United States v. Benedetti

United States Court of Appeals
For the First Circuit

No. 05-1033

UNITED STATES OF AMERICA,

Appellee,

v.

JOSEPH M. BENEDETTI,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Selya, Circuit Judge,

Stahl, Senior Circuit Judge,

and Lipez, Circuit Judge.

Thomas More Dickinson, with whom Barry Zone was on brief, for
appellant.
Donald C. Lockhart, Assistant United States Attorney, with whom
Robert Clark Corrente, United States Attorney, and Lee Vilker,
Assistant United States Attorney, were on brief, for appellee.

December 23, 2005
 SELYA, Circuit Judge. On March 10, 1999, a federal grand

jury sitting in the District of Rhode Island charged defendant-

appellant Joseph Benedetti with being a felon in possession of a

firearm. See 18 U.S.C. § 922(g). The appellant evaded arrest until

July 2, 2003, when he was finally found in Florida.

Following the appellant's enforced return to Rhode Island,

a five-day trial ensued. The jury found the appellant guilty. The

district court, over the appellant's contemporaneous Blakely

objection, see Blakely v. Washington, 542 U.S. 296 (2004), sentenced

him in accordance with the federal sentencing guidelines.

In this timely appeal, the appellant asserts that a pair

of errors marred the proceedings below: (i) the district court

abused its discretion when it allowed the government to introduce

evidence of his flight to Florida and (ii) the Supreme Court's

decision in United States v. Booker, 125 S. Ct. 738 (2005),

vindicated his Blakely objection and entitles him to resentencing.

We conclude that the district court committed no trial

error and that the Booker error, even though preserved by the

appellant's Blakely objection, was harmless. Accordingly, we affirm

the appellant's conviction and sentence.

I. BACKGROUND

We rehearse the relevant facts in the light most

hospitable to the verdict. United States v. Mercado, 412 F.3d 243,

245 (1st Cir. 2005).

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 On the night of November 19, 1998, five Rhode Island state

police troopers arrived at the appellant's small apartment, search

warrant in hand, and knocked on the door. The appellant began to

open the portal, but quickly slammed it shut when he learned who was

on the other side. The troopers forced entry, subdued the appellant,

ascertained that no one else was on the premises, and executed the

warrant.

The search revealed a number of utility bills bearing the

appellant's name and address and no evidence suggesting that any

other person was living in the apartment. When the search extended

to the top drawer of a dresser in the apartment's lone bedroom, the

troopers found, among the usual haberdashery (underwear, socks, and

the like), a loaded .380 caliber handgun, small amounts of cocaine

and marijuana, and some pills. No underwear or socks were found in

any other location within the apartment.

After reading the appellant his Miranda rights, see Miranda

v. Arizona, 384 U.S. 436, 444 (1966), a trooper confronted him

regarding the fruits of the search. At that point, the appellant

admitted: "Everything in the apartment is mine." The trooper then

inquired specifically as to the ownership of the gun. The appellant

replied: "[T]he gun's mine too." He further acknowledged that he was

the only person residing in the apartment.

The discovery of the handgun resulted in a referral of the

case to federal law enforcement authorities. On Wednesday, March 10,

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1999, the grand jury handed up a one-count indictment charging the

appellant as a felon in possession of a firearm. See 18 U.S.C. §

922(g). Two days later, attorney Paul DiMaio telephoned Waing Chau,

an agent of the Bureau of Alcohol, Tobacco and Firearms. After

identifying himself as the appellant's lawyer, DiMaio inquired as to

whether the district court had issued an arrest warrant for his

client. Chau replied in the affirmative and assented to DiMaio's

subsequent request that the appellant be permitted to self-surrender

on Monday, March 15.

Monday arrived, but the appellant did not. Instead, DiMaio

called Chau and informed him "that Mr. Benedetti would not be

surrendering [because] he was gone." The appellant remained at large

for over four years. He was eventually arrested on July 2, 2003,

when government agents found him living in Florida under an assumed

name. He was then returned to Rhode Island to face the pending

indictment.

As the parties geared up for trial, the government

indicated that it planned to introduce evidence of the appellant's

abscondment. Nonplussed by this prospect, the appellant filed a

pretrial motion in limine. Following a hearing, the district court,

ruling ore sponte, concluded that the probative value of the evidence

was substantially outweighed by "the risk of unfair prejudice, the

time that would be consumed in exploring [it], and the risk that the

jury may be confused as to . . . the real issue" in the case. The

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court found it plausible that the appellant, although innocent, might

have fled because he feared that he would be unjustly convicted.

