United States v. Dehertogh , 696 F.3d 162 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1432
UNITED STATES,
Appellee,
v.
PATRICK DEHERTOGH,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Thompson, Circuit Judges.
Robert Herrick, by appointment of the court, for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief for
appellee.
October 19, 2012
BOUDIN, Circuit Judge. Patrick Dehertogh seeks review of
his conviction on a charge of conspiracy to collect debts by
extortionate means, 18 U.S.C. § 894 (2006), and collection (or
aiding and abetting collection, id. § 2) of debts by extortionate
means, id. § 894. The evidence, taken in the light most favorable
to the verdict, supports the following outline of events.
In August 2008, real estate developer Michael Carucci
sold, apparently at a substantial loss after renovations were taken
into account, a Boston condominium that he had purchased with
mortgage broker David Gefke. Carucci assumed responsibility and
gave Gefke a signed promissory note for $47,000, but failed to make
the promised payments on time. In January 2010, Gefke, in
financial trouble and abusing drugs and alcohol, arranged to have
a fellow regular at the South Boston bar he frequented--Michael
"Mick" Lee--intimidate Carucci into paying the note.
Lee, in turn, recruited two close friends, Brandon Milby
and the defendant Patrick Dehertogh. There followed encounters
with Carucci at which Lee, Milby, and Dehertogh were all present:
- On January 29, 2010, Lee, accompanied by
Milby and Dehertogh, met Carucci in his
office. While Milby and Dehertogh stood
inside the closed door with their arms folded,
Lee told Carucci that he owed "an awful lot of
money on the street" and that things could
either be "very easy or very difficult." Lee
then made a series of vague threats, such as,
"I don't want to make your life uncomfortable
at the Four Seasons," and, "I don't want . . .
to go visit your home on the Cape." Carucci,
after denying that he had any money, made out
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a check for $1,000 and later provided a second
check for the same amount.
- On February 1, 2010, Lee, Milby, and
Dehertogh went to the Four Seasons Hotel to
confront Carucci, whose checks had bounced.
While Dehertogh and a fourth man waited
outside, Lee and Milby met with Carucci at the
hotel's restaurant. More threats ensued, and
Carucci surrendered his watch, promising
before he left to hand over additional watches
from his collection. Lee and Milby then rode
off with Dehertogh and the other man, joking
about how much they had frightened Carucci.
Thereafter, without Dehertogh's involvement, Lee and
Milby continued attempting to collect from Carucci. Carucci,
however, had reported Lee's threats to the Boston Police after the
first encounter at his office. The FBI began investigating and
ultimately worked with Carucci to record telephone calls he placed
to Lee and Gefke. In early February 2010, the FBI arrested Gefke,
Lee, Milby, and Dehertogh.
All four were indicted on extortionate debt collection
charges in March 2010. Gefke and Lee pled guilty and agreed to
testify against Dehertogh, who chose to go to trial. (Milby later
pled guilty as well.) Dehertogh's trial began on September 27,
2010, and at the end a jury convicted Dehertogh on the two counts
described at the outset of this decision. He was later sentenced
to five years' imprisonment.
On this appeal, Dehertogh does not claim that the
evidence presented was insufficient to show that he conspired to
commit, and then participated in, extortionate debt collection.
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Rather, he argues that his trial was tainted by the trial judge's
rulings relating to allegations of juror taint and by supposed
mistakes in the judge's instructions--or failure to give
instructions--to the jury. We consider these matters one by one
but find no reversible error.
Dehertogh lays most stress on the handling of the
following incident. Shortly after closing arguments, the judge
learned that when the courtroom clerk took the jurors out of the
courtroom, "more than one juror said to [the clerk] that they had
observed Brandon Milby in the courtroom and that he had been
smiling on occasion and they were concerned." Milby in fact had
been in the courtroom during Lee's testimony and jurors apparently
were able to identify him from photographs introduced at trial.
The judge advised both sides of the courtroom clerk's
report and, after pausing to confer with the clerk, added, "more
than that," the jurors "feel intimidate[d] [and] scared." The
judge suggested that he could address the matter with instructions
to the jury but invited counsels' views as to whether this would be
adequate and as to any proposed alternatives. Dehertogh's counsel
urged that a mistrial was essential, summarizing his position
thusly:
[T]his is a case about fear. It's a case that
the government says is about fear occasioned
by the presence of somebody. Now you've got
jurors saying they're intimidated by the
presence of Mr. Milby. . . . [T]hat's what
this case is all about. From my perspective,
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this is a case about Mr. Dehertogh being in an
office and somebody saying that intimidated
him. And now the jurors, at least two or
three jurors are saying they feel intimidated
by the presence of one of the people who was
in that office as well.
