United States v. Wihbey

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 95-1291

UNITED STATES,
Appellee,

v.

ROBERT WIHBEY,
Defendant, Appellant.

No. 95-1394

UNITED STATES,
Appellee,

v.

CLAUDE WHITMAN,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]

Before
Cyr, Boudin, and Stahl,
Circuit Judges.

Jack St. Clair with whom Barbara J. Sweeney was on brief for

appellant Wihbey.
Vincent A. Bongiorni for appellant Whitman.

Dina Michael Chaitowitz, Assistant United States Attorney, with

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

appellee.

February 6, 1996

STAHL, Circuit Judge. Robert Wihbey and Claude
STAHL, Circuit Judge.

Whitman were tried by a jury and convicted of conspiracy to

distribute marijuana. The jury also convicted Wihbey of

possession of marijuana with intent to distribute. Both

Wihbey and Whitman challenge their convictions on the grounds

that the prosecutor made improper remarks in closing

argument, and that the government proved multiple

conspiracies, not the single conspiracy charged in the

indictment. Wihbey argues that the warrantless entry of his

home was not justified by exigent circumstances and that the

evidence against him does not support the drug quantity used

to calculate his sentence under the guidelines. Whitman also

challenges his sentence, asserting that he did not play a

leadership role in the conspiracy that justified an increase

in offense level. Finding no error, we affirm the

convictions and the resulting sentences.

I.
I.

FACTUAL OVERVIEW
FACTUAL OVERVIEW

The evidence, taken in the light most favorable to

the verdict, permitted the jury to find the following facts.

See United States v. Twitty, No. 95-1056, slip op. at 2 (1st

Cir. December 28, 1995). In the spring of 1991, Richard

Britt and Thomas Rohan agreed to work together dealing

marijuana. Initially, they intended their source of supply

to be appellant Claude Whitman and one Frank Camyre, but when

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Camyre and Whitman repeatedly failed to produce as promised,

Rohan cultivated another supplier, Robert Wihbey. Meanwhile,

an informant for the Drug Enforcement Administration ("DEA"),

David DeCastro, had convinced Britt and Rohan that he had the

desire and ability to buy 250 pounds or more of marijuana

(about $500,000 worth). Britt and Rohan, eager to recoup an

earlier loss in a failed marijuana deal, agreed to act as

middlemen in a large sale to informant DeCastro. Britt and

Rohan informed both of their sources that they had a big

buyer on the hook. On or about November 22, 1991, both

sources independently obtained shipments of marijuana. On

November 23, 1991, DEA agents arranged for DeCastro to

conduct controlled buys the following day from both the

Wihbey source and the Whitman/Camyre source. Britt and Rohan

were arrested during a buy from Wihbey's associate, Michael

Weiner, who was also arrested; all three immediately agreed

to cooperate. Weiner led the DEA agents to Wihbey's home,

where they arrested Wihbey and searched the premises. Later

that day, Britt and Rohan cooperated with the DEA on a second

controlled buy, from the Whitman/Camyre source, leading to

the arrest of Whitman, Camyre and Whitman's source, Roger

Brandt. Further factual details will be provided as needed

to analyze the several issues presented.

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II.
II.

PROCEDURAL BACKGROUND
PROCEDURAL BACKGROUND

In March 1993, a federal grand jury returned a

four-count indictment that charged: in Count One, that from

May 1991 through November 23, 1991, Britt, Rohan, Wihbey,

Weiner, Whitman, and Camyre conspired to possess with intent

to distribute, and to distribute, marijuana in violation of

21 U.S.C. 846; in Count Two, that on October 4, 1991,

Camyre possessed marijuana with intent to distribute in

violation of 21 U.S.C. 841(a)(1); in Count Three, that on

November 22, 1991, Wihbey possessed marijuana with intent to

distribute in violation of 21 U.S.C. 841(a)(1); and in

Count Four, that on November 23, 1991, Wihbey used a pistol

during and in relation to a drug trafficking offense in

violation of 21 U.S.C. 924(c).

Wihbey filed a motion to suppress physical evidence

and a statement obtained from him during the warrantless

arrest and search at his home, but the motion was denied

after an evidentiary hearing. Prior to trial, all of the

defendants except Wihbey and Whitman pleaded guilty and

agreed to cooperate with the government. After a five-day

trial in May 1994, the jury found Wihbey and Whitman guilty

of the conspiracy count and Wihbey guilty of the possession

with intent to distribute count. The jury, however,

acquitted Wihbey on the firearm count. Wihbey and Whitman

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were sentenced in November 1994 and promptly filed notices of

appeal.

III.
III.

DISCUSSION
DISCUSSION

A. Warrantless Entry of Wihbey's Home
A. Warrantless Entry of Wihbey's Home

1. Facts

The magistrate judge found the following facts at

the suppression hearing. The DEA investigation that led to

the arrests in this case was focused on a controlled buy of

marijuana by the informant DeCastro from Whitman and Camyre,

with Britt and Rohan acting as middlemen. It was only one

day before the scheduled Whitman/Camyre buy that DEA agents

learned that Rohan had another source, Robert Wihbey. Late

in the afternoon of Friday, November 22, 1991, Rohan told the

informant DeCastro that he had an unnamed source that could

deliver 250 pounds of marijuana. When DeCastro expressed his

interest in purchasing from both this new source and the

Whitman/Camyre source, Britt and Rohan drove DeCastro to the

Beekman Place condominiums in Agawam, Massachusetts.

DeCastro wore a transmitter, and was under audio and visual

surveillance by DEA special agent Sean McDonough and other

agents. Rohan parked the car, got out, and returned shortly

thereafter with a sample of marijuana for DeCastro's

approval. The agents were unable to discern, however, which

condominium unit Rohan had entered, nor did they learn the

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name of the new source. DeCastro approved the sample and he

and Rohan scheduled a 250 pound deal to take place at Rohan's

residence later that night.

Early that evening, DeCastro called Britt to

confirm the arrangements, but Britt stated that the delivery

would have to be postponed until 8:00 a.m. the following

morning, Saturday, November 23, 1991. The following day,

Britt and Rohan met DeCastro and brought him to a house

(owned by Wihbey, but not used as his residence) at 30 Arden

Street in Springfield, Massachusetts. There, DeCastro

examined ten pounds of marijuana, and was told by Wihbey's

associate, Michael Weiner, that there were thirty more pounds

in Weiner's car. Weiner advised the buyers that the rest of

the marijuana would be produced in increments after the cash

for the first forty pounds was delivered to the source.

DeCastro said he had to get his "money man," but he returned

instead with special agent McDonough, followed by a number of

DEA agents. Britt, Rohan, and Weiner were arrested inside

the Arden Street house at about 11:00 a.m.; the DEA still had

not learned the identity of the source (Wihbey) or his unit

number at Beekman Place.

