
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2480                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   PASQUALE ALOSA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                                Boudin, Circuit Judge,                                        _____________                         and Pollak,* Senior District Judge.                                      _____________________                                 ____________________            David  H. Bownes,  by  Appointment of  the  Court, with  whom  Law            ________________                                               ___        Office of David H. Bownes, P.C. was on brief for appellant.        _______________________________            David A.  Vicinanzo, Assistant United  States Attorney,  with whom            ___________________        Peter E. Papps,  United States Attorney,  was on brief for  the United        ______________        States.                                 ____________________                                   January 31, 1994                                 ____________________                                    ____________________        *Of the Eastern District of Pennsylvania, sitting by designation.                 BOUDIN,   Circuit  Judge.     On  April  9,   1992,  law                           ______________            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                                                      ___            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                                         -2-                                         -2-            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                            _________            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                                                 __________            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                                         -3-                                         -3-            trafficking.   In a post-trial order, the district court said            that it  refused to grant  the in limine requests  because "a                                           _________            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                         ____   _____________    _____________            1406,  1409 (1st  Cir. 1991).   Further,  a refusal  to sever                                            ____________________                 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.                                         -4-                                         -4-            related counts, naming  the same defendant, may be  the least            _______                     ____            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.            _______                 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.            ___ ______________     _____            1993).   Still, the  second request  suggested that  Pasquale            wanted to testify in  order to deny  that the guns were  used                                            ____________________                 2United States  v. Scivola,  766 F.2d  37, 43 (1st  Cir.                  _____________     _______            1985)  (quoting Baker  v. United  States, 401  F.2d 958,  977                            _____     ______________            (D.C. Cir. 1968), cert. denied, 400 U.S. 965 (1970)).                              ____________                                         -5-                                         -5-            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            _______            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                       ___ _____     _____________            (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                                         -6-                                         -6-            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                                            _____________            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                                         -7-                                         -7-            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).            ________    __________                 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                             ___ _________    _____________                                         -8-                                         -8-            (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                                  ___ ______________    ______            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                                             _____________    ______            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.                                            ____________________                 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                            ____            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,                                             _____________________            at 112 (1992) (collecting cases).                                         -9-                                         -9-            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                                         -10-                                         -10-            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.                                            ____________________                 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,                                     ___ _________            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                                                                   ______            States v.  Sepulveda, Nos.  92-1362 et al.,  slip op.  at 30,            ______     _________            (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.                                         -11-                                         -11-                  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.                 ________                                         -12-                                         -12-
