United States v. Roberts

10-1230-cr
United States v. Roberts

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2010

(Argued: May 20, 2011 Decided: September 29, 2011)

Docket No. 10-1230-cr

UNITED STATES OF AMERICA,

Appellee,
—v.—

O’NEAL ROBERTS,

Defendant-Appellant.
_________________

Before:
RAGGI, LYNCH, and WALLACE, Circuit Judges.*
______

On appeal from a judgment of conviction for violation of federal narcotics laws

entered after trial in the United States District Court for the Eastern District of New York

(Dora L. Irizarry, Judge), defendant argues that (1) his statements pursuant to a proffer

agreement should not have been admitted into evidence because (a) they were the product

of economic coercion, and (b) his attorney’s conduct did not trigger the proffer agreement’s

*
The Honorable J. Clifford Wallace, United States Court of Appeals for the Ninth
Circuit, sitting by designation.

1
waiver of Fed. R. Evid. 410; (2) his Sentencing Guidelines range should not have been

enhanced for abuse of a position of trust, see U.S.S.G. § 3B1.3; and (3) the ordered

$3,160,000 forfeiture was miscalculated. We identify no merit in the first two arguments but

remand for further fact-finding as to the last.

AFFIRMED IN PART, VACATED IN PART AND REMANDED.

_____________________

STEPHANIE M. CARVLIN, Law Office of Stephanie M. Carvlin, New York,
New York, for Defendant-Appellant.

WALTER M. NORKIN (Susan Corkery, on the brief), Assistant United States
Attorneys, Of Counsel, on behalf of Loretta E. Lynch, United States Attorney
for the Eastern District of New York, Brooklyn, New York, for Appellee.

REENA RAGGI, Circuit Judge:

Defendant O’Neal Roberts was convicted after a jury trial in the Eastern District of

New York (Dora L. Irizarry, Judge) of crimes committed while working for American

Airlines at John F. Kennedy International Airport (“JFK”), specifically, conspiracy to import

and actual importation of five or more kilograms of cocaine and conspiracy and attempt to

distribute and possess with intent to distribute the same quantity of cocaine. See 21 U.S.C.

§§ 841(a)(1), (b)(1)(A)(ii), 846, 952(a), 960(a)(1), (b)(1)(B), and 963.1 In this appeal from

1
Roberts was also tried on several counts of money laundering, see 18 U.S.C.
§§ 1956(a)(2)(B)(i), (h), which were dismissed at trial. Thus, we do not further discuss those
charges.

2
the judgment entered on March 31, 2010, Roberts argues that (1) his statements made

pursuant to a proffer agreement should not have been received in evidence because (a) they

were elicited through economic coercion, and (b) defense counsel’s conduct did not trigger

the provision in Roberts’s proffer agreement waiving Fed. R. Evid. 410; (2) his Sentencing

Guidelines range was erroneously enhanced for abuse of a position of trust, see U.S.S.G.

§ 3B1.3; and (3) the ordered $3,160,000 forfeiture was miscalculated, see 21 U.S.C. § 853;

Fed. R. Crim. P. 32.2. We identify no merit in the first two arguments, but we conclude that

the last requires further fact-finding to determine whether the conspiracy’s proceeds were

realized at the wholesale or retail level. Accordingly, we affirm all aspects of the judgment

except for the forfeiture order, which we vacate, remanding the case for further proceedings

consistent with this opinion.

I. Background

This section summarizes the trial evidence supporting Roberts’s conviction. Other

facts pertinent to Roberts’s challenges to the judgment of conviction are detailed in the

discussion points addressing those issues.

A. The November 5, 2005 Importation of Five Kilograms of Cocaine

On November 5, 2005, United States Customs and Border Protection (“CBP”) agents

investigated possible criminal activity involving American Airlines flight 1384, which had

arrived at JFK from Barbados at 10:41 p.m. (“Barbados flight”). On meeting the flight,

Agent Michael Roessel’s attention was drawn to a person offloading the rear of the aircraft

3
whom Roessel had never previously seen doing such work. Rather, Roessel knew the

individual to be assigned to the control office, where he handed out work schedules and

assignments to other American Airlines employees.2

Agents proceeded to search each item offloaded from the Barbados flight. At one

point, Roessel observed that Roberts had stopped offloading items even though some

remained on the aircraft. When, after a half hour, Roberts did not resume offloading, the

agents instructed him to remove all remaining items from the plane. The first removed

container was empty. Inside the second, however, agents found a canvas bag containing five

brick shaped packages, which subsequent laboratory analysis confirmed contained a total of

5,038 grams — just over five kilograms — of 84% pure cocaine. Immigration and Customs

Enforcement (“ICE”) Agent William McAlpin testified that the seized cocaine had a

wholesale value of $121,000, and a retail value of $403,000.

B. Beckford Implicates Roberts in the Charged Crimes

Roberts was not arrested on November 5, 2005. Nevertheless, his role in smuggling

the drugs seized from the Barbados flight that night was detailed at trial by Clive Beckford,

an American Airlines ramp agent whose duties included loading and unloading aircraft.

Beckford testified that he, Roberts, and two other American Airlines employees, Matthew

2
Although Agent Roessel made no in-court identification of this person, the
government argued that the totality of the evidence demonstrated that it was Roberts.
Because we are obliged to view the evidence in the light most favorable to the government,
see In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 177, 198 (2d Cir. 2008),
we henceforth refer to the individual as Roberts.

4
James and Victor Bourne, had been involved in smuggling drugs into the United States

through JFK since at least 2003. Beckford explained that drugs would be loaded onto

American Airlines planes in foreign countries. To avoid heightened government scrutiny of

international cargo, the conspirators frequently did not remove the drugs when planes first

arrived in the United States. Rather, they waited until an aircraft completed at least one

domestic flight, whereupon the drugs would be unloaded on the plane’s next arrival at JFK.

To effect this scheme, the conspirators tracked a plane’s movement on computer printouts,

with Bourne having general responsibility for making “everything run[] smoothly,” Trial Tr.

at 356, and Roberts, as crew chief, ensuring that trusted employees offloaded drugs from the

identified flights. Beckford stated that between 2003 and his own 2009 arrest, the

conspirators followed this procedure for approximately twenty flights, one of which was a

test flight, another of which imported marijuana, and the remainder of which all imported

bricks of cocaine. Beckford stated that the number of cocaine bricks he saw removed from

individual flights ranged from as few as four or five to as many as fifteen.

