U.S. v. Bradshaw

• Decision Date: 25 February 2002
• Docket Number: No. 00-2416.,00-2416.
• Citation: 281 F.3d 278
• Parties: UNITED STATES of America, Appellee, v. Joseph BRADSHAW, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

281 F.3d 278

UNITED STATES of America, Appellee, v. Joseph BRADSHAW, Defendant, Appellant.

No. 00-2416.

United States Court of Appeals, First Circuit.

Heard January 8, 2002.

Decided February 25, 2002.

COPYRIGHT MATERIAL OMITTED

Juliane Balliro, with whom Perkins, Smith & Cohen, LLP was on brief, for appellant.

Sangita K. Rao, Attorney, U.S. Dep't of Justice, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

SELYA, Circuit Judge.

The poetess Nikki Giovanni once commented that: "Mistakes are a fact of life. It is the response to the error that counts." Elaine Partnow, The Quotable Woman: 1800-1981 453 (1983). Defendant-appellant Joseph Bradshaw, a recidivist robber, would have done well to heed the message inherent in these words of wisdom. The tale follows.

In the court below, the government charged that the appellant repeated and compounded the error of his ways. A jury agreed, convicting him on an array of charges, including armed robbery and attempted murder. Invoking the "Three Strikes Law," 18 U.S.C. § 3559(c), the district court sentenced the appellant to life imprisonment. In this appeal, Bradshaw — vigorously represented by able counsel — raises a substantial claim of jury taint. He also challenges various evidentiary rulings and the constitutionality of the Three Strikes Law. Although the government has offered us surprisingly little help, our perscrutation of the record and the case law persuades us that the conviction and sentence must stand.

I. BACKGROUND

We recount the relevant facts as the jury might have found them, consistent with record support. In that exercise, we paint with a broad brush, reserving more extensive detail for our ensuing discussion of the appellant's specific claims.

The charges against the appellant stem from separate, but related, incidents. Our chronological narrative begins in the spring of 1995, at which time the appellant's circle of friends included Thomas Sutherland and the DeSimone brothers, Ronald and Donald (colloquially known as "Ronny" and "Donny"). Ronny DeSimone told the appellant that, five mornings a week, a mail carrier transported large sums of money from the Lynn, Massachusetts post office to a nearby financial institution. The two men repaired to Lynn and scouted the layout of the bank. The appellant thereafter described the situation to Sutherland, telling him that Ronny DeSimone had stumbled upon "a good score." The pair decided to rob the mail carrier and reward Ronny by giving him ten percent of the take.

Sutherland and the appellant executed the robbery on June 5, 1995. When the mail carrier, Timothy Bogart, drove up to the bank, Sutherland commandeered the postal truck and ordered Bogart, at gunpoint, to drive away. After Bogart had gone a few blocks, Sutherland directed him to stop. Sutherland then snatched a mail tub containing more than $122,000 in cash and checks that had been sent by registered mail, and joined the appellant (who was waiting nearby in a rented station wagon). The men departed in haste.

Later that same month, Sutherland and the appellant came to suspect that the DeSimone brothers were cooperating in the investigation of the robbery. They decided that Donny DeSimone had to be killed. The appellant recruited Paul Courteau to assist in this grisly business.

On July 12, 1995, Courteau and the appellant, employing a pretext, inveigled Donny DeSimone into accompanying them on a ride. The trio drove to various locations, eventually winding up at an unoccupied baseball field. There, the appellant pulled out a handgun and attempted to test-fire it. The gun jammed. Nonplussed, he herded his companions back into the car and the three men continued their meanderings.

In the early hours of the morning, they drove to a wooded area. Courteau and the appellant exited the vehicle, told Donny to stay put, and walked into the woods. A few moments later, Donny heard a gunshot. When the others returned, the appellant pointed the gun at Donny and ordered him out of the vehicle. Charging that Donny was "cooperating with the feds," the appellant forced him to his knees, handed the gun to Courteau, and instructed Courteau to shoot. Courteau pulled the trigger, but the gun jammed once again. Donny lost little time in fleeing from the scene.

