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[Not for Publication]
[Not for Publication]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

appellant.
Margaret D. McGaughey,
______________________

Assistant

United States

Attorney,

whom Jay P. McCloskey, United States Attorney and Jonathan R. Chapm

________________
_________________
Assistant United States Attorney, were on brief for appellee.

____________________

____________________

Stahl, Circuit Judge.

Stahl, Circuit Judge.
_____________

Following a two-day trial, a

jury

convicted Eugene

distribute

cocaine

Martin of

in violation

possession of cocaine with

of 21 U.S.C.

both

of

21

intent to

U.S.C.

846

and

intent to distribute in violation

841(a)(1) and

convictions,

conspiracy with

841(b)(1)(B).

raising as

his

sole

He now appeals

issue whether

the

district court abused its discretion by allowing testimony at

trial

concerning

brutal

allegedly participated.1

beating

in

which

Martin

had

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

Cumberland

Farms store

arrest, Sullivan agreed

attempt

Sullivan

arrange

evening.

Sullivan

to

arrest

paged

in

her

several

Aaron agreed

both

individual

Berwick, Maine.

cocaine

her supplier,

spoke with

another

to cooperate with

another illegal

After

and

drug

Following

subsequent phone

Aaron and

to meet Sullivan at the

an

Consequently,

Jamison ("Aaron"),

transaction

her

the police in

supplier.

Aaron

at

for

later

calls, in

the appellant

to

that

which

Martin,

Cumberland Farms store

where the previous buy had taken place.

____________________

1.

Codefendant

appeal

Aaron Jamison

initially filed

a notice

of

but that appeal was dismissed for want of prosecution

on November 14, 1995.

-22

Following

equipped Sullivan

some serialized

car,

to

followed

these

phone

calls,

with a hidden radio

currency, and

Cumberland

Farms

in a

separate

vehicle

store.

to

officials

transmitter, gave her

drove her, in

the

Several minutes later, a

police

Sullivan's own

Several

provide

officers

surveillance.

maroon van containing Martin, Aaron

and Aaron's

Farms

the

brother, Harry

parking lot.

front passenger

seat.

Once

Jamison, entered

Martin drove the

seat; Harry

she noticed

the Cumberland

van while Aaron sat in

Jamison occupied

the van, Sullivan

the rear

exited her

car,

walked towards the van and climbed into its middle seat.

then

negotiated the

cocaine,

purchase of

eventually exchanging

had been given for

an eighth

of an

the serialized

two small packets of cocaine.

She

ounce of

currency she

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

of

1993, Martin and Aaron

had beaten an

that, in the fall

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

drugs.

Before

Sullivan took

extensive sidebar

Aaron to conspire to distribute

the stand, the

conference with

-33

the

court held

government and

an

both

defense

During

counsel

the conference,

alleged beating

her

concerning

life

the parties

but also the

because she

Sullivan's proposed

testimony.

discussed not

fact that Sullivan

believed

that Martin

previously murdered someone in New York.

only the

feared for

and

Aaron had

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.

drugs

The government

explained that Leon,

who had sold

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

testimony,

arguing that

conspiracy

to

objection,

ruling that

Leon's debts

conceding

objected

to

the

it had no relevance to

distribute cocaine.

the testimony

were tied to

cocaine.

that the court had

The

proposed

the alleged

court denied

would be

Aaron's

the

relevant if

counsel, while

broad discretion under Fed. R.

-44

Evid.

4032

nonetheless

to

decide

argued

whether

that

the

to

allow

prejudicial

the

testimony,

impact

proposed testimony outweighed its probative value.

declined to

the

jury

violence

prohibit the testimony, but

that "this

defendant

is

of

the

The court

offered to instruct

not being

charged

for

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

lines of

along the

what it

had proposed

at the

sidebar conference.

II.
II.
___

Discussion
Discussion
__________

On appeal, Martin

failure

to exclude

the

challenges the district

testimony concerning

the

court's

beating.

