United States v. Newton

United States Court of Appeals
For the First Circuit

No. 02-1643

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL NEWTON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Boudin, Chief Judge,

Selya and Lipez, Circuit Judges.

Michele J. Woods, with whom Joshua D. Franklin was on brief,
for appellant.
Mark E. Howard, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on brief, for
appellee.

April 29, 2003
 LIPEZ, Circuit Judge. This appeal involves, in part, the

unusual claim that the defendant Michael Newton's retrial was

barred by the Double Jeopardy Clause, U.S. Const. amend. V, because

the trial judge intentionally provoked his request for a mistrial.

I. Background

Newton was indicted with Wyman Hogan, Ernest Membrino and

Edward Hall on October 12, 2000, by a federal grand jury sitting in

the District of New Hampshire, and charged with conspiracy to

possess with intent to distribute and to distribute fifty grams or

more of cocaine and cocaine base in violation of 21 U.S.C. §§

841(a)(1), 841(b)(1)(A)(iii), and 846. The facts of the conspiracy

pertain to an extensive operation of buying powder cocaine,

manufacturing crack cocaine, and selling both powder and crack

cocaine from a number of residences in and around the Keene, New

Hampshire area. Newton was primarily charged in connection with

the sale of cocaine in Keene, but outside of the residences

allegedly controlled by the conspiracy's crack cocaine distribution

operation.

On January 2, 2001, prior to jury selection, co-defendant

Edward Hall notified the district court that he would present a

defense that would portray the co-defendants in an unfavorable

light, and moved to sever his case from the other defendants. The

district court denied this motion. The other three co-defendants

then moved for severance. The district court likewise denied their

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motion and proceeded to trial. After the jury was sworn, defendant

Hall's counsel delivered an opening statement that corroborated

much of the government's version of events. The other co-

defendants renewed their request for severance and moved for a

mistrial, which the district court granted. The retrial commenced

on January 16, 2001, and resulted in Newton's conviction for

conspiracy to distribute more than fifty grams of crack cocaine.

On May 16, 2001, Newton was sentenced to two hundred and thirty-

five months' imprisonment, to be followed by five years of

supervised release.1

Newton appeals both the conviction and the sentence,

arguing that his retrial after an initial mistrial was prohibited

by the Double Jeopardy Clause, U.S. Const. amend. V, that the

prosecutor violated Newton's Fifth Amendment right to remain silent

by impermissibly commenting during closing argument on Newton's

failure to testify, and that the district court committed an error

1
Hogan was found guilty of conspiracy to possess with intent
to distribute more than fifty grams of a substance containing
amounts of cocaine and cocaine base, and possession of cocaine
base. He was sentenced to two hundred and sixty-two months'
imprisonment, to be followed by five years of supervised release.
Membrino was found guilty of conspiracy to possess with intent to
distribute more than fifty grams of a substance containing amounts
of cocaine and cocaine base and was sentenced to one hundred and
fifty-one months' imprisonment, to be followed by five years of
supervised release. Hall was tried separately and convicted of
managing a residence for the purpose of manufacturing, storing,
distributing and using cocaine and cocaine base. He was sentenced
to twenty-four months of imprisonment and three years of supervised
release.

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of law during sentencing by failing to exercise independent

judgment on evidence presented pertinent to sentencing. For the

reasons stated below, we affirm Newton's conviction and decline to

set aside his sentence.

II. Double Jeopardy

The Double Jeopardy Clause of the Fifth Amendment

protects a defendant in a criminal proceeding against repeated

prosecutions for the same offense. United States v. Dinitz, 424

U.S. 600, 606 (1976). However, the Double Jeopardy Clause is not

an absolute bar to successive trials. Justices of Boston Municipal

Court v. Lydon, 466 U.S. 294, 308 (1984). The protection embodied

in the Double Jeopardy Clause is a personal defense that may be

waived or foreclosed by a defendant's voluntary actions, including

a request for, or effectual consent to, a mistrial. United States

v. DiPietro, 936 F.2d 6, 9 (1st Cir. 1991). Thus, in this case of

retrial following the declaration of a mistrial, the key question

for double jeopardy purposes is whether the mistrial was declared

with the defendant's consent.

