United States v. Capelton

United States Court of Appeals
For the First Circuit

No. 02-1248

UNITED STATES OF AMERICA,

Appellee,

v.

JEROME CAPELTON, a/k/a ANTHONY COLEMAN,

Defendant, Appellant.

No. 02-1460

UNITED STATES OF AMERICA,

Appellee,

v.

GARY WHITE,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael Ponsor, U.S. District Judge]

Before

Selya, Circuit Judge,
R. Arnold, Senior Circuit Judge,*
and Lipez, Circuit Judge.

*
Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
 Alan Jay Black for appellant Jerome Capelton.
Bernard T. O'Connor, Jr. for appellant Gary White.
Daniel S. Goodman, U.S. Department of Justice, with whom
Michael J. Sullivan, United States Attorney, and Todd E. Newhouse,
Assistant United States Attorney were on brief for appellee.

November 26, 2003
 LIPEZ, Circuit Judge. On September 21, 2000, a grand

jury returned a ten-count indictment against defendants Jerome

Capelton and Gary White. The grand jury indicted White on nine

counts of illicit drug activity, including one count of conspiracy

to possess with intent to distribute cocaine, one count of

distribution and possession with intent to distribute cocaine

powder, and seven counts of distribution and possession with intent

to distribute cocaine base. Capelton was also charged with the

conspiracy count, and additionally indicted on three counts of

actual distribution of cocaine base (two of which were charged

against White as well).

The district court denied Capelton's pre-trial motions to

1) suppress evidence and statements obtained by law enforcement,

and 2) sever the proceedings into separate trials for each

defendant. The trial commenced on September 10, 2001. The

proceedings were briefly halted in response to the events of

September 11, but the trial resumed on September 13 and concluded

on September 26. After the case was submitted, the jury convicted

the defendants of all counts in the indictment. The court

sentenced Capelton to a term of 360 months of imprisonment and five

years of supervised release, and sentenced White to a term of 292

months and five years of supervised release.

The defendants filed timely appeals from their

convictions and sentences, raising a plethora of challenges to the

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district court's case management, evidentiary rulings, and

sentencing determinations. After a careful review of the record,

we find no basis for overturning the defendants' convictions or

vacating their sentences.

I.

At trial, the government portrayed Capelton and White as

links in a conspiracy to distribute cocaine powder and cocaine base

over the period from December 21, 1999 to August 23, 2000.1 The

inner-workings of the conspiracy were exposed in an elaborate sting

operation orchestrated by undercover police officer Alan Fisher of

the Chicopee, Massachusetts police department, and aided by the

Drug Enforcement Administration (DEA). Fisher launched the

operation by contacting Christopher Weeks, a cooperating informant

with whom he had worked on several occasions in the past. Weeks,

who was incarcerated with White in the Ludlow House of Correction

in mid-1999, introduced the officer to White on December 7, 1999.

Over the conspiratorial period alleged in the indictment, Fisher

purchased cocaine from White on numerous occasions. On December

21, White sold Fisher half an ounce of powder cocaine for $500.

Two weeks later, Fisher purchased four ounces of crack cocaine for

$4,000. Fisher also arranged drug transactions with White on March

17, March 24, and May 7 for one ounce of crack cocaine ($1,000),

1
We present facts here to convey a general impression of the
case. We provide additional facts where they are pertinent to the
legal analysis.

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5.5 ounces of crack cocaine ($5,000), and five ounces of crack

cocaine ($4,800) respectively.

White's modus operandi was established from the early

stages of the conspiracy. He acted strictly as a middleman, and

kept no drugs, money, weapons, or drug paraphernalia on his person

or in his residence. When Fisher expressed an interest in

purchasing a specified quantity of cocaine, White contacted various

suppliers with whom he associated, obtained the requested quantity,

and conveyed the drugs to Fisher. Capelton entered the conspiracy

as White's primary drug supplier after the May 7 transaction. On

June 2, 2000, Capelton supplied White with ten ounces of crack

cocaine that Fisher purchased for $9,000. Fisher purchased another

$6,000 worth of crack cocaine from Capelton through White on July

24, and bought 5.5 ounces of crack cocaine from the defendants on

August 23, 2000.

After the August 23 transaction, Capelton purchased some

gasoline for his car, picked up two passengers in a parking lot,

and started driving south on Route 91 in Connecticut. DEA agents,

who had been following Capelton, contacted the Connecticut State

Police and asked them to pull Capelton over. They did so after he

changed lanes without signaling, and the DEA agents parked their

cars behind the police cruiser. The police frisked Capelton and

found $3,250 in marked bills matching those that Detective Fisher

gave to White. After the DEA agents informed Capelton that they

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were going to seize that money, he followed them to the state

police barracks to get a receipt for the funds. The agents did not

arrest Capelton until September 21, 2000. White was also arrested

on September 21, 2000 while he was negotiating another cocaine sale

with Officer Fisher.

