United States v. Madsen , 809 F.3d 712 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1353
UNITED STATES OF AMERICA,
Appellee,
v.
LAWRENCE MADSEN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Kayatta, Selya and Stahl,
Circuit Judges.
Tina Schneider on brief for appellant.
Donald Feith, Acting United States Attorney, and Charles L.
Rombeau, Assistant United States Attorney, on brief for appellee.
January 8, 2016
SELYA, Circuit Judge. Defendant-appellant Lawrence
Madsen asserts that the prosecutor's statements during closing
argument in his criminal trial misstated the evidence, amounted to
proscribed comments on his failure to testify, and improperly
shifted the burden of proof. He further asserts that the district
court abused its discretion in imposing a variant sentence above
the guideline sentencing range (GSR). Finding these claims to be
without merit, we affirm the defendant's conviction and sentence.
I. BACKGROUND
In August of 2014, a federal grand jury sitting in the
District of New Hampshire charged the defendant with seven counts
of aiding and abetting the making of material false statements in
connection with the acquisition of firearms. See 18 U.S.C. §§ 2,
922(a)(6), 924(a)(2). The indictment addressed a series of seven
gun purchases (involving a total of nine guns) by a codefendant,
Bretton Crawford. Crawford eventually pled guilty and thereafter
cooperated with the government. The defendant, however, stood his
ground.
We rehearse the key facts as the jury could supportably
have found them at trial. See United States v. Gobbi, 471 F.3d
302, 305 (1st Cir. 2006). Crawford testified that he had purchased
the guns identified in the indictment as a "straw" for the
defendant, falsely describing himself on federal forms as the real
buyer. According to Crawford, the defendant (a Massachusetts
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resident) relied on Crawford's ability to purchase firearms in New
Hampshire in order to acquire weapons that he (the defendant) could
then re-sell illicitly to third parties. The defendant funded
Crawford's purchases and, in addition, paid him a $100 emolument
for each firearm.
Crawford's version of events was corroborated in
substantial part by the dealers from whom he purchased the guns.
It was also corroborated by text messages between Crawford and the
defendant, text messages between the defendant and a third party,
and a surveillance video showing Crawford and the defendant
together in a gun shop. The defendant did not testify.
At the close of all the evidence, the jury convicted the
defendant on six of the seven counts. During the sentencing
hearing, the district court set the defendant's base offense level
at twelve; added a four-level enhancement because the offense
conduct involved between eight and twenty-four weapons, see USSG
§§2K2.1(a)(7), (b)(1)(B); and placed the defendant in criminal
history category I. Although these calculations yielded a GSR of
21 to 27 months, the court varied upward and imposed a 36-month
term of immurement. This timely appeal followed.
II. ANALYSIS
In this venue, the defendant raises claims of both trial
and sentencing error. We consider these claims sequentially.
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A. The Prosecutor's Closing Argument.
Grasping the defendant's claim of trial error requires
some additional background. In his opening statement, defense
counsel began by telling the jury:
This is Larry Madsen. Larry is innocent of these
charges, ladies and gentlemen. He didn't do what the
government has accused him of doing, and I'm going to
talk to you a little about the evidence in the case.
A few moments later, defense counsel returned to this theme,
declaring: "Well, Larry didn't do it. He's not guilty of these
crimes." Later, defense counsel spoke as if the words were coming
from the defendant:
[H]e told [the police], yeah, I know Bretton Crawford.
He's my friend. And, yeah, I went with him on several
occasions when he purchased guns, but I didn't give him
money. I didn't ask him to go buy guns for me. I didn't
tell him what guns to buy. I didn't do it.
We fast-forward to the government's closing argument.
There, the prosecutor reviewed the evidence introduced at trial.
Near the end of his argument, the prosecutor reminded the jury of
defense counsel's opening statement:
Now, the judge has told you and I'll repeat, a defendant
has no obligation to put on any evidence of any kind.
But I would say it's fair to at least think about what
was told to you in the opening. The defendant's opening
said, quote, I am innocent. Quote, he did not do it.
So you should think about that when you look at the
evidence. Is the defendant innocent? Did he not do it?
Let's consider the evidence that I've told you in teasing
that out. Is he innocent. Did he not do it.
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The defendant did not contemporaneously object to any of these
remarks. Thus, our review of the challenge that he raises for the
first time on appeal is for plain error. See United States v.
