United States Court of Appeals
For the First Circuit
No. 05-1315
UNITED STATES OF AMERICA,
Appellee,
v.
KURT ROBERSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Lipez, Circuit Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.
Martin F. Murphy, with whom Foley Hoag LLP was on brief, for
appellant.
Randall E. Kromm, Assistant United States Attorney with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
August 11, 2006
HOWARD, Circuit Judge. A jury convicted Kurt Roberson of
selling more than 50 grams of crack cocaine, see 21 U.S.C. §
841(a)(1) and 841(b)(1)(A)(iii), and of using or carrying a firearm
during and in relation to that transaction, see 18 U.S.C. §
924(c)(1)(A). The district court sentenced Roberson to 300 months'
imprisonment. Roberson's appeal challenges his convictions and
sentence on several grounds. We affirm.
I.
The Federal Bureau of Investigation (FBI) began
investigating Roberson in early 2003. As part of that
investigation, FBI agents engaged the services of a cooperating
witness, Eric Mena, who had known Roberson for eight years and had
formerly been a drug dealing associate of Roberson's. Mena agreed
to make a controlled purchase of crack cocaine from Roberson as
part of a plea bargain resolving drug charges against him.
On March 10 of that year, FBI agent Edward Kappler
outfitted Mena with an electronic transmitter and a digital
recorder to enable the FBI to monitor Mena's conversations with
Roberson. Mena then went to the home of Raymond Muse, a mutual
associate of Roberson and Mena, and informed him that he wanted to
buy some crack from Roberson. Muse brought Mena to where Roberson
was currently staying. After Roberson entered Mena's car, Mena
told him that he needed two ounces of crack. Roberson agreed to
provide the drugs the next evening and told Mena that he should
call to initiate the pickup.
-2-
While Mena was saving Roberson's phone number on his
mobile phone, Roberson spontaneously stated, "Yo, you got any
burners? I can trade you a burner." Mena testified at trial that
"burner" meant handgun, and that he understood Roberson's statement
to be an offer to sell him a gun. Roberson described the gun as "a
brand new, 40 cal." that was "like a Glock, top is chrome. The
rest is plastic." Mena was noncommittal as to that offer but
confirmed that he would meet with Roberson the next day.
The following evening, Mena, who was again outfitted with
a transmitter and an audio recorder, tried several times,
unsuccessfully, to reach Roberson on his mobile phone. The FBI
directed Mena to drive to Muse's house again. Rather than using
his own car, however, Mena drove an undercover car that the FBI had
equipped with a hidden video camera. After Muse and Mena
successfully contacted Roberson, Muse directed Mena to an apartment
complex in a nearby town. Mena drove the undercover car with Muse
as his passenger.
After they arrived at the apartment complex, Muse located
Roberson and brought him to Mena's car. Roberson sat in the front
passenger seat next to Mena, while Muse sat in the back. Roberson
told Mena, "I got your sixty grams," and then told him it would
cost $2,000. As Mena was counting out his money, Roberson looked
out the back window and stated, "I got the rap on me so I'm shook
anyway." Mena testified at trial that this meant that Roberson was
paranoid because he had a handgun on him. Roberson then handed
Mena a sandwich bag containing crack.
-3-
As Mena inspected the crack, Roberson pulled a handgun
out of his waistband, pointed it in Mena's direction, and stated,
"That's what I'm talking about man." Mena told Roberson not to
point the gun at him and asked to see it. Roberson handed the gun
to Mena, who looked at it and smelled it to see if it had been
fired. Mena found the design of the gun to be consistent with a
"Glock" in that the top was chrome and the bottom was plastic.
Mena asked Roberson why he wanted to get rid of the handgun and
Roberson replied that the serial numbers had been scratched off.
When Mena asked whether the gun had been fired yet, Roberson
replied, "Nah, I don't waste shells, man. I shoot niggas though."
Mena handed the gun back to Roberson, and they completed the drug
transaction.
Mena then asked Roberson if he would be interested in
buying Mena's car. Mena initiated this conversation outside the
car so that FBI agents would have an opportunity to observe
Roberson directly. As a result, agent Timothy Quinn, who was
conducting physical and audio surveillance nearby, was able to
drive within 12 feet of Mena and Roberson as they looked over the
vehicle. Roberson then went back into the apartment complex.
Later that month, a federal grand jury returned a two
count indictment charging Roberson of possession with intent to
distribute and distribution of more than 50 grams of cocaine base,1
1
The term "cocaine base," includes, inter alia, "crack
cocaine." United States v. Anderson, --- F.3d ---, No. 05-1872,
2006 WL 1766704, at *20 (1st Cir. June 29, 2006).
-4-
in violation of the Controlled Substances Act ("CSA"), see 21
U.S.C. § 841(a)(1) and 841(b)(1)(A)(iii) (the "drug charge"), and
of using or carrying a firearm "during and in relation to" a drug
trafficking offense, see 18 U.S.C. § 924(c)(1)(A) (the "gun
charge"). The government subsequently filed an information
pursuant to 21 U.S.C. § 851 providing notice of its intent to seek
increased punishment -- the doubling of the drug charge's mandatory
minimum sentence from 10 to 20 years -- by reason of a prior
conviction. After a five-day trial, including testimony from Mena,
Kappler and Quinn, a jury convicted Roberson on both counts.
Roberson moved for a judgment of acquittal both during
trial and after the verdict. See Fed. R. Crim. P. 29(a), (c). He
argued that there was insufficient evidence establishing that he
had possessed crack or had sold more than 50 grams of crack. He
also argued that the government had not presented sufficient
evidence to prove that he had carried or used a "firearm," as that
term is defined in 18 U.S.C. § 921(a)(3), or that he had carried or
used a firearm "during and in relation to" the drug transaction.
Finally, he argued that, because the government had not offered any
evidence establishing his prior conviction, the district court
could not impose an increased penalty for the drug conviction. The
court denied Roberson's motions in all respects.