Britt, Rohan, and Weiner promptly agreed to

cooperate with the DEA agents, and by 11:15 one or more of

them had disclosed that Wihbey was the source and that he

lived at 33 Beekman. At the hearing, agent McDonough

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conceded that at this point he had probable cause to arrest

Wihbey and search 33 Beekman. Nonetheless, McDonough had

doubts about the credibility of the three arrestees and

decided to interview them individually at DEA headquarters;

these interviews began at 11:30 that morning. Agent

McDonough determined that the cooperating defendants were

credible, and based on information they provided, that Wihbey

would grow suspicious if Weiner did not return promptly with

$68,000 or call to explain the delay. At about the same

time, roughly noon, McDonough was also concerned with setting

up the controlled buy from Whitman and Camyre. McDonough

directed Britt to contact Whitman or Camyre, and the second

deal was set up for 3:00 that same afternoon. Thus,

McDonough was involved to some extent with setting up the

Whitman/Camyre buy at the same time that he was preparing to

arrest Wihbey.

Because it was Saturday, McDonough believed that

application for a warrant to arrest Wihbey in his home might

take as long as several hours, and that quick action was

necessary because Wihbey's growing suspicion might motivate

him to flee or destroy evidence. At approximately 12:45

p.m., the DEA established surveillance of Wihbey's condo, and

at 1:00 p.m. Weiner and Rohan entered, followed by special

agent McDonough and other agents who "secured the apartment."

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Wihbey was found lying on the basement floor behind a pool

table, with a loaded pistol a few feet away.

Agent McDonough placed Wihbey under arrest and

advised him of his rights. McDonough then told Wihbey that

they had no search warrant, but would get one if needed; he

asked Wihbey to show the agents where he had marijuana and

guns. Wihbey agreed, and during the ensuing search the

agents found 1200 grams of marijuana (about 2.7 pounds, which

McDonough characterized as "personal use" marijuana) and some

marijuana paraphernalia. Agent McDonough sought Wihbey's

cooperation, asking him to name his source. Wihbey said that

he would not give McDonough the name of the "guy above me"

because he was a personal friend, but he would give the name

of the "guy above him." Agent McDonough declined Wihbey's

offer of partial cooperation.

2. Analysis

The Constitution requires that police normally

obtain a warrant before entering a person's home to make an

arrest. Payton v. New York, 445 U.S. 573, 590 (1980). The

government says, however, that in this case "exigent

circumstances" excused the warrantless entry. In determining

whether an exigency justifies a warrantless search and

seizure, the test is "whether there is such a compelling

necessity for immediate action as will not brook the delay of

obtaining a warrant." United States v. Wilson, 36 F.3d 205,

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209 (1st Cir. 1994) (quoting United States v. Adams, 621 F.2d

41, 44 (1st Cir. 1980)). Exigency determinations are

generally fact-intensive and thus must be made on a case-by-

case basis. See United States v. Donlin, 982 F.2d 31, 34

(1st Cir. 1992), in our past holdings, exigent circumstances

have commonly included: (1) "hot pursuit" of a felon; (2)

threatened destruction of evidence; (3) risk that the suspect

may flee undetected; and (4) danger to the safety of the

public or the police. See United States v. Tibolt, No. 94-

2221, slip op. at 8 (1st Cir. Dec. 29, 1995). Exigency must

be assessed in light of the totality of the circumstances.

United States v. Veillette, 778 F.2d 899, 902 (1st Cir.

1985), cert. denied, 476 U.S. 1115 (1986).

We defer to the district court's findings of the

underlying facts unless clearly erroneous, but we afford

plenary review to the district court's legal analysis and

ultimate conclusion. Tibolt, slip op. at 8-9; United States

v. Curzi, 867 F.2d 36, 42 (1st Cir. 1989). We find clear

error only if, after reviewing all the evidence, we are left

with "the definite and firm conviction that a mistake had

been committed." United States v. Rust, 976 F.2d 55, 57 (1st

Cir. 1992).

The magistrate judge who conducted the suppression

hearing characterized this as a "borderline case," but

nonetheless denied the motion to suppress. The magistrate

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judge found that Wihbey had consented to a search of his

condominium after he had been arrested. Thus the critical

issue was whether the entry to arrest was justified by

exigent circumstances.

The magistrate judge determined that circumstances

were exigent based upon the following five "factors." First,

it was reasonable for the DEA agents to choose not to prepare

part or all of a warrant on the day before the arrest, as

they did not know whom they were to arrest or, with requisite

particularity, where the arrestee lived. Second, it would

have taken "substantially more than two hours" to obtain a

warrant at the relevant time, Saturday morning or early

afternoon. Third, it was reasonable for agent McDonough to

bring Britt, Rohan, and Weiner to DEA headquarters for

further debriefing before seeking a warrant or taking other

action. Fourth, it was reasonable for the agents to conclude

that there was a compelling necessity for immediate action,

based on the likelihood that Wihbey would grow suspicious of

the delay in Weiner's return, causing Wihbey to flee or

conceal or destroy evidence. Fifth, the DEA agents' plans

for a second controlled buy from Camyre and Whitman later

that afternoon did not precipitate the decision to arrest

Wihbey without a warrant. Wihbey objected to the magistrate

judge's report and recommendation, but the district court

adopted the report and denied the motion to suppress.

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Before reviewing the ruling below, we narrow the

issues because Wihbey has forfeited some of his Fourth

Amendment arguments by failing to press his objections

below.1 Wihbey's challenge to the suppression ruling is

therefore limited to those issues that he specifically raised

in his objection to the magistrate judge's report and

recommendation. We ignore Wihbey's attempt to "generally

object" to the magistrate judge's report, as well as his

attempt to incorporate by reference the arguments made in his

pre-hearing memorandum. Wihbey made two objections with

sufficient specificity: (1) the magistrate judge erred in

determining that it was reasonable for the agents to delay

preparing for a warrant application until Saturday morning

when they learned Wihbey's name and address, and (2) the

magistrate judge erred in determining that there was a

compelling necessity for immediate action, because the

exigency was created by the agents' investigative strategy.

We note that Wihbey did not object to any of the magistrate

judge's proposed findings of the underlying facts, but only

1. Rule 3(b) of the Rules for United States Magistrates in
the United States District Court for the District of
Massachusetts requires a party who objects to a magistrate
judge's findings and recommendations to identify specifically
the objectionable portions of the proposed findings and
recommendations and to state the basis for objection. The
magistrate judge's report contained a clear warning about
this rule, advising Wihbey that failure to comply would
preclude appellate review, citing United States v. Valencia-

Copete, 792 F.2d 4, 6 (1st Cir. 1986) (approving such a local

rule). See also 28 U.S.C. 636(b)(1).

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to the reasonableness of the agents' actions and whether the

facts constituted exigent circumstances. In particular,

Wihbey did not object to the finding that Wihbey consented to

the search after he was arrested; thus the issue before us is

whether the warrantless arrest was justified by exigent

circumstances. In any event, we find no error, let alone

clear error, in the magistrate judge's findings as to the

underlying facts. As to the forfeited arguments that Wihbey

now raises, we find that none of the asserted errors rises to

the level of plain error which might justify reversal. See

United States v. Olano, 113 S. Ct. 1770, 1776-1779 (1993).

a. Should the agents have started a warrant

application earlier?

