United States v. Goldman

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1727

UNITED STATES OF AMERICA,

Appellee,

v.

FRANKLIN M. GOLDMAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, U.S. District Judge]

Before

Cyr, Boudin and Stahl,

Circuit Judges.

Dana A. Curhan, by Appointment of the Court, for appellant.

Geoffrey E. Hobart, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for the United

States.

December 9, 1994

BOUDIN, Circuit Judge. Franklin Goldman was arrested on

July 17, 1992, and charged, in a superseding indictment, with

conspiring to possess cocaine with intent to distribute it

and with actually possessing cocaine with intent to

distribute. Also indicted were David St. Peter, who had

acted as an intermediary and Robert Sungy, who apparently

played the role of lookout. In October 1992, St. Peter and

Sungy pled guilty. Goldman was tried by a jury in December

1992.

We describe the trial evidence in condensed form

because, while the sufficiency of the evidence is not

challenged, some understanding of the facts is relevant to

the appeal. At Goldman's trial, the government's evidence

showed that a confidential informant acting under the

direction of Drug Enforcement Administration agents had

purchased small quantities of cocaine from St. Peter in

February 1992. The informant then began to discuss with St.

Peter the possibility of making large scale purchases.

In May 1992, in Peabody, Massachusetts, the informant

introduced St. Peter to DEA Special Agent Pamela Mersky, who

purported to be the girlfriend of a cocaine trafficker.

Mersky asked to purchase multiple kilograms of cocaine from

St. Peter. St. Peter asserted that he had a local

Massachusetts source for cocaine and would talk to him

shortly about price. On July 13, 1992, Mersky and St. Peter

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met again. St. Peter advised Mersky that the price would be

$29,000 per kilogram. Mersky asked to purchase five

kilograms. St. Peter met the next day with Goldman, who said

that a transaction of one to five kilograms would not be a

problem.

On July 17, 1992, St. Peter and Mersky met and arranged

for the sale to her of four kilograms in two installments of

two kilograms each. St. Peter then went alone to the Royal

Sonesta Hotel in Cambridge where he was seen meeting with

Goldman and the transaction was discussed. St. Peter then

met twice with Mersky and assured her that the arrangements

were proceeding. Subsequently, Goldman and St. Peter met

again near the hotel to discuss the mechanics of the

transaction. Ultimately, after a rendezvous at a nearby

garage, both St. Peter and Goldman proceeded in separate cars

to a restaurant parking lot in Saugus.

At the parking lot, government agents saw St. Peter and

Goldman meet at the rear of Goldman's car. The trunk

contained a brown paper bag, Goldman told St. Peter to "take

one," and St. Peter looked in the bag and saw what appeared

to be three kilograms of cocaine. St. Peter took one

kilogram, and Goldman advised him to take it, bring back the

money, and then the transaction would be repeated. St. Peter

then drove alone to a nearby Sears parking lot and met

Mersky. When St. Peter showed her the kilogram, she asked

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where the other kilogram was located, and St. Peter said that

it was nearby. Shortly thereafter, St. Peter was arrested.

After St. Peter left Goldman, Goldman drove some

distance away, reversed direction, and ultimately parked his

car in a K-Mart parking lot. He then left the car, crossed

the road, and climbed a bridge that gave him a vantage point

to see the parking lot of the Sears store where St. Peter and

Mersky were meeting. As Goldman was looking in this

direction, he was approached by a state trooper, began to

run, apparently abandoned his car keys, and was ultimately

apprehended. After Goldman was arrested, agents took his car

to a nearby state police barracks. There a search of the

trunk revealed the two kilograms of cocaine in a paper bag,

as well as over $5,000 in cash and a cellular phone.

The most damning evidence at trial, apart from the

cocaine seized from Goldman's car, came from St. Peter who

testified against Goldman, described their conversations, and

identified Goldman as the source of cocaine that St. Peter

had distributed both in this instance and on prior occasions.

The jury convicted Goldman on both the conspiracy and

possession counts. On April 24, 1993, the court sentenced

Goldman to 262 months' imprisonment and, three days later,

corrected the sentence and resentenced Goldman to 360 months'

imprisonment.

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On this appeal, Goldman first challenges the

admissibility of the evidence seized from his car. This

claim was preserved because Goldman moved to suppress the

evidence prior to trial. After argument but without an

evidentiary hearing, the district court denied the motion to

suppress based on affidavits from the law enforcement agents

describing the information available to them at the time of

the seizure. We take it that no evidentiary hearing was held

because there were no disputed facts.

The Supreme Court has ruled that an automobile may be

searched without a warrant if the police have probable cause

to believe that it contains contraband or evidence of a

crime. United States v. Ross, 456 U.S. 798 (1982); see

United States v. Infante-Ruiz, 13 F.3d 498, 502 (1st Cir.

