United States v. Lewis

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1819

UNITED STATES,

Appellee,

v.

OTIS DARREN LEWIS,

Defendant - Appellant.

No. 93-1820

UNITED STATES,

Appellee,

v.

MICHAEL STARKS,

Defendant - Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Torruella, Circuit Judge,

Campbell, Senior Circuit Judge,

and Boudin, Circuit Judge.

William A. Brown, by Appointment of the Court, for appellant

Otis Darren Lewis.
James P. Duggan, by Appointment of the Court, for appellant

Michael Starks.
Thomas C. Frongillo, Assistant U.S. Attorney, with whom

Donald K. Stern, United States Attorney, and Michael J. Pelgro,

Assistant U.S. Attorney, were on brief for appellee.

November 14, 1994

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TORRUELLA, Circuit Judge. A federal grand jury

returned a five-count indictment charging Otis Darren Lewis and

Michael Starks with (1) being felons-in-possession of firearms,

(2) carrying and using firearms during and in relation to a drug

trafficking crime, and (3) possession with intent to distribute

cocaine base. Following a four day trial, a jury found Lewis and

Starks guilty on all counts. The court then sentenced Lewis to

serve 322 months in prison. The court sentenced Starks to serve

144 months in prison. Lewis and Starks now appeal their

convictions and sentences on various grounds. For the following

reasons, we affirm.

BACKGROUND
BACKGROUND

A. Facts
A. Facts

On Friday, August 14, 1992, a confidential informant

telephoned Officer Robert Leedberg of the Brockton Police

Department "Gang Unit" on a cellular phone. The informant

stated that two men, Otis Darren Lewis ("Lewis") and Michael

Starks ("Starks"), were in possession of firearms inside Pete &

Mary's Bar, located on the corner of Montello and Franklin

Streets in downtown Brockton. Because Officer Leedberg was

involved in another case on August 14, 1992, he did not respond

to the tip.

The confidential informant again telephoned Officer

Leedberg on August 15, 1992, at about 11:00 p.m. and then again

at 12:20 a.m. on August 16, 1992. The confidential informant

told Officer Leedberg that Lewis and Starks were again in

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possession of firearms in Pete & Mary's Bar. He stated that he

had seen the firearms and the informant then described to Officer

Leedberg how Lewis and Starks were dressed. After obtaining this

information, Officer Leedberg and Brockton Police Officers James

Smith and Thomas Keating established surveillance in the vicinity

of Pete & Mary's Bar. The officers were in an unmarked police

cruiser and were dressed in street clothes.

During the course of their investigation, Officer Smith

left the unmarked police car to conduct surveillance from

Montello Auto Sales, a used car lot located directly across the

street from the front of Pete & Mary's Bar. Officers Leedberg

and Keating remained in the unmarked police cruiser and drove to

a surveillance post in a parking lot behind Pete & Mary's Bar.

They watched the rear door of the bar from this location.

At about 12:35 a.m., the confidential informant arrived

in the parking lot behind the bar. Officers Leedberg and Keating

met with the informant and observed him enter and later leave the

bar. After leaving the bar, the informant conferred with Officer

Smith in the used car lot. Officer Smith then called Officers

Leedberg and Keating on the radio. After receiving this call,

Officers Leedberg and Keating moved their unmarked police cruiser

to a position from which they could observe the front of the bar.

At about 1:00 a.m., Officer Smith saw Lewis and Starks leave Pete

and Mary's Bar, cross Montello Street, and approach a brown Buick

parked at the D'Angelo's Sub Shop ("D'Angelo's") parking lot.

As Lewis and Starks stood near the brown Buick,

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Officers Leedberg and Keating were rapidly approaching the

D'Angelo's parking lot in their unmarked police car. Starks

recognized the unmarked police car as a result of a previous

encounter with Officers Leedberg and Smith.

As Officers Leedberg and Keating advanced, Officer

Smith, who was still conducting surveillance from the used car

lot adjacent to the D'Angelo's parking lot, observed Starks bend

down, place a black object under the Buick, and straighten up.

Officer Smith then saw Lewis similarly bend down on the driver's

side of the Buick. Officer Leedberg then parked the unmarked

police vehicle behind the brown Buick. As Officer Keating exited

the car, he saw Starks waiving his hands and approaching the

police car. Officer Keating then observed Lewis stand up on the

driver's side of the Buick. After exiting the unmarked police

car, Officer Leedberg repeatedly shouted, "Police, don't move;

keep your hands in sight." Officer Smith then pat-frisked Lewis.

Officer Leedberg pat-frisked Starks. Neither officers found any

guns or narcotics at this time. On instructions from Officer

Smith, Officer Keating then searched the parking lot where the

pair had just bent down and stood up. He found a loaded 9

millimeter Beretta pistol and a vial containing 17 pieces of a

substance later determined to be "crack cocaine" under the brown

Buick. He also found a loaded .45 caliber Star pistol and a vial

containing 22 pieces of crack cocaine under a car parked

alongside the brown Buick. The police officers then placed Lewis

and Starks under arrest.

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B. Procedural History
B. Procedural History

A federal grand jury returned a five-count indictment

charging Lewis and Starks with (1) being felons-in-possession of

firearms in violation of 18 U.S.C. 922(g)(1), (2) carrying and

using firearms during and in relation to a drug trafficking crime

in violation of 18 U.S.C. 924(c); and (3) possession with

intent to distribute cocaine base in violation of 21 U.S.C.

841(a)(1). Following the indictment, Lewis and Starks filed a

motion to suppress the guns and narcotics which the police had

seized on the morning of the arrest as being the fruit of an

unlawful search and seizure. The district court denied this

motion and admitted the evidence. Following a four day trial, a

jury found Lewis and Starks guilty on all counts. The court

calculated that, under the sentencing guidelines, the crimes

committed by Lewis and Starks amounted to a total offense level

of 26. The court determined that Lewis' prior crimes placed him

in criminal history category IV and sentenced him to serve 322

months in prison. The court placed Starks in criminal history

category III and sentenced him to serve 144 months in prison.

Lewis and Starks now appeal various issues connected to their

convictions and sentences.

DISCUSSION
DISCUSSION

I. The evidentiary hearing
I. The evidentiary hearing

Lewis and Starks filed a motion to suppress, contending

that the police officers improperly seized the firearms and

cocaine. With respect to the motion, Lewis and Starks contend

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that the district court erred by failing to order an evidentiary

hearing. As a preliminary matter, we note that the district

court is entrusted with deciding whether to hold an evidentiary

hearing and we will not overrule the refusal to convene an

evidentiary hearing unless the district court is shown to have

abused its discretion. United States v. McAndrews, 12 F.3d 273,

280 (1st Cir. 1993). Lewis and Starks have made no such showing.

"[A] criminal defendant has no absolute or presumptive

right to insist that the district court take testimony on every

motion." United States v. Panitz, 907 F.2d 1267, 1273 (1st Cir.

1990) (citations omitted). Evidentiary hearings on motions to

suppress are required only when a defendant makes a sufficient

showing that a warrantless search has occurred. United States v.

Migely, 596 F.2d 511, 513 (1st Cir.), cert. denied, 442 U.S. 943

(1979). To make this showing "[t]he defendant must allege facts,

'sufficiently definite, specific, detailed, and nonconjectural,

to enable the court to conclude that a substantial claim is

presented.'" Id. (quoting Cohen v. United States, 378 F.2d 751,

761 (9th Cir.), cert. denied, 389 U.S. 897 (1967). The defendant

must allege facts that, if proven, would entitle him to relief.

