U.S. v. DesMarais

• Decision Date: 04 April 1991
• Docket Number: No. 90-2178,90-2178
• Citation: 938 F.2d 347
• Parties: 33 Fed. R. Evid. Serv. 717 UNITED STATES of America, Appellee, v. Paul DESMARAIS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 347

938 F.2d 347

33 Fed. R. Evid. Serv. 717

UNITED STATES of America, Appellee, v. Paul DESMARAIS, Defendant, Appellant.

No. 90-2178.

United States Court of Appeals, First Circuit.

Heard April 4, 1991.

Decided July 17, 1991.

Stephen L. Maynard, with whom Kinghorn & Maynard, P.A., was on brief, for defendant, appellant.

Michael J. Connolly, Asst. U.S. Atty., with whom Jeffrey R. Howard, U.S. Atty., was on brief, for appellee.

Before CAMPBELL, SELYA and CYR, Circuit Judges.

CYR, Circuit Judge.

In June 1989, United States Postal Inspector Wilfred Moores discovered that an Desmarais was indicted for possessing marijuana, with intent to distribute, in violation of 21 U.S.C. Sec. 841(a), and for use of a communication facility in furtherance of an unlawful possession of marijuana, with intent to distribute, in violation of 21 U.S.C. Sec. 843(b). The indictment additionally demanded criminal forfeiture of the Desmarais residence, pursuant to 21 U.S.C. Sec. 853(a)(2), based on the government's claim that the residence had been used to facilitate commission of the criminal offenses charged in the indictment.

express mail package had been delivered to defendant Paul Desmarais, at his Nashua, New Hampshire residence. Investigation revealed that the package bore a non-existent return address. Suspecting a controlled substance shipment, Moores instructed postal authorities to notify him if any other express packages were mailed to Desmarais. On October 24, 1989, an express package addressed to Desmarais, at his residence, arrived at the Manchester, New Hampshire Post Office, bearing a non-existent return address. Moores obtained a search warrant, opened the package, and discovered marijuana. Moores resealed the package and arranged for its delivery to the Desmarais residence. Twenty minutes after the delivery of the express package, law enforcement officials entered the Desmarais residence pursuant to a search warrant. In a basement room with blackened windows, the officers discovered approximately seven pounds of marijuana and nineteen grams of hashish, along with packaging material and a triple beam scale. Some of the marijuana was being stored in seventy to eighty individually-measured packages. The hashish was in seventeen packets. Magazines, listing current market prices for marijuana, were found in the basement as well.

Over defense objection, the substantive criminal charges were tried separately from the criminal forfeiture claim. The jury found Desmarais guilty on both substantive counts. The next day, the jury returned a guilty verdict on the criminal forfeiture count. Desmarais was sentenced to two concurrent three-year probationary terms, and the district court ordered forfeiture of the residence.

On appeal, Desmarais challenges the district court bifurcation order. He also claims that the court, at the trial of the substantive criminal counts, erroneously admitted evidence and denied directed verdicts of acquittal. ¹ Desmarais further contends that the court, at the criminal forfeiture trial, erroneously refused a requested jury instruction that the government must prove a "substantial connection" between the alleged criminal conduct and the defendant property. Finally, he states that criminal forfeiture, in the circumstances of this case, constitutes cruel and unusual punishment in violation of the eighth amendment. We affirm.

DISCUSSION

Bifurcation

Desmarais challenges the denial of his request for a unitary trial on all counts in the indictment. Whether a criminal forfeiture count and a substantive count should be bifurcated for trial is an issue of first impression in this Circuit. Other courts have either required, see United States v. Sandini, 816 F.2d 869, 874 (3d Cir.1987), or strongly favored, United States v. Jenkins, 904 F.2d 549, 559 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 395, 112 L.Ed.2d 404 (1990); United States v. Feldman, 853 F.2d 648, 662 (9th Cir.1988), cert. denied, 489 U.S. 1030, 109 S.Ct. 1164, 103 L.Ed.2d 222 (1989); United States v. Cauble, 706 F.2d 1322, 1348 (5th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 996, 79 L.Ed.2d 229 (1984), bifurcation in order to prevent jury confusion and safeguard the rights of the defendant, or have left bifurcation to the sound discretion of the district court, United States v. Linn 880 F.2d 209, 217 (9th Cir.1989); United States v. Perholtz, 842 F.2d 343, 367 (D.C.Cir.), cert. denied, 488 U.S. 821, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988). No court, to our knowledge, has determined that a criminal defendant is entitled to a unitary trial in these circumstances. ²

