United States Court of Appeals
For the First Circuit
No. 09-1201
UNITED STATES OF AMERICA,
Appellee,
v.
ARTHUR MICHAEL KINSELLA,
Defendant, Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, U.S. District Judge]
Before
Lipez, Howard, and Thompson,
Circuit Judges.
Tina Schneider for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Paula D. Silsby, United States Attorney, was on brief, for
appellee.
October 14, 2010
THOMPSON, Circuit Judge. Using standard investigative
techniques – including informants, controlled drug buys, and tape-
recorded conversations – law enforcement agents uncovered an
OxyContin-selling conspiracy centered in Maine. A morphine-like
narcotic, OxyContin is an oxycodone-based product often prescribed
to treat chronic pain. Putting the operation out of business,
agents arrested Arthur Michael Kinsella, a Canadian-based dealer who
had smuggled OxyContin into Maine. Later released on bail, Kinsella
skipped a re-arraignment hearing and so became a fugitive from
justice. Shipped back to Maine by Canadian authorities, Kinsella
faced charges of conspiring to possess and distribute oxycodone,
possessing oxycodone with intent to distribute, and willfully
failing to appear in court as required. See 21 U.S.C. §§ 846 and
841(a)(1), and 18 U.S.C. § 3146(a)(1).
Acting on Kinsella's motion, Judge (now Chief Judge)
Woodcock severed the oxycodone counts from the bail-jumping count
for trial purposes. After separate juries convicted Kinsella across
the board, Judge Woodcock sentenced him to 97 months in prison and
36 months of supervised release. Kinsella now challenges his
convictions and sentence on several fronts. For openers he argues
that multiple instances of prosecutorial misconduct deprived him of
his fair-trial rights. The first incident revolves around the
prosecutor's unobjected-to questioning of a cooperating witness,
Christopher Hitchcock. Caught pushing OxyContin for Kinsella,
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Hitchcock cut a deal with the government, concluded his case on
favorable terms – Judge Woodcock sentenced him to 24 months, well
short of the 20-year statutory maximum – and testified against
Kinsella at the drug trial. Kinsella's lawyer aggressively
confronted Hitchcock on cross-examination, using the plea agreement
and light sentence to attack his credibility. During the
government's redirect, however, Hitchcock revealed that Judge
Woodcock had sentenced him. Speculating that jurors hearing this
must have concluded that Judge Woodcock had already found Hitchcock
credible – why else would he have imposed such a "lenient" sentence?
– Kinsella insists that justice demands that he get a new trial on
the drug counts. He also asserts that certain unobjected-to
comments by prosecutors during closing arguments warrant reversal
on plain-error review. Turning to sentencing, Kinsella contends
that Judge Woodcock erred in his drug-quantity calculation. After
a studied review of the briefs and the record, we affirm Kinsella's
convictions and sentence.
BACKGROUND
We present the facts in the light most favorable to the
guilty verdicts, consistent with record support. See, e.g., United
States v. Bunchan, 580 F.3d 66, 67 (1st Cir. 2009).
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How the Charges Arose
The OxyContin conspiracy
In December 2003, agents with the federal Drug
Enforcement Administration (DEA) heard that Gregory Panther was
selling Canadian-made OxyContin pills in Maine. Hoping to work
their way up the drug-distribution ladder, agents had an informant
make a controlled buy from Panther in March 2004. Panther's actions
led to his arrest in June 2004 – an arrest that also netted
Panther's dealer, Richard Hopkins.
Deciding to cooperate, Hopkins identified Christopher
Hitchcock as his supplier and said Hitchcock had a Canadian
supplier. At the agent's request, Hopkins made a series of recorded
calls to Hitchcock in the fall of 2004. Speaking in code, Hopkins
asked Hitchcock for all the OxyContin that he could get. Hitchcock
tracked down Kinsella, got 90 OxyContin pills, and sold them to
Hopkins in December 2004. Each pill had a "CDN" stamp on one side
(indicating that it had been manufactured in Canada) and an "80"
mark on the other (suggesting that it was an 80-milligram tablet).
His interest piqued, Fred Luce, a DEA task-force member,
then subpoenaed Hitchcock's phone records. Perusing the papers,
Luce noticed a lot of calls on the day of the controlled buy between
Hitchcock and Kinsella, often following calls between Hopkins and
Hitchcock. Hopkins later asked Hitchcock for more pills, and
Hitchcock called Kinsella to score some more. The deal never
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happened, however, because agents arrested Hitchcock in February
2005.