If a mistrial is declared with the defendant's
consent, she is deemed to have waived any
double jeopardy claim she might otherwise
have. If, on the other hand, the defendant
wishes to proceed to a verdict by the jury
empaneled to try her, and the court declares a
mistrial over her objection, the Double
Jeopardy Clause will bar the defendant's
retrial unless manifest necessity required the
court to so act.

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United States v. Aguilar-Aranceta, 957 F.2d 18, 22 (1st Cir. 1992)

(citing Dinitz, 424 U.S. at 608). The only circumstance in which

the defendant's consent to a mistrial does not operate as a waiver

of her right to claim double jeopardy is where the prosecutor or

the judge intentionally provokes the defendant to request the

mistrial: "the circumstances under which [] a defendant may invoke

the bar of double jeopardy in a second effort to try him are

limited to those cases in which the conduct giving rise to the

successful motion for a mistrial was intended to provoke the

defendant into moving for a mistrial." Oregon v. Kennedy, 456 U.S.

667, 678 (1982) (emphasis added). Here, Newton insists that the

trial judge intentionally provoked his mistrial request.

A. Sequence of Events

To evaluate Newton's claim we must examine closely the

sequence of events that prompted the judge to declare a mistrial,

and what transpired between the judge and Newton's trial counsel.

Defendant Hall's counsel first raised the issue of severance

immediately prior to jury selection. Based on the vague assertion

of a defense strategy that would be antagonistic to the other

defendants, Hall's counsel requested that Hall be severed from the

other three defendants. After requesting but failing to obtain

details elucidating the proposed defense, the trial judge denied

the motion. The three other defendants then made a joint motion to

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sever based on Hall's request. The judge similarly denied this

motion and proceeded to empanel the jury and begin the trial.

During his opening statement, Hall's counsel

characterized Hall as "a victim . . . not a criminal" and claimed

that Hall "was used" by his codefendants. There were no immediate

objections by the other defendants to the defense outlined in

Hall's opening statement. The following morning, however, counsel

for one of the other defendants noted Hall's antagonistic defense

and raised the possibility of renewing the motion to sever Hall

from the trial. Newton's counsel joined in the renewed motion.

The judge reserved ruling on the motion until the afternoon.

That afternoon, during an extensive colloquy on the

motion to sever, the judge explained to defense counsel his

position on the motion:

I will not grant any motion to sever unless I
do an individual inquiry with each defendant
and ascertain from each defendant that they
understand what this means; that their case is
being severed that a mistrial is being granted
that they are waiving any double-jeopardy
claim that they may have; that they fully
understand that if they want to go ahead with
trial with the current jury, they can.

. . .

[I]f I were to grant a mistrial based on the
defendants' request for a mistrial because of
the failure to grant severance and the trial
evidence jointly being prejudicial to the
defendants in their eyes, I could grant that
request and not make a finding of manifest
necessity, and notwithstanding the absence of
a finding of manifest necessity, the

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 defendants could be reprosecuted,
notwithstanding the double-jeopardy clause.

In other words, the judge was telling the defendants that if they

requested a mistrial and he granted this request despite the

absence of manifest necessity for declaring such a mistrial, the

Double Jeopardy Clause would not bar their reprosecution. Counsel

for one of the other defendants immediately interjected: "we don't

agree with that . . . if the case law supports the position that

this trial has gone so far that jeopardy has attached . . . and

that they're unable to be retried again and that it should be with

prejudice, of course, we're not waiving that." Realizing that the

defendants did not seem to understand the relationship between

their request for a mistrial and their waiver of the double

jeopardy bar, the court offered further explanation:

Supreme Court precedent makes very clear that
where a defendant requests a mistrial, he
waives any right he has to assert that a
reprosecution gives rise to a double-jeopardy
violation . . . I can grant a mistrial over a
defendant's objection without presenting a
double-jeopardy question, only where there is
a manifest necessity . . . I don't think I
could make a manifest necessity finding here
unless I could conclude that there was an
overwhelming probability that the jury could
disregard my instructions to disregard any
comments in [Hall's] opening statement. . . I
couldn't make that finding. I couldn't find
manifest necessity.