With respect to November 5, 2005, Beckford testified that he was working at JFK

when Roberts told him that drugs would be on the Barbados flight. Beckford proceeded to

perform his regular loading and unloading duties until Bourne advised him that the Barbados

flight had landed. Bourne and Beckford then drove to the gate in a tractor, where they saw

Roberts unloading the plane using a machine called a “Cochran.” At the same time,

however, they saw a large number of CBP agents around the plane, whereupon Bourne and

5
Beckford left the area without stopping.

C. Roberts’s Statements to Federal Authorities

In response to an implicit defense assertion that Beckford was not present when the

Barbados flight was offloaded on November 5, 2005, a matter discussed in more detail in

Part II.A.2 of this opinion, see infra [11-26], ICE Agent Heather O’Malley was permitted to

testify to certain parts of a proffer statement that Roberts made while attempting to cooperate

with federal authorities on November 2, 2006. With his attorney present, Roberts told federal

officials that on November 5, 2005, he had been summoned to a meeting by Victor Bourne,

who instructed Roberts to remove baggage from the Barbados flight. Roberts adjusted crew

schedules to ensure that employees who would normally have offloaded the Barbados flight

would be occupied elsewhere. Roberts then called Clive Beckford and told him that Bourne

needed Beckford to remove bags from the Barbados flight. When Roberts arrived at the gate

for the Barbados flight, which had landed early, Bourne was already waiting on a freight

tractor. Bourne and Beckford then began unloading baggage from the flight, while Roberts

operated a Cochran. At one point, Beckford told Roberts that any containers remaining on

the aircraft were empty, whereupon Beckford and Bourne drove away with the removed

baggage. Roberts proceeded to the front of the aircraft where he offloaded what he thought

were empty containers. While this account of events differed in some respects from that

provided by Beckford, it conclusively refuted defense counsel’s implicit assertion that

Beckford was not present for the unloading of the Barbados flight.

6
 D. Sentence and Forfeiture

Found guilty on all drug counts, Roberts was sentenced to concurrent terms of 240

months’ imprisonment — a variance from his 265-292 month Guidelines range — concurrent

terms of five years’ supervised release, and a total special assessment of $400. Roberts was

further ordered to forfeit $3,160,000 in drug proceeds realized by conspirators in the course

of the charged crimes.

This appeal followed.

II. Discussion

A. Challenges to the Admission of Roberts’s November 2, 2006 Proffer
Statements

Roberts asserts that his conviction must be vacated because it was obtained through

inadmissible evidence, specifically, Agent O’Malley’s testimony about the statements

Roberts made to federal authorities on November 2, 2006, pursuant to a proffer agreement.

Roberts argues that the statements should have been suppressed as involuntary because they

were obtained through economic coercion. Alternatively, he submits that his attorney’s

conduct was insufficient to trigger the provision in Roberts’s proffer agreement waiving the

protections of Fed. R. Evid. 410. We reject both arguments as without merit.

1. Economic Coercion

Prior to trial, Roberts unsuccessfully moved in the district court for suppression of all

statements that he made to federal authorities in the course of three proffer sessions held on

October 16, October 31, and November 2, 2006. Roberts asserted that he was questioned at

7
the first session without counsel or advice of rights, and that his statements at the final two

sessions were induced by economic coercion, specifically, by threats that he would lose his

job at the airport unless he provided federal authorities with information about criminal

activity at JFK. The district court conducted a hearing at which Roberts testified, as well as

six witnesses called by the government, i.e., an Assistant U.S. Attorney, three federal agents,

and two of Roberts’s former attorneys, all of whom had arranged or attended one or more of

the proffer sessions. The court found the government’s witnesses entirely credible, but found

Roberts, who was caught in numerous lies and contradictions during the hearing, “unworthy

of belief.” United States v. Roberts, No. 07-CR-425, 2009 WL 700188, at *7 (E.D.N.Y.

Mar. 13, 2009). Based on these assessments, the district court found that, contrary to

Roberts’s assertions, he had been represented by counsel and advised of his rights before

questioning at the first session, and had not been subjected to economic coercion at the

second and third sessions. See id. at *8-10.

Roberts does not challenge the district court’s findings of fact. Thus, we construe the

evidentiary record in the light most favorable to the government. See In re Terrorist

Bombings of U.S. Embassies in E. Afr., 552 F.3d 177, 198 (2d Cir. 2008). Roberts also does

not assert legal error in the district court’s rejection of his advice of rights or counsel claim.

On appeal, he claims only that the district court applied the wrong legal standard in

evaluating his economic coercion claim. Specifically, he faults the district court for requiring

a threat of job loss to establish economic coercion. We review this claim of legal error de

8
novo, see id., and conclude that it is without merit.

The district court’s correct understanding of the legal standard applicable to a claim

of economic coercion is apparent from its statement that a significant “threat of economic

harm” or “economic sanctions” — whatever the form — could violate a defendant’s Fifth

Amendment right against self incrimination. United States v. Roberts, 2009 WL 700188, at

*9 (internal quotation marks omitted). This is consistent with Supreme Court precedent

holding that government officials may not compel statements through threat of “economic

or other sanctions capable of forcing the self-incrimination which the [Fifth] Amendment

forbids.” Minnesota v. Murphy, 465 U.S. 420, 434 (1984) (internal quotation marks

omitted); see Garrity v. New Jersey, 385 U.S. 493, 499-500 (1967). This does not mean that

the “mere risk of any adverse economic consequence” rises to the level of coercion; the

economic threat must “reasonably appear[] to have been of sufficiently appreciable size and

substance to deprive the accused of his free choice to admit, to deny, or to refuse to answer.”

United States v. Montanye, 500 F.2d 411, 415 (2d Cir. 1974) (internal quotation marks

omitted). This determination depends on an assessment of the totality of the circumstances.

See Miller v. Fenton, 474 U.S. 104, 115 (1985); United States v. Anderson, 929 F.2d 96, 99

(2d Cir. 1991).

