
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1056                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  WILLIAM A. TWITTY,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET            The opinion of this court issued December  28, 1995, is amended as        follows:            Page 3, line 22:  Change "July 1990" to "July 1991".            Page 6,  second full  paragraph, line  9:   Insert the  word "not"        after the word "does".                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1056                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  WILLIAM A. TWITTY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                      Aldrich and Coffin, Senior Circuit Judges.                                          _____________________                                 ____________________            Evan  Slavitt, by  Appointment of  the  Court,  with whom  Mary P.            _____________                                              _______        Murray, and Hinckley, Allen & Snyder were on briefs for appellant.        ______      ________________________            Michael  J.  Pelgro, Assistant  United States  Attorney, Organized            ___________________        Crime Drug Enforcement Task  Force, with whom Donald K.  Stern, United                                                      ________________        States Attorney, was on brief for the United States.                                  ____________________                                  December 28, 1995                                 ____________________                 BOUDIN,  Circuit  Judge.   By a  superseding indictment,                          ______________            William Twitty  was charged with four  others with conspiring            to violate  federal firearms laws  by unlawfully  purchasing,            possessing  and selling handguns.   18 U.S.C.    371.  Twitty            was  also  named in  two  other  counts: one  for  unlawfully            dealing in  firearms, id.    922(a)(1)(A), and the  other for                                  ___            unlawfully  possessing  handguns   with  obliterated   serial            numbers, id.   922(k).   The events alleged took place in the                     ___            Boston area from 1990 to 1993.                    Prior  to trial,  three co-defendants--Erik  Martin, his            wife  Stephanie  Martin,  and  Twitty's  half-brother Stephen            Jordan--pled guilty.   The last co-defendant, Pierre Cameron,            pled guilty after the  jury was selected for his  joint trial            with Twitty.  The evidence against Twitty, taken in the light            most favorable  to the verdict,  United States  v. Brien,  59                                             _____________     _____            F.3d  274, 275  (1st  Cir.), cert.  denied,  116 S.  Ct.  401                                         _____  ______            (1995), permitted the jury to find the following facts (which            we supplement, as required, in discussing individual issues).                 In  January   1990,  Cameron  assisted  Erik  Martin  in            securing a  federal firearms license, enabling  the latter to            order firearms  wholesale through  the mails  and to  deal in            firearms.  Twitty  and the Martins  were very close  friends.            Beginning in March 1990, Erik Martin used his federal license            and local  permits to  acquire handguns for  Twitty, Cameron,            and later Jordan.  Stephanie Martin was involved primarily in                                         -2-                                         -2-            receiving the shipments and,  in one instance, in  placing an            order at Twitty's behest when Erik Martin was unavailable.                 Twitty  introduced Jordan  to  Erik Martin  in September            1990.  While  Jordan often dealt  directly with Erik  Martin,            Twitty and  Jordan were involved  with each other  on certain            occasions.  For example, Twitty delivered purchase money from            Jordan  to Martin in one instance in  late 1990.  In the same            period,  Twitty drove Jordan and Erik Martin to a store where            Jordan  bought a  grinding device,  later used  to obliterate            serial  numbers  from  the guns  and  stored  for  a time  in            Twitty's basement.                   In  early  1991,  shortly after  Jordan's  apartment was            raided by police, Twitty began to order handguns through Erik            Martin on a large scale.   Twitty acquired a beeper.  Despite            having a  very low paying job, Twitty  began to show signs of            unusual prosperity, buying new clothes, jewelry, and cars and            making  large  deposits in  a new  bank  account.   There was            evidence, including  police seizures  of  firearms, that  the            guns ordered by  Twitty were  being resold  illegally in  the            Boston area and that Twitty and Erik Martin were obliterating            the  serial numbers.    Cameron also  bought  guns from  Erik            Martin but in much smaller numbers.                 In July 1991, federal agents tracing a recovered firearm            sought  to interview Erik Martin.   The last  gun shipment to            Martin arrived on July 10 and that same day he conferred with                                         -3-                                         -3-            Twitty  about  the federal  inquiry.   Over the  next several            days, Twitty  sought to destroy evidence  of the transactions            at the Martin house and asked  Martin to have Cameron make up            phony  paperwork  to  help  conceal the  disposition  of  the            weapons.  Twitty also told Erik Martin to file a false police            report  that the latter's records, required to be kept by him            as a licensed dealer, had been stolen.                   At the end  of July,  Twitty left his  home and his  job            without explanation.   