Based on this determination that there was no manifest

necessity for a mistrial, the judge thoroughly explained to the

defendants their options regarding severance and mistrial:

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 If [Hall] wants a mistrial and severance and
all three [other] defendants want a mistrial
and severance I could do either of two things.
I could either grant the severance motion and
mistrial as to [Hall] and proceed to trial
with the three defendants, giving a limiting
instruction to the jury to disregard [Hall's]
opening statement, or I could grant a
severance and mistrial as to the three
defendants, continue on with [Hall] and give
an instruction to the jury to disregard any
evidence that we determine is admissible
against the three but not against [Hall].

I at this time am not persuaded by any
argument that the defendants may have that
mistrial is absolutely required because
there's manifest necessity for a mistrial, but
nevertheless, if they want a mistrial and
there's a potential for reprosecution and
double-jeopardy issues are plainly addressed,
I'm willing to consider granting everyone
mistrials and just starting again with
separate trials for the two groups.

The judge then addressed each attorney individually to ascertain

how the defendants wished to proceed.

The Court: Let me hear from the defendants.
Let me go through one at a time.
[Counsel for Membrino], what does
your client wish to do?

Counsel 1: Mr. Membrino has informed me that
he wishes to sever the trial and
he will waive his right to a --

The Court: So he wants to sever and ask for a
mistrial.

Counsel 1: Sever and a mistrial, yes, your
Honor.

The Court: All right. What does your client
want to do, [Counsel for Hogan]?

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 Counsel 2: Judge, I've conferred with him.
Based upon the readings from the
Court as to what the status of the
law is on that, we're willing to -
- what we want to see done is the
case be severed, mistrial and
severance. He will waive his --
he will not assert his rights to
double jeopardy.

The Court: All right. And [Counsel for
Newton], what do you want to do?

Counsel 3: We'd like to sever Mr. Hall and
proceed.

The Court: And proceed?

Counsel 3: Or to have a mistrial with
prejudice. He does not want to
waive his right to any claims.

Thus, at this point, two of the remaining defendants requested

severance of Hall and a mistrial, whereas Newton requested

severance of Hall and continuation of the trial before the

empaneled jury. The judge understood Newton's alternate request

for "mistrial with prejudice" to mean that if the judge granted a

mistrial and forced Newton to go to trial later with a new jury, it

would be over Newton's objection and that therefore, since the

judge had already determined that there was no manifest necessity

for a mistrial, double jeopardy might bar Newton's retrial.

With only Newton wishing to proceed with the empaneled

jury, the judge made clear that he accepted the need for two trials

-- one for Hall and another for the other three defendants -- but

that he was "not going to . . . go through two separate trials for

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that group of three." The three remaining defendants would be

tried together, either now with the empaneled jury or later with a

new jury. He would not permit three trials: one for Newton before

the empaneled jury, a separate trial for Hall before another jury,

and a third trial for the other two defendants before yet another

jury. Because of this requirement that the three remaining

defendants be tried together, and because he would not grant Newton

a mistrial over his objection, the judge confronted Newton with a

choice: he could persist in his desire to be tried before the

empaneled jury and thereby override the requests of the other two

defendants for a mistrial and a trial before a different jury; or

he could join them in their requests for a mistrial and hence waive

any claim that double jeopardy bars retrial. After a brief

conference with the other defense attorneys, Newton's attorney

indicated that Newton would "waive his double jeopardy rights and

ask for a mistrial."

Before accepting this choice, the district court was

commendably careful to ensure that the defendant understood the

consequences of his decision to request a mistrial. In an extended

colloquy, the judge ascertained that Newton understood that he has

a constitutional right not to be tried twice on the same charge and

that by choosing to move for a mistrial, Newton would be giving up

this right:

The Court: . . . But if you don't want a
trial now, you have to understand

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 that you will be retried again and
you will give up your right to
claim double jeopardy -- that
double jeopardy prevents your
retrial. Do you understand that?

Newton: Yes, I do.

The Court: Are you willing to give up that
right?

Newton: Yes.

After this clarification of the consequences of requesting a

mistrial, there was no further talk by Newton of a mistrial with

prejudice.

