United States v. Jordan ( 2022 )

United States Court of Appeals
For the First Circuit
No. 20-2187
UNITED STATES,
Appellee,
v.
EDWARD CANTY, III, a/k/a Demo,
Defendant, Appellant.
No. 21-1327
UNITED STATES,
Appellee,
v.
MELQUAN JORDAN, a/k/a Squirrel,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Lynch, Selya, and Kayatta,
Circuit Judges.
,
Luke Rosseel for appellant Edward Canty, III.
Julia Pamela Heit for appellant Melquan Jordan.
Benjamin M. Block, Assistant U.S. Attorney, with whom
Darcie N. McElwee, U.S. Attorney, and Julia M. Lipez, Assistant
U.S. Attorney, were on brief, for appellee.
June 23, 2022
LYNCH, Circuit Judge. Edward Canty, III and Melquan
Jordan distributed, from their individual independent supplies,
heroin to users in Portland, Maine -- Canty for around four months
in 2016 and Jordan from the summer of 2015 to early 2017. They
were prosecuted federally, not on distribution charges, but on
charges that they had conspired with each other and several other
individuals to distribute and possess with intent to distribute
both heroin and cocaine base,1 21 U.S.C. §§ 841(a)(1), (b)(1)(B),
846. Canty and Jordan maintain that they were independent drug
dealers who did not conspire with one another.
At trial, the prosecutor made four types of improper
comments at different points during the opening statement, at
closing, and at rebuttal. Each built upon the others and
introduced improper themes. The government has conceded that each
of these comments was improper, though the defendants did not
object at trial to the statements. At the close of the
government's case, the defendants moved under Rule 29 for judgments
of acquittal on the basis of insufficiency of the evidence of
conspiracy. See Fed. R. Crim. P. 29(a). The trial judge took the
acquittal motions under advisement, eventually denying the motions
after trial. The jury returned a verdict of guilty against both
Canty and Jordan.
1 Cocaine base is also known as crack cocaine, or crack.
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Five months after the jury convictions, the defendants
moved for a new trial based on the improper comments by the
prosecutor. Applying plain error review, the trial judge held
that the first three prongs of the plain error standard were met.
He denied the motion, however, on the fourth prong, finding that
there was no miscarriage of justice because the evidence of guilt
was "overwhelming." United States v. Jordan, No. 18-cr-00143,
2020 WL 5995585, at *15-16 (D. Me. Oct. 9, 2020).
Of the many issues raised by each of the two defendants
in these consolidated appeals, we reach only the appeals of the
motions for acquittal on the basis of insufficiency of the evidence
and the denial of the motions for a new trial. As to the
insufficiency claim, we disagree with the defendants. We also
conclude that the district court's denial of the new trial motions
was plain error and vacate and remand for proceedings consistent
with this opinion.
I.
In March 2019, a superseding indictment issued against
six individuals, including Canty, Jordan, Akeem Cruz, and Lamale
Lawson, for conspiracy to distribute and to possess with intent to
distribute controlled substances. All defendants other than Canty
and Jordan pleaded guilty. A second superseding indictment then
issued against Canty and Jordan for conspiracy to distribute and
to possess with intent to distribute heroin and cocaine base, with
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100 grams or more of a mixture or substance containing heroin
involved in the conspiracy. The case proceeded to trial.
At trial, the government sought to prove that Canty and
Jordan had conspired with each other and with others to sell heroin
and crack cocaine from three separate locations, known as trap
houses, in the Portland, Maine area between the summer of 2015 and
February 2017. While Jordan was in the area for the entire period,
Canty was only present for around four months in 2016. The
government called eight witnesses in support of its case. One
witness who the prosecution anticipated would testify, Lamale
Lawson, exercised his Fifth Amendment right against self-
incrimination and did not provide testimony.
In the summer of 2015, Jordan was in Portland, Maine and
reconnected with old friends, siblings James Osborne and Jessica
Tweedie, telling Osborne that he wanted to "see what was going on
in the neighborhood," which Osborne took to mean he wanted to sell
drugs there. At the time, Osborne was using heroin heavily and
occasionally using crack cocaine. Osborne began recruiting
customers for Jordan to sell heroin to, and in return Jordan gave
Osborne heroin for his personal use.
Tweedie had a house in the Redbank housing complex at
that time. Tweedie would sometimes give Jordan and Osborne rides
to make drug sales, and sometimes would give Jordan rides to New
York to resupply his drug stores. Jordan eventually began staying
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at Redbank and had a sexual relationship with Tweedie. Tweedie
used crack but testified that she did not get it from Jordan, and
she did not use heroin from Jordan. Jordan would also package and
sell drugs at Redbank.
Akeem Cruz, a friend of Jordan's from New York, started
selling drugs at Redbank in 2016. Cruz stored his drugs at
Redbank. He and Jordan would sell at the same time from their
individual stashes, and they did not share customers. Lawson, who
was friends with Jordan, also occasionally sold drugs at Redbank,
though Tweedie told him not to.
In late 2015, Osborne needed heroin but Jordan was out
of town, so Jordan sent him to Lawson, and Osborne got heroin from
Lawson at an apartment on Sherman Street. Osborne continued to
get drugs from Lawson, thereafter at an apartment located on Oak
Street which was leased by a man named Lance Lombardi. Lombardi
had previously allowed multiple drug dealers to deal out of this
apartment, but eventually kicked them out. Osborne testified that
after the previous dealers were kicked out, Lawson was "one of the
dealers I brought in" to the Oak Street trap house. Osborne
testified that Jordan and Lawson came in together to take over Oak
Street and that he had been a part of a conversation with both of
them about taking it over. He also testified that Lawson dealt
from Oak Street first, then Jordan began dealing there as well a
few months later, after Lawson told Osborne to go pick up Jordan
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in Boston and bring him to Oak Street. Jordan and Lawson each
paid Lombardi in drugs to allow them to use his apartment to deal
from. Osborne recruited customers for Lawson and Jordan, and they
gave him drugs in exchange. When Lawson and Jordan were both at
the Oak Street apartment, they would take turns selling drugs to
customers Osborne recruited, from their separate stashes. Osborne
also answered the door to make sure that only people known to him
could get into the apartment. Jordan was also selling from Redbank
during this period.
