United States Court of Appeals

For the First Circuit

No. 05-1824

UNITED STATES OF AMERICA,

Appellee,

v.

KURT H. THOMPSON,

Defendant, Appellant.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

 

Before

Lipez, Circuit Judge,

Cyr and Stahl, Senior Circuit Judges.

 

Edward S. MacColl, with whom Thompson, Bull, Furey, Bass &

MacColl, LLC, P.A. was on brief for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D.

Silsby, United States Attorney, was on brief for appellee.

 

June 7, 2006

 
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CYR, Senior Circuit Judge. Defendant Kurt H. Thompson

challenges the district court order convicting him of conspiring to

distribute and possess with intent to distribute 500 or more grams

of cocaine. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), 846. We

affirm.

I

BACKGROUND

In 2003, Justin Canney began purchasing large supplies of

high-purity, uncut cocaine from Jason Higgins in New York for

resale in Maine. Defendant Thompson soon began purchasing from

five to twenty ounces of cocaine per week from Canney, which he

resold to his own customers, whom he identified, inter alia, as

“Jared,” “Dan,” and Frank Cicero, who was also a customer of

Canney’s. Cicero in turn resold the cocaine he acquired from

Canney and Thompson to his own clients. Subsequently, however,

Cicero and Thompson had an argument, and Cicero informed Canney

that he henceforth would purchase cocaine only from him, and not

from Thompson. Eventually Canney asked Thompson to “cut” the pure

cocaine (viz., add fillers to increase the volume and the street

value of the drug) which Canney received from New York, because

Canney was worried that his live-in girlfriend might discover his

drug dealing. Canney’s illicit activities eventually became the

focus of a United States Drug Enforcement Agency (DEA)

investigation, during which his house and person were placed under
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surveillance.

In May 2004, Canney sold Thompson two and one-half ounces

of pure cocaine, and asked that Thompson return it to him "cut,"

for resale to Cicero. On May 3, Thompson arrived at the Canney

residence with five ounces of cut cocaine. Canney concealed the

cocaine in a false-bottom cannister, and he and Thompson drove away

in Canney’s car to deliver the drugs to Cicero. After Canney

committed several traffic violations, the police, who were

cooperating with the DEA investigation, stopped the vehicle and

with Canney’s consent, performed a limited search of the vehicle.

No incriminating evidence was disclosed. As planned, the police

then allowed Canney and Thompson to drive off, followed by

undercover DEA agents. Immediately, Canney made several evasive

driving maneuvers, drove to a vacant lot, and placed several cell

phone calls. 

In due course, Canney and Thompson stopped at a

restaurant for lunch. Undercover agents managed to station

themselves near the Canney and Thompson table, and overheard their

conversation. Thompson stated that he was “freaked out” by the

traffic stop, and when Canney told Thompson how to dispose of

cocaine quickly (viz., dissolving it in water), Thompson stated

that he had “tucked” the evidence during the traffic stop. Upon

exiting the restaurant, Canney and Thompson were placed in custody.

Thompson was found to have $3000 in cash. 
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After questioning Canney and Thompson, the DEA agents

decided to arrest Canney, but released Thompson due to insufficient

evidence that he had been involved in the ongoing drug distribution

engaged in by Canney. Canney eventually entered into a plea

agreement to testify as to Higgins’ and Thompson’s participation in

Canney's drug enterprise. The government sent Thompson a target

letter, and on July 2, 2004, Thompson was arrested, and later

indicted on one count of conspiring to distribute and possess, with

intent to distribute, 500 grams or more of cocaine, see 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(B)(ii), 846. Following a two-day jury

trial, Thompson was found guilty. He now appeals from the ensuing

judgment of conviction.

II

DISCUSSION

A. The Fifth Amendment Claim

Thompson contends that the district court abused its

discretion in denying the motion for mistrial made after DEA

Special Agent Wolf testified that, following Thompson’s arrest,

“[Thompson] declined to make much of any statement.” Thompson

maintains that Wolf’s testimony constituted an improper and unfair

comment on Thompson’s Fifth Amendment right not to be compelled to

be a witness against himself.

