United States v. Parkinson ( 1993 )

March 30, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-2233
UNITED STATES,
Appellee,
v.
KEITH JAMES PARKINSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Breyer, Chief Judge,
Campbell, Senior Circuit Judge,
and Cyr, Circuit Judge.
Christopher W. Dilworth and Dilworth, White & Brandt on
brief for appellant.
Richard S. Cohen, United States Attorney, and F. Mark
Terison, Assistant United States Attorney, on brief for appellee.
Opinion on Rehearing
Per Curiam. Keith Parkinson appeals from his conviction
on a single count of bank robbery, in violation of 18 U.S.C.
2113(a). He raises four issues, two involving evidentiary
rulings at trial and two pertaining to his sentence. We
affirm the conviction but remand for resentencing.1
I. Background
Shortly before noon on February 15, 1990, a man robbed
the Casco Northern Bank's West End branch in Portland, Maine.
He handed the teller a note, written on the back of a bank
form, which read, "Put all your hundreds and fifties on the
counter now." The teller complied, and the man escaped with
$1300. At trial, the teller, Sara Plourd, identified
defendant as the individual in question. So did Amy Bolduc,
another teller who had been seated adjacent to Plourd at the
time of the robbery. (Both had separately identified
defendant earlier in a photographic line-up prepared by the
FBI.) Defendant was also identified by Roger Sabin, an
employee of a restaurant located near the bank, as the
individual who arrived shortly after 11:00 on the morning of
the robbery, drank two beers while looking out the window in
the bank's direction, and then departed. Finally, an FBI
expert document examiner, who had compared the robbery note
1. On December 4, 1992, we issued an opinion in this case
affirming both the conviction and the sentence. In response
to defendant's petition for rehearing, we have vacated that
earlier opinion and issued the instant one in its stead.
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with handwriting exemplars obtained from defendant, testified
that the note and the exemplars had been written by the same
person. Following the one-day trial, defendant was convicted
and sentenced to twenty years in prison.
II. Authentication of Robbery Note
We first address defendant's argument that the
government presented an inadequate foundation for admission
of the robbery note. At trial, Sara Plourd was asked if she
recognized the note and responded: "Yes, that's the note that
the man gave me." And following the note's admission into
evidence, the FBI document examiner identified it (by means
of his initials which he had written on the back) as the one
that had been sent to him for examination; as mentioned, he
also identified the writing as that of defendant. As he did
below, defendant now argues that the court erred in admitting
the note because the government failed to prove an
uninterrupted chain of custody. We review the district
court's ruling for abuse of discretion, see, e.g., United
States v. Collado, 957 F.2d 38, 39 (1st Cir. 1992).
Defendant's claim falters for the reasons expressed in
United States v. Abreu, 952 F.2d 1458, 1467 (1st Cir.), cert.
denied, 112 S. Ct. 1695 (1992). Where "the offered evidence
is of the type that is not readily identifiable or is
susceptible of alteration, a testimonial tracing of the chain
of custody is necessary." Id. The purpose thereof "is to
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render it improbable that the original item has been
exchanged with another or has been tampered with or
contaminated." Id. Yet no testimony as to chain of custody
is necessary where the evidence "is readily identifiable by a
unique feature or other identifying mark." Id.; accord,
e.g., United States v. Hernandez-Herrera, 952 F.2d 342, 344
(10th Cir. 1991) (where "documents are uniquely identifiable
and relatively resistant to change, the establishment of a
chain of custody is not necessary"); see also Fed. R. Evid.
901(b)(1) & (4). It is not disputed that the robbery note
here fell within this latter category. See, e.g., M. Graham,
Federal Practice & Procedure: Evidence 6822, at 854 n.6
(interim ed. 1992) (citing to case involving holdup note as
one involving "unique and readily identifiable" evidence in
this respect). Authentication was properly accomplished,
therefore, through Plourd's identification, without the need
for chain-of-custody testimony.