Cruz did not deal from the Oak Street apartment, though
on one occasion he gave Lombardi drugs to sell there on Cruz's
behalf. Lombardi and Osborne, however, violated those
instructions and used the drugs Cruz gave Lombardi instead of
selling them.
In retaliation for this breach of instructions, Cruz and
Canty -- who by this time had arrived in Maine -- assaulted Osborne
at the Oak Street apartment; Canty held Osborne down while Cruz
hit and kicked him. A juror could infer that Cruz had recruited
Canty to assist him in the assault. Osborne testified that Lawson
had told Cruz and Canty that they could find Osborne at Oak Street.
After the assault, Canty began dealing drugs at Oak Street, around
the same time Jordan began dealing there. Lombardi was eventually
evicted from the apartment because of all of the foot traffic.
After Lombardi was evicted from Oak Street, Jordan began
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selling heroin out of Amy Santiago's Grant Street apartment.
Santiago was a customer with whom Jordan had a sexual relationship.
Santiago would run drugs for Jordan and allowed him to sell from
her apartment, and he gave her heroin in exchange. Lawson began
coming to the Grant Street apartment behind Jordan's back; when
Jordan found out Lawson had been there, he became angry. They
argued several times about Lawson's presence in the apartment, and
Santiago told Lawson to leave, but Lawson continued to come and
sell drugs at Grant Street.
Osborne and Canty also went to Grant Street when Jordan
was not there, and Canty told Santiago that he would give her
heroin in exchange for her making drug runs. In all, Santiago
testified that Canty came to Grant Street to sell heroin four or
five times. Santiago also testified that she went to Redbank, and
Tweedie told Santiago that she had heroin to sell from Canty.
Tweedie, however, testified that she never sold any drugs for
Canty, Cruz, or Lawson.
In late 2016, Canty began selling heroin at Redbank,
where Jordan had already been selling drugs. Canty and Jordan
used both the Redbank and Grant Street apartments during the same
time period. Osborne testified that during the time that Canty
was in Maine, Canty, Cruz, and Jordan all slept at Redbank.
Tweedie, however, testified that Canty was not staying at Redbank
and that Jordan slept there occasionally but stayed at Grant
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Street. For her part, Santiago testified that Lawson, Canty, and
Jordan stayed at Redbank.
A customer named Tanya Johnson testified at trial that
she had come from South Carolina to Maine in September 2016. A
friend of hers named Alicia took her to Grant Street to get heroin.2
When Johnson went to Grant Street at first, she would wait outside
and Osborne would bring what was supposed to be heroin to her,
which Johnson said was "sheetrock," i.e., not heroin or very low-
quality heroin. After this occurred a few times, Johnson got
Jordan's phone number and began purchasing heroin from him inside
Grant Street. At Grant Street, Johnson would buy either from
Jordan or from the woman who lived there whose name she did not
know, presumably Santiago. Johnson began giving Jordan rides
around Portland, sometimes to drug transactions, in exchange for
heroin. On one occasion, someone called Johnson from Jordan's
phone number and asked her to give someone a ride from Grant
Street. When she pulled up, Canty3 came out, and she gave him a
ride to Redbank in exchange for heroin. Johnson then began buying
2 Johnson later suggested that Alicia had procured the
drugs and had told her that she had gotten them from Grant Street,
rather than taking her there.
3 Johnson referred to Canty as "Debo," unlike the other
witnesses, who called him "Demo."
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heroin from Tweedie4 at Redbank. Johnson testified that Tweedie
indicated that Canty was her supplier, and on one occasion she
purchased heroin from Tweedie in Canty's presence.
In December 2016, Johnson was pulled over and law
enforcement found heroin residue in a bag on the floorboard of her
vehicle. She agreed to become a confidential informant and to
perform controlled drug buys. Johnson testified that she did three
controlled buys: first, she called Jordan and met him at Grant
Street and bought heroin from him; second, she called Jordan again
and he sent someone else whom Johnson did not know, and the
substance they delivered was not heroin; and third, she called
Tweedie and got heroin from her at Redbank, where they were alone
in the house. Johnson testified that she did not call Canty to
make a controlled buy. Earlier in the same line of questioning,
however, Johnson had testified "I think the first transaction was
with [Jordan] and the second was with [Canty]."
Johnson's testimony about the controlled buys conflicted
directly on several points with the testimony of Jonathan Stearns,
a South Portland Police Detective assigned to the Maine Drug
Enforcement Agency. Stearns testified that Johnson had made four,
not three, controlled purchases, and none of them were from Jordan.
4 Johnson did not know Tweedie's name, but identified the
woman she was referring to from a photo of Tweedie.
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He testified that he was surprised to learn Johnson had testified
that she had made controlled buys involving Jordan. The four buys
that Stearns described were: Johnson met with Tweedie on December
19, 2016 on Valley Street to purchase heroin, though Tweedie
actually gave her gabapentin; Johnson purchased heroin on December
20 from Tweedie in a restaurant parking lot; on December 22,
Johnson made a controlled purchase of heroin from Tweedie at
Redbank; and on December 22, Johnson called Canty's number to
arrange a purchase and was instructed to go to a location where
she met with Santiago, who gave her heroin. Recall Johnson had
testified that she did not call Canty for any of the controlled
buys.
On December 22, 2016, Maine Drug Enforcement Agency
agents raided Redbank, seizing heroin and crack cocaine and
arresting Tweedie. Tweedie testified that she had not placed drugs
in the bedroom where law enforcement found them. She testified
that earlier that day Canty had been at the house carrying a black
plastic bag, and he had told her he was "grabbing his stuff to
leave" and asked to use the bathroom, which was upstairs. FBI
Special Agent Patrick Clancy, who was doing surveillance that day
at Redbank, testified that he saw Canty entering and exiting
Redbank with a paper bag.
Osborne, Santiago, and Canty were at Grant Street when
Tweedie's sister called to say that Tweedie had been arrested.
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Canty gave Santiago money, crack, and heroin that he had on his
person, and Osborne took Canty to an apartment on Sherman Street.
Canty left town.
