United States v. Widi

United States Court of Appeals
For the First Circuit

Nos. 10-2268, 10-2302

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID WIDI,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Chief Judge,

Selya and Boudin, Circuit Judges.

James S. Hewes, by appointment of the court, for appellant.
David J. Widi, Jr. on brief pro se.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief for
appellee.

July 6, 2012
 BOUDIN, Circuit Judge. David Widi, who now appeals to

this court, was convicted by a jury in Maine federal district court

of possessing a firearm or ammunition as a prohibited felon and

manufacturing marijuana. The saga began on November 25, 2008, with

a search warrant for Widi's apartment secured by an agent of the

federal Bureau of Alcohol, Tobacco, Firearms and Explosives

("ATF").

The apartment, searched three days later, contained what

one of the officers described as an "elaborate growing system" for

marijuana; seventeen marijuana plants; rounds of ammunition on the

kitchen counter and throughout the apartment; a reloading press for

ammunition; a loaded pistol in the nightstand beside Widi's bed; a

.50 caliber rifle barrel in the attic; and (in a locked gun safe)

six guns of varying styles, a bag of marijuana, and more

ammunition.

Widi was arrested and eventually charged with both

possession of firearms and ammunition as a prohibited felon, 18

U.S.C. § 922(g)(1) (2006), and manufacturing marijuana, 21 U.S.C.

§ 841(a)(1). Following a two-day trial, the jury returned a guilty

verdict after less than two hours of deliberation. Widi was later

sentenced to 108 months' imprisonment. Widi now appeals and,

supplementing his attorney's brief with his own, raises a host of

issues.

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 Competence. The first argument by Widi's appellate

counsel is that Widi was not competent to stand trial. At the

formal hearing on Widi's competency on November 30, 2009, his trial

counsel explained that both he and Widi took the position that Widi

was competent to stand trial. Although the government suggests

that the issue may have been waived or is subject only to plain

error review, we will assume arguendo that review is for clear

error, which is the normal standard for findings by the district

judge. United States v. Reynolds, 646 F.3d 63, 71 (1st Cir. 2011).

After Widi's indictment, his then-counsel, Mary Davis,

raised concerns about Widi's competence with the government, saying

that Widi was incapable of focusing on the issues as to whether he

should plead or go to trial. The government, in turn, filed a

motion for a mental examination with the court under the governing

statutory procedure. 18 U.S.C. §§ 4241(a)-(b), 4247(b)-(c). Widi

himself resisted mildly but the district judge, noting his "own

concerns," granted the motion.

A further hearing followed with a similar colloquy after

which Widi underwent an examination primarily conducted by William

J. Ryan, a licensed psychologist. However, Widi consistently

refused to cooperate and he also refused to participate in

treatment sessions with a prison psychiatrist. Dr. Ryan depended

therefore on observations of Widi, conversations with his

grandmother and attorneys, and a review of documents; he

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acknowledged that his diagnoses were made with "less than the usual

degree of psychological certainty."

In his report, Dr. Ryan ultimately concluded that

Mr. Widi is incapable of comprehending the
seriousness of his case, the recommendations
of defense counsel, communicating with
counsel, weighing the merits of various
defenses, and making decisions regarding his
right to a trial, his right to an attorney,
his right to enter into a plea, and his right
to call witnesses. Mr. Widi is currently not
capable of testifying in his own defense and
speaking during sentencing proceedings should
it be necessary . . . . Mr. Widi does not
have a rational and factual understanding of
the proceedings against him, and he is
incapable of assisting counsel with his
defense. Within less than the usual degree of
psychological certainty, it is the opinion of
this evaluator, Mr. Widi is currently Not
Competent to Stand Trial.

The report cited specific facts in support of its conclusion of

Widi's incompetence. For example:

-Widi used a cart full of books to barricade
himself inside a holding cell to prevent staff
from changing his cell and shouted about
having "to go to war"

-Widi asserted that the whole federal
government was against him and repeatedly
claimed that evaluation was unethical and
unconstitutional

-Widi attempted to throw himself down a flight
of stairs when his cell was changed, causing
him to be placed on suicide watch

-Widi frequently displayed extreme emotional
behavior

-Widi's family has a history of serious mental
illness and substance abuse.

