United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 95-1291
UNITED STATES,
Appellee,
v.
ROBERT WIHBEY,
Defendant, Appellant.
No. 95-1394
UNITED STATES,
Appellee,
v.
CLAUDE WHITMAN,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
Before
Cyr, Boudin, and Stahl,
Circuit Judges.
Jack St. Clair with whom Barbara J. Sweeney was on brief for
appellant Wihbey.
Vincent A. Bongiorni for appellant Whitman.
Dina Michael Chaitowitz, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief for
appellee.
February 6, 1996
STAHL, Circuit Judge. Robert Wihbey and Claude
STAHL, Circuit Judge.
Whitman were tried by a jury and convicted of conspiracy to
distribute marijuana. The jury also convicted Wihbey of
possession of marijuana with intent to distribute. Both
Wihbey and Whitman challenge their convictions on the grounds
that the prosecutor made improper remarks in closing
argument, and that the government proved multiple
conspiracies, not the single conspiracy charged in the
indictment. Wihbey argues that the warrantless entry of his
home was not justified by exigent circumstances and that the
evidence against him does not support the drug quantity used
to calculate his sentence under the guidelines. Whitman also
challenges his sentence, asserting that he did not play a
leadership role in the conspiracy that justified an increase
in offense level. Finding no error, we affirm the
convictions and the resulting sentences.
I.
I.
FACTUAL OVERVIEW
FACTUAL OVERVIEW
The evidence, taken in the light most favorable to
the verdict, permitted the jury to find the following facts.
See United States v. Twitty, No. 95-1056, slip op. at 2 (1st
Cir. December 28, 1995). In the spring of 1991, Richard
Britt and Thomas Rohan agreed to work together dealing
marijuana. Initially, they intended their source of supply
to be appellant Claude Whitman and one Frank Camyre, but when
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Camyre and Whitman repeatedly failed to produce as promised,
Rohan cultivated another supplier, Robert Wihbey. Meanwhile,
an informant for the Drug Enforcement Administration ("DEA"),
David DeCastro, had convinced Britt and Rohan that he had the
desire and ability to buy 250 pounds or more of marijuana
(about $500,000 worth). Britt and Rohan, eager to recoup an
earlier loss in a failed marijuana deal, agreed to act as
middlemen in a large sale to informant DeCastro. Britt and
Rohan informed both of their sources that they had a big
buyer on the hook. On or about November 22, 1991, both
sources independently obtained shipments of marijuana. On
November 23, 1991, DEA agents arranged for DeCastro to
conduct controlled buys the following day from both the
Wihbey source and the Whitman/Camyre source. Britt and Rohan
were arrested during a buy from Wihbey's associate, Michael
Weiner, who was also arrested; all three immediately agreed
to cooperate. Weiner led the DEA agents to Wihbey's home,
where they arrested Wihbey and searched the premises. Later
that day, Britt and Rohan cooperated with the DEA on a second
controlled buy, from the Whitman/Camyre source, leading to
the arrest of Whitman, Camyre and Whitman's source, Roger
Brandt. Further factual details will be provided as needed
to analyze the several issues presented.
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II.
II.
PROCEDURAL BACKGROUND
PROCEDURAL BACKGROUND
In March 1993, a federal grand jury returned a
four-count indictment that charged: in Count One, that from
May 1991 through November 23, 1991, Britt, Rohan, Wihbey,
Weiner, Whitman, and Camyre conspired to possess with intent
to distribute, and to distribute, marijuana in violation of
21 U.S.C. 846; in Count Two, that on October 4, 1991,
Camyre possessed marijuana with intent to distribute in
violation of 21 U.S.C. 841(a)(1); in Count Three, that on
November 22, 1991, Wihbey possessed marijuana with intent to
distribute in violation of 21 U.S.C. 841(a)(1); and in
Count Four, that on November 23, 1991, Wihbey used a pistol
during and in relation to a drug trafficking offense in
violation of 21 U.S.C. 924(c).
Wihbey filed a motion to suppress physical evidence
and a statement obtained from him during the warrantless
arrest and search at his home, but the motion was denied
after an evidentiary hearing. Prior to trial, all of the
defendants except Wihbey and Whitman pleaded guilty and
agreed to cooperate with the government. After a five-day
trial in May 1994, the jury found Wihbey and Whitman guilty
of the conspiracy count and Wihbey guilty of the possession
with intent to distribute count. The jury, however,
acquitted Wihbey on the firearm count. Wihbey and Whitman
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were sentenced in November 1994 and promptly filed notices of
appeal.
III.
III.
DISCUSSION
DISCUSSION
A. Warrantless Entry of Wihbey's Home
A. Warrantless Entry of Wihbey's Home
1. Facts
The magistrate judge found the following facts at
the suppression hearing. The DEA investigation that led to
the arrests in this case was focused on a controlled buy of
marijuana by the informant DeCastro from Whitman and Camyre,
with Britt and Rohan acting as middlemen. It was only one
day before the scheduled Whitman/Camyre buy that DEA agents
learned that Rohan had another source, Robert Wihbey. Late
in the afternoon of Friday, November 22, 1991, Rohan told the
informant DeCastro that he had an unnamed source that could
deliver 250 pounds of marijuana. When DeCastro expressed his
interest in purchasing from both this new source and the
Whitman/Camyre source, Britt and Rohan drove DeCastro to the
Beekman Place condominiums in Agawam, Massachusetts.
DeCastro wore a transmitter, and was under audio and visual
surveillance by DEA special agent Sean McDonough and other
agents. Rohan parked the car, got out, and returned shortly
thereafter with a sample of marijuana for DeCastro's
approval. The agents were unable to discern, however, which
condominium unit Rohan had entered, nor did they learn the
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name of the new source. DeCastro approved the sample and he
and Rohan scheduled a 250 pound deal to take place at Rohan's
residence later that night.
Early that evening, DeCastro called Britt to
confirm the arrangements, but Britt stated that the delivery
would have to be postponed until 8:00 a.m. the following
morning, Saturday, November 23, 1991. The following day,
Britt and Rohan met DeCastro and brought him to a house
(owned by Wihbey, but not used as his residence) at 30 Arden
Street in Springfield, Massachusetts. There, DeCastro
examined ten pounds of marijuana, and was told by Wihbey's
associate, Michael Weiner, that there were thirty more pounds
in Weiner's car. Weiner advised the buyers that the rest of
the marijuana would be produced in increments after the cash
for the first forty pounds was delivered to the source.
DeCastro said he had to get his "money man," but he returned
instead with special agent McDonough, followed by a number of
DEA agents. Britt, Rohan, and Weiner were arrested inside
the Arden Street house at about 11:00 a.m.; the DEA still had
not learned the identity of the source (Wihbey) or his unit
number at Beekman Place.