After Canty left Maine, Jordan and Lawson continued to
sell heroin at Grant Street following the raid at Redbank. Some
time after the raid at Redbank, a Facebook video was taken that
showed Osborne, Jordan, and Lawson at Grant Street. In the video,
which the government showed to the jury, Jordan is seen assisting
Osborne in putting a tourniquet on his arm, and Osborne appears to
be already under the influence of heroin. Osborne testified at
trial that the tourniquet was "[s]o we [could] get a vein" to
inject heroin. Canty was not present in the video. The government
stipulated that the video took place after Canty had left Maine
and was no longer part of the alleged conspiracy, and the court
instructed the jury to consider the video evidence only in
connection with the government's case against Jordan, not Canty.
Law enforcement raided Grant Street in early 2017, at which point
Jordan and Lawson stopped selling heroin in Maine.
At the close of the government's case, Jordan and Canty
both made motions for judgment of acquittal under Rule 29, arguing
that the government had failed to prove a conspiracy existed. The
court took the motions under advisement and ordered briefing on
them. The prosecutor made a number of improper arguments in her
opening, closing, and rebuttal arguments, which we detail in
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section II, infra, and neither of the defendants objected to them.
After deliberating for about four hours, the jury
rendered its verdict on October 24, 2019, finding Jordan and Canty
guilty of conspiracy to distribute and to possess with intent to
distribute cocaine base and heroin. The jury found only Jordan
was guilty of conduct that involved 100 or more grams of a mixture
or substance containing a detectable amount of heroin.
On February 14, 2020, several months after the trial was
over, the district court heard argument on the defendants' motions
for acquittal. The judge stated that the issues presented by the
motions for acquittal were "particularly difficult and close."
The "crux of the issue," he explained, was whether the government
had proved the single conspiracy alleged in the indictment as
opposed to multiple conspiracies, or no conspiracy at all. The
standard of review the district court applied was "whether any
rational factfinder could have found that the evidence presented
at trial, together with all reasonable inferences viewed in the
light most favorable to the [g]overnment," established the
elements of a conspiracy beyond a reasonable doubt.
The district court found that the first element of a
single overarching conspiracy, a common purpose, was satisfied
because a reasonable juror could conclude that the defendants had
a common purpose in maintaining shared locations (albeit they were
apartments rented by others) to allow for the maintenance of a
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steady stream of customers and to keep a "relatively safe place to
sell drugs where their detection was minimized." The trial judge
likened the dealers to keepers of stalls at a flea market, selling
separate goods at a shared location for everyone's mutual benefit.
The second element, interdependence, the trial judge called a
"close call," but he ultimately ruled that it was met because the
dealers relied on one another for their shared trap houses to
function. He concluded that the final element, overlap, was met
because each dealer relied on Osborne to some degree to act as a
recruiter, and Tweedie and Johnson as drivers. In all, the
district court concluded, there was sufficient evidence under the
Rule 29(a) standard for a juror to conclude that there was a
meeting of the minds regarding a shared objective. The district
court denied the motions for acquittal.
II.
The defendants appeal the district court's denial of
their motions for acquittal. For purposes of reviewing the
district court's denial of the defendants' motions for acquittal,
we view the evidence in the light most favorable to the verdict.
See United States v. Merlino, 592 F.3d 22, 29 (1st Cir. 2010).
For substantially the reasons explained in section III, infra, we
find that there was sufficient evidence of a conspiracy for a jury
to convict the defendants (although we find that, due to the
prosecutor's improper statements, a new trial is warranted). These
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claims therefore fail. Because we reverse the district court's
denial of the defendants' motions for a new trial, we need not
address the defendants' various claims as to other errors at trial.
For purposes of reviewing the denial of the new trial
motion based on prosecutorial misconduct, we take a balanced view
of the evidence. See United States v. Rodríguez-De Jesús, 202
F.3d 482, 485 (1st Cir. 2000). At trial, the prosecution made a
number of improper arguments and comments, which led to a post-
trial motion for a new trial. Though the defendants had not
contemporaneously objected at trial, in March 2020, Canty filed a
motion for a new trial, which Jordan joined. See Fed. R. Crim. P.
33(a). They argued that they had been prejudiced by these improper
statements and that they met all four prongs of plain error review.
On October 9, 2020, the district court ruled on the defendants'
motion for a new trial.
Conducting plain error review, the district court found
that the prosecutor engaged in four improper arguments. It thus
found that there was error, the error was clear, and the error
prejudiced the defendants' substantial rights, so the first three
prongs of plain error review were satisfied. However, the district
court held that the fourth prong of plain error review -- whether
the errors seriously impaired the fairness, integrity, or public
reputation of judicial proceedings -- was not met. The district
court stated that the evidence against Jordan of an overarching
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conspiracy was "overwhelming," and the evidence against Canty was
"ample," so there was "little doubt that the jury would have
convicted the Defendants" without the improper statements.
Jordan, 2020 WL 5995585, at *15-16.
We set forth and consider the prosecutor's improper
statements.
1. Appeals to jury's emotions as conscience of the
community
The prosecutor from the very start cast Canty and Jordan
as cruel and greedy outsiders who came to Maine to distribute
illegal drugs to suffering Mainers. She began her opening
statement to the jury by asserting that the defendants were not
members of the Maine community. Rather, the prosecutor told the
jury, the defendants were greedy New Yorkers who "came here" to
Maine to "make easy money" off the backs of Mainers struggling
with addiction. She said:
As long as greed is stronger than compassion,
there will always be suffering. This case,
ladies and gentlemen, is about the greed of a
group of young men from the area of Brooklyn,
New York, who came here to make easy money
selling illegal drugs and the suffering of
many Mainers whose addictions helped make
those men money.
The prosecutor later drove home these points at the start
of her closing statement, reiterating that the defendants had come
to Maine from Brooklyn, New York in order to "exploit individuals
who are addicted to drugs that cause suffering, suffering inside
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their bodies." She referred to the testimony of the government's
witnesses about the effects of the drugs and "what suffering can
come from those drugs if they don't continue to use them,"
emphasizing again to the jury "the suffering of drug-addicted
individuals . . . in the greater Portland area."