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 As Davis and Widi continued to disagree about his

competency, she withdrew and was replaced by Peter Rodway. Rodway,

after conferring with Widi, concluded that Widi could adequately

assist in his defense and, thereafter, the formal hearing on

competency took place on November 30, 2009. Both Rodway and the

prosecutor disagreed with Dr. Ryan's report, which the judge

admitted into evidence on his own motion. Neither side called any

other witness nor provided any other evidence beyond Rodway's

express representation that he found Widi competent.

The judge ruled that Widi was competent, saying:

I've had the opportunity to review the report.
I agree with counsel that I believe the
report's conclusion is erroneous. I think
it's based on insubstantial predicate. In my
view, the doctors arrived at a hasty
conclusion based on inadequate evidence and I
reject the result of that report.

I'm entirely in agreement with
counsel's position. I find by a preponderance
of the evidence this defendant is presently
and will in the reasonable future be competent
to stand trial.

I find specifically this defendant --
and I would note I've observed him every time
he has been in court and my decision is based
in part on my interaction with this defendant.
I find that he has sufficient present ability
to consult with his counsel with the
reasonable degree of rational understanding.

I further find that this defendant has
a rational as well as a factual understanding
of the proceedings against him and the
possible consequences. I also might note as
an aside that his interaction with the earlier

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 examiners, as indicated in the report,
underlines that understanding.

Three circumstances lend support to the district court's

finding. First, defense counsel's conclusion of competence is

generally given great weight because of counsel's "unique vantage,"

United States v. Muriel-Cruz, 412 F.3d 9, 13 (1st Cir. 2005).

True, Davis had strongly questioned Widi's competency and found

that she could not effectively discuss matters with him. But

Rodway found that he could work with Widi, a relationship possibly

enhanced by Rodway's willingness to go to trial.

Second, the district judge may take into account his own

observations of the defendant, Muriel-Cruz, 412 F.3d at 13; United

States v. Pryor, 960 F.2d 1, 2 (1st Cir. 1992), and in this case

the district court had several times dealt with Widi in the

courtroom. On these appeals this court has itself reviewed

pertinent transcripts which confirm that Widi was far from

incoherent. See United States v. Huguenin, 950 F.2d 23, 28 & n.5

(1st Cir. 1991).

Third, Widi's own insistence on his competency is also

entitled to consideration. See Muriel-Cruz, 412 F.3d at 13. Widi

might be mistaken and, if plainly incoherent or irrational, his

assertion to the contrary could hardly be accepted. See Reynolds,

646 F.3d at 71. But he was not in this state. And, as between an

additional four month confinement for observation, 18 U.S.C. §

4241(d), and a trial that might go on being postponed after that,

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most would give some thought to the defendant's own preference and

profession.

Dr. Ryan deemed Widi incompetent and, as the only

clinician, his views too are entitled to weight, Muriel-Cruz, 412

F.3d at 13, even if his examination was handicapped by Widi's

refusal to cooperate. But competence to stand trial is a

functional inquiry. Dusky v. United States, 362 U.S. 402, 402

(1960) (per curiam); Robidoux v. O'Brien, 643 F.3d 334, 339 (1st

Cir.), cert. denied, 132 S. Ct. 866 (2011). A defendant may have

serious mental illness while still being able to understand the

proceedings and rationally assist his counsel. Brown v. O'Brien,

666 F.3d 818, 826-27 & n.9 (1st Cir. 2012), cert. denied, 2012 WL

1379023 (June 25, 2012).

The district judge did not have a wealth of choices.

Calling Dr. Ryan as a court witness might have been helpful, but

his position and explanations were both set forth in his report.

As Widi had refused to cooperate with Dr. Ryan's evaluation and the

prison psychiatrist's attempt at treatment, it is unclear that more

information would be gained by ordering another immediate

examination. About the only remaining option was a postponement of

trial and continued observation--over the objection of both Widi

and his counsel.

