United States v. Kelvin Harrington , 947 F.2d 956 ( 1991 )

Opinion for the court filed by Circuit Judge RUTH BADER GINSBURG.

Concurring opinion filed by Circuit Judge HARRY T. EDWARDS.

Dissenting opinion filed by Circuit Judge SILBERMAN.

RUTH BADER GINSBURG, Circuit Judge:

In sentencing Kelvin Harrington for narcotics offenses, the district court departed downward from the sentencing range indicated by the United States Sentencing Guidelines (“guidelines,” cited as “U.S.S.G.”). Harrington’s potential for rehabilitation from drug addiction, the trial judge held, was a mitigating circumstance not adequately considered by the Sentencing Commission in promulgating the guidelines. See United States v. Harrington, 741 F.Supp. 968 (D.D.C.1990). The government appeals the sentence. We conclude that Harrington’s post-offense rehabilitation is the type of conduct properly considered in determining whether he is eligible for a reduction in sentence under U.S.S.G. § 3E1.1 (acceptance of personal responsibility for one’s criminal conduct).¹ We therefore vacate the sentence imposed by the district court and remand for resen-tencing consistent with this opinion.

I. Background

A. Review Standards

Both the Sentencing Reform Act of 1984 and the guidelines authorize judicial departure from the guidelines sentencing range if the sentencing court

finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.

18 U.S.C. § 3553(b); see U.S.S.G. Ch. 1, Pt. A, 4(b) (introductory policy statement on departures); id. § 5K2.0 (policy statement on grounds for departures). In deciding whether the Sentencing Commission adequately accounted for a particular circumstance, “the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.” 18 U.S.C. § 3553(b). The determination whether a particular factor is an appropriate ground for departure “involves a question of statutory interpretation” over which this court exercises “plenary review.” United States v. Burns, 893 F.2d 1343, 1345 (D.C.Cir.1990), rev’d on other grounds, — U.S. —, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991).

Once a factor is established as “a legally permissible basis for departure,” however, we accord “broad deference to the district court’s judgment as to the appropriateness of considering th[e] factor, and we will uphold the departure so long as it is reasonable.” Id. at 1345 (citing 18 U.S.C. § 3742(e)(4)). Fact findings underlying the sentencing court’s decision to depart will not be disturbed unless clearly erroneous. Id. at 1345-46 (citing United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989)).

B. Harrington’s Sentence

In sentencing Harrington, the district court held that

the Guidelines and the official comment, including the Commission’s rejection of addiction as a factor in sentencing [in U.S.S.G. § 5H1.4 ¶ 2], provide no evidence of consideration of a first offender drug addict’s probable success in drug treatment as a factor in sentencing and the absence of consideration of this mitigating factor constitutes a basis for departure where expert opinion and other evidence leads to a finding that successful treatment for drug addiction is likely.

Harrington, 741 F.Supp. at 976.² The court found that Harrington “is an addict who has demonstrated that he is amenable to successful drug treatment in prison which is likely to curb any criminal propensities.” Id. at 977. This determination rested on several grounds: “uncontrovert-ed expert opinion ... that successful treatment of Harrington’s addiction is likely and that future criminal activity by him is unlikely”; the corroborative conclusions regarding drug treatment of prisoners contained in Understanding Drug Treatment, an Office of National Drug Control Policy White Paper issued in June 1990; the positive evaluations of Harrington’s partieipation in drug treatment programs during his pretrial release and post-trial incarceration; and the court’s own “observations of Harrington on his several court appearances before and during the jury trial and during the sentencing proceedings.” Id. at 976-77. The court consequently departed downward from Harrington’s guidelines sentencing range of 97-121 months and imposed the statutory minimum prison term of 60 months, followed by four years of supervised release. Id. at 976-78.

