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
________________
Office of David H. Bownes, P.C. was on brief for appellant.

whom

_______________________________
David A. Vicinanzo, Assistant United States Attorney, with w
___________________
Peter E. Papps, United States Attorney, was on brief for the Uni
______________
States.
____________________
January 31, 1994
____________________

____________________
*Of the Eastern District of Pennsylvania, sitting by designation.

BOUDIN,
enforcement
home
The

Circuit Judge.
______________
agents armed with

of Pasquale
search

scales,

plastic

unloaded firearms.
of

papers which,

ledgers.

in Loudon,

substantial
basement

bags,

April

9,

1992,

a search warrant

and Lisa Alosa

uncovered

marijuana plants,

On

amounts

"garden"

two loaded

for

handguns,

law

entered the

New Hampshire.
of

marijuana,

growing
and

them,

16 other

Also found were two different collections

for simplicity,

A man named Robb Hamilton

have been referred

to as

was also present on the

premises and was later implicated.

Both

Alosas

indictment that,
charged

Pasquale

and

Hamilton

as expanded
and

by

Lisa

were

later

named

a superseding

in

four

an

indictment,

counts:

manufacture of a controlled substance, 21 U.S.C.

in

unlawful
841 (count

I); possession with intent to distribute, id. (count II); use

___
of

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

distribute, 21 U.S.C.

to

possess

846 (count IV).

with

intent

to

Hamilton was charged

only in count IV.

Prior to
on the gun
The first

trial Pasquale twice moved to

count from his trial

request merely said

testify on the gun

would be

sever his trial

on the other three

that Pasquale

counts.

"may" want

to

count but remain silent on the others and

prejudiced by

joinder of the

counts.

The second

to testify

on anything

-2-2-

request

said that

he did

not want

other than the gun charge and was entitled to testify on that
charge to refute

the suggestions that the guns

drug trafficking.
witnesses

were used in

This request also pointed to

its list of

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

filed a motion

in limine requesting
_________

the government

or any

eliciting testimony
scope of his
testimony,

of the

involvement

with firearms,

possession,

and show

"preclude

co-defendants' counsel

would
explain

that they

Pasquale also now

describe
his

were

[from

matters outside the

[contemplated direct] testimony."

said,

Pasquale

the court to

from him] regarding

the motion

trafficking.

August 1992,

That direct
his

longtime

reasons for

not for

use in

their
drug

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

reaffirmed this denial

the in limine request.

__________

when the request

was renewed at

case in chief.

In

It
the

close of

the government's

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

-3-3-

fun"

and

not

for

drug

trafficking.
that it

In a post-trial order, the district court said

refused to grant

defendant's

testimony

the in limine requests

_________

invites cross

because "a

examination

on topics

made relevant by his direct testimony."

The
juries.1
who

defendants
Pasquale

were

tried

together

did not testify

using

multiple

but did offer

witnesses

described his sporting and collector's interest in guns.

On August 31, 1992, the jury convicted Pasquale on counts III

and

IV--the two

guilty--and
convicted

counts on

which

he had

not already

he now appeals from those convictions.

on counts

II and

IV and

acquitted on

pled

Lisa was
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
from the

in denying

other counts.

his motions to

gun count

Severance for undue prejudice

matter committed to the sound discretion

and a refusal

sever the

is a

of the trial judge,

to sever will be overturned only

for abuse of

discretion.
1406,

E.g.,
____

1409 (1st

United States v. Olivo-Infante,

_____________
_____________
Cir. 1991).

Further,

a refusal

938 F.2d
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

_______
likely candidate for

the same defendant, may be

____
appellate reversal.

counsel--who appears to
and

have played a

foresight--has built a

usual general

claim of

the least

Still,

Pasquale's

weak hand with

case somewhat stronger

potential

confusion or

skill

than the

"spillover"

effects.
Rather,

Pasquale

developed elsewhere

has

but cited

that a defendant may deserve

defendant

makes

"a

sought shelter

in

approvingly in

doctrine,

this circuit,

a severance of counts where the

convincing showing

that

`he

has both

important testimony to
need to

refrain from

give concerning one count

testifying on the

turn requires a defendant to

information"
of

other.'"2

This in

offer in timely fashion "enough

so that the court can weigh "the considerations

judicial economy"

choose

and strong

whether

to

against
testify"

the
as

defendant's "freedom
to

to

particular

charge.

to trial,

Pasquale

Scivola, 766 F.2d at 43.

_______
It may

be doubtful

explained his position

was bland

in adequate detail; his

and conditional

See United States v.

___ ______________
1993).

whether, prior

Still, the

wanted to testify in

and even

his second

Tracy, 989 F.2d

_____
second request
order to deny

first motion
was sparse.

1279, 1283

suggested that

(1st Cir.
Pasquale

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

not

testifying on other counts, Pasquale has never explained

exactly what he feared.

if

Pasquale had

simple proposition.

But we prefer to treat

said what

we think

As for

the case as

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

and at the outset, we think that the denial of

would still have
Scivola_______

type

to be sustained.
motions

not

"important"

the severance

The limited case

greatly

illuminate

proffered

testimony or what kind of "strong" reasons explain

the

not to

on

other

be

the

the

just

testify

must

law on

question

need

how

does

this plainly

counts.

defendant's

But

obvious

considerations of judicial economy support trying all related

counts against the same defendant at one time.
courts

zealously guard a

not to testify at
defendant's
issues
related.

defendant's Fifth

Amendment right

all, the case law is less

protective of a

right to

while

And while the

testify

withholding

See Brown v.
___ _____

selectively, addressing

testimony

on

others

United States, 356 U.S.

