USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1819
UNITED STATES,
Appellee,
v.
OTIS DARREN LEWIS,
Defendant - Appellant.
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No. 93-1820
UNITED STATES,
Appellee,
v.
MICHAEL STARKS,
Defendant - Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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William A. Brown, by Appointment of the Court, for appellant
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Otis Darren Lewis.
James P. Duggan, by Appointment of the Court, for appellant
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Michael Starks.
Thomas C. Frongillo, Assistant U.S. Attorney, with whom
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Donald K. Stern, United States Attorney, and Michael J. Pelgro,
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Assistant U.S. Attorney, were on brief for appellee.
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November 14, 1994
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TORRUELLA, Circuit Judge. A federal grand jury
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returned a five-count indictment charging Otis Darren Lewis and
Michael Starks with (1) being felons-in-possession of firearms,
(2) carrying and using firearms during and in relation to a drug
trafficking crime, and (3) possession with intent to distribute
cocaine base. Following a four day trial, a jury found Lewis and
Starks guilty on all counts. The court then sentenced Lewis to
serve 322 months in prison. The court sentenced Starks to serve
144 months in prison. Lewis and Starks now appeal their
convictions and sentences on various grounds. For the following
reasons, we affirm.
BACKGROUND
BACKGROUND
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A. Facts
A. Facts
On Friday, August 14, 1992, a confidential informant
telephoned Officer Robert Leedberg of the Brockton Police
Department "Gang Unit" on a cellular phone. The informant
stated that two men, Otis Darren Lewis ("Lewis") and Michael
Starks ("Starks"), were in possession of firearms inside Pete &
Mary's Bar, located on the corner of Montello and Franklin
Streets in downtown Brockton. Because Officer Leedberg was
involved in another case on August 14, 1992, he did not respond
to the tip.
The confidential informant again telephoned Officer
Leedberg on August 15, 1992, at about 11:00 p.m. and then again
at 12:20 a.m. on August 16, 1992. The confidential informant
told Officer Leedberg that Lewis and Starks were again in
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possession of firearms in Pete & Mary's Bar. He stated that he
had seen the firearms and the informant then described to Officer
Leedberg how Lewis and Starks were dressed. After obtaining this
information, Officer Leedberg and Brockton Police Officers James
Smith and Thomas Keating established surveillance in the vicinity
of Pete & Mary's Bar. The officers were in an unmarked police
cruiser and were dressed in street clothes.
During the course of their investigation, Officer Smith
left the unmarked police car to conduct surveillance from
Montello Auto Sales, a used car lot located directly across the
street from the front of Pete & Mary's Bar. Officers Leedberg
and Keating remained in the unmarked police cruiser and drove to
a surveillance post in a parking lot behind Pete & Mary's Bar.
They watched the rear door of the bar from this location.
At about 12:35 a.m., the confidential informant arrived
in the parking lot behind the bar. Officers Leedberg and Keating
met with the informant and observed him enter and later leave the
bar. After leaving the bar, the informant conferred with Officer
Smith in the used car lot. Officer Smith then called Officers
Leedberg and Keating on the radio. After receiving this call,
Officers Leedberg and Keating moved their unmarked police cruiser
to a position from which they could observe the front of the bar.
At about 1:00 a.m., Officer Smith saw Lewis and Starks leave Pete
and Mary's Bar, cross Montello Street, and approach a brown Buick
parked at the D'Angelo's Sub Shop ("D'Angelo's") parking lot.
As Lewis and Starks stood near the brown Buick,
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Officers Leedberg and Keating were rapidly approaching the
D'Angelo's parking lot in their unmarked police car. Starks
recognized the unmarked police car as a result of a previous
encounter with Officers Leedberg and Smith.
As Officers Leedberg and Keating advanced, Officer
Smith, who was still conducting surveillance from the used car
lot adjacent to the D'Angelo's parking lot, observed Starks bend
down, place a black object under the Buick, and straighten up.
Officer Smith then saw Lewis similarly bend down on the driver's
side of the Buick. Officer Leedberg then parked the unmarked
police vehicle behind the brown Buick. As Officer Keating exited
the car, he saw Starks waiving his hands and approaching the
police car. Officer Keating then observed Lewis stand up on the
driver's side of the Buick. After exiting the unmarked police
car, Officer Leedberg repeatedly shouted, "Police, don't move;
keep your hands in sight." Officer Smith then pat-frisked Lewis.
Officer Leedberg pat-frisked Starks. Neither officers found any
guns or narcotics at this time. On instructions from Officer
Smith, Officer Keating then searched the parking lot where the
pair had just bent down and stood up. He found a loaded 9
millimeter Beretta pistol and a vial containing 17 pieces of a
substance later determined to be "crack cocaine" under the brown
Buick. He also found a loaded .45 caliber Star pistol and a vial
containing 22 pieces of crack cocaine under a car parked
alongside the brown Buick. The police officers then placed Lewis
and Starks under arrest.
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B. Procedural History
B. Procedural History
A federal grand jury returned a five-count indictment
charging Lewis and Starks with (1) being felons-in-possession of
firearms in violation of 18 U.S.C. 922(g)(1), (2) carrying and
using firearms during and in relation to a drug trafficking crime
in violation of 18 U.S.C. 924(c); and (3) possession with
intent to distribute cocaine base in violation of 21 U.S.C.
841(a)(1). Following the indictment, Lewis and Starks filed a
motion to suppress the guns and narcotics which the police had
seized on the morning of the arrest as being the fruit of an
unlawful search and seizure. The district court denied this
motion and admitted the evidence. Following a four day trial, a
jury found Lewis and Starks guilty on all counts. The court
calculated that, under the sentencing guidelines, the crimes
committed by Lewis and Starks amounted to a total offense level
of 26. The court determined that Lewis' prior crimes placed him
in criminal history category IV and sentenced him to serve 322
months in prison. The court placed Starks in criminal history
category III and sentenced him to serve 144 months in prison.
Lewis and Starks now appeal various issues connected to their
convictions and sentences.
DISCUSSION
DISCUSSION
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I. The evidentiary hearing
I. The evidentiary hearing
Lewis and Starks filed a motion to suppress, contending
that the police officers improperly seized the firearms and
cocaine. With respect to the motion, Lewis and Starks contend
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that the district court erred by failing to order an evidentiary
hearing. As a preliminary matter, we note that the district
court is entrusted with deciding whether to hold an evidentiary
hearing and we will not overrule the refusal to convene an
evidentiary hearing unless the district court is shown to have
abused its discretion. United States v. McAndrews, 12 F.3d 273,
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280 (1st Cir. 1993). Lewis and Starks have made no such showing.
"[A] criminal defendant has no absolute or presumptive
right to insist that the district court take testimony on every
motion." United States v. Panitz, 907 F.2d 1267, 1273 (1st Cir.
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1990) (citations omitted). Evidentiary hearings on motions to
suppress are required only when a defendant makes a sufficient
showing that a warrantless search has occurred. United States v.
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Migely, 596 F.2d 511, 513 (1st Cir.), cert. denied, 442 U.S. 943
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(1979). To make this showing "[t]he defendant must allege facts,
'sufficiently definite, specific, detailed, and nonconjectural,
to enable the court to conclude that a substantial claim is
presented.'" Id. (quoting Cohen v. United States, 378 F.2d 751,
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761 (9th Cir.), cert. denied, 389 U.S. 897 (1967). The defendant
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must allege facts that, if proven, would entitle him to relief.
Migely, 596 F.2d at 513.
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Lewis and Starks have not shown that they were entitled
to an evidentiary hearing. The facts surrounding their arrest
were essentially uncontested at the hearing on the motion to
suppress. Lewis and Starks were required to allege facts that
indicated that the police officer's discovery of the guns and
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cocaine violated the Fourth Amendment. They alleged none.