Given this possibility, the chance that the jury might be tempted to

convict the appellant simply because he fled created what seemed to

the court at that time to be an unacceptable risk of unfair

prejudice. Hence, the court excluded the flight evidence pursuant

to Federal Rule of Evidence 403 (providing in pertinent part that

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 . . . waste of time").

Even though the court granted the motion in limine, it

apparently was cognizant that it did not have a full picture of the

factual scenario. Accordingly, the court confined its exclusionary

ruling to the government's case in chief. The court took pains to

remind the parties that the ruling was subject to change and that the

matter could be revisited if the evidence at trial unfolded in a

manner that altered the variables inherent in the Rule 403 algorithm.

The appellant stipulated that he had a prior felony record

and that the gun had traveled in interstate commerce. Thus, the only

triable issue was whether the appellant possessed the .380 caliber

handgun. During the government's case in chief, two of the troopers

who participated in the search testified anent their findings and the

appellant's admissions. In cross-examining these officers, defense

counsel made repeated references to the fact that the events to which

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they testified had occurred almost five years prior to the time of

trial. In his opening statement, made at the start of the defense

case, counsel reiterated that point.

The defense case was built on the premise that the gun

found in the apartment did not belong to the appellant but, rather,

to the appellant's friend, Kenneth Bellucci. Bellucci testified that

the appellant had allowed him to live in the apartment temporarily,

that all the items discovered in the top dresser drawer were his, and

that the appellant was not aware of the presence of the handgun.

Bellucci explained that, by coincidence, he had moved out of the

apartment on the very day that the troopers arrived. Although he

took most of his possessions with him, he left behind his underwear,

socks, drugs, and gun.

The defense then called Linda DiBona, the appellant's ex-

wife. DiBona testified that Bellucci moved in with her after

departing from the appellant's hearth and that she overheard a

telephone call between the two men in which Bellucci admitted that

the gun was his. In that same call, Bellucci apologized profusely

to the appellant and promised to "make it right."

During DiBona's direct examination, the government sought

permission to cross-question DiBona regarding her knowledge of the

appellant's flight. Noting that the in limine ruling only precluded

the government from introducing evidence of flight in its case in

chief, the court recalibrated the scales. In doing so, it identified

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three material sets of circumstances that had changed subsequent to

the time of its original in limine ruling. First, defense counsel's

repeated references to the lengthy interval between the discovery of

the weapon and the time of trial had created an inference of "trumped

up charges" that the government should be allowed to rebut. Second,

the fact that the appellant presumably knew from the outset that

Bellucci and DiBona were prepared to exonerate him strengthened the

inference that his flight indicated a consciousness of guilt. Third,

witnesses close to a defendant who possessed exculpatory evidence

normally would come forward immediately if they knew that their

friend had been falsely accused. Because Bellucci and DiBona had

not, the court believed that their knowledge of the appellant's

flight would be relevant to an assessment of their credibility.

Emphasizing these new insights, the court ruled that the government

could present flight evidence to impeach defense witnesses and, as

part of its rebuttal case, to establish a consciousness of guilt.

In announcing this ruling, the court made clear that the

witnesses were free to deny knowledge of the appellant's flight and

that the appellant was free to adduce evidence suggesting an innocent

purpose for his abrupt departure. The significance of the flight

evidence, the court said, was ultimately a question of fact for the

jury to determine. And, finally, the court invited the appellant to

propose cautionary jury instructions for the court's consideration.

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 The government proceeded to cross-examine DiBona (herself

a former police officer) regarding her knowledge of the appellant's

flight. Although she had previously been in the habit of seeing or

speaking with the appellant at least once every few months, she

indicated that she neither saw nor heard from him during the more

than four-year period of his absence. She denied knowing that the

appellant had been living in Florida. To justify her failure to

apprise the authorities of the overheard telephone conversation, she

explained that she assumed that Bellucci had come forward and that

the charges against her former husband had been dropped.

The government declined the court's invitation to recall

Bellucci for cross-examination along similar lines. In its rebuttal

case, Chau testified about securing the 1999 arrest warrant, his

telephone conversations with the appellant's former attorney, and the

appellant's eventual apprehension in Florida. During the course of

Chau's testimony, the court, acting on its own initiative, gave a

cautionary instruction explaining that the government was trying to

establish that the appellant had evinced a consciousness of guilt,

but that it was up to the jury to determine what inference, if any,

to draw from the testimony. The court also reminded the jury that

the appellant was charged only with a firearms offense, not with

fleeing from the law. Neither side objected to these instructions.

