United States v. Dowdell

United States Court of Appeals
For the First Circuit
No. 08-1855
UNITED STATES OF AMERICA,
Appellee,
v.
DARRYL DOWDELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Torruella, Selya and Howard,
Circuit Judges.
Charles W. Rankin, with whom Michelle Menken and Rankin &
Sultan, were on brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Michael K. Loucks, Acting United States Attorney, was on brief, for
appellee.
February 12, 2010
HOWARD, Circuit Judge. Following a three-day jury trial,
Defendant Darryl Dowdell was convicted of distribution of cocaine
base and sentenced as a career offender to 198 months'
imprisonment. Dowdell appeals the conviction, alleging three
defects: that the delay between his indictment by state
authorities and his ultimate trial in federal court violated his
Sixth Amendment speedy trial rights as well as the Interstate
Agreement on Detainers; that the district court's amendment of the
indictment from "cocaine" to "cocaine base" violated the
presentment clause of the Fifth Amendment; and that the trial court
abused its discretion on various evidentiary rulings. He also
challenges the sentence imposed, arguing that the government's
recommended sentence of 262 months violated a promise not to seek
a term of imprisonment longer than 20 years. For the reasons that
follow, we affirm both the conviction and the sentence.
I. Background and Travel
While the facts surrounding the underlying offense are
not complicated, the pre-trial procedural history of this case
presents a maze of overlapping federal and state activity, a flurry
of continuances, and a revolving door of withdrawn and newly
appointed defense counsel.
A. The Subject Offense
The following facts were elicited at Dowdell's federal
trial.
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In the summer of 2001, several Massachusetts authorities
launched a coordinated effort with the federal Drug Enforcement
Administration (DEA) to investigate drug trafficking in the area of
a housing project in Roxbury. The investigation involved a task
force of undercover officers who made controlled purchases of
cocaine and crack cocaine from dealers operating in the project.
One of these officers was Boston Housing Authority investigator
Joao Monteiro. Posing as a construction worker, Monteiro drove an
unmarked car with a concealed audio transmitter and a video camera
that focused on the automobile's interior passenger compartment.
On July 6, 2001, Monteiro observed Dowdell standing on
the sidewalk with a man named Robert White, whom Monteiro
recognized from previous encounters. Dowdell was wearing dark
pants and a black shirt. He and White were counting cash.
Monteiro signaled to White that he wished to purchase crack
cocaine, and White went to talk to Dowdell. White then approached
Monteiro's car and got into the passenger seat. White told
Monteiro that Dowdell, at this point identified only as "the dark-
skinned brother" in the dark shirt, was a trustworthy dealer.
After purchasing 1.1 grams of crack cocaine for $230, Monteiro
asked White whether "the dude in black" was the person to see for
future purchases if White were unavailable. White replied
affirmatively and informed Monteiro that Dowdell went by the name
-3-
"Smoke." Monteiro departed, after informing White that he would be
returning in a short while to make another purchase.
Some 45 minutes later, Monteiro returned to the project
and saw Dowdell on a bicycle. Monteiro approached Dowdell, who
asked Monteiro if he wanted anything. Monteiro responded that he
was looking for White, and Dowdell then biked over to the spot
where White was standing. White came over to Monteiro's car and,
for the second time that night, sat down beside Monteiro in the
passenger seat. Monteiro told White that he wished to purchase
more drugs, as well as baggies for repackaging. White agreed and,
after directing Monteiro to a parking area close to the spot of the
first transaction, sold him 1.2 grams of crack cocaine and baggies
for $210.
Monteiro returned for a third buy on July 16, ten days
after the first two. When he arrived, he saw Dowdell standing in
a small group, wearing blue jeans and a blue checkered shirt.
Monteiro again asked for White, who was unavailable. Monteiro
asked for directions and drove away, making it appear that he was
going off to search for White. After waiting long enough to give
the impression that the search was unsuccessful, he returned to the
project looking for Dowdell. He found Dowdell on the sidewalk,
still wearing a blue checkered shirt. Monteiro called out "Yo,
Smoke, can I holler at you." Dowdell approached Monteiro's car,
and the two of them proceeded to have a conversation through the
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passenger-side window. Continuing to address Dowdell as "Smoke,"
Monteiro asked for about $200 worth of crack cocaine. Dowdell left
briefly to meet with another individual and then returned with six
bags of crack cocaine, worth approximately $100. Seven more bags
would eventually follow. The total weight of the thirteen bags was
approximately 2.3 grams. During this whole encounter, Dowdell was
only partially visible on the video that Monteiro's surveillance
camera recorded.
Driving away, Monteiro narrated a description of Dowdell
for the surveillance recording. He stated, "Smoke is the same kid
as the last time.. [sic] he's got on a checkered shirt blue...blue
checkered shirt umm and he was riding a bicycle."
Later that day, Dowdell was arrested on an outstanding
warrant unrelated to his transactions with Monteiro. He was
brought to a Boston police station where a booking photo was taken.
In the photo, Dowdell was wearing a blue checkered shirt, as
Monteiro had described earlier in the day. Later, around four
hours after completing the buy from Dowdell, Monteiro was shown the
photograph and identified the depicted individual as "Smoke."
Monteiro reported that the individual in the photograph was the
same person from whom he had purchased drugs that day and whom he
had seen standing on the corner with White ten days beforehand.
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B. Pre-Trial Procedural History
Because the timing of particular pre-trial events is
important to our legal analysis, we must delve into some detail in
retracing the path on which this case traveled before it reached
the jury.
On March 25, 2002, eight months after the July 2001
encounters at the housing project, a Suffolk County grand jury
indicted Dowdell, based on those events, for distributing a
controlled substance in the vicinity of school property. At his
arraignment, he pled not guilty and was released on bail, which was
subsequently revoked in October 2003 due to a charge on an
unrelated crime. On April 12, 2004, Dowdell's appointed counsel
withdrew his representation and was replaced. That replacement
would in turn withdraw in August of that year, and the court
appointed a third attorney.
On November 17, 2004, the federal government filed a
criminal complaint against Dowdell based on the July 2001 events,
charging him with distribution of crack cocaine in violation of 21
U.S.C. § 841(a)(1). At that time, Dowdell was already serving a
27-month sentence in the Suffolk County House of Correction after
a conviction on the unrelated charge that had triggered his bail
revocation. One month later, in December 2004, the Commonwealth
entered a nolle prosequi on the March 25, 2002 indictment for
distributing a controlled substance in the vicinity of school
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property, effectively terminating its prosecution. Dowdell
remained in state custody as he continued to serve his ongoing
sentence on the unrelated charge, but from this point onward he
faced only the federal distribution charge.
On February 4, 2005, then unrepresented by counsel,
Dowdell wrote a letter to a clerk for the magistrate judge
overseeing the pre-trial proceedings in his federal case. The
letter invoked his speedy trial rights under 18 U.S.C. § 3161.
Nearly three weeks later, Dowdell followed this letter with a
formal request under the Interstate Agreement on Detainers (IAD),
18 U.S.C. App. 2, § 2, that he be transferred from state to federal
custody as he awaited the resolution of the federal charge. On
March 14, 2005, the federal government petitioned for a writ of
habeas corpus ad prosequendum, and on March 22, 2005, Dowdell was
brought into federal district court for his initial appearance, at
which point he was assigned new representation.
During the initial appearance, the prosecutor
acknowledged that Dowdell's transfer into federal custody was
pursuant to a writ "based on the defendant's request under the
interstate agreement on detainers." He proceeded to explain that
Dowdell had no intention of waiving his IAD rights, which Dowdell's
counsel confirmed. By preserving his rights under the IAD, Dowdell
was to remain in federal custody and receive credit toward the
fulfillment of his term of incarceration for the unrelated charge
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in the state-court system, but receive no credit toward any
eventual federal sentence for the distribution offense until the
state-court sentence had fully elapsed.
The next day, March 23, a federal grand jury indicted
Dowdell, charging him with one count of "knowingly and
intentionally possess[ing] with intent to distribute and
distribut[ing] a quantity of cocaine" in violation of § 841(a)(1).
Dowdell was arraigned on this charge on March 29, 2005. As in the
state court proceedings, he entered a plea of not guilty. The
court held an initial status conference on May 11, 2005, during
which it set a deadline of June 23 for all dispositive motions. At
Dowdell's request, that deadline was later extended to July 8.
Dowdell filed a motion to dismiss the indictment at the
new July 8 deadline, claiming a violation of the Speedy Trial Act,
18 U.S.C. § 3161, as well as violation of the Sixth Amendment.1
Specifically, Dowdell posited that prejudice had resulted from the
pre-indictment delay in federal court.2 In an unsworn declaration,
Dowdell contended that the Commonwealth had vindictively
choreographed the delay and the eventual transfer to federal
jurisdiction in retribution for his declining to testify before a
1
The Speedy Trial Act claim is not before us on appeal.
2
The constitutional provision that applies to pre-indictment
delay is, in fact, the Fifth, rather than the Sixth, Amendment.
See United States v. Marler, 756 F.2d 206, 209–10 (1st Cir. 1985).
Dowdell's counsel appears to have corrected this point in a
supplemental filing.
-8-
state grand jury in a shooting case in which he had apparently been
the victim. The declaration claimed that the district attorney was
upset at Dowdell's alleged inability to see the face of the shooter
and had stated "if you blow my case I am gonna get your drug case
sent back to the feds." This alleged state-federal collusion,
Dowdell argued, meant that the starting point for measuring any
speedy trial violations ought to be the date of his state
indictment, that is, March 25, 2002, rather than the federal
indictment on March 23, 2005.