At sentencing, the district court found that the 20-year
mandatory minimum applied to the drug charge, see 21 U.S.C. §
841(b)(A)(iii), and a 5-year consecutive mandatory minimum applied
to the gun charge, see 18 U.S.C. § 924(c)(1)(A). After determining
-5-
that the Sentencing Guidelines advised a sentencing range of 35
years to life, and considering the sentencing factors set forth in
18 U.S.C. § 3553(a), the court imposed a sentence of 25 years in
prison, the statutory minimum sentence.
Roberson now appeals the district court's order denying
his motion for judgment of acquittal on the gun charge, arguing
that the government failed to adduce sufficient evidence to prove
either that he carried an actual "firearm" or that he carried a
firearm "in relation to" a drug trafficking offense. He
alternatively requests a new trial on the gun charge on the ground
that the court erroneously instructed the jury concerning the "in
relation to" requirement, and a new trial on both charges on the
basis of improperly admitted testimony. Finally, Roberson argues
that the applicable mandatory minimum sentence for the drug
conviction is ten years, not 20 years.
II.
A. The gun charge
Roberson challenges the consecutive five-year mandatory
minimum sentence he received for using or carrying a firearm
"during and in relation to a drug trafficking offense" on several
grounds. 18 U.S.C. § 924(c)(1)(A). We begin with Roberson's
contention that the district court incorrectly instructed on the
"in relation to" requirement, and compounded the error by simply
restating the same erroneous instruction when the jury sought
clarification.
-6-
At trial, both Roberson and the government submitted
proposed jury instructions addressing the gun charge. The
government proposed the First Circuit pattern jury instruction,
which provides, in relevant part:
To "carry" a firearm during and in relation to
a crime means to move or transport the firearm
on one's person or in a vehicle or container
during and in relation to the crime. It need
not be immediately accessible. To "use" a
firearm during and in relation to a crime
means to employ the firearm actively, such as
to brandish, display, barter, strike with,
fire or attempt to fire it, or even to refer
to it in a way calculated to affect the
underlying crime. The firearm must have
played a role in the crime or must have been
intended by the defendant to play a role in
the crime. That need not have been its sole
purpose, however.
See First Circuit Criminal Pattern Jury Instructions § 4.07 (1998).
The pattern instruction purposefully declines to define "in
relation to" separately from the terms "carry" and "use." See id.
§ 4.07 cmt. 3 ("It seems best not to define 'use or carry'
separately from 'during and in relation to.'").2 Roberson,
however, drawing on language from Smith v. United States, 508 U.S.
223 (1993), proposed that a paragraph be added to directly address
this requirement. The court agreed to instruct the jury on the "in
relation to" element, but declined to adopt Roberson's proposal
2
Although Roberson does not challenge the pattern instruction
itself, we pause to note that the pattern instructions are not
mandatory nor has this court approved the use of any particular
instruction. See United States v. Tse, 375 F.3d 148, 157-58 (1st
Cir. 2004).
-7-
wholesale. Instead, it crafted its own instruction based on
language from Smith:
The words "during and in relation to" are to
be given their plain and customary meaning.
The phrase "in relation to" is expansive. At
a minimum it means that the firearm must have
had some purpose or effect with respect to the
drug trafficking crime. If a firearm is
present simply as a result of coincidence or
accident it cannot be said that it was used or
carried in relation to the drug traffic[king]
offense. The firearm must have facilitated or
have had the potential to facilitate the drug
offense.
During a pre-charge conference, Roberson objected to the
statement "the phrase 'in relation to' is expansive." He argued
that the word "expansive" erroneously implied that the phrase "in
relation to" was intended to expand, rather than limit, the phrase
"used or carried." The district court denied the objection and
delivered the pattern jury instruction along with the "in relation
to" insert that it had crafted. After the charge, Roberson failed
to renew his objection, and the jury retired to deliberate.
During the first full day of deliberations, the jury
submitted a note asking: "Does carrying a firearm during but
independent of a drug transaction constitute the use of a firearm
in relation to drug trafficking?" Contending that the word
"independent" means the opposite of "in relation to," Roberson
requested the court to directly answer the jury's question in the
negative. The court, however, agreed with the government that such
an instruction would risk providing the jury with a decisive
conclusion. The court therefore elected to simply re-read the gun
-8-
charge instruction in the hope that hearing the instruction again
would help the jury resolve the question internally. Before the
court summoned the jury, Roberson again objected that the
instruction was erroneous insofar as it stated that "in relation
to" is "expansive." After the re-reading of the instruction, the
jury returned its verdicts later that day without additional
inquiry.
To preserve an objection to a jury instruction under Fed.
R. Crim. P. 30(d), a litigant must lodge a specific objection and
state the grounds for the objection after the court has charged the
jury and before the jury begins deliberations. See United States
v. Moran, 393 F.3d 1, 13 & n.7 (1st Cir. 2004). Objections
registered during pre-charge hearings are insufficient to preserve
the issue. See id. We review such unpreserved jury instruction
claims for plain error only. See id.
Roberson seeks a more favorable standard of review by
arguing that his second objection to the "expansive" instruction
preserved the issue because it was made after the court's original
charge to the jury on the gun charge and before the jury retired to
deliberate following the court's re-reading of the gun charge
instruction. Roberson contends that the second objection
effectively served Rule 30(d)'s purpose "to bring to the attention
of the trial court errors or omissions in its charge so that they
may be corrected before the case goes to the jury." United States
v. Sturm, 870 F.2d 769, 775-76 (1st Cir. 1989). But the case had
already gone to the jury. Roberson's renewed objection, registered
-9-
after the jury had begun its deliberations, came too late to
satisfy Rule 30(d). See United States v. Santana-Rosa, 132 F.3d
860, 863 n.1 (1st Cir. 1998) ("[A] party waives any objection it
might have to a jury instruction by failing to enter that objection
into the record immediately after the judge has instructed the jury
and before the jury begins deliberations.") (Emphasis added).3 We
therefore review the instruction for plain error, under which
Roberson "must demonstrate: (1) that an error occurred (2) which
was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired the
fairness, integrity, or public reputation of judicial proceedings."
