United States Court of Appeals For the First Circuit

Nos. 02-2414, 03-1089, 03-1441

UNITED STATES OF AMERICA,

Appellee/Cross-Appellant,

v.

LEO V. FELTON; ERICA CHASE,

Defendants, Appellants/Cross-Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella and Selya, Circuit Judges.

Lenore Glaser for Leo V. Felton. Timothy G. Watkins, Federal Defender Office, for Erica Chase. S. Theodore Merritt, Assistant United States Attorney, with whom Michael L. Sullivan, United States Attorney, and Emily R. Schulman, Assistant United States Attorney, were on brief for the United States.

July 29, 2005 BOUDIN, Chief Judge. After a nine-day trial, a federal

jury convicted Leo Felton and Erica Chase of a number of offenses

centering around a bank robbery, counterfeiting, and the planned

construction of an explosive device. The district court then

directed a judgment of acquittal for both defendants on one of

these counts--possessing a firearm in furtherance of a crime of

violence. The defendants now appeal from their convictions (and

Felton from his sentence as well); the United States cross-appeals

from the judgment of acquittal ordered by the district court.

We begin with a summary of the background facts.

Although the facts are commonly stated in the light most favorable

to the verdict, this perspective strictly applies only for

challenges to the sufficiency of the evidence; other claims,

including most of those made here (e.g., prejudicial evidence), may

require a more balanced treatment. See Gray v. Genlyte Group,

Inc.,

(1st Cir.), cert. denied,

(2002). However, in this case, most of the raw facts are not

reasonably disputable.

While serving a prison sentence in New Jersey, Felton--an

avowed white supremacist--began plotting with other like-minded

prisoners to set up a small "cell" when he was released in January

2001. The goal of the cell was to incite a "racial holy war"

through violent actions such as murders and bombings of targets

associated with racial and religious minorities. Among the other

-2- prisoners involved in these plans were Thomas Struss, Wesley

Dellinger, and Michael Reid.

By early 2000, Chase had begun corresponding with Felton

through a prison outreach program run by the World Church of the

Creator--a white supremacist group to which Chase belonged. In

their letters Felton and Chase discussed their racist ideologies,

and Felton began to suggest his plans for violent action after his

release, although he did not mention anything specific. Upon his

release, Felton returned to his wife in Ipswich, Massachusetts, and

began putting his plans into action.

From prison, Felton had suggested that his wife purchase

a firearm--purportedly for her own protection. She purchased a

.38-caliber revolver; when he returned to Ipswich, Felton took over

the gun and obliterated the serial number. He also purchased

software and printing supplies to begin producing counterfeit bills

on his home computer. In February 2001, when Struss was released

from prison, Felton invited Struss to stay with him in

Massachusetts and begin their cell's operations in earnest.

Upon Struss' arrival, Struss and Felton agreed that bank

robberies, armored car robberies, and counterfeiting were all

viable options for acquiring funds, and that with the funds thus

acquired, the two would "go underground" and begin to incite

interracial violence by bombing Jewish targets or killing Jewish,

black, or civil rights leaders. Felton told Struss that Chase was

-3- dedicated to their cause and would be joining their cell and

helping with counterfeiting. He also mentioned the possibility of

using fertilizer bombs to carry out their plans.

At the close of the evening, the two men decided that

they would start off with an "easy" robbery designed to build trust

between them. The next morning, Struss entered a bank in Copley

Square scouted by both men, slipped the teller a demand note, and

made off with approximately $1,100 in cash as Felton waited outside

with his wife's gun; the two then fled. After dividing the

proceeds, Felton gave Struss the gun and the two split up, planning

to reunite in a few days' time.

Not long after, Struss was arrested in New Jersey in an

attempted carjacking--apparently in preparation for an armored car

robbery with another cell member in the area. When Struss was

released on bail, Felton told him by telephone to return to Boston

to assume a new identity, noting that Chase had progressed with the

counterfeiting operations and could provide him with a "safe

house." Struss never returned to Boston, choosing eventually to

cooperate with the authorities and testify against Felton and Chase

at trial.