The prosecutor took up the themes of exploitation and of
causing suffering once more in the rebuttal. There, she added
descriptions of what the defendants' go-betweens would go through
physically if they did not get drugs:
I suggest to you that this is ingenious model
for drug trafficking . . . . You find someone
who needs [heroin] because they will get
physically sick. They will vomit; they will
have diarrhea; they will get headaches; they
will be physically miserable if they don't get
that needle in their arm or they don't smoke
that pipe.
Indeed, the prosecutor stated that the "common thread" through the
government's witnesses was "that they were exploited by these two
defendants . . . to take the very thing that made them so
vulnerable and take advantage and make money[.]"
"[I]t is improper to appeal to the 'jury's emotions and
role as the conscience of the community.'" United States v.
Avilés-Colón, 536 F.3d 1, 24 (1st Cir. 2008) (quoting United States
v. Martínez–Medina, 279 F.3d 105, 119 (1st Cir. 2002)). It is
also improper to stress harm to a particular community caused by
drug dealing. United States v. Machor, 879 F.2d 945, 956 (1st
- 17 -
Cir. 1989) (finding improper prosecutor's statement that "[drugs]
are poisoning our community and our kids die because of this"
(alteration in original)). As the trial judge found, this set of
comments by the prosecutor was highly improper:
Here, the prosecutor's statements went beyond
the Defendants' profit motive by ascribing a
callousness to them based on, as the
prosecutor argued, "the suffering of many
Mainers whose addictions helped make those men
money." The prosecutor's emphasis on the
impact of drugs on "Maine," "many Mainers,"
and "the greater Portland area" improperly
called on the jury to consider the impact of
drugs on their community.
Jordan, 2020 WL 5995585, at *9 (citations omitted).
2. Arguments for conviction on the basis that
coconspirators were serving jail time
After defense counsel argued at closing that the
government's witnesses were unreliable for several reasons,
including because they testified in exchange for immunity, the
prosecutor argued on rebuttal:
[Three of the trap houses in the case] had
renters in them whose places were taken over
by these defendants and their
[co]conspirators. The people who had those
renting agreements did participate in this
conspiracy, we allege. And they all went to
jail. So we're here now to say it's [the
defendants'] turn.
[The alleged coconspirators] went to jail.
They didn't get a pass. They got immunity in
this chair from their statements being used
against them in the event the federal
government decided to charge them, too. But
they stood in that courthouse and they pled
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guilty and they went to jail. Jaden Brown
went to jail for 15 months. Jessica Tweedie
went to jail for seven months. And Amy
Santiago went to jail for seven to nine months
. . . . They didn't get a pass. Jessica
Tweedie was in jail while this guy . . . Mr.
Jordan, was trapping in Ms. Santiago's house,
because they talked on the phone while Ms.
Santiago and Mr. Osborne told you he was
bagging up drugs at 11 Grant Street and
welcoming customers all day long, while
Jessica Tweedie is sitting in jail, we argue
for Mr. Canty's drugs. None of those three
women got a pass. They got protection for
their statements being used against them here.
The prosecutor thus managed to convey at least the following:
(1) it was the defendants' "turn" to go to jail because other
coconspirators, including those who were addicted and had
purchased the heroin, had gone to jail; (2) these other
coconspirators who had gone to jail were mere renters of the
apartments while defendants, specifically Jordan, were using the
apartments as trap houses to package and sell drugs; and (3)
Jessica Tweedie, a drug user, was sitting in jail for Canty's
crimes.
The trial judge correctly found the prosecutor's
statements constituted an improper guilt-by-association argument.
While the government has some latitude in responding to arguments
made by defense counsel, see United States v. Foley, 783 F.3d 7,
22 (1st Cir. 2015), this rebuttal went beyond a fair response to
defense arguments. "A defendant is entitled to have the question
of his guilt determined by the evidence against him, not on whether
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a co-defendant or government witness has been convicted of the
same charge." United States v. Vázquez-Rivera, 407 F.3d 476, 484
(1st Cir. 2005) (quoting United States v. Dworken, 855 F.2d 12, 30
(1st Cir. 1988)); see also United States v. Landrón-Class, 696
F.3d 62, 71 (1st Cir. 2012) (finding improper an argument that
"suggest[ed] to the jury that, just as those individuals were held
responsible, now it is [defendant]'s turn"). The prosecutor's
argument also suggested to the jury that it was unfair that the
victims of the drug dealing, the addicts, had been jailed, while
their dealers were not. Further, the prosecutor argued that
Jessica Tweedie was in prison for Canty's crimes. As the trial
judge stated, the argument "improperly suggested to the jurors
that it was their duty to not only determine the Defendant[s']
guilt or innocence, but to also determine whether the Defendants
should go to jail." Jordan, 2020 WL 5995585, at *5. We agree
with the trial court's characterization.
3. Vouching
The prosecutor made further improper statements on
rebuttal. The defense at closing had argued that, although the
indictment charged a conspiracy to distribute both cocaine base
and heroin by these defendants, the prosecution had made no effort
to introduce any evidence of cocaine base conspiracy by either
defendant. Canty's attorney also argued in closing that evidence
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collected by the police "didn't add a thing." The prosecutor then
argued in rebuttal:
And it depends on which drug we're talking
about.
And I do want to address that really quickly,
and I'll try to stay on topic here. But our
job we take very seriously. It is to prove to
you that there was a conspiracy. The
conspiracy that these very hard-working agents
after three years found existed involved crack
cocaine and heroin. Some of the people
involved in the conspiracy only dealt with
heroin. They're sitting here before you.
Some of them dealt with crack cocaine. And
some of the people on this witness list who
were conspirators or just addicts who came
before you were going to talk about crack
cocaine. The conspiracy involved both
drugs. . . . But they don't both -- they
don't have to have dealt with both drugs for
you to find them guilty. You have to find
that they joined a conspiracy . . . .
And with all due respect to [defense counsel],
these agents did three years of work, and it
is evident in the exhibits that you saw. Those
grand jury transcripts they waved around were
hundreds of pages long. We didn't just throw
people up there that we met. . . .
So we spent three years carefully talking to
those people. So to say there's been no law
enforcement work is unfair, because this case
has revealed that these agents spent time with
people. They showed compassion for people who
had problems, they spent time with them, and
they made sure that there was corroborative
evidence for their stories.
