United States Court of Appeals
For the First Circuit
No. 05-1824
UNITED STATES OF AMERICA,
Appellee,
v.
KURT H. THOMPSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lipez, Circuit Judge,
Cyr and Stahl, Senior Circuit Judges.
Edward S. MacColl, with whom Thompson, Bull, Furey, Bass &
MacColl, LLC, P.A. was on brief for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
June 7, 2006
CYR, Senior Circuit Judge. Defendant Kurt H. Thompson
challenges the district court order convicting him of conspiring to
distribute and possess with intent to distribute 500 or more grams
of cocaine. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), 846. We
affirm.
I
BACKGROUND
In 2003, Justin Canney began purchasing large supplies of
high-purity, uncut cocaine from Jason Higgins in New York for
resale in Maine. Defendant Thompson soon began purchasing from
five to twenty ounces of cocaine per week from Canney, which he
resold to his own customers, whom he identified, inter alia, as
“Jared,” “Dan,” and Frank Cicero, who was also a customer of
Canney’s. Cicero in turn resold the cocaine he acquired from
Canney and Thompson to his own clients. Subsequently, however,
Cicero and Thompson had an argument, and Cicero informed Canney
that he henceforth would purchase cocaine only from him, and not
from Thompson. Eventually Canney asked Thompson to “cut” the pure
cocaine (viz., add fillers to increase the volume and the street
value of the drug) which Canney received from New York, because
Canney was worried that his live-in girlfriend might discover his
drug dealing. Canney’s illicit activities eventually became the
focus of a United States Drug Enforcement Agency (DEA)
investigation, during which his house and person were placed under
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surveillance.
In May 2004, Canney sold Thompson two and one-half ounces
of pure cocaine, and asked that Thompson return it to him "cut,"
for resale to Cicero. On May 3, Thompson arrived at the Canney
residence with five ounces of cut cocaine. Canney concealed the
cocaine in a false-bottom cannister, and he and Thompson drove away
in Canney’s car to deliver the drugs to Cicero. After Canney
committed several traffic violations, the police, who were
cooperating with the DEA investigation, stopped the vehicle and
with Canney’s consent, performed a limited search of the vehicle.
No incriminating evidence was disclosed. As planned, the police
then allowed Canney and Thompson to drive off, followed by
undercover DEA agents. Immediately, Canney made several evasive
driving maneuvers, drove to a vacant lot, and placed several cell
phone calls.
In due course, Canney and Thompson stopped at a
restaurant for lunch. Undercover agents managed to station
themselves near the Canney and Thompson table, and overheard their
conversation. Thompson stated that he was “freaked out” by the
traffic stop, and when Canney told Thompson how to dispose of
cocaine quickly (viz., dissolving it in water), Thompson stated
that he had “tucked” the evidence during the traffic stop. Upon
exiting the restaurant, Canney and Thompson were placed in custody.
Thompson was found to have $3000 in cash.
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After questioning Canney and Thompson, the DEA agents
decided to arrest Canney, but released Thompson due to insufficient
evidence that he had been involved in the ongoing drug distribution
engaged in by Canney. Canney eventually entered into a plea
agreement to testify as to Higgins’ and Thompson’s participation in
Canney's drug enterprise. The government sent Thompson a target
letter, and on July 2, 2004, Thompson was arrested, and later
indicted on one count of conspiring to distribute and possess, with
intent to distribute, 500 grams or more of cocaine, see 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B)(ii), 846. Following a two-day jury
trial, Thompson was found guilty. He now appeals from the ensuing
judgment of conviction.
II
DISCUSSION
A. The Fifth Amendment Claim
Thompson contends that the district court abused its
discretion in denying the motion for mistrial made after DEA
Special Agent Wolf testified that, following Thompson’s arrest,
“[Thompson] declined to make much of any statement.” Thompson
maintains that Wolf’s testimony constituted an improper and unfair
comment on Thompson’s Fifth Amendment right not to be compelled to
be a witness against himself.
During direct examination, the government asked Agent
Wolf: “And what is it that [defendant] told you back at the police
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station?” Wolf answered: “He declined to make much of any
statement other than . . .” The district court sustained defense
counsel’s objection, and Wolf continued with his testimony.
