USCA1 Opinion

August 9, 1994

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 92-1182
No. 92-1258
UNITED STATES OF AMERICA,
Appellee,
v.
DARRYL WHITING,
a/k/a G., GOD, RAH,
Defendant, Appellant.
____________________
No. 92-1183
UNITED STATES OF AMERICA,
Appellee,
v.
SEAN DIXON,
a/k/a MICHAEL WHITE,
Defendant, Appellant.
____________________
No. 92-1184
UNITED STATES OF AMERICA,
Appellee,
v.
RENALDO PLEDGER,
a/k/a EUGENE NOBLE,
Defendant, Appellant.
____________________
No. 92-1185
UNITED STATES OF AMERICA,
Appellee,

v.
EDWIN CARMICHAEL,
a/k/a FREEDOM,
Defendant, Appellant.
____________________

No. 92-1259
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM BOWIE,
a/k/a CUDA, DIAMOND,
Defendant, Appellant.
____________________
No. 92-1442
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN WADLINGTON,
a/k/a MOHAMMED,
Defendant, Appellant.
____________________
No. 92-1443
UNITED STATES OF AMERICA,
Appellee,

v.
KENNETH BARTLETT,
a/k/a CHEYENNE,
Defendant, Appellant.
____________________
ERRATA SHEET
The opinion of this
follows:
On page 32,
beginning with

Court, issued on July 6, 1994, is amended

line 9 of only full paragraph, replace the mater

"If these" through
"Id. at 1778-79." with
___

following:
If these criteria are met, the court of appeal "has authority
to order correction, but is not required to do so," id. at
___
1778, and should exercise its remedial discretion only "in
those circumstances in which a miscarriage of justice would
otherwise result," or where the error "seriously affect[s]

the fairness, integrity or public reputation of judicial

proceedings." Id. at 1779 (internal quotations omitted).
___

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-1182
No. 92-1258
UNITED STATES OF AMERICA,
Appellee,
v.
DARRYL WHITING,
a/k/a G., GOD, RAH,
Defendant, Appellant.
____________________
No. 92-1183
UNITED STATES OF AMERICA,
Appellee,
v.
SEAN DIXON,
a/k/a MICHAEL WHITE,
Defendant, Appellant.
____________________
No. 92-1184
UNITED STATES OF AMERICA,
Appellee,
v.
RENALDO PLEDGER,
a/k/a EUGENE NOBLE,
Defendant, Appellant.
____________________
No. 92-1185
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN CARMICHAEL,
a/k/a FREEDOM,
Defendant, Appellant.
____________________

No. 92-1259
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM BOWIE,
a/k/a CUDA, DIAMOND,
Defendant, Appellant.
____________________
No. 92-1442
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN WADLINGTON,
a/k/a MOHAMMED,
Defendant, Appellant.
____________________
No. 92-1443
UNITED STATES OF AMERICA,
Appellee,
v.
KENNETH BARTLETT,
a/k/a CHEYENNE,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Walter Jay Skinner, U.S. District Judge]
___________________
____________________
Before
Breyer,* Chief Judge,
___________
Boudin and Stahl, Circuit Judges.
______________
____________________
____________________

*Chief Judge Stephen Breyer heard oral argument in this matter,

did not participate in the drafting or the issuance of the pane
opinion.
The remaining two panelists therefore issue this opin
pursuant to 28 U.S.C.
46(d).

Gary C. Crossen, by Appointment of the Court, and Stephen

________________
_______
Sowle with whom Sarah Reed, John A. Shope and Foley, Hoag