The docket then lay dormant for four months. Although
the government was required by rule to file its opposition to the
motion to dismiss within two weeks, see D. Mass. R. 7.1(b)(2), it
was not until November 7, 2005 that the government sought leave to
file a late opposition. Apparently, the government had actually
prepared the memorandum of law in July and assumed that it had been
timely submitted. The motion for leave to file explained the delay
as a simple error in performing the electronic submission. The
district court granted this request, finding no evidence of bad
faith on the part of the government. The next day, the government
filed its opposition.
On December 17, 2005, before the court had taken any
action on the pending motion to dismiss, Dowdell moved to withdraw
his appointed counsel -- as he had done twice before in state court
-- claiming a breakdown in communication. The court held an ex
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parte hearing on February 14, 2006. It explained to Dowdell that
appointing new counsel would further delay his case. Dowdell
expressed that he would ideally like to resolve the case as soon as
possible with his current counsel, but "we seem to not be seeing
eye to eye with each other, so I thought I had no choice but to do
that. . . . I don't want to put it off anymore. I've told him
that. But I just felt that my life is on the line here, and I just
felt that I need a new attorney." The court granted Dowdell's
request and allowed his attorney to withdraw. Dowdell and the
government agreed that any time that elapsed between the withdrawal
and an eventual ruling on the motion to dismiss would be excluded
from the speedy trial calculation.
On March 2, 2006, the court appointed new counsel,
Victoria Bonilla. On June 16, 2006, after Bonilla had time to
acquaint herself with the case, Dowdell moved to supplement the
motion to dismiss. The court held a non-evidentiary hearing on the
matter and, after setting a trial date of July 31, 2006, granted
the motion to supplement. On June 30, Dowdell filed the
supplemental memorandum, alleging, inter alia, infringement of
Dowdell's due process rights.3 Neither the original motion nor the
supplemental memorandum mentioned the IAD.
The government filed its response on July 11, 2006. The
response erroneously asserted that Dowdell had in fact waived his
3
The due process claim is not before us on appeal.
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IAD rights at his initial appearance, "rendering it inapplicable
for purposes of the motion to dismiss." Regardless, the government
claimed, no IAD violation had occurred.
The court held a hearing on the motion on July 14, 2006.
Bonilla, who had not been involved in the case when Dowdell first
appeared, did not mention the IAD or contest the alleged waiver.
As indicated in the following colloquy between Bonilla and the
court, Dowdell's sole grounds for dismissal concerned the period
prior to the federal indictment, rather than any post-indictment
developments:
THE COURT: Okay. All right. Now, turning
more directly to your motion, the supplemental
motion for -- to dismiss, do I understand, Ms.
Bonilla, that the defendant is not contesting
the time between the indictment, the federal
indictment, in March of 2005, and today's date
but that what you are concentrating on is the
time between the November or December notice,
December of 2004, and the indictment in March
of 2005, as exceeding 30 days in violation of
the statute? Is that --
MS. BONILLA: That's fair to say, your Honor.
THE COURT: That's fair to say. So we're not
concerned with anything that happened between
March and the -- March of 2005 and the filing
of the original motion to dismiss in July of
2005, and the snafu of the government in not
responding to that motion until November of
2005, is that correct?
MS. BONILLA: Yes, your Honor. My motion
focuses on what happens before.
The court ultimately denied the motion in its entirety, including
Dowdell's constitutional speedy trial argument, and prepared to
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move onward to the July 31 trial date. Dowdell, however, once
again requested a continuance, this time because of the possibility
that a prior state conviction might be expunged from his record in
the interim (an occurrence that could affect plea negotiations).
Michael Bourbeau, one of Bonilla's partners who was also
representing Dowdell at the hearing, explained that "we've talked
about Mr. Dowdell's Speedy Trial rights. But the ramifications of
this, I think, this prior [state conviction] -- the determination
that can be made on that prior is, I think, very significant as to
whether this case needs to go forward to trial." The government
agreed with this representation. At that point, the court took
pains to ensure that Dowdell understood the ramifications of any
postponement:
THE COURT: The Court's schedule is such that
it couldn't be for probably three months.
MR. BOURBEAU: We understand the Court's
concern. We've had discussion with Mr.
Dowdell.
THE COURT: Yeah, I mean, this is the oldest
case, I think, on my docket, maybe not in the
docket number but with respect to the date of
the alleged crime. It needs to be resolved.
Your request, of course, is made on behalf of
the defendant now who needs to have his rights
--
MR. BOURBEAU: Yes.
THE COURT: -- pursued and resolved.
...
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THE COURT: All right. The Court will allow
the defendant's motion to continue the trial
until September 18th on the extraordinary
circumstance that we all find ourselves in
this case. It is something that is very much
of concern to the Court that this matter be
resolved sooner rather than later, but I
understand the import of what Mr. Bourbeau is
suggesting and that it may well inure to the
benefit of not only counsel but of the Court
in terms of judicial economy or economy of the
Court's expenditure of time. So I'm going to
allow that motion for continuance.
Thus, at Dowdell's own behest, the trial was pushed back an
additional month and a half.
The September 18th trial date met the same fate as the
preceding July 31st date -- postponement. For the second time
since his federal indictment, and for the fourth time overall,
Dowdell's attorney moved to withdraw representation. In a motion
dated August 8, 2006, Bonilla informed the court that Dowdell
believed there to have been an irreparable breakdown in
communications. The court held an ex parte hearing on August 16,
2006, after which it denied the motion. But on September 8,
Dowdell sent the court a pro se, handwritten motion to reconsider
its denial. On September 18, 2006, the court held another ex parte
hearing, after which it determined that the best course was indeed
to allow Bonilla to withdraw. The trial date was once again pushed
back to December 11, 2006, and a new attorney, Mark Shea, was
appointed on October 31, 2006.
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As with his predecessors, Shea's tenure as Dowdell's
counsel would terminate prematurely, though this time not at
Dowdell's request. On November 28, 2006, Shea informed the court
that he had a conflict of interest that compelled withdrawal. The
court allowed another change in representation. The trial date was
rescheduled for February 27, 2007.
Dowdell's new attorney (now his fourth since the federal
indictment and seventh overall) was granted a requested continuance
on December 18, 2006 in order to acquaint himself better with the
case. Trial was set for April 9, 2007. On March 15, 2007,
Dowdell's attorney once again requested a continuance, this time
both in order to ensure effective assistance and because of a
personal conflict. The court granted this final continuance. The
trial commenced on May 29, 2007 -- nearly six years from the date
of the offense.
C. Modifying the Indictment
We briefly depart from our chronological march through
the events and take several steps back to August 2006, when the
trial was still scheduled for the following month. On August 30,
the government filed a motion to advise the court of a potential
variance between the text of the indictment and the proof to be
adduced at trial. The indictment did not refer to "cocaine base"
or "crack cocaine," as had the federal complaint and accompanying
affidavit, the petition for habeas corpus ad prosequendum, the
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testimony before the grand jury, the magistrate judge's colloquy
with Dowdell at his initial appearance, and various discovery
documents that Dowdell had previously been provided. Instead, it
simply read "cocaine," potentially suggesting the powder form of
the substance. Arguing that modifying the text from "cocaine" to
"cocaine base" would not constitute a material change requiring a
superseding indictment, the government asked the court to declare
the original indictment suitable for trial. The government
professed an inability to explain why the indictment did not
specifically allege distribution of cocaine base, but sought to
clarify the matter prior to trial and avoid unnecessary jury
confusion over the controlled substance allegedly distributed.
Recognizing that a variance, by definition, can only be
determined after the presentation of evidence, the court chose to
treat the government's pre-trial motion as one to amend the
indictment.4 It then analyzed whether the proposed correction
would rise to the level of a constitutional violation. The court
granted the government's motion, reasoning that Dowdell had been
well apprised all along of the fact that he was charged with
4
We have explained the difference between a variance and an
amendment as follows: "A constructive amendment occurs when the
charging terms of the indictment are altered, either literally or
in effect, by prosecution or court after the grand jury has last
passed upon them. A variance occurs when the charging terms remain
unchanged but when the facts proved at trial are different from
those alleged in the indictment." United States v. Fisher, 3 F.3d
456, 462–63 (1st Cir. 1993) (citations and internal quotation marks
omitted); see also Gaither v. United States, 413 F.2d 1061, 1071
(D.C. Cir. 1969) (offering similar distinction).
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distribution of cocaine base and not cocaine powder. It further
noted that the particular drug type alleged (whether cocaine base
or cocaine powder) was not actually an element under § 841(a)(1)
and did not have any effect on the evidence the government intended
to proffer at trial. Therefore, the court concluded, the amendment
was akin to a permissible typographical correction. See United
States v. Dowdell, 464 F. Supp. 2d 64, 68 (D. Mass. 2006).
D. Evidence Presented at Trial
At trial, Dowdell's primary argument was
misidentification. He claimed that he was not the "Smoke" referred
to in surveillance recordings and that the video footage was
inconclusive as to whether a man with a blue checkered shirt was
actually involved. In order to corroborate Monteiro's
identification of Dowdell as Smoke, the government introduced,
inter alia, two items that Dowdell had unsuccessfully attempted to
exclude through pre-trial motions in limine: the booking sheet from
the July 16 arrest and several of White's July 6 statements
captured on videotape.
