U.S. v. Wood

• Decision Date: 03 December 1990
• Docket Number: No. 90-1599,90-1599
• Citation: 924 F.2d 399
• Parties: , 32 Fed. R. Evid. Serv. 69 UNITED STATES, Appellee, v. Darryl WOOD, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 399

924 F.2d 399

59 USLW 2525, 32 Fed. R. Evid. Serv. 69

UNITED STATES, Appellee, v. Darryl WOOD, Defendant, Appellant.

No. 90-1599.

United States Court of Appeals First Circuit.

Heard Dec. 3, 1990.

Decided Feb. 1, 1991.

William Maselli, Andover, Me., for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and James L. McCarthy, Asst. U.S. Atty., Portland, Me., were on brief, for appellee.

Before BREYER, Chief Judge, and ALDRICH and COFFIN, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

Defendant Darryl Wyatt Wood was charged in a two-count indictment with conspiracy to distribute and to possess with intent to distribute cocaine and with aiding and abetting possession with intent to distribute cocaine. See 21 U.S.C. Secs. 846, 841(a)(1). He was found guilty on the conspiracy count but acquitted on the aiding and abetting count. He asserts on appeal two reasons why his conviction should be reversed: the court's admission into evidence of a letter he wrote to his wife violated the privilege for confidential marital communications, and the court improperly admitted evidence of prior bad acts. He alternatively argues that his sentence should be reduced because the court wrongly considered unrelated uncharged conduct in calculating his offense level under the Sentencing Guidelines. We affirm the conviction, but remand for resentencing.

We shall not present a lengthy recitation of facts at the outset of our opinion, but instead shall discuss those facts relevant to defendant's individual arguments as necessary for our analyses of those claims. Indeed, with respect to plaintiffs' two arguments for reversal, we see no need to do more than respond briefly to defendant's claims and therefore choose to provide only the barest of factual background.

I. Prior Bad Acts

Defendant claims that the court erred by allowing into evidence testimony concerning drug transactions in which he allegedly participated some months before the charged incident. This argument is without merit. Wood's defense rested substantially on the claim that he was uninvolved with his wife's drug dealing business, and that he simply made personal use of cocaine. Evidence showing a pattern of involvement in previous drug distribution activity was admissible under Fed.R.Evid. 404(b) as evidence of his knowing participation in the charged scheme. See, e.g., United States v. Latorre, 922 F.2d 1, 8 (1st Cir.1990); United States v. Ferrer-Cruz, 899 F.2d 135, 137-39 (1st Cir.1990) (citing First Circuit cases). See also Latorre, 922 F.2d at 8-9 (quoting United States v. Scelzo, 810 F.2d 2, 4 (1st Cir.1987) ("in a conspiracy prosecution, 'evidence of similar past crimes or wrongful acts may be especially appropriate' because in a conspiracy case 'knowing participation and intent is an issue of crucial import' ")).

Pursuant to Fed.R.Evid. 403, the district court determined that the probative value of this evidence outweighed the danger of unfair prejudice. We review that determination only for abuse of discretion. See Ferrer-Cruz, 899 F.2d at 138; United States v. Dworken, 855 F.2d 12, 28 (1st Cir.1988). We find no abuse. The court carefully performed the requisite balance, see Tr. II-85-86, and its conclusions are unassailable. Moreover, the court gave lengthy limiting instructions to the jury both when the evidence was introduced and during the charge at the conclusion of the trial. Defendant is not entitled to a new trial on this basis.

II. Marital Communications Privilege

Defendant argues that the court should not have allowed into evidence a letter he wrote to his wife, Sharon Thamert Wood, when both were in jail after their arrests for the crimes at issue in this case. Of particular concern to Wood is his statement in the letter that "you didn't get into this alone." Thamert, who entered into a plea bargain with the government and was its main witness against her husband, turned the letter over to the prosecution on the first day of Wood's trial. In an effort to prevent Thamert from testifying about the letter, Wood invoked the common law marital communications privilege, which protects the confidentiality of private communications made between spouses during their marriage. See United States v. Picciandra, 788 F.2d 39, 43 (1st Cir.1986). The district court allowed the testimony on the ground that the privilege could be waived by one of the spouses.

