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United States v. Chisholm

United States Court of Appeals, First Circuit

October 8, 2019

DENZEL CHISHOLM, a/k/a Den, a/k/a Din, Defendant, Appellant.


          Jin-Ho King, with whom Leonard E. Milligan III and Milligan Rona Duran & King LLC were on brief, for appellant.

          Alexia R. De Vincentis, Assistant Attorney General, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

          Before Thompson, Kayatta, and Barron, Circuit Judges.



         Of the seventeen people indicted in this drug case, fifteen pled guilty and two stood trial together - the two being Denzel Chisholm and Molly London. At the trial's end, the jury convicted Chisholm of a variety of offenses, including conspiring to possess heroin with intent to distribute, plus possessing and distributing heroin (these counts of conviction also charged aiding-and-abetting liability) - though the jury acquitted him of being a felon in possession of a firearm. The jury also found that prosecutors proved beyond a reasonable doubt that the conspiracy involved 1 kilogram or more of heroin and that this amount "was attributable to and reasonably foreseeable" to him - to establish that number, prosecutors relied on evidence from controlled buys, [1]non-controlled seizures, intercepted communications, surveillance, and cooperating witnesses. As for London, the jury convicted her of maintaining an apartment for storing and distributing heroin, plus possessing and distributing heroin (the last count of conviction charged aiding-and-abetting liability as well). And the district judge later handed out prison sentences of 342 months to Chisholm, and 20 months to London.

         Only Chisholm's appeal is before us.[2] And he challenges both his convictions and sentence. On the convictions front, he contends that the judge slipped by denying two mistrial motions - the first based on the judge's allowing a government witness to retake the stand and recant some trial testimony, and the second based on London's supposedly offering a defense prejudicially antagonistic to his own. On the sentencing front, he claims that the judge substantively erred by imposing a sentence beyond what Congress intended for the type of drug transactions that went down. The government thinks that nothing here rises to the level of reversible error. We do too and affirm.



         The salient events are not disputed (buckle in, because we have a lot of ground to cover - even though we recount only what is needed to understand the issues on appeal).

         During pretrial discussions about evidentiary issues that might arise if London chose to testify, London's lawyer told the judge that her defense would be that "she was unaware of [Chisholm's] activity in [her] house." Asked by the judge if she planned on "pointing [her] finger . . . at Chisholm as [a] bad guy," London's lawyer replied that her "defense is that she was being taken advantage of; she was betrayed by her best friend who used her." That is an "issue," the judge said. And then the judge asked how things could be "fix[ed] . . . if she takes the stand and points a finger at Chisholm." London's counsel clarified that London "can't say that she knew" the heroin "was Chisholm's because she didn't know it existed there." And given how counsel "rephrased it," the judge saw no need to sever Chisholm from London for trial. Neither did Chisholm's lawyer.

         Jumping to opening statements at trial, we see that the prosecutor told the jury that "Chisholm was the leader of the largest heroin-trafficking organization on Cape Cod." He and "his childhood friends, Christopher Wilkins and Christian Chapman[, ] . . . pooled money to buy large quantities of pure heroin, which they divided among themselves and sold to their respective customers" - all while "stor[ing] their heroin and their drug-trafficking tools at various residences," including London's. The prosecutor then explained that four categories of evidence would seal Chisholm's and London's fate: drug-dealer testimony, like from "Ricky Serriello"; law-enforcement testimony "describing their investigation"; recorded calls and videos made by another cooperating dealer; and "physical evidence" seized from Chisholm's and London's homes.

         Chisholm's lawyer told the jury in his opening that "[i]t's true that [Chisholm] and friends and people he grew up with were drug dealers." So, he added, "what this trial is really about is the weight and scope of the conspiracy." Counsel then painted a picture of "a group of childhood friends who . . . became small street-level drug dealers" - apparently in an attempt to cast doubt on the amount of heroin properly attributed to him.

         In her opening, London's lawyer told the jury that "Molly London had no idea that Denzel Chisholm was selling drugs," because "[h]e took pains to hide his conduct from Molly." London had no clue that Chisholm hid heroin in her house, counsel later stressed, "because [he] took advantage and betrayed her trust over and over again." Chisholm's attorney did not object to London's lawyer's opening statement.

         The government then called its first witness, Serriello. Asked "[w]ho supplied you with the heroin you were caught with," he responded, "I don't really remember." He also claimed that he did not remember testifying before the grand jury, speaking with law-enforcement agents, or giving a proffer outlining his anticipated testimony. Confronted with a copy of his grand-jury testimony, Serriello said that "[m]aybe [he] was high or something," because he "d[idn't] remember saying any of this." Asked specifically about his grand-jury statement that Chisholm had supplied the heroin, he stated, "The Denzel Chisholm I know isn't in this courtroom right now."

