United States v. Whiting ( 1994 )

August 9, 1994 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1182
No. 92-1258
UNITED STATES OF AMERICA,
Appellee,
v.
DARRYL WHITING,
a/k/a G., GOD, RAH,
Defendant, Appellant.
No. 92-1183
UNITED STATES OF AMERICA,
Appellee,
v.
SEAN DIXON,
a/k/a MICHAEL WHITE,
Defendant, Appellant.
No. 92-1184
UNITED STATES OF AMERICA,
Appellee,
v.
RENALDO PLEDGER,
a/k/a EUGENE NOBLE,
Defendant, Appellant.
No. 92-1185
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN CARMICHAEL,
a/k/a FREEDOM,
Defendant, Appellant.
No. 92-1259
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM BOWIE,
a/k/a CUDA, DIAMOND,
Defendant, Appellant.
No. 92-1442
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN WADLINGTON,
a/k/a MOHAMMED,
Defendant, Appellant.
No. 92-1443
UNITED STATES OF AMERICA,
Appellee,
v.
KENNETH BARTLETT,
a/k/a CHEYENNE,
Defendant, Appellant.
ERRATA SHEET
The opinion of this Court, issued on July 6, 1994, is amended as
follows:
On page 32, line 9 of only full paragraph, replace the material
beginning with "If these" through "Id. at 1778-79." with the
following:
If these criteria are met, the court of appeal "has authority
to order correction, but is not required to do so," id. at
1778, and should exercise its remedial discretion only "in
those circumstances in which a miscarriage of justice would
otherwise result," or where the error "seriously affect[s]
the fairness, integrity or public reputation of judicial
proceedings." Id. at 1779 (internal quotations omitted).
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1182
No. 92-1258
UNITED STATES OF AMERICA,
Appellee,
v.
DARRYL WHITING,
a/k/a G., GOD, RAH,
Defendant, Appellant.
No. 92-1183
UNITED STATES OF AMERICA,
Appellee,
v.
SEAN DIXON,
a/k/a MICHAEL WHITE,
Defendant, Appellant.
No. 92-1184
UNITED STATES OF AMERICA,
Appellee,
v.
RENALDO PLEDGER,
a/k/a EUGENE NOBLE,
Defendant, Appellant.
No. 92-1185
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN CARMICHAEL,
a/k/a FREEDOM,
Defendant, Appellant.
No. 92-1259
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM BOWIE,
a/k/a CUDA, DIAMOND,
Defendant, Appellant.
No. 92-1442
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN WADLINGTON,
a/k/a MOHAMMED,
Defendant, Appellant.
No. 92-1443
UNITED STATES OF AMERICA,
Appellee,
v.
KENNETH BARTLETT,
a/k/a CHEYENNE,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. District Judge]
Before
Breyer,* Chief Judge,
Boudin and Stahl, Circuit Judges.
*Chief Judge Stephen Breyer heard oral argument in this matter, but
did not participate in the drafting or the issuance of the panel's
opinion. The remaining two panelists therefore issue this opinion
pursuant to 28 U.S.C. 46(d).
Gary C. Crossen, by Appointment of the Court, and Stephen D.
Sowle with whom Sarah Reed, John A. Shope and Foley, Hoag & Eliot were
on briefs for appellant Darryl Whiting.
John H. LaChance, by Appointment of the Court, with whom LaChance
and Whatley was on briefs for appellant Sean Dixon.
John C. Doherty, by Appointment of the Court, for appellant
Renaldo Pledger.
Janet L. Sanders with whom Zalkind, Rodriguez, Lunt & Duncan was
on briefs for appellant Steven Wadlington.
Lois Lewis, by Appointment of the Court, for appellant Edwin
Carmichael.
John P. Slattery, by Appointment of the Court, with whom Wysocki
and Slattery was on brief for appellant Kenneth Bartlett.
Paul A. Dinsmore, by Appointment of the Court, for appellant
William Bowie.
Robert W. Iuliano, Assistant United States Attorney, Paul V.
Kelly, Assistant United States Attorney, (for IAD issue), and Thomas
C. Frongillo with whom Donald K. Stern, United States Attorney, was on
briefs for the United States.
July 6, 1994
BOUDIN, Circuit Judge. These cases arise out of an
extensive undercover law enforcement operation targeted at
the "New York Boys," a large-scale drug distribution ring
operating out of the Orchard Park Housing Project in Roxbury,
Massachusetts. The seven defendants currently before the
court appeal their convictions, their sentences, or both. We
affirm the district court's rulings on all but one point.1
I.
On December 11, 1990, a federal grand jury indicted
Darryl Whiting, Sean Dixon, Renaldo Pledger, Edwin
Carmichael, and Steven Wadlington--as well as 26 co-
defendants--for conspiracy to distribute cocaine in violation
of 21 U.S.C. 846. A superseding indictment returned on
April 11, 1991, expanded the case to include a total of 50
defendants, including Kenneth Bartlett and William Bowie.
The individual defendants were also charged with various
combinations of substantive cocaine distribution, 21 U.S.C.
841(a)(1), firearms offenses, 18 U.S.C. 922(g)(1); 26
U.S.C. 5861(d), or money laundering, 18 U.S.C.
1956(2)(1), and Whiting was alleged to be the organizer and
1The published version of this opinion includes only the
statement of facts (part I) and the discussion of those
issues that may be of general interest (parts II and III).
The remaining portions of the opinion as filed (parts IV-VI)
address issues that do not appear to have precedential
importance. See First Cir. R. 36.2.
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supervisor of a continuing criminal enterprise in violation
of 21 U.S.C. 848.
Rather than try 50 defendants at once, the district
court severed the case into smaller cases. The first five
defendants named above ("the first-trial defendants") were
placed in the initial trial group, along with a sixth defen-
dant (David Waight) who has not appealed. Trial began on
June 17, 1991, and continued for 18 days spread over the next
four weeks. The evidence consisted primarily of the
testimony of undercover agents and cooperating co-defendants.
Taken in the light most favorable to the government, United
States v. Gonzalez-Torres, 980 F.2d 788, 789 (1st Cir. 1992),
the evidence showed the following:
The first-trial defendants, together with many other
individuals, were members of or associated with the "New York
Boys," a street gang headed by Whiting and operating out of
the Orchard Park Housing Project in Roxbury, Massachusetts.
The gang was so named because many of its members hailed from
Queens, New York. During the period from 1986 to 1990, the
New York Boys evolved into a large, highly structured
organization that employed up to 100 different people and
sold cocaine and cocaine base ("crack" cocaine) in shifts 24
hours a day.
