United States v. Widi

United States Court of Appeals
For the First Circuit
Nos. 10-2268, 10-2302
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID WIDI,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Boudin, Circuit Judges.
James S. Hewes, by appointment of the court, for appellant.
David J. Widi, Jr. on brief pro se.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief for
appellee.
July 6, 2012
BOUDIN, Circuit Judge. David Widi, who now appeals to
this court, was convicted by a jury in Maine federal district court
of possessing a firearm or ammunition as a prohibited felon and
manufacturing marijuana. The saga began on November 25, 2008, with
a search warrant for Widi's apartment secured by an agent of the
federal Bureau of Alcohol, Tobacco, Firearms and Explosives
("ATF").
The apartment, searched three days later, contained what
one of the officers described as an "elaborate growing system" for
marijuana; seventeen marijuana plants; rounds of ammunition on the
kitchen counter and throughout the apartment; a reloading press for
ammunition; a loaded pistol in the nightstand beside Widi's bed; a
.50 caliber rifle barrel in the attic; and (in a locked gun safe)
six guns of varying styles, a bag of marijuana, and more
ammunition.
Widi was arrested and eventually charged with both
possession of firearms and ammunition as a prohibited felon, 18
U.S.C. § 922(g)(1) (2006), and manufacturing marijuana, 21 U.S.C.
§ 841(a)(1). Following a two-day trial, the jury returned a guilty
verdict after less than two hours of deliberation. Widi was later
sentenced to 108 months' imprisonment. Widi now appeals and,
supplementing his attorney's brief with his own, raises a host of
issues.
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Competence. The first argument by Widi's appellate
counsel is that Widi was not competent to stand trial. At the
formal hearing on Widi's competency on November 30, 2009, his trial
counsel explained that both he and Widi took the position that Widi
was competent to stand trial. Although the government suggests
that the issue may have been waived or is subject only to plain
error review, we will assume arguendo that review is for clear
error, which is the normal standard for findings by the district
judge. United States v. Reynolds, 646 F.3d 63, 71 (1st Cir. 2011).
After Widi's indictment, his then-counsel, Mary Davis,
raised concerns about Widi's competence with the government, saying
that Widi was incapable of focusing on the issues as to whether he
should plead or go to trial. The government, in turn, filed a
motion for a mental examination with the court under the governing
statutory procedure. 18 U.S.C. §§ 4241(a)-(b), 4247(b)-(c). Widi
himself resisted mildly but the district judge, noting his "own
concerns," granted the motion.
A further hearing followed with a similar colloquy after
which Widi underwent an examination primarily conducted by William
J. Ryan, a licensed psychologist. However, Widi consistently
refused to cooperate and he also refused to participate in
treatment sessions with a prison psychiatrist. Dr. Ryan depended
therefore on observations of Widi, conversations with his
grandmother and attorneys, and a review of documents; he
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acknowledged that his diagnoses were made with "less than the usual
degree of psychological certainty."
In his report, Dr. Ryan ultimately concluded that
Mr. Widi is incapable of comprehending the
seriousness of his case, the recommendations
of defense counsel, communicating with
counsel, weighing the merits of various
defenses, and making decisions regarding his
right to a trial, his right to an attorney,
his right to enter into a plea, and his right
to call witnesses. Mr. Widi is currently not
capable of testifying in his own defense and
speaking during sentencing proceedings should
it be necessary . . . . Mr. Widi does not
have a rational and factual understanding of
the proceedings against him, and he is
incapable of assisting counsel with his
defense. Within less than the usual degree of
psychological certainty, it is the opinion of
this evaluator, Mr. Widi is currently Not
Competent to Stand Trial.
The report cited specific facts in support of its conclusion of
Widi's incompetence. For example:
-Widi used a cart full of books to barricade
himself inside a holding cell to prevent staff
from changing his cell and shouted about
having "to go to war"
-Widi asserted that the whole federal
government was against him and repeatedly
claimed that evaluation was unethical and
unconstitutional
-Widi attempted to throw himself down a flight
of stairs when his cell was changed, causing
him to be placed on suicide watch
-Widi frequently displayed extreme emotional
behavior
-Widi's family has a history of serious mental
illness and substance abuse.