III. Evidence of Other Crimes
Defendant's next challenge involves evidence that was
never introduced at trial. The day after the Maine robbery,
defendant committed a similar bank robbery in Boston;2 by
the time of the Maine trial, he had pled guilty to this
2. From the government's brief offer of proof, it appears
that this robbery occurred at approximately noon, when a note
written on the back of a bank form, and containing the words
"Put your hundreds, fifties on counter," was handed to a
teller.
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offense and been sentenced therefor in Massachusetts state
court. Defendant's criminal history involved a series of
other offenses, including convictions in 1977 for kidnapping,
robbery and rape, and earlier convictions for, inter alia,
aggravated assault, larceny, and escape. The government
planned to introduce evidence of the Boston robbery under
Fed. R. Evid. 404(b) in order to establish defendant's
identity; it also indicated that, should the defendant
testify, it planned to introduce evidence of all his earlier
convictions under Fed. R. Evid. 609 in order to attack his
credibility. Defendant filed a motion in limine seeking to
exclude all such evidence of his past convictions. During a
break in the trial, the court addressed these matters and
issued a three-part ruling. It held that evidence of the
Boston robbery was admissible under Rule 404(b), given the
similarity of the two robberies and the fact that identity
was the major issue at trial.3 As to the admissibility,
3. The government planned to introduce proof of this robbery
through the testimony of the arresting Boston Police officer.
No voir dire was held (or requested); instead, the government
described the officer's anticipated testimony through an
offer of proof. The court's ruling was therefore necessarily
conditional. It held in part: "I believe that the government
has satisfied Rule 404(b), that [given] the circumstances as
described, if that is the gist of the witness's testimony,
that the jury could indeed conclude that it confirmed the
identity of the defendant, if the jargon of signature crime
is used." Tr. at 103-04 (emphasis added). The court went on
to find, under Rule 403, that the probative value of such
evidence was not substantially outweighed by the danger of
unfair prejudice. Id. See Advisory Committee Note to Rule
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under Rule 609, of defendant's convictions in 1977, the court
reserved judgment pending defendant's testimony. And it held
defendant's other convictions to be inadmissible under Rule
609.
As it turned out, none of this evidence was introduced
and defendant did not testify. In response to an inquiry
from the court, defense counsel indicated that the primary
reason for defendant to testify would be to rebut or
otherwise explain the Boston robbery; if that evidence were
not to be introduced, there would be a "minimal" likelihood
of the defendant testifying.4 The court then encouraged the
government to consider whether to introduce the Boston
robbery evidence, and suggested that both sides confer.
During a recess, the government and defense counsel agreed
that if the evidence of that robbery were not introduced, the
404(b) (explaining requisite balancing test by reference to
Rule 403 factors).
4. The exchange between the court and defense counsel was as
follows:
THE COURT: [A]m I correct in believing
that the only witness for the defendant would be
the defendant himself?
MR. DILWORTH: Probably, yes.
THE COURT: Now as I understand it also,
your decision to put the defendant on is because of
the 404(b) testimony, if that were not coming in,
you would not be putting him on?
MR. DILWORTH: Well, it's his decision.
THE COURT: I understand.
MR. DILWORTH: I would say the chances of him
testifying are much, much less. I'd say minimal,
if the 404 evidence wasn't coming in.
Tr. at 125.
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defendant would not testify. Defense counsel and defendant
both affirmatively acknowledged to the court that they
approved of this arrangement.5 The government then rested,
as did the defense without putting on any witnesses.
Defendant now seeks to challenge the denial of his
motion in limine to exclude the evidence of the Boston
robbery. We agree with the government that, based on a line
of cases commencing with Luce v. United States, 469 U.S. 38(1984), defendant has failed to preserve this issue for
appeal.
The defendant in Luce filed an in limine motion to
preclude the government (in the event he testified) from
relying on an earlier conviction to impeach him under Fed. R.
Evid. 609(a). The motion was denied, yet defendant chose not
to testify and the impeachment evidence was never introduced.