1. The Booking Sheet
The booking sheet contained both the photograph of
Dowdell in the blue checkered shirt on which Monteiro had based his
identification, as well as a textual description of Dowdell's
clothing as including a "blue plaid shirt." Dowdell argued that
the document was inadmissible because a provision of Federal Rule
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of Evidence 803(8), the so-called "law-enforcement exception,"
forbids the introduction of police reports against criminal
defendants. The government countered that a booking sheet should
not run afoul of the exception because it contained merely "rote,
routine administrative information." The district court concluded
that the document was admissible pursuant to both
Fed.R.Evid. 801(d)(1) (because the document
formed the basis of a witness's
identification) and Fed.R.Evid. 803(8)
(because the document reflects routine
procedures based upon information from the
defendant himself and not observations,
conclusions or opinions of police officers
which are normally contained in police
reports). In sum, the document possesses the
requisite indicia of trustworthiness to be
admissible under more than one of the Federal
Rules of Evidence.
At trial, the government proffered an edited version of
the booking sheet. All information relating to the charges against
Dowdell was redacted, while the sections describing clothing and
appearance remained. In addition, the government introduced the
photograph separately, unaccompanied by the booking sheet. It was
on the basis of this photograph, rather than the booking sheet,
that Monteiro would testify he had made his identification of
Dowdell as Smoke.
2. Video Evidence
Dowdell had also objected in limine to the introduction
of White's videotaped statements from the two transactions on July
6, 2001. There were two tapes at issue, one from each transaction.
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The first showed White telling Monteiro who "Smoke" was and
confirming that he was reliable. The second showed Monteiro
approaching Dowdell and asking him to summon White, which Dowdell
then did.
Dowdell challenged the admissibility of the statements
on two distinct grounds. First, he argued that the statements
constituted proof of prior bad acts that would be barred by Rule
404(b). The government responded that the statements were not
offered as prior bad acts so much as intrinsic evidence of the
specific crime alleged. It posited that the jury would not be able
to understand fully the July 16th transaction without knowing what
had occurred on July 6th. Dowdell's second argument was that there
was insufficient evidence to treat White as a co-conspirator under
Rule 802(d)(2)(E), and hence White's statements should be deemed
inadmissible hearsay. The government not only contested Dowdell's
insufficiency claim, but also argued that the statements would be
independently admissible as relating to the basis for Monteiro's
identification. Under this alternative theory, White's statements
could at least be introduced for the impact that they had on
Monteiro and his subsequent identification of Dowdell as "Smoke,"
if not for the truth of the matter asserted.
The district court rejected both of Dowdell's objections
during the final pre-trial conference. With respect to the Rule
404(b) claim, it found that "the transaction with Robert White is
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directly and instrinsically relevant to the charge against Mr.
Dowdell in this case." As for the hearsay claim, the district
court adopted both of the government's theories of admissibility.
During the course of the pre-trial conference, Dowdell
argued that even if a transcript of the statements would be
admissible, the videotape itself would be unfairly prejudicial.
The government insisted that it was entitled to use the video to
prove its case, as only the video showed what sort of opportunity
Monteiro had to actually see Dowdell from the car. Again, the
district court rejected Dowdell's argument, finding that the
videotape was the best evidence. Though ordering two minor edits
to the video and the corresponding transcript,5 the court ruled
that the videotaped statements were otherwise admissible in their
original form.
E. Sentencing
On May 31, 2007, after three days of trial, the jury
returned a guilty verdict.
Under § 841(b)(1)(c), Dowdell would normally have faced
a maximum sentence of 20 years. Mention of this 20-year maximum
had arisen earlier in the pre-trial proceedings, when Dowdell had
challenged the government's attempt to amend the indictment.
Dowdell had initially claimed that the change in drug type was
5
The two edits were (1) changing the Defendant's name in the
transcript from "Dowdell" to "Smoke" and (2) deleting a statement
by White that Dowdell was his "cousin."
-19-
material because it might increase the sentence length to which he
would be exposed. The government had responded that because drug
type was not an element in this case, the maximum would remain at
20 years regardless. In making this point, the government had
stated in writing that it was "not seeking (and cannot seek) a
sentence in excess of 20 years." The district court cited this
language in allowing the amendment.
Nevertheless, in April 2007, the government filed an
information to establish a prior conviction under 21 U.S.C. § 851,
which increased the statutory maximum from 20 to 30 years (and the
guideline range from 210–262 months to 262–327 months). At
sentencing, the government recommended a 262-month sentence, at the
bottom end of the guideline range but well over the original 20-
year statutory maximum. The court ultimately sentenced Dowdell to
198 months, followed by six years' supervised release. Dowdell did
not object to the sentence.
II. Discussion
A. Speedy Trial Rights
Dowdell first contends that the district court erred in
denying his motion to dismiss on constitutional speedy trial
grounds. The district court noted, but never resolved, whether the
appropriate starting point for the speedy trial clock was the
federal or the state indictment. Because it determined that
"Dowdell ha[d] failed to demonstrate prejudice which rises to the
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level of a constitutional violation," the court did not reach the
issue of the precise length of the delay. We review the speedy
trial ruling for abuse of discretion. United States v. Munoz-
Franco, 487 F.3d 25, 58 (1st Cir. 2007).
The Sixth Amendment provides that all criminal defendants
"shall enjoy the right to a speedy and public trial." U.S. Const.
amend. VI. If the government violates this constitutional right,
the criminal charges must be dismissed. Strunk v. United States,
412 U.S. 434, 439–40 (1973). To determine whether a violation has
occurred, we use the four-part balancing test established in Barker
v. Wingo, 407 U.S. 514 (1972), which requires a weighing of: (1)
the length of the delay, (2) the reasons for the delay, (3) the
defendant's assertion of his right, and (4) prejudice to the
defendant resulting from the delay. Id. at 530.
The threshold inquiry concerns the first of these four,
as the sheer brevity of pre-trial delay may obviate the need for
further analysis. See id. ("Until there is some delay which is
presumptively prejudicial, there is no necessity for inquiry into
the other factors that go into the balance."). Should there be a
lengthier delay, however, we must engage in the "difficult and
sensitive balancing process" of placing each of the other factors
on the scale. Id. at 533. Thus, "the length of the delay is both
the trigger for analysis and one of the factors to be considered."
United States v. Colombo, 852 F.2d 19, 24 (1st Cir. 1988); see also
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Doggett v. United States, 505 U.S. 647, 651 (1992) (referring to
the length-of-delay factor as a "double enquiry"). Once it is
determined that balancing is necessary, none of the four factors
has any talismanic power. Rather, "we must still weigh all of the
factors collectively before deciding whether a defendant's right to
a speedy trial has been violated." Colombo, 852 F.2d at 23.
It is not clear to us whether the district court may have
glossed over this multi-part analysis by disposing of the issue on
the question of prejudice alone. In any event, a violation of the
Speedy Trial Clause may occur even absent any affirmative
demonstration of prejudice to the accused. Moore v. Arizona, 414
U.S. 25, 26 (1973) (per curiam) (holding that because Barker
"expressly rejected the notion that an affirmative demonstration of
prejudice was necessary to prove a denial of the constitutional
right to a speedy trial," the state court was "in fundamental
error" for requiring a showing of prejudice to the defense at
trial). If indeed a lengthy delay is present, a single factor in
isolation cannot dispose of an issue as "amorphous, slippery, and
necessarily relative" as the right to a speedy trial. Vermont v.
Brillon, 129 S. Ct. 1283, 1290 (2009) (internal quotation marks
omitted).6
6
Disposition of a constitutional speedy trial claim on
prejudice alone is thus an error of law that itself constitutes an
abuse of discretion. Nevertheless, even if such an error occurred
here, it was harmless.
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Our analysis will instead begin, as the King admonished
the White Rabbit, at the beginning: the length of the delay. There
is no bright-line time limit dividing the lengths that trigger
further Barker inquiry from those that do not. Whether a
particular delay will warrant further speedy trial scrutiny "is
necessarily dependent upon the peculiar circumstances of the case."
Barker, 407 U.S. at 530–31. Nevertheless, the Supreme Court has
observed that "[d]epending on the nature of the charges, the lower
courts have generally found postaccusation delay 'presumptively
prejudicial' at least as it approaches one year." Doggett, 505
U.S. at 652 n.1. Our cases comport with this observation. See,
e.g., United States v. Munoz-Amado, 182 F.3d 57, 61 (1st Cir. 1999)
(nineteen months); United States v. Santiago-Becerril, 130 F.3d 11,
21 (1st Cir. 1997) (fifteen months).
The difficulty in this case is determining just when the
speedy trial clock ought to start running. The Sixth Amendment
right to a speedy trial attaches upon formal accusation. United
States v. MacDonald, 456 U.S. 1, 6–7 (1982). In the typical case,
this means either arrest or indictment, whichever comes first.
United States v. Casas, 425 F.3d 23, 33 (1st Cir. 2005). For
Dowdell, who did not face any pre-indictment detention on his
federal charge, the starting point would ordinarily be the date of
his federal indictment, March 23, 2005. Dowdell, however, does not
-23-
challenge any length of time that elapsed after this date.7
Instead, he focuses on the time frame preceding it, arguing that
his speedy trial rights in fact accrued with his state indictment
on March 25, 2002. Were that the case, it would yield a
presumptively prejudicial delay of nearly three years before the
federal indictment was returned.
Addressing this argument requires us to consider the
speedy trial implications of the dual sovereignty doctrine. Under
this doctrine, "the federal government is not bound by the actions
of state authorities and . . . successive state and federal
prosecutions are constitutionally permissible." United States v.