II. Discussion

Federal courts of appeals that have faced claims of post-offense drug rehabilitation as a basis for downward departure have resolved the issue under one or the other of two arguably applicable guidelines provisions, section 3E1.1 or section 5H1.4. The First and Fourth Circuits regarded evidence of successful drug treatment between arrest and sentencing as post-offense conduct within the scope of U.S.S.G. § 3E1.1, which permits a two-level reduction in offense level “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” U.S.S.G. § 3El.l(a);³ see United States v. Sklar, 920 F.2d 107, 115-17 (1st Cir.1990); United States v. Van Dyke, 895 F.2d 984, 986-87 (4th Cir.), cert. denied, — U.S. —, 111 S.Ct. 112, 112 L.Ed.2d 82 (1990). A two-level reduction in Harrington’s case would yield a sentencing range of 76-97 months, in contrast to the unreduced 97-121 months range, and the 60 months the district court imposed.

The Fourth Circuit in Van Dyke decided that the two-level reduction under section 3E1.1 precluded any additional downward departure. 895 F.2d at 987.⁴ The First Circuit, however, said in Sklar that “a defendant’s rehabilitation might, on rare occasion, serve as a basis for a downward departure [exceeding two levels], but only when and if the rehabilitation is ‘so extraordinary as to suggest its presence to a degree not adequately taken into consideration by the acceptance of responsibility reduction.’ ” 920 F.2d at 116 (citation omitted).⁵

The Third and Ninth Circuits considered post-arrest drug rehabilitation under the rubric “Specific Offender Characteristics,” governed by Chapter 5, Part H of the guidelines, rather than as post-offense conduct demonstrating acceptance of responsibility under section 3E1.1. See United States v. Martin, 938 F.2d 162, 163 (9th Cir.1991); United States v. Pharr, 916 F.2d 129, 132-33 (3d Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 2274, 114 L.Ed.2d 725 (1991). Both circuits interpreted section 5H1.4, see supra note 2, “to mean that dependence upon drugs, or separation from such a dependency, is not a proper basis for a downward departure from the guidelines.” Id. at 133; Martin, 938 F.2d at 164 (quoting Pharr). The Ninth Circuit in Martin emphasized the Commission’s recommendation that drug treatment be a required component of post-incarceration supervised release. That recommendation, the Ninth Circuit said, was a clear indication of “intent that rehabilitation from drug abuse be factored into post-sentencing supervised release and not be recognized as a ground for departure.” Id.⁶

The Third Circuit in Pharr ruled more cautiously. It considered and rejected, on the facts of the Pharr case, the application of section 3E1.1 to the particular defendant’s post-offense drug rehabilitation. See Pharr, 916 F.2d at 131-32. The defendant in Pharr had entered a guilty plea to one count each of sale of stolen U.S. treasury checks and possession of stolen mail. Id. at 130. The district court departed downward from the guidelines upon finding that “Pharr had made a conscientious effort to overcome his heroin addiction” and that a jail sentence “would disrupt his drug rehabilitation treatment.” Id.

Pharr’s post-offense rehabilitative conduct, the Third Circuit held, was not within the ambit of section 3E1.1. Id. at 131. The appellate court reasoned that section 3E1.1 was intended to credit a defendant for “either accepting responsibility for the offense for which he is being sentenced or mitigating the effects of his criminal activity.” Id. Pharr’s efforts to overcome substance abuse did not manifest acceptance of responsibility “for selling stolen treasury checks,” the court observed, nor was his entrance into a drug rehabilitation program an “attempt[ ] to rectify the harm he caused.” Id. Rather, Pharr’s drug rehabilitation attempt qualified as “[s]elf-improvement,” and thus was “not the type of conduct contemplated by the acceptance of responsibility provisions of the guidelines.” Id. The appeals court in Pharr regarded Van Dyke as “clearly distinguishable” on its facts “since Van Dyke’s drug rehabilitation efforts were directly related to the crime for which he was being sentenced.” Id. at 132. The Third Circuit expressly reserved “the issue of whether drug rehabilitation can be considered acceptance of responsibility for section 3E1.1 purposes in sentencing a defendant for a drug-related offense,” and “offer[ed] no indication as to how [it] would rule if that issue were squarely before” the court. Id.

