U.S. v. Baltas Sr.

• Decision Date: 31 July 2000
• Docket Number: No. 99-1547,99-1547
• Citation: 236 F.3d 27
• Parties: (1st Cir. 2001) UNITED STATES, Appellee, v. JOHN BALTAS, SR., a/k/a Cadillac Jack, a/k/a John DiPinto, Defendant, Appellant. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 27

236 F.3d 27 (1st Cir. 2001)

UNITED STATES, Appellee, v. JOHN BALTAS, SR., a/k/a Cadillac Jack, a/k/a John DiPinto, Defendant, Appellant.

No. 99-1547

United States Court of Appeals For the First Circuit

Heard July 31, 2000

Decided January 2, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Michael A. Ponsor, U.S. District Judge] [Copyrighted Material Omitted] Robert David Dimler, by appointment of the Court, with whom The Law Office of Robert D. Dimler , was on brief for appellant John Baltas, Sr.

Kirby A. Heller, Attorney, Department of Justice, with whom Donald K. Stern, United States Attorney, and Andrew Levchuk, Assistant U.S. Attorney, were on brief, for appellee.

Before Boudin and Lipez, Circuit Judges, Casellas^* District Judge.

CASELLAS, District Judge.

Following a jury trial, defendant-appellant John Baltas, Sr.¹ (hereinafter "Baltas") was convicted of conspiracy to possess with intent to distribute and to distribute heroin, in violation of 21 U.S.C. § 846. The district court sentenced him to 188 months in prison, followed by 5 years of supervised release. Baltas now challenges his conviction and sentence alleging a potpourri of pretrial, trial, and sentencing issues. Because we conclude that none of Baltas's arguments have merit, we affirm.

I. BACKGROUND

A federal grand jury indicted Baltas and twelve other individuals for various crimes arising out of their involvement in the Connecticut and Massachusetts chapters of the Diablos Motorcycle Club (hereinafter the "Diablos," or the "Club"). Particularly, Baltas was charged, either alone or in combination with other defendants, with conspiracy to conduct and actually conducting the affairs of an enterprise through a pattern of racketeering activity, respectively, 18 U.S.C. §§ 1962(d) (count 1, "RICO conspiracy") and 1962(c) (count 2, "substantive RICO"); conspiracy to possess with intent to distribute and to distribute heroin, 21 U.S.C. § 846 (count 32); and possession and interstate transportation of firearms as a convicted felon, 18 U.S.C. § 922(g)(1) (counts 40 and 41). The indictment also sought forfeiture of certain property belonging to Baltas.

Before trial, Baltas unsuccessfully moved to sever and to suppress certain evidence relevant to his count of conviction. At the end of the government's case, he moved for judgment of acquittal and to strike certain evidence relating to the RICO counts. The district court granted his motion for acquittal as to these counts, denying it as to the remaining portions of the indictment.² In light of this ruling, the court then granted Baltas's motion to strike.

Baltas also requested an instruction on the defense of entrapment, which the district court denied. During the jury charge, Baltas did not object to the omission of an entrapment instruction. Finally, Baltas leveled various challenges to his presentence report, and moved for downward departure without success.

On appeal, Baltas assigns error to the district court's denials of his pretrial, trial and sentencing requests. We sketch the facts contained in the record in the light most favorable to the jury's verdict. See United States v. Gonzalez-Vazquez, 219 F.3d 37, 40 (1st Cir. 2000). We supplement our account as it becomes necessary to the discussion of Baltas's particular claims of error.

The Diablos originated in San Bernardino, California in the 1960's, and then expanded to other areas of the country. At the times relevant to this appeal, the Diablos were a national organization with chapters in California, Connecticut, Florida, Indiana, Massachusetts, and New Hampshire. They were governed by a written constitution, which conditioned membership inter alia, upon being at least 21 years of age, Caucasian, and owning a firearm and a Harley-Davidson of a particular size. Membership was by invitation only, and neither women nor African-Americans were allowed. Members first had to serve some time as "prospects," a role similar to that of a pledge in a fraternity, before being eligible for full membership. The Diablos also had a governing structure which included both national and chapter officers. Baltas was one of the Club's founders and its national president.

