United States Court of Appeals
For the First Circuit
No. 02-1248
UNITED STATES OF AMERICA,
Appellee,
v.
JEROME CAPELTON, a/k/a ANTHONY COLEMAN,
Defendant, Appellant.
No. 02-1460
UNITED STATES OF AMERICA,
Appellee,
v.
GARY WHITE,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael Ponsor, U.S. District Judge]
Before
Selya, Circuit Judge,
R. Arnold, Senior Circuit Judge,*
and Lipez, Circuit Judge.
*
Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Alan Jay Black for appellant Jerome Capelton.
Bernard T. O'Connor, Jr. for appellant Gary White.
Daniel S. Goodman, U.S. Department of Justice, with whom
Michael J. Sullivan, United States Attorney, and Todd E. Newhouse,
Assistant United States Attorney were on brief for appellee.
November 26, 2003
LIPEZ, Circuit Judge. On September 21, 2000, a grand
jury returned a ten-count indictment against defendants Jerome
Capelton and Gary White. The grand jury indicted White on nine
counts of illicit drug activity, including one count of conspiracy
to possess with intent to distribute cocaine, one count of
distribution and possession with intent to distribute cocaine
powder, and seven counts of distribution and possession with intent
to distribute cocaine base. Capelton was also charged with the
conspiracy count, and additionally indicted on three counts of
actual distribution of cocaine base (two of which were charged
against White as well).
The district court denied Capelton's pre-trial motions to
1) suppress evidence and statements obtained by law enforcement,
and 2) sever the proceedings into separate trials for each
defendant. The trial commenced on September 10, 2001. The
proceedings were briefly halted in response to the events of
September 11, but the trial resumed on September 13 and concluded
on September 26. After the case was submitted, the jury convicted
the defendants of all counts in the indictment. The court
sentenced Capelton to a term of 360 months of imprisonment and five
years of supervised release, and sentenced White to a term of 292
months and five years of supervised release.
The defendants filed timely appeals from their
convictions and sentences, raising a plethora of challenges to the
-3-
district court's case management, evidentiary rulings, and
sentencing determinations. After a careful review of the record,
we find no basis for overturning the defendants' convictions or
vacating their sentences.
I.
At trial, the government portrayed Capelton and White as
links in a conspiracy to distribute cocaine powder and cocaine base
over the period from December 21, 1999 to August 23, 2000.1 The
inner-workings of the conspiracy were exposed in an elaborate sting
operation orchestrated by undercover police officer Alan Fisher of
the Chicopee, Massachusetts police department, and aided by the
Drug Enforcement Administration (DEA). Fisher launched the
operation by contacting Christopher Weeks, a cooperating informant
with whom he had worked on several occasions in the past. Weeks,
who was incarcerated with White in the Ludlow House of Correction
in mid-1999, introduced the officer to White on December 7, 1999.
Over the conspiratorial period alleged in the indictment, Fisher
purchased cocaine from White on numerous occasions. On December
21, White sold Fisher half an ounce of powder cocaine for $500.
Two weeks later, Fisher purchased four ounces of crack cocaine for
$4,000. Fisher also arranged drug transactions with White on March
17, March 24, and May 7 for one ounce of crack cocaine ($1,000),
1
We present facts here to convey a general impression of the
case. We provide additional facts where they are pertinent to the
legal analysis.
-4-
5.5 ounces of crack cocaine ($5,000), and five ounces of crack
cocaine ($4,800) respectively.
White's modus operandi was established from the early
stages of the conspiracy. He acted strictly as a middleman, and
kept no drugs, money, weapons, or drug paraphernalia on his person
or in his residence. When Fisher expressed an interest in
purchasing a specified quantity of cocaine, White contacted various
suppliers with whom he associated, obtained the requested quantity,
and conveyed the drugs to Fisher. Capelton entered the conspiracy
as White's primary drug supplier after the May 7 transaction. On
June 2, 2000, Capelton supplied White with ten ounces of crack
cocaine that Fisher purchased for $9,000. Fisher purchased another
$6,000 worth of crack cocaine from Capelton through White on July
24, and bought 5.5 ounces of crack cocaine from the defendants on
August 23, 2000.
After the August 23 transaction, Capelton purchased some
gasoline for his car, picked up two passengers in a parking lot,
and started driving south on Route 91 in Connecticut. DEA agents,
who had been following Capelton, contacted the Connecticut State
Police and asked them to pull Capelton over. They did so after he
changed lanes without signaling, and the DEA agents parked their
cars behind the police cruiser. The police frisked Capelton and
found $3,250 in marked bills matching those that Detective Fisher
gave to White. After the DEA agents informed Capelton that they
-5-
were going to seize that money, he followed them to the state
police barracks to get a receipt for the funds. The agents did not
arrest Capelton until September 21, 2000. White was also arrested
on September 21, 2000 while he was negotiating another cocaine sale
with Officer Fisher.