Moran, 393 F.3d at 13 (quotation marks omitted).
Roberson cannot meet this stringent standard. The
district court took the language "[t]he phrase 'in relation to' is
expansive" directly from the majority opinion in Smith. See 508
U.S. at 237. Roberson makes no argument that Smith is no longer
good law or has been undermined by subsequent Supreme Court
precedent. Indeed, federal appellate courts continue to cite Smith
for the proposition that "in relation to" is "expansive." See,
e.g., United States v. Brown, 400 F.3d 1242, 1250 (10th Cir. 2005);
United States v. Williams, 344 F.3d 365, 371 (3d Cir. 2003); McNeal
v. United States, 249 F.3d 747, 750 (8th Cir. 2001).
3
Even were we to accept the premise that the re-reading of an
instruction could present a fresh opportunity for a litigant to
object to the instruction, we note that Roberson again failed to
lodge the objection after the court re-read the charge to the jury.
-10-
Moreover, Roberson's argument that the jury likely
misunderstood "expansive" to mean that the phrase "in relation to"
was intended to enlarge upon the circumstances in which a defendant
may be prosecuted for using or carrying a firearm, is belied when
the instruction is viewed as a whole. See United States v.
DeStefano, 59 F.3d 1, 3 (1st Cir. 1995). Although one definition
of "expansive" is "capable of expanding or tending to expand," The
Am. Heritage Dictionary 624 (4th ed. 2000), another is "broad in
size or extent; comprehensive." Id. Only the latter definition
makes sense in the context of the instruction as a whole. The
sentences immediately following the "expansive" instruction state:
At a minimum ["in relation to"] means that the
firearm must have had some purpose or effect
with respect to the drug trafficking crime.
If a firearm is present simply as a result of
coincidence or accident it cannot be said that
it was used or carried in relation to the drug
traffic[king] offense. The firearm must have
facilitated or have had the potential to
facilitate the drug offense.
Given the limiting language of those sentences, it would be
illogical to read the sentence containing the word "expansive" in
the way Roberson suggests. When read in its entirety, the "in
relation to" instruction adequately and accurately conveys the
meaning of the phrase as described in Smith.
Roberson counters that the jury's mid-deliberation
question illustrates that there was confusion with the instruction.
He argues that the district court therefore erred by not directly
answering the jury's question as he suggested: that "if it is their
conclusion that the gun was either used or carried independent of
-11-
the drug trafficking offense, that would mean that it was not
either used or carried in relation to the drug trafficking crime."
We disagree. As a general rule, whether to provide a
supplementary instruction to the jury "is a matter within the sound
discretion of the trial court." Elliot v. S.D. Warren Co., 134
F.3d 1, 7 (1st Cir. 1998). Here, the court anticipated that the
jury might wrestle with the issue of whether the gun was used or
carried "in relation to" the drug transaction. At Roberson's
behest, the court carefully crafted an instruction, consistent with
Smith, to aid the jury's evaluation of the "in relation to"
requirement. Under the circumstances, it was well within the
court's discretion to eschew "elaborat[ing] on these initial,
entirely correct instructions" and instead, elect simply "to refer
the jury to the original formulation." Id.
This is especially so given the phrasing of the jury
question, which suggested that the jury was putting it to the court
to make the dispositive decision. District courts must exercise
caution in such circumstances. See e.g., Arizona v. Johnson, 351
F.3d 988, 994 (9th Cir. 2003) (recognizing in a similar situation
that a district court must exercise caution, when a "simple
affirmative or negative response might favor one party's position,
place undue weight on certain evidence, or indicate that the trial
judge believes certain facts to be true when such matters should
properly be determined by the jury") (quotation and emphasis
omitted); United States v. Lakich, 23 F.3d 1203, 1209 (7th Cir.
1994) (noting that a district court "would have risked intruding on
-12-
the jury's fact finding" had it given "a simple affirmative answer"
to the jury's question of whether a finding of entrapment on one
count "reflects" on another). We therefore cannot fault the court
for choosing the more cautious alternative of re-reading the
original instruction and letting that instruction stand alone.4
Roberson also challenges the sufficiency of the evidence
supporting the gun charge. "In determining the evidentiary
sufficiency of a guilty verdict, we review the totality of the
evidence in the light most favorable to the government, and then
ask whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United
States v. Bailey, 405 F.3d 102, 111 (1st Cir. 2005) (quotation
marks omitted).
Roberson first challenges the government's evidence
establishing that he used or carried a "firearm" during the drug
transaction.5 See United States v. Taylor, 54 F.3d 967, 975 (1st
4
We reject Roberson's suggestion that United States v.
Bollenbach, 326 U.S. 607 (1946), required the district court to
respond to the jury's question with an explicit answer. In
Bollenbach, the Supreme Court found that the trial court had erred
by responding to a jury question with an erroneous supplemental
instruction. Id. at 612-13. That is precisely the pitfall the
district court endeavored to avoid in this case. See United States
v. Prigmore, 243 F.3d 1, 17 (1st Cir. 2001) ("[W]e have recognized
that, in some instances, attempts to clarify inherently nebulous
concepts can do more harm than good.").