The Court held that "to raise and preserve for review the
claim of improper impeachment with a prior conviction, a
defendant must testify." Id. at 43. It cited various
reasons for this decision. First, without the precise
factual context that such testimony would have provided, an
appellate court is handicapped in reviewing the balance drawn
between probative value and prejudice. Id. at 41. Second,
5. Defense counsel stated: "I've discussed this with my
client, Your Honor, and he's decided that he's not going to
testify on the condition that the government agrees not to
introduce the Rule 404(b) evidence." Tr. at 127. Defendant,
in response to the court's inquiry, confirmed this.
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for much the same reason, the trial court's in limine ruling
is necessarily tentative and "subject to change when the case
unfolds"; any possible harm stemming therefrom is thus
"wholly speculative." Id. at 41. Third, there is no way of
knowing whether the government ultimately would have elected
to use the impeachment evidence. Id. at 42. Fourth, a
reviewing court cannot tell to what degree, if at all, the in
limine ruling contributed to a defendant's decision to remain
silent. Id. And finally, given the difficulty of reviewing
for harmless error in the absence of a concrete factual
setting, requiring a defendant to testify in order to
preserve his objections makes it more difficult to "'plant'
reversible error" in the record. Id.We have joined other courts in extending this reasoning
beyond the confines of Rule 609. In United States v.
Griffin, 818 F.2d 97 (1st Cir.), cert. denied, 484 U.S. 844(1987), for example, we applied Luce to the Rule 403 context.
There, the prosecutor proposed to explain a government
witness' delay in coming forward by offering evidence of a
third-party threat against him. The court sustained the
defendant's objection to such evidence under Rule 403, but
warned that, if defense counsel cross-examined the witness
concerning such delay, the prosecution could use such
evidence in rebuttal. No such cross-examination occurred,
and the "threat" evidence was thus never introduced. Noting
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that Rule 403 "necessitates much the same genre of
comparative analysis" as Rule 609, id. at 104, and finding
each of the Luce concerns applicable, we held that
defendant's challenge to such ruling never ripened into an
appealable issue. Id. at 103-06. See also United States v.
Nivica, 887 F.2d 1110, 1115-17 (1st Cir. 1989) (defendant
sought advance ruling that, if he took the stand, cross-
examination would be limited to the scope of direct and to
questions bearing on credibility; motion was denied, but
defendant never testified or asked for voir dire; held that
ruling was not appealable), cert. denied, 494 U.S. 1005(1990). And other courts have applied Luce to Rule 404(b)
situations similar to that involved here. See, e.g., United
States v. Ortiz, 857 F.2d 900, 904-06 (2d Cir. 1988) (trial
court held that prior conviction could be introduced under
Rule 404(b) only if defendant argued issue of personal drug
use; defendant refrained from arguing such issue, so
conviction was never introduced; held that ruling was not
appealable), cert. denied, 489 U.S. 1070 (1989); United
States v. Johnson, 767 F.2d 1259, 1269-70 (8th Cir. 1985)
(trial court ruled that government would be permitted to
introduce past convictions under Rule 404(b) as rebuttal
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evidence if defendants testified; defendants never took the
stand; held that ruling was not appealable).6
These cases are admittedly distinguishable from the
instant case in one respect. In each of them, the evidence
in question was held to be conditionally admissible. The
trial court in each instance ruled that it could only be
introduced if a subsequent event occurred (i.e., if the
defendant in Luce or Nivica or Johnson testified; if the
defendant in Griffin challenged the witness' credibility; if
the defendant in Johnson raised the personal-use issue). And
in each instance, the merits of the evidentiary ruling
necessarily depended (to a greater or lesser extent) upon
further factual development. As we stated in Nivica: "None
of these requests [in Luce, Griffin and Nivica] were capable
of meaningful resolution in a vacuum. Ultimately, the
trier's decision, whatever his initial inclination, had to
depend upon ... development of a specific record ...." 887
F.2d at 1117. In the instant case, by contrast, there is no
such connection between the court's Rule 404(b) ruling and
the defendant's prospective testimony. The evidence of the
Boston robbery was not rebuttal or impeachment evidence; the
government was permitted to introduce it in its case-in-chief
6. The Johnson court explained: "Although Luce was decided
under Fed. R. Evid. 609(a)(1), its logic applies with equal
force to motions under Rule 404." 767 F.2d at 1270. We
quoted this comment with apparent approval in Griffin, 818
F.2d at 105.