Britt, Rohan, and Weiner promptly agreed to
cooperate with the DEA agents, and by 11:15 one or more of
them had disclosed that Wihbey was the source and that he
lived at 33 Beekman. At the hearing, agent McDonough
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conceded that at this point he had probable cause to arrest
Wihbey and search 33 Beekman. Nonetheless, McDonough had
doubts about the credibility of the three arrestees and
decided to interview them individually at DEA headquarters;
these interviews began at 11:30 that morning. Agent
McDonough determined that the cooperating defendants were
credible, and based on information they provided, that Wihbey
would grow suspicious if Weiner did not return promptly with
$68,000 or call to explain the delay. At about the same
time, roughly noon, McDonough was also concerned with setting
up the controlled buy from Whitman and Camyre. McDonough
directed Britt to contact Whitman or Camyre, and the second
deal was set up for 3:00 that same afternoon. Thus,
McDonough was involved to some extent with setting up the
Whitman/Camyre buy at the same time that he was preparing to
arrest Wihbey.
Because it was Saturday, McDonough believed that
application for a warrant to arrest Wihbey in his home might
take as long as several hours, and that quick action was
necessary because Wihbey's growing suspicion might motivate
him to flee or destroy evidence. At approximately 12:45
p.m., the DEA established surveillance of Wihbey's condo, and
at 1:00 p.m. Weiner and Rohan entered, followed by special
agent McDonough and other agents who "secured the apartment."
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Wihbey was found lying on the basement floor behind a pool
table, with a loaded pistol a few feet away.
Agent McDonough placed Wihbey under arrest and
advised him of his rights. McDonough then told Wihbey that
they had no search warrant, but would get one if needed; he
asked Wihbey to show the agents where he had marijuana and
guns. Wihbey agreed, and during the ensuing search the
agents found 1200 grams of marijuana (about 2.7 pounds, which
McDonough characterized as "personal use" marijuana) and some
marijuana paraphernalia. Agent McDonough sought Wihbey's
cooperation, asking him to name his source. Wihbey said that
he would not give McDonough the name of the "guy above me"
because he was a personal friend, but he would give the name
of the "guy above him." Agent McDonough declined Wihbey's
offer of partial cooperation.
2. Analysis
The Constitution requires that police normally
obtain a warrant before entering a person's home to make an
arrest. Payton v. New York, 445 U.S. 573, 590 (1980). The
government says, however, that in this case "exigent
circumstances" excused the warrantless entry. In determining
whether an exigency justifies a warrantless search and
seizure, the test is "whether there is such a compelling
necessity for immediate action as will not brook the delay of
obtaining a warrant." United States v. Wilson, 36 F.3d 205,
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209 (1st Cir. 1994) (quoting United States v. Adams, 621 F.2d
41, 44 (1st Cir. 1980)). Exigency determinations are
generally fact-intensive and thus must be made on a case-by-
case basis. See United States v. Donlin, 982 F.2d 31, 34
(1st Cir. 1992), in our past holdings, exigent circumstances
have commonly included: (1) "hot pursuit" of a felon; (2)
threatened destruction of evidence; (3) risk that the suspect
may flee undetected; and (4) danger to the safety of the
public or the police. See United States v. Tibolt, No. 94-
2221, slip op. at 8 (1st Cir. Dec. 29, 1995). Exigency must
be assessed in light of the totality of the circumstances.
United States v. Veillette, 778 F.2d 899, 902 (1st Cir.
1985), cert. denied, 476 U.S. 1115 (1986).
We defer to the district court's findings of the
underlying facts unless clearly erroneous, but we afford
plenary review to the district court's legal analysis and
ultimate conclusion. Tibolt, slip op. at 8-9; United States
v. Curzi, 867 F.2d 36, 42 (1st Cir. 1989). We find clear
error only if, after reviewing all the evidence, we are left
with "the definite and firm conviction that a mistake had
been committed." United States v. Rust, 976 F.2d 55, 57 (1st
Cir. 1992).
The magistrate judge who conducted the suppression
hearing characterized this as a "borderline case," but
nonetheless denied the motion to suppress. The magistrate
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judge found that Wihbey had consented to a search of his
condominium after he had been arrested. Thus the critical
issue was whether the entry to arrest was justified by
exigent circumstances.
The magistrate judge determined that circumstances
were exigent based upon the following five "factors." First,
it was reasonable for the DEA agents to choose not to prepare
part or all of a warrant on the day before the arrest, as
they did not know whom they were to arrest or, with requisite
particularity, where the arrestee lived. Second, it would
have taken "substantially more than two hours" to obtain a
warrant at the relevant time, Saturday morning or early
afternoon. Third, it was reasonable for agent McDonough to
bring Britt, Rohan, and Weiner to DEA headquarters for
further debriefing before seeking a warrant or taking other
action. Fourth, it was reasonable for the agents to conclude
that there was a compelling necessity for immediate action,
based on the likelihood that Wihbey would grow suspicious of
the delay in Weiner's return, causing Wihbey to flee or
conceal or destroy evidence. Fifth, the DEA agents' plans
for a second controlled buy from Camyre and Whitman later
that afternoon did not precipitate the decision to arrest
Wihbey without a warrant. Wihbey objected to the magistrate
judge's report and recommendation, but the district court
adopted the report and denied the motion to suppress.
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Before reviewing the ruling below, we narrow the
issues because Wihbey has forfeited some of his Fourth
Amendment arguments by failing to press his objections
below.1 Wihbey's challenge to the suppression ruling is
therefore limited to those issues that he specifically raised
in his objection to the magistrate judge's report and
recommendation. We ignore Wihbey's attempt to "generally
object" to the magistrate judge's report, as well as his
attempt to incorporate by reference the arguments made in his
pre-hearing memorandum. Wihbey made two objections with
sufficient specificity: (1) the magistrate judge erred in
determining that it was reasonable for the agents to delay
preparing for a warrant application until Saturday morning
when they learned Wihbey's name and address, and (2) the
magistrate judge erred in determining that there was a
compelling necessity for immediate action, because the
exigency was created by the agents' investigative strategy.
We note that Wihbey did not object to any of the magistrate
judge's proposed findings of the underlying facts, but only
1. Rule 3(b) of the Rules for United States Magistrates in
the United States District Court for the District of
Massachusetts requires a party who objects to a magistrate
judge's findings and recommendations to identify specifically
the objectionable portions of the proposed findings and
recommendations and to state the basis for objection. The
magistrate judge's report contained a clear warning about
this rule, advising Wihbey that failure to comply would
preclude appellate review, citing United States v. Valencia-
Copete, 792 F.2d 4, 6 (1st Cir. 1986) (approving such a local
rule). See also 28 U.S.C. 636(b)(1).
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to the reasonableness of the agents' actions and whether the
facts constituted exigent circumstances. In particular,
Wihbey did not object to the finding that Wihbey consented to
the search after he was arrested; thus the issue before us is
whether the warrantless arrest was justified by exigent
circumstances. In any event, we find no error, let alone
clear error, in the magistrate judge's findings as to the
underlying facts. As to the forfeited arguments that Wihbey
now raises, we find that none of the asserted errors rises to
the level of plain error which might justify reversal. See
United States v. Olano, 113 S. Ct. 1770, 1776-1779 (1993).
a. Should the agents have started a warrant
application earlier?