During direct examination, the government asked Agent

Wolf: “And what is it that [defendant] told you back at the police
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station?” Wolf answered: “He declined to make much of any

statement other than . . .” The district court sustained defense

counsel’s objection, and Wolf continued with his testimony.

Government counsel then asked: “Did [defendant] say anything to

you?” Wolf responded: “That they [Thompson and Canney] were going

to meet Cicero.” Wolf then testified as to Canney’s comments and

actions on May 3, 2004. Only then did defense counsel move for a

mistrial or for a cautionary instruction based on Wolf’s comment

that Thompson had “declined to make much of any statement.” The

district court denied the motion for mistrial, agreed to give a

cautionary instruction, but warned defense counsel that such an

instruction might cause the jury to focus on Wolf’s comment more

than it had already done so. Defense counsel advised the court

that the defense did not want the curative instruction. 

The defendant has a constitutional right to remain silent

following arrest, and it is inappropriate for the government

intentionally to make or solicit comments concerning a defendant's

exercise of that right. See Griffin v. California, 380 U.S. 609,

615 (1965); United States v. Figueroa-Encarnacion, 343 F.3d 23, 33

(1st Cir. 2003). Any such comment improperly invites the jury to

infer from the defendant’s silence that he had something to hide.

When a defendant challenges such a comment, the district court must

inquire “‘(w)hether the language used was manifestly intended or

was of such a character that the jury would naturally and
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necessarily take it to be a comment on the failure of the accused

to testify.’” Id. (citation omitted). Where the comment is

ambiguous, however, we will not lightly infer either that the

government intended, or that the jury necessarily drew, the most

prejudicial meaning. See United States v. Taylor, 54 F.3d 967, 979

(1st Cir. 1995); United States v. Lilly, 983 F.2d 300, 307 (1st

Cir. 1992). Moreover, even if we were to respond to such a query

in the affirmative, we would not reverse where the government

demonstrates that the comment was harmless beyond a reasonable

doubt. See United States v. Mooney, 315 F.3d 54, 61 (1st Cir.

2002); Lilly, 983 F.2d at 308-09 (noting that new trial is

warranted only “where ‘the offending conduct so poisoned the well

that the trial’s outcome was likely affected’ or when,

alternatively, ‘the breach was so egregious that reversal becomes

a desirable sanction to forestall future prosecutorial

trespasses’”) (citation omitted). Finally, pertinent to the

harmless-error analysis would be, inter alia, “‘the severity of the

misconduct, whether it was deliberate or accidental, the context in

which it occurred, the likely curative effect of the judge’s

admonitions and the strength of the evidence against the

defendant.’” Id. at 308 (citation omitted).

We conclude that the district court committed no manifest

abuse of discretion in denying the Thompson motion for mistrial.

See United States v. Rullan-Rivera, 60 F.3d 16, 18 (1st Cir. 1995);
The unexplained delay in moving for mistrial suggests that 1

defense counsel initially did not view the Wolf comment as so

prejudicial that it warranted a new trial. Unless the defendant

lodges a contemporaneous objection, rarely will we infer that a

comment was unduly prejudicial. See Taylor, 54 F.3d at 979.

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Lilly, 983 F.2d at 308 (noting that district court is in better

vantage to determine if any harm resulting from the comment

necessitates mistrial). “[R]emarks must be examined in context

rather than in isolation in order to ascertain if Fifth Amendment

concerns are implicated.” Id. at 307. Here, there is no evidence

that the prosecutor intentionally solicited the Wolf comment. In

fact, since the prosecutor had asked Wolf what Thompson had told

him at the police station, Wolf’s answer was non-responsive.

Further, Wolf did not state that Thompson refused to make a

statement, but that he did not make “much” of a statement. See

Kibbe v. DuBois, 269 F.3d 26, 38-39 (1st Cir. 2001) (noting case

law holding that in some circumstances, once defendant waives his

right to remain silent and makes a statement, it may be permissible

to comment on what statements he did not make). Before Wolf could

elaborate, however, the district court sustained defense counsel’s

objection. No further comment was made on the matter. See Lilly,

983 F.2d at 307 (noting that improper comment was less likely to

cause harm where it was an “isolated instance” during a long

trial).