The execution of the sting operation was controversial in

two respects that are relevant to these appeals. First, White

insisted that Weeks coerced him into procuring drugs for Fisher

through threats, intimidation and harassing phone calls both to him

personally and to his mother, who was living at a different address

during the relevant period. Although White conceded at trial that

he had participated in each drug sale to Fisher, he argued that he

was the victim of unfair entrapment resulting from Weeks' heavy-

handed tactics. The government's efforts to counter White's

entrapment defense were complicated by its inability to locate

Christopher Weeks and subpoena him as a witness. Fisher admitted

at trial that Weeks' recruitment of White was not choreographed or

closely supervised by law enforcement officials, and White's mother

testified that Weeks made repeated efforts to contact White by

telephone.

The frequent malfunctioning of surveillance equipment

over the course of the sting operation was also a source of dispute

at trial. The participating law enforcement officers and agencies

went to considerable lengths to both video and audio-tape Fisher's

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encounters with White and Capelton. However, equipment failures

and quality control problems with the audio and visual recordings

limited the probative value of those recordings, and forced the

prosecution to rely heavily on the eyewitness accounts of the

police officers and DEA agents who conducted the surveillance.

II.

We begin by addressing the objections raised jointly by

both defendants, and conclude with an analysis of the challenges

raised separately by each defendant.

A. The September 11 Tragedy

On September 11, after opening statements, the district

court informed the jurors of the events that had transpired in New

York City and Washington D.C. that morning, and suspended the

proceedings because the courthouse in Springfield was closed for

security reasons. The courthouse remained closed the next day

because of a widely-publicized bomb threat. When the defendants'

trial resumed on September 13, Capelton and White immediately moved

for a mistrial on two grounds. As a general matter, they asserted

that the jurors would be unable to maintain their focus on their

case given the chaos and uncertainty arising from the events of the

previous two days. More importantly, counsel argued that the

media's portrayal of the attacks and the military response as a

"battle of good versus evil" established a particularly prejudicial

environment for defendants accused of committing "evil" acts. In

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counsels' view, this prejudice was exacerbated by defendants'

reliance on a strategy of discrediting law enforcement officers and

federal agents whose colleagues were perceived as heroes in the

aftermath of the World Trade Center attacks.

A district court's denial of a motion for mistrial is

reviewed for abuse of discretion. United States v. Lee, 317 F.3d

26, 34 (1st Cir. 2003); United States v. Rivera-Gomez, 67 F.3d 993,

998 (1st Cir. 1995). In response to defendants' request, the judge

voir dired each juror individually, and excused the only juror who

indicated that the September 11 attacks might alter his attitude

toward the case. The court also issued a lengthy instruction to

the jury as a whole both before resuming the proceedings, and again

at the close of the evidence. These instructions admonished the

jurors that the events of September 11

cannot influence how you evaluate witnesses,
and . . . you may not permit these events to
influence your deliberations or decision in
any way. Both the defendants and the public
expect that you will fairly and impartially
consider all the evidence in the case, follow
the law as stated by the court and reach a
just verdict.

The court proceeded with an abundance of caution in the

wake of September 11. In the absence of particularized allegations

of prejudice from defendants, we find no evidence that they were

denied their Sixth Amendment right to an impartial jury, and

accordingly conclude that the court did not abuse its discretion in

denying defendants' motion for a mistrial.

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B. The Government's Opening Statement and Closing Argument

In his opening statement, the prosecutor referred to

White and Capelton as "drug dealer number one" and "drug dealer

number three" while describing a scene in front of White's

residence that he would later show to the jurors on videotape. The

government also explained that defendant Capelton's voice was never

caught on audio-tape because he was "a pretty clever drug dealer."

Assuming arguendo that defendants properly preserved

their objection to the prosecution's opening remarks, we find no

"manifest abuse of discretion," United States v. Mooney, 315 F.3d

54, 59 (1st Cir. 2002), in the court's refusal to grant a mistrial

after the government's opening statement. To prevail on this

ground for a new trial, defendants must demonstrate that the

prosecutor's comments "so poisoned the well that the trial's

outcome was likely affected." United States v. Mejia-Lozano , 829

F.2d 268, 274 (1st Cir. 1987). Defendants' allegations fall

considerably short of this threshold.