The Whiting organization received its cocaine from New
York City. A number of couriers transported the drugs to
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Boston on airline shuttles. The drugs were then processed--
"cut" with dilutants and divided into individual bags--at
several different apartments located outside the Orchard Park
Project. Finally, the cocaine was sold at Orchard Park
through an elaborate network of personnel: "runners" who met
customers and took their money; other individuals who
"worked the pack" by holding small quantities of cocaine and
distributing it to incoming runners in exchange for cash;
and a third group who held larger inventories of cocaine
packs in more secure locations and periodically resupplied
those "working the pack." Additional workers served as
lookouts for police or provided security against rival gangs.
During the organization's most prosperous period, the New
York Boys sold as much as five kilograms of cocaine per week,
grossing up to $100,000 in a single half-day shift.
The organization sent substantial sums out of Boston via
Western Union, giving rise to money-laundering charges
against Whiting and Carmichael. Many of the workers were
paid up to $1,000 per week for their services, although not
consistently. Whiting invested funds in various Roxbury
businesses, including a barber shop, video store, and the
Crown Social Hall. Although this hall functioned as a
community center, it also served as a front for drug
distribution activities and a means of laundering the
proceeds of drug sales. Whiting also sponsored rap concerts,
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barbecues, and other social events, and provided gifts of
clothing and money to youth in the Roxbury community.
The government's witnesses testified about numerous
weapons possessed by defendants and acts of violence done to
maintain discipline within the organization and security vis-
a-vis rival gangs. Security measures were elaborate: gang
members were equipped with binoculars, walkie-talkies, and
headphones and had ready access to firearms ranging from riot
pump shotguns to Uzi machine guns. There was extensive
evidence of beatings and other acts of violence against
members of the organization who stole money or cocaine,
attempted to sell drugs on their own, or otherwise disobeyed
orders.
The first-trial defendants mounted a defense consisting
primarily of attacks on the credibility of the government's
witnesses. Defense counsel attacked the testimony of one of
the government's two primary undercover operatives, Jeffrey
Coy, by emphasizing instances in which Coy had failed to
follow proper police procedures and by showing that Coy had
suffered serious psychological and emotional problems during
and after the investigation. Defendants also sought to
undermine the second undercover agent, Maurice Dawkins, by
way of testimony from a former supervisor that Dawkins was
not "a man of truth." Defense counsel also won admissions
that many of the cooperating co-defendants who testified had
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drug problems, and that some would be willing to lie to
further their own interests. Whiting himself testified that
he was not involved in drug dealing and that his income came
from legitimate business activities.
On July 24, 1991, the jury convicted Whiting of one
count of engaging in a continuing criminal enterprise, 21
counts of distribution of cocaine, and one count of money
laundering; he was acquitted of two counts of distribution of
cocaine.2 Dixon, a runner and security worker, was
convicted of conspiracy to distribute cocaine and of one
substantive distribution count, but was acquitted on an
additional distribution count. Pledger, another security
worker, was convicted on the conspiracy count and on one
count of being a felon in possession of a firearm. Edwin
Carmichael, who had a managerial role, was convicted of
conspiracy to distribute cocaine and of one count of money
laundering. Steven Wadlington, a security worker, was
convicted on the conspiracy count and of one count each of
distribution of cocaine and possession of an unregistered
firearm; he was acquitted on two additional distribution
counts.
2Whiting was also convicted of conspiracy to distribute
cocaine; the district court, however, vacated that count on
the ground that it was a lesser included offense subsumed
within the continuing criminal enterprise conviction.
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Sentences were imposed on October 7, 21, and 22, 1991,
and the five defendants filed timely notices of appeal. The
specific sentences imposed were as follows:
Darryl Whiting Life without parole on the continuing
criminal enterprise count; 240 months
imprisonment for each of 21 distribution
counts and one money laundering count, to
be served concurrently; and a $1200
special assessment.
Sean Dixon 188 months imprisonment and 60 months
supervised release on the conspiracy
count; 60 months imprisonment for
distribution count, to run concurrently;
and a $100 special assessment.
Renaldo Pledger 235 months imprisonment and 60 months
supervised release; and a $100 special
assessment.
Edwin Carmichael 262 months imprisonment and 60 months
supervised release; and a $100 special
assessment.
Steven Wadlington 360 months imprisonment on the conspiracy
count and 60 months supervised release;
240 months imprisonment on distribution
count; 120 months imprisonment on the
firearms count, all sentences to run
concurrently; and a $150 special
assessment.
Bartlett and Bowie were among six co-defendants slated
for trial in the second group created by the district court.
Both Bartlett and Bowie were alleged to have served as
security workers. Bowie, the government claimed, acted as
the chief of security for the organization and as Whiting's
bodyguard. The second trial commenced on November 19, 1991.
On the sixth day of trial, Bartlett and Bowie pled guilty to
conspiracy to distribute cocaine.
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Bowie was sentenced on February 10, 1992, to 262 months
imprisonment and 60 months supervised release, as well as a
$50 special assessment. Bartlett was sentenced on March 11,
1992, to an identical sentence; in his case, however, the
district court ordered that the sentence be served
consecutively to two previously imposed state sentences for
second degree murder and firearms charges. Bowie and
Bartlett have each appealed from their sentences, and Bowie
has challenged the validity of his guilty plea as well.
II.
We consider first several arguments jointly presented by
the first-trial defendants: Whiting, Dixon, Pledger,
Carmichael, and Wadlington. Each asserts that the district
court erred in refusing to permit certain testimony aimed at
undermining the credibility of one of the government's
undercover operatives; in allowing the prosecutor to make
allegedly inflammatory remarks to the jury; in mischarging
the jury on the definition of "reasonable doubt"; and in
calculating the amount of cocaine for which the defendants
were held accountable at sentencing. Although none of these
arguments is frivolous, we do not find any of them ultimately
persuasive.
A. Impeachment of Anthony Hewitt
A key government witness at trial was Maurice Dawkins,
an undercover operative who made a total of 11 purchases of
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cocaine from various members of the Whiting organization.
Many of Dawkins' dealings were uncorroborated by tape
recordings or other witnesses; as a result, his credibility
became a central issue at trial. In an attempt to undermine
Dawkins, the defendants called as a witness Anthony Hewitt, a
deputy superintendent of the Jamaican Constabulary and
Dawkins' former commanding officer. Hewitt testified that,
in his opinion, Dawkins was not a truthful individual and had
a reputation for untruthfulness in Jamaica.
Fed. R. Evid. 608(b) provides that "[s]pecific instances
of the conduct of a witness, for the purpose of attacking or
supporting the witness' credibility, . . . may not be proved
by extrinsic evidence." Accordingly, defense counsel
confined themselves to eliciting from Hewitt his general
opinion of Dawkins' truthfulness and the general reputation
for truthfulness that Dawkins had among his co-workers in
Jamaica. See Fed. R. Evid. 608(a). On cross-examination of
Hewitt, the government elicited testimony regarding specific
instances of Dawkins' good conduct: in particular, Hewitt
was led to acknowledge various commendations that Dawkins had
received while on the Jamaican force, as well as the fact
that Dawkins had been injured in the line of duty.