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to establish identity.7 Accordingly, the Rule 404(b)
determination here could have been definitively made (in a
concrete factual setting allowing for appellate review)
during the government's case-in-chief.
For this reason, the first Luce concern--the difficulty
of balancing probative and prejudicial effects in an
evidentiary vacuum--could have been avoided here. Yet that
factor is in fact implicated, due to circumstances not
involved in the above cases. While the Rule 404(b) issue
could have been definitively resolved here and an adequate
record developed, such did not occur. The government's offer
of proof only outlined the anticipated testimony from the
Boston officer in generalized fashion, providing few details
concerning the second robbery.8 Defendant never requested a
voir dire. See Griffin, 818 F.2d at 105 ("counsel may
7. The fact that defendant's decision not to testify
resulted in that evidence not being introduced was nothing
more than happenstance, stemming solely from the parties'
last-minute agreement.
8. The Court in Luce held that an offer of proof was not an
acceptable substitute for actual testimony, since a
defendant's "trial testimony could, for any number of
reasons, differ from the proffer." 469 U.S. at 41 n.5.
Given the limited and specific nature of the testimony
expected from the Boston officer, one might argue that this
concern is of less weight here. Cf. Ortiz, 857 F.2d at 906-
07 (Pierce, J., concurring) (rejecting applicability of Luce
because, unlike the anticipated testimony there, "the
district court could, prospectively, have reviewed what the
defense counsel's arguments would have been, and could have
held the defense counsel to those proffers of argument.").
We need not decide this issue, since the proffer here lacks
sufficient details to permit meaningful review in any event.
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request that ... the actual testimony be screened voir dire
in the jury's absence" in order to supply the necessary
context). The court was thus compelled to make its ruling
contingent on the Boston's officer's testimony turning out to
be as described. On this record, any effort by this court to
review the district court's balancing of probative value
versus prejudicial effect would be difficult if not
impossible.
Each of the remaining Luce factors, moreover, is
directly implicated. The district court might have altered
its ruling upon hearing the Boston officer's testimony. The
government might have elected independently to forgo such
evidence, given the strength of its case. Other
considerations, such as the prospect of the Rule 609 evidence
being admitted, might have contributed to defendant's
decision not to testify. And the sparse factual record would
have hampered any review by this court for harmless error.
Accordingly, we conclude that defendant's challenge to the
Rule 404(b) ruling never ripened into an appealable issue.
Cf. Freeman v. Package Machinery Corp., 865 F.2d 1331, 1337
(1st Cir. 1987) (warning that litigants must exercise caution
in relying on in limine rulings as the basis for preserving
evidentiary objections).
IV. Sentencing
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Relying on 4B1.1 of the sentencing guidelines, the
district court classified defendant as a career offender.
This yielded a criminal history category of VI, an offense
level of 32, and (in light of the statutory maximum) a
sentencing range of 210-240 months. The court imposed the
maximum of 240 months, and ordered that it run consecutively
to the ten-to-twenty year sentence imposed earlier in state
court for the Massachusetts bank robbery.9 Defendant now
argues, as he did briefly below, that under the guidelines
the federal sentence must run at least partly in concurrence
with his state sentence.10 In a related argument, he
contends that the court employed an erroneous offense level
in calculating that a consecutive sentence was warranted. As
we find this latter contention persuasive, we need not
address the former.
Section 5G1.3 addresses the sentencing of a defendant
subject to an undischarged term of imprisonment.11 Three
9. The state sentencing occurred in April 1990.
10. His principal argument below was that the federal
sentence should have been completely concurrent with his
state sentence. He has abandoned this contention on appeal.
11. An amended version of this section took effect on
November 1, 1991--thirteen days prior to defendant's
sentencing. As he did below, defendant in his brief relies
on the earlier version, without mentioning such revision.