B. Legal Analysis

On appeal, accepting that he "reluctantly agreed to waive

his double jeopardy rights," Newton now argues that the trial judge

"induced" him to do so by exerting pressure on him to request a

mistrial to avoid the consequences of the judge's error in the

denial of the pre-trial motion to sever "despite numerous warnings

from counsel for Mr. Hall regarding Mr. Hall's anticipated defense

strategy." He elaborates on this renewed demand for a "mistrial

with prejudice" as follows:

In the wake of that error and consequent
prejudice introduced in the opening statement
of Mr. Hall's counsel, the trial court should
have known that any conviction arising out of
the first trial likely would be reversed. As
such, the trial court presented Mr. Newton
with an ultimatum -- continue with an
irreparably prejudiced trial, at which Mr.
Newton had already been implicated by a co-
defendant, or consent to a mistrial. Mr.
Newton was essentially forced to forego his

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 right not to be tried more than once in order
to minimize the significance of the trial
court's otherwise obvious error.

Newton sees in this scenario a judge who "intended to provoke the

defendant into moving for a mistrial," and thus argues that his

case falls within the "narrow exception" carved out by Oregon v.

Kennedy to the rule that "where circumstances develop not

attributable to prosecutorial or judicial overreaching, a motion by

the defendant for mistrial is ordinarily assumed to remove any

barrier to reprosecution, even if the defendant's motion is

necessitated by prosecutorial or judicial error." Dinitz, 424 U.S.

at 607.

Newton's "intentional provocation" scenario is a creative

rewriting of what transpired at trial. The trial judge confronted

Newton with a choice, not an ultimatum: he could be tried before

the empaneled jury with the other two defendants, or he could join

them in requesting a mistrial, waive his double jeopardy rights,

and be tried with them before a new jury at a later date. However,

the mere fact that Newton was offered a choice of two imperfect

options does not imply compulsion. "The criminal process, like the

rest of the legal system, is replete with situations requiring the

making of difficult judgments as to which course to follow.

Although a defendant may have a right, even of constitutional

dimensions, to follow whichever course he chooses, the Constitution

does not by that token always forbid requiring him to choose."

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McKune v. Lile, 536 U.S. 24, 41 (2002) (quoting McGautha v.

California, 402 U.S. 183, 213 (1971)) (internal quotation marks

omitted).

If there was any pressure on Newton as he considered the

choice posed by the court, it came from the co-defendants who

preferred a mistrial. However, the opportunity for Newton to

proceed with the empaneled jury remained, and there is no

indication that, of the two options available to Newton, the judge

preferred a mistrial for which he saw no manifest necessity.

Indeed, when Newton first indicated that he wanted to proceed with

a limiting instruction before the empaneled jury, the judge

immediately determined that

the thing to do is to consider a potential
severance and mistrial as to [Hall] and try
the other three together. And they're asking
me for a mistrial, and I would deny it on the
grounds that there isn't manifest necessity,
and I will instruct the jury to disregard.

The essence of the double jeopardy protection is the right to be

tried by the jury initially empaneled unless manifest necessity

requires otherwise. United States v. Jorn, 400 U.S. 470, 484

(1971) ("[W]here the judge, acting without the defendant's consent,

aborts the proceeding, the defendant has been deprived of his

'valued right to have his trial completed by a particular

tribunal'") (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)). To

this end, the judge took note of the principle articulated in

Scott, that "the important consideration for purposes of the Double

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Jeopardy Clause is that the defendant retain primary control over

the course to be followed in the event of [] error." United States

v. Scott, 437 U.S. 82, 93-94 (1978). Hence, the judge made clear

his willingness to issue a limiting instruction and proceed with

the jury already empaneled, thereby preserving Newton's right to be

tried by the original jury and belying Newton's claim that he was

provoked into requesting a mistrial. Although he specifically

found that there was no manifest necessity for judicial declaration

of a mistrial, the judge told the defendants that he would grant

their requests for a mistrial so long as they understood that they

were waiving any double jeopardy claim. By giving the defendants

this mistrial option, the judge gave the defendants more latitude

than was strictly necessary in determining the course of their

trial.