Migely, 596 F.2d at 513.

Lewis and Starks have not shown that they were entitled

to an evidentiary hearing. The facts surrounding their arrest

were essentially uncontested at the hearing on the motion to

suppress. Lewis and Starks were required to allege facts that

indicated that the police officer's discovery of the guns and

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cocaine violated the Fourth Amendment. They alleged none.

Neither Lewis nor Starks personally swore out any affidavits.

The lone affidavit in support of the motion to suppress was

prepared by Starks' attorney, who had no first-hand knowledge of

the relevant events; it contains only conclusory allegations that

the police lacked probable cause or a reasonable articulable

suspicion of criminal activity when they arrested Lewis and

Starks. In contrast, the government filed detailed affidavits

sworn out by Officers Smith and Leedberg in support of its

opposition to Lewis' and Starks' motion to suppress.

In sum, the affidavit in support of Lewis' and Starks'

motion to suppress does not allege facts that are sufficiently

definite, specific, detailed, and nonconjectural to enable the

court to conclude that a substantial claim is presented. Thus,

the district court was completely justified in refusing to hold

an evidentiary hearing where the factual matters were essentially

uncontested.

II. The motion to suppress
II. The motion to suppress

Lewis and Starks contend that the contraband the police

officers confiscated from the parking lot should have been

excluded as the fruit of an unlawful, warrantless search.

Specifically, Lewis and Starks assert that the police seized them

without probable cause immediately after they left Pete & Mary's

Bar and that this seizure occurred before the officer allegedly

observed them abandon the guns and cocaine.

First, we agree with the government that Lewis and

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Starks lacked standing under the Fourth Amendment to challenge

the search. Moreover, even assuming arguendo that Lewis and

Starks had standing, we find that the search satisfied the

requirements of the Fourth Amendment.

While we review the district court's findings of fact

on a motion to suppress for clear error, we review questions of

law de novo. United States v. Zapata, 18 F.3d 971, 975 (1st Cir.

1994). "This phenomenon sets the stage for a more nuanced

statement of appellate practice in Fourth Amendment cases." Id.

Though we treat the factual findings with deference, we

"[subject] the trial court's ultimate constitutional conclusions

to plenary oversight." Id.

A. Standing
A. Standing

The Fourth Amendment's protection against unreasonable

searches and seizures extends only to those places and interests

in which the defendant has a reasonable expectation of privacy.

United States v. Cruz Jim nez, 894 F.2d 1, 5 (1st Cir. 1990)

(citing Rakas v. Illinois, 439 U.S. 128, 140-50 (1978)). Such an

expectation of privacy is a threshold standing requirement that a

defendant must establish before a court can proceed with any

Fourth Amendment analysis.1 Cruz Jim nez, 894 F.2d at 5 (citing

1 "This inquiry is often referred to as a 'standing' issue,
although it is not an inquiry that serves the function of
traditional standing doctrine, which is to enable a federal court
to determine whether there is such case or controversy that it
may take jurisdiction of under Article III." Cruz Jim nez, 894

F.2d at 5 n.1 (citations omitted). The concept of standing under
the Fourth Amendment refers to the defendant's burden of proving
a legitimate expectation of privacy as a prerequisite to
challenging assertedly unlawful police conduct. United States v.

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United States v. Salvucci, 448 U.S. 83, 90-91 (1980)). "What the

Fourth Amendment protects is the security a man relies upon when

he places himself or his property within a constitutionally

protected area, be it his home or his office, his hotel room or

his automobile." Hoffa v. United States, 385 U.S. 293, 301

(1966). "Essentially, . . . to prove a Fourth Amendment

violation, [a defendant] must demonstrate not only that he

exhibited a subjective expectation of privacy, but also that his

expectation was justifiable under the attendant circumstances."

Cruz Jim nez, 894 F.2d at 5 (citing United States v. Aguirre, 839

F.2d 854, 857 (1st Cir. 1988)). The defendant bears the burden

of persuasion on this issue. Cruz Jim nez, 894 F.2d at 5

(citations omitted).

A defendant who fails to demonstrate a sufficiently

close connection to the relevant places or objects will not have

standing to claim that they were illegally searched or seized.

United States v. S nchez, 943 F.2d 110, 113 (1st Cir. 1991); see

also United States v. Pierce, 959 F.2d 1297, 1303 (5th Cir.),

cert. denied, 113 S. Ct. 621 (1992) (holding that a defendant

lacked standing to object to a search because he never at any

point during the trial or appeal "attempted to establish, much

less prove, any privacy interest in the [contraband]").

Lewis and Starks lacked standing to protest the police

officers' search of the parking lot because they failed to assert

S nchez, 943 F.2d 110, 113 n.1 (1st Cir. 1991). "We therefore

use the term 'standing' somewhat imprecisely to refer to this
threshold substantive determination." Id.

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any privacy interest in the seized contraband. It may well be

that Lewis and Starks had a reasonable expectation of privacy in

the contraband, but if so, they failed to assert it in support of

their motion to suppress. Neither Lewis nor Starks personally

swore out any affidavits with respect to such an expectation.

Rather, the lone affidavit in support of their motion to suppress

was prepared by Starks' attorney, who had no first-hand knowledge

of the relevant events. Moreover, this affidavit contains only

conclusory allegations that the police lacked probable cause or a

reasonable articulable suspicion of criminal activity when they

arrested Lewis and Starks. We appreciate that Lewis and Starks

may have feared that any interest they may have claimed in the

contraband would be used against them at trial; however, "it has

been well settled for over twenty years that testimony given to

meet standing requirements cannot be used as direct evidence

against the defendant at trial on the question of guilt or

innocence." United States v. Garc a-Rosa, 876 F.2d 209, 219 (1st

Cir. 1989) (citing Simmons v. United States, 390 U.S. 377, 390

(1968)). Lewis' and Starks' only interest in suppressing the

contraband appears to be to avoid its evidentiary force against

them; this is not an interest protected by the Fourth Amendment.

Although we find that Lewis and Starks lack standing to

raise a Fourth Amendment challenge, we note that in any event the

search satisfied the Fourth Amendment under the doctrines of

abandonment and plain view.

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B. Abandonment
B. Abandonment

When a defendant abandons property before a "seizure"

occurs, the Fourth Amendment is not implicated because the

property is not the fruit of an illegal search and seizure.

California v. Hodari D., 499 U.S. 621, 629 (1990). An arrest

requires "either physical force . . . or, where that is absent,

submission to the assertion of authority." Id. at 626 (emphasis

in original). The police have made an assertion of authority

only if their words and actions would have caused an average

citizen to believe he was not free to leave. Id. at 628 (citing

United States v. Mendenhall, 446 U.S. 544, 554 (1980)). In

Hodari, a police officer was chasing the defendant and, moments

before the officer tackled him, the defendant tossed a rock of

cocaine from his person. Id. at 623. The Court held that,

"assuming that [the officer's] pursuit . . . constituted a 'show

of authority' enjoining [the defendant] to halt, since [he] did

not comply with that injunction he was not seized until he was

tackled." Id. at 629. Thus, the cocaine abandoned during the

course of the chase was not the fruit of a seizure.

We follow Hodari and find that, even if the Brockton

Police had made a show of force when they approached Lewis and

Starks in the D'Angelo's parking lot, Lewis and Starks abandoned

the contraband before they submitted to official authority. The

district court expressly found that Lewis and Starks bent down

and straightened up near the brown Buick before the police

announced themselves and then pat-frisked Lewis and Starks.