The government said that an instruction would suffice
coupled with a collective invitation to the jurors to send a note
to the judge if any of the jurors still had concerns. The judge
said that he would follow this course provisionally but would
reconsider the motion for a mistrial after the verdict if
necessary. After asking Dehertogh's counsel if he could "improve
upon the approach" suggested and receiving a negative answer, the
judge called the jurors into the courtroom and gave them the
following instruction:
One or more of you has noted an
individual in the courtroom whom you recognize
as Brandon Milby . . . and have expressed
concern about what he's doing here. . . . So,
let me give you some instructions, I guess,
and then I'm going to privately ask you a
question.
The instructions are this. I mentioned
this once already. This is the case of the
United States against Patrick Dehertogh. . . .
Mr. Milby is not in custody. So, he's not in
any sort of custody and whether or not there's
any charges against him, you don't speculate
about that. . . . Your concern is the case
that the government has put on against Mr.
Dehertogh. So, that's our focus here.
Now, because Mr. Milby is not in
custody, as a citizen he has every right to
come in the courtroom and if he's interested
in what's going on here he has every right to
be here. Anyone has any right to be here.
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. . . I can't shut those doors. That would
. . . violate the rights of the litigants and
it would violate the public's rights.
So, while I'm, I'm not clear what your
concern is, it's undoubted that was Mr. Milby
and he was here and he was watching.
I will say something about your
personal information, names, what we learn
from you on the jury list. That's not
disclosed. That's not public. And I'm
ordering that it not be made public. The
lawyers see that in the choosing of the jury,
but they're officers of the Court. So I'm not
making that public.
Now, that's all I'm going to say about
this. But since jurors, more than one,
expressed a concern, what we'll do now is take
a recess, about five minutes, and if any of
you, I mean, search your consciences, honestly
search your consciences, I'm not looking for
an answer one way or another here, if any of
you now, because this happened, and it did
happen, if you have some concern about your
ability to deliver a fair and an impartial
verdict, fair to the government, equally fair
to Mr. Dehertogh, what we call a true verdict,
if you have any question about that, you don't
have to explain yourself, just rip out from
your notes that you do, and I need your name
because I need to know who you are.
After a five-minute recess, the court confirmed, "we're
all set to go, no notes." The court then charged the jury, twice
making clear that jurors were not to consider Milby's presence,
including with a specific instruction to disregard "who was in the
courtroom or who wandered in or who wandered out." Additionally,
the court replaced with an alternate the juror who had first
informed the courtroom clerk about the concerns regarding Milby.
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On appeal, Dehertogh presses his claim that the court's
precautions were insufficient and that a mistrial was required
because of Milby's presence. Our review of the court's handling of
the incident is for abuse of discretion, United States v.
Rodríguez-Ortiz, 455 F.3d 18, 23 (1st Cir. 2006), cert. denied, 549
U.S. 1143 (2007), taking account of both the importance of an
impartial jury and the practical need for latitude when the
district judge is coping with one of the many fact-specific
problems that arise during trials, see United States v.
Paniagua-Ramos, 251 F.3d 242, 249-50 (1st Cir. 2001).
Here, as a necessary first step to establish what had
happened, United States v. Tejeda, 481 F.3d 44, 52 (1st Cir.),
cert. denied, 552 U.S. 1021 (2007), the judge took it as settled
that Milby was present and that whatever his precise behavior or
countenance, some of the jurors perceived him as a threatening
figure. A necessary further step is to consider whether what
happened created a potential for prejudice, id., and, from both the
judge's remarks and his decision that something should be done, he
clearly concluded that such a potential existed.
The remaining question is whether the judge took
reasonable and sufficient steps to guard against prejudice and
whether, in light of what transpired, the judge acted reasonably in
concluding that no further steps--such as conducting individual
voir dires or declaring a mistrial--were necessary to secure a fair
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trial for Dehertogh. See United States v. Bristol-Mártir, 570 F.3d
29, 42 (1st Cir. 2009). Treating Dehertogh's claims as adequately
preserved, several different considerations persuade us that
sufficient precautions were taken.