Seeing the writing on the wall, Hitchcock agreed to help
the government arrest and convict Kinsella. Hitchcock had known
Kinsella for years. They both frequented a Bangor, Maine racetrack,
and they trusted each other. Hitchcock had even bailed Kinsella out
of a previous scrape with the law.
For a year to a year and a half before his February 2005
arrest, Hitchcock served as a go-between for Kinsella and Hopkins.
Every 3-6 weeks, Hitchcock got 90-180 pills from Kinsella (his sole
supplier) and sold them to Hopkins (his sole customer) at around $34
a pill. Conceding that he had trouble remembering exact dates,
Hitchcock said that sometimes more than 6 weeks passed between
transactions, and that one time Kinsella handed him 270-300 pills
to sell. Turning the drug money over to Kinsella, Hitchcock
occasionally got $100-$200 and a free meal for his work.
With Hitchcock on board, DEA agents contacted the Royal
Canadian Mounted Police to see what information they had on
Kinsella. Getting his Canadian license plate number, agents pieced
together that Kinsella's minivan had crossed the border into Maine
a couple of hours before the December 2004 Hitchcock-Hopkins drug
deal. Phone records revealed that Kinsella and Hitchcock had called
each other right around the time the deal transpired. That is not
surprising – they called each other a lot, 79 times, in fact,
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between July 2004 (right around the time Hopkins fingered Hitchcock
as his supplier) and February 2005 (when agents arrested Hitchcock).
Agents had Hitchcock call Kinsella over the next month or so to set
up another deal. During these recorded conversations, the two used
code words. "Birthday party" meant drug deal. "More people" meant
more pills. "How much a dinner plate?" meant how much per pill.
Looking to do another deal in March 2005, Kinsella asked
Hitchcock on tape whether it was "cool or what." "Yeah," Hitchcock
said, "should be no problem." "I assume there's going to be 90 or
100 at most," Kinsella said later. "We got to go to 34, though,"
he added. Hitchcock and Agent Luce knew what Kinsella was doing:
he was confirming that he would hand Hitchcock 90-100 OxyContin
pills to sell at a price of $34 per pill. Convinced that they had
a meeting of the minds, Kinsella told Hitchcock that they should
meet up at a Bangor Burger King at 8 p.m. on March 19.
Armed with this information, the DEA asked local police
to help nab Kinsella before he got to the Burger King. At about
7:45 p.m. on March 19, a police officer spotted Kinsella's minivan,
saw him tailgating another vehicle, and pulled him over. Admitting
to the moving violation, Kinsella told the officer he had come from
Canada to pick his sister up at the Bangor airport. In fact, his
sister had left Maine and flown back home some 14 hours earlier.
Kinsella also said that he had no illegal drugs and was not taking
any prescription medicines. A consented-to search of his minivan,
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however, turned up a leather organizer tucked in between the front
seats. Finding a prescription bottle in Kinsella's name inside, the
officer counted 100 green pills, each marked "CDN" on one side and
"80" on the other. Doing an about-face, Kinsella now said that the
pills were his. He also handed over his cell phone, which had
Hitchcock's number saved in the address book.
Arrested and booked that night, Kinsella wound up in
jail. Calling his mother, Kinsella asked her to give Hitchcock's
phone number to his brother, Rick Kinsella. "[T]ell Rick" to "tell
[Hitchcock] what happened," Kinsella said. Kinsella apparently
wanted Hitchcock to bail him out. Calling Rick the next day,
Kinsella heard that no one had gotten in touch with Hitchcock.
"[D]on't call him no more," Kinsella told Rick. "[H]e wouldn't have
the money to bail me out anyway." Kinsella's jailers recorded each
call.
A magistrate judge eventually released Kinsella on
personal recognizance in April 2005. The release order forbade
Kinsella from leaving Maine, required him to report to a pretrial
services officer (PSO), and commanded him to appear at scheduled
proceedings. The order also alerted him to the penalties he might
incur if he violated these terms. Driving all this home at a
meeting three days later, PSO Wade Maddox gave Kinsella a business
card with contact information and told him to check in with
probation every week.
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That same month, a federal grand jury indicted Kinsella
on two counts. Count 1 charged that Kinsella conspired to possess
and distribute oxycodone-based substances from January 2003 to June
2004. See 21 U.S.C. §§ 841(a)(1) and 846. Count 2 alleged that
Kinsella possessed with intent to distribute oxycodone-based
substances on March 19, 2005 – the date of his arrest. See 21
U.S.C. § 841(a)(1). Kinsella pleaded not guilty at his arraignment.