It is true that "a lawyer may not, in the presence of the

trier of fact[,] state a personal opinion about the . . . the guilt

or innocence of an accused." Restatement (Third) of Law Governing

Lawyers Sec. 107 (2000). Ideally, to preclude any argument of

error, the prosecutor might have used the locution that "the

evidence will show" that the defendants were drug dealers. Such a

locution avoids any suggestion that the prosecution is offering a

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personal opinion about the guilt of the defendants. However, the

opening statement of the prosecution was preceded by the reminder

from the trial judge that:

the words of counsel are not evidence, and if
there's any difference between this prediction
of what the evidence will show and what you
actually hear from the witness stand, you of
course are to be guided by and consider only
evidence as it comes in through the testimony
of the witnesses or other documents or
exhibits in the case.

In fact, the government introduced substantial evidence proving

that Capelton and White were drug dealers. Under these

circumstances, even if the prosecution's conclusory references to

"drug dealers" could be deemed inappropriate expressions of opinion

on guilt (an issue we do not decide), those references did not

unfairly inflame or prejudice the jury against the defendants.

Capelton also alleges that the government "inflamed the

jury" by misrepresenting statements made by his counsel during

closing argument. While commenting on inconsistencies in the

testimony of the two police officers who stopped Capelton's car on

August 23, 2000, his attorney recalled one officer's testimony that

only one child was in the backseat of Capelton's car when he was

pulled over by the Connecticut State Police:

Now, everybody else said two, every officer
said two. Let's assume that it's two, he
remembers one. Why does he remember one?
Because he lost his police report. How does
that bear on other testimony? Because all the
officers that testified rely on other people's
reports.

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The prosecutor apparently understood Capelton's attorney to say

that "all the officers that testified will lie on other people's

reports," and argued to that effect in his rebuttal to the

defendants' closing arguments. Capelton immediately objected to

that statement and requested a mistrial. On appeal, he claims that

he was prejudiced by the prosecutor's attribution of those comments

to his attorney.

We apply abuse of discretion review to a district court's

refusal to grant a mistrial on the basis of an inappropriate remark

by the prosecution in its closing argument. United States v.

Hernandez, 218 F.3d 58, 68 (1st Cir. 2000). Here, Capelton does

not claim that the government intentionally misrepresented defense

counsel's statements, or otherwise acted in bad faith. While the

transcript produced on appeal contains the word "rely," even the

court was unable to discern what Capelton's attorney actually said.

Nevertheless, the judge issued the following curative instruction

to the jury:

First of all, as you heard the closings I
believe Mr. Newhouse [the prosecutor] made
reference to his recollection of a statement
made during Mr. Black's closing. His
recollection of this statement was that Mr.
Black said, "All officers will lie on other
officer's reports." During the break I wanted
to make sure you understand that Mr. Black's
recollection of what he said, and his intent
was to say, "All the officer's rely on other
officer's reports." I passed that on to you
so that you will know it, but remind you again
that it's your recollection of what is said

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 that controls, not mine or the attorneys'
recollection of what was said.

This corrective instruction refutes any argument that the district

court abused its discretion in denying the request for a mistrial.

C. Defendant Capelton's Claims

1. Motion to Sever

Capelton moved the district court for a severance after

White disclosed in a pre-trial hearing that he would be presenting

a defense of entrapment. Anticipating that White would implicitly

concede his participation in the course of presenting this defense,

Capelton argued that White's entrapment defense would undermine his

own strategy of denying participation in the conspiracy and putting

the government to its proof.

We review the denial of a severance motion for manifest

abuse of discretion. United States v. DeLeon, 187 F.3d 60, 63 (1st

Cir.), cert. denied, 528 U.S. 1030 (1999). Capelton acknowledges

on appeal "that the standard for severance is a strict one and the

defendant must show that he could not have received a fair trial."

Indeed, we have previously recognized the general rule that

"defendants charged in the same indictment should be tried

together," United States v. Houle, 237 F.3d 71, 75-76 (1st Cir.),

cert. denied, 532 U.S. 1074 (2001), and expressed reluctance to

reverse a denial of severance where the defenses at issue are only

"somewhat antagonistic," United States v. Serafino, 281 F.3d 327,

329 (1st Cir. 2002), and not "so irreconcilable as to involve

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fundamental disagreement over core and basic facts," United States

v. Pena-Lora, 225 F.3d 17, 34 (1st Cir. 2000) (internal quotations

omitted).