Chase, meanwhile, had continued her correspondence with

Felton, and the two had begun speaking frequently on the phone

after his release. They started to coordinate the specifics of

their counterfeiting operation, and Chase began to plan to move to

-4- Boston and join Felton. Chase confided in a friend and fellow

white supremacist, James Niemczura, that she intended to blow up a

Holocaust or black history museum, and that Felton was planning on

"robbing banks" and "blowing stuff up" after his release and did

not expect to live for more than a year.

In late February 2001, Chase stole money from Niemczura

and sent it to Felton to finance the startup costs of the

counterfeiting operation in Ipswich. By mid-March, she had

purchased a .40-caliber Iberia semi-automatic pistol, and had tried

to purchase a second handgun but was unable to do so. Chase

confided to Niemczura that she had purchased the gun "for

protection . . . [f]rom anyone trying to interfere with her plan"

with Felton.

She said that their plan was "to burn off their

fingerprints with hot oil and assume the identities of missing

children" so that they could "[g]o around and be terrorists," but

she would not specify any further details for fear that Niemczura

would be questioned by law enforcement. Chase did say that

Niemczura would read about their exploits in the papers, and that

she and Felton would go down in history.

In early April 2001, Chase arrived in Boston and moved

into an apartment leased by Felton. The two began to pass

counterfeit bills and gather the materials for a fertilizer bomb,

including a coffee-maker to use as a timing device and a 50-pound

-5- bag of ammonium nitrate fertilizer, both of which were stored in

the apartment. Felton ordered explosive devices, to be delivered

to his Ipswich residence, to ignite the bomb. When Felton told one

of Chase's close friends that they were making a bomb, Chase nodded

in assent. Chase confided in the same friend that she and Felton

were counterfeiting, and she referred to the bomb as her "future"

with Felton.

On April 19, 2001, Felton and Chase were arrested when

Chase attempted to pass a counterfeit bill. Thereafter, Chase

asked her close friend to remove from the Boston apartment the

fertilizer bag, the wiring from the disassembled coffee-maker,

items associated with the counterfeiting (including uncut bills and

software), a box of Chase's correspondence and keepsakes, white

supremacist paraphernalia, and Chase's pistol--which lay loaded on

the nightstand in the same room as the fertilizer. Felton told his

wife in Ipswich to destroy his computer hard drive.

Chase and Felton were charged with conspiring to make and

possess a destructive device in violation of

, see

also

(f), 5861(d) & (f); possessing a firearm in

furtherance of that offense,

(c)(1)(A);

counterfeiting and conspiracy to do so,

§§ 371, 471 & 472; and

conspiring to obstruct, and obstructing, justice, id. §§ 371 &

1512(b)(2)(B). Felton alone was charged with attempting to receive

explosives to injure, kill, or destroy property, id. § 844(d); two

-6- counts of being a felon in possession, id. § 922(g)(1); and two

counts relating to bank robbery and Hobbs Act robbery, id. §§ 371,

1951 & 2113.

At the ensuing trial, the jury convicted both defendants

on all counts, save that it acquitted Chase on the counterfeiting

count. Having reserved the issue during trial, the district court

granted motions for acquittal of both defendants on the charge of

possessing a firearm in furtherance of the bomb-making conspiracy;

the court deemed the evidence insufficient to establish the “in

furtherance” element. United States v. Chase,

(D. Mass. 2002). Felton was sentenced to 262 months in

prison and Chase to 57 months.

On defendants’ appeals, a central argument by Felton-–and

the sole argument to which Chase devoted her opening brief-–is that

the district court erred by admitting evidence of the defendants’

ideological beliefs. Specifically, defendants object to the

introduction of evidence linking them to white supremacist

organizations or activities, including testimony regarding Chase’s

association with Matthew Hale and a photograph of Chase engaging in

a Nazi salute while standing with Hale;1 a World Church of the

Creator pamphlet containing an article written by Chase about

“white power” rallies she had attended; and a separate pamphlet by

1 Matthew Hale is a well-known figure who headed the World Church of the Creator and was convicted in 2004 of plotting to kill a federal judge.

