United States v. Fogg
2011 U.S. App. LEXIS 23879
| 1st Cir. | 2011Background
- Fogg was convicted of conspiracy to possess with intent to distribute marijuana and social security fraud in the First Circuit after Pelletier headed a Canada→Maine marijuana operation.
- Pelletier paid associates to swim contraband across the St. John River; Fogg purchased marijuana for distribution.
- Three witnesses testified to statements by Pelletier implicating Fogg, plus handwritten notes detailing Fogg's involvement were admitted.
- Fogg challenged the hearsay evidence, arguing statements by coconspirators were not in furtherance of the conspiracy under Rule 801(d)(2)(E).
- At sentencing, the district court declined to issue a final forfeiture order based on Fogg’s alleged inability to pay; the government challenged this on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether coconspirator statements were admissible | Fogg claims statements to Cyr were not in furtherance of the conspiracy. | Fogg argues Rule 801(d)(2)(E) requires in‑furtherance evidence; no plain error. | No plain error; statements were in furtherance of the conspiracy. |
| Whether Parker and Hafford disclosures were in furtherance or admissible as exception to hearsay | Statements to Parker and Easler implicated Fogg in ongoing conspiracy. | Some statements were made after conspiracy ended and were not in furtherance; issues resolved via Rule 804(b)(3) admissibility against penal interest. | Admissible as statements against penal interest; no reversible error. |
| Whether the forfeiture order violated the Excessive Fines Clause | Levesque requires considering livelihood deprivation and burden on government to prove ability to pay. | District court overlooked livelihood impact and improperly shifted burden; Levesque applied differently. | Forfeiture remanded for entry consistent with Levesque; not properly limited by inability to pay at conviction. |
Key Cases Cited
- United States v. Colón-Díaz, 521 F.3d 29 (1st Cir. 2008) (requires four elements for coconspirator statements to be non-hearsay)
- United States v. Rodriguez, 525 F.3d 85 (1st Cir. 2008) (plain error review for coconspirator statements when no objection raised)
- United States v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993) (statements among coconspirators may advance conspiracy goals)
- United States v. Hudson, 970 F.2d 948 (1st Cir. 1992) (arrest of coconspirator does not end conspiracy)
- United States v. Levesque, 546 F.3d 78 (1st Cir. 2008) (Eighth Amendment analysis for forfeiture; livelihood considerations)
- United States v. Bajakajian, 524 U.S. 321 (1998) (grossly disproportional forfeiture standard for Excessive Fines Clause)
- United States v. Jose, 499 F.3d 105 (1st Cir. 2007) (livelihood considerations supplement gross‑disproportionality analysis)
- United States v. Heldeman, 402 F.3d 220 (1st Cir. 2005) (Heldeman framework for excessive fines analysis)
- United States v. Jiménez, 419 F.3d 34 (1st Cir. 2005) (penal-interest statements as exception to hearsay)
- United States v. Pelletier, 666 F.3d 1 (1st Cir. 2011) (earlier related conspiracy and hearsay determinations guiding this case)