United States v. Gordon

• Decision Date: 07 November 2017
• Docket Number: No. 16-1896,16-1896
• Citation: 875 F.3d 26
• Parties: UNITED STATES of America, Appellee, v. Andrew GORDON, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

875 F.3d 26

UNITED STATES of America, Appellee,

v.Andrew GORDON, Defendant, Appellant.

No. 16-1896

United States Court of Appeals, First Circuit.

November 7, 2017

Robert L. Sheketoff, Boston, MA, for appellant.

Rachel Y. Hemani, Assistant United States Attorney, with whom William D. Weinbreb, Acting United States Attorney, was on brief, for appellee.

Before Barron, Selya and Lipez, Circuit Judges.

SELYA, Circuit Judge.

After attempting unsuccessfully to hire a hit man to murder his wife (the person whom he asked to facilitate the matter tipped off the authorities and the hired gun turned out to be an undercover state trooper), defendant-appellant Andrew Gordon then sought to procure the services of a second hit man to kill both the tipster and the imposter. That attempt, too, came to naught. This time, though, federal authorities charged the defendant with five counts of using facilities of interstate commerce in connection with the hiring of a person to commit a murder. See 18 U.S.C. § 1958(a).

The defendant was tried and convicted on all counts, and the district court sentenced him to what amounted to twenty years' imprisonment. He now appeals, raising both an evidentiary issue and a question of first impression in this circuit concerning the appropriate unit of prosecution under the statute of conviction. After careful consideration, we hold that the district court did not commit reversible error with respect to the challenged evidentiary ruling and, thus, we affirm the defendant's conviction. We further hold, however, that the appropriate unit of prosecution under 18 U.S.C. § 1958(a) is a single plot to murder a single individual, not the number of times that the facilities of interstate commerce were used. Because the government charged the defendant in separate counts for separate uses of the facilities of interstate commerce without regard to the number of plots or the number of intended victims, we direct that the counts be merged, vacate the defendant's sentence, and remand for resentencing.

I. BACKGROUND

We briefly rehearse the facts and travel of the case. Because the defendant does not challenge the sufficiency of the evidence, we present the facts in a balanced manner. See United States v. Cox, 851 F.3d 113, 118 n.1 (1st Cir. 2017).

In late 2014, the defendant was being detained at the Billerica House of Corrections while awaiting trial in state court for the solicitation of his wife's attempted murder. While there, he met a fellow inmate, whom we shall call CW (an acronym for "cooperating witness"). CW had a lurid history of prior convictions for violent crimes and was himself awaiting trial on charges of aggravated rape and assault with a dangerous weapon.

The defendant asked if CW knew anyone who "had the balls to kill." CW replied that he had a cousin who would be willing to kill in exchange for money. Over the course of several ensuing conversations, the defendant disclosed that he wanted two individuals murdered: the state trooper who had posed as a hit man in the defendant's botched attempt to rid himself of his wife and the person who had reported the defendant's scheme to the authorities. These persons, if not eliminated, would likely be key witnesses for the prosecution in the defendant's forthcoming criminal trial, and the defendant gave CW written information concerning both of them.

Lightning sometimes does strike twice, and the defendant was betrayed a second time. CW squealed and coordinated with law enforcement personnel as they recruited an undercover agent to pose as CW's cousin (the erstwhile hired gun). The government equipped its ersatz hit man with a post office box and a telephone number in New Hampshire, which were designed to serve as channels of communication with the defendant.

At that juncture, CW introduced the defendant to the undercover agent masquerading as CW's fictional cousin/hit man. During a period of nearly four months, the defendant engaged in numerous mail exchanges with the fake hit man and used intermediaries to relay messages to the hit man by telephone. In these communications, the men discussed the logistics of the planned slayings. The government gathered footage of the defendant receiving and responding to letters from the phony hit man and recordings of the defendant speaking on the telephone in connection with the plot. When the trap was sprung and the defendant was charged with violating section 1958(a) (known colloquially as the "murder-for-hire" statute), two of these mailings and three of the telephone calls comprised the building blocks for the five counts of the indictment: each count represented a discrete use of the facilities of interstate commerce in furtherance of the plot to carry out the anticipated killings.