Neither Lewis nor Starks personally swore out any affidavits.
The lone affidavit in support of the motion to suppress was
prepared by Starks' attorney, who had no first-hand knowledge of
the relevant events; it contains only conclusory allegations that
the police lacked probable cause or a reasonable articulable
suspicion of criminal activity when they arrested Lewis and
Starks. In contrast, the government filed detailed affidavits
sworn out by Officers Smith and Leedberg in support of its
opposition to Lewis' and Starks' motion to suppress.
In sum, the affidavit in support of Lewis' and Starks'
motion to suppress does not allege facts that are sufficiently
definite, specific, detailed, and nonconjectural to enable the
court to conclude that a substantial claim is presented. Thus,
the district court was completely justified in refusing to hold
an evidentiary hearing where the factual matters were essentially
uncontested.
II. The motion to suppress
II. The motion to suppress
Lewis and Starks contend that the contraband the police
officers confiscated from the parking lot should have been
excluded as the fruit of an unlawful, warrantless search.
Specifically, Lewis and Starks assert that the police seized them
without probable cause immediately after they left Pete & Mary's
Bar and that this seizure occurred before the officer allegedly
observed them abandon the guns and cocaine.
First, we agree with the government that Lewis and
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Starks lacked standing under the Fourth Amendment to challenge
the search. Moreover, even assuming arguendo that Lewis and
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Starks had standing, we find that the search satisfied the
requirements of the Fourth Amendment.
While we review the district court's findings of fact
on a motion to suppress for clear error, we review questions of
law de novo. United States v. Zapata, 18 F.3d 971, 975 (1st Cir.
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1994). "This phenomenon sets the stage for a more nuanced
statement of appellate practice in Fourth Amendment cases." Id.
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Though we treat the factual findings with deference, we
"[subject] the trial court's ultimate constitutional conclusions
to plenary oversight." Id.
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A. Standing
A. Standing
The Fourth Amendment's protection against unreasonable
searches and seizures extends only to those places and interests
in which the defendant has a reasonable expectation of privacy.
United States v. Cruz Jim nez, 894 F.2d 1, 5 (1st Cir. 1990)
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(citing Rakas v. Illinois, 439 U.S. 128, 140-50 (1978)). Such an
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expectation of privacy is a threshold standing requirement that a
defendant must establish before a court can proceed with any
Fourth Amendment analysis.1 Cruz Jim nez, 894 F.2d at 5 (citing
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1 "This inquiry is often referred to as a 'standing' issue,
although it is not an inquiry that serves the function of
traditional standing doctrine, which is to enable a federal court
to determine whether there is such case or controversy that it
may take jurisdiction of under Article III." Cruz Jim nez, 894
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F.2d at 5 n.1 (citations omitted). The concept of standing under
the Fourth Amendment refers to the defendant's burden of proving
a legitimate expectation of privacy as a prerequisite to
challenging assertedly unlawful police conduct. United States v.
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United States v. Salvucci, 448 U.S. 83, 90-91 (1980)). "What the
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Fourth Amendment protects is the security a man relies upon when
he places himself or his property within a constitutionally
protected area, be it his home or his office, his hotel room or
his automobile." Hoffa v. United States, 385 U.S. 293, 301
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(1966). "Essentially, . . . to prove a Fourth Amendment
violation, [a defendant] must demonstrate not only that he
exhibited a subjective expectation of privacy, but also that his
expectation was justifiable under the attendant circumstances."
Cruz Jim nez, 894 F.2d at 5 (citing United States v. Aguirre, 839
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F.2d 854, 857 (1st Cir. 1988)). The defendant bears the burden
of persuasion on this issue. Cruz Jim nez, 894 F.2d at 5
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(citations omitted).
A defendant who fails to demonstrate a sufficiently
close connection to the relevant places or objects will not have
standing to claim that they were illegally searched or seized.
United States v. S nchez, 943 F.2d 110, 113 (1st Cir. 1991); see
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also United States v. Pierce, 959 F.2d 1297, 1303 (5th Cir.),
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cert. denied, 113 S. Ct. 621 (1992) (holding that a defendant
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lacked standing to object to a search because he never at any
point during the trial or appeal "attempted to establish, much
less prove, any privacy interest in the [contraband]").
Lewis and Starks lacked standing to protest the police
officers' search of the parking lot because they failed to assert
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S nchez, 943 F.2d 110, 113 n.1 (1st Cir. 1991). "We therefore
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use the term 'standing' somewhat imprecisely to refer to this
threshold substantive determination." Id.
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any privacy interest in the seized contraband. It may well be
that Lewis and Starks had a reasonable expectation of privacy in
the contraband, but if so, they failed to assert it in support of
their motion to suppress. Neither Lewis nor Starks personally
swore out any affidavits with respect to such an expectation.
Rather, the lone affidavit in support of their motion to suppress
was prepared by Starks' attorney, who had no first-hand knowledge
of the relevant events. Moreover, this affidavit contains only
conclusory allegations that the police lacked probable cause or a
reasonable articulable suspicion of criminal activity when they
arrested Lewis and Starks. We appreciate that Lewis and Starks
may have feared that any interest they may have claimed in the
contraband would be used against them at trial; however, "it has
been well settled for over twenty years that testimony given to
meet standing requirements cannot be used as direct evidence
against the defendant at trial on the question of guilt or
innocence." United States v. Garc a-Rosa, 876 F.2d 209, 219 (1st
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Cir. 1989) (citing Simmons v. United States, 390 U.S. 377, 390
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(1968)). Lewis' and Starks' only interest in suppressing the
contraband appears to be to avoid its evidentiary force against
them; this is not an interest protected by the Fourth Amendment.
Although we find that Lewis and Starks lack standing to
raise a Fourth Amendment challenge, we note that in any event the
search satisfied the Fourth Amendment under the doctrines of
abandonment and plain view.
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B. Abandonment
B. Abandonment
When a defendant abandons property before a "seizure"
occurs, the Fourth Amendment is not implicated because the
property is not the fruit of an illegal search and seizure.
California v. Hodari D., 499 U.S. 621, 629 (1990). An arrest
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requires "either physical force . . . or, where that is absent,
submission to the assertion of authority." Id. at 626 (emphasis
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in original). The police have made an assertion of authority
only if their words and actions would have caused an average
citizen to believe he was not free to leave. Id. at 628 (citing
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United States v. Mendenhall, 446 U.S. 544, 554 (1980)). In
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Hodari, a police officer was chasing the defendant and, moments
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before the officer tackled him, the defendant tossed a rock of
cocaine from his person. Id. at 623. The Court held that,
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"assuming that [the officer's] pursuit . . . constituted a 'show
of authority' enjoining [the defendant] to halt, since [he] did
not comply with that injunction he was not seized until he was
tackled." Id. at 629. Thus, the cocaine abandoned during the
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course of the chase was not the fruit of a seizure.
We follow Hodari and find that, even if the Brockton
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Police had made a show of force when they approached Lewis and
Starks in the D'Angelo's parking lot, Lewis and Starks abandoned
the contraband before they submitted to official authority. The
district court expressly found that Lewis and Starks bent down
and straightened up near the brown Buick before the police
announced themselves and then pat-frisked Lewis and Starks.
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Thus, though Lewis and Starks eventually submitted to the police
officers, this submission occurred after they had abandoned the
contraband. Consequently, the motion to suppress was properly
denied under the doctrine of abandonment.