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Thus, though Lewis and Starks eventually submitted to the police

officers, this submission occurred after they had abandoned the

contraband. Consequently, the motion to suppress was properly

denied under the doctrine of abandonment.

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C. Plain View
C. Plain View

The "plain view" doctrine allows the police to seize

evidence without a warrant so long as (1) the evidence is in

"plain view," (2) the police are legitimately on the premises

where the evidence is seized, and (3) the evidence is immediately

and apparently connected to the criminal activity. Coolidge v.

New Hampshire, 443 U.S. 443, 464-73 (1971).

Lewis and Starks do not contest the fact that the guns

and cocaine were in plain view and their connection to criminal

activity was immediate and apparent when the officers seized

them. Rather, Lewis and Starks contend that the police were not

legitimately in the parking lot where the evidence was seized.

The district court found that the police officers were

legitimately in the parking lot and that they had the "reasonable

articulable suspicion" necessary to justify an investigatory stop

under the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 21

(1968); see also Adams v. Williams, 407 U.S. 143 (1972) (holding

that a Terry stop was justified when an informant told a police

officer that an individual in a nearby vehicle was carrying drugs

and weapons). The record amply supports this conclusion. The

district court found that a reliable confidential informant had

told the Brockton Police that Lewis and Starks were carrying

contraband in Pete & Mary's Bar. Officer Leedberg's affidavit

established that the informer had previously provided information

that led to the arrest of twelve defendants in seven criminal

cases in the Brockton District Court. Further, during the course

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of their surveillance outside Pete & Mary's Bar, the police

officers were able to corroborate some portions of the

confidential informant's tip. Specifically, the officers were

able to verify that the informer had been inside the bar and was

thus in a position to see that Lewis and Starks were in

possession of firearms. The surveillance also allowed the

officers to observe that Lewis and Starks were dressed as the

informer had described. Consequently, the informer's tip,

coupled with the informer's previous reliability and the

corroboration provided by police observations, justified an

investigatory stop. Thus, because we agree that the police were

legitimately in the parking lot and because the guns and cocaine

were in plain view and their connection to criminal activity was

apparent, the officers properly seized the evidence.

III. The confidential informant's identity
III. The confidential informant's identity

Lewis and Starks assert that the district court

erroneously denied their motion to disclose the identity of the

confidential informant. Specifically, they contend that the

informant played a material role in their arrest and that his

testimony was vital because it pertained to their defense and

could "amplify, contradict, or clear up" the Government's

evidence.

We review the district court's decision not to disclose

the identity of a confidential informer under an abuse of

discretion standard. See United States v. Jackson, 918 F.2d 236,

240 (1st Cir. 1990).

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The courts have long recognized that the Government has

a "privilege to withhold from disclosure the identity of persons

who furnish information of violations of law to officers charged

with enforcement of that law." Roviaro v. United States, 353

U.S. 53, 59 (1957). "The purpose of the privilege is the

furtherance and protection of the public interest in effective

law enforcement. The privilege recognizes the obligation of

citizens to communicate their knowledge of the commission of

crimes to law-enforcement officials and, by preserving their

anonymity, encourages them to perform that obligation." Id.

This privilege, however, is not absolute. Id. at 60-61. "Where

the disclosure of an informer's identity, or the contents of his

communication, is relevant and helpful to the defense of an

accused, or is essential to a fair determination of a cause, the

privilege must give way." Id.

The resolution of this issue depends on the particular

circumstances of each case. Id. at 62. The trial court must

balance the public interest in protecting the flow of information

against the individual's right to prepare his defense. Id. In

so doing, it should take into consideration the crime charged,

the possible defenses, the possible significance of the

informer's testimony, and other relevant factors. Id. The

burden is on the defendant to demonstrate that the circumstances

demand disclosure; "[mere] speculation . . . is not sufficient to

meet the heavy burden which rests on an accused to establish that

the identity of a confidential informant is necessary to his

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defense." United States v. Giry, 818 F.2d 120, 130 (1st Cir.),

cert. denied, 484 U.S. 855 (1987) (quoting United States v.

Skeens, 449 F.2d 1066, 1070 (D.C. Cir. 1971)). Where the

informant is a "mere tipster," as opposed to an active

participant in the offense charged, disclosure is required only

in the exceptional case where it is vital to a fair trial.

United States v. Batista-Polanco, 927 F.2d 14, 19 (1st Cir. 1991)

(citing Giry, 818 F.2d at 130).

Lewis and Starks argue that the informant was more than

a mere tipster and that his testimony was vital to their defense,

in that he provided the police with the information that resulted

in their arrest. They imply that the informant may have even

"set them up." They list a number of questions that were

unanswered due to the district court's refusal to require

disclosure of the informant. These include questions concerning

the nature of the relationship, if any, between the informer and

Lewis and Starks and whether the informer harbored a personal

grudge against them. Consequently, they conclude that the

informer's absence precluded a fair trial. We disagree.

The district court properly refused to order disclosure

of the informant's identity. The record indicates that the

informant was merely a tipster in the arrest of Lewis and Starks.

The informer simply spoke with the police, first by telephone and

then in person, to inform them that Lewis and Starks were

carrying firearms in Pete & Mary's Bar. The arrest then occurred

approximately twenty minutes after the police last spoke with the

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informer. The informer was not present at the scene of the

arrest in the parking lot and, thus, was in no position to

amplify, contradict, or clear up the testimony of any government

witness.

Moreover, there is ample evidence to refute any "frame

up" theory. Though the informer told the officers that Lewis and

Starks would be leaving through the front door of Pete & Mary's

Bar, he did not tell them that Lewis and Starks would proceed to

the D'Angelo's parking lot. Thus, because he did not tell the

police where Lewis and Starks would go upon leaving Pete & Mary's

Bar, the informant could not have controlled when or where the

arrest would occur. Furthermore, the police officers never saw

the informer in the D'Angelo's parking lot. This makes it

virtually impossible that the informer planted the contraband,

especially in light of the fact that the officers saw Lewis and

Starks attempting to hide it. Thus, we find that the district

court did not abuse its discretion when it denied the motion to

disclose the informer's identity.

IV. The missing witness instruction
IV. The missing witness instruction

Lewis and Starks contend that the district court erred

when it refused to issue a missing witness instruction with

regard to the confidential informant. Specifically, they argue

that the instruction was necessary because the informant was a

witness in the government's exclusive control whose testimony

would have been relevant and noncumulative. We review the

court's refusal to give such an instruction for an abuse of

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discretion. See United States v. St. Michael's Credit Union, 880

F.2d 579, 597 (1st Cir. 1989) (citations omitted).

"[T]he failure of a party to produce available evidence

that would help decide an issue may justify an inference that the

evidence would be unfavorable to the party to whom it is

available or [to] whom it would ordinarily be expected to favor."

St. Michael's Credit Union, 880 F.2d at 597 (quoting 2 C. Wright,

Federal Practice and Procedure 489 (1982)). A missing witness

instruction is appropriate when its proponent demonstrates that

the absent witness would have been (1) "favorably disposed" to

testify in the government's behalf, (2) "peculiarly available" to

the government, or (3) in the "exclusive control" of the

government. United States v. Welch, 15 F.3d 1202, 1214-15 (1st

Cir.), cert. denied, 114 S. Ct. 1863 (1994) (citing St. Michael's

Credit Union, 880 F.2d at 597). When deciding whether to issue a

missing witness instruction, the judge should consider whether

the witness could provide "relevant, noncumulative testimony."