1994). Applying this standard requires us to disregard the

most potent evidence against Goldman--St. Peter's trial

testimony and the cocaine found in the trunk of Goldman's

car--and focus upon what the agents knew at the time that

they searched the car.

Since what the agents knew is apparently not disputed,

we will treat the application of the probable cause standard

to known facts as a legal issue subject to de novo review.

See United States v. 255 Broadway, 9 F.3d 1000, 1004 (1st

Cir. 1994). There is no indication that, at the time of his

arrest, Goldman had been identified by St. Peter as the

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source of the cocaine. What the agents knew was that St.

Peter, claiming to have a local source, had agreed with

Mersky to make a multi-kilogram delivery on July 17.

Thereafter Goldman was seen later that day conferring with

St. Peter at the hotel in Cambridge and afterwards St. Peter

twice assured Mersky that the transaction was proceeding.

This turn was followed by further observed meetings

between Goldman and St. Peter at the Cambridge hotel, then at

a nearby garage, and finally in the restaurant parking lot in

Saugus where agents saw St. Peter and Goldman together at the

rear of Goldman's car with the trunk open. This was followed

by St. Peter's delivery of one kilogram of cocaine to Mersky

at a nearby site and St. Peter's explanation that the other

kilogram of cocaine was close at hand.

Accordingly, at the time Goldman's car was searched, the

police based on these observations had good reason to believe

that he was the source of the cocaine, had supplied from his

car the kilogram delivered to Mersky, and had possessed the

remaining kilogram nearby the delivery site. When the

missing kilogram was not found on Goldman's person at the

time of his arrest, there was further reason to believe that

it was in his car. This surely gave probable cause to search

the car without dwelling upon Goldman's apparent attempt to

dispose of his car keys before he was apprehended.

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Goldman's second claim of error concerns impeachment

evidence. Goldman's defense, at least in part, rested on the

suggestion that the cocaine was planted in his car trunk,

probably by St. Peter. During the trial, defense counsel

said that Goldman desired to testify, apparently in order to

deny that the cocaine in the car trunk was his or had been

known to him. Counsel asked the court to rule in advance

that if Goldman testified, Goldman could not be impeached

based on certain "bad acts" alleged by the government.

At Goldman's request, the government had supplied a

four-page narrative of "uncharged prior bad acts of the

defendant which the government will seek to use as

impeachment should the defendant take the witness stand at

trial." These alleged bad acts included Goldman's

involvement in prior drug transactions and attempted drug

transactions during 1990 and 1991. Also, the government

alleged that Goldman had twice proposed to rob other drug

dealers and once admitted to firing shots at the home of

someone who had failed to repay a cocaine debt to an

accomplice of Goldman. The district judge declined to bar

the proposed impeaching material, and Goldman then chose not

to testify.

In this court, Goldman asserts that the evidence was not

proper impeachment evidence under Fed. R. Evid. 404(b); that

any probative value it had would have been substantially

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outweighed by its prejudicial effect and so barred by Fed. R.

Evid. 403; and that the court's failure to disallow the

impeachment evidence impaired Goldman's opportunity to

testify and violated his constitutional right to present

evidence in his own defense. We think that a limited portion

of the impeachment evidence might have been excludible under

Rule 403 but conclude that Goldman cannot raise such issues

here because he did not testify.

In all likelihood, the government intended to question

Goldman about his prior drug dealings on the theory that

those dealings, if admitted, made it more likely that he was

lying when he expressed ignorance of the drugs in his car

trunk. There is case law that supports this general theory

of impeachment, see, e.g., United States v. Fortes, 619 F.2d

108 (1st Cir. 1980), which (like several impeachment devices)

is not expressly described in the Federal Rules of

Evidence.1 At least where knowledge is in dispute, such

evidence of prior similar crimes might well have greater

logical relevance than mere character/propensity evidence

excluded under Rule 404(a). See Fed. R. Evid. 404(b)

(exception for crimes or wrongs offered to show motive,

knowledge, absence of mistake).

1Fed. R. Evid. 608(b) permits the witness to be
questioned about prior bad acts for the purpose of attacking
the witness' character for veracity, but this theory was not
available here because under Rule 608(b) the "bad acts" must
be "probative of . . . untruthfulness."

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Of course, even if otherwise admissible on this

impeachment theory, the questioning of Goldman about such

prior bad acts (the government apparently did not propose to

use extrinsic evidence) would still have to be tested under

Rule 403's prejudice standard. Without belittling the

possibility of constitutional objection as well, see Fed. R.

Evid. 608(b) advisory committee's note, we think that any

impeachment so unreasonable as to threaten the defendant's

constitutional right to present evidence would already be

precluded under the Rule 403 balancing test. In all events,

the government's proposed questioning about prior violence or

threats of violence by Goldman might raise serious questions

under Rule 403's balancing test even if the rest of the

testimony were admissible.

