United States Court of Appeals
For the First Circuit
No. 01-1058
UNITED STATES OF AMERICA,
Appellee,
v.
CLIVE W. BAILEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
Before
Selya and Lipez, Circuit Judges,
and Doumar, Senior District Judge.*
Terry Scott Nagel, for appellant.
Karen L. Goodwin, Assistant United States Attorney, with
whom James B. Farmer, United States Attorney, was on brief, for
appellee.
*
Of the Eastern District of Virginia, sitting by
designation.
November 2, 2001
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DOUMAR, Senior District Judge. Defendant-appellant
Clive Bailey was convicted of conspiracy to possess with intent
to distribute marijuana and of aiding and abetting others to do
the same. 21 U.S.C. § 846 and § 841(a)(1) (1994); 18 U.S.C. §
2 (1994). He was sentenced to 262 months imprisonment. Bailey
appeals his conviction on the ground that the District Court
allowed inadmissible hearsay into his trial, and he appeals his
sentence on the ground that the lower court’s determination of
drug quantity under a preponderance of the evidence standard
elevated his sentence above the five year maximum for
trafficking less than fifty kilograms of marijuana. He claims
that this contravenes the rule laid down in Apprendi v. New
Jersey, 530 U.S. 466 (2000). We affirm the lower court’s
evidentiary rulings and therefore the conviction, but vacate its
application of the sentencing guidelines in light of the rule in
Apprendi and remand the case for re-sentencing consistent with
Apprendi.
I. BACKGROUND
On February 10, 1998, federal agents, pursuant to a
warrant, searched a barrel that had been shipped from Los
Angeles, California, to Springfield, Massachusetts, and found 93
pounds (42.18 kilograms) of marijuana. While this search was in
progress, Maureen Washington came to collect the barrel.
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Following conversations with the agents on the scene, Washington
agreed to cooperate by having agents accompany her to deliver
the barrel to its intended recipient. With two agents hidden in
her van, she drove home where she made a telephone call to Clive
Bailey’s pager, punching in the code “411.” Clive Bailey
arrived within fifteen minutes, approached the van, and opened
the rear door. He fled upon seeing the agents, but was
apprehended. A search of Bailey’s car yielded a pager
displaying the number “411" on it. This pager indicated that
the call originated from Washington’s phone. Two barrels that
were virtually identical to the one with 93 pounds of marijuana
that Washington had come to pick up earlier that day were then
found in Washington’s apartment. While neither of these barrels
contained any drugs, each of them had a distinct smell of
marijuana. Bailey’s palm print was found on the inside surface
of the lid of one of those barrels. Bailey’s defense was that
he had been carrying on a romantic liaison with Washington, and
that the “411" page was simply a code relating to that social
relationship.
At trial, the government introduced three bills of
lading and three delivery receipts, arguing that those documents
linked the three barrels in the case to Bailey. The bill of
lading for the barrel that was seized on February 10, 1998 was
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dated February 1, 1998 and stated that the barrel was being sent
from Crown Fashion in Los Angeles, California, to Mazie’s
Fashion and Accessories in Springfield, Massachusetts (Mazie’s
was later determined to be a fictitious company), and would be
picked up at the dock. The delivery receipt for this barrel,
signed by “Maureen Washington,” stated that the barrel weighed
100 pounds. That barrel in fact contained 93 pounds of
marijuana.
Another bill of lading, dated December 29, 1997, also
described a barrel shipment from Crown Fashion to Mazie’s
Fashion. Like the earlier bill, this bill of lading stated that
the barrel would be picked up at the dock. The delivery receipt
corresponding to this bill of lading revealed that the barrel
weighed 110 pounds and that it was paid and signed for by
“Maureen Washington” on January 6, 1998.