In its closing argument, the government again referred to

the appellant's flight and urged the jury to infer consciousness of

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guilt. The defense argued that such an inference would be

unwarranted. In charging the jury, the court reiterated that the

government bore the burden of showing that the appellant had

intentionally fled and that flight does not create a presumption of

guilt but, to the contrary, may be completely consistent with

innocence. The jury found the appellant guilty as charged.

At the disposition hearing, the appellant objected to the

government's sentencing recommendation. He posited that the Supreme

Court's decision in Blakely precluded the court from mechanically

applying the federal sentencing guidelines. After considering the

parties' Blakely arguments, the lower court concluded that, under the

circumstances at hand, it did not matter whether Blakely applied

because "the sentence that the Court would impose under the

guidelines would be exactly the same sentence as the Court would

impose if one assumes that Blakely holds the guidelines

unconstitutional." The court then made a series of guideline

calculations that culminated in placing the appellant at a total

offense level of 22 and in criminal history category V. Those

integers yielded a guideline sentencing range (GSR) of 77-96 months.

The court imposed a top-of-the-range incarcerative sentence (96

months). In doing so, it reiterated "that whether the guidelines

apply or don't apply, the sentence that I would impose would be the

same."

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II. ANALYSIS

We divide our analysis into segments corresponding with the

appellant's two assignments of error.

A. Admission of Flight Evidence.

Flight evidence is controversial and must be handled with

care. Given an adequate factual predicate, however, evidence of a

criminal defendant's flight is generally thought to be probative of

his or her consciousness of guilt. See, e.g., United States v.

Zanghi, 189 F.3d 71, 83 (1st Cir. 1999); United States v. Grandmont,

680 F.2d 867, 869 (1st Cir. 1982). As a precursor to admissibility,

the government must present sufficient extrinsic evidence of guilt

to support an inference that a defendant's flight was not merely an

episode of normal travel but, rather, the product of a guilty

conscience related to the crime alleged. See United States v. Otero-

Méndez, 273 F.3d 46, 53 (1st Cir. 2001); Zanghi, 189 F.3d at 83.

Because flight may be consistent with innocence as easily as with

guilt, this precursor helps ensure that a jury does not infer guilt

based solely on a defendant's meanderings.

Even if the government makes the requisite showing,

admissibility is not automatic. Flight evidence is subject to

exclusion under Rule 403. Otero-Méndez, 273 F.3d at 53. A district

court is afforded considerable leeway when determining whether

evidence of a defendant's flight is accompanied by a sufficient

factual predicate. The court is afforded similar latitude in

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determining whether the evidence passes the Rule 403 balancing test.

Consequently, we review such decisions only for abuse of discretion.

See id.; see also Freeman v. Package Mach. Co., 865 F.2d 1331, 1340

(1st Cir. 1988) (cautioning that "[o]nly rarely — and in

extraordinarily compelling circumstances — will we, from the vista of

a cold appellate record, reverse a district court's on-the-spot

judgment concerning the relative weighing of probative value and

unfair effect").

In this case, the government adduced a sufficient factual

predicate. The court had available to it, from the government's

proffer, enough extrinsic evidence to furnish circumstantial badges

of guilt. That evidence included Chau's account of the unfulfilled

promise of self-surrender, police testimony that the appellant after

initially resisting the search had admitted owning the gun, the fact

that no one else lived in the apartment, and the absence of any

underwear or socks other than those found in close proximity to the

weapon.

The appellant nevertheless claims that the district court's

midtrial decision to allow evidence of flight, after having ruled in

limine that the government could not use that evidence, constituted

reversible error. The appellant, ably represented, starts this line

of advocacy with a suggestion that the flight evidence was only

"marginally relevant." The district court disagreed. It found that

the evidence had probative value (and, therefore, was relevant, see

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Fed. R. Evid. 401) in three respects: (i) establishing the appellant's

consciousness of guilt; (ii) rebutting any suggestion that the

government fabricated the charge; and (iii) impeaching defense

witnesses. As we explain below, these findings are adequately

supported by the record.

In our view, the tipping point is that the court found the

flight evidence to have probative value in two areas that were not

apparent at the time of the in limine ruling. For one thing, in

cross-examining the government's witnesses, defense counsel made

repeated references to the nearly five-year gap between indictment and

trial. These references set the stage for an inference that the

government had spent the intervening time "trumping up" charges

against the appellant. Evidence of the appellant's flight provided

an alternate explanation for the lapse in time.

For another thing, the flight evidence turned out to have

probative worth for evaluating the credibility of the defense

witnesses. If someone in the position of Bellucci or DiBona knew that

his or her friend, unjustly accused, had fled the jurisdiction, it

would be reasonable to expect that person to come forward in an effort

to clear the friend's name. Neither Bellucci nor DiBona did so.

