U.S. v. Keene

• Decision Date: 22 August 2003
• Docket Number: No. 02-2330.,02-2330.
• Parties: UNITED STATES of America, Appellee, v. Joel A. KEENE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 78

341 F.3d 78

UNITED STATES of America, Appellee, v. Joel A. KEENE, Defendant, Appellant.

No. 02-2330.

United States Court of Appeals, First Circuit.

Heard June 5, 2003.

Decided August 22, 2003.

COPYRIGHT MATERIAL OMITTED

William Maselli, for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Paula D. Silsby, United States Attorney, was on brief for appellee.

Before LYNCH, Circuit Judge, RICHARD S. ARNOLD,^* Senior Circuit Judge, and HOWARD, Circuit Judge.

RICHARD S. ARNOLD, Senior Circuit Judge.

Joel Keene was convicted of possession with intent to distribute more than 500 grams of cocaine and possession with intent to distribute marijuana, and was subjected to forfeiture of his residence for his drug convictions. He was sentenced to a total of sixty-six months' imprisonment with forty-eight months of supervised release. He was fined $12,500. He appeals the convictions, the fine, and the forfeiture on a variety of grounds. We affirm in all respects.

After a decade of intermittent reports of drug dealing by defendant Keene from four separate informants, police obtained a nighttime, no-knock search warrant for his somewhat isolated residence in Norway, Maine. They immediately found 23 kilograms of compressed marijuana, 3.86 kilograms of loose marijuana, and 890.7 grams of 60 per cent. pure cocaine in a garage adjoining the house, and smaller quantities of drugs along with drug paraphernalia in his house. They arrested Keene and charged him with possession with intent to distribute the drugs. His first trial ended in a mistrial. His second trial was bifurcated, with the forfeiture count severed from the possession with intent to distribute charges. He was convicted by a jury after a motion to suppress evidence obtained during the search was denied. This appeal followed.

I.

Appellant raises six issues on appeal. First, he argues that the search warrant obtained by police was not supported by probable cause, because the information relied on was stale and there was no nexus with the property to be searched. Second, there was insufficient evidence of his possession of cocaine with an intent to distribute. Third, the instructions given to the jury on aiding and abetting and willful blindness were not supported by the evidence. Fourth, the prosecution's invitation to the jury to analyze defendant's handwriting was improper and denied him a fair trial. Fifth, the government made references to his lifestyle in its closing argument, which also denied him a fair trial. Finally, the defendant argues that the imposition of a fine was improper, and that the government's request for a forfeiture should have been denied.

A. Probable Cause

Defendant argues that Maine Drug Enforcement agents relied on stale information to obtain a nighttime, no-knock warrant for his residence, and that evidence of drug dealing suggested by this information had an inadequate nexus to the property searched. We disagree.

Probable cause to issue a search warrant exists when "given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The task of the reviewing court is to determine whether "a substantial basis" existed for the magistrate's determination that probable cause existed. Ibid. Factors to be considered in determining whether a search warrant should issue include "the value of corroboration of details of an informant's tips by independent police work." Id. at 241, 103 S.Ct. 2317.

Police provided detailed information from four confidential informants to the magistrate judge in applying for the search warrant. Maine Drug Enforcement Special Agent Tony L. Milligan obtained this information. The first informant was interviewed in 1992 and provided specific information, while incarcerated about his drug dealings with six individuals, including defendant, at a Saracens Motorcycle Club hangout. Members of the Saracens had been convicted of drug dealing. Other information provided by this informant had resulted in successful prosecution of significant drug traffickers. Two years later, a second informant, a concerned citizen with no criminal record who was "sick and tired" of drug activity connected with the Saracens Motorcycle Club, came forward. He too gave specifics about Keene's drug distribution activities and drug delivery services, and provided eyewitness accounts of his substantial, unexplained wealth. This information was also corroborated. In 1996, a third informant, a convicted felon, also provided information about Keene's drug activities. Finally, a little more than a month before Agent Milligan applied for the search warrant, he received information from Somerset County Sheriff Detective Lt. Carl Gottardi about his interview with a highly reliable source, who was charged with no crime and was not paid for his information. This informant recounted first-hand observations of Keene's large-scale cocaine sales, and indicated that Keene also supplied drugs to the Saracens and Hell's Angels Motorcycle Clubs. In the month leading up to application for the warrant, this informant identified one of Keene's regular cocaine customers and provided details about Keene's habits which police corroborated.

