US v. Fogg

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Kermit V. Lipez, Appellate Judge and Jeffrey R. Howard, Appellate Judge. Published. [09-1094, 09-1132]

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Document: 00116299009

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Date Filed: 12/01/2011

Entry ID: 5599886

United States Court of Appeals
For the First Circuit
Nos. 09-1094
09-1132
UNITED STATES OF AMERICA,
Appellee/Cross-Appellant,
v.
RAYMOND FOGG, a/k/a ROCKY,
Defendant, Appellant/Cross-Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.

Peter
brief, for
Renée
Paula D.
appellee.

E. Rodway, with whom Rodway & Horodyski, P.A. was on
appellant.
M. Bunker, Assistant United States Attorney, with whom
Silsby, United States Attorney, was on brief, for

December 1, 2011

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HOWARD, Circuit Judge.

Date Filed: 12/01/2011

Entry ID: 5599886

Raymond Fogg, Jr. appeals his

convictions for conspiracy to possess with intent to distribute
marijuana

and

for

social

security

fraud,1

claiming

that

the

district court erred by admitting several hearsay statements.

The

government cross-appeals the district court's decision not to
impose a forfeiture order. That decision was based on a finding of
Fogg's inability to pay.

We affirm appellant's conviction.

We

reverse the court's decision to decline to issue a final order of
forfeiture and remand for entry of that order.
I. Background
Fogg's conviction was based on his participation in a
conspiracy to import marijuana from Canada into Maine for re-sale.
The operation was headed by Michael Pelletier, whose conviction we
have affirmed.

See United States v. Pelletier, No. 08-1167, slip

op. (1st Cir. December 1, 2011).

The gist of the scheme was that

Pelletier paid associates to transport marijuana from Canada by
swimming with

the

Madawaska, Maine.

contraband

across

the

St.

John

River

near

The marijuana was then distributed to various

customers for their use or sale.

Fogg was one of those customers.

1

See 18 U.S.C. § 2, 21 U.S.C. § 841(a)(1) and 42 U.S.C. §
408(8)(4).
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II.
During
witnesses

the

testified

Page: 3

Date Filed: 12/01/2011

Evidentiary issues

course
that

of

Fogg's

Pelletier

notes

to

one

of

the

five-day

made

implicating Fogg in the conspiracy.
handwritten

Entry ID: 5599886

trial,

statements

three

to

them

Pelletier also provided

witnesses

detailing

Fogg's

involvement. The testimony and the handwritten notes were admitted
without objection.

On appeal, Fogg claims that all of this

evidence was inadmissible hearsay.
A.

Testimony of Kendra Cyr
Kendra Cyr2 met Michael Pelletier in 2000 and the two

began dating after Pelletier was released from jail in 2001.

She

testified

his

that

customers.3

Pelletier

told

her

that

Fogg

was

one

of

Cyr also testified that she collected money from Fogg

on Pelletier's behalf while Pelletier was incarcerated.
Fogg argues that the trial court erroneously admitted
Cyr's testimony under Federal Rule of Evidence 801(d)(2)(E), which
provides that statements by coconspirators during the course of and
in furtherance of a conspiracy are not hearsay.

He takes specific

aim at the "in furtherance of" prong of the rule.
objection at trial, we review for plain error.

As there was no

See United States

v. Rodriguez, 525 F.3d 85, 100 (1st Cir. 2008) (employing plain

2

Cyr testified pursuant to an immunity agreement.

3

She referred to Fogg by his nickname, "Rocky," which the
indictment lists as Fogg's alias.
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error review where defendant did not seek a ruling

Entry ID: 5599886

at the close of

the evidence regarding coconspirator statements) (citing United
States v. Petroziello, 548 F.2d 20 (1st Cir. 1977)).4

To succeed

under this exacting standard, Fogg must demonstrate that the
district court made an error that was clear or obvious, which
affected the defendant's substantial rights and also seriously
impaired the fairness, integrity, or public reputation of judicial
proceedings.

United States v. Mitchell, 596 F.3d 18, 25 (1st Cir.

2010).
Admission of a coconspirator statement requires that four
elements be satisfied by a preponderance of the evidence:

1) a

conspiracy must have existed; 2) the defendant must have been a
member of it; 3) the declarant must also have been a member; and 4)
the declarant's statement must have been in furtherance of the
conspiracy.

