938 F.

2d 347
33 Fed. R. Evid. Serv. 717

UNITED STATES of America, Appellee,

v.
Paul DESMARAIS, Defendant, Appellant.
No. 90-2178.

United States Court of Appeals,

First Circuit.
Heard April 4, 1991.
Decided July 17, 1991.

Stephen L. Maynard, with whom Kinghorn & Maynard, P.A., was on

brief, for defendant, appellant.
Michael J. Connolly, Asst. U.S. Atty., with whom Jeffrey R. Howard, U.S.
Atty., was on brief, for appellee.
Before CAMPBELL, SELYA and CYR, Circuit Judges.
CYR, Circuit Judge.

In June 1989, United States Postal Inspector Wilfred Moores discovered that an
express mail package had been delivered to defendant Paul Desmarais, at his
Nashua, New Hampshire residence. Investigation revealed that the package
bore a non-existent return address. Suspecting a controlled substance shipment,
Moores instructed postal authorities to notify him if any other express packages
were mailed to Desmarais. On October 24, 1989, an express package addressed
to Desmarais, at his residence, arrived at the Manchester, New Hampshire Post
Office, bearing a non-existent return address. Moores obtained a search
warrant, opened the package, and discovered marijuana. Moores resealed the
package and arranged for its delivery to the Desmarais residence. Twenty
minutes after the delivery of the express package, law enforcement officials
entered the Desmarais residence pursuant to a search warrant. In a basement
room with blackened windows, the officers discovered approximately seven
pounds of marijuana and nineteen grams of hashish, along with packaging
material and a triple beam scale. Some of the marijuana was being stored in

seventy to eighty individually-measured packages. The hashish was in

seventeen packets. Magazines, listing current market prices for marijuana, were
found in the basement as well.
2

Desmarais was indicted for possessing marijuana, with intent to distribute, in

violation of 21 U.S.C. Sec. 841(a), and for use of a communication facility in
furtherance of an unlawful possession of marijuana, with intent to distribute, in
violation of 21 U.S.C. Sec. 843(b). The indictment additionally demanded
criminal forfeiture of the Desmarais residence, pursuant to 21 U.S.C. Sec.
853(a)(2), based on the government's claim that the residence had been used to
facilitate commission of the criminal offenses charged in the indictment.

Over defense objection, the substantive criminal charges were tried separately
from the criminal forfeiture claim. The jury found Desmarais guilty on both
substantive counts. The next day, the jury returned a guilty verdict on the
criminal forfeiture count. Desmarais was sentenced to two concurrent threeyear probationary terms, and the district court ordered forfeiture of the
residence.

On appeal, Desmarais challenges the district court bifurcation order. He also

claims that the court, at the trial of the substantive criminal counts, erroneously
admitted evidence and denied directed verdicts of acquittal.1 Desmarais further
contends that the court, at the criminal forfeiture trial, erroneously refused a
requested jury instruction that the government must prove a "substantial
connection" between the alleged criminal conduct and the defendant property.
Finally, he states that criminal forfeiture, in the circumstances of this case,
constitutes cruel and unusual punishment in violation of the eighth amendment.
We affirm.

DISCUSSION
Bifurcation
5

Desmarais challenges the denial of his request for a unitary trial on all counts in
the indictment. Whether a criminal forfeiture count and a substantive count
should be bifurcated for trial is an issue of first impression in this Circuit. Other
courts have either required, see United States v. Sandini, 816 F.2d 869, 874 (3d
Cir.1987), or strongly favored, United States v. Jenkins, 904 F.2d 549, 559
(10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 395, 112 L.Ed.2d 404 (1990);
United States v. Feldman, 853 F.2d 648, 662 (9th Cir.1988), cert. denied, 489
U.S. 1030, 109 S.Ct. 1164, 103 L.Ed.2d 222 (1989); United States v. Cauble,
706 F.2d 1322, 1348 (5th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 996,