The execution of the sting operation was controversial in
two respects that are relevant to these appeals. First, White
insisted that Weeks coerced him into procuring drugs for Fisher
through threats, intimidation and harassing phone calls both to him
personally and to his mother, who was living at a different address
during the relevant period. Although White conceded at trial that
he had participated in each drug sale to Fisher, he argued that he
was the victim of unfair entrapment resulting from Weeks' heavy-
handed tactics. The government's efforts to counter White's
entrapment defense were complicated by its inability to locate
Christopher Weeks and subpoena him as a witness. Fisher admitted
at trial that Weeks' recruitment of White was not choreographed or
closely supervised by law enforcement officials, and White's mother
testified that Weeks made repeated efforts to contact White by
telephone.
The frequent malfunctioning of surveillance equipment
over the course of the sting operation was also a source of dispute
at trial. The participating law enforcement officers and agencies
went to considerable lengths to both video and audio-tape Fisher's
-6-
encounters with White and Capelton. However, equipment failures
and quality control problems with the audio and visual recordings
limited the probative value of those recordings, and forced the
prosecution to rely heavily on the eyewitness accounts of the
police officers and DEA agents who conducted the surveillance.
II.
We begin by addressing the objections raised jointly by
both defendants, and conclude with an analysis of the challenges
raised separately by each defendant.
A. The September 11 Tragedy
On September 11, after opening statements, the district
court informed the jurors of the events that had transpired in New
York City and Washington D.C. that morning, and suspended the
proceedings because the courthouse in Springfield was closed for
security reasons. The courthouse remained closed the next day
because of a widely-publicized bomb threat. When the defendants'
trial resumed on September 13, Capelton and White immediately moved
for a mistrial on two grounds. As a general matter, they asserted
that the jurors would be unable to maintain their focus on their
case given the chaos and uncertainty arising from the events of the
previous two days. More importantly, counsel argued that the
media's portrayal of the attacks and the military response as a
"battle of good versus evil" established a particularly prejudicial
environment for defendants accused of committing "evil" acts. In
-7-
counsels' view, this prejudice was exacerbated by defendants'
reliance on a strategy of discrediting law enforcement officers and
federal agents whose colleagues were perceived as heroes in the
aftermath of the World Trade Center attacks.
A district court's denial of a motion for mistrial is
reviewed for abuse of discretion. United States v. Lee, 317 F.3d
26, 34 (1st Cir. 2003); United States v. Rivera-Gomez, 67 F.3d 993,
998 (1st Cir. 1995). In response to defendants' request, the judge
voir dired each juror individually, and excused the only juror who
indicated that the September 11 attacks might alter his attitude
toward the case. The court also issued a lengthy instruction to
the jury as a whole both before resuming the proceedings, and again
at the close of the evidence. These instructions admonished the
jurors that the events of September 11
cannot influence how you evaluate witnesses,
and . . . you may not permit these events to
influence your deliberations or decision in
any way. Both the defendants and the public
expect that you will fairly and impartially
consider all the evidence in the case, follow
the law as stated by the court and reach a
just verdict.
The court proceeded with an abundance of caution in the
wake of September 11. In the absence of particularized allegations
of prejudice from defendants, we find no evidence that they were
denied their Sixth Amendment right to an impartial jury, and
accordingly conclude that the court did not abuse its discretion in
denying defendants' motion for a mistrial.
-8-
B. The Government's Opening Statement and Closing Argument
In his opening statement, the prosecutor referred to
White and Capelton as "drug dealer number one" and "drug dealer
number three" while describing a scene in front of White's
residence that he would later show to the jurors on videotape. The
government also explained that defendant Capelton's voice was never
caught on audio-tape because he was "a pretty clever drug dealer."
Assuming arguendo that defendants properly preserved
their objection to the prosecution's opening remarks, we find no
"manifest abuse of discretion," United States v. Mooney, 315 F.3d
54, 59 (1st Cir. 2002), in the court's refusal to grant a mistrial
after the government's opening statement. To prevail on this
ground for a new trial, defendants must demonstrate that the
prosecutor's comments "so poisoned the well that the trial's
outcome was likely affected." United States v. Mejia-Lozano , 829
F.2d 268, 274 (1st Cir. 1987). Defendants' allegations fall
considerably short of this threshold.