See United States v. Ariza-Ibarra, 651 F.2d 2, 16 (1st Cir.),

cert. denied, 454 U.S. 895 (1981); see also Welch, 15 F.3d 1215

n.17.

In a similar situation, we upheld the district court's

refusal to issue a missing witness instruction with regard to an

undisclosed confidential informant. United States v. Mart nez,

922 F.2d 914, 925 (1st Cir. 1991). In Mart nez, the informer had

witnessed prior drug transactions in the apartment where the

defendants were eventually arrested. However, we found that the

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informer was a mere tipster because he was not present during the

drug transaction which constituted the sole basis for the

prosecution and thus "was not in a position to amplify,

contradict, or clear up any inconsistencies in the government

witnesses' testimony . . . ." Id. at 921. We then concluded

that a missing witness instruction would have been improper

because, as a mere tipster, the informant was unessential to the

defendant's right to a fair trial. Id. at 921, 925.

Specifically, we held that where "a defendant's right to a fair

trial is not jeopardized by the government's refusal to disclose

its informant's identity, the exercise of that prerogative can

never give rise to a negative inference suggesting that the

informant's testimony would have been unfavorable." Id.

(emphasis added). We further noted that an adverse inference was

especially unjustified when the government's decision not to

reveal the identity of its confidential informant was prompted

only by its "concern for the informant's safety and anonymity . .

. ." Id.

We find the reasoning of the Mart nez court to be

controlling here. As we concluded above, the informer was a mere

tipster whose absence did not jeopardize Lewis' and Starks' right

to a fair trial. Per Mart nez, this conclusion renders a missing

witness instruction inappropriate. Furthermore, given the

violent background of Lewis -- three prior convictions for armed

robbery --the government's concern for the informer's safety was

justified. Moreover, as in Mart nez, Starks used his summation

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to argue an adverse inference from the absence of the

confidential informant. Id. Thus, we find that the district

court did not abuse its discretion when it refused to issue the

missing witness instruction.

V. Cross-examination of Officer Noone
V. Cross-examination of Officer Noone

Lewis and Starks claim that the district court

improperly limited their cross-examination of Officer Noone. As

an expert witness for the government, Officer Noone offered

testimony regarding the distribution and value of crack cocaine,

as well as the use of weapons by alleged dealers of crack

cocaine. Lewis and Starks claim that the district court

improperly refused to allow them to cross-examine Officer Noone

regarding the correct and preferable law-enforcement procedures

to be used when investigating and prosecuting a narcotics case.

Through this cross-examination, Lewis and Starks were attempting

to show that they were the victims of a sloppy and botched

investigation. They claim that they were prejudiced by these

allegedly improper limits because "the jury was unable to realize

the numerous police errors that permeated this case . . . ."

We review a district court's limitations on cross-

examination for an abuse of discretion. United States v. Twomey,

806 F.2d 1136, 1139-40 (1st Cir. 1986). "A defendant's right to

cross-examine is fundamental and demanding of great respect,

Alford v. United States, 282 U.S. 687, 691-92 (1931); however, a

trial judge retains wide latitude to impose reasonable limits in

order to avoid prejudice to a party or confusion of the issues."

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Twomey, 806 F.2d at 1139 (citing Delaware v. Van Arsdall, 475

U.S. 673, 679 (1986)).

The district court gave Lewis and Starks wide latitude

to impeach Officer Noone's credibility with questions about

general investigatory procedures. The court, however, limited

Lewis' and Starks' cross-examination when they attempted to

elicit testimony on matters that were cumulative, irrelevant,

outside the scope of direct, or outside Officer Noone's personal

knowledge and expertise.

For instance, Officer Noone was not involved in the

surveillance and investigation that led to the arrest of Lewis

and Starks. Thus, the court was within its discretion when it

excluded questions on the actual procedures involved in the

present case.2 The court also acted within its discretion when

it excluded a question concerning whether it is preferable to use

controlled drug buys and electronic surveillance before accusing

a defendant of being a drug dealer. Although Officer Noone's

knowledge of various police procedures or lack thereof may have

been relevant to impeach his credibility as an expert witness,

the district court had already given the defendants considerable

latitude to accomplish this. Thus, because these procedures were

not used in this case, this hypothetical was too far removed from

the facts at hand. The court likely decided to cut off this

2 These questions included whether the police had made
controlled drug buys or had used electronic surveillance during
the investigation and how Starks was dressed when he was
arrested.

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speculative line of questioning because it was so marginally

relevant and because the defense counsel could have proceeded to

ask Officer Noone about dozens of procedures that the police

could have used in this case, leading to interminable unrelated

speculation and confusion.

We have carefully reviewed Lewis' and Starks' other

specific contentions and find them similarly meritless.

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VI. Prosecutorial misconduct
VI. Prosecutorial misconduct

A. Comment on the "frame-up" theory
A. Comment on the "frame-up" theory

Lewis and Starks assert that the government improperly

commented on their failure to produce any evidence regarding an

alleged "frame up" orchestrated by the confidential informant.

Whether the prosecutor's comments were improper is reviewed de

novo; whether the misconduct, if any, demands a new trial is

reviewed for an abuse of discretion. United States v. Glantz,

810 F.2d 316, 320 n.2 (1st Cir.), cert. denied, 482 U.S. 929

(1987).

Though it is axiomatic that the government cannot

comment on a defendant's failure to take the stand, Griffin v.

California, 380 U.S. 609, 615 (1965), "the government is

entitled, to some extent, to comment on a defendant's failure to

produce evidence supporting the defense theory of the case."

Glantz, 810 F.2d at 321 (citing United States v. Savarese, 649

F.2d 83, 87 (1st Cir. 1981)). In Glantz, the prosecutor remarked

that the defendant had failed to produce records supporting its

contention that the alleged kickbacks were actually legitimately

earned legal fees. Glantz, 810 F.2d at 320-24. We found that

the arguments were not such that a jury would naturally and

necessarily take them to be comments on the defendant's failure

to testify. Rather, the arguments highlighted weaknesses in the

defense's theory -- the primary weakness was, in fact, the

absence of business records supporting this theory. Id. at 322-

23. Having put forth a theory in defense, a defendant cannot

- 24 -

expect the government to refrain from commenting on its

deficiencies. See id. at 321.

Here, Lewis and Starks assert that the government

improperly commented on the lack of evidence suggesting that the

informer had framed Lewis and Starks by planting the contraband

in the parking lot. In closing, the government argued:

Now, you heard at the beginning of this
case, the very beginning of this case
. . . that somebody framed these
defendants. That's what was stated to
you. Somebody framed the defendants.
Now, what are you hearing? You're
hearing, well -- first of all, what
evidence has there been on that? None.
What evidence has come to you wherein you
would say, "Yeah, I think they were
framed?"

Lewis and Starks contend that this was an impermissible comment

on their failure to testify. We disagree. Both Lewis and Starks

raised the possibility that they had been framed by the

confidential informant. Starks raised the "set up" defense in

his opening statement. Though Lewis never explicitly asserted

it, he insinuated that the confidential informant had indeed

planted the contraband.3 Lewis and Starks failed to offer any

evidence whatsoever that would even remotely support this theory.

Given this, we believe the government's closing statement was a

permissible comment on the weakness of the frame-up theory

3 This insinuation is most clear in Lewis' cross-examination of
Officer Leedberg. When Officer Leedberg stated that he
frequently searches informants prior to a "controlled buy,"
Lewis' counsel asked, "And that's to make sure that the person
that you're dealing with [the informant] is not planting
contraband on the people you're going to arrest, is that right,
sir?"