Since the information provided by the four informants over a ten-year period was amply corroborated, was consistent with a drug conspiracy of long duration, and had been updated within the month before application for the warrant, there was probable cause for issuance of the warrant.

Defendant also argues that the information provided did not establish a sufficient nexus between drug activity and the property to be searched, and so the warrant should not have issued. See United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir.1993). However, the informants provided information about drug sales by defendant, evidence of substantial wealth unexplained by his workers' compensation benefits, and the fact that he worked from home while recovering from back injuries for which he drew the workers' compensation. This information suggested that drug distribution was being organized from Keene's residence, a place which was safe and accessible. United States v. Feliz, 182 F.3d 82, 87-88 (1st Cir.1999). The information established a sufficient nexus with the property to be searched, and probable cause existed for the warrant to issue.

B. Sufficiency of Evidence

Drugs, drugs everywhere, but none belonged to defendant. This is the proposition of which defendant failed to convince a jury, and the one which he now asks this Court to accept. We do not.

In order to prevail on a claim of insufficient evidence a defendant must make a "formidable showing." United States v. Valerio, 48 F.3d 58, 63 (1st Cir.1995). To determine whether evidence was sufficient, "we examine the record in a light most favorable to the government, drawing all reasonable inferences in its favor, with an eye towards whether the proof would have allowed a rational jury to determine beyond a reasonable doubt that the defendant was guilty of the crime charged." Ibid. (quoting United States v. Ortiz, 23 F.3d 21, 24 (1st Cir.1994)). Both direct and circumstantial evidence are considered, and the government's proof may lie "entirely in circumstantial evidence." Ibid. Defendant argues that the drugs found by police at his home were found in a garage bay to which many people had access, and that the government supplied no substantial evidence of sales of drugs by Keene.

When twenty officers executed the search warrant, after arresting Keene, his girlfriend, and his father, they searched defendant's garages. On entering the first garage, Agent Milligan was overwhelmed by the strong odor of fresh marijuana, and immediately noticed a large white cooler and packing materials on the floor. Inside the cooler were three large trash bags, each of which contained kilogram-sized bricks of compressed marijuana and a piece of paper with numbers written on it. The total weight of the marijuana found was fifty-two pounds. On the table at the back of the garage a triple beam balance scale and commercial digital scale were found with marijuana residue on them. Upstairs, more boxes with fresh marijuana residue, scales, and UPS labels were found, along with shipping boxes. In a corner of this garage, at the bottom of a pile of automobile tires was a metal ammunition canister inside of which were thirty-two knotted plastic bags, each of which contained a chunk of 60 per cent. pure rock cocaine. A five-gallon pail sat against the back wall with ziplock bags containing loose mildewed marijuana and bricks of fresh marijuana. Marijuana buds were found inside unmounted motorcycle tires. A blue plastic tub contained another ziplock bag of fresh, brick marijuana. In a hole in the brick wall was another tub containing marijuana in ten ziplock bags. Small amounts of marijuana, cocaine, and drug paraphernalia were found throughout the house, as well as address books and ATV registrations. When confronted with these findings after his arrest, Keene responded that someone else must have put the drugs in his garage. The jury reasonably found this explanation incredible. Because substantial evidence existed to sustain defendant's convictions, we affirm.

C. Instructions and Statements to the Jury

Appellant challenges both the District Court's instructions as to the government's burden of proof for willful blindness, and its instructions as to what was required to convict Keene of aiding and abetting.

The standard of review for a challenge of this type to jury instructions as erroneous is de novo. United States v. Marino, 277 F.3d 11, 28 (1st Cir.2002). A willful-blindness instruction "is proper if a defendant claims a lack of knowledge, the facts suggest a conscious course of deliberate ignorance, and...