The bail-jumping
Claiming that he needed to return to Canada for medical
treatment, Kinsella asked the magistrate judge in May 2005 to modify
his release conditions so he could live there. He promised that he
would not miss any court hearings. Releasing him on $5,000 bail,
the magistrate judge still required Kinsella to appear at scheduled
proceedings and to stay in touch with the PSO. Kinsella promised
he would but did not keep his word: after the grand jury returned
a superseding indictment extending the conspiratorial period to
December 2004, Kinsella stopped calling probation (though PSO Maddox
did not turn him in) and missed a scheduled re-arraignment.
Kinsella had known about the re-arraignment date – August 2, 2005,
his lawyer, Matthew Erickson, had told him, stressing that Kinsella
had to be there – but Kinsella stayed in Canada anyway.
Declaring him a fugitive from justice, the magistrate
judge signed a warrant for Kinsella's arrest. Erickson called
Kinsella that day and learned that Kinsella had made no effort to
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cross the border into the United States. Mentioning the arrest
warrant, Erickson told Kinsella that an indictment for failing to
appear would no doubt follow – and it did, three months later.
Apparently unmoved by all this, Kinsella chose not to turn himself
in.
Canadian authorities placed Kinsella in custody in
October 2006. Challenging his extradition under that country's
laws, Kinsella lost an appeal and returned to the United States in
September 2007, in cuffs and escorted by Mounties. Facing a
superseding indictment that added a bail-jumping count to the old
drug charges, Kinsella asked Judge Woodcock to sever the drug counts
from the bail-jumping count for trial. Granting the motion, Judge
Woodcock ordered a trial on the bail-jumping count first, followed
by a trial on the drug charges.
How the Trials Unfolded
The bail-jumping trial
Thanks to some pretrial stipulations, the only issue at
play during the two-day bail-jumping trial was whether Kinsella had
willfully failed to appear at the re-arraignment – and there was
enough for the jury to find beyond a reasonable doubt that he had.
Kinsella's repeated open-court pledges to return for scheduled
proceedings practically leapt from the pages of the bail-hearing
transcripts, which the lawyers had stipulated into evidence. The
jury also heard from PSO Maddox, who testified about discussing the
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release conditions with Kinsella, handing him a card with a toll-
free number to use in checking in with probation, and hearing
nothing from him leading up to and following his no-show at the
scheduled re-arraignment. Attorney Erickson testified about
notifying Kinsella of the date and time of the re-arraignment,
reminding him he had to be there, giving him a heads-up on the
arrest warrant and the failure-to-appear charge after his no-show,
and hearing how he had made no effort to cross the U.S. border to
make the re-arraignment and was bent on fighting extradition.
Cinching matters, a deputy U.S. Marshal testified about how the
Mounties hauled a hand-cuffed Kinsella back to the United States two
years after he had skipped the re-arraignment.
Ultimately, though, Kinsella does not contest the
sufficiency of the evidence against him. Instead he attacks the
prosecutor's closing argument, which, he says, represented an
improper appeal to the jurors' emotions. After Judge Woodcock
instructed the jury that the government had the burden of proving
guilt beyond a reasonable doubt and that closing arguments are not
evidence, the prosecutor began his summation with this statement:
This case is important because we all can
appreciate the need for defendants who are
charged with crimes to appear in court. Our
courts have a very important function in the
United States, and they cannot carry out their
responsibilities if defendants in criminal
cases are allowed to ignore the promises that
they make to judges, to disobey court orders,
and to fail to appear in violation of the law.
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Defense counsel did not object. Building to a crescendo, the
prosecutor later stressed that a person who shows up to a hearing
"two hours" or even "two days late" may "not be willful," but a
person who fails to call his PSO, who fails to self-surrender, who
fights extradition and then only returns in cuffs two-plus years
after his no-show "has willfully failed to appear in court." The
jury must have agreed – it found Kinsella guilty after deliberating
for about 38 minutes.
The drug trial
A four-day trial on the drug charges followed, and the
evidence against Kinsella was strong: phone records, recorded
calls, and testimony from Hitchcock, Agent Luce, and the arresting
officer helped nail down his guilt. Kinsella does not contend that
the evidence could not support conviction. Instead his trial-error
claims target the prosecutor's questioning of Hitchcock and the
prosecutor's closing argument, so we highlight here only those facts
needed to put these issues into proper perspective.