When Newton's attorney indicated Newton's preference for

a new trial, the judge specifically asked her whether she felt that

"any improper pressure ha[d] been brought to bear." She replied

that she did not. Nevertheless, the judge agreed to grant a

mistrial only after adequately informing Newton of the

ramifications of requesting a mistrial and determining that "all of

the defendants have knowingly, voluntarily and intelligently waived

their right to claim double jeopardy as a bar to a second

prosecution." Newton cannot undo the trial judge's scrupulous

attention to the double jeopardy issue with his revisionist account

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of the trial. By electing to request a mistrial, Newton waived any

double jeopardy claim. His challenge to his retrial and subsequent

conviction on this ground must fail.

III. Closing Arguments of the Prosecutor

Newton claims that he deserves a new trial because of

prosecutorial misconduct arising from statements made to the jury

during closing arguments. Since Newton did not make a

contemporaneous objection to these statements, we review for plain

error the question of whether the prosecutor impermissibly

commented on Newton's failure to testify. United States v.

Roberts, 119 F.3d 1006, 1013-14 (1st Cir. 1997). Under plain error

review, "the appellant must show (1) the occurrence of an error;

(2) that the error is obvious or clear under current law; and (3)

that the error substantially and adversely affects the rights of

the appellant." Id. at 1014. Remedial discretion in the face of

plain error should be exercised "if the error seriously affects the

fairness, integrity or public reputation of judicial proceedings."

United States v. Olano, 507 U.S. 725, 736 (1993) (citations

omitted). Because the comments of the prosecutor were not

improper, we find no error at all in the trial judge's failure to

address these comments sua sponte.

Newton points to two comments made by the prosecutor

during his rebuttal to the defendants' closing arguments. These

comments must be evaluated in the context of Newton's defense as

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advanced in his closing argument. Newton did not present witnesses

or his own testimony to deny his use or possession of drugs.2

Instead, his defense focused on the charge of conspiracy,

highlighted the lack of evidence of an agreement between the

alleged co-conspirators, and questioned the motives of the co-

operating witnesses. Specifically, in her closing, Newton's

counsel said to the jury:

The U.S. Attorney's office has bought
testimony from liars, from thieves, from
addicts, from dealers, from desperate,
desperate people. From people who but for
their ability to come in here and say what the
U.S. Attorney wants, would most likely spend a
significant amount of time in jail.

In his rebuttal to this closing argument, the prosecutor asked: "Is

there any testimony in this case that points otherwise, that really

points to other people who may have been the leaders, organizers of

this conspiracy besides these three. I would suggest to you that

there was none."

In her closing argument, Newton's attorney also asserted:

"Mike Newton was a working man. He worked and we know that because

you'll see his tax records, tax returns in evidence."3 In response

2
Newton was the only defendant who called a witness -- Glenn
Marchand, an ex-police officer who had an interaction with one of
the prosecution witnesses. Although it is not entirely clear, the
apparent purpose in calling Marchand was to challenge the
credibility of the prosecution witness.
3
Although Newton's 1998 tax returns were listed on the
Government's Exhibit List, we find no indication that they were
introduced at trial. Neither party makes an issue of this possible

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to this argument, the prosecutor stated at the close of his

rebuttal:

[Defense Counsel] says, well, my client was
working and -- because that's what the tax
records show. If you look at those tax
records, you will see I believe on the 1999
tax record, it says auto mechanic. Ask
yourself was there any testimony in this case
indicating that he was involved in repairing
cars or anything of that like. I just want to
leave you with that thought.

Newton argues that this statement and the prior one by the

prosecutor constituted prohibited comment on his exercise of the

right to remain silent.

It is well-established that "the Fifth Amendment . . .

forbids either comment by the prosecution on the accused's silence

or instructions by the court that such silence is evidence of

guilt." Griffin v. California, 380 U.S. 609, 615 (1965). A

prosecutor's comment does not need to be direct; rather, a

prosecutor may run afoul of the rule in Griffin by making such

comments inferentially. See, e.g., Glantz v. United States, 810

F.2d 316, 322. Nevertheless, as we have pointed out repeatedly,

the standard is:

Whether, in the circumstances of the
particular case, the language used was
manifestly intended or was of such character
that the jury would naturally and necessarily
take it to be a comment on the failure of the
accused to testify.

oversight.