The Ninth Circuit in Martin made no reference to the acceptance of responsibility provision in its review of the district court’s refusal to depart downward based on Martin’s success in a residential drug treatment program while on pretrial release. See Martin, 938 F.2d 162. The defendant in Martin had entered a plea of guilty to bank robbery, and the decision contains no suggestion that his crime was related to his substance abuse. It is thus unclear whether the Ninth Circuit would regard post-offense drug rehabilitation as a permissible basis for a two-level reduction under section 3E1.1 in circumstances where rehabilitation could be viewed as manifesting acceptance of responsibility for one’s criminal conduct.

Amicus Curiae⁷ distinguishes the decisions of the First, Third, Fourth, and Ninth Circuits by stressing the presence in Harrington of “scientific findings of likelihood of successful treatment.” Brief of Amicus Curiae at 10. To predicate unlimited departure from the guidelines on expert testimony as to the defendant’s potential for successful rehabilitation or propensity for recidivism, however, is troubling. Defendants without access to the psychiatric evaluation afforded Harrington might be similarly situated, yet unable to make the case that he did for leniency. The disparate sentences that could result would in turn frustrate one of the prime objectives Congress had in view when it established the Commission and directed it to develop the guidelines. See 28 U.S.C. § 991(b)(1)(B) (asserting purpose of “avoiding unwarranted sentencing disparities”). Reliance on “scientific” predictions, moreover, could potentially transform sentencing under the guidelines into a battle of experts, with the prosecution seeking to prove that the defendant is not likely to succeed in drug treatment and is, indeed, a poor candidate for rehabilitation.

The sole court of appeals decision cited in support of downward departure based on drug rehabilitation, as here ordered by the district court, is United States v. Maddalena, 893 F.2d 815 (6th Cir.1989). In Maddalena, the Sixth Circuit remanded a case for resentencing because the sentencing judge “incorrectly believed that he lacked any authority to consider defendant’s mitigating circumstances as well as the discretion to deviate from the guidelines.” Id. at 818.⁸ Because the guidelines expressly authorize deviation from a sentencing range upon finding aggravating or mitigating circumstances inadequately considered by the Sentencing Commission, id. (citing U.S.S.G. § 5K2.0), the appeals court remanded, “instructing the [sentencing] judge that he may, but need not consider the defendant’s efforts to stay away from drugs as a basis for departing from the guidelines.” Id. The Sixth Circuit did not refer to section 3E1.1 (acceptance of responsibility) or to section 5H1.4 (precluding downward departure for drug dependence) in its Maddalena analysis of the downward departure issue.

The district court in Harrington relied on Maddalena as support for the proposition “that a successful effort to overcome an addiction is a mitigating factor not considered by the Sentencing Commission.” Harrington, 741 F.Supp. at 976; see also Pharr, 916 F.2d at 132; Sklar, 920 F.2d at 116; Martin, 938 F.2d at 163 (all citing Maddalena). The government persuasively argues, however, that Maddalena is distinguishable from Harrington, and from the decisions in Sklar, Pharr, Van Dyke, and Martin. See Brief for Cross-Appellant at 45-47. Unlike each of these cited cases, Maddalena did not concern post-offense rehabilitative efforts as a basis for downward departure from the guidelines. See supra note 8. Maddalena may stand for no more than a determination by the Sixth Circuit that a district court has discretion to consider mitigating circumstances in an individual defendant’s background in deciding whether to impose a sentence outside the guideline range. Cf. United States v. Lopez, 938 F.2d 1293, 1294, 1298-99 (D.C.Cir.1991) (remanding for resentencing without deciding whether youthful defendant’s “particular history,” notably his exposure to domestic violence, “warrants] or permit[s]” downward departure from guidelines).

