USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1727
UNITED STATES OF AMERICA,
Appellee,
v.
FRANKLIN M. GOLDMAN,
Defendant, Appellant.
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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
Cyr, Boudin and Stahl,
Circuit Judges.
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Dana A. Curhan, by Appointment of the Court, for appellant.
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Geoffrey E. Hobart, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for the United
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States.
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December 9, 1994
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BOUDIN, Circuit Judge. Franklin Goldman was arrested on
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July 17, 1992, and charged, in a superseding indictment, with
conspiring to possess cocaine with intent to distribute it
and with actually possessing cocaine with intent to
distribute. Also indicted were David St. Peter, who had
acted as an intermediary and Robert Sungy, who apparently
played the role of lookout. In October 1992, St. Peter and
Sungy pled guilty. Goldman was tried by a jury in December
1992.
We describe the trial evidence in condensed form
because, while the sufficiency of the evidence is not
challenged, some understanding of the facts is relevant to
the appeal. At Goldman's trial, the government's evidence
showed that a confidential informant acting under the
direction of Drug Enforcement Administration agents had
purchased small quantities of cocaine from St. Peter in
February 1992. The informant then began to discuss with St.
Peter the possibility of making large scale purchases.
In May 1992, in Peabody, Massachusetts, the informant
introduced St. Peter to DEA Special Agent Pamela Mersky, who
purported to be the girlfriend of a cocaine trafficker.
Mersky asked to purchase multiple kilograms of cocaine from
St. Peter. St. Peter asserted that he had a local
Massachusetts source for cocaine and would talk to him
shortly about price. On July 13, 1992, Mersky and St. Peter
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met again. St. Peter advised Mersky that the price would be
$29,000 per kilogram. Mersky asked to purchase five
kilograms. St. Peter met the next day with Goldman, who said
that a transaction of one to five kilograms would not be a
problem.
On July 17, 1992, St. Peter and Mersky met and arranged
for the sale to her of four kilograms in two installments of
two kilograms each. St. Peter then went alone to the Royal
Sonesta Hotel in Cambridge where he was seen meeting with
Goldman and the transaction was discussed. St. Peter then
met twice with Mersky and assured her that the arrangements
were proceeding. Subsequently, Goldman and St. Peter met
again near the hotel to discuss the mechanics of the
transaction. Ultimately, after a rendezvous at a nearby
garage, both St. Peter and Goldman proceeded in separate cars
to a restaurant parking lot in Saugus.
At the parking lot, government agents saw St. Peter and
Goldman meet at the rear of Goldman's car. The trunk
contained a brown paper bag, Goldman told St. Peter to "take
one," and St. Peter looked in the bag and saw what appeared
to be three kilograms of cocaine. St. Peter took one
kilogram, and Goldman advised him to take it, bring back the
money, and then the transaction would be repeated. St. Peter
then drove alone to a nearby Sears parking lot and met
Mersky. When St. Peter showed her the kilogram, she asked
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where the other kilogram was located, and St. Peter said that
it was nearby. Shortly thereafter, St. Peter was arrested.
After St. Peter left Goldman, Goldman drove some
distance away, reversed direction, and ultimately parked his
car in a K-Mart parking lot. He then left the car, crossed
the road, and climbed a bridge that gave him a vantage point
to see the parking lot of the Sears store where St. Peter and
Mersky were meeting. As Goldman was looking in this
direction, he was approached by a state trooper, began to
run, apparently abandoned his car keys, and was ultimately
apprehended. After Goldman was arrested, agents took his car
to a nearby state police barracks. There a search of the
trunk revealed the two kilograms of cocaine in a paper bag,
as well as over $5,000 in cash and a cellular phone.
The most damning evidence at trial, apart from the
cocaine seized from Goldman's car, came from St. Peter who
testified against Goldman, described their conversations, and
identified Goldman as the source of cocaine that St. Peter
had distributed both in this instance and on prior occasions.
The jury convicted Goldman on both the conspiracy and
possession counts. On April 24, 1993, the court sentenced
Goldman to 262 months' imprisonment and, three days later,
corrected the sentence and resentenced Goldman to 360 months'
imprisonment.
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On this appeal, Goldman first challenges the
admissibility of the evidence seized from his car. This
claim was preserved because Goldman moved to suppress the
evidence prior to trial. After argument but without an
evidentiary hearing, the district court denied the motion to
suppress based on affidavits from the law enforcement agents
describing the information available to them at the time of
the seizure. We take it that no evidentiary hearing was held
because there were no disputed facts.
The Supreme Court has ruled that an automobile may be
searched without a warrant if the police have probable cause
to believe that it contains contraband or evidence of a
crime. United States v. Ross, 456 U.S. 798 (1982); see
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United States v. Infante-Ruiz, 13 F.3d 498, 502 (1st Cir.