Like many factual issues presented in district court,

this one had no inescapable single answer. Dr. Ryan knew more than

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anyone else about diagnosing mental states; the judge, more about

what help and understanding is needed from a defendant in a

criminal trial; Rodway, about what kind of cooperation Widi was

giving. The district judge made a debatable call; but the factual

determination on which it rests was not clear error.

Pretrial Motions. Widi argues that the affidavit that

underpinned the search warrant was inadequate. Widi succeeded in

suppressing evidence seized from his vehicle and pre-Miranda

statements made in response to questioning, but the search warrant

was readily upheld, as it should have been. It rested on

statements by two different confidential informants that they had

made multiple visits to Widi's apartment and had seen both

marijuana and guns; one also described a marijuana growing

operation in the second bedroom.

This was ample to show a "fair probability that

contraband or evidence of a crime" would be found, Illinois v.

Gates, 462 U.S. 213, 238 (1983), and more than ample to trigger

Leon's protection for reasonable reliance on a warrant even if the

latter were marginally defective, United States v. Leon, 468 U.S.

897, 922 (1984). That the informants had criminal records or

sought to benefit from cooperation goes only to weight; and while

one informant's information was six months old, the other had been

at the apartment only three weeks before.

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 Widi also objects to the district court's decision not to

exclude statements he made after he had been given a Miranda

warning, invoking Missouri v. Seibert, 542 U.S. 600 (2004).

Seibert makes vulnerable some post-Miranda statements if they were

induced by pre-Miranda statements that should themselves not have

been taken without a warning, although how to read the split

decision in Seibert may be an open question.1 See generally

United States v. Jackson, 608 F.3d 100, 103-04 (1st Cir.), cert.

denied, 131 S. Ct. 435 (2010).

This court has not settled on a definitive reading but

the statements here at issue pass either version of the Seibert

test. Widi was detained for only 10 to 15 minutes prior to arrest

and administration of the Miranda warning; and the pre-warning

inquiries were primarily aimed at getting on-the-scene access to

the locked gun safe and any firearms within it; nothing suggests

that the agents were intending to use them to extract later post-

warning information or that the later warnings were rendered

ineffective by the earlier questions.

Widi also argues that the district court erroneously

denied his motion requesting a severance of the charges because

they were misjoined or, in the alternative, because the joinder was

1
Seibert had no clear majority; Justice Souter's plurality
opinion garnered four votes and Justice Kennedy who supplied the
necessary fifth vote concurred in the judgment, writing separately.
Seibert, 542 U.S. at 604, 618.

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unduly prejudicial. Widi argues that the gun and drug counts were

misjoined because not part of a common scheme or plan, Fed. R.

Crim. P. 8, but the inference of a connection between drug dealing

and weapons is commonplace, and gun and drug charges are regularly

tried together. E.g., United States v. Paneto, 661 F.3d 709 (1st

Cir. 2011), cert. denied, 2012 WL 1204086 (May 14, 2012).

Widi's specific complaint as to severance is that the

mention of the predicate felony for the felon-in-possession charge,

18 U.S.C. § 922(g)(1)--to which he stipulated--impermissibly

prejudiced him in defending against the manufacturing marijuana

charge. The bare mention of a prior felony conviction otherwise

unidentified was trivial, and dwarfed here by the powerful separate

evidence as to each charge. As already noted, Widi had both an

armory and a relatively sophisticated marijuana growing operation

in the apartment.

Jury instructions. The next issue in the case is a claim

relating to the instructions. Seven weapons were found in the

apartment and charged in the indictment--six in the safe and one in

Widi's bedside table--as well as various pieces of ammunition. It

was enough to convict if the jury found that Widi knowingly

possessed even one gun or one bullet, 18 U.S.C. § 922(g)(1), but

Widi's counsel on appeal claims that he was entitled to a unanimity

instruction requested below but refused.