Contrary to his assertion on appeal, Wihbey's right
to be free from unreasonable searches and seizures did not
impose a duty on the investigating agents to begin preparing
for a warrant prior to the arrest and interrogation of
Weiner, Britt, and Rohan on Saturday morning. The DEA agents
did not learn Wihbey's name or which condominium unit he
lived in until Saturday morning. Moreover, prior to Weiner's
arrest, the agents could not be sure whether Wihbey would be
at his condo or some other place, nor was there any assurance
that the suspects to be arrested would cooperate and provide
that crucial information. The DEA agents were not obligated
to prepare a warrant application in advance merely because it
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might have been foreseeable that the contemplated arrest of
Britt and Rohan would lead the agents to the source of the
marijuana. See United States v. Cresta, 825 F.2d 538, 553
(1st Cir. 1987) ("Although probable cause existed some time
prior to the arrests, this does not negate the rise of
exigent factors."; "Unforeseeability has never been
recognized as an element of the exigent circumstances
exception . . . ."), cert. denied, 486 U.S. 1042 (1988). We
therefore reject Wihbey's first basis for objection.
b. Were the circumstances exigent?
The magistrate judge credited agent McDonough's
statement that he had doubts about the credibility of Britt,
Rohan, and Weiner, and that it was reasonable to interview
them in further detail before proceeding against Wihbey.
Therefore, it was only sometime after 11:30 a.m., about three
hours after the marijuana buy had begun, that McDonough faced
the crucial decision whether he had time to obtain a warrant.
The magistrate judge also relied on McDonough's testimony in
finding that (1) it would take substantially longer than two
hours to obtain a warrant and (2) that McDonough's decision
to forego a warrant was not motivated by his desire to press
ahead with the investigation of Whitman and Camyre. Wihbey
did not specifically object to those recommended findings,
and even if he had, those findings are not clearly erroneous
in light of all the circumstances. Because of the delay in
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Weiner's return to Wihbey, and Weiner's statement that Wihbey
would be growing suspicious, we agree with the magistrate
judge and the district court that the agents reasonably
feared that Wihbey would flee, or conceal or destroy
marijuana evidence before a warrant could be obtained.
It is well established that government agents must
act reasonably, based on the objective facts available, when
deciding that a warrantless entry is justified: "Whether the
basis for such authority exists is the sort of recurring
factual question to which law enforcement officials must be
expected to apply their judgment; and all the Fourth
Amendment requires is that they answer it reasonably."
Illinois v. Rodriguez, 497 U.S. 177, 186 (1990). We agree
with the magistrate judge and the district court that it was
reasonable for the agents in this case to judge the
circumstances exigent and to take action accordingly.
Although he did not raise the argument below,
Wihbey now argues that his suspicion could have been allayed
-- and the exigency averted -- by a phone call from Weiner
assuring him that all was well. While that may be true, it
does not alter our conclusion. It was well within the
reasonable professional judgment of the agents to choose not
to jeopardize a continuing investigation by taking measures,
such as a phone call, that might (or might not) alleviate the
exigency. The telephone call might have had the opposite
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effect, heightening Wihbey's suspicion, and inducing him to
immediately flee, or destroy or conceal evidence.
We also reject Wihbey's argument that the exigency
was created by the DEA agents' investigative strategy. The
need for quick action arose upon the agents' determination
that arrestees Rohan, Britt, and Weiner had provided reliable
information about Wihbey and that he would be suspicious
because of any further delay in getting back to him. We
accept the magistrate judge's finding that the timing of the
second controlled buy did not drive the agents' decision to
forego a warrant. And, as we have said, the agents had no
duty to prepare a warrant application before the arrest of
Rohan and Weiner nor to attempt to allay Wihbey's suspicion
with a phone call. Wihbey argues that the agents could have
established surveillance of his condominium, without entry,
to prevent Wihbey's flight, but that would not have prevented
the destruction of evidence within. We see nothing about the
agent's investigative strategy that created the exigency.
This is not a situation where the agents deliberately created
the exigent circumstances. The agents had no choice but to
respond promptly once they learned that Wihbey was at his
condominium, undoubtedly growing suspicious as he awaited the
overdue proceeds of the busted transaction. See United
States v. Cresta, 825 F.2d at 553.
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For the foregoing reasons, we affirm the denial of
Wihbey's motion to suppress.
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B. Improper Arguments by the Prosecutor
B. Improper Arguments by the Prosecutor
Wihbey and Whitman seek a new trial because, they
claim, the prosecutor in closing argument commented upon
their failure to testify, shifted the burden of proof to
them, and vouched for the government's witnesses.
1. Comment on Failure to Testify and Attempt to
Shift the Burden of Proof
Wihbey and Whitman contend that the following
remark (hereafter "Comment One"), made during the
government's summation, was an improper comment on their
failure to testify:
What I would like to do, however, is
talk to you for a few minutes about the
three specific charges that are contained
in the indictment . . . .
The first one, and I would suggest
to you the most important one, is the
conspiracy count and that conspiracy
count lists, as you know, six different
persons -- four of them you heard from --
Mr. Britt, Mr. Rohan, Mr. Weiner, Mr.
Wihbey and Mr. Whitman and Mr. Camyre.
You've heard from all of those witnesses
except for obviously the two Defendants
who have now been charged.
(emphasis added).
Wihbey asserts that a second remark ("Comment Two")
was also an improper comment on his failure to testify as
well as an attempt to shift the burden of proof to him. The
prosecutor recounted Wihbey's post-arrest statement to DEA
special agent McDonough that Wihbey would not turn in his
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source because he was Wihbey's friend, but that he would give
the name of the friend's source. Then the prosecutor said:
Now, if Mr. St. Clair [Wihbey's
lawyer] can stand up and explain away
that conversation to you, then you should
let Bob Wihbey walk out of here with a
verdict of acquittal. But he can't do
that, ladies and gentlemen, because that
is not a conversation that an innocent
man, who's been falsely accused, would
have under those circumstances.
There's just no other explanation
except the one that's been provided from
the witness stand by the eight witnesses
called by the government.
(emphasis added).
At the end of the prosecutor's summation, during
which the prosecutor made Comments One and Two, Wihbey's
lawyer asked to approach the bench, but the trial judge
ordered him instead to "move on with it for now." Wihbey's
lawyer therefore proceeded with his closing argument;
Whitman's lawyer followed. After the prosecutor's rebuttal,
Wihbey and Whitman both moved for a mistrial, citing Comment
One as an improper comment on their failure to testify, and
citing as improper a third comment. We assume arguendo that
defense counsel's attempt to approach, coupled with specific
mention in the mistrial motion, was a sufficient objection to
Comment One to preserve the issue for appeal. We consider
Wihbey's failure to mention Comment Two in the motion for
mistrial, however, as a failure to object; therefore if there
was an error in Comment Two, the error was forfeited and is
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reviewed for plain error only. See Olano, 113 S. Ct. at
1776-1779.
