United States Court of Appeals
For the First Circuit
No. 99-1404
No. 99-1407
No. 99-1438
No. 99-1474
UNITED STATES,
Appellee,
v.
KAREEM RICHARDSON, ROY T. GAUL, MARC TAYLOR, and DAVID ARRUDA
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Torruella, Chief Judge,
Lynch and Lipez, Circuit Judges.
Rosemary Curran Scapicchio for appellant Richardson.
Geraldine S. Hines and Burnham & Hines on brief for
appellant Gaul.
David Shapiro, with whom Shapiro & Shapiro was on brief, for
appellant Taylor.
Richard N. Foley on brief for appellant Arruda.
Thomas E. Booth, Attorney, U.S. Dep't of Justice, with whom
Donald K. Stern, U.S. Attorney, George Vien, Asst. U.S.
Attorney, and Kevin Cloherty, Asst. U.S. Attorney, were on
brief, for appellee.
September 7, 2000
LIPEZ, Circuit Judge. Kareem Richardson, Roy T. Gaul,
Marc Taylor, and David Arruda were convicted on multiple counts
involving a conspiracy to distribute cocaine. They raise
several issues on appeal, most importantly a challenge to the
district court's sentencing finding that the substance they
distributed was both "cocaine base" and "crack." We affirm.
I. Background
The defendants were arrested after an investigation
involving a number of drug purchases by government informant
John Thompson. Taylor facilitated Thompson's purchases of crack
cocaine from Gaul in June 1996, and Thompson bought crack
directly from Gaul, Richardson, and Arruda between October 1996
and February 1997. The defendants were indicted for conspiracy
to distribute a controlled substance, 21 U.S.C. § 846, and
multiple counts of possession of a controlled substance with
intent to distribute, id. § 841. Before trial, Taylor pled
guilty to conspiracy and two counts of possession. The other
defendants went to trial before a jury. Richardson was found
guilty of conspiracy and six counts of possession, Gaul of
conspiracy and nine counts of possession, and Arruda of
conspiracy and one count of possession.
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Taylor moved to withdraw his guilty plea, and the
district court denied the motion. The court held evidentiary
hearings on the nature of the controlled substance, found that
the substance was cocaine base and crack, and sentenced the
defendants accordingly. Arruda and Taylor received statutory
mandatory minimum sentences of ten years imprisonment, Gaul
received a statutory mandatory sentence of life imprisonment,
and Richardson received a sentence under the Sentencing
Guidelines of 151 months imprisonment.
The defendants brought this appeal, raising the
following issues: Richardson, Gaul, and Taylor contend that the
district court erred in finding that the cocaine was cocaine
base and crack; Richardson contends that the court denied him a
meaningful opportunity to challenge the government's sentencing
evidence; Taylor contends that the court erred in denying his
motion to withdraw his guilty plea and denying him a sentence
reduction under the "safety valve"; and Arruda contends that the
court erred in its jury instructions on conspiracy.
II. The Finding that the Substance was Cocaine Base and Crack
In assessing the challenge to the district court's
drug-type finding, we begin by briefly sketching the legal
landscape of the cocaine base/crack distinction in the
sentencing context, mindful that we have been over this ground
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many times in recent years. See, e.g., United States v.
Charles, 213 F.3d 10, 24-25 (1st Cir. 2000); United States v.
Ferreras, 192 F.3d 5, 11 (1st Cir. 1999); United States v.
Martinez, 144 F.3d 189, 190 (1st Cir. 1998); United States v.
Robinson, 144 F.3d 104, 107-09 (1st Cir. 1998).
Both the statute and the Guidelines impose
significantly greater penalties for distributing (or
manufacturing, dispensing, or possessing with intent to
manufacture, distribute, or dispense) a given quantity of
"cocaine base" rather than an equivalent quantity of "cocaine"
(i.e., cocaine hydrochloride or powder cocaine). See 21 U.S.C.
