
the marijuana found was fifty-two pounds. On the table at the back
of the garage a triple beam balance scale and commercial digital
scale were found with marijuana residue on them. Upstairs, more
boxes with fresh marijuana residue, scales, and UPS labels were
found, along with shipping boxes. In a corner of this garage, at
the bottom of a pile of automobile tires was a metal ammunition
canister inside of which were thirty-two knotted plastic bags, each
of which contained a chunk of 60 per cent. pure rock cocaine. A
five-gallon pail sat against the back wall with ziplock bags
containing loose mildewed marijuana and bricks of fresh marijuana.
Marijuana buds were found inside unmounted motorcycle tires. A
blue plastic tub contained another ziplock bag of fresh, brick
marijuana. In a hole in the brick wall was another tub containing
marijuana in ten ziplock bags. Small amounts of marijuana,
-7-
cocaine, and drug paraphernalia were found throughout the house, as
well as address books and ATV registrations. When confronted with
these findings after his arrest, Keene responded that someone else
must have put the drugs in his garage. The jury reasonably found
this explanation incredible. Because substantial evidence existed
to sustain defendant’s convictions, we affirm.
C. Instructions and Statements to the Jury
Appellant challenges both the District Court’s
instructions as to the government’s burden of proof for willful
blindness, and its instructions as to what was required to convict
Keene of aiding and abetting.
The standard of review for a challenge of this type to
jury instructions as erroneous is de novo. United States v.
Marino, 277 F.3d 11, 28 (1st Cir. 2002). A willful-blindness
instruction “is proper if a defendant claims a lack of knowledge,
the facts suggest a conscious course of deliberate ignorance, and
the instruction, taken as a whole, cannot be misunderstood as
mandating an inference of knowledge.” United States v. Masse, 816
F.2d 805, 812 (1st Cir. 1987). As this Court recently pointed out
in another drug distribution case, “whether there was knowledge of
drug dealing, or so much awareness that ignorance was willful
blindness,” may turn exclusively on circumstantial evidence.
United States v. Corchado-Peralta, 318 F.3d 255, 258 (1st Cir.
2003). The District Court instructed members of the jury that they
-8-
“may” infer knowledge from conscious ignorance, not that they were
required to do so. See United States v. Bilis, 170 F.3d 88, 92
(1st Cir. 1999). The instructions contained a clear explanation of
what the jury was required to find in order to determine whether
Mr. Keene had been willfully blind to the presence of large
quantities of drugs on his property. In particular, the lower
court explained that it was “important to bear in mind that mere
negligence or mistake in failing to learn the facts is not
sufficient. There must be a deliberate effort to remain ignorant
of the fact.” Jury Instructions at 10 (#32). The instructions
gave an accurate statement of the pertinent law.
Appellant also argues that, because the crime of aiding
and abetting was not charged in the indictment, the jury should not
have been instructed about it. A defendant may be convicted as an
aider and abettor if the evidence shows: (1) that the underlying
offense was committed by a principal; (2) that the defendant
consciously shared the principal’s knowledge; and (3) that he
“willfully associated himself in some way with the crime and
willfully participated in it as he would in something he wished to
bring about.” United States v. Henderson, 320 F.3d 92, 109-10 (1st
Cir. 2003). When asked about the fifty-two pounds of marijuana in
his garage, Keene observed, “It’s been there for a while.” When
told he faced serious drug charges, he asked that his girlfriend
not be charged, stating “it’s my house, it’s my garage . . . . I
-9-
guess it’s my responsibility.” He later speculated that “whoever
put the marijuana there must have put the coke there as well.”
An instruction on aiding and abetting may be given
although there is no reference to the crime in the indictment.
United States v. Footman, 215 F.3d 145, 154 (1st Cir. 2000).
Indeed, a charge of aiding and abetting is implicit in indictments
for substantive offenses. Ibid. The revisor’s note to 18 U.S.C.
§ 2 states that “one who puts in motion or assists in the illegal
enterprise . . . is guilty as a principal even though he
intentionally refrained from the direct act constituting the
completed offense.” The instruction was proper, and since it had
been given in Keene’s first trial, which ended in a mistrial, he
cannot claim that the charge came as a surprise to him in the
second trial. The instructions on aiding and abetting and willful
blindness were proper.
D. Prosecutorial Statements
Defendant claims that in its closing argument the
government erred in a manner serious enough to require reversal of
the jury verdict, both by inviting the jurors to examine
handwriting evidence in an improper fashion and by maligning
defendant’s character. These claims are without merit.
The prosecution suggested that jurors could analyze
handwriting evidence on numbered labels from drug containers by
comparing it with samples of defendant’s handwriting to establish
-10-
a connection between Mr. Keene and the drugs found on his property.
Under 28 U.S.C. § 1731, “[t]he admitted or proved handwriting of
any person shall be admissible, for purposes of comparison, to
determine genuineness of other handwriting attributed to such
person.” The trier of fact is authorized to make such a
comparison, with or without the benefit of expert testimony. Fed.