Erik  Martin met  him  by accident  in            November  1991  and  they  discussed  the  continuing federal            investigation,  Twitty promising  to help  Martin "straighten            the whole  matter out" so  that Martin could avoid  jail.  In            December 1991,  Twitty was interviewed by  federal agents and            denied knowledge  of the firearms conspiracy.   Shortly after            his  arrest,  in  September  1993,  Twitty  gave  handwriting            exemplars that were intentionally distorted.                 At trial,  Twitty  did not  contest the  existence of  a            firearms  conspiracy, virtually  conceding that  a conspiracy            existed among Erik Martin and others.  Instead, Twitty denied            his  own  participation  in  the  conspiracy  and  sought  to            undermine the  credibility of Erik Martin,  who provided much            of  the direct  evidence of Twitty's  involvement.   The jury            convicted Twitty on all three counts.  He was later sentenced            to  97   months'  imprisonment  and  now   appeals  both  his            conviction and his sentence.                                         -4-                                         -4-                 1.    In this  court,  Twitty's boldest  argument  is to            claim,  essentially for  the  first time,  that the  evidence            showed three different conspiracies (between Erik Martin and,            respectively,  Cameron, Twitty,  and Jordan).   Twitty agrees            now  that  the  evidence  was  sufficient  to  show  his  own            involvement but only in the narrow conspiracy between him and            Erik  Martin.  And  he argues that  he was prejudiced  by the            admission  of evidence that  related solely to  the other two            supposedly  separate conspiracies,  those between  Martin and            Cameron and between Martin and Jordan.                   Twitty's argument is a common one in conspiracy appeals.            Whenever  a conspiracy  involves successive  transactions and            multiple  players,  it  is  usually  possible  to  slice  the            enterprise into discrete portions.   Even a single conspiracy            is  likely  to  involve  subsidiary  agreements  relating  to            different individuals and transactions.   And more often than            not,  none  of  the  agreements  is  explicit;  agreement  is            inferred  from  conduct; and  the  conceptual  tests used  to            distinguish  between one  conspiracy and  many are  not sharp            edged.  See, e.g., United  States v. Drougas, 748 F.2d 8,  17                    ___  ____  ______________    _______            (1st Cir. 1984).                 In this case, the government offers a number of  answers            to Twitty's  argument, including a  claim that he  waived it,            but  we think that taken together  two points are sufficient.            First,  ample evidence  linked  Twitty and  Jordan to  single                                         -5-                                         -5-            conspiracy  with the  Martins.   Twitty introduced  Jordan to            Erik Martin;  conveyed money from Jordan  to Martin; traveled            with both when Jordan purchased  a grinding device that could            obliterate   serial   numbers;  pressed   Martin   to  expand            operations after  Martin lost some of Jordan's gun-purchasing            money; discussed  gun deliveries  with Jordan; and  stayed in            continuing touch with him.                 On  the bases of  these and other  connections, the jury            did not have  to stretch  to conclude that  Twitty, Erik  and            Stephanie Martin,  and Jordan conspired  together to traffick            in  weapons.  Twitty's and Jordan's illegal dealings with the            Martins occurred in the same time frame, in the same area and            in  the same manner.  Taking these overlaps together with the            direct contacts  between Twitty and  Jordan, we think  that a            single hub  and spoke conspiracy  among the  four was  shown.            E.g., see United States v. Dworken, 855 F.2d 12, 24 (1st Cir.            ____  ___ _____________    _______            1988).                 Second,  it is more of  a stretch to  include Cameron in            the same conspiracy, although perhaps not impossible.  But if            we  assume  arguendo  that  Cameron  engaged  in  a  separate                        ________            conspiracy  with  the Martins,  we  think  that the  variance            between the larger  five-person conspiracy  charged, and  the            smaller  four-person conspiracy amply  proved against Twitty,            was harmless.  So long as the statutory violation remains the            same,  the jury  can  convict even  if  the facts  found  are                                         -6-                                         -6-            somewhat  different  than  those  charged--so   long  as  the            difference does not cause unfair prejudice.  United States v.                                                         _____________            Glenn, 828 F.2d 855, 858 (1st Cir. 1987).            _____                 No  such prejudice  has been  shown here.   Even  if the            conspiracy charged had been narrowed to four persons, some of            the  evidence against  Cameron  could have  been admitted  to            explain  how Erik Martin began  his business and  how, at the            end, Twitty  attempted  to use  Cameron  to conceal  his  own            wrongdoing.    While  the  evidence  against Jordan  involved            drugs,  Twitty's appeal  briefs  point to  nothing especially            dramatic  about the  bulk  of the  evidence against  Cameron.            Some guns were recovered  from Cameron's apartment but, given            the  guns recovered from Jordan and the Martins and the large            volume of orders by  Martin, the presence of guns  was hardly            in doubt.                 