U.S. v. Pierre

• Decision Date: 18 April 2007
• Docket Number: No. 05-2309.,05-2309.
• Citation: 484 F.3d 75
• Parties: UNITED STATES of America, Appellee, v. Edward PIERRE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

484 F.3d 75

UNITED STATES of America, Appellee, v. Edward PIERRE, Defendant, Appellant.

No. 05-2309.

United States Court of Appeals, First Circuit.

Heard December 7, 2006.

Decided April 18, 2007.

Rodney S. Dowell, with whom Berman & Dowell was on brief, for appellant.

Theodore B. Heinrich, Assistant U.S. Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LYNCH, Circuit Judge.

Defendant Edward Pierre ran an illegal wholesale and retail drug distribution business in Fall River, Massachusetts.

In 2003, Pierre was convicted of possessing cocaine with intent to distribute; the jury hung on a separate drug conspiracy count. The conspiracy count was retried in 2004, and Pierre was convicted of conspiring to distribute crack cocaine and cocaine. Pierre's co-defendant and ex-girlfriend, Michelle Mickens, pled guilty and testified against Pierre at both trials. Pierre subsequently was sentenced to a 432-month term of imprisonment on the conspiracy charge, a 240-month term of imprisonment, which was to run concurrently, on the possession charge, and five years' supervised release. The district court also entered a final order of forfeiture for $500,000 against Pierre.

Pierre's appeal relates primarily to the 2004 conspiracy conviction and the accompanying sentence, although he does assign error to the introduction of certain evidence at both the 2003 and 2004 trials and to his sentence on the possession count. He also claims that the district court's forfeiture order was error. On appeal, we reject his myriad claims of error and affirm his convictions, his combined sentence, and the forfeiture order.

I. Facts

Pierre and Mickens were indicted on August 15, 2002 for conspiring to distribute cocaine base. On September 24, 2003, the grand jury returned a second superceding indictment charging Pierre and Mickens with conspiring with others, from at least April 1998 until September 2001, to distribute fifty or more grams of crack and 500 or more grams of cocaine, and charging Pierre with possessing with intent to distribute 500 or more grams of cocaine on or about July 2, 2000. A forfeiture count sought criminal forfeiture of the proceeds of the conspiracy, including $500,000 and five pieces of jewelry. Mickens pled guilty, while Pierre went to trial. After a two-week trial in December 2003, a jury found Pierre guilty of the possession count, but found that the quantity of drugs was less than 500 grams. The jury was unable to reach a verdict on the conspiracy count. The conspiracy count was retried in April and May 2004, and a jury found Pierre guilty of the conspiracy count. In a special verdict form as to the forfeiture allegation, the jury found that at least $500,000 and a pair of diamond earrings were proceeds of the drug conspiracy.

The facts in evidence at the 2004 conspiracy trial fairly establish the following.

Pierre ran a drug business in Fall River from at least April 1998 to September 2001. During that time, Pierre obtained cocaine from a source in Brockton. He would then cook some of the cocaine into crack, and he would sell both crack and powder cocaine to customers in Fall River and New Bedford. Pierre did not have a driver's license, so he employed people to drive him back and forth to Brockton and around Fall River. In particular, Mickens testified at trial that she chauffeured Pierre, in addition to transporting drugs, collecting money, and selling crack for him. At the height of her involvement, Mickens made retail sales of up to $3000 worth of crack per night at Fall River bars and collected at least $1000 twice a week from Pierre's wholesale customers. Among Pierre's biggest wholesale customers were members of the 504 Boyz, a gang that sold crack around the Fifth Street area of Fall River.¹

Mickens testified that Pierre used the proceeds of his drug operation to buy more drugs, to pay his living expenses and those of Mickens and the mother of his children, and to buy luxury items like expensive clothes and jewelry. In addition, Pierre obtained at least seven cars for use in his drug business, all of which he registered to other people. Mickens's testimony was corroborated by motel, bank, and motor vehicle records, and by the testimony of Paula Costa, who bought crack from Pierre, and Fall River police officers.

II. Trial Error Claims

Pierre raises three claims of trial error and argues that each of the errors entitles him to a new trial. First, Pierre argues that the district court constructively amended the indictment by admitting evidence of offenses not charged therein. Next, he argues that in failing to suppress evidence of a particular drug seizure, the district court admitted evidence that violated Pierre's Fourth Amendment rights and that was unduly prejudicial and irrelevant. Finally, Pierre argues that the district court impermissibly admitted prior bad acts evidence.