Several minutes later, defense counsel abruptly moved for

a mistrial, and the district court offered to give a curative 1
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instruction. See United States v. Freeman, 208 F.3d 332, 339 (1st

Cir. 2000) (“Where ‘a curative instruction is promptly given, a

mistrial is warranted only in rare circumstances implying extreme

prejudice.’”) (citation omitted); United States v. Sepulveda, 15

F.3d 1161, 1184 (1st Cir. 1993) (“[C]ourts have long recognized

that, within wide margins, the potential for prejudice stemming

from improper testimony or comments can be satisfactorily dispelled

by appropriate curative instructions.”); cf. Mooney, 315 F.3d at 61

(noting that improper comment on defendant’s silence was cured by

emphatic and prompt curative instruction); Lilly, 983 F.2d at 308

(same). Defense counsel voluntarily declined this offer after the

court cautioned that an instruction might invite the jury to focus

on the Wolf comment more than it had when the comment was made.

See United States v. Brandon, 17 F.3d 409, 446 (1st Cir. 1994)

(“The level of prejudice, if any, was not sufficiently significant

to overturn the judge's decision to accept the defendants’ tactical

choice to forgo more appropriate methods of addressing the

potential prejudice in favor of the unrealistic and unnecessary

solution of a dismissal or a new trial.”). In its final charge,

the district court emphatically instructed the jury on the

presumption of innocence and the government’s burden to prove the

alleged offense beyond a reasonable doubt (e.g., “The law does not

compel any defendant in a criminal case to take the witness stand

and testify. No presumption of guilt may be raised and no
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inference of any kind may be drawn from the fact that Kurt Thompson

did not testify. For any of you to indulge such an inference or

suggestion would be most improper.”), see Mooney, 315 F.3d at 61;

Taylor, 54 F.3d at 980; United States v. Turner, 892 F.2d 11, 13-14

(1st Cir. 1989), and we normally presume that juries follow their

instructions, see Sepulveda, 15 F.3d at 1185. We therefore

conclude that the district court permissibly found that the

prosecutor did not intentionally solicit the Wolf comment and that

it was not “of such a character that the jury would naturally and

necessarily take it to be comment on the failure of the accused to

testify.” Figueroa-Encarnacion, 343 F.3d at 33.

In any event, the government’s case against Thompson was

remarkably strong. See Taylor, 54 F.3d at 980 (relying on the

“potency of the government’s proof,” where testimony was

“unequivocal and corroborated on many points,” in concluding that

prosecutor’s comments were not prejudicial). To cite but a few

examples, Canney testified in detail about his multiple drug

transactions with Thompson during 2003 and 2004, about Thompson’s

agreement to "cut" the cocaine supplies, and that Thompson was

reselling his cocaine to customers including Frank Cicero.

Canney’s live-in girlfriend testified that Canney and Thompson

frequently associated, and that she once observed cocaine inside

Thompson’s Dodge Truck. Law enforcement agents attested to their

surveillance on May 3, 2004, including Thompson’s suspicious
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behavior and incriminating remarks prior to his detention, to the

drugs and other incriminating evidence seized in the searches of

the Canney car and home, and to the discovery that Thompson was

carrying $3000 in cash at the time he was detained. Thus, even if

we were to assume, arguendo, that the Wolf comment adverted to

Thompson’s exercise of his Fifth Amendment rights, that comment was

isolated in context, the court afforded defendant an adequate

remedy which he freely declined, and the government’s case vastly

outweighed any potential for prejudice.

B. The Co-conspirator Statements

Next, Thompson contends that the district court erred in

admitting into evidence – as a statement made by Thompson’s coconspirator under Federal Rule of Evidence 801(d)(2)(E) – Frank

Cicero’s comment to Canney that he now wanted to buy his drugs only

from Canney because Cicero and Thompson had had a falling out.

Thompson maintains that the Cicero statement is inadmissible

hearsay since the government did not present any evidence that he

and Cicero were co-conspirators, or that Cicero made the statement

“in furtherance of the conspiracy,” and that Cicero instead stated

that he no longer wanted to be associated with Thompson. 