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As Davis and Widi continued to disagree about his
competency, she withdrew and was replaced by Peter Rodway. Rodway,
after conferring with Widi, concluded that Widi could adequately
assist in his defense and, thereafter, the formal hearing on
competency took place on November 30, 2009. Both Rodway and the
prosecutor disagreed with Dr. Ryan's report, which the judge
admitted into evidence on his own motion. Neither side called any
other witness nor provided any other evidence beyond Rodway's
express representation that he found Widi competent.
The judge ruled that Widi was competent, saying:
I've had the opportunity to review the report.
I agree with counsel that I believe the
report's conclusion is erroneous. I think
it's based on insubstantial predicate. In my
view, the doctors arrived at a hasty
conclusion based on inadequate evidence and I
reject the result of that report.
I'm entirely in agreement with
counsel's position. I find by a preponderance
of the evidence this defendant is presently
and will in the reasonable future be competent
to stand trial.
I find specifically this defendant --
and I would note I've observed him every time
he has been in court and my decision is based
in part on my interaction with this defendant.
I find that he has sufficient present ability
to consult with his counsel with the
reasonable degree of rational understanding.
I further find that this defendant has
a rational as well as a factual understanding
of the proceedings against him and the
possible consequences. I also might note as
an aside that his interaction with the earlier
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examiners, as indicated in the report,
underlines that understanding.
Three circumstances lend support to the district court's
finding. First, defense counsel's conclusion of competence is
generally given great weight because of counsel's "unique vantage,"
United States v. Muriel-Cruz, 412 F.3d 9, 13 (1st Cir. 2005).
True, Davis had strongly questioned Widi's competency and found
that she could not effectively discuss matters with him. But
Rodway found that he could work with Widi, a relationship possibly
enhanced by Rodway's willingness to go to trial.
Second, the district judge may take into account his own
observations of the defendant, Muriel-Cruz, 412 F.3d at 13; United
States v. Pryor, 960 F.2d 1, 2 (1st Cir. 1992), and in this case
the district court had several times dealt with Widi in the
courtroom. On these appeals this court has itself reviewed
pertinent transcripts which confirm that Widi was far from
incoherent. See United States v. Huguenin, 950 F.2d 23, 28 & n.5
(1st Cir. 1991).
Third, Widi's own insistence on his competency is also
entitled to consideration. See Muriel-Cruz, 412 F.3d at 13. Widi
might be mistaken and, if plainly incoherent or irrational, his
assertion to the contrary could hardly be accepted. See Reynolds,
646 F.3d at 71. But he was not in this state. And, as between an
additional four month confinement for observation, 18 U.S.C. §
4241(d), and a trial that might go on being postponed after that,
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most would give some thought to the defendant's own preference and
profession.
Dr. Ryan deemed Widi incompetent and, as the only
clinician, his views too are entitled to weight, Muriel-Cruz, 412
F.3d at 13, even if his examination was handicapped by Widi's
refusal to cooperate. But competence to stand trial is a
functional inquiry. Dusky v. United States, 362 U.S. 402, 402
(1960) (per curiam); Robidoux v. O'Brien, 643 F.3d 334, 339 (1st
Cir.), cert. denied, 132 S. Ct. 866 (2011). A defendant may have
serious mental illness while still being able to understand the
proceedings and rationally assist his counsel. Brown v. O'Brien,
666 F.3d 818, 826-27 & n.9 (1st Cir. 2012), cert. denied, 2012 WL
1379023 (June 25, 2012).
The district judge did not have a wealth of choices.
Calling Dr. Ryan as a court witness might have been helpful, but
his position and explanations were both set forth in his report.
As Widi had refused to cooperate with Dr. Ryan's evaluation and the
prison psychiatrist's attempt at treatment, it is unclear that more
information would be gained by ordering another immediate
examination. About the only remaining option was a postponement of
trial and continued observation--over the objection of both Widi
and his counsel.