79 L.Ed.2d 229 (1984), bifurcation in order to prevent jury confusion and

safeguard the rights of the defendant, or have left bifurcation to the sound
discretion of the district court, United States v. Linn, 880 F.2d 209, 217 (9th
Cir.1989); United States v. Perholtz, 842 F.2d 343, 367 (D.C.Cir.), cert. denied,
488 U.S. 821, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988). No court, to our
knowledge, has determined that a criminal defendant is entitled to a unitary trial
in these circumstances.2
6

Desmarais mistakenly contends that bifurcation prevented him from urging the
jury to invoke its power of nullification. Even in a unitary trial, however, it
would have been improper to urge the jury to nullify applicable law. "[J]urors
may have the power to ignore the law, but their duty is to apply the law as
interpreted by the court, and they should be so instructed." United States v.
Boardman, 419 F.2d 110, 116 (1st Cir.1969), cert. denied, 397 U.S. 991, 90
S.Ct. 1124, 25 L.Ed.2d 398 (1970); see also United States v. Garcia-Rosa, 876
F.2d 209, 226 (1st Cir.1989), vacated on other grounds, --- U.S. ----, 111 S.Ct.
377, 112 L.Ed.2d 391 (1990), citing United States v. Trujillo, 714 F.2d 102,
105-106 (11th Cir.1983) (collecting cases) (stating that this position is
"consistent with that of every other federal appellate court that has addressed
this issue."). "In arguing the law to the jury, counsel is confined to principles
that will later be incorporated and charged to the jury." Trujillo, 714 F.2d at
106 (citation omitted). Accord United States v. Dougherty, 473 F.2d 1113,
1130-1137 (D.C.Cir.1972); United States v. Moylan, 417 F.2d 1002, 10051009 (4th Cir.1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91
(1970). As the defense was not prejudiced, the bifurcation order did not
constitute reversible error.

7(i) Criminal Trial

Admissibility of Evidence
8

Postal Inspector Moores was allowed to testify that his attention became
focused on Desmarais when he discovered that the first express mail package
addressed to Desmarais bore a return address which "was either unknown or did
not exist." Defense counsel objected to Moores' testimony as (i) "bad act"
evidence, inadmissible under Fed.R.Evid. 404(b), and (ii) irrelevant, since there
was no evidence as to the contents of the package, or, if relevant, inadmissible
under Fed.R.Evid. 403 on the ground that any probative value was substantially
outweighed by the risk of unfair prejudice. The court ruled that Moores'
testimony was probative of defendant's "intent and motive" and that its
probative value outweighed any potential prejudice to the defendant.3 The court
offered to instruct the jury that it was to draw no inference that the first express

mail package contained contraband. Defense counsel declined a limiting

instruction on the ground that it might highlight any prejudice to Desmarais.
9

The admissibility of "other acts" evidence under Evidence Rule 404(b) is

analyzed under a two-part test. United States v. Rodriguez-Cardona, 924 F.2d
1148, 1150 (1st Cir.1991); United States v. Oppon, 863 F.2d 141, 146 (1st
Cir.1988). First, the "other acts" evidence must be excluded if "it is relevant
only because it shows bad character (i.e., the proposed logical inference
includes character as a necessary link)." United States v. Ferrer-Cruz, 899 F.2d
135, 137 (1st Cir.1990) (emphasis in original); see also Fed.R.Evid. 404(b).
Second, the probative value of the "other acts" evidence must be weighed
against any potential unfair prejudice to the defendant, Rodriguez-Cardona, 924
F.2d at 1150-1151; Oppon, 863 F.2d at 146; see also Fed.R.Evid. 403; and
"other acts" evidence is to be excluded only when the risk of unfair prejudice
substantially outweighs its probative value, Ferrer-Cruz, 899 F.2d at 138. The
latter determination is entrusted to the discretion of the trial court. United
States v. Hernandez-Bermudez, 857 F.2d 50, 53 (1st Cir.1988). " 'Only rarely-and in extraordinarily compelling circumstances--will we, from the vista of a
cold appellate record, reverse a district court's on-the-spot judgment concerning
the relative weighing of probative value and unfair effect.' " Pinkham v.
Burgess, 933 F.2d 1066, 1071 (1st Cir.1991) (quoting Freeman v. Package
Machinery Co., 865 F.2d 1331, 1340 (1st Cir.1988)).

