United States v. Pelletier
| Citation | 666 F.3d 1 |
| Decision Date | 01 December 2011 |
| Docket Number | No. 08–1167.,08–1167. |
| Parties | UNITED STATES of America, Appellee, v. Michael PELLETIER, Defendant, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
OPINION TEXT STARTS HERE
Stephen D. Riden, with whom Michael J. Tuteur, Erica Templeton Spencer, Nathalie E. Cohen, Michael Thompson and Foley & Lardner LLP were on brief, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.
Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.
After a six-day jury trial in July 2007, Michael Pelletier was convicted of various counts related to his role in the importation, possession and distribution of marijuana.1 He was sentenced to life imprisonment. On appeal, he asserts that the district court erred when it admitted certain testimony, improperly instructed the jury, and denied his motion for acquittal based on insufficiency of the evidence. We affirm.
We recite the relevant factual background in the light most favorable to the verdict. United States v. Gonzalez–Ramirez, 561 F.3d 22, 24 (1st Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 524, 175 L.Ed.2d 370 (2009). The scheme at the heart of Pelletier's convictions was relatively simple. A confederate of Pelletier's either swam or was driven across the St. John River into Canada from a point near Madawaska, Maine.2 After meeting with Canadian marijuana suppliers, Pelletier's associate swam back across the river, most often carrying the contraband in two, thirty-pound, watertight duffel bags, although occasionally ferrying larger amounts. The purchase price of the marijuana was approximately $1,000 per pound. Pelletier, or those working under him, later sold the marijuana for $2,200–$2,800 per pound.
This appeal primarily invokes challenges to the testimony of Pelletier's former girlfriend and that of Adam Hafford, who was one of Pelletier's “swimmers.” 3 Pelletier attacks this testimony in two slices. The first cantle concerns evidence of Pelletier's criminal history. The second, directed only at Hafford's testimony, implicates the hearsay exception for statements against interest set forth in Federal Rule of Evidence 804(b)(3).
On the eve of trial, Pelletier filed a motion in limine to exclude, inter alia, evidence of his prior drug convictions.4 During a chambers conference prior to the first trial day, defense counsel agreed that Pelletier would not object to testimony that he had been in prison, but counsel expressed his objection to testimony about the reason for Pelletier's incarceration, viz., drug trafficking convictions. The trial judge expressed his view that he “[didn't] think that gets in.” The prosecutor responded that he “didn't anticipate eliciting from any of the witnesses the reason why Mr. Pelletier was in prison.” At the same time, however, the prosecutor cited various authorities for the proposition that prior drug trafficking involvement can be admitted to prove a defendant's knowledge or intent.
During the first day of trial, Pelletier's former girlfriend, Kendra Cyr, testified that Pelletier had told her in January 2001 that he was going to jail “for something he had done previously.” Pursuant to the parties' agreement, the trial court instructed the jury that the fact of incarceration was offered for context only, and was neither indicative of Pelletier's character nor probative as to the pending charges. Things did not go as smoothly when the subject of Pelletier's prior incarceration was next broached.
Hafford testified on the third day of trial. He testified that he met Pelletier “in Windham ... sometime between 2000 and 2004.” When asked why the two were “at Windham,” Hafford replied, “Um, he was there for drug charges, and I was there for—” at which point defense counsel cut off the testimony with an objection to the admission of Pelletier's criminal history.5 The prosecutor immediately stated that he “didn't claim it.” At sidebar, he added that the testimony was elicited unintentionally, as the result of “an inartfully-phrased question,” and that he had no objection to the jury being instructed to ignore the testimony. Defense counsel did not immediately agree, noting that “the cat's out of the bag.”
