FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Patti B. Saris, U.S. District Judge]
King, with whom Leonard E. Milligan III and Milligan Rona
Duran & King LLC were on brief, for appellant.
R. De Vincentis, Assistant Attorney General, with whom Andrew
E. Lelling, United States Attorney, was on brief, for
Thompson, Kayatta, and Barron, Circuit Judges.
THOMPSON, CIRCUIT JUDGE.
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, 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.
Chisholm's appeal is before us. 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.
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).
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.
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.
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
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.
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."
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
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.
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
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."
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.
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.
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
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.
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.
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
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 . . . ...