U.S. v. Capelton, 02-1248.

• Decision Date: 26 November 2003
• Docket Number: No. 02-1248.,No. 02-1460.,02-1248.,02-1460.
• Citation: 350 F.3d 231
• Parties: UNITED STATES of America, Appellee, v. Jerome CAPELTON, a/k/a Anthony Coleman, Defendant, Appellant. United States of America, Appellee, v. Gary White, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

350 F.3d 231

UNITED STATES of America, Appellee, v. Jerome CAPELTON, a/k/a Anthony Coleman, Defendant, Appellant.

United States of America, Appellee, v. Gary White, Defendant, Appellant.

No. 02-1248.

No. 02-1460.

United States Court of Appeals, First Circuit.

Heard June 4, 2003.

Decided November 26, 2003.

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Alan Jay Black, for appellant Jerome Capelton.

Bernard T. O'Connor, Jr., for appellant Gary White.

Daniel S. Goodman, U.S. Department of Justice, with whom Michael J. Sullivan United States Attorney, and Todd E. Newhouse, Assistant United States Attorney were on brief for appellee.

Before SELYA, Circuit Judge, RICHARD S. ARNOLD, Senior Circuit Judge,^* and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

On September 21, 2000, a grand jury returned a ten-count indictment against defendants Jerome Capelton and Gary White. The grand jury indicted White on nine counts of illicit drug activity, including one count of conspiracy to possess with intent to distribute cocaine, one count of distribution and possession with intent to distribute cocaine powder, and seven counts of distribution and possession with intent to distribute cocaine base. Capelton was also charged with the conspiracy count, and additionally indicted on three counts of actual distribution of cocaine base (two of which were charged against White as well).

The district court denied Capelton's pre-trial motions to 1) suppress evidence and statements obtained by law enforcement, and 2) sever the proceedings into separate trials for each defendant. The trial commenced on September 10, 2001. The proceedings were briefly halted in response to the events of September 11, but the trial resumed on September 13 and concluded on September 26. After the case was submitted, the jury convicted the defendants of all counts in the indictment. The court sentenced Capelton to a term of 360 months of imprisonment and five years of supervised release, and sentenced White to a term of 292 months and five years of supervised release.

The defendants filed timely appeals from their convictions and sentences, raising a plethora of challenges to the district court's case management, evidentiary rulings, and sentencing determinations. After a careful review of the record, we find no basis for overturning the defendants' convictions or vacating their sentences.

I.

At trial, the government portrayed Capelton and White as links in a conspiracy to distribute cocaine powder and cocaine base over the period from December 21, 1999 to August 23, 2000.¹ The inner-workings of the conspiracy were exposed in an elaborate sting operation orchestrated by undercover police officer Alan Fisher of the Chicopee, Massachusetts police department, and aided by the Drug Enforcement Administration (DEA). Fisher launched the operation by contacting Christopher Weeks, a cooperating informant with whom he had worked on several occasions in the past. Weeks, who was incarcerated with White in the Ludlow House of Correction in mid-1999, introduced the officer to White on December 7, 1999. Over the conspiratorial period alleged in the indictment, Fisher purchased cocaine from White on numerous occasions. On December 21, White sold Fisher half an ounce of powder cocaine for $500. Two weeks later, Fisher purchased four ounces of crack cocaine for $4,000. Fisher also arranged drug transactions with White on March 17, March 24, and May 7 for one ounce of crack cocaine ($1,000), 5.5 ounces of crack cocaine ($5,000), and five ounces of crack cocaine ($4,800) respectively.

White's modus operandi was established from the early stages of the conspiracy. He acted strictly as a middleman, and kept no drugs, money, weapons, or drug paraphernalia on his person or in his residence. When Fisher expressed an interest in purchasing a specified quantity of cocaine, White contacted various suppliers with whom he associated, obtained the requested quantity, and conveyed the drugs to Fisher. Capelton entered the conspiracy as White's primary drug supplier after the May 7 transaction. On June 2, 2000, Capelton supplied White with ten ounces of crack cocaine that Fisher purchased for $9,000. Fisher purchased another $6,000 worth of crack cocaine from Capelton through White on July 24, and bought 5.5 ounces of crack cocaine from the defendants on August 23, 2000.