These arguments, the district court held, went beyond permissible
rebuttal and were improper vouching for the credibility of the
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prosecuting agents and their witnesses. Jordan, 2020 WL 5995585,
at *7. We agree.
" A prosecutor improperly vouches for a witness when she
places the prestige of her office behind the government's case by,
say, imparting her personal belief in a witness's veracity or
implying that the jury should credit the prosecution's evidence
simply because the government can be trusted." Avilés-Colón, 536
F.3d at 25 (quoting United States v. Perez-Ruiz, 353 F.3d 1, 9
(1st Cir. 2003)). It "plainly cross[es] over into improper
vouching . . . when the prosecutor tells the jury that the
prosecutor takes personal responsibility or ownership of the case
and thus directly places the government's credibility at issue."
United States v. Vázquez-Larrauri, 778 F.3d 276, 284 (1st Cir.
2015).
Here, the prosecutor used "we" in describing what work
had been done to make this case. She emphasized that law
enforcement had put in three years of hard and serious work on the
case. She told the jury that "we spent three years carefully
talking to those people," that they "spent time with them," and
that law enforcement "made sure there was corroborative evidence
for their stories." She assured the jurors that "[w]e didn't just
throw people up there [on the witness stand] that we met." She
told the jury that law enforcement "showed compassion for people
who had problems." In total, these arguments conveyed to the
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jurors that the government witnesses in the case could be trusted
because of the hard work the police and the prosecution had put
into selecting and vetting them during the investigation. These
statements improperly "place[d] the government's credibility at
issue" by tying the witnesses' credibility to the hard work and
compassionate character of the police and prosecution. Vázquez-
Larrauri, 778 F.3d at 284. That the prosecutor was responding to
arguments by the defense does not rescue this line of argument,
because her statements went well beyond contentions by the defense
that the government had not provided any evidence of the defendants
dealing cocaine base and that the police's evidence did not add
anything.
4. Improper argument from video
The prosecutor's final improper argument was improper as
to Canty. When commenting on the video showing Jordan helping
Osborne apply a tourniquet to his arm, the prosecutor
mischaracterized this piece of evidence. At the end of rebuttal,
referring to both defendants, she stated "they'd help you put a
tourniquet on your arm if it meant that you were going to get what
you needed so that you could go back out and make another deal."
It is improper for the prosecution to make a statement "unsupported
by any evidence." United States v. Azubike, 504 F.3d 30, 38 (1st
Cir. 2007). As the trial court found, this statement by the
prosecutor was not only unsupported by the evidence as to Canty,
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but also undermined the court's instruction to the jury to only
consider the video evidence as to Jordan and was therefore
improper. See Jordan, 2020 WL 5995585, at *10.
III.
Our review of the denial of the motions for new trial is
for plain error because defense counsel did not contemporaneously
object to any of the prosecutor's comments. Vázquez-Larrauri, 778
F.3d at 282-83. To show plain error, defendants must demonstrate
"(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. Solís-
Vásquez, 10 F.4th 59, 64 (1st Cir. 2021) (quoting United States v.
Mercado, 777 F.3d 532, 536 (1st Cir. 2015)), cert. denied, 142 S.
Ct. 833 (2022); see also Fed. R. Crim. P. 52(b).
In ruling on the new trial motion, the district court
correctly articulated the four-prong plain error standard. See
United States v. Brandao, 448 F. Supp. 2d 311, 318 (D. Mass. 2006)
("[I]t is not unprecedented for a trial court to apply the plain
error standard to an objection raised for the first time in a post-
trial motion, because at that stage, the court 'performs something
of an appellate role.'" (quoting United States v. Washington, 263
F. Supp. 2d 413, 426 n.7 (D. Conn. 2003))), aff'd, 539 F.3d 44- 24 -
(1st Cir. 2008). It is efficient for district courts to correct
their own plain errors if necessary.
The district court, however, made two errors in
assessing the defendants' motions for a new trial on plain error
review. The first was in making inconsistent holdings that the
defendants were prejudiced by the improper statements on the third
prong of plain error review but that the strength of the evidence
overcame the effect of the misconduct on the fourth prong of plain
error review. The second error was its assessment that the
evidence the prosecution put forth of a single overarching
conspiracy was sufficiently strong to dispel concerns that the
prosecutor's improper arguments affected the convictions. We take
these errors in turn.
1. Inconsistency in the district court's findings as to the
third and fourth prongs of plain error review
On the third prong of plain error review, the district
court concluded that the defendants were prejudiced by the improper
comments, but, on the fourth prong, the district court found that
the prosecution's evidence was so strong that the improper comments
did not affect the outcome of the trial. Jordan, 2020 WL 5995585,
at *13, *16. These holdings cannot be reconciled. To understand
why they are inconsistent, it is necessary to first examine the
standards for the third and fourth prongs of plain error review,
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as well as the factors we consider in determining whether
prosecutorial misconduct requires a new trial.
The third prong of plain error review, that an error
affects a defendant's substantial rights, generally requires the
defendant to "show a reasonable probability that, but for the
error, the outcome of the proceeding would have been different."
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904–05 (2018)
(internal quotation marks omitted) (quoting Molina-Martinez v.
United States, 578 U.S. 189, 194 (2016)). The district court found
that the prosecutor's remarks affected the defendants' substantial
rights, and the government does not defend on appeal on the basis
that the trial judge erred in finding that the third prong of plain
error had been met. As we outline in the next section, we agree
with the district court that the defendants' substantial rights
were affected by the prosecutor's comments because there is a
reasonable probability that the outcome of the trial would have
been different but for the comments.
Once the first three requirements of plain error have
been met, the Supreme Court has described the fourth prong as going
to the exercise of the appellate court's discretion. See Rosales-
Mireles, 138 S. Ct. at 1905. And though Rule 52(b) is permissive,
courts "should" correct plain errors affecting substantial rights
"if the error seriously affects the fairness, integrity[,] or
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public reputation of judicial proceedings." Id. at 1906 (internal
quotations and citations omitted).