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Id. (internal quotations omitted); accord United States v. Taylor,

54 F.3d 967, 979 (1st Cir. 1995). Moreover, "when a prosecutor's

comments, fairly viewed, are susceptible to two plausible meanings,

one of which is unexceptionable and one of which is forbidden,

context frequently determines meaning." Taylor, 54 F.3d at 979.

In addition, "a court should not lightly infer that a prosecutor

intends an ambiguous remark to have its most damaging meaning or

that a jury, sitting through a lengthy exhortation, will draw that

meaning from the plethora of less damaging interpretations."

Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974).

With these rules as our guide, we conclude readily that

the prosecutor's comments did not run afoul of the Fifth Amendment.

To support his claim, advanced in closing argument, that the tax

records established that he was a working man with a source of

income – namely, an auto mechanic - Newton "would not have had to

rely on his own testimony." United States v. Bey, 188 F.3d 1, 9

(1st Cir. 1999). Knowledge of his work would easily have been

within the competence of other witnesses who could have testified

at the trial. Hence, this is not a situation "when contradiction

[of the government's case] would have required the defendant to

take the stand," United States v. Flannery, 451 F.2d 880, 881 (1st

Cir. 1971), and hence the prosecutor's question in rebuttal ("Ask

yourself was there any testimony in this case indicating that he

was involved in repairing cars or anything of that like.") did not

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constitute inappropriate comment on the defendant's failure to

testify. See Bey, 188 F.3d at 9; Flannery, 451 F.2d at 882.

When the prosecutor asked in rebuttal if there was any

testimony in the case that "really points to other people who may

have been the leaders, organizers of this conspiracy besides these

three," he was responding to the theory of the defense, also

advanced in closing argument, that the prosecution witnesses who

testified about the role of the defendants in the drug conspiracy

should not be believed because they were "liars . . . thieves . .

. addicts . . . desperate, desperate people." Viewed in context,

the prosecutor's question is a "comment on the plausibility of the

defense theory . . . [T]he 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. Hence

the comment at issue did not constitute improper comment on

Newton's exercise of his Fifth Amendment rights.

IV. Sentencing

Newton was convicted by the jury of conspiracy to

distribute more than fifty grams of crack cocaine. In response to

a special question on the verdict form, the jury specifically found

that "Michael Newton reasonably foresaw while he was a member of

the conspiracy that the conspirators possessed with intent to

distribute and/or intended to possess with intent to distribute

fifty grams or more of crack cocaine as part of the conspiracy."

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Based on this finding, the prosecution argued at sentencing that

the weight of "all buys occurring during the course of the

conspiracy . . ." should be attributable to him for sentencing

purposes.

The sentencing judge found "by a preponderance of the

evidence" that one hundred and fifty grams of crack was

attributable to Newton based on the fact that he was a member of

the conspiracy:

The conspiracy was to distribute in excess of
one hundred and fifty grams of crack. While
Mr. Newton was a member of the conspiracy, he
could reasonably foresee that in fact that was
the objective of the conspiracy during the
time that he was a member of it, and therefore
it is my judgement that that crack should be
attributed to him for purposes of sentencing."

Based on this finding, the judge gave Newton "the lightest sentence

for a level thirty six, criminal history category three defendant

that I can give you, which is two hundred and thirty-five months."

He added that, even if he had found that only fifty to one hundred

and fifty grams of crack cocaine had been attributable to Newton,

he "still would have given him a two hundred and thirty-five-month

sentence because two hundred and thirty-five months would have been

within the applicable range there."

Newton argues that his sentence should be vacated because

the district court erred as a matter of law by failing to "exercise

independent judgment" in its consideration of evidence pertinent to

sentencing. The sentencing court's duty "independently to consider

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proffered information that is relevant to matters of consequence in

the sentencing determination," United States v. Tavano, 12 F.3d

301, 307 (1st Cir. 1993), derives from the Due Process Clause,

which guarantees every defendant a "right to be sentenced upon

information which is not false or materially incorrect." Id. at

305. Specifically, Newton argues that the district court

improperly disregarded the testimony on the extent of Newton's

involvement in and knowledge of the conspiracy, and failed to

consider Newton's arguments on the quantity of drugs attributable

to him for sentencing purposes.