- 25 -

alleged by the defense and did not constitute prosecutorial

misconduct.

- 26 -

B. The "paid informant" issue
B. The "paid informant" issue

Starks contends that the government improperly

undermined his counsel's credibility when the government

demonstrated at trial that the informant was not a paid informant

after the government had previously represented to Starks that he

was a paid informant. In a pretrial conference, the government

stated that it "believe[d] . . . the Brockton Police do not have

the confidential informant signed up as a paid, working

informant; that on occasion they give him a few bucks here and

there and he provides . . . information to the Brockton Police."

Starks asserts that his counsel relied on this statement in

preparing his trial strategy. Apparently, Starks intended to

demonstrate that the informant had a monetary incentive to

"produce" criminals for the police. Starks claims that the

government undermined his credibility and, indeed, his entire

trial strategy, when it elicited testimony from Brockton Police

officers that these officers had never paid the informant and

that they were not aware that any other law enforcement personnel

had made such payments.

As a preliminary matter, we note that Starks failed to

raise this objection at trial in a specific and timely manner; he

neither objected nor moved for a mistrial or new trial -- rather,

he merely raised some vague concerns in a sidebar conference.

Consequently, we must review for plain error. Fed. R. Crim. P.

52(b); see also United States v. Romero, 1994 WL 456857, *10 (1st

Cir.).

- 27 -

We will find plain error only when (1) there is an

"error," (2) that is "clear" or "obvious" and (3) that affects

"substantial rights." United States v. Olano, 113 S. Ct. 1770,

1776-77 (1993); United States v. Col n-Pag n, 1 F.3d 80, 81 (1st

Cir. 1993). In this case, there is no error, much less plain

error. Starks fails to express any legal theory which supports

his claim that he was denied a fair trial. Consequently, per

standard appellate procedure, we are tempted to deem it waived.

United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert.

denied, 494 U.S. 1082 (1990). As we have previously noted, "[i]t

is not enough to mention an argument in the most skeletal way,

leaving the court to do the counsel's work, create the ossature

for the argument, and put flesh on its bones." Id. Moreover,

and more importantly, Starks' argument is factually infirm.

While Starks contends that his trial strategy was to discredit

the informant by demonstrating that he had a monetary incentive,

he neglected to pursue this theory during his cross-examination

of all the police officers who took the stand. Not only does

this undermine Starks' contention that this was his trial

strategy, it also demonstrates that the government's pretrial

statements might have been factually accurate. The government

stated that Brockton Police occasionally gave the informant "a

few bucks here and there." Thus, by failing to explore this line

of questioning thoroughly, Starks did not demonstrate that the

- 28 -

government's pretrial statement was indeed false.4 In sum, we

find that Starks has asserted no factual or legal proposition

that satisfies the plain error standard.

VII. Admission of the photographs
VII. Admission of the photographs

Lewis and Starks assert that the district court

improperly admitted an "unduly suggestive array of photographs."

Over objection, the court admitted a folder consisting of Lewis'

and Starks' booking photographs stapled alongside photographs of

the guns and cocaine discovered near them. Lewis and Starks

contend, and with some merit, we think, that the array of

photographs was unfairly prejudicial because it suggested an as-

yet unproven connection between them and the contraband. That

is, the arrays depicted the ultimate legal conclusion, that Lewis

and Starks possessed cocaine and firearms, that was the

government's burden to prove.

Evidence is relevant if it has "any tendency to make

the existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence." Fed. R. Evid. 401. Relevant

evidence is generally admissible. Fed. R. Evid. 402. However, a

judge may exclude otherwise relevant evidence if "its probative

value is substantially outweighed by the danger of unfair

prejudice . . . ." Fed. R. Evid. 403. We review a trial court's

4 Moreover, we note that this was merely a statement of belief
by the government. Starks never stated that he intended to rely
on it; further, he did not attempt to confirm it with pretrial
discovery. In short, Starks did very little to shore up what he
claims was his primary trial strategy.

- 29 -

Rule 401/403 balancing test for an abuse of discretion, and only

in "extraordinarily compelling circumstances" will we reverse a

district court's "on-the-spot judgment" concerning the probative

value and unfair effect of the proffered evidence. United States

v. Rodr guez-Estrada, 877 F.2d 153, 155-56 (1st Cir. 1989).

While we are concerned with the government's trial tactic, we

find that the error, if any, was harmless in light of the strong

case presented by the government.5 United States v. Ruiz-

Batista, 956 F.2d 351, 352-53 & n.2 (1st Cir.), cert. denied, 113

S. Ct. 105 (1992) (noting that reversal is inappropriate where

other evidence of guilt renders an evidentiary error harmless).

Here, the photos were relevant. They show the

condition of the evidence when it was recovered. However, we do

not conclude whether the danger of unfair prejudice presented by

the photographic array substantially outweighed its probative

value because the error, if any, in admitting the array was

ultimately harmless. The array may have prematurely connected

Lewis and Starks to the contraband. However, the jury was

informed of how the array was compiled. Thus, it could not have

concluded that Lewis and Starks possessed the contraband simply

because their photographs were stapled alongside photographs of

the contraband. Further, the government eventually presented

5 We think that prosecutors ought to bear in mind that where, as
here, the government has a strong case, such arguably prejudicial
tactics do not help the government but do create the risk that
sufficiently egregious conduct will constitute grounds for
reversal. Conversely, where the case is a close one, error will
not be deemed harmless and the conviction will be reversed.

- 30 -

overwhelming evidence to connect Lewis and Starks to the guns and

cocaine depicted in the array. Lewis and Starks were standing

alongside the vehicles under which the police found the

contraband. Moreover, Officer Smith testified that, moments

before the arrest, he saw both Lewis and Starks make furtive

movements as if they were attempting to hide something under the

vehicles. Consequently, we do not find any reversible error.

VIII. Failure to produce exculpatory evidence
VIII. Failure to produce exculpatory evidence

Lewis and Starks contend that the Brockton Police

Department mishandled their case in so severe a fashion that they

were denied a fair trial. Specifically, they allege (1) that

they were denied access to possibly exculpatory evidence when the

Brockton Police erased audio tapes of the events surrounding

their arrest, (2) that they were denied an opportunity to prove

their frame-up theory when the Brockton Police delayed submitting

the contraband for fingerprinting, and (3) that the Brockton

Police colluded to produce a false and inaccurate police report.

A defendant has an established due process right to

request and receive all material evidence in the government's

possession. Brady v. Maryland, 373 U.S. 83, 87 (1963). We

recently discussed the framework of a defendant's

constitutionally guaranteed access to evidence. United States v.

Femia, 9 F.3d 990, 993 (1st Cir. 1993). This framework reflects

"the difficulty of developing rules to deal with evidence

destroyed through prosecutorial neglect or oversight."

- 31 -

California v. Trombetta, 467 U.S. 479, 486 (1984). "Whenever

potentially exculpatory evidence is permanently lost, courts face

the treacherous task of divining the import of materials whose

contents are unknown and, very often, disputed." Id. A

defendant who seeks to suppress evidence formerly in the

government's possession must show that (1) the government acted

in bad faith when it destroyed the evidence, (2) the evidence

possessed an apparent exculpatory value before it was destroyed,

and (3) the missing evidence is, to some extent, irreplaceable.

Femia, 9 F.3d at 993-94; Trombetta, 467 U.S. at 488-89; Arizona

v. Youngblood, 488 U.S. 51, 58 (1988). As we noted in Femia, the

dispositive factor is often whether the defendant can demonstrate

that the government acted in bad faith. Femia, 9 F.3d at 994.