First, we begin with the nature and extent of potential
prejudice. Dehertogh's own argument to the judge below captures
the principal danger--not that the jurors would be coerced by
threats, which might point toward acquittal, but that a perception
of Milby as a threatening figure might make more vivid the
government's depiction of Dehertogh. After all, the testimony made
it appear that both Milby and Dehertogh were largely silent
sentinels whose role in the collection scheme was conveying to
Carucci a menacing aspect in support of Lee's threats.
Yet it is not easy to see how the jury could have avoided
a similar, if less vivid, impression from the testimony alone.
Having a couple of tough-looking characters stand silently by while
veiled threats of violence are made in support of demands for money
is practically a stock scene in movies, television and detective
fiction with which few jurors could be unfamiliar. Dehertogh was
himself present during the threats at Carucci's office and no other
convincing explanation for his presence was ever provided to the
jury.
Second, we must consider the adequacy of the jury
inquiry. Here, the judge invited the jury to reflect briefly and
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then to advise him individually if any of them remained
uncomfortable; none did. This is not a perfect safeguard but it is
a significant one, and short of a mistrial--which has disadvantages
of its own--nothing is perfect once an untoward incident has
occurred. The court's approach had the added benefit, if any
jurors did come forward, of providing an opportunity to assess each
concern and possibly replace a juror.
Some judges would have conducted an individual voir dire
of each juror; others might believe that this might magnify to the
jurors the importance of the incident. And while Dehertogh's
counsel preserved his mistrial request, he did not express a
preference for an individual voir dire as against a collective
request. In all events, we think this choice was within the
discretion of the district judge as a reasonable way to narrow
those who might need to be privately interviewed.
Third, potency of corrective instructions is always a
matter of speculation, but several of the points made by the judge
in this case were sensible, specific and ought to have carried
weight. One was that jurors were to focus on the admitted evidence
against Dehertogh and that Milby was not on trial; another was that
juror information was not public; and the last was that the jurors
needed to reflect and tell the court if any concerns remained about
their ability to serve impartially.
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It is not clear why a juror who felt either compromised
or personally threatened would be hesitant about saying so
privately to the judge. To do so would not necessarily threaten
the interests of or provoke opposition from jurors who wished to
continue. And while one can always speculate about reasons why a
juror might feel prejudice but desire to continue, this is not an
obvious case to presume that an instruction would be useless.
In urging that a mistrial was required, Dehertogh relies
on Remmer v. United States, 347 U.S. 227, 229 (1954), which
discerned a rebuttable presumption of prejudice in a criminal trial
where there occurs "any private communication, contact, or
tampering directly or indirectly, with a juror . . . about the
matter pending before the jury." The claim there--that an unknown
person had offered a juror a bribe--is miles away from a spectator
staring at the jury; and the quoted phrase, infinitely expandable,
has been read with circumspection in later cases.
As we noted in United States v. Bradshaw, 281 F.3d 278,
287 (1st Cir.), cert. denied, 537 U.S. 1049 (2002), two later cases
"cabined" Remmer--Smith v. Phillips, 455 U.S. 209 (1982), and
United States v. Olano, 507 U.S. 725 (1993). Indeed, the circuits
are divided on whether Remmer represents the current thinking of
the Supreme Court. See United States v. Lawson, 677 F.3d 629, 643-
44 (4th Cir. 2012) (collecting cases). This court continues to
assume that a presumption of prejudice exists but only "where there
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is an egregious tampering or third party communication which
directly injects itself into the jury process." United States v.
Boylan, 898 F.2d 230, 261 (1st Cir.), cert. denied, 498 U.S. 849
(1990).
Thus, in Tejeda, where jurors witnessed a courtroom
spectator make a throat-slitting gesture, 481 F.3d at 48, we deemed
the presumption inapplicable, id. at 51, and found that in any
event the district court handled the situation properly by
investigating the matter and taking steps to limit any prejudice,
id. at 54. The district court took both these steps here and, if
a serious possibility of prejudice ever existed, we think the
absence of a juror response to the judge's invitation, coupled with
the curative instructions, amply resolved the matter.