2.    Twitty's  next  set  of  objections  involves  the            admissibility  of evidence  designed  to show  that the  guns            obtained through  the  Martins  were  unlawfully  re-sold  by            Twitty and others.   The first objection is  easily resolved.            During 1991 and 1992, the police recovered from third parties            handguns with obliterated serial  numbers.  The government at            trial  offered evidence  of such incidents  to show  that the            serial  numbers (restored  in whole  or part)  and gun  types            matched  those ordered  by  Martin and  passed on  to Twitty,            Jordan, or Cameron.  Much of this evidence was undisputed.                                         -7-                                         -7-                 As to two such instances, however,  Twitty says that the            evidence  was insufficient to connect the seized guns to guns            ordered  through Martin.   In  one, the  gun types  matched a            delivery  to Martin on the same day; Martin testified that he            had delivered them to Twitty, who immediately ground down the            numbers; and the partly restored numbers matched those of the            guns  Martin  had  received.    All  that  was  required  for            admission was evidence sufficient to permit a reasonable jury            to  conclude that  the  guns were  the  same, Fed.  R.  Evid.            901(a), and that was plainly present.                 In  the other instance, a handgun was recovered six days            after  delivery of three guns of  the same type to Martin for            Twitty.   Although  the recovered  weapon had  an obliterated            serial number, an expert testified that three restored digits            (two others could not be restored) were consistent with those            on  one  of the  guns received  by  Martin six  days earlier.            Again,  this  was  sufficient  for  the  court to  admit  the            evidence, since a rational  jury could find that this  weapon            was one of the guns received by Martin.                 With more cause, Twitty  objects to statistical evidence            offered  at trial  by  the government  for  the same  general            purpose,  namely, to show the conspiracy's resale of guns.  A            Boston police ballistic expert  testified that, in the summer            of  1991, he noticed a sharp increase in police recoveries of            Davis  .380 caliber semiautomatic pistols with serial numbers                                         -8-                                         -8-            obliterated in the same  manner.  Based on  police department            computer  records,  he  testified  that there  were  no  such            recoveries from 1988 to  May 1991 and that from  mid-May 1991            to the  end of the year, there  were 30 such recoveries, plus            13 in 1992 and 9 in 1993.                 According to  the witness,  similar, but  less dramatic,            increases  occurred  in the  same  time frames  in  two other            categories of weapons  with obliterated  serial numbers:  the            Raven .25 caliber semiautomatic pistol and the Intratec Tec-9            9mm semiautomatic pistol.   The significance of these figures            was  that other  government evidence  showed that  Martin had            received at least 255  handguns from July 1990 to  July 1991,            all but about 30 being delivered after April 1, 1991; and 206            of  these  weapons  were  of the  three  types  whose  street            seizures had increased markedly in 1991 and thereafter.                 On appeal, Twitty says that the evidence was irrelevant,            unnecessary, duplicative, and prejudicial.  As to  relevance,            Twitty  does not attack the  quality of the  data, see, e.g.,                                                               ___  ____            United  States v.  Trenkler, 61  F.3d 45,  59 n.21  (1st Cir.            ______________     ________            1995), nor  does this  case involve the  kind of  statistical            inference  whose remoteness from the facts of the case has on            occasion troubled courts.  See, e.g., Smith v. Rapid Transit,                                       ___  ____  _____    ______________            Inc.,  58 N.E.2d 754, 755  (Mass. 1945).   Twitty argues only            ____            that the evidence did not show that the seized guns listed in            the  computer came from the conspiracy, but we think that the                                         -9-                                         -9-            inference  from the  statistics,  the weapon  types, and  the            timing showed enough of a connection.                 Twitty  next  argues--to  support  his  claim  that this            statistical  evidence  was unnecessary  and duplicative--that            the existence of a gun trafficking conspiracy was effectively            conceded  at trial  and that  other non-statistical  evidence            sufficed to prove that  some guns ordered by Martin  had been            resold.    But other  considerations  aside,  the statistical            evidence tended  to support  claims of  sales  by or  through            Twitty  since  he had  prompted many  of  the orders  and the            increase   in   recoveries   coincided   with   his   greater            involvement.   This  reinforced  the very  connection to  the            conspiracy that Twitty sought to deny at trial.                 Twitty's most  direct argument  is that  the statistical            evidence  was unduly prejudicial, tending to  link him with a            gun epidemic in Boston.  Yet proving that the weapons reached            the street merely spells  out what was implicit in  the proof            that  large numbers  of  guns were  delivered  to Martin  for            Twitty  and that  Twitty's financial  condition  had improved            sharply.  The statistical evidence from the ballistics expert            was not lurid or blood-curdling.   