United States Court of Appeals
For the First Circuit
No. 07-2084
UNITED STATES OF AMERICA,
Appellee,
v.
SEAN KING,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Boudin, Stahl and Lipez,
Circuit Judges.
David Abraham Silverman, by appointment of the court, for
appellant.
Terry L. Ollila, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on brief for
appellee.
January 29, 2009
BOUDIN, Circuit Judge. Sean King was convicted on
federal charges directed to his involvement in a robbery of the
Bellwether Credit Union in Manchester, New Hampshire, and he now
appeals from his conviction and sentence. Because the sufficiency
of the evidence is not directly at issue, we abbreviate the
description of the evidence.
The robbery in question occurred on October 19, 2005.
Bank employees testified that two men had entered the bank,
threatened the tellers with guns, and taken $18,450. One of the
robbers was wearing a red jacket with white stripes; the other wore
dark clothing and left a footprint on the counter. They were in
the bank for about seventy seconds, after which bank customers saw
the two men run out of the bank and speed away in a blue Cadillac
STS.
Later discoveries led police to suspect King and Steven
Huard as the robbers. Approximately nine hours after the robbery,
an officer found a blue Cadillac STS that had been reported stolen
by its owner two days before the robbery. The car had been wiped
down, but officers recovered a latex glove bearing Huard's
fingerprints. In addition, a source told police that King had been
bragging about committing the robbery.
King's girlfriend admitted to police that she had seen
King and Huard wipe down a blue Cadillac STS wearing latex gloves,
that she was with King the night of the robbery, that she helped
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him count a large amount of money, that King showed her an article
about the robbery, that she had seen King and Huard with guns and
that King had burned Huard's red and white striped jacket (which
the police then recovered). The police also matched one of King's
shoes to the footprint on the bank counter and found an article
about the robbery among his belongings.
In November 2006, King was charged by superceding
indictment with conspiracy to rob, and robbery of, a credit union,
18 U.S.C. §§ 371, 2113(a) (2006) (counts one and two); possession
and brandishing of a firearm (King's weapon) in furtherance of a
crime of violence and the same offense without brandishing (based
on Huard's weapon), id. §§ 924(c)(1)(A)(i), (ii) (counts three and
four); and interstate possession and transportation of a stolen
motor vehicle, id. §§ 2312-13 (counts five and six). A jury
convicted on all six counts and King was later sentenced to 360
months' imprisonment.
On this appeal, King first argues that count three should
have been dismissed based on the government's alleged agreement to
dismiss that count should King be convicted of both counts three
and four. The government had added the second gun charge,
attributing Huard's weapon to King on a Pinkerton theory, Pinkerton
v. United States, 328 U.S. 640 (1946), assertedly because it had
not been able to recover King's own gun (named in count three) and
thought he might otherwise escape conviction on any gun charge.
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Defense counsel had objected to the trial judge that
count four was vindictive, having been added to the indictment
because King had refused to help the government convict Huard.
This motion was based on defense counsel's belief that the second
gun conviction could subject King to an additional twenty-five year
term under section 924(c)(1)(C)(i) as interpreted in Deal v. United
States, 508 U.S. 129 (1993). This danger turned out to be
imaginary,1 but before defense counsel corrected his mistake the
district judge had said:
[W]e may be able to make your vindictive
prosecution go away if we simply have an
agreement here that if he's convicted on both
Count Three and Count Four, that I will
sentence him as if he is only convicted on the
Huard charge. We will all agree to the
dismissal of the King 924(c) if he's convicted
on the Pinkerton.
The prosecutor had replied, "Yes, I have no problem."
The next day the defense counsel, after discovering he
was incorrect under Pena-Lora, withdrew his motion. Then, during
the trial, the district court ruled that counts three and four were
multiplicitous, that is, charging the same crime in two different
counts; the judge obtained the parties' agreement that "we will not
for sentencing purposes treat . . . Three and Four as distinct
1
In United States v. Pena-Lora, 225 F.3d 17 (1st Cir. 2000),
cert. denied sub. nom Lorenzo-Perez v. United States, 531 U.S. 1114
(2001), the court ruled that two section 924(c) gun charges based
on the same predicate offense constituted one unit of prosecution,
id. at 32, and therefore King would not be subject to the
additional, consecutive twenty-five year term under Deal.