Whether or not the argument has been preserved, our cases
reviewing a denial of a motion for a new trial on the basis of
prosecutorial misconduct have considered the following non-
exclusive factors: "(1) the severity of the prosecutor's
misconduct, including whether it was deliberate or accidental;
(2) the context in which the misconduct occurred; (3) whether the
judge gave curative instructions and the likely effect of such
instructions; and (4) the strength of the evidence against the
defendant[ ]." Vázquez-Larrauri, 778 F.3d at 283 (alteration in
original) (quoting United States v. Kasenge, 660 F.3d 537, 542
(1st Cir. 2011)). These factors are considered to determine
"whether the prosecutor's misconduct so poisoned the well that the
trial's outcome was likely affected, thus warranting a new trial."
Azubike, 504 F.3d at 39 (internal quotation marks omitted) (quoting
United States v. Joyner, 191 F.3d 47, 54 (1st Cir. 1999)).
When reviewing a new trial motion based on prosecutorial
misconduct, the third prong of plain error review and the test for
whether prosecutorial misconduct warrants a new trial both ask
whether it is likely that the misconduct affected the trial's
outcome. The district court found that the defendants had
satisfied the third prong of plain error review by demonstrating
that the improper comments had prejudiced them, but then determined
- 27 -
on the fourth prong of plain error review that the strength of the
evidence was sufficient to overcome the misconduct. This was an
error of law. The district court should have analyzed the effects
of the prosecution's comments only at the third step of plain error
review, rather than analyzing prejudice twice, at both the third
and fourth prongs of plain error review -- with inconsistent
results. Because the district court made these irreconcilable
findings, one must be incorrect.
2. The effect of the prosecution's improper comments
We next assess the prosecution's comments under the
third prong of plain error review. We conclude that the district
court was correct as to its ruling on the third prong of plain
error review, that the prosecutor's comments prejudiced the
defendants, but, contrary to the district court, we also conclude
that (applying the proper standard) the defendants meet the fourth
prong of plain error review. In making our determination as to
the third prong, we consider whether the defendants' substantial
rights were prejudiced, guided by the factors outlined above as to
whether prosecutorial misconduct warrants a new trial: severity,
context, curative instructions by the district court, and the
strength of the prosecution's evidence. See Vázquez-Larrauri, 778
F.3d at 283.
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a. Severity
As to the first factor, the impropriety of the comments,
taken as a whole, was severe. None of these comments, standing in
isolation, was sufficiently reprehensible to warrant a new trial,
but their cumulative effect was, for reasons we explain. On this
record, we cannot say that the improper statements were accidental.
See Arrieta-Agressot v. United States, 3 F.3d 525, 530 (1st Cir.
1993) ("Almost any argument made in summation can be described as
deliberate[.]"). The prosecution began with improper themes in
the opening statement, built upon and exacerbated them at closing,
and then repeated and added to them in the rebuttal. Further, as
the government appellate lawyer, to his credit, conceded at oral
argument, this was a very experienced prosecutor.5 It is possible
that the government's case was not as strong as it anticipated it
would be because Lawson, a major player in the case, decided not
to testify at the last minute, so the prosecution may have felt
the need to compensate with appeals to the jury's emotions.
5 We take judicial notice of the prosecutor's experience.
Press Release, Dep't of Justice (Oct. 8, 2021) (noting that the
prosecutor became an Assistant United States Attorney in 2002). A
court of appeals "may take judicial notice of facts which are
'capable of being determined by an assuredly accurate source.'"
Pietrangelo v. Sununu, 15 F.4th 103, 106 n.1 (1st Cir. 2021)
(quoting United States v. Hoyts Cinemas Corp., 380 F.3d 558, 570
(1st Cir. 2004)); see also Fed. R. Evid. 201(b)(2).
- 29 -
b. Context
As to the context, there were four improper arguments
spanning from the opening, through the closing, and in the
rebuttal. See Azubike, 504 F.3d at 39 ("[P]rejudicial statements
made during closing argument 'militate in favor of reversal'
because they are 'the last words spoken to the jury by the trial
attorneys.'" (quoting United States v. Manning, 23 F.3d 570, 575
(1st Cir. 1994))); see also United States v. Torres-Colón, 790
F.3d 26, 34 (1st Cir. 2015) ("We view problematic statements during
rebuttal with particular scrutiny, because the government's
rebuttal argument offers the last word before the jury begins
deliberations."). The comments were not isolated. Cf. United
States v. Cruz-Rivera, 14 F.4th 32, 54 (1st Cir. 2021) (finding
reversal of conviction unwarranted where the prosecutor's "one
arguable misstatement was isolated"), petition for cert. docketed,
No. 21-7638 (U.S. Apr. 18, 2022). The improper vouching and
suggestion to the jury that it was the defendants' turn to go to
jail were not stray comments, but arguments built over a
considerable portion of her rebuttal. The emotional appeal to the
jury to be other than finders of fact as to guilt was extensive,
and was repeated at opening, closing, and at rebuttal.
c. Curative instructions
As to the curative instructions, because of defense
counsels' failure to object, there were no curative instructions
- 30 -
directly on point. The government argues that the district court's
instructions were nevertheless sufficient to negate the impact of
improper argumentation. It first argues that the court's
generalized instructions -- instructing the jury not to be
influenced by prejudice, to decide the case solely on the evidence,
and that counsel's arguments are not evidence -- are sufficient.
"We have at times found the district court's standard instruction,
advising jurors that arguments of counsel are not evidence,
adequate to dispel any prejudice from improper remarks." United
States v. Ayala-García, 574 F.3d 5, 21 (1st Cir. 2009). However,
where the improper remarks are particularly severe or pervasive,
and go to issues central to the case, general instructions may not
be sufficient to neutralize them. See id. at 21–22 (finding
curative instructions which did not explicitly call for the jury
to disregard improper statements insufficient to overcome the
misconduct at issue). Here, the district court's standard, general
instructions did not overcome the effect of the prosecutor's
improper statements. The trial judge cited Azubike for the
proposition that such standard instructions "may well be
insufficient." Jordan, 2020 WL 5995585, at *14 (quoting Azubike,
504 F.3d at 41). We agree.
Second, the government argues that the prosecutor's
improper attribution of the video to both defendants was cured
because the district court instructed, when the video was shown,
- 31 -
that it should only be considered as to Jordan, and because the
district court reiterated in its final instructions that evidence
received for a limited purpose can only be considered for that
purpose. This argument would carry more weight if the statement
were merely an isolated comment, but it was not; the prosecutor's
comment that "they'd help you put a tourniquet on your arm" was
part of a larger theme throughout that the defendants were callous
and cruel. The prosecution attributed to Canty actions from a
video that depicted Jordan enabling Osborne's drug use by assisting
Osborne, clearly already under the influence of drugs, in putting
on a tourniquet in preparation to inject heroin. As is often said,
a picture is worth a thousand words. The prosecutor's association
of Canty with the actions in the video was not cured by
instructions that did not specifically address the improper
statement.