After excusing the jury, the court stated, “I guess my thought, as I began to hear the questions this morning, was that I was inclined to admit the evidence of the prior convictions anyway.” The court's reasoning was based on defense counsel's cross-examination of an earlier witness, Jeff Dubois, regarding purchasing marijuana from Pelletier. Dubois testified that he did not literally get the marijuana from Pelletier, agreeing with defense counsel's characterization that “it would just mysteriously appear” in his car. According to the court, this “phraseology invite[d] the jury to allow an argument, if it is going to be made, that Mr. Pelletier essentially had nothing to do with the fact that marijuana went into [Dubois's] car.” In light of the apparent defense strategy of showing that Pelletier was only involved with cash, and not marijuana, the court concluded that the testimony was probative as rebuttal to an assertion of ignorance or mistake. Moreover, the court noted that any potential prejudice could be countered with a limiting instruction.
Defense counsel reiterated the argument made in the motion in limine that, under Federal Rule of Evidence 403, the probative value of the convictions was far outweighed by the unfair prejudice to Pelletier. The government then suggested another basis for admissibility. Noting that cross-examination of Kendra Cyr had elicited testimony about Pelletier's potentially legitimate sources of income, the prosecutor posited that the prior convictions were probative of Pelletier's intent and knowledge. The court agreed, denied the motion in limine, and, at defense counsel's request, immediately gave a limiting instruction to the jury. The court first instructed the jury that the evidence could not be used to show that Pelletier is a bad person or that he committed the crimes for which he was standing trial, but “only to show possible motive, his intent, his preparation, any plan, or absence of mistake or accident.” Both sides declined any further instruction. As Pelletier's counsel requested, the court's final jury instructions on the prior crime evidence did not include the purposes for which the evidence could be used.
On the final day of trial, Pelletier called his sister-in-law (and former girlfriend) Rina Pelletier to testify about his legitimate sources of income, including watchmaking and jewelry making. She also testified about her own employment, their joint purchase of a home, and profits Pelletier made from selling certain property. On cross-examination, the government asked several questions concerning Michael Pelletier's drug trafficking activities and arrest in 2000, prior to the charged conspiracy. The defense did not object to the cross-examination.
Pelletier argues that admission of Hafford's statement that Pelletier was in jail “for drug charges” and the questioning of Rina Pelletier about Michael Pelletier's criminal past violated Federal Rules of Evidence 403 and 404(b). Given the defense's trial objection, we review the trial court's admission of Hafford's statement for abuse of discretion. United States v. Hicks, 575 F.3d 130, 141 (1st Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 647, 175 L.Ed.2d 495 (2009). The lack of objection to the government's questioning of Rina Pelletier subjects that testimony to plain error review. United States v. Rodríguez–Berríos, 573 F.3d 55, 63 (1st Cir.2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 1300, 175 L.Ed.2d 1076 (2010). There was no error in the admission of any of the testimony, plain or otherwise.
Rule 404(b) prohibits the admission of evidence of a person's “other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith.” Fed.R.Evid. 404(b). While the rule allows such evidence as proof of “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” id., the “other acts” may not be used for the sole purpose of proving that a defendant had a propensity to commit a crime, see Rodríguez–Berríos, 573 F.3d at 64.
We employ a two-part test to determine whether the district court abused its discretion under Rule 404(b). First, we evaluate whether the evidence has “special relevance,” that is, whether it is relevant to any purpose other than to prove that a defendant has a propensity to commit a crime. Id. Then, special relevance notwithstanding, we must determine whether the probative value of the evidence is substantially outweighed by its danger of unfair prejudice. Id.; Fed.R.Evid. 403.
Pelletier first argues, without citation to case law, that the court committed reversible error simply because it admitted the testimony without the prosecution asking for it to reconsider its original position. We can find no support for this reasoning, and proceed to evaluate the district court's decision under our two-part test.6
First, we agree with the district court that the cross-examination of government witnesses opened the door to introduction of Pelletier's prior convictions. Where defense counsel's questioning raised the specter of Pelletier having legitimate sources of income, and of not taking part in the delivery of marijuana which “mysteriously appeared” in a buyer's car, there was no abuse of discretion in allowing the evidence in response. E.g., United States v. Balthazard, 360 F.3d 309, 317 (1st Cir.2004) (). To the contrary, failure to allow such evidence “could allow ‘litigants to create misleading impressions, secure in the knowledge that the...
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