The balancing of probative            value  against  unfair  prejudice  is weighted  in  favor  of            admissibility, see Fed. R.  Evid. 403, and confided primarily                           ___            to the sound discretion of the trial judge.  United States v.                                                         _____________                                         -10-                                         -10-            Sutton, 970  F.2d 1001, 1008  (1st Cir. 1992).   There was no            ______            abuse of discretion here.                 3.  Twitty's most potent  claim relates to his sentence.            Under   amendments  effective   on  November  1,   1991,  the            Sentencing  Guidelines increased  the penalties  for firearms            offenses.   Twitty points out that no more guns were obtained            after  July 1991, no sales  after that time  were proved, and            that after July his own contacts with other conspirators were            minimal.    He  contends   that  either  the  conspiracy  was            abandoned  or he had withdrawn  from it prior  to November 1,            1991,  entitling him to the lower penalty available under the            earlier  version of  the guidelines.   See  United States  v.                                                   ___  _____________            Garafano, 36 F.3d 133, 134 (1st Cir. 1994).            ________                 The pre-sentence report said  that the conspiracy should            be  deemed to continue past November 1, 1991, because not all            of the weapons had been recovered by that date; but on appeal            even  the government  does  not defend  this position,  which            would extend  many such conspiracies indefinitely.   Nor does            it matter that the indictment alleged a conspiracy continuing                                          _______            to on or around December 1991 and the  jury convicted, for on            the evidence presented, and under the charge given to it, the            jury  had no reason to  care whether the  conspiracy ended in            July  or December or whether  Twitty withdrew from  it in its            wind-down phase.                                         -11-                                         -11-                 There  is  one  other  basis for  applying  the  amended            guideline  but we  think  that it  is insufficient,  although            possibly  a  close call.    In  an alternative  finding,  the            district judge ruled that  the conspiracy included a cover-up            effort that did continue past November 1991.  Mere efforts to            conceal a crime do  not automatically extend the life  of the            crime  itself, but acts of concealment can extend the life of            a  conspiracy  if  the   proof  shows  "an  express  original            agreement  among  the  conspirators  to continue  to  act  in            concert  in order  to cover  up" their  crime.   Grunewald v.                                                             _________            United  States, 353 U.S. 391, 404 (1957); e.g., United States            ______________                            ____  _____________            v. Bigos, 459  F.2d 639,  643 (1st Cir.),  cert. denied,  409               _____                                   _____ ______            U.S. 847  (1972) (hijacking plan included  explicit agreement            to cover up).                 In this  case the government  does urge that  there were            express agreements  to  conceal when,  as already  recounted,            Twitty  in July 1991  enlisted Martin to  persuade Cameron to            provide  a false cover story to mislead federal agents and to            file  a false  theft report  with the  Boston police.   While            these  events occurred prior to November 1991, Twitty met the            Martins in  November, promising  to help  keep Martin  out of            jail and  thereafter lied  to  federal agents.   If  ordinary            conspiracy rules  governed, the July actions  might be enough            to infer  that the conspiracy  had been  enlarged to  include            concealment as an objective.                                         -12-                                         -12-                 Grunewald,  however, laid  down special  requirements of                 _________            proof resting  upon a  distinct policy concern,  namely, that            "every conspiracy is by its  very nature secret"; that "every            conspiracy will  inevitably be  followed by actions  taken to            cover the conspirators' traces"; and that if these facts were            enough  for a  conspiracy  to conceal,  then  the statute  of            limitations and other safeguards  would be virtually "wipe[d]            out."  353 U.S. at  402.  For this reason, it held  that even            egregious   and  organized  acts   of  concealment  were  not            sufficient,1  unless  agreed  to  as  part  of  the  original            conspiratorial plan.  It summarized the point thusly:                   [A] vital distinction must  be made between acts of                 concealment   done  in  furtherance   of  the  main                 criminal objectives of the  conspiracy, and acts of                 concealment  done  after  these central  objectives                 have  been  attained,  for   the  purpose  only  of                 covering up after the crime.            Id. at 405.              ___                                            ____________________                 1In Grunewald itself, as the Court recounted,                     _________                      [G]reat efforts were  made to conceal the                      conspiracy  when  the danger  of exposure                      appeared.  