Comment by a prosecutor on a defendant's failure to
testify violates the Fifth Amendment guarantee against self-
incrimination. Griffin v. California, 380 U.S. 609, 615
(1965). A court determines if a prosecutor's remarks violate
Griffin by asking "whether, in the circumstances of the
particular case, the language used was manifestly intended or
was of such a character that the jury would naturally and
necessarily take it to be a comment on the failure of the
accused to testify." United States v. Akinola, 985 F.2d
1105, 1111 (1st Cir. 1993) (quoting United States v. Glantz,
810 F.2d 316, 322 (1st Cir.), cert. denied, 482 U.S. 929
(1987)). If we find that a prosecutor has violated Griffin,
we then review for harmless error. United States v. Hasting,
461 U.S. 499, 508-12 (1983) (applying the constitutional
harmless error analysis established in Chapman v. California,
386 U.S. 18, 24 (1967)). In Chapman, the Supreme Court
stated that a prosecutorial comment on the failure of the
accused to testify would not require reversal if the State
could show "beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained."
386 U.S. at 24. The Supreme Court clarified the Chapman
constitutional harmless error standard in Sullivan v.
Louisiana, 113 S. Ct. 2078, 2081 (1993), explaining that the
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inquiry is "not whether, in a trial that occurred without
error, a guilty verdict surely would have been rendered, but
whether the guilty verdict actually rendered in this trial
was surely unattributable to the error." (emphasis in
original).
A very different standard is applied when a party
forfeits an error by failing to make a contemporaneous
objection, as Wihbey did with respect to Comment Two. In
that case, we have the discretion to reverse only for "plain
error," i.e., error that is "clear" and "obvious" and that
was "prejudicial" to the defendant in that it "affected the
outcome of the District Court proceedings."2 Olano, 113 S.
Ct. at 1777-78. And, we exercise that discretion only if the
plain forfeited error seriously affects the fairness,
integrity, or public reputation of judicial proceedings; an
example of such an error is one that causes the conviction of
an actually innocent defendant. Id. at 1779.
As to Comment One, we find, first, that the
prosecutor did not "manifestly intend" to comment on the
defendants' failure to testify. See Akinola, 985 F.2d at
2. After stating that a forfeited error was prejudicial if
it affected the outcome of the proceedings, the Supreme Court
in Olano stated: "There may be a special category of
forfeited errors that can be corrected regardless of their
effect on the outcome . . . ." The Court also adverted,
without specificity, to a class of errors "that should be
presumed prejudicial if the defendant cannot make a specific
showing of prejudice." 113 S. Ct. at 1778.
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1111. The context of the comment indicates that the
prosecutor intended to list the six persons charged in the
conspiracy count and to remind the jury that they had heard
from four of the six. But, apparently by mistake, he named
Wihbey and Whitman among those who testified. The challenged
comment appears to be an unartful attempt to correct that
mistake, by reminding the jury that "of course" the
defendants did not testify. Second, based on the context, we
find that the jury would not "naturally and necessarily take
[the remark] to be a comment on the failure of the accused to
testify." See id. We think it likely that the jury took the
comment the same way we do, as an attempt to clarify a slip
of the tongue. By saying "of course [the defendants did not
testify]," the prosecutor just as plausibly has reminded the
jury that the defendants' silence was to be expected, i.e.,
that it is natural for a defendant to exercise his Fifth
Amendment right. The remark does not necessarily imply that
the jury should draw any negative inference from the failure
to testify. "A court should not lightly infer that a
prosecutor intends an ambiguous remark to have its most
damaging meaning or that a jury, sitting through lengthy
exhortation, will draw that meaning from the plethora of less
damaging interpretations." United States v. Lilly, 983 F.2d
300, 307 (1st Cir. 1992) (quoting Donnelly v. DeChristoforo,
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416 U.S. 637, 647 (1974)). Accordingly, we hold that Comment
One was not a Griffin violation.
In contrast to Comment One, we find Comment Two to
be effectively a comment on Wihbey's failure to testify, and
that the jury likely understood it that way. Also, the
comment impermissibly suggested that Wihbey bore the burden
of proof. See United States v. Skandier, 758 F.2d 43, 45-46
(1st Cir. 1985) (holding that a "how-does-counsel-explain"
argument is a Griffin violation and an impermissible shift of
burden of proof). Wihbey, however, forfeited this error by
failing to object or raise it as grounds for mistrial.3
Although it was improper, Comment Two does not rise to the
level of "plain error" under the Olano standard. 113 S. Ct.
at 1776-79.
In light of all the circumstances, we do not
believe that the comment affected the outcome or "seriously
affected the fairness, integrity, or public reputation of
judicial proceedings."4 Id. at 1779. First, the judge gave
3. We recognize that, after the prosecutor's summation,
Wihbey's lawyer asked "Your honor, may I approach sidebar?"
We must assume he intended to object to the prosecutor's
remarks. The judge told counsel to move on with his closing
argument. Upon being rebuffed, counsel did not state an
objection or press further the request to approach. In any
event, counsel had the opportunity to raise Comment Two as
grounds for mistrial, but specified only Comments One (and
Comment Three, which we discuss further on).
4. This improper remark by the prosecutor is not in the
class of forfeited errors adverted to in Olano, 113 S. Ct. at
1778, which are presumed to be prejudicial without regard to
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a strong instruction on the defendants' right not to testify
and the government's burden of proof.5 Second, there was
their affect on the outcome. Indeed, if Wihbey had objected
and preserved the error, it would be subject to harmless
error review, which of course focuses on the effect of the
error on the outcome. See United States v. Hasting, 461 U.S.
499, 508-12 (1983).
5. The relevant portions of the jury instruction follow:
The law presumes a defendant to be
innocent of a crime. Thus, a defendant,
although accused, begins the trial with a
clean slate, with no evidence against
him.
. . . .
The presumption of innocence alone
is sufficient to acquit a defendant . . .
.
. . . .
The burden is always upon the
prosecution to prove guilt beyond a
reasonable doubt.
Now I told you two or three times
during this trial that the Defendants
have a constitutional right not to
testify or offer any evidence on their
behalf. If any counsel stated during
final argument that the Defendant did not
testify in an attempt to impugn that's
wrong and something might be wrong with
them, I urge you now to completely ignore
it and disregard it.
The law is clear a defendant never
has the burden of proving his innocence,
for the law never imposes upon a
defendant in a criminal case the burden
or duty of calling any witnesses or
producing any evidence. The Government
has the burden of proving to you beyond a
reasonable doubt that the Defendants are
guilty of the crimes charged. This
burden of proof rests upon the Government
and it never shifts to the Defendants.
. . . .
As I told you, the Government has
the burden of proving guilt of the
Defendant beyond a reasonable doubt.
