U.S. v. Weston

• Decision Date: 09 January 1992
• Docket Number: Nos. 91-1546,91-1547,s. 91-1546
• Citation: 960 F.2d 212
• Parties: UNITED STATES of America, Appellee, v. Albert WESTON, Defendant, Appellant. UNITED STATES of America, Appellee, v. Paul R. TAYLOR, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 212

960 F.2d 212

UNITED STATES of America, Appellee, v. Albert WESTON, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Paul R. TAYLOR, Defendant, Appellant.

Nos. 91-1546, 91-1547.

United States Court of Appeals, First Circuit.

Heard Jan. 9, 1992.

Decided March 25, 1992.

David Beneman, with whom Levenson, Vickerson & Beneman, Portland, Me., was on brief, for defendant, appellant Albert Weston.

Leonard I. Sharon, with whom Robert A. Laskoff, P.A., Lewiston, Me., was on brief, for defendant, appellant Paul R. Taylor.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and Nicholas M. Gess, Asst. U.S. Atty., Portland, Me., were on brief, for U.S.

Before BREYER, Chief Judge, ALDRICH and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Following a joint trial, Paul R. Taylor and Albert Weston were convicted of threatening bodily injury with intent to retaliate for information given to law enforcement officials in violation of 18 U.S.C. § 1513 (1988). Taylor was also convicted of carrying a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c)(1) (1988). Taylor challenges certain rulings made at the trial. He and Weston both protest the district court's sentencing determinations. We affirm.

I. BACKGROUND

We summarize the facts in the traditional post-conviction fashion, recounting the evidence in the manner most sympathetic to the jury verdict. See United States v. Mena, 933 F.2d 19, 21-22 (1st Cir.1991); United States v. Jimenez-Perez, 869 F.2d 9, 10 (1st Cir.1989).

Taylor, Weston, and the target of their animadversions, Wendell Brann, were all members of the Exiles Motorcycle Club. The record suggests that cooperation with the authorities was deemed incompatible with membership in the club. Brann, who had previously been convicted of a federal firearms violation and had received a term of probation, began working surreptitiously with law enforcement officials. In that capacity, he bought cocaine from Michael Child, a local drug dealer. On September 11, 1990, Brann testified before a federal grand jury about Child's drug trafficking.

It is said that bad news travels fast. By the afternoon of September 11, speculation about Brann's songbird imitation infiltrated the Exiles Motorcycle Club. Weston promptly confronted Brann with the rumors. Brann denied them, claiming that he visited the federal courthouse only because he had failed a urine test administered in connection with his probation. Weston remained skeptical. Accompanied by Robert Roy, president of the club, Weston went to Brann's house, hurled epithets at him (e.g., "narc," "squeak," "rat"), stripped him of his "colors" (a vest emblematic of club membership), and ordered him to attend a meeting on September 14 to answer the allegations.

When Brann boycotted the scheduled meeting, the meeting came to him. On September 15, shortly after midnight, Weston called Brann's home to say that several Exiles were coming to collect club paraphernalia still in Brann's possession. Minutes later, a foursome (including Taylor, Weston, and Roy) appeared. After a strident exchange, Brann surrendered the paraphernalia without leaving the dwelling. Weston, who had been urging Brann to join the other men on the front lawn, then said: "C'mon outside, I want to grind your face in the ground where it belongs." At about this time, Taylor pointed a gun at Brann. Roy told Taylor to put the gun away, but demanded that Brann return the clubhouse keys. Brann complied.

Little mollified, Weston continued to demand that Brann join the group outside the house. Weston told Roy, loudly, that Brann "need[ed] to have his face in the dirt." Brann's girlfriend then summoned the police. When arrested, Taylor was found in possession of a loaded nine millimeter pistol. It was subsequently determined that he was licensed to carry the weapon. Still later, Child pled guilty to drug trafficking charges, obviating the need for further testimony by Brann.

Taylor, Weston, and Roy were indicted on charges of threatening bodily injury with intent to retaliate for information supplied to law enforcement officers (count 1), using threats and intimidation with intent to influence or prevent testimony (count 2), and using a firearm during the commission of a crime of violence (count 3). ¹ The case was tried to a jury. The jury found Taylor and Weston guilty on count 1, but acquitted them on count 2. Although the court acquitted Weston on count 3, the jury found Taylor guilty on that charge. Roy was exonerated in full.

