U.S. v. Newton, s. 89-1363
| Decision Date | 04 October 1989 |
| Docket Number | 89-1501,Nos. 89-1363,s. 89-1363 |
| Citation | 891 F.2d 944 |
| Parties | 29 Fed. R. Evid. Serv. 526 UNITED STATES of America, Plaintiff, Appellee, v. Stuart H. NEWTON, Defendant, Appellant. UNITED STATES of America, Plaintiff, Appellee, v. Thomas W. GILBERT, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
John L. Pollok, with whom Hoffman & Pollok, Charles L. Weintrab, Susan C. Wolfe, and Michael H. Gold, New York City, were on brief, for defendant, appellant.
James H. Leavey, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for plaintiff, appellee.
Before BOWNES, BREYER, Circuit Judges and BROWN, Senior Circuit Judge. *
Stuart H. Newton (Newton) and Thomas W. Gilbert (Gilbert) were convicted by a jury in the District Court of Rhode Island of conspiring to import marijuana into the United States in violation of 21 U.S.C. § 963; conspiring to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846; importation of marijuana in violation of 21 U.S.C. § 952(a); and possession of more than 1000 pounds of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Newton was also convicted of supervising a continuing criminal narcotics enterprise (CCE) in violation of 21 U.S.C. § 848. All of the charges stem from the importation of 20,000 pounds of hashish 1 from Pakistan into the United States near Jamestown, Rhode Island, on or about July 4, 1983. Appellants raise numerous errors with the trial including evidentiary rulings, governmental misconduct, and other issues. After reviewing the entire record, we find that none of the alleged errors fatally flawed the trial and therefore affirm.
Briefly, the evidence at trial was as follows. 2 The government relied primarily upon the testimony of Nicholas Kukielski (Kukielski), a participant in the importation who testified pursuant to a cooperation agreement with the government. Kukielski testified that he went to Pakistan with Newton. In Pakistan, Newton was able to obtain 20,000 pounds of hashish, and have it loaded on a freighter. After the ship left Pakistan, Kukielski and Newton flew back to the United States to prepare for the arrival of the drugs.
After returning, Kukielski was introduced to Gilbert by a mutual friend. Gilbert said he could arrange for a fishing boat to meet the freighter, unload the drugs and bring them ashore in Rhode Island. Gilbert secured the use of the boat Sandra & Cindy, which brought the drugs ashore. Kukielski observed bait barrels that he had been told contained hashish being unloaded from the Sandra & Cindy in the Port of Galilee, Rhode Island. The drugs were taken to a house in Rhode Island, cleaned, repackaged, and distributed. Later Newton gave Kukielski $350,000 to give to Gilbert as payment for the ship, crew and as Gilbert's share of the proceeds. Kukielski gave the money to Gilbert as Newton directed. Based on Kukielski's testimony, the government estimated that the total proceeds from the importation were between $20-24 million.
The government corroborated Kukielski's testimony through other evidence. Kukielski's brother Peter testified that he was paid by Newton to clean and package the hashish. After agreeing to cooperate with the government, the Kukielski brothers placed telephone calls to both of the defendants, which were tape recorded. The taped conversations were admitted into evidence.
A psychologist testified that he had sold Newton the names and the social security numbers of hospitalized patients. The names appeared on passport applications submitted with Newton's and other conspirators' pictures. The applications were admitted into evidence.
The government also presented evidence of large amounts of unexplained cash in the possession of the defendants and of large financial transactions by the defendants (and their relatives and close friends) since the date of the importation.
Finally, the government presented a three-page list of instructions for financial transactions and Swiss bank account numbers seized when Kenneth Bloomfield, an alleged co-conspirator, was arrested in Switzerland (the Bloomfield list). This list tied together various pieces of the government's case and the prosecutor relied heavily on it in his closing argument.
Defendants take issue with two evidentiary rulings of the district court. In reviewing these evidentiary challenges, we keep in mind that a trial court's rulings on relevance and admissibility are reversible only for abuse of discretion. United States v. Garcia, 818 F.2d 136, 144 (1st Cir.1987); United States v. Drougas, 748 F.2d 8, 24 (1st Cir.1984); United States v. Sorrentino, 726 F.2d 876, 886 (1st Cir.1984).