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23
significant (but admittedly not overwhelming) evidence of
Wihbey's guilt, enough that we find it unlikely that any
negative inference drawn from his failure to testify tipped
the scale from "not guilty" to "guilty." The evidence
against Wihbey included co-conspirator testimony, police
surveillance of pre-transaction marijuana sampling at
Wihbey's condo complex, Wihbey's ownership of the house where
the forty-pound transaction took place, marijuana and
paraphernalia seized from Wihbey's condo, and Wihbey's
incriminating post-arrest statement. Given the curative
instruction and the evidence of guilt, we are not convinced
that the improper remark constituted plain error.
2. Witness Vouching
Wihbey and Whitman contend that the prosecutor, in
his rebuttal, improperly vouched for the accomplice witnesses
who testified under their plea agreements. The prosecutor
That burden remains with the Government
throughout the entire trial and never
shifts to the Defendant.
Accordingly, if either of the
Defendants has not testified in this
case, and neither have testified in this
case, you are not to attach any
significance to this fact, and you may
not in any way consider this against
eitheroftheDefendantsinyourdeliberations.
. . . .
And further, you should bear in mind
that the law never imposes upon a
defendant in a criminal case the burden
or duty of calling any witnesses or
producing any evidence.
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24
analogized the trial evidence to a "mosaic" made up of many
"tiles" that were individually imperfect if closely
scrutinized, but which nonetheless would give a clear picture
if viewed as a whole. After making that analogy, the
prosecutor made the challenged comment ("Comment Three"):
None of these witnesses are perfect.
None of them have perfect memories.
But what they have done is testified
to you truthfully about what they knew,
and despite the fact that there are some
imperfections in their testimony, if you
take a step back from that individual
tile, you will see that the Britt tile
[government witness] and the Rohan
[government witness] tile go hand in
hand.
(emphasis added). There was no immediate objection. But two
sentences later, the prosecutor ended his rebuttal, the judge
excused the jury for lunch, and the defendants moved for a
mistrial, arguing that this comment was improper witness
vouching. The question is close whether the defendants have
preserved the issue for appeal. Compare United States v.
Sepulveda, 15 F.3d 1161, 1186-87 (1st Cir. 1993) (where
defendant did not object or raise improper prosecutorial
argument until motion for mistrial after conclusion of
summations, error forfeited and reviewed for plain error
only), cert. denied 114 S. Ct. 2714 (1994), with United
States v. Mandelbaum, 803 F.2d 42, 43 (1st Cir. 1986)
(objection made after closing arguments was timely enough to
preserve error for appeal, although it "should have been made
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25
earlier) and United States v. Levy-Cordero, 67 F.3d 1002,
1008 n.6 (1st Cir. 1995) (objection after arguments
sufficient to preserve issue for appeal where parties had
agreed not to object during arguments). For the sake of
argument, we will treat the issue as preserved for appeal as
if a contemporaneous objection had been lodged.
An improper argument to the jury that does not
implicate a defendant's constitutional rights, such as the
witness vouching that occurred here, constitutes reversible
error only where the prosecutor's remarks were both
inappropriate and harmful. See id. at 1008. Improper
statements during closing argument are considered harmful if,
given the totality of the circumstances, they are likely to
have affected the trial's outcome.6 Id. (citing United
6. Prosecutorial arguments that implicate a constitutional
right of the accused are reviewed under a higher standard
than arguments that are improper, but not unconstitutional.
See Steven A Childress and Martha S. Davis, Federal Standards
of Review 11.23 (2d ed. 1992). We have repeatedly held
that an "inappropriate" comment is not a reversible error
unless it is likely to have affected the outcome of the
trial. See, e.g., United States v. Cartagena-Carrasquillo,
70 F.3d 706, 713 (1st Cir. 1995); United States v. Levy-
Cordero, 67 F.3d 1002, 1008 (1st Cir. 1995); United States v.
Ovalle-M rquez, 36 F.3d 212, 220 (1st Cir. 1994), cert.
denied, 115 S. Ct. 947 (1995); United States v. Manning, 23
F.3d 570, 574 (1st Cir. 1994).
The Supreme Court, however, has held that a comment
on the failure of the accused to testify is a constitutional
violation, without inquiry as to its affect on the outcome.
Griffin v. California, 380 U.S. 609, 615 (1965). Indeed, a
Griffin comment is a reversible error unless the government
can persuade the appellate court that it was harmless, i.e.,
did not affect the outcome. See United States v. Hasting,
461 U.S. 499, 507-09 (1982); Chapman v. California, 386 U.S.
-26-
26
States v. Manning, 23 F.3d 570, 574 (1st Cir. 1994)). In
making that determination, we focus on (1) the severity of
the prosecutor's misconduct, including whether it was
deliberate or accidental; (2) the context in which the
misconduct occurred; (3) whether the judge gave curative
instructions and the likely effect of such instructions; and
(4) the strength of the evidence against the defendants. Id.
Although the prosecutor's statement that "what they
have done is testify truthfully" was inappropriate, our
consideration of these factors leads us to conclude that it
was not harmful. First, the witness vouching here was not,
on balance, severe. The prosecutor did not express his
personal opinion about the witnesses' veracity, see United
States v. Mejia-Lozano, 829 F.2d 268, 273 (1st Cir. 1987);
18, 26 (1967).
It appears that this court has on occasion treated
Griffin comments like other improper comments, affirming
convictions where the panel found it unlikely that the
comments affected the outcome. See, e.g., United States v.
Glantz, 810 F.2d 316, 320 (1st Cir.), cert. denied, 482 U.S.
929 (1987); United States v. Cox, 752 F.2d 741, 744 (1st Cir.
1985). These cases may overstate the defendant's burden in
demonstrating a Griffin violation.
It is clear that a comment on the failure of the
accused to testify is a constitutional error, and the burden
rests with the government to show the error harmless beyond a
reasonable doubt, not with the defendant to show the comment
was harmful. See, e.g., Hasting, 461 U.S. at 507-09;
Chapman, 386 U.S. at 26.
On the other hand, in cases where defendants have
challenged non-constitutional inappropriate comments, the
burden rests with the defendant to show that the comment was
harmful, i.e., that "under the totality of the circumstances
they affected the trial's outcome." See Cartagena-
Carrasquillo, 70 F.3d at 713; Levy-Cordero, 67 F.3d at 1008.
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27
nor did the prosecutor suggest that he had special knowledge
about the witnesses' credibility, or that special
circumstances such as an oath or a plea agreement ensured the
witnesses' honesty, see Manning, 23 F.3d at 572, 575. The
purpose of the "mosaic" analogy and the vouching comment was
to concede the existence of imperfections and inconsistencies
in the accomplices' testimony, and to argue that those
inconsistencies did not indicate dishonesty or fabrication.