Without elaborating at pointless length, we conclude that

Capelton's skeletal argument for reversal on this ground is

unavailing in light of 1) his failure to point to any specific

testimony at trial that prejudiced his own defense, and 2) the

court's explicit instruction to the jury that

you must consider the counts and the
defendants separately. Mr. White and Mr.
Capelton are charged with several different
counts in the indictment. The counts, and the
defendants, have been joined for trial.
However, the counts and the defendants must be
considered separately.

2. Motion to Suppress

At 3:00 p.m. on August 23, 2000, Connecticut State

Troopers Jeffrey Campbell and John Tollis received a cell phone

call in their police cruiser from a federal surveillance team

monitoring Capelton's movements. DEA agents provided the officers

with a description of Capelton's vehicle, and informed the troopers

that the defendant was traveling south on Interstate 91, having

just left the scene of a drug transaction in Springfield. The

officers positioned their vehicle behind Capelton, and pulled the

defendant over after observing him switch lanes without using his

turn signal. A "pat frisk" of the defendant revealed a large wad

of money in his front pocket that matched, upon examination, the

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serial numbers of the "buy money" that Fisher had earlier used to

purchase crack cocaine from White. Because the government's

surveillance tapes failed to record Capelton actually exchanging

drugs for money, the marked bills found on defendant's person were

the linchpin of the government's circumstantial case against

Capelton.

Not surprisingly, Capelton argues on appeal that the

district court erred when it denied his motion to suppress this

physical evidence. We will review this claim by considering

whether the Connecticut State Police had sufficient cause, apart

from the traffic violation,2 to stop Capelton's vehicle and

whether they had probable cause to search his person and to seize

the serialized money.

"Our review of the ultimate determinations of probable

cause and reasonable suspicion on a motion to suppress is de novo.

Review of subsidiary factual findings is for clear error." United

States v. Scott, 270 F.3d 30, 39 (1st Cir. 2001) (citations

omitted). The Connecticut State Police needed an "articulable and

reasonable suspicion that [Capelton] was engaged in criminal

activity" to justify a Terry stop of his car. United States v.

Trueber, 238 F.3d 79, 92 (1st Cir. 2001) (upholding a Terry stop of

2
We say "apart from the traffic violation" only because the
trial judge did not factor the violation into his analysis of the
legal basis for the stop. There is no question that the traffic
violation alone provided a sufficient basis for the stop.

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a pickup truck ). While this involves more than a mere "hunch,"

Terry v. Ohio, 392 U.S. 1, 27 (1968), "the level of suspicion

required for a Terry stop is obviously less demanding than for

probable cause." Alabama v. White, 496 U.S. 325, 330 (1990).

Detective Fisher's detailed testimony during the pretrial

evidentiary hearing on the motion to suppress recounted the DEA

agents' close surveillance of Capelton before, during and after the

August 23 drug transaction. The knowledge may be imputed from the

DEA agents to the state police who actually effectuated the stop

under the "fellow officer rule." United States v. Winchenbach, 197

F.3d 548, 555 (1st Cir. 1999) ("[T]he focus is upon the collective

knowledge possessed by, and the aggregate information available to,

all the officers involved in the investigation.") In a case very

similar to this one, we concluded that "there [was] no doubt that

the police were justified under Terry in stopping" the defendant's

vehicle after observing him sell drugs to an undercover officer,

United States v. Schiavo, 29 F.3d 6, 9 (1st Cir. 1994), and we

reach the same conclusion here. The police observed Capelton

engage in illegal drug sales and then pulled him over. As was the

case in Schiavo, there is no doubt that the Terry stop was

justified.

The next inquiry is whether the officers' warrantless

search of Capelton's front pocket and their seizure of the

serialized currency was justified. While it would have been

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permissible for the police to search Capelton's car incident to

the stop, "[t]he search of one's person is more intrusive on the

rights protected by the Fourth Amendment than the search of an

automobile." Schiavo, 29 F.3d at 9. Therefore, we will only

uphold the search if the police demonstrated that they had

probable cause and that exigent circumstances justified the search

in the absence of a warrant.

We can easily dismiss the second factor. The district

court concluded that the officers did not need a warrant to

conduct this search in light of the "exigent circumstance" that

Capelton was mobile at the time the police developed probable

cause. This created a risk that the evidence would be "spirited

away," Florida v. White, 526 U.S. 559, 565 (1999), if the officers

delayed the search until a proper warrant could be secured. On

appeal, Capelton does not question the existence of exigent

circumstances. Thus, we will confine our review to the issue of

probable cause.

Probable cause for a search can be demonstrated by

"'facts and circumstances . . . sufficient in themselves to

warrant a man of reasonable caution in the belief that' he was

observing criminal activity and the fruits of criminal activity."