Mejias, 552 F.2d 435, 441–42 (2d Cir. 1977). Though perhaps most
recognizable from the double jeopardy context, see, e.g., Abbate v.
United States, 359 U.S. 187 (1959), dual sovereignty considerations
animate our constitutional speedy trial jurisprudence, as well. In
MacDonald, the Supreme Court briefly noted that "an arrest or
indictment by one sovereign would not cause the speedy trial
guarantees to become engaged as to possible subsequent indictments
by another sovereign." 456 U.S. at 10 n.11. Following MacDonald's
lead, we observed in United States v. Marler, 756 F.2d 206 (1st
Cir. 1985), that "a ruling that a defendant's right to a speedy
7
He would, of course, have been entirely free to do so, as his
speedy trial rights remained in effect up until his trial date,
United States v. Jenkins-Watts, 574 F.3d 950, 966 (8th Cir. 2009),
which was not until May 2007. Nevertheless, because Dowdell waived
the claim with respect to this period, we do not address it.
-24-
federal trial attaches upon his state indictment would implicate
the very concerns that led the Court to formulate the dual
sovereignty doctrine in the double jeopardy area." Id. at 211. We
further elaborated the policy arguments that bolster the case for
a robust dual sovereignty doctrine in the speedy trial context:
Were we to hold that Marler's state court
indictment triggered his speedy trial right,
we would in effect be requiring the federal
government to keep continually abreast of all
state criminal investigations that may present
the possibility of federal prosecution and to
pursue their own investigations, arrests,
indictments, and trials so as to conform with
state-dictated timing. This is obviously
counter to the dual sovereignty doctrine as
well as to effective, responsible law
enforcement. . . . Thus, whatever the
weaknesses in our dual system of justice,
these could only be exacerbated by the
proposed expansion of the sixth amendment
speedy trial right.
Id.
Dowdell does not contest the truth of any of this as a
general matter, but he nevertheless insists that his case falls
within a recognized exception. He principally relies on United
States v. Cabral, 475 F.2d 715 (1st Cir. 1973). In Cabral, state
police officers investigating the defendant for sale of stolen
property arrested him for possessing a sawed-off shotgun. The
state turned the weapon over to federal authorities three days
after the arrest. Cabral was indicted in state court for the
stolen property offense and then, fifteen months later, in federal
court for the weapons offense. In considering Cabral's speedy
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trial claim, we held that his constitutional right "crystallized at
the time of his initial [state] arrest" because it was for the same
offense as his ultimate federal indictment, and "[t]he [federal]
government's prosecution of this charge was initiated only three
days later when . . . state authorities turned over this weapon to
a federal officer." Id. at 718. Thus, Dowdell argues, Cabral
instructs us to attribute a state-court indictment to the federal
government where a subsequent federal indictment was essentially a
continuation of the state proceedings. Because his state charges
arose out of a federal investigation, were for the same offense as
his federal charges, and were allegedly dismissed following a
coordinated effort with the federal government, Dowdell would have
us apply this Cabral exception in our speedy trial analysis here.
Cabral, however, predates the Supreme Court's development
of the dual sovereignty doctrine in MacDonald. For this reason,
the Marler court questioned, although it did not decide, whether
Cabral remained good law. 756 F.2d at 212. Other courts have not
been so hesitant. See, e.g., United States v. Garner, 32 F.3d
1305, 1309 (8th Cir. 1994) (rejecting Cabral's rationale and
finding it "in conflict with subsequent statements made by the
Supreme Court"); United States v. Collamore, 751 F. Supp. 1012,
1025 n.13 (D. Me. 1990) (recognizing that Marler had left the
Cabral exception "an open question" and then definitively holding
that "there is no such exception"). Dowdell labors to convince us
-26-
of Cabral's continued vitality, pointing to some courts' careful
efforts to distinguish it on the facts rather than reject it
outright. But if Cabral has managed to survive until this point,
it has only been through the force of its own obsolescence.
Dowdell has not identified a single post-MacDonald case from this
or any other jurisdiction to have relied on the exception he urges
us to rely on here.
A quarter-century of consistent authority impels us to
answer Marler's question and hold that Supreme Court precedent has
abrogated Cabral.8 The speed of a federal trial is measured from
the federal accusation on which it is based; one sovereign's
enforcement of its own criminal laws is not attributable to another
sovereign merely because of the presence of investigatory
assistance, prosecutorial collaboration, or overlap among charges.
In his reply brief, Dowdell relatedly argues that this
case falls within an exception to the dual sovereignty doctrine,
established in Bartkus v. Illinois, 359 U.S. 121, 123–24 (1959),
for situations in which the state prosecution is "merely a tool of
the federal authorities." Dowdell has waived this argument by
8
Following the procedure described in cases such as Crowe v.
Bolduc, 365 F.3d 86, 89 n.1 (1st Cir. 2004) and Carpenters Local
Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 138 n.1 (1st
Cir. 2000), the proposed panel opinion in this case was circulated
to all active judges of the court, a majority of whom posed no
objection to our handling of Cabral. The use of this informal
procedure does not convert this opinion into an opinion en banc,
nor does it preclude a suggestion of rehearing en banc on any issue
in the case, whether or not related to the panel's treatment of
Cabral.
-27-
neglecting to include it in his initial brief. See United States
v. Hall, 557 F.3d 15, 20 n.3 (1st Cir. 2009). Moreover, the
argument lacks merit. The Bartkus exception is "narrow[ly]. . . .
limited to situations in which one sovereign so thoroughly
dominates or manipulates the prosecutorial machinery of another
that the latter retains little or no volition in its own
proceedings." United States v. Guzman, 85 F.3d 823, 827 (1st Cir.
1996). To establish a prima facie case, Dowdell would need to show
that "one sovereign was a pawn of the other, with the result that
notion of two supposedly independent prosecutions is merely a
sham." Id. He has not done so. That the DEA was heavily involved
in Dowdell's investigation establishes little more than routine
intergovernmental assistance. "Cooperative law enforcement efforts
between independent sovereigns are commendable, and, without more,
such efforts will not furnish a legally adequate basis for invoking
the Bartkus exception to the dual sovereign rule." Id. at 828.
Dowdell's putative smoking gun, that an assistant district attorney
exclaimed "if you blow my case I am gonna get your drug case sent
back to the feds," shows, at worst, a threat. It does not
establish coordinated manipulation, much less that the federal
government was acting as a pawn of Suffolk County officials such
that it retained little or no volition in its own proceedings.
We discern no evidence of improper collusion. Although
the Bartkus exception may apply to some speedy trial cases, this is
-28-
not one of them. Consequently, we conclude that Dowdell's speedy
trial right attached on the date of his federal indictment. There
was no presumptively prejudicial delay, and analysis of the other
Barker factors is therefore unnecessary.
B. Interstate Agreement on Detainers
Even if the pre-trial delay does not offend the Sixth
Amendment, it may still violate the IAD, 18 U.S.C. App. 2, § 2.
The IAD is a congressionally sanctioned interstate compact designed
to "encourage the expeditious and orderly disposition of
[outstanding] charges and determination of the proper status of any
and all detainers based on untried indictments, informations, and
complaints." Id. art. I. To meet this goal, the IAD prescribes
procedures by which a member state may obtain for trial a prisoner
incarcerated in another member jurisdiction, and by which the
prisoner may demand the speedy disposition of certain charges
pending against him in another jurisdiction.9 See United States v.
Mauro, 436 U.S. 340, 343–44, 349–53 (1978) (providing background on
the IAD). The IAD's provisions come into play whenever the
prosecuting authority ("the receiving state") files a detainer on
9
The federal government is considered a member state for
purposes of the IAD. United States v. Henson, 945 F.2d 430, 434
(1st Cir. 1991).
-29-
a prisoner serving a sentence in another jurisdiction ("the sending
state").10
At issue here are the speedy trial provisions that the
IAD imposes on the receiving state. If the receiving state
initiates the transfer through a written request for temporary
custody, it must bring the prisoner to trial within 120 days of his
arrival in that jurisdiction. 18 U.S.C. App. 2, § 2, art. IV(c).
If, on the other hand, the prisoner initiates the transfer through
a request for final disposition, that window is 180 days from the
sending state's receipt of the request. Id. art. III(a). If the
receiving state fails to observe these strictures, it must dismiss
the indictment. Id. art. V(c); United States v. Bozeman, 533 U.S.
146, 153 (2001).
Dowdell avers for the first time on appeal that dismissal
is necessary because the IAD clock had expired before he was ever
brought to trial.11 At no point before filing his appellate brief
10
The IAD only applies to prisoners against whom detainers have
been filed. Neither party has confirmed or denied whether a
detainer was ever actually filed against Dowdell in this case, and
we can find no indication in the record one way or the other.
Because the issue has not been contested, and because we ultimately
find no reversible error, we proceed on the assumption that a
detainer was filed. We stress, however, that parties litigating
IAD claims ought not to take the existence of a detainer for
granted. See Mauro, 436 U.S. at 364 n.29 (noting that "during a
typical year federal courts issue approximately 5,000 ad
prosequendum writs and that about 3,000 of those are in cases in
which a detainer has previously been lodged against the prisoner").
11
Both parties leave unresolved whether Dowdell initiated the
transfer through his pro se letter, triggering the 120-day clock,
or whether the government did through its habeas petition,
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did Dowdell so much as mention the speedy trial provisions of the
IAD, despite ample opportunities. Had he done so, we have little
doubt that the trial judge, who consistently demonstrated a
conscientious concern for Dowdell's speedy trial rights, would have
made an effort to comply.