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C. Plain View
C. Plain View
The "plain view" doctrine allows the police to seize
evidence without a warrant so long as (1) the evidence is in
"plain view," (2) the police are legitimately on the premises
where the evidence is seized, and (3) the evidence is immediately
and apparently connected to the criminal activity. Coolidge v.
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New Hampshire, 443 U.S. 443, 464-73 (1971).
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Lewis and Starks do not contest the fact that the guns
and cocaine were in plain view and their connection to criminal
activity was immediate and apparent when the officers seized
them. Rather, Lewis and Starks contend that the police were not
legitimately in the parking lot where the evidence was seized.
The district court found that the police officers were
legitimately in the parking lot and that they had the "reasonable
articulable suspicion" necessary to justify an investigatory stop
under the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 21
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(1968); see also Adams v. Williams, 407 U.S. 143 (1972) (holding
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that a Terry stop was justified when an informant told a police
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officer that an individual in a nearby vehicle was carrying drugs
and weapons). The record amply supports this conclusion. The
district court found that a reliable confidential informant had
told the Brockton Police that Lewis and Starks were carrying
contraband in Pete & Mary's Bar. Officer Leedberg's affidavit
established that the informer had previously provided information
that led to the arrest of twelve defendants in seven criminal
cases in the Brockton District Court. Further, during the course
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of their surveillance outside Pete & Mary's Bar, the police
officers were able to corroborate some portions of the
confidential informant's tip. Specifically, the officers were
able to verify that the informer had been inside the bar and was
thus in a position to see that Lewis and Starks were in
possession of firearms. The surveillance also allowed the
officers to observe that Lewis and Starks were dressed as the
informer had described. Consequently, the informer's tip,
coupled with the informer's previous reliability and the
corroboration provided by police observations, justified an
investigatory stop. Thus, because we agree that the police were
legitimately in the parking lot and because the guns and cocaine
were in plain view and their connection to criminal activity was
apparent, the officers properly seized the evidence.
III. The confidential informant's identity
III. The confidential informant's identity
Lewis and Starks assert that the district court
erroneously denied their motion to disclose the identity of the
confidential informant. Specifically, they contend that the
informant played a material role in their arrest and that his
testimony was vital because it pertained to their defense and
could "amplify, contradict, or clear up" the Government's
evidence.
We review the district court's decision not to disclose
the identity of a confidential informer under an abuse of
discretion standard. See United States v. Jackson, 918 F.2d 236,
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240 (1st Cir. 1990).
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The courts have long recognized that the Government has
a "privilege to withhold from disclosure the identity of persons
who furnish information of violations of law to officers charged
with enforcement of that law." Roviaro v. United States, 353
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U.S. 53, 59 (1957). "The purpose of the privilege is the
furtherance and protection of the public interest in effective
law enforcement. The privilege recognizes the obligation of
citizens to communicate their knowledge of the commission of
crimes to law-enforcement officials and, by preserving their
anonymity, encourages them to perform that obligation." Id.
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This privilege, however, is not absolute. Id. at 60-61. "Where
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the disclosure of an informer's identity, or the contents of his
communication, is relevant and helpful to the defense of an
accused, or is essential to a fair determination of a cause, the
privilege must give way." Id.
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The resolution of this issue depends on the particular
circumstances of each case. Id. at 62. The trial court must
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balance the public interest in protecting the flow of information
against the individual's right to prepare his defense. Id. In
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so doing, it should take into consideration the crime charged,
the possible defenses, the possible significance of the
informer's testimony, and other relevant factors. Id. The
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burden is on the defendant to demonstrate that the circumstances
demand disclosure; "[mere] speculation . . . is not sufficient to
meet the heavy burden which rests on an accused to establish that
the identity of a confidential informant is necessary to his
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defense." United States v. Giry, 818 F.2d 120, 130 (1st Cir.),
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cert. denied, 484 U.S. 855 (1987) (quoting United States v.
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Skeens, 449 F.2d 1066, 1070 (D.C. Cir. 1971)). Where the
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informant is a "mere tipster," as opposed to an active
participant in the offense charged, disclosure is required only
in the exceptional case where it is vital to a fair trial.
United States v. Batista-Polanco, 927 F.2d 14, 19 (1st Cir. 1991)
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(citing Giry, 818 F.2d at 130).
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Lewis and Starks argue that the informant was more than
a mere tipster and that his testimony was vital to their defense,
in that he provided the police with the information that resulted
in their arrest. They imply that the informant may have even
"set them up." They list a number of questions that were
unanswered due to the district court's refusal to require
disclosure of the informant. These include questions concerning
the nature of the relationship, if any, between the informer and
Lewis and Starks and whether the informer harbored a personal
grudge against them. Consequently, they conclude that the
informer's absence precluded a fair trial. We disagree.
The district court properly refused to order disclosure
of the informant's identity. The record indicates that the
informant was merely a tipster in the arrest of Lewis and Starks.
The informer simply spoke with the police, first by telephone and
then in person, to inform them that Lewis and Starks were
carrying firearms in Pete & Mary's Bar. The arrest then occurred
approximately twenty minutes after the police last spoke with the
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informer. The informer was not present at the scene of the
arrest in the parking lot and, thus, was in no position to
amplify, contradict, or clear up the testimony of any government
witness.
Moreover, there is ample evidence to refute any "frame
up" theory. Though the informer told the officers that Lewis and
Starks would be leaving through the front door of Pete & Mary's
Bar, he did not tell them that Lewis and Starks would proceed to
the D'Angelo's parking lot. Thus, because he did not tell the
police where Lewis and Starks would go upon leaving Pete & Mary's
Bar, the informant could not have controlled when or where the
arrest would occur. Furthermore, the police officers never saw
the informer in the D'Angelo's parking lot. This makes it
virtually impossible that the informer planted the contraband,
especially in light of the fact that the officers saw Lewis and
Starks attempting to hide it. Thus, we find that the district
court did not abuse its discretion when it denied the motion to
disclose the informer's identity.
IV. The missing witness instruction
IV. The missing witness instruction
Lewis and Starks contend that the district court erred
when it refused to issue a missing witness instruction with
regard to the confidential informant. Specifically, they argue
that the instruction was necessary because the informant was a
witness in the government's exclusive control whose testimony
would have been relevant and noncumulative. We review the
court's refusal to give such an instruction for an abuse of
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discretion. See United States v. St. Michael's Credit Union, 880
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F.2d 579, 597 (1st Cir. 1989) (citations omitted).
"[T]he failure of a party to produce available evidence
that would help decide an issue may justify an inference that the
evidence would be unfavorable to the party to whom it is
available or [to] whom it would ordinarily be expected to favor."
St. Michael's Credit Union, 880 F.2d at 597 (quoting 2 C. Wright,
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Federal Practice and Procedure 489 (1982)). A missing witness
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instruction is appropriate when its proponent demonstrates that
the absent witness would have been (1) "favorably disposed" to
testify in the government's behalf, (2) "peculiarly available" to
the government, or (3) in the "exclusive control" of the
government. United States v. Welch, 15 F.3d 1202, 1214-15 (1st
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Cir.), cert. denied, 114 S. Ct. 1863 (1994) (citing St. Michael's
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Credit Union, 880 F.2d at 597). When deciding whether to issue a
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missing witness instruction, the judge should consider whether
the witness could provide "relevant, noncumulative testimony."
See United States v. Ariza-Ibarra, 651 F.2d 2, 16 (1st Cir.),
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cert. denied, 454 U.S. 895 (1981); see also Welch, 15 F.3d 1215
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n.17.