§ 841(b)(1)(A)(ii), (iii); U.S.S.G. § 2D1.1(c). Neither the
statute nor the drug-quantity table in the Guidelines that
establishes the offense level uses the word "crack." Section
841(b) does not define "cocaine base," but we have held that the
term, as used in the statute, includes all forms of cocaine
base, including but not limited to crack. See United States v.
Lopez-Gil, 965 F.2d 1124, 1134 (1st Cir. 1992) (opinion on panel
rehearing). As used in the Guidelines, however, "cocaine base"
has, since a 1993 amendment, a narrower meaning: "'Cocaine
base,' for the purposes of this guideline, means 'crack.'
'Crack' is the street name for a form of cocaine base, usually
prepared by processing cocaine hydrochloride and sodium
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bicarbonate, and usually appearing in a lumpy, rocklike form."
U.S.S.G. § 2D1.1 Note (D). For Guidelines purposes, then, forms
of cocaine base other than crack are treated as cocaine. See
U.S.S.G. App. C, Amend. 487 (1993).
Richardson was sentenced under the Guideline provision
for cocaine base; his sentence therefore depended on a finding
that the substance attributed to him was crack. Taylor and Gaul
received mandatory minimum sentences pursuant to 21 U.S.C.
§ 841(b)(1)(A)(iii); their sentences therefore depended on a
finding that the substance attributed to them was cocaine base,
but not on a finding that it was crack.
Turning to practicalities, the government may show by
expert chemical analysis that a substance is cocaine base. See
Robinson, 144 F.3d at 109. Chemical analysis cannot establish
that a substance is crack, however, because crack is chemically
identical to other forms of cocaine base, see id. at 108,
although it can reveal the presence of sodium bicarbonate, which
is usually used in processing crack, see U.S.S.G. § 2D1.1 Note
(D). Lay opinion testimony suffices to prove that a substance
is crack. See Martinez, 144 F.3d at 190.
The government presented overwhelming evidence that the
substance at issue in this case was both cocaine base and crack.
DEA chemist Maureen Craig testified at the sentencing hearings
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that she performed multiple tests on all of the samples and
positively identified them as cocaine base. Her testimony was
consistent throughout. The defendants' insinuations
notwithstanding, Craig made it clear that she had never found
any of the samples to be cocaine hydrochloride.1 Although Craig
may not have performed all possible tests on every sample--
contrary to the defendants' contention, the record is unclear in
this respect--the mere possibility of further tests goes to the
weight of the government's evidence and is no reason to overturn
the finding of the district court. See Martinez, 144 F.3d at
190.
Multiple witnesses testified that the substance was
crack cocaine. Craig gave her opinion that it was crack based
on the appearance of the samples and the presence in some of
them of sodium bicarbonate. Government informant John Thompson
testified that he purchased crack from the defendants. FBI
1
The defendants make much of a notation in Craig's reports
for four of the samples that they were "calculated as" cocaine
hydrochloride. Craig explained in her testimony, however, that
the samples were cocaine base, not cocaine hydrochloride, and
the "calculated as" notation resulted from laboratory protocols
that required her to use a standard of measurement based on
hydrochloride when the samples contained both cocaine base and
another (non-cocaine) substance. Notwithstanding the
defendants' challenge to the credibility of this explanation,
the district court as the factfinder was free to accept it, and
did. See United States v. McDonald, 121 F.3d 7, 10 (1st Cir.
1997) (credibility calls in sentencing are for the court as
trier of fact).
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Agent Dale Dutton testified that the cocaine was "rock-like" and
yellowish or off-white in color when seized. (Dutton also
testified to his opinion that it was crack, but the government
disclaims reliance on that opinion because of Dutton's
inexperience). Boston Police Detective Eduardo Dominguez
testified that the samples were crack, based on Dutton's
testimony about its appearance when seized and his own
observation that, even after being ground up for laboratory
analysis, their consistency was still "gravel-like" and seventy
percent was in large enough pieces to sell on the street as
crack "gems." This testimony, "remarking the substance's
distinctive appearance and texture and identifying it as crack,
forged the final link in the evidentiary chain." Martinez, 144
F.3d at 190. The district court was also entitled to consider
the "utter absence" of evidence that the substance was anything
other than crack cocaine. Robinson, 144 F.3d at 109. The
court's finding that the substance was cocaine base and crack
"easily survives clear-error review." Id.