One of the prosecution's primary witnesses at trial was William Alvis (hereinafter "Alvis"). Before becoming a Diablo, Alvis had been a member of another motorcycle club, the Barbarians, where he became familiarized with the biker culture and language. While affiliated with the Barbarians, Alvis was charged with the commission of several crimes not related to the instant indictment, and eventually began cooperating with government authorities. He infiltrated the Diablos at the behest of the FBI. One law enforcement concern with the Diablos was three unsolved motorcycle-club related murders, in which it was suspected that members of the Diablos had been involved.

At trial, Alvis stated that one important characteristic of the Club was the sense of brotherhood among its members. Alvis's trust and confidence within the Diablos, together with his familiarity with the biker culture, allowed him to become a prospect and later a full-fledged member. He developed close relationships with several members of the Club, and ultimately became its vice president. Alvis was thus the FBI's "eyes and ears inside of the Diablos organization."

Because of his status within the Diablos, Alvis was able to gather for the FBI valuable information about the Club's structure and day-to-day operations. He was also able to introduce several undercover agents into the Club, and, with their help, orchestrate a number of criminal schemes involving the Diablos. One of these schemes concerned a reverse-sting heroin deal. The government's evidence of the circumstances surrounding this scheme consisted mainly of Alvis's trial testimony, aided by evidence derived from the interception of certain communications made pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. (hereinafter "Title III"). What follows is a summary of this evidence.

By the end of July of 1995, the Club was facing financial difficulties. Alvis, who at that time was treasurer of the Massachusetts chapter, held a meeting where he informed chapter members of the situation and told them that they would probably be evicted from the clubhouse because the rent was in arrears. As a way of generating money for the chapter, Alvis suggested that some members assist him in a drug deal. Alvis specifically told the Diablos that he needed them to "[r]un security for [a] transportation of heroin." The plan consisted in picking up the drugs at one point and delivering them at another. He also explained that each participant would be paid $500, which money would be contributed to the chapter's treasury.

Baltas, who happened to be present at the meeting, agreed to the idea. He voiced his support by reminding members of their commitment to the Club, and even proposed a few ideas for carrying out the plan without attracting attention upon the Diablos. Moreover, Baltas directed Alvis to "[t]ake the guys . . . best suited for the job."

The following day, Alvis traveled to Connecticut for a chapter meeting, where he met Baltas at the chapter's clubhouse. Baltas asked Alvis how many members had volunteered to participate in the deal, and offered to recruit additional help upon learning that only two had come forward. As promised, Baltas talked to two other members who later got in contact with Alvis and eventually participated in the transaction.

The deal finally took place on August 7, 1995, and Baltas and Alvis met in Connecticut the following day. Alvis gave Baltas $250.00 for his recruiting efforts. Baltas did not directly participate in the transaction.

II. DISCUSSION

A. Suppression

Baltas contends that the district court erred in denying his motion to suppress the evidence obtained through electronic surveillance. Below, Baltas sought suppression of the intercepted communications alleging: (1) that the issuance of the warrant was not grounded on probable cause; (2) that the accompanying affidavit failed to show the unlikely success of alternative investigative procedures; (3) that in executing the warrant, the government failed to minimize the interceptions; (4) that the interceptions went beyond the scope of the warrant; and (5) that the warrant failed to specify the types of communications to be intercepted. Upon referral by the district court, the magistrate judge, after conducting an evidentiary hearing, issued a report and recommendation that the motion be denied. Adopting the magistrate judge's report and recommendation, the district court denied the motion.

Here, Baltas renews his attack on the government's minimization procedures. Specifically, Baltas challenges that the intercepting agents failed to minimize the interception of communications from approximately 9:04 p.m. until 10:09 p.m., on April 21, 1995. He further alleges that "during the spot checks after 10:09 p.m., the agents obviously listened to more of the conversations than was necessary to have been able to know that they should have stopped listening." Focusing on these alleged violations, Baltas protests that all the evidence obtained through electronic surveillance should have been suppressed.

We affirm the district court's denial of Baltas's motion for substantially the reasons cogently set forth in the magistrate judge's report and recommendation adopted by the district court. "[W]hen a lower court produces a comprehensive, well-reasoned decision an appellate court should refrain from writing at length to no other end than to hear its own words resonate." United States v. Velez Carrero, 140 F.3d 327, 329 (1st Cir. 1998) (quoting Lawton v. State Mutual Life Assurance Co. of America, 101 F.3d 218, 220 (1st Cir. 1996)). We only hesitate to add two comments.

First, the evidence...