Yet, the amended version of 5G1.3 does not adversely affect
defendant's sentencing; indeed, it lends some strength to the
arguments he advances here. As such, no ex post facto
concerns arise, and the amended version governs. See, e.g.,
United States v. Aymelek, 926 F.2d 64, 66 n.1 (1st Cir. 1991)
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separate categories of situations are set forth, each with
different sentencing ramifications. Subsection (a) requires
imposition of a consecutive sentence where, inter alia, a
defendant commits an offense while serving (or after
sentencing for, but before commencing service of) a term of
imprisonment. This provision is inapplicable here.
Subsection (b) applies where, inter alia, the undischarged
prison term resulted from "offense(s) that constituted part
of the same course of conduct as the instant offense and have
been fully taken into account in the determination of the
offense level for the instant offense." In such a case, the
sentence should produce a combined sentence equal to the
total punishment that would have been imposed under 5G1.2
had all sentences been imposed at the same time, with an
adjustment for time already served. This provision likewise
appears inapplicable. While the Boston robbery was included
in defendant's criminal history, it did not in fact
contribute to his offense level: defendant would have been
classified as a career offender even without reference
thereto.
("Barring ex post facto concerns, the guidelines in effect at
the time of sentencing, not those in effect when the crime
was committed, control at sentencing."); United States v.
Cousens, 942 F.2d 800, 801 n.1 (1st Cir. 1991). (We also
note that 5G1.3 was again amended effective November 1,
1992--after defendant's sentencing.)
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The remaining provision provides: "In any other case,
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." Id. 5G1.3(c). The
commentary elaborates as follows:
To the extent practicable, the court shall impose a
sentence for the instant offense 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.
Id. comment. (n.4). Section 5G1.2(b), in turn, provides that
"the sentence imposed ... shall be the total punishment as
determined in accordance with Part D of Chapter Three ...."
And 5G1.2(d) provides that consecutive sentences are
permissible "only to the extent necessary to produce a
combined sentence equal to the total punishment."12
The district court determined that, had both robberies
been considered together for purposes of sentencing,
12. Section 5G1.2(d) reads in full as follows:
If the sentence imposed on the count carrying the
highest statutory maximum is less than the total
punishment, then the sentence imposed on one or
more of the other counts shall run consecutively,
but only to the extent necessary to produce a
combined sentence equal to the total punishment.
In all other respects sentences on all counts shall
run concurrently, except to the extent otherwise
required by law.
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defendant would have faced a "total punishment" of 262 to 327
months. It reached this conclusion in part by calculating
that, under 3D1.4 (which provides for the determination of
a combined offense level for multiple counts), the two
robberies would have led to a two-level increase in
defendant's offense level. The court applied this increase
to the career offender level of 32 derived from 4B1.1,
resulting in an offense level of 34. (A level of 34 and a
criminal history category of VI yields the indicated
sentencing range.) Defendant now argues that it was
inappropriate to apply the two-level increase from 3D1.4(a)
to the career offender level derived from 4B1.1.
Defendant is correct in this regard, as the government
effectively concedes. Section 4B1.1 specifically provides:
"If the offense level for a career criminal from the table
below is greater than the offense level otherwise applicable,
the offense level from the table below shall apply." This
directive makes clear that "the career offender guideline
supersede[s] the 'otherwise applicable offense level.'"
United States v. Elwell, No. 91-1621, slip op. at 18 (1st
Cir. Jan. 20, 1993). The "Application Instructions" in
1B1.1 confirm the point. As we explained in United States v.
Alves, 873 F.2d 495 (1st Cir. 1989), the first step under
that section's sequential format is to use the actual statute
of conviction to determine the offense level, 1B1.1(a)-(b),
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and then to apply any adjustments deriving from Chapter
Three, 1B1.1(c)-(e).
After this is done, the court looks to see if
provisions in Chapter 4, Part B apply, such as
career offender provisions, which may set another
offense level. 1B1.1(f).... The guidelines do
not then apply the adjustments noted in
1B1.1(c)-(e) to the level found for a career
offender.... If the application instructions are
followed in the order written, as they presumably
should be, a career criminal is never allowed [the
reductions specified in Chapter Three].