Contrary to his assertion on appeal, Wihbey's right

to be free from unreasonable searches and seizures did not

impose a duty on the investigating agents to begin preparing

for a warrant prior to the arrest and interrogation of

Weiner, Britt, and Rohan on Saturday morning. The DEA agents

did not learn Wihbey's name or which condominium unit he

lived in until Saturday morning. Moreover, prior to Weiner's

arrest, the agents could not be sure whether Wihbey would be

at his condo or some other place, nor was there any assurance

that the suspects to be arrested would cooperate and provide

that crucial information. The DEA agents were not obligated

to prepare a warrant application in advance merely because it

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might have been foreseeable that the contemplated arrest of

Britt and Rohan would lead the agents to the source of the

marijuana. See United States v. Cresta, 825 F.2d 538, 553

(1st Cir. 1987) ("Although probable cause existed some time

prior to the arrests, this does not negate the rise of

exigent factors."; "Unforeseeability has never been

recognized as an element of the exigent circumstances

exception . . . ."), cert. denied, 486 U.S. 1042 (1988). We

therefore reject Wihbey's first basis for objection.

b. Were the circumstances exigent?

The magistrate judge credited agent McDonough's

statement that he had doubts about the credibility of Britt,

Rohan, and Weiner, and that it was reasonable to interview

them in further detail before proceeding against Wihbey.

Therefore, it was only sometime after 11:30 a.m., about three

hours after the marijuana buy had begun, that McDonough faced

the crucial decision whether he had time to obtain a warrant.

The magistrate judge also relied on McDonough's testimony in

finding that (1) it would take substantially longer than two

hours to obtain a warrant and (2) that McDonough's decision

to forego a warrant was not motivated by his desire to press

ahead with the investigation of Whitman and Camyre. Wihbey

did not specifically object to those recommended findings,

and even if he had, those findings are not clearly erroneous

in light of all the circumstances. Because of the delay in

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Weiner's return to Wihbey, and Weiner's statement that Wihbey

would be growing suspicious, we agree with the magistrate

judge and the district court that the agents reasonably

feared that Wihbey would flee, or conceal or destroy

marijuana evidence before a warrant could be obtained.

It is well established that government agents must

act reasonably, based on the objective facts available, when

deciding that a warrantless entry is justified: "Whether the

basis for such authority exists is the sort of recurring

factual question to which law enforcement officials must be

expected to apply their judgment; and all the Fourth

Amendment requires is that they answer it reasonably."

Illinois v. Rodriguez, 497 U.S. 177, 186 (1990). We agree

with the magistrate judge and the district court that it was

reasonable for the agents in this case to judge the

circumstances exigent and to take action accordingly.

Although he did not raise the argument below,

Wihbey now argues that his suspicion could have been allayed

-- and the exigency averted -- by a phone call from Weiner

assuring him that all was well. While that may be true, it

does not alter our conclusion. It was well within the

reasonable professional judgment of the agents to choose not

to jeopardize a continuing investigation by taking measures,

such as a phone call, that might (or might not) alleviate the

exigency. The telephone call might have had the opposite

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effect, heightening Wihbey's suspicion, and inducing him to

immediately flee, or destroy or conceal evidence.

We also reject Wihbey's argument that the exigency

was created by the DEA agents' investigative strategy. The

need for quick action arose upon the agents' determination

that arrestees Rohan, Britt, and Weiner had provided reliable

information about Wihbey and that he would be suspicious

because of any further delay in getting back to him. We

accept the magistrate judge's finding that the timing of the

second controlled buy did not drive the agents' decision to

forego a warrant. And, as we have said, the agents had no

duty to prepare a warrant application before the arrest of

Rohan and Weiner nor to attempt to allay Wihbey's suspicion

with a phone call. Wihbey argues that the agents could have

established surveillance of his condominium, without entry,

to prevent Wihbey's flight, but that would not have prevented

the destruction of evidence within. We see nothing about the

agent's investigative strategy that created the exigency.

This is not a situation where the agents deliberately created

the exigent circumstances. The agents had no choice but to

respond promptly once they learned that Wihbey was at his

condominium, undoubtedly growing suspicious as he awaited the

overdue proceeds of the busted transaction. See United

States v. Cresta, 825 F.2d at 553.

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For the foregoing reasons, we affirm the denial of

Wihbey's motion to suppress.

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B. Improper Arguments by the Prosecutor
B. Improper Arguments by the Prosecutor

Wihbey and Whitman seek a new trial because, they

claim, the prosecutor in closing argument commented upon

their failure to testify, shifted the burden of proof to

them, and vouched for the government's witnesses.

1. Comment on Failure to Testify and Attempt to

Shift the Burden of Proof

Wihbey and Whitman contend that the following

remark (hereafter "Comment One"), made during the

government's summation, was an improper comment on their

failure to testify:

What I would like to do, however, is
talk to you for a few minutes about the
three specific charges that are contained
in the indictment . . . .
The first one, and I would suggest
to you the most important one, is the
conspiracy count and that conspiracy
count lists, as you know, six different
persons -- four of them you heard from --
Mr. Britt, Mr. Rohan, Mr. Weiner, Mr.
Wihbey and Mr. Whitman and Mr. Camyre.
You've heard from all of those witnesses

except for obviously the two Defendants

who have now been charged.

(emphasis added).

Wihbey asserts that a second remark ("Comment Two")

was also an improper comment on his failure to testify as

well as an attempt to shift the burden of proof to him. The

prosecutor recounted Wihbey's post-arrest statement to DEA

special agent McDonough that Wihbey would not turn in his

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source because he was Wihbey's friend, but that he would give

the name of the friend's source. Then the prosecutor said:

Now, if Mr. St. Clair [Wihbey's
lawyer] can stand up and explain away

that conversation to you, then you should
let Bob Wihbey walk out of here with a
verdict of acquittal. But he can't do
that, ladies and gentlemen, because that
is not a conversation that an innocent
man, who's been falsely accused, would
have under those circumstances.
There's just no other explanation
except the one that's been provided from
the witness stand by the eight witnesses
called by the government.

(emphasis added).

At the end of the prosecutor's summation, during

which the prosecutor made Comments One and Two, Wihbey's

lawyer asked to approach the bench, but the trial judge

ordered him instead to "move on with it for now." Wihbey's

lawyer therefore proceeded with his closing argument;

Whitman's lawyer followed. After the prosecutor's rebuttal,

Wihbey and Whitman both moved for a mistrial, citing Comment

One as an improper comment on their failure to testify, and

citing as improper a third comment. We assume arguendo that

defense counsel's attempt to approach, coupled with specific

mention in the mistrial motion, was a sufficient objection to

Comment One to preserve the issue for appeal. We consider

Wihbey's failure to mention Comment Two in the motion for

mistrial, however, as a failure to object; therefore if there

was an error in Comment Two, the error was forfeited and is

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reviewed for plain error only. See Olano, 113 S. Ct. at

1776-1779.

