United States Court of Appeals
For the First Circuit
No. 04-1088
UNITED STATES,
Appellee,
v.
MITCHELL MCGUIRE, A/K/A MIX,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, Senior U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Sally A. Morris for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
November 17, 2004
STAHL, Senior Circuit Judge. Appellant Mitchell McGuire
("McGuire"), convicted of conspiracy to possess with intent to
distribute and possession of with intent to distribute cocaine
base, now seeks review of the district court's decision to admit at
his trial: (1) evidence of two episodes during which he engaged in
violent acts; and (2) a firearm found at the apartment in which he
was arrested. McGuire also appeals the district court's finding
that he was a career offender for purposes of sentencing. Finding
no error, we affirm the district court's determinations.
I. Background
In the summer of 2001, McGuire met Susan Gray ("Gray") in
Boston, Massachusetts. Gray lived in an apartment at 64 Oxford
Street in Lewiston, Maine. Soon after they met, McGuire and Gray
discussed the prospect of McGuire obtaining drugs in Boston for
them to sell in Maine.
Shortly thereafter, McGuire and Gray began selling drugs
obtained in Massachusetts in Maine, and by September 2002, McGuire
had moved into Gray's Lewiston apartment. The couple developed a
significant number of regular customers, including Michael Cyr
("Cyr"), Brooke Bernier ("Bernier"), and Bernier's boyfriend, Chad
Fitzhebert ("Fitzhebert"). They also employed drug runners,
individuals who collected the money for and delivered the drugs
they were selling.
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One night in September 2002, McGuire drove to Bernier's
apartment to deliver drugs. As McGuire exited his vehicle,
Fitzhebert attempted, albeit unsuccessfully, to rob him.
At trial, Bernier testified that one evening during the
month of October 2002, McGuire confronted her about the robbery
attempt while she was leaving a friend's apartment building. She
explained that as she was on her way out of the building, McGuire
emerged from around a corner and forced her into an empty
apartment. She stated that McGuire accused her of setting him up
for the Fitzhebert robbery attempt. Then, she said, McGuire pulled
out a handgun, aimed it at her head, and thereafter, hit her on the
side of her head with the gun, causing her to lose consciousness.
Gray testified that after McGuire returned from his run-
in with Bernier, he recited the details of the encounter to her.
At trial, she was permitted to recount those details as McGuire had
described them. Her testimony was entirely consistent with that of
Bernier.
On December 29, 2002, Cyr visited Gray at the apartment
she and McGuire shared. While he was inside the apartment, Cyr
stole drugs that belonged to McGuire and Gray.
The next morning, McGuire went to Cyr's parents' home to
find Cyr and retrieve the stolen drugs. At trial, Cyr's mother
testified that when she awoke that morning, she saw a male
intruder, wearing a mask, standing next to her bed. She stated
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that the man, who was holding a gun, demanded to be taken to Cyr's
room. After discovering that Cyr was not at home, she said that
the unwanted visitor complained that Cyr had stolen from him, and
then ordered her and her husband onto the floor and duct-taped
their hands and feet. She testified that she "had a feeling" the
intruder was McGuire, whom she had spoken with on the telephone and
seen before. Gray also was allowed to testify that upon McGuire's
return to 64 Oxford Street, he told her that he had gone to Cyr's
parents' home with a gun and had scared and tied up Cyr's parents.
Later that day, after receiving a report that McGuire had
broken into Cyr's parents' home, police officers went to 64 Oxford
Street and arrested McGuire in the apartment he and Gray shared.
In connection with the arrest, the officers searched the apartment
and found, among other things, drugs, drug paraphernalia, McGuire's
Maine driver's license which listed his address as 64 Oxford
Street, a storage agreement in McGuire's name that gave 64 Oxford
Street as his address, and a handgun. It was subsequently
determined that McGuire's fingerprints were not on the gun and the
gun was not the same gun that McGuire possessed when he invaded
Cyr's parents' home.1
An indictment then issued charging McGuire and Gray with:
(1) conspiracy to possess with intent to distribute more than five
1
It is unclear whether the gun was the same gun McGuire used
during his confrontation with Bernier.
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grams of cocaine base from June 2002 to December 2002; and (2)
possession of and intent to distribute cocaine base during the same
time period. McGuire's trial began on July 28, 2003. Both prior
to, and at the start of, trial, McGuire, citing Federal Rules of
Evidence 402 ("Rule 402"), 403 ("Rule 403"), and 404(b) ("Rule
404(b)"), moved to exclude all evidence relating to (1) his October
2002 encounter with Bernier, (2) his December 2002 encounter with
Cyr's parents, and (3) the handgun found in the apartment he and
Gray shared. The district court refused to exclude the evidence.
On July 30, 2003, a jury found McGuire guilty as charged.