-7- the church that discussed an apocalyptic "future" in which white

women were "publicly gang-raped" by "Negroids."

The argument is that this evidence was highly prejudicial

in the sense that it tended to inflame the jury and encourage it to

decide other than on the merits; that its probative value in

proving the offenses charged was small; and that because its

prejudicial impact greatly outweighed its probative value, it

should have been excluded under the calculus contained in Fed. R.

Evid. 403. The district court’s assessment in such a case is

reviewed under a highly deferential abuse of discretion standard.

United States v. Smith,

(1st Cir. 2002), cert.

denied,

(2003).

Unfortunately for the defendants, evidence of their

beliefs and associations was highly relevant. Chase scarcely

denied counterfeiting but sought to separate herself from the bomb-

making enterprise; showing her motive to engage in the latter was

thus important to the government’s case. And while Felton’s

involvement in the bomb preparations was obvious, his motive was

crucial in establishing that, as required by the statute

prohibiting attempted receipt of explosives,

(d),

his purpose was to kill or injure persons or destroy property.

That defendants’ beliefs and associations tended to show

such motives is obvious, and the government had no similarly

potent, but less prejudicial, means of closing the evidentiary gap.

-8- The material was certainly inflammatory and its potential for

prejudice remained, even though dampened in some measure by the

district court’s efforts to minimize the risk, primarily by

repeated cautionary directions to the jury. But probative value

was not “clearly outweighed” by “the danger of unfair prejudice,”

Fed. R. Evid. 403, and the admission of the evidence was not error

at all, let alone so clearly so as to be an abuse of discretion.

The gang-rape passage deserves separate comment. The

prosecutor not only introduced a pamphlet containing the language

quoted above, but also had a witness read it to the jury until a

defense objection was made. It is hard to justify this tactic of

isolating and repeating this lurid passage--obviously remote from

anything at issue in this case--but the defense objection was

immediately sustained. Given the weight of the evidence, it is

virtually certain that reading this single passage did not cause

the guilty verdicts.

Felton and Chase claim that evidence introduced against

them of letters and other statements of Struss, Dellinger, and Reid

was inadmissible hearsay. Under the governing rule, the government

must prove by a preponderance of the evidence that such out of

court statements were from a member of a conspiracy with

defendants–-not necessarily the one charged--and were made "during

the course and in furtherance of the conspiracy." Fed. R. Evid.

801(d)(2)(E); see Bourjaily v. United States,

, 176

-9- (1987). Proof must go beyond the content of the statements

themselves. United States v. Portela,

(1st

Cir.), cert. denied,

(1999).

Our review of these essentially factual determinations by

the district court is for clear error, Portela,

,

and we find none. The contents of the letters, coupled with

independent evidence such as Struss' testimony, strongly suggest

that all three men played an active role in an unlawful conspiracy

with defendants, whether or not the conspiracy extended as far as

the one for which defendants were convicted. Struss played a

central role in such a conspiracy from his release until his

arrest. Dellinger and Reid's support was limited by their

imprisonment, but both provided advice and recruitment for the

conspiracy from within prison.

Felton's further claim that the introduction of co-

conspirators' statements violates the Sixth Amendment is without

merit. Under the Supreme Court's decision in Ohio v. Roberts,

(1980), the statements fall within a firmly rooted hearsay

exception, so their admission does not violate Felton's Sixth

Amendment rights. See

; see also United States v. Inadi,

(1986) (Sixth Amendment does not require

-10- proof of unavailability of declarant for admission of co-

conspirator statements).2

Separately, Felton claims that the government improperly

used the word "terrorist" throughout trial to describe the

defendants and their actions. It is hard to lay down a general

rule as to epithet and rhetoric because the considerations are

matters of degree: these include accuracy in description, threat of

unfair prejudice, frequency of use, and alternative means of

description. Such judgments turn on particular facts, and much

latitude has to be given to the trial judge on the spot to strike

the proper balance. See United States v. Tierney,

(1st Cir.), cert. denied,

(1985).