At trial, the defendant did not testify. His counsel argued, though, that the defendant had been putting on a show: he had only been pretending to need the services of CW's cousin in order to curry favor with CW. He had been afraid of CW, and this fear motivated him to feign participation in the murder-for-hire plot.

The jury proved unreceptive to this tall tale. After a week-long trial, it found the defendant guilty on each of the five counts charged in the indictment. The district court sentenced the defendant to what amounted to twenty years' imprisonment, to run concurrently with a state-court sentence for the attempted murder of his wife that he had already begun serving. This timely appeal followed.

II. ANALYSIS

Ably represented, the defendant advances two claims of error. We start with his assertion that the district court erred in admitting impermissible character evidence. We then mull his assertion that the government employed the wrong unit of prosecution in its charging document. Finding this second claim of error to have merit, we conclude by discussing the appropriate remedy.

A. The Challenged Evidentiary Ruling.

The Billerica House of Corrections (where the defendant was detained) is operated under the aegis of the Middlesex County Sheriff's Department. The defendant argues that the district court should not have allowed the following testimony from George Karelis, a Sheriff's Department employee responsible for investigations within the House of Corrections:

Prosecutor: And in that capacity, did you become familiar with the troublemakers that were inmates at the jail?

Karelis: Yes.

Prosecutor: Did the name of [CW] ever cross your desk?

Defense Counsel: Objection, your honor.

The Court: Overruled.

Karelis: As a troublemaker?

Prosecutor: Yes.

Karelis: No, sir.

In the defendant's view, this testimony offended Federal Rule of Evidence 404(a)(1), which generally proscribes the admission of character evidence for the purpose of showing "that on a particular occasion the person acted in accordance with the character or trait."

When claims of error are preserved, rulings admitting or excluding evidence are ordinarily reviewed for abuse of discretion.¹ See United States v. Iwuala, 789 F.3d 1, 5 (1st Cir. 2015) ; United States v. Gobbi, 471 F.3d 302, 311 (1st Cir. 2006). When claims of error are not preserved, though, such rulings are reviewed only for plain error. See United States v. Bailey, 270 F.3d 83, 87-88 (1st Cir. 2001).

We repeatedly have held, consistent with the express command of Federal Rule of Evidence 103(a)(1)(B), that "objections to evidentiary proffers must be reasonably specific in order to preserve a right to appellate review." United States v. Holmquist, 36 F.3d 154, 168 (1st Cir. 1994) ; see Bailey, 270 F.3d at 87-88. The defendant's bald objection could not have been less specific: no attempt was made to state the grounds for the objection. Nor does the context suffice to rescue the objection. Although surrounding circumstances sometimes may dress an otherwise bare objection and make the reason for the objection obvious, see Fed. R. Evid. 103(a)(1)(B), that principle does not apply where, as here, the record suggests a multitude of possible grounds for the objection. For example, the objection could have been predicated on concerns about relevancy, concerns about the form of the question, concerns about the ambiguity inherent in the term "troublemaker," concerns about the balance between probative value and unfair prejudicial effect, or concerns about something entirely different. Rule 103(a)(1)(B) is intended to shield a trial judge from the need to engage in such guesswork, see United States v. Vargas, 471 F.3d 255, 262-63 (1st Cir. 2006), and the rule should have been complied with in this instance. Consequently, we hold that the objection was not duly preserved and, thus, review is for plain error.

To prevail on plain error review, the defendant must show: "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). The party asserting that an error was plain must carry the burden of establishing that the claimed error satisfies each element of this standard. See United States v. Bramley, 847 F.3d 1, 5 (1st Cir. 2017) ; United States v. Vega Molina, 407 F.3d 511, 521 (1st Cir. 2005). Since the defendant's claim so readily fails on the third element of the analysis, we need not discuss the other elements.

As we have explained, erroneously admitted evidence may be said to have affected a defendant's substantial rights only if the admission of that evidence was likely to have influenced the outcome of the trial. See Bramley, 847 F.3d at 7 ; United States v. Padilla, 415 F.3d 211, 221 (1st Cir. 2005) (en banc). Here, the contested exchange is but a pebble in the avalanche of compelling evidence introduced against the defendant at trial. Although CW was an important participant in the government's evidence-gathering process, the bulk of the government's proof was captured by either video or audio...