U.S. v. Balthazard, 03-1338.

• Decision Date: 15 March 2004
• Docket Number: No. 03-1338.,No. 03-1343.,03-1338.,03-1343.
• Citation: 360 F.3d 309
• Parties: UNITED STATES of America, Appellee, v. Stephen J. BALTHAZARD, Defendant, Appellant. United States of America, Appellee, v. Steven J. Souve, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 309

360 F.3d 309

UNITED STATES of America, Appellee, v. Stephen J. BALTHAZARD, Defendant, Appellant.

United States of America, Appellee, v. Steven J. Souve, Defendant, Appellant.

No. 03-1338.

No. 03-1343.

United States Court of Appeals, First Circuit.

Heard November 3, 2003.

Decided March 15, 2004.

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John F. Cicilline, for appellants.

Donald C. Lockhart, Assistant United States Attorney, with whom Craig N Moore, United States Attorney, and Gerard B. Sullivan, Assistant United States Attorney, were on brief for the United States.

Before LIPEZ, Circuit Judge, COFFIN, Senior Circuit Judge, and BARBADORO,^* District Judge.

BARBADORO, District Judge.

Stephen Balthazard and Steven Souve were convicted of participating in a conspiracy to manufacture more than 1,000 marijuana plants. Defendants challenge their convictions on a host of grounds, the most significant of which depend upon the premise that the government proved at most that they were involved in a series of short-lived uncharged marijuana growing conspiracies rather than the single conspiracy described in the indictment. Arguing that this premise is incontestable, they assert that the trial court should have excluded all evidence of the uncharged conspiracies and granted their motions for judgment of acquittal. Alternatively, they contend that the court erred in failing to give their proposed multiple conspiracy instruction.

We reject defendants' multiple conspiracy arguments. As we explain below, the court properly admitted evidence concerning all of defendants' marijuana growing operations and appropriately denied their motions for judgment of acquittal because the government produced sufficient evidence to permit a finding that all of the operations were part of the single conspiracy charged in the indictment. The court also did not err in refusing to give defendants' proposed multiple conspiracy instruction because the proposed instruction was misleading.

Defendants also complain that the trial court made several erroneous evidentiary rulings, committed misconduct, failed to instruct on a lesser included offense, and misapplied the sentencing guidelines. Because none of these arguments warrant reversal or remand, we affirm.

I.

On September 12, 2000, law enforcement agents raided a warehouse located at 29 Okie Street in Providence, Rhode Island. Inside, they discovered evidence of a massive marijuana growing operation. The disclosure of the Okie Street operation resulted in an indictment charging that Balthazard and Souve had conspired with a third coconspirator, James St. Jacques, to manufacture and possess with intent to distribute marijuana "[f]rom a time unknown, but from at least on or about January 1, 1994 up to and including September 12, 2000."¹ The government contended at trial that Balthazard and St. Jacques had been partners in the marijuana business throughout the 1990s and that Souve joined the conspiracy in 1997 or 1998. The conspirators allegedly grew marijuana hydroponically at several different locations and processed it three or four times per year using "bud pickers" who were paid for their services in marijuana. We describe the evidence supporting these contentions in the light most favorable to the verdicts rendered. United States v. Portela, 167 F.3d 687, 692 (1st Cir.1999).

The government relied on testimony from several bud pickers to describe the early phases of the conspiracy. These witnesses claimed that they worked initially for Balthazard and St. Jacques and remained active participants in the conspiracy after Souve became a member in 1997 or 1998. They described the respective roles that Balthazard, St. Jacques, and Souve played in the conspiracy and identified several different locations where the conspirators grew and processed marijuana.

The government also produced substantial evidence linking Balthazard, St. Jacques, and Souve to the Okie Street growing operation. It established that Balthazard rented the warehouse in his own name from 1993 until September 1998 and that he thereafter caused the lease to be transferred to a fictitious lessee. An electrician testified that St. Jacques hired him in 1994 to install grow lights, wiring, and timers at the warehouse. Several of the bud pickers and other coconspirators placed St. Jacques, Balthazard, and Souve at the warehouse while marijuana was being grown at the site and at St. Jacques' Rehoboth, Massachusetts home while marijuana from the Okie Street operation was being processed there. St. Jacques' wife testified that she split profits generated by the marijuana growing business equally among herself, Balthazard, and Souve after her husband was arrested on unrelated charges in April 2000. A ledger seized from St. Jacques' home both corroborated her testimony on this point and reflected the payment of additional drug sale proceeds to Balthazard to reimburse him for rent on the warehouse. Law enforcement witnesses also testified that Balthazard's fingerprints were found on transformer boxes attached to grow lights inside the warehouse and Souve's fingerprint was found on one of the grow light bulbs.

