Professional Documents
Culture Documents
United States v. Nason, 1st Cir. (1993)
United States v. Nason, 1st Cir. (1993)
McGuinness, by
Appointment of
the Court,
with
______________________
whom McGuinness & Parlagreco, was on brief for appellant.
_______________________
Margaret D. McGaughey, Assistant United States Attorney,
_______________________
with whom Jay P. McCloskey, United States Attorney, was on brief
________________
for appellee.
____________________
November 2, 1993
____________________
U.S.C.
violation
district
U.S.C.
court, the
to distribute marijuana in
841(a)(1) &
of 21
a new
court erred
846
and possession
844(a).
jury found
On
Following
him guilty
trial.
of marijuana
a
trial in
as charged.
his motion
in
the
Nason
appeal, Nason
in denying
violation of
his
argues that:
(1) the
for severance
of his
of the ability to
rights; (3)
constituted
reversible
admission
error;
of
cumulative
(4)
certain
effect
of
the
trial
pieces
the
court
of
erred
evidence
trial
court's
regarding
seized;
errors
(5)
the
the
constituted
Finding appellant's
claims
Finch
addition,
the
with
conspiracy
government
distribute
alleged
that
numerous other
indicted.
Drug
The
Maine
Finch and
marijuana.1
Nason
conspired
Enforcement
Agency
In
to
not
("MDEA")
____________________
1
Between
registered
to
May
23
Nason's
and
May
girlfriend,
subsequently
individuals
by
1992,
Merry
Room
could be
the motel
visited Room
directed to the
332,
him in
staying
for
was
Shortly
registration
room.
in Room 332
maid to
332
Lane.
card so that
were delivered
29,
Nason
and supplies
Room
332.
only five
Many
to
ten
found that
the
occupants
of Room
drug dealers.
332
were calling
Officers then
his friend,
of marijuana
request, Nason
contacted
the
decided
As a part
assistance of
Gilbert
from
records,
Shubert, to
Nason.
supplier
In
arrange for
response to
in order
to
the
Shubert's
obtain
the
marijuana.
Nason arranged to sell Zappia the marijuana
1992.
on May 27,
Zappia's car.
surveillance, and
the transaction
During the
drug transaction.
28 to
he had
Nason said that if he had not been serious he would not have
brought
along white
garbage bags.
As they
were leaving
At the time
the
of arrest,
package of marijuana,
had
arrived
Cadillac.
After
car drove
to the Howard
Ramada Inn.
he got out of
at
the
Ramada
Inn
in
When Nason
was arrested,
the driver of
black
of the
facing the
the black
Cadillac attempted to back out of the motel and ran into a police
car.
David
and Ellen
Finch were
in the Cadillac.
Both
were
arrested.
Nason had been at Room 332
28,
suitcase containing
photo album with
room included
empty
sandwich
a duffel
Inside
bag with
scales, two
bags,
sandwich
bags containing
programmable
May
police
and a
in the
marijuana,
scanner,
and
cardboard
box with
Nason's
name on
it
containing papers
and
photographs.
DENIAL OF MOTION FOR SEVERANCE
DENIAL OF MOTION FOR SEVERANCE
______________________________
The decision to order severance
of a trial pursuant to
-4-
Federal
Rule of
discretion of
F.2d
Criminal Procedure
motion
demonstrating
a matter
United States v.
_____________
We
within the
Sabatino, 943
________
upon a
a manifest abuse
14 is
showing of
strong prejudice,
of discretion that
deprived the
Federal Rule
be tried
of Criminal Procedure
are alleged
8(b),
to have
acts or transactions,
Sabatino,
________
943
F.2d
constituting an offense
at
96
(quoting
or offenses."
United States
______________
v.
were
(1991)).
alleged
In this case,
to
have
Where
a defendant
participated
in
the
severance to
same
acts
joined for
secure the
requirements
1984):
the movant must demonstrate: (1) a bona
fide need for the testimony; (2) the
substance of the
testimony; (3) its
exculpatory nature and effect; and (4)
that the
co-defendant will
in fact
testify if the cases are severed . . . .