Here, “terrorist” is obviously a provocative term,

freighted with images of terrible events. The defendants were not

charged with offenses so labeled, see

et seq.,

but the jury--ignorant of the contents of such sections and

instructed on the elements of the crimes here charged--could not

have thought otherwise. The jurors surely understood the

references in their lay sense as summarizing the central conduct

2 As Felton concedes in his opening brief, the statements are nontestimonial--that is, not made with an expectation that they will be used in court. As such, they are not subject to the latest Supreme Court restriction on the use of out-of-court statements in criminal proceedings. Crawford v. Washington,

(2004).

-11- with which the defendants were charged: a conspiracy to build a

bomb to attack civilian targets to advance an ideological cause.

To describe such plans and the individuals who pursued

them as "terrorist" was certainly an accurate lay use of the term

“terrorist,” and it is not easy to think of some softer description

to summarize the gist of what the government’s evidence suggested.

That the term is highly pejorative is true--but this is a function

of the acts that the defendants engaged in, not the government's

inaccurate description of those acts. Cf. United States v. Jordan,

(7th Cir. 2000).

Technical accuracy is perhaps not conclusive. One can

imagine situations in which an epithet carries connotations well

beyond the crime charged (e.g., “murderer” in a case of negligent

homicide), or cases in which the description is gratuitously

inflammatory, serving no reasonable purpose in summarizing the

government’s position. But neither fault is present here, and,

realistically, the terrorism label can have added little prejudice

compared to the evidence of the bomb building itself. Once again,

absent egregious circumstances these are matters for the trial

judge's judgment.

Finally, as to one of his convictions for violation of

the felon in possession statute,

(g)(1), Felton

claims that the prohibition against possessing firearms in or

affecting commerce should be construed to apply to "only those

-12- firearms whose possession has an actual impact on commerce."

Felton's interpretation is defeated by case law stating that a

firearm's travel in interstate commerce is sufficient to satisfy

the statute. See, e.g., United States v. Adams,

(1st Cir. 2004); United States v. Colón Osorio,

(1st Cir. 2004); United States v. Weems,

(1st

Cir.), cert. denied,

(2003).

This brings us to the government's appeal of the district

court's post-verdict judgment of acquittal. The charge in question

against both defendants was that they had possessed Chase's Iberia

pistol in furtherance of their conspiracy to make and possess a

destructive device. We review the sufficiency of the evidence de

novo, in the light most favorable to the jury's finding of guilt.

The district court’s acquittal can be upheld only if no reasonable

jury could find the elements of the crime charged beyond a

reasonable doubt.

The provision in question--section 924(c)(1)(A) of the

Criminal Code--is nominally concerned with “penalties” for federal

crimes defined elsewhere, and it provides in pertinent part that a

minimum term (here, “not less than 5 years”) applies if the firearm

was possessed “in furtherance of" "any crime of violence or drug

trafficking crime." In this case, the government’s position,

-13- submitted to the jury, was that Chase and Felton possessed Chase's

Iberia pistol “in furtherance of” the bomb-making conspiracy.3

To support a conviction under section 924(c)(1)(A), the

government need not prove that the defendants "actively employed

the firearm in furtherance of" the charged crime of violence, but

it must prove that the firearm was "possessed to advance or promote

the commission of the underlying offense," United States v. Grace,

(1st Cir. 2004); "mere presence of a firearm," it

is said, is not enough,

One question is what the statute and

these quoted glosses mean; the other is whether the evidence was

sufficient to convict each defendant.

One might expect with such a common criminal offense that

the legal framework would be well settled, but, as is so often the

case with general statutory terms, it is not. One could argue, in

particular, about whether the “in furtherance” requirement refers

to subjective purpose or objective potential (or whether either

would do). Statutory language, legislative history, model jury

3 Normally, facts pertinent to sentencing are determined by the judge, not the jury, under a preponderance standard; but case law has long treated section 924(c) as a separate criminal offense. Simpson v. United States,

(1978).