In assessing the totality of the evidence in this case, the district court focused on

threats of job loss not because it mistakenly thought that job loss was a necessary element

of any economic coercion claim, but because that was the type of economic coercion to

9
which Roberts himself claimed to have been subjected. In his affidavit, testimony, and

briefs, Roberts consistently maintained that law enforcement authorities had made statements

to him that threatened him with loss of his employment at American Airlines. The district

court, however, specifically found Roberts unworthy of belief. Thus, the only statement

made by any credible witness even relevant to Roberts’s economic coercion claim was Agent

O’Malley’s acknowledgment that she might have told Roberts, at the end of the second

proffer session, that if his cooperation ended, ICE agents would be required to report his

arrest to CBP, the agency charged with deciding who had access to restricted airport areas.

The district court did not err in concluding that advising Roberts of the required

agency procedures of both ICE and CBP, made without any reference to adverse economic

consequences for Roberts, did not so plainly threaten Roberts’s employment as to deprive

him of free choice in deciding whether to speak with government authorities. In urging

otherwise, Roberts submits on appeal that “work on the ramp required him to have Customs

access.” Def.’s Br. at 46. Even if this is true, no credited evidence indicates that American

Airlines would necessarily fire an employee for losing ramp access. See United States v.

Solomon, 509 F.2d 863, 872 (2d Cir. 1975) (rejecting coercion challenge where record

demonstrates “no certainty what penalty” employer might prescribe); see also Garrity v. New

Jersey, 385 U.S. at 494, 497-98 (identifying economic coercion from state statute requiring

public officers to forfeit their position if they invoked their Fifth Amendment privilege);

United States v. Stein, 233 F.3d 6, 15 (1st Cir. 2000) (“Where . . . invocation of the Fifth

10
Amendment does not, by itself, result in forfeiture of the job or license in question, the fact

that claiming the Fifth may, as a practical matter, result in damage to one’s chances of

retaining the privilege at stake does not necessarily establish a constitutional violation.”).

Moreover, quite apart from any agent’s mention of future CBP-approved ramp access,

Roberts had to have known that his continued employment at American Airlines was in

jeopardy from the moment he was implicated in a scheme to use that company’s planes to

smuggle drugs. So too was his liberty. Whether Roberts’s interests in his liberty and his

employment were best served by maintaining his innocence or negotiating a plea agreement,

by remaining silent or cooperating, undoubtedly presented him with hard choices. But the

Fifth Amendment “does not protect against hard choices.” United States v. Solomon, 509

F.2d at 872. It protects against coercion that deprives a defendant of the opportunity to make

such choices for himself. Here, the district court applied the correct legal standard to

Roberts’s coercion claim, and we identify no error in its determination that coercion had not

been demonstrated from the totality of the evidence.

2. The Proffer Agreement Waiver

a. Legal Principles

Roberts submits that his proffer statements were, in any event, inadmissible under

Fed. R. Evid. 410, and that the district court erred in finding his attorney’s conduct to have

triggered a provision of his proffer agreement waiving the protections of that rule. We

disagree.

11
 Rule 410 provides that any statements made by a defendant in the course of plea

discussions that do not result in a guilty plea are thereafter not admissible against him. See

also Fed. R. Crim. P. 11(f). Because the rule constitutes an exception to the general principle

that all relevant evidence is admissible at trial, we construe it narrowly and recognize that its

protections can be waived. See United States v. Mezzanatto, 513 U.S. 196, 205 (1995);

United States v. Barrow, 400 F.3d 109, 116 (2d Cir. 2005). Roberts’s proffer agreement

contains such a waiver, permitting the government to use statements made pursuant to the

agreement as substantive evidence to “rebut, directly or indirectly, any evidence offered or

elicited, or factual assertions made, by or on behalf of [Roberts] at any stage of a criminal

prosecution.” Proffer Agreement at 1. In considering Roberts’s challenge to the district

court’s finding that this waiver provision was triggered by the conduct of Roberts’s counsel

at trial, we construe the agreement de novo, but we review the district court’s evidentiary

ruling admitting particular statements only for abuse of discretion. See United States v.

Barrow, 400 F.3d at 117.

In Barrow, we construed a similarly worded waiver provision in a proffer agreement

to constitute “an expansive waiver” reaching “any evidence, whether offered directly or

elicited on cross-examination,” as well as any “factual assertions,” whether made “directly

or implicitly.” Id. at 118-19 (internal quotation marks omitted). We specifically recognized

that factual assertions could be implied by counsel in an opening statement or in questions

posed on cross-examination. See id. At the same time, we warned that, even in cases of

12
expansive waivers, district courts need “to consider carefully what fact, if any, has actually

been implied to the jury before deciding whether proffer statements fairly rebut it.” Id. at

119.

Particular caution is required when the purported fact is asserted by counsel rather

than through witness testimony or exhibits. The latter undoubtedly constitute evidence and,

thus, necessarily imply some fact. By contrast, counsel’s statements are not admissible

evidence. Thus, arguments or questions challenging “the sufficiency of government proof,”

id., or the credibility of a witness “without a factual assertion contradicting facts admitted in

the proffer statement,” do not trigger a waiver provision, United States v. Oluwanisola, 605

F.3d 124, 133 (2d Cir. 2010). To illustrate, Barrow drew a distinction between questions

challenging a witness’s perception or recollection of an event, which do “not necessarily

imply that the event did not occur, only that the witness may not have seen or reported it

accurately,” and questions accusing the witness of fabricating an event, which in the context

of that case “implicitly assert[ed] that no such [event] ever took place.” 400 F.3d at 119; cf.

United States v. Oluwanisola, 605 F.3d at 132-33 (cautioning that, in other contexts,

questions implying witness fabrication would not imply that event admitted by defendant did

not take place). The distinction is more easily stated than applied. In close cases, the

identification of what facts are being implied by counsel’s questions and arguments may

depend on the “unique insights” a district court gains from actually seeing and hearing these

matters pursued in the dynamic context of a trial. United States v. Barrow, 400 F.3d at 119.