The Internal Affairs Office of the Brockton Police

records all radio transmissions made from police vehicles. The

tapes of the transmissions between the officers involved with

Lewis' and Starks' arrest were subsequently recorded over before

Lewis and Starks had a chance to review them. With regard to

these surveillance tapes, Officer Leedberg offered testimony

concerning the routine procedures followed by the Brockton

police. Generally, the Brockton Police Department only preserves

audio tapes of radio communications for one or two months before

recording over them unless the tapes pertain to a major crime

such as murder. Lewis and Starks proffered no evidence to the

trial court that would even remotely suggest that the police

acted in bad faith when they reused the audio tapes in accordance

- 32 -

with their established routine.

Lewis and Starks also assert that the Brockton police

made a crucial error when they allegedly delayed submitting the

contraband for fingerprint analysis. Lewis and Starks, however,

fail to allege any governmental conduct that demonstrates that

the alleged delay was due to bad faith rather than a normal

error. Moreover, they do not make a colorable argument that the

alleged delay destroyed evidence with an apparent exculpatory

value. Starks asserts that the alleged delay cost him the

opportunity to prove his frame-up theory by showing that the

confidential informer's fingerprints were on the contraband.

However, as we discussed in part III, there was ample evidence to

refute and none to support the theory that the confidential

informer framed Lewis and Starks.

Finally, Starks claims that the Brockton Police

colluded to produce a false and inaccurate police report. In

support of this, he points to two alleged inaccuracies in the

report. First, the report states that on August 15, 1992,

Officer Leedberg conversed with the informer in person. At

trial, Officer Leedberg testified that this conversation occurred

by telephone. Second, Starks states the police report conflicts

with the trial testimony regarding whether the guns and cocaine

were found under two separate vehicles or whether they were all

found under the brown Buick. Starks, however, fails to

demonstrate that these alleged factual inaccuracies resulted from

bad faith. He merely states that "these errors poisoned the

- 33 -

judicial process" and thus constitute grounds for reversal. We

cannot agree. No police investigation is entirely perfect, and

minor inconsistencies do not support his contention that the

Brockton Police used bad faith and colluded to produce a false

and inaccurate police report.

Thus, we find no reversible error in the government's

alleged mishandling of the evidence.

IX. The government's peremptory challenge
IX. The government's peremptory challenge

Lewis and Starks contend that the government's

peremptory challenge of a black juror was racially motivated and,

consequently, violated their rights under the Equal Protection

Clause of the United States Constitution. Starks also contends

that the court further erred in refusing his request to question

the juror on his ability to render an impartial verdict.

In Batson, the Supreme Court delineated a three-step

process to determine whether the government's peremptory strike

was motivated by an impermissible racial bias. Batson v.

Kentucky, 476 U.S. 79, 96-98 (1986). First, the defendant must

make a prima facie showing of racial discrimination. Id. To

clear this initial hurdle, the defendant must first show that

"the prosecutor has exercised peremptory challenges to remove

from the venire members of the defendant's race." Id. Second,

the defendant is entitled to rely on the
fact . . . that peremptory challenges
constitute a jury practice that permits
"those to discriminate who are of a mind
to discriminate." Avery v. Georgia, 345

U.S. 559, 562 (1953). Finally, the
defendant must show that these facts and
any other relevant circumstances raise an

- 34 -

inference that the prosecutor used that
practice to exclude the veniremen . . .
on account of their race. This
combination of factors in the empaneling
of the petit jury . . . raises the
necessary inference of purposeful
discrimination.

Id. at 96. The court should consider all relevant factors to

determine whether the defendant has made the requisite prima

facie showing. Id. at 96-97.

Once the defendant successfully clears this initial

hurdle, the prosecutor must then articulate a race-neutral

explanation for striking the juror in question, though "the

prosecutor's explanation need not rise to the level justifying

exercise of a challenge for cause." Id. at 97. The trial court

then must decide whether the defendant has established purposeful

discrimination. Id.

In the case at bar, we are dubious that Lewis and

Starks have alleged facts necessary to establish the requisite

prima facie case. Regardless of this, we are certain that the

prosecutor's race-neutral explanation negates any inference of

purposeful discrimination.

As to the first issue, the venire started with three

black jurors. The government and Starks each excused one of the

black jurors with peremptory challenges. The third was selected

for trial despite the fact that the government still had two

peremptory challenges remaining. In light of the fact that

Starks removed one black juror and that the government allowed

the court to empanel the third black juror, we doubt whether

- 35 -

Lewis and Starks have alleged facts sufficient to raise the

necessary prima facie inference of purposeful discrimination.

See Chakouian v. Moran, 975 F.2d 931, 934 (1st Cir. 1992)

(holding that defendant failed to demonstrate prima facie case

absent any evidence as to whether other black members of venire

were called and seated as jurors). Regardless, we are certain

that the prosecutor articulated a satisfactory race-neutral

explanation for the challenge. The prosecution informed the

court that it challenged the juror because he worked as a

security guard at Straughter Security, a firm which the Bureau of

Alcohol, Tobacco and Firearms ("ATF") was actively investigating

for possible firearms offenses. The ATF investigation entailed

an "active federal presence" at the company as well as grand jury

testimony by certain security guards. Under these circumstances,

the government was rightfully concerned that the security guard

may harbor certain hostilities due to the investigation of his

employer and was entitled to question the juror's ability to

render an impartial verdict. Consequently, the use of the

peremptory challenge was permissible. Further, in light of the

government's satisfactory explanation, the district court acted

well within its discretion when it refused Starks' request to

continue questioning the juror.

X. Refusal to stipulate that defendants were felons
X. Refusal to stipulate that defendants were felons

The government charged both Lewis and Starks with being

a felon-in-possession of a firearm in violation of 18 U.S.C.

922(g)(1). To prove this charge, the government must show that

- 36 -

(1) the defendant was previously convicted of an offense

requiring imprisonment exceeding one year and (2) he knowingly

possessed a firearm in or affecting interstate commerce. United

States v. Wight, 968 F.2d 1393, 1397 (1st Cir. 1992). Lewis had

three prior convictions for armed robbery and offered to

stipulate that he was a felon to satisfy the first element of the

statute, presumably to keep the nature of his prior felonies from

the jury. Starks had a prior state court conviction for

possession of cocaine with intent to distribute, and made a

similar offer to stipulate that he was a felon. The district

court did not require the government to accept either Lewis' or

Starks' proposed stipulation but rather allowed the government to

introduce evidence of the nature of Starks' conviction and one of

Lewis' convictions. The government then introduced a certified

copy of Starks' prior conviction for possession of cocaine with

intent to distribute and Lewis' prior conviction for "armed

robbery while masked." Though the government mentioned the

convictions briefly in its opening and closing statements, the

court prevented the government from introducing evidence

concerning the facts surrounding the convictions.

Lewis and Starks contend that, in light of our recent

decisions in Tavares and Melvin, the district court erroneously

refused to accept their offers to stipulate that they were felons

under the statute. United States v. Tavares, 21 F.3d 1 (1st Cir.

1994)(en banc); United States v. Melvin, 27 F.3d 703 (1st Cir.

1994). They further contend that this refusal constitutes

- 37 -

reversible error. We agree with Lewis' and Starks' first

contention but find the error to be harmless in light of the

overwhelming evidence of guilt.

Before Tavares, the government, even in the face of an

offer to stipulate, was allowed to "present evidence on the one

felony necessary to prove the crime charged." United States v.

