U.S. v. Griffin, 86-1897

Citation818 F.2d 97
Decision Date23 April 1987
Docket NumberNo. 86-1897,86-1897
Parties22 Fed. R. Evid. Serv. 1785 UNITED STATES of America, Appellee, v. Barry J. GRIFFIN, Defendant, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Joel Hirschhorn, Miami, Fla., with whom Daniel W. Bates and Daniel G. Lilley Law Offices, P.A., Portland, Me., were on brief for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., Joseph H. Groff, III, Portland, Me., and William H. Browder, Jr., Asst. U.S. Attys., Bangor, Me., were on brief for appellee.

Before CAMPBELL, Chief Judge, BOWNES and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Barry J. Griffin, defendant/appellant, was indicted by a federal grand jury in the United States District Court for the District of Maine. As more clearly appears infra, Griffin proceeded to trial and was found guilty by a jury on three of six counts. After sentence was imposed, he prosecuted this appeal. We affirm.

I. BACKGROUND

Due in part to the multiple loci of the venture and the plentiful cast of characters, the factual predicate of this case is somewhat sprawling. Rather than attempt to recreate the entire scenario, we will explicate the facts only to the extent which we deem necessary to place into perspective the issues which we must consider on appeal.

Beginning in 1983 (and continuing into 1984) three loads of marijuana were imported into Maine at the apparent behest of one Michael Gillis. These shipments were stored at three different sites, located in the bucolic environs of Yarmouth, Sweden, and Naples, Maine, respectively. On the prosecution's theory of the crimes, Gillis was the mastermind of the enterprise. He arranged to have the contraband distributed, at least in part, through a network managed by Louis Distasio, Sr. (Distasio) and manned by two of Distasio's sons (among others). In the government's view, the appellant was Gillis's adjutant and aide-de-camp, assisting him in the orchestration of the illicit operation.

The grand jury treated Griffin and Gillis like Gog and Magog, returning a single indictment which charged each of them with the same six counts of criminal activity. The odd-numbered counts alleged participation in three separate conspiracies to possess large quantities of marijuana (in excess of 1,000 pounds) with the intent to distribute the same. 21 U.S.C. Sec. 846. The even-numbered counts tracked the conspiracy counts, charging the defendants in each instance with the substantive offense of illegal possession of the marijuana. 21 U.S.C. Sec. 841(a)(1). To grind the mill more finely, Counts I and II related to the marijuana which had been brought to Yarmouth. Counts III and IV referred to the marijuana deposited in Sweden. And, Counts V and VI replicated the charges with regard to the Naples stash.

When the balloon went up, Gillis was nowhere to be found. (From aught that appears of record, he is still a fugitive from justice.) The appellant stood trial alone. He was convicted on the first and second (Yarmouth) counts, but of the lesser-included offenses of conspiracy to distribute and illegally to possess less than 1,000 pounds of marijuana. He was also convicted, as charged, of the Naples conspiracy (Count V). The jury found him not guilty of the remaining three counts.

II. PLAIN ERROR

As from the vasty deep of the trial record, the appellant has surfaced a small flotilla of issues for our consideration. But, most of these must be allowed to recede into the bathyal zone without specific comment. The appeal has, in these numerous respects, been irreparably holed by procedural default.

Griffin attempts to raise several points which we believe fall in this category. These relate, inter alia, to the prosecutor's summation, the reception and treatment of certain evidence, and the district court's instructions to the jury. We see no need to be all-encompassing in listing items which have, largely, gone by the boards. We do, however, set forth a representative sampling of the day's catch in the margin. 1