Throughout the trial, defense counsel never missed an
opportunity to paint Hitchcock as a plea-bargained witness who had
set Kinsella up to avoid a 20-year sentence. Hitchcock needed
someone – anyone – so he would not be "left holding the bag,"
Kinsella's lawyer said in her opening statement. Pulling no
punches, defense counsel asked Hitchcock on cross-examination
whether he had "cooperated with the government" so he "wouldn't have
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to do as much time." "Yes," Hitchcock said, conceding, too, that
he was testifying for the prosecution as part of his plea agreement
and that he could have received a 20-year rather than a 2-year
sentence had he not cooperated. Hitchcock also admitted that he
"would do anything" to get his old life back.
On redirect the prosecutor tried to focus on the
sentencing process. Asking Hitchcock to recall defense counsel's
questions about the "sentence" and the "cooperation agreement with
the government," the prosecutor queried: "Do you remember where you
were sentenced, where your sentence took place?" "Right here,"
Hitchcock said, in "this courthouse." The prosecutor then asked –
and this is the allegedly offending question – whether Hitchcock
recalled "who" had sentenced him. "Judge Woodcock," Hitchcock
replied. "And who decided what your sentence was?" the prosecutor
inquired. "The judge," Hitchcock said. Kinsella's lawyer neither
objected to the prosecutor's questions nor moved to strike
Hitchcock's responses. Instead she confirmed with Kinsella on re-
cross that "the judge" had decided his sentence after the government
had agreed to ask for "less time."
Before closing arguments, Judge Woodcock cautioned the
jurors to consider Hitchcock's testimony with great care.
Cooperating witnesses, he said, are not always truth-tellers – they
sometimes spin lies about what others have done to save themselves
jail time, so the jurors had to consider whether Hitchcock had an
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ax to grind against Kinsella or had received any reward for
cooperating with the prosecution. Hitchcock's guilty plea was fair
game in assessing his credibility, Judge Woodcock said, but the
jurors could not consider his plea as evidence against Kinsella "in
any way." Judge Woodcock also told them that counsel's arguments
are not evidence and that they were the sole triers of fact and
determiners of witness credibility.
In closing argument the prosecutor hammered home the
evidence against Kinsella – the controlled drug buys, Hitchcock's
pinning Kinsella to the crimes, the coded conversations about
OxyContin, Kinsella's agreeing to slip Hitchcock 100 or so OxyContin
pills on March 19 at a Bangor Burger King, Kinsella's lying to a
police officer that evening about having to drive to a Bangor
airport to pick up his sister, the officer's seizing 100 pills from
him after Kinsella lied about having no pills, etc. Regarding the
recorded jailhouse calls, the prosecutor said:
[Kinsella] knows Chris [Hitchcock]; he knows
the number; and he wants someone to call
Chris. First and foremost, if [Kinsella] can
off-load the Oxy, theoretically, he could get
some money if he needed to make bail or
anything else of that nature. But he knows
Chris; he knows the number; and he provides
the same number that's been called all along.
There was, in fact, no evidence that Kinsella had tried to deal
OxyContin from jail. But defense counsel did not object. Instead
she argued in her closing that sloppy investigative work caused the
police to arrest an "innocent man." Hitchcock had told a pack of
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lies to avoid a 20-year sentence, defense counsel said. Hitchcock
needed a "patsy" – someone he could roll over on – and Kinsella
would do just fine. Not so, the prosecutor said in his rebuttal
closing argument. "There's no cheating here, and there's no
conspiracy to frame" Kinsella. After about five hours of
deliberations, the jury convicted Kinsella on the OxyContin-related
counts.
Kinsella filed a timely new-trial motion. See Fed. R.
Crim. P. 33(b)(2). His lead argument was that the prosecutor
crossed the line by prompting Hitchcock to say that Judge Woodcock
had sentenced him – a comment Kinsella insists suggested to the jury
that the Judge (who had given Hitchcock a 2-year sentence out of a
possible maximum sentence of 20 years) had believed every word
Hitchcock said on the stand. Calling Kinsella's claim "odd and
elusive," Judge Woodcock ruled that the prosecutor never tried to
put a stamp of judicial approval on Hitchcock's testimony and never
even intimated that the jury should find one. The prosecutor simply
wanted to rehabilitate Hitchcock, Judge Woodcock stressed. Invoking
the saying "once burned, twice shy," Judge Woodcock found that this
evidence implied that Hitchcock would think twice before perjuring
himself "in front of a judge who had already sentenced him to
prison." Finding no caselaw to bolster the "fanciful" notion that
the prosecutor had "somehow vouched for the judge's knowledge of
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[Hitchcock's] credibility," Judge Woodcock denied Kinsella's new-
trial motion.
