United States v. Bailey

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

-2-
 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.

-3-
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

-4-
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.”

-5-
 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

-6-
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

-7-
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

-8-
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

-9-
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

-10-
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

-11-
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

-12-
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

-13-
(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

-14-
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.

-15-