A. Constructive Amendment of the Indictment

At both of Pierre's trials, Mickens and several Fall River police officers testified to an incident on April 14, 1998 at the Old Colony apartment complex, where Pierre then resided. Detective Michael Boutin testified that on that date he discovered a bag containing cocaine, a scale, and a bottle of inositol (a substance used to cut cocaine and crack) hidden behind a ceiling panel in the hallway of an Old Colony building. He and other officers seized the items in the bag, replaced them with similar-looking items, and returned the bag to its hiding place.

The police officers then established surveillance at the site. Officer Scott Paul testified that he saw Pierre emerge from his apartment with a small step-ladder. Officer Alan Beausoliel testified that he saw Pierre approach the location of the hidden items. Although he could hear the ladder and ceiling tile being moved, Officer Beausoliel did not observe Pierre remove the bag from the ceiling. Officer Paul observed Pierre returning to his apartment with the step-ladder. He then heard a thud and running. Other officers spotted Pierre running out of the building and fleeing in a car. A fingerprint lifted from the bottle of inositol later was matched to Pierre.

Mickens corroborated this account. She testified that Pierre had told her that he had hidden cocaine and a scale in the ceiling of the building, and that when he returned to retrieve it, he noticed that a switch had been made. When he heard a noise and saw police, Pierre had run out of the building and fled in a car driven by an associate named Kennisen.

In addition, Detective Steven Washington testified that within the two weeks before the Old Colony incident he and two other officers had observed Pierre meeting with an individual by the name of Noel Lukenson.² The officers initially observed Lukenson and Pierre talking in a car parked on the street. Pierre then left, and after entering and exiting a nearby building, Lukenson began crawling on the ground, took up a divot of grass, and removed a large white bag from underneath the divot. Lukenson then drove to Old Colony, picked up Pierre, and drove to two Fall River bars. At the first bar, a person entered the car and left within approximately two minutes. At the second bar, the officers observed Pierre meeting with another man; the man handed Pierre money, and Pierre then put his hand to his mouth, shook the other man's hand, and left.

Pierre argues that these two incidents were unrelated to the conspiracy charged in the indictment, and that by permitting testimony about them, the district court constructively amended the indictment. He argues that the indictment charged only a conspiracy between Pierre, Mickens, and the 504 Boyz. Pierre's position is that his supposed conspiracy with Mickens and the 504 Boyz had nothing to do with the Old Colony incident or with any agreement he might have had with Lukenson. Rather, he argues, these incidents were evidence of an independent, uncharged conspiracy. In particular, he emphasizes that Mickens did not know Lukenson, and that there was no evidence connecting the 504 Boyz to Lukenson. He argues that there is a possibility that his conviction "rests upon an offense not charged by the grand jury," and that as a result he is entitled to reversal of his conviction. United States v. Dunn, 758 F.2d 30, 36 (1st Cir.1985).

The government argues that Pierre has not preserved his constructive amendment claim, and that our review is only for plain error. See United States v. DeCicco, 439 F.3d 36, 44-45 (1st Cir.2006). We bypass the forfeiture issue and rule on the merits.

Constructive amendment of an indictment is prohibited in order "to preserve the right of the person accused of a[ ] . . . crime to have a grand jury vote on an indictment, to prevent reprosecution for the same offense, and to protect the right of the accused to be informed of the charges." United States v. Vavlitis, 9 F.3d 206, 210 (1st Cir.1993). "A constructive amendment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecution or court after the grand jury has last passed upon them." United States v. Fisher, 3 F.3d 456, 462 (1st Cir.1993) (quoting Dunn, 758 F.2d at 35) (internal quotation marks omitted). When the facts proved at trial differ from those alleged in the indictment, the indictment has been constructively amended. Id. Constructive amendment is per se prejudicial and is grounds for reversal of a conviction. Dunn, 758 F.2d at 35.

The second superceding indictment charged that

[f]rom a time unknown to the Grand Jury, but at least by in or about April of 1998, and continuing thereafter until September of 2001, in the District of Massachusetts and elsewhere, . . . PIERRE . . . did knowingly and intentionally conspire and agree with [Mickens and] others known and unknown to the Grand Jury[] to distribute 50 grams or more...