5
Under 18 U.S.C. § 921(a)(3), a "firearm" is defined as:
(A) any weapon (including a starter gun) which
will or is designed or may readily be
converted to expel a projectile by the action
of an explosive; (B) the frame or receiver of
any such weapon; (C) any firearm muffler or
firearm silencer; or (D) any destructive
-13-
Cir. 1995) (noting that 18 U.S.C. § 924(c) "requires proof beyond
a reasonable doubt that the person perpetrating the predicate
offense used a real gun"). He contends that Mena's testimony by
itself is insufficient to prove that the object Roberson handed to
Mena was a real gun because Mena is not an expert on guns and his
lay opinion is not creditworthy, given that it is based on his
observation of the alleged gun at night in a dark car.
Although § 924(c) requires proof that the gun is real,
the government's proof need not "reach a level of scientific
certainty." Id. at 975-76. Descriptive lay opinion testimony can
be sufficient. United States v. Kirvan, 997 F.2d 963, 966-67 (1st
Cir. 1993). Here, Mena's testimony was sufficient to ground the
jury's finding. Although Mena was not a firearms expert, he
testified that he was familiar with handguns, having held them on
several occasions. Mena testified that he had the opportunity to
hold and closely inspect Roberson's handgun. Mena took advantage
of that opportunity, smelling it to see if it had been fired, and
noticing that the serial numbers had been scratched off. At trial,
Mena provided details about the gun (that it looked new and had
chrome on the top with a black plastic bottom), noted that its
design (a plastic bottom) was commonly referred to by his
associates in the drug trade as a "Glock," and stated that it "felt
like a handgun." Although Mena observed the gun at night inside a
car with the interior lights off, such factors go only to the
device. Such term does not include an antique
firearm.
-14-
weight of Mena's testimony, and would not prevent a rational jury
from crediting Mena's opinion. Cf. Taylor, 54 F.3d at 976 (finding
sufficient lay witness testimony by a bank teller and a customer
service representative who "observed the object gripped by [the
defendant] at close range"); Kirvan, 997 F.2d at 966-67 (finding
sufficient lay witness testimony of two individuals who described
seeing the defendant holding what appeared to be a gun, and who
stated that it sounded "heavy" when it fell to the ground).
Roberson also contends that a rational jury could not
have found that Roberson used or carried the gun "in relation to"
a drug trafficking offense because the evidence established, at
most, that he carried the gun for the independent purpose of
offering it to Mena after completion of the drug transaction. He
asserts that his offer to sell the gun to Mena was an entirely
separate and unrelated transaction.
As the jury was instructed, the "in relation to" language
of § 924(c)(1) requires, at a minimum, that the firearm have some
purpose or effect with respect to the drug trafficking crime.
Smith, 508 U.S. at 238. Mere possession of a gun during the course
of criminal conduct does not support a conviction under the
statute. United States v. Plummer, 964 F.2d 1251, 1254 (1st Cir.
1992); see also United States v. Grace, 367 F.3d 29, 35 (1st Cir.
2004). Nonetheless, the phrase has been construed broadly, and
encompasses a variety of situations where the firearm facilitates
or has the potential to facilitate the drug trafficking offense.
See, e.g., Smith, 508 U.S. at 229 (finding that an attempt to
-15-
barter a firearm for drugs satisfied the "in relation to"
requirement); United States v. Luciano-Mosquera, 63 F.3d 1142, 1151
(1st Cir. 1995) (holding that gun kept available "if a contingency
arose or to make [an] escape" was carried "in relation to" the
predicate drug offense). Moreover, facilitation of the underlying
drug offense need not be the defendant's sole purpose for
possessing the weapon. See United States v. Vazquez Guadelupe, 407
F.3d 492, 500 n.4 (1st Cir. 2005) (noting that a sufficient nexus
existed between defendant's possession of a gun and the drug crime
notwithstanding a legitimate explanation for defendant's possession
of the gun -- viz., his employment as a police officer).
Here, at least two permissible grounds existed for the
jury's determination that Roberson used or carried the firearm "in
relation to" the drug transaction. The jury could have reasoned
that Roberson brandished the gun to embolden himself or to
intimidate Mena. See United States v. Eaton, 890 F.2d 511, 512
(1st Cir. 1989). At their first meeting, Roberson informed Mena
that he had a handgun to trade. A rational jury could infer that
Roberson intended that statement to put Mena on notice that he
would be armed on the day of the drug transaction. Sure enough,
during the transaction, before Mena finished paying for the crack,
Roberson pulled the handgun from his waistband, pointed it in
Mena's direction, and proclaimed, "that's what I'm talking about."
Further demonstrating his deadly potential, Roberson informed Mena
that, while he does not "waste shells," he does "shoot niggas."
Although the evidence that Roberson subsequently handed the gun to
-16-
Mena may weaken the theory that Roberson was using the gun to
intimidate Mena, the above evidence was sufficient to ground the
jury's verdict. See Plummer, 964 F.2d at 1255 (noting that while
the facts may permit multiple inferences, "the factfinder is
entitled to choose among reasonable interpretations of the
evidence").
Even if the jury believed that the gun was carried only
for the purpose of attempting to sell it to Mena, it still could
have reasonably concluded that the gun was carried "in relation to"
the drug transaction. At the first meeting, when Mena asked
Roberson for crack, Roberson mentioned that he had a gun he wanted
to trade. The next day, as Mena was counting his money, Roberson
handed the gun to Mena for his inspection and stated that he was
nervous about carrying the gun because the serial numbers were
scratched off. Indeed, it appeared to Mena that Roberson was
anxious to get rid of the gun. From this testimony, the jury could
have reasonably concluded that the opportunity to trade the gun was
an incentive for Roberson to agree to Mena's request for crack.
Cf. United States v. Lipford, 203 F.3d 259, 267 (4th Cir. 2000)
(holding that in order to convince a seller to take the risks
inherent in the sale of drugs, "a drug purchaser can often 'sweeten
the pot,' offering to purchase not only drugs, but other illegal
goods as well"). On these facts, a jury could have reasonably
concluded that, at least in Roberson's mind, the gun deal and the
drug deal were intertwined.