13
We are disinclined to second guess reasonable assessments informed by such insights. This

case, however, presents no such close calls because, as discussed in the next section, the

district court admitted Roberts’s proffer statements to rebut facts implied through

documentary evidence.

b. Circumstances Leading to Admission of the Proffer Statements

With the aforementioned legal principles in mind, we review the facts leading to the

district court’s decision to admit particular statements made by Roberts at the November 2,

2006 proffer session. Not only do these circumstances fail to demonstrate the error urged by

Roberts; they reveal the district court’s commendable care in reviewing three separate

applications to admit Roberts’s proffer statements to rebut facts insinuated by defense

counsel first in his opening statement, then on cross-examination of government witness

Beckford, and finally through documentary evidence. Although skeptical throughout of

counsel’s claim that his actions were intended to avoid the assertion of any facts contradicted

by his client’s proffer statements, the district court denied the first two motions and granted

the third only when defense counsel insisted on offering documentary evidence that implied

a fact — Beckford’s absence from the airport at the time the Barbados flight was offloaded

— contradicted by Roberts’s proffer statements.

i. Defense Counsel’s Opening Statement

In opening to the jury, Roberts’s counsel did not argue simply that the government

would fail to produce sufficient evidence to carry its burden, that Beckford would prove not

14
to be a credible witness, or that the government would offer no evidence to corroborate his

testimony. Rather, counsel charged the government with engaging in a “reckless”

prosecution of his client based on “bad information” that it had failed to corroborate. Trial

Tr. at 294. Indeed, counsel charged the government with recklessness five times in the first

five paragraphs of his opening. After thus establishing government recklessness as the

defense theme, counsel proceeded to argue that “portions” of Beckford’s story regarding the

November 5 seizure “do not add up,” and that if the government “would have checked it

properly, they would [have] see[n] that.” Id. at 295-96.

The government first moved to offer Roberts’s proffer statements to rebut this charge

of recklessness and the implied factual assertion that it had made no effort to corroborate

Beckford’s information. The proffer statements would have shown that the government had

corroboration, from Roberts himself, for critical aspects of Beckford’s testimony about the

charged drug-trafficking scheme.

In opposition, defense counsel asserted that he only argued that “portions” of

Beckford’s account did not add up, which did not necessarily reference matters discussed by

Roberts in his proffer statements. The district court was not obliged to accept this narrow

characterization of the implied fact given that, in his opening, counsel further told the jury

that the government’s failure to corroborate Beckford with respect to the unspecified

“portions” of his story “call[ed] his whole account of what took place that day into serious

question,” id. at 296, an inference contradicted by Roberts’s corroboration of the critical core

15
of Beckford’s testimony. Moreover, counsel argued that when the jury drew this inference

for itself, it would ask itself “how come [the government] didn’t see it.” Id. Counsel

provided the answer: “because the agents working on this case were reckless.” Id.

We need not here decide whether Roberts’s proffer statements were admissible to

rebut these assertions of a “completely reckless” prosecution “without any kind of

verification” of Beckford’s story, id. at 332, because the district court, acting well within its

discretion, denied the government’s motion to admit, noting the possibility for unfair

prejudice and the early stage of the proceeding. See United States v. Barrow, 400 F.3d at

119 (observing that waiver “does not mandate receipt of the proffer statements in evidence”

and noting district court’s “considerable discretion” to exclude even relevant evidence

pursuant to Fed. R. Evid. 403). The court did, however, “put the defense on notice that

should this theory” re-emerge or should “some other theory emerge that is contrary to the

admissions” Roberts made in his proffer statements, the court would “allow the government

to renew its application.” Trial Tr. at 343-44.

ii. Beckford’s Cross-Examination

The government did renew its application to admit when, on cross-examination,

defense counsel attempted to impeach Beckford’s testimony that he was working at JFK on

November 5, 2005, the date drugs were seized from the Barbados flight, with questions

suggesting that he was, in fact, in Miami. Defense counsel opposed the application, insisting

that he questioned Beckford only “about being in Miami at a certain time” on November 5,

16
which did not “necessarily mean he was never in New York or never in JFK” on that date.

Id. at 444-46.

In fact, counsel first asked Beckford simply if he was “actually in Miami” on

November 5. Id. at 415. Upon receiving a negative answer, counsel showed Beckford a

document not in evidence, identified as a “Passenger Activity Report,” and asked if Beckford

now “recall[ed] being in Miami on November 5th, 2005.” Id. at 416. When Beckford said

he did not “remember this,” counsel asked if the document “refresh[ed] [his] recollection as

to where [he] might have been” on that date. Id. Only after Beckford stated that he did not

recall what was shown in the document did counsel repeat his question by reference to a

particular time, asking Beckford if he recalled being “in Miami on November 5, 2005 at

about 2:52 p.m.” Id. at 417. Beckford said he did not remember “because, like I said, I was

there [i.e., JFK], I was working when the seizure went down. I was right there.” Id. This

response indicates that Beckford plainly understood the line of questions to be challenging

his testimony that he was at JFK on November 5 at the time drugs were seized. The district

court was of the same view, rejecting counsel’s argument that he was only seeking to

impeach that part of Beckford’s testimony reporting that he had arrived for work at JFK on

November 5 in the mid-afternoon without insinuating that Beckford was not there later in the

day to witness events leading to the cocaine seizure.

Once again, we need not decide whether counsel’s actions triggered the waiver

provision of the proffer agreement because the district court continued to exercise its

17
discretion in favor of Roberts and denied the government’s motion to admit the proffer

statements. It explained that if counsel would strictly adhere to his representation that he was

only questioning Beckford’s presence at JFK in the mid-afternoon on November 5, Roberts’s

proffer statements would not be admissible to contradict that limited assertion because “there

[was] that window of opportunity where Mr. Beckford, even if he had been in Miami [at 2:52

p.m.] could have returned back to JFK and could have been at the airport” when the

Barbados flight arrived at 10:41 p.m., as Roberts acknowledged. Id. at 451. Nevertheless,

the district court cautioned defense counsel that he was “walking a fine line” and should

“watch very carefully” that he stayed on the side that was prompting the court to deny the

government’s application. Id. at 451-52. Further, the court advised that it would instruct the

jury that counsel’s questions were not evidence. See United States v. Barrow, 400 F.3d at

119 (observing that, where assertion is implied by counsel’s questions, district court might

“instruct[] the jury to ignore the factual assertion stated or implied, rather than admit

defendant’s proffer statements in rebuttal”).

iii. Defense Counsel’s Proffer of Documentary Evidence

The morning after this ruling, defense counsel advised the court that he intended to

offer into evidence two documents recently provided by the government: (1) American

Airlines flight lists showing that Beckford had traveled from Jamaica to Miami and from

Miami to JFK on November 5, 2005, arriving in New York at 9:38 p.m.; and (2) American

Airlines records showing that Beckford first “swiped into work” that night at 12:03 a.m., i.e.,

18
very early on November 6, and well after the Barbados flight was unloaded. Trial Tr. at 464.