R. Evid. 901(b)(3). See United States v. Scott, 270 F.3d 30, 49
n.13 (1st Cir. 2001).
To emphasize that handwriting comparisons could indeed be
performed with only handwritten numbers (rather than letters) for
comparison, the prosecution suggested that if jurors themselves
wrote the same numbers on a piece of paper and compared them with
the samples, they would see that written numbers too were
distinctive. Defendant argues that in making this suggestion, the
prosecutor asked the jurors to make a determination they were
unqualified to make, and encouraged them to create evidence for the
purpose of comparison. But the prosecutor merely suggested this
mode of comparison and argued for a factual finding favorable to
the government. He did not suggest it would be determinative of
guilt. The jury was free to disregard the suggestion, especially
since other substantial evidence connected Keene to the drugs. The
prosecutorial statement did not constitute reversible error.
Defendant objects as well to the government’s disparaging
references in its closing statement to his lifestyle and character.
-11-
Because this issue is raised for the first time on appeal, we
review only for plain error. Henderson, 320 F.3d at 105. Mr.
Keene must show not only that the arguments were prejudicial and
affected his substantial rights, but that, absent reversal, a
miscarriage of justice would occur. Mr. Keene draws particular
attention to the prosecution’s emphasis on the fact that he had
drawn workers’ compensation for a period of years as an example of
the government’s attempt to malign his character by implying he was
lazy or parasitical. Defendant misconstrues the thrust of this
part of the closing argument. The transcript makes clear that the
prosecution drew the jury’s attention to the fact that Keene was
not working a regular job in order to raise a question as to how,
without regular income, he was able to afford a luxurious
lifestyle. This was an eminently reasonable argument to make,
given that it pointed to the likelihood that Mr. Keene’s lifestyle
was made possible by income from the sale of drugs. The
prosecutor’s statements were proper.
E. Fine and Forfeiture
Defendant argues that the imposition of a fine of $12,500
by the court, when the pre-sentence investigation report (PSI)
recommended against a fine, and the government failed to object to
this recommendation, is improper. In these circumstances, we
review imposition of a fine for abuse of discretion. United States
v. Cunan, 152 F.3d 29, 37 (1st Cir. 1998). Cf. United States v.
-12-
Thurston, 2003 WL 21782339 at *23 (1st Cir.)(holding that where a
lower court declines to impose a fine when it is mandated by
statute, review of questions of law is de novo).
In recommending against a fine, the PSI had made the
erroneous assumption that, after forfeiture of his residence,
defendant would have no assets left with which to pay a fine. In
fact, his known assets, even after forfeiture of his house, totaled
over $50,000. The imposition of a fine at the lowest end of the
Guideline range is well within judicial discretion, and Keene has
not argued that he is unable to pay the amount. Further, the court
offered Keene additional time to develop a response to the
government’s request for a fine at sentencing - time he chose not
to use. We find no abuse of discretion in the imposition of a fine
here. Whether to impose a fine is the prerogative of the court.
That the PSI recommended against a fine, whether or not the
recommendation was based on a mistake of fact, cannot be
dispositive.
Having convicted defendant of possession of drugs with
intent to distribute, the jury found defendant’s residence was
forfeit to the government. Defendant asserts that Fed. R. Crim. P.
32.2 requires a “more active and searching inquiry” than that
engaged in by the District Court to justify this forfeiture, and
that the government did not meet its burden of proof.
-13-
For the first time on appeal, defendant argues that under
Apprendi v. New Jersey, 530 U.S. 466 (2000), the applicable
standard of proof was proof beyond a reasonable doubt. However,
other circuits have consistently refused to apply Apprendi
requirements to criminal forfeitures. United States v. Vera, 278
F.3d 672, 673 (7th Cir. 2002); United States v. Cabeza, 258 F.3d
1256, 1257 (11th Cir. 2001) (per curiam); United States v. Corrado,
227 F.3d 543, 550-51 (6th Cir. 2000). The forfeiture is not viewed
as a separate charge, but as “an aspect of punishment imposed
following conviction of a substantive offense.” Cabeza, 258 F.3d
at 1257 (quoting Libretti v. United States, 516 U.S. 29, 39
(1995)). This is because “drug trafficking is at the core of the
conduct at which the forfeiture statutes are directed.” United
States v. One Clipper Bow Ketch Nisku, 548 F.2d 8, 11 (1st Cir.
1977). This Court has observed with approval that “almost every
circuit that has pronounced on the issue has held that the standard
of proof as to forfeiture issues under section 853 . . . is a
preponderance of the evidence.” United States v. Rogers, 102 F.3d
641, 647 (1st Cir. 1996). The evidentiary standard used to impose
the forfeiture was proper, as was the forfeiture itself. The
preponderance standard was certainly satisfied here.
For the foregoing reasons, we affirm.
-14-