_____________

some

that

are

148, 155-56

(1958).
The
severance.
fun"

facts of

this case

do

not argue

strongly for

Pasquale's testimony that the hand guns were "for

might have

been

of

some help

to

him, although

his

-6-6-

general "gun
witnesses.

enthusiast" story

through other

Even if he had testified, it is still unclear (no

proffer was made)

how he could have explained

one or

both of the

under

his bed--was a

found in

was presented

a drawer

.357 magnum.

guns were apparently

the fact that

loaded, one--found

semi-automatic pistol and

near the

This testimony

the other--

front door--was a

high-powered

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
testify--we

other side of the equation--the

may

assume

that

honest

need not to

testimony

from

the

defendant on the conspiracy issue would have nailed down that

charge.

But

little help on
testimony
Given

the

(as we

the government

this score once the drug

as to Lisa's
broad

deciding severance
1409, we

explain below)

ledgers and related

connection to them

discretion permitted
questions,

needed

to

were considered.
trial

Olivo-Infante,
_____________

938

courts in
F.2d

at

think that in this case the denial of severance was

assuredly not an abuse of that discretion.

In short, the government
related

charged Pasquale with

closely

offenses: drug trafficking, conspiracy, and use of a

firearm in connection
to testify
handguns

on the

with trafficking.

firearm charge and

If

Pasquale wanted

deny the

use of

the

in connection with drug trafficking, the nature and

scope of his drug trafficking would normally be a fit subject

-7-7-

for

cross

examination;

examination

that

it

conspiracy

charge.

and

it

is

might help
The

the

Fifth

defendant's right to choose whether

assure

that the testimony

inherent

in

government

Amendment

an

prove the

protects

to testify.

will only benefit

such

the

It does not

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

admitting the drug ledgers.

inside a

stove in

a claim

that the

court erred

in

One set of papers had been found

the kitchen;

the other

set

was in

the

living

room.

They

transactions,
government

contained

including

not

only

entries

amounts and

introduced

concerning various

customer

the

names.

The

but,

over

ledgers

objection, offered expert handwriting and print evidence that

associated both ledgers

in some degree with Lisa

and one of

them with Hamilton.

Pasquale's
ledgers

because the

independent

conspiracy.

that it

government

of the ledgers,

co-conspirator

avoids

brief says

hearsay objections

failed to

to show that

statements
Under Fed.

made

in

if

evidence,

they qualified as

furtherance

the trial

judge

of

the

a statement
finds by

an out-of-court statement

a co-conspirator and was made

the conspiracy.

admit the

offer

R. Evid. 801(d)(2)(E),

preponderance of the evidence that

was made by

was error to

in furtherance of

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,
evidence

if records manifestly are or

to be

drug

records,

they

are shown by other

are

admissible

"real

evidence" tending to make it more likely that a drug business

was being

conducted, see United States v. Tejada,

___ ______________
______

483,

(1st

487

ordinarily
records

Cir.

1989),

and

no hearsay problem

help to

show "the

for

this

use

to be overcome.

character and

886 F.2d
there

is

Rather, the

use of

the place

where the notebooks were found," United States v. Wilson, 532

_____________
______
F.2d 641,
guns.

645 (8th Cir.

scales and

Here, the nature of the ledgers was indicated not only

by the type
also

1976), just like drugs,

of entry--which would have

by expert

testimony

from

a DEA

been sufficient--but
agent

who gave

his

opinion that the records related to drug transactions.3

Second,
purpose

in this

of helping to

case the

ledgers

served the

prove the existence

further

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

pleas and much

drugs was established

other evidence, but relatively

by his

little direct

evidence in his trial showed active participation by Lisa

the business (her own admissions
known to

Pasquale's jury).

items were found

in

to the police were not made

Most of

the drugs

either in Pasquale's areas of

common areas.

But the

in

and related
the house or

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

the
other

ledgers are drug records to which

evidence.

testimony from a

Nor is

there a

Lisa may be linked by

hearsay problem

handwriting or print expert

Lisa to the ledgers.

that

posed by

that connected

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

finding of

likely conspiracy

need for a

nor any need

preliminary

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
on specific entries,
the

extent

that

the dimensions

the

relying

of the conspiracy.

prosecutor wanted

to

argue

To

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

801(d)(2)(E) was

invoked.

district

court expressly

evidence

that the

to be satisfied.

In admitting
found by

were

made

ledgers

Here, Rule

the evidence,

the

preponderance of

the

by

conspirators

in

furtherance of the conspiracy.

These findings
hearsay
marijuana

evidence.4

were amply supported by

Lisa's

garden in the

presence

in the

cellar and drugs

throughout was highly suggestive.

admissible nonhome,

with a

and paraphernalia

The notion that "presence"

at a crime

does not equal guilt is not a ban on common sense

inferences:

the evidence

of pervasive drug

dealing in

Lisa's home was

involvement more plausible.

ledgers--a linkage
hearsay--the

trial

that
judge

production and

material evidence that

Once

also did
could

made her

she was linked to the drug

not happen
easily

to depend

conclude

that

on
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
husband and

only did

the evidence

wife satisfy

of

joint drug

Rule 801(d)(2)(E)--which

dealing by
requires

only

evidence
a

or

likelihood

of conspiracy--but

the

amply satisfied the higher standard of proof beyond

reasonable

Pasquale
to

probability

doubt

required

for

conviction.

Although

purports to dispute the sufficiency of the evidence

convict him

of conspiracy, we

serious argument and

claims of error

think that this

requires no further discussion.

have been

considered but

comment.
Affirmed.
________

-12-12-

need no

is not a
Other
separate