Desmarais mistakenly contends that bifurcation prevented him from urging the jury to invoke its power of nullification. Even in a unitary trial, however, it would have been improper to urge the jury to nullify applicable law. "[J]urors may have the power to ignore the law, but their duty is to apply the law as interpreted by the court, and they should be so instructed." United States v. Boardman, 419 F.2d 110, 116 (1st Cir.1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1124, 25 L.Ed.2d 398 (1970); see also United States v. Garcia-Rosa, 876 F.2d 209, 226 (1st Cir.1989), vacated on other grounds, --- U.S. ----, 111 S.Ct. 377, 112 L.Ed.2d 391 (1990), citing United States v. Trujillo, 714 F.2d 102, 105-106 (11th Cir.1983) (collecting cases) (stating that this position is "consistent with that of every other federal appellate court that has addressed this issue."). "In arguing the law to the jury, counsel is confined to principles that will later be incorporated and charged to the jury." Trujillo, 714 F.2d at 106 (citation omitted). Accord United States v. Dougherty, 473 F.2d 1113, 1130-1137 (D.C.Cir.1972); United States v. Moylan, 417 F.2d 1002, 1005-1009 (4th Cir.1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970). As the defense was not prejudiced, the bifurcation order did not constitute reversible error.

(i) Criminal Trial

Admissibility of Evidence

Postal Inspector Moores was allowed to testify that his attention became focused on Desmarais when he discovered that the first express mail package addressed to Desmarais bore a return address which "was either unknown or did not exist." Defense counsel objected to Moores' testimony as (i) "bad act" evidence, inadmissible under Fed.R.Evid. 404(b), and (ii) irrelevant, since there was no evidence as to the contents of the package, or, if relevant, inadmissible under Fed.R.Evid. 403 on the ground that any probative value was substantially outweighed by the risk of unfair prejudice. The court ruled that Moores' testimony was probative of defendant's "intent and motive" and that its probative value outweighed any potential prejudice to the defendant. ³ The court offered to instruct the jury that it was to draw no inference that the first express mail package contained contraband. Defense counsel declined a limiting instruction on the ground that it might highlight any prejudice to Desmarais.

The admissibility of "other acts" evidence under Evidence Rule 404(b) is analyzed under a two-part test. United States v. Rodriguez-Cardona, 924 F.2d 1148, 1150 (1st Cir.1991); United States v. Oppon, 863 F.2d 141, 146 (1st Cir.1988). First, the "other acts" evidence must be excluded if "it is relevant only because it shows bad character (i.e., the proposed logical inference includes character as a necessary link)." United States v. Ferrer-Cruz, 899 F.2d 135, 137 (1st Cir.1990) (emphasis in original); see also Fed.R.Evid. 404(b). Second, the probative value of the "other acts" evidence must be weighed against any potential unfair prejudice to the defendant, Rodriguez-Cardona, 924 F.2d at 1150-1151; Oppon, 863 F.2d at 146; see also Fed.R.Evid. 403; and "other acts" evidence is to be excluded only when the risk of unfair prejudice substantially outweighs its probative value, Ferrer-Cruz, 899 F.2d at 138. The latter determination is entrusted to the discretion of the trial court. United States v. Hernandez-Bermudez, 857 F.2d 50, 53 (1st Cir.1988). " 'Only rarely--and in extraordinarily compelling circumstances--will we, from the vista of a cold appellate record, reverse a district court's on-the-spot judgment concerning the relative weighing of probative value and unfair effect.' " Pinkham v. Burgess, 933 F.2d 1066, 1071 (1st Cir.1991) (quoting Freeman v. Package Machinery Co., 865 F.2d 1331, 1340 (1st Cir.1988)).

The focus of the court's inquiry concerning the admissibility of Moores' testimony was whether the testimony tended to make the existence of a "plan," or the "absence of mistake or accident," in respect to defendant's receipt of the second package, more probable than it would have been without Moores' testimony. The testimony was plainly probative of Desmarais' "knowledge" and "intent;" for the receipt of the earlier express mail package, which bore a non-existent return address, tended to make it more probable that the receipt of the second package, which likewise bore a non-existent return address, was not due to "mistake or accident." See Fed.R.Evid. 401 & 404(b). The reasonableness of such an inference was not contingent upon evidence of the contents of the first package. Even assuming that the first express mail package contained no contraband, it would be reasonable to infer that Desmarais' receipt of the second (marijuana-laden) package was not due to "accident or mistake," but to the existence of a "plan." Regardless of the contents of the first package, there can be no serious question that the circumstantial similarities common to the two express mailings were highly probative of defendant's "knowledge" and "intent," two critical issues in the case.

Moreover, the probative value of Moores' testimony outweighed whatever unfair prejudice could have been caused by any impermissible jury inference that Desmarais was a person of "bad character." On the one hand, the probative value of the...