USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2480
UNITED STATES OF AMERICA,
Appellee,
v.
PASQUALE ALOSA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Boudin, Circuit Judge,
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and Pollak,* Senior District Judge.
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David H. Bownes, by Appointment of the Court, with whom Law
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Office of David H. Bownes, P.C. was on brief for appellant.
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David A. Vicinanzo, Assistant United States Attorney, with whom
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Peter E. Papps, United States Attorney, was on brief for the United
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States.
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January 31, 1994
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*Of the Eastern District of Pennsylvania, sitting by designation.
BOUDIN, Circuit Judge. On April 9, 1992, law
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enforcement agents armed with a search warrant entered the
home of Pasquale and Lisa Alosa in Loudon, New Hampshire.
The search uncovered substantial amounts of marijuana,
marijuana plants, a basement "garden" for growing them,
scales, plastic bags, two loaded handguns, and 16 other
unloaded firearms. Also found were two different collections
of papers which, for simplicity, have been referred to as
ledgers. A man named Robb Hamilton was also present on the
premises and was later implicated.
Both Alosas and Hamilton were later named in an
indictment that, as expanded by a superseding indictment,
charged Pasquale and Lisa in four counts: unlawful
manufacture of a controlled substance, 21 U.S.C. 841 (count
I); possession with intent to distribute, id. (count II); use
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of a firearm--namely, the two handguns--during and in
relation to a drug trafficking crime (count III), 18 U.S.C.
924(c)(1); and conspiracy to possess with intent to
distribute, 21 U.S.C. 846 (count IV). Hamilton was charged
only in count IV.
Prior to trial Pasquale twice moved to sever his trial
on the gun count from his trial on the other three counts.
The first request merely said that Pasquale "may" want to
testify on the gun count but remain silent on the others and
would be prejudiced by joinder of the counts. The second
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request said that he did not want to testify on anything
other than the gun charge and was entitled to testify on that
charge to refute the suggestions that the guns were used in
drug trafficking. This request also pointed to its list of
witnesses who would testify for Pasquale concerning his "use
and possession of firearms." The district court denied both
requests for severance.
Then, during jury selection in August 1992, Pasquale
filed a motion in limine requesting the court to "preclude
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the government or any of the co-defendants' counsel [from
eliciting testimony from him] regarding matters outside the
scope of his [contemplated direct] testimony." That direct
testimony, the motion said, would describe his longtime
involvement with firearms, explain his reasons for their
possession, and show that they were not for use in drug
trafficking. Pasquale also now pled guilty to the first two
counts--manufacture and possession with intent to distribute-
-and he argued that this further diminished the government's
need to cross-examine him about his drug activities.
The district court denied the in limine request. It
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reaffirmed this denial when the request was renewed at the
close of the government's case in chief. In this renewed
request, Pasquale provided further detail as to his proposed
testimony, explaining that he would testify that the handguns
were purchased and used "for fun" and not for drug
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trafficking. In a post-trial order, the district court said
that it refused to grant the in limine requests because "a
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defendant's testimony invites cross examination on topics
made relevant by his direct testimony."
The defendants were tried together using multiple
juries.1 Pasquale did not testify but did offer witnesses
who described his sporting and collector's interest in guns.
On August 31, 1992, the jury convicted Pasquale on counts III
and IV--the two counts on which he had not already pled
guilty--and he now appeals from those convictions. Lisa was
convicted on counts II and IV and acquitted on the other
counts, but died in an automobile accident before sentencing.
Hamilton was convicted of misdemeanor possession and has not
appealed.
Pasquale's first argument on appeal is that the district
court erred in denying his motions to sever the gun count
from the other counts. Severance for undue prejudice is a
matter committed to the sound discretion of the trial judge,
and a refusal to sever will be overturned only for abuse of
discretion. E.g., United States v. Olivo-Infante, 938 F.2d
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1406, 1409 (1st Cir. 1991). Further, a refusal to sever
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1Prior to trial Lisa made a number of admissions to the
authorities concerning the Alosas' drug sources, and she
decoded various of the transaction entries in the ledgers.
Because some evidence admissible against her was not
admissible against Pasquale, his jury was excused while such
evidence was presented to her jury.
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related counts, naming the same defendant, may be the least
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likely candidate for appellate reversal. Still, Pasquale's
counsel--who appears to have played a weak hand with skill
and foresight--has built a case somewhat stronger than the
usual general claim of potential confusion or "spillover"
effects.