Government counsel then asked: “Did [defendant] say anything to
you?” Wolf responded: “That they [Thompson and Canney] were going
to meet Cicero.” Wolf then testified as to Canney’s comments and
actions on May 3, 2004. Only then did defense counsel move for a
mistrial or for a cautionary instruction based on Wolf’s comment
that Thompson had “declined to make much of any statement.” The
district court denied the motion for mistrial, agreed to give a
cautionary instruction, but warned defense counsel that such an
instruction might cause the jury to focus on Wolf’s comment more
than it had already done so. Defense counsel advised the court
that the defense did not want the curative instruction.
The defendant has a constitutional right to remain silent
following arrest, and it is inappropriate for the government
intentionally to make or solicit comments concerning a defendant's
exercise of that right. See Griffin v. California, 380 U.S. 609,
615 (1965); United States v. Figueroa-Encarnacion, 343 F.3d 23, 33
(1st Cir. 2003). Any such comment improperly invites the jury to
infer from the defendant’s silence that he had something to hide.
When a defendant challenges such a comment, the district court must
inquire “‘(w)hether the language used was manifestly intended or
was of such a character that the jury would naturally and
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necessarily take it to be a comment on the failure of the accused
to testify.’” Id. (citation omitted). Where the comment is
ambiguous, however, we will not lightly infer either that the
government intended, or that the jury necessarily drew, the most
prejudicial meaning. See United States v. Taylor, 54 F.3d 967, 979
(1st Cir. 1995); United States v. Lilly, 983 F.2d 300, 307 (1st
Cir. 1992). Moreover, even if we were to respond to such a query
in the affirmative, we would not reverse where the government
demonstrates that the comment was harmless beyond a reasonable
doubt. See United States v. Mooney, 315 F.3d 54, 61 (1st Cir.
2002); Lilly, 983 F.2d at 308-09 (noting that new trial is
warranted only “where ‘the offending conduct so poisoned the well
that the trial’s outcome was likely affected’ or when,
alternatively, ‘the breach was so egregious that reversal becomes
a desirable sanction to forestall future prosecutorial
trespasses’”) (citation omitted). Finally, pertinent to the
harmless-error analysis would be, inter alia, “‘the severity of the
misconduct, whether it was deliberate or accidental, the context in
which it occurred, the likely curative effect of the judge’s
admonitions and the strength of the evidence against the
defendant.’” Id. at 308 (citation omitted).
We conclude that the district court committed no manifest
abuse of discretion in denying the Thompson motion for mistrial.
See United States v. Rullan-Rivera, 60 F.3d 16, 18 (1st Cir. 1995);
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Lilly, 983 F.2d at 308 (noting that district court is in better
vantage to determine if any harm resulting from the comment
necessitates mistrial). “[R]emarks must be examined in context
rather than in isolation in order to ascertain if Fifth Amendment
concerns are implicated.” Id. at 307. Here, there is no evidence
that the prosecutor intentionally solicited the Wolf comment. In
fact, since the prosecutor had asked Wolf what Thompson had told
him at the police station, Wolf’s answer was non-responsive.
Further, Wolf did not state that Thompson refused to make a
statement, but that he did not make “much” of a statement. See
Kibbe v. DuBois, 269 F.3d 26, 38-39 (1st Cir. 2001) (noting case
law holding that in some circumstances, once defendant waives his
right to remain silent and makes a statement, it may be permissible
to comment on what statements he did not make). Before Wolf could
elaborate, however, the district court sustained defense counsel’s
objection. No further comment was made on the matter. See Lilly,
983 F.2d at 307 (noting that improper comment was less likely to
cause harm where it was an “isolated instance” during a long
trial).
Several minutes later, defense counsel abruptly moved for
a mistrial,1 and the district court offered to give a curative
1
The unexplained delay in moving for mistrial suggests that
defense counsel initially did not view the Wolf comment as so
prejudicial that it warranted a new trial. Unless the defendant
lodges a contemporaneous objection, rarely will we infer that a
comment was unduly prejudicial. See Taylor, 54 F.3d at 979.