A third bill of lading dated October 15, 1997,
described a barrel shipment from Steinberg Originals in Los
Angeles, California, to Bay State Work Shop in Springfield,
Massachusetts, also to be picked up at the dock. The delivery
receipt corresponding to this bill of lading stated that the
barrel weighed 500 pounds and was signed for by “Maureen
Washington.”
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A loading dock employee, Bonnie Susan Clark, was
present when Maureen Washington picked up and paid for the
barrel on February 10, the day that the agents intervened and
Washington brought them to Clive Bailey. Clark recognized
Washington as the person who picked up the October, 1997 and
January, 1998 barrels. She could not, however, identify
Washington in court.
Additionally, Clark remembered receiving a call shortly
before the February, 1998 shipment, from a man who wanted to
know if her company had received a shipment for Mazie’s.
Records showed that a call had been placed from Bailey’s phone
on February 6, 1998, four days before Washington came to pick up
the barrel addressed to Mazie’s with 93 pounds of marijuana.
The government argued that the phone caller with an interest in
the Mazie’s delivery was Bailey himself.
Finally, the government introduced evidence that Bailey
had a “connection” in California, one Seaford Colley, a
California resident to whom several calls were made from
Bailey’s phone. The government also introduced a Western Union
receipt showing that on June 23, 1997, Bailey had wired $2,500
to Colley in California.
In sum, the three barrels looked the same, they all
came from California, and they were all signed for by “Maureen
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Washington.” One shipment even bore the same fictitious name
and address for the consignee as the one seized on February 10.
The two barrels found in Washington’s home smelled of marijuana,
and one had Bailey’s palm print inside of it. Phone calls were
made from Bailey’s phone to the loading dock in Massachusetts
four days prior to the shipment that was seized and to Seaford
Colley in California, along with a wire transfer of $2,500 to
Colley.
II. THE EVIDENTIARY ISSUE
Washington disappeared prior to Bailey’s trial. At
trial, an agent testified to the actions Washington took
following her agreement to cooperate. The agent testified that
“after she [Washington] agreed to deliver [the barrel] to the
intended recipient, she drove the van with two of our task force
agents hiding in the back of the van to her residence.” He
further testified that she made a phone call to the “intended
recipient” and punched in the code “411.” Also at trial, the
government introduced evidence that Bailey drove an expensive
car yet was unemployed and had no other visible source of
income. Bailey’s attorney objected to the admission of this
evidence, and Bailey now appeals.
On appeal, the district court’s denial of Bailey’s
evidentiary objection on hearsay grounds is reviewed for abuse
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of discretion. United States v. Barone, 114 F.3d 1284, 1293
(1st Cir. 1997). Out of court statements offered not for their
truth but “offered only for context,” do not constitute hearsay.
United States v. Catano, 65 F.3d 219, 224 (1st Cir. 1995).
For example, an out-of-court statement might be
offered to show that the declarant had certain
information, or entertained a specific belief, or
spoke a particular language; or it might be offered to
show the effect of the words spoken on the listener
(e.g., to supply a motive for the listener's action).
See generally 5 Weinstein's Federal Evidence §
801.03[4], at 801-14.1 to 801-15 (2d ed.1999).
United States v. Murphy 193 F.3d 1, 6 n.2 (1st Cir. 1999).
In this case, the agent’s testimony was not hearsay
because it described conduct and provided context; it did not
introduce statements for the truth of the matters asserted. The
agent described how Washington brought his colleagues and
himself to the rendevous point and made a phone call summoning
the “intended recipient.” This Court has held that directions
from one individual to another, or statements offered only for
context, do not constitute hearsay. Catano, 65 F.3d at 224.
Washington’s making a phone call, and her driving the agents to
the rendevous, was non-assertive conduct and outside the scope
of the hearsay rule. United States v. Mendez-deJesus, 85 F.3d
1, 3 n. 2 (1st Cir. 1996). She did not orally identify Bailey;
she summoned him by sending a page. The agent did not testify
that Washington pointed at Bailey or in any way made an out of
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court declaration regarding his identity. In sum, this was not
hearsay, so the district court did not abuse its discretion in
admitting the testimony.