It is true that "a lawyer may not, in the presence of the
trier of fact[,] state a personal opinion about the . . . the guilt
or innocence of an accused." Restatement (Third) of Law Governing
Lawyers Sec. 107 (2000). Ideally, to preclude any argument of
error, the prosecutor might have used the locution that "the
evidence will show" that the defendants were drug dealers. Such a
locution avoids any suggestion that the prosecution is offering a
-9-
personal opinion about the guilt of the defendants. However, the
opening statement of the prosecution was preceded by the reminder
from the trial judge that:
the words of counsel are not evidence, and if
there's any difference between this prediction
of what the evidence will show and what you
actually hear from the witness stand, you of
course are to be guided by and consider only
evidence as it comes in through the testimony
of the witnesses or other documents or
exhibits in the case.
In fact, the government introduced substantial evidence proving
that Capelton and White were drug dealers. Under these
circumstances, even if the prosecution's conclusory references to
"drug dealers" could be deemed inappropriate expressions of opinion
on guilt (an issue we do not decide), those references did not
unfairly inflame or prejudice the jury against the defendants.
Capelton also alleges that the government "inflamed the
jury" by misrepresenting statements made by his counsel during
closing argument. While commenting on inconsistencies in the
testimony of the two police officers who stopped Capelton's car on
August 23, 2000, his attorney recalled one officer's testimony that
only one child was in the backseat of Capelton's car when he was
pulled over by the Connecticut State Police:
Now, everybody else said two, every officer
said two. Let's assume that it's two, he
remembers one. Why does he remember one?
Because he lost his police report. How does
that bear on other testimony? Because all the
officers that testified rely on other people's
reports.
-10-
The prosecutor apparently understood Capelton's attorney to say
that "all the officers that testified will lie on other people's
reports," and argued to that effect in his rebuttal to the
defendants' closing arguments. Capelton immediately objected to
that statement and requested a mistrial. On appeal, he claims that
he was prejudiced by the prosecutor's attribution of those comments
to his attorney.
We apply abuse of discretion review to a district court's
refusal to grant a mistrial on the basis of an inappropriate remark
by the prosecution in its closing argument. United States v.
Hernandez, 218 F.3d 58, 68 (1st Cir. 2000). Here, Capelton does
not claim that the government intentionally misrepresented defense
counsel's statements, or otherwise acted in bad faith. While the
transcript produced on appeal contains the word "rely," even the
court was unable to discern what Capelton's attorney actually said.
Nevertheless, the judge issued the following curative instruction
to the jury:
First of all, as you heard the closings I
believe Mr. Newhouse [the prosecutor] made
reference to his recollection of a statement
made during Mr. Black's closing. His
recollection of this statement was that Mr.
Black said, "All officers will lie on other
officer's reports." During the break I wanted
to make sure you understand that Mr. Black's
recollection of what he said, and his intent
was to say, "All the officer's rely on other
officer's reports." I passed that on to you
so that you will know it, but remind you again
that it's your recollection of what is said
-11-
that controls, not mine or the attorneys'
recollection of what was said.
This corrective instruction refutes any argument that the district
court abused its discretion in denying the request for a mistrial.
C. Defendant Capelton's Claims
1. Motion to Sever
Capelton moved the district court for a severance after
White disclosed in a pre-trial hearing that he would be presenting
a defense of entrapment. Anticipating that White would implicitly
concede his participation in the course of presenting this defense,
Capelton argued that White's entrapment defense would undermine his
own strategy of denying participation in the conspiracy and putting
the government to its proof.
We review the denial of a severance motion for manifest
abuse of discretion. United States v. DeLeon, 187 F.3d 60, 63 (1st
Cir.), cert. denied, 528 U.S. 1030 (1999). Capelton acknowledges
on appeal "that the standard for severance is a strict one and the
defendant must show that he could not have received a fair trial."
Indeed, we have previously recognized the general rule that
"defendants charged in the same indictment should be tried
together," United States v. Houle, 237 F.3d 71, 75-76 (1st Cir.),
cert. denied, 532 U.S. 1074 (2001), and expressed reluctance to
reverse a denial of severance where the defenses at issue are only
"somewhat antagonistic," United States v. Serafino, 281 F.3d 327,
329 (1st Cir. 2002), and not "so irreconcilable as to involve
-12-
fundamental disagreement over core and basic facts," United States
v. Pena-Lora, 225 F.3d 17, 34 (1st Cir. 2000) (internal quotations
omitted).
