USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1595
MATTHEW SABETTI,
Petitioner, Appellant,
v.
PAUL DIPAOLO,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Boudin and Stahl, Circuit Judges.
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Carol A. Donovan with whom Committee for Public Counsel Services
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was on brief for appellant.
Nancy W. Geary, Assistant Attorney General, Criminal Bureau, with
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whom Scott Harshbarger, Attorney General, was on brief for appellee.
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February 10, 1994
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BREYER, Chief Judge. State policemen found
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petitioner, Matthew Sabetti, and another person sitting in a
parked car that contained drug paraphernalia strewn on the
floor and, on the back seat, two small plastic bags of
cocaine sticking out of a larger gym bag. It was later
determined that the cocaine amounted to 38 grams of a very
pure mixture. The Commonwealth charged Sabetti with
violating a statute that, at the time, prohibited "knowingly
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possessing with intent to distribute twenty-eight grams or
more of cocaine." Mass. Gen. Laws Ann. ch. 94C, 32E(b)
(West 1984) (ellipses omitted) (emphasis added) (statute
reprinted in appendix). The trial judge instructed the jury
that to convict Sabetti it must find, in effect, 1) that he
knowingly possessed the two bags (with intent to distribute
the cocaine) and 2) that he actually knew that the bags
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contained at least 28 grams of cocaine (i.e., an ounce).
The jury found Sabetti guilty. The trial court, finding the
evidence insufficient to show specific knowledge of 28 grams
or more, set aside the verdict. But, the Supreme Judicial
Court reinstated the verdict, on the ground that the statute
does not require the government to prove the defendant's
actual knowledge of amount -- though, we add, the facts here
indicate that the amount was reasonably foreseeable.
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Sabetti now seeks federal habeas corpus. He
argues that his conviction violates the "fair notice"
requirement of the federal Constitution's Due Process
Clause. See, e.g., United States v. Batchelder, 442 U.S.
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114, 123 (1979); United States v. Harriss, 347 U.S. 612, 617
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(1954); Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939);
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Connally v. General Construction Co., 269 U.S. 385, 391
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(1926); United States v. Colon-Ortiz, 866 F.2d 6, 8 (1st
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Cir.), cert. denied, 490 U.S. 1051 (1989). The federal
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district court rejected Sabetti's argument. And, so do we.
As both sides agree, "[i]t is well-settled that
due process requires that criminal statutes put individuals
on sufficient notice as to whether their contemplated
conduct is prohibited." See Colon-Ortiz, 866 F.2d at 8
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(citations omitted). As both sides also seem to agree, a
criminal statute fails to provide fair notice if a "person
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of ordinary intelligence," Harriss, 347 U.S. at 617,
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"examining [only] the language of the statute," Colon-Ortiz,
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866 F.2d at 9, would be in some way surprised that it
prohibited the conduct in question. "It is not enough," we
have explained, for the true meaning of the statute "to be
apparent elsewhere," in extra-textual materials such as
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legislative history or analogous statutes. Id. (emphasis
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added). The idea is that ordinary individuals trying to
conform their conduct to law should be able to do so by
reading the face of a statute -- not by having to appeal to
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outside legal materials. At the same time, the person of
ordinary intelligence is also a person of common sense, with
knowledge of "common understanding[s] and practices," Jordan
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v. De George, 341 U.S. 223, 232 (1951) (citation omitted),
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which he brings fully to bear in "examining the language of
the statute."
In this case, we do not think the person of
ordinary intelligence would be the least bit surprised to
learn that the pertinent statutory language -- "knowingly
possessing with intent to distribute twenty-eight grams or
more of cocaine" -- was construed to prohibit the conduct
for which Sabetti was convicted: knowingly possessing with
intent to distribute an amount of cocaine that one might
reasonably foresee would amount to at least 28 grams but
which the defendant did not actually know weighed that much.
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We acknowledge that, if one reads the statute in a vacuum,
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one might think the word "knowingly" could as easily be
construed to apply to the words "twenty-eight grams" as not.
