United States Court of Appeals
For the First Circuit
No. 05-1826
UNITED STATES OF AMERICA,
Appellee,
v.
DUCAN FANFAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Schwarzer,* District Judge.
Rosemary Curran Scapicchio for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
November 8, 2006
*
Of the Northern District of California, sitting by
designation.
BOUDIN, Chief Judge. The complicated journey of this
criminal case began with the indictment of Ducan Fanfan in 2003 on
one count of conspiring to distribute and to possess with intent to
distribute 500 grams or more of cocaine in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B), 846 (2000). In a two-day trial conducted
in October 2003, a jury convicted Fanfan, who was thereafter
sentenced by the trial judge in June 2004 to 78 months in prison.
The sentence was well under the guideline level for the
amount of drugs attributed to Fanfan because the district judge,
acting in the period before United States v. Booker, 543 U.S. 220
(2005), deemed himself limited by Blakely v. Washington, 542 U.S.
296 (2004), to the 500 gram figure contained in the indictment and
the jury's verdict. On the government's appeal, the Supreme Court
reviewed the district court decision, and in concert with its
Booker decision, the Court then remanded Fanfan's case for
resentencing. Booker, 543 U.S. at 267.
The district judge resentenced Fanfan in May 2005 to 210
months in prison, treating the guidelines as advisory but
ultimately sentencing Fanfan within the guideline range that the
court found applicable. Fanfan now appeals, arguing that both his
conviction and the resentencing were flawed. We begin with
challenges to the conviction, then move to the sentence.
Fanfan's principal claim of error addressed to his
conviction is that certain evidence should not have been admitted.
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The contested evidence includes both out-of-court statements of co-
defendants and actions of Fanfan occurring after the main co-
conspirators (but not Fanfan himself) had been arrested. To
understand the evidence and its role requires considerable
background.
The indictment against Fanfan charged him with conspiring
from September 2002 to April 2003. The co-conspirators included
Vaughan Smith, Joe Ash, and Donovan Thomas, all of whom testified
for the government as part of plea agreements. With corroborating
detail, Thomas testified that starting in the summer of 2002 he
regularly purchased cocaine from Fanfan, who was based in
Massachusetts, and supplied it to Ash. Ash testified that he
supplied it to Smith, who was based in Maine. Ash also testified
that his sister and girlfriend sometimes made pick-ups from Thomas.
Both Smith and Ash described their own roles and actions
in terms consistent with Thomas' testimony, but neither of them
dealt directly with Fanfan or could testify to his role. The
closest connection Ash had to Fanfan was when Thomas told Ash that
"his man" had a car to sell. Ash gave Thomas $10,000 cash for the
vehicle. Fanfan accompanied Thomas when Thomas delivered the Lexus
to Ash, and Ash identified Fanfan at the trial as the man from whom
he purchased the car.
In late March 2003, agents arrested Smith, finding money
and drugs in his home, and on April 2, Smith arranged a controlled
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purchase from Ash, who was in turn arrested the next day with
drugs. Thomas was arrested later that same day when he traveled to
Maine to collect payment from Ash. At trial the government was
prepared to treat Thomas' arrest as terminating the conspiracy.
This is not necessarily so but, given the concession, we follow the
district court in treating what happened after Thomas' arrest as
post-conspiracy events.
Under arrest, Thomas made statements to the police
identifying Fanfan and admitting that he had been distributing
drugs for Fanfan since the summer of 2002. Thomas then paged
Fanfan, with the government recording the call, and ordered a
kilogram of cocaine and four and a half ounces of crack cocaine.
Thereafter, Thomas met Fanfan by prearrangement; Fanfan was
arrested, and police seized from his car 1.247 kilograms of cocaine
and 281.6 grams of cocaine base.
At trial, Thomas testified to the events just described
and tapes were played of the post-arrest conversations between
Thomas and Fanfan recording the ordering of the drugs and the
rendezvous arrangements between the two of them. The government
also offered the seized drugs in evidence. The district court
admitted all of the evidence but with a limiting instruction as to
out-of-court statements made by Thomas after his arrest.