Like many factual issues presented in district court,
this one had no inescapable single answer. Dr. Ryan knew more than
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anyone else about diagnosing mental states; the judge, more about
what help and understanding is needed from a defendant in a
criminal trial; Rodway, about what kind of cooperation Widi was
giving. The district judge made a debatable call; but the factual
determination on which it rests was not clear error.
Pretrial Motions. Widi argues that the affidavit that
underpinned the search warrant was inadequate. Widi succeeded in
suppressing evidence seized from his vehicle and pre-Miranda
statements made in response to questioning, but the search warrant
was readily upheld, as it should have been. It rested on
statements by two different confidential informants that they had
made multiple visits to Widi's apartment and had seen both
marijuana and guns; one also described a marijuana growing
operation in the second bedroom.
This was ample to show a "fair probability that
contraband or evidence of a crime" would be found, Illinois v.
Gates, 462 U.S. 213, 238 (1983), and more than ample to trigger
Leon's protection for reasonable reliance on a warrant even if the
latter were marginally defective, United States v. Leon, 468 U.S.
897, 922 (1984). That the informants had criminal records or
sought to benefit from cooperation goes only to weight; and while
one informant's information was six months old, the other had been
at the apartment only three weeks before.
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Widi also objects to the district court's decision not to
exclude statements he made after he had been given a Miranda
warning, invoking Missouri v. Seibert, 542 U.S. 600 (2004).
Seibert makes vulnerable some post-Miranda statements if they were
induced by pre-Miranda statements that should themselves not have
been taken without a warning, although how to read the split
decision in Seibert may be an open question.1 See generally
United States v. Jackson, 608 F.3d 100, 103-04 (1st Cir.), cert.
denied, 131 S. Ct. 435 (2010).
This court has not settled on a definitive reading but
the statements here at issue pass either version of the Seibert
test. Widi was detained for only 10 to 15 minutes prior to arrest
and administration of the Miranda warning; and the pre-warning
inquiries were primarily aimed at getting on-the-scene access to
the locked gun safe and any firearms within it; nothing suggests
that the agents were intending to use them to extract later post-
warning information or that the later warnings were rendered
ineffective by the earlier questions.
Widi also argues that the district court erroneously
denied his motion requesting a severance of the charges because
they were misjoined or, in the alternative, because the joinder was
1
Seibert had no clear majority; Justice Souter's plurality
opinion garnered four votes and Justice Kennedy who supplied the
necessary fifth vote concurred in the judgment, writing separately.
Seibert, 542 U.S. at 604, 618.
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unduly prejudicial. Widi argues that the gun and drug counts were
misjoined because not part of a common scheme or plan, Fed. R.
Crim. P. 8, but the inference of a connection between drug dealing
and weapons is commonplace, and gun and drug charges are regularly
tried together. E.g., United States v. Paneto, 661 F.3d 709 (1st
Cir. 2011), cert. denied, 2012 WL 1204086 (May 14, 2012).
Widi's specific complaint as to severance is that the
mention of the predicate felony for the felon-in-possession charge,
18 U.S.C. § 922(g)(1)--to which he stipulated--impermissibly
prejudiced him in defending against the manufacturing marijuana
charge. The bare mention of a prior felony conviction otherwise
unidentified was trivial, and dwarfed here by the powerful separate
evidence as to each charge. As already noted, Widi had both an
armory and a relatively sophisticated marijuana growing operation
in the apartment.
Jury instructions. The next issue in the case is a claim
relating to the instructions. Seven weapons were found in the
apartment and charged in the indictment--six in the safe and one in
Widi's bedside table--as well as various pieces of ammunition. It
was enough to convict if the jury found that Widi knowingly
possessed even one gun or one bullet, 18 U.S.C. § 922(g)(1), but
Widi's counsel on appeal claims that he was entitled to a unanimity
instruction requested below but refused.