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counts. If [King is] convicted on either Three or Four or both
Three and Four, he will be treated as having committed one crime."
Finally, at sentencing, the district judge adopted the
pre-sentence report, which attributed only one gun to King. But
(without objection), the court imposed sentences on all six counts,
with concurrent sentences on counts three and four, as well as $100
special assessments for each count of conviction. Thus, King has
two convictions--although the sentence is not longer on that
account--under section 924(c)(1)(A) and has been assessed $100 more
than he would for a single count of conviction. 18 U.S.C. § 3013.
Although the government was entitled to present both gun
scenarios to the jury, probably both could best have been
incorporated into one count. United States v. Verrecchia, 196 F.3d
294 (1st Cir. 1999) (possession of multiple weapons by a felon
comprises a single offense); United States v. Lindsay, 985 F.2d
666, 676 (2d Cir.), cert. denied, 510 U.S. 832 (1993). In any
event, under Verrecchia, Pena-Lora, and more recent precedent,
United States v. Rodriguez, 525 F.3d 85 (1st Cir. 2008), King
should not have had separate convictions and sentences on both
counts.
But King's claim both below and before us is not based on
this line of argument nor was the objection itself preserved at
sentencing, so the standard of review is only for plain error.
United States v. Olano, 507 U.S. 725 (1993). One might contend
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that even if the double conviction were plain error and
prejudicial, the extent of prejudice--a nominal second conviction
with concurrent sentence and a $100 assessment--does not meet the
"miscarriage of justice" requirement, id. at 736. Yet a pair of
Supreme Court decisions reach the opposite result, Rutledge v.
United States, 517 U.S. 292, 302 (1996); Ball v. United States,
470 U.S. 856 (1985), and many other circuits have so read those
decisions.2
Pena-Lora itself found plain error in such a situation;
but the sentences there were consecutive and the court merely
ordered that they be made concurrent. But in Pena-Lora, both
parties agreed that the consecutive sentence was a mistake, the
government suggested a concurrent sentence and the choice of remedy
seems not to have been an issue in this court. Neither Rutledge
nor Ball appears to have been cited to the panel.
In any event, while the practical difference in remedies
may not be great, Rutledge and Ball indicate that the Supreme
2
See United States v. Miller, 527 F.3d 54, 73-74 (3d Cir.
2008); United States v. Ogba, 526 F.3d 214, 237-38 (5th Cir.),
cert. denied, 129 S. Ct. 220 (2008); United States v. Parker, 508
F.3d 434, 439-41 (7th Cir. 2007); United States v. Zalapa, 509 F.3d
1060, 1064-65 (9th Cir. 2007); United States v. Sublett, 189 F.
App'x 413, 416-17 (6th Cir. 2006) (unpublished); United States v.
Bennafield, 287 F.3d 320, 324 (4th Cir.), cert. denied, 537 U.S.
961 (2002); United States v. Gore, 154 F.3d 34, 47-48 (2d Cir.
1998). But see United States v. Bailey, 206 F. App'x 650, 652-53
(8th Cir. 2006) (unpublished), cert. denied, 127 S. Ct. 2901
(2007); United States v. Gricco, 277 F.3d 339, 351 (3d Cir. 2002);
United States v. Roberts, 262 F.3d 286, 292-94 (4th Cir. 2001),
cert. denied, 535 U.S. 991 (2002).
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Court's preferred outcome in this situation is vacation of the
duplicative conviction. Following Rodriguez also aligns us with
the dominant approach in the circuits and requires only a
mechanical adjustment on remand. As for the prosecutor's supposed
contingent agreement to dismiss, this was offered only in response
to King's motion, which was itself then withdrawn, and is not the
basis of our remand.
King next argues that the prosecutor made improper
remarks in closing argument. Because King did not object, our
review is for plain error. United States v. Figueroa-Encarnacion,
343 F.3d 23, 27 (1st Cir. 2003), cert. denied, 540 U.S. 1140
(2004). Even if improper, the prosecutor's remarks would only
matter if they "so infected the trial with unfairness as to make
the resulting conviction a denial of due process." Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (internal quotation marks
omitted) (citation omitted); United States v. Munoz-Franco, 487
F.3d 25, 67-69 (1st Cir.), cert. denied, 128 S. Ct. 678 (2007).