Reviewing the documents, the district court immediately recognized that they implied the

fact it had originally understood the defense to be insinuating in the prior day’s cross-

examination of Beckford, i.e., “that Mr. Beckford was nowhere near JFK on November 5th,”

an assertion contradicted by Roberts’s proffer statements. Id. at 466. Defense counsel

maintained that he would use the documents only to undermine Beckford’s testimony

regarding his activities at JFK before 9:38 p.m. on November 5, but his own argument

revealed that a broader inference would effectively be implied without need for counsel to

say so expressly:

I’m not going further to say [Beckford] was not at JFK Airport. However,
they’re assuming he was there. There’s nothing to prove that he was there
other than his own statements which have now been contradicted . . . . His
testimony regarding being at JFK has been contradicted for three quarters of
the day, obviously [he] wasn’t there until 9:38 p.m. if he was there at all.
...
The import, the facts are he wasn’t there for certain periods of time when he
said he was there. After 9:38 p.m., they want to argue he was there? I don’t
have to necessarily say anything. The thing is, up to this point, I haven’t said
that he was not there at all.

Id. at 470-71 (emphasis added).

Considering the proffered documents in light of defense counsel’s opening and cross-

examination, the district court concluded that it was “disingenuous” for counsel to suggest

that he was offering documents to disprove Beckford’s presence at the airport in the

afternoon to challenge Beckford’s credibility but not to imply that Beckford also was not

there at the relevant time of the flight unloading. Id. at 476. Nevertheless, continuing to

19
exercise caution, the district court advised counsel that it would not admit Roberts’s proffer

statements in rebuttal if the record stood as it was and the documents were not placed into

evidence. See United States v. Barrow, 400 F.3d at 119 (recognizing district court discretion

to exclude proffer statements when factual assertion was only inadvertently and briefly

interjected into proceedings “and counsel agrees not to pursue the matter further”). On the

other hand, if counsel introduced the documents, the government would be allowed to offer

the proffer statements to rebut the implied fact that Beckford was not at the airport at the time

the Barbados flight was unloaded. Only when counsel insisted that he “want[ed] these

documents to come in,” did the court grant the government’s motion to admit. Trial Tr. at

481.

The court then offered the parties a number of options with respect to introduction of

the documentary evidence: (1) the defense could have the record custodian, then in court,

return on a later date so that the documents could be put into evidence on the defense case;

(2) the defense could call the witness out of order that day; (3) the government could call the

witness and introduce the documents; or (4) the parties could stipulate to the documents’

admissibility. When the government expressed a preference for the third option “if the

defense is intent on having these exhibits come in,” Roberts’s counsel voiced no objection

to that procedure, simply reiterating, “I do want the documents in evidence.” Id. at 482.3

3
This record belies Roberts’s argument on appeal that the government, rather than
Roberts, sought introduction of Beckford’s swipe-card records. The government may have
moved these records as well as the airline passenger lists into evidence, but only after

20
Accordingly, the government moved the documents into evidence, and then rebutted their

implication that Beckford was not at the airport on the night of November 5 by having Agent

O’Malley testify to court-approved excerpts from Roberts’s proffer statements. See supra

at [6].

c. The District Court Correctly Found Defense Counsel’s Actions
To Have Triggered the Proffer Agreement’s Waiver Provision

On this record, we identify no merit in Roberts’s contention that the district court

abused its discretion in finding that his attorney’s actions triggered the waiver provision of

his proffer agreement. To the extent defense counsel used argument and cross-examination

to imply facts contradicted by Roberts’s proffer statements, the district court was prepared

to address such conduct simply through jury instructions advising that attorney statements

were not evidence. Defense counsel, however, went further, insisting that documentary

evidence be put before the jury that strongly implied that Beckford could not have been at

the gate on November 5 when the Barbados flight was offloaded. Passenger-list documents

showed that Beckford’s flight from Miami to New York did not land at JFK until 9:38 p.m.,

while swipe-card records showed, in defense counsel’s own characterization, that Beckford

“did not swipe into work until November 6th at three minutes after midnight.” Trial Tr. at

464 (emphasis added). Had counsel limited his proffer to the flight information, his

Roberts’s counsel repeatedly stated that he sought their admission. Because Roberts did not
object to this procedure below or on appeal, we have no need to address it further. We
conclude only that the district court properly held Roberts responsible for facts implied by
this documentary evidence.

21
argument that the proof impeached only Beckford’s testimony that he had been working at

JFK on the afternoon of November 5 might have been more convincing. But that

representation is undermined by counsel’s simultaneous proffer of the swipe-card evidence.

Roberts had no reason to offer those documents except to suggest that Beckford did not

report for work at JFK until just after midnight on November 6, by which time it would have

been too late to witness events occurring more than an hour earlier with respect to the

offloading of the Barbados flight. Indeed, in his closing argument to the jury, defense

counsel used the documentary evidence to urge just such a factual inference:4

American Airlines Flight 1384 from Barbados arrived at JFK at 10:41 p.m. on
November 5th, 2005. That’s about one hour and three minutes after Clive
Beckford’s flight from Miami landed at JFK. . . .

[D]id Clive Beckford sneak out on to the ramp and meet Victor Bourne after
he got off that flight from Miami that night? . . . [B]efore you even say maybe
he did, you first have to ask how would that have been possible?

Charles Schmidt, an American Airlines senior security representative and
witness for the Government, said that it is not possible for someone to go from
the terminal when a flight arrives out to the ramp area without swiping his
employee ID to gain access to the secure ramp area. . . .

Now, Mr. Schmidt did say that a person could walk from a jet bridge . . . to the
ramp without swiping your ID card by walking down the stairs connected to
the jet bridge. But Clive Beckford said that he did not walk from a jet bridge
to the ramp on November 5th, 2005.

Mr. Schmidt did say that an employee can engage in the practice of
piggybacking and enter a secure area without swiping his own employee ID

4
Defense counsel did not argue to the district court or on appeal that he altered his
summation because Roberts’s proffer statements had already been admitted.

22
 card by following directly behind another employee who does swipe. But once
again, Clive Beckford said he did not engage in the practice of piggybacking
on November 5th, 2005.

Mr. Schmidt further testified that Government Exhibit Number 904 shows that
Clive Beckford did swipe his employee ID card at the east baggage area [of]
. . . the American Airline terminal . . . at 12:03 a.m., three minutes after
midnight on November 6th, 2005.