III. Richardson's Opportunity to Challenge
the Government's Sentencing Evidence
Richardson was absent from the two sentencing hearings
at which Craig, Dutton, and Dominguez testified because his
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attorney had just had a baby. The district court ordered that
Richardson be provided with transcripts of the hearings and
delayed the sentencing for over four months after the hearings.
Richardson did not seek an additional evidentiary hearing on the
identity of the substance or attempt to introduce any sentencing
evidence of his own, and he joined in the sentencing memorandum
filed by Taylor, Gaul, and Arruda. The situation at sentencing
was just as we have described in a previous case:
The prosecutor pulled no rabbits out his
hat. He merely presented the same
information that the defense had previously
received and reviewed. The defendant did
not move for a further continuance. He did
not request an evidentiary hearing. He did
not subpoena any witnesses or offer any
evidence. In short, the defendant did not
seek in any way to secure a further right of
rebuttal.
United States v. Tardiff, 969 F.2d 1283, 1286 (1st Cir. 1992).
Richardson now says that he was denied a meaningful
opportunity in a new evidentiary hearing to challenge the
government's evidence on the issue of whether the substance was
crack cocaine. This argument is unavailing. Richardson waived
his right to complain about the absence of such a hearing by
failing to ask for one. See id. The district court was
entitled to rely on evidence adduced at a proceeding from which
Richardson was absent, as long as it gave him an opportunity to
respond to that evidence before sentencing. See United States
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v. Berzon, 941 F.2d 8, 21 (1st Cir. 1991). The record makes it
clear that Richardson had such an opportunity and never used it.
IV. Taylor's Motion to Withdraw His Guilty Plea
Taylor changed his plea to guilty shortly before his
codefendants went on trial and were found guilty by the jury.
About two months thereafter he moved to withdraw the guilty
plea. The district court denied the motion and Taylor now
asserts that this denial was error.
Multiple factors are relevant to whether a defendant
has met his burden of establishing a "fair and just reason,"
Fed. R. Crim. P. 32(e), to withdraw his guilty plea, "the most
significant of which is whether the plea was knowing, voluntary
and intelligent within the meaning of Rule 11," United States v.
Cotal-Crespo, 47 F.3d 1, 3 (1st Cir. 1995). Other factors
include: (1) the plausibility of the proffered reason for
withdrawing the plea; (2) the timing of the motion to withdraw;
(3) whether the defendant asserted his innocence; and (4)
whether the plea was pursuant to a plea agreement. See United
States v. Aker, 181 F.3d 167, 170 (1st Cir. 1999). Before
allowing a defendant to withdraw his plea the court must also
consider the potential prejudice to the government. See United
States v. Marrero-Rivera, 124 F.3d 342, 347 (1st Cir. 1997).
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Taylor contends that his plea was involuntary because
he did not understand the consequences of pleading guilty. A
defendant's knowledge of the consequences of his plea is one of
Rule 11's "core concerns." Cotal-Crespo, 47 F.3d at 4.
Although his argument is difficult to understand, Taylor
apparently argues that the district court misled him about the
consequences of his plea by telling him that he could face an
enhanced sentence under the Guidelines if the substance he
possessed was found to be cocaine base, when in fact an
increased sentence required an additional finding that the
substance was crack, and hence an additional evidentiary burden
for the government. This contention misapprehends the nature of
Taylor's sentence. He did not receive an increased Guidelines
sentence based on a finding that the substance was crack.
Instead, he received a ten-year mandatory minimum sentence for
distributing more than 50 grams of cocaine base, see 21 U.S.C.
§ 841(b)(1)(A)(iii), and, as we have explained above, that
sentence did not require a finding that the cocaine base was in
crack form.2
2
Taylor contended for the first time at oral argument that
we should interpret § 841(b) in light of the 1993 Guidelines
amendment and hold, contrary to our prior decision in Lopez-Gil,
965 F.2d at 1134, that a mandatory minimum sentence for cocaine
base also requires a finding that the substance was crack.