Regarding the testimony about Bailey’s car and
finances, at trial the government had an FBI agent testify that
1) to his knowledge, Bailey was unemployed, but 2) he had
“certain fixed expenses,” which included monthly payments on two
car loans and on child support. Over Bailey’s objection, the
agent also testified that Bailey had purchased a Jeep Cherokee
in July, 1996 and that it cost $30,000, and that his loan
payments ranged from $700 to $1500.
According to the record, Bailey’s objection to this
evidence failed to state a ground. This court has held that
“objections to evidentiary proffers must be reasonably specific
in order to preserve a right to appellate review.” United
States v. Holmquist, 36 F.3d 154, 168 (1st Cir. 1994). In other
words, a litigant is obliged to "call [his specific objection]
to the attention of the trial judge, so as to alert [the judge]
to the proper course of action." Id. (quoting Notes of the
Advisory Committee on Evidence Rule 103(a)). A lack of
specificity bars the party allegedly aggrieved by the admission
of the evidence from raising more particularized points for the
first time on appeal. Had Bailey asserted hearsay as a basis
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during the trial, the government likely could have cured the
objection by introducing business records of the car expenses.
The result is a review for plain error, Id., at 168 n.15, which
requires “errors so shocking that they seriously affect the
fundamental fairness and basic integrity of the proceedings
conducted below,” or, put another way, those errors which must
be noticed in order to prevent a “clear miscarriage of justice.”
Id.
In this case, the officer’s testimony was duplicative
of other documentary evidence, the substance of which Bailey has
not contested. Testimony that is cumulative in nature and
limited in scope cannot constitute plain error. Id. Moreover,
this Court has held that “evidence that the defendant possessed
or controlled substantial sums of money from unexplained sources
is relevant in a prosecution for drug trafficking.” United
States v. Figueroa, 976 F.2d 1446, 1454 (1st Cir. 1992). It
therefore could not have been plain error to admit this relevant
and factually uncontested evidence into the trial. Therefore,
the district court’s evidentiary rulings are affirmed.
III. THE APPRENDI ERROR
Turning to the Apprendi issue, appellant’s counsel
indicated that if for any reason the Court did not agree with
his contention that evidentiary errors in the district court
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warranted a reversal and new trial, then the Court should remand
for re-sentencing in light of the Apprendi violation that
occurred. We think the defendant’s position on this is well
founded.
For its part, the government admitted both in briefs
and at oral argument that an Apprendi error occurred at trial,
but argues that it was harmless. We agree with its admission
that the Defendant was sentenced in violation of the rule in
Apprendi. We disagree, however, with its argument that the
error was harmless, and for that reason we grant appellant’s
request by vacating the sentence and remanding for re-
sentencing.
At the close of evidence in Bailey’s trial, Bailey
requested an instruction requiring the jury to determine the
weight of drugs attributable to his conduct. The court declined
to give this instruction because, at the time of trial (which
was prior to the Apprendi decision), circuit precedent indicated
that quantity was a factor only to be determined at sentencing.
The court actually instructed the jury that it “need not be
concerned with quantity.” The jury returned a guilty verdict.
Apprendi was decided between the date of verdict and
the date of sentencing. Over defense objections that the jury
had not attributed a drug weight to Bailey’s conduct, the court
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found that Bailey was responsible for 319.9 kilograms of
marijuana. The statutory maximum for this weight of drugs
triggered an increase in Bailey’s offense level under the Career
Offender guidelines from 17 to 34. U.S.S.G. § 4B1.1. The Court
then imposed a sentence of 262 months from the applicable 262 to
327 month range.