In a similar situation, we upheld the district court's
refusal to issue a missing witness instruction with regard to an
undisclosed confidential informant. United States v. Mart nez,
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922 F.2d 914, 925 (1st Cir. 1991). In Mart nez, the informer had
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witnessed prior drug transactions in the apartment where the
defendants were eventually arrested. However, we found that the
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informer was a mere tipster because he was not present during the
drug transaction which constituted the sole basis for the
prosecution and thus "was not in a position to amplify,
contradict, or clear up any inconsistencies in the government
witnesses' testimony . . . ." Id. at 921. We then concluded
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that a missing witness instruction would have been improper
because, as a mere tipster, the informant was unessential to the
defendant's right to a fair trial. Id. at 921, 925.
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Specifically, we held that where "a defendant's right to a fair
trial is not jeopardized by the government's refusal to disclose
its informant's identity, the exercise of that prerogative can
never give rise to a negative inference suggesting that the
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informant's testimony would have been unfavorable." Id.
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(emphasis added). We further noted that an adverse inference was
especially unjustified when the government's decision not to
reveal the identity of its confidential informant was prompted
only by its "concern for the informant's safety and anonymity . .
. ." Id.
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We find the reasoning of the Mart nez court to be
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controlling here. As we concluded above, the informer was a mere
tipster whose absence did not jeopardize Lewis' and Starks' right
to a fair trial. Per Mart nez, this conclusion renders a missing
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witness instruction inappropriate. Furthermore, given the
violent background of Lewis -- three prior convictions for armed
robbery --the government's concern for the informer's safety was
justified. Moreover, as in Mart nez, Starks used his summation
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to argue an adverse inference from the absence of the
confidential informant. Id. Thus, we find that the district
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court did not abuse its discretion when it refused to issue the
missing witness instruction.
V. Cross-examination of Officer Noone
V. Cross-examination of Officer Noone
Lewis and Starks claim that the district court
improperly limited their cross-examination of Officer Noone. As
an expert witness for the government, Officer Noone offered
testimony regarding the distribution and value of crack cocaine,
as well as the use of weapons by alleged dealers of crack
cocaine. Lewis and Starks claim that the district court
improperly refused to allow them to cross-examine Officer Noone
regarding the correct and preferable law-enforcement procedures
to be used when investigating and prosecuting a narcotics case.
Through this cross-examination, Lewis and Starks were attempting
to show that they were the victims of a sloppy and botched
investigation. They claim that they were prejudiced by these
allegedly improper limits because "the jury was unable to realize
the numerous police errors that permeated this case . . . ."
We review a district court's limitations on cross-
examination for an abuse of discretion. United States v. Twomey,
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806 F.2d 1136, 1139-40 (1st Cir. 1986). "A defendant's right to
cross-examine is fundamental and demanding of great respect,
Alford v. United States, 282 U.S. 687, 691-92 (1931); however, a
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trial judge retains wide latitude to impose reasonable limits in
order to avoid prejudice to a party or confusion of the issues."
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Twomey, 806 F.2d at 1139 (citing Delaware v. Van Arsdall, 475
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U.S. 673, 679 (1986)).
The district court gave Lewis and Starks wide latitude
to impeach Officer Noone's credibility with questions about
general investigatory procedures. The court, however, limited
Lewis' and Starks' cross-examination when they attempted to
elicit testimony on matters that were cumulative, irrelevant,
outside the scope of direct, or outside Officer Noone's personal
knowledge and expertise.
For instance, Officer Noone was not involved in the
surveillance and investigation that led to the arrest of Lewis
and Starks. Thus, the court was within its discretion when it
excluded questions on the actual procedures involved in the
present case.2 The court also acted within its discretion when
it excluded a question concerning whether it is preferable to use
controlled drug buys and electronic surveillance before accusing
a defendant of being a drug dealer. Although Officer Noone's
knowledge of various police procedures or lack thereof may have
been relevant to impeach his credibility as an expert witness,
the district court had already given the defendants considerable
latitude to accomplish this. Thus, because these procedures were
not used in this case, this hypothetical was too far removed from
the facts at hand. The court likely decided to cut off this
____________________
2 These questions included whether the police had made
controlled drug buys or had used electronic surveillance during
the investigation and how Starks was dressed when he was
arrested.
- 22 -
speculative line of questioning because it was so marginally
relevant and because the defense counsel could have proceeded to
ask Officer Noone about dozens of procedures that the police
could have used in this case, leading to interminable unrelated
speculation and confusion.
We have carefully reviewed Lewis' and Starks' other
specific contentions and find them similarly meritless.
- 23 -
VI. Prosecutorial misconduct
VI. Prosecutorial misconduct
A. Comment on the "frame-up" theory
A. Comment on the "frame-up" theory
Lewis and Starks assert that the government improperly
commented on their failure to produce any evidence regarding an
alleged "frame up" orchestrated by the confidential informant.
Whether the prosecutor's comments were improper is reviewed de
novo; whether the misconduct, if any, demands a new trial is
reviewed for an abuse of discretion. United States v. Glantz,
______________ ______
810 F.2d 316, 320 n.2 (1st Cir.), cert. denied, 482 U.S. 929
_____________
(1987).
Though it is axiomatic that the government cannot
comment on a defendant's failure to take the stand, Griffin v.
_______
California, 380 U.S. 609, 615 (1965), "the government is
__________
entitled, to some extent, to comment on a defendant's failure to
produce evidence supporting the defense theory of the case."
Glantz, 810 F.2d at 321 (citing United States v. Savarese, 649
______ _____________ ________
F.2d 83, 87 (1st Cir. 1981)). In Glantz, the prosecutor remarked
______
that the defendant had failed to produce records supporting its
contention that the alleged kickbacks were actually legitimately
earned legal fees. Glantz, 810 F.2d at 320-24. We found that
______
the arguments were not such that a jury would naturally and
necessarily take them to be comments on the defendant's failure
to testify. Rather, the arguments highlighted weaknesses in the
defense's theory -- the primary weakness was, in fact, the
absence of business records supporting this theory. Id. at 322-
___
23. Having put forth a theory in defense, a defendant cannot
- 24 -
expect the government to refrain from commenting on its
deficiencies. See id. at 321.
___ ___
Here, Lewis and Starks assert that the government
improperly commented on the lack of evidence suggesting that the
informer had framed Lewis and Starks by planting the contraband
in the parking lot. In closing, the government argued:
Now, you heard at the beginning of this
case, the very beginning of this case
. . . that somebody framed these
defendants. That's what was stated to
you. Somebody framed the defendants.
Now, what are you hearing? You're
hearing, well -- first of all, what
evidence has there been on that? None.
What evidence has come to you wherein you
would say, "Yeah, I think they were
framed?"
Lewis and Starks contend that this was an impermissible comment
on their failure to testify. We disagree. Both Lewis and Starks
raised the possibility that they had been framed by the
confidential informant. Starks raised the "set up" defense in
his opening statement. Though Lewis never explicitly asserted
it, he insinuated that the confidential informant had indeed
planted the contraband.3 Lewis and Starks failed to offer any
evidence whatsoever that would even remotely support this theory.
Given this, we believe the government's closing statement was a
permissible comment on the weakness of the frame-up theory
____________________
3 This insinuation is most clear in Lewis' cross-examination of
Officer Leedberg. When Officer Leedberg stated that he
frequently searches informants prior to a "controlled buy,"
Lewis' counsel asked, "And that's to make sure that the person
that you're dealing with [the informant] is not planting
contraband on the people you're going to arrest, is that right,
sir?"
- 25 -
alleged by the defense and did not constitute prosecutorial
misconduct.