The problem for Clive Beckford and the Government is that it’s not November
5th, 2005 and it’s one hour and 22 minutes after the flight from Barbados
landed at JFK. So not only do you have to consider the fact that this face-to-
face conversation with Mr. Roberts at the beginning of the shift in the
afternoon of November 5th, 2005 did not happen, you now have to ask the
question how did Clive Beckford get to the ramp on November 5th, 2005 to
see what he claims to have seen and do what he claims to have done?

Id. at 720-22. The factual assertion thus being urged from the documents was that Beckford

could not have been on the ramp for the offloading of the Barbados flight. Because that fact

was rebutted by Roberts’s proffer statements, the district court properly admitted excerpts

from those statements into evidence.5

5
Defense counsel effectively acknowledged that Roberts’s proffer statements rebutted
the implicit assertion that Beckford was not present for the offloading when he continued the
quoted argument as follows:

Did [the government] give you any evidence to help you figure it out? . . . If
they did not resolve this story line by the close of the evidence, the verdict has
to be ‘not guilty.’ The Government knows this. So they try to give you
evidence to tie up the loose ends of this story line, and they may point you to
[a] statement that they said Mr. Roberts made.

Trial Tr. at 722. Attempting to mitigate the effect of Roberts’s statements, defense counsel
argued that the government had “trouble understanding what Mr. Roberts says from time to
time,” and asked the jury to question whether Agent O’Malley got “the statements right.”
Id. at 723-24.

23
 United States v. Oluwanisola, 605 F.3d 124, relied on by Roberts, warrants no

different conclusion. In that case, the defense did not put documentary evidence before the

jury to imply facts that contradicted the defendant’s proffer statements. Rather, counsel

cross-examined a government agent in a way that cast doubt on his credibility. See id. at

129-30 (noting that defense counsel asked agent if his supervisor had memorialized agent’s

account of events in a report). Reversing the district court’s finding that such questioning

was, by itself, sufficient to trigger the waiver provision of the proffer agreement, this court

observed that the query could not be construed as “an implicit factual assertion” that events

testified to by the agent had not occurred “when the defendant ha[d] not directly or indirectly

contradicted the facts he admitted in his proffer.” Id. at 132-33; see also United States v.

Barrow, 400 F.3d at 119 (noting that “challenging a witness’s perception or recollection of

an event does not necessarily imply that the event did not occur”).

In this case, however, defense counsel did more than use cross-examination to

question Beckford’s credibility. As already noted, the district court acknowledged that such

credibility challenges would not trigger the proffer agreement’s waiver provision under our

case law. Instead, counsel went further, proffering documentary evidence that implied a

particular fact, i.e., that Beckford could not have been present for the offloading of the 10:41

p.m. Barbados flight because his flight from Miami did not arrive in New York until 9:48

p.m. on November 5, and Beckford did not swipe into work at JFK until 12:03 a.m. on

November 6. Unlike the cross-examination in Oluwanisola, this proffer did not simply

24
impugn Beckford’s credibility. It also put documentary evidence before the jury that implied

a fact that was contradicted by Roberts’s proffer statements expressly placing Beckford at

the gate during the offloading of the Barbados flight, i.e., sometime after 10:41 p.m. but

before 12:03 a.m. Accordingly, we identify no error in the district court’s determination that

defense counsel triggered the proffer agreement’s waiver provision or in its admission of

excerpts from Roberts’s proffer statements.

B. Challenge to Sentencing Guidelines Calculation

Roberts submits that his sentence is unreasonable because it is infected by procedural

error in the calculation of his Sentencing Guidelines range. See United States v. Cavera, 550

F.3d 180, 189-90 (2d Cir. 2008) (en banc). Specifically, he faults the district court for

applying a two-point enhancement to his offense level for abuse of a position of trust. See

U.S.S.G. § 3B1.3. The argument fails on the merits.

An abuse of trust enhancement is warranted if the defendant “abused a position of

public or private trust . . . in a manner that significantly facilitated the commission or

concealment of the offense.” Id.; see United States v. Friedberg, 558 F.3d 131, 133 (2d Cir.

2009). We have held that the “professional or managerial discretion” required to establish

a position of trust, U.S.S.G. § 3B1.3 cmt. n.1, “must be entrusted to the defendant by the

victim” of the offense, United States v. Broderson, 67 F.3d 452, 455-56 (2d Cir. 1995); see

also United States v. Barrett, 178 F.3d 643, 647 (2d Cir. 1999) (noting that “victim’s

perspective” is utilized in applying abuse of trust enhancement). Victim status “depends

25
upon the circumstances of the case.” United States v. Cusack, 229 F.3d 344, 349 (2d Cir.

2000). Thus, crimes may have more than one victim, and a § 3B1.3 enhancement may apply

whether the person whose trust a defendant abused was the “primary” or a “secondary”

victim of the crime. Id.; see United States v. Barrett, 178 F.3d at 647.

On appeal, Roberts asserts that to the extent he abused a position of private trust

conferred on him by his employer, American Airlines, to commit the crimes of conviction,

no § 3B1.3 enhancement was warranted because American Airlines was not a victim of those

crimes. Rather, the only victim was the United States. At the outset, we note that Roberts

did not make this argument in the district court. There, he argued only that the government

failed to establish that he used his crew chief position at American Airlines to facilitate the

commission or concealment of his crimes. In these circumstances, we review his victim

challenge only for plain error, which requires “‘(1) error, (2) that is plain, and (3) that affects

substantial rights.’” United States v. Paul, 634 F.3d 668, 674 (2d Cir. 2011) (internal

brackets omitted) (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)). If those

conditions are satisfied, we may then exercise our discretion to notice a forfeited error if it

“seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

(internal brackets and quotation marks omitted).

We identify no such plain error in the district court’s identification of American

Airlines as one victim of Roberts’s drug trafficking. American Airlines entrusted Roberts

with discretion to assign crews to load and unload its airplanes. Roberts abused that trust by

26
exercising his discretion in such a way as to facilitate a drug smuggling operation. He

assigned co-conspirators to offload airplanes used to bring drugs into the United States, while

at the same time diverting crews unconnected to the conspiracy to other aircraft, thereby

ensuring that they did not discover the secreted contraband.