A Swiss police officer testified that Kenneth Bloomfield (an alleged participant) was arrested in Geneva in possession of two passports, both with his picture, one in his name and one in the name of an alias (which, it was shown at trial, was one of the names Newton had purchased from the psychologist) and a three-page unsigned and undated typed document that provided instructions on handling financial affairs. The document included a list of names (additional aliases it was proven that Newton used), account numbers and the names of banking officers of various Swiss bank accounts. The government claimed that the document was written by Newton and urged that it be admitted as an admission by a party opponent. The defendants objected claiming that the document was not properly authenticated and was irrelevant.
The judge ruled that the document had enough indicia of trustworthiness to be authentic under Fed.R.Evid. 901(b)(4). He admitted the document pursuant to Fed.R.Evid. 801(d)(2)(A) as an admission of a party opponent. The government used the document in its closing to argue that some of the fruits of the crime were deposited into Swiss bank accounts.
Rule 901 of the Federal Rules of Evidence requires that documents be authenticated or identified before they can be admitted into evidence. Authentication can be achieved through appearance, contents, substance, internal patterns, or other distinctive patterns taken in connection with circumstances. Fed.R.Evid. 901(b)(4) 3. There are statements in the Bloomfield List from which it could be inferred that Newton authored the document. In particular, the document: refers to "Laura Newton" (Newton's wife) and asks that in the event of the author's death any money should be split between his family and Laura; refers to various aliases proven to be used by Newton ("my lawyer Milton Shapiro ... knows me as Joseph Jaffee"); states, call "Tom" at a telephone number that it was proven was registered in Gilbert's long-time girlfriend's name; and lists bank account numbers next to proven aliases of Newton. Although, as the defendants urge, it is possible that some of the information in the document was known by conspirators other than Newton, Newton was proven to have used the aliases in the Bloomfield list and it is unlikely that anyone would have split money with Laura except Newton.
In addition, despite the defendants' contentions to the contrary, external evidence of the truth of the statements in the document was introduced by the government. Other documents indicated that Milton Shapiro acted as a lawyer for Newton. One of the names and numbers of a Swiss bank account in the Bloomfield list was identical to a number on a piece of paper found in a search of Newton's house. Given the circumstantial evidence of authorship, we do not find that the judge erred in determining that the Bloomfield list was authentic. Having found that the document was authentic, admission of the document as a statement by a party opponent under Fed.R.Evid. 801(d)(2)(A) 4 was proper. 5
Gilbert claims that even if the document was properly admitted against Newton, it was still hearsay to him. The government asserts, and our review of the record reveals, that Gilbert never objected to the admission of the list. "It is axiomatic that the failure to object at trial, absent exceptional circumstances not present here, forecloses any opportunity to challenge the admissibility of the evidence on appeal." Allied International v. International Longshoremen's Ass'n, 814 F.2d 32, 39 (1st Cir.1987); Fed.R.Evid. 103(a)(1). Because there was no timely objection, Gilbert waived any objection.
The government introduced into evidence a number of documents showing large purchases, including purchases of various houses and cars by both defendants, and evidence of other financial transactions including bank, mutual fund and brokerage account records from the time immediately following the alleged conspiracy and continuing for the next five years. For example, Gilbert purchased a farm in Pennsylvania with a downpayment of $174,000 paid in $20 bills more than 3 years after the importation.
The government also presented the testimony of an Internal Revenue Service agent who testified that the defendants' tax returns did not show income even close to the level necessary to complete the purchases and transactions. The defendants complain that there was no evidence that the large amounts of unexplained cash were derived from the July, 1983, importation and thus they were irrelevant. In addition, defendants claim that the time between the importation and the purchases was too long to show relevance absent evidence to connect the money and the crime. 6
It is common ground that the possession of large amounts of unexplained cash in connection with evidence of narcotics trafficking is generally relevant and admissable. United States v. Ariza-Ibarra, 605 F.2d 1216, 1225 (1st Cir.1979). See also United States v. Wood, 834 F.2d 1382, 1386 (8th Cir.1987); United States v. Collins, 764 F.2d 647 (9th...
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