-17-
B. Improper testimony
During its case-in-chief, the government asked Mena
whether he knew "which is more addictive, crack or cocaine powder?"
The district court overruled Roberson's subsequent objection, and
Mena answered, "I believe crack is more addictive." When asked
which drug is "stronger," Mena again answered, "crack." Mena then
testified that when he had been a drug dealer, he had sold powder
cocaine, but that Roberson had been a crack dealer. During its
closing argument, the government stated, "Eric Mena told you that
he was a cocaine dealer and that Kurt Roberson was a crack dealer.
Eric Mena also told you that as between cocaine and crack, crack is
more potent and addictive."
On appeal, Roberson contends that the government failed
to lay a sufficient foundation to ground Mena's opinion because it
did not establish that Mena was an expert on the addictive
properties of cocaine, see Fed. R. Evid. 702, or offer evidence
about Mena's lay perceptions as to the different addictive
qualities or relative potency of crack versus powder cocaine, see
Fed. R. Evid. 701. Roberson contends that the improperly admitted
evidence was both misleading (in that it is the difference in the
typical method of administration, not any difference in the
inherent properties of the two forms of cocaine, that causes an
increased risk of addiction with crack)6 and highly prejudicial (in
that the improper testimony and closing argument was aimed at
6
See United States Sentencing Commission Report to Congress:
Cocaine and Federal Sentencing Policy, 19 (May 2002).
-18-
bolstering Mena's character, while degrading Roberson's). Because
Mena's testimony was critical to the government's case, Roberson
argues, a new trial is necessary. The government concedes,
correctly, that it did not lay an adequate foundation to ground
Mena's testimony. Nevertheless, the government argues that the
error was harmless in light of the overwhelming evidence of
Roberson's guilt.
We agree with the government that the error was harmless
because it is "highly probable that the error did not influence the
verdict." United States v. Flemmi, 402 F.3d 79, 95 (1st Cir. 2005)
(quotation marks omitted) (describing the harmless error standard
for non-constitutional evidentiary errors). Roberson attempts to
rebut the government's "overwhelming evidence" argument by pointing
to various weaknesses in the government's case. For instance,
Roberson asserts, the testimony of agents Kappler and Quinn
identifying Roberson was fallible. But even assuming that this
testimony was not overwhelming by itself, it is notable that all of
the government's evidence, including the testimony of Kappler and
Quinn, and the recorded audio and video evidence, corroborates
Mena's account of what happened. Given the wealth of evidence
supporting Mena's testimony, it is highly unlikely that his
veracity, at least with respect to the events of March 10 and 11,
2003, was seriously questioned by the jury. Moreover, we doubt
that the jury would view the relative addictiveness of crack versus
powder cocaine to be an important factor for drawing its
conclusions about the character of the two men. Mena admitted on
-19-
the stand that he was a dealer of, among other drugs, powder
cocaine. It is highly improbable that any diminutive boost Mena's
credibility may have received from being cast as a dealer of a less
addictive form of cocaine would have influenced the jury's
verdicts.
C. Sentence
At sentencing, the district court heard argument
concerning whether the mandatory minimum sentence on the drug
charge should be doubled from ten years to 20 years in light of
Roberson's 1996 Massachusetts conviction for distribution of
marijuana in violation of Mass. Gen. Laws ch. 94C, § 32D. See 21
U.S.C. § 841(b)(1)(A) (providing a 20-year mandatory minimum for
any person convicted under § 841(a) that has "a prior conviction
for a felony drug offense"). Roberson argued that the prior
Massachusetts conviction was not a "felony drug offense" under §
841(b)(1)(A) because Massachusetts law categorized the offense as
a misdemeanor. The district court rejected Roberson's argument,
finding that the CSA clearly defines a "felony drug offense" as any
prior conviction for an offense punishable by more than one year of
imprisonment. See 21 U.S.C. § 802(44). Because Roberson's 1996
Massachusetts conviction was punishable by up to two years in
prison, see Mass. Gen. Laws ch. 94C, § 32C, the court found that
it qualified as a "felony drug offense" notwithstanding the state's
classification of the offense as a misdemeanor.
On appeal, Roberson contends that the district court
erred by applying the 20-year mandatory minimum to the drug charge.
-20-
Roberson's arguments hinge on the premise that two defined terms
are triggered by § 841(b)(1)(A). Citing to several canons of
statutory construction and to the legislative history of the CSA,
he argues that the definition of "felony drug offense" contained in
§ 802(44) is modified by the definition of "felony" contained in §
802(13). See 21 U.S.C. § 802(13) ("The term 'felony' means any
Federal or State offense classified by applicable Federal or State
law as a felony."). Roberson contends that both of these
definitions must be satisfied to trigger § 841(b)(1)(A)'s 20-year
mandatory minimum. Under Roberson's interpretation, a prior
conviction is a "felony drug offense" under § 841(b)(1)(A) only if
the prior drug offense is both (1) punishable by more than one year
in jail, see id. § 802(44), and (2) classified as a felony by the
relevant federal or state authority, see id. § 802(13).
A recent D.C. Circuit decision supports Roberson's
position. See United States v. West, 393 F.3d 1302 (D.C. Cir.
2005).7 Like Roberson, the defendant in West had been convicted
under 21 U.S.C. § 841(a) and (b)(1)(A)(iii) for distributing more
than 50 grams of cocaine base. The district court increased the
mandatory minimum from ten to 20 years based on a prior drug
conviction in Maryland that was classified by that state as a
misdemeanor, but which was punishable by up to four years in
prison. On appeal, the D.C. Circuit vacated the defendant's 20-
year sentence, holding that the definition of "felony drug offense"
7
To our knowledge, the D.C. Circuit is the only federal
appellate court to have addressed this issue to date.