On July 8, 1998, a federal grand jury returned a nine-count indictment against the appellant. The indictment charged conspiracy to commit armed robbery, 18 U.S.C. § 371 (count 1); robbery of a postal employee by use of a dangerous weapon, id. § 2114 (count 2); using and carrying a firearm during and in relation to a crime of violence, namely, the robbery, id. § 924(c)(1) (count 3); conspiracy to tamper with a witness, id. § 371 (count 4); witness tampering by means of attempted murder, id. § 1512(a)(1)(A) (count 5); using and carrying a firearm during and in relation to a crime of violence, namely, the attempted murder, id. § 924(c)(1) (count 6); obstruction of justice, id. § 1503 (count 7); conspiracy to obstruct justice, id. § 371 (count 8); and another incident of witness tampering by means of attempted murder, id. § 1512(a)(1)(A) (count 9). Twenty days later, the government filed an amended information pursuant to the Three Strikes Law, 18 U.S.C. § 3559(c), notifying the appellant that he was subject to a mandatory sentence of life imprisonment based upon an array of previous convictions for "serious violent felonies." The qualifying convictions, all obtained in the Massachusetts courts, included a 1981 conviction for armed robbery, a 1987 conviction for robbery and assault with a dangerous weapon, three 1988 convictions for armed robbery, and a 1989 conviction for armed robbery.

Prior to the commencement of trial, the district court severed counts 7 through 9 — a series of charges that revolved around an incident separate and apart from the robbery of the postal truck and the attempted murder of Donny DeSimone.¹ Trial commenced on the first six counts on April 3, 2000.

At trial, the court, relying on Fed.R.Evid. 801(d)(2)(E), conditionally admitted third-party testimony anent two sets of statements allegedly made by Sutherland. Citing Fed.R.Evid. 403, the court later reversed its field and struck that testimony. In a separate ruling, the court denied the appellant's attempt, pursuant to Fed.R.Evid. 804(b)(3), to introduce evidence concerning other statements allegedly made by Sutherland.

The court gave the case to the jury on April 24, 2000. The next day, the foreman informed the judge that an extraneous document — an unredacted copy of a second superseding indictment containing the text of the three severed counts — had found its way into the jury room. After conducting a thorough investigation, the trial court dismissed one juror, denied the appellant's motion for a mistrial, and instructed the eleven remaining jurors to resume deliberations.² On April 27, 2000, the jury found the appellant guilty on all six counts.

At the disposition hearing, the appellant conceded the existence of the prior convictions enumerated in the amended information, but asserted that he could not constitutionally be sentenced to life imprisonment under the Three Strikes Law. The district court rejected these importunings and sentenced the appellant to four concurrent terms of life imprisonment on counts 1, 2, 4, and 5, to be followed by mandatory consecutive terms of five and twenty years, respectively, on counts 3 and 6. This timely appeal followed.

We tackle the appellant's arguments in the order in which the underlying issues arose in the proceedings below. Thus, we begin with the evidentiary rulings and then address the appellant's principal claim: that the presence of a copy of the unredacted indictment in the jury room necessitated the declaration of a mistrial. Finally, we consider the appellant's assault on the constitutionality of the Three Strikes Law.

II. EVIDENTIARY RULINGS

We divide this aspect of our discussion into two segments, corresponding to the appellant's assignments of error.

A. Conditionally Admitted Coconspirator Hearsay Statements.

The appellant maintains that the district court committed reversible error by initially admitting the DeSimones' testimony about two sets of statements allegedly made by Sutherland and then failing to declare a mistrial when it subsequently struck the conditionally admitted evidence.

According to the witnesses, Sutherland and the appellant arrived at the DeSimones' apartment shortly after the robbery, boasted about their commission of the crime, and distributed a portion of the swag to the DeSimones. The government introduced testimony concerning the statements uttered while all four men were present, and the introduction of that evidence is not contested on appeal. After receiving his share of the proceeds, Ronny DeSimone left the apartment to purchase drugs. In Ronny's absence Sutherland and the appellant made several statements to Donny DeSimone involving the details of the robbery. The admission of this testimony is also uncontested.

This brings us to the subject of the assigned error. By the time that Ronny had returned to the apartment, the appellant had departed. Over objection, Ronny testified that Sutherland then related that he had been armed with a handgun, that he had forced the mail carrier to drive away from the bank, and that a brown station wagon had been used as the getaway car.

The second set of statements dates back to August of 1995 — a period during which both Sutherland and Donny DeSimone were incarcerated at the Plymouth House of Corrections. Over objection, Donny testified that Sutherland acknowledged knowing about the appellant's attempt to murder him, and, indeed, bragged about ordering the appellant to kill both of the DeSimone brothers.

The district court provisionally admitted both sets of statements...