Although the witness vouching seems to have been intentional,
in that it was part of a clearly planned oration, it was
fairly mild and barely crossed the line of impropriety. See
United States v. Oreto, 37 F.3d 739, 746 (1st Cir. 1994)
(prosecutor's argument that "nobody lied" was "mild vouching,
essentially harmless"), cert. denied, 115 S. Ct. 1161 (1995);
United States v. Innamorati, 996 F.2d 456, 483 (1st Cir.)
(stating that the line between proper argument that a witness
is credible and improper vouching is "often hazy"), cert.
denied, 114 S. Ct. 409 (1993). The context in which the
vouching occurred has aspects that suggest harmfulness, and
aspects that cut the other way. On the one hand, the final
lines of the prosecutor's rebuttal are thought to leave a
lasting impression on the jury. See Manning, 23 F.3d at 575.
On the other hand, the vouching was to some extent a fair
response to the thrust of the defense summation, which
emphasized that the accomplices were liars and that they were
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28
exaggerating, coloring their testimony, and telling the
government what they wanted to hear. See Mejia-Lozano, 829
F.2d at 268, 274 (prosecutor given "greater leeway" where
vouching was "in response to defense counsel's inflammatory
statements").
The judge gave a strong and specific curative
instruction.
Statements and arguments of counsel
are not evidence in the case . . . .
If any attorney in the case in
closing arguments stated to you that my
clients or my witnesses told the truth,
ignore it. It's what you determine from
the witnesses and the evidence in the
case, from the point of view of deciding
facts, that will control the credibility
of all witnesses; it will be for you and
only for you to determine.
Although the curative instruction was not contemporaneous,
the defendants did not object to the witness vouching until
after the prosecutor finished his rebuttal and the jury was
excused for lunch. The earliest opportunity for the judge to
give a curative instruction was during the final charge. We
normally presume that a jury will follow an instruction to
disregard inadmissible evidence or an improper argument. See
Greer v. Miller, 483 U.S. 756, 766 n.8 (1987). We find it
likely that this forceful instruction effectively neutralized
the vouching that occurred here.
Finally, the evidence against Wihbey and Whitman
was sufficiently strong for us to conclude, after considering
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29
the totality of circumstances, that the vouching was unlikely
to affect the outcome of the trial. As noted in our earlier
analysis of Comment Two, the evidence against Wihbey was
substantial. The evidence against Whitman was even stronger;
it included the testimony of his accomplices Britt, Rohan,
Camyre, and Brandt, pre-arrest tape recorded conversations
where Whitman's accomplices explicitly discussed Whitman's
role in the marijuana distribution plans, and testimony by
DEA agents about Whitman's post-arrest cooperation and
statements that made his role in a planned marijuana
transaction rather clear. We therefore conclude that the
vouching in this case did not constitute reversible error.
3. Motions for Mistrial and New Trial
We recognize that several incidents of
prosecutorial misconduct, none of which would separately
constitute grounds for mistrial, could have a cumulative
impact on the jury sufficient to affect the trial's outcome.
We review a trial judge's ruling on a motion for a mistrial,
or for a new trial, only for abuse of discretion. United
States v. Barbioni, 62 F.3d 5, 7 (1st Cir. 1995) (motion for
mistrial); Glantz, 810 F.2d at 320 & n.2 (motion for new
trial because of improper argument). Although the Assistant
United States Attorney in this case exceeded the permissible
limits of proper argument, we cannot say that his action was
deliberate and we do not believe that the closing arguments,
-30-
30
viewed collectively, affected the outcome or the fairness of
this trial. For the reasons set forth in our review of the
challenged comments, we hold that the trial judge did not
abuse his discretion in denying the defendants' motions for a
mistrial and for a new trial.
-31-
31
C. Single Conspiracy vs. Multiple Conspiracies
C. Single Conspiracy vs. Multiple Conspiracies
The jury convicted both Wihbey and Whitman under
Count I of the indictment, which charged a single marijuana
distribution conspiracy among six persons (the two defendants
along with Britt, Rohan, Weiner, and Camyre). Wihbey and
Whitman argue that the evidence was insufficient to allow the
jury to find a single conspiracy, and that the evidence
showed instead two separate conspiracies.
The framework for analyzing when a variance between
the conspiracy charged and the conspiracy proven constitutes
reversible error was set forth in United States v. Glenn:
(1) Is the evidence sufficient to permit
a jury to find the (express or tacit)
agreement that the indictment charges?
(2) If not, is it sufficient to permit a
jury, under a proper set of instructions,
to convict the defendant of a related,
similar conspiracy? (3) If so [i.e., the
answer to (2) is yes], does the variance
affect the defendant's substantial rights
or does the difference between the
charged conspiracy and the conspiracy
proved amount to "harmless error?"
828 F.2d 855, 858 (1st Cir. 1987). Put differently, "[s]o
long as the statutory violation remains the same, the jury
can convict even if the facts are somewhat different than
charged -- so long as the difference does not cause unfair
prejudice." United States v. Twitty, No. 95-1056, slip op.
at 3 (1st Cir. Dec. 28, 1995) (citing Glenn, 828 F.2d at
858).
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32
This court has recognized at least three ways in
which such a variance might "affect the substantial rights"
of the accused. United States v. Sutherland, 929 F.2d 765,
772-73 (1st Cir.), cert. denied, 503 U.S. 822 (1991). First,
a defendant may receive inadequate notice of the charge
against him and thus be taken by surprise at trial. Id.
Second, a defendant may be twice subject to prosecution for
the same offense. Id. Third, a defendant may be prejudiced
by "evidentiary spillover": the "transference of guilt" to a
defendant involved in one conspiracy from evidence
incriminating defendants in another conspiracy in which the
particular defendant was not involved. Id.
The question whether a given body of evidence is
indicative of a single conspiracy, multiple conspiracies, or
no conspiracy at all is ordinarily a matter of fact; a jury's
determination in that regard is subject to review only for
evidentiary sufficiency. United States v. David, 940 F.2d
722, 732 (1st Cir.), cert. denied, 502 U.S. 989 (1991), et
al.. In reviewing the sufficiency of the evidence, we take
the evidence in the light most favorable to the verdict. Id.
at 730. We review de novo the question whether a variance
affected a defendant's substantial rights. United States v.
Arcadipane, 41 F.3d 1, 6 (1st Cir. 1994).
Wihbey and Whitman assert that the evidence was
insufficient "to demonstrate that all of the alleged co-
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33
conspirators directed their efforts towards the
accomplishment of a common goal or overall plan." United
States v. Drougas, 748 F.2d 8, 17 (1st Cir. 1984). But we
find it unnecessary to engage in that factual inquiry; we
shall assume for the sake of argument that the evidence was
insufficient to convict either Wihbey or Whitman of the
charged single conspiracy, satisfying the first part of the
tripartite Glenn framework. See 828 F.2d at 858. Wihbey and
Whitman properly concede, however, that the evidence was
sufficient to prove that each participated in a related
similar, but smaller, conspiracy, and their arguments jump
directly from the first prong to the third (prejudice) prong.