In substance, the district court told the jury that
anything said by Thomas, out of court and after his arrest, could
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not be considered for its truth but only to provide context for the
jury's understanding of Fanfan's statements and actions; Fanfan's
own statements, of course, were party admissions not subject to a
hearsay objection, but the communications between Thomas and Fanfan
were cryptic, as is commonly the case in drug dealing. The
district court also told the jury not to consider the evidence of
events occurring post-conspiracy as evidence of any other crime,
but only as evidence to prove the charged conspiracy.
Fanfan first argues that the evidence of a major drug
transaction after the charged conspiracy had ended was "bad act"
evidence of conduct not itself part of the charged crime. Such
evidence is not admissible to show criminal propensity and must
have some other legitimate purpose (such as showing identity or
plan), Fed. R. Evid. 404(b); and, in addition, the evidence must be
excluded if unfair prejudice substantially outweighs the probative
value of the evidence. Fed. R. Evid. 403.
We will assume that these objections were properly
preserved, as it does not affect the outcome. The evidence of this
final transaction was undoubtedly potent: although Thomas' own in-
court testimony of his pre-arrest drug dealing with Fanfan amply
supported Fanfan's conviction, Thomas was the only one who could
squarely identify Fanfan as the man who supplied the rest of the
chain. And since Thomas had a plea deal with the government and a
prior record, his in-court testimony was subject to impeachment.
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The final, post-conspiracy transaction, in which Fanfan was seized
with drugs corresponding to Thomas' order, not only bore out
Thomas' earlier testimony but provided vivid evidence of Fanfan's
criminal endeavor.
However, this final transaction was not just some random
drug crime by Fanfan from which could be inferred a propensity on
his part to commit drug crimes and from which, in turn, a jury
could infer that he engaged in the earlier conspiracy charged in
this case. Here, the post-conspiracy crime was close in time to
the conspiracy as described by Thomas; the procedure used to
contact Fanfan and order the drugs corresponded to Thomas'
description of the conspiracy; and Fanfan's appearance at the
rendezvous with the drugs order completed the equation.
Thus, even if not part of the conspiracy because (unknown
to Fanfan) the conspiracy had ended, the final transaction
evidenced the modus operandi by which the conspiracy was carried
out, which in turn answered the question of the identity of the
lead perpetrator–-a purpose for which bad act evidence is allowed.
Fed. R. Evid. 404(b). The case law in this circuit and elsewhere
supports the view that modus operandi evidence can be admitted to
prove identity, despite Fanfan's attempt to distinguish some of the
cases on their facts.1
1
E.g., United States v. Trenkler, 61 F.3d 45, 52 (1st Cir.
1995); United States v. Williams, 985 F.2d 634, 637 (1st Cir.
1993); United States v. Perry, 438 F.3d 642, 648 (6th Cir.), cert.
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As for Rule 403, the disputed evidence was highly
probative. The final transaction was an integral part of a prior
pattern of behavior described by Thomas and, but for his arrest,
would have been part of the conspiracy between Fanfan and others in
the chain. It was not inflammatory evidence--just a vivid
depiction mirroring prior events to which Thomas could properly
testify. See United States v. Procopio, 88 F.3d 21, 30 (1st Cir.
1996). The risk that the jury would overvalue or misuse the
evidence was minimal.
Both the Rule 403 and the Rule 404 issues, as presented
in this case, involved judgment calls as to the application of
clear rules to clear facts. On such application-of-law judgments,
the district judge enjoys considerable latitude and will be
overturned only for abuse of discretion. Trenkler, 61 F.3d at 52.
In this case, the district court was not only within its discretion
but also clearly right in admitting the evidence.
Turning to a related but different claim of error, Fanfan
argues that the limiting instruction as to the use of this bad act
evidence was insufficient. The judge did caution the jury that it
could consider the post-arrest transaction only to assist it in
deciding whether the pre-arrest conspiracy had occurred and that it
could convict only for the conspiracy charged in the indictment and
denied, 126 S. Ct. 2045 (2006); United States v. Anifowoshe, 307
F.3d 643, 647 (7th Cir. 2002); United States v. Sanchez, 988 F.2d
1384, 1393-94 (5th Cir.), cert. denied, 510 U.S. 878 (1993).
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not for any other crime. Fanfan says that the jury should also
have been told not to draw the "propensity" inference.