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 The request made below was that the jury had to agree

unanimously that Widi possessed the guns in the safe or unanimously

that he possessed the gun in the nightstand.2 Sensibly, counsel

seeks to offer at least a token doubt as to each scenario,

suggesting that the jury could, on the evidence, have plausibly

believed that he had no access to the safe and that the gun in the

night table was planted. Thus, the jury could have convicted

without unanimously agreeing as to either scenario.

Putting aside other testimony connecting Widi with a gun

purchase, any disagreement about the guns would have been harmless

since ammunition recovered in the apartment was also charged and,

unlike the guns, the ammunition was in plain view and confirmed by

photographs of the scene. So even if none of the jurors believed

Widi possessed any of the guns, he was still patently guilty of the

single felon in possession count based on the ammunition.

However, the government's counter to the claim in its

brief prompts a word of caution. Our decisions do endorse the

government's position that a unanimity instruction would ordinarily

not be necessary so long as the indictment charges possession of

2
The requested unanimity instruction would have told the jury
that with regard to both the nightstand and the gun safe, "you must
find unanimously, all of the elements of the offense . . . in order
to return a verdict of guilty with regard to either the firearms in
the safe or the firearm in the nightstand."

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guns and ammunition "in one place at one time."3 But the quoted

phrase is not itself a self-executing concept and ought not be read

without regard to the facts developed at trial and the underlying

issues that the phrase is meant to address.

United States v. Verrecchia, 196 F.3d 294 (1st Cir.

1999), holds that if a felon possessed a single cache of weapons at

one time and in one place, there is only a single violation of the

felon in possession statute--a defendant-friendly reading which

remains sound law. Id. at 297-98. And, if the weapons are

together in a box or a safe, then almost certainly the defendant

either knowingly possessed all or none of them and no unanimity

instruction focusing on which ones he knowingly possessed would

make any sense.

But imagine that while the indictment easily passed the

Verrecchia test, trial evidence showed that the weapons were so

located that a juror might reasonably believe quite different

things about the defendant's knowing possession of different guns

and that the risk Widi invokes here were a real one. Then, the

question how to construe and apply the "one place at one time"

formula and whether a unanimity instruction ought to be given would

need thoughtful consideration. See Leahy, 473 F.3d at 410.

3
United States v. Leahy, 473 F.3d 401, 410 (1st Cir.), cert.
denied, 128 S. Ct. 374 (2007); United States v. Verrecchia, 196
F.3d 294, 298 (1st Cir. 1999). See also United States v.
Hernandez-Albino, 177 F.3d 33, 40 (1st Cir. 1999); United States v.
Correa-Ventura, 6 F.3d 1070, 1075-87 (5th Cir. 1993).

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 Sufficiency of the Evidence. Claiming that he was

convicted on insufficient evidence, Widi says that the witnesses

against him were untrustworthy, while he and other witnesses

offered in his defense were telling the truth. He also says that

evidentiary problems with the marijuana samples created reasonable

doubt. Widi must show that, "crediting the government's witnesses

and drawing all reasonable inferences in its favor, no reasonable

jury could have reached a guilty verdict." United States v.

Aranjo, 603 F.3d 112, 116 (1st Cir.), cert. denied, 131 S. Ct. 209

(2010).

Agent McNeil testified about what law enforcement found

in the apartment; jurors saw photographs and videos of the

residence; a witness testified to seeing Widi use and possess guns;

and at least one witness testified to seeing Widi's marijuana

operation in the apartment. Widi said that much of the evidence

against him was planted. Given the evidence presented at trial,

the jury was perfectly entitled to disbelieve him and convict on

both counts.

Sentencing. The district court sentenced Widi to 108

months, within but at the top of the guidelines sentencing range

(87 to 108 months) for a defendant with an adjusted offense level

of 28 and a criminal history placing him in Category II. U.S.S.G.

ch. 5, pt. A, sentencing table (2010). Widi's main attacks are on

the calculation of the adjusted offense level. The district

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court's factual findings are reviewed for clear error;

interpretations of the guidelines are reviewed de novo. United

States v. Stergios, 659 F.3d 127, 135 (1st Cir. 2011).