As a consequence, Roberts’s abuse of his position of trust exposed his employer to

harm, for example, public criticism for its employee’s criminal conduct, with possible

adverse consequences to the airline’s business operations. This, by itself, permitted the

district court to identify American Airlines as a victim of Roberts’s crimes. See United

States v. Cusack, 229 F.3d at 349 (holding party a victim where defendant’s abuse of trust

cast party in “extremely unfavorable light” (internal quotation marks omitted)); see also

CNN, 2 Former Airline Workers at JFK Indicted on Drug Smuggling Charges (Oct. 14,

2010), http://articles.cnn.com/2010-10-14/justice/new.york.airport.cocaine_1_baggage-

handlers-airline-employees-airline-workers?_s=PM:CRIME (describing indictment of

Bourne and co-conspirator); U.S. DEA, Former American Airlines Employee Sentenced to

240 Months in Prison for Smuggling Drugs into the United States (Mar. 15, 2010),

http://www.justice.gov/dea/pubs/states/newsrel/2010/nyc031510.html. That conclusion is

reinforced by the fact that Roberts’s abuse of trust further exposed his employer to criminal

scrutiny and the possibility of fines or forfeiture. See 19 U.S.C. § 1584(a)(2) (imposing on

master or owner of vessel $1,000 per ounce fine for cocaine found on board and not

appearing in manifest); 21 U.S.C. § 881(a)(4) (subjecting to forfeiture “[a]ll conveyances,

27
including aircraft” used in the unlawful transport of controlled substances).

In these circumstances, Roberts cannot identify error, much less plain error, in the

application of a § 3B1.3 enhancement to his Guidelines calculation based on his abuse of the

position of trust he held at American Airlines.6 Accordingly, we identify no procedural error

in his sentence.

C. Challenge to Forfeiture Calculation

Roberts challenges the $3,160,000 forfeiture order in his case, asserting that the record

evidence does not support a finding that the conspiracy obtained this amount in proceeds

from its drug trafficking activities. The district court arrived at the challenged amount by

finding that the conspiracy smuggled at least seventy-nine kilograms (i.e., 79,000 grams) of

cocaine into the United States and then multiplying that weight by its estimated street value

of $40 per gram. We review the district court’s factual findings regarding forfeiture for clear

error and its legal conclusions de novo. See United States v. Sabhnani, 599 F.3d 215, 261

(2d Cir. 2010), cert. denied, 131 S. Ct. 1000 (2011).

Title 21 U.S.C. § 853(a)(1) states that a defendant convicted of a drug crime “shall

forfeit . . . any property constituting, or derived from, any proceeds the person obtained,

directly or indirectly, as the result of” the crime of conviction. In the case of a narcotics

6
In light of this conclusion, we need not consider whether a § 3B1.3 enhancement was
further warranted by Roberts’s abuse of a position of public trust, specifically, his abuse of
access to restricted airport areas, a trust conferred by federal CBP authorities, to facilitate his
drug trafficking scheme.

28
conspiracy, this mandatory liability is joint and several among all conspirators. See United

States v. Benevento, 836 F.2d 129, 130 (2d Cir. 1988); cf. United States v. Fruchter, 411

F.3d 377, 384 (2d Cir. 2005) (applying joint and several liability for criminal proceeds from

racketeering enterprise). The procedures applicable to a forfeiture determination are detailed

in Fed. R. Crim. P. 32.2. The government’s burden of proof with respect to forfeiture is a

preponderance of the evidence. See United States v. Kalish, 626 F.3d 165, 168 (2d Cir.

2010).

In this case, the government sought to carry its burden by proving the quantity of

cocaine dealt by the conspiracy and then urging that the amount be multiplied by the price

it could have commanded. We identify no error in the district court’s use of this approach.

See United States v. Treacy, 639 F.3d 32, 47-48 (2d Cir. 2011) (stating that district court’s

forfeiture calculations may be based on “reasonable estimate” in light of “available

information”). Specifically, we reject Roberts’s argument that the evidence in this case was

insufficient to permit a preponderance finding as to the quantity of cocaine smuggled into the

United States by the charged conspiracy. Clive Beckford testified that in the period from

2003 to 2009, the conspiracy imported between four and fifteen kilograms of cocaine on at

least seventeen occasions, not including one test trip, one trip importing marijuana, and the

November 5, 2005 trip from Barbados resulting in a seizure of drugs. Roberts’s proffer

statements — the use of which Roberts did not dispute at sentencing — corroborated

Beckford’s accounts and suggested that his estimates may have been low. Roberts admitted

29
personally unloading fifteen bricks of cocaine on one occasion and estimated that the

conspiracy imported thirty to forty kilograms of cocaine several times a week. This evidence

supports the district court’s conservative estimate that the conspiracy imported fifteen

kilograms of cocaine on at least one occasion and four kilograms of cocaine on each of

sixteen occasions, for a total of seventy-nine kilograms, or 79,000 grams, of cocaine. See

United States v. Treacy, 639 F.3d at 47-48; cf. United States v. Kalish, 626 F.3d at 168

(affirming forfeiture calculation based on defendant’s routine fraudulent activity).

Similarly, the evidence was sufficient to permit the district court to find by a

preponderance that the conspiracy distributed this quantity of cocaine. Agent McAlpin

offered expert testimony that this quantity of cocaine, possessing a purity level comparable

to that seized on November 5, 2005, was consistent with distribution rather than personal use.

This was supported by Beckford’s testimony that, on at least one occasion, he and Roberts

sent money representing “drug profits” to Jamaica to purchase more drugs. Trial Tr. at 404-

05. The conspirators’ successful distribution of the smuggled drugs could also be inferred

from Beckford’s testimony that Bourne and Roberts paid him between $2,000 and $10,000

each time he participated in an importation.

Roberts’s objection to the district court’s valuation for the cocaine merits more

discussion. Contrary to Roberts’s assertion, the government was not obliged to adduce “drug

records” or evidence of specific “monetary transactions” to support a preponderance finding

as to the dollar amount realized from the conspirators’ distribution of the smuggled cocaine.