So far as we can tell, Fanfan made no request for such an
instruction; while Fanfan maintains that he objected to the
instruction, the government disagrees and we search in vain for
evidence in the transcript of an objection. That is hardly
surprising: many defense lawyers would shrink from an instruction
that the jury should not count Fanfan's propensity for drug dealing
against him. Rather than erasing the risk that the jury would
misuse the bad act evidence, such an instruction could easily
invite the jury's attention to a quite natural inference.
Even had there been an objection, the absence of a
"propensity" instruction in this case could not conceivably have
affected the outcome of the trial and so would be harmless error,
if it were error at all. United States v. Olano, 507 U.S. 725, 734
(1993); United States v. Castellini, 392 F.3d 35, 52 (1st Cir.
2004). The permissible inference from the objected-to evidence in
this case lay on top of, but was far more powerful than, mere
propensity evidence: it strongly suggested that Fanfan was
continuing the same course of conduct that comprised the
conspiracy.
In a final brief challenge to the conviction, Fanfan says
that his constitutional right to a jury trial was trammeled because
the verdict form, after first asking for a general verdict of
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guilty or not guilty, added a contingent special interrogatory.
The interrogatory said that, if the jury convicted, it should then
determine whether the conspiracy encompassed 500 grams or more of
cocaine.
The question was asked because Apprendi v. New Jersey,
530 U.S. 466 (2000), required a jury determination of 500 or more
grams in order to increase the statutory maximum penalty from 20
years to 40 years. Compare 21 U.S.C. § 841(b)(1)(B), with id. §
841(b)(1)(C). Furthermore, at the time, it was uncertain whether
the Supreme Court was moving toward a requirement that guideline
enhancements, even within the statutory maximum, be based on jury
findings--a course Booker rejected by only a single vote after
Fanfan's conviction.
In some situations, special interrogatories or special
verdicts pose risks in criminal cases; for example, they can be
asked in a form that suggests through progressive steps a
particular outcome. United States v. Spock, 416 F.2d 165, 182 (1st
Cir. 1969). But we have not adopted any flat prohibition, and this
special interrogatory posed no such risk and had a permissible
purpose. There was no error, let alone plain error.
Fanfan's remaining arguments concern the sentence. As
background we note that, at the original sentencing in June 2004,
the district judge had, on a precautionary basis, made the ordinary
guideline calculations; only then did the judge eliminate upward
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adjustments, other than the 500 gram determination, because he
assumed that Blakely would be held to require jury findings based
on proof beyond a reasonable doubt as to guideline enhancements,
including drug quantity and relevant conduct.
The Supreme Court, of course, rejected this requirement
in Booker and remanded Fanfan's case for resentencing. Booker, 543
U.S. at 245, 267. On remand, the district court declined to
reexamine the factual determinations it had made at the first
sentencing to compute the guideline range; but the judge did
consider the computed guideline range as advisory and took note of
the statutory section 3553(a) factors as well. The result was a
sentence of 210 months, which is in the middle of the calculated
guideline range.
The numerous claims of sentencing error pressed on appeal
fall into several different categories. At the threshold, Fanfan
says that no resentencing should have been allowed. But the
Supreme Court expressly held that the government could seek
resentencing of Fanfan under the new post-Booker sentencing regime,
id. at 267, which was patently different from the approach that had
been taken by the district court; the Supreme Court imposed no
preconditions to resentencing.
The more interesting issues concern the district court's
calculations of drug amounts. At the original pre-Booker
sentencing, the district court had determined, in accordance with
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the pre-sentence report, the specific amounts of cocaine that
Thomas had supplied to Ash during the period of the conspiracy
including a seizure at Ash's arrest, all of which Thomas said had
been secured from Fanfan.
To this the court added, as relevant conduct, the
additional powder cocaine and crack cocaine seized from Fanfan at
the time of his arrest. Using the formula that treats crack
cocaine in a 100-to-1 ratio in relation to powder cocaine, the
powder cocaine and crack cocaine together corresponded to an
offense level of 34. Two more levels were added because Fanfan was
regarded as an organizer, leader or manager in a conspiracy.
U.S.S.G. § 3B1.1(c) (2003).