On redirect examination, the defense sought to question
Hewitt about specific instances in which Hewitt and other
members of the Jamaican Constabulary had found Dawkins to be
-15-
not credible.3 Defense counsel argued that the government
had "opened the door" by eliciting testimony of specific acts
of good character on cross-examination, but the trial judge
refused to permit such testimony in light of Rule 608(b). In
this court defendants repeat their claim under the rubric of
"curative admissibility," which holds that "a trial judge, in
his discretion, [may] admit otherwise inadmissible evidence
in order to rebut prejudicial evidence which has already been
erroneously admitted." United States v. Nardi, 633 F.2d 972,
977 (1st Cir. 1980) (citations omitted).
The defendants are mistaken in assuming that the
government's evidence of Dawkins' good character was
erroneously admitted. It is quite true that the government's
evidence (of Dawkins' courage and good conduct) was not
admissible under Rule 608(b) to accredit Dawkins because the
episodes related only to Dawkins' general good character and
not to his character for truthfulness. But by its own terms
Rule 608(b) imposes its restriction only upon evidence that
is offered for the purpose of buttressing credibility; it
does not forbid evidence that happens to show good character
3Specifically, the defense sought to introduce through
Hewitt evidence that Dawkins had falsely reported that he was
the victim of a shoot-out in 1987, and that Dawkins had been
the subject of at least four civilian complaints of abuse and
assault which he had denied but which the Jamaican
Constabulary had deemed credible.
-16-
but is offered for another legitimate purpose. See United
States v. Abel, 469 U.S. 45, 55-56 (1984).
Here, the government's exploration of Dawkins' record
served two quite different purposes. First, the prosecutor
sought to test Hewitt's familiarity with Dawkins' record, the
inference being that Hewitt's own opinion and his report as
to Dawkins' reputation were themselves untrustworthy if
Hewitt knew little about Dawkins. Michelson v. United
States, 335 U.S. 469, 480 (1948). Second, by showing
Dawkins' exemplary record, the prosecutor aimed to raise
doubts about Hewitt's own motive in testifying against a
fellow officer with a good record, and thus to impute
prejudice to Hewitt. See Abel, 469 U.S. at 51.
In some instances, the permissible inferences might be
offered merely as pretext to smuggle in an impermissible one.
But in this case, the government's first justification is
ample and the second, if thinner, is at least plausible.
Defendants would have been entitled, had they asked for it,
to an instruction limiting the jury's use of the government
evidence to these lines of inference and advising the jury
that it was not entitled to infer Dawkins' character for
truthfulness from his general good character. Accordingly,
the doctrine of curative admissibility has no role in this
case because there was no error to be cured.
-17-
One could defend the admissibility of the bad character
evidence in question by saying that just as the government
used evidence of Dawkins' good character to impugn Hewitt's
motive, evidence of Dawkins' bad character would tend to
lessen doubts about Hewitt's readiness to testify against a
former fellow officer. But the bad character evidence was
not offered on this ground, and explaining the purpose for
which disputed evidence is offered is normally required to
preserve the issue on appeal. Tate v. Robbins & Myers, Inc.,
790 F.2d 10, 12 (1st Cir. 1986). A general reference to
"fighting fire with fire" is hardly much help to a district
judge trying to make on-the-spot rulings in the middle of a
hectic trial.4
B. Prosecutor's Rebuttal Argument
Defendants' second set of arguments revolves around four
remarks made by the prosecutor in his rebuttal argument to
the jury at the close of the trial. We have taken
allegations of such prosecutorial overreaching seriously in
this circuit, e.g., Arrieta-Agressot v. United States, 3 F.3d
525 (1st Cir. 1993); United States v. Santana-Camacho, 833
4There was no miscarriage of justice on this point. The
inference that Hewitt was biased is not a very strong one.
Similarly, evidence of Dawkins' bad character to refute the
bad-motive inference is not very telling; indeed, such
evidence could help to establish Hewitt's bias as well as to
refute it.
-18-
F.2d 371 (1st Cir. 1987), but in this case none of the
remarks warrants reversal of appellants' convictions.
The first remark complained of was the prosecutor s
statement that "[Darryl Whiting] also brought the kids of
Roxbury the guns, the drugs, the violence," followed by an
exhortation to the jurors not to "let other kids be succored
[sic] in by that flash, that cash, that deception." This
statement was prejudicial, defendants argue, because "it
sought to deflect [the jurors ] attention from the issues
that they were sworn to decide, . . . and attempted to foist
onto the jury responsibility for the extra-judicial
consequences of a not guilty verdict." We agree that the
"other kids" reference was improper, for "[t]he prosecutor
should refrain from arguments [predicting] the consequences
of the jury's verdict." American Bar Association, Standards
Relating to the Administration of Criminal Justice 3-5.8(d).
In this case defense counsel failed to object at the
time the allegedly prejudicial statement was made, so we
review only for plain error. Arrieta-Agressot, 3 F.3d at
528. Courts are reluctant to find such error where the
prosecutor s remarks were isolated and made to rebut specific
statements by defense counsel. See United States v. Machor,
879 F.2d 945, 956 (1st Cir. 1989), cert. denied, 493 U.S.
1081 (1990). Here, the prosecutor was clearly responding to
defense counsel's portrayal of Whiting as a philanthropist
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and benefactor of Roxbury's youth, and defendants do not
point to other like instances of rhetorical excess. We do
not believe that the prosecutor's remarks "so poisoned the
well that the trial s outcome was likely affected." Arrieta-
Agressot, 3 F.3d at 528.
Defendants next object to the prosecutor's assertion
that defendants closing arguments were "smoke screens
floated your way by defense counsel . . . [who are] very able
people here." This statement, defendants argue, "sought to
convince the jury that the arguments of defense counsel were
. . . manufactured by able lawyers seeking to hide the truth
from the jury." We agree that the prosecutor should have
focused on the merits of the defendants' arguments rather
than their source. Again, defense counsel failed to object
to the statement at trial, and we have little trouble in
holding that this isolated misstep did not rise to the level
of plain error.
Defendants did object to the third allegedly offensive
statement, arguing that the prosecutor improperly placed his
own character at issue when he said that "[a]n attack on me
and my colleagues and our ethics and our approach to this
case not only [is] an affront to me personally, but a smoke
screen." Although a prosecutor may not pledge his own
character as a basis for inferring the defendant s guilt, see
United States v. Garza, 608 F.2d 659 (5th Cir. 1979), the
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statement in this case referred to the government's conduct
of its investigation, not the guilt or innocence of the
defendants. The prosecutor's isolated remark responded to
far harsher remarks of defense counsel that the government
had suborned perjury. Finally, the trial judge properly
instructed the jury to disregard the prosecutor's statement
that he felt affronted. See United States v. Moreno, 991
F.2d 943, 948 (1st Cir.), cert. denied, 114 S. Ct. 457(1993).