10

The focus of the court's inquiry concerning the admissibility of Moores'

testimony was whether the testimony tended to make the existence of a "plan,"
or the "absence of mistake or accident," in respect to defendant's receipt of the
second package, more probable than it would have been without Moores'
testimony. The testimony was plainly probative of Desmarais' "knowledge" and
"intent;" for the receipt of the earlier express mail package, which bore a nonexistent return address, tended to make it more probable that the receipt of the
second package, which likewise bore a non-existent return address, was not due
to "mistake or accident." See Fed.R.Evid. 401 & 404(b). The reasonableness of
such an inference was not contingent upon evidence of the contents of the first
package. Even assuming that the first express mail package contained no
contraband, it would be reasonable to infer that Desmarais' receipt of the second
(marijuana-laden) package was not due to "accident or mistake," but to the
existence of a "plan." Regardless of the contents of the first package, there can
be no serious question that the circumstantial similarities common to the two
express mailings were highly probative of defendant's "knowledge" and
"intent," two critical issues in the case.

11

Moreover, the probative value of Moores' testimony outweighed whatever

unfair prejudice could have been caused by any impermissible jury inference
that Desmarais was a person of "bad character." On the one hand, the probative
value of the evidence was enhanced by reason of the fact that Desmarais'
"knowledge," "intent," "plan," and the "absence of mistake or accident," were
matters very much at issue, particularly regarding the communication charge.
See Rodriguez-Cardona, 924 F.2d at 1152 ("probative value of the evidence is
strengthened if the issue on which it is offered is specifically disputed"); see
also United States v. Rubio-Estrada, 857 F.2d 845, 847 (1st Cir.1988) ("other
acts" evidence admissible on controverted issues). On the other hand, the
danger of any impermissible "bad character" inference was minimal. There was
no testimony or other evidence that the first package contained contraband.4
There was no invitation by the government to infer that the defendant was a
person of bad character who acted "in conformity therewith," Fed.R.Evid.
404(b). There was no error in the admission of Moores' testimony.Sufficiency
of the Evidence
12

Desmarais assails the sufficiency of the evidence under each substantive count,
contending in particular that there was insufficient evidence to establish beyond
a reasonable doubt either (i) that he had the requisite "specific intent" to
distribute marijuana, an essential element under each count, or (ii) that he had
caused the package containing the marijuana to be mailed to him, an essential
element in the offense of unlawful use of a communication facility. We review
the denial of judgment of acquittal by assessing whether the evidence and all
reasonable inferences therefrom, viewed in the light most favorable to the
government, could persuade a reasonable jury of defendant's guilt beyond a
reasonable doubt. See, e.g., United States v. Cuevas-Esquivel, 905 F.2d 510,
514 (1st Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 208, 112 L.Ed.2d 169 (1990);
United States v. Mack, 892 F.2d 134, 137 (1st Cir.1989), cert. denied, --- U.S. ---, 111 S.Ct. 162, 112 L.Ed.2d 127 (1990).

13

Seldom can "specific intent" be established by direct evidence. Nevertheless,

specific intent, like any other essential element, may be demonstrated "through
the use of circumstantial evidence so long as the total evidence, including
reasonable inferences, is sufficient to warrant a jury to conclude that the
defendant is guilty beyond a reasonable doubt," United States v. Campa, 679
F.2d 1006, 1010 (1st Cir.1982).