- 26 -
B. The "paid informant" issue
B. The "paid informant" issue
Starks contends that the government improperly
undermined his counsel's credibility when the government
demonstrated at trial that the informant was not a paid informant
after the government had previously represented to Starks that he
was a paid informant. In a pretrial conference, the government
stated that it "believe[d] . . . the Brockton Police do not have
the confidential informant signed up as a paid, working
informant; that on occasion they give him a few bucks here and
there and he provides . . . information to the Brockton Police."
Starks asserts that his counsel relied on this statement in
preparing his trial strategy. Apparently, Starks intended to
demonstrate that the informant had a monetary incentive to
"produce" criminals for the police. Starks claims that the
government undermined his credibility and, indeed, his entire
trial strategy, when it elicited testimony from Brockton Police
officers that these officers had never paid the informant and
that they were not aware that any other law enforcement personnel
had made such payments.
As a preliminary matter, we note that Starks failed to
raise this objection at trial in a specific and timely manner; he
neither objected nor moved for a mistrial or new trial -- rather,
he merely raised some vague concerns in a sidebar conference.
Consequently, we must review for plain error. Fed. R. Crim. P.
52(b); see also United States v. Romero, 1994 WL 456857, *10 (1st
________ _____________ ______
Cir.).
- 27 -
We will find plain error only when (1) there is an
"error," (2) that is "clear" or "obvious" and (3) that affects
"substantial rights." United States v. Olano, 113 S. Ct. 1770,
______________ _____
1776-77 (1993); United States v. Col n-Pag n, 1 F.3d 80, 81 (1st
_____________ ___________
Cir. 1993). In this case, there is no error, much less plain
error. Starks fails to express any legal theory which supports
his claim that he was denied a fair trial. Consequently, per
standard appellate procedure, we are tempted to deem it waived.
United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert.
______________ _______ _____
denied, 494 U.S. 1082 (1990). As we have previously noted, "[i]t
______
is not enough to mention an argument in the most skeletal way,
leaving the court to do the counsel's work, create the ossature
for the argument, and put flesh on its bones." Id. Moreover,
___
and more importantly, Starks' argument is factually infirm.
While Starks contends that his trial strategy was to discredit
the informant by demonstrating that he had a monetary incentive,
he neglected to pursue this theory during his cross-examination
of all the police officers who took the stand. Not only does
this undermine Starks' contention that this was his trial
strategy, it also demonstrates that the government's pretrial
statements might have been factually accurate. The government
stated that Brockton Police occasionally gave the informant "a
few bucks here and there." Thus, by failing to explore this line
of questioning thoroughly, Starks did not demonstrate that the
- 28 -
government's pretrial statement was indeed false.4 In sum, we
find that Starks has asserted no factual or legal proposition
that satisfies the plain error standard.
VII. Admission of the photographs
VII. Admission of the photographs
Lewis and Starks assert that the district court
improperly admitted an "unduly suggestive array of photographs."
Over objection, the court admitted a folder consisting of Lewis'
and Starks' booking photographs stapled alongside photographs of
the guns and cocaine discovered near them. Lewis and Starks
contend, and with some merit, we think, that the array of
photographs was unfairly prejudicial because it suggested an as-
yet unproven connection between them and the contraband. That
is, the arrays depicted the ultimate legal conclusion, that Lewis
and Starks possessed cocaine and firearms, that was the
government's burden to prove.
Evidence is relevant if it has "any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence." Fed. R. Evid. 401. Relevant
evidence is generally admissible. Fed. R. Evid. 402. However, a
judge may exclude otherwise relevant evidence if "its probative
value is substantially outweighed by the danger of unfair
prejudice . . . ." Fed. R. Evid. 403. We review a trial court's
____________________
4 Moreover, we note that this was merely a statement of belief
by the government. Starks never stated that he intended to rely
on it; further, he did not attempt to confirm it with pretrial
discovery. In short, Starks did very little to shore up what he
claims was his primary trial strategy.
- 29 -
Rule 401/403 balancing test for an abuse of discretion, and only
in "extraordinarily compelling circumstances" will we reverse a
district court's "on-the-spot judgment" concerning the probative
value and unfair effect of the proffered evidence. United States
_____________
v. Rodr guez-Estrada, 877 F.2d 153, 155-56 (1st Cir. 1989).
_________________
While we are concerned with the government's trial tactic, we
find that the error, if any, was harmless in light of the strong
case presented by the government.5 United States v. Ruiz-
______________ _____
Batista, 956 F.2d 351, 352-53 & n.2 (1st Cir.), cert. denied, 113
_______ ____________
S. Ct. 105 (1992) (noting that reversal is inappropriate where
other evidence of guilt renders an evidentiary error harmless).
Here, the photos were relevant. They show the
condition of the evidence when it was recovered. However, we do
not conclude whether the danger of unfair prejudice presented by
the photographic array substantially outweighed its probative
value because the error, if any, in admitting the array was
ultimately harmless. The array may have prematurely connected
Lewis and Starks to the contraband. However, the jury was
informed of how the array was compiled. Thus, it could not have
concluded that Lewis and Starks possessed the contraband simply
because their photographs were stapled alongside photographs of
the contraband. Further, the government eventually presented
____________________
5 We think that prosecutors ought to bear in mind that where, as
here, the government has a strong case, such arguably prejudicial
tactics do not help the government but do create the risk that
sufficiently egregious conduct will constitute grounds for
reversal. Conversely, where the case is a close one, error will
not be deemed harmless and the conviction will be reversed.
- 30 -
overwhelming evidence to connect Lewis and Starks to the guns and
cocaine depicted in the array. Lewis and Starks were standing
alongside the vehicles under which the police found the
contraband. Moreover, Officer Smith testified that, moments
before the arrest, he saw both Lewis and Starks make furtive
movements as if they were attempting to hide something under the
vehicles. Consequently, we do not find any reversible error.
VIII. Failure to produce exculpatory evidence
VIII. Failure to produce exculpatory evidence
Lewis and Starks contend that the Brockton Police
Department mishandled their case in so severe a fashion that they
were denied a fair trial. Specifically, they allege (1) that
they were denied access to possibly exculpatory evidence when the
Brockton Police erased audio tapes of the events surrounding
their arrest, (2) that they were denied an opportunity to prove
their frame-up theory when the Brockton Police delayed submitting
the contraband for fingerprinting, and (3) that the Brockton
Police colluded to produce a false and inaccurate police report.
A defendant has an established due process right to
request and receive all material evidence in the government's
possession. Brady v. Maryland, 373 U.S. 83, 87 (1963). We
_____ ________
recently discussed the framework of a defendant's
constitutionally guaranteed access to evidence. United States v.
_____________
Femia, 9 F.3d 990, 993 (1st Cir. 1993). This framework reflects
_____
"the difficulty of developing rules to deal with evidence
destroyed through prosecutorial neglect or oversight."
- 31 -
California v. Trombetta, 467 U.S. 479, 486 (1984). "Whenever
__________ _________
potentially exculpatory evidence is permanently lost, courts face
the treacherous task of divining the import of materials whose
contents are unknown and, very often, disputed." Id. A
___
defendant who seeks to suppress evidence formerly in the
government's possession must show that (1) the government acted
in bad faith when it destroyed the evidence, (2) the evidence
possessed an apparent exculpatory value before it was destroyed,
and (3) the missing evidence is, to some extent, irreplaceable.
Femia, 9 F.3d at 993-94; Trombetta, 467 U.S. at 488-89; Arizona
_____ _________ _______
v. Youngblood, 488 U.S. 51, 58 (1988). As we noted in Femia, the
__________ _____
dispositive factor is often whether the defendant can demonstrate
that the government acted in bad faith. Femia, 9 F.3d at 994.
