
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          February 21, 1996                                [Not for Publication]                                [Not for Publication]                            United States Court of Appeals                            United States Court of Appeals                                For the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