Thus, allowing the government to inquire as to whether either of them

had knowledge of the flight (and, if so, why he or she held back) made

perfect sense. See, e.g., Mercado, 412 F.3d at 248.

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 Over and above relevance, the appellant attempts in various

ways to establish that the district court abused its discretion in

deciding to admit the evidence. First, he attacks what he

characterizes as the court's about-face: he asserts that he suffered

unfair prejudice when the court, after having granted his pretrial

motion in limine, "reversed" that decision in the middle of the

defense case. This argument collapses of its own weight.

It is settled law that in limine rulings are provisional.

Such "rulings are not binding on the trial judge [who] may always

change his mind during the course of a trial." Ohler v. United

States, 529 U.S. 753, 758 n.3 (2000); accord Luce v. United States,

469 U.S. 38, 41 (1984) (noting that in limine rulings are always

subject to change, especially if the evidence unfolds in an

unanticipated manner). Here, moreover, the additional evidence made

available to the court gave it a fresh coign of vantage. So viewed,

the court's midtrial decision to allow use of the evidence cannot

fairly be characterized as an overruling of its original order.

Relatedly, the appellant asserts that the court's change of

position caused unfair surprise and thereby undermined the defense's

trial strategy. That assertion rings hollow. By its explicit terms,

the in limine ruling excluded the flight evidence only from the

government's case in chief. The carefully circumscribed nature of the

order undercuts any claim of unfair surprise. See Thudium v. Allied

Prods. Corp., 36 F.3d 767, 769-70 (8th Cir. 1994). Whether or not the

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appellant anticipated that the court would take a different view of

the flight evidence after the government rested is beside the point.

Mere surprise is insufficient to ground a Rule 403 challenge. See

O'Rourke v. E. Air Lines, Inc., 730 F.2d 842, 855 n.21 (2d Cir. 1984).

It is only unfair surprise against which litigants must be protected.1

This brings us to the appellant's final point. Without

further elucidation, the appellant broadly contends that he was

prejudiced by (i) the cross-examination of DiBona regarding her

knowledge of the appellant's flight; (ii) Chau's testimony anent the

proposed self-surrender; and (iii) the prosecutor's references to

flight during summation. This contention is unpersuasive. Although

this evidence likely worked to the appellant's detriment, Rule 403 is

concerned not with prejudicial evidence, but with unfairly prejudicial

evidence. See United States v. Moreno Marbles, 815 F.2d 725, 740 (1st

Cir. 1987); see also Veranda Beach Club Ltd. P'ship v. W. Sur. Co., 936

F.2d 1364, 1372 (1st Cir. 1991) (explaining that "trials were never

meant to be antiseptic affairs" and that "it is only unfair prejudice,

not prejudice per se, against which Rule 403 guards"). Evidence is

generally deemed unfairly prejudicial if it has an undue tendency to

1
We note in passing that, were surprise a genuine problem,
"the granting of a continuance is a more appropriate remedy than
exclusion of the evidence." Fed. R. Evid. 403 advisory committee's
note. In this case, the appellant requested a recess to regroup
after the midtrial ruling, and the district court granted the
request.

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prompt a decision by the factfinder on an improper basis. See Old

Chief v. United States, 519 U.S. 172, 180 (1997).

In the case at hand, the appellant's resistance to the

execution of the search warrant, his admissions on that occasion, and

the unfulfilled promise of self-surrender formed a sufficient factual

predicate for the introduction of the flight evidence. This predicate

substantially diminished the possibility that the jury might infer guilt

solely on the basis of the appellant's flight. To cinch matters, the

court's cautionary instructions, twice repeated, mitigated any risk that

the jury might give the flight evidence undue weight. See United States

v. Candelaria-Silva, 162 F.3d 698, 706 (1st Cir. 1998) (finding danger

of unfair prejudice quelled by a comparable instruction). For these

reasons, we conclude that the risk of unfair prejudice stemming from

admission of the evidence of flight was slight, and that the district

court acted within the encincture of its discretion when it made the

challenged midtrial ruling.

B. Sentencing.

As was the case in United States v. Booker, the district judge

applied the then mandatory guidelines and "imposed a sentence higher

than the maximum authorized solely by the jury's verdict." 125 S. Ct.

at 769. The Booker error is not that the judge determined facts that

increased the sentence beyond that authorized by the verdict but,

rather, that the judge did so under a mandatory guidelines system.