At McGuire's sentencing hearing on December 29, 2003, the
district court found him to be a career offender under section
4B1.1 of the United States Sentencing Guidelines. Taking that
status into consideration, the court sentenced McGuire to a prison
term of 360 months to be followed by a term of supervised release.
On appeal, McGuire argues that the district court should
have excluded the abovementioned evidence. He claims that the
evidence regarding Bernier and Cyr's parents was unduly prejudicial
evidence of uncharged misconduct that should have been excluded
under Rules 403 and 404(b). He also argues that the evidence of
the firearm was irrelevant and unduly prejudicial and, as such,
should have been excluded pursuant to Rules 402 and 403. Moreover,
McGuire alleges that the district court's finding that he was a
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career offender was improper in view of Blakely v. Washington,
___ U.S. ___, 124 S. Ct. 2531 (2004).
II. McGuire's Evidentiary Challenges
We review the district court's decision to admit the
disputed evidence for abuse of discretion. See Richards v.
Relentless, Inc., 341 F.3d 35, 49 (1st Cir. 2003) (noting that a
district court's relevancy determinations are reviewed for abuse of
discretion); United States v. Balsam, 203 F.3d 72, 84 (1st Cir.
2000) (stating that evidentiary rulings pursuant to Rules 403 and
404(b) are reviewed for abuse of discretion).
A. Evidence Concerning Bernier and Cyr's Parents
McGuire argues that the evidence pertaining to Bernier
and Cyr's parents was unduly prejudicial evidence of uncharged
misconduct that should have been excluded pursuant to Rules 403 and
404(b). Rule 403 provides for the exclusion of evidence "if its
probative value is substantially outweighed by the danger of unfair
prejudice . . . ." And, Rule 404(b) states that "[e]vidence of
other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith."
However, other bad acts evidence is admissible so long as
the following, two-part test is satisfied: First, in accordance
with Rule 404(b), "the evidence must have special relevance to an
issue in the case such as intent or knowledge, and must not include
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bad character or propensity as a necessary link in the inferential
chain." United States v. Varoudakis, 233 F.3d 113, 118 (1st Cir.
2000) (internal quotation marks and citation omitted); see Fed. R.
Evid. 404(b). Second, consistent with Rule 403, the probative
value of the evidence must not be "substantially outweighed by the
danger of unfair prejudice." Varoudakis, 233 F.3d at 118; see Fed.
R. Evid. 403. Evidence is unfairly prejudicial if it "invites the
jury to render a verdict on an improper emotional basis."
Varoudakis, 233 F.3d at 122 ("We are . . . cautious when the prior
act is a shocking or heinous crime likely to inflame the jury.")
(internal quotation marks and citation omitted).
Yet, because not all bad acts constitute other bad acts,
not all evidence of bad acts must satisfy the two-part test to be
admissible. Where a bad act is "direct proof of the crime
charged," the evidence of the bad act need not satisfy Rule
404(b)'s special relevance requirement to be admissible, but in
line with Rule 403, the probative value of the evidence still must
not be substantially outweighed by the danger of unfair prejudice.
United States v. Arboleda, 929 F.2d 858, 866 (1st Cir. 1991); see
United States v. David, 940 F.2d 722, 737 (1st Cir. 1991)
("Evidence which is part and parcel of the crime being tried is
simply not 'other crimes' evidence within the ambit of Rule
404(b).").
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Contrary to McGuire's claim, the evidence that McGuire
threatened and struck Bernier with a gun because he believed that
she and her boyfriend had conspired to rob him was not Rule 404(b)
evidence. Indeed, it constituted direct proof of the charged drug
conspiracy. The episode occurred during the time frame charged in
the indictment. In addition, Gray's testimony that McGuire gave
her a detailed description of the episode indicated the existence
of a conspiracy between her and McGuire. Moreover, the episode
demonstrated McGuire's intent to protect the existing conspiracy
from potential threats, particularly theft.
Similarly, the evidence that McGuire committed an armed
invasion of Cyr's parents' home in response to Cyr's theft of drugs
from McGuire and Gray was direct proof of the charged conspiracy.
Like the encounter with Bernier, this episode: (1) occurred during
the time frame charged in the indictment; (2) suggested the
existence of a conspiratorial agreement between McGuire and Gray;
and (3) demonstrated McGuire's intent to protect the conspiracy.2
2
McGuire argues that Cyr's mother's testimony should have been
excluded because she testified that she only "had a feeling" that
McGuire was the intruder in her home. Yet, questions concerning
Cyr's mother's ability to identify McGuire as the intruder were
relevant to the weight the jury attached to her testimony rather
than its admissibility. See Hallquist v. Local 276, Plumbers &
Pipefitters Union, 843 F.2d 18, 24 (1st Cir. 1988) ("The extent of
a witness' knowledge of matters about which he offers to testify
goes to the weight rather than the admissibility of the
testimony.") (internal quotation marks, emphasis, and citations
omitted). In any event, McGuire's identity as the intruder was
independently established by Gray's testimony.