-14- instructions and case law do not cleanly resolve the issue,4 nor

did the instruction given in this case do so explicitly:

To possess a firearm in furtherance of a crime means that the firearm helped to facilitate, forward, advance or promote the commission of the specific crime charged in Count 1. In this case, it is not sufficient for the government to prove simply that a defendant possessed a firearm during the same time that conspiracy to possess a destructive device occurred. The government must prove beyond a reasonable doubt that the firearm had a specific and direct connection to the commission of the crime charged in Count 1 in order for [this] element to be satisfied.

Some factors you may consider when decid[ing] whether either defendant possessed a firearm in furtherance of the crime charged in Count 1 include[] the type of weapon, whether the gun was loaded, whether the weapon was stolen, how accessible it was to the particular defendant, the legality of its possession, and the time and the circumstances under which the firearm was found.

In practice, the same evidence tends to be relevant

whether the ultimate test is objective furtherance or a subjective

purpose to further.5 Similarly, in most cases the result will be

4 See H.R. Rep. 105-344, at 11-12 (1997),

; 2 Sand et al., Model Federal Jury Instructions, Instructions 35-78, 35-79 & 35-80 (2002). Compare First Circuit Committee on Pattern Criminal Jury Instructions, Pattern Jury Instructions (Criminal Cases), § 4.07 (1998) (either objective or subjective test will satisfy prior version of section 924(c)). 5 Often--this case is an exception--there is no direct proof of subjective intent; but even without direct proof, subjective intent, if required, could be inferred from the objective circumstances (e.g., the gun laid on the table during the drug transaction). Conversely, even if the test were strictly objective and focused on the firearm’s capacity to advance the crime, the

-15- the same, whichever ultimate test is used. That appears to be true

here, and there being no challenge to the wording of the

instruction on this score, we focus upon the sufficiency of the

evidence, taking both subjective and objective evidence into

account.

Starting with the objective evidence, the pistol in this

case was loaded and located in the open in the same room as the

fertilizer. It could easily have been used against any effort, if

one had been made by law enforcement, to disrupt the bomb-making or

to apprehend the conspirators. The cases dealing with weapons used

in drug dealings regularly uphold “in furtherance” findings based

on the weapon's capacity to counter resistance.6 Actual use may be

more common in drug deals, but there is no requirement that actual

use be proved.

Additional evidence as to the defendants' subjective

intent supports the view that both Chase and Felton anticipated the

use of a firearm in furtherance of the crime. By Chase's own

defendant’s confessed purpose to use it would be evidence of feasibility. 6 See, e.g., United States v. Garner,

(1st Cir.), cert. denied,

(2003); United States v. Luciano,

, 6 & n.9 (1st Cir. 2003); United States v. Timmons,

(11th Cir.), cert. denied,

(2002); United States v. Mackey,

(6th Cir. 2001), cert. denied,

(2002); United States v. Finley,

(2d Cir. 2001), cert. denied,

(2002); United States v. Ceballos-Torres,

(5th Cir. 2000), cert. denied,

(2001).

-16- admission, to Niemczura, this very pistol was acquired “for her

protection from anyone trying to interfere with her plan” with

Felton--exploits that she said would earn her and Felton a place in

history. References by a defendant to future "plans" can certainly

be vague, as the district court said, Chase,

, but not these references in these circumstances.

As to Felton, even before getting out of prison he sought

to acquire a firearm (through his wife), and there is every reason

to think that, having lost this gun when Struss took it to New

Jersey, he would have used Chase's gun to protect the conspiracy.

This is good evidence of subjective intent, regardless of whether

Chase’s statement to Niemczura was admissible against Felton. To

be admissible, the statement need not have been made to a fellow

conspirator, compare Chase,

, with Fed. R.

Evid. 801(d)(2)(E); United States v. Piper,

(1st

Cir. 2002), so long as it was made to advance the conspiracy.