Comment by a prosecutor on a defendant's failure to

testify violates the Fifth Amendment guarantee against self-

incrimination. Griffin v. California, 380 U.S. 609, 615

(1965). A court determines if a prosecutor's remarks violate

Griffin by asking "whether, in the circumstances of the

particular case, the language used was manifestly intended or

was of such a character that the jury would naturally and

necessarily take it to be a comment on the failure of the

accused to testify." United States v. Akinola, 985 F.2d

1105, 1111 (1st Cir. 1993) (quoting United States v. Glantz,

810 F.2d 316, 322 (1st Cir.), cert. denied, 482 U.S. 929

(1987)). If we find that a prosecutor has violated Griffin,

we then review for harmless error. United States v. Hasting,

461 U.S. 499, 508-12 (1983) (applying the constitutional

harmless error analysis established in Chapman v. California,

386 U.S. 18, 24 (1967)). In Chapman, the Supreme Court

stated that a prosecutorial comment on the failure of the

accused to testify would not require reversal if the State

could show "beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained."

386 U.S. at 24. The Supreme Court clarified the Chapman

constitutional harmless error standard in Sullivan v.

Louisiana, 113 S. Ct. 2078, 2081 (1993), explaining that the

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inquiry is "not whether, in a trial that occurred without

error, a guilty verdict surely would have been rendered, but

whether the guilty verdict actually rendered in this trial

was surely unattributable to the error." (emphasis in

original).

A very different standard is applied when a party

forfeits an error by failing to make a contemporaneous

objection, as Wihbey did with respect to Comment Two. In

that case, we have the discretion to reverse only for "plain

error," i.e., error that is "clear" and "obvious" and that

was "prejudicial" to the defendant in that it "affected the

outcome of the District Court proceedings."2 Olano, 113 S.

Ct. at 1777-78. And, we exercise that discretion only if the

plain forfeited error seriously affects the fairness,

integrity, or public reputation of judicial proceedings; an

example of such an error is one that causes the conviction of

an actually innocent defendant. Id. at 1779.

As to Comment One, we find, first, that the

prosecutor did not "manifestly intend" to comment on the

defendants' failure to testify. See Akinola, 985 F.2d at

2. After stating that a forfeited error was prejudicial if
it affected the outcome of the proceedings, the Supreme Court
in Olano stated: "There may be a special category of

forfeited errors that can be corrected regardless of their
effect on the outcome . . . ." The Court also adverted,
without specificity, to a class of errors "that should be
presumed prejudicial if the defendant cannot make a specific
showing of prejudice." 113 S. Ct. at 1778.

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1111. The context of the comment indicates that the

prosecutor intended to list the six persons charged in the

conspiracy count and to remind the jury that they had heard

from four of the six. But, apparently by mistake, he named

Wihbey and Whitman among those who testified. The challenged

comment appears to be an unartful attempt to correct that

mistake, by reminding the jury that "of course" the

defendants did not testify. Second, based on the context, we

find that the jury would not "naturally and necessarily take

[the remark] to be a comment on the failure of the accused to

testify." See id. We think it likely that the jury took the

comment the same way we do, as an attempt to clarify a slip

of the tongue. By saying "of course [the defendants did not

testify]," the prosecutor just as plausibly has reminded the

jury that the defendants' silence was to be expected, i.e.,

that it is natural for a defendant to exercise his Fifth

Amendment right. The remark does not necessarily imply that

the jury should draw any negative inference from the failure

to testify. "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 lengthy

exhortation, will draw that meaning from the plethora of less

damaging interpretations." United States v. Lilly, 983 F.2d

300, 307 (1st Cir. 1992) (quoting Donnelly v. DeChristoforo,

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416 U.S. 637, 647 (1974)). Accordingly, we hold that Comment

One was not a Griffin violation.

In contrast to Comment One, we find Comment Two to

be effectively a comment on Wihbey's failure to testify, and

that the jury likely understood it that way. Also, the

comment impermissibly suggested that Wihbey bore the burden

of proof. See United States v. Skandier, 758 F.2d 43, 45-46

(1st Cir. 1985) (holding that a "how-does-counsel-explain"

argument is a Griffin violation and an impermissible shift of

burden of proof). Wihbey, however, forfeited this error by

failing to object or raise it as grounds for mistrial.3

Although it was improper, Comment Two does not rise to the

level of "plain error" under the Olano standard. 113 S. Ct.

at 1776-79.

In light of all the circumstances, we do not

believe that the comment affected the outcome or "seriously

affected the fairness, integrity, or public reputation of

judicial proceedings."4 Id. at 1779. First, the judge gave

3. We recognize that, after the prosecutor's summation,
Wihbey's lawyer asked "Your honor, may I approach sidebar?"
We must assume he intended to object to the prosecutor's
remarks. The judge told counsel to move on with his closing
argument. Upon being rebuffed, counsel did not state an
objection or press further the request to approach. In any
event, counsel had the opportunity to raise Comment Two as
grounds for mistrial, but specified only Comments One (and
Comment Three, which we discuss further on).

4. This improper remark by the prosecutor is not in the
class of forfeited errors adverted to in Olano, 113 S. Ct. at

1778, which are presumed to be prejudicial without regard to

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a strong instruction on the defendants' right not to testify

and the government's burden of proof.5 Second, there was

their affect on the outcome. Indeed, if Wihbey had objected
and preserved the error, it would be subject to harmless
error review, which of course focuses on the effect of the
error on the outcome. See United States v. Hasting, 461 U.S.

499, 508-12 (1983).

5. The relevant portions of the jury instruction follow:
The law presumes a defendant to be
innocent of a crime. Thus, a defendant,
although accused, begins the trial with a
clean slate, with no evidence against
him.
. . . .
The presumption of innocence alone
is sufficient to acquit a defendant . . .
.
. . . .
The burden is always upon the
prosecution to prove guilt beyond a
reasonable doubt.
Now I told you two or three times
during this trial that the Defendants
have a constitutional right not to
testify or offer any evidence on their
behalf. If any counsel stated during
final argument that the Defendant did not
testify in an attempt to impugn that's
wrong and something might be wrong with
them, I urge you now to completely ignore
it and disregard it.
The law is clear a defendant never
has the burden of proving his innocence,
for the law never imposes upon a
defendant in a criminal case the burden
or duty of calling any witnesses or
producing any evidence. The Government
has the burden of proving to you beyond a
reasonable doubt that the Defendants are
guilty of the crimes charged. This
burden of proof rests upon the Government
and it never shifts to the Defendants.
. . . .
As I told you, the Government has
the burden of proving guilt of the
Defendant beyond a reasonable doubt.