Collamore, 868 F.2d 24, 28 (1st Cir. 1989). It was under this

rubric that the district court allowed the government to reject

the offer to stipulate. However, we recently revisited this

issue and determined that when a defendant is charged with being

a felon-in-possession of a firearm, evidence of the nature of the

prior conviction is not admissible unless special circumstances

establish that the relevance of the evidence is "sufficiently

compelling to survive the balancing test of Fed. R. Evid. 403."

Tavares, 21 F.3d at 5; Melvin, 27 F.3d at 707.6

In light of the government's concession that this case

does not present the "unusual circumstances" necessary to depart

from the general rule announced in Tavares, we must determine

whether the error was harmless. To do so, we "must assess the

record as a whole to determine the probable impact of the

evidence on the jury." Melvin, 27 F.3d at 708 (quoting United

States v. Spinosa, 982 F.2d 620, 630 (1st Cir. 1992) (citation

omitted)). As we discussed in part VII, the government presented

overwhelming and essentially uncontradicted evidence of Lewis'

6 Because we decided Tavares while the present case was still

pending on direct review, we apply it here. Melvin, 27 F.3d at

706 n.4.

- 38 -

and Starks' guilt. Lewis and Starks were both caught with the

proverbial "smoking gun." The police recovered the guns and

cocaine moments after witnessing Lewis and Starks attempt to

discard the contraband under cars parked alongside them. The

conclusiveness of this evidence renders harmless the district

court's erroneous admission of the nature of the predicate

felony.

- 39 -

XI. The length of the sentences
XI. The length of the sentences

A. Base offense level
A. Base offense level

Lewis and Starks contend that the district court

improperly aggregated the controlled substances that were held by

them individually when the court determined the appropriate base

offense level ("BOL"). This contention is erroneous.

The determinative factor for sentencing under the

guidelines is the quantity of drugs. United States v. Reyes, 3

F.3d 29, 31 (1st Cir. 1993). For sentencing purposes, the

government must prove the quantity by a preponderance of the

evidence. Id. This quantity is the sum of the charged conduct

plus the defendant's "relevant conduct." Id. In the case of

jointly undertaken criminal activity (regardless of whether a

conspiracy was charged), relevant conduct includes "all

reasonably foreseeable acts and omissions of others in

furtherance of the jointly undertaken activity." U.S.S.G.

1B1.3(a)(1)(B). Determining quantity under the guidelines is a

matter entrusted to the sound discretion of the district court.

United States v. Osorio, 929 F.2d 753, 764 (1st Cir. 1991).

Thus, we will only reverse on a finding of clear error. Id.

Lewis and Starks assert that the court committed clear

error when it found that they acted in concert and consequently

aggregated the amount of cocaine that each held individually.

They are wrong. The evidence, especially the Presentence

Investigation Report ("PSR"), supports the district court's

decision that Lewis and Starks were engaged in a joint activity.

- 40 -

Lewis and Starks were together at Pete & Mary's Bar for two

consecutive nights. On the second night, they both brought along

loaded handguns and similar containers of identically wrapped

crack cocaine. When the police approached, Lewis and Starks both

discarded their contraband under parked cars. Moreover, Starks

attempted to create a diversion by waiving his arms, presumably

to give Lewis more time to stash his contraband. These facts

support a finding that Lewis and Starks were engaged in a joint

activity such that the court could correctly attribute to each

defendant the cocaine held by the other under the heading of

relevant conduct.

B. Starks' Criminal History Category
B. Starks' Criminal History Category

Starks also contends that the district court made two

errors when it calculated his criminal history, thus increasing

his exposure under the guidelines. He first asserts that the

court improperly assessed two points for a prior drug conviction

because he served less than the guideline minimum prison term of

sixty days. Next, he argues that the court improperly counted

his "admission to sufficient facts" for a battery on a police

officer. He contends that scoring this charge was erroneous

because no finding of guilt was ever made and the case was

ultimately dismissed.

We employ a dichotomous process to review a district

court's application of the sentencing guidelines. United States

v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992). First, we examine

the scope of a guideline provision de novo. Id. (citations

- 41 -

omitted). Once we have determined whether the relevant guideline

provision applies, we review the factfinding process only for

clear error. Id.

To determine a sentence under the guidelines, the court

must first calculate the defendant's criminal history category.

This system is based on the premise that "repeated criminal

behavior will aggravate the need for punishment with each

recurrence." U.S.S.G. 4, intro. comment.

On a prior drug conviction, Starks was sentenced to

serve five months in a House of Correction. The execution of his

sentence was stayed while he appealed. The court then granted

him credit for 39 days served and released him on parole. Starks

asserts that the district court improperly assessed two criminal

history points for this conviction because he served less than

the sixty day sentence specified in the guidelines. We

disagree. The guidelines instruct the court to add two points

for "each prior sentence of imprisonment of at least sixty days .

. . ." U.S.S.G. 4A1.1(b) (emphasis added). The application

notes clarify any possible ambiguity by stating that "criminal

history points are based on the sentence pronounced, not the

length of time actually served." U.S.S.G. 4A1.2, comment.

(n.2); see also United States v. Priest, 6 F.3d 1201, 1215 (7th

Cir. 1993); United States v. Shinners, 892 F.2d 742, 743-44 (8th

Cir. 1989); United States v. Altman, 901 F.2d 1161, 1166 (2d Cir.

1990). Here, the court had sentenced Starks to five months, well

over the sixty day minimum in the guidelines. Thus, we find the

- 42 -

district court's assessment oftwo criminal history points proper.

We will now turn to the second issue. Starks contends

that the district court should not have counted his "admission to

sufficient facts" because it was not a diversionary disposition

that involved a judicial finding of guilt or admission of guilt

in open court.7 We decline to rule on this issue because our

decision cannot effect the length of Starks' sentence.

The district court assessed Starks a total of six

criminal history points, placing him in category three. See

U.S.S.G. ch. 5 pt. A. To achieve a sentence reduction, Starks

needs to shed three points from his criminal history score; this

would drop him down to category 2. Id. The district court only

assessed one point for this "admission to sufficient facts."

Thus, even if the assessment were improper, Starks would remain

in category three, and his sentence would remain unchanged.

XII. Lewis' challenges to his sentence
XII. Lewis' challenges to his sentence

A. Lewis' Equal Protection challenge
A. Lewis' Equal Protection challenge

Lewis contends that the Federal Sentencing Guidelines'

distinction between the "crack" and powder forms of cocaine

violates the Equal Protection Clause of the United States

7 Diversionary dispositions resulting from a finding or
admission of guilt are counted as sentences under the guidelines
even if a conviction is not formally entered. U.S.S.G.
4A1.2(f). "Section 4A1.2(f) requires counting prior adult
diversionary dispositions if they involved a judicial
determination of guilt or an admission of guilt in open court.
This reflects a policy that defendants who receive the benefit of
a rehabilitative sentence and continue to commit crimes should
not be treated with further leniency." U.S.S.G. 4A1.2 comment.
(n.9).

- 43 -

Constitution. Specifically, he asserts that the distinction,

though facially neutral, triggers heightened scrutiny under the

Feeney test because it has both a racially discriminatory impact

and intent. Personnel Administrator of Mass. v. Feeney, 442 U.S.

256, 272 (1979). Alternatively, he contends that the distinction

fails rational basis scrutiny.

We recently addressed this issue and, like every other

circuit that has done so, found the distinction in the guidelines

between crack cocaine and powder cocaine to be constitutional.