Without elaborating at pointless length, we conclude that
Capelton's skeletal argument for reversal on this ground is
unavailing in light of 1) his failure to point to any specific
testimony at trial that prejudiced his own defense, and 2) the
court's explicit instruction to the jury that
you must consider the counts and the
defendants separately. Mr. White and Mr.
Capelton are charged with several different
counts in the indictment. The counts, and the
defendants, have been joined for trial.
However, the counts and the defendants must be
considered separately.
2. Motion to Suppress
At 3:00 p.m. on August 23, 2000, Connecticut State
Troopers Jeffrey Campbell and John Tollis received a cell phone
call in their police cruiser from a federal surveillance team
monitoring Capelton's movements. DEA agents provided the officers
with a description of Capelton's vehicle, and informed the troopers
that the defendant was traveling south on Interstate 91, having
just left the scene of a drug transaction in Springfield. The
officers positioned their vehicle behind Capelton, and pulled the
defendant over after observing him switch lanes without using his
turn signal. A "pat frisk" of the defendant revealed a large wad
of money in his front pocket that matched, upon examination, the
-13-
serial numbers of the "buy money" that Fisher had earlier used to
purchase crack cocaine from White. Because the government's
surveillance tapes failed to record Capelton actually exchanging
drugs for money, the marked bills found on defendant's person were
the linchpin of the government's circumstantial case against
Capelton.
Not surprisingly, Capelton argues on appeal that the
district court erred when it denied his motion to suppress this
physical evidence. We will review this claim by considering
whether the Connecticut State Police had sufficient cause, apart
from the traffic violation,2 to stop Capelton's vehicle and
whether they had probable cause to search his person and to seize
the serialized money.
"Our review of the ultimate determinations of probable
cause and reasonable suspicion on a motion to suppress is de novo.
Review of subsidiary factual findings is for clear error." United
States v. Scott, 270 F.3d 30, 39 (1st Cir. 2001) (citations
omitted). The Connecticut State Police needed an "articulable and
reasonable suspicion that [Capelton] was engaged in criminal
activity" to justify a Terry stop of his car. United States v.
Trueber, 238 F.3d 79, 92 (1st Cir. 2001) (upholding a Terry stop of
2
We say "apart from the traffic violation" only because the
trial judge did not factor the violation into his analysis of the
legal basis for the stop. There is no question that the traffic
violation alone provided a sufficient basis for the stop.
-14-
a pickup truck ). While this involves more than a mere "hunch,"
Terry v. Ohio, 392 U.S. 1, 27 (1968), "the level of suspicion
required for a Terry stop is obviously less demanding than for
probable cause." Alabama v. White, 496 U.S. 325, 330 (1990).
Detective Fisher's detailed testimony during the pretrial
evidentiary hearing on the motion to suppress recounted the DEA
agents' close surveillance of Capelton before, during and after the
August 23 drug transaction. The knowledge may be imputed from the
DEA agents to the state police who actually effectuated the stop
under the "fellow officer rule." United States v. Winchenbach, 197
F.3d 548, 555 (1st Cir. 1999) ("[T]he focus is upon the collective
knowledge possessed by, and the aggregate information available to,
all the officers involved in the investigation.") In a case very
similar to this one, we concluded that "there [was] no doubt that
the police were justified under Terry in stopping" the defendant's
vehicle after observing him sell drugs to an undercover officer,
United States v. Schiavo, 29 F.3d 6, 9 (1st Cir. 1994), and we
reach the same conclusion here. The police observed Capelton
engage in illegal drug sales and then pulled him over. As was the
case in Schiavo, there is no doubt that the Terry stop was
justified.
The next inquiry is whether the officers' warrantless
search of Capelton's front pocket and their seizure of the
serialized currency was justified. While it would have been
-15-
permissible for the police to search Capelton's car incident to
the stop, "[t]he search of one's person is more intrusive on the
rights protected by the Fourth Amendment than the search of an
automobile." Schiavo, 29 F.3d at 9. Therefore, we will only
uphold the search if the police demonstrated that they had
probable cause and that exigent circumstances justified the search
in the absence of a warrant.
We can easily dismiss the second factor. The district
court concluded that the officers did not need a warrant to
conduct this search in light of the "exigent circumstance" that
Capelton was mobile at the time the police developed probable
cause. This created a risk that the evidence would be "spirited
away," Florida v. White, 526 U.S. 559, 565 (1999), if the officers
delayed the search until a proper warrant could be secured. On
appeal, Capelton does not question the existence of exigent
circumstances. Thus, we will confine our review to the issue of
probable cause.
Probable cause for a search can be demonstrated by
"'facts and circumstances . . . sufficient in themselves to
warrant a man of reasonable caution in the belief that' he was
observing criminal activity and the fruits of criminal activity."