The case that appears to lend the strongest support for Harrington’s position and the sentence imposed on him by the district court is United States v. Rodriguez, 724 F.Supp. 1118 (S.D.N.Y.1989). Following his arrest on charges of selling $10 worth of crack to an undercover agent, Rodriguez “accomplished an impressive rehabilitation” in which he overcame his drug addiction, remained drug-free for nearly two years, reunited with his wife and children, assumed “the full responsibilities of the role of husband, father and provider,” obtained employment, and took courses to improve his employment opportunities. Id. at 1119. The district court considered it “senseless, destructive and contrary to the objectives of the criminal law” to sentence Rodriguez to jail, and concluded that the Sentencing Reform Act and the guidelines permit downward departure “by reason of the personal characteristics of the offender.” Id.

The court in Rodriguez stated that Congress, in passing the Sentencing Reform Act of 1984, intended to reduce sentencing disparities, but not to eliminate consideration of the personal characteristics of the offender. Id. at 1119-20. The court stressed the statutory direction that a sentence should be “sufficient, but not greater than necessary ... to provide just punishment ... [and] to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C); see Rodriguez, 724 F.Supp. at 1120. This direction, the court said, “unquestionably envisions more severe sentences for defendants considered more likely to commit further crimes and less severe sentences for those unlikely to commit crimes.” Id.

Upon review of the guidelines, the Rodriguez court concluded that the Sentencing Commission had adopted an approach “somewhat different from what the statute anticipated.” Id. at 1121. While “[t]he statute anticipated categorizing [both] offenses and offenders allowing departure only by reason of a circumstance ‘not adequately considered by the Sentencing Commission,’ ” id. (quoting 18 U.S.C. § 3553(b)), the Commission “categorized offenses but not offenders” and “expressly acknowledged the need in the ‘atypical’ case for invocation of the departure power to give appropriate effect to personal characteristics.” Id.; see U.S.S.G., Ch. 1, Pt. A, 4(b) (introductory policy statement on departures). In the Rodriguez court’s view, the Sentencing Commission “expressly invited a freer exercise of departure than it would approve if it had attached scheduled values to the personal characteristics of the defendant.” 724 F.Supp. at 1121.

No federal appellate court has adopted the Rodriguez court’s analysis, however, and we are mindful of the extraordinary setting of that case. Rodriguez was convicted of a far less serious offense than was Harrington and had accomplished an arguably more impressive rehabilitation. The sentencing instructions for Rodriguez, moreover, were anomalous. The statute under which he was convicted, 21 U.S.C. § 845(a), required no term of imprisonment, but specified that imprisonment, if imposed, had to run for at least one year. The guidelines called for a minimum term of eight months. Without a departure, the judge would have been obliged to send Rodriguez to jail, though the statute did not so require, for a year’s term, though the guidelines permitted four months less. See Rodriguez, 724 F.Supp. at 1119. Rodriguez thus does not seem to us a model properly followed in Harrington’s case.

Recognizing that Congress and the Commission have not squarely addressed the issue we face, we find in the decisions of our sister circuits the most cogent discussion in Sklar, 920 F.2d at 115-17, and we follow the lead of that First Circuit judgment. We therefore hold that post-offense but pretrial drug rehabilitation effort may justify a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. We leave open the possibility that, “on rare occasion,” a further reduction might be in order, “but only when and if the rehabilitation is ‘so extraordinary as to suggest its presence to a degree not adequately taken into consideration by the acceptance of responsibility reduction.’ ” Sklar, 920 F.2d at 116 (citation omitted); see U.S.S.G. § 5K2.0 (a sentencing “court may depart from the guidelines, even though the reason for departure is taken into consideration in the guidelines (e.g., as a specific offense characteristic or other adjustment), if the court determines that, in light of unusual circumstances, the guidelines level attached to that factor is inadequate”); see also United States v. Lopez, 938 F.2d at 1298-99 (D.C.Cir.1991) (question of whether defendant’s exposure to domestic violence is proper basis for departure left open for district court’s consideration on remand).