Specifically, they concede that the evidence was sufficient
for a rational juror to find agreements to traffic in
marijuana among (1) Wihbey, Weiner, and Rohan,7 and (2)
Whitman, Camyre, Britt, and Rohan. Thus, the second prong of
Glenn is satisfied. See id. Wihbey and Whitman argue,
however, for a new trial because the variance between the
single conspiracy charged and the multiple conspiracies
proven was prejudicial to them because of evidentiary
spillover. We therefore proceed to Glenn's third prong,
making two assumptions. We assume first that the evidence
7. Although Britt was arrested along with Weiner and Rohan
during the Wihbey-supplied transaction at Wihbey's Arden
Street house, Britt is not included in this first group
because we are assuming arguendo that there were two separate
conspiracies.
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34
was insufficient to prove the single conspiracy charged, and
second, as the defendants concede and as ample evidence
supports, that there were two separate conspiracies: (1)
Wihbey agreeing to sell 250 pounds of marijuana to Rohan,
with Weiner acting as Wihbey's agent, and (2) Whitman and
Camyre agreeing to sell Britt and Rohan thirty-seven pounds
of marijuana obtained from Brandt. Even if the assumed
variance existed between the conspiracy charged and the proof
at trial, it did not prejudice either Wihbey or Whitman, and
it was therefore harmless under the Glenn framework. See
Glenn, 828 F.2d at 858. We explain.
Wihbey and Whitman argue that the variance was
prejudicial because there was "an improper imputation of
guilt" to each of them from the other's conspiracy. After
reviewing the trial record, we reject the claim of
prejudicial evidentiary spillover for the following reasons.
First, the defendants' briefs cite only two
specific instances of evidentiary spillover. One instance is
Britt's testimony that Rohan said he had a friend (implicitly
Wihbey) who could supply 250 pounds of marijuana. But
Rohan's statements about Wihbey do not spill over from
another conspiracy in which Wihbey did not take part; on the
contrary, the evidence clearly showed that Wihbey conspired
with Rohan. Therefore, Britt's testimony as to Rohan's out-
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35
of-court statement was admissible against Wihbey as a co-
conspirator statement under Federal Rule of Evidence
801(d)(2)(E), thus there was no "spillover" to Wihbey. And
as to Whitman, Rohan's statement is probative of the
agreement between Britt and Rohan and thus relevant to
proving the conspiracy between Britt, Rohan, Whitman, and
Camyre. The testimony was not "spillover" because the
evidence clearly showed that Whitman and Rohan were co-
conspirators, rendering the statement admissible against
Whitman under Fed. R. Evid. 801(d)(2)(E). Thus, as to both
Wihbey and Whitman, the cited statement by Rohan was relevant
and independently admissible without regard to the existence
of the larger conspiracy (which we are assuming arguendo was
not proven). See United States v. O'Bryant, 998 F.2d 21, 26
(1st Cir. 1993) (no spillover where evidence was relevant and
independently admissible).
The other cited instance of evidentiary spillover
was Britt's testimony that he and Rohan were "going to do a
separate deal" together (implicitly with Wihbey). That
statement might be fairly characterized as spillover as to
Wihbey, given our assumption that the evidence was
insufficient to tie Britt to the Wihbey-Rohan-Weiner
conspiracy. But, even if Wihbey had been given a separate
trial, the jury would have properly heard testimony about the
arrest of Britt and Rohan while buying marijuana from Wiener
-36-
36
in Wihbey's Arden Street house. Thus, it is hard to see how
there could be any marginal probative value in Britt's
statement that he and Rohan had planned to do that deal
together. And, once again, this testimony is not spillover
as to Whitman, against whom it would be relevant and
independently admissible, because the evidence showed that
Britt, Rohan, and Whitman were co-conspirators. Thus, the
defendants have identified only one specific instance of
evidentiary spillover, which we find harmless, and we will
not hypothesize the existence of other instances.
Second, the trial judge gave a jury instruction
that cautioned against using spillover evidence:8
In reaching your verdict, keep in mind
that guilt is both personal and
individual. Your verdict must be based
solely upon the evidence presented about
each Defendant. The case against each
Defendant stands or falls upon the proof
or lack of proof against that Defendant
alone. Your verdict as to one Defendant
should not influence your decision as to
the other Defendant.
The trial judge gave similar instructions again when charging
the jury on the elements of conspiracy and what evidence they
8. The judge also gave a multiple conspiracy instruction, to
the effect that the jury must acquit both defendants if it
found that the single conspiracy charged did not exist, even
if it found other conspiracies. Thus, the jury verdict can
be seen as an effective rejection of the multiple conspiracy
theory. See United States v. Sepulveda, 15 F.3d 1161, 1191
(1st Cir. 1993), cert. denied, 114 S. Ct. 2714 (1994).
However, we have assumed for the sake of analysis that the
evidence was insufficient to support that verdict, and we
have momentarily embraced the multiple conspiracy theory.
-37-
37
could consider as proof of a conspiracy. These instructions
were aimed at preventing evidentiary spillover, and we do not
readily assume that a jury disregards clear directions.
Greer, 483 U.S. at 766 n.8. The defendants did not request
any other instruction as to spillover, nor did they object to
this one.
Third, Wihbey's activities (and the evidence
thereof) were quite distinct from Whitman's; each separately
agreed to supply marijuana to a middleman (Rohan, at least,
and perhaps Britt) for resale to the informant DeCastro. The
question here is whether evidence about Wihbey and his
conspiracy spilled over to prejudice Whitman, or vice versa.
Assuming, as we are, two separate conspiracies, with the
Wihbey sale distinct from the Whitman sale, the defendants
have not explained how the jury could have found evidence
from one conspiracy to be particularly probative of the other
conspiracy. See United States v. Dworken, 855 F.2d 12, 24
n.24 (1st Cir. 1988) (evidence from separate conspiracies
unlikely to have spillover effect). We see little about the
fact that one of the defendants agreed to sell to Rohan that
makes it more likely that the other defendant also agreed to
sell to Rohan. All we are left with is the possibility that
some general, non-specific transference of guilt must have
occurred. The appellants have not pressed that argument, and
in any event we find such any such general transference of
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38
guilt in this case to be harmless under the totality of the
circumstances.
Wihbey also asserts that the variance was
prejudicial in that he was sentenced for the 250 pounds of
marijuana he agreed to sell Rohan rather than the forty
pounds actually delivered. We see no merit in that argument.
Drug quantity is not considered by the jury an element of
either the conspiracy or the possession count, but is rather
a matter for the district court to consider at sentencing.
See United States v. Campbell, 61 F.3d 976, 979-80 (1st Cir.
1995) (no specific quantity need be proven at trial; quantity
typically relevant only at sentencing stage). Moreover,
evidence of the 250 pound quantity was derived from the
smaller conspiracy of which Wihbey was clearly part, thus his
claim that his sentence was affected by the asserted variance
and some associated evidentiary spillover is particularly
difficult to fathom.