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The request made below was that the jury had to agree
unanimously that Widi possessed the guns in the safe or unanimously
that he possessed the gun in the nightstand.2 Sensibly, counsel
seeks to offer at least a token doubt as to each scenario,
suggesting that the jury could, on the evidence, have plausibly
believed that he had no access to the safe and that the gun in the
night table was planted. Thus, the jury could have convicted
without unanimously agreeing as to either scenario.
Putting aside other testimony connecting Widi with a gun
purchase, any disagreement about the guns would have been harmless
since ammunition recovered in the apartment was also charged and,
unlike the guns, the ammunition was in plain view and confirmed by
photographs of the scene. So even if none of the jurors believed
Widi possessed any of the guns, he was still patently guilty of the
single felon in possession count based on the ammunition.
However, the government's counter to the claim in its
brief prompts a word of caution. Our decisions do endorse the
government's position that a unanimity instruction would ordinarily
not be necessary so long as the indictment charges possession of
2
The requested unanimity instruction would have told the jury
that with regard to both the nightstand and the gun safe, "you must
find unanimously, all of the elements of the offense . . . in order
to return a verdict of guilty with regard to either the firearms in
the safe or the firearm in the nightstand."
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guns and ammunition "in one place at one time."3 But the quoted
phrase is not itself a self-executing concept and ought not be read
without regard to the facts developed at trial and the underlying
issues that the phrase is meant to address.
United States v. Verrecchia, 196 F.3d 294 (1st Cir.
1999), holds that if a felon possessed a single cache of weapons at
one time and in one place, there is only a single violation of the
felon in possession statute--a defendant-friendly reading which
remains sound law. Id. at 297-98. And, if the weapons are
together in a box or a safe, then almost certainly the defendant
either knowingly possessed all or none of them and no unanimity
instruction focusing on which ones he knowingly possessed would
make any sense.
But imagine that while the indictment easily passed the
Verrecchia test, trial evidence showed that the weapons were so
located that a juror might reasonably believe quite different
things about the defendant's knowing possession of different guns
and that the risk Widi invokes here were a real one. Then, the
question how to construe and apply the "one place at one time"
formula and whether a unanimity instruction ought to be given would
need thoughtful consideration. See Leahy, 473 F.3d at 410.
3
United States v. Leahy, 473 F.3d 401, 410 (1st Cir.), cert.
denied, 128 S. Ct. 374 (2007); United States v. Verrecchia, 196
F.3d 294, 298 (1st Cir. 1999). See also United States v.
Hernandez-Albino, 177 F.3d 33, 40 (1st Cir. 1999); United States v.
Correa-Ventura, 6 F.3d 1070, 1075-87 (5th Cir. 1993).
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Sufficiency of the Evidence. Claiming that he was
convicted on insufficient evidence, Widi says that the witnesses
against him were untrustworthy, while he and other witnesses
offered in his defense were telling the truth. He also says that
evidentiary problems with the marijuana samples created reasonable
doubt. Widi must show that, "crediting the government's witnesses
and drawing all reasonable inferences in its favor, no reasonable
jury could have reached a guilty verdict." United States v.
Aranjo, 603 F.3d 112, 116 (1st Cir.), cert. denied, 131 S. Ct. 209(2010).
Agent McNeil testified about what law enforcement found
in the apartment; jurors saw photographs and videos of the
residence; a witness testified to seeing Widi use and possess guns;
and at least one witness testified to seeing Widi's marijuana
operation in the apartment. Widi said that much of the evidence
against him was planted. Given the evidence presented at trial,
the jury was perfectly entitled to disbelieve him and convict on
both counts.
Sentencing. The district court sentenced Widi to 108
months, within but at the top of the guidelines sentencing range
(87 to 108 months) for a defendant with an adjusted offense level
of 28 and a criminal history placing him in Category II. U.S.S.G.
ch. 5, pt. A, sentencing table (2010). Widi's main attacks are on
the calculation of the adjusted offense level. The district
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court's factual findings are reviewed for clear error;
interpretations of the guidelines are reviewed de novo. United
States v. Stergios, 659 F.3d 127, 135 (1st Cir. 2011).