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instruction. See United States v. Freeman, 208 F.3d 332, 339 (1st
Cir. 2000) (“Where ‘a curative instruction is promptly given, a
mistrial is warranted only in rare circumstances implying extreme
prejudice.’”) (citation omitted); United States v. Sepulveda, 15
F.3d 1161, 1184 (1st Cir. 1993) (“[C]ourts have long recognized
that, within wide margins, the potential for prejudice stemming
from improper testimony or comments can be satisfactorily dispelled
by appropriate curative instructions.”); cf. Mooney, 315 F.3d at 61
(noting that improper comment on defendant’s silence was cured by
emphatic and prompt curative instruction); Lilly, 983 F.2d at 308
(same). Defense counsel voluntarily declined this offer after the
court cautioned that an instruction might invite the jury to focus
on the Wolf comment more than it had when the comment was made.
See United States v. Brandon, 17 F.3d 409, 446 (1st Cir. 1994)
(“The level of prejudice, if any, was not sufficiently significant
to overturn the judge's decision to accept the defendants’ tactical
choice to forgo more appropriate methods of addressing the
potential prejudice in favor of the unrealistic and unnecessary
solution of a dismissal or a new trial.”). In its final charge,
the district court emphatically instructed the jury on the
presumption of innocence and the government’s burden to prove the
alleged offense beyond a reasonable doubt (e.g., “The law does not
compel any defendant in a criminal case to take the witness stand
and testify. No presumption of guilt may be raised and no
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inference of any kind may be drawn from the fact that Kurt Thompson
did not testify. For any of you to indulge such an inference or
suggestion would be most improper.”), see Mooney, 315 F.3d at 61;
Taylor, 54 F.3d at 980; United States v. Turner, 892 F.2d 11, 13-14
(1st Cir. 1989), and we normally presume that juries follow their
instructions, see Sepulveda, 15 F.3d at 1185. We therefore
conclude that the district court permissibly found that the
prosecutor did not intentionally solicit the Wolf comment and that
it was not “of such a character that the jury would naturally and
necessarily take it to be comment on the failure of the accused to
testify.” Figueroa-Encarnacion, 343 F.3d at 33.
In any event, the government’s case against Thompson was
remarkably strong. See Taylor, 54 F.3d at 980 (relying on the
“potency of the government’s proof,” where testimony was
“unequivocal and corroborated on many points,” in concluding that
prosecutor’s comments were not prejudicial). To cite but a few
examples, Canney testified in detail about his multiple drug
transactions with Thompson during 2003 and 2004, about Thompson’s
agreement to "cut" the cocaine supplies, and that Thompson was
reselling his cocaine to customers including Frank Cicero.
Canney’s live-in girlfriend testified that Canney and Thompson
frequently associated, and that she once observed cocaine inside
Thompson’s Dodge Truck. Law enforcement agents attested to their
surveillance on May 3, 2004, including Thompson’s suspicious
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behavior and incriminating remarks prior to his detention, to the
drugs and other incriminating evidence seized in the searches of
the Canney car and home, and to the discovery that Thompson was
carrying $3000 in cash at the time he was detained. Thus, even if
we were to assume, arguendo, that the Wolf comment adverted to
Thompson’s exercise of his Fifth Amendment rights, that comment was
isolated in context, the court afforded defendant an adequate
remedy which he freely declined, and the government’s case vastly
outweighed any potential for prejudice.
B. The Co-conspirator Statements
Next, Thompson contends that the district court erred in
admitting into evidence – as a statement made by Thompson’s co-
conspirator under Federal Rule of Evidence 801(d)(2)(E) – Frank
Cicero’s comment to Canney that he now wanted to buy his drugs only
from Canney because Cicero and Thompson had had a falling out.
Thompson maintains that the Cicero statement is inadmissible
hearsay since the government did not present any evidence that he
and Cicero were co-conspirators, or that Cicero made the statement
“in furtherance of the conspiracy,” and that Cicero instead stated
that he no longer wanted to be associated with Thompson.