United States v. Ferrara, 539 F.2d 799, 801 (1st Cir. 1976)

(quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). The

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district court felt that the police surveillance on August 23

provided sufficient probable cause to execute the search:

The defendant was positively identified by two
officers, both of whom had an ample
opportunity to observe him and who had seen
him on previous occasions. Further, he was
identified by Gary White as the source of the
drugs, and the pattern of activity clearly
indicated that it was the defendant who
provided White with the crack cocaine given
the undercover agent that day.

Teams of surveillance agents continuously followed Capelton after

the sale. Other than getting out to pump his gas, he did not

leave the car between the time of the sale and when he was stopped

by the officers. Therefore, the police were justified in

believing that the fruit of his criminal activity, the serialized

currency, was in his possession. This belief provided them with

sufficient probable cause to justify the search.

3. Hearsay Statements of Co-Conspirators Admitted Under
Rule 801(d)(2)(E)

Federal Rule of Evidence 801(d)(2)(E) excludes from the

category of hearsay "statement[s] by a coconspirator of a party

during the course and in furtherance of the conspiracy." Fed. R.

Evid. 801(d)(2)(E). As a predicate for admitting evidence under

this rule, the trial court must conclude that "it is more likely

than not that the declarant and the defendant were members of a

conspiracy when the hearsay statement was made, and that the

statement was in furtherance of the conspiracy." United States v.

Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977). In our circuit,

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this determination is referred to as a Petrozziello ruling.

Significantly, the trial court is not required to decide the

Petrozziello question prior to admitting hearsay statements under

Rule 801(d)(2)(E), but may "admit the statement[s] provisionally,

subject to its final Petrozziello determination at the close of

all the evidence." United States v. Isabel, 945 F.2d 1193, 1199

n.10 (1st Cir. 1991). Generally, "we review the trial court's

determination that statements were coconspirator statements under

the clear error standard." United States v. Marino, 277 F.3d 11,

25 (1st Cir. 2002) (citing United States v. Mojica-Baez, 229 F.3d

292, 304 (1st Cir. 2000)). This deferential standard of review

places a heavy burden on a defendant seeking to overturn a trial

court's Petrozziello ruling. Reich v. Newspapers of New England,

Inc., 44 F.3d 1060, 1080 (1st Cir. 1995).

In United States v. Sepulveda, 15 F.3d 1161 (1st Cir.

1993), we held that "a coconspirator's statement, standing alone,

is insufficient to meet the preponderance standard of Rule

801(d)(2)(E) . . . [A]dmitting the statement into evidence

requires some extrinsic proof of the declarant's involvement in

the conspiracy." Id. at 1181-82. Capelton unpersuasively argues

that the government failed to produce any "extrinsic proof"

linking the co-defendants. Marked bills from the August 23, 2000

transaction between Fisher and White were found on Capelton's

person when he was arrested. The record also indicates that

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surveillance videos introduced by the government depict Capelton

arriving at White's residence, and show White walking back and

forth between Fisher's car and Capelton's car during the July 24

and August 23 drug transactions. This evidence easily satisfies

the "extrinsic proof" requirement of Sepulveda, and we

accordingly find no clear error in the district court's

Petrozziello ruling.3

4. Sentencing

Capelton claims that the district court erroneously

denied him a downward departure under § 5H1.6 of the United States

Sentencing Guidelines, and argues that this provision "allows for

a downward departure for unusual family circumstances." At

Capelton's sentencing hearing, the court took note that the

defendant grew up with drug addicted parents, and was forced to

live on the streets and provide for his younger brother from the

time he was twelve years old. The court commented that it had

"rarely encountered a childhood as horrendous as this," and

acknowledged that "the defendant's situation, as he was growing

up, [was] almost unimaginably difficult."

3
Capelton raises but does not develop three additional
challenges--a sufficiency of the evidence challenge, a due process
challenge involving the pen registers, and a challenge to the
court's aiding and abetting instruction--that we deem waived.
"[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argument, are deemed waived." United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

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 The judge nonetheless rejected Capelton's motion for a

downward departure, citing the defendant's extensive criminal

background and his failure to take advantage of numerous

opportunities to rehabilitate himself: "I am persuaded . . . that

the defendant has had an awfully large number of bites of the

apple and, unfortunately, this is the time when the chickens come

home to roost . . . . [U]nfortunately, I don't think there's any

basis for downward departure in this case."