United States v. Ferrara, 539 F.2d 799, 801 (1st Cir. 1976)
(quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). The
-16-
district court felt that the police surveillance on August 23
provided sufficient probable cause to execute the search:
The defendant was positively identified by two
officers, both of whom had an ample
opportunity to observe him and who had seen
him on previous occasions. Further, he was
identified by Gary White as the source of the
drugs, and the pattern of activity clearly
indicated that it was the defendant who
provided White with the crack cocaine given
the undercover agent that day.
Teams of surveillance agents continuously followed Capelton after
the sale. Other than getting out to pump his gas, he did not
leave the car between the time of the sale and when he was stopped
by the officers. Therefore, the police were justified in
believing that the fruit of his criminal activity, the serialized
currency, was in his possession. This belief provided them with
sufficient probable cause to justify the search.
3. Hearsay Statements of Co-Conspirators Admitted Under
Rule 801(d)(2)(E)
Federal Rule of Evidence 801(d)(2)(E) excludes from the
category of hearsay "statement[s] by a coconspirator of a party
during the course and in furtherance of the conspiracy." Fed. R.
Evid. 801(d)(2)(E). As a predicate for admitting evidence under
this rule, the trial court must conclude that "it is more likely
than not that the declarant and the defendant were members of a
conspiracy when the hearsay statement was made, and that the
statement was in furtherance of the conspiracy." United States v.
Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977). In our circuit,
-17-
this determination is referred to as a Petrozziello ruling.
Significantly, the trial court is not required to decide the
Petrozziello question prior to admitting hearsay statements under
Rule 801(d)(2)(E), but may "admit the statement[s] provisionally,
subject to its final Petrozziello determination at the close of
all the evidence." United States v. Isabel, 945 F.2d 1193, 1199
n.10 (1st Cir. 1991). Generally, "we review the trial court's
determination that statements were coconspirator statements under
the clear error standard." United States v. Marino, 277 F.3d 11,
25 (1st Cir. 2002) (citing United States v. Mojica-Baez, 229 F.3d
292, 304 (1st Cir. 2000)). This deferential standard of review
places a heavy burden on a defendant seeking to overturn a trial
court's Petrozziello ruling. Reich v. Newspapers of New England,
Inc., 44 F.3d 1060, 1080 (1st Cir. 1995).
In United States v. Sepulveda, 15 F.3d 1161 (1st Cir.
1993), we held that "a coconspirator's statement, standing alone,
is insufficient to meet the preponderance standard of Rule
801(d)(2)(E) . . . [A]dmitting the statement into evidence
requires some extrinsic proof of the declarant's involvement in
the conspiracy." Id. at 1181-82. Capelton unpersuasively argues
that the government failed to produce any "extrinsic proof"
linking the co-defendants. Marked bills from the August 23, 2000
transaction between Fisher and White were found on Capelton's
person when he was arrested. The record also indicates that
-18-
surveillance videos introduced by the government depict Capelton
arriving at White's residence, and show White walking back and
forth between Fisher's car and Capelton's car during the July 24
and August 23 drug transactions. This evidence easily satisfies
the "extrinsic proof" requirement of Sepulveda, and we
accordingly find no clear error in the district court's
Petrozziello ruling.3
4. Sentencing
Capelton claims that the district court erroneously
denied him a downward departure under § 5H1.6 of the United States
Sentencing Guidelines, and argues that this provision "allows for
a downward departure for unusual family circumstances." At
Capelton's sentencing hearing, the court took note that the
defendant grew up with drug addicted parents, and was forced to
live on the streets and provide for his younger brother from the
time he was twelve years old. The court commented that it had
"rarely encountered a childhood as horrendous as this," and
acknowledged that "the defendant's situation, as he was growing
up, [was] almost unimaginably difficult."
3
Capelton raises but does not develop three additional
challenges--a sufficiency of the evidence challenge, a due process
challenge involving the pen registers, and a challenge to the
court's aiding and abetting instruction--that we deem waived.
"[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argument, are deemed waived." United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
-19-
The judge nonetheless rejected Capelton's motion for a
downward departure, citing the defendant's extensive criminal
background and his failure to take advantage of numerous
opportunities to rehabilitate himself: "I am persuaded . . . that
the defendant has had an awfully large number of bites of the
apple and, unfortunately, this is the time when the chickens come
home to roost . . . . [U]nfortunately, I don't think there's any
basis for downward departure in this case."