District court rulings admitting evidence under Rule

801(d)(2)(E) are reviewed only for clear error. See United States

v. Castellini, 392 F.3d 35, 50 (1st Cir. 2004). Following the

procedures set forth in United States v. Ciampaglia, 628 F.2d 632,
The Thompson forfeiture is hardly a surprise, given the trial 2

evidence that Canney, Thompson, and Cicero were all drug sellers

with a common source of supply (viz., Higgins in New York), and

that Canney and Thompson were on their way to deliver cocaine to

Cicero on the day of their arrest.

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638 (1st Cir. 1980), the district court provisionally admitted the

Cicero statement. At the close of all the evidence, the district

court explicitly ruled that the government had shown by a

preponderance of the evidence that the Cicero statement met all

requirements of Rule 801(d)(2)(E). See United States v.

Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977) (requiring that court

make explicit findings that it is “more likely than not that the

declarant and the defendant were members of a conspiracy . . . and

that the statement was in furtherance of the conspiracy”). 

First, Thompson never raised the argument below that the

Cicero statement was inadmissible on the ground that the government

failed to prove that Thompson and Cicero were members of the same

conspiracy. Consequently, it is forfeited on appeal. See United

States v. Paradis, 351 F.3d 21, 28 n.6 (1st Cir. 2003). Second, 2

the Cicero statement “furthered” the conspiracy in that it placed

Canney on notice that two of his co-conspirators – Thompson and

Cicero – no longer intended to deal directly with one another.

Cicero did not state his intention to withdraw from the extant

conspiracy, however, nor was it essential to their status as coconspirators that he and Thompson continue to maintain direct

contact with one another. See United States v. Soto-Beniquez, 356
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F.3d 1, 19 (1st Cir. 2003) (“The government need not show that each

conspirator knew of or had contact with all other members.”), cert.

denied, 541 U.S. 1074 (2004). The district court thus made all the

necessary findings of fact required by Petrozziello, none of which

are clearly erroneous. Consequently, it acted well within its

discretion in admitting the Cicero statement under Rule

801(d)(2)(E).

C. The Co-conspirator’s Guilty Plea

Thompson next contends that the district court erred in

allowing the government to introduce, in its case in chief, the

fact that Canney and Higgins had entered a guilty plea to the

conspiracy charge, and in not providing a cautionary instruction

that the jury should only consider the evidence as it pertained to

the credibility of Canney and Higgins, not to Thompson’s guilt.

Thompson incorrectly states that the court did not give

a limiting instruction. In its final charge, the court stated: “As

for the guilty pleas of Jason Higgins and Justin Canney, you may

consider their respective pleas in assessing their individual

credibility, but you must not consider those guilty pleas as any

evidence against Kurt Thompson.” As Thompson lodged no objection

to the admission of this evidence, but instead elicited the same

evidence during cross-examination to attack the credibility of the

government’s witnesses, we find no error in its admission in

evidence. See United States v. Dworkin, 855 F.2d 12, 30 (1st Cir.
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1988) (noting that evidence of witness’s guilty pleas is admissible

to “dampen the effect of an anticipated attack on the witness’s

credibility,” provided jury is so instructed); see also United

States v. Sullivan, 85 F.3d 743, 749 (1st Cir. 1996) (finding “no

plain error in admitting certain testimony when, among other

problems, the testimony was elicited by defense counsel on crossexamination”) (citation omitted).

D. The Anonymous Letter

Next, Thompson contends that the district court

erroneously admitted in evidence – as Thompson’s own incriminating

statement – an anonymous handwritten letter Canney received in jail

one week after his May 3 arrest, since the government failed to

adduce evidence (e.g., a handwriting expert) that the letter was in

fact sent by Thompson.

We discern no abuse of discretion in the admission of

this letter. “Anonymous correspondence may be sufficiently

distinctive in its ‘appearance, contents, substance, internal

patterns or other distinctive characteristics,’ within the meaning

of Fed. R. Evid. 901(b)(4), to meet the authentication

requirement.” United States v. Bello-Perez, 977 F.2d 664, 671 (1st

Cir. 1992); United States v. Ingraham, 832 F.2d 229, 236 (1st Cir.

1987). A document need not be signed or proven to be in the

defendant’s handwriting to be authenticated. See Bello-Perez, 977

F.2d at 671; United States v. McMahon, 938 F.2d 1501, 1508-09 (1st
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Cir. 1991) (noting that authentication of unsigned note may be

based on circumstantial indicia of authorship). 

