USA v. Kinsella

• Decision Date: 14 October 2010
• Docket Number: No. 09-1201.,09-1201.
• Citation: 622 F.3d 75
• Parties: UNITED STATES of America, Appellee, v. Arthur Michael KINSELLA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

622 F.3d 75

UNITED STATES of America, Appellee,

v.Arthur Michael KINSELLA, Defendant, Appellant.

No. 09-1201.

United States Court of Appeals,First Circuit.

Heard June 10, 2010.

Decided Oct. 14, 2010.

Tina Schneider, for appellant.

Renée M. Bunker, Assistant United States Attorney, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

Before LIPEZ, HOWARD, and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

Using standard investigative techniques-including informants, controlled drug buys, and tape-recorded conversations-law enforcement agents uncovered an OxyContin-selling conspiracy centered in Maine. A morphine-like narcotic, OxyContin is an oxycodone-based product often prescribed to treat chronic pain. Putting the operation out of business, agents arrested Arthur Michael Kinsella, a Canadian-based dealer who had smuggled OxyContin into Maine. Later released on bail, Kinsella skipped a re-arraignment hearing and so became a fugitive from justice. Shipped back to Maine by Canadian authorities, Kinsella faced charges of conspiring to possess and distribute oxycodone, possessing oxycodone with intent to distribute, and willfully failing to appear in court as required. See 21 U.S.C. §§ 846 and 841(a)(1), and 18 U.S.C. § 3146(a)(1).

Acting on Kinsella's motion, Judge (now Chief Judge) Woodcock severed the oxycodone counts from the bail-jumping count for trial purposes. After separate juries convicted Kinsella across the board, Judge Woodcock sentenced him to 97 months in prison and 36 months of supervised release. Kinsella now challenges his convictions and sentence on several fronts. For openers he argues that multiple instances of prosecutorial misconduct deprived him of his fair-trial rights. The first incident revolves around the prosecutor's unobjected-to questioning of a cooperating witness, Christopher Hitchcock. Caught pushing OxyContin for Kinsella, Hitchcock cut a deal with the government, concluded his case on favorable terms-Judge Woodcock sentenced him to 24 months, well short of the 20-year statutory maximum-and testified against Kinsella at the drug trial. Kinsella's lawyer aggressively confronted Hitchcock on cross-examination, using the plea agreement and light sentence to attack his credibility. During the government's redirect, however, Hitchcock revealed that Judge Woodcock had sentenced him. Speculating that jurors hearing this must have concluded that Judge Woodcock had already found Hitchcock credible-why else would he have imposed such a “lenient” sentence?-Kinsella insists that justice demands that he get a new trial on the drug counts. He also asserts that certain unobjected-to comments by prosecutors during closing arguments warrant reversal on plain-error review. Turning to sentencing, Kinsella contends that Judge Woodcock erred in his drug-quantity calculation. After a studied review of the briefs and the record, we affirm Kinsella's convictions and sentence.

BACKGROUND

We present the facts in the light most favorable to the guilty verdicts, consistent with record support. See, e.g., United States v. Bunchan, 580 F.3d 66, 67 (1st Cir.2009).

How the Charges Arose

The OxyContin conspiracy

In December 2003, agents with the federal Drug Enforcement Administration (DEA) heard that Gregory Panther was selling Canadian-made OxyContin pills in Maine. Hoping to work their way up the drug-distribution ladder, agents had an informant make a controlled buy from Panther in March 2004. Panther's actions led to his arrest in June 2004-an arrest that also netted Panther's dealer, Richard Hopkins.

Deciding to cooperate, Hopkins identified Christopher Hitchcock as his supplier and said Hitchcock had a Canadian supplier. At the agent's request, Hopkins made a series of recorded calls to Hitchcock in the fall of 2004. Speaking in code, Hopkins asked Hitchcock for all the OxyContin that he could get. Hitchcock tracked down Kinsella, got 90 OxyContin pills, and sold them to Hopkins in December 2004. Each pill had a “CDN” stamp on one side (indicating that it had been manufactured in Canada) and an “80” mark on the other (suggesting that it was an 80-milligram tablet).

His interest piqued, Fred Luce, a DEA task-force member, then subpoenaed Hitchcock's phone records. Perusing the papers, Luce noticed a lot of calls on the day of the controlled buy between Hitchcock and Kinsella, often following calls between Hopkins and Hitchcock. Hopkins later asked Hitchcock for more pills, and Hitchcock called Kinsella to score some more. The deal never happened, however, because agents arrested Hitchcock in February 2005.

Seeing the writing on the wall, Hitchcock agreed to help the government arrest and convict Kinsella. Hitchcock had known Kinsella for years. They both frequented a Bangor, Maine racetrack, and they trusted each other. Hitchcock had even bailed Kinsella out of a previous scrape with the law.