Defendants' final claim concerns a government chart
showing the organizational structure of the New York Boys
and, specifically, listing Dixon as a processor and packager
of cocaine. The evidence showed Dixon instead to be a runner
and, when Dixon's counsel seized on the discrepancy in his
closing argument, the prosecutor in rebuttal told the jury
that the reference on the chart was a typographical error
arising from the presence of another defendant with the same
last name. Defendants' objection that this was "extra
judicial testimony" by the prosecutor may be technically
correct, but the prosecutor's misstep was a trivial one--
serving in part to correct an overstatement of Dixon's role--
and it certainly did not cause substantial prejudice.
C. Reasonable Doubt
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Defendants objected to the trial court's instruction to
the jury on the meaning of reasonable doubt, whose core was
the following paragraph:
Now, reasonable doubt is not a fanciful doubt, nor
a whimsical doubt, nor a doubt based on conjecture,
but is a doubt based on reason, as the name
implies. The government is not required to
establish guilt to a mathematical certainty or to a
scientific certainty. The government is not
required to exclude every other remote possibility.
This circuit has repeatedly refused to require the
district courts to define "reasonable doubt" in their
instructions to the jury. E.g., United States v.
Littlefield, 840 F.2d 143, 146 (1st Cir.), cert. denied, 488
U.S. 860 (1988). Where the district court does define the
term, we have suggested that "attempts at definition should
not stray far from the consistently approved stock of charges
on reasonable doubt." Id. at 646. We have left to the trial
judge, however, "the choice among acceptable linguistic
alternatives." Tsoumas v. State of New Hampshire, 611 F.2d
412, 414 (1st Cir. 1980).
The phrases employed in the paragraph quoted above are
stock phrases and the defendants do not challenge most of
them individually. They do assert that to call reasonable
doubt "a doubt based on reason" is at odds with the Supreme
Court's postulate that a reasonable doubt need not be
articulable or even logical so long as it appeals to common
sense. See Harris v. Rivera, 454 U.S. 339, 347 (1981). We
-22-
think that this argument rests on too fine a distinction and
that a "doubt based on reason"--a phrase approved by this
circuit on a number of occasions, e.g., United States v.
DeVincent, 632 F.2d 147, 152 (1st Cir.), cert. denied, 449
U.S. 986 (1980)--is not a bar against using common sense but
merely contrasts "reason" with "fancy," "whim," or
"conjecture."
Defendants' main objection is that the district court's
emphasis on what is not a reasonable doubt so far outweighs
its statement of what is a reasonable doubt as to lead the
jury to concentrate overmuch on the former. By itself, the
concept of proof "beyond a reasonable doubt" gives the
defendant a substantial advantage, which is why defense
counsel so often repeat those words in summation. Although
the advantage is a legitimate one, it does not seem to us one
that is likely to be undermined by an instruction that with a
few general phrases indicates that not every doubt is a
reasonable one.
In any event, elsewhere in the charge the court in this
case reminded the jury, in connection with the presumption of
innocence, that a defendant is never to be convicted "on the
basis of mere conjecture, surmise or guesswork." In other
words, the jury was told that just as a fanciful doubt should
not stand in the way of conviction, so too a reasonable doubt
could not be papered over by conjecture, surmise or
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guesswork. Taking the reasonable doubt instruction "in the
context of the overall charge," Cupp v. Naughten, 414 U.S.
141, 146-47 (1973), we think that the charge here was
adequately balanced.
D. Calculation of Drug Quantity
Because defendants were convicted of conspiracy to
distribute cocaine, they were held responsible at sentencing
for "drugs [they] personally handled or anticipated handling,
and, under the relevant conduct rubric, for drugs involved in
additional acts that were reasonably foreseeable by [them]
and were committed in furtherance of the conspiracy." United
States v. Sepulveda, 15 F.3d 1161, 1197 (1st Cir. 1993),
cert. denied, 1994 U.S. Lexis 4738 (June 20, 1994). Based on
the government's evidence at trial, the district court
estimated that the Whiting organization distributed two
kilograms of cocaine per week over a period of three years.
Defendants now challenge this calculation, arguing that the
district court based its estimate on unreliable evidence and
improper extrapolation.
We review factual findings by the sentencing court as to
drug quantity only for clear error. Sepulveda, 15 F.3d at
1196. "[T]he sentencing court has broad discretion to
determine what data is, or is not, sufficiently dependable to
be used in imposing sentence," United States v. Tardiff, 969
F.2d 1283, 1287 (1st Cir. 1992), and we defer to any
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credibility determinations by the sentencing court. United
States v. Brewster, 1 F.3d 51, 54 (1st Cir. 1993). The
burden is on the government to prove drug quantity by a
preponderance of the evidence. United States v. Valencia-
Lucena, 988 F.2d 228, 232 (1st Cir. 1993).5 Because of the
impact of quantity on the length of sentence, we have said
that in resolving doubts the sentencing court must "err on
the side of caution." United States v. Sklar, 920 F.2d 107,
113 (1st Cir. 1990).
The district court estimated that the New York Boys
distributed an average of two kilograms of cocaine per week
over the three-year life of the conspiracy. This estimate
was based primarily upon general comments by various
defendants estimating average volumes of business. These
estimates were then corroborated by reports from cooperating
co-defendants that particular quantities of cocaine were
handled at particular times, controlled buys by government
undercover operatives, and evidence indicating the size and
scope of the organization itself.
5Defendants argue that, due to the critical impact of
drug quantity on a defendant's sentence, due process requires
proof of such quantities by clear and convincing evidence,
rather than a mere preponderance. This argument was not
raised below and, in any event, is foreclosed by circuit
precedent. See, e.g. United States v. Lowden, 955 F.2d 128,
130 (1st Cir. 1992). See also McMillan v. Pennsylvania, 477
U.S. 79, 91-93 (1986) (holding that a "preponderance standard
satisfies due process" at sentencing).
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Thus, Dawkins testified at trial to a conversation he
had with Steven Wadlington on November 6, 1990. Dawkins
asked Wadlington how much cocaine the New York Boys sold per
week, to which Wadlington replied: "[i]n a slow week, we
sell two and a half kilos. In a fast week, four kilos. . . .
We do this a long time."6 A second estimate was made by
Ansur Adams, a gang member who was allegedly responsible for
processing the cocaine. Adams testified that in August and
September of 1990 (the year in which he was involved in the
conspiracy), the Whiting organization sold between two and
three kilograms of cocaine per week. Adams also testified
that Jon James, one of the organization's alleged
supervisors, told him that the New York Boys "used to move
five ki's [sic] a week before [Adams] came."