We need not resolve any of these questions, because the

Supreme Court has ruled unequivocally that a defendant does

not preserve such objections to impeaching evidence unless

the defendant chooses to testify at trial and the court then

allows the impeachment over the defendant's objection. Luce

v. United States, 469 U.S. 38 (1984). Although Luce involved

impeachment by conviction under Rule 609, the reasons given

by the Supreme Court for requiring the defendant to testify

apply with full force to the kind of Rule 403 and 404

objections that are advanced by Goldman in this case. Cf.

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United States v. Griffin, 818 F.2d 97 (1st Cir.), cert.

denied, 484 U.S. 844 (1987).

The Supreme Court's reasons in Luce were multiple and

its ruling was unanimous. Luce may seem to some to be a

tough rule as applied to so vital an interest as the

defendant's opportunity to testify in his own defense. Yet,

the Supreme Court's concerns in Luce are also substantial:

having a fully developed record of the defendant's testimony

to judge the need for and relevance of the impeaching

questions; a set of impeaching questions actually asked by

the prosecutor; and a final, fully informed decision by the

district judge as to which questions to allow. Indeed, we

have some doubt whether the district court would have allowed

impeachment based on Goldman's threats or acts of violence,

especially when his prior drug transactions were available to

show knowledge. In any event, Luce is binding upon us.

Goldman's third independent claim of error relates to

sentencing and requires less discussion. Goldman, as counsel

sensibly concedes, was subject to sentencing under the career

offender guideline, U.S.S.G. 4B1.1, because he was at least

18 years old at the time of the offense, the offense involved

a controlled substance, and Goldman had at least two prior

felony convictions for either a crime of violence or a

controlled substance offense. These characteristics place a

defendant in criminal history category VI and provide

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increased base offense levels, depending on the statutory

maximum applicable to the offense of conviction. Id.

Pertinently, under this guideline a statutory maximum of 25

years or more gives rise to an offense level of 34 and a

statutory maximum of life corresponds to an offense level of

37. Id.

In this instance, based on the quantity of cocaine

attributed to Goldman, the prosecutor advised the district

court at sentencing that the statutory maximum for Goldman

was 40 years. See 21 U.S.C. 841(b)(1)(B) (40 year maximum

for basic offense). The applicable sentencing range was

therefore 262 to 327 months, and the district court sentenced

Goldman to 262 months' imprisonment. In fact, because

Goldman had a prior drug conviction, the statutory maximum

properly applicable in his case was life imprisonment. See

id. (maximum of life if prior drug felony).

Later in the same day, the prosecutor realized his

mistake and filed a motion pursuant to Fed. R. Crim. P. 35(c)

so advising the court. Rule 35(c) provides that the court

within seven days after imposing a sentence may correct a

sentence wrongly imposed "as a result of arithmetical,

technical, or other clear error." Within three days after

the original sentence, the district court conducted a new

sentencing hearing, found that the prior sentence had

constituted clear error based on a mistake as to the

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applicable statutory maximum, and resentenced Goldman to the

minimum sentence applicable to him under the new calculation,

namely, 360 months' imprisonment.

On appeal, Goldman's counsel concedes that, as we have

earlier held, "[t]he Constitution contains no general rule

that prohibits a court from increasing an earlier sentence

where the court finds that it was erroneous and that a higher

sentence was required by law." DeWitt v. Ventetoulo, 6 F.3d

32, 34 (1st Cir. 1993), cert. denied, 114 S. Ct. 1542 (1994).

We there held that the right to correct an unlawful sentence

was not without limits, but we were concerned there with

extreme facts: a long delay, actual release of the defendant

from custody based on the shorter sentence, singling out of

the defendant for a belated increase apparently because of

his commission of another offense for which parole revocation

would have been available, and other troubling

characteristics. Id. at 35-36. There is nothing of that

sort in this case.

Goldman suggests that because the district court's

original miscalculation was based on the government's

mistaken reading of the statute, it is fundamentally unfair

to impose a higher sentence. United States v. Harvey, 2 F.3d

1318, 1330 (3d Cir. 1993), is cited for this proposition but

does not bear it out. Harvey involved the question whether a

sentencing error in favor of the defendant could be fully

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corrected where the defendant appealed the sentence on other

grounds but the government chose not to appeal an error in

the defendant's favor. Harvey was thus concerned solely with

the consequence of the government's decision not to appeal.

As for fundamental fairness, it is difficult to see

anything unfair about the district court's decision to

correct a clear error in a sentence where the error relates

solely to the precise length of a lengthy prison term and the

correction is made with great promptness. Goldman does not

claim to have relied detrimentally on the mistake, and its

correction is surely what the drafters of Rule 35(c) had in

mind. Given the complexity of the guidelines, the seven-day

window is a well-advised precaution and may operate as

readily in favor of the defendant as against him. United

States v. Fahm, 13 F.3d 447, 453-54 (1st Cir. 1994).

Affirmed.

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