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Because we find that the evidence in issue constituted
direct proof of the charged conspiracy, it is unnecessary for us to
determine the admissibility of the evidence under Rule 404(b). See
Arboleda, 929 F.2d at 865-66. Nevertheless, Rule 403 still
requires consideration of whether the probative value of the
evidence was substantially outweighed by the danger of unfair
prejudice. The evidence was highly probative, as it was direct
proof of the charged conspiracy. To be sure, the evidence could
have had a prejudicial impact in that it may have caused the jury
to view McGuire as a person prone to violence. But, Rule 403 does
not prohibit the admission of prejudicial evidence; rather, it
prohibits the admission of evidence that is "unfairly" prejudicial.
And, taking into account the high probative value of the evidence,
it cannot be said that the probative value of the evidence was
substantially outweighed by a danger of unfair prejudice. The
district court did not abuse its discretion in admitting the
evidence.
B. Evidence Concerning the Handgun
In his final evidentiary challenge, McGuire contends that
the evidence regarding the handgun was irrelevant and unduly
prejudicial, and as such, it should have been excluded pursuant to
Rules 4023 and 403. We disagree. The evidence was relevant
3
Rule 402 provides that "[a]ll relevant evidence is
admissible, except as otherwise provided by[, among other things,]
. . . [the Federal Rules of Evidence] . . . ." It also states that
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because "in drug trafficking firearms have become 'tools of the
trade' and thus are probative of the existence of a drug
conspiracy."4 United States v. Green, 887 F.2d 25, 27 (1st Cir.
1989). And, it cannot be said that the probative value of the
firearm as a "tool of the trade" was substantially outweighed by
the danger of unfair prejudice. Any prejudice that may have
occurred as a result of the admission of the gun was not unfair
because there is no reason to suspect that its admission caused the
jury to decide the case on an improper emotional basis. See
Varoudakis, 233 F.3d at 122. The district court did not abuse its
discretion in deciding to admit the firearm.5
"[e]vidence which is not relevant is not admissible." Evidence is
relevant if it "ha[s] 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.
4
McGuire asserts that the "tools of the trade" doctrine is
inapplicable to this case because "no firearms offenses were
charged in this case and [the case] did not involve a large-scale
drug conspiracy." Yet, the fact that no firearms offenses were
charged in this case is irrelevant, as the firearm was nevertheless
probative of the existence of a drug conspiracy. And, it is
unnecessary for us to address whether an extensive drug conspiracy
is a prerequisite to the applicability of the "tools of the trade"
doctrine, because here we have a significant conspiracy, complete
with two drug dealers, a considerable number of regular drug
customers, several drug runners, and the deliberate transportation
of drugs across state lines from Massachusetts to Maine.
5
McGuire argues that because his fingerprints were not found
on the gun, the gun was insufficiently connected to him. But, the
gun was found in the apartment McGuire and Gray shared (McGuire
listed the apartment as his address on both his driver's license
and a storage agreement), and McGuire had used guns at various
times in connection with the drug conspiracy. To be sure, the gun
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III. McGuire's Sentencing Challenge
McGuire, citing Blakely v. Washington, ___ U.S. ___, 124
S. Ct. 2531 (2004), argues that the district court's finding that
he was a career offender under section 4B1.1 of the United States
Sentencing Guidelines violated his right to have every fact
essential to his punishment determined by a jury. Because McGuire
did not raise this argument before the district court, we review
the finding for plain error. United States v. Morgan, 384 F.3d 1,
8 (1st Cir. 2004). To establish plain error, McGuire must
demonstrate "(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected [his] substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001). We conclude that McGuire has failed
to carry his burden.
Section 4B1.1 of the United States Sentencing Guidelines
provides that a defendant is a career offender if:
(1) the defendant was at least eighteen years
old at the time the defendant committed the
instant offense of conviction; (2) the instant
offense of conviction is a felony that is
either a crime of violence or a controlled
substance offense; and (3) the defendant has
at least two prior felony convictions of
in question was not the same gun McGuire brandished at the Cyr
home, and it may not have been the same gun he used during his
confrontation with Bernier. Nevertheless, for the reasons stated
above, the gun was sufficiently connected to him.
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either a crime of violence or a controlled
substance offense.
McGuire contends that he was entitled to a jury determination that
he "has at least two prior felony convictions of either a crime of
violence or a controlled substance offense." Yet, under existing
pre-Blakely First Circuit precedent, "[w]hether a prior conviction
qualifies as a predicate offense under [section] 4B1.1 is a
question of law . . . ." United States v. Santos, 363 F.3d 19, 22
(1st Cir. 2004). The trial judge acted in accordance with Circuit
precedent in finding that McGuire had at least two qualifying
felony convictions, and thus, we cannot say that plain error
occurred. See Morgan, 384 F.3d at 8.
Affirmed.
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