United States v. Colón-Díaz, 521 F.3d 29, 35-36 (1st

Cir. 2008).
As
Pelletier's

previously
statement

noted,

to

Cyr

Fogg

that

contests

Fogg

was

one

customers "was in furtherance of the conspiracy."
trouble

answering

in

the

affirmative.

A

only
of

whether
his

drug

We have little

statement

is

in

furtherance of a conspiracy if it "tends to advance the objects of

4

Defense counsel raised the issue of Cyr's testimony with the
court prior to trial. Such in limine consideration, however, does
not serve to preserve the objection for appeal.
See Walton v.
Nalco Chem. Co., 272 F.3d 13, 24 n.17 (1st Cir. 2001).
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the conspiracy as opposed to thwarting its purpose."
525 F.3d at 101.

Entry ID: 5599886

Rodriguez,

Fogg asserts that rather than enhancing the

object of the conspiracy, Pelletier's statements about Fogg's
involvement was "mere idle chatter underlain by personal rather
than conspiratorial motives." We disagree. Cyr admitted to having
a role in the conspiracy in which she accompanied Pelletier on drug
deliveries and also collected money for him while he was in jail.
Without question, Pelletier's relaying to Cyr the identity of a
customer who owed Pelletier money so that Cyr could collect it was
in furtherance of the conspiracy.

See United States v. Sepulveda,

15 F.3d 1161, 1180 (1st Cir. 1993) ("We think it is common ground
-- and common sense -- that the reporting of significant events by
one coconspirator to another advances the conspiracy.").

We find

no error, plain or otherwise, in the admission of Pelletier's
statements to Cyr.
B.

Testimony of John Parker
John Parker testified that he met Michael Pelletier while

both were incarcerated in a Maine county jail in 2004 and 2005.
After casual conversations between the two led Parker to reveal
that he was skilled in the martial arts, Pelletier offered him a
job both "induc[ing] collections and sales" and swimming marijuana
from Canada across the St. John River into Maine. Parker expressed
interest in the job, and Pelletier, expecting Parker to be released
first, provided him oral and written instructions regarding the

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drug operation. Pelletier also invited Parker to stay at his house
while Parker was working for him, and provided him with handwritten
maps and directions.
Pelletier's handwritten instructions consisted of pages
dedicated to each of his customers, which Parker annotated with his
own handwritten notes. One page indicated that Fogg was a customer
of Pelletier's, and included Pelletier's handwritten instructions
on finding Fogg's home and the price Fogg would have to pay for
marijuana that Parker delivered to him.

Parker testified that a

second page with Fogg's name on it indicated that Fogg received
five pounds of marijuana per purchase and that he owed Pelletier
two debts of $25,000 and $12,000, respectively.
Fogg claims that neither Pelletier's statements to Parker
nor the notes he provided to Parker were made during the conspiracy
or were in furtherance of the conspiracy.

Once again, however, we

discern no error in the admission of this evidence.

Fogg first

argues that the conspiracy ended with Pelletier's November 2004
incarceration, which was before his exchange of information with
Parker. The record suggests otherwise. Pelletier's arrest did not
mandate a finding that the conspiracy had ended. See United States
v. Hudson, 970 F.2d 948, 958 (1st Cir. 1992) (finding that arrest
of

one

coconspirator

did

not

end

defendant's

involvement).

Moreover, as Cyr's testimony made clear, both drug delivery and
money collection continued after Pelletier's arrest.

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In addition,

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Fogg himself testified that the meeting with Cyr to pay down drug
debts took place in approximately September 2005, well after
Pelletier's arrest.

Finally, we observe that the indictment

charges that the conspiracy continued "until a date unknown, but
not earlier than March 31, 2006 . . . ."

We thus conclude that

Pelletier's oral and written statements to Parker were made during
the course of the conspiracy.
We

reach

the

same

conclusion

statements' furtherance of the conspiracy.

with

respect

to

the

Where, as here, Parker

testified that Pelletier wanted him to "take over everything for
him," we are left with no doubt that the statements at issue were
made to "advance the objects of the conspiracy."
F.3d at 101.

Rodriguez, 525

Accordingly, there was no error in the admission of

Parker's testimony.
C.

Testimony of Adam Hafford
Adam

Hafford

was

one

of

the

swimmers

who

ferried

marijuana into Maine from Canada on Michael Pelletier's behalf.
While incarcerated in 2007, Hafford met Michael Easler, who had
previously served in the same role under Pelletier.