We do not look favorably on IAD arguments that are not
raised until the trial judge is no longer in a position to avoid a
violation. Addressing a similar scenario arising on habeas review,
the Supreme Court endorsed the lower court's observation that "[i]t
would not have been difficult for the judge to advance the date of
the trial or make a finding on the record of good cause, either of
which would have satisfied Art. IV(c). Because the subject never
came up, however, the trial judge overlooked the problem." Reed v.
Farley, 512 U.S. 339, 351 (1994) (quoting Reed v. Clark, 984 F.2d
209, 213 (7th Cir. 1993)). The Court concluded that "[w]hen a
defendant obscures Article IV(c)'s time prescription and avoids
clear objection until the clock has run, cause for collateral
review scarcely exists." Id. at 349. The same is true on direct
review. A defendant who does not timely raise his IAD rights in
district court forfeits those rights on appeal. United States v.
Neal, 36 F.3d 1190, 1209 (1st Cir. 1994); United States v. Oldaker,
triggering the 180-day clock. The government argues that even the
stricter 120-day clock did not expire, while Dowdell argues that
even the more lenient 180-day clock did. Because of our ultimate
disposition, we need not resolve the issue.
-31-
823 F.2d 778, 781 (4th Cir. 1987); United States v. Eaddy, 595 F.2d
341, 346 (6th Cir. 1979).
Dowdell now claims that his general invocation of the IAD
at his initial appearance should have put the court on notice that
the speedy trial provisions were in force. Yet an abstract
reference to the compact does not suffice to preserve all potential
challenges that might arise under it. One can forfeit a claim
under one section of the IAD while preserving a different claim
under another. See, e.g., Neal, 36 F.3d at 1209-10; Oldaker, 823
F.2d at 781; Eaddy, 595 F.2d at 346. At his initial appearance,
Dowdell referred only to his right to remain in federal custody,
not the applicability of the statute's speedy trial deadline. This
would be the last time that Dowdell referred to the IAD before the
district court.12 If he intended to rely on the statutory speedy
trial provisions, he could have brought them to the trial judge's
attention. He did not do so.
Undaunted, Dowdell argues that he did not need to spell
out the letters of the IAD for the district court because his
motion to dismiss for violation of the Sixth Amendment and the
Speedy Trial Act effectively accomplished the same thing. He
12
Dowdell places much of the blame for this silence on the
government, which erroneously informed the court that Dowdell had
waived his IAD rights at his initial appearance. While we do not
condone the government's mistake, we note that it did not occur
until July 11, 2006, well after Dowdell filed his motions to
dismiss -- and well after the date when Dowdell now claims the IAD
clock should have expired. The error, lamentable as it may be,
cannot excuse Dowdell's forfeiture retroactively.
-32-
relies on Mauro, in which the Supreme Court ruled that the
defendant's failure to invoke the IAD "in specific terms" in his
speedy trial motions did not result in the waiver of an Article
IV(c) claim. 436 U.S. at 364. In Mauro, the defendant had
"persistently requested" a speedy trial and had "sought the
dismissal of his indictment on the ground that the delay in
bringing him to trial while the detainer remained lodged against
him was causing him to be denied certain privileges at the state
prison." Id. at 364-65. On those bases, the Court found his
actions "sufficient to put the Government and the District Court on
notice of the substance of his claim." Id.; accord Eaddy, 595 F.2d
at 346 (finding a speedy trial motion sufficient to give notice of
an IAD challenge even though it "was not framed in the precise
language of the Agreement").
This case is distinguishable from Mauro in two critical
respects. First and foremost, Dowdell did not have a colorable IAD
claim at the time he filed the speedy trial motion. Even assuming
the most defendant-favorable set of circumstances, the earliest
trial deadline under the IAD would have been July 20, 2005.13 Yet
13
The parties dispute several matters that would affect our
calculation of the actual deadline: (1) whether Dowdell initiated
the transfer through his pro se letter, triggering the 120-day
clock, or whether the government did through its habeas petition,
triggering the 180-day clock; (2) whether 78 days of excludable
time under the Speedy Trial Act were automatically excludable under
the IAD; and (3) whether any portion of the government's four-month
lapse in responding to Dowdell's original motion to dismiss should
be excludable. Giving Dowdell the benefit of the doubt on each,
the clock would have run uninterrupted beginning with his initial
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Dowdell filed his motion to dismiss nearly two weeks earlier, on
July 8. Thus, Dowdell is in substance arguing that the district
court ought to have dismissed the indictment based on a ground that
not only was absent from the motion to dismiss, but that did not
even exist at the time the motion was filed. The fallacy in this
position should be clear enough. To have the issue preserved,
Dowdell would not need us to infer it from his motion to dismiss so
much as to generate it ex nihilo at some later point. This we
cannot do.
Second, neither Dowdell's motion nor any subsequent
communication said anything about the negative effects that the
outstanding detainer might be having on his rehabilitation. We
think that element critical to the Court's holding in Mauro
because, as the Court stressed, it was the attempt to ameliorate
precisely those effects that prompted the IAD's passage. See 436
U.S. at 359–60. We do not read Mauro to mean that every speedy
trial claim filed by a detainee necessarily contains an embedded
IAD claim. The Court was not propounding free association as an
interpretive canon. It was, rather, placing weight on the precise
identity between the defendant's alleged prejudice and the
prejudice that the IAD targets. Because Dowdell's motion never
represented that the requested relief would redound to the success
of his rehabilitation, we do not consider it "sufficient to put the
appearance on March 22, 2005, yielding a latest acceptable trial
date of July 20, 2005.
-34-
Government and the District Court on notice of the substance of his
[IAD] claim" under Mauro.
We therefore conclude that Dowdell at least forfeited any
IAD claim by failing to raise it in the district court. He may
very well have waived it altogether by requesting continuance after
continuance that pushed the trial date to May 2007. See New York
v. Hill, 528 U.S. 110 (2000) (holding that defense counsel's
agreement to a trial date outside the IAD period bars the defendant
from then seeking dismissal on the ground that the trial did not
occur within that period). Even if the claim is not waived, our
review is for plain error only. Neal, 36 F.3d at 1210. Under that
standard, we would reverse only if Dowdell could prove “(1) that an
error occurred; (2) that the error was clear or obvious; (3) that
the error affected his substantial rights; and (4) that the error
also seriously impaired the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Gonzalez,
570 F.3d 16, 21 (1st Cir. 2009).
Here, if there was any error to begin with, it was not
clear or obvious. The clock could not have run out before the
motion to dismiss was filed, and we have never before found
circumstances where the IAD clock would continue to run during the
pendency of a defendant's motion. On the contrary, the clock
presumptively stops for the entirety of the pendency, no matter how
lengthy. See United States v. Walker, 924 F.2d 1, 5 (1st Cir.
-35-
1991); cf. United States v. Staula, 80 F.3d 596, 601 (1st Cir.
1996) (holding in the Speedy Trial Act context that courts may
exclude the time between the filing of the motion and the hearing
on that motion, even if the delay is overlong, inexplicable, or
unreasonable). Although Dowdell does not address any period of
time after the court decided his motion in July 2006, we note that
the ensuing ten months of delay were entirely due to his requests
for continuances and change of counsel. As a result, Dowdell's IAD
claim fails.
C. Amendment of the Indictment
Dowdell next challenges the district court's
modification of the indictment to reflect distribution of "cocaine
base" rather than "cocaine." According to Dowdell, this change
constituted a material amendment that deprived him of his right to
presentment of charges to a grand jury. As we have explained
above, the district court treated the proposed change as a
ministerial correction to a clerical error. Our review of this
issue is de novo. United States v. Hernandez, 490 F.3d 81, 83 (1st
Cir. 2007). Before we undertake that review, however, a bit of
terminological housecleaning is in order.
The district court appears to have viewed its task as
explaining why the proposed change was not a "constructive
amendment." This approach treats the word 'constructive' as a term
of art for 'impermissible.' That synonymic treatment may not be
-36-
quite right, however. A constructive amendment, as the name
suggests, is constructive, that is, having effect in law though not
necessarily in fact. Amendments to an indictment can of course be
direct rather than merely constructive, and they, too, are subject
to the same strict constitutional standards. See, e.g., United
States v. Daraio, 445 F.3d 253, 260–61 & n.8 (3d Cir. 2006)
(contrasting an alleged constructive amendment with a "formal
amendment," and noting that there was no claim of "actual amendment
of the indictment by a literal change of its terms"); United States
v. Ford, 872 F.2d 1231, 1235–36 (6th Cir. 1989) (describing first
the separate categories of amendments and variances, and then
constructive amendments as a form of amendment); 1 Charles Alan
Wright, et al., Fed. Prac. & Proc. Crim. § 128 (4th ed. 2008)
("Allowing the case against the accused to shift in this
[constructive] manner after the indictment is returned raises the
same concerns about undermining the grand jury's role as a direct
amendment."). Here, the district court's amendment was anything
but constructive, as it literally altered the words of the
indictment's text. There may have been doubt as to whether the
change was permissible, but there can be no doubt that it was
actual.
In any event, the district court appears to have,
understandably, enlisted the nomenclature that we ourselves have
used. The common meaning of constructive amendment in our cases,
-37-
which can be traced back to United States v. Dunn, 758 F.2d 30 (1st
Cir. 1985), is "'when the charging terms of the indictment are
altered, either literally or in effect, by prosecution or court
after the grand jury has last passed upon them.'" Id. at 35(quoting Gaither v. United States, 413 F.2d 1061, 1071–72 (D.C.