In Apprendi, the Supreme Court held that “other than
the fact of prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi, 530 U.S. at 490. Under 21 U.S.C. § 841(b)(1)(D), five
years (60 months) is the maximum penalty for a violation of 21
U.S.C. § 841(a)(1) involving less than fifty kilograms of
marijuana. According to our recent opinion, this five year
penalty is the default statutory maximum for a violation of §
841(a)(1) involving less than fifty kilograms of marijuana.
United States v. Duarte, 246 F.3d 56, 61 (1st Cir. 2001).
Bailey’s 262 month sentence obviously exceeds this default
statutory maximum. Even if the statutory maximum sentences for
each of the three counts of his conviction were run
consecutively, see Duarte, 246 F.3d at 62, n.4, Bailey’s total
statutory maximum sentence would only equal 180 months, not 262
months, because each count involved less than fifty kilograms of
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marijuana under Apprendi and Duarte. Because Bailey’s sentence
was arrived at largely from the lower court’s drug weight
calculations and not from the jury’s verdict, an Apprendi error
occurred. Unless the Apprendi error is harmless, as the
government urges us to find, any sentence imposed in excess of
the five-year default statutory maximum for a crime involving
less than fifty kilograms of marijuana would have to be set
aside. Neder v. United States, 527 U.S. 1, 17 (1999).
Defining harmless error, the Supreme Court has held
that “where a reviewing court concludes beyond a reasonable
doubt that the omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would have
been the same absent the error,” an erroneous instruction
omitting the requirement that the jury find an element of the
offense beyond a reasonable doubt is harmless. Id. This is a
finding that we cannot make in this case. The error cannot be
harmless where, as here, the defendant has contested the omitted
element and the evidence is sufficient to support a contrary
finding. Id. at 19.
The government contends that the evidence compelled the
jury to attribute at least 17.2 pounds of marijuana to Bailey
from the two empty barrels discovered in Washington’s apartment.
In its view, that weight could take Bailey over the 110.2 pound
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(50 kilogram) threshold of 21 U.S.C. § 841(b)(1)(C) and make his
sentence conform with Apprendi because in that case the
sentencing court would calculate his statutory maximum as three
consecutive 240 month sentences. U.S.S.G. § 5G1.2; see Duarte,
246 F.3d at 62 n.4. While a judge could permissibly find those
facts by a preponderance of the evidence, and a jury could
permissibly find them beyond a reasonable doubt, it is not so
clear that a reasonable jury must have found them beyond a
reasonable doubt. The two empty barrels were found not in
Bailey’s apartment, but in Washington’s. Accepting the fact
that the “411" call to Bailey was a signal summoning Bailey to
pick up the drug shipments, and that all the shipping documents
establish a common mode of operation throughout the conspiracy,
then why were those barrels not removed from Washington’s
possession once the marijuana was removed? How much marijuana
was in the barrels? Obviously there was some, and the palm
print on the inside of the lid ties Bailey to those barrels.
Most important, though, is the government’s inability
to prove how much marijuana was in the two barrels that simply
smelled of marijuana. To hold that a reasonable jury would have
to find that they contained more than 17.2 pounds beyond a
reasonable doubt would be arbitrary based on the evidence
presented. The government even admitted at oral argument that
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it could not prove that the bills of lading offered into
evidence corresponded to the two barrels discovered in
Washington’s apartment, so even its circumstantial evidence of
the barrels’ weight when shipped is problematic.
Moreover, who was to say how much other material was
in the barrels other than marijuana? To say that the weight of
drugs properly attributable to Bailey was supported by
overwhelming evidence, as we must in order to find harmless
error, is simply not possible given the facts of this case.
IV. CONCLUSION
In sum, while we affirm the lower court’s denial of
Bailey’s evidentiary objections, we vacate the lower court’s
sentence on the basis of an Apprendi error that was not
harmless. Therefore, Bailey is to be re-sentenced consistently
with Apprendi.
The defendant’s conviction is affirmed, the sentence
is vacated, and the case is remanded for re-sentencing as
provided herein.
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