Our prior jurisprudence establishes that we "lack
jurisdiction to review a discretionary decision not to depart from
the Sentencing Guidelines." United States v. Mejia, 309 F.3d 67,
70 (1st Cir. 2002); see United States v. Louis, 300 F.3d 78, 81
(1st Cir. 2002). We may review a sentencing court's conclusion
that it does not have legal authority to depart from the
sentencing guidelines, Mejia, 309 F.3d at 69-70; however, the
court recognized that it had such authority here. Therefore, we
will not review the court's discretionary decision.
D. Defendant White's Claims
1. Entrapment
The entrapment defense protects "an otherwise
law-abiding citizen who, if left to his own devices, likely would
have never run afoul of the law." Jacobson v. United States, 503
U.S. 540, 553-54 (1992). As we have previously noted:
"Entrapment is called a defense, but it is settled that once the
-20-
defendant has made a threshold showing, the burden shifts to the
government to prove beyond a reasonable doubt either that there
was no undue government pressure or trickery or that the defendant
was predisposed." United States v. Acosta, 67 F.3d 334, 338 (1st
Cir. 1995). Since this is a disjunctive test, the entrapment
defense fails if the government can prove beyond a reasonable
doubt either that 1) it did not improperly induce the illegal
activity or 2) the defendant was otherwise predisposed. See,
e.g., Mathews v. United States, 485 U.S. 58, 62-63 (1988); United
States v. Gendron, 18 F.3d 955, 961 (1st Cir. 1994). White claims
that there was insufficient evidence to prove either the absence
of improper inducement or predisposition. We disagree with both
contentions.4 Given the disjunctive nature of the test, we can
fulfill our appellate function by elaborating our disagreement on
either inducement or predisposition. We choose to focus on
inducement.
As we held in Gendron, inducement means more than simply
organizing a "sting" operation and giving the defendant the
opportunity to commit a crime. Gendron, 18 F.3d at 961. See also
4
We review a sufficiency of the evidence claim de novo;
however, in doing so "we review all the evidence, direct and
circumstantial, in the light most charitable to the prosecution,
drawing all reasonable inferences consistent with the verdict, and
eschewing credibility judgments, to determine whether a rational
jury could have found the defendant guilty beyond a reasonable
doubt." United States v. LaFreniere, 236 F.3d 41, 45 (1st Cir.
2001).
-21-
United States v. Gifford, 17 F.3d 462, 468 (1st Cir. 1994)
("Neither mere solicitation nor the creation of opportunities to
commit an offense comprises inducement as that term is used in the
entrapment jurisprudence."). "An 'inducement' consists of an
'opportunity' plus something else-- typically, excessive pressure
by the government upon the defendant or the government's taking
advantage of an alternative, non-criminal type of motive."
Gendron, 18 F.3d at 961.
White claims that Weeks, the police informant, used
excessive pressure to force him to sell drugs. He claims that
Weeks repeatedly threatened him and his family while they were
incarcerated together and demanded that White "hook him up" with
a drug source. After they were released from jail, Weeks
supposedly continued these threats and forced him to sell drugs to
Officer Fisher even after White initially refused to do so. Based
on this testimony, which was not corroborated by any other
witness, White claims that the government impermissibly induced
him to engage in criminal activity.
Our review of the record undercuts White's claim of
excessive pressure by the government. The evidence showed that he
never reported the alleged threats to the correctional officers or
to the police, associated with drug dealers and had multiple
sources of drugs, possessed specific knowledge related to the drug
trade (e.g. he was familiar with specific terminology and prices,
-22-
and claimed to be able to make crack cocaine), sold Detective
Fisher drugs on eight separate occasions, gave the detective his
phone number so that the two could deal directly without going
through Weeks, and continued to sell cocaine even after Weeks
stopped contacting him. In addition, the government introduced
surveillance tapes in which, according to the trial judge,
"[White] doesn't look anything like a person who's being entrapped
. . . ." It also introduced audio tapes on which White was heard
telling Fisher that the drugs that he was going to sell him "were
top shelf." Taken together and viewed in a light favorable to
the verdict, that evidence could lead a rational jury to conclude
beyond a reasonable doubt that White voluntarily sold drugs to
Detective Fisher and that Weeks did not force him to do so.5
2. Discovery Abuse
White claims that the lower court erred when it refused
to grant a mistrial based on the government's alleged discovery
abuse. In order to prevail on a discovery abuse claim, a
5
White also tries to restate his inducement arguments as Fifth
Amendment "outrageous government conduct" violations. As we have
previously observed: "[The outrageous government conduct] doctrine
is moribund; in practice, courts have rejected its application with
almost monotonous regularity." United States v. Santana, 6 F.3d
1,4 (1st Cir. 1993). See also United States v. Panitz, 907 F.2d
1267, 1272 (1st Cir. 1990) ("[W]e have yet to review a situation
where official conduct crossed the constitutional line; rather, an
unbroken string of First Circuit cases has repulsed attempts to win
dismissal of criminal charges on such a theory."). In any event,
since the government so easily defeated the inducement prong of the
entrapment analysis, White's due process claim, even if available
under the law, fails.