Cir. 1969)) (emphasis added). The use of the word "literally"
suggests that the term encompasses changes that are factually true
just as much as those that are legally imputed. Yet the Gaither
case quoted in Dunn was not defining "constructive amendment" in
particular, but rather all amendments. Returning to the original
source yields perhaps a more sensible definition: amendments in
general may be literal or in effect (and, of these, it is
specifically the latter that we refer to as constructive
amendments). In any case, ever since Dunn, we have adhered to our
definition of constructive amendments, most likely because they are
the amendments that we most often come across. See 1 Wright, et
al. § 128 (noting that "direct attempts to amend an indictment in
any substantive way are rare" and that "[i]nstead, the most common
challenge in this area is a claim of 'constructive amendment'").
On the rare occasion that we do confront a direct amendment to an
indictment, such as here, referring to it as constructive may
obfuscate the issue. We will therefore eschew any reference to
"constructive" amendment here, where there was an express amending
of the indictment.
-38-
Returning to our de novo review of the amendment, we
start with the basis for the rule against amending an indictment
without grand jury involvement. The prohibition is based on the
Presentment Clause of the Fifth Amendment, which guarantees in
relevant part that "[n]o person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury." U.S. Const. amend. V. The Supreme
Court has interpreted this provision to mean that "after an
indictment has been returned[,] its charges may not be broadened
through amendment except by the grand jury itself." Stirone v.
United States, 361 U.S. 212, 215–16 (1960); accord Russell v.
United States, 369 U.S. 749, 770 (1962) (holding that an indictment
may not be "amended except by resubmission to the grand jury"); Ex
parte Bain, 121 U.S. 1, 9–10 (1887).
Nevertheless, this prohibition does not extend to
alterations that are "merely a matter of form." Russell, 369 U.S.
at 770; see also United States v. Winter, 663 F.2d 1120, 1139–40
(1st Cir. 1981); cf. United States v. Eirby, 262 F.3d 31, 38 (1st
Cir. 2001) ("[A]n indictment is sufficient if it specifies the
elements of the offense charged, fairly apprises the defendant of
the charge against which he must defend, and allows him to contest
it without fear of double jeopardy."). Accordingly, we have
allowed ministerial corrections of clerical errors in names, dates,
and citations, so long as the change would not deprive the
-39-
defendant of notice of the charges against him. See Eirby, 262
F.3d at 38 (citations); United States v. Rivera-Ruiz, 244 F.3d 263,
271 (1st Cir. 2001) (names); Jervis v. Hall, 622 F.2d 19, 22–23
(1st Cir. 1980) (dates). Other circuits have similarly allowed
corrections regarding facts that are ancillary to the charged
offense. See, e.g., United States v. Powers, 572 F.2d 146, 152
(8th Cir. 1978) (permitting change from "30-30 caliber revolver" to
"30-30 caliber rifle"). In short, when a change "le[aves] the
substance of the charge unaffected, the switch d[oes] not usurp the
prerogative of the grand jury." Eirby, 262 F.3d at 38.
We agree with the district court that this is such a
case. Because Dowdell was prosecuted under § 841(a)(1), which
prohibits distribution of any controlled substance regardless of
type, drug identity had no bearing on the substance of the charge.
See United States v. Rutherford, 175 F.3d 899, 906 (11th Cir. 1999)
(explaining that under § 841(a), "[t]he nature of the controlled
substance neither constitutes an element of the offense nor
broadens the bases for conviction, but is relevant only for
sentencing purposes"); United States v. Deisch, 20 F.3d 139, 151
(5th Cir. 1994) (concluding that "the identity of the involved
controlled substance as being 'cocaine base' rather than simply
'cocaine' is not an element of any section 841(a)(1) offense").
The statute would thus hold Dowdell as culpable for distribution of
cocaine base as it would for distribution of cocaine powder.
-40-
Indeed, the government could technically have omitted reference to
a particular controlled substance altogether. See United States v.
Lewis, 113 F.3d 487, 493 (3d Cir. 1997) (reasoning that because
"identity of the substance is a sentencing factor rather than an
element of the offense," an indictment under § 841(a) could
theoretically avoid specifying the identity of the substance).14
Had the government not clarified the matter before trial,
and instead proceeded under the original indictment, there would
have likely been no grounds for objection whatsoever. Certainly
there would have been no constructive amendment. See United States
v. Fornilla-Castillo, 408 F.3d 52, 66 (1st Cir. 2005) (explaining
that no constructive amendment present where the difference between
the evidence presented and the text of the indictment does not
affect any element of the offense). At worst, we might have found
a variance, although even that is far from certain. See United
States v. Wiley, 29 F.3d 345, 352 (8th Cir. 1994) (doubting any
variance whatsoever would arise from difference between charge
involving "cocaine" and evidence involving cocaine base because
cocaine base is merely an isomer of cocaine); United States v.
Deisch, 20 F.3d 139, 151 (5th Cir. 1994) (holding that "[f]or a
section 841(a)(1) offense involving cocaine base[,] the indictment
14
Of course, a defendant might be entitled to notice at some
point as to the nature of the substance alleged. We merely observe
that under § 841(a), such notice needn't come by way of the
indictment.
-41-
need only allege, and the jury need only find, that the substance
was cocaine"). And had we gone so far as to find a variance, it
would have been a harmless one, given all the notice that Dowdell
had previously received that he was charged with distributing
cocaine base rather than cocaine powder. Cf. United States v.
Twitty, 72 F.3d 228, 231 (1st Cir. 1995) ("So long as the statutory
violation remains the same, the jury can convict even if the facts
found are somewhat different than those charged -- so long as the
difference does not cause unfair prejudice."). It would be strange
indeed to punish the government for clarifying the indictment
before trial when it would have been permitted to proceed without
taking any action.
Dowdell argues that the alteration was nevertheless
prohibited based on two premises that are not in fact implicated
here. First, he claims that the change to cocaine base effectively
exposed him to a harsher sentencing range. Yet even if sentencing
amplification were relevant, none occurred here. It is true that
under § 841(a), cocaine base normally exposes defendants to steeper
sentencing ranges than does cocaine powder. But here, Dowdell was
sentenced as a career offender under Section 4B1.1 of the U.S.
Sentencing Guidelines. That provision would have applied in equal
force whether he were convicted of distributing cocaine powder or
cocaine base; the guideline range was a product of the 30-year
statutory maximum in § 841(b)(1)(c) and Dowdell's particular
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criminal history category. Thus, because we conclude that the
change did not in fact alter the sentencing range, we need not
resolve whether sentencing ramifications are relevant to the
amendment analysis.15
Second, Dowdell asserts that the difference in chemical
composition between cocaine powder and cocaine base means that the
government would have had to proffer different evidence for each of
the substances. Again, even assuming the relevance of the
conclusion, its predicate is incorrect. As far as culpability
under § 841(a) is concerned, cocaine base is merely an isomer of
cocaine. See Wiley, 29 F.3d at 352; United States v. Pierce, 893
F.2d 669, 676 (5th Cir. 1990).16 The government could have
15
The district court expressly found no constitutional
violation because "mitigation of sentencing ramifications within
the statutory maximum is not among the substantial rights protected
by the right to be indicted by a grand jury." Dowdell, 464 F.
Supp. 2d at 68. The "substantial rights" standard, however, is
only appropriate in the context of variances. It is true that if
the government had proceeded to trial with the original indictment,
then variance doctrine would have been the appropriate analytical
framework. But since we deal here with a direct amendment, rather
than a variance, reference to the scope of the defendant's
substantial rights is misplaced. In any case, we leave resolution
of this issue for a day when the question is put more squarely
before us.
16
We do not go so far as to hold in this case that a trial
judge is necessarily permitted simply to swap any controlled
substance under § 841(a) for any other controlled substance.
"Cocaine" and "cocaine base" are inherently related in ways that
other potential pairings are not. Had the difference been between
cocaine and Vicodin, or cocaine and marijuana, it is possible the
larger gap would weigh into our analysis. But cf. United States v.
Knuckles, 581 F.2d 305, 311–12 (2d Cir. 1978) (finding no
substantial variance between charge of heroin distribution under
§ 841(a) and evidence of cocaine distribution).
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proferred evidence of distribution of cocaine base and still
carried its burden of proving distribution of "cocaine." Wiley, 29
F.3d at 352; Deisch, 20 F.3d at 150–51; Pierce, 893 F.2d at 676.
In sum, we hold that the district court's amendment of
the indictment from distribution of "cocaine" to "cocaine base" did
not affect the substance of the charges and therefore did not
offend the Presentment Clause.
D. Evidentiary Rulings
Dowdell next raises two evidentiary challenges, one
concerning the admission of the police booking sheet and one
concerning admission of the coconspirator's videotaped statements.
We take up each in turn.
1. Admission of police booking sheet
Dowdell claims that the booking sheet from his July 16,
2001 arrest was inadmissible hearsay. Normally, an otherwise
hearsay public record is admissible so long as it sets forth
"matters observed pursuant to duty imposed by law as to which
matters there was a duty to report." Fed. R. Evid. 803(8)(B).
However, under what is sometimes called the "law enforcement
exception," Rule 803(8)(B) retains the hearsay prohibition in
criminal cases for any "matters observed by police officers and
other law enforcement personnel." Id. We have interpreted this
rule to mean that, as a general matter, "police reports are
inadmissible in a criminal case when offered by the prosecution."