District court rulings admitting evidence under Rule
801(d)(2)(E) are reviewed only for clear error. See United States
v. Castellini, 392 F.3d 35, 50 (1st Cir. 2004). Following the
procedures set forth in United States v. Ciampaglia, 628 F.2d 632,
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638 (1st Cir. 1980), the district court provisionally admitted the
Cicero statement. At the close of all the evidence, the district
court explicitly ruled that the government had shown by a
preponderance of the evidence that the Cicero statement met all
requirements of Rule 801(d)(2)(E). See United States v.
Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977) (requiring that court
make explicit findings that it is “more likely than not that the
declarant and the defendant were members of a conspiracy . . . and
that the statement was in furtherance of the conspiracy”).
First, Thompson never raised the argument below that the
Cicero statement was inadmissible on the ground that the government
failed to prove that Thompson and Cicero were members of the same
conspiracy. Consequently, it is forfeited on appeal. See United
States v. Paradis, 351 F.3d 21, 28 n.6 (1st Cir. 2003).2 Second,
the Cicero statement “furthered” the conspiracy in that it placed
Canney on notice that two of his co-conspirators – Thompson and
Cicero – no longer intended to deal directly with one another.
Cicero did not state his intention to withdraw from the extant
conspiracy, however, nor was it essential to their status as co-
conspirators that he and Thompson continue to maintain direct
contact with one another. See United States v. Soto-Beniquez, 356
2
The Thompson forfeiture is hardly a surprise, given the trial
evidence that Canney, Thompson, and Cicero were all drug sellers
with a common source of supply (viz., Higgins in New York), and
that Canney and Thompson were on their way to deliver cocaine to
Cicero on the day of their arrest.
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F.3d 1, 19 (1st Cir. 2003) (“The government need not show that each
conspirator knew of or had contact with all other members.”), cert.
denied, 541 U.S. 1074 (2004). The district court thus made all the
necessary findings of fact required by Petrozziello, none of which
are clearly erroneous. Consequently, it acted well within its
discretion in admitting the Cicero statement under Rule
801(d)(2)(E).
C. The Co-conspirator’s Guilty Plea
Thompson next contends that the district court erred in
allowing the government to introduce, in its case in chief, the
fact that Canney and Higgins had entered a guilty plea to the
conspiracy charge, and in not providing a cautionary instruction
that the jury should only consider the evidence as it pertained to
the credibility of Canney and Higgins, not to Thompson’s guilt.
Thompson incorrectly states that the court did not give
a limiting instruction. In its final charge, the court stated: “As
for the guilty pleas of Jason Higgins and Justin Canney, you may
consider their respective pleas in assessing their individual
credibility, but you must not consider those guilty pleas as any
evidence against Kurt Thompson.” As Thompson lodged no objection
to the admission of this evidence, but instead elicited the same
evidence during cross-examination to attack the credibility of the
government’s witnesses, we find no error in its admission in
evidence. See United States v. Dworkin, 855 F.2d 12, 30 (1st Cir.
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1988) (noting that evidence of witness’s guilty pleas is admissible
to “dampen the effect of an anticipated attack on the witness’s
credibility,” provided jury is so instructed); see also United
States v. Sullivan, 85 F.3d 743, 749 (1st Cir. 1996) (finding “no
plain error in admitting certain testimony when, among other
problems, the testimony was elicited by defense counsel on cross-
examination”) (citation omitted).
D. The Anonymous Letter
Next, Thompson contends that the district court
erroneously admitted in evidence – as Thompson’s own incriminating
statement – an anonymous handwritten letter Canney received in jail
one week after his May 3 arrest, since the government failed to
adduce evidence (e.g., a handwriting expert) that the letter was in
fact sent by Thompson.
We discern no abuse of discretion in the admission of
this letter. “Anonymous correspondence may be sufficiently
distinctive in its ‘appearance, contents, substance, internal
patterns or other distinctive characteristics,’ within the meaning
of Fed. R. Evid. 901(b)(4), to meet the authentication
requirement.” United States v. Bello-Perez, 977 F.2d 664, 671 (1st
Cir. 1992); United States v. Ingraham, 832 F.2d 229, 236 (1st Cir.
1987). A document need not be signed or proven to be in the
defendant’s handwriting to be authenticated. See Bello-Perez, 977
F.2d at 671; United States v. McMahon, 938 F.2d 1501, 1508-09 (1st
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Cir. 1991) (noting that authentication of unsigned note may be
based on circumstantial indicia of authorship).