d. Strength of the evidence against the
defendants
The trial court at different times gave different
evaluations of the strength of the government's evidence. We think
it is most significant that the trial court said the issue was
"particularly difficult and close" when considering the
defendants' motions for acquittal. The trial court's different
evaluation when it ruled on the new trial motions nearly a year
- 32 -
after the jury verdict was rendered does not have the same
importance as its earlier assessment.
A criminal conspiracy exists where there is an
"agreement between two or more persons to accomplish an unlawful
purpose." United States v. Dellosantos, 649 F.3d 109, 115 (1st
Cir. 2011). "The agreement is the sine qua non of a conspiracy,
and this 'element is not supplied by mere knowledge of an illegal
activity . . . , let alone by mere association with other
conspirators or mere presence at the scene of the conspiratorial
deeds.'" Id. (alteration in original) (quoting United States v.
Zafiro, 945 F.2d 881, 888 (7th Cir. 1991)). The defendants contend
that the government's evidence did not establish the single
overarching conspiracy that was charged in the indictment, but
rather shows that Jordan and Canty had individual agreements with
various actors at different times. In determining whether a single
conspiracy exists, we look to three factors: "(1) the existence of
a common goal, (2) interdependence among participants, and
(3) overlap among the participants." Id. at 117 (quoting United
States v. Mangual-Santiago, 562 F.3d 411, 421 (1st Cir. 2009)).
i. Common goal
"The common goal factor is given 'wide breadth.'"
Mangual-Santiago, 562 F.3d at 421 (quoting United States v.
Sanchez-Badillo, 540 F.3d 24, 29 (1st Cir. 2008)). A goal of
selling drugs or furthering the distribution of drugs is sufficient
- 33 -
to satisfy it. Id. Canty and Jordan do not contest that the
evidence is sufficient to establish a common purpose. They
challenge the evidence, however, as to interdependence and
overlap.
ii. Interdependence
"Interdependence exists where 'the activities of one
aspect of the scheme are necessary or advantageous to the success
of another aspect of the scheme.'" United States v. Rivera
Calderón, 578 F.3d 78, 89 (1st Cir. 2009) (quoting Mangual–
Santiago, 562 F.3d at 422). Here, the evidence showed that Canty
and Jordan had separate suppliers, made trips to New York
independently to resupply, and made sales individually from the
same locations. The government emphasizes that the evidence showed
that Lawson, Jordan, Canty, and Cruz "operated cooperatively from
multiple trap houses in Portland and shared employees." While the
evidence could support a finding that Cruz, Canty, Jordan, and
Lawson all benefitted from selling from the same trap houses
because customers had a place they could reliably come for drugs,
the evidence adduced by the government lacks much of what we have
previously considered demonstrative of interdependence.
The government argues that this case is like United
States v. Negrón-Sostre, 790 F.3d 295 (1st Cir. 2015). We
disagree. In that case, we found the elements for a conspiracy
- 34 -
were met by evidence that the defendants had created a drug
"supermarket" of sorts. Id. at 310-11. It was described as:
a highly-organized operation that ran 24/7 and
provided seemingly all of the illicit
substances its clientele might desire.
Lookouts, much like store security, served to
protect all owners from losses -- not from
shoplifters, but from law enforcement.
Runners supplied multiple sellers, and sellers
simultaneously sold brands from several
owners, much like warehouse operators and
sales clerks. All of these workers were
organized in strict twelve-hour shifts . . . .
Not only did the owners cooperate by allowing
their runners and sellers to work for
different owners at the same time, but when
necessary, they met to resolve a dispute that
might have threatened the profitability of the
enterprise.
Id. at 312. That is not this case. Here, there was no evidence
of set shifts, meetings, or rules of any kind that would evince
any agreement. While all of the dealers used Osborne to either
run drugs or recruit customers, they did not hire him jointly, and
each dealt with him on his own terms -- while Jordan did not mind
much when Osborne used the heroin he was supposed to sell, and
would give him heroin even when he did not recruit any customers,
Cruz got Canty to help him beat-up Osborne for using heroin that
was supposed to be sold.
The dealers did not share the same supplier and
resupplied separately in different ways: Canty drove his own car
to New York, while Jordan, who did not drive, would get a ride
with someone or take the bus, sometimes recruiting women to smuggle
- 35 -
the drugs to Maine in a body cavity. They sold from individual
supplies, and Tanya Johnson testified that she preferred to buy
from Jordan or Canty rather than Lawson, because she thought
Lawson's product was inferior. There was no evidence that the
defendants met to set prices in order to maximize profits and to
discuss threats to their enterprise, that they used force to keep
other dealers away from the trap houses where they sold, that they
stored weapons together for security purposes, or that they had a
shared set of rules, all of which we have previously found to
demonstrate interdependence. See Rivera Calderón, 578 F.3d at 90;
see also United States v. Soto-Beníquez, 356 F.3d 1, 19-20 (1st
Cir. 2003).
There was evidence that the dealers sometimes sold from
the various trap houses at the same time, such as when Lawson and
Jordan took turns selling to customers at Oak Street. There was
also the testimony from Osborne that Lawson and Jordan had
discussed taking over Oak Street, although he also testified that
they began selling there months apart. Lawson, Cruz, Canty, and
Jordan all sold drugs at Redbank, though there was no evidence
that Cruz dealt drugs at either Grant Street or Oak Street (there
was evidence that on one occasion Cruz gave Lombardi drugs to
distribute at Oak Street). However, there was evidence that Jordan
was displeased when he found out that Lawson was dealing at Grant
Street and argued with him to leave. Even if we interpret the
- 36 -
fact that Lawson did not leave as the government asks us to, as a
tacit acquiescence by Jordan to Lawson's presence at Grant Street,
it is poor evidence of a grand overarching conspiracy spanning
multiple trap houses for the same dealers apparently to happily
deal simultaneously at one location but only grudgingly at another.