-23-
defendant must show 1) that the government wrongfully withheld
evidence and 2) that the defendant suffered prejudice as a result.
United States v. Nickens, 955 F.2d 112, 126 (1st Cir. 1992).
White's claim fails both of these requirements.
Prior to trial, White sent the government a letter
pursuant to local rule 116.3(A)6 requesting the following:
Disclosure of all prior subsequent [sic]
crimes, wrongs or acts allegedly committed by
each and any one of the Defendants upon which
the Government intends to rely or of which the
Government intends to offer evidence to prove
motive, scheme, opportunity, intent,
preparation, plan, knowledge, identity or
absence of mistake or accident . . . .
The government sent White copies of his prior convictions in
response to that letter, but it did not include any investigative
reports or memoranda.7 White claims that the government wrongfully
6
District of Massachusetts Local Rule 116.3(A) states:
(A) Within forty-two (42) days of arraignment, any party
by letter to the opposing party may request discovery.
The opposing party shall reply in writing to the requests
contained in such letter, no later than fourteen (14)
days after its receipt, stating whether that party agrees
or does not agree to furnish the requested discovery and,
if that party agrees, when the party will furnish the
requested discovery. A copy of the discovery request
letter and any response must also be filed with the
Clerk’s Office.
7
The government properly referred to the requested documents
as Fed. R. Evid. 404(b) (concerning the defendant's prior bad acts)
and 609 (concerning prior convictions) evidence. Rule 404(b)
requires the government to disclose "in advance of trial . . . the
general nature of any such evidence it intends to introduce at
trial." Although White did not frame his argument in 404(b) terms,
relying instead on Local Rule 116.3(a), his general "discovery
abuse" claim is essentially a 404(b) claim. Our analysis would be
-24-
withheld a surveillance record that DEA Agent Shuler prepared as
part of a prior investigation of other drug dealers. Even though
White was not a target of that investigation, he claims that the
surveillance took place at his address, thus making the report a
form of prior bad acts evidence. Furthermore, he claims that the
government's failure to produce that report prejudiced his ability
to prepare a defense.
We conclude that this report was not covered by White's
pretrial discovery request; therefore, the government was not
required to produce it. White was not a target of the earlier DEA
investigation. He is only mentioned in the report because the
government conducted its surveillance of the suspects in the
vicinity of his home. While the jury may have drawn negative
inferences from White's association with drug suspects, it is a
stretch to deem this association a bad act within the meaning of
Rule 404(b). See United States v. Reed, 647 F.2d 678, 686 (6th
Cir. 1981) (holding that testimony concerning the defendants' past
association with known thieves and their presence at a "hangout
for thieves" did not constitute 404(b) evidence). Furthermore,
there is no evidence that the government intended to use that
report against White. The jury only learned about the prior
investigation because White's attorney asked DEA Agent Shuler
whether he had heard the name "Gary White" before Shuler started
the same under either approach.
-25-
his investigation with Detective Fisher.8 In doing so, he forced
Shuler to discuss the earlier investigation. The government's
attorney did not reference the report on direct examination, and
there is no hint in the record that the material in this report
would have been introduced if White's attorney had not pressed
Agent Shuler on the matter.9
3. Sentencing
White's final three claims regard errors that the court
allegedly made at sentencing.
a. Acceptance of Responsibility
White claims that the district court erred by not
reducing his sentence under Section 3E1.1 of the United States
Sentencing Guidelines, based on his acceptance of responsibility
for his actions. Since the sentencing court can best determine
whether the defendant "clearly demonstrates a recognition and
affirmative acceptance of personal responsibility," we accord
great deference to decisions rejecting an acceptance of
8
Prior to Agent Shuler's testimony, White's attorney asked
another agent, James Clifford, whether he had heard White's name
associated with drug sales. Clifford simply answered that he had
seen White's name connected with Agent Shuler's investigation. He
did not provide further details regarding the content of that
investigation.
9
We also note that White failed to request a continuance when
he first discovered the alleged abuse. Thus, we may presume a
lack of prejudice. United States v. Sepulveda, 15 F.3d 1161,
1178 (1st Cir. 1993) ("As a general rule, a defendant who does not
request a continuance will not be heard to complain on appeal that
he suffered prejudice as a result of late-arriving discovery.").