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23

significant (but admittedly not overwhelming) evidence of

Wihbey's guilt, enough that we find it unlikely that any

negative inference drawn from his failure to testify tipped

the scale from "not guilty" to "guilty." The evidence

against Wihbey included co-conspirator testimony, police

surveillance of pre-transaction marijuana sampling at

Wihbey's condo complex, Wihbey's ownership of the house where

the forty-pound transaction took place, marijuana and

paraphernalia seized from Wihbey's condo, and Wihbey's

incriminating post-arrest statement. Given the curative

instruction and the evidence of guilt, we are not convinced

that the improper remark constituted plain error.

2. Witness Vouching

Wihbey and Whitman contend that the prosecutor, in

his rebuttal, improperly vouched for the accomplice witnesses

who testified under their plea agreements. The prosecutor

That burden remains with the Government
throughout the entire trial and never
shifts to the Defendant.
Accordingly, if either of the
Defendants has not testified in this
case, and neither have testified in this
case, you are not to attach any
significance to this fact, and you may
not in any way consider this against
eitheroftheDefendantsinyourdeliberations.
. . . .
And further, you should bear in mind
that the law never imposes upon a
defendant in a criminal case the burden
or duty of calling any witnesses or
producing any evidence.

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24

analogized the trial evidence to a "mosaic" made up of many

"tiles" that were individually imperfect if closely

scrutinized, but which nonetheless would give a clear picture

if viewed as a whole. After making that analogy, the

prosecutor made the challenged comment ("Comment Three"):

None of these witnesses are perfect.
None of them have perfect memories.
But what they have done is testified

to you truthfully about what they knew,

and despite the fact that there are some
imperfections in their testimony, if you
take a step back from that individual
tile, you will see that the Britt tile
[government witness] and the Rohan
[government witness] tile go hand in
hand.

(emphasis added). There was no immediate objection. But two

sentences later, the prosecutor ended his rebuttal, the judge

excused the jury for lunch, and the defendants moved for a

mistrial, arguing that this comment was improper witness

vouching. The question is close whether the defendants have

preserved the issue for appeal. Compare United States v.

Sepulveda, 15 F.3d 1161, 1186-87 (1st Cir. 1993) (where

defendant did not object or raise improper prosecutorial

argument until motion for mistrial after conclusion of

summations, error forfeited and reviewed for plain error

only), cert. denied 114 S. Ct. 2714 (1994), with United

States v. Mandelbaum, 803 F.2d 42, 43 (1st Cir. 1986)

(objection made after closing arguments was timely enough to

preserve error for appeal, although it "should have been made

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25

earlier) and United States v. Levy-Cordero, 67 F.3d 1002,

1008 n.6 (1st Cir. 1995) (objection after arguments

sufficient to preserve issue for appeal where parties had

agreed not to object during arguments). For the sake of

argument, we will treat the issue as preserved for appeal as

if a contemporaneous objection had been lodged.

An improper argument to the jury that does not

implicate a defendant's constitutional rights, such as the

witness vouching that occurred here, constitutes reversible

error only where the prosecutor's remarks were both

inappropriate and harmful. See id. at 1008. Improper

statements during closing argument are considered harmful if,

given the totality of the circumstances, they are likely to

have affected the trial's outcome.6 Id. (citing United

6. Prosecutorial arguments that implicate a constitutional
right of the accused are reviewed under a higher standard
than arguments that are improper, but not unconstitutional.
See Steven A Childress and Martha S. Davis, Federal Standards

of Review 11.23 (2d ed. 1992). We have repeatedly held

that an "inappropriate" comment is not a reversible error
unless it is likely to have affected the outcome of the
trial. See, e.g., United States v. Cartagena-Carrasquillo,

70 F.3d 706, 713 (1st Cir. 1995); United States v. Levy-

Cordero, 67 F.3d 1002, 1008 (1st Cir. 1995); United States v.

Ovalle-M rquez, 36 F.3d 212, 220 (1st Cir. 1994), cert.

denied, 115 S. Ct. 947 (1995); United States v. Manning, 23

F.3d 570, 574 (1st Cir. 1994).
The Supreme Court, however, has held that a comment
on the failure of the accused to testify is a constitutional
violation, without inquiry as to its affect on the outcome.
Griffin v. California, 380 U.S. 609, 615 (1965). Indeed, a

Griffin comment is a reversible error unless the government

can persuade the appellate court that it was harmless, i.e.,

did not affect the outcome. See United States v. Hasting,

461 U.S. 499, 507-09 (1982); Chapman v. California, 386 U.S.

-26-
26

States v. Manning, 23 F.3d 570, 574 (1st Cir. 1994)). In

making that determination, we focus on (1) the severity of

the prosecutor's misconduct, including whether it was

deliberate or accidental; (2) the context in which the

misconduct occurred; (3) whether the judge gave curative

instructions and the likely effect of such instructions; and

(4) the strength of the evidence against the defendants. Id.

Although the prosecutor's statement that "what they

have done is testify truthfully" was inappropriate, our

consideration of these factors leads us to conclude that it

was not harmful. First, the witness vouching here was not,

on balance, severe. The prosecutor did not express his

personal opinion about the witnesses' veracity, see United

States v. Mejia-Lozano, 829 F.2d 268, 273 (1st Cir. 1987);

18, 26 (1967).
It appears that this court has on occasion treated
Griffin comments like other improper comments, affirming

convictions where the panel found it unlikely that the
comments affected the outcome. See, e.g., United States v.

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

929 (1987); United States v. Cox, 752 F.2d 741, 744 (1st Cir.

1985). These cases may overstate the defendant's burden in
demonstrating a Griffin violation.

It is clear that a comment on the failure of the
accused to testify is a constitutional error, and the burden
rests with the government to show the error harmless beyond a
reasonable doubt, not with the defendant to show the comment
was harmful. See, e.g., Hasting, 461 U.S. at 507-09;

Chapman, 386 U.S. at 26.

On the other hand, in cases where defendants have
challenged non-constitutional inappropriate comments, the
burden rests with the defendant to show that the comment was
harmful, i.e., that "under the totality of the circumstances
they affected the trial's outcome." See Cartagena-

Carrasquillo, 70 F.3d at 713; Levy-Cordero, 67 F.3d at 1008.

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27

nor did the prosecutor suggest that he had special knowledge

about the witnesses' credibility, or that special

circumstances such as an oath or a plea agreement ensured the

witnesses' honesty, see Manning, 23 F.3d at 572, 575. The

purpose of the "mosaic" analogy and the vouching comment was

to concede the existence of imperfections and inconsistencies

in the accomplices' testimony, and to argue that those

inconsistencies did not indicate dishonesty or fabrication.