_____
The Internal Affairs Office of the Brockton Police
records all radio transmissions made from police vehicles. The
tapes of the transmissions between the officers involved with
Lewis' and Starks' arrest were subsequently recorded over before
Lewis and Starks had a chance to review them. With regard to
these surveillance tapes, Officer Leedberg offered testimony
concerning the routine procedures followed by the Brockton
police. Generally, the Brockton Police Department only preserves
audio tapes of radio communications for one or two months before
recording over them unless the tapes pertain to a major crime
such as murder. Lewis and Starks proffered no evidence to the
trial court that would even remotely suggest that the police
acted in bad faith when they reused the audio tapes in accordance
- 32 -
with their established routine.
Lewis and Starks also assert that the Brockton police
made a crucial error when they allegedly delayed submitting the
contraband for fingerprint analysis. Lewis and Starks, however,
fail to allege any governmental conduct that demonstrates that
the alleged delay was due to bad faith rather than a normal
error. Moreover, they do not make a colorable argument that the
alleged delay destroyed evidence with an apparent exculpatory
value. Starks asserts that the alleged delay cost him the
opportunity to prove his frame-up theory by showing that the
confidential informer's fingerprints were on the contraband.
However, as we discussed in part III, there was ample evidence to
refute and none to support the theory that the confidential
informer framed Lewis and Starks.
Finally, Starks claims that the Brockton Police
colluded to produce a false and inaccurate police report. In
support of this, he points to two alleged inaccuracies in the
report. First, the report states that on August 15, 1992,
Officer Leedberg conversed with the informer in person. At
trial, Officer Leedberg testified that this conversation occurred
by telephone. Second, Starks states the police report conflicts
with the trial testimony regarding whether the guns and cocaine
were found under two separate vehicles or whether they were all
found under the brown Buick. Starks, however, fails to
demonstrate that these alleged factual inaccuracies resulted from
bad faith. He merely states that "these errors poisoned the
- 33 -
judicial process" and thus constitute grounds for reversal. We
cannot agree. No police investigation is entirely perfect, and
minor inconsistencies do not support his contention that the
Brockton Police used bad faith and colluded to produce a false
and inaccurate police report.
Thus, we find no reversible error in the government's
alleged mishandling of the evidence.
IX. The government's peremptory challenge
IX. The government's peremptory challenge
Lewis and Starks contend that the government's
peremptory challenge of a black juror was racially motivated and,
consequently, violated their rights under the Equal Protection
Clause of the United States Constitution. Starks also contends
that the court further erred in refusing his request to question
the juror on his ability to render an impartial verdict.
In Batson, the Supreme Court delineated a three-step
______
process to determine whether the government's peremptory strike
was motivated by an impermissible racial bias. Batson v.
______
Kentucky, 476 U.S. 79, 96-98 (1986). First, the defendant must
________
make a prima facie showing of racial discrimination. Id. To
_____ _____ ___
clear this initial hurdle, the defendant must first show that
"the prosecutor has exercised peremptory challenges to remove
from the venire members of the defendant's race." Id. Second,
___
the defendant is entitled to rely on the
fact . . . that peremptory challenges
constitute a jury practice that permits
"those to discriminate who are of a mind
to discriminate." Avery v. Georgia, 345
_____ _______
U.S. 559, 562 (1953). Finally, the
defendant must show that these facts and
any other relevant circumstances raise an
- 34 -
inference that the prosecutor used that
practice to exclude the veniremen . . .
on account of their race. This
combination of factors in the empaneling
of the petit jury . . . raises the
necessary inference of purposeful
discrimination.
Id. at 96. The court should consider all relevant factors to
___
determine whether the defendant has made the requisite prima
facie showing. Id. at 96-97.
___
Once the defendant successfully clears this initial
hurdle, the prosecutor must then articulate a race-neutral
explanation for striking the juror in question, though "the
prosecutor's explanation need not rise to the level justifying
exercise of a challenge for cause." Id. at 97. The trial court
___
then must decide whether the defendant has established purposeful
discrimination. Id.
___
In the case at bar, we are dubious that Lewis and
Starks have alleged facts necessary to establish the requisite
prima facie case. Regardless of this, we are certain that the
___________
prosecutor's race-neutral explanation negates any inference of
purposeful discrimination.
As to the first issue, the venire started with three
black jurors. The government and Starks each excused one of the
black jurors with peremptory challenges. The third was selected
for trial despite the fact that the government still had two
peremptory challenges remaining. In light of the fact that
Starks removed one black juror and that the government allowed
the court to empanel the third black juror, we doubt whether
- 35 -
Lewis and Starks have alleged facts sufficient to raise the
necessary prima facie inference of purposeful discrimination.
____________
See Chakouian v. Moran, 975 F.2d 931, 934 (1st Cir. 1992)
___ _________ _____
(holding that defendant failed to demonstrate prima facie case
____________
absent any evidence as to whether other black members of venire
were called and seated as jurors). Regardless, we are certain
that the prosecutor articulated a satisfactory race-neutral
explanation for the challenge. The prosecution informed the
court that it challenged the juror because he worked as a
security guard at Straughter Security, a firm which the Bureau of
Alcohol, Tobacco and Firearms ("ATF") was actively investigating
for possible firearms offenses. The ATF investigation entailed
an "active federal presence" at the company as well as grand jury
testimony by certain security guards. Under these circumstances,
the government was rightfully concerned that the security guard
may harbor certain hostilities due to the investigation of his
employer and was entitled to question the juror's ability to
render an impartial verdict. Consequently, the use of the
peremptory challenge was permissible. Further, in light of the
government's satisfactory explanation, the district court acted
well within its discretion when it refused Starks' request to
continue questioning the juror.
X. Refusal to stipulate that defendants were felons
X. Refusal to stipulate that defendants were felons
The government charged both Lewis and Starks with being
a felon-in-possession of a firearm in violation of 18 U.S.C.
922(g)(1). To prove this charge, the government must show that
- 36 -
(1) the defendant was previously convicted of an offense
requiring imprisonment exceeding one year and (2) he knowingly
possessed a firearm in or affecting interstate commerce. United
______
States v. Wight, 968 F.2d 1393, 1397 (1st Cir. 1992). Lewis had
______ _____
three prior convictions for armed robbery and offered to
stipulate that he was a felon to satisfy the first element of the
statute, presumably to keep the nature of his prior felonies from
the jury. Starks had a prior state court conviction for
possession of cocaine with intent to distribute, and made a
similar offer to stipulate that he was a felon. The district
court did not require the government to accept either Lewis' or
Starks' proposed stipulation but rather allowed the government to
introduce evidence of the nature of Starks' conviction and one of
Lewis' convictions. The government then introduced a certified
copy of Starks' prior conviction for possession of cocaine with
intent to distribute and Lewis' prior conviction for "armed
robbery while masked." Though the government mentioned the
convictions briefly in its opening and closing statements, the
court prevented the government from introducing evidence
concerning the facts surrounding the convictions.
Lewis and Starks contend that, in light of our recent
decisions in Tavares and Melvin, the district court erroneously
_______ ______
refused to accept their offers to stipulate that they were felons
under the statute. United States v. Tavares, 21 F.3d 1 (1st Cir.
_____________ _______
1994)(en banc); United States v. Melvin, 27 F.3d 703 (1st Cir.
_____________ ______
1994). They further contend that this refusal constitutes
- 37 -
reversible error. We agree with Lewis' and Starks' first
contention but find the error to be harmless in light of the
overwhelming evidence of guilt.
Before Tavares, the government, even in the face of an
_______
offer to stipulate, was allowed to "present evidence on the one
felony necessary to prove the crime charged." United States v.
