U.S. v. Hahn

• Decision Date: 05 January 1994
• Docket Number: No. 93-1858,93-1858
• Citation: 17 F.3d 502
• Parties: UNITED STATES of America, Appellee, v. Robert HAHN, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 502

17 F.3d 502

UNITED STATES of America, Appellee, v. Robert HAHN, Defendant, Appellant.

No. 93-1858.

United States Court of Appeals First Circuit.

Heard Jan. 5, 1994.

Decided March 9, 1994.

Paul J. Haley, with whom Scott L. Hood and Law Office of Paul J. Haley were on brief for appellant.

David A. Vicinanzo, Assistant United States Attorney, with whom Peter E. Papps, United States Attorney, was on brief for appellee.

Before SELYA, CYR and BOUDIN, Circuit Judges.

CYR, Circuit Judge.

Appellant Robert Hahn challenges various trial court rulings and the sufficiency of the evidence supporting his convictions for using or carrying a firearm in relation to a drug trafficking crime, 18 U.S.C. Sec. 924(c), conspiring to possess and distribute marijuana, 21 U.S.C. Sec. 846, and conducting a continuing

criminal enterprise, 21 U.S.C. Sec. 848(a), (c). Careful review discloses no error.

I BACKGROUND

We recite the relevant facts in the light most favorable to the verdict. See United States v. Welch, 15 F.3d 1202, 1212 (1st Cir.1993). In 1992, Hahn and ten other defendants were jointly indicted in the United States District Court for the District of New Hampshire, as former members of a nationwide marijuana trafficking conspiracy spanning more than a decade and headed by one Alberto "Dad" Lujan. As a principal underboss, Hahn had been responsible for, inter alia, transporting smuggled Mexican marijuana from Arizona for distribution in California, Colorado, Michigan, New Hampshire, Massachusetts and New York, among other locales.

In the early 1980s, Hahn and Lujan were local marijuana dealers seeking to penetrate marijuana markets outside Arizona in order to capitalize on their connections with suppliers in Mexico. Eventually, Hahn established a business relationship with Mark Heino, a New Hampshire native living in southern California. Some of the marijuana Heino bought from Hahn, he resold in California. The rest Heino distributed during his frequent trips to New Hampshire. Heino himself became an underboss in the Lujan organization, a position he retained until his arrest on trafficking charges in early 1984.

With Heino out of circulation, the New Hampshire operation was taken over by Hugh Mulligan, another New Hampshire native. Like Heino, Mulligan had been recruited into the Lujan organization by Hahn, who thereafter supervised Mulligan's New Hampshire operation. Later, when the New Hampshire marijuana market softened, Mulligan introduced Hahn to Dennis and P.J. Dougherty, Long Island residents with New Hampshire ties. The Doughertys afforded the Lujan organization access to the lucrative Metropolitan New York marijuana market, and large marijuana shipments were soon being trucked in from Arizona. Several years later, after the Doughertys dropped out of the picture, Hahn established a high-volume marijuana trade with another New York dealer. Meantime, Heino was released from prison in mid-1986, returned to New Hampshire, and reestablished himself in the Lujan organization. During this period, Hahn concentrated on the organization's interests in Arizona, Metropolitan New York, and New Hampshire.

Hahn's primary role was to supervise marijuana shipments from Arizona to New York and New England. ¹ In early 1991, Lujan set up a bogus produce-trucking operation as a cover for the marijuana shipments. A professional truck driver, one Roger Bradley, was recruited for the long-haul runs between Arizona and the Northeast. Upon arrival at his East Coast destination, Bradley would contact Hahn to arrange for offloading. Normally, Bradley would "deadhead" back to Arizona, but on occasion he transported large quantities of currency back to Lujan at Hahn's request. ²

The cross-country trucking operation was a success. At its apex, during 1991 alone,

thirteen to fifteen tractor-trailer loads were transported from Arizona to the Northeast under Hahn's supervision, approximating 5,000 pounds apiece. The criminal conspiracy unravelled shortly thereafter, however. During 1992, Hahn's performance faltered, due apparently to his cocaine habit, and he was cashiered by Lujan. Heino was unable to reestablish a supply line between Arizona and New Hampshire. Finally, Hahn was arrested in Arizona on November 12, 1992. ³

II DISCUSSION

A. Sufficiency of the Evidence

1. Standard of Review

The challenges Hahn asserts to the sufficiency of the evidence and to the denial of his motions for judgments of acquittal "raise a single issue." United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir.1991), quoted in United States v. Cassiere, 4 F.3d 1006, 1011 (1st Cir.1993); see also Welch, 15 F.3d at 1212. The verdicts are reviewed under well-recognized standards:

We assess the sufficiency of the evidence as a whole, including all reasonable inferences, in the light most favorable to the verdict, with a view to whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. We do not weigh witness credibility, but resolve all credibility issues in favor of the verdict. The evidence may be entirely circumstantial, and need not exclude every reasonable hypothesis of innocence; that is, the factfinder may decide among reasonable interpretations of the evidence.