-21-
provided by § 802(44) must be read in conjunction with the
definition of "felony" provided by § 802(13). The D.C. Circuit
found the defendant's position -- that Congress intended "felony
drug offense" to incorporate the definitions contained in both §
802(13) and 802(44) -- was "at least as plausible" as the
government's -- that § 802(44) alone controls. Id. at 1315.
Invoking the rule of lenity, the court held that the enhancement
provision of § 841(b)(1)(A) is limited "to those instances in which
the prior drug offense is both punishable by more than one year and
classified as a felony by controlling authority." Id. Roberson
argues that, even if we do not adopt his construction of the
statute, we should follow the D.C. Circuit and apply the rule of
lenity to resolve the issue in his favor.
Roberson's challenge to the applicability of the 20-year
mandatory minimum sentence presents pure legal questions of
statutory construction. As such, our review is de novo. Doyle v.
Huntress, Inc., 419 F.3d 3, 8 (1st Cir. 2005). "As in any case of
statutory construction, our analysis begins with the language of
the statute." Zimmerman v. Cambridge Credit Counseling Corp., 409
F.3d 473, 475 (1st Cir. 2005) (quoting Hughes Aircraft Co. v.
Jacobson, 525 U.S. 432, 438 (1999)). We accord the statutory text
"its ordinary meaning by reference to the 'specific context in
which that language is used, and the broader context of the statute
as a whole.'" Mullane v. Chambers, 333 F.3d 322, 330 (1st Cir.
2003) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341
(1997)). If the statutory language provides a clear answer, the
-22-
inquiry ends. See Hughes, 525 U.S. at 438; Sepulveda v. United
States, 330 F.3d 55, 64 (1st Cir. 2003).
The wording of the provisions at issue, read in the
context of the statute as a whole, lead us to conclude that, for
the purposes of the CSA, the term "felony drug offense" is a term
of art separate and distinct from the term "felony." In our view,
the definition of "felony drug offense" contained in § 802(44)
unambiguously controls for the purposes of determining whether the
penalty enhancement in § 841(b)(1)(A) is triggered. We therefore
reject Roberson's arguments and decline to invoke the rule of
lenity. See United States v. Councilman, 418 F.3d 67, 83 (1st Cir.
2005) (en banc) (holding that the rule of lenity "only applies if
'there is a grievous ambiguity or uncertainty about the statute'")
(quoting Muscurello v. United States, 524 U.S. 125, 138-39 (1998)).
We begin our analysis by delineating the CSA's structure.
In 1970, to consolidate the assorted drug laws then on
the books and to enhance federal drug enforcement powers, Congress
enacted the Comprehensive Drug Abuse Prevention and Control Act
(the "1970 Act"). See Pub. Law No. 91-513, 84 Stat. 1236; see
generally Gonzales v. Raich, 545 U.S. 1 (2005). The Act is
subdivided into three titles. The CSA, established in Title II,
addresses the control of drugs and the enforcement of drug laws,
see 21 U.S.C. §§ 801-904, while Title III, aptly named the
Controlled Substances Import and Export Act ("Import Act"),
concerns their import and export to and from the United States, see
id. §§ 951-971.
-23-
Part D of the CSA lays out the substantive offenses and
the attendant penalties. As is relevant here, Part D makes it
unlawful "for any person knowingly or intentionally -- (1) to
manufacture, distribute, or dispense or possess with intent to
manufacture, distribute or dispense a controlled substance." Id.
§ 841(a)(1). Pursuant to the "penalties" provision of that
section, "any person who violates" § 841(a) through conduct
involving, inter alia, "50 grams or more of a mixture" containing
cocaine base, "shall be sentenced to a term of imprisonment which
may not be less than 10 years." Id. § 841(b)(1)(A)(iii). Further
on, the same subsection provides that "[i]f any person commits such
a violation after a prior conviction for a felony drug offense has
become final, such person shall be sentenced to a term of
imprisonment which may not be less than 20 years." Id. (Emphasis
added).
Section 802 provides definitions for the terms used in
the CSA and the Import Act. The two relevant definitions provide
as follows:
The term "felony" means any Federal or State
offense classified by applicable Federal or
State law as a felony. . . .
The term "felony drug offense" means an
offense that is punishable by imprisonment for
more than one year under any law of the United
States or of a State or foreign country that
prohibits or restricts conduct relating to
narcotic drugs, marihuana, or depressant
stimulant substances.
Id. § 802(13), (44).
-24-
The most logical interpretation of § 841(b)(1)(A), we
believe, is that the phrase "felony drug offense" is a term of art
invoked intentionally by Congress to incorporate by reference the
specific definition contained in § 802(44). Cf. United States v.
Cordoza-Estrada, 385 F.3d 56, 58 (1st Cir. 2004) (holding that the
statutory definition of the term "aggravated felony" in 8 U.S.C. §
1101(a)(43)(F) "is a term of art that includes within its ambit
certain misdemeanors under state law that carry a sentence of at
least one year”); see also Stenberg v. Carhart, 530 U.S. 914, 942
(2000) ("When a statute includes an explicit definition, we must
follow that definition, even if it varies from that term's ordinary
meaning."). Because the term "felony drug offense" is specifically
defined in § 802(44), and § 841(b)(1)(A) makes use of that precise
term, the logical, commonsense way to interpret "felony drug
offense" in § 841(b)(1)(A) is by reference to the definition in §
802(44). See O'Connell v. Shalala, 79 F.3d 170, 176 (1st Cir.
1996) ("[C]ourts are bound to afford statutes a practical,
commonsense reading.").
Roberson argues that § 802(44)'s definition must be read
as incorporating the definition of "felony" in § 802(13) because
the term "felony drug offense" contains within it the defined term
"felony." Because the definition of a defined term is ordinarily
triggered by every reference to that term within a statute, see 1A
& 2A Norman J. Singer, Sutherland: Statutes and Statutory
Construction, §§ 20:8, 47:7 (6th ed. 2000), Roberson argues, the
-25-
definition of "felony" is embedded in both § 802(44)'s definition
of and § 841(b)(1)(A)'s reference to "felony drug offense."