How the Sentence Worked Out
Acting under the now-advisory federal sentencing
guidelines, Judge Woodcock set out to compute the relevant guideline
sentencing range. Defense counsel and the prosecutor started
sparring over whether each OxyContin pill contained 75 or 80
milligrams of oxycodone. Testing a randomly selected sample of 25
OxyContin tablets taken from Kinsella, a DEA chemist had put the
number at 75 milligrams. Believing that that issue might not matter
depending on what other findings he made, Judge Woodcock decided to
focus first on the length of the conspiracy and the amount of drugs
involved.
The probation office's presentence investigation report
had noted that the conspiracy spanned 2003-2005. And, after
commenting that Hitchcock had peddled Kinsella's drugs for 12-18
months, the report pegged the conspiracy's length at 18 months.
Kinsella asked Judge Woodcock to find a 12-month conspiracy. But
he never asked the Judge to say – and the Judge never said – where
the 12-month period fit on the 2003-2005 time-line. Finding
Hitchcock completely credible, Judge Woodcock put the conspiracy's
length at 12 months because he thought that Hitchcock's "good faith"
estimate about a 12-18 month conspiracy was somewhat sketchy.
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Zeroing in on Hitchcock's drug-quantity testimony – that
Kinsella had handed him 90-180 pills every 3-6 weeks, though
sometimes they went more than 6 weeks between deals and 1 deal
involved 270-300 pills – Judge Woodcock settled on numbers
"favorable" to Kinsella: 7 total transactions during the year, 6
involving 90 pills each and 1 involving 270, which netted 810
tablets. But he quickly added that he "easily" could have picked
less defendant-friendly numbers – a 135-pill transaction every 4
weeks or so, for example, with a 300-pill deal added to the mix.
In any event, if each pill weighed 80 milligrams, Judge
Woodcock said, then Kinsella was responsible for 64.8 grams of
oxycodone (810 x 80 = 64,800 milligrams or 64.8 grams), which
converted into a marijuana equivalent of 434.160 kilograms, which
resulted in a base offense level of 28. See USSG § 2D1.1(c)(6),
cmt. n.10(B) (directing courts to convert quantities of certain
drugs into equivalent units of marijuana for sentencing purposes),
and cmt. n.10(E) (laying out the drug equivalency tables). Even if
the pills weighed 75 milligrams apiece, Kinsella's base offense
level would still be 28, defense counsel conceded after re-checking
the Judge's math – so that issue dropped out of consideration.
Judge Woodcock then added 2 levels for obstruction of justice,
resulting in a total offense level of 30. Given the lack of any
meaningful criminal history, Judge Woodcock's calculations produced
a guideline sentencing range of 97-121 months. The Judge then
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sentenced him to 97 months in prison plus three years of supervised
release.
Further details will be noted as needed.
ANALYSIS
With pretty strong cases against him, Kinsella does not
attack the adequacy of the evidence underlying either conviction.
Instead he contends that three instances of alleged prosecutorial
misconduct – pivoting on the prosecutor's redirect of Hitchcock and
closing-argument comments at each trial – robbed him of his fair-
trial rights. He also insists that Judge Woodcock erred in his
drug-quantity calculation and therefore selected an overly harsh
sentence. We are not persuaded.
Prosecutorial Misconduct
In our adversarial system of justice, litigants must
alert trial courts to "error-in-the-making." United States v.
Griffin, 818 F.2d 97, 100 (1st Cir. 1987). The reasons behind this
rule are simple. A timely objection lets the trial judge correct
any errors to avoid needless reversals and remands. See, e.g.,
United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004). It also
deters "sandbagging" lawyers from hiding objections below so that
they can surface them on appeal if the jury does not acquit. See,
e.g., United States v. Taylor, 54 F.3d 967, 972 (1st Cir. 1995).
Like most rules, this rule has an exception: a defendant can pursue
an unpreserved claim on appeal under the difficult-to-meet plain-
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error standard. See, e.g., United States v. Eisom, 585 F.3d 552,
556 (1st Cir. 2009). That standard has three essential factors and
one discretionary component. The essentials are (1) error that (2)
is obvious and (3) affected the outcome of the defendant's case.
See, e.g., United States v. Riccio, 529 F.3d 40, 45 (1st Cir. 2008).
Even if a defendant can show all of this, we have the discretion not
to intervene if we conclude that the error does not distort the
fairness or integrity of lower court proceedings in some extreme
way. See, e.g., United States v. Moran, 393 F.3d 1, 13 (1st Cir.
2004).