II.

Defendants' three main arguments depend upon their contention that what the indictment charged as a single conspiracy was at most a series of distinct marijuana growing operations. Arguing that only the Okie Street operation had any connection to the charged conspiracy, defendants first claim that the trial court erred in failing to exclude all evidence of the earlier marijuana growing operations. In the same vein, they next argue that the court should have granted their motions for judgment of acquittal because the government failed to prove that they were members of the overarching conspiracy described in the indictment. Finally, they fault the trial court for failing to give their proposed multiple conspiracy instruction. We examine each argument in turn.

A. Admissibility — Evidence of Other Marijuana Growing Operations

Balthazard and Souve first claim that the court should have excluded all evidence that implicated them in marijuana growing operations other than Okie Street. Their theory is that the challenged evidence was irrelevant and unfairly prejudicial because the government failed to connect the operations to the conspiracy described in the indictment. This is primarily an argument about conditional relevancy that we evaluate under Fed.R.Evid. 104(b). When the relevancy of evidence is conditioned on the establishment of a fact — in this case, that the other marijuana growing operations were undertaken in furtherance of the charged conspiracy — the offering party need only introduce sufficient evidence to permit a reasonable jury to find the conditional fact by a preponderance of the evidence to establish that the evidence is relevant. Huddleston v. United States, 485 U.S. 681, 689-90, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). Even relevant evidence should be excluded, however, if its probative value is substantially outweighed by the danger of unfair prejudice and the prejudicial effect cannot be addressed by a limiting instruction. See Fed.R.Evid. 403. This concern is particularly acute when the challenged evidence implicates a defendant in uncharged criminal activity because if such evidence is admitted improperly, there is a real danger that it could be misused. Accordingly, even if the challenged evidence is conditionally relevant under Rule 104(b), we must also consider defendants' contention that the evidence nevertheless should have been excluded under Rule 403.²

Viewing the record in this light, the trial court's decision to admit the challenged evidence is unassailable. Several witnesses testified that Balthazard and St. Jacques worked together throughout the 1990s to grow, process, and sell marijuana and that Souve joined the conspiracy in 1997 or 1998. The conspirators used the same core group of bud pickers to assist them in their operations throughout this period and the conspirators' goals and methods remained the same while the conspiracy was in existence. For these reasons, and because all of the challenged operations fell within the temporal limits of the charged conspiracy, we find little support for defendants' contention.

Balthazard and Souve nevertheless argue that the prior marijuana growing operations could not have been a part of the charged conspiracy both because the conspirators grew and processed the marijuana at different sites and because the prior operations were completed before Souve joined the conspiracy. Neither argument has merit. A single conspiracy does not fracture into multiple conspiracies merely because the conspirators shift the locations at which they conduct their operations. See United States v. Walker, 142 F.3d 103, 112 (2d Cir.1998); see also United States v. Brandon, 17 F.3d 409, 451 (1st Cir.1994). Nor does one conspiracy necessarily end and a new one begin each time a new member joins the organization. See United States v. Bello-Perez, 977 F.2d 664, 668 (1st Cir.1992). Given the abundant evidence to support the government's single conspiracy theory, the changes in the conspiracy that the defendants seek to highlight do not come close to raising a legitimate challenge under either Rule 104(b) or Rule 403.³

B. Sufficiency — Evidence of a Charged Conspiracy

Balthazard and Souve next argue that the court erred in denying their motions for judgment of acquittal because the evidence proved only that they participated in multiple uncharged marijuana growing conspiracies rather than the overarching conspiracy described in the indictment. In assessing what is essentially a claim that the evidence varied materially from the crime charged in the indictment, "we `canvass the evidence (direct and circumstantial) in the light most agreeable to the prosecution and decide whether that evidence, including all plausible inferences extractable therefrom, enables a rational...