But, bringing common sense to bear, we have little doubt the
average person would be skeptical of the idea of a
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legislature really insisting that a prosecutor prove actual
knowledge of a precise amount -- often an impossible task --
rather than knowledge simply of a small amount (e.g., two
plastic bags' worth) that could easily turn out to weigh,
say, an ounce. After all, most people know that the degree
of harm drugs cause in the world is related, not to
perceived amounts of drugs, but to actual amounts.
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Our conclusion is supported by the fact that we
have searched the case law and have not found cases in which
a garden-variety, textual ambiguity of the kind at issue
here has risen to the level of a due process violation.
See, e.g., Stout v. Dallman, 492 F.2d 992 (6th Cir. 1974)
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(finding, on habeas review, no "fair notice" violation when
state court construed armed robbery statute requiring
defendant to be "armed with a pistol, knife, or other
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dangerous weapon" to cover defendant who smacked his victim
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on the head with an unidentified hard object) (emphasis
added).
Nor is this surprising. Legislators need not, and
often cannot, draft statutes with perfect precision. See
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Stansberry v. Holmes, 613 F.2d 1285, 1289 (5th Cir.) ("A
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provision need not . . . be cast in terms that are
mathematically precise . . . .") (citations omitted), cert.
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denied, 449 U.S. 886 (1980). If run-of-the-mill statutory
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ambiguities were enough to violate the Constitution, no
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court could ever clarify statutes through judicial
interpretation, for the first person against whom the
clarified version applied (and likely others as well) could
argue that he was unfairly surprised and thus his due
process rights were violated. Courts, of course, clarify
textual ambiguities all the time.
We have found cases, to be sure, in which courts
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seem wary of run-of-the-mill statutory ambiguities, but
these cases tend to involve statutes that criminalize
conduct that the average person generally considers
innocent. See, e.g., Kolender v. Lawson, 461 U.S. 352
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(1983) (statute restricting persons from wandering the
streets without identification); United States v. Anzalone,
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766 F.2d 676 (1st Cir. 1985) (statute requiring reporting of
currency transactions over $10,000). Of course, even a
small degree of ambiguity, when construed to prohibit what
would otherwise reasonably seem to be innocent conduct, can
cause significant surprise. The instant case is quite
different: no one thinks that cocaine drug dealing, even in
small amounts, is innocent conduct.
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We have also found some cases indicating a "fair
notice" violation in a statute that criminalizes (or sets
penalties for) obviously non-innocent conduct such as drug
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dealing. But, these cases tend to involve ambiguities that
cannot easily be called run-of-the-mill. In United States
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v. Colon-Ortiz, 866 F.2d 6 (1st Cir.), cert. denied, 490
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U.S. 1051 (1989), for example, we faced a (federal) drug
statute that said that violators "shall be sentenced to a
[minimum five-year] term of imprisonment, a [limited] fine,
or both." 21 U.S.C. 841(b)(1)(B) (ellipses omitted)
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(emphasis added) (since amended). The court interpreted the
provision to mean that the only discretionary part of the
sentence was the imposition of a fine; the imposition of a
minimum five-year prison term was not discretionary. In
doing so, however, the court recognized that such an
interpretation flies directly in the face of the ordinary
person's reading of the phrase "or both" and could only be
justified by regarding "or both" as an "inadvertent drafting
error" that should be "stricken from the statute." Colon-
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Ortiz, 866 F.2d at 10. Again, our case is quite different:
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as suggested above, the ambiguity at issue here -- whether a
word near the beginning of a sentence ("knowingly") modifies
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a phrase near the end ("twenty-eight grams") -- was entirely
ordinary.
Finally, petitioner argues in his habeas petition
that the "rule of lenity" (i.e., the rule saying that
ambiguous criminal statutes should be construed favorably to
defendants) requires a judgment in his favor. That rule,
however, is one of statutory interpretation. We have no
power to apply it to a state statute, for the Supreme
Judicial Court, not this court, is the authoritative
interpreter of state statutes. And, Sabetti has not pointed
to anything in the federal Constitution -- other than, of
course, the "fair notice" guaranty, which, we have just
held, is satisfied here -- that would require a state court
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to apply the rule of lenity when interpreting a state
statute.
For the reasons stated, the judgment of the
district court is
Affirmed.
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NOTE: See Slip Opinion for Appendix.
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