Rather, Pasquale has sought shelter in a doctrine,
developed elsewhere but cited approvingly in this circuit,
that a defendant may deserve a severance of counts where the
defendant makes "a convincing showing that `he has both
important testimony to give concerning one count and strong
need to refrain from testifying on the other.'"2 This in
turn requires a defendant to offer in timely fashion "enough
information" so that the court can weigh "the considerations
of judicial economy" against the defendant's "freedom to
choose whether to testify" as to a particular charge.
Scivola, 766 F.2d at 43.
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It may be doubtful whether, prior to trial, Pasquale
explained his position in adequate detail; his first motion
was bland and conditional and even his second was sparse.
See United States v. Tracy, 989 F.2d 1279, 1283 (1st Cir.
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1993). Still, the second request suggested that Pasquale
wanted to testify in order to deny that the guns were used
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2United States v. Scivola, 766 F.2d 37, 43 (1st Cir.
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1985) (quoting Baker v. United States, 401 F.2d 958, 977
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(D.C. Cir. 1968), cert. denied, 400 U.S. 965 (1970)).
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for drug trafficking--a rather simple proposition. As for
not testifying on other counts, Pasquale has never explained
exactly what he feared. But we prefer to treat the case as
if Pasquale had said what we think is apparent: that the
government had overwhelming proof against him on counts I and
II but little direct proof of conspiracy, and he did not wish
to help it to close this gap.
Even assuming that Pasquale had said all this plainly
and at the outset, we think that the denial of the severance
would still have to be sustained. The limited case law on
Scivola- type motions does not greatly illuminate the
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question just how "important" must be the defendant's
proffered testimony or what kind of "strong" reasons explain
the need not to testify on other counts. But obvious
considerations of judicial economy support trying all related
counts against the same defendant at one time. And while the
courts zealously guard a defendant's Fifth Amendment right
not to testify at all, the case law is less protective of a
defendant's right to testify selectively, addressing some
issues while withholding testimony on others that are
related. See Brown v. United States, 356 U.S. 148, 155-56
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(1958).
The facts of this case do not argue strongly for a
severance. Pasquale's testimony that the hand guns were "for
fun" might have been of some help to him, although his
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general "gun enthusiast" story was presented through other
witnesses. Even if he had testified, it is still unclear (no
proffer was made) how he could have explained the fact that
one or both of the guns were apparently loaded, one--found
under his bed--was a semi-automatic pistol and the other--
found in a drawer near the front door--was a high-powered
.357 magnum. This testimony is some distance from, say, a
credible alibi that only the defendant can supply showing him
to have been elsewhere at the time of the crime.
As for the other side of the equation--the need not to
testify--we may assume that honest testimony from the
defendant on the conspiracy issue would have nailed down that
charge. But (as we explain below) the government needed
little help on this score once the drug ledgers and related
testimony as to Lisa's connection to them were considered.
Given the broad discretion permitted to trial courts in
deciding severance questions, Olivo-Infante, 938 F.2d at
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1409, we think that in this case the denial of severance was
assuredly not an abuse of that discretion.
In short, the government charged Pasquale with closely
related offenses: drug trafficking, conspiracy, and use of a
firearm in connection with trafficking. If Pasquale wanted
to testify on the firearm charge and deny the use of the
handguns in connection with drug trafficking, the nature and
scope of his drug trafficking would normally be a fit subject
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for cross examination; and it is inherent in such an
examination that it might help the government prove the
conspiracy charge. The Fifth Amendment protects the
defendant's right to choose whether to testify. It does not
assure that the testimony will only benefit the defendant.
McGautha v. California, 402 U.S. 183, 213 (1971).
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Turning to Pasquale's other arguments, the second string
to his bow on appeal is a claim that the court erred in
admitting the drug ledgers. One set of papers had been found
inside a stove in the kitchen; the other set was in the
living room. They contained entries concerning various
transactions, including amounts and customer names. The
government not only introduced the ledgers but, over
objection, offered expert handwriting and print evidence that
associated both ledgers in some degree with Lisa and one of
them with Hamilton.
Pasquale's brief says that it was error to admit the
ledgers because the government failed to offer evidence,
independent of the ledgers, to show that they qualified as
co-conspirator statements made in furtherance of the
conspiracy. Under Fed. R. Evid. 801(d)(2)(E), a statement
avoids hearsay objections if the trial judge finds by a
preponderance of the evidence that an out-of-court statement
was made by a co-conspirator and was made in furtherance of
the conspiracy. See Bourjaily v. United States, 483 U.S. 171
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(1987). It may lessen the confusion that surrounds drug
ledger evidence to point out that what needs to be proved for
admissibility depends upon the use to be made of the
evidence.