These broad estimates were consistent with reports of
quantities handled by various gang members. For example,
Tony Samuels testified that the organization sold an average
of ten $40 bags and seven $60 bags of cocaine in a 12-hour
shift. There was testimony that a $60 bag contained
approximately 1.5 grams of cocaine; accordingly, Samuels'
6Defendants complain that much of Dawkins' testimony was
hearsay. The guidelines provide, however, that "[a]t
sentencing, the district court may consider ``relevant
information without regard to its admissibility under the
rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support
its probable accuracy.'" United States v. Valencia-Lucena,
988 F.2d 228, 232 (1st Cir. 1993) (quoting U.S.S.G.
6A1.3(a)).
-26-
testimony indicates sales of roughly 410 grams per shift and
up to 5.74 kilograms per week. Rochelle Burden testified
that each apartment used as a base of sales operations was
able to sell a pack of twenty $60 bags every two hours, which
supports a figure of 360 grams of cocaine a day and
approximately 2.52 kilograms per week per apartment (several
apartments were in use at any given time). Wayne Ruff
testified that, when running money during a typical shift, he
generally delivered the proceeds of five packs of $60 bags to
his supervisor; at 30 grams per pack, this figure translates
into 300 grams per day or 2.1 kilograms per week. The
government notes, moreover, that it is unlikely that Ruff was
the only runner.
In magnitude these estimates are generally in accord
with one another (the only divergent testimony--from Lonnie
Avant--suggested an even larger average figure). The
estimates are also buttressed by testimony about the
organization's impressive scope: there was evidence that it
employed at least eight different women as couriers who
sometimes made multiple trips per week, carrying anywhere
between 125 grams and one kilogram each trip, that selling
activities were conducted 24 hours per day, seven days a
week, that eleven different apartments were used to sell or
store cocaine, and that 50 to 100 different people
-27-
participated in distribution activities over the course of
the conspiracy.
Defendants assert that the information upon which the
court relied was inherently unreliable for various reasons--
principally that much of it came from cooperating co-
defendants who admitted they would lie in order to advance
their own interests, and that the statements made to
undercover operatives could be construed as exaggerated
"puffing." The district court, however, has wide discretion
in determining what evidence is sufficiently reliable to use
at sentencing, see Tardiff, 969 F.2d at 1287, and we will not
disturb the court's finding that the government's witnesses
were credible. Brewster, 1 F.3d at 54. Further, the
estimates were largely consistent and, as we explain below,
the district court's ultimate finding was quite conservative.
Defendants' more serious contention is that the evidence
produced by the government and relied upon by the sentencing
court focused mainly upon the last year of conspiracy. It is
inherently speculative, defendants argue, to derive from this
evidence estimates of the total amount of cocaine handled by
the conspiracy over its three-year existence. We agree that
special care may be needed where evidence of quantities in
one period is extrapolated to fill gaps in evidence as to
other periods. But while the organization's sales here
varied over time, there was at least some evidence for
-28-
earlier periods and the court's conservative estimate left a
fair margin of safety.
First, some of the evidence here did deal with periods
prior to 1990, the last year of the conspiracy. Adams
reported that, according to Jon James, the organization
distributed five kilograms of cocaine per week prior to 1990.
Much of the corroborating anecdotal testimony came from gang
members--Burden, Ruff, Avant, and Michael Wilson--who joined
the conspiracy in 1987 or 1988. Their evidence, already
summarized, was not limited to the final year of the
conspiracy.
Second, following our directive to "err on the side of
caution," Sklar, 920 F.2d at 113, the district court held the
organization accountable for two kilograms of cocaine per
week over the life of the conspiracy--still an impressive sum
but less than Wadlington told Dawkins the New York Boys sold
in a "slow week" in 1990 and less than half what James
reported selling prior to that year. Moreover, because of
the breadth of the relevant sentencing categories, we need
only find that the evidence supported a 1.5 kilogram per week
figure in order to uphold all of the sentences in this
case.7 United States v. Bradley, 917 F.2d 601, 604 (1st
7This is so of Dixon, who was involved for approximately
104 weeks and was sentenced at level 38, which has a 150
kilogram threshold. U.S.S.G. 2D1.1(c)(3). In the case of
Whiting, Carmichael, Wadlington and Pledger, one kilogram per
week would be adequate for their respective sentencing
-29-
Cir. 1990). All of the general estimates in the record, as
well as the corroborating testimony as to amounts handled at
particular times, refer to quantities well in excess of one
kilogram per week.
III.
In addition to the arguments raised jointly by the trial
defendants, each of the seven defendants who have appealed in
this case has advanced one or more claims of error unique to
his individual case. Although we have dealt with most of
these contentions in the unpublished portion of this opinion,
a few are of sufficient general interest to warrant
discussion here.
A. Darryl Whiting
Whiting, the ringleader of the "New York Boys"
organization, was convicted on one count of engaging in a
continuing criminal enterprise, on 21 counts of cocaine
distribution, and on one count of money laundering. At the
time of his indictment, Whiting was serving a state prison
sentence in Massachusetts. His presence at his federal trial
was secured through use of the IAD, which permits a state
with charges outstanding against a prisoner of another state
thresholds. Id. at 2D1.1(c)(3), (4)-(5). Because the
first-trial defendants were all sentenced in October of 1991,
we apply the 1990 version of the guidelines. Isabel v.
United States, 980 F.2d 60, 62 (1st Cir. 1992). Although
Bowie was sentenced later and was subject to the 1991
guidelines, the relevant provisions were not altered in the
later edition.
-30-
to take custody of that prisoner for the time necessary for
trial.8 His principal argument on appeal is that delays in
bringing him to trial violated his rights under the IAD.
The IAD requires that where the detainer process is
initiated by the receiving state rather than the prisoner,
trial must begin within 120 days of the prisoner's arrival in
the receiving state. IAD art. IV(c). There are two
exceptions to this rule. Article VI provides that the IAD's
speedy trial provisions will be tolled "whenever and for as
long as the prisoner is unable to stand trial." IAD art.
VI(a). In addition, Article IV(c) allows that "for good
cause shown in open court, . . . the court . . . may grant
any necessary or reasonable continuance."
The parties appear to agree that in this case the IAD's
speedy trial clock began to run on December 21, 1990, when
Whiting made his initial appearance in federal court, and for
purposes of this case we adopt this starting point. At a
second hearing on December 27, Whiting (now accompanied by
counsel) refused to waive his rights under the IAD. On April
3, 1991, shortly before the 120 day period was to expire, the
8The IAD is the Interstate Agreement on Detainers, 18
U.S.C. App. II. The federal jurisdiction of the United
States is considered to be another "state" for IAD purposes.
IAD art. II. Because the IAD is a congressionally-sanctioned
compact within the Compact Clause, U.S. Const. Art. I, 10,
cl. 3, its construction is exclusively a matter of federal
law. Carchman v. Nash, 473 U.S. 716, 719 (1985); Cuyler v.
Adams, 449 U.S. 433, 438-42 (1981).