Although the witness vouching seems to have been intentional,

in that it was part of a clearly planned oration, it was

fairly mild and barely crossed the line of impropriety. See

United States v. Oreto, 37 F.3d 739, 746 (1st Cir. 1994)

(prosecutor's argument that "nobody lied" was "mild vouching,

essentially harmless"), cert. denied, 115 S. Ct. 1161 (1995);

United States v. Innamorati, 996 F.2d 456, 483 (1st Cir.)

(stating that the line between proper argument that a witness

is credible and improper vouching is "often hazy"), cert.

denied, 114 S. Ct. 409 (1993). The context in which the

vouching occurred has aspects that suggest harmfulness, and

aspects that cut the other way. On the one hand, the final

lines of the prosecutor's rebuttal are thought to leave a

lasting impression on the jury. See Manning, 23 F.3d at 575.

On the other hand, the vouching was to some extent a fair

response to the thrust of the defense summation, which

emphasized that the accomplices were liars and that they were

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28

exaggerating, coloring their testimony, and telling the

government what they wanted to hear. See Mejia-Lozano, 829

F.2d at 268, 274 (prosecutor given "greater leeway" where

vouching was "in response to defense counsel's inflammatory

statements").

The judge gave a strong and specific curative

instruction.

Statements and arguments of counsel
are not evidence in the case . . . .
If any attorney in the case in
closing arguments stated to you that my
clients or my witnesses told the truth,
ignore it. It's what you determine from
the witnesses and the evidence in the
case, from the point of view of deciding
facts, that will control the credibility
of all witnesses; it will be for you and
only for you to determine.

Although the curative instruction was not contemporaneous,

the defendants did not object to the witness vouching until

after the prosecutor finished his rebuttal and the jury was

excused for lunch. The earliest opportunity for the judge to

give a curative instruction was during the final charge. We

normally presume that a jury will follow an instruction to

disregard inadmissible evidence or an improper argument. See

Greer v. Miller, 483 U.S. 756, 766 n.8 (1987). We find it

likely that this forceful instruction effectively neutralized

the vouching that occurred here.

Finally, the evidence against Wihbey and Whitman

was sufficiently strong for us to conclude, after considering

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29

the totality of circumstances, that the vouching was unlikely

to affect the outcome of the trial. As noted in our earlier

analysis of Comment Two, the evidence against Wihbey was

substantial. The evidence against Whitman was even stronger;

it included the testimony of his accomplices Britt, Rohan,

Camyre, and Brandt, pre-arrest tape recorded conversations

where Whitman's accomplices explicitly discussed Whitman's

role in the marijuana distribution plans, and testimony by

DEA agents about Whitman's post-arrest cooperation and

statements that made his role in a planned marijuana

transaction rather clear. We therefore conclude that the

vouching in this case did not constitute reversible error.

3. Motions for Mistrial and New Trial

We recognize that several incidents of

prosecutorial misconduct, none of which would separately

constitute grounds for mistrial, could have a cumulative

impact on the jury sufficient to affect the trial's outcome.

We review a trial judge's ruling on a motion for a mistrial,

or for a new trial, only for abuse of discretion. United

States v. Barbioni, 62 F.3d 5, 7 (1st Cir. 1995) (motion for

mistrial); Glantz, 810 F.2d at 320 & n.2 (motion for new

trial because of improper argument). Although the Assistant

United States Attorney in this case exceeded the permissible

limits of proper argument, we cannot say that his action was

deliberate and we do not believe that the closing arguments,

-30-
30

viewed collectively, affected the outcome or the fairness of

this trial. For the reasons set forth in our review of the

challenged comments, we hold that the trial judge did not

abuse his discretion in denying the defendants' motions for a

mistrial and for a new trial.

-31-
31

C. Single Conspiracy vs. Multiple Conspiracies
C. Single Conspiracy vs. Multiple Conspiracies

The jury convicted both Wihbey and Whitman under

Count I of the indictment, which charged a single marijuana

distribution conspiracy among six persons (the two defendants

along with Britt, Rohan, Weiner, and Camyre). Wihbey and

Whitman argue that the evidence was insufficient to allow the

jury to find a single conspiracy, and that the evidence

showed instead two separate conspiracies.

The framework for analyzing when a variance between

the conspiracy charged and the conspiracy proven constitutes

reversible error was set forth in United States v. Glenn:

(1) Is the evidence sufficient to permit
a jury to find the (express or tacit)
agreement that the indictment charges?
(2) If not, is it sufficient to permit a
jury, under a proper set of instructions,
to convict the defendant of a related,
similar conspiracy? (3) If so [i.e., the
answer to (2) is yes], does the variance
affect the defendant's substantial rights
or does the difference between the
charged conspiracy and the conspiracy
proved amount to "harmless error?"

828 F.2d 855, 858 (1st Cir. 1987). Put differently, "[s]o

long as the statutory violation remains the same, the jury

can convict even if the facts are somewhat different than

charged -- so long as the difference does not cause unfair

prejudice." United States v. Twitty, No. 95-1056, slip op.

at 3 (1st Cir. Dec. 28, 1995) (citing Glenn, 828 F.2d at

858).

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32

This court has recognized at least three ways in

which such a variance might "affect the substantial rights"

of the accused. United States v. Sutherland, 929 F.2d 765,

772-73 (1st Cir.), cert. denied, 503 U.S. 822 (1991). First,

a defendant may receive inadequate notice of the charge

against him and thus be taken by surprise at trial. Id.

Second, a defendant may be twice subject to prosecution for

the same offense. Id. Third, a defendant may be prejudiced

by "evidentiary spillover": the "transference of guilt" to a

defendant involved in one conspiracy from evidence

incriminating defendants in another conspiracy in which the

particular defendant was not involved. Id.

The question whether a given body of evidence is

indicative of a single conspiracy, multiple conspiracies, or

no conspiracy at all is ordinarily a matter of fact; a jury's

determination in that regard is subject to review only for

evidentiary sufficiency. United States v. David, 940 F.2d

722, 732 (1st Cir.), cert. denied, 502 U.S. 989 (1991), et

al.. In reviewing the sufficiency of the evidence, we take

the evidence in the light most favorable to the verdict. Id.

at 730. We review de novo the question whether a variance

affected a defendant's substantial rights. United States v.

Arcadipane, 41 F.3d 1, 6 (1st Cir. 1994).

Wihbey and Whitman assert that the evidence was

insufficient "to demonstrate that all of the alleged co-

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33

conspirators directed their efforts towards the

accomplishment of a common goal or overall plan." United

States v. Drougas, 748 F.2d 8, 17 (1st Cir. 1984). But we

find it unnecessary to engage in that factual inquiry; we

shall assume for the sake of argument that the evidence was

insufficient to convict either Wihbey or Whitman of the

charged single conspiracy, satisfying the first part of the

tripartite Glenn framework. See 828 F.2d at 858. Wihbey and

Whitman properly concede, however, that the evidence was

sufficient to prove that each participated in a related

similar, but smaller, conspiracy, and their arguments jump

directly from the first prong to the third (prejudice) prong.