______________
Collamore, 868 F.2d 24, 28 (1st Cir. 1989). It was under this
_________
rubric that the district court allowed the government to reject
the offer to stipulate. However, we recently revisited this
issue and determined that when a defendant is charged with being
a felon-in-possession of a firearm, evidence of the nature of the
prior conviction is not admissible unless special circumstances
establish that the relevance of the evidence is "sufficiently
compelling to survive the balancing test of Fed. R. Evid. 403."
Tavares, 21 F.3d at 5; Melvin, 27 F.3d at 707.6
_______ ______
In light of the government's concession that this case
does not present the "unusual circumstances" necessary to depart
from the general rule announced in Tavares, we must determine
_______
whether the error was harmless. To do so, we "must assess the
record as a whole to determine the probable impact of the
evidence on the jury." Melvin, 27 F.3d at 708 (quoting United
______ ______
States v. Spinosa, 982 F.2d 620, 630 (1st Cir. 1992) (citation
______ _______
omitted)). As we discussed in part VII, the government presented
overwhelming and essentially uncontradicted evidence of Lewis'
____________________
6 Because we decided Tavares while the present case was still
_______
pending on direct review, we apply it here. Melvin, 27 F.3d at
______
706 n.4.
- 38 -
and Starks' guilt. Lewis and Starks were both caught with the
proverbial "smoking gun." The police recovered the guns and
cocaine moments after witnessing Lewis and Starks attempt to
discard the contraband under cars parked alongside them. The
conclusiveness of this evidence renders harmless the district
court's erroneous admission of the nature of the predicate
felony.
- 39 -
XI. The length of the sentences
XI. The length of the sentences
A. Base offense level
A. Base offense level
Lewis and Starks contend that the district court
improperly aggregated the controlled substances that were held by
them individually when the court determined the appropriate base
offense level ("BOL"). This contention is erroneous.
The determinative factor for sentencing under the
guidelines is the quantity of drugs. United States v. Reyes, 3
_____________ _____
F.3d 29, 31 (1st Cir. 1993). For sentencing purposes, the
government must prove the quantity by a preponderance of the
evidence. Id. This quantity is the sum of the charged conduct
___
plus the defendant's "relevant conduct." Id. In the case of
___
jointly undertaken criminal activity (regardless of whether a
conspiracy was charged), relevant conduct includes "all
reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken activity." U.S.S.G.
1B1.3(a)(1)(B). Determining quantity under the guidelines is a
matter entrusted to the sound discretion of the district court.
United States v. Osorio, 929 F.2d 753, 764 (1st Cir. 1991).
_____________ ________
Thus, we will only reverse on a finding of clear error. Id.
___
Lewis and Starks assert that the court committed clear
error when it found that they acted in concert and consequently
aggregated the amount of cocaine that each held individually.
They are wrong. The evidence, especially the Presentence
Investigation Report ("PSR"), supports the district court's
decision that Lewis and Starks were engaged in a joint activity.
- 40 -
Lewis and Starks were together at Pete & Mary's Bar for two
consecutive nights. On the second night, they both brought along
loaded handguns and similar containers of identically wrapped
crack cocaine. When the police approached, Lewis and Starks both
discarded their contraband under parked cars. Moreover, Starks
attempted to create a diversion by waiving his arms, presumably
to give Lewis more time to stash his contraband. These facts
support a finding that Lewis and Starks were engaged in a joint
activity such that the court could correctly attribute to each
defendant the cocaine held by the other under the heading of
relevant conduct.
B. Starks' Criminal History Category
B. Starks' Criminal History Category
Starks also contends that the district court made two
errors when it calculated his criminal history, thus increasing
his exposure under the guidelines. He first asserts that the
court improperly assessed two points for a prior drug conviction
because he served less than the guideline minimum prison term of
sixty days. Next, he argues that the court improperly counted
his "admission to sufficient facts" for a battery on a police
officer. He contends that scoring this charge was erroneous
because no finding of guilt was ever made and the case was
ultimately dismissed.
We employ a dichotomous process to review a district
court's application of the sentencing guidelines. United States
_____________
v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992). First, we examine
_______
the scope of a guideline provision de novo. Id. (citations
________ ___
- 41 -
omitted). Once we have determined whether the relevant guideline
provision applies, we review the factfinding process only for
clear error. Id.
___
To determine a sentence under the guidelines, the court
must first calculate the defendant's criminal history category.
This system is based on the premise that "repeated criminal
behavior will aggravate the need for punishment with each
recurrence." U.S.S.G. 4, intro. comment.
On a prior drug conviction, Starks was sentenced to
serve five months in a House of Correction. The execution of his
sentence was stayed while he appealed. The court then granted
him credit for 39 days served and released him on parole. Starks
asserts that the district court improperly assessed two criminal
history points for this conviction because he served less than
the sixty day sentence specified in the guidelines. We
disagree. The guidelines instruct the court to add two points
for "each prior sentence of imprisonment of at least sixty days .
________________________
. . ." U.S.S.G. 4A1.1(b) (emphasis added). The application
notes clarify any possible ambiguity by stating that "criminal
history points are based on the sentence pronounced, not the
length of time actually served." U.S.S.G. 4A1.2, comment.
(n.2); see also United States v. Priest, 6 F.3d 1201, 1215 (7th
________ ______________ ______
Cir. 1993); United States v. Shinners, 892 F.2d 742, 743-44 (8th
_____________ ________
Cir. 1989); United States v. Altman, 901 F.2d 1161, 1166 (2d Cir.
_____________ ______
1990). Here, the court had sentenced Starks to five months, well
over the sixty day minimum in the guidelines. Thus, we find the
- 42 -
district court's assessment oftwo criminal history points proper.
We will now turn to the second issue. Starks contends
that the district court should not have counted his "admission to
sufficient facts" because it was not a diversionary disposition
that involved a judicial finding of guilt or admission of guilt
in open court.7 We decline to rule on this issue because our
decision cannot effect the length of Starks' sentence.
The district court assessed Starks a total of six
criminal history points, placing him in category three. See
___
U.S.S.G. ch. 5 pt. A. To achieve a sentence reduction, Starks
needs to shed three points from his criminal history score; this
would drop him down to category 2. Id. The district court only
___
assessed one point for this "admission to sufficient facts."
Thus, even if the assessment were improper, Starks would remain
in category three, and his sentence would remain unchanged.
XII. Lewis' challenges to his sentence
XII. Lewis' challenges to his sentence
A. Lewis' Equal Protection challenge
A. Lewis' Equal Protection challenge
Lewis contends that the Federal Sentencing Guidelines'
distinction between the "crack" and powder forms of cocaine
violates the Equal Protection Clause of the United States
____________________
7 Diversionary dispositions resulting from a finding or
admission of guilt are counted as sentences under the guidelines
even if a conviction is not formally entered. U.S.S.G.
4A1.2(f). "Section 4A1.2(f) requires counting prior adult
diversionary dispositions if they involved a judicial
determination of guilt or an admission of guilt in open court.
This reflects a policy that defendants who receive the benefit of
a rehabilitative sentence and continue to commit crimes should
not be treated with further leniency." U.S.S.G. 4A1.2 comment.
(n.9).
- 43 -
Constitution. Specifically, he asserts that the distinction,
though facially neutral, triggers heightened scrutiny under the
Feeney test because it has both a racially discriminatory impact
______
and intent. Personnel Administrator of Mass. v. Feeney, 442 U.S.
________________________________ ______
256, 272 (1979). Alternatively, he contends that the distinction
fails rational basis scrutiny.
We recently addressed this issue and, like every other
circuit that has done so, found the distinction in the guidelines
between crack cocaine and powder cocaine to be constitutional.
See United States v. Singleterry, 29 F.3d 733, 739 (1st Cir.