"To prevail on a claim of prejudicial spillover, a
defendant `must prove prejudice so pervasive that a
miscarriage of justice looms.'" United States v. Levy-
Cordero, 67 F.3d 1002, 1008 (1st Cir. 1995) (quoting United
States v. Pierro, 32 F.3d 611, 615 (1st Cir. 1994), cert.
denied, 115 S. Ct. 919 (1995)) (citations omitted). Because
Wihbey and Whitman have fallen far short of such a showing,
we conclude that any variance between the single conspiracy
-39-
39
charged and the conspiracy or conspiracies proven at trial
was not prejudicial to the defendants and is not grounds for
reversal.
D. Sentencing Issues
D. Sentencing Issues
Wihbey and Whitman both contend that the sentencing
judge made erroneous factual findings material to their
sentencing under the federal sentencing guidelines. For
sentencing purposes, the government must prove drug
quantities by a preponderance of the evidence. United States
v. Sepulveda, 15 F.3d 1161, 1198 (1st Cir. 1993). We review
the sentencing court's factfinding for clear error, id. at
1196, reversing only if, after reviewing all of the evidence,
we are left with the definite and firm conviction that a
mistake has been made. United States v. Rust, 976 F.2d 55,
57 (1st Cir. 1992).
1. Wihbey's Sentence: Drug Quantity
Wihbey asserts that the sentencing judge committed
clear error in determining the drug quantity for guideline
sentencing purposes. The commentary to the applicable
guideline provides:
In an offense involving negotiation to
traffic in a controlled substance, the
weight under negotiation in an
uncompleted distribution shall be used to
calculate the applicable amount.
However, where the court finds that the
defendant did not intend to produce and
was not reasonably capable of producing
the negotiated amount, the court shall
exclude from the guideline calculation
-40-
40
the amount that it finds the defendant
did not intend to produce and was not
reasonably capable of producing.
United States Sentencing Commission, Guidelines Manual,
2D1.1, comment. (n.12) (Nov. 1, 1994). The judge found the
applicable quantity of marijuana to be 250 pounds, the amount
Wihbey had agreed to sell to Rohan according to the testimony
of Wihbey's co-conspirators. Wihbey points out that only
forty pounds changed hands in the controlled buy and less
than three more pounds were found later in Wihbey's
condominium. As the guideline commentary suggests, we first
examine the evidentiary basis for determining that 250 pounds
was the negotiated amount, which as a general rule is the
applicable quantity, and then we examine whether the
exception to the general rule should have been applied.
The sentencing judge presided at trial and heard
and observed the testimony of all the witnesses, which we
find sufficient to support his drug quantity finding under
our deferential standard of review. Rohan testified that
Wihbey agreed to sell 250 pounds in fifty-pound increments.
Weiner also testified that the deal was "for something like
250 pounds." Rohan, Britt, and DeCastro discussed the 250-
pound purchase in their tape-recorded conversation. Britt
testified that Rohan said his source had 200 to 250 pounds
available, and the deal would go forward in fifty-pound lots.
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41
Wihbey argues that the testimony of these
cooperating co-conspirators was unreliable. Our observations
in United States v. Zuleta-Alvarez are applicable here:
In this case, there existed sufficient
indicia of reliability to avoid reversal
for clear error. First, the testimony .
. . relied upon by the sentencing judge
was all provided under oath . . . and was
corroborated by the many witnesses who
testified . . . . Moreover, the
sentencing judge was also the presiding
judge during the prior proceedings. Thus
the sentencing judge had the opportunity
to observe the testimony and cross-
examination of the various witnesses and
could thereby make an independent
assessment of their credibility.
922 F.2d 33, 36-37 (1st Cir. 1990), cert. denied, 500 U.S.
927 (1991). Based on the testimony at trial, the judge's
factual finding that the negotiated amount was 250 pounds was
not clearly erroneous.
In addition to challenging the evidentiary support
for the finding that the negotiated amount was 250 pounds,
Wihbey argues that there was insufficient evidence of his
intention and capability to deliver that amount. But that
argument misses the mark; it seems to be based on a
misreading of the directive of commentary note 12 to 2D1.1
of the guidelines.
We have interpreted application note 12
as directing that the amount of drugs
under negotiation must be considered in
determining the applicability of a
minimum mandatory penalty unless the
sentencing court supportably finds both
that the defendant did not intend to
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42
produce the additional quantity of
narcotics, and that he lacked the
capacity to do so.
United States v. Muniz, 49 F.3d 36, 42 (1st Cir. 1995)
(emphasis in original). In other words, as the plain
language of the guideline comment dictates, the negotiated
amount applies unless the sentencing judge makes a finding
that the defendant lacked the intent and the capability to
deliver.
Wihbey argued at the disposition hearing that
because only forty pounds were delivered and because he had
no prior record of drug-dealing, he therefore lacked the
capability and intent to deliver 250 pounds. But the
sentencing judge rejected Wihbey's argument, and expressly
found that Wihbey was capable of producing the 250 pounds;
the judge did not state the basis for that finding, however.
In our view, the co-conspirator testimony noted above about
the 250-pound deal is somewhat probative of Wihbey's intent
and capability to produce that amount. The fact that the DEA
did not find the remaining marijuana in Wihbey's condominium
does not prove that Wihbey was unable or did not intend to
deliver; obviously, he may have arranged to have the drugs
kept elsewhere, to be delivered to Arden Street as the deal
progressed. Consistent with the clear language of note 12 to
section 2D1.1 of the guidelines, the negotiated amount is the
applicable quantity unless Wihbey can show both "no intent"
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43
and "no capacity" to produce that amount. The sentencing
judge found that Wihbey failed to make that showing, and that
finding was not clearly erroneous.
2. Whitman's Sentence: Leadership Role
Whitman urges that the sentencing judge committed
clear error in finding that he had a leadership role over
Camyre justifying an enhancement under U.S.S.G. 3B1.1(c).
His argument is twofold: (1) the trial evidence was
insufficient to support the leadership finding, and (2)
Whitman's youth relative to Camyre and the other conspirators
indicates that Whitman was at most a "co-equal," not a
leader. The second argument is easily dismissed: although
age often correlates with one's organizational status, common
experience provides enough counterexamples to indicate that
there is little probative value in that correlation. As to
the first argument, the evidence in this case strongly
suggests that Whitman did play a leadership role. The
excerpts of Camyre's testimony cited in the government's
brief show that Camyre responded to Whitman's orders, that
Whitman set the timing of the planned transaction, and that
Camyre expected a smaller share of the profit than Whitman.
Whitman points to no evidence that suggests a non-leadership
role, other than his age relative to that of his co-
conspirators. The judge who presided at trial and at
sentencing is in the best position to make this factual
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finding. Our review of the record finds significant support
for the judge's finding, and there is certainly no clear
error.
IV.
IV.
CONCLUSION
CONCLUSION
For the foregoing reasons, the judgments and the
sentences are affirmed.
affirmed
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