Given such a showing, the court should
(1) examine the
significance of the
testimony in relation to the defendant's
theory of defense; (2) consider whether
the
testimony would
be subject
to
-5-
substantial damaging
impeachment; (3)
assess the counter arguments of judicial
economy; and (4) give weight to the
timeliness of the motion.
Id. at 19; see also United States v. Font-Ram rez,
___
_________ _____________
____________
would testify
three.
Standing
there was
alone,
however,
Drougas,
_______
Nor did
from
DeLuna,
______
either David
counsel for
or
sufficient to
an
the
allegation
to a severance.
Ellen
client
show
at
is
Nason did
Nason at a
that effect.
that either
See
___
testify if
David or
separate trial.
for co-defendant
that co-defendant
not file an
920 (counsel
would
He did
to
763 F.2d
camera that
______
such
a separate trial.
Ellen Finch
conspiracy among
no
and David
trials
were
is likely
stating in
__
severed
is
to testify).
him.
United States
_____________
See
___
v. Perkins,
_______
926
980
of
not explain
the testimony
and
did
why
the testimony
was
necessary
or
beneficial
to
the
defense).
The
evidence
-6-
than
Finch.
David
included
and
Ellen
Shubert,
contacted.
Merry
Thus,
agreement with
Other
Lane,
and
even without
the Finchs,
potential
the
a finding
the government
of people other
conspirators
supplier
of a
still
whom
Nason
conspiratorial
had a
This conclusion is
strong
evident from
We
showing that
abuse his
we look at
the prosecution.
F.2d at 97 (citing
United
light most
v. Sabatino,
________
943
______________
933
F.2d
35, 40
(1st
Cir.
__________________________
1991)).
Id.
___
We draw
all legitimate
if any reasonable
trier of fact could have found the elements of the offense beyond
a reasonable doubt.
dismissing
Nason
argues
the
charges
that
the
trial
against
him
at
court
the
erred
close
to insufficient evidence.
in
not
of
the
In essence, he
-7-
argues
that the
there was
evidence of
no second
distribute or
conspiracy
is inadequate
possess marijuana.
The
with Nason
because
to either
support
this argument.
A defendant can be
names
of
his
co-conspirators
are
unknown,
as
long
as
the
the
government
persons.
(6th Cir.
F.2d
of those
a jury could
which
Testimony was
given about other persons with whom the jury could have concluded
of
the
marijuana;
to cooperate
drug
activity
and in
which
the
agents
found
Room 332,
and Nason's
drug supplier,
drug transaction.
whom
were co-conspirators.
Moree, 897 F.2d 1329, 1332 (5th Cir. 1990) (evidence of agreement
_____
with
evidence
based
on his interview
of codefendant Ellen
right
the
arrests.
Nason
testified
our review
is limited to
and we will
that
470
failed
In
to
object when
at the time
Agent
Antone
plain error,
'seriously
reputation
purportedly
affect
the
fairness,
of judicial proceedings.'"
U.S. 1,
15, 105
S.
Ct. 1038,
integrity
or
United States
_____________
1046, 84
. . .
public
v. Young,
_____
L.Ed.2d
1 (1985)
Ct.
post arrest
interview of Ellen Finch during which she indicated that when she
and her
piece of paper
and a pen.
pen because
not work.
her car,
she indicated that the writing on the paper was not hers and that
-9-
at
examination,"
effect
of
another,
one
without
amounting to
United States v.
______________
cert. denied, 62
____________
(1968).
the testimony by
violation.
Ellen
accomplice
pointing
subjecting
the
finger
[her]self to
cross-
a violation of the
Barnett, 989
_______
F.2d 546,
Sixth Amendment.
558 (1st
citations omitted);
123, 135
confrontation clause
incriminating
directly
was no
Cir. 1993),
quotations and
found in Ellen
Finch's car.
Nason further
objection, of
introduction, over
his
in trouble with
Amendment right to
promptly gave
jury's
a limiting
instruction
mind.
This
court
has
previously
that confined
the
indicated
limiting
instructions
provide an
spill-over.
at
13).
statement was
In
adequate safeguard
that
412 U.S.
any event,
harmless.
See
___
918 (1989)
any
against evidentiary
(citing Drougas,
_______
error in
748
admitting Ellen's
F.2d 770,
-10-
783-84
(1st Cir.
1990),
cert. denied,
____________
114
L.Ed.2d 89
analysis).