Taylor, 54 F.3d 967, 972-73 (1st Cir. 1995).
To obtain relief under this standard, a defendant must
demonstrate "(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected the defendant's substantial
rights, but also (4) seriously impaired the fairness, integrity,
or public reputation of judicial proceedings." United States v.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001). This is a difficult hurdle
to vault: plain error review exists to correct "blockbusters," not
"the ordinary backfires . . . which may mar a trial record." United
States v. Griffin, 818 F.2d 97, 100 (1st Cir. 1987).
The defendant marshals a trio of contentions stemming
from the prosecutor's closing argument. None of these contentions
is persuasive.
1. Mis-quotation. To begin, the defendant suggests
that the prosecutor's mis-quotation of defense counsel's opening
statement constituted prosecutorial misconduct. The premise that
underlies this suggestion is sound: an incorrect recitation of
either the evidence or the record in a closing argument may
constitute prosecutorial misconduct. See United States v.
Azubike, 504 F.3d 30, 38 (1st Cir. 2007). In this context,
"misconduct" is not limited to "deliberate wrongdoing," but may
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include "a statement of fact that is mistaken or unsupported by
any evidence." Id.Nevertheless, the conclusion that the defendant would
have us draw from this premise is questionable. Especially under
plain error review, we must assess the prosecutor's statements
"within the context of the case as a whole." United States v.
Pires, 642 F.3d 1, 14 (1st Cir. 2011). Such an assessment requires
us to consider "the frequency and deliberateness of the
prosecutor's comments, the strength and clarity of the trial
judge's instructions, and the strength of the government's case
against the defendant." United States v. Morales-Cartagena, 987
F.2d 849, 854 (1st Cir. 1993).
Viewed through this lens, the defendant's claim of error
cannot withstand scrutiny. First and foremost, the substantive
difference between the versions is barely visible to the naked
eye. The prosecutor appears to have conflated two of defense
counsel's statements — "Larry is innocent" and (speaking in the
defendant's voice) "I didn't do it" — into the unitary phrase "I
am innocent." It is hard to conceive of such a minor alteration
as a basis for a finding of prosecutorial misconduct. After all,
the prosecutor's statement accurately conveyed the essence of what
defense counsel had said.
Furthermore, the mis-quotation was a one-time
occurrence, and there is no indication that it was deliberate. In
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addition, the district court made clear to the jury, both at the
beginning and at the end of the trial, that statements by counsel
were not evidence. Those lucid instructions dissipated any
realistic threat of prejudice. See, e.g., Pires, 642 F.3d at 15;
United States v. Ortiz, 447 F.3d 28, 36 (1st Cir. 2006); Morales-
Cartagena, 987 F.2d at 855. And, finally, the government's case
against the defendant was robust. Under these circumstances, it
is fanciful to suggest that the prosecutor's trivial mis-quotation
amounted to plain error.
2. Failure to Testify. Taking a different tack, the
defendant asseverates that the excerpted portion of the
prosecutor's closing argument comprised an improper comment on his
failure to testify. We discern no plain error.
It is, of course, common ground that "[c]omment by a
prosecutor on a defendant's failure to testify violates the Fifth
Amendment guarantee against self-incrimination." United States v.
Wihbey, 75 F.3d 761, 769 (1st Cir. 1996). Where, as here, the
allegedly infringing comment is not explicit, an inquiring court
must examine whether "the language used was manifestly intended or
was of such character that the jury would naturally and necessarily
take it to be a comment on the failure of the accused to testify."
United States v. Vázquez-Larrauri, 778 F.3d 276, 286 (1st Cir.
2015) (quoting United States v. Newton, 327 F.3d 17, 27 (1st Cir.
2003)). As this test implies, much depends on context. See United
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States v. Sepulveda, 15 F.3d 1161, 1187 (1st Cir. 1993). And when
— as in this case — no contemporaneous objection occurred, "it
seems fair to give the arguer the benefit of every plausible
interpretation of her words." Id.In the case at hand, there is nothing to suggest a
manifest intent to comment on the defendant's silence. Nor is
there anything to suggest that the jurors would naturally and
necessarily have taken the challenged statement as a comment on
the defendant's failure to testify. Fairly viewed, the
prosecutor's closing was not designed to criticize the defendant's
failure to testify but, rather, was designed to refocus the jury's
attention on the trial evidence. The most natural understanding
of the challenged statement is as a reference back to the words
used by defense counsel in his opening statement. Giving the
arguer the benefit of the interpretive doubt, see id., there was
no plain error.