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1994). Applying this standard requires us to disregard the
most potent evidence against Goldman--St. Peter's trial
testimony and the cocaine found in the trunk of Goldman's
car--and focus upon what the agents knew at the time that
they searched the car.
Since what the agents knew is apparently not disputed,
we will treat the application of the probable cause standard
to known facts as a legal issue subject to de novo review.
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See United States v. 255 Broadway, 9 F.3d 1000, 1004 (1st
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Cir. 1994). There is no indication that, at the time of his
arrest, Goldman had been identified by St. Peter as the
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source of the cocaine. What the agents knew was that St.
Peter, claiming to have a local source, had agreed with
Mersky to make a multi-kilogram delivery on July 17.
Thereafter Goldman was seen later that day conferring with
St. Peter at the hotel in Cambridge and afterwards St. Peter
twice assured Mersky that the transaction was proceeding.
This turn was followed by further observed meetings
between Goldman and St. Peter at the Cambridge hotel, then at
a nearby garage, and finally in the restaurant parking lot in
Saugus where agents saw St. Peter and Goldman together at the
rear of Goldman's car with the trunk open. This was followed
by St. Peter's delivery of one kilogram of cocaine to Mersky
at a nearby site and St. Peter's explanation that the other
kilogram of cocaine was close at hand.
Accordingly, at the time Goldman's car was searched, the
police based on these observations had good reason to believe
that he was the source of the cocaine, had supplied from his
car the kilogram delivered to Mersky, and had possessed the
remaining kilogram nearby the delivery site. When the
missing kilogram was not found on Goldman's person at the
time of his arrest, there was further reason to believe that
it was in his car. This surely gave probable cause to search
the car without dwelling upon Goldman's apparent attempt to
dispose of his car keys before he was apprehended.
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Goldman's second claim of error concerns impeachment
evidence. Goldman's defense, at least in part, rested on the
suggestion that the cocaine was planted in his car trunk,
probably by St. Peter. During the trial, defense counsel
said that Goldman desired to testify, apparently in order to
deny that the cocaine in the car trunk was his or had been
known to him. Counsel asked the court to rule in advance
that if Goldman testified, Goldman could not be impeached
based on certain "bad acts" alleged by the government.
At Goldman's request, the government had supplied a
four-page narrative of "uncharged prior bad acts of the
defendant which the government will seek to use as
impeachment should the defendant take the witness stand at
trial." These alleged bad acts included Goldman's
involvement in prior drug transactions and attempted drug
transactions during 1990 and 1991. Also, the government
alleged that Goldman had twice proposed to rob other drug
dealers and once admitted to firing shots at the home of
someone who had failed to repay a cocaine debt to an
accomplice of Goldman. The district judge declined to bar
the proposed impeaching material, and Goldman then chose not
to testify.
In this court, Goldman asserts that the evidence was not
proper impeachment evidence under Fed. R. Evid. 404(b); that
any probative value it had would have been substantially
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outweighed by its prejudicial effect and so barred by Fed. R.
Evid. 403; and that the court's failure to disallow the
impeachment evidence impaired Goldman's opportunity to
testify and violated his constitutional right to present
evidence in his own defense. We think that a limited portion
of the impeachment evidence might have been excludible under
Rule 403 but conclude that Goldman cannot raise such issues
here because he did not testify.
In all likelihood, the government intended to question
Goldman about his prior drug dealings on the theory that
those dealings, if admitted, made it more likely that he was
lying when he expressed ignorance of the drugs in his car
trunk. There is case law that supports this general theory
of impeachment, see, e.g., United States v. Fortes, 619 F.2d
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108 (1st Cir. 1980), which (like several impeachment devices)
is not expressly described in the Federal Rules of
Evidence.1 At least where knowledge is in dispute, such
evidence of prior similar crimes might well have greater
logical relevance than mere character/propensity evidence
excluded under Rule 404(a). See Fed. R. Evid. 404(b)
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(exception for crimes or wrongs offered to show motive,
knowledge, absence of mistake).
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1Fed. R. Evid. 608(b) permits the witness to be
questioned about prior bad acts for the purpose of attacking
the witness' character for veracity, but this theory was not
available here because under Rule 608(b) the "bad acts" must
be "probative of . . . untruthfulness."
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Of course, even if otherwise admissible on this
impeachment theory, the questioning of Goldman about such
prior bad acts (the government apparently did not propose to
use extrinsic evidence) would still have to be tested under
Rule 403's prejudice standard. Without belittling the
possibility of constitutional objection as well, see Fed. R.
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Evid. 608(b) advisory committee's note, we think that any
impeachment so unreasonable as to threaten the defendant's
constitutional right to present evidence would already be
precluded under the Rule 403 balancing test. In all events,
the government's proposed questioning about prior violence or
threats of violence by Goldman might raise serious questions
under Rule 403's balancing test even if the rest of the
testimony were admissible.