The district court fixed the base offense level at 20

because it found that Widi, having a prior felony conviction, had

possessed a semiautomatic weapon capable of accepting a large

capacity magazine. U.S.S.G. § 2K2.1(a)(4)(B). Widi says that a

gun barrel found in the attic was separate from the large capacity

magazines found in his apartment, U.S.S.G. § 2K2.1(a)(4)(B), cmt.

n.2, but the enhancement was based on other weapons Widi ignores.

His claim that the guideline provision is unlawful is foreclosed.

United States v. Marceau, 554 F.3d 24, 30 (1st Cir.), cert. denied,

129 S. Ct. 2752 (2009).

Next, Widi challenges the factual basis for the four-

level enhancement he received under U.S.S.G. § 2K2.1(b)(6) for

possession of firearms "in connection with another felony offense"-

-in this case the manufacturing of marijuana. The enhancement is

concerned with the potential that guns will facilitate the other

offense, id. cmt. 14(A), and provides that "close proximity to

drugs [or] drug-manufacturing materials" is sufficient to warrant

the enhancement. Id. cmt. 14(B).

Widi says that as six of his seven guns were locked in a

safe, they had no potential to facilitate his drug operation. The

evidence showed that the safe was near the marijuana operation in

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the small apartment and several witnesses agreed that Widi had

access to the safe. As for the loaded pistol found in the

nightstand, Widi simply asserts that it had nothing to do with drug

cultivation. It was not error at all, let alone clear error, to

impose the enhancement. Compare Paneto, 661 F.3d at 716-18.

Widi also contests a further two-level enhancement for

obstructing justice but the challenge is without merit. U.S.S.G.

§ 3C1.1. Widi testified at trial that the handgun in his

nightstand was planted by a friend and the marijuana found in his

apartment had been planted or manufactured by law enforcement.

Given the trial evidence, the district court was entitled to deem

this testimony to be perjury.

Little need be said about the further claim that the

sentence, although within the guidelines, was unreasonable. The

weaponry alone suggest that Widi is quite dangerous; and, his

perjury aside, the judge found that Widi had threatened a witness

in the course of the proceedings. Neither the result nor the

court's explanation was in any way unreasonable. See United States

v. Ozuna-Cabrera, 663 F.3d 496, 503-04 (1st Cir. 2011), cert.

denied, 132 S. Ct. 1936 (2012).

Widi, in his pro se brief, says that his prior offense

was not a felony, but he stipulated to the prior felony at trial

and, while we may disregard a stipulation where justice requires,

United States v. Torres-Rosario, 658 F.3d 110, 116 (1st Cir. 2011),

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cert. denied, 132 S. Ct. 1766 (2012), Widi provides no compelling

reason for us to do so; indeed, our own review of what was before

the court confirms that the stipulation was appropriate.

Widi also argues that his civil rights were restored

after his prior conviction and so he should not be treated as a

felon in possession. 18 U.S.C. § 921(a)(20). This statutory

exception is an affirmative defense, United States v. Bartelho, 71

F.3d 436, 440 (1st Cir. 1995), so the burden is on the defendant,

United States v. Hartsock, 347 F.3d 1, 10 (1st Cir. 2003). The

evidence of such a restoration now relied on by Widi is highly

doubtful but was in any case never presented to the district court.

There was no error.

Widi invokes the Speedy Trial Act, claiming that the

government failed to indict him within thirty days of his arrest,

as required by the Act. 18 U.S.C. § 3161(b) (2008). Widi

correctly asserts that the original indictment was outside this

limit by a week or so4; although one or another possible exception

may have applied. But, as he did not challenge the original

indictment before trial, Widi waived his right to do so. United

States v. Spagnuolo, 469 F.3d 39, 44-45 (1st Cir. 2006). Perhaps

4
Widi was arrested and arraigned on November 28, 2008. An
initial indictment followed on January 6, 2009; the superseding
indictment adding the ammunition count was issued on February 24,
2010; and, following Widi's objection, a final superseding
indictment on April 7, 2010, eliminated the new count but added
ammunition to the original possession count.