According to

Hafford's testimony, while he and Easler discussed their common
history, Easler told him that he had previously delivered marijuana
to Fogg.

Fogg claims on appeal that Hafford's testimony was

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inadmissible hearsay.5

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Entry ID: 5599886

Once again, there was no objection to this

testimony at trial, so we review for plain error.
The government concedes that the jailhouse conversations
between Hafford and Easler likely occurred after the conspiracy
ended, and were not likely to further the conspiracy because Easler
had

already

exhibited

conduct

consistent

with

thwarting

the

conspiracy when he stole money and drugs from Pelletier. Thus, the
statements implicating Fogg would not be admissible under Federal
Rule of Evidence 801(d)(2)(E).
Our inquiry does not end there, however.

In Pelletier,

we held that Easler's jailhouse statements to Hafford implicating
Michael Pelletier in the conspiracy were admissible as an exception
to

the

hearsay

prohibition

pertaining

to

interest.

Pelletier, slip op. at 12-15;

804(b)(3).

The same outcome obtains here.

statements

against

see Fed. R. Evid.
A statement is against

the declarant's penal interest if it "tend[s] to subject the
declarant to criminal liability to such an extent that a reasonable
person would not make the statement unless it were true."
States

v.

Jiménez,

419

F.3d

34,

43

(1st

Cir.

2005)

United
(citing

Williamson v. United States, 512 U.S. 594, 599 (1994)).

In

describing the delivery of marijuana to Fogg, Easler undoubtedly
"inculpate[d] him[self] in criminal acts and conspiracies with

5

Hafford also testified about his own dealings with Fogg, as
well as Pelletier's statements implicating Fogg. This testimony is
not at issue on appeal.
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others to commit criminal acts." United States v. Barone, 114 F.3d
1284, 1297 (1st Cir. 1997).

He also demonstrated "an insider's

knowledge of a criminal enterprise and its criminal activities,"
which is another indication that the statements were against his
penal interest.

Id.

Moreover, as we found in Pelletier, the fact

that Easler was speaking to an inmate with whom he was acquainted,
rather than a police officer, is a circumstance that corroborates
the statements' trustworthiness, and thus their admissibility.
Pelletier, slip op. at 14; Barone, 14 F.3d at 1301.

Accordingly,

we conclude that there was no plain error in admitting Hafford's
testimony.
III.
Shortly

after

the

Forfeiture
jury

verdict,

the

district

court

granted the government's motion for a preliminary forfeiture order
against Fogg in the amount of $264,000, approximating his share of
the drug trafficking proceeds.6

The order was based on 21 U.S.C.

§ 853(a)(1), which provides that persons convicted of certain
federal drug crimes "shall forfeit to the United States . . . any
property constituting, or derived from, any proceeds the person
obtained, directly or indirectly, as the result of such violation

6

The government's proposed figure was based on a combination
of the jury verdict, which found Fogg responsible for at least 50
kilograms (110 pounds) of marijuana, and evidence that it was sold
at $2,400 per pound, for a total of $264,000. Fogg did not object
to the forfeiture, except so as to preserve the issue should his
substantive drug conviction be reversed on appeal.
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. . . ."

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See also Fed. R. Crim. P. 32.2(b)(2) ("If the court finds

that property is subject to forfeiture, it must promptly enter a
preliminary order of forfeiture setting forth the

amount of any

money judgment . . . .").7
In addition to forfeiture, the government, based on
Fogg's

conviction

for

Social

Security

fraud,

also

sought

at

sentencing restitution of approximately $40,000 -- the amount of
benefits Fogg received during his participation in the conspiracy.8
See 18 U.S.C. § 3663.

The district court addressed this latter

issue first and outlined Fogg's considerable debts, including child
support arrearage of $110,000 and $30,000 in credit card and
personal loan debts.