The district court did not address Harrington’s eligibility for a reduction in sentence under section 3E1.1, possibly because Harrington consistently asserted his innocence of the charged offenses.⁹ While a pretrial guilty plea “combined with truthful admission of involvement in the offense and related conduct” may “constitute significant evidence of acceptance of responsibility,” U.S.S.G. § 3E1.1, comment, (n. 3), the guideline neither guarantees a sentence reduction to a defendant who enters a guilty plea, nor precludes reduction because of “a finding of guilt by the court or jury or the practical certainty of conviction at trial.” U.S.S.G. § 3El.l(b) & (c).

An application note to section 3E1.1 states that a defendant’s admission of guilt and expression of remorse only after conviction at trial does not warrant a reduction for acceptance of responsibility. Id., comment. (n. 2).¹⁰ We do not read the note to rule out cause other than pretrial admission of guilt for an acceptance of responsibility reduction. To so read the note would diminish the force of the guideline itself, which states: “A defendant may be given consideration under this [acceptance of responsibility] section without regard to whether his conviction is based upon a guilty plea or a finding of guilt by the court or jury or the practical certainty of conviction at trial.” Id. § 3El.l(b) (emphasis supplied). The note does usefully clarify, however, that a defendant’s pretrial behavior, not his post-trial confession or conversion, is the prime indicator of his acceptance of responsibility for criminal conduct.

The district court, therefore, legitimately may take into account that Harrington, although he admitted only purchasing drugs for personal use, see supra note 9, engaged pretrial in notable rehabilitative efforts, which continued throughout the year between conviction and sentencing. That conduct, we hold, may be found demonstrative of an acceptance of responsibility warranting a sentence reduction. Because the district court did not evaluate Harrington’s rehabilitative efforts under section 3E1.1, the applicable guideline, we vacate the sentence and remand for reconsideration of the appropriate sentence. See United States v. Bruce, 939 F.2d 1053, 1057 (D.C.Cir.1991) (guidelines “accord ‘great deference’ to the sentencing judge who ‘is in a unique position to evaluate defendant’s acceptance of responsibility’ ”) (quoting U.S.S.G. § 3E1.1, comment, (n. 5)).

III. Conolusion

The district court incorrectly concluded that Harrington’s effort to overcome his drug addiction was a mitigating circumstance not considered by the Sentencing Commission. Post-offense rehabilitative conduct, however, may manifest an acceptance of responsibility warranting a reduction in sentence under guideline section 3E1.1. We therefore vacate Harrington’s sentence and remand for resentencing consistent with this opinion.

It is so ordered.

1 . Section 3E1.1 provides:

Acceptance of Responsibility

(a) If the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct, reduce the offense level by 2 levels.

(b) A defendant may be given consideration under this section without regard to whether his conviction is based upon a guilty plea or a finding of guilt by the court or jury or the practical certainty of conviction at trial.

(c)A defendant who enters a guilty plea is not entitled to a sentencing reduction under this section as a matter of right.

2 . Congress directed the Sentencing Commission to consider the potential relevance to sentencing of a number of specific offender characteristics. 28 U.S.C. § 994(d). Chapter 5, Part H of the guidelines contains ten policy statements on these specific offender characteristics. U.S.S.G. § 5H1.4 addresses "Physical Condition, Including Drug Dependence and Alcohol Abuse," and provides in pertinent part:

Drug dependence or alcohol abuse is not a reason for imposing a sentence below the guidelines. Substance abuse is highly correlated to an increased propensity to commit crime. Due to this increased risk, it is highly recommended that a defendant who is incarcerated also be sentenced to supervised release with a requirement that the defendant participate in a substance abuse program. If participation in a substance abuse program is required, the length of supervised release should take into account the length of time necessary for the supervisory body to judge the success of the program.

U.S.S.G. § 5H1.4 ¶ 2.

The Harrington trial judge saw an “obvious negative pregnant” in section 5H1.4 ¶ 2 that conveyed this message: "successful treatment for drug abuse could lead to a reduced propensity to commit crime and thereby reduce the need for the longer periods of incarceration contemplated by the Guidelines with respect to drug law violations." Harrington, 741 F.Supp. at 975-76. In the district court’s view, the "Sentencing Commission’s rejection of addiction as a sentencing factor is no indication of its consideration of susceptibility to successful treatment for drug addiction, rather, the negative pregnant tends to confirm the opposite reading of the Guidelines and the official comments." Id. at 976.