After the August 23 transaction, Capelton purchased some gasoline for his car, picked up two passengers in a parking lot, and started driving south on Route 91 in Connecticut. DEA agents, who had been following Capelton, contacted the Connecticut State Police and asked them to pull Capelton over. They did so after he changed lanes without signaling, and the DEA agents parked their cars behind the police cruiser. The police frisked Capelton and found $3,250 in marked bills matching those that Detective Fisher gave to White. After the DEA agents informed Capelton that they were going to seize that money, he followed them to the state police barracks to get a receipt for the funds. The agents did not arrest Capelton until September 21, 2000. White was also arrested on September 21, 2000 while he was negotiating another cocaine sale with Officer Fisher.

The execution of the sting operation was controversial in two respects that are relevant to these appeals. First, White insisted that Weeks coerced him into procuring drugs for Fisher through threats, intimidation and harassing phone calls both to him personally and to his mother, who was living at a different address during the relevant period. Although White conceded at trial that he had participated in each drug sale to Fisher, he argued that he was the victim of unfair entrapment resulting from Weeks' heavy-handed tactics. The government's efforts to counter White's entrapment defense were complicated by its inability to locate Christopher Weeks and subpoena him as a witness. Fisher admitted at trial that Weeks' recruitment of White was not choreographed or closely supervised by law enforcement officials, and White's mother testified that Weeks made repeated efforts to contact White by telephone.

The frequent malfunctioning of surveillance equipment over the course of the sting operation was also a source of dispute at trial. The participating law enforcement officers and agencies went to considerable lengths to both video and audio-tape Fisher's encounters with White and Capelton. However, equipment failures and quality control problems with the audio and visual recordings limited the probative value of those recordings, and forced the prosecution to rely heavily on the eyewitness accounts of the police officers and DEA agents who conducted the surveillance.

II.

We begin by addressing the objections raised jointly by both defendants, and conclude with an analysis of the challenges raised separately by each defendant.

A. The September 11 Tragedy

On September 11, after opening statements, the district court informed the jurors of the events that had transpired in New York City and Washington D.C. that morning, and suspended the proceedings because the courthouse in Springfield was closed for security reasons. The courthouse remained closed the next day because of a widely-publicized bomb threat. When the defendants' trial resumed on September 13, Capelton and White immediately moved for a mistrial on two grounds. As a general matter, they asserted that the jurors would be unable to maintain their focus on their case given the chaos and uncertainty arising from the events of the previous two days. More importantly, counsel argued that the media's portrayal of the attacks and the military response as a "battle of good versus evil" established a particularly prejudicial environment for defendants accused of committing "evil" acts. In counsels' view, this prejudice was exacerbated by defendants' reliance on a strategy of discrediting law enforcement officers and federal agents whose colleagues were perceived as heroes in the aftermath of the World Trade Center attacks.

A district court's denial of a motion for mistrial is reviewed for abuse of discretion. United States v. Lee, 317 F.3d 26, 34 (1st Cir.2003); United States v. Rivera-Gomez, 67 F.3d 993, 998 (1st Cir.1995). In response to defendants' request, the judge voir dired each juror individually, and excused the only juror who indicated that the September 11 attacks might alter his attitude toward the case. The court also issued a lengthy instruction to the jury as a whole both before resuming the proceedings, and again at the close of the evidence. These instructions admonished the jurors that the events of September 11

cannot influence how you evaluate witnesses, and ... you may not permit these events to influence your deliberations or decision in any way. Both the defendants and the public expect that you will fairly and impartially consider all the evidence in the case, follow the law as stated by the court and reach a just verdict.

The court proceeded with an abundance of caution in the wake of September 11. In the absence of particularized allegations of prejudice from defendants, we find no evidence that they were denied their Sixth Amendment right to an impartial jury, and accordingly conclude that the court did not abuse its discretion in denying defendants' motion for a mistrial.

B. The Government's Opening Statement and Closing Argument

In his opening statement, the prosecutor referred to White and Capelton as "drug dealer number one" and "drug dealer number three" while describing a scene in front of White's residence that he would later show to the jurors on videotape. The government also explained that defendant Capelton's voice was never caught on audio-tape because he was "a pretty clever drug dealer."

Assuming arguendo that defendants properly preserved their objection to the prosecution's opening remarks, we find no "manifest abuse of discretion," United States v. Mooney...