809 F.2d 75 (1st Cir. 1986), 86-1082, United States v. Williams

Docket Nº:86-1082 to 86-1084.
Citation:809 F.2d 75
Party Name:UNITED STATES of America, Appellee, v. Edward WILLIAMS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Andrew BLANDIN, a/k/a
Case Date:December 31, 1986
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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809 F.2d 75 (1st Cir. 1986)

UNITED STATES of America, Appellee,

v.

Edward WILLIAMS, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Andrew BLANDIN, a/k/a "Zigzag" "Jigsaw," Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Anthony TATE, a/k/a "Coco," Defendant, Appellant.

Nos. 86-1082 to 86-1084.

United States Court of Appeals, First Circuit

December 31, 1986

Argued Sept. 4, 1986.

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John W. Laymon, Boston, Mass., for appellant Andrew Blandin.

John C. Doherty, Andover, Mass., for appellant Edward Williams.

William A. Brown with whom Brown & Prince, Boston, Mass., was on brief, for appellant Anthony Tate.

Oliver C. Mitchell, Jr., Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief for appellee.

Before BOWNES and TORRUELLA, Circuit Judges, and CARTER, [*] District Judge.

GENE CARTER, District Judge.

On August 12, 1985, a United States grand jury sitting in Boston returned a one-count indictment charging numerous defendants, allegedly members of an organization known as the Capsule Boys, with conspiracy to possess with intent to distribute and to distribute heroin and cocaine in violation of 21 U.S.C. Sec. 846. The present appeal arises from the joint trial of defendants Edward Williams, Andrew Blandin, and Anthony Tate, against whom a jury returned guilty verdicts on December 2, 1985. The defendants-appellants challenge the validity of these verdicts by alleging numerous errors in the conduct of their trial. We affirm the convictions of all three appellants and discuss each of their points in turn.

  1. Exposing the Jury to Extrinsic Material

    Appellants Williams and Blandin contend that the trial court committed reversible error when it read portions of the indictment to the jury. Williams had specifically requested that the indictment not be submitted to the jury, and the court had found that the indictment was "highly prejudicial." The basis for the court's finding was that the indictment "lists a whole bunch of other people, it lists a whole

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    bunch of things that, in fact, do not implicate these defendants." TR Vol. VIII, p. 12. Consequently, the court ruled, over the objection of Tate, that the indictment would not be submitted to the jury unless the attorneys developed a sanitized version that included only those portions pertaining to the defendants in that case. Despite the court's ruling, Tate's attorney devoted a portion of his argument to the indictment and even read parts of it to the jury. 1

    In response to Tate's argument, the court sua sponte raised the issue of the indictment in the midst of the jury instructions. The court had prefaced its instructions with a limiting instruction regarding what the jury should consider as evidence. The court began discussing the indictment by acknowledging Tate's reference to it and by defining the term "indictment" for the jury. The court characterized the indictment as "an accusation. It is not evidence of guilt and it certainly is not proof of guilt." TR Vol. VIII, p. 106. The court then described the contents of the indictment to the jury. It told the jury that the indictment charged that the defendants worked for the Capsule Boys organization. The court paraphrased the indictment as describing Williams "as a kind of middle-level management person" and Blandin and Tate "as workers." TR Vol. VIII, p. 107. Shortly thereafter, the court defined overt acts and stated that the indictment charged that Williams had possessed a sawed-off shotgun and a quantity of encapsulated heroin, that Blandin had possessed encapsulated heroin, cocaine, firearms, and approximately $23,000 in cash, and that Williams and Tate had distributed encapsulated heroin and cocaine. The court, however, did not caution the jury not to consider overt acts as to which there had been no evidence presented at trial, although it did tell the jury that the government did not have to prove any overt acts. The court went on to add: "Then it [the indictment] has some other things about Mr. Williams and Mr. Blandin." Id. at 109. The court then defined the crime of conspiracy and explained that the government did not need to prove either actual possession or actual distribution in order to prove conspiracy. Id. at 111.