Relying on the statutory mandate that the

defendant's ability to pay be taken into consideration, see 18
U.S.C. § 3663(a)(1)(B)(i)(II), the district court declined to order
restitution.9

See also United States v. Theodore, 354 F.3d 1, 8-9

7

In issuing the preliminary order, the district court agreed
with the government that the term "proceeds" meant gross receipts,
rather than net profits, an issue addressed after Fogg's
indictment, but before his sentencing, by a divided Supreme Court
in United States v. Santos, 553 U.S. 507 (2008). Fogg does not
contest the district court's interpretation of Santos, so we leave
it undisturbed.
Nevertheless, we note that since Fogg's
sentencing, we have held that it was not plain error to instruct a
jury that "proceeds" meant "gross proceeds."
United States v.
Bucci, 582 F.3d 108, 124 (1st Cir. 2009).
8

The fraud charge was based on the fact that Fogg did not
report his income from drug dealing while receiving Social Security
disability benefits due to a serious injury suffered years earlier.
9

At certain points during the sentencing hearing, the district
court appeared to conflate the restitution and forfeiture analyses,
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(1st Cir. 2003) (noting requirement that defendant have ability to
pay restitution).

The government has not appealed this portion of

the district court's sentencing order.

We highlight it here only

to provide context.
Next,

without

further

analysis,

the

district

court

declined to issue a final order of forfeiture.
The district court sua sponte raised this Court's then
recent decision in United States v. Levesque, 546 F.3d 78 (1st Cir.
2008), at the sentencing hearing on January 14, 2009.
context.

We set the

The defendant did not at any point in the trial court

object to the forfeiture order on Eighth Amendment grounds, nor did
he at any time claim that imposition of the forfeiture amount would
constitute

a

deprivation

constitutional violation.

of

his

livelihood

and

amount

to

a

The defendant did not at the hearing

raise Levesque, an Eighth Amendment case decided on October 30,
2008, nor did he ask for a continuance based on Levesque, nor did
he ask for an opportunity to brief Levesque.

Indeed, after

consultation with the defendant, counsel expressly declined to
continue the hearing.

seemingly applying Levesque's Eighth Amendment scrutiny to the
restitution
issue,
even
though
Levesque
itself
concerned
forfeiture, not restitution. On balance, however, the record amply
demonstrates that the court ultimately -- and permissibly -- based
its restitution order on the statutorily mandated consideration of
Fogg's ability to pay.
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The

initial

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discussion

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at

the

hearing

Entry ID: 5599886

assumed

that

Levesque applied to restitution, the topic then under discussion.
Levesque, by its terms, applies to forfeitures, not to restitution.
The court, as stated, determined that no restitution would be
ordered

because

defendant

lacked

the

ability

to

pay.

The

prosecutor conceded this order was within the court's power under
the statute.
As to forfeiture, the only argument advanced by the
defendant was that he intended to appeal the drug convictions, and
the forfeiture order was based on the convictions.

The court

suggested that it could delay the forfeiture decision "and if the
government wants to make an argument that he does have financial
resources,

consistent

prosecution

with

responded

that

Levesque,
forfeiture

it

could

should

do
be

so."
decided

The
at

sentencing, but unfortunately provided no substantive argument as
to whether Levesque applied to these facts.

The court stated, "I

don't see any evidence here that the defendant has the ability to
pay either the forfeiture or the restitution and for that reason,
I'm going to decline to issue a forfeiture and restitution."
The court cited Fogg's inability to pay and its concern
that a forfeiture order in that circumstance would run afoul of the
Excessive Fines Clause of the Eighth Amendment, which we had

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addressed in Levesque.10

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In support of its decision, the court

noted that the government had not demonstrated that Fogg had
financial resources to pay.

Although the district court's concern

for punctilious adherence to Levesque was admirable, we conclude on
de novo review, United States v. Reiner, 500 F.3d 10, 18 (1st Cir.
2007),

that

committed

the

court

other errors.

did

not

Among

correctly

them

were:

apply

Levesque

first,

basing

and
its

forfeiture decision on Fogg's inability to pay; second, placing the
burden on the government to prove that he could pay; and third,
overlooking the fact that defendant had made no Eighth Amendment
argument, no Levesque argument, and had presented no evidence that
the forfeiture order would deprive him of his livelihood.
As noted, our decision in Levesque was issued only a few
months prior to the sentencing in this case.

There, we reviewed an

Eighth Amendment challenge to a forfeiture order exceeding $3
million entered against a "mule" in a marijuana distribution
conspiracy.

546

F.3d at

79.

At

the

outset, we

noted

the

unremarkable proposition that a criminal forfeiture violates the
Excessive Fines Clause if it is "grossly disproportional to the
gravity of the defendant's offense."

