United States v. Wall

United States Court of Appeals
For the First Circuit

Nos. 02-1925
02-1926

UNITED STATES OF AMERICA,

Appellee,

v.

MITCHELL WALL,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Howard, Circuit Judge.

Tina Schneider, by Appointment of the Court, for appellant.
Mitchell Wall on brief pro se.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.

November 18, 2003
 COFFIN, Senior Circuit Judge. Appellant Mitchell Wall raises

several challenges to his convictions and sentence following a pair

of jury trials on drug offenses charged in two separate

indictments, one alleging cocaine distribution resulting in a death

and the other alleging a scheme to unlawfully obtain and distribute

oxycodone.1 He claims, inter alia, that his Sixth Amendment right

to counsel was violated by admission into evidence of a jailhouse

conversation with a fellow inmate and that the restitution order in

the oxycodone case was improper. We affirm the court's judgments

on all issues.

I. Background

We briefly summarize certain background facts as the jury in

the cocaine trial could have found them, elaborating further on the

underlying events and the evidence presented only as necessary in

our discussion of particular issues.

Early on the morning of September 4, 1999, Loretta Fortin was

pronounced dead of an apparent drug overdose. She and a number of

other individuals, including appellant Wall, had been drinking and

using various forms of cocaine through the night in Wall's

apartment in Biddeford, Maine. The previous afternoon, Fortin also

had taken ten to fifteen Tylenol with codeine pills, and toxicology

tests performed after her death showed low levels of Valium in her

blood as well. Others present at Wall's apartment that night

1
The two cases were consolidated for appeal.

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testified that Wall left the apartment twice to obtain cocaine,

that Wall also bought cocaine with his own and others' money from

two young men who came to the apartment,2 and that on one occasion

he injected Fortin with a cocaine mixture. At about 4 a.m., after

announcing that she did not feel well, Fortin went outside for

fresh air and, moments later, collapsed. Efforts to revive her

failed, the police were called, and the others who had been present

in the apartment dispersed. During a search of Wall's apartment

later that afternoon, police officers found beer cans, syringes,

spoons and other drug paraphernalia.

Wall subsequently was charged with distributing cocaine, the

use of which resulted in the death of another, after having been

convicted of a felony drug trafficking offense, in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(C). At the same time, a separate

three-count indictment was issued charging him with participating

in a scheme to defraud Medicaid in connection with an alleged

conspiracy to acquire and distribute oxycodone, also known as

Oxycontin. See 18 U.S.C. § 1347, 21 U.S.C. §§ 846, 841(b)(1)(C).

He was found guilty of all charges in both cases.

The government's evidence included testimony from a fellow

inmate, Brian Griffin, who reported statements made to him by

appellant when both were detained at the Cumberland County Jail in

2
Wall denied that he brought cocaine back to the apartment
and said that two teenagers from Old Orchard Beach came to his
apartment and sold drugs to the group.

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September 2000. Griffin was charged in a related oxycodone

conspiracy and in May 2000 had signed a plea agreement requiring

him to cooperate with the government. Griffin initiated

conversation with appellant after hearing and recognizing Wall's

name during a screening in the jail's medical unit. Despite their

related criminal enterprises, Griffin had no previous direct

contact with Wall and did not know him by sight. Wall

unsuccessfully sought to suppress the statements that Griffin

reported, including an admission by Wall that he had injected

Fortin with cocaine.

On appeal, Wall renews his challenge to the admission of

Griffin's testimony on their jailhouse conversations. He also

asserts the following additional claims of error in the cocaine

distribution case: (1) that the court improperly denied his motion

for new trial based on new information that $115 in cash was not

seized from his apartment, contrary to testimony of a government

witness; (2) that the court improperly instructed the jury on

causation in relation to Fortin's death; and (3) that the evidence

was insufficient to establish that Fortin's death resulted from the

use of cocaine that Wall distributed. Wall also contends that the

court's restitution order in the oxycodone case erroneously

assessed the full amount of the loss on him and instead should have

specifically imposed joint and several liability with his co-

defendants. In a pro se supplemental brief, he additionally

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challenges the use of his prior convictions in setting his

sentence.

For the reasons discussed below, we find no error in the

court's disposition of either case.