Because Kinsella's trial lawyer failed to preserve the
prosecutorial-misconduct issues through timely objections, the
plain-error standard controls. The only slight wrinkle is that
defense counsel did raise the redirect-examination issue in a new-
trial motion. But that is still an unpreserved claim, so the plain-
error rule applies here too. See United States v. Brandao, 539 F.3d
44, 57 (1st Cir. 2008). Ultimately, though, we see no reason to
upset either verdict. Cf. United States v. Shoup, 476 F.3d 38, 43
(1st Cir. 2007) (noting that "[a]ppellate reversal for plain error
is extremely rare," adding that a defendant is not entitled to a
"'perfect' trial").
Redirect of Hitchcock – drug trial
Kinsella complains about the prosecutor's prompting
Hitchcock to say on redirect that Judge Woodcock had sentenced him
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in the same Bangor courtroom – testimony Kinsella says conveyed to
the drug-trial jury that Judge Woodcock had already accepted
Hitchcock's allegations as gospel. To back up his claim, Kinsella
contends that Judge Woodcock's "'once burned, twice shy'" comment
– that Hitchcock would not perjure himself before the judge who had
sentenced him – confirmed that the jury could infer that Hitchcock
told the truth because the Judge had already heard his story and
would spot any lies. We see no error here, plain or otherwise.
At every turn, Kinsella's counsel urged the drug-trial
jury to conclude that Hitchcock was a liar who did the government's
bidding under the plea agreement to skirt a 20-year sentence. To
counteract this implication, the prosecutor used redirect to correct
any impression that the government had decided Hitchcock's sentence
– and rightly so.
Contrary to Kinsella's contention, we are not 100%
certain that the prosecutor's question – "Do you remember who
sentenced you?" – sought to elicit the Judge's name rather than the
fact that a judge, not the government, had selected Hitchcock's
sentence. Regardless, the prosecutor never so much as hinted that
Judge Woodcock had already heard Hitchcock's narrative or had found
him credible, and the Judge's later instruction that Hitchcock may
have lied to save himself undermines Kinsella's claim. Also, the
prosecutor did not follow up on the defense's recross of Hitchcock
– which again intimated that Hitchcock's light sentence flowed from
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his cooperation agreement – and did not touch on this supposedly
improper issue during closing arguments. Finally, we see no problem
with Judge Woodcock's "'once burned, twice shy'" statement: the
plea agreement – admitted into evidence – reserved the prosecutor's
right to charge Hitchcock with perjury if he testified falsely, and
one can properly conclude that "a witness who has already agreed to
testify against others would likely not jeopardize the potential
benefits of providing such testimony – assuming it is truthful – by
testifying untruthfully . . . ." United States v. Carr, 424 F.3d
213, 229 (2d Cir. 2005). Viewed in this light, we believe the
prosecutor did not overstep his bounds here. See United States v.
Sanchez, 251 F.3d 598, 603 (7th Cir. 2001) (not error for the
prosecutor to stress during redirect-examination and closing
argument that the trial judge, "Judge Young, not the government,
would ultimately determine the sentence of each cooperating
witness," holding that the prosecutor's actions "were invited by
defense counsel's characterization of the sentencing process" and
did not stray beyond the limits of fair advocacy). Consequently,
there is no error at all, let alone plain error.1
1
Like her trial counterpart, Kinsella's appellate lawyer
attacks Hitchcock's credibility, suggesting that his account is
simply not believable. But one cannot expect witnesses in a
criminal case to "possess the credibility of people of the cloth,
such as rabbis, [ministers], priests, and nuns; that is why one of
the jury's roles is to decide the credibility of witnesses."
United States v. Rovetuso, 768 F.2d 809, 818 (7th Cir. 1985).
Ultimately, the jurors believed Hitchcock not because he is an
upstanding citizen but because his testimony apparently resonated
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Closing argument – bail-jumping trial
Kinsella also accuses the prosecutor of misconduct during
closing argument in the bail-jumping trial. As he sees things, the
prosecutor talked about issues having nothing to do with his guilt
or innocence, riling up the jurors by saying that this is an
"important" case because our courts cannot function if criminal
defendants can ignore promises made to judges, disregard court
orders, and fail to appear as required. Kinsella's trial lawyer did
not object, so we review for plain error, asking the usual
questions, including whether Kinsella has shown both error and
prejudice. See, e.g., United States v. Olano, 507 U.S. 725, 732-33
(1993). He has not.
Prosecutors can talk about "the importance of the case"
in summation. United States v. Cotter, 425 F.2d 450, 452 (1st Cir.