3. Burden of Proof. In a final variation on his theme,
the defendant complains that the prosecutor's remarks improperly
shifted the burden of proof. This fusillade, too, misses the mark.
To be sure, the government has the burden of proving all
the elements of a criminal charge beyond a reasonable doubt; and
"a prosecutor may cross the line by arguing to the jury that the
defendant is obligated to present evidence of his innocence."
United States v. Diaz-Diaz, 433 F.3d 128, 135 (1st Cir. 2005).
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But that is not what happened here. Even if the challenged
statements are somehow susceptible to a burden-shifting
interpretation — a matter on which we take no view — we cannot
simply assume, in the absence of a contemporaneous objection, that
the jury interpreted the prosecutor's words in the worst possible
light. See Vázquez-Larrauri, 778 F.3d at 286, 287 n.8; United
States v. Wilkerson, 411 F.3d 1, 8-9 (1st Cir. 2005). Stripped of
rhetorical flourishes, the defendant's plaint is nothing more than
an invitation "to fish in the pool of ambiguity," Sepulveda, 15
F.3d at 1188 — and on plain error review, such invitations ought
not to be accepted.
We add, moreover, that any possibility of harm was
ameliorated by the surrounding circumstances. For one thing, the
district court gave strong and explicit instructions about the
burden of proof, the presumption of innocence, and the fact that
the court, not counsel, is the source of the applicable law. For
another thing, there was substantial evidence of the defendant's
guilt. Given the record as a whole, any error surely would not
sink to the level of plain error.1 See Wilkerson, 411 F.3d at 8-
9; Wihbey, 75 F.3d at 770-71.
1 The defendant's reliance on our decision in United States v.
Roberts, 119 F.3d 1006 (1st Cir. 1997), is mislaid. That case
involved a clear burden-shifting statement by the prosecutor: that
"the defendant has the same responsibility [as the government] and
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B. The Sentencing Determination.
The process of determining the reasonableness of a
sentence is bifurcated: an inquiring court must "first determine
whether the sentence imposed is procedurally reasonable and then
determine whether it is substantively reasonable." United States
v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). Generally
speaking, both aspects of this review are for abuse of discretion.
See Gall v. United States, 552 U.S. 38, 46 (2007); United States
v. Martin, 520 F.3d 87, 92 (1st Cir. 2008).
In this case, the district court — after noting that the
applicable GSR was 21 to 27 months — applied an upward variance
and sentenced the defendant to 36 months in prison. In doing so,
the court concluded that the guideline range was inadequate because
the offenses of conviction involved the defendant's manifest
intent to re-sell the purchased firearms on a secondary (illegal)
market. The defendant challenges this sentence as both
procedurally and substantively unreasonable.2
1. Procedural Reasonableness. Procedurally, the
defendant contends that the district court insufficiently
that is to present a compelling case." Id. at 1015 (alteration in
original). Nothing of that sort transpired here.
2
The government posits that some aspects of the defendant's
claims of sentencing error should be reviewed only for plain error.
We bypass this argument because, regardless of the standard of
review, the claims are bereft of merit.
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explained the upward variance and erroneously relied on factors
already taken into account by the sentencing guidelines. This
contention is futile.
As a general rule, "a sentencing court's obligation to
explain a variance requires the court to offer a plausible and
coherent rationale . . . but it does not require the court to be
precise to the point of pedantry." United States v. Del Valle-
Rodríguez, 761 F.3d 171, 177 (1st Cir.), cert. denied, 135 S. Ct.
293 (2014). When a court imposes an upwardly variant sentence,
its rationale "should typically be rooted either in the nature and
circumstances of the offense or the characteristics of the
offender." United States v. Flores-Machicote, 706 F.3d 16, 21
(1st Cir. 2013) (quoting Martin, 520 F.3d at 91). The factors
elaborated by the court "must justify a variance of the magnitude
in question." Martin, 520 F.3d at 91.