14

The jury was presented with ample circumstantial evidence that Desmarais
intended to distribute marijuana. While it is true that there are circumstances in
which "possession alone may not be enough to prove the requisite state of mind
necessary [to prove] intent to distribute," United States v. Mateos-Sanchez, 864
F.2d 232, 238 (1st Cir.1988), the evidence against Desmarais went far beyond

mere possession of the seven pounds of marijuana and the nineteen grams of
hashish which were found in the basement of the residence. A reasonable
inference of specific intent to distribute was further supported by the evidence
that the controlled substances had been re-packaged into small packets, see,
e.g., United States v. Dotson, 871 F.2d 1318, 1323 (6th Cir.1989), cert. denied,
--- U.S. ----, 111 S.Ct. 94, 112 L.Ed.2d 66 (1990) ("a jury may reasonably infer
intent to distribute drugs from the manner in which the drugs are packaged"),
and by the presence of drug paraphernalia, including a triple beam scale, plastic
baggies, and magazines with current marijuana prices, see, e.g., United States v.
Butler, 763 F.2d 11, 15 (1st Cir.1985) (presence of drug paraphernalia,
including scale and plastic baggies, supports inference of intent to distribute).
15

There was sufficient evidence to support the jury's finding, beyond a reasonable
doubt, that Desmarais caused the marijuana package to be mailed to him.
Desmarais was the addressee of the express mail package containing the
marijuana. The package was addressed to the Desmarais residence and was
received and accepted by Desmarais. The evidence at trial was that an earlier
express package, with a similarly-false return address, had been mailed to
Desmarais. Finally, the search of the Desmarais residence revealed that the
marijuana had been removed and placed in storage in the basement, within
twenty minutes after the marijuana package was delivered to Desmarais at the
residence. The circumstantial evidence was sufficient to support reasonable
inferences that the marijuana package was neither mistakenly sent to, nor
accidentally retained by, Desmarais.

16

There was no error in the denial of the motion for judgment of acquittal.

(ii) Forfeiture Trial

17
Jury Instruction
18

The defense contends that the district court erroneously refused to instruct the
jury that the government, in order to sustain its criminal forfeiture claim, was
required to establish a "substantial connection" between the Desmarais
residence and the criminal offenses Desmarais committed. Instead, employing
almost the literal language of the criminal forfeiture statute, the court instructed
the jury that forfeiture would lie if the Desmarais "property was used, or
intended to be used, in any manner or part, to commit or to facilitate the
commission of the offense[s]," see 21 U.S.C. Sec. 853(a)(2).5 We conclude that
any error was harmless, beyond a reasonable doubt.

19

We have yet to define the degree of interrelatedness required to support a

criminal forfeiture under 21 U.S.C. Sec. 853(a)(2), nor has any other court done
so to our knowledge. Under the civil forfeiture statute, see 21 U.S.C. Sec.
881(a)(7), however, "[w]e have consistently required that there be a 'substantial
connection' between the property forfeited and the drug activity." United States
v. Parcel of Land & Residence at 28 Emery St., 914 F.2d 1, 3-4 (1st Cir.1990)
(21 U.S.C. Sec. 881(a)(7)), see also United States v. One Parcel of Real
Property, 900 F.2d 470, 474 (1st Cir.1990) (same). Although we need not
resolve the matter at this time, the present contention cannot be considered
meritless given that the identical language is used in the criminal and civil
forfeiture statutes to describe the connection required to warrant forfeitures of
real property, compare 21 U.S.C. Sec. 853(a)(2), with 21 U.S.C. Sec. 881(a)(7).
20

Even assuming that the district court's decision to adopt the literal language of
the criminal forfeiture statute could have caused the jury to understand that
some insubstantial connection between the alleged criminal conduct and the
Desmarais residence would warrant forfeiture, we are convinced that any error
was harmless beyond a reasonable doubt. See United States v. Doherty, 867
F.2d 47, 58 (1st Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243, 106 L.Ed.2d
590 (1989) (erroneous instruction on essential element of crime is constitutional
error subject to harmless beyond a reasonable doubt test); Pope v. Illinois, 481
U.S. 497, 502-503, 107 S.Ct. 1918, 1921-1922, 95 L.Ed.2d 439 (1987) (same).