Section 6A1.3 of the United States Sentencing Guidelines

requires that "when any factor important to the sentencing

determination is reasonably in dispute, the parties shall be given

an adequate opportunity to present information to the court

regarding that factor." U.S. Sentencing Guidelines Manual §

6A1.3(a) (2001). While this provision encompasses a duty to

consider the information presented, Tavano, 12 F.3d at 306, it does

not imply a "duty of blind acceptance." Id. at 307. After

examining the relevant evidence, the sentencing court has broad

discretion to "pick and choose" and ultimately credit trial

testimony if it carries persuasive force in a particular case. Id.

Here, the district judge afforded Newton ample

opportunity to submit arguments pertinent to sentencing and gave

careful and thorough consideration to the arguments presented.

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When it became clear during the initial sentencing hearing that

there was a dispute as to the quantity of drugs that could be

attributed to Newton for sentencing purposes, the court

specifically deferred making a judgment on the weight of the drugs

until it received supplemental memoranda from both the parties

supporting their respective arguments.

Newton argues that the court ran afoul of its "duty to

consider" by summarily disregarding both the memorandum Newton

submitted on the drug quantity4 and Hogan's testimony at the

sentencing hearing regarding the extent of Newton's involvement in

the conspiracy. However, unlike Tavano, where the district court

"formulated a per se rule declaring trial testimony determinative

of drug quantity, to the exclusion of all other evidence bearing up

on the same set of transactions," Tavano, 12 F.3d at 304-05, the

district court here carefully read Newton's memoranda and

considered the evidence before making an independent determination

that his arguments were without merit. The court not only allowed

Hogan's testimony but it also questioned Hogan on the

4
Newton initially submitted two memoranda but subsequently
filed a motion to withdraw one. The court cautioned Newton that
"the memo that you are left with takes a position that is frivolous
based on the facts of this case and I will never accept it."
Despite Newton's insistence that the memorandum the court deemed
more beneficial to Newton be withdrawn, the court stated: "I've
read [the withdrawn] memo, and if I think there's anything in it
that will benefit Mr. Newton, I will give him the benefit of those
arguments." This statement further demonstrates the court's
willingness to consider the totality of the evidence presented.

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inconsistencies between the testimony offered and the confession

that he made during his own sentencing. Based on these

discrepancies, the court found Hogan to be an unreliable witness

and did not credit his testimony. These are precisely the

determinations of fact that the sentencing court has discretion to

make. Because it adequately considered the proffered evidence

relevant to sentencing, the court did not offend the dictates of

due process set forth in Tavano. Therefore, it did not err as a

matter of law.

We review for clear error the court's factual

determination on the quantity of drugs attributable to Newton for

sentencing purposes. The court found by "a preponderance of the

evidence" that, due to his membership in the conspiracy and the

forseeability of the objectives of the conspiracy, 150 grams of

crack were attributable to Newton. Contrary to Newton's argument,

the sentencing court is not required to make explicit factual

findings on the details of each transaction conducted in the course

of the conspiracy, when such findings have been detailed at trial

and in the submissions of the parties. Tavano, 12 F.3d at 307 ("As

a general rule, a trial court lawfully may make implicit findings

with regard to sentencing matters, incorporating by reference

suitably detailed suggestions limned in the PSI Report or advanced

by a party."). Thus, it was well within the bounds of the court's

discretion to credit evidence produced at trial and set forth in

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the government's sentencing memorandum.5 Therefore, we reject

Newton's argument that the court erred in its determination of the

quantity of drugs attributable to Newton for sentencing purposes.

V. Conclusion

The district court was thorough, fair and legally correct

at all stages of Newton's trial. For the reasons stated above, the

judgment of the district court is affirmed.

5
Newton complains that the court failed to resolve a dispute
over conversion of powder cocaine to crack cocaine. However, in
the absence of expert testimony on the relative weights, the court
did not consider the government's argument that Newton sold more
than 150 grams of crack based on his purchase of more than 150
grams of powder cocaine. Therefore, the court restricted its
determination of the quantity of crack attributable to Newton to
the amount sold by the conspiracy of which Newton was reasonably
aware. Because this removed from the sentencing equation the
quantity of crack cocaine that could be made from the powder
cocaine that Newton purchased, this decision not to make a
conversion finding worked in Newton's favor.

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