Griffin's trial counsel interposed no objections to the prosecutor's closing argument; he proffered only two objections, both entirely unrelated to the errors assigned on appeal, to the jury instructions; and he preserved none of the evidentiary exceptions which we group under this rubric. The governing precepts are straightforward and unambiguous. In general, error may not be predicated upon rulings admitting or excluding evidence, Fed.R.Evid. 103, or on purported exceptions to the charge, Fed.R.Crim.P. 30, or in regard to an entire gamut of orders, Fed.R.Crim.P. 51, unless the party putatively aggrieved makes his complaint known to the trial court in due season, thus preserving his rights. These rules are no mere formalities, no judicial trap for the unwary litigant. They are essential to the balanced and orderly functioning of our adversarial system of justice. They serve several valid purposes. Among these is the idea that a party cannot sleep upon perceptible rights, but has an obligation to alert the district judge to error-in-the-making when and as the occasion arises. Placing this obligation on the litigant gives both the court and the party's opponent fair warning and a timely opportunity to acknowledge bevues and correct them so that cases can be decided squarely on merit (or the lack of it). If a party shirks this duty--as Griffin has done--he forfeits much of his opportunity thereafter to complain about ensuing mistakes. Such points can be reviewed on appeal only for the existence of what courts have come to term "plain error."

Plain errors are those "affecting substantial rights." Fed.R.Crim.P. 52(b). Put another way, they are " 'particularly egregious errors' ... that 'seriously affect the fairness, integrity or public reputation of judicial proceedings'." United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (citations omitted) (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982), United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)). When we evaluate plain error "we are not ... concerned with technical error or with prejudicial error...." McMillen v. United States, 386 F.2d 29, 35 (1st Cir.1967), cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1968). See also United States v. Rosa, 705 F.2d 1375, 1380-81 (1st Cir.1983) (per curiam) (similar). Nor can we trifle with the tactical decisions of counsel, with errors reflecting only mere inadvertence, or with matters that are, in their poorest light, only arguably wrong. The plain error doctrine, in short, does not permit us to consider the ordinary backfires--whether or not harmful to a litigant's cause--which may mar a trial record. The doctrine focuses our attention only on blockbusters: those errors so shocking that they seriously affect the fundamental fairness and basic integrity of the proceedings conducted below. It follows that such errors are to be noticed only in "exceptional cases or under peculiar circumstances to prevent a clear miscarriage of justice." Nimrod v. Sylvester, 369 F.2d 870, 873 (1st Cir.1966). See also Elwood v. Pina, 815 F.2d 173, 176 (1st Cir.1987); Polansky v. United States, 332 F.2d 233, 235 (1st Cir.1964).

Accordingly, we evaluate the appellant's procedurally defaulted claims against the entire record in order to determine whether this "high standard", United States v. Previte, 648 F.2d 73, 81 (1st Cir.1981), has been met. We need not recount this odyssey step by step. Suffice it to say that our painstaking review of the record convinces us that the appellant received a trial in which fairness remained paramount and in which no plain error transpired.

The prosecutor's closing argument--whether or not a textbook model--was neither vulpine nor unduly inflammatory. There are no signs of prosecutorial misconduct so grossly improper as to warrant our intervention at this stage; nothing was sufficiently amiss as "was likely to have affected the trial's outcome", United States v. Fuller, 768 F.2d 343, 347 (1st Cir.1985), or which would require appellate intervention "to deter future misconduct." Id. The district court's charge to the jury, taken in its entirety, was comprehensive and generally accurate. Apart from (or perhaps including, see infra Part III) the two evidentiary matters discussed below, the exclusion and reception of proffered proof was unremarkable. The defendant's constitutional rights were fully and faithfully preserved. In fine, there is nothing in the record to suggest that, singly or in combination, errors of the sort which are now belatedly protested before us infected the general good health of the trial. Plain error is plainly absent.

III. EVIDENTIARY RULINGS

This pronouncement does not, however, complete our inquiry. In two areas, Griffin has assigned errors on appeal which we believe were sufficiently preserved at his trial to justify further examination. We proceed, therefore, to consider them.

A. The Relevancy/Prejudice Calculus

The appellant, having objected throughout on the basis that the testimony of Richard Hatem was irrelevant and unduly prejudicial, now urges that it was reversible error for the district court to permit Hatem to testify. As a subset of the same point, Griffin asserts that the court should have granted his timely motion to strike Hatem's testimony in its entirety, or allowed an alternative motion for a mistrial. To put these contentions into proper context, it should be observed that Hatem was a self-confessed coconspirator who had entered into a plea agreement with the government. Hatem--living proof of the lack of honor among thieves--proceeded to breach the agreement by concealing and misrepresenting material information. He was thereupon indicted for perjury and convicted. Later, he repented and again became the prosecutor's helpmate.

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