We need not resolve any of these questions, because the
Supreme Court has ruled unequivocally that a defendant does
not preserve such objections to impeaching evidence unless
the defendant chooses to testify at trial and the court then
allows the impeachment over the defendant's objection. Luce
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v. United States, 469 U.S. 38 (1984). Although Luce involved
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impeachment by conviction under Rule 609, the reasons given
by the Supreme Court for requiring the defendant to testify
apply with full force to the kind of Rule 403 and 404
objections that are advanced by Goldman in this case. Cf.
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United States v. Griffin, 818 F.2d 97 (1st Cir.), cert.
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denied, 484 U.S. 844 (1987).
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The Supreme Court's reasons in Luce were multiple and
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its ruling was unanimous. Luce may seem to some to be a
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tough rule as applied to so vital an interest as the
defendant's opportunity to testify in his own defense. Yet,
the Supreme Court's concerns in Luce are also substantial:
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having a fully developed record of the defendant's testimony
to judge the need for and relevance of the impeaching
questions; a set of impeaching questions actually asked by
the prosecutor; and a final, fully informed decision by the
district judge as to which questions to allow. Indeed, we
have some doubt whether the district court would have allowed
impeachment based on Goldman's threats or acts of violence,
especially when his prior drug transactions were available to
show knowledge. In any event, Luce is binding upon us.
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Goldman's third independent claim of error relates to
sentencing and requires less discussion. Goldman, as counsel
sensibly concedes, was subject to sentencing under the career
offender guideline, U.S.S.G. 4B1.1, because he was at least
18 years old at the time of the offense, the offense involved
a controlled substance, and Goldman had at least two prior
felony convictions for either a crime of violence or a
controlled substance offense. These characteristics place a
defendant in criminal history category VI and provide
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increased base offense levels, depending on the statutory
maximum applicable to the offense of conviction. Id.
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Pertinently, under this guideline a statutory maximum of 25
years or more gives rise to an offense level of 34 and a
statutory maximum of life corresponds to an offense level of
37. Id.
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In this instance, based on the quantity of cocaine
attributed to Goldman, the prosecutor advised the district
court at sentencing that the statutory maximum for Goldman
was 40 years. See 21 U.S.C. 841(b)(1)(B) (40 year maximum
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for basic offense). The applicable sentencing range was
therefore 262 to 327 months, and the district court sentenced
Goldman to 262 months' imprisonment. In fact, because
Goldman had a prior drug conviction, the statutory maximum
properly applicable in his case was life imprisonment. See
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id. (maximum of life if prior drug felony).
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Later in the same day, the prosecutor realized his
mistake and filed a motion pursuant to Fed. R. Crim. P. 35(c)
so advising the court. Rule 35(c) provides that the court
within seven days after imposing a sentence may correct a
sentence wrongly imposed "as a result of arithmetical,
technical, or other clear error." Within three days after
the original sentence, the district court conducted a new
sentencing hearing, found that the prior sentence had
constituted clear error based on a mistake as to the
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applicable statutory maximum, and resentenced Goldman to the
minimum sentence applicable to him under the new calculation,
namely, 360 months' imprisonment.
On appeal, Goldman's counsel concedes that, as we have
earlier held, "[t]he Constitution contains no general rule
that prohibits a court from increasing an earlier sentence
where the court finds that it was erroneous and that a higher
sentence was required by law." DeWitt v. Ventetoulo, 6 F.3d
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32, 34 (1st Cir. 1993), cert. denied, 114 S. Ct. 1542 (1994).
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We there held that the right to correct an unlawful sentence
was not without limits, but we were concerned there with
extreme facts: a long delay, actual release of the defendant
from custody based on the shorter sentence, singling out of
the defendant for a belated increase apparently because of
his commission of another offense for which parole revocation
would have been available, and other troubling
characteristics. Id. at 35-36. There is nothing of that
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sort in this case.
Goldman suggests that because the district court's
original miscalculation was based on the government's
mistaken reading of the statute, it is fundamentally unfair
to impose a higher sentence. United States v. Harvey, 2 F.3d
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1318, 1330 (3d Cir. 1993), is cited for this proposition but
does not bear it out. Harvey involved the question whether a
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sentencing error in favor of the defendant could be fully
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corrected where the defendant appealed the sentence on other
grounds but the government chose not to appeal an error in
the defendant's favor. Harvey was thus concerned solely with
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the consequence of the government's decision not to appeal.
As for fundamental fairness, it is difficult to see
anything unfair about the district court's decision to
correct a clear error in a sentence where the error relates
solely to the precise length of a lengthy prison term and the
correction is made with great promptness. Goldman does not
claim to have relied detrimentally on the mistake, and its
correction is surely what the drafters of Rule 35(c) had in
mind. Given the complexity of the guidelines, the seven-day
window is a well-advised precaution and may operate as
readily in favor of the defendant as against him. United
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States v. Fahm, 13 F.3d 447, 453-54 (1st Cir. 1994).
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Affirmed.
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