873 F.2d at 497 (emphasis added).
For this reason, we have on several occasions noted that
the applicability of 4B1.1 obviated any need to examine
potential offense-level adjustments deriving from Chapter
Three. See, e.g., Elwell, supra, slip op. at 18 (role in
offense under 3B1); United States v. Morales-Diaz, 925 F.2d
535, 540 (1st Cir. 1991) (same); United States v. Ruiz-
Garcia, 886 F.2d 474, 476 (1st Cir. 1989) (obstruction of
justice under 3C1); Alves, 873 F.2d at 497 (acceptance of
responsibility under 3E1).13 The same conclusion
necessarily applies to adjustments under 3D1 for multiple
counts. See, e.g., United States v. Streit, 962 F.2d 894,
901 (9th Cir.) (describing sentence), cert. denied, 113 S.
Ct. 431 (1992); United States v. Poff, 723 F. Supp. 79, 80-81
(N.D. Ind. 1989), aff'd on other grounds en banc, 926 F.2d
13. Subsequent to our Alves decision, 4B1.1 was amended to
permit a reduction in the offense level of a career offender
for acceptance of responsibility. No other such adjustments
deriving from Chapter Three have been authorized.
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588 (7th Cir.), cert. denied, 112 S. Ct. 96 (1991).14 It
is apparent, therefore, that the district court erred by
adding the two-level increase derived from 3D1.4 to the
career offender level derived from 4B1.1.15
The government, while not contesting this conclusion,
argues that a remand for resentencing is unnecessary. It
reasons as follows. (1) Without the two-level increase,
defendant's offense level would be 32. With a criminal
history category of VI, he thus would have faced a "total
punishment" of 210-262 months had both robberies been
considered together. (2) As the two sentences now stand,
defendant could end up serving a combined total of as few as
284 months.16 (3) While 284 exceeds 262 (the high end of
14. The fact that 5G1.2(b) specifically refers back to
"the total punishment as determined in accordance with Part D
of Chapter Three" does not change this result. That
reference necessarily encompasses any additional adjustment
from 4B1 as well. The final provision in Part D of Chapter
Three makes this clear. Section 3D1.5, entitled "Determining
the Total Punishment," reads: "Use the combined offense level
to determine the appropriate sentence in accordance with the
provisions of Chapter Five." And the accompanying Commentary
adds: "The combined offense level is subject to adjustments
from ... Chapter Four, Part B ...."
15. The court's oversight was understandable, as the
miscalculation was contained in the presentence report and
was embraced below by both the defendant and the government.
Indeed, it was advanced by both parties on appeal and was
adopted by this court in the original decision; not until
defendant filed his petition for rehearing was the error
mentioned.
16. The government calculates as follows. Defendant
received a ten-to-twenty year sentence in state court. Under
Mass. G.L. c. 127, 129, the Commonwealth deducts twelve and
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the applicable sentencing range had both robberies been
considered together), it is close enough to satisfy the
guidelines. For as noted above, the guidelines only call for
a sentence that "approximates" the total punishment that
would have been imposed, "to the extent practicable."
We need not address the validity of these specific
contentions, as we conclude that a remand for resentencing is
appropriate in any event. In the original opinion we noted
that (again due largely to the parties' oversight) the
district court failed to employ the methodology set forth in
the applicable version of 5G1.3 in deciding to impose a
consecutive sentence. We think that this additional
shortcoming, when combined with the erroneous offense-level
calculation, suffices under the circumstances to warrant a
remand. We intimate no view as to the appropriateness of (1)
any specific sentence to be imposed upon resentencing or (2)
any upward or downward departure that either party might
request.
one-half days from the sentence for each month of good
conduct, meaning that with such credits defendant would serve
at most eleven years and nine months. More important, under
G.L. c. 127, 133, defendant would be eligible for parole
after serving two-thirds of his minimum sentence--i.e., after
80 months. As to the federal sentence, under 18 U.S.C.
3624(b), defendant would receive a 54-day credit for each
year of "satisfactory behavior," meaning he could end up
serving 204 months out of the 240 imposed. For both
sentences in conjunction, therefore, he could end up serving
as few as 284 months.
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The conviction is affirmed, the sentence is vacated, and
the case is remanded for resentencing.
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