United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005). The

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appellant preserved his claim of Booker error when he argued that a rote

application of the guidelines transgressed the principles enunciated by

the Blakely Court and, therefore, that a mandatory guidelines system was

unconstitutional. See id. at 76 ("The argument that a Booker error

occurred is preserved if the defendant below argued . . . Blakely error

or that the Guidelines were unconstitutional.").

A preserved claim of Booker error is reviewed for

harmlessness. United States v. Vázquez-Rivera, 407 F.3d 476, 489 (1st

Cir. 2005). Under that standard, the sentence must be vacated and the

case remanded for resentencing unless the government carries the weighty

burden of proving beyond a reasonable doubt that the sentencing error

did not adversely affect the defendant's substantial rights. United

States v. Meléndez-Torres, 420 F.3d 45, 51 (1st Cir. 2005); Vázquez-

Rivera, 407 F.3d at 489. To clear that hurdle, the government must

convince the reviewing court that a more lenient sentence would not have

eventuated had the sentencing court understood that the guidelines were

advisory rather than mandatory. See Meléndez-Torres, 420 F.3d at 51;

see also Antonakopoulos, 399 F.3d at 77 (explaining that the substantial

rights determination depends upon whether the mandatory nature of the

guidelines lengthened the defendant's sentence). This is a daunting

standard — but not one that defies achievement.

In this instance, we conclude, without serious question, that

the government has succeeded in carrying its heavy burden. To begin,

the district court expressly declined to grant discretionary downward

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departures or to sentence at the nether reaches of the applicable GSR.

More importantly, the court explained why the top of the GSR produced a

just result in this case and, on multiple occasions, explicitly related

that it would impose the same 96-month sentence even if it had

discretion to disregard the guidelines entirely. The court vouchsafed,

for example, that such a sentence was "exactly the same sentence" that

it would levy if "the guidelines [were] unconstitutional."

Given the starkness of these facts, we are convinced that the

sentencing court would not have imposed a lesser sentence under an

advisory guidelines regime. Accordingly, the Booker error here does not

require a remand for resentencing. See Meléndez-Torres, 420 F.3d at 51-

52; cf. United States v. Carpenter, 403 F.3d 9, 14 (1st Cir. 2005)

(refusing to remand in connection with unpreserved claim of Booker error

when sentencing judge declared he would impose the same sentence even if

given discretion to do otherwise). Indeed, if the sentencing judge's

statements in this case do not suffice to satisfy the government's

burden, it would be difficult to conceive of a case including a

preserved Booker error in which remand would not be obligatory.

The appellant has one last string to his bow. He asseverates

that, in all events, his sentence must be vacated because the lower court

failed to give specific consideration to the sentencing factors

enumerated in 18 U.S.C. § 3553(a).2 This asseveration derives from

2
These factors include:

(1) the nature and circumstances of the offense

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Booker; in its remedial opinion, the Booker Court explained that, along

with treating the guidelines as advisory, sentencing courts acting in the

aftermath of Booker also must account for the factors enumerated in

section 3553(a). See 125 S. Ct. at 764-65. Additionally, the Booker

Court instructed appellate tribunals to review such sentences for

reasonableness. See id. at 765-66.

While these directives are relevant to all sentences imposed

post-Booker, review for reasonableness based on the factors enumerated

in section 3553(a) is not applicable to sentences, like this one,

imposed pre-Booker but heard on appeal post-Booker. See Vázquez-Rivera,

407 F.3d at 490 (holding reasonableness standard inapplicable when

reviewing pre-Booker sentence); see also United States v. Guzmán, 419

and the history and characteristics of the
defendant; (2) the need for the sentence
imposed — (A) to reflect the seriousness of the
offense, to promote respect for the law, and to
provide just punishment for the offense; (B) to
afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes
of the defendant; and (D) to provide the
defendant with needed educational or vocational
training, medical care, or other correctional
treatment . . . ; (3) the kinds of sentences
available; (4) the kinds of sentence and the
sentencing range established for . . . the
applicable category of offense committed by the
applicable category of defendant as set forth
in the guidelines . . . ; (5) any pertinent
policy statement . . . ; (6) the need to avoid
unwarranted sentence disparities among
defendants with similar records . . . ; and (7)
the need to provide restitution to any victims
of the offense.

18 U.S.C. § 3553(a).

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F.3d 27, 32 (1st Cir. 2005) (rejecting argument that pre-Booker sentence

should be vacated because the district court failed to account for the

section 3553(a) factors). Given these authorities, the appellant's

fallback argument fails.

III. CONCLUSION

We need go no further. For the reasons elucidated above, we

hold that the appellant has shown no legally cognizable basis for

disturbing either his conviction or his sentence.

Affirmed.

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