(1991)
Confrontation
Other evidence in
dealings and
This
evidence was
Cir. 1991).
Wartski v.
_______
proposed instruction,
he did not object to the instructions after the charge was given.
An objection noted in chambers before
for
review issues
Edilberto,
_________
relating to
950 F.2d
failed to preserve
the
1, 4 (1st
Cir. 1991).
v. McMahon, 938
_______
Where a
party has
Cir. 1991).
circumstances
to
United States v.
_____________
prevent
v.
United States
_____________
clear
or
under
miscarriage
of
(1st Cir.
court
has
jury instruction
held
is
that
the
reversible
-11-
failure
error
to
only
give
if
the
requested
instruction
is
substantially
correct,
was
not
in the
seriously impaired
defense.
1989).
trial
so that
the defendant's
ability to
the failure
to give
present a
it
given
Cir.
court's
instructions
substantially
covered
the
-12-
legal
A defendant
defense if
on withdrawal from
is entitled to instructions
he produces some
evidence to
support all
____________________
2
Any conspiracy
"agreement" must
be
on his
elements of his
F.2d
theory.
Cir. 1992),
L.Ed.2d 158
____________
(1992).
United States
_____________
v. Juodakis, 834
________
(citations omitted).
Cir. 1987)
of activity in furtherance of
withdrawal."
Juodakis, 834
________
cessation
1102 (citations
omitted).
not sufficient
we find
proposed
that the
instruction
trial court's
on
refusal to
withdrawal did
not
give Nason's
constitute
plain
error.
EVIDENTIARY ISSUES
EVIDENTIARY ISSUES
__________________
Appellant
argues
that
the
trial
court
erred
in
and baggies,
seized from Room 332 of the Scottish Inn, which was registered to
his girlfriend, Merry Lane.
that
he
occupied
Room
sufficiently linked to
In essence, he
seized from
332
and
that
the
was
not
admission permissible.
evidence
evidence of items
and in
-14-
Evidence 401.
it has "any
that is
under Federal
Evidence is relevant
tendency to make
of consequence to
under Rule
the existence of
949
any fact
action more
R. Evid. 401.
permits
the
evidence where
by the
also
____
Even where
district
court,
evidence is
in
its
danger of unfair
United States
_____________
prejudice."
v. Williams,
________
discretion,
district
discretion.
court's
weighing
United States
_____________
of
F.2d 634,
989 (1987).
the
exclude
R. Evid. 403,4
to
substantially outweighed
Fed.
985
evidence
v. Walters, 904
_______
637 (1st
see
___
Cir.
F.2d 765,
abuse
the
of
768 (1st
strongly connected to
Nason's name
Lane, Nason
was noted
on the
____________________
4
be directed to him.
the motel room.
Nason
the motel to
Room 332 by the maid, two custodians, the owner of the motel, and
the
the room,
inside
marijuana residue,
photographed him.
a suitcase,
was an
beside
album that
Furthermore, inside
a duffle
bag
containing
contained photographs
of
Nason
and had
Nason's name
written on it.
The
above factors
conspiracy.
The objects
found
in
Room
332 are
also
not
Although
unfairly
(admission
of
prejudicial in
prejudicial.
electronic
See
___
equipment
charge).
Rey,
___
923
F.2d
and
books
not
The district
at
1222
unfairly
court did
before the
raises two
district court.
First,
he argues
were not
that, by
rulings . . . yet
original arguments
switch horses midlocating a swifter
Deitz, 950
_____
F.2d 50,
55
(1st Cir.
1991)
(citations omitted).
Second, appellant
upon career
should
argues that
offender status,
therefore
imposition of
be
is invalid and
vacated
sentence.
his sentence,
and
the
that the
matter
premised
sentence
remanded
v. Price,
_____
for
990 F.2d
to commit controlled
of Appellate Procedure
28(j).
issue."
substance crimes).
Nason made
to Federal Rule
this argument in
United States
_____________
v. LaPierre, 998
________
F.2d 1460,
20872
(9th Cir. Aug. 19, 1993), (citing Brady v. Gebbie, 859 F.2d 1543,
_____
______
1557 n.13 (9th Cir. 1988)).
Affirmed.
________
-17-