1970) (emphasis added) (discussing the "basic ground rules" of
closing arguments). But they cannot suggest that jurors have a
civic duty to convict, see Viereck v. United States, 318 U.S. 236,
248 (1943), and the prosecutor skated perilously close to the edge
with his courts-not-being-able-to-function comments. Troubled as
we are by this, we conclude that Kinsella's plain-error claim still
fails. We explain briefly.
The prosecutor's isolated remarks were not part of a
concerted effort to incite the jury – they were introductory only,
with them.
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setting up the litany of evidence against Kinsella that the
prosecutor ticked off: Kinsella's repeated promises to return to
court, his not calling the PSO as required, his staying in Canada
on his re-arraignment day, his dogged attempts to avoid extradition,
etc. Kinsella's guilt of bail-jumping is so clear that the
prosecutor's passing remarks could not have swayed the trial's
outcome. Also, defense counsel played down Kinsella's conduct
throughout the trial – for example, counsel got PSO Maddox to admit
on cross that he did not turn Kinsella in the second Kinsella
stopped calling the PSO office, which suggested that the matter was
not really important – and the prosecutor had the right to respond.
See generally United States v. Paradis, 802 F.2d 553, 561 (1st Cir.
1986). Consequently, none of the challenged statements constitutes
plain error in the context of this case. Cf. Taylor, 54 F.3d at 972
(emphasizing that the plain-error doctrine focuses on
"'blockbuster[]'" errors, not on routine miscues that may tarnish
the trial record); United States v. Sepulveda, 15 F.3d 1161, 1188
(1st Cir. 1993) (similar).
Closing argument – drug trial
Kinsella also criticizes the prosecutor's drug-trial
summation, which, he says, discussed a matter not in evidence –
namely, that Kinsella had tried to sell OxyContin from jail.
Kinsella is right. Discussing the recorded calls from jail, the
prosecutor said they showed that Kinsella wanted to "off-load Oxy"
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to make bail – but there was nothing in the tapes about that.
Undaunted, the government tries to soft-pedal this problem by
calling the prosecutor's comment "ambiguous" and reminding us that
we cannot carelessly infer that a prosecutor intended an enigmatic
remark to have its most damaging meaning. This is just plain wrong.
There is no ambiguity in what the prosecutor said (the prosecutor's
words could not have been plainer or more explicit), and what he
said had no record support. Kinsella's trial lawyer did not object,
however, so the plain-error standard again takes center stage.
A prosecutor's mission is not simply to rack up
victories, "but to win fairly, staying well within the rules."
United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993); accord
United States v. Rodriguez-Estrada, 877 F.2d 153, 158-59 (1st Cir.
1989). Here, the prosecutor strayed into a forbidden zone by
discussing something not in evidence. See, e.g., United States v.
de Leon Davis, 914 F.2d 340, 345 (1st Cir. 1990). But even the
plainest of errors requires reversal only if the error caused
prejudice and (if not fixed) a miscarriage of justice. See, e.g.,
United States v. Hilario-Hilario, 529 F.3d 65, 76 (1st Cir. 2008).
Kinsella can show neither here.
Calling the government's case "thin," Kinsella contends
that the prosecutor's unsupported comment had to have influenced the
jury's verdict. But the evidence against him – the controlled drug
buys, the phone records, the taped conversations veiled in code,
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etc., much of which corroborated Hitchcock's account – was
compelling enough. Critically, too, the prosecutor's line-crossing
comment was a single unobjected-to sentence from a four-day trial,
occurring after Judge Woodcock had told the jurors not to consider
counsel's arguments as evidence. Compare United States v. Procopio,
88 F.3d 21, 31 (1st Cir. 1996) (explaining that the defense's
failure to object may indicate "that, in the conditions of the
courtroom, the passage in question passed by as mere rhetoric") with
United States v. Robinson, 473 F.3d 387, 398 (1st Cir. 2007) (noting
that the district judge's "general instructions" that jurors could
not consider closing arguments as evidence undercut the defense's
plain-error claim). Given all this, we conclude that the
prosecutor's improper remark does not merit reversal on plain-error
review.
Drug-Quantity Calculation
Moving from conviction to sentence, Kinsella contends
that Judge Woodcock's drug-quantity computation is doubly flawed:
first because it held him culpable for 12 rather than 6 months of
drug dealings, and second because it assigned 80 rather than 75
milligrams of oxycodone to each pill. The government counters that
Kinsella forfeited the 6 vs. 12 months argument and waived the 75
vs. 80 milligram claim. See generally Eisom, 585 F.3d at 556
(stressing that waiver precludes review while forfeiture permits
review, albeit only for plain error). Even if we assume for
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argument's sake that Kinsella preserved both claims, see generally
United States v. Webster, 54 F.3d 1, 5 (1st Cir. 1995) (taking a
similar approach in an analogous situation), he still faces an
uphill battle – and it is a battle that he cannot win.