Without suggesting that the argument has any merit, we do not
address this contention because Taylor waived it by failing to
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The transcript of the change of plea hearing reveals
that although there was some initial confusion about these
matters, the district court made sure that Taylor understood the
sentence he was facing before finally accepting the guilty plea:
[THE COURT:] But, do you understand that if
I find 50 or more grams of cocaine base,
that that's the kind of guideline--not the
kind. That is the guideline and the
statutory provision that's the bottom for
the sentence? That's the minimum that
you're going to do is 10 years?
[TAYLOR:] Yes, sir.
[THE COURT:] So you're pleading guilty and
leaving it to me to make the determination
whether or not we're dealing with 50 grams
or more of cocaine base here?
[TAYLOR:] Yes, sir.
This was a correct statement of the consequences of the guilty
plea, and we cannot say that the court erred in finding that
Taylor understood those consequences. See Cotal-Crespo, 47 F.3d
at 7 (cocaine conspiracy defendants understood consequences of
plea when court advised them that, inter alia, they faced ten-
year mandatory minimum); cf. United States v. Gray, 63 F.3d 57,
60 (1st Cir. 1995) (cocaine conspiracy defendant did not
understand consequences and should have been allowed to withdraw
raise it before oral argument. See United States v. DeMasi, 40
F.3d 1306, 1320 n.14 (1st Cir. 1994).
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plea when court erroneously suggested that ten years was
maximum, not minimum, sentence).
Other factors also weigh in favor of the court's
decision to deny Taylor's motion to withdraw his plea. The
court supportably found that Taylor's proffered reason for
seeking withdrawal was implausible, stemming more from garden-
variety second thoughts and unhappiness with the court's finding
that the substance was over 50 grams of cocaine base--which led
inexorably to the ten-year mandatory minimum--than from any lack
of understanding at the time of the plea.3 Although the court
did not consider the timing of the request to be significant,
the fact that it was made after the trial of Taylor's
codefendants means that if withdrawal were allowed the
government would face the prejudice of an additional trial.
There was a plea agreement, but Taylor does not contend that the
government breached it in any way. Finally, and significantly,
Taylor has never asserted his innocence. The court did not
3
In evaluating the plausibility of the proffered reason, the
district court could also have considered the fact that the
motion to withdraw the plea was one of a number of dubious pro
se filings by Taylor. On appeal, Taylor has continued the same
pattern, filing with this court a pro se document labeled
"Affidavit and Declaration of Protest 'nunc pro tunc.'" To the
extent that this document can be considered a pro se
supplemental brief, raising an argument that his conviction
should be reversed and the indictment should be dismissed for
lack of subject matter jurisdiction, that argument is without
merit.
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abuse its discretion in concluding that Taylor did not establish
a fair and just reason to withdraw his plea.
V. Denial of Taylor's Request for a "Safety Valve" Reduction
Taylor sought relief from his mandatory minimum
sentence in the "safety valve" provision. See 18 U.S.C. §
3553(f); U.S.S.G. § 5C1.2. The district court's denial of that
request was grounded in the fifth of the five safety valve
criteria:
not later than the time of the sentencing
hearing, the defendant has truthfully
provided to the Government all information
and evidence the defendant has concerning
the offense or offenses that were part of
the same course of conduct or of a common
scheme or plan, but the fact that the
defendant has no relevant or useful other
information to provide or that the
Government is already aware of the
information shall not preclude a
determination by the court that the
defendant has complied with this
requirement.
18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(5). The defendant
bears the burden of showing his entitlement to a safety valve
reduction. See United States v. Cadavid, 192 F.3d 230, 239 (1st
Cir. 1999). We review the district court's safety valve
findings for clear error. See United States v. Woods, 210 F.3d
70, 76 (1st Cir. 2000).
A defendant is not required to make the necessary
disclosure in any particular way. See United States v.