But the term being defined is not ordinarily read as
being itself a part of the definition of the term. If Congress had
intended the definition in § 802(44) to cross-reference the
definition in § 802(13), it could have indicated such a cross-
reference in the text of the definition. For example, Congress
could have written § 802(44) to state that "the term 'felony drug
offense' means a felony . . . ."8 Indeed, such internal cross-
referencing, defining one term by reference in the text of the
definition to another defined term, is not unusual in the United
States Code. See, e.g., 18 U.S.C. § 1961(5) (defining a "pattern
of racketeering activity" as requiring, inter alia, "at least two
acts of racketeering activity," thereby expressly cross-referencing
the separately defined "racketeering activity" in § 1961(1)); 18
U.S.C. § 1956(c)(4) (defining a "financial transaction" as, inter
alia, "a transaction," thereby expressly incorporating the
definition of "transaction" in § 1956(c)(3));9 see Zimmerman, 409
F.3d at 475-76 (looking to Congress's method of drafting statutes
in other parts of the Code as an aid in interpreting statutory
text).
8
Such a formulation would have been harmonious with the pre-
1994 version of § 841(b)(1)(A) which defined a “felony drug
offense” as “an offense that is a felony . . . .” See infra note
10.
9
Roberson does not cite any examples where Congress has cross-
referenced to a defined term by placing that defined term within
another defined term (as opposed to placing it within the text of
the definition).
-26-
Had Congress intended to require both definitions for the
purposes of § 841(b)(1)(A), but also wished to preserve a distinct
definition of "felony drug offense" for the purposes of other
provisions, it could have accomplished its purposes within the text
of § 841(b)(1)(A). For example, Congress could have written §
841(b)(1)(A) to trigger a 20-year mandatory minimum whenever any
person commits a violation of § 841(a) "after a prior conviction
for a felony drug offense that is classified by applicable Federal
or State law as a felony has become final.”
Congress did not use any of these conventions. Thus, we
are left with a statutory provision that specifically references a
defined term, “felony drug offense.” Where, as here, Congress
defines what a particular term "means," that definition controls to
the exclusion of any meaning that is not explicitly stated in the
definition, see Sutherland § 47:7 (citing Colautti v. Franklin, 439
U.S. 379, 392 & n.10 (1978)), and regardless of the ordinary
meaning of the words, see id. at § 20:8 (citing Packard Motor Car
Co. v. N.L.R.B., 330 U.S. 485 (1947)); Cordoza-Estrada, 385 F.3d at
58.
The district court's construction, that § 802(44) alone
provides the definition of "felony drug offense," is further
supported by an analysis of the statute as a whole. See Shalala,
79 F.3d at 176 ("[A] court engaged in the task of statutory
interpretation must examine the statute as a whole, giving due
weight to design, structure, and purpose as well as to aggregate
language."). Reviewing the substantive provisions in the CSA
-27-
reveals that the term "felony drug offense" is utilized only in §
841(b)(1). The term also appears in a parallel provision of the
Import Act. See 21 U.S.C. § 960(b). In both statutes, the term is
used solely to specify the type of prior conviction that will
trigger a mandatory sentence enhancement. In some instances, the
sentencing floor is enhanced. See id. §§ 841(b)(1)(A) and (B);
960(b)(1) and (2) (all doubling the minimum sentence when the
defendant's violation of the subject section was committed "after
a prior conviction for a felony drug offense has become final").
In others, the sentencing ceiling is enhanced. See id. §§
841(b)(1)(C) and (D); 960(b)(3) (all increasing the potential
maximum sentence when the defendant's violation of the subject
section was committed "after a prior conviction for a felony drug
offense has become final"). In all events, a prior conviction for
a "felony drug offense" will result in a significant upward re-
calibration of the statutorily mandated sentencing range.
In contrast, the term "felony" (without the accompanying
words "drug offense") is utilized extensively throughout the CSA
for a variety of purposes. See, e.g., 21 U.S.C. §§ 824(a)(2)
(providing circumstances under which a registration to manufacture
or distribute controlled substances may be revoked); 841(e)
(providing circumstances in which an injunction is available under
§ 841); 843(b) (forbidding the use of a communication facility to
accomplish the commission of a felony); 843(d)(1-2) (setting a
maximum sentence for violations of § 843 for persons with a prior
felony drug conviction); 848(c)(1) (defining a "continuing criminal
-28-
enterprise" as involving a felony violation); 853(d) (creating a
rebuttable presumption in favor of forfeiture against any person
convicted of a felony); 862a(a) (denying eligibility for certain
assistance and benefits programs for any person convicted of an
offense classified as a felony); 878(a)(3) (granting drug
enforcement officers the power to make warrantless arrests where
there is probable cause to believe a felony has been committed).
Congress's decision to use the precise term "felony drug
offense" in § 841(b)(1), instead of the more broadly used term
"felony," evidences an intent to distinguish these sentence
enhancement provisions from the other provisions that refer to the
generic "felony." See Citizen's Awareness Network, Inc. v. United
States, 391 F.3d 338, 346 (1st Cir. 2004) ("The principle is clear
that Congress's use of differential language in various sections of
the same statute is presumed to be intentional and deserves
interpretative weight."); Sutherland, § 46:05 ("[W]here the
legislature has carefully employed a term in one place and excluded
it in another, it should not be implied where excluded."). Given
the structure of the CSA, and the targeted use of the term "felony
drug offense," the logical inference is that Congress intended the
statutory enhancements in § 841(b)(1)(A) to be triggered by
reference to § 802(44) alone. As the government has suggested,
Congress may have wished to avoid the possibility that the
substantial consequences of the mandatory sentence enhancements in
-29-
§ 841(b)(1)(A) would turn on the happenstance of a state's
classification of a prior offense.10
Roberson's invocations of the canons of statutory
construction do not persuade us that the statute is ambiguous.