The government need only prove drug amounts by a
preponderance of the evidence, a district judge can make credibility
calls, a drug-quantity calculation is a factual finding, and we
review those findings deferentially, reversing only for clear error.
See, e.g., United States v. Platte, 577 F.3d 387, 392-93 (1st Cir.
2009), cert. denied, 130 S. Ct. 1098 (2010); Sepulveda, 15 F.3d at
1198. Clear error is not an easy standard to meet: "[a]bsent a
mistake of law" – and we see none here – we must respect the judge's
findings "unless, on the whole of the record, we form a strong,
unyielding belief that a mistake has been made." Platte, 577 F.3d
at 392 (quotation marks omitted).
Calculating drug quantity is not a science, and a
district judge tasked with this job is not required to be a
mathematician or to make findings with computerized certainty. See,
e.g., id. at 392-93. When there are no hard drug-quantity numbers,
a reasoned estimate will do, and when the record supports more than
one estimate, the judge's selection "from among plausible
alternatives cannot be clearly erroneous." United States v.
Morillo, 8 F.3d 864, 871 (1st Cir. 1993). Consistent with these
principles, our job "is not to see whether there is any view of the
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evidence that might undercut the district court's finding; it is to
see whether there is any evidence in the record to support the
finding." United States v. Wade, 114 F.3d 103, 105 (7th Cir. 1997)
(citing Anderson v. City of Bessemer, 470 U.S. 564, 573-74 (1985)).
And if the judge makes incorrect findings but the record still
supports the end result, the error is harmless and no remand is
needed. United States v. Correa-Alicea, 585 F.3d 484, 489 (1st Cir.
2009), cert. denied, 130 S. Ct. 1909 (2010).
In his briefs to us, Kinsella constructed an elaborate,
multi-premised argument as to why Judge Woodcock clearly erred in
his drug-quantity calculations. Kinsella agreed with the Judge's
finding that the conspiracy lasted 12 months. But he told us that
the conspiracy ran from December 2003 to December 2004 (the date of
the last Kinsella-to-Hitchcock-to-Hopkins deal), even though the
Judge did not find (and was not asked to find) where the 12-month
term fit on the 2003-2005 time-line. Hitchcock testified that he
only sold Kinsella's pills to Hopkins, and agents collared Hopkins
in June 2004, which, Kinsella said, put Hopkins out of the drug-
buying business for 6 months, until the December 2004 controlled
buy. Putting it all together, Kinsella contended that Judge
Woodcock's finding of 7 deals during the 12-month conspiracy could
not stand because the Judge did not factor this 6-month hiatus into
his drug-quantity analysis.
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But Kinsella's counsel changed ground at oral argument,
claiming for the first time that the 12-month period ran from
February 2004 to February 2005 (the date of Hitchcock's arrest), a
claim counsel repeated in a post-argument letter. That is too late.
An appellant cannot surface at oral argument points omitted from the
opening brief, see Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st
Cir. 1990), so we need only concern ourselves with the argument
premised on the December 2003-December 2004 period.
The argument goes nowhere. Nothing in the record
compelled Judge Woodcock – or compels us – to take so myopic a view
of the conspiracy's duration. But even if we accept the December
2003-December 2004 argument, it is easy to come up with a pill total
that supports the assigned base offense level of 28 without
including the 6-month hiatus. Using variables that mirror the
Judge's defendant-friendly findings – a deal roughly every 7 weeks,
1 involving 270 tablets and the rest involving 90 pills each – we
get 5 pre-hiatus deals yielding 630 pills (270 + (4 x 90) = 630).
Adding in the 90 pills from the December 2004 controlled buy ups the
conspiracy's pill tally to 720. And throwing in the 100 pills from
Kinsella's March 2005 arrest (which formed the basis of the
possession-with-intent-to-distribute count on which he was
convicted) brings the tablet total to 820 (10 more than the Judge
found) – a total that still puts Kinsella in base offense level 28
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regardless of whether each pill contained 75 or 80 milligrams of
oxycodone. Consequently, the sentence stands.
CONCLUSION
For the reasons voiced above, we affirm Kinsella's
convictions and sentence.
So ordered.
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