A sentencing hearing was held on May 24, 1991. In calculating the guideline sentencing range (GSR), the district court elevated the defendants' base offense levels by reference to U.S.S.G. § 2J1.2(b)(1). On count 1, the court sentenced both defendants to prison terms within their respective GSRs (thirty-three months in Taylor's case; twenty-seven months in Weston's case). The court sentenced Taylor to a further, consecutive prison term of five years on count 3.

II. ASSERTED TRIAL ERRORS

Taylor complains of various trial-related errors. His complaints are full of sound and fury. They signify nothing of any substance.

A. Admission of the Plea Agreement.

Brann initially agreed to cooperate in the narcotics investigation out of self-interest: he had been caught selling cocaine while on probation. He entered into a favorable plea agreement in exchange for his cooperation, including truthful testimony. Taylor claims that the court below erred in admitting the plea agreement into evidence in the instant case, and compounded the error by allowing the prosecutor to question Brann about the agreement. In Taylor's view, the evidence should have been excluded because it carried the implication that the prosecution was vouchsafing Brann's veracity as a witness.

Taylor's lamentation deserves short shrift. From aught that appears, Taylor's counsel made a strategic choice to highlight the evidence of Brann's "deal" with the authorities. Despite numerous opportunities, he did not object either to the introduction of the plea agreement or to the questioning about it. He then vigorously cross-examined Brann in respect to the bargain, seeking, apparently, to discredit Brann.

That Taylor's trial strategy did not succeed is of little consequence at this stage of the proceedings. Parties cannot have their cake and eat it, too. Thus, error may not ordinarily be premised on the admission of evidence or the examination of witnesses in the absence of contemporaneous objections. See, e.g., United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir.1989); United States v. Griffin, 818 F.2d 97, 99-100 (1st Cir.), cert. denied, 484 U.S. 844, 108 S.Ct. 137, 98 L.Ed.2d 94 (1987).

To be sure, even without a contemporaneous objection, the court of appeals may review for plain error. Fed.R.Crim.P. 52(b). But, the threshold of plain error is extremely high. The doctrine encompasses only "those errors so shocking that they seriously affect the fundamental fairness and basic integrity of the proceedings conducted below." Griffin, 818 F.2d at 100. In this instance, the doctrine is irrelevant.

We have previously ruled, and today reaffirm, that no undue prejudice results from informing the jury of the contents of a standard plea agreement, to the end that the jury may better evaluate the credibility of a witness proffered by the government. See United States v. Munson, 819 F.2d 337, 344-45 (1st Cir.1987); United States v. Martin, 815 F.2d 818, 821 (1st Cir.), cert. denied, 484 U.S. 825, 108 S.Ct. 89, 98 L.Ed.2d 51 (1987). Here, Taylor has adduced no convincing reason to view either the plea agreement or the surrounding circumstances as anything beyond the stereotypical. The plea agreement contained only boilerplate provisions relative to disposition of the probation revocation charges pending against Brann, testimonial immunity, the need to furnish truthful testimony, and the like. The government's questioning about the agreement was restrained. The district court, solicitous of the defendants' rights, gave the jury careful instructions--to which Taylor never objected--about the purpose for admitting "plea agreement" evidence. ² We discern no error, plain or otherwise. The evidence here posed less risk of vouching than did the evidence which we ruled properly admissible in Martin, 815 F.2d at 821-22.

Taylor's complaints about the prosecution's use of the plea agreement are meritless.

B. Jury Instructions.

Taylor lodges two assertions of error concerning the jury instructions. First, he claims that the trial court failed to define certain statutory terms with sufficient precision, thus creating an unacceptable risk that the jury received a twisted impression of the law applicable to count 3. Second, he claims that the court improperly removed a question of fact from the jury's domain when, in instructing on count 3, the court denominated the crimes charged in counts 1 and 2 as "crimes of violence," and thus, predicate acts, for purposes of 18 U.S.C. § 924(c)(1) (quoted supra note 1). Neither asseveration withstands scrutiny.

In the first place, Taylor failed to object to the jury instructions when they were given. He likewise failed to request that any different, or additional, instructions be given. He has, therefore, forfeited the right to ordinary review and can prevail only upon a showing of plain error. See United States v. McGill, 952 F.2d 16, 17 (1st Cir.1991); Griffin, 818 F.2d at 99-100; see also Fed.R.Crim.P. 30.

In assessing claims of plain error, we consider the instructions as a whole, taking into account whether the putative errors so skewed the entire trial that the defendant's conviction offends due process. See United States v. De La Cruz, 902 F.2d 121, 122 (1st Cir.1990). While reversal of a conviction predicated on unpreserved instructional error is theoretically possible, "the actuality is seldom seen." McGill, 952...