Roberson argues that, because the definitions in § 802(13) and
802(44) are part of the same definitional section and address the
10
Prior to 1988, § 841(b)(1)(A) provided that a prior
conviction for, inter alia, "a felony under any . . . law of a
State" would trigger enhanced penalties. Pub. Law No. 99-570, §
1002, 100 Stat. 3207, 3207-4 (1986) (emphasis added). The term
"felony drug offense" was added to § 841(b)(1)(A) in 1988 and the
definition was placed directly in the substantive subsection, but
the applicability of the penalty enhancement still depended on the
classification of the prior offense as a felony. See Pub. Law No.
100-690, § 6452(a)(2), 102 Stat. 4181, 4371 (1988) ("[T]he term
'felony drug offense' means an offense that is . . . a felony under
any law of a State . . . ."). In 1994, Congress amended the
substantive enhancement provisions of both the CSA and the Import
Act so that they all uniformly used the term "felony drug offense."
See Pub. Law No. 103-322, § 90105, 108 Stat. 1796, 1987-88 (1994).
It also replaced the classification-based definition of "felony
drug offense" with the new sentence-based definition of the term
that presently resides in § 802(44). See id.
Roberson contends that the 1994 amendment was intended merely
to make uniform the parallel provisions in the CSA and the Import
Act. But such a structural intent does not preclude an additional
substantive intent: to replace the old classification-based
definition of "felony drug offense" with a new definition which
considers only the potential length of the sentence. See
Zimmerman, 409 F.3d at 476 (noting that a court "may assume that .
. . Congress was aware" of the previously existing statutory
provisions, and thus that its choice of "a different formulation"
was intentional). Such an intent makes sense in the context of the
evolving nature of the CSA. Initially, the district courts were
given broad leeway in fashioning sentences, but Congress reversed
course in 1984 by enacting mandatory penalties to avoid sentencing
disparities. See Todd E. Gonyer, Federal Sentencing in a Post-
Chapman World: What is a "Mixture or Substance" Anyhow?, 46 U. Kan.
L. Rev. 983, 984-88 (1998). Subsequent amendments in the 1980's
increased the consequences of those mandatory penalties. See id.
Thus, it would not be surprising to learn that Congress intended
the 1994 amendments to ensure that the mandatory recidivist penalty
provisions would be applied uniformly not only across statutory
lines, but also across state lines.
-30-
same subject matter -- the classification of offenses -- they are
coequal and should be read in pari materia (i.e., they should be
construed together). See United States v. Kelley, 712 F.2d 884,
889 (1st Cir. 1983). Moreover, continues Roberson, if we do not
read the definition of "felony" in conjunction with the definition
of "felony drug offense," then the definition of "felony" will
become superfluous. See United States v. Ven-Fuel, Inc., 758 F.2d
741, 751-52 (1st Cir. 1985) ("All words and provisions of statutes
are intended to have meaning and are to be given effect, and no
construction should be adopted which would render statutory words
or phrases meaningless, redundant or superfluous.").
The above-cited canons, as well as the canon, cited by
the government, that a specific provision governs as against a
general provision, see Morales v. Trans World Airlines, Inc., 504
U.S. 374, 384-85 (1992), are corollaries of the cardinal rule that
courts must strive to harmonize all the provisions of a statute to
give them all force and effect, see Sutherland, § 46:06. Absent a
conflict between the two provisions, resort to the canons (which
are, after all, only tools of construction) is unnecessary. Here,
we find no tension between the definition of "felony" and the
definition of "felony drug offense." Viewing the statute as a
whole, the two separate definitions are harmonized by recognizing
that they are used for different purposes. The structure of the
statute, and the differential use of the two terms, lead us to
infer that the terms were intended to carry independent meanings
for independent purposes. Applying the doctrine of in pari materia
-31-
to merge two definitional clauses would thus defeat their very
purposes. Cf. Kelley, 712 F.2d at 889 (holding that two
substantive provisions aimed at regulating the same area of conduct
-- disqualifying judges with a personal bias against a party --
should be construed in pari materia).
Because “felony drug offense” is a defined term of art
and we have found nothing in sections 802(44) or 841(b)(1)(A)
indicating a Congressional intent to incorporate the definition of
"felony" in the term "felony drug offense," we find no statutory
ambiguity. The 20-year mandatory minimum contained in §
841(b)(1)(A)(iii) is triggered when the defendant has a prior
conviction for an “offense that is punishable by imprisonment for
more than one year under any law of the United States.”
Accordingly, we find that the district did not err in applying the
20-year mandatory minimum sentence to the drug charge.11
11
Roberson also argues that we should vacate his sentence
because the district court violated his Sixth Amendment rights by
imposing the 20-year mandatory minimum sentence based on a prior
conviction that the government did not prove to the jury beyond a
reasonable doubt. Although this circuit has previously read
Almendarez-Torres v. United States, 523 U.S. 224 (1998), to
foreclose such an argument, see United States v. Ivery, 427 F.3d
69, 75 (1st Cir. 2005), Roberson urges us to re-examine the issue
in light of a trio of recent Supreme Court decisions, Shepard v.
United States, 544 U.S. 13 (2005); United States v. Booker, 543
U.S. 220 (2005); and Blakely v. Washington, 542 U.S. 296 (2004).
Roberson contends that these three cases combine to undermine the
continuing validity of Almendarez-Torres and our circuit precedent.
We recently rejected this argument sitting as an en banc court.
See United States v. Jimenez-Beltre, 440 F.3d 514, 520 (1st Cir.
2006) (en banc) ("[W]e are bound to follow [Almendarez-Torres]
until it is expressly overruled.").
-32-
III.
For the foregoing reasons, we affirm Roberson's
convictions and sentence.
-33-