We doubt that, as the law now stands, the letter was admitted properly. Caselaw makes it clear that one spouse can waive the privilege to refuse to appear as a witness against the other spouse, see Trammel v. United States, 445 U.S. 40, 53, 100 S.Ct. 906, 913, 63 L.Ed.2d 186 (1980). But the government cites no case holding that the privilege barring disclosure of confidential communications between spouses may be waived over the objection of the non-testifying spouse. Recent cases assume the continuing vitality of the communications privilege. See Picciandra, 788 F.2d at 43; United States v. Ammar, 714 F.2d 238, 258 (3rd Cir.1983). In addition, we question the government's theory that the letter fell outside the marital privilege because it "pertained to ongoing or future criminal activity involving both spouses," Ammar, 714 F.2d at 257. The letter was written after both spouses' arrests and, consequently, after the conclusion of the alleged conspiracy between them. ¹

In any event, we need not dwell on the applicability of the privilege because we conclude that even if the letter was admitted improperly it amounted to no more than harmless error. Where, as here, the asserted error is not of constitutional magnitude, reversal is required only if the miscue " 'affect[ed] substantial rights,' " United States v. Ladd, 885 F.2d 954, 957 (1st Cir.1989) (quoting Fed.R.Crim.P. 52(a)).

Put another way, a new trial is unnecessary if it can be said "with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). As we have recently observed, "the Kotteakos 'fair assurance' standard is satisfied if it is 'highly probable' that the challenged action did not affect the judgment." United States v. Hernandez-Bermudez, 857 F.2d 50, 53 (1st Cir.1988) (citations omitted).

Id.

We are confident that the challenged letter did not have a substantial impact on the trial. The critical statement--"you didn't get into this alone"--is by no means a direct and dramatic "caught-with-the-goods" kind of admission and, indeed, could be interpreted to refer to the participation of Thamert's cocaine sources or her distributor rather than to Wood. The letter was introduced on cross-examination in a low-key fashion such that it was not likely to elicit particular attention from the jurors.

Moreover, the objective evidence implicating Wood in the charged conspiracy, which transpired between April 13 and 15, 1988, was solid. Phone records documented that a series of calls were made from Wood's motel in Virginia during the night of April 13th. Two of these calls were made to Thamert and two were made to a drug supplier named Alonzo. Wood and Thamert met the next day in New York, where Thamert obtained the drugs that were seized in Maine the following day. Whether or not Wood directly procured the cocaine--as Thamert testified and Wood denies--the timing of the phone calls and the New York trip is strong evidence of Wood's involvement in the conspiracy to obtain drugs for Thamert to distribute. The jury, moreover, properly was entitled to consider Wood's participation in previous drug transactions in deciding whether he played a role in the April conspiracy.

In light of the other evidence and the ambiguous content of the challenged letter, together with its understated presentation to the jury, we believe it highly probable that the letter had no effect on the judgment. We therefore conclude that if the court erred in admitting the letter, such error was harmless.

III. Relevant Conduct for Sentencing

The Sentencing Guidelines operate in most narcotics cases so that a defendant's base offense level--the foundation for the sentence--is determined not by the amount of drugs involved in the charged transaction but by the total amount of drugs involved in all transactions "that were part of the same course of conduct or common scheme or plan as the offense of conviction," whether or not charged in the indictment. U.S.S.G. Sec. 1B1.3(a)(2). See United States v. Sklar, 920 F.2d 107, 110 (1st Cir.1990); United States v. Blanco, 888 F.2d 907, 908-11 (1st Cir.1989).

In this case, the conspiracy for which Wood was convicted involved 3.2 ounces of cocaine. The district court found that the relevant amount for sentencing, however, was 15.4 ounces based on Wood's participation in four other transactions that formed part of a common scheme extending from November 1987 to April 1988. The court specifically adopted the facts concerning the four additional transactions as set forth in Wood's presentence investigation report (PSI), and it stated that its findings were based on the evidence adduced at trial. The 15.4 ounces resulted in a base offense level of 24, which for Wood's criminal history category produced a sentencing range of 63 to 78 months. Wood received a 78-month sentence.

Wood argues that the district court erred in concluding that the four other transactions described in the PSI were part of the same common scheme as the charged transaction. He claims that each was a distinct "course of conduct" because significant differences existed from transaction to transaction: the sources varied, his involvement varied and the methods for transporting the cocaine from New York to Maine varied. Moreover, he claims that his participation in the other transactions was not established...