21

Desmarais was found guilty of the substantive criminal offenses charged in the
indictment. All of the evidence introduced to establish Desmarais' criminal
conduct was connected to the Desmarais residence: (i) the express mail package
containing the marijuana was addressed to and received at the residence, and
(ii) the controlled substances and related paraphernalia were discovered in the
basement of the residence; either was sufficient to establish a "substantial
connection" between the residence and the commission of the substantive
offenses. See, e.g., United States v. Real Property and Residence at 3097 S.W.
11th Ave., 921 F.2d 1551, 1556 (11th Cir.1991) (drugs delivered to defendant's
property); United States v. One Parcel of Real Property, 900 F.2d 470, 474 (1st
Cir.1990) (drugs stored on premises). In these circumstances, any error was
harmless beyond a reasonable doubt.6

22

Affirmed.

Desmarais also asserts error in the court's refusal to give a requested instruction
on the use of inferences. Since the instruction was "substantially covered in the
charge actually delivered to the jury," United States v. Gibson, 726 F.2d 869,

874 (1st Cir.), cert. denied, 466 U.S. 960, 104 S.Ct. 2174, 80 L.Ed.2d 557
(1984) (quoting United States v. Grissom, 645 F.2d 461, 465 (5th Cir.1981)),
there was no reversible error. Id
2

Although Desmarais makes a conclusory statement that the language and intent
of 21 U.S.C. Sec. 853 evince a right to a unitary trial of a criminal indictment
that contains a forfeiture count, he cites neither text, legislative history, nor
judicial authority. "It is settled in this circuit that issues adverted to on appeal in
a perfunctory manner, unaccompanied by some developed argumentation, are
deemed to have been abandoned." Ryan v. Royal Ins. Co., 916 F.2d 731, 734
(1st Cir.1990)

In weighing Moore's testimony pursuant to Fed.R.Evid. 403, the district court

appears to have considered it probative of the origination and development of
the criminal investigation, and of the defendant's motive and intent. Since we
find that the testimony was admissible to show, inter alia, "intent," any other
probative value it may have had need not be balanced against any risk of unfair
prejudice to Desmarais

During closing argument, however, the prosecutor did state that "[w]hen the
postman comes up and hands you a package and you go through the whole
process and the whole exchange, and there's a phony address on it, and there
was a phony address on the last one, it doesn't take a wizard or a rocket
scientist to figure out ... that there's something else in these clandestine
packages." (emphasis added). Considering that the court had offered to instruct
the jury that it could not use Moores' testimony to infer that the first package
contained contraband, and given defense counsel's decision to forego the
instruction for the express reason that it might highlight the potential prejudice,
there can be no doubt that the prosecutor would have done better scrupulously
to eschew the emphasized language. Nonetheless, the principal message
conveyed by the prosecutor's statement, viewed as a whole, was that the
similarities in these mailings were indicative of a plan and contraindicative of
accident or mistake. The quoted statement plainly did not invite the jury to infer
that the defendant was a person of bad character based on the receipt of the first
package. Finally, no objection was made, nor is it suggested that the statement
amounted to prosecutorial misconduct. Any error was harmless, at most. United
States v. Moore, 923 F.2d 910, 915 (1st Cir.1991) (absent timely objection,
"plain error" review obtains); United States v. Gomez-Pabon, 911 F.2d 847,
858 (1st Cir.1990) (same)

21 U.S.C. Sec. 853(a)(2) provides for criminal forfeiture of:

any of the person's property used, or intended to be used, in any manner or part,

to commit, or to facilitate the commission of, [a] violation [of this chapter].
6

Finally, Desmarais asserts, in conclusory fashion and without argumentation or

authority, that the ordered forfeiture of his residence, being "grossly
disproportionate" to the crimes for which he was convicted, violates the eighth
amendment prohibition against cruel and unusual punishment. See Solem v.
Helm, 463 U.S. 277, 288, 103 S.Ct. 3001, 3008, 77 L.Ed.2d 637 (1983). Since
Desmarais neither explicates nor substantiates this bald contention, we decline
to address it. United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, -- U.S. ----, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990)