A sentencing court must make a reasonable determination
of drug quantity, United States v. Ventura, 353 F.3d 84, 87 (1st
Cir. 2003), cert. denied, 541 U.S. 980 (2004), but Fanfan suggests
no plausible basis for disputing the calculations of the amounts of
powder cocaine and crack cocaine attributed to him. Fanfan
suggests that regardless of the drug quantity attributable to the
conspiracy, he was entitled to a determination of the amount of
drugs fairly foreseeable as to him. The short answer is that Ash
said he got all his drugs from Thomas and Thomas said he got all of
his from Fanfan. See United States v. Colon-Solis, 354 F.3d 101,
103 (1st Cir. 2004).
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Fanfan does not dispute the amounts seized from him on
his arrest, but he does object to the other amounts estimated
during the life of the conspiracy. The PSR was reasonable in
estimating the 1.25 kilograms of cocaine powder for which Fanfan
was responsible. The probation officer used Ash's estimates of the
amount he sold to Smith as the amount attributable to Fanfan
(because Thomas was Ash's only supplier, and Fanfan Thomas' only
supplier). The probation officer did not "average" the amounts
based on the most and least sold in a transaction, see United
States v. Sepulveda, 15 F.3d 1161, 1196-99 (1st Cir. 1993), cert.
denied, 512 U.S. 1223 (1994), but instead reasonably used Ash's
estimates of per week sales and number of weeks at that level.
Fanfan next says that there is no proof that what the
district court found to be 281 grams of crack cocaine was crack
cocaine rather than cocaine base. As United States v. Robinson,
144 F.3d 104, 109 (1st Cir. 1998), explains, crack cocaine is a
form of cocaine base that is prepared for smoking and is chemically
identical to other forms of cocaine base, such as the paste from
which ordinary powder cocaine is produced. Under the guidelines,
the "crack" form of cocaine base is subject to greater penalties.
Id.
In this case Thomas ordered crack from Fanfan in the
final transaction, and both a local officer and a federal agent
identified the seized substance as crack cocaine based upon its
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appearance; typically, crack cocaine has a yellowish, rock-like
appearance. The district judge's findings are tested for clear
error, Robinson, 144 F.3d at 109, and the district court did not
err at all--let alone clearly err--by saying that the substance was
crack cocaine. We have previously held that "[l]ay opinion
testimony suffices to prove that a substance is crack." United
States v. Richardson, 225 F.3d 46, 50 (1st Cir. 2000), cert.
denied, 531 U.S. 1203 (2001).
Although (given the government's concession) the crack
cocaine was not formally part of the "conspiracy," the guidelines
required its consideration in sentencing if it was part of the same
course of conduct. U.S.S.G. § 1B1.3(a) (2003). The crack cocaine
was ordered by Thomas along with powder cocaine in the same manner
as he ordinarily ordered drugs from Fanfan; Fanfan delivered the
crack cocaine at the same time as the powder cocaine; and both
events occurred in very close proximity to the conspiracy whose
termination (by Thomas' arrest) was unknown to Fanfan.
Drug dealers often supply both powder and crack cocaine
depending upon what is ordered. Whether or not Thomas had
previously ordered crack cocaine, Fanfan supplied it without
hesitation for this final transaction.2 Under the guidelines and
2
The transcript of the conversation in which Thomas ordered
the crack cocaine from Fanfan reveals no hesitation. Thomas said
"I wanna something hard too," to which Fanfan replied: "Oh okay."
When Thomas asked, "Can you um, I mean can you work with that, you
gonna hook me up?" Fanfan replied, "Yeah, I mean I wanna yeah."
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precedents, the crack was easily labeled as part of the same course
of conduct, U.S.S.G. §1B1.3 n.9; United States v. Barbour, 393
F.3d 82, 92 (1st Cir. 2004), cert. denied, 126 S. Ct. 212 (2005);
and assuredly there was no clear error in the trial court's
assessment. Id. at 92; see also United States v. Moore, 130 F.3d
1414, 1418-19 (10th Cir. 1997).
In the course of attributing the seized crack to Fanfan,
the district judge referred briefly to an earlier statement by the
federal agent; that agent had reported Thomas as admitting that he
had ordered crack from Fanfan during the conspiracy itself. Fanfan
says that he should have been allowed an evidentiary hearing to
cross-examine the agent about his statement and to cross-examine
Thomas in view of the fact that Thomas had not stated at trial that
he had ever purchased crack cocaine from Fanfan.