3 . The official commentary to this "Acceptance of Responsibility” provision lists several examples of conduct appropriately considered in determining whether a defendant qualifies for the reduction, including “voluntary termination or withdrawal from criminal conduct or associations." Id., comment, (n. 1(a)). According to the Commission, the section 3E1.1 reduction “recognizes legitimate societal interests. For several reasons, a defendant who clearly demonstrates a recognition and affirmative acceptance of personal responsibility for the offense by taking, in a timely fashion, one or more of the actions listed [in the commentary] (or some equivalent action) is appropriately given a lower offense level than a defendant who has not demonstrated acceptance of responsibility." Id., comment, (background). The Commission also acknowledged the "unique position" of the sentencing judge "to evaluate a defendant’s acceptance of responsibility,” and stated that "[fjor this reason, the determination of the sentencing judge is entitled to great deference on review.” Id., comment, (n. 5).

4 . The Fourth Circuit reasoned that consideration of Van Dyke’s post-offense "rehabilitative” conduct was "limited to application of acceptance of responsibility because it is the type of ‘equivalent’ conduct encompassed within the framework of U.S.S.G. § 3E1.1.” Van Dyke, 895 F.2d at 987. Because Van Dyke’s attempts to rehabilitate himself from drug abuse fit within section 3E1.1, the Fourth Circuit concluded, his post-offense conduct was "adequately taken into consideration by the Sentencing Commission” and thus could not “serve as an independent basis for departure.” Id.

5 . The First Circuit stressed that "merited downward departures for rehabilitation [beyond a two-level acceptance of responsibility reduction] are likely to be few and far between,” and concluded that "Sklar's successful completion of a residential substance abuse program,” which was a required condition of his pretrial release, "seem[ed] insufficiently out of the ordinary to jettison [the] rule” that "efforts to overcome ... drug addiction ... will ordinarily not support a downward departure.” Sklar, 920 F.2d at 116— 17.

6 .The Commission’s prescription in section 5H1.4 ¶ 2 that drug treatment follow incarceration comports with the congressional instruction that "the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment.” 28 U.S.C. § 994(k). While Congress thus rejected imprisonment as a means to achieve rehabilitation, it also recognized “correctional treatment” as a proper goal of sentencing. See 18 U.S.C. § 3553(a)(2)(D) (directing sentencing court to consider four sentencing goals, including "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner"). See also Mistretta v. United States, 488 U.S. 361, 367, 109 S.Ct. 647, 652, 102 L.Ed.2d 714 (1989) (Sentencing Reform Act "rejects imprisonment as a means of promoting rehabilitation ... and ... states that punishment should serve retributive, educational, deterrent and incapacitative goals”).

7 . We granted the motion of National Association of Criminal Defense Lawyers, Inc. (“NACDL”) to appear as amicus curiae and brief the sentencing issue raised in the government’s appeal. NACDL is represented by the same counsel appointed to appear as amicus curiae in the district court. See Harrington, 741 F.Supp. at 971.

8 . The defendant in Maddalena pled guilty to armed robbery and requested a downward departure from the sentencing range based on “his [pre-offense] efforts to stay away from drugs.” Maddalena, 893 F.2d at 817. Maddalena "was aware of his drug dependency),] made a conscious effort to deal with his problem,” and had "managed to live a drug-free life for nine years.” Id. at n. 1.

9 . Harrington was charged with selling crack to an undercover officer and with possession with intent to distribute cocaine and crack. The second charge arose from a police raid on a dwelling, where Harrington was found in the kitchen with the seized drugs in plain view. At trial, Harrington claimed misidentification as to the undercover sale, and alleged that he was present in the raided apartment as a customer and not as a dealer.

10 . The note reads:

This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.