-31-
government moved for a continuance as well as a finding that
the IAD had been tolled by Whiting's filing of various pre-
trial motions. After a hearing, the district court accepted
the government's tolling argument and found that the speedy
trial period would not expire until June 12, 1991, at the
earliest. In the alternative, the court found that there was
good cause for a continuance.
On June 13, 1991, Whiting moved for dismissal of the
federal indictment for violation of his rights under the IAD.
The district court orally denied this motion on the first day
of trial--June 17, 1991--finding that an additional pretrial
motion filed by Whiting had tolled the IAD clock for another
34 days. Whiting now appeals from the trial court's denial
of his motion to dismiss. We affirm the district court and
hold that (1) the IAD clock was stopped and (2) in any event
there was good cause for a continuance.
1. The courts of appeals are divided as to the proper
construction of the IAD's Article VI tolling provision.
Whiting urges us to follow the Fifth and Sixth Circuits,
which have construed that provision narrowly and held that
the phrase "unable to stand trial" refers only to physical or
mental incapacity. See Birdwell v. Skeen, 983 F.2d 1332,
1340-41 (5th Cir. 1993); Stroble v. Anderson, 587 F.2d 830,
838 (6th Cir. 1978), cert. denied, 440 U.S. 940 (1979). We
are precluded from adopting the narrow reading advocated by
-32-
Whiting by our own prior decisions in United States v.
Walker, 924 F.2d 1 (1st Cir. 1991), and United States v.
Taylor, 861 F.2d 316 (1st Cir. 1988). These decisions,
consistent with the predominant view among circuits, held
generally that "a defendant waives the 120-day limitation
during the time it takes to resolve matters raised by him."
Taylor, 861 F.2d at 321 (citation omitted).9 Taylor held
out the possibility that the time involved in disposing of a
motion might not all be excluded where the defendant timely
advised the district court that he or she claimed the
protection of the IAD and the district court then took more
time than was necessary to resolve the motion. In this case,
Whiting did formally invoke the IAD's protection at his
second hearing, but the district court also found that
Whiting and his counsel made a "tactical decision" thereafter
to ignore the issue.
In all events Whiting offers no specifics that would
lead us to conclude, in this extremely complex and burdensome
case, that the district court was slothful in acting on
defense motions. Further, based on the rationale of Taylor
9The Second, Fourth, Seventh, and Ninth Circuits are in
accord. United States v. Scheer, 729 F.2d 164, 168 (2d Cir.
1984); United States v. Hines, 717 F.2d 1481, 1486-87 (4th
Cir. 1983), cert. denied, 467 U.S. 1214, 1219 (1984); United
States v. Nesbitt, 852 F.2d 1502, 1516 (7th Cir. 1988), cert.
denied, 488 U.S. 1015 (1989); United States v. Johnson, 953
F.2d 1167, 1172 (9th Cir.), cert. denied, 113 S. Ct. 226(1992).
-33-
we hold that the time excluded includes time explicitly
granted to Whiting for the preparation of pretrial motions.
See Nesbitt, 852 F.2d at 1514 (so holding under the Speedy
Trial Act). Finally, we reject Whiting's fall-back position
that time spent on non-dispositive motions (here, for
discovery and exculpatory evidence) should be treated
differently than dispositive motions; both types are likely
to delay trial and both should be treated the same under
Taylor.10
2. Alternatively, we find that there was good cause in
this case for a continuance under Article IV(c) of the IAD.
We have held that a continuance granted under the Speedy
Trial Act--a statute that is, if anything, more restrictive
of ad hoc continuances--will be reversed only for an abuse of
discretion. United States v. Pringle, 751 F.2d 419, 429 (1st
Cir. 1984). In the present case, the district court rested
its finding of good cause on three primary grounds: the
"inherent complexity of this case, [and] the existence of co-
defendants and their pending motions," and the fact that some
of Whiting's co-defendants remained at large.
These reasons are ones that are recognized as bases for
continuance in the Speedy Trial Act. See 18 U.S.C.
10Neither Taylor nor Walker concerned motions that were
formally dispositive, nor does the distinction urged comport
with the statutory criterion ("unable to stand trial") that
is construed in Taylor and Walker.
-34-
3161(h)(7) (joinder with codefendant whose time has not run),
3161(h)(8)(B)(ii) (complexity; number of defendants). Here,
the court was confronted with a case initially embracing over
50 defendants--some still at large--and a range of different
charges and issues. To move Whiting's case (and that of five
co-defendants) from the assumed starting point to trial in
just under six months was no mean feat.
Further, even if we followed the Fifth and Sixth Circuit
approach and held that Whiting's pretrial motions did not
automatically toll the running of the time period, we would
hardly ignore them in deciding whether a continuance of about
58 days was reasonable. Here, Whiting did file various
pretrial motions, as did other of the first-trial co-
defendants; and, as noted, there is no showing that the
district court unreasonably delayed in acting upon them.
Whatever the limitations on delaying a trial, Whiting's case
does not even arguably test them.
B. Steven Wadlington
Wadlington was an employee of the Crown Social Hall, a
club owned by Whiting that operated as a community center
and, the government alleged, a center of drug distribution
and money laundering activities. At trial, the government
alleged that Wadlington's primary role was to provide
security for the organization. Wadlington was convicted of
one count of conspiracy to distribute cocaine, one
-35-
substantive distribution count, and one count of possession
of an unregistered firearm. His primary argument on appeal
is a challenge to his firearms conviction.
Wadlington was charged under 26 U.S.C. 5861(d), which
makes it unlawful for any person "to receive or possess a
firearm which is not registered to him in the National
Firearms Registration and Transfer Record." This offense
requires not only proof of possession and nonregistration,
but also proof that the weapon in question is a "firearm"
under the statute. The statutory definition of "firearm"
under 26 U.S.C. 5845 is somewhat narrower than that term's
commonly understood meaning, see United States v. De Bartolo,
482 F.2d 312 (1st Cir. 1973), and as Wadlington was accused
of possessing an unregistered shotgun, the statute required
proof that the shotgun in question had a barrel length of
less than 18 inches, or an overall length of less than 24
inches, and could fire (or could be restored to fire) shotgun
shells. 26 U.S.C. 5845(c), (d).
The trial court's charge to the jury on the firearms
count, however, omitted this element. The court instructed
the jury as follows:
Steven Wadlington . . . [is] indicted for conspiracy and
three counts of distribution. And Count 32, possession
of an unregistered firearm. That is this sawed off
shotgun, and it doesn't matter who you are or what
otherwise you are doing, it is a violation of the law to
possess such an item unless it has been duly registered
as described by the witness, and there is evidence that
this firearm [has] not been so registered. So the
government doesn't have to prove he is a felon, a user,
-36-
or anything else, he could be a college president or an
archbishop, but he must not possess that firearm.