___ _____________ ___________
1994). In Singleterry, we found the distinction did not merit
___________
strict scrutiny because there was insufficient evidence that the
distinction "was motivated by any racial animus or discriminatory
intent on the part of either Congress or the Sentencing
Commission." Id. at 741. (quoting United States v. Frazier, 981
___ _____________ _______
F.2d 92, 95 (3d Cir.), cert. denied, 113 S. Ct. 1661 (1993)).
____________
The distinction also survived rational basis analysis because
"Congress had before it sufficient . . . information to make
distinctions that would justify . . . more severe sentences for
trafficking in or using cocaine base or crack than cocaine
itself." Singleterry, 29 F.3d at 740 (quoting Frazier, 981 F.2d
___________ _______
at 95). Accordingly, this challenge fails.
B. Lewis' selective prosecution claim
B. Lewis' selective prosecution claim
Lewis asserts that the government adopted his case to
federal court solely because of his racial status. In essence,
he claims that he was selectively prosecuted because he is black.
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A selective prosecution claim fails unless the
defendant establishes that his prosecution results from
"intentional and purposeful discrimination." United States v.
______________
Bassford, 812 F.2d 16, 19 (1st Cir.), cert. denied, 481 U.S. 1022
________ ____________
(1987). This requires that the defendant demonstrate, "at least
prima facie, (1) that, while others similarly situated have not
___________
generally been proceeded against because of conduct of the type
forming the basis of the charge against him, he has been singled
out for prosecution, and (2) that the government's discriminatory
selection of him for prosecution has been invidious or based in
bad faith, i.e., based upon such impermissible considerations as
race . . . ." Id. (quoting United States v. Berr os, 501 F.2d
___ _____________ _______
1207, 1211 (2d Cir. 1974)).
Lewis has failed to proffer any factual allegations
that would substantiate his selective prosecution claim. Rather,
Lewis merely points out that the government's adoption of his
case to federal court greatly increased his potential prison
sentence. Lewis has not demonstrated that others, similarly
situated, were not proceeded against or that he was singled out
for impermissible reasons. Lewis' crimes subjected him to
prosecution in both federal and state court. The federal
government chose to prosecute him; we cannot conclude that he was
selectively prosecuted solely because he was only charged in
federal court.
C. Lewis' request for downward departure
C. Lewis' request for downward departure
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Lewis argues that the allegedly unusual circumstances
of his case entitle him to a downward departure from the range
specified in the guidelines. We lack jurisdiction to review a
district court's refusal to depart downward from the sentencing
range so long as the district court was aware of its authority to
order such a departure. United States v. Lombardi, 5 F.3d 568,
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571-72 (1st Cir. 1993) (citing United States v. Lauzon, 938 F.2d
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326, 330 (1st Cir.), cert. denied, 112 S. Ct. 450 (1991)). This
____________
area of the law is well settled. See id; United States v.
___ __ _____________
Castiello, 915 F.2d 1, 6 (1st Cir.), cert. denied, 498 U.S. 1068
_________ ____________
(1991); United States v. Tucker, 892 F.2d 8, 9 & n.2 (1st Cir.
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1989). However, it is unclear from the record whether the
district court concluded that it lacked authority to order a
downward departure or simply refused to exercise its discretion.
Consequently, we assume that the district court believed it
lacked the power to depart from the guidelines and review whether
this assessment was accurate.
In United States v. Rivera, we reviewed the factors
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that often warrant departure, the factors that are ordinarily
irrelevant to departure decisions, and those that are forbidden
in determining whether to depart. 994 F.2d 942, 948-49 (1st Cir.
1993). Lewis contends that several factors entitle him to a
downward departure. First, Lewis asserts that departure was
warranted because the distinction between the crack and powder
forms of cocaine in the sentencing guidelines has a racially
disparate impact. He also claims that departure is warranted
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because of the "discriminatory adoption of his case to federal
court," alleged evidentiary errors and prosecutorial misconduct
in the course of the trial, and the fact that he is an
uneducated, young black man. We have already discussed the lack
of foundation for Lewis' discriminatory prosecution claim, so
this was not proper grounds for departure. The trial was not
sullied by any prejudicial evidentiary errors or prosecutorial
misconduct -- thus, these allegations do not justify a downward
departure. As to the other factors asserted by Lewis, they fall
into either the discouraged or forbidden categories reviewed by
the Rivera opinion. Consequently, the district court correctly
______
refused to order a downward departure when it calculated Lewis'
sentence.
D. The "crime spree" contention
D. The "crime spree" contention
Lewis asserts that the district court erroneously
determined that he was an Armed Career Criminal under 18 U.S.C.
924(e)(1), the Armed Career Criminal Act (the "ACCA"). The
ACCA provides enhanced punishment for violating 18 U.S.C.
922(g) -- being a felon in possession of a firearm -- if the
defendant has three separate prior convictions for violent
felonies or serious drug offenses. 18 U.S.C. 924(e)(1). Such
defendants are considered armed career criminals. U.S.S.G.
4B1.4. The district court sentenced Lewis under the ACCA after
it determined that his three prior armed robbery convictions
satisfied its requirements. Lewis contends that his three prior
convictions were not separate occurrences but, rather, were all
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part of a single, systematic course of conduct, or "crime spree,"
that should only count as one offense under the ACCA. Once
again, he is wrong.
Lewis first robbed a gas station in March, then a cafe
in July, and last a motel in August. Gas, food, and lodging --
the connection would be apparent if the defendant were on a trip.
However, the facts that Lewis robbed these places over a five-
month time frame and used different weapons in each robbery amply
support the district court's determination that the crimes did
not constitute a single crime spree. See United States v.
___ ______________
Harris, 964 F.2d 1234, 1237 (1st Cir. 1992) (two assault and
______
battery convictions involving same victim but occurring two
months apart); United States v. Gillies, 851 F.2d 492, 497 (1st
_____________ _______
Cir.) (armed robbery convictions for offenses at two different
drug stores on consecutive days, for which defendant received
concurrent sentences), cert. denied, 112 S. Ct. 1694 (1992).
____________
XIII. Redaction of references to cocaine base
XIII. Redaction of references to cocaine base
Lewis argues that the district court erroneously
refused his request to strike the words "cocaine base" from the
indictment. 21 U.S.C. 841 makes it a federal crime to possess
with an intent to distribute any of the "controlled substances"
listed in 21 U.S.C. 812. Though coca leaves and their
derivatives are listed as controlled substances, the term cocaine
base only appears in the penalty provision of 21 U.S.C. 841.
Thus, Lewis contends, at trial the term is irrelevant and highly
prejudicial surplusage which should have been stricken from the
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indictment and, consequently, the district court's failure to do
so precluded a fair trial. We cannot agree.
Under Federal Rule of Criminal Procedure 7(d), the
defendant may move to strike surplusage from the indictment.
This serves to protect the defendant "against immaterial or
irrelevant allegations in an indictment, . . . which may . . . be
prejudicial." Fed. R. Crim. P. 7(d), advisory committee note;
United States v. Fahey, 769 F.2d 829, 841-42 (1st Cir. 1985).
_____________ _____
This decision rests in the sound discretion of the district
court. Id. at 842 (citations omitted). Here, the term cocaine
___
base was neither irrelevant nor unfairly prejudicial. The
indictment served as notice to Lewis of the nature of the charges
against him. Indeed, identifying the substance as cocaine base
was an essential element of the government's case against Lewis.
Further, though the term crack cocaine probably carries heavy
social baggage, Lewis' brief lacks any explanation of how the
term unfairly prejudiced him. We find this claim altogether
________
meritless.
We have considered the other claims of Lewis and Starks
and find them equally meritless.
Affirmed.
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