Batista-Polanco, 927 F.2d at 17 (citations omitted).

2. Continuing Criminal Enterprise

A conviction under 21 U.S.C. Sec. 848 for engaging in a continuing criminal enterprise ("CCE") requires proof beyond a reasonable doubt that the defendant (1) committed a felony drug offense, (2) as part of a continuing series of such violations, (3) in concert with five or more persons in relation to whom he acted as a supervisor, organizer, or manager, (4) and from which multiple operations he realized substantial income or other resources. See, e.g., United States v. Rouleau, 894 F.2d 13, 14 (1st Cir.1990). Hahn claims that the government established neither the third nor the fourth element of the CCE offense.

Under the familiar construction accorded the third CCE element, the jury need only have found that the predicate crime was committed in concert with at least five different individuals in relation to whom the defendant served as an organizer, supervisor, or in any other management position. See 21 U.S.C. Sec. 848(c)(2)(A); see also United States v. David, 940 F.2d 722, 730-32 (1st Cir.1991), cert. denied sub nom., Toro Aristizabal v. United States, --- U.S. ----, 112 S.Ct. 605, 116 L.Ed.2d 628 (1991), and cert. denied sub nom., Yarden v. United States, --- U.S. ----, 112 S.Ct. 908, 116 L.Ed.2d 809 (1992), and cert. denied sub nom., Toro Aristizabal v. United States, --- U.S. ----, 112 S.Ct. 1298, 117 L.Ed.2d 520 (1992), and cert. denied, --- U.S. ----, 112 S.Ct. 2301, 119 L.Ed.2d 224 (1992); United States v. Jenkins, 904 F.2d 549, 553 (10th Cir.), cert. denied, 498 U.S. 962, 111 S.Ct. 395, 112 L.Ed.2d 404 (1990). ⁴

The record abounds with evidence that Hahn performed a supervisory role in the Lujan organization which required management of more than five other individuals. First, Hahn concedes that he supervised Craig Nezat and Robert Mercado. Further, there is uncontroverted evidence that he exercised virtually exclusive managerial control of marijuana transportation between Arizona and the Northeast, which means that truck drivers Roger Bradley, Michael Sheehan and Jeff Heino were under Hahn's control and supervision from time to time as well. Although these five subordinates were enough to establish the third CCE element, Ken White and Hugh Mulligan were managed by Hahn as well. See supra at p. 505. ⁵

Hahn's challenge to the sufficiency of the evidence on the fourth CCE element is unavailing as well. The "substantial income" requirement may be met either by direct evidence of the revenues realized and resources accumulated by the defendant, or by such circumstantial evidence as the defendant's position in the criminal organization and the volume of drugs handled by the organization. United States v. Roman, 870 F.2d 65, 75 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164, 104 L.Ed.2d 1026 (1989); United States v. Sisca, 503 F.2d 1337, 1346 (2d Cir.), cert. denied, 419 U.S. 1008, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974). The "substantial income" test establishes no fixed minimum, but is intended "to exclude trivial amounts derived from occasional drug sales," Roman, 870 F.2d at 75; see also United States v. Medina, 940 F.2d 1247, 1251 (9th Cir.1991) ("The practical meaning of 'substantial income or resources' will normally be a question for the trier of fact").

There is overwhelming circumstantial evidence that Hahn derived "substantial income" from the management services rendered to the Lujan organization. The government need only prove revenue, not profit. See, e.g., Roman, 870 F.2d at 75. The sheer scope of the conspiracy, which generated millions of dollars from many tons of marijuana over several years, provided ample basis for a reasonable inference that Hahn realized far more than trivial amounts of income from the organization. See id. For example, the trial testimony indicated that Bradley alone transported approximately 50,000 pounds of marijuana from Arizona to the Northeast and over $1 million in cash from New York to Arizona at Hahn's direction on one occasion alone. Coconspirator Ken White testified that he purchased tens of thousands of dollars worth of automobiles and handguns at Hahn's request. And coconspirator Jeff Heino testified that Hahn typically spent $1,500 to $2,000 per day while Heino was working with him in the field on organization business. The fourth CCE element was established beyond a reasonable doubt. ⁶

3. Conspiracy to Possess and Distribute Marijuana

Next, appellant challenges the sufficiency of the evidence supporting his conviction for conspiring to distribute marijuana, see 21 U.S.C. 846, which requires proof beyond a reasonable doubt that "(1) a conspiracy existed, (2) ... the defendant knew of...