At sentencing, the district court is not directly bound
by ordinary rules of evidence and strict confrontation rules do not
apply, U.S.S.G. § 6A1.3; United States v. Lizardo, 445 F.3d 73, 88
(1st Cir. 2006), cert. denied, 2006 WL 2725918 (Oct. 30, 2006), but
under some circumstances considerations of fairness and utility
might require an evidentiary hearing to resolve a critical issue of
fact. United States v. Rodriguez, 336 F.3d 67, 70 (1st Cir. 2003).
This is not such an instance: in the present case, the crack
cocaine was unquestionably part of the same course of dealing,
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whether or not Thomas had purchased crack during the conspiracy
itself.
Moving to issues that are largely legal in character,
Fanfan says that the 100-to-1 ratio overstates the significance of
crack cocaine; but this is effectively a legal determination by
Congress and not one that a court may disregard. United States v.
Pho, 433 F.3d 53, 65 (1st Cir. 2006). Similarly, Fanfan's legal
claim that the guideline determinations had to be made by a jury
based on proof beyond a reasonable doubt has been rejected by the
Supreme Court in Booker. Lizardo, 445 F.3d at 89.
The guideline calculations were not treated as
determinative. The district court recognized that the guidelines
were only advisory, although entitled to significant weight, United
States v. Jiminez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006), and
the judge addressed other factors and explained why he chose a
sentence in the middle of the guideline range. Fanfan makes no
showing that the outcome was unreasonable. United States v.
Navedo-Concepción, 450 F.3d 54, 59 (1st Cir. 2006).
Finally, Fanfan argues that his sentence violates ex post
facto principles because the sentencing regime was changed to his
disadvantage after his crime was committed. No ex post facto
argument is available because Booker's changes were worked by
judicial decision and not legislation; Fanfan can only argue a due
process violation. We have discussed the relevant authority in
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United States v. Lata, 415 F.3d 107 (1st Cir. 2005), and need not
repeat the discussion.
Any due process claim would also fail. United States v.
Pérez-Ruiz, 421 F.3d 11, 15 (1st Cir. 2005), cert. denied, 541 U.S.
1005 (2006). At the time Fanfan committed the crime, April 2003,
he faced a statutory maximum of 40 years. This was prior to both
Blakely and Booker, and the only cloud on a prosecutor's horizon
was Apprendi, which dealt with statutory maximums. Apprendi, 530
U.S. at 489. Fanfan's sentence is not higher than could
"realistically have been imagined." Lata, 415 F.3d at 112.
Finally, Fanfan says that the government improperly
"manipulated" both the amount and the kind of drugs ordered in the
final transaction in order to increase Fanfan's sentence. Almost
every controlled buy has the potential to increase a sentence.
United States v. Connell, 960 F.2d 191, 194 (1st Cir. 1992). The
question is whether the government's conduct was "outrageous" or
"intolerable" and rose to the level of "extraordinary misconduct."
United States v. Montoya, 62 F.3d 1, 4 (1st Cir. 1995).
Here, no pressure (e.g., threats or pleas) was placed on
Fanfan to supply the crack cocaine.3 Thomas asked for crack
cocaine, and it was readily and immediately supplied. Nor is this
3
Cf. United States v. Jacobson, 503 U.S. 540, 550 (1992);
Sherman v. United States, 356 U.S. 369, 373 (1958); United States
v. Gamache, 156 F.3d 1, 11-12 (1st Cir. 1998); United States v.
Brooks, 215 F.3d 842, 846 (8th Cir. 2000).
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a case where the government provided opportunities for successive
escalating crimes as part of a sting operation. Cf. Connell, 960
F.2d at 194. Whether or not Fanfan had previously sold crack to
Thomas, he obviously had a source of supply and a willingness to
deal in it, and Fanfan has shown no overreaching by the government,
let alone extraordinary misconduct. Montoya, 62 F.3d at 4.
There are other scattered references to guideline errors,
but we have addressed all that appear significant. That the new
sentence is much longer than the old proves nothing; the old one
was constrained by a view of sentencing law from which the Supreme
Court has retreated. That the sentence is quite long is a result
of determinations made by Congress, which we are not free to
ignore.
Affirmed.
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