The district court fixed the base offense level at 20
because it found that Widi, having a prior felony conviction, had
possessed a semiautomatic weapon capable of accepting a large
capacity magazine. U.S.S.G. § 2K2.1(a)(4)(B). Widi says that a
gun barrel found in the attic was separate from the large capacity
magazines found in his apartment, U.S.S.G. § 2K2.1(a)(4)(B), cmt.
n.2, but the enhancement was based on other weapons Widi ignores.
His claim that the guideline provision is unlawful is foreclosed.
United States v. Marceau, 554 F.3d 24, 30 (1st Cir.), cert. denied,
129 S. Ct. 2752 (2009).
Next, Widi challenges the factual basis for the four-
level enhancement he received under U.S.S.G. § 2K2.1(b)(6) for
possession of firearms "in connection with another felony offense"-
-in this case the manufacturing of marijuana. The enhancement is
concerned with the potential that guns will facilitate the other
offense, id. cmt. 14(A), and provides that "close proximity to
drugs [or] drug-manufacturing materials" is sufficient to warrant
the enhancement. Id. cmt. 14(B).
Widi says that as six of his seven guns were locked in a
safe, they had no potential to facilitate his drug operation. The
evidence showed that the safe was near the marijuana operation in
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the small apartment and several witnesses agreed that Widi had
access to the safe. As for the loaded pistol found in the
nightstand, Widi simply asserts that it had nothing to do with drug
cultivation. It was not error at all, let alone clear error, to
impose the enhancement. Compare Paneto, 661 F.3d at 716-18.
Widi also contests a further two-level enhancement for
obstructing justice but the challenge is without merit. U.S.S.G.
§ 3C1.1. Widi testified at trial that the handgun in his
nightstand was planted by a friend and the marijuana found in his
apartment had been planted or manufactured by law enforcement.
Given the trial evidence, the district court was entitled to deem
this testimony to be perjury.
Little need be said about the further claim that the
sentence, although within the guidelines, was unreasonable. The
weaponry alone suggest that Widi is quite dangerous; and, his
perjury aside, the judge found that Widi had threatened a witness
in the course of the proceedings. Neither the result nor the
court's explanation was in any way unreasonable. See United States
v. Ozuna-Cabrera, 663 F.3d 496, 503-04 (1st Cir. 2011), cert.
denied, 132 S. Ct. 1936 (2012).
Widi, in his pro se brief, says that his prior offense
was not a felony, but he stipulated to the prior felony at trial
and, while we may disregard a stipulation where justice requires,
United States v. Torres-Rosario, 658 F.3d 110, 116 (1st Cir. 2011),
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cert. denied, 132 S. Ct. 1766 (2012), Widi provides no compelling
reason for us to do so; indeed, our own review of what was before
the court confirms that the stipulation was appropriate.
Widi also argues that his civil rights were restored
after his prior conviction and so he should not be treated as a
felon in possession. 18 U.S.C. § 921(a)(20). This statutory
exception is an affirmative defense, United States v. Bartelho, 71
F.3d 436, 440 (1st Cir. 1995), so the burden is on the defendant,
United States v. Hartsock, 347 F.3d 1, 10 (1st Cir. 2003). The
evidence of such a restoration now relied on by Widi is highly
doubtful but was in any case never presented to the district court.
There was no error.
Widi invokes the Speedy Trial Act, claiming that the
government failed to indict him within thirty days of his arrest,
as required by the Act. 18 U.S.C. § 3161(b) (2008). Widi
correctly asserts that the original indictment was outside this
limit by a week or so4; although one or another possible exception
may have applied. But, as he did not challenge the original
indictment before trial, Widi waived his right to do so. United
States v. Spagnuolo, 469 F.3d 39, 44-45 (1st Cir. 2006). Perhaps
4
Widi was arrested and arraigned on November 28, 2008. An
initial indictment followed on January 6, 2009; the superseding
indictment adding the ammunition count was issued on February 24,
2010; and, following Widi's objection, a final superseding
indictment on April 7, 2010, eliminated the new count but added
ammunition to the original possession count.