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United States v. Arias-Santana, 964 F.2d 1262, 1264 (1st Cir.
1992). The Rule on its face seems equally applicable to the
observations contained in a booking sheet. Nevertheless, the
district court held that the law enforcement exception was not
meant to encompass routine, non-adversarial documents, and on that
basis found the booking sheet admissible. Although our review of
rulings admitting or excluding evidence is typically for abuse of
discretion, our review of the district court's interpretation of a
rule of evidence is de novo. United States v. DeCologero, 530 F.3d
36, 58 (1st Cir. 2008).
We have yet to consider whether the law enforcement
exception applies to an ostensibly objective, non-adversarial
document such as a booking sheet. On two previous occasions,
however, we have at least hinted that it should not. First, in
United States v. Union Nacional de Trabajadores, 576 F.2d 388 (1st
Cir. 1978), we held admissible a copy of a U.S. marshal's return
despite its genesis at the hands of law enforcement personnel. We
reasoned that
[t]here is nothing to indicate that Congress
meant to cut back upon the common law rule
respecting sheriff's returns. A sheriff or
marshal reporting the service of process is
not reporting in the capacity of a police
observer at the scene of a crime, nor is he
ordinarily connected with the case in a law
enforcement capacity. The "adversarial"
circumstances which might render a law
enforcement officer's observations unreliable
are unlikely, therefore, to be present.
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Id. at 391. Then, in United States v. Trenkler, 61 F.3d 45 (1st
Cir. 1995), we cited United States v. Brown, 9 F.3d 907, 911-12
(11th Cir. 1993), in dicta for the proposition that "Rule 803(8)
does not necessarily prohibit the use of police records prepared in
a routine non-adversarial setting that do not result from
subjective investigation and evaluation." Trenkler, 61 F.3d at 59.
Drawing a line at routine, non-adversarial documents
would best comport with the purpose for which Congress originally
approved the exception. The Rule's enactment history indicates
that "the reason for this exclusion is that observations by police
officers at the scene of the crime or the apprehension of the
defendant are not as reliable as observations by public officials
in other cases because of the adversarial nature of the
confrontation between the police and the defendant in criminal
cases." S. Rep. No. 1277, 93d Con., 2d Sess., reprinted in (1974)
U.S.C.C.A.N. 7051, 7064. Congress was generally "concerned about
prosecutors attempting to prove their cases in chief simply by
putting into evidence police officers' reports of their
contemporaneous observations of crime." United States v. Grady,
544 F.2d 598, 604 (2d Cir. 1976).
Recognizing this intent, those circuits to have
considered the issue have all found that the limitation in Rule
803(8)(B) does not exclude routine observations that are inherently
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non-adversarial.17 See, e.g., United States v. Harris, 557 F.3d
938, 941 (8th Cir. 2009) (admitting testimony regarding the
contents of a probation file because while the rule "does prohibit
the admission of records that contain opinions or conclusions
resulting from criminal investigations, it does not bar the
admission of records concerning routine and unambiguous factual
matters"); United States v. Weiland, 420 F.3d 1062, 1074–75 (9th
Cir. 2005) (admitting Department of Corrections' packet containing
fingerprints and photographs of defendant because they are records
of "routine and nonadversarial matters" rather than "police
officers' reports of their contemporaneous observations of crime
that might be biased by the adversarial nature of the report")
(internal quotation marks omitted); Brown, 9 F.3d at 911-12(admitting property receipt prepared during booking for firearm
because "the police custodian in the instant case had no incentive
to do anything other than mechanically record the relevant
17
Dowdell argues that there is actually a circuit split on this
issue, citing to the Second Circuit's decision in United States v.
Oates, 560 F.2d 45 (2d Cir. 1977). Oates, however, was concerned
not so much with what constitutes a "report" as with who constitute
"law enforcement personnel," holding that the term encompassed
chemists working in the U.S. customs service. Here, there is no
dispute that the police officers who drew up the booking sheet were
within the class of actors envisioned by Rule 803(8)(B). Less
clear is whether the documents were within the class of evidence.
On this point, even the Second Circuit has acknowledged that the
Rule's language is not absolute. See Grady, 544 F.2d at 604;
United States v. Feliz, 467 F.3d 227, 236–37 (2d Cir. 2006)
(autopsy reports prepared by medical examiner's office admissible
because they were routinely created and did not constitute police
observations).
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information on the property receipt"); United States v. Quezada,
754 F.2d 1190, 1193–94 (5th Cir. 1985) (admitting an INS form
indicating arrest and deportation because officials' only
motivation was to "mechanically register an unambiguous factual
matter"); United States v. Orozco, 590 F.2d 789, 793–94 (9th Cir.
1979) (finding no error in admission of Customs Service computer
cards of license numbers of cars crossing the border since "the
simple recordation of license numbers . . . is not of the
adversarial confrontation nature which might cloud [an officer's]
perception"); Grady, 544 F.2d at 604 (permitting admission of
serial number and receipt of weapons because "they did not concern
observations . . . of the appellants' commission of crimes," but
rather were "strictly routine records").
Dowdell argues that this construction violates the Rule's
plain language, which seems to bar categorically the prosecution's
introduction of any and all documents prepared by the police. This
much may be true. Yet, the alternative would violate the rule's
plain purpose, and "[i]t is a well-established canon of statutory
construction that a court should go beyond the literal language of
a statute if reliance on that language would defeat the plain
purpose of the statute." Bob Jones Univ. v. United States, 461
U.S. 574, 586 (1983). Given the clear intent that undergirded the
passage of Rule 803(8), we decline to give it a literal,
unqualified meaning. See United States v. Smith, 521 F.2d 957, 968
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n.24 (D.C. Cir. 1975) (refusing to construe 803(8)(B) according to
its literal meaning because it "should be read[] in accordance with
the obvious intent of Congress"); see also United States v. Pagan-
Santini, 451 F.3d 258, 264 (1st Cir. 2006) (referring to Rule
803(8) as "no model of lucid drafting"). Instead, we join the
other circuits in concluding that ministerial, non-adversarial
information is admissible under Rule 803(8)(B), notwithstanding its
documentation at the hands of law enforcement personnel.
With this interpretation of Rule 803(8)(B) in place, we
now must consider whether a booking sheet would violate it. In an
unpublished decision, a panel of the Fifth Circuit answered this
precise question in the negative, summarily finding that "booking
information [i]s taken in a routine, nonadversarial setting."
United States v. Haughton, 235 Fed. App'x 254, 2007 WL 2186250, at
*1 (5th Cir. Jul. 30 2007). We agree. The rote recitation of
biographical information in a booking sheet ordinarily does not
implicate the same potential perception biases that a subjective
narrative of an investigation or an alleged offense might. A
booking sheet does not recount the work that led to an arrest so
much as the mere fact that an arrest occurred. As a result, unlike
the investigative reports that lie at the heart of the law
enforcement exception, booking sheets raise little concern that
suspicion of guilt will function as proof of guilt. We think that
a police booking sheet is in this respect analogous to the INS
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warrant that was the subject of the Fifth Circuit's analysis in
Quezada. The Quezada court upheld the admissibility of the
warrant, which recounted the defendant's prior arrest and
deportation,"[d]ue to the lack of any motivation on the part of the
recording official to do other than mechanically register an
unambiguous factual matter." 754 F.2d at 1194. The same reasoning
applies here.
Dowdell asserts that, even if this much may be true in
the abstract, the particular booking sheet admitted in his trial
may have been prepared with an eye toward proving his identity and
as such was excludable as "indicat[ing] lack of trustworthiness."
Fed. R. Evid. 803(8)(c). He offers no factual support for such a
finding, instead indulging in a bare worst-case-scenario
speculation that the booking officer might have colluded with
Monteiro before completing the form. We need not tarry on this.
An entirely conjectural and uncorroborated conspiracy theory does
not transform an otherwise trustworthy document into an
untrustworthy one.18 There was no abuse of discretion.
18
We note that other circuits have placed the burden of proving
untrustworthiness under Rule 803(8) squarely on the shoulders of
the party opposing admission. See, e.g., Boerner v. Brown &
Williamson Tobacco Co., 394 F.3d 594, 600–01 (8th Cir. 2005);
Bridgeway Corp. v. Citibank, 201 F.3d 134, 143–44 (2d Cir. 2000);
Zeus Enterprises, Inc. v. Alphin Aircraft, Inc., 190 F.3d 238, 241
(4th Cir. 1999); Reynolds v. Green, 184 F.3d 589, 596 (6th Cir.
1999); United States v. Loyola-Dominguez, 125 F.3d 1315, 1318 (9th
Cir. 1997); Graef v. Chemical Leaman Corp., 106 F.3d 112, 118 (5th
Cir. 1997). We have not yet considered who should bear the burden
in this context, although our default position seems to be that it
would be the party seeking admission, United States v. Bartelho,
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2. Admission of videotapes
Dowdell's second evidentiary challenge, that the court
erred in admitting White's videotaped comments to Monteiro,
implicates another carve-out from the prohibition on hearsay.
Federal Rule of Evidence 801(d)(2)(E) provides that any statement
of a coconspirator acting during the course and in furtherance of
a conspiracy is non-hearsay and, therefore, admissible for the
truth of the matter asserted. In order to determine whether the
factual predicates for this exception exist, the trial court must
make a so-called Petrozziello ruling. See United States v.