For example, Bolich got rid of                      certain records showing  that he had used                      Grunewald's  hotel  suite in  Washington;                      Patullo's accountant was persuaded to lie                      to the grand jury concerning a check made                      out to an associate of  the conspirators;                      Grunewald   attempted  to   persuade  his                      secretary not to talk to  the grand jury;                      and the taxpayers were repeatedly told by                      Halperin  and  his  associates   to  keep                      quiet.            353 U.S. at 403.                                         -13-                                         -13-                 While there were arguably explicit agreements to conceal            between Twitty and Martin, they occurred late in the day when            the conspirators  knew that  agents were  on their  trail and            active trafficking in  guns had come  to an abrupt halt.   On            any  realistic view  of the  matter, Twitty  and Martin  were            engaged "only [in] covering up after the crime."   This might            be  a closer case if the conspirators had continued their gun            trafficking and agreed to new measures of concealment as part            of  an expanded conspiracy.   Id. (distinguishing concealment                                          ___            "in furtherance of" an ongoing conspiracy).                 We  do   not  think  that  our   conclusion  involves  a            disagreement with the  able trial judge about  facts he found            or  even  characterizations,  matters on  which  the  clearly            erroneous  standard is  normally applied.   United  States v.                                                        ______________            Wright, 873  F.2d 437, 444 (1st Cir.  1989).  Rather, we read            ______            Grunewald  to impose a special burden to show that an express            _________            agreement to conceal  was, or  at least became,  part of  the            central  conspiratorial  agreement and  that  the later  acts            relied upon were in furtherance of this agreement.  There are            no findings to this effect  in our case and no evidence  that            we think would permit such findings.2                                            ____________________                 2The  government does  rely  on one  set of  concealment            measures that occurred during  the course of the conspiracy--            the obliterating of serial  numbers.  But these arrangements,            probably designed  in part to  increase the selling  price of            the  weapons, were a narrow effort having nothing directly to            do with the acts occurring in or after November.                                         -14-                                         -14-                 Twitty also objects to  the district court's decision to            apply a four-level enhancement for his role in the offense as            an  organizer or leader.   U.S.S.G.   3B1.1(a).   This status            requires  that  the criminal  activity  of  the organizer  or            leader  either  involve  five  or  more  participants  or  be            "otherwise  extensive."   The sentencing  judge found  all of            these  requisites, namely,  that Twitty  was an  organizer or            leader, that there were five  members in the conspiracy,  and            that the activities were otherwise extensive.                   The  evidence indicated  that during  the first  half of            1991,  Twitty made the basic decisions about how many guns to            purchase  and  when  to  buy  and  sell  them,  substantially            increasing  the  number  of   weapons  acquired  through  the            Martins.  A  defendant who "makes the  critical strategic and            operational decisions" in a group enterprise can be deemed an            organizer or  leader.   United States  v. Talladino, 38  F.3d                                    _____________     _________            1255, 1261 (1st Cir.  1994).  By this test,  Twitty qualifies            even without regard to other evidence that tends to reinforce            his prominent role in the group.                 Unless Cameron is considered a member of the conspiracy,            an  issue that  we  do  not  reach,  the  number  of  clearly            established conspirators is only four.  Regardless of numbers            the   criminal   activities   themselves    were   "otherwise            extensive."    The  number  of  guns  obtained  and sold  was            substantial;  the conspiracy  extended over many  months; and                                         -15-                                         -15-            the  arrangements--acquisition from  out  of  state  sources,            obliterating   of   serial  numbers,   and  distribution--was            reasonably elaborate.  That is enough to support the district            court's findings.  See United States v. Rostoff, 53 F.3d 398,                               ___ _____________    _______            414 (1st Cir. 1995).                   Twitty  has raised  several other  claims regarding  the            admissibility  of other  evidence (e.g.,  testimony as  to an                                               ____            admission made  by  Twitty) and  the lack  of an  evidentiary            hearing  at sentencing  on Twitty's  use of  drugs.   We have            examined his arguments on these issues but conclude that they            are without  merit and do not  require individual discussion.            This  is not intended as  criticism of counsel;  the case has            been well briefed on both sides.                 The judgment of conviction is affirmed.  The sentence is                                               ________            vacated  and the  case  remanded for  resentencing under  the            _______                 ________            earlier version of the Sentencing Guidelines.                 It is so ordered.                 ________________                                         -16-                                         -16-