Our prior jurisprudence establishes that we "lack

jurisdiction to review a discretionary decision not to depart from

the Sentencing Guidelines." United States v. Mejia, 309 F.3d 67,

70 (1st Cir. 2002); see United States v. Louis, 300 F.3d 78, 81

(1st Cir. 2002). We may review a sentencing court's conclusion

that it does not have legal authority to depart from the

sentencing guidelines, Mejia, 309 F.3d at 69-70; however, the

court recognized that it had such authority here. Therefore, we

will not review the court's discretionary decision.

D. Defendant White's Claims

1. Entrapment

The entrapment defense protects "an otherwise

law-abiding citizen who, if left to his own devices, likely would

have never run afoul of the law." Jacobson v. United States, 503

U.S. 540, 553-54 (1992). As we have previously noted:

"Entrapment is called a defense, but it is settled that once the

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defendant has made a threshold showing, the burden shifts to the

government to prove beyond a reasonable doubt either that there

was no undue government pressure or trickery or that the defendant

was predisposed." United States v. Acosta, 67 F.3d 334, 338 (1st

Cir. 1995). Since this is a disjunctive test, the entrapment

defense fails if the government can prove beyond a reasonable

doubt either that 1) it did not improperly induce the illegal

activity or 2) the defendant was otherwise predisposed. See,

e.g., Mathews v. United States, 485 U.S. 58, 62-63 (1988); United

States v. Gendron, 18 F.3d 955, 961 (1st Cir. 1994). White claims

that there was insufficient evidence to prove either the absence

of improper inducement or predisposition. We disagree with both

contentions.4 Given the disjunctive nature of the test, we can

fulfill our appellate function by elaborating our disagreement on

either inducement or predisposition. We choose to focus on

inducement.

As we held in Gendron, inducement means more than simply

organizing a "sting" operation and giving the defendant the

opportunity to commit a crime. Gendron, 18 F.3d at 961. See also

4
We review a sufficiency of the evidence claim de novo;
however, in doing so "we review all the evidence, direct and
circumstantial, in the light most charitable to the prosecution,
drawing all reasonable inferences consistent with the verdict, and
eschewing credibility judgments, to determine whether a rational
jury could have found the defendant guilty beyond a reasonable
doubt." United States v. LaFreniere, 236 F.3d 41, 45 (1st Cir.
2001).

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United States v. Gifford, 17 F.3d 462, 468 (1st Cir. 1994)

("Neither mere solicitation nor the creation of opportunities to

commit an offense comprises inducement as that term is used in the

entrapment jurisprudence."). "An 'inducement' consists of an

'opportunity' plus something else-- typically, excessive pressure

by the government upon the defendant or the government's taking

advantage of an alternative, non-criminal type of motive."

Gendron, 18 F.3d at 961.

White claims that Weeks, the police informant, used

excessive pressure to force him to sell drugs. He claims that

Weeks repeatedly threatened him and his family while they were

incarcerated together and demanded that White "hook him up" with

a drug source. After they were released from jail, Weeks

supposedly continued these threats and forced him to sell drugs to

Officer Fisher even after White initially refused to do so. Based

on this testimony, which was not corroborated by any other

witness, White claims that the government impermissibly induced

him to engage in criminal activity.

Our review of the record undercuts White's claim of

excessive pressure by the government. The evidence showed that he

never reported the alleged threats to the correctional officers or

to the police, associated with drug dealers and had multiple

sources of drugs, possessed specific knowledge related to the drug

trade (e.g. he was familiar with specific terminology and prices,

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and claimed to be able to make crack cocaine), sold Detective

Fisher drugs on eight separate occasions, gave the detective his

phone number so that the two could deal directly without going

through Weeks, and continued to sell cocaine even after Weeks

stopped contacting him. In addition, the government introduced

surveillance tapes in which, according to the trial judge,

"[White] doesn't look anything like a person who's being entrapped

. . . ." It also introduced audio tapes on which White was heard

telling Fisher that the drugs that he was going to sell him "were

top shelf." Taken together and viewed in a light favorable to

the verdict, that evidence could lead a rational jury to conclude

beyond a reasonable doubt that White voluntarily sold drugs to

Detective Fisher and that Weeks did not force him to do so.5

2. Discovery Abuse

White claims that the lower court erred when it refused

to grant a mistrial based on the government's alleged discovery

abuse. In order to prevail on a discovery abuse claim, a

5
White also tries to restate his inducement arguments as Fifth
Amendment "outrageous government conduct" violations. As we have
previously observed: "[The outrageous government conduct] doctrine
is moribund; in practice, courts have rejected its application with
almost monotonous regularity." United States v. Santana, 6 F.3d
1,4 (1st Cir. 1993). See also United States v. Panitz, 907 F.2d
1267, 1272 (1st Cir. 1990) ("[W]e have yet to review a situation
where official conduct crossed the constitutional line; rather, an
unbroken string of First Circuit cases has repulsed attempts to win
dismissal of criminal charges on such a theory."). In any event,
since the government so easily defeated the inducement prong of the
entrapment analysis, White's due process claim, even if available
under the law, fails.