    At the close of the charge, Williams's counsel moved for a mistrial based on the reading of two of the overt acts: the possession of a sawed-off shotgun and the possession of a quantity of encapsulated heroin. The court denied his motion, in which the other defendants had joined. No defendant, however, requested a curative instruction regarding these overt acts. Both Williams and Blandin now assert that the denial of the mistrial motion is reversible error--Williams on the ground that the lack of any evidence regarding a sawed-off shotgun rendered the reading of both overt acts prejudicial and Blandin on the ground that the allegation that Williams possessed a sawed-off shotgun tainted the verdict as to Williams and therefore requires setting aside the verdicts against all defendants. Williams also contends that error resulted from his request for a corrective instruction regarding the court's mischaracterization of Williams as a "Lieutenant." Although the court had not used the word "Lieutenant" in the charge, in response to Williams's request it informed the jury that the indictment did not say Williams was a lieutenant in the organization. Id. at 128. Williams now claims that the corrective instruction compounded the original error, although he made no objection at that time. He further claims that the court's actual paraphrase of the indictment, that Williams was a "middle-level management person," was an improper comment on the evidence. In addition, Williams claims, also for the

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    first time on appeal, that the court's comment, about the indictment having "some other things about Mr. Williams and Mr. Blandin," is the equivalent to an argument based on extrinsic evidence.

    Before we can consider properly each of appellants' claims, we should first evaluate the trial court's actions in light of Tate's closing argument. After reviewing the closing argument, we find that the court was well within its discretion in discussing the indictment sua sponte. The theme of counsel's argument was that the breadth of the indictment coupled with merely one mention of appellant Tate on page nine must lead the jury to conclude that the government could not prove its case against Tate. The negative implication is, of course, that the remainder of the undisclosed indictment was replete with bad acts committed by Williams and Blandin. It was clearly proper for the trial court to attempt to dispel this negative implication by placing in context Tate's references to the indictment. We turn now to the court's specific actions and consider each of appellants' claims in turn.

    1. Overt Acts

      Williams first contends that, by reading two overt acts to the jury, the court erroneously placed extrinsic evidence before the jury. Williams argues that this extrinsic evidence was prejudicial both because the court had excluded the indictment as prejudicial and because the other evidence against him was insufficient to establish a conspiracy. Williams's contentions must fail, however, under our recent holding in United States v. Forzese, 756 F.2d 217 (1st Cir.1985). In Forzese, we held that the submission to the jury of an indictment that contains overt acts unsubstantiated by the evidence was harmless error. 2 Forzese was a mail fraud and conspiracy case under 18 U.S.C. Secs. 371, 1341, which required the jury to find the commission of one overt act in order to find that a conspiracy existed. We determine, however, that its rationale is equally applicable to a section 846 conspiracy, which, as Williams agrees, does not require that the government prove any overt act committed in furtherance of the conspiracy. E.g., United States v. Cruz, 568 F.2d 781, 782-83 (1st Cir.1978), cert. denied, 444 U.S. 898, 100 S.Ct. 205, 62 L.Ed.2d 133 reh'g denied, 444 U.S. 946, 100 S.Ct. 308, 62 L.Ed.2d 315 (1979); United States v. DeJesus, 520 F.2d 298, 301 (1st Cir.), cert. denied, 423 U.S. 865, 96 S.Ct. 126, 46 L.Ed.2d 94 (1975). The rationale of Forzese is that although the inclusion of overt acts not supported by the evidence is an error of constitutional dimension, the error is nevertheless subject to analysis under the harmless error doctrine. We divine no reason why this rationale should be inapplicable to a section 846 conspiracy in which proof of overt acts is not required to be made. 3 We do not imply,

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      however, that we approve of the practice of unnecessarily placing unproven allegations of fact before the jury. We therefore reiterate the point we made in Forzese: "the better practice might have been to edit the conspiracy count before its submission to the jury." 756 F.2d at 222. In the present case the inclusion of the overt act regarding the possession of a sawed-off shotgun raises the presumption of prejudice.

      In analyzing whether actual prejudice flowed from this error, we note that the government has the burden to show that the extrinsic material was harmless beyond a reasonable doubt. Lacy v. Gardino, 791 F.2d 980, 983 (1st Cir.1986) (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)). The government's direct evidence consisted of the testimony of at least six witnesses who were members of the Capsule Boys, all of whom, according to the government, testified that Williams worked with the Capsule Boys, and some of whom testified that Williams was a leader within the organization. In addition, the witnesses testified that Williams had distributed encapsulated heroin, the other overt act that was read to the jury and one...

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