First, if records manifestly are or are shown by other
evidence to be drug records, they are admissible "real
evidence" tending to make it more likely that a drug business
was being conducted, see United States v. Tejada, 886 F.2d
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483, 487 (1st Cir. 1989), and for this use there is
ordinarily no hearsay problem to be overcome. Rather, the
records help to show "the character and use of the place
where the notebooks were found," United States v. Wilson, 532
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F.2d 641, 645 (8th Cir. 1976), just like drugs, scales and
guns. Here, the nature of the ledgers was indicated not only
by the type of entry--which would have been sufficient--but
also by expert testimony from a DEA agent who gave his
opinion that the records related to drug transactions.3
Second, in this case the ledgers served the further
purpose of helping to prove the existence of a conspiracy.
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3Using the entries to show the character of the ledgers
as drug records does, of course, present some of the risks of
hearsay; but under the modern definition of hearsay, such a
use does not render the entries hearsay because the entries
are not being used to prove the truth of the matter asserted
in the entries (e.g., that a specific transaction took place
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on a particular date). See Fed. R. Evid. 801(c) (hearsay is
an out of court statement offered "to prove the truth of the
matter asserted"); 2 J. Strong, McCormick on Evidence 250,
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at 112 (1992) (collecting cases).
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Pasquale's own involvement in drugs was established by his
pleas and much other evidence, but relatively little direct
evidence in his trial showed active participation by Lisa in
the business (her own admissions to the police were not made
known to Pasquale's jury). Most of the drugs and related
items were found either in Pasquale's areas of the house or
in common areas. But the ledgers, once they were tied to
Lisa by handwriting and print evidence, made the inference of
conspiracy easy.
Once again this use of the ledgers presented no hearsay
problem in this case. The "truth" of individual statements
in the ledgers is beside the point; all that matters is that
the ledgers are drug records to which Lisa may be linked by
other evidence. Nor is there a hearsay problem posed by
testimony from a handwriting or print expert that connected
Lisa to the ledgers. Thus, for the most important use of the
ledgers in this case--to help show more than one participant
and thus a conspiracy--there was no need for a preliminary
finding of likely conspiracy nor any need to satisfy Rule
801(d)(2)(E).
Third, when it made its proffer in support of the
ledgers, the government reserved the right to use the ledgers
to show not only the fact of conspiracy but also, by relying
on specific entries, the dimensions of the conspiracy. To
the extent that the prosecutor wanted to argue that an
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individual entry was "true"--say, one showing a specific sale
of a specific amount to a specific person--then some hearsay
exception or exclusion did need to be satisfied. Here, Rule
801(d)(2)(E) was invoked. In admitting the evidence, the
district court expressly found by a preponderance of the
evidence that the ledgers were made by conspirators in
furtherance of the conspiracy.
These findings were amply supported by admissible non-
hearsay evidence.4 Lisa's presence in the home, with a
marijuana garden in the cellar and drugs and paraphernalia
throughout was highly suggestive. The notion that "presence"
at a crime does not equal guilt is not a ban on common sense
inferences: the evidence of pervasive drug production and
dealing in Lisa's home was material evidence that made her
involvement more plausible. Once she was linked to the drug
ledgers--a linkage that also did not happen to depend on
hearsay--the trial judge could easily conclude that a
conspiracy had been shown and admit the ledgers for the truth
of the statements contained within them.
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4Actually, Fed. R. Evid. 104(a) permits the judge to
consider the hearsay statements for their truth in making the
admissibility findings, see Bourjaily, 483 U.S. at 178-80,
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although this court has recently joined other circuits in
holding that there must be some evidence of conspiracy
independent of the hearsay statements themselves. United
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States v. Sepulveda, Nos. 92-1362 et al., slip op. at 30,
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(1st Cir., Dec. 20, 1993). Here, consideration of the
statements in the ledgers for their truth was entirely
unnecessary (and largely irrelevant) to those admissibility
findings.
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Not only did the evidence of joint drug dealing by
husband and wife satisfy Rule 801(d)(2)(E)--which requires
only a probability or likelihood of conspiracy--but the
evidence amply satisfied the higher standard of proof beyond
a reasonable doubt required for conviction. Although
Pasquale purports to dispute the sufficiency of the evidence
to convict him of conspiracy, we think that this is not a
serious argument and requires no further discussion. Other
claims of error have been considered but need no separate
comment.
Affirmed.
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