II. Discussion

A. Jailhouse Statements

The Sixth Amendment bars the use at trial of incriminating

statements that law enforcement officers "deliberately elicit[]"

from a defendant outside counsel's presence once the right to

counsel has attached. See Massiah v. United States, 377 U.S. 201,

206 (1964). Appellant argues that his statements to Griffin should

have been excluded under this precedent because Griffin was acting

as a government agent when he initiated the jailhouse conversations

with Wall.3

We disagree that constitutional error occurred for the same

reasons expressed by the district court in its thoughtful response

to appellant's motion to suppress, in which the court fully

considered both the relevant legal principles and the particular

factual circumstances. We find it unnecessary to retread the same

ground, and instead simply note here our accord with the district

court's pertinent conclusions: that Griffin was acting in his own

interest and not at the behest of the government when he engaged

3
The two men conversed at the jail twice within about a week.
The second conversation was more extended and included Wall's
incriminating statements.

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appellant in conversation; that the government neither deliberately

created nor exploited circumstances that would lead to

incriminating statements; and that the government did not "focus"

Griffin's attention on appellant, see United States v. LaBare, 191

F.3d 60, 65 (1st Cir. 1999). In short, the government played no

role in the happenstance meeting between the two men, and nothing

in the government's prior interactions with Griffin encouraged him

to elicit information from Wall on the government's behalf. To the

contrary, Griffin had been told not to communicate with anyone

involved in his case,4 and the government agents believed

(incorrectly) that a segregation order preventing such an

opportunity was in effect. In these circumstances, no Sixth

Amendment violation occurred.

B. Motion for New Trial

Approximately three weeks after the conclusion of the cocaine

trial, government counsel discovered that $115 in cash that had

been admitted into evidence at appellant's trial was not, in fact,

seized from his apartment, as a police officer had testified. The

cash instead had been found at a different apartment on the same

street. Defense counsel immediately was notified of the error.

4
Although Griffin and Wall were charged in two separate
oxycodone conspiracies, Griffin testified that he thought they were
charged in the same scheme, and it is undisputed that Griffin was
a participant in both conspiracies. Thus, Griffin's decision to
converse with Wall was in direct conflict with the government's
instructions.

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Wall shortly thereafter moved for a new trial, claiming that he was

denied a fair trial because the government, in effect, used false

evidence to obtain a conviction.5

In a February 2002 order, the district court denied the

request for a new trial, finding that both the police officer and

prosecutor had acted in good faith, albeit erroneously, in

identifying Wall's apartment as the source of the money. The court

further found that the currency "was of little significance, if

any, on the ultimate questions of whether distribution of cocaine

occurred and whether Defendant committed the acts necessary to

constitute distribution." Consequently, the court found that the

mistake did not undermine the jury's verdict.

To obtain a new trial based on newly discovered evidence

subject to disclosure under Brady v. Maryland, 373 U.S. 83 (1963),6

a defendant must show both that the evidence is material and that

5
The $115 was the subject of two brief questions asked of a
Biddeford police officer, who identified the money and said it was
found in the living room of Wall's apartment. The primary reference
to the currency occurred during the prosecutor's rebuttal, when she
urged the jury to consider all of the evidence of drug distribution
found in Wall's apartment:

And there was money, remember there was $115 worth of
money sitting [i]n Mitchell Wall's living room. Now the
kids from Old Orchard were long gone. So think about
what that money means.
6
Under Brady, the government is required "to produce to
defendants exculpatory and impeachment evidence that is in its
custody, possession, and control," United States v. Josleyn, 206
F.3d 144, 151 (lst Cir. 2000).

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there is a "reasonable probability" that it would produce an

acquittal upon retrial. See United States v. Josleyn, 206 F.3d

144, 151 (lst Cir. 2000).7 Appellate review of a district court's

ruling on a motion for new trial is for manifest abuse of

discretion only. Id. We find no such error here.

Wall's guilt or innocence rested on whether he distributed the

cocaine that resulted in Fortin's death, not on his receipt or

possession of cash. His role in providing cocaine to the others in

his apartment that night was the subject of extensive other

testimony and evidence. Three of those present – as well as Wall

himself – testified that he obtained cocaine for the group to use.8

7
These two elements are really two sides of the same coin.
As we noted in Josleyn, 206 F.3d at 151, evidence is "material" in
the Brady context "only if there is a 'reasonable probability' that
the evidence would have changed the result."