         Chisholm's lawyer requested a sidebar conference. Talking with counsel, the judge told them that Serriello and Chisholm "nodded to each other" as they (counsel) were heading toward the bench. "It's clear," the judge added, "that either someone got to [Serriello] or he's terrified." After excusing the jury, the judge asked Serriello - in Chisholm's presence - if anyone had threatened him. "No," he replied. Chisholm's lawyer then questioned Serriello and confirmed that Chisholm had not threatened him. And the judge confirmed that his testimony was that "there is a human being named Denzel Chisholm who sold [Serriello] drugs, but it isn't the guy here." Weighing in, the prosecutor said that Serriello was "clearly perjuring himself," because "[h]e spoke with us yesterday" and had identified Chisholm by photograph. And "[h]e'll probably be indicted for perjury."

         The next morning, the judge revealed at sidebar that Serriello's lawyer had said that "there was a threat to kill Mr. Serriello's child." Over Chisholm's counsel's objection, the judge said that she would conduct an ex parte hearing with Serriello and his attorney during a break in the trial.

         The government then put Stephanie Davis on the stand. A onetime conspiracy member turned government cooperator, Davis called Chisholm "the biggest drug dealer" she knew. For a time, Chisholm and Wilkins came to her apartment once a week with 10 to 30 grams of raw heroin, which they would "cut" (i.e., make less pure) and press into "bricks" containing "a couple of hundred grams" of finished product. Davis also testified that Chisholm sold heroin knowing that it caused people to overdose.

         Chisholm's counsel attacked Davis's credibility on cross-examination - focusing, for example, on how she "was a drug dealer in this group of drug dealers" and had failed a drug test just a few months earlier. As for London's lawyer, she got Davis to agree that a "core" group of drug dealers, a "triad," had worked together here - Chisholm, Chapman, and Wilkins. "[T]hey were the big players[, ] . . . the ones that you regularly interacted with," London's attorney said, to which Davis responded, "Yes." And when London's counsel asked if "within that circle, there were other people [-] either individuals that ran stash houses, addicts who would use and then sell to use, or sell to use and profit [-] underneath them," Davis answered, "Uh-huh."

         After Davis left the stand, Chisholm's lawyer objected, saying that "in a pretrial hearing, we were very clear about evidentiary limits on Ms. London's eventual defense" and that "we're treading awfully close to the issues we . . . discussed." The judge opted to defer ruling on that issue, however. And then she held the ex parte hearing with Serriello and his lawyer.

         About a half-hour later, the judge reported back that Serriello had said that he had gotten some threats involving his daughter from third parties (he did not get names, though). And he was afraid something might happen to him in prison. He also explained that he became nervous on the stand after hearing a clicking sound, as if someone in the courtroom had taken his picture - which is why he had testified the way he did. But he now wanted to testify again.

         Chisholm's attorney objected to any ruling allowing the government to recall Serriello, saying "[t]here's vast prejudice to [Chisholm]" if the judge let Serriello rehabilitate himself by testifying "that he was intimidated into not testifying" the first time. But the judge indicated that she would let prosecutors put Serriello back on the stand and ask one or two questions about the reason for his changed testimony - though they could not mention that the threat involved his daughter, because that info was too prejudicial. Chisholm's lawyer asked for a mistrial, arguing that there was "zero evidence of [his client's] participation" in the threats, yet the jury would have "no choice but . . . to infer that [he] procured that." Implicitly denying the motion, the judge said that she would instruct the jury "that there's no evidence" that any threat "was done at [Chisholm's] request."

         On the stand a second time, Serriello testified that he had lied the day before because he perceived a threat from a "third party." He also fingered Chisholm as his main dealer, from whom he had gotten the 400 grams of heroin found on him when arrested. And he said that he had bought heroin from Chisholm for about a year, at one point buying 500 grams on a weekly basis. Cross-examined by Chisholm's lawyer, he admitted that he had not seen or heard from Chisholm since his (Serriello's) arrest; that he was not saying that Chisholm had threatened him; and that law-enforcement agents had reminded him "in a roundabout way" that testifying falsely put his plea deal in jeopardy.

         The following morning, Chisholm's attorney filed a mistrial motion. In his accompanying memo, counsel wrote that Serriello's recall testimony suggested to the jury that "Chisholm, someone at his command, or someone seeking to assist him threatened . . . Serriello for taking the stand against . . . Chisholm" - which among other things might lead the jury to conclude "that a conspiracy exists because the third-party who threatened . . . Serriello must have some arrangement . . . to try helping [Chisholm]." Also according to counsel, Serriello's testimony was so highly prejudicial as to be incurable by any instructions from the judge. Shifting focus, counsel then argued that "London's opening statement and cross-examinations exceed[ed] the scope of the parties and the [judge's] understanding of . . . London's defense." "Chisholm did not insist on separate trials," counsel noted, "because he expected . . . London's trial defense to be one of lack of knowledge"; but London ended up "point[ing] a finger" at him and "us[ing] the term 'triad[, ]'" a word "linked to organized crime" - all of which "unduly" prejudiced him.

         The judge did not want to rule from the bench, however. But she did give the jury a limiting instruction, explaining that Serriello's testimony about a "perceived threat"

can only be used to assess the credibility of . . . Serriello, whether you believe him or not why he changed his testimony. You cannot use that in any way against . . . either of the defendants, but in particular . . . ...

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