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defendant must show 1) that the government wrongfully withheld

evidence and 2) that the defendant suffered prejudice as a result.

United States v. Nickens, 955 F.2d 112, 126 (1st Cir. 1992).

White's claim fails both of these requirements.

Prior to trial, White sent the government a letter

pursuant to local rule 116.3(A)6 requesting the following:

Disclosure of all prior subsequent [sic]
crimes, wrongs or acts allegedly committed by
each and any one of the Defendants upon which
the Government intends to rely or of which the
Government intends to offer evidence to prove
motive, scheme, opportunity, intent,
preparation, plan, knowledge, identity or
absence of mistake or accident . . . .

The government sent White copies of his prior convictions in

response to that letter, but it did not include any investigative

reports or memoranda.7 White claims that the government wrongfully

6
District of Massachusetts Local Rule 116.3(A) states:
(A) Within forty-two (42) days of arraignment, any party
by letter to the opposing party may request discovery.
The opposing party shall reply in writing to the requests
contained in such letter, no later than fourteen (14)
days after its receipt, stating whether that party agrees
or does not agree to furnish the requested discovery and,
if that party agrees, when the party will furnish the
requested discovery. A copy of the discovery request
letter and any response must also be filed with the
Clerk’s Office.
7
The government properly referred to the requested documents
as Fed. R. Evid. 404(b) (concerning the defendant's prior bad acts)
and 609 (concerning prior convictions) evidence. Rule 404(b)
requires the government to disclose "in advance of trial . . . the
general nature of any such evidence it intends to introduce at
trial." Although White did not frame his argument in 404(b) terms,
relying instead on Local Rule 116.3(a), his general "discovery
abuse" claim is essentially a 404(b) claim. Our analysis would be

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withheld a surveillance record that DEA Agent Shuler prepared as

part of a prior investigation of other drug dealers. Even though

White was not a target of that investigation, he claims that the

surveillance took place at his address, thus making the report a

form of prior bad acts evidence. Furthermore, he claims that the

government's failure to produce that report prejudiced his ability

to prepare a defense.

We conclude that this report was not covered by White's

pretrial discovery request; therefore, the government was not

required to produce it. White was not a target of the earlier DEA

investigation. He is only mentioned in the report because the

government conducted its surveillance of the suspects in the

vicinity of his home. While the jury may have drawn negative

inferences from White's association with drug suspects, it is a

stretch to deem this association a bad act within the meaning of

Rule 404(b). See United States v. Reed, 647 F.2d 678, 686 (6th

Cir. 1981) (holding that testimony concerning the defendants' past

association with known thieves and their presence at a "hangout

for thieves" did not constitute 404(b) evidence). Furthermore,

there is no evidence that the government intended to use that

report against White. The jury only learned about the prior

investigation because White's attorney asked DEA Agent Shuler

whether he had heard the name "Gary White" before Shuler started

the same under either approach.

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his investigation with Detective Fisher.8 In doing so, he forced

Shuler to discuss the earlier investigation. The government's

attorney did not reference the report on direct examination, and

there is no hint in the record that the material in this report

would have been introduced if White's attorney had not pressed

Agent Shuler on the matter.9

3. Sentencing

White's final three claims regard errors that the court

allegedly made at sentencing.

a. Acceptance of Responsibility

White claims that the district court erred by not

reducing his sentence under Section 3E1.1 of the United States

Sentencing Guidelines, based on his acceptance of responsibility

for his actions. Since the sentencing court can best determine

whether the defendant "clearly demonstrates a recognition and

affirmative acceptance of personal responsibility," we accord

great deference to decisions rejecting an acceptance of

8
Prior to Agent Shuler's testimony, White's attorney asked
another agent, James Clifford, whether he had heard White's name
associated with drug sales. Clifford simply answered that he had
seen White's name connected with Agent Shuler's investigation. He
did not provide further details regarding the content of that
investigation.
9
We also note that White failed to request a continuance when
he first discovered the alleged abuse. Thus, we may presume a
lack of prejudice. United States v. Sepulveda, 15 F.3d 1161,
1178 (1st Cir. 1993) ("As a general rule, a defendant who does not
request a continuance will not be heard to complain on appeal that
he suffered prejudice as a result of late-arriving discovery.").