A defendant also must demonstrate that the evidence was
unknown or unavailable at the time of trial and that the failure to
discover the evidence was not due to a lack of diligence on the
defendant's part. Id. It is undisputed that these elements were
satisfied in this case.
8
The testimony linked Wall to the acquisition, preparation
and injection of the cocaine used by the group. For example, Debra
Leach testified that Wall left the apartment at one point, after
Armand Fortier gave him $50, and returned with a baggy of cocaine.
According to her testimony, he later took money from Richard
Powers, left briefly and again returned with cocaine in a baggy.
Fortier, who testified that he gave Wall money more than once that
night to buy cocaine, recalled seeing Wall prepare cocaine powder
so that it could be smoked and watched Wall inject himself with the
drug. Leach stated that she gave an injection of cocaine to
Fortin, and then Wall mixed more of the drug and injected Fortin
with it himself. Leach also testified that Wall bought cocaine
from two teenagers who came into the apartment late that night.
Powers testified that Wall prepared cocaine for him and Fortier

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In addition, drug paraphernalia with cocaine residue was found in

Wall's apartment, corroborating the witness testimony.

We therefore agree with the district court that, in the

context of the overall case, the evidence concerning the $115 was

of minor significance. Although it allowed the prosecutor to

suggest that Wall provided the drugs since he had an accumulation

of cash, there was much testimony about the exchange of cash for

cocaine at Wall's apartment. That the particular $115 shown to the

jury was in fact seized elsewhere was thus of little consequence.

In light of the extensive, much more damaging direct evidence of

Wall's role in securing cocaine, the district court did not err in

concluding that the evidence concerning the $115 was not material

to the jury's verdict.

Likewise, we reject appellant's suggestion that knowledge of

the misrepresentation would materially impact the jury's assessment

of the police officer's credibility, perhaps casting doubt on

whether the drug-related items he identified also were mistakenly

attributed to a search of Wall's home. The other items were

photographed where they were found and their location thus was

after he, Powers, gave money to "the kid," who had been told by
Wall to "stoke them up, set them up." Griffin testified that Wall
told him that he supplied the cocaine used that night and that he
injected Fortin. At trial, however, Wall denied injecting Fortin,
but admitted on cross-examination that he agreed to get cocaine for
the others. He also said, however, that he did not actually
provide the cocaine to the others; they got the drug directly from
the two teenagers who came to Wall's apartment.

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substantiated; the misinformation about the $115 would therefore

not affect the officer's credibility on the other evidence.

We reject, finally, appellant's assertion that the court

abused its discretion in refusing to convene an evidentiary hearing

on his new trial motion, specifically on the question of the

testifying officer's good faith. See United States v. Rivera-

Alicea, 205 F.3d 480, 487 (lst Cir. 2000) (abuse of discretion

standard applies to review of refusal to hold evidentiary hearing

on motions in criminal case). Appellant acknowledges that

"evidentiary hearings on motions in criminal cases are the

exception, not the rule," id., and we are satisfied that this was

not the unusual case warranting such a hearing. The district court

had observed the officer at trial, see United States v. Montilla-

Rivera, 115 F.3d 1060, 1067 (lst Cir. 1997), and the fact that the

officer erred in good faith was not implausible given the

similarity between Wall's address and the actual location where the

currency was seized. Particularly given the limited significance

of the $115, the court was well within its discretion to resolve

the motion without a hearing.

C. Causation Instructions and Ineffective Assistance of

Counsel

Appellant makes a multi-pronged attack on the court's charge

to the jury on the causal relationship between his alleged

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distribution of cocaine and Fortin's death. The court instructed

the jury as follows:

And I instruct you that for you to find that Loretta
Fortin's death resulted from the use of cocaine that the
defendant distributed, you must find that the government
has proven beyond a reasonable doubt that Loretta Fortin
died as a consequence of her use of the cocaine that the
defendant distributed on or about the dates alleged in
the indictment.

I instruct you that you must find the evidence
establishes beyond a reasonable doubt that the use of
that cocaine played a significant causal role in bringing
about the death of Loretta Fortin.

And I instruct you that the government does not have
to prove that Loretta Fortin's death from the use of the
cocaine was foreseeable for the defendant or for the
others.

Appellant contends that this charge suffered from three specific

flaws: first, although he specifically requested the "significant

causal role" language, he now claims that this instruction

understated the government's burden of proof; second, he contends

that the court should have instructed the jurors that, to convict

him, they needed to find that there was no intervening or

superseding cause of death; and, finally, he asserts that the

wording of the instruction in effect required the jury to find

causation. Appellant additionally argues that his trial counsel's

acquiescence to the causation instructions constituted ineffective

assistance of counsel and thus was a Sixth Amendment violation.