Dehertogh's other primary challenge on appeal is to the
district court's jury charge. The court, after detailing the
elements of collecting an extension of credit by extortionate
means, explained aiding and abetting liability thusly:
Now, suppose you think Mr. Dehertogh didn't do
all these things himself but maybe he was in
on it. The government has also charged him
with being an aider or abettor to that
conduct. . . . They have to prove that he
knew, he, Mr. Dehertogh, knew that other
people, in this case, . . . engaged in a
criminal enterprise, a specific criminal
enterprise, to collect credit or attempt to
collect it by extortionate means.
. . .
And then the government has to prove that Mr.
Dehertogh did something to make that crime
come about. Not that other people did it, Mr.
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Dehertogh did it. And the government argued
that at one stage he was a lookout, and then
they argued at an earlier stage by his
presence he lent muscle to the situation.
Well, if he did and he knew that's what he was
doing, and he was doing that intentionally,
whether or not they had agreed before, he's
aiding in the commission of a criminal act and
he's liable to the same extent as Mr. Lee or
Mr. Gefke if you believe they set it up.
After the court charged the jury, Dehertogh's trial
counsel objected to "using the government's theory of the evidence,
specifically the lookout theory and the muscle theory" in the
charge, because it sent "a message to [the jury] that that is in
fact a credible interpretation." On appeal, Dehertogh enlarges the
claim somewhat by saying that the instruction was unbalanced and
that if the judge advanced the government's theory of the case, he
should have advanced Dehertogh's as well.
Strictly speaking, it was up to the jury to decide
whether deliberately lending an appearance of "muscle" or acting as
a "lookout" was aiding and abetting, and it would have been cleaner
to choose other illustrations than the evidence in this case to
make clear that almost any act that contributes to the offense, if
undertaken with a purpose to advance the crime, creates liability.
But the judge was entitled to use such illustrations, see United
States v. Hernández, 490 F.3d 81, 84 (1st Cir.), cert. denied, 552
U.S. 983 (2007), and any he used (or none at all) would have led
the jury to the same conclusion.
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Dehertogh was free to argue that he was present at
Carucci's office with no intent to advance the crime or did not
present a menacing appearance on that occasion, and free as well to
argue that he had not been shown to have acted as a lookout at the
hotel. Nothing in the judge's charge endorsed the government's
gloss on the facts. But if the jury accepted that gloss, it surely
comprised aiding and abetting, and if jurors understood the breadth
of the aiding and abetting concept and accepted the government's
evidence, they were sure to convict.
As for the alleged lack of balance, Dehertogh never asked
the court to present his own theory of the case, but the district
judge more or less did just this without being asked; after
delivering the above-quoted language, the judge closed the aiding
and abetting portion of the charge as follows:
And before I leave this, it is not a crime to
associate with people who are themselves
criminals. It is not a crime to know that a
crime is or will be committed and not to
report it. It is a crime to want that crime
committed and to do something, even as little
as being a lookout, to help it be committed.
That's aiding and abetting. But just being
friends with or associating with the wrong
people, even if you know they're committing a
crime, doesn't make you a criminal and you're
under no obligation to report it.
This made clear to the jury that mere association or
presence, even with knowledge that a crime was taking place, did
not constitute aiding and abetting; rather, Dehertogh had to take
some step to "help" the crime and for that purpose ("to want that
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crime"). This fairly presented both sides' differing positions as
to how to interpret the evidence facing the jury. This is quite
unlike United States v. Dove, 916 F.2d 41, 45 (2d Cir. 1990), cited
by Dehertogh, where the instruction encouraged jurors to disregard
eyewitnesses' failure to identify the defendant.
Lastly, Dehertogh raises a set of claims that, he
concedes, were not preserved below, and so have to meet the
stringent "plain error" standard. United States v. Albertelli, 687
F.3d 439, 445 (1st Cir. 2012). That test requires not only error,
but also that the error be plain, that the likely outcome would
have been different but for the error, and that an injustice would
occur were the error not corrected. See United States v. Padilla,
415 F.3d 211, 218 (1st Cir. 2005) (en banc). All four conditions
must be met. See id.