-26-
responsibility claim. U.S.S.G. § 3E1.1 cmt. n. 5. We only
reverse such decisions on a showing of clear error. United States
v. Walker, 234 F.3d 780, 784 (1st Cir. 2000).
White claims that since he never contested his "factual
guilt," he should qualify for a reduced sentence. That view is
not supported by our case law. While we have not held that a
defendant will always forfeit his chance for a 3E1.1 adjustment by
adopting an entrapment defense, we have held that an adjustment in
such a situation would be rare. See, e.g., United States v.
Baltas, 236 F.3d 27, 37 (1st Cir. 2001) ("'This adjustment is not
intended to apply to a defendant who puts the government to its
burden of proof at trial by denying the essential factual elements
of guilt, is convicted, and only then admits guilt and expresses
remorse.'") (quoting U.S.S.G. Sec. 3E1.1 cmt. 2); United States v.
DeLeon Ruiz, 47 F.3d 452, 455 (1st Cir.1995) ("[A]bsent unusual
facts, we will . . . generally sustain a district court that
denies acceptance of responsibility to a defendant who declined to
plead guilty on the count or counts of which he was convicted.").
This case does not qualify as one of those rare
exceptions. White was caught on video and audio tape selling
powdered and crack cocaine to an undercover agent. When the
government attempted to arrest him, he fled and forced the agents
to run through yards and to jump over fences to apprehend him. At
trial, he adopted what the judge termed "a very, very weak
-27-
entrapment defense" and forced the government to bear the burden
of proving its case against him. Given all of the evidence that
the government marshaled against him, it would have been futile
for White to contest his "factual guilt" at trial; therefore,
considering his continuous refusal to accept responsibility, we
can hardly say that the court clearly erred in refusing a downward
adjustment for acceptance of responsibility.
b. Minor Participant
White argues that, even though he was the only party who
was involved in all of the drug transactions, the court erred when
it refused to consider him a "minor participant" for sentencing
purposes. We review this claim for clear error. United States v.
Melendez, 301 F.3d 27, 33 (1st Cir. 2002).
In order to receive a downward adjustment for being a
"minor participant," a defendant must demonstrate, inter alia,
that he "is less culpable than most other participants" in the
crime for which he was convicted. U.S.S.G. § 3B1.2, cmt 3. White
cannot meet that standard. The sentencing judge characterized him
as the "hub of the wheel" in these transactions and observed:
Mr. White here was involved in every single deal. He
was the central figure in these deals and he's not
entitled to any downward departure based upon any minor
participation or being a minor participant. He was, if
anything, I think the major, perhaps the primary
participant.
-28-
Since he was an integral link in all eight drug transactions, we
cannot find any clear error in the sentencing judge's decision to
deny a downward adjustment.
c. Sentencing Factor Manipulation
Finally, White claims that the court erred by not
granting him a downward departure to counteract the government's
improper enlargement of his crime. He asserts that the government
"arranged" to have him sell drugs on eight separate occasions
rather than simply arresting him after the first sale and that
this conduct impermissibly extended his sentence.
As we discussed in United States v. Montoya, 62 F.3d 1,
4-5 (1st Cir. 1995), downward departures based on sentencing
factor manipulation are equitable remedies that courts only invoke
in "the extreme and unusual case." White bears the burden of
demonstrating that the government engaged in "extraordinary
misconduct," and that it improperly enlarged either the scope or
the scale of the crime. In considering this claim, we will "focus
primarily--though not necessarily exclusively--on the government's
conduct and motives." United States v. Gibbens, 25 F.3d 28, 31
(1st Cir. 1994).
Assuming arguendo that we have jurisdiction to review
this claim, we conclude that White failed to introduce sufficient
evidence to demonstrate that the government improperly extended
the duration of its investigation in an effort to extend his
-29-
sentence. While it could have arrested White after the first
sale, it does not appear that its failure to do so was motivated
by malice or bad faith. See United States v. Terry, 240 F.3d 65,
71 (1st Cir. 2001) (concluding that the government acted in good
faith when it claimed, inter alia, that it extended the duration
of its investigation to identify other members in the drug
network). In fact, since White used multiple sources of drugs,
the government's extension of the investigation allowed it to
identify more dealers. Since White failed to demonstrate that the
government engaged in extraordinary misconduct, we reject his
sentencing manipulation claim.
III.
For the foregoing reasons, we AFFIRM the convictions and
sentences of both appellants.
SO ORDERED.
-30-