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responsibility claim. U.S.S.G. § 3E1.1 cmt. n. 5. We only

reverse such decisions on a showing of clear error. United States

v. Walker, 234 F.3d 780, 784 (1st Cir. 2000).

White claims that since he never contested his "factual

guilt," he should qualify for a reduced sentence. That view is

not supported by our case law. While we have not held that a

defendant will always forfeit his chance for a 3E1.1 adjustment by

adopting an entrapment defense, we have held that an adjustment in

such a situation would be rare. See, e.g., United States v.

Baltas, 236 F.3d 27, 37 (1st Cir. 2001) ("'This adjustment is not

intended to apply to a defendant who puts the government to its

burden of proof at trial by denying the essential factual elements

of guilt, is convicted, and only then admits guilt and expresses

remorse.'") (quoting U.S.S.G. Sec. 3E1.1 cmt. 2); United States v.

DeLeon Ruiz, 47 F.3d 452, 455 (1st Cir.1995) ("[A]bsent unusual

facts, we will . . . generally sustain a district court that

denies acceptance of responsibility to a defendant who declined to

plead guilty on the count or counts of which he was convicted.").

This case does not qualify as one of those rare

exceptions. White was caught on video and audio tape selling

powdered and crack cocaine to an undercover agent. When the

government attempted to arrest him, he fled and forced the agents

to run through yards and to jump over fences to apprehend him. At

trial, he adopted what the judge termed "a very, very weak

-27-
entrapment defense" and forced the government to bear the burden

of proving its case against him. Given all of the evidence that

the government marshaled against him, it would have been futile

for White to contest his "factual guilt" at trial; therefore,

considering his continuous refusal to accept responsibility, we

can hardly say that the court clearly erred in refusing a downward

adjustment for acceptance of responsibility.

b. Minor Participant

White argues that, even though he was the only party who

was involved in all of the drug transactions, the court erred when

it refused to consider him a "minor participant" for sentencing

purposes. We review this claim for clear error. United States v.

Melendez, 301 F.3d 27, 33 (1st Cir. 2002).

In order to receive a downward adjustment for being a

"minor participant," a defendant must demonstrate, inter alia,

that he "is less culpable than most other participants" in the

crime for which he was convicted. U.S.S.G. § 3B1.2, cmt 3. White

cannot meet that standard. The sentencing judge characterized him

as the "hub of the wheel" in these transactions and observed:

Mr. White here was involved in every single deal. He
was the central figure in these deals and he's not
entitled to any downward departure based upon any minor
participation or being a minor participant. He was, if
anything, I think the major, perhaps the primary
participant.

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Since he was an integral link in all eight drug transactions, we

cannot find any clear error in the sentencing judge's decision to

deny a downward adjustment.

c. Sentencing Factor Manipulation

Finally, White claims that the court erred by not

granting him a downward departure to counteract the government's

improper enlargement of his crime. He asserts that the government

"arranged" to have him sell drugs on eight separate occasions

rather than simply arresting him after the first sale and that

this conduct impermissibly extended his sentence.

As we discussed in United States v. Montoya, 62 F.3d 1,

4-5 (1st Cir. 1995), downward departures based on sentencing

factor manipulation are equitable remedies that courts only invoke

in "the extreme and unusual case." White bears the burden of

demonstrating that the government engaged in "extraordinary

misconduct," and that it improperly enlarged either the scope or

the scale of the crime. In considering this claim, we will "focus

primarily--though not necessarily exclusively--on the government's

conduct and motives." United States v. Gibbens, 25 F.3d 28, 31

(1st Cir. 1994).

Assuming arguendo that we have jurisdiction to review

this claim, we conclude that White failed to introduce sufficient

evidence to demonstrate that the government improperly extended

the duration of its investigation in an effort to extend his

-29-
sentence. While it could have arrested White after the first

sale, it does not appear that its failure to do so was motivated

by malice or bad faith. See United States v. Terry, 240 F.3d 65,

71 (1st Cir. 2001) (concluding that the government acted in good

faith when it claimed, inter alia, that it extended the duration

of its investigation to identify other members in the drug

network). In fact, since White used multiple sources of drugs,

the government's extension of the investigation allowed it to

identify more dealers. Since White failed to demonstrate that the

government engaged in extraordinary misconduct, we reject his

sentencing manipulation claim.

III.

For the foregoing reasons, we AFFIRM the convictions and

sentences of both appellants.

SO ORDERED.

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