Petrozziello, 547 F.2d 20, 23 (1st Cir. 1977). A Petrozziello
ruling has two stages. First, following a timely objection, the
court makes a provisional finding as to whether the evidence is
admissible. If so, that finding is then subject to a second and
final review at the close of all the evidence. United States v.
Famania-Roche, 537 F.3d 71, 75 (1st Cir. 2008). At both stages,
the court applies a preponderance of the evidence standard, namely,
whether "it is more likely than not that the declarant and the
defendant were members of a conspiracy when the hearsay statement
129 F.3d 663, 670 (1st Cir. 1997), which in this case is the
government. Regardless, even if the government were to bear the
burden here, neither the booking sheet itself nor the known facts
surrouding its preparation suggest untrustworthiness by a
preponderance of the evidence. "The government's burden [of proof]
. . . does not mean . . . that it must disprove all of the
defendant's alternative theories, no matter how speculative or
implausible." United States v. Ribeiro, 397 F.3d 43, 53 (1st Cir.
2005).
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was made, and that the statement was in furtherance of the
conspiracy." Id.Finding such a preponderance here, the district court
admitted White's statements. Dowdell now argues that the
prosecution's evidence established nothing more than friendship and
proximity with the declarant, rather than a joint venture to sell
controlled substances. Assuming this argument was properly
preserved, we must still accept the district court's findings of
fact unless they were clearly erroneous.19 See United States v.
Thompson, 449 F.3d 267, 273 (1st Cir. 2006). This heavy burden is
19
There may be some uncertainty as to the proper standard of
review for Petrozziello rulings, due to recent cases that employ
the abuse of discretion standard. See, e.g., United States v.
Vazquez-Botet, 532 F.3d 37, 65 (1st Cir. 2008); United States v.
Colon Diaz, 521 F.3d 29, 36 (1st Cir. 2008); United States v.
Rivera-Hernandez, 497 F.3d 71, 82 (1st Cir. 2007). But we long ago
said in United States v. Patterson, 644 F.2d 890, 894 (1st Cir.
1981), and have endorsed on countless subsequent occasions, that we
review a trial court's Petrozziello determination for clear error.
Every other circuit has long been in accord. See United States v.
Edmond, 52 F.3d 1080, 1110 (D.C. Cir. 1995); United States v.
Gessa, 971 F.2d 1257, 1260–61 (6th Cir. 1992); United States v.
Cruz, 910 F.2d 1072, 1081 n.11 (3d Cir. 1990); United States v.
Bouck, 877 F.2d 828, 831 (10th Cir. 1989); United States v.
Jackson, 863 F.2d 1168, 1172 (4th Cir. 1989). United States v.
Kaden, 819 F.2d 813, 820 (7th Cir. 1987); United States v. Rahme,
813 F.2d 31, 36 (2d Cir. 1987); United States v. Silverman, 771
F.2d 1193, 1199 (9th Cir. 1985); United States v. Harshaw, 705 F.2d
317, 320 (8th Cir. 1983; United States v. Bulman, 667 F.2d 1374,
1379 (11th Cir. 1982); United States v. Perry, 624 F.2d 29, 30 (5th
Cir. 1980). See also Christopher B. Mueller & Laird C.
Kirkpatrick, Federal Evidence § 8:62 (3d ed. 2007) (referring to
"almost universal agreement" throughout the federal judiciary on
use of clear error review). In the Petrozziello context, it is
likely that review for abuse of discretion applies only to the
district court's ultimate decision whether to admit or exclude the
statement, and not to the underlying factual findings.
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carried only when "although there is evidence to support [the
finding], the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been committed.
Where the evidence is susceptible of two plausible interpretations,
the trier of fact's choice between them cannot be clearly
erroneous." United States v. Newton, 326 F.3d 253, 257 (1st Cir.
2003). A heavier burden still awaits those attempting unpreserved
challenges, which are reviewed only for plain error. United States
v. Aviles-Colon, 536 F.3d 1, 14 (1st Cir. 2008). Though the
parties disagree as to whether Dowdell successfully preserved his
challenge by renewing his objection at the close of all the
evidence, the dispute is ultimately irrelevant. Even adopting the
less deferential standard, we would still affirm the district
court's ruling.
It is well established that "the preponderance of
evidence required for the introduction of an out-of-court statement
under Rule 801(d)(2)(E) must necessarily comprise more than the
weight of the statement itself." United States v. Sepulveda, 15
F.3d 1161, 1181 (1st Cir. 1993). An alleged coconspirator's
declarations are thus insufficient in isolation. At the same time,
however, the court may consider the hearsay statements themselves
in the context of other extrinsic, corroborating evidence.
Bourjaily v. United States, 483 U.S. 171, 180–81 (1987); United
States v. Mangual-Garcia, 505 F.3d 1, 8 n.5 (1st Cir. 2007). Such
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corroboration was amply available here. When Monteiro first saw
White on July 6, White was counting cash with Dowdell. Moments
later, when White agreed to make the initial sale to Monteiro, his
first action was to walk over to Dowdell and consult with him.
Then, on July 16, Dowdell sold drugs to Monteiro when White was
unavailable. These facts, coupled with White's statements
themselves, adequately supported a finding of a conspiracy by a
preponderance of the evidence. Accordingly, the district court did
not clearly err in its Petrozziello ruling.
Dowdell further maintains that even if the statements
themselves were admissible, introducing them on video nevertheless
violated Federal Rule of Evidence 403, which provides that
otherwise admissible evidence "may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice." Specifically, he argues that a printed transcript
would have been less prejudicial because it would not have allowed
the jury to see White, who, according to Dowdell, "looks like an
obvious drug addict and just makes a very bad impression." But the
mere fact that Dowdell might have fared better without the video is
not in itself cause for exclusion. "By design, all evidence is
meant to be prejudicial; it is only unfair prejudice which must be
avoided." United States v. Rodriguez-Estrada, 877 F.2d 153, 156
(1st Cir. 1989) (emphasis in original). The trial court has wide
latitude in determining when the amount of unfair prejudice has
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tipped the scale too far. "Only rarely -- and in extraordinarily
compelling circumstances -- will we, from the vista of a cold
appellate record, reverse a district court's on-the-spot judgment
concerning the relative weighing of probative value and unfair
effect." United States v. Shinderman, 515 F.3d 5, 17 (1st Cir.
2008) (quoting Freeman v. Package Mach. Co., 865 F.2d 1331, 1340
(1st Cir. 1988)).
In this case, in which the reliability of Monteiro's
identification of Dowdell as Smoke was hotly contested, any
contextual inferences available from a visual record would be
highly probative. Whatever minimal unfair prejudice might have
resulted from seeing White's physical appearance, it did not
overcome this probative value. In any event, it was Dowdell, not
the government, who chose to associate himself with White. We
discern no abuse of discretion.
E. Sentencing
This brings us to the last of Dowdell's litany of
arguments. He asks us to vacate his 198-month sentence because the
government allegedly reneged on a promise not to seek a sentence
greater than 20 years. A sentence of 198 months is, of course,
itself less than 20 years. Dowdell's theory is that the sentence
was nevertheless voidable because the government's filing of an
information of prior conviction, which increased the minimum
guideline sentence from 210 to 262 months, raised the baseline from
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which the trial court would have varied downward. Because this
issue was not raised at sentencing, we review for plain error,
United States v. Matos, 531 F.3d 121, 122 (1st Cir. 2008), although
we think this argument ultimately unavailing under any standard of
review.
Dowdell does not make clear what jurisprudential basis
would merit vacating a sentence in this context. He directs our
attention to Santobello v. New York, 404 U.S. 257 (1971), United
States v. Gonczy, 357 F.3d 50, 53 (1st Cir. 2004), United States v.
Rexach, 896 F.2d 710, 714 (2d Cir. 1990), and United States v.
Giorgi, 840 F.2d 1022, 1026 (1st Cir. 1988), but none is on point.
Those cases all deal with a prosecutor's breach of an assurance
made during a plea agreement, not an isolated comment made during
a pre-trial hearing in a case in which the defendant received his
full panoply of constitutional trial rights. Cf. Gonczy, 357 F.3d
at 53 (explaining that the "meticulous standards of both promise
and performance" that govern prosecutors in plea agreements stem
from the defendant's waiver of fundamental constitutional rights
that would otherwise be present in a jury trial).
Instead, we understand Dowdell to be advancing a theory
of estoppel. The lack of any briefing on this issue renders the
issue waived. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990). Even if not waived, the argument is not supported by
the record. The government did not, as Dowdell argues,
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affirmatively commit itself to the original 20-year statutory
maximum. Rather, it offered a descriptive (and accurate) statement
of sentencing law. The government explained to the court that the
proposed change to the indictment would not violate Apprendi in
that the statutory maximum would remain the same irrespective of
the controlled substance alleged in the indictment. See Apprendi
v. New Jersey, 530 U.S. 466 (2000). At the time, that statutory
maximum was 20 years. Upon the filing of the information, it
became 30 years. Although the number changed, the substance of the
government's remark -- that drug identity would have no impact on
the statutory maximum -- remained just as applicable. Thus we
disagree with Dowdell's assertion that the government bound itself
to any particular sentencing recommendation to begin with.
Moreover, even had such a promise existed, there is no evidence in
the record to suggest that the court gave any weight whatsoever to
the government recommendation at sentencing. Dowdell thus fails to
show a reasonable probability that he would have received a more
lenient sentence but for the alleged error. See Matos, 531 F.3d at122–23. For all of these reasons, we find no flaw in Dowdell's
sentence.
III. Conclusion
The appellant's conviction and sentence are AFFIRMED.
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