United States v. Martin

Opinion

USCA1 Opinion

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                                [Not for Publication]
                                [Not for Publication]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

                                 ____________________



        No. 95-1577



                                    UNITED STATES,



                                      Appellee,



                                          v.



                         EUGENE M. MARTIN A/K/A DIRK LADSON,



                                Defendant, Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. D. Brock Hornby, U.S. District Judge]



                                 ____________________



                                        Before



                                Cyr, Boudin and Stahl,

                                   Circuit Judges.
                                   ______________



                                 ____________________



            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.


____________________


____________________



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.



                                
            ____________________



            1.  Codefendant  Aaron Jamison  initially filed  a notice  of

            appeal  but that appeal was dismissed for want of prosecution

            on November 14, 1995.



                                         -2-
                                          2



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


-3-
                                          3



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.


-4-
                                          4



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



                                
            ____________________



            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.



                                         -5-
                                          5



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).


-6-
                                          6



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



                                
            ____________________



            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



                                         -7-
                                          7



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


____________________



            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."  



                                         -8-
                                          8