In subsequently setting aside the jury's verdict, the

district judge invoked the "mere presence" rubric advanced in cases

like Grace, see Chase,

, but this rubric

must be understood in relation to Grace’s further point that active

use is not required. Grace,

. Yes, the unloaded

target rifle in the locked gun closet during a drug deal may be

“merely present”; but the pistol on the table during the same deal,

readily usable to protect the drugs and to intimidate the customer,

-17- is enough to convict. Thus, "presence" can be enough to convict;

and the difference between this and “mere presence” is a matter of

degree and circumstances. Cf. United States v. Ortiz,

(1st Cir. 1992), cert. denied,

(1993).

There is perhaps more force to the district judge’s

caution that "one can surely speculate how the gun might be used to

facilitate the bomb making conspiracy, . . . [but] section 924(c)

requires a more specific inquiry." Chase,

.

Yet the difference between "speculation" and "reasonable inference"

is primarily a matter of probabilities, and while a wholly

insubstantial likelihood of use could defeat liability (e.g., the

antique gun bolted to the wall), this is not such a case.

The risk created by the defendants’ possession of the gun

was real enough to permit a jury to convict. Merely as an example,

had Struss started to cooperate at an earlier stage, agents might

well have apprehended Chase and Felton at their apartment instead

of on the street. Furtherance cases generally do turn on "what

ifs," so depending on the circumstances a gun held "just in case"

may readily support a conviction. Compare Chase,

. Except in the extreme case, this is the kind of call

properly left to the jury.

The district court's analysis of the statute's history

serves mainly to confirm that Congress in its most recent revision

meant to broaden the statute's coverage. See H.R. Rep. No. 105-

-18- 344, at 4-6 (1997),

(explaining the revision as a

response to Bailey v. United States,

(1995)). No one

can be sure just where Congress intended to draw the line, but this

is certainly not the paradigm case of a weapon purchased for some

innocent purpose that happened to be stored near the crime. Cf.

United States v. Lawrence,

(6th Cir. 2002).

The remaining question as to this part of the verdict is

whether, as Chase contends, the district court erred by refusing to

add to the instruction a further gloss sought by Chase’s counsel.7

Counsel argued that, in addition to the “specific and direct”

connection required by the judge’s instruction, the judge should

also tell the jury that the weapon must be “integral” to the bomb-

making conspiracy. The purpose, according to Chase, was to prevent

the jury from convicting on the "mere presence” of the weapon.

In most situations, a judge who charges in the terms of

the statute--the “in furtherance of” language--has substantial

latitude as to whether and how to elaborate. In this instance, the

judge went some distance toward Chase's goal by telling the jury

specifically that “it is not sufficient for the government to prove

7 Chase also objected to the district court's inclusion of the list of factors the jury could take into account in making its "in furtherance" determination, arguing that the use of such factors-- developed in cases involving drug crimes--was inappropriate for non-drug crimes. Yet these fairly general factors--such as whether the gun was loaded and accessible to the defendant--are relevant whatever the crime involved, and certainly do not depend on some exact equation between drug crimes and bomb making.

-19- simply that a defendant possessed a firearm during the same time

that [the] conspiracy to possess a destructive device occurred."

Whether the “specific and direct connection” language is

a perfect gloss does not matter, for Chase herself endorsed that

part of the instruction. As for “integral,” it could easily have

misled the jury into thinking that the gun had to be central or

necessary to the conspiracy, when all that is required for

conviction is that the gun be possessed in furtherance of the

conspiracy. It would arguably have been error to charge in the

fashion sought by Chase; it was certainly not error to refuse to do

so.

The convictions entered by the district court are

affirmed, the sentences are vacated, and the case is remanded for

reinstatement of the conviction of each defendant under section

924(c)(1)(A) and for re-sentencing of each defendant on all counts

of conviction applicable to that defendant. Given the remand for

resentencing, we need not reach claims of error in guideline

calculations urged by Felton.

It is so ordered.

-20-