For a year to a year and a half before his February 2005 arrest, Hitchcock served as a go-between for Kinsella and Hopkins. Every 3-6 weeks, Hitchcock got 90-180 pills from Kinsella (his sole supplier) and sold them to Hopkins (his sole customer) at around $34 a pill. Conceding that he had trouble remembering exact dates, Hitchcock said that sometimes more than 6 weeks passed between transactions, and that one time Kinsella handed him 270-300 pills to sell. Turning the drug money over to Kinsella, Hitchcock occasionally got $100-$200 and a free meal for his work.

With Hitchcock on board, DEA agents contacted the Royal Canadian Mounted Police to see what information they had on Kinsella. Getting his Canadian license plate number, agents pieced together that Kinsella's minivan had crossed the border into Maine a couple of hours before the December 2004 Hitchcock-Hopkins drug deal. Phone records revealed that Kinsella and Hitchcock had called each other right around the time the deal transpired. That is not surprising-they called each other a lot, 79 times, in fact, between July 2004 (right around the time Hopkins fingered Hitchcock as his supplier) and February 2005 (when agents arrested Hitchcock). Agents had Hitchcock call Kinsella over the next month or so to set up another deal. During these recorded conversations, the two used code words. “Birthday party” meant drug deal. “More people” meant more pills. “How much a dinner plate?” meant how much per pill.

Looking to do another deal in March 2005, Kinsella asked Hitchcock on tape whether it was “cool or what.” “Yeah,” Hitchcock said, “should be no problem.” “I assume there's going to be 90 or 100 at most,” Kinsella said later. “We got to go to 34, though,” he added. Hitchcock and Agent Luce knew what Kinsella was doing: he was confirming that he would hand Hitchcock 90-100 OxyContin pills to sell at a price of $34 per pill. Convinced that they had a meeting of the minds, Kinsella told Hitchcock that they should meet up at a Bangor Burger King at 8 p.m. on March 19.

Armed with this information, the DEA asked local police to help nab Kinsella before he got to the Burger King. At about 7:45 p.m. on March 19, a police officer spotted Kinsella's minivan, saw him tailgating another vehicle, and pulled him over. Admitting to the moving violation, Kinsella told the officer he had come from Canada to pick his sister up at the Bangor airport. In fact, his sister had left Maine and flown back home some 14 hours earlier. Kinsella also said that he had no illegal drugs and was not taking any prescription medicines. A consented-to search of his minivan, however, turned up a leather organizer tucked in between the front seats. Finding a prescription bottle in Kinsella's name inside, the officer counted 100 green pills, each marked “CDN” on one side and “80” on the other. Doing an about-face, Kinsella now said that the pills were his. He also handed over his cell phone, which had Hitchcock's number saved in the address book.

Arrested and booked that night, Kinsella wound up in jail. Calling his mother, Kinsella asked her to give Hitchcock's phone number to his brother, Rick Kinsella. “[T]ell Rick” to “tell [Hitchcock] what happened,” Kinsella said. Kinsella apparently wanted Hitchcock to bail him out. Calling Rick the next day, Kinsella heard that no one had gotten in touch with Hitchcock. “[D]on't call him no more,” Kinsella told Rick. “[H]e wouldn't have the money to bail me out anyway.” Kinsella's jailers recorded each call.

A magistrate judge eventually released Kinsella on personal recognizance in April 2005. The release order forbade Kinsella from leaving Maine, required him to report to a pretrial services officer (PSO), and commanded him to appear at scheduled proceedings. The order also alerted him to the penalties he might incur if he violated these terms. Driving all this home at a meeting three days later, PSO Wade Maddox gave Kinsella a business card with contact information and told him to check in with probation every week.

That same month, a federal grand jury indicted Kinsella on two counts. Count 1 charged that Kinsella conspired to possess and distribute oxycodone-based substances from January 2003 to June 2004. See 21 U.S.C. §§ 841(a)(1) and 846. Count 2 alleged that Kinsella possessed with intent to distribute oxycodone-based substances on March 19, 2005-the date of his arrest. See 21 U.S.C. § 841(a)(1). Kinsella pleaded not guilty at his arraignment.

The bail-jumping

Claiming that he needed to return to Canada for medical treatment, Kinsella asked the magistrate judge in May 2005 to modify his release conditions so he could live there. He promised that he would not miss any court hearings. Releasing him on $5,000 bail, the magistrate judge still required Kinsella to appear at scheduled proceedings and to stay in touch with the PSO. Kinsella promised he would but did not keep his word: after the grand jury returned a superseding indictment extending the conspiratorial period to December 2004, Kinsella...