U.S. v. Benedetti, 05-1033.
| Decision Date | 23 December 2005 |
| Docket Number | No. 05-1033.,05-1033. |
| Citation | 433 F.3d 111 |
| Parties | UNITED STATES of America, Appellee, v. Joseph M. BENEDETTI, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Thomas More Dickinson, with whom Barry Zone was on brief, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with whom Robert Clark Corrente, United States Attorney, and Lee Vilker, Assistant United States Attorney, were on brief, for appellee.
Before SELYA, Circuit Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.
On March 10, 1999, a federal grand jury sitting in the District of Rhode Island charged defendant-appellant Joseph Benedetti with being a felon in possession of a firearm. See 18 U.S.C. § 922(g). The appellant evaded arrest until July 2, 2003, when he was finally found in Florida.
Following the appellant's enforced return to Rhode Island, a five-day trial ensued. The jury found the appellant guilty. The district court, over the appellant's contemporaneous Blakely objection, see Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), sentenced him in accordance with the federal sentencing guidelines.
In this timely appeal, the appellant asserts that a pair of errors marred the proceedings below: (i) the district court abused its discretion when it allowed the government to introduce evidence of his flight to Florida and (ii) the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), vindicated his Blakely objection and entitles him to resentencing.
We conclude that the district court committed no trial error and that the Booker error, even though preserved by the appellant's Blakely objection, was harmless. Accordingly, we affirm the appellant's conviction and sentence.
We rehearse the relevant facts in the light most hospitable to the verdict. United States v. Mercado, 412 F.3d 243, 245 (1st Cir.2005).
On the night of November 19, 1998, five Rhode Island state police troopers arrived at the appellant's small apartment, search warrant in hand, and knocked on the door. The appellant began to open the portal, but quickly slammed it shut when he learned who was on the other side. The troopers forced entry, subdued the appellant, ascertained that no one else was on the premises, and executed the warrant.
The search revealed a number of utility bills bearing the appellant's name and address and no evidence suggesting that any other person was living in the apartment. When the search extended to the top drawer of a dresser in the apartment's lone bedroom, the troopers found, among the usual haberdashery (underwear, socks, and the like), a loaded .380 caliber handgun, small amounts of cocaine and marijuana, and some pills. No underwear or socks were found in any other location within the apartment.
After reading the appellant his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), a trooper confronted him regarding the fruits of the search. At that point, the appellant admitted: "Everything in the apartment is mine." The trooper then inquired specifically as to the ownership of the gun. The appellant replied: "[T]he gun's mine too." He further acknowledged that he was the only person residing in the apartment.
The discovery of the handgun resulted in a referral of the case to federal law enforcement authorities. On Wednesday, March 10, 1999, the grand jury handed up a one-count indictment charging the appellant as a felon in possession of a firearm. See 18 U.S.C. § 922(g). Two days later, attorney Paul DiMaio telephoned Waing Chau, an agent of the Bureau of Alcohol, Tobacco and Firearms. After identifying himself as the appellant's lawyer, DiMaio inquired as to whether the district court had issued an arrest warrant for his client. Chau replied in the affirmative and assented to DiMaio's subsequent request that the appellant be permitted to self-surrender on Monday, March 15.
Monday arrived, but the appellant did not. Instead, DiMaio called Chau and informed him "that Mr. Benedetti would not be surrendering [because] he was gone." The appellant remained at large for over four years. He was eventually arrested on July 2, 2003, when government agents found him living in Florida under an assumed name. He was then returned to Rhode Island to face the pending indictment.
As the parties geared up for trial, the government indicated that it planned to introduce evidence of the appellant's abscondment. Nonplussed by this prospect, the appellant filed a pretrial motion in limine. Following a hearing, the district court, ruling ore sponte, concluded that the probative value of the evidence was substantially outweighed by "the risk of unfair prejudice, the time that would be consumed in exploring [it], and the risk that the jury may be confused as to ... the real issue" in the case. The court found it plausible that the appellant, although innocent, might have fled because he feared that he would be unjustly convicted. Given this possibility, the chance that the jury might be tempted to convict the appellant simply because he fled created what seemed to the court at that time to be an unacceptable risk of unfair prejudice. Hence, the court excluded the flight evidence pursuant to Federal Rule of Evidence 403 ().
Even though the court granted the motion in limine, it apparently was cognizant that it did not have a full picture of the factual scenario. Accordingly, the court confined its exclusionary ruling to the government's case in chief. The court took pains to remind the parties that the ruling was subject to change and that the matter could be revisited if the evidence at trial unfolded in a manner that altered the variables inherent in the Rule 403 algorithm.
The appellant stipulated that he had a prior felony record and that the gun had traveled in interstate commerce. Thus, the only triable issue was whether the appellant possessed the .380 caliber handgun. During the government's case in chief, two of the troopers who participated in the search testified anent their findings and the appellant's admissions. In cross-examining these officers, defense counsel made repeated references to the fact that the events to which they testified had occurred almost five years prior to the time of trial. In his opening statement, made at the start of the defense case, counsel reiterated that point.
The defense case was built on the premise that the gun found in the apartment did not belong to the appellant but, rather, to the appellant's friend, Kenneth Bellucci. Bellucci testified that the appellant had allowed him to live in the apartment temporarily, that all the items discovered in the top dresser drawer were his, and that the appellant was not aware of the presence of the handgun. Bellucci explained that, by coincidence, he had moved out of the apartment on the very day that the troopers arrived. Although he took most of his possessions with him, he left behind his underwear, socks, drugs, and gun.
The defense then called Linda DiBona, the appellant's ex-wife. DiBona testified that Bellucci moved in with her after departing from the appellant's hearth and that she overheard a telephone call between the two men in which Bellucci admitted that the gun was his. In that same call, Bellucci apologized profusely to the appellant and promised to "make it right."
During DiBona's direct examination, the government sought permission to cross-question DiBona regarding her knowledge of the appellant's flight. Noting that the in limine ruling only precluded the government from introducing evidence of flight in its case in chief, the court recalibrated the scales. In doing so, it identified three material sets of circumstances that had changed subsequent to the time of its original in limine ruling. First, defense counsel's repeated references to the lengthy interval between the discovery of the weapon and the time of trial had created an inference of "trumped up charges" that the government should be allowed to rebut. Second, the fact that the appellant presumably knew from the outset that Bellucci and DiBona were prepared to exonerate him strengthened the inference that his flight indicated a consciousness of guilt. Third, witnesses close to a defendant who possessed exculpatory evidence normally would come forward immediately if they knew that their friend had been falsely accused. Because Bellucci and DiBona had not, the court believed that their knowledge of the appellant's flight would be relevant to an assessment of their credibility. Emphasizing these new insights, the court ruled that the government could present flight evidence to impeach defense witnesses and, as part of its rebuttal case, to establish a consciousness of guilt.
In announcing this ruling, the court made clear that the witnesses were free to deny knowledge of the appellant's flight and that the appellant was free to adduce evidence suggesting an innocent purpose for his abrupt departure. The significance of the flight evidence, the court said, was ultimately a question of fact for the jury to determine. And, finally, the court invited the appellant to propose cautionary jury instructions for the court's consideration.
The government proceeded to cross-examine DiBona (herself a former police officer) regarding her knowledge of the appellant's flight. Although she had previously been in the habit of seeing or speaking with the appellant at least once every few months, she indicated that she neither saw nor heard from him during the more than four-year period of his absence. She denied knowing that the appellant had been...
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THE LIVING RULES OF EVIDENCE.
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