Martin argues that the connection between the beating and any

____________________

2.

Fed. R. Evid 403 provides in relevant part:

Although

relevant,

excluded

if

its

evidence
probative

may

be

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

nonresponsive.

that

an

The

court

answer

given

denied the

sustained the second.

-55

by

Sullivan

was

first objection

and

alleged agreement to distribute

and

the

cocaine was tenuous at best,

that the graphic details elicited about the brutality of

beating

prejudicial.

effectively

were

At

the outset,

forfeited

contemporaneously at

While

this

posed and no

such

and

however, we note

issue

by

unfairly

that Martin

failing

to

object

now-challenged testimony.

about the

proposed

at that

point in

before the jury, no questions

had been

during the

time, no witness was

inflammatory

trial to the

Martin initially

testimony

Lacking

highly

raised concerns

sidebar conference,

evidence about

context,

the

the beating

court

could

had been

not

adduced.

definitively

balance the

government's need

for the evidence

against any

correspondent risk of unfair prejudice that it posed.

any

ruling

failure

at

to

that

raise

point was

subsequent

forfeited the issue.

818

F.2d

97, 105

(1987) (holding

during

trial,

preliminary,

contemporaneous

See, e.g.,
___ ____

(1st Cir.),

that a

does

Martin's

objections

United States v.
_____________

cert.
_____

motion in
__

not

and

denied, 484
______

limine,
______

preserve

an

Thus,

Griffin,
_______

U.S. 844

even one

issue

for

raised

appeal).

Indeed, at oral argument before this court, Martin's counsel,

noting the absence of contemporaneous objections, essentially

conceded

that

Accordingly,

trial

we review

United States v.
_____________

counsel

only for

Winter, 70
______

had

forfeited

plain error.

F.3d 655, 659

the

issue.

See,
___

e.g.,
____

(1st Cir.

1995)

(forfeited errors reviewed only for plain error).

-66

In any event,

error,

in this

case.

there is no

Under

error, much less

Rule 403, a

plain

court may exclude

relevant evidence only if the evidence poses a risk of unfair

prejudice that substantially

See
___

Fed.

district

R. Evid

403.

abuse

We accord

court's judgment

even properly preserved

of discretion.

outweighs its probative

on such

great

value.

deference to

issues, and

will review

assertions of error only for a clear

See, e.g., United States v. Lopez, 944

___ ____ _____________
_____

F.2d 33, 38 (1st Cir. 1991).

The fact

beat

up a

that Martin had

former associate

previously helped

who had

been taking

Aaron

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

personal interest in the success

venture.

Thus, the

evidence was

of the drug distribution

clearly probative on

the

issue of whether an agreement

district

court correctly

evidence

to help

presence

in the van

had conspired

risk of unfair

prejudice.4

his mere

transaction did not

with Aaron.

agree that the

the

needed this

contention that

during the cocaine

scale, we

Furthermore, as

noted, the government

refute Martin's

establish that he

side of the

existed.

On the

testimony posed

Nonetheless, we

other

some

cannot say that

____________________

4.

Specifically, Martin points to Sullivan's statements that

Aaron told her that

and that she had

they had left Leon "dead

and stinking,"

observed Aaron and Martin hitting

-77

Leon and

the risk so

value

as

outweighed the testimony's undeniable

to

constitute

clear

abuse

of

probative

discretion.

Moreover, we think the district court substantially minimized

the

risk by

consider the

carefully instructing the

testimony only for the

the conspiracy.

III.
III.
____

Conclusion
Conclusion
__________

jury that

it should

purpose of establishing

For the

affirmed.
affirmed

foregoing reasons, Martin's

conviction is

____________________

tearing
testified

off

his

that

clothes.
Aaron

punching him, threw a

and

Martin

also

notes that

Martin

"were

kicking

bike at him, [and] they

off all his clothes, [and] took his money."

-88

Myers
[Leon],

made him take