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for this reason, his main objection on appeal is to an amendment to

the original indictment outside the Act's thirty-day window.

Subsequent to the original indictment, the government

sought to add a second felon-in-possession count charging Widi with

possessing ammunition in the apartment. Pointing to the existing

charge based on guns, Widi complained that his possession of the

guns and ammunition (if proved) comprised a single offense so the

new charge would be "multiplicitous," as the jargon has it. The

government then amended the possession charge to specify the

ammunition as well as the guns in a single possession count.

Widi is correct that the reference to ammunition in the

possession count appeared by superseding indictment more than

thirty days after his arrest, but section 3161(b) is largely

designed to assure that a defendant who is arrested or summoned

does not linger indefinitely without a formal charge, United States

v. Meade, 110 F.3d 190, 200 (1st Cir. 1997), and the statute does

not purport to bar the amendment of an existing charge or the

addition of new charges after thirty days. This court has

explicitly allowed both. See United States v. Mitchell, 723 F.2d

1040, 1044-45 (1st Cir. 1983) (amendment); United States v. Burgos,

254 F.3d 8, 15-16 (1st Cir.), cert. denied, 534 U.S. 1010 (2001)

(addition).

One circuit appears to be troubled by a superseding

indictment that adds new facts to a count more than thirty days

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after the original indictment,5 but we remain of the view that

section 3161(b) is concerned with a timely original indictment and

not superseding indictments--a view directly supported by the Ninth

Circuit in a case whose facts closely resemble our own. United

States v. Carrasco, 257 F.3d 1045, 1050-53 (9th Cir.), cert.

denied, 534 U.S. 1061 (2001). While adding new facts or new counts

can always raise issues of notice or delay in trial, these problems

are dealt with by other rules and precedents.

Undue delay in trial is forestalled, among other means,

by time limits in other sections of the Speedy Trial Act, notably

sections 3161(c) and 3164(a)-(b), which are unaffected by a

superseding indictment covering the same charge. United States v.

Santiago-Becerril, 130 F.3d 11, 19 (1st Cir. 1997). As for notice,

the amendment assured that Widi had notice of evidence--the

ammunition--which (since Widi knew about it anyway) could arguably

have been allowed at trial as a non-prejudicial variance under the

original indictment even without the amendment.

Widi protests that he should have been allowed to

represent himself when, near the close of the government's case, he

and Rodway disagreed about whether a particular witness should be

5
United States v. Giwa, 831 F.2d 538, 542 (5th Cir. 1987)
(dictum); United States v. Bailey, 111 F.3d 1229, 1236 (5th Cir.),
cert. denied, 522 U.S. 927 (1997) (dictum). Whether the Fifth
Circuit adheres to these doubts is uncertain. See United States v.
Martinez-Espinoza, 299 F.3d 414, 416 & n.4 (5th Cir. 2002); United
States v. Perez, 217 F.3d 323, 328-29 & n.19 (5th Cir.), cert.
denied, 531 U.S. 973 (2000).

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called, as Widi desired. "[T]he right of self-representation

becomes qualified once trial is under way." United States v. Noah,

130 F.3d 490, 497 (1st Cir. 1997). The district court heard Widi

on the matter, refusing his request for a continuance and to

represent himself at this late stage. We see no abuse of

discretion.

Finally, Widi argues that the indictment was

constructively amended because the indictment referred only to 108

rounds of ammunition found outside the safe and the jury might have

been confused by references to the more than 2,000 total rounds

found in the apartment or the 675 rounds found outside the safe.

The government expressly relied on the 108 rounds listed in the

indictment, and the district judge reminded the jury that evidence

of the uncharged ammunition was only relevant to Widi's "state of

mind or intent."

Widi's remaining arguments include other claims of error,

such as the suggestion that investigators engaged in misconduct

relating to the evidence, but the arguments not specifically

discussed herein are unpersuasive and warrant no further

discussion.

Affirmed.

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