First, Dehertogh argues that the court failed to explain
that he could be convicted only if the government proved that an
alleged principal actually committed the underlying crime of
extortionate debt collection. True, the aiding and abetting
offense, unlike conspiracy and attempt, requires that the target
crime have been completed, 18 U.S.C. § 2; and the court slightly
blurred the point in saying that the government had to prove "that
other people, in this case, . . . engaged in a criminal enterprise,
a specific criminal enterprise, to collect credit or attempt to
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collect it by extortionate means." Strictly, section 894 actus
reus is simply collection or attempting to collect by such means.1
However, the district court had at the start of trial
made clear to the jury that convicting Dehertogh as an aider and
abettor required proof that "some person or persons" actually
committed extortionate debt collection. And even if this were not
so, no one could doubt from Lee's own testimony that he had
committed the substantive offense. Thus, the jury could hardly
have failed to convict if the judge had said more clearly that the
collection crime or an attempt at it had to have been proved to
have occurred. See generally Neder v. United States, 527 U.S. 1,
19 (1999).
Dehertogh's second claim concerns the district court's
instruction on the elements of extortionate debt collection, which
pertinently provided:
Let's start with an extension of credit.
That's a debt. It doesn't have to be
evidenced by a promissory note. We are not
concerned in this criminal case with how some
civil case might come out and how the civil
courts might adjudicate the liability of Mr.
Carucci to Mr. Gefke. But the government's
got to prove that in the circumstances Mr.
Carucci was potentially or actually liable, he
owed Mr. Gefke money. A debt, an extension of
credit. Our society runs on credit. And it's
1
The "enterprise" concept is central to the racketeering
statute familiarly known as RICO, 18 U.S.C. §§ 1961-1968, which is
often directed at extortionate debt collection; but no RICO offense
was charged in this case.
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perfectly legal. So, they've got to prove
that. That's the first thing.
Collection of an "extension of credit" by forbidden
means, 18 U.S.C. § 894, presupposes that such a debt exists, and
Dehertogh argues that the district court's quoted instruction
effectively told the jury to find that a debt existed here when it
told the jury not to concern itself as to "how some civil case
might come out and how the civil courts might adjudicate the
liability of Mr. Carucci to Mr. Gefke." Once again, the
instruction might have been cleaner if the statement of the
elements had not mingled descriptions of the facts of this case,
but no harm was done.
Nevertheless, Gefke and Carucci both testified that
Carucci owed Gefke money; and the district court's instruction is
best understood as telling the jury that it did not matter how
litigation over the debt might come out. Dehertogh does not here
claim that it would matter whether Carucci had some prospect of
defeating a suit on the debt. And, while the existence vel non of
such a debt was a matter for the jury if this was controverted,
there is no likelihood that the jury--given the undisputed
testimony from the creditor and the debtor--could have found that
no debt ever existed.
The third and last supposed error Dehertogh claims is
that the district court failed sua sponte to instruct the jury to
disregard a specific sidebar exchange that Dehertogh claims the
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jury overheard. In the sidebar, the prosecutor said that she was
leading Lee in her direct examination in order to avoid testimony
that he had taken a trip to Cape Cod with Dehertogh "to engage in
a drug transaction," prompting Dehertogh's counsel to "dispute that
Dehertogh went down there to do anything illegal."
Dehertogh's counsel then informed the court that his
partner, sitting in the back of the courtroom, had said earlier
that "she could hear everything . . . at side bar" and apparently
signaled that she could hear the ongoing sidebar as well. But
defense counsel made no request that the judge caution the jury to
ignore anything it might have heard of the sidebar, nor is it
certain that the jurors--told earlier that they were free to move
around during sidebars--heard or understood the substance of what
had been discussed.
There may be rare cases where the prejudicial effect of
such a sidebar may be so evident and so extreme that the judge
should offer cautions where none was requested; but this is hardly
such a case. The offense charged had nothing to do with drugs;
defense counsel had denied that Dehertogh was involved in anything
illegal; the judge had earlier warned the jury to ignore sidebar
conferences; and, of course, any new caution to the jury might only
have drawn attention to something that had passed unnoticed.
In planning their appeal, losing counsel are entitled to
troll through transcripts to find alleged glitches in the
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instructions or other phases of the trial. But for sound reason
the plain error rule creates a high threshold where the supposed
missteps are ones that no one noticed at the time or, if noticed,
thought worthy of a timely objection. Whether error or no, none of
the unpreserved claims here, singly or together, suggests that the
outcome was affected.
Affirmed.
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