DocketNumber： 95-1577
Filed Date： 2/21/1996
Status： Precedential
Modified Date： 3/3/2016
February 21, 1996
[Not for Publication] [Not for Publication]
United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
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No. 95-1577
UNITED STATES,
Appellee,
v.
EUGENE M. MARTIN A/K/A DIRK LADSON,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges. ______________
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Lee H. Bals with whom Friedman & Babcock was on brief for ____________ ____________________
appellant.
Margaret D. McGaughey, Assistant United States Attorney, with ______________________
whom Jay P. McCloskey, United States Attorney and Jonathan R. Chapman, ________________ ___________________
Assistant United States Attorney, were on brief for appellee.
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Stahl, Circuit Judge. Following a two-day trial, a Stahl, Circuit Judge. _____________
jury convicted Eugene Martin of conspiracy with intent to
distribute cocaine in violation of 21 U.S.C. 846 and
possession of cocaine with intent to distribute in violation
of 21 U.S.C. 841(a)(1) and 841(b)(1)(B). He now appeals
both convictions, raising as his sole issue whether the
district court abused its discretion by allowing testimony at
trial concerning a brutal beating in which Martin had
allegedly participated.1 After careful review, we affirm.
I. I. __
Background Background __________
On January 25, 1994, Roxann Sullivan was arrested
for attempting to sell an eighth of an ounce of cocaine to an
undercover police officer and another individual at a
Cumberland Farms store in Berwick, Maine. Following her
arrest, Sullivan agreed to cooperate with the police in an
attempt to arrest her cocaine supplier. Consequently,
Sullivan paged her supplier, Aaron Jamison ("Aaron"), to
arrange another illegal drug transaction for later that
evening. After several subsequent phone calls, in which
Sullivan spoke with both Aaron and the appellant Martin,
Aaron agreed to meet Sullivan at the Cumberland Farms store
where the previous buy had taken place.
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1. Codefendant Aaron Jamison initially filed a notice of
appeal but that appeal was dismissed for want of prosecution
on November 14, 1995.
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Following these phone calls, police officials
equipped Sullivan with a hidden radio transmitter, gave her
some serialized currency, and drove her, in Sullivan's own
car, to the Cumberland Farms store. Several officers
followed in a separate vehicle to provide surveillance.
Several minutes later, a maroon van containing Martin, Aaron
and Aaron's brother, Harry Jamison, entered the Cumberland
Farms parking lot. Martin drove the van while Aaron sat in
the front passenger seat; Harry Jamison occupied the rear
seat. Once she noticed the van, Sullivan exited her car,
walked towards the van and climbed into its middle seat. She
then negotiated the purchase of an eighth of an ounce of
cocaine, eventually exchanging the serialized currency she
had been given for two small packets of cocaine. Following
the exchange, the police arrested the three occupants of the
van.
Subsequently, the government tried Martin and Aaron
together. At their trial, the court allowed Sullivan and her
former boyfriend, Arthur Myers, to testify that, in the fall
of 1993, Martin and Aaron had beaten an individual who had
sold drugs for Aaron and had allegedly cheated him. The
government offered the testimony to prove the existence of an
agreement between Martin and Aaron to conspire to distribute
drugs. Before Sullivan took the stand, the court held an
extensive sidebar conference with the government and both
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defense counsel concerning Sullivan's proposed testimony.
During the conference, the parties discussed not only the
alleged beating but also the fact that Sullivan feared for
her life because she believed that Martin and Aaron had
previously murdered someone in New York. The court cautioned
the government that eliciting testimony about the alleged New
York murder would be highly inflammatory and unfairly
prejudicial.
With respect to the alleged beating, the government
offered that Sullivan and Myers would testify that Martin and
Aaron had beaten an individual identified as Leon in the fall
of 1993. The government explained that Leon, who had sold
drugs for Aaron, had become heavily indebted to Aaron due to
his own personal use of cocaine. Aaron also suspected that
Leon had been short-changing him on proceeds from Leon's drug
sales. The government added further that Sullivan and Myers
would testify that, prior to the beating, Aaron had told them
that he and Martin were planning to straighten Leon out so
that he would stop using cocaine.
Martin's counsel objected to the proposed
testimony, arguing that it had no relevance to the alleged
conspiracy to distribute cocaine. The court denied the
objection, ruling that the testimony would be relevant if
Leon's debts were tied to cocaine. Aaron's counsel, while
conceding that the court had broad discretion under Fed. R.