The anonymous letter’s content precisely fits Thompson’s

circumstances and predicament in May 2004. Coming only one week

after the Thompson and Canney joint arrests, the letter’s author

stated that “the target letter they gave me still has me losing

sleep at night,” a plain reference to the target letter sent to

Thompson after Canney admitted, to law enforcement agents,

Thompson’s complicity in his drug distribution. See Fed. R. Evid.

901, advisory committee note example (4) (noting that a document

“may be shown to have emanated from a particular person by virtue

of its disclosing knowledge of facts known peculiarly to him”).

The author stated that “they let me go . . . because I didn’t say

anything,” a clear reference to the fact that Thompson was released

from custody after his arrest on May 3, 2004 for lack of evidence,

whereas Canney was not.

Finally, Canney testified that he recognized the return

address, provided in the letter, as Thompson’s residence. See 5

Jack B. Weinstein and Margaret A. Burger, Weinstein's Evidence ¶

901(b)(4)[02], at 901-67 (1991) (noting that “return address” is

valid indicium for authentication purposes). Given these internal

indicia, the district court did not abuse its discretion in

admitting the letter into evidence as a statement of the defendant.

See Fed. R. Evid. 901(a) (noting that authentication of evidence
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“is satisfied by evidence sufficient to support a finding that the

matter in question is what its proponent claims”). 

F. The Sufficiency of the Evidence

Finally, Thompson contends that the district court erred

in denying his motion for judgment of acquittal because the

government proved at most that he and Canney had a mere sellerbuyer relationship, which is insufficient to establish a drug

conspiracy, see United States v. Gore, 154 F.3d 34, 40 (1st Cir.

1998), and did not establish the requisite conspiratorial

“agreement” or “meeting of minds.”

We review de novo the denial of a motion for judgment of

acquittal. See United States v. Hatch, 434 F.3d 1, 4 (1st Cir.

2006). Viewing the evidence and credibility determinations in the

light most favorable to the verdict, we simply inquire whether a

reasonable factfinder could have found defendant guilty beyond a

reasonable doubt. See id.

The government was required to establish that Thompson

agreed with Canney and others, albeit tacitly, to commit the

substantive crime of cocaine distribution, that this was the object

of their agreement, and that Thompson knowingly and voluntarily

participated in the conspiracy. See United States v. Santiago, 83

F.3d 20, 23 (1st Cir. 1996). This is not a close question.

The government adduced ample evidence that Thompson and

Canney were involved in much more than a mere one-time or
Thompson also argues that the district court erred in 3

allowing the government to adduce evidence that his Dodge Truck had

a license plate which read “DIRRTY,” because that evidence was

irrelevant and unfairly prejudicial. As he did not object to this

evidence in the district court, we review only for plain error.

See United States v. Vazquez-Rivera, 407 F.3d 476, 483 (1st Cir.),

cert. denied, 126 S. Ct. 279 (2005). We find none. The government

offered the evidence to show that Thompson drove his girlfriend’s

vehicle when engaging in drug-related business, since her vehicle

had a less conspicuous license plate, and Thompson wanted to avoid

drawing attention.

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transitory seller-buyer relationship. In distinguishing a

conspiracy from a mere vendor-vendee arrangement, the core

consideration is “whether the evidence surrounding the

transaction(s) is sufficient to allow a fairminded jury to find

beyond a reasonable doubt that A knew that B was reselling the

drugs, and intended to facilitate the resales.” Id. at 24. During

their extended relationship, Thompson purchased for resale a total

of 4 kilos of cocaine from Canney, and Thompson expressly told

Canney that he was reselling it to his own clients, including Frank

Cicero. Thompson cut the cocaine for Canney and for himself. On

May 3, 2004, Thompson and Canney were on their way to deliver drugs

to Cicero. Subsequent searches uncovered large quantities of drugs

and cash, thus confirming that this joint drug distribution network

was entrenched, and most definitely not a one-time, small-scale

sales transaction. We accordingly conclude that the government

adduced more than enough evidence that Thompson “agreed” to

conspire with Canney and others in a cocaine distribution scheme.

Consequently, we affirm the jury verdict.3
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Affirmed.