Specifically, they concede that the evidence was sufficient

for a rational juror to find agreements to traffic in

marijuana among (1) Wihbey, Weiner, and Rohan,7 and (2)

Whitman, Camyre, Britt, and Rohan. Thus, the second prong of

Glenn is satisfied. See id. Wihbey and Whitman argue,

however, for a new trial because the variance between the

single conspiracy charged and the multiple conspiracies

proven was prejudicial to them because of evidentiary

spillover. We therefore proceed to Glenn's third prong,

making two assumptions. We assume first that the evidence

7. Although Britt was arrested along with Weiner and Rohan
during the Wihbey-supplied transaction at Wihbey's Arden
Street house, Britt is not included in this first group
because we are assuming arguendo that there were two separate

conspiracies.

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34

was insufficient to prove the single conspiracy charged, and

second, as the defendants concede and as ample evidence

supports, that there were two separate conspiracies: (1)

Wihbey agreeing to sell 250 pounds of marijuana to Rohan,

with Weiner acting as Wihbey's agent, and (2) Whitman and

Camyre agreeing to sell Britt and Rohan thirty-seven pounds

of marijuana obtained from Brandt. Even if the assumed

variance existed between the conspiracy charged and the proof

at trial, it did not prejudice either Wihbey or Whitman, and

it was therefore harmless under the Glenn framework. See

Glenn, 828 F.2d at 858. We explain.

Wihbey and Whitman argue that the variance was

prejudicial because there was "an improper imputation of

guilt" to each of them from the other's conspiracy. After

reviewing the trial record, we reject the claim of

prejudicial evidentiary spillover for the following reasons.

First, the defendants' briefs cite only two

specific instances of evidentiary spillover. One instance is

Britt's testimony that Rohan said he had a friend (implicitly

Wihbey) who could supply 250 pounds of marijuana. But

Rohan's statements about Wihbey do not spill over from

another conspiracy in which Wihbey did not take part; on the

contrary, the evidence clearly showed that Wihbey conspired

with Rohan. Therefore, Britt's testimony as to Rohan's out-

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35

of-court statement was admissible against Wihbey as a co-

conspirator statement under Federal Rule of Evidence

801(d)(2)(E), thus there was no "spillover" to Wihbey. And

as to Whitman, Rohan's statement is probative of the

agreement between Britt and Rohan and thus relevant to

proving the conspiracy between Britt, Rohan, Whitman, and

Camyre. The testimony was not "spillover" because the

evidence clearly showed that Whitman and Rohan were co-

conspirators, rendering the statement admissible against

Whitman under Fed. R. Evid. 801(d)(2)(E). Thus, as to both

Wihbey and Whitman, the cited statement by Rohan was relevant

and independently admissible without regard to the existence

of the larger conspiracy (which we are assuming arguendo was

not proven). See United States v. O'Bryant, 998 F.2d 21, 26

(1st Cir. 1993) (no spillover where evidence was relevant and

independently admissible).

The other cited instance of evidentiary spillover

was Britt's testimony that he and Rohan were "going to do a

separate deal" together (implicitly with Wihbey). That

statement might be fairly characterized as spillover as to

Wihbey, given our assumption that the evidence was

insufficient to tie Britt to the Wihbey-Rohan-Weiner

conspiracy. But, even if Wihbey had been given a separate

trial, the jury would have properly heard testimony about the

arrest of Britt and Rohan while buying marijuana from Wiener

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36

in Wihbey's Arden Street house. Thus, it is hard to see how

there could be any marginal probative value in Britt's

statement that he and Rohan had planned to do that deal

together. And, once again, this testimony is not spillover

as to Whitman, against whom it would be relevant and

independently admissible, because the evidence showed that

Britt, Rohan, and Whitman were co-conspirators. Thus, the

defendants have identified only one specific instance of

evidentiary spillover, which we find harmless, and we will

not hypothesize the existence of other instances.

Second, the trial judge gave a jury instruction

that cautioned against using spillover evidence:8

In reaching your verdict, keep in mind
that guilt is both personal and
individual. Your verdict must be based
solely upon the evidence presented about
each Defendant. The case against each
Defendant stands or falls upon the proof
or lack of proof against that Defendant
alone. Your verdict as to one Defendant
should not influence your decision as to
the other Defendant.

The trial judge gave similar instructions again when charging

the jury on the elements of conspiracy and what evidence they

8. The judge also gave a multiple conspiracy instruction, to
the effect that the jury must acquit both defendants if it
found that the single conspiracy charged did not exist, even
if it found other conspiracies. Thus, the jury verdict can
be seen as an effective rejection of the multiple conspiracy
theory. See United States v. Sepulveda, 15 F.3d 1161, 1191

(1st Cir. 1993), cert. denied, 114 S. Ct. 2714 (1994).

However, we have assumed for the sake of analysis that the
evidence was insufficient to support that verdict, and we
have momentarily embraced the multiple conspiracy theory.

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37

could consider as proof of a conspiracy. These instructions

were aimed at preventing evidentiary spillover, and we do not

readily assume that a jury disregards clear directions.

Greer, 483 U.S. at 766 n.8. The defendants did not request

any other instruction as to spillover, nor did they object to

this one.

Third, Wihbey's activities (and the evidence

thereof) were quite distinct from Whitman's; each separately

agreed to supply marijuana to a middleman (Rohan, at least,

and perhaps Britt) for resale to the informant DeCastro. The

question here is whether evidence about Wihbey and his

conspiracy spilled over to prejudice Whitman, or vice versa.

Assuming, as we are, two separate conspiracies, with the

Wihbey sale distinct from the Whitman sale, the defendants

have not explained how the jury could have found evidence

from one conspiracy to be particularly probative of the other

conspiracy. See United States v. Dworken, 855 F.2d 12, 24

n.24 (1st Cir. 1988) (evidence from separate conspiracies

unlikely to have spillover effect). We see little about the

fact that one of the defendants agreed to sell to Rohan that

makes it more likely that the other defendant also agreed to

sell to Rohan. All we are left with is the possibility that

some general, non-specific transference of guilt must have

occurred. The appellants have not pressed that argument, and

in any event we find such any such general transference of

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38

guilt in this case to be harmless under the totality of the

circumstances.

Wihbey also asserts that the variance was

prejudicial in that he was sentenced for the 250 pounds of

marijuana he agreed to sell Rohan rather than the forty

pounds actually delivered. We see no merit in that argument.

Drug quantity is not considered by the jury an element of

either the conspiracy or the possession count, but is rather

a matter for the district court to consider at sentencing.

See United States v. Campbell, 61 F.3d 976, 979-80 (1st Cir.

1995) (no specific quantity need be proven at trial; quantity

typically relevant only at sentencing stage). Moreover,

evidence of the 250 pound quantity was derived from the

smaller conspiracy of which Wihbey was clearly part, thus his

claim that his sentence was affected by the asserted variance

and some associated evidentiary spillover is particularly

difficult to fathom.