The anonymous letter’s content precisely fits Thompson’s
circumstances and predicament in May 2004. Coming only one week
after the Thompson and Canney joint arrests, the letter’s author
stated that “the target letter they gave me still has me losing
sleep at night,” a plain reference to the target letter sent to
Thompson after Canney admitted, to law enforcement agents,
Thompson’s complicity in his drug distribution. See Fed. R. Evid.
901, advisory committee note example (4) (noting that a document
“may be shown to have emanated from a particular person by virtue
of its disclosing knowledge of facts known peculiarly to him”).
The author stated that “they let me go . . . because I didn’t say
anything,” a clear reference to the fact that Thompson was released
from custody after his arrest on May 3, 2004 for lack of evidence,
whereas Canney was not.
Finally, Canney testified that he recognized the return
address, provided in the letter, as Thompson’s residence. See 5
Jack B. Weinstein and Margaret A. Burger, Weinstein's Evidence ¶
901(b)(4)[02], at 901-67 (1991) (noting that “return address” is
valid indicium for authentication purposes). Given these internal
indicia, the district court did not abuse its discretion in
admitting the letter into evidence as a statement of the defendant.
See Fed. R. Evid. 901(a) (noting that authentication of evidence
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“is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims”).
F. The Sufficiency of the Evidence
Finally, Thompson contends that the district court erred
in denying his motion for judgment of acquittal because the
government proved at most that he and Canney had a mere seller-
buyer relationship, which is insufficient to establish a drug
conspiracy, see United States v. Gore, 154 F.3d 34, 40 (1st Cir.
1998), and did not establish the requisite conspiratorial
“agreement” or “meeting of minds.”
We review de novo the denial of a motion for judgment of
acquittal. See United States v. Hatch, 434 F.3d 1, 4 (1st Cir.
2006). Viewing the evidence and credibility determinations in the
light most favorable to the verdict, we simply inquire whether a
reasonable factfinder could have found defendant guilty beyond a
reasonable doubt. See id.
The government was required to establish that Thompson
agreed with Canney and others, albeit tacitly, to commit the
substantive crime of cocaine distribution, that this was the object
of their agreement, and that Thompson knowingly and voluntarily
participated in the conspiracy. See United States v. Santiago, 83
F.3d 20, 23 (1st Cir. 1996). This is not a close question.
The government adduced ample evidence that Thompson and
Canney were involved in much more than a mere one-time or
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transitory seller-buyer relationship. In distinguishing a
conspiracy from a mere vendor-vendee arrangement, the core
consideration is “whether the evidence surrounding the
transaction(s) is sufficient to allow a fairminded jury to find
beyond a reasonable doubt that A knew that B was reselling the
drugs, and intended to facilitate the resales.” Id. at 24. During
their extended relationship, Thompson purchased for resale a total
of 4 kilos of cocaine from Canney, and Thompson expressly told
Canney that he was reselling it to his own clients, including Frank
Cicero. Thompson cut the cocaine for Canney and for himself. On
May 3, 2004, Thompson and Canney were on their way to deliver drugs
to Cicero. Subsequent searches uncovered large quantities of drugs
and cash, thus confirming that this joint drug distribution network
was entrenched, and most definitely not a one-time, small-scale
sales transaction. We accordingly conclude that the government
adduced more than enough evidence that Thompson “agreed” to
conspire with Canney and others in a cocaine distribution scheme.
Consequently, we affirm the jury verdict.3
3
Thompson also argues that the district court erred in
allowing the government to adduce evidence that his Dodge Truck had
a license plate which read “DIRRTY,” because that evidence was
irrelevant and unfairly prejudicial. As he did not object to this
evidence in the district court, we review only for plain error.
See United States v. Vazquez-Rivera, 407 F.3d 476, 483 (1st Cir.),
cert. denied, 126 S. Ct. 279 (2005). We find none. The government
offered the evidence to show that Thompson drove his girlfriend’s
vehicle when engaging in drug-related business, since her vehicle
had a less conspicuous license plate, and Thompson wanted to avoid
drawing attention.
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Affirmed.
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