At no time did the court define "firearm" or instruct the
jury that it was their responsibility to determine that the
shotgun in question was one having a barrel length of less
than 18 inches or an overall length of less than 24 inches
and either operable or capable of being made operable.11
On appeal, the government concedes--as it must--that it
was error to omit the applicable definition of "firearm," and
submit the issue to the jury. Wadlington failed to object to
the district judge's jury instruction at trial and
accordingly, we review only for "plain error." Fed. R. Crim.
P. 30, 52(b). The Supreme Court has recently glossed the
latter rule by stating that there must be an error, it must
be "clear" or "obvious," and it must affect "substantial
rights." United States v. Olano, 113 S. Ct. 1770, 1777-78
(1993). If these criteria are met, the court of appeal "has
authority to order correction, but is not required to do so,"
id. at 1778, and should exercise its remedial discretion only
"in those circumstances in which a miscarriage of justice
would otherwise result," or where the error "seriously
11We focus upon the length and operability, as the
parties do in the briefs, because there is repeated reference
in the testimony to the weapon as a "shotgun," the weapon was
actually shown to the jury, and there is virtually no dispute
that it was in fact a shotgun. For this reason, the district
court's reference to "this sawed off shotgun"--which might in
other circumstances look like a court determination of the
issue--is patently harmless.
-37-
affect[s] the fairness, integrity or public reputation of
judicial proceedings." Id. at 1779 (internal quotations
omitted).
Although it is easy to see how the district judge could
have overlooked a relatively minor and undisputed element in
this massive case, we have little difficulty in concluding
that the error in omitting a statutory element--the
definition of the weapon--of the offense was "clear" or
"obvious." Whether that error affected Wadlington's
"substantial rights" is a more difficult question. Under
Olano, "in most cases it [the error] must have been
prejudicial: It must have affected the outcome of the
District Court proceedings." Id. at 1778. Further, in a
plain error context, "the defendant rather than the
Government . . . bears the burden of persuasion with respect
to prejudice." Id.If the test of prejudice that applies in this case is
whether the jury on this record would have come to the same
result under a proper instruction, we think that it is clear
that the jury would readily have convicted. Starting with
the issue of length, there was testimony that the shotgun had
originally been a long-barrelled weapon and that a member of
the organization had sawed off portions of both the barrel
and stock. Dawkins testified that when he bought the weapon
from the organization for $850, it was "sawed off." Finally,
-38-
a government firearms expert testified at trial that "based
upon measurement" of the exhibit, it was a weapon that cannot
be possessed without being registered.
As to capacity of the weapon to fire or to be made
operable, the evidence is a trifle thinner: the government
showed that the organization had troubled to cut down the
weapon, that the gun had then been possessed by two members
of the organization involved in security, and that it had
then been sold to Dawkins--a continuing customer of the
organization--for $850. Although we question the
government's suggestion that its firearms expert was
implicitly testifying as to operability, the other evidence
very strongly suggests that the shotgun was regarded as a
functioning weapon by those with reason to know, and defense
counsel never contested operability.
All this may not be enough. One might, or might not,
read recent Supreme Court decisions to mean that where an
incorrect instruction is given, it may not be adequate for
the government to show that the record evidence assured that
a reasonable jury under proper instructions would have found
the disputed element in favor of the government; rather, it
may be the law that the jury must in fact have made this
finding despite the erroneous instruction.12 Such a
12See, e.g., Sullivan v. Louisiana, 113 S. Ct. 2078,
2081-82 (1993); Yates v. Evatt, 111 S. Ct. 1884, 1893-94
(1991); Carella v. California, 491 U.S. 263, 269-71 (1989)
-39-
showing would be difficult to make in this case (since there
was no instruction on length or operability); but whether it
is necessary is unclear.
The question need not be answered here. Even if we
assume in this case that the error did "affect substantial
rights," we do not think that this error caused a
"miscarriage of justice" or "seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings." Olano, 113 S. Ct. at 1778-79. The undisputed
evidence showed that this was a sawed off shotgun treated by
all as a working weapon. There is thus no risk that the
omission of the length and operability elements resulted in
the conviction of an innocent man. Cf. Singleton v. United
States, No. 92-1647, 1994 WL 242519 (1st Cir. June 10, 1994).
Further, there is no indication that defense counsel
ever sought to litigate or dispute the length or operability
of the weapon. Although a not guilty plea puts the
government to its proof on all elements (and so it is error
not to instruct on all), in practice defendants often choose
to fight on their strongest grounds and let others go by
default. Finally, counsel's failure to argue the issues in
summation or to object to the patent omission in the charge
implies that the issues in question were not thought worth
(Scalia, J., concurring in the judgment). Compare Pope v.
Illinois, 481 U.S. 497, 503 (1987).
-40-
contesting; and to reverse on this ground would enhance the
opportunities for "sandbagging" the district judge. Taking
all of these considerations together, we decline under
Olano's fourth and discretionary prong to "notice" this
"forfeited error." Olano, 113 S. Ct. at 1778.
C. Kenneth Bartlett
Bartlett, who was alleged to have served as a security
worker and enforcer in the Whiting organization, was in the
second group of defendants that went to trial on November 19,
1991. On the sixth day of trial, Bartlett pled guilty to one
charge of conspiracy to distribute cocaine. Based on the
quantity of cocaine involved in the conspiracy, the district
court determined a guideline range for the offense of 262 to
327 months and, on recommendation of the government,
sentenced Bartlett to the guideline minimum of 262 months
with a caveat that this sentence run consecutively to two
state sentences for second degree murder which Bartlett was
already serving.
Bartlett's argument on appeal is that the guidelines
required that his federal sentence run concurrently with his
state sentences. Since he failed to object to the
consecutive sentence at the time, our review is limited to
plain error. We agree that under the Olano test already
discussed, Bartlett must be resentenced. Because we are
satisfied that the requisites for plain error review are
-41-
present, we do not reach Bartlett's contention--raised for
the first time on appeal--that his trial counsel's failure to
object to the consecutive sentence violated the Sixth
Amendment.13
In this case, after the district court determined the
guideline range for the conspiracy charge, it then considered
whether to make the federal sentence consecutive or
concurrent to the state sentences. The court found that
although Bartlett had been allowed to plead guilty to second
degree murder, the conduct underlying both convictions would
have supported convictions for first degree murder.
Concluding that under Massachusetts law Bartlett would be
eligible for parole in 16 years and would probably not be
held past that date, the court concluded the federal sentence
should run consecutively rather than concurrently.
The governing statute confers broad authority on the
district court to determine whether a sentence is consecutive
or concurrent. See 18 U.S.C. 3553(a), 3584(a), (b). That
discretion, however, is confined by guideline provisions that
govern this choice where sentence is imposed on a defendant
who is "subject to an undischarged term of imprisonment."
13Normally, the reasons for a counsel's action are
pertinent and a Sixth Amendment claim cannot usually be
determined in the first instance by an appellate court.