We briefly address the asserted flaws below, but note at the

outset that neither the claims of instructional error nor the

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ineffective assistance claim are properly before us. The causation

charge as given by the trial judge was requested and specifically

approved by defense counsel. Indeed, at a sidebar conference held

after the jury charge, counsel twice confirmed upon inquiry from

the judge that he had "[n]o objection and no additional requests."

Having directly bypassed an offered opportunity to challenge and

perhaps modify the instructions, appellant waived any right to

object to them on appeal. See United States v. Mitchell, 85 F.3d

800, 807 (lst Cir. 1996) (discussing difference between "waiver"

and "forfeiture" and noting that only the latter is subject to

plain error review).

The claim of ineffective assistance of counsel, meanwhile,

runs up against our longstanding rule that "fact-specific claims of

ineffective assistance cannot make their debut on direct review of

criminal convictions, but, rather, must originally be presented to,

and acted upon by, the trial court," United States v. Mala, 7 F.3d

1058, 1063 (lst Cir. 1993); see also United States v. Martinez-

Vargas, 321 F.3d 245, 251 (lst Cir. 2003). Appellant argues that

this case is unusual and worthy of consideration at this juncture

because there was "no possible tactical reason" for trial counsel

to request the "significant causal role" language, and the record

is thus sufficiently developed to permit effective review. See

Mala, 7 F.3d at 1063. We disagree, believing, as our discussion

below indicates, that a tactical reason exists, and that this case,

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like most, would thus benefit from the trial court's perspective on

the attorney's performance and its impact. See id. In any event,

our discussion infra of appellant's specific instructional

complaints strongly suggests that, were we to reach the issue of

counsel's competence, we inevitably would find no constitutional

error.

Turning to appellant's specific complaints, we first address

his claim that the court diluted the government's burden of proof

by asking the jury to determine whether cocaine that he distributed

"played a significant causal role in bringing about the death of

Loretta Fortin." Under the statute, an enhanced sentence must be

imposed on a defendant who commits a drug offense "if death or

serious bodily injury results from the use of such substance," 21

U.S.C. § 841(b)(1)(C). We have described the necessary proof to be

that "a defendant deals drugs and a user of those drugs dies as a

result," United States v. Soler, 275 F.3d 146, 153 (lst Cir. 2002).

Both the statute and our precedent thus link the jury's finding

simply to whether death was a result of the offense; an instruction

requiring jurors to find a "significant" causal relationship

suggests a higher, rather than lower, burden of proof. Even if we

were to review for plain error, therefore, appellant's contention

would be unavailing.

We easily can dispose of appellant's second complaint about

this portion of the instruction, which is that the opening words,

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"I instruct you that you must find" directed the jurors to reach

the conclusion contained in the second part of the sentence, i.e.,

that "the evidence establishes beyond a reasonable doubt that the

use of that cocaine played a significant causal role in bringing

about the death of Loretta Fortin." In context, it is clear that

the court was advising the jurors that, in order to convict, they

needed to conclude beyond a reasonable doubt that the evidence

supported the specified causal relationship.

Appellant's remaining point, that the court improperly omitted

an intervening cause instruction, also merits little response.

Although he points to the other drugs and alcohol ingested by

Fortin, appellant identifies no evidence in the record that would

permit a conclusion that another substance, rather than cocaine,

was responsible for her death. The medical examiner testified

that, in his opinion, the level of cocaine in Fortin's system was

enough by itself to kill her. He further stated that none of the

other substances she had consumed was at a level sufficient to

cause her death, and it was "very unlikely" that death would have

resulted from only the combination of alcohol, codeine and valium.

On this record, the failure to give an intervening cause

instruction was not plain error.

D. Sufficiency of the evidence on causation

Recognizing that a defendant faces a heavy burden in

challenging the sufficiency of the evidence, see, e.g., United

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States v. Scharon, 187 F.3d 17, 21 (lst Cir. 1999), appellant

nonetheless argues that the record does not support the jury's

finding that Fortin's death resulted from the use of cocaine that

he distributed. In particular, he contends that the medical

evidence does not show that cocaine, rather than the other

substances, triggered her death.

Our previous discussion of the medical examiner's testimony

largely suffices to put this contention to rest as well. Although

both the medical examiner and a toxicologist identified Fortin's

cause of death as "acute multiple drug poisoning," the medical

examiner's explanation of the likely potency of the various

substances permitted the jury to conclude that the cocaine was the

significant element in the mix. Indeed, the medical examiner

explicitly stated that the cocaine was "the most important or key

drug," and, when asked by the prosecutor if the level of cocaine

found in her blood "could stand alone as the cause of [Fortin's]

death," he replied affirmatively, assuming that the surrounding

circumstances were identical. This was a sufficient basis for the

jury's verdict.