30
Def.’s Br. at 81-82. Conspiracies are, by their nature, shrouded in secrecy and, thus, such

evidence may not always be available. Consequently, the law does not demand mathematical

exactitude in calculating the proceeds subject to forfeiture. Indeed, because the purpose of

forfeiture is punitive rather than restitutive, see Libretti v. United States, 516 U.S. 29, 41

(1995), district courts are not required to conduct an investigative audit to ensure that a

defendant “is not deprived of a single farthing more than his criminal acts produced,” United

States v. Lizza Indus., Inc., 775 F.2d 492, 498 (2d Cir. 1985) (making observation in context

of forfeiture of racketeering proceeds). Rather, district courts may “use general points of

reference as a starting point” for a forfeiture calculation and “make reasonable

extrapolations” supported by a preponderance of the evidence. United States v. Treacy, 639

F.3d at 48.

Here, Agent McAlpin, testifying as an expert witness with respect to drug values,

provided the district court with two possible starting points for calculating the value of the

distributed drugs when he stated, without contradiction, that at the time of the charged

distribution conspiracy, a kilogram of high quality cocaine would have sold for a wholesale

price of $24,000. Meanwhile, if such cocaine were “cut” or diluted to a strength consistent

with street sales, it could command a retail price of $40 per gram. See generally United

States v. Quiroz, 13 F.3d 505, 514 (2d Cir. 1993) (noting that “matters such as the price of

a kilogram of cocaine in New York City . . . are appropriate areas” for expert testimony).

Roberts now faults the district court for using the retail rather than wholesale price for

31
cocaine as the multiplier in calculating proceeds realized from the crimes of conviction in his

case. No such objection was raised in the district court. There, Roberts argued more

generally that any reliance on an estimated value of the seized cocaine to extrapolate total

proceeds was overly speculative and that no evidence showed the “wholesale or retail price

negotiation regarding these alleged shipments.” Def.’s Mem. of Law in Opp. to Gov’t’s

Forfeiture Request at 6. Accordingly, we review the district court’s use of a retail-value

multiplier to estimate drug proceeds under the rigorous plain error standard. See United

States v. Paul, 634 F.3d at 674.

The government argues that no error can be identified here because it is always

“permissible” and “in fact the most reliable method” to use a retail-value multiplier in

calculating drug proceeds. Gov’t’s Br. at 65. In support, it cites United States v. Awad, 598

F.3d 76 (2d Cir.), cert denied, 131 S. Ct. 613 (2010). In that case, involving the importation

of khat plants, whose constituent cathinone is a controlled substance, the forfeiture amount

was calculated by multiplying drug quantities by street value. See id. at 78. That use of

retail value, however, was not at issue on appeal and, thus, we had no occasion to consider

whether a retail-value multiplier was properly supported by the evidence in that case. See

id. at 78 n.4. In Awad, we ruled only that a defendant was subject to a forfeiture order under

21 U.S.C. § 853(a)(1) even if he “possesses no assets at the time of sentencing.” Id. at 78.

Thus, Awad cannot decide this case.

More relevant to the identification of possible error is law that affords a district court

32
considerable discretion in estimating the proceeds realized from drug trafficking provided

those estimates find support in a preponderance of the evidence. See United States v. Treacy,

639 F.3d at 47-48. Thus, if the evidence indicates that it is more likely than not that a

conspiracy that imported drugs then distributed the contraband through to the street level, the

use of a retail multiplier would certainly be warranted. But where there is no evidence of

such a conspiracy engaging in more than wholesale distribution, then application of a retail-

value multiplier would be error. Further, such a possible error would affect substantial rights.

If the seventy-nine kilograms of cocaine here at issue were sold wholesale for $24,000 per

kilogram, the realized proceeds would be $1,896,000, more than $1 million less than the

proceeds calculated by using the $40 per gram retail multiplier. Cf. United States v.Thomas,

274 F.3d 655, 669 (2d Cir. 2001) (en banc) (concluding that imposition of imprisonment term

higher than maximum term established by Congress affected defendant’s substantial rights).

Here, the district court did not state its reasons for employing a retail rather than

wholesale multiplier to calculate the conspiracy’s drug proceeds. This is not surprising given

that the government proposed this calculation,7 and the defense did not urge that use of the

wholesale value would be more appropriate. In short, there was no dispute to resolve. That

is not the case on appeal where we consider a plain error challenge to the sufficiency of the

7
At oral argument on appeal, the government acknowledged the seeming incongruity
in its proposed forfeiture calculation, which multiplied a wholesale quantity of uncut cocaine
by the retail value of diluted street cocaine. One would expect both quantity and price to be
calculated at either the wholesale or the retail level.

33
evidence to support use of a retail multiplier. The record before us, however, does not permit

us to decide conclusively whether evidence before the district court — whether at trial, in

pre-trial proceedings, at sentencing, or in forfeiture discussions — could support a

preponderance finding that this particular conspiracy distributed at the retail as well as the

wholesale level. Thus, we do not here decide the question of plain error. Rather, we vacate

the forfeiture order and remand the case to the district court for clarification of this matter.

See United States v. Crosby, 397 F.3d 103, 118-19 (2d Cir. 2005); United States v. Jacobsen,

15 F.3d 19, 21-22 (2d Cir. 1994); see also United States v. Varrone, 554 F.3d 327, 333 (2d

Cir. 2009) (vacating and remanding forfeiture order for further factual development

regarding Eighth Amendment claim). On remand, the district court may expand the record

as necessary to make factual findings on this question, and may modify the forfeiture order

as warranted by the evidence.

III. Conclusion

To summarize, we conclude as follows:

1. Excerpts from Roberts’s proffer statements were properly admitted into evidence

because the statements were (a) not induced by economic coercion in violation of the Fifth

Amendment right against self-incrimination, and (b) admissible pursuant to a proffer

agreement waiver of Fed. R. Evid. 410 to contradict factual assertions implied by

documentary evidence that defense counsel insisted be placed before the jury.

2. Roberts’s Sentencing Guidelines were correctly calculated to include an offense

34
level enhancement pursuant to U.S.S.G. § 3B1.3 because Roberts abused the position of trust

conferred on him by his employer, which was a secondary victim of his crimes.

3. Sufficient evidence supports the district court’s forfeiture finding that Roberts

participated in a conspiracy that distributed seventy-nine kilograms of cocaine, but the record

on appeal does not permit this court to reach the same sufficiency conclusion with respect

to the use of a retail rather than a wholesale multiplier to determine the proceeds realized by

the conspiracy from such distribution.

Accordingly, the judgment of conviction is AFFIRMED, but the order of forfeiture is

VACATED AND REMANDED for further proceedings consistent with this opinion.

35