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Evid. 4032 to decide whether to allow the testimony,
nonetheless argued that the prejudicial impact of the
proposed testimony outweighed its probative value. The court
declined to prohibit the testimony, but offered to instruct
the jury that "this defendant is not being charged for
violence or any such activity, you may only consider this as
it bears upon the charge of conspiracy or possession."
During Sullivan's and Myer's ensuing testimony,
neither counsel raised any further objections on the basis of
unfair prejudice.3 Following the testimony of each witness,
the court sua sponte gave an expanded cautionary instruction ___ ______
generally along the lines of what it had proposed at the
sidebar conference.
II. II. ___
Discussion Discussion __________
On appeal, Martin challenges the district court's
failure to exclude the testimony concerning the beating.
Martin argues that the connection between the beating and any
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2. Fed. R. Evid 403 provides in relevant part:
Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger of
unfair prejudice, confusion of the
issues, or misleading the jury . . . .
3. During Sullivan's testimony about the beating, two
objections were made, one on the basis of hearsay and another
on the basis that an answer given by Sullivan was
nonresponsive. The court denied the first objection and
sustained the second.
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alleged agreement to distribute cocaine was tenuous at best,
and that the graphic details elicited about the brutality of
the beating were highly inflammatory and unfairly
prejudicial. At the outset, however, we note that Martin
effectively forfeited this issue by failing to object
contemporaneously at trial to the now-challenged testimony.
While Martin initially raised concerns about the proposed
testimony during the sidebar conference, at that point in
time, no witness was before the jury, no questions had been
posed and no evidence about the beating had been adduced.
Lacking such context, the court could not definitively
balance the government's need for the evidence against any
correspondent risk of unfair prejudice that it posed. Thus,
any ruling at that point was preliminary, and Martin's
failure to raise subsequent contemporaneous objections
forfeited the issue. See, e.g., United States v. Griffin, ___ ____ _____________ _______
818 F.2d 97, 105 (1st Cir.), cert. denied, 484 U.S. 844 _____ ______
(1987) (holding that a motion in limine, even one raised __ ______
during trial, does not preserve an issue for appeal).
Indeed, at oral argument before this court, Martin's counsel,
noting the absence of contemporaneous objections, essentially
conceded that trial counsel had forfeited the issue.
Accordingly, we review only for plain error. See, e.g., ___ ____
United States v. Winter, 70 F.3d 655, 659 (1st Cir. 1995) _____________ ______
(forfeited errors reviewed only for plain error).
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In any event, there is no error, much less plain
error, in this case. Under Rule 403, a court may exclude
relevant evidence only if the evidence poses a risk of unfair
prejudice that substantially outweighs its probative value.
See Fed. R. Evid 403. We accord great deference to a ___
district court's judgment on such issues, and will review
even properly preserved assertions of error only for a clear
abuse of discretion. See, e.g., United States v. Lopez, 944 ___ ____ _____________ _____
F.2d 33, 38 (1st Cir. 1991).
The fact that Martin had previously helped Aaron
beat up a former associate who had been taking money and
drugs from Aaron tended to show Martin's participation in the
conspiracy. A factfinder could reasonably infer that Martin
would not have helped Aaron in such an endeavor unless he had
a personal interest in the success of the drug distribution
venture. Thus, the evidence was clearly probative on the
issue of whether an agreement existed. Furthermore, as the
district court correctly noted, the government needed this
evidence to help refute Martin's contention that his mere
presence in the van during the cocaine transaction did not
establish that he had conspired with Aaron. On the other
side of the scale, we agree that the testimony posed some
risk of unfair prejudice.4 Nonetheless, we cannot say that
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4. Specifically, Martin points to Sullivan's statements that
Aaron told her that they had left Leon "dead and stinking,"
and that she had observed Aaron and Martin hitting Leon and
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the risk so outweighed the testimony's undeniable probative
value as to constitute a clear abuse of discretion.
Moreover, we think the district court substantially minimized
the risk by carefully instructing the jury that it should
consider the testimony only for the purpose of establishing
the conspiracy.
III. III. ____
Conclusion Conclusion __________
For the foregoing reasons, Martin's conviction is
affirmed. affirmed
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tearing off his clothes. Martin also notes that Myers
testified that Aaron and Martin "were kicking [Leon],
punching him, threw a bike at him, [and] they made him take
off all his clothes, [and] took his money."
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