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Montanez, 82 F.3d 520, 522 (1st Cir. 1996). What counts is the
substance of the disclosure. The defendant must, by "an
affirmative act of cooperation with the government," United
States v. Wrenn, 66 F.3d 1, 3 (1st Cir. 1995), truthfully
provide all the information he possesses concerning the crime.
There is no evidence in the record that Taylor made the
requisite disclosure. At the sentencing hearing, the prosecutor
represented to the court that there had been only an aborted
proffer session, at which Taylor gave an account that the
government regarded as "absurd." Taylor's attorney, on the
other hand, said that the proffer session "broke down because
Mr. Taylor said that he was not going to talk about anybody's
activity other than his own and that he did not know the people
that were involved because they were much younger than he."
Under either version, Taylor never truthfully told the
government all he knew about the conspiracy.
Taylor nevertheless argued to the district court that
he met the safety valve criteria because apart from the aborted
interview, "the Government never requested [him] to come in and
give a truthful proffer." The district court was correct to
reject that argument. Taylor was given a proffer session and
failed to divulge all the information he possessed concerning
the crime. Because the court did not clearly err in finding
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that Taylor had not proved his entitlement to the safety valve
reduction, Taylor was properly sentenced to the mandatory
minimum of ten years.
VI. Arruda's Challenge to the Jury Instructions
Arruda objected to one sentence in the district court's
jury instructions on the requirements for proving a defendant's
involvement in a conspiracy: "Proof that a defendant willfully
joined in the agreement may be based on evidence of that
defendant's own actions or words." That sentence was similar
to, but differed in one noteworthy respect from, a portion of
Instruction 4.03 of the Pattern Criminal Jury Instructions for
the District Courts of the First Circuit (1998)4: "Proof that
[defendant] willfully joined in the agreement must be based upon
evidence of his/her own words and/or actions." (emphasis
added).
The quoted language from the pattern instruction,
though not found verbatim in any of our cases, is a correct
statement of the law. A conspiracy conviction requires that a
defendant's "membership in the conspiracy be proved on the basis
of his own words and actions (not on the basis of mere
4
As Judge Hornby noted in his Preface to these instructions,
"it bears emphasis that no district judge is required to use the
pattern instructions, and that the Court of Appeals has not in
any way approved the use of a particular instruction."
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association or knowledge of wrongdoing)." United States v.
Cintolo, 818 F.2d 980, 1003 (1st Cir. 1987); see also, e.g.,
United States v. Torres, 965 F.2d 303, 308 (7th Cir. 1992) ("As
a matter of substantive law, membership in a conspiracy depends
on the accused's own acts and words."). Arruda argues that by
using the word "may" instead of "must," the district court
erroneously implied that other types of evidence, such as his
association with the conspirators or his knowledge of their
wrongdoing, could be sufficient to prove that he willfully
joined the conspiracy.
"Jury instructions must be gauged in the context of the
charge as a whole, not in isolation." United States v. Robbio,
186 F.3d 37, 42 (1st Cir. 1999) (internal quotation marks
omitted). Although the word "may" creates an arguable
ambiguity, the court's instructions did not affirmatively
suggest that proof of Arruda's joining the conspiracy could be
based on mere association or knowledge of wrongdoing. Other
portions of the instructions effectively made the point that
Arruda's guilt could only be established by his own words or
actions. The court told the jury that "mere association" does
not establish membership in a conspiracy, that the defendant
must have willfully joined the conspiracy, and that the
government had to prove both intent to agree and intent to
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commit the underlying crime. Most significantly, the court also
stated that
no defendant may be found guilty for the
acts of others unless you find that that
defendant himself engaged in criminal acts.
. . . The fundamental question is whether or
not through acts and statements of his own,
reflected both in those acts and statements
and in the other evidence in this case, the
defendant has been shown beyond a reasonable
doubt to have engaged in the crime that is
alleged.
Those additional instructions cured the possible ambiguity of
the word "may." The charge as a whole correctly informed the
jury that a guilty verdict against Arruda on the conspiracy
charge had to rest on evidence of his own actions or words.
Affirmed.
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