Id. at 83 (quoting United

States v. Bajakajian, 524 U.S. 321, 337 (1998)); see also United
States v. Jose, 499 F.3d 105, 111 (1st Cir. 2007); United States v.

10

The Eighth Amendment prohibits "excessive bail," imposition
of "excessive fines," and imposition of "cruel and unusual
punishment." U.S. Const. amend. VIII.
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Heldeman, 402 F.3d 220, 223 (1st Cir. 2005).

Entry ID: 5599886

We also outlined the

traditional factors that a court is to consider in performing the
"grossly disproportional" analysis: 1) whether the defendant falls
into the class of citizens targeted by the criminal statute; 2)
other

penalties

authorized

by

the

legislature

or

Sentencing

Commission; and 3) the harm caused by the defendant. Levesque, 546
F.3d at

83

(citing

Heldeman,

402

F.3d

at

223).

defendant's burden to show unconstitutionality.

It

is

the

Jose, 499 F.3d at

108.
After finding that the district court properly considered
the Heldeman factors, we noted that our Excessive Fines inquiry
runs deeper where a defendant raises the issue of deprivation of
livelihood:

"[A] court should also consider whether forfeiture

would deprive the defendant of his or her livelihood."

Levesque,

546 F.3d at 83, (citing Jose, 499 F.3d at 113) (emphasis added).11
Because the district court did not consider this additional factor,
we remanded Levesque for further consideration.

11

Id. at 85.

We first addressed this issue in Jose, where, after
recounting the Supreme Court's Eighth Amendment disquisition in
Bajakajian, we held that "it would be appropriate to consider" the
potential deprivation of the defendant's livelihood.
Jose, 499
F.3d at 113. As we observed in Levesque, the additional factor
does not come explicitly from Bajakajian, 546 F.3d at 85, but is
our gloss on the Court's comment that the defendant there "d[id]
not argue . . . that full forfeiture would deprive him of his
livelihood, and the District Court made no factual findings in this
regard," Bajakajian, 524 U.S. at 340 n.15.
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Apart from the error in considering a claim never made by
defendant, the court misconstrued Levesque.

Here, instead of

hewing to the analytical framework drawn in Heldeman, the district
court

ostensibly

proceeded

directly

delineated in Jose and Levesque.

to

the

"extra

factor"

Moreover, although the court

purported to apply Levesque, in doing so the court mistakenly
inquired as to whether Fogg had the means to satisfy the judgment
and never reached the actual inquiry under Levesque of whether
Fogg's post-incarceration livelihood would be imperiled by the
forfeiture.
This error was compounded by the court's requiring the
government to shoulder the burden of proving that Fogg could pay a
forfeiture judgment.

See also United States v. Katz, No. 10-1138,

2010 WL 4627872 (1st Cir. Nov. 15, 2010) (finding no plain error in
district court forfeiture order where defendant argued for the
first

time

on

appeal,

without

citing

authority,

that

"excessiveness" may be established with reference to the financial
burden created by the forfeiture order).
While
inquiry."

we

have

not

"define[d]

the

contours

of

this

Levesque, 546 F.3d at 85, it is enough to say, as we did

in Levesque, that "a defendant's inability to satisfy a forfeiture
at the time of conviction, in and of itself, is not at all
sufficient to render a forfeiture unconstitutional, nor is it even
the correct inquiry."

Id. at 85.

Because a money judgment allows

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the government to collect on the forfeiture order "in the same way
that a successful plaintiff collects a money judgment from a civil
defendant[,] . . . even if a defendant does not have sufficient
funds to cover the forfeiture at the time of conviction, the
government may seize future assets to satisfy the order."
IV.

Id.

Conclusion

A forfeiture that is not "grossly disproportional to the
gravity of the defendant's offense," Bajakajian, 524 U.S. at 337,
violates the Eighth Amendment only if it is "so onerous as to
deprive a defendant of his or her ability to earn a living,"
Levesque, 546 F.3d at 85.

While the record contains letters and

other testimonials on Fogg's behalf attesting to his volunteer
contributions in such wide-ranging pursuits as construction and
snowmobile trail building and maintenance, there was no evidence
that the forfeiture order would deprive Fogg of his livelihood.
Appellant's conviction is affirmed.

We reverse the

district court's decision to decline to issue a final order of
forfeiture and remand for entry of a final order of forfeiture
consistent with this opinion.

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