In this case, the sentencing court's explanation easily
passes muster. At the disposition hearing, the court indulged in
an extensive colloquy with the prosecutor and defense counsel. It
addressed a range of concerns, including the proportionality of
the defendant's sentence vis-à-vis Crawford's sentence, the
defendant's personal circumstances, and the like. The court placed
great emphasis on the serious nature of the defendant's conduct:
the evidence at trial clearly showed that the defendant had
arranged straw purchases of firearms in New Hampshire as a
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precursor to re-selling the purchased firearms illegally in
Massachusetts. The court concluded that:
[A]n upward variance is warranted here and for the
reasons that I've specified. I don't think the
guidelines really adequately capture how — the
significance of the harm that a person causes when they
engage in the business of acquiring guns for resale
through illegal means. I just think that the harm to
the society is really great with that kind of offense.
And so when I consider the purposes of the sentencing
statute, the concept of a just sentence in my view calls
for a significant period of incarceration. The need to
protect the public from you warrants a significant
period of incarceration and the need to deter others
from engaging in similar kind[s] of conduct.
This was a plausible, cogent, and entirely sufficient
explanation of the court's reasons for its upward variance. Nor
were the factors upon which this variance rested double-counted.
Although the guidelines suggest that straw purchases are usually
made to circumvent state or federal law, see USSG §2K2.1, comment
(n.4), the district court's concern in this case was broader: the
defendant not only received guns from Crawford (his straw
purchaser) but also sought to re-sell the guns illegally.
Relatedly, the defendant argues that the sentencing
guidelines envision profit as a normal incident of the offenses of
conviction and, thus, consideration of the profit motive as a basis
for an upward variance was redundant. In support, the defendant
relies on USSG §2K2.1, comment (n.15), which provides for a
downward departure where no money changes hands between the straw
buyer and person who employs him. But the defendant conveniently
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ignores the rest of the application note, which conditions the
appropriateness of such a downward departure on a finding that
"(A) none of the enhancements in [USSG §2K2.1(b)] apply, (B) the
defendant was motivated by an intimate or familial relationship or
by threats or fear to commit the offense and was otherwise unlikely
to commit such an offense, and (C) the defendant received no
monetary compensation from the offense." Id. (emphasis supplied).
Because none of these three conditions obtains here, the
defendant's argument is unavailing.3
2. Substantive Reasonableness. This leaves only the
defendant's claim that his 36-month sentence is substantively
unreasonable. That sentence represents a nine-month upward
variance from the top of the defendant's GSR. Although such a
variance is substantial (a one-third increase from the GSR), "even
a substantial variance does not translate, ipso facto, into a
finding that the sentence is substantively unreasonable." Flores-
Machicote, 706 F.3d at 25.
In examining the defendant's claim of substantive
unreasonableness, we are mindful that "a range of reasonable
sentences" exists for any given offense. Martin, 520 F.3d at 92.
3 While the defendant suggests more broadly that sentencing
enhancements built into the guidelines for the number of guns
purchased serve as "a proxy for profit," see USSG §2K2.1(b)(1),
nothing in the guidelines compels such a conclusion.
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The question is not whether we, if sitting as a nisi prius court,
would have meted out the same sentence. See Del Valle-Rodríguez,
761 F.3d at 177. Instead, the question is whether the sentence
imposed is anchored by a plausible sentencing rationale and
culminates in a defensible result. See Martin, 520 F.3d at 96.
Considering "the duration of the sentence in light of
the totality of the circumstances," Del Valle-Rodríguez, 761 F.3d
at 176, we have scant difficulty in concluding that the defendant's
sentence was within the universe of reasonable sentences for the
offenses of conviction. The court pointed, for example, to the
defendant's principal culpability in the scheme and his goal of
personal profit at the expense of the broader societal good.
Contrary to the defendant's importunings, this is not
simply a case of procuring the services of a straw purchaser and
falsifying the attendant paperwork in order to buy guns. Rather,
the most salient fact is that the defendant committed these
offenses for the purpose of re-selling the purchased firearms on
a secondary (illegal) market. This fact distinguishes the
defendant's case and takes it out of the heartland for the offenses
of conviction. We conclude, therefore, that it was securely within
the district court's sound discretion to vary upward from the GSR.
That leaves only the question of the extent of the
variance (nine months). Given the circumstances, we are confident
that the extent of the variance was reasonable.
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In sum, the district court's sentencing rationale —
which emphasized the reprehensible nature of the crimes and the
need for deterrence — was plausible; and the sentencing outcome is
plainly defensible. It follows that the challenged sentence is
substantively reasonable.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the defendant's conviction and sentence are
Affirmed.
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