See United States v. Singleterry, 29 F.3d 733, 739 (1st Cir.

1994). In Singleterry, we found the distinction did not merit

strict scrutiny because there was insufficient evidence that the

distinction "was motivated by any racial animus or discriminatory

intent on the part of either Congress or the Sentencing

Commission." Id. at 741. (quoting United States v. Frazier, 981

F.2d 92, 95 (3d Cir.), cert. denied, 113 S. Ct. 1661 (1993)).

The distinction also survived rational basis analysis because

"Congress had before it sufficient . . . information to make

distinctions that would justify . . . more severe sentences for

trafficking in or using cocaine base or crack than cocaine

itself." Singleterry, 29 F.3d at 740 (quoting Frazier, 981 F.2d

at 95). Accordingly, this challenge fails.

B. Lewis' selective prosecution claim
B. Lewis' selective prosecution claim

Lewis asserts that the government adopted his case to

federal court solely because of his racial status. In essence,

he claims that he was selectively prosecuted because he is black.

- 44 -

A selective prosecution claim fails unless the

defendant establishes that his prosecution results from

"intentional and purposeful discrimination." United States v.

Bassford, 812 F.2d 16, 19 (1st Cir.), cert. denied, 481 U.S. 1022

(1987). This requires that the defendant demonstrate, "at least

prima facie, (1) that, while others similarly situated have not

generally been proceeded against because of conduct of the type

forming the basis of the charge against him, he has been singled

out for prosecution, and (2) that the government's discriminatory

selection of him for prosecution has been invidious or based in

bad faith, i.e., based upon such impermissible considerations as

race . . . ." Id. (quoting United States v. Berr os, 501 F.2d

1207, 1211 (2d Cir. 1974)).

Lewis has failed to proffer any factual allegations

that would substantiate his selective prosecution claim. Rather,

Lewis merely points out that the government's adoption of his

case to federal court greatly increased his potential prison

sentence. Lewis has not demonstrated that others, similarly

situated, were not proceeded against or that he was singled out

for impermissible reasons. Lewis' crimes subjected him to

prosecution in both federal and state court. The federal

government chose to prosecute him; we cannot conclude that he was

selectively prosecuted solely because he was only charged in

federal court.

C. Lewis' request for downward departure
C. Lewis' request for downward departure

- 45 -

Lewis argues that the allegedly unusual circumstances

of his case entitle him to a downward departure from the range

specified in the guidelines. We lack jurisdiction to review a

district court's refusal to depart downward from the sentencing

range so long as the district court was aware of its authority to

order such a departure. United States v. Lombardi, 5 F.3d 568,

571-72 (1st Cir. 1993) (citing United States v. Lauzon, 938 F.2d

326, 330 (1st Cir.), cert. denied, 112 S. Ct. 450 (1991)). This

area of the law is well settled. See id; United States v.

Castiello, 915 F.2d 1, 6 (1st Cir.), cert. denied, 498 U.S. 1068

(1991); United States v. Tucker, 892 F.2d 8, 9 & n.2 (1st Cir.

1989). However, it is unclear from the record whether the

district court concluded that it lacked authority to order a

downward departure or simply refused to exercise its discretion.

Consequently, we assume that the district court believed it

lacked the power to depart from the guidelines and review whether

this assessment was accurate.

In United States v. Rivera, we reviewed the factors

that often warrant departure, the factors that are ordinarily

irrelevant to departure decisions, and those that are forbidden

in determining whether to depart. 994 F.2d 942, 948-49 (1st Cir.

1993). Lewis contends that several factors entitle him to a

downward departure. First, Lewis asserts that departure was

warranted because the distinction between the crack and powder

forms of cocaine in the sentencing guidelines has a racially

disparate impact. He also claims that departure is warranted

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because of the "discriminatory adoption of his case to federal

court," alleged evidentiary errors and prosecutorial misconduct

in the course of the trial, and the fact that he is an

uneducated, young black man. We have already discussed the lack

of foundation for Lewis' discriminatory prosecution claim, so

this was not proper grounds for departure. The trial was not

sullied by any prejudicial evidentiary errors or prosecutorial

misconduct -- thus, these allegations do not justify a downward

departure. As to the other factors asserted by Lewis, they fall

into either the discouraged or forbidden categories reviewed by

the Rivera opinion. Consequently, the district court correctly

refused to order a downward departure when it calculated Lewis'

sentence.

D. The "crime spree" contention
D. The "crime spree" contention

Lewis asserts that the district court erroneously

determined that he was an Armed Career Criminal under 18 U.S.C.

924(e)(1), the Armed Career Criminal Act (the "ACCA"). The

ACCA provides enhanced punishment for violating 18 U.S.C.

922(g) -- being a felon in possession of a firearm -- if the

defendant has three separate prior convictions for violent

felonies or serious drug offenses. 18 U.S.C. 924(e)(1). Such

defendants are considered armed career criminals. U.S.S.G.

4B1.4. The district court sentenced Lewis under the ACCA after

it determined that his three prior armed robbery convictions

satisfied its requirements. Lewis contends that his three prior

convictions were not separate occurrences but, rather, were all

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part of a single, systematic course of conduct, or "crime spree,"

that should only count as one offense under the ACCA. Once

again, he is wrong.

Lewis first robbed a gas station in March, then a cafe

in July, and last a motel in August. Gas, food, and lodging --

the connection would be apparent if the defendant were on a trip.

However, the facts that Lewis robbed these places over a five-

month time frame and used different weapons in each robbery amply

support the district court's determination that the crimes did

not constitute a single crime spree. See United States v.

Harris, 964 F.2d 1234, 1237 (1st Cir. 1992) (two assault and

battery convictions involving same victim but occurring two

months apart); United States v. Gillies, 851 F.2d 492, 497 (1st

Cir.) (armed robbery convictions for offenses at two different

drug stores on consecutive days, for which defendant received

concurrent sentences), cert. denied, 112 S. Ct. 1694 (1992).

XIII. Redaction of references to cocaine base
XIII. Redaction of references to cocaine base

Lewis argues that the district court erroneously

refused his request to strike the words "cocaine base" from the

indictment. 21 U.S.C. 841 makes it a federal crime to possess

with an intent to distribute any of the "controlled substances"

listed in 21 U.S.C. 812. Though coca leaves and their

derivatives are listed as controlled substances, the term cocaine

base only appears in the penalty provision of 21 U.S.C. 841.

Thus, Lewis contends, at trial the term is irrelevant and highly

prejudicial surplusage which should have been stricken from the

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indictment and, consequently, the district court's failure to do

so precluded a fair trial. We cannot agree.

Under Federal Rule of Criminal Procedure 7(d), the

defendant may move to strike surplusage from the indictment.

This serves to protect the defendant "against immaterial or

irrelevant allegations in an indictment, . . . which may . . . be

prejudicial." Fed. R. Crim. P. 7(d), advisory committee note;

United States v. Fahey, 769 F.2d 829, 841-42 (1st Cir. 1985).

This decision rests in the sound discretion of the district

court. Id. at 842 (citations omitted). Here, the term cocaine

base was neither irrelevant nor unfairly prejudicial. The

indictment served as notice to Lewis of the nature of the charges

against him. Indeed, identifying the substance as cocaine base

was an essential element of the government's case against Lewis.

Further, though the term crack cocaine probably carries heavy

social baggage, Lewis' brief lacks any explanation of how the

term unfairly prejudiced him. We find this claim altogether

meritless.

We have considered the other claims of Lewis and Starks

and find them equally meritless.

Affirmed.

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