E. The Restitution Order

Wall next contends that the district court exceeded its

statutory authority in ordering him to pay restitution of

$6,109.89, the total charged to Medicaid in the oxycodone fraud,

without specifying that his liability is joint and several with

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other participants in the fraud. He acknowledges sole

responsibility for transactions totaling $2,029.97, but argues that

the restitution order must be modified to reflect that he shares

liability for the remaining $4,079.92 with his co-defendants.

Without such limitation, Wall contends that the restitution order

would impermissibly allow recovery in excess of Medicaid's actual

loss and would deny him credit for amounts paid by the others.

The government agrees that it may recover no more than the

amount of the total loss, but asserts that no further court action

is necessary because the limit on Wall's liability is implicit in

the statutory scheme and explicit in caselaw. Under 18 U.S.C. §

3664(h), a court issuing a restitution order is permitted to

apportion liability among defendants according to culpability or

capacity to pay, or, in the alternative, to make each defendant

liable for the full amount of restitution by imposing joint and

several liability. See United States v. Scott, 270 F.3d 30, 52

(lst Cir. 2001) (quoting legislative history stating that court has

"'the discretion either to make multiple defendants jointly and

severally liable . . . or to apportion the restitution order among

the various defendants'"). It is well established, however, that

"the victim may recover no more than the total loss, the

implication [being] that each defendant's liability ends when the

victim is made whole," id.

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 We think the only plausible view of the record is that the

district court intended to impose joint and several liability on

Wall for the full amount of restitution. His attorney specifically

had requested such an approach, there was no objection from the

government, and no questioning by the court on this issue. See

generally id. at 53 ("natural reading" of the restitution order

within the context of the statute was that liability would be a

form of joint and several); United States v. Trigg, 119 F.3d 493,

501 (7th Cir. 1997) ("We do not believe . . . that it is plausible

to read the district court's [restitution] orders in any other

way.").

Moreover, although the court did not check the box on its

judgment form designating the liability as joint and several, its

comments during the sentencing hearing reflect an assumption that

appellant's obligation to pay was to be shared with others. In

urging the government to eliminate a challenged amount of about

$1,200 from its restitution request, the court noted that that debt

would in all likelihood be discharged by others:

We have numerous co-defendants who are already
sentenced to pay that amount. We have an extremely
remote likelihood that this defendant is ever going to
make any restitution . . . .

With the nature of the order this clear, we decline to extend

the proceedings by remanding for a technical clarification. We

urge district courts in the future, however, to avoid such issues

by stating "with more specificity than was done in this case the

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precise contours of the arrangement," Trigg, 119 F.3d at 501. A

judgment that specified joint and several liability, up to the

maximum amount of the loss, would have eliminated appellant's

uncertainty (and basis for appeal) and provided guidance to those

administering the various related restitution orders. An explicit

notation would serve as notice that appellant's obligation may be

discharged in part by others' payments, information that might

prevent excessive recovery. See Scott, 270 F.3d at 53 (preferable

for district courts "to refer expressly to the limit placed on the

government's total recovery").

We therefore affirm the district court's restitution order,

which we construe to impose joint and several liability up to the

designated total loss of $6,109.89.9 See id. (similarly affirming

a restitution order "on our view that its natural reading is as we

have described").

F. Pro se Claims

Appellant asserts that certain of his prior state law

convictions based on guilty pleas should not have been used to

calculate his sentence in these cases because he was not warned of

such collateral consequences at the time he entered his pleas. It

is well established that this is not a viable claim. See Custis v.

United States, 511 U.S. 485, 493-97 (1994) (validity of prior state

9
As noted earlier, a portion of that loss – $2.029.97 – is
solely appellant's responsibility.

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convictions may be attacked in federal sentencing proceedings only

if grounded on deprivation of right to counsel); Brackett v. United

States, 270 F.3d 60, 65 (lst Cir. 2001).

III. Conclusion

As our discussion makes clear, none of appellant's substantive

complaints casts doubt on the jury's judgment. We therefore affirm

his convictions. We also affirm the court's restitution order,

clarifying that it imposes joint and several liability on

appellant, up to the full amount of the determined loss, $6,109.89.

Affirmed.

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