"To prevail on a claim of prejudicial spillover, a

defendant `must prove prejudice so pervasive that a

miscarriage of justice looms.'" United States v. Levy-

Cordero, 67 F.3d 1002, 1008 (1st Cir. 1995) (quoting United

States v. Pierro, 32 F.3d 611, 615 (1st Cir. 1994), cert.

denied, 115 S. Ct. 919 (1995)) (citations omitted). Because

Wihbey and Whitman have fallen far short of such a showing,

we conclude that any variance between the single conspiracy

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39

charged and the conspiracy or conspiracies proven at trial

was not prejudicial to the defendants and is not grounds for

reversal.

D. Sentencing Issues
D. Sentencing Issues

Wihbey and Whitman both contend that the sentencing

judge made erroneous factual findings material to their

sentencing under the federal sentencing guidelines. For

sentencing purposes, the government must prove drug

quantities by a preponderance of the evidence. United States

v. Sepulveda, 15 F.3d 1161, 1198 (1st Cir. 1993). We review

the sentencing court's factfinding for clear error, id. at

1196, reversing only if, after reviewing all of the evidence,

we are left with the definite and firm conviction that a

mistake has been made. United States v. Rust, 976 F.2d 55,

57 (1st Cir. 1992).

1. Wihbey's Sentence: Drug Quantity

Wihbey asserts that the sentencing judge committed

clear error in determining the drug quantity for guideline

sentencing purposes. The commentary to the applicable

guideline provides:

In an offense involving negotiation to
traffic in a controlled substance, the
weight under negotiation in an
uncompleted distribution shall be used to
calculate the applicable amount.
However, where the court finds that the
defendant did not intend to produce and
was not reasonably capable of producing
the negotiated amount, the court shall
exclude from the guideline calculation

-40-
40

the amount that it finds the defendant
did not intend to produce and was not
reasonably capable of producing.

United States Sentencing Commission, Guidelines Manual,

2D1.1, comment. (n.12) (Nov. 1, 1994). The judge found the

applicable quantity of marijuana to be 250 pounds, the amount

Wihbey had agreed to sell to Rohan according to the testimony

of Wihbey's co-conspirators. Wihbey points out that only

forty pounds changed hands in the controlled buy and less

than three more pounds were found later in Wihbey's

condominium. As the guideline commentary suggests, we first

examine the evidentiary basis for determining that 250 pounds

was the negotiated amount, which as a general rule is the

applicable quantity, and then we examine whether the

exception to the general rule should have been applied.

The sentencing judge presided at trial and heard

and observed the testimony of all the witnesses, which we

find sufficient to support his drug quantity finding under

our deferential standard of review. Rohan testified that

Wihbey agreed to sell 250 pounds in fifty-pound increments.

Weiner also testified that the deal was "for something like

250 pounds." Rohan, Britt, and DeCastro discussed the 250-

pound purchase in their tape-recorded conversation. Britt

testified that Rohan said his source had 200 to 250 pounds

available, and the deal would go forward in fifty-pound lots.

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41

Wihbey argues that the testimony of these

cooperating co-conspirators was unreliable. Our observations

in United States v. Zuleta-Alvarez are applicable here:

In this case, there existed sufficient
indicia of reliability to avoid reversal
for clear error. First, the testimony .
. . relied upon by the sentencing judge
was all provided under oath . . . and was
corroborated by the many witnesses who
testified . . . . Moreover, the
sentencing judge was also the presiding
judge during the prior proceedings. Thus
the sentencing judge had the opportunity
to observe the testimony and cross-
examination of the various witnesses and
could thereby make an independent
assessment of their credibility.

922 F.2d 33, 36-37 (1st Cir. 1990), cert. denied, 500 U.S.

927 (1991). Based on the testimony at trial, the judge's

factual finding that the negotiated amount was 250 pounds was

not clearly erroneous.

In addition to challenging the evidentiary support

for the finding that the negotiated amount was 250 pounds,

Wihbey argues that there was insufficient evidence of his

intention and capability to deliver that amount. But that

argument misses the mark; it seems to be based on a

misreading of the directive of commentary note 12 to 2D1.1

of the guidelines.

We have interpreted application note 12
as directing that the amount of drugs
under negotiation must be considered in
determining the applicability of a
minimum mandatory penalty unless the
sentencing court supportably finds both

that the defendant did not intend to

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42

produce the additional quantity of
narcotics, and that he lacked the

capacity to do so.

United States v. Muniz, 49 F.3d 36, 42 (1st Cir. 1995)

(emphasis in original). In other words, as the plain

language of the guideline comment dictates, the negotiated

amount applies unless the sentencing judge makes a finding

that the defendant lacked the intent and the capability to

deliver.

Wihbey argued at the disposition hearing that

because only forty pounds were delivered and because he had

no prior record of drug-dealing, he therefore lacked the

capability and intent to deliver 250 pounds. But the

sentencing judge rejected Wihbey's argument, and expressly

found that Wihbey was capable of producing the 250 pounds;

the judge did not state the basis for that finding, however.

In our view, the co-conspirator testimony noted above about

the 250-pound deal is somewhat probative of Wihbey's intent

and capability to produce that amount. The fact that the DEA

did not find the remaining marijuana in Wihbey's condominium

does not prove that Wihbey was unable or did not intend to

deliver; obviously, he may have arranged to have the drugs

kept elsewhere, to be delivered to Arden Street as the deal

progressed. Consistent with the clear language of note 12 to

section 2D1.1 of the guidelines, the negotiated amount is the

applicable quantity unless Wihbey can show both "no intent"

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43

and "no capacity" to produce that amount. The sentencing

judge found that Wihbey failed to make that showing, and that

finding was not clearly erroneous.

2. Whitman's Sentence: Leadership Role

Whitman urges that the sentencing judge committed

clear error in finding that he had a leadership role over

Camyre justifying an enhancement under U.S.S.G. 3B1.1(c).

His argument is twofold: (1) the trial evidence was

insufficient to support the leadership finding, and (2)

Whitman's youth relative to Camyre and the other conspirators

indicates that Whitman was at most a "co-equal," not a

leader. The second argument is easily dismissed: although

age often correlates with one's organizational status, common

experience provides enough counterexamples to indicate that

there is little probative value in that correlation. As to

the first argument, the evidence in this case strongly

suggests that Whitman did play a leadership role. The

excerpts of Camyre's testimony cited in the government's

brief show that Camyre responded to Whitman's orders, that

Whitman set the timing of the planned transaction, and that

Camyre expected a smaller share of the profit than Whitman.

Whitman points to no evidence that suggests a non-leadership

role, other than his age relative to that of his co-

conspirators. The judge who presided at trial and at

sentencing is in the best position to make this factual

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finding. Our review of the record finds significant support

for the judge's finding, and there is certainly no clear

error.

IV.
IV.

CONCLUSION
CONCLUSION

For the foregoing reasons, the judgments and the

sentences are affirmed.
affirmed

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