United States v. Sanchez, 917 F.2d 607, 613 (1st Cir. 1990),
cert. denied, 499 U.S. 977 (1991).
-42-
U.S.S.G. 5G1.3.14 See United States v. Flowers, 995 F.2d
315, 316-17 (1st Cir. 1993). The guideline applicable here
provides that--with two exceptions not now relevant15--"the
sentence for the instant offense shall be imposed to run
consecutively to the prior unexpired term of imprisonment to
the extent necessary to achieve a reasonable incremental
punishment for the instant offense." U.S.S.G. 5G1.3(c).
The commentary then provides that to the extent
practicable the court should determine the "reasonable
incremental punishment" by determining a sentence "that
results in a combined sentence that approximates the total
punishment that would have been imposed under 5G1.2
(Sentencing on Multiple Counts of Conviction) had all of the
offenses been federal offenses for which sentences were being
imposed at the same time." U.S.S.G. 5G1.3, comment. (n.4).
Section 5G1.2, so far as pertinent here, directs the court to
(1) determine the total punishment for multiple counts in
14Bartlett was sentenced on March 11, 1992, and we
accordingly apply the 1991 version of the guidelines.
15The first exception requires a consecutive sentence in
certain instances (e.g., where the second offense was
committed while the defendant was actually serving his first
sentence) and the second exception requires concurrent
sentences where the undischarged term of imprisonment
resulted from an offense or offenses "that have been fully
taken into account" in determining the offense level for the
instant offense. Id. 5G1.3(a), (b). Here, the district
court did not consider the murders in setting either the
offense level or the criminal history category for the drug
conspiracy offense.
-43-
accordance with the guideline grouping rules and (2) then
make the sentences for the multiple counts run consecutively
"only to the extent necessary to produce a combined sentence
equal to the total punishment" determined under the grouping
rules. U.S.S.G. 5G1.2(d). See generally United States v.
Hernandez-Coplin, No. 92-2228, slip. op. at 17-19 (1st Cir.
March 31, 1994).
Section 5G1.2(c) provides that the sentences on all
counts shall run concurrently if the sentence imposed on the
count carrying the highest statutory maximum is adequate to
achieve the total punishment. Bartlett urges that because
his state sentences were for life imprisonment, those
sentences were automatically sufficient to satisfy subsection
(c). We believe that this guideline refers to the real or
effective sentence--not to a nominal one. After all, one of
the primary goals of the federal guidelines is "honesty in
sentencing," whereby "the sentence the judge gives is the
sentence the offender will serve." Stephen Breyer, "The
Federal Sentencing Guidelines and the Key Compromises Upon
Which They Rest," 17 Hofstra L. Rev. 1, 4 (1988). Bartlett
does not here dispute the finding that the state sentence was
effectively one for 16 years.
Accordingly, had the district court followed the
tortuous path prescribed by the guidelines, it would have
determined the approximate "total punishment" as if Bartlett
-44-
was being sentenced on both state murder charges and the
federal drug conspiracy charge at the same time in federal
court. The grouping rules forbid treating murders as closely
related counts with each other or other crimes, U.S.S.G.
3D1.2, and the second-degree murders each carry a base
offense level of 33. U.S.S.G. 2A1.2(a). Although the
government points to the district court's finding that the
underlying conduct supported convictions for first-degree
murder, a sentencing court under the guidelines must
determine the applicable guideline "by looking to the charge
of which the offender was convicted." United States v.
Blanco, 888 F.2d 907, 910 (1st Cir. 1989).
Under the "combined offense level" formula, combining
these three offense levels--36 for the federal drug
conspiracy and 33 each for the two murders--produces a total
offense level of 39. U.S.S.G. 3D1.4(a).16 A base
offense level of 39, combined with Bartlett's criminal
history category of four, yields a guideline range of 360
months to life. See U.S.S.G. Ch. 5 Pt. A (Sentencing Table).
In exercising its discretion, the district court could have
chosen any figure within this range as the appropriate total
16This formula is intricate but mechanical. One starts
with the highest offense level (here 36) and increases it by
a number of levels based on a table of "units." Here, the
number of units was three--one for the drug conspiracy and
one each for the murders--and three units is equal under the
table to an increase of three levels. U.S.S.G. 3D1.4.
-45-
punishment for the drug conspiracy and two second-degree
murder convictions. Then, given its estimate that the murder
convictions represented 192 months (12 times 16 years), it
should have imposed a sentence for the drug conspiracy and
had it run consecutively "only to the extent necessary" to
make the resulting total period of incarceration equal to the
total punishment that would have been imposed had all three
crimes been sentenced at the same time. U.S.S.G. 5G1.2.
While one gulps at using the term "plain" error in the
face of this morass of rules, the district court's approach
stands the guideline process on its head. Here, instead of
calculating the proper total punishment for all three crimes
and then making the actual federal sentence consecutive to
the extent needed to produce a comparable outcome, the
district court computed a sentence for the drug offense alone
and then made a single yes-or-no choice between a wholly
concurrent and a wholly consecutive sentence. This is a
fundamental departure from the structure imposed by the
guidelines.
We also have no hesitation in concluding that the error
probably affected the sentence. Although the district court
might (as a matter of mathematics) have arrived in a total
punishment identical to that prescribed--namely, an effective
estimated sentence of 454 months (192 months for the state
offenses plus 262 months for the federal offense)--the odds
-46-
of this happening seem to us remote. Here the binary choice-
-either to make the sentence consecutive or concurrent--is
quite likely to have constrained the district court's choice,
and (as it proved) not to the defendant's advantage.
The Supreme Court has said that even if plain error is
shown to have affected the outcome, the reviewing court
retains constrained discretion whether or not to reverse.
See Olano, 113 S. Ct. at 1778-79. In this case, we think
that that discretion should be exercised in favor of a remand
for resentencing, fully recognizing that the defendant may
not in the end profit from this effort. Our reason is not
that this error "affects the fairness, integrity or public
reputation of judicial proceedings." Rather, in this case we
think it is very likely that the resentencing could produce a
different and more favorable sentence.17 If so, the
situation corresponds mutatis mutandis to one in which a
forfeited error may have caused the conviction of an innocent
person, the other rubric under which a plain and prejudicial
error should be noticed on appeal. Olano, 113 S. Ct. at
1779. We add that the burden in resentencing is light.
CONCLUSION
17If the district court had desired to give a longer
sentence, it could easily have chosen a federal term greater
than the guideline minimum. Thus, if the district court did
feel constrained by the binary choice, it was in the
direction of imposing a sentence greater than it would have
preferred.
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The convictions and sentences of Darryl Whiting, Sean
Dixon, Renaldo Pledger, Edwin Carmichael, Steven Wadlington
and William Bowie are affirmed. The sentence of Kenneth
Bartlett is vacated and the matter is remanded for
resentencing.
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