Moreover, the evidence shows that at least the first time Canty
came to Grant Street, it was when Jordan was not present.
In United States v. Pressler, the Third Circuit found
that there was not sufficient evidence of a conspiracy where two
people lived together for several months, sold drugs from their
shared residence daily, and one would supply customers when the
other was unavailable to do so. 256 F.3d 144, 155 (3d Cir. 2001).
The present case is closer to Pressler than it is to Negrón-Sostre:
there is evidence that the defendants knew one another, they lived
together for a time, and they sometimes supplied the same
customers. But there is not the tight organizational structure,
the rigidly enforced code of conduct, or the pooling of resources
to the advantage of the entire group that we have found to be
indicative of interdependence in other cases. See Negrón-Sostre,
790 F.3d 309-10; Rivera Calderón, 578 F.3d at 89-90.
iii. Overlap
Overlap can be achieved by "the pervasive involvement of
a single 'core conspirator'" or "hub character." United States v.
Portela, 167 F.3d 687, 695 (1st Cir. 1999) (quoting United States
- 37 -
v. Wilson, 116 F.3d 1066, 1076 (5th Cir. 1997), vacated on other
grounds by United States v. Brown, 123 F.3d 213 (5th Cir. 1997)).
It can also be demonstrated where "runners and sellers work[] for
multiple owners, and lookouts work[] for the benefit of all," and
where such "workers" work in a "highly-organized" "shift system"
coordinated by meetings between the owners. Negrón-Sostre, 790
F.3d at 310, 312.
The government asserts that there is ample evidence of
overlap, pointing to Osborne's role as a lookout at Oak Street,
and his work recruiting customers and running drugs for the
dealers. The government also points out that Tweedie allowed all
of the dealers to sell drugs at her apartment and would give Jordan
and Canty rides between trap houses, and that Santiago delivered
drugs for Jordan, Canty, and Lawson, and allowed them to sell from
her Grant Street apartment.
The defendants argue that this kind of overlap does not
evince a conspiracy, because people played different roles with
respect to the different dealers, demonstrating that there was no
overarching agreement. Osborne recruited customers for everyone,
but only sold heroin for Jordan and Canty. He only testified to
working the door at Oak Street, where Cruz did not sell drugs, and
not the other two trap houses. Jordan maintained romantic
relationships with Tweedie and Santiago while using their
apartments as trap houses, while Lawson merely showed up at Grant
- 38 -
Street and refused to leave and sold drugs at Redbank despite
Tweedie telling him not to.
While there were certainly "consistent participants" in
these activities, see Mangual-Santiago, 562 F.3d at 422, there was
not a high degree of organization or anyone in a "leadership and
coordinator role," id. There was evidence of overlap, but it
lacked characteristics which would lead to strong inferences of an
agreement among the participants.
iv. Totality of the evidence
In addition to individual determinations of common
goals, interdependence, and overlap, "this court has looked beyond
any such lists of factors to 'the totality of the evidence' in
determining whether there is factual support for a finding of a
single conspiracy." Portela, 167 F.3d at 696 (quoting United
States v. Drougas, 748 F.2d 8, 17 (1st Cir. 1984)).
The totality of the evidence of conspiracy here was not
in our view sufficiently strong to overcome the prosecutor's
errors. See Arrieta-Agressot, 3 F.3d at 530 (reversing on plain
error where "the [prosecution's] case was adequate but not
overwhelming, and the jury may have been swayed by the prosecutor's
impermissible rhetoric"). While there was ample evidence that
Canty and Jordan distributed heroin, and strong evidence of various
smaller conspiracies, the government had to prove the single
conspiracy charged in the indictment. A jury could find a single
- 39 -
overarching conspiracy on the evidence here. However, the evidence
was at least as strong that Cruz, Canty, Lawson, and Jordan
operated independently and indifferently to one another rather
than in tandem, selling when and where it was convenient to do so
with no overall coordination of effort and no agreement, tacit or
otherwise, to assist one another in distributing drugs. Moreover,
some of the government witnesses gave conflicting testimony.
Because the evidence in the case was not overwhelming,
the improper arguments by the prosecutor "so poisoned the well
that the trial's outcome was likely affected, thus warranting a
new trial." Azubike, 504 F.3d at 39 (internal quotation marks
omitted) (quoting Joyner, 191 F.3d at 54). Many of the
prosecution's improper statements went to the heart of the case.
The emotional appeals to the jury's role as the conscience of the
community and the guilt-by-association arguments encouraged the
jury to abandon its role as rational factfinder and to judge the
case based on negative feelings towards the defendants. This was
exacerbated by the improper attribution of video evidence
pertaining only to Jordan as pertaining to both defendants. The
prosecutor's improper vouching unfairly bolstered the credibility
of the government's witnesses who provided crucial evidence in the
case, and whose credibility the defendants attacked in order to
defend against the charges. The bulk of the improper arguments
- 40 -
were made during rebuttal, the very last time the jury heard
argument from either party.
As to the fourth prong of plain error review, where such
a likelihood of conviction on the basis of improper arguments
exists, we are compelled to find that the fairness, integrity, and
public reputation of the proceedings have been seriously affected.
"[F]ederal prosecuting attorneys ought to be mindful of
the harm done when those in power ignore the rules governing their
own conduct while demanding strict compliance from others."
Arrieta-Agressot, 3 F.3d at 530. The government in criminal
prosecutions must follow the rules and suffer the consequences
when it does not.
IV.
For the reasons stated above, we conclude that to let
these convictions stand would have a serious deleterious effect on
the fairness, integrity, and public reputation of judicial
proceedings. See United States v. Acosta 924 F.3d 288, 309 (6th
Cir. 2019). We affirm the denial of the motions for acquittal.
We reverse the denial of the new trial motion and remand for
further proceedings consistent with this opinion.
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