The prosecutor disparaged the defense, calling it "the
buckshot defense," a strategy of "throw[ing] as much garbage
against the wall and hop[ing], beyond all hope, that something
sticks." She also described defense counsel as having tried "to
push [a] young 17-year-old" government witness around and said,
"Could you actually believe that Attorney Levin was trying to get
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Hookset police officer Aaron Brown to testify about was the radio
on, was the radio off?"
Whatever one thinks of the phrasing of these remarks,
they do not come within miles of persuading us that they had any
impact whatever on the verdict. They are not inflammatory, nor do
they refer to inadmissible evidence or appeal to the jury to rely
upon improper considerations. If defense counsel had objected at
trial, the trial judge might well have told the prosecutor to tone
down her language; but defense counsel did not and that is the end
of the matter.
King also challenges the district court's decision to
deny his motion for a mistrial based on a juror's consultation of
outside material. After the jury returned its verdict, a deputy
clerk found an envelope in the jury room containing a two-page
document from the American Judicature Society procured by one of
the jurors. The court had not given the jury the document to
consider in its deliberations, so the court called the jurors back
in the next day to engage in a voir dire.
The court first questioned the juror who had brought the
document and the foreman. The former admitted to having found it
after a search for jury deliberation guidelines, making fourteen
copies and offering them to the foreman. The foreman returned them
without giving them to other jurors. The foreman confirmed this
account. The other jurors were then questioned; one said that he
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had seen the document on the table, looked at it briefly, and put
it back, focusing instead on the court's instructions.
The district court then denied King's motion for a
mistrial, saying that it had reviewed the document and that
it is in fact a very good statement of what we
expect jurors to do. I would think about
using it myself, as a matter of fact, as a
supplement to the instructions that I give. .
. . It is entirely inoffensive. It in fact
gives good advice to jurors as to how to
behave. It's entirely consistent with my
instructions. That it was reviewed by anybody
is not problematic and does not call into
question the integrity of the jury process.
The court also said that the jurors had been told not to do outside
research about the case but had not been specifically warned not to
inquire into their responsibilities as jurors.
Our review of the district court's inquiry into possible
jury taint and ultimate decision to deny a mistrial is for abuse of
discretion. United States v. Tejeda, 481 F.3d 44, 52 (1st Cir.),
cert. denied, 128 S. Ct. 612 (2007). King does not contest the
thoroughness of the inquiry and has given no reason why the juror's
action prejudiced the trial. Declaring a mistrial is a remedy of
last resort, United States v. Lara-Ramirez, 519 F.3d 76, 82 (1st
Cir. 2008); no sensible judge would have granted the motion here.
Finally, King challenges his sentence, which is long
partly because of his criminal history. He does not claim that the
district court miscalculated the guideline range, which was 360
months to life, but says that the judge should have an opportunity
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to reconsider its sentence under Kimbrough v. United States, 128 S.
Ct. 558 (2007), and United States v. Boardman, 528 F.3d 86 (1st
Cir. 2008), both decided after the sentencing.
Broadly described, these cases allow the district court
to deviate from the guidelines based on categorical policy
disagreements, and King points to the career offender guidelines
which increased his guideline range substantially. See U.S.S.G. §
4B1.1. King made no request at sentencing that the guideline
should be disregarded on policy grounds but did argue that his
criminal history overestimated his dangerousness.
The district court rejected the argument that King's
future dangerousness was overstated. Instead, it noted that one of
its primary concerns was protection of the public--King had over
thirty prior convictions. The court said that the sentence would
"insure that the defendant is well into his sixties by the time
that he is eligible for release." The concern about future
dangerousness is a common one in sentencing.
In Boardman, where a sentence was imposed before
Kimbrough but appealed afterwards, we ordered a remand where we
found "some explicit indication that [the court] might well alter
its sentence in light of [Kimbrough]." 528 F.3d at 87. Nothing
in this case suggests that the district court harbored any doubt
about the soundness of the career offender guidelines as applied to
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King. If anything, the court's statement strongly indicates
otherwise.
The convictions and sentences are affirmed, except that
the conviction and sentence as to count four, including the
associated $100 special assessment, are vacated. We remand to the
district court for entry of judgment consistent with this opinion.
It is so ordered.
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