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for this reason, his main objection on appeal is to an amendment to
the original indictment outside the Act's thirty-day window.
Subsequent to the original indictment, the government
sought to add a second felon-in-possession count charging Widi with
possessing ammunition in the apartment. Pointing to the existing
charge based on guns, Widi complained that his possession of the
guns and ammunition (if proved) comprised a single offense so the
new charge would be "multiplicitous," as the jargon has it. The
government then amended the possession charge to specify the
ammunition as well as the guns in a single possession count.
Widi is correct that the reference to ammunition in the
possession count appeared by superseding indictment more than
thirty days after his arrest, but section 3161(b) is largely
designed to assure that a defendant who is arrested or summoned
does not linger indefinitely without a formal charge, United States
v. Meade, 110 F.3d 190, 200 (1st Cir. 1997), and the statute does
not purport to bar the amendment of an existing charge or the
addition of new charges after thirty days. This court has
explicitly allowed both. See United States v. Mitchell, 723 F.2d
1040, 1044-45 (1st Cir. 1983) (amendment); United States v. Burgos,
254 F.3d 8, 15-16 (1st Cir.), cert. denied, 534 U.S. 1010 (2001)
(addition).
One circuit appears to be troubled by a superseding
indictment that adds new facts to a count more than thirty days
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after the original indictment,5 but we remain of the view that
section 3161(b) is concerned with a timely original indictment and
not superseding indictments--a view directly supported by the Ninth
Circuit in a case whose facts closely resemble our own. United
States v. Carrasco, 257 F.3d 1045, 1050-53 (9th Cir.), cert.
denied, 534 U.S. 1061 (2001). While adding new facts or new counts
can always raise issues of notice or delay in trial, these problems
are dealt with by other rules and precedents.
Undue delay in trial is forestalled, among other means,
by time limits in other sections of the Speedy Trial Act, notably
sections 3161(c) and 3164(a)-(b), which are unaffected by a
superseding indictment covering the same charge. United States v.
Santiago-Becerril, 130 F.3d 11, 19 (1st Cir. 1997). As for notice,
the amendment assured that Widi had notice of evidence--the
ammunition--which (since Widi knew about it anyway) could arguably
have been allowed at trial as a non-prejudicial variance under the
original indictment even without the amendment.
Widi protests that he should have been allowed to
represent himself when, near the close of the government's case, he
and Rodway disagreed about whether a particular witness should be
5
United States v. Giwa, 831 F.2d 538, 542 (5th Cir. 1987)
(dictum); United States v. Bailey, 111 F.3d 1229, 1236 (5th Cir.),
cert. denied, 522 U.S. 927 (1997) (dictum). Whether the Fifth
Circuit adheres to these doubts is uncertain. See United States v.
Martinez-Espinoza, 299 F.3d 414, 416 & n.4 (5th Cir. 2002); United
States v. Perez, 217 F.3d 323, 328-29 & n.19 (5th Cir.), cert.
denied, 531 U.S. 973 (2000).
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called, as Widi desired. "[T]he right of self-representation
becomes qualified once trial is under way." United States v. Noah,
130 F.3d 490, 497 (1st Cir. 1997). The district court heard Widi
on the matter, refusing his request for a continuance and to
represent himself at this late stage. We see no abuse of
discretion.
Finally, Widi argues that the indictment was
constructively amended because the indictment referred only to 108
rounds of ammunition found outside the safe and the jury might have
been confused by references to the more than 2,000 total rounds
found in the apartment or the 675 rounds found outside the safe.
The government expressly relied on the 108 rounds listed in the
indictment, and the district judge reminded the jury that evidence
of the uncharged ammunition was only relevant to Widi's "state of
mind or intent."
Widi's remaining arguments include other claims of error,
such as the suggestion that investigators engaged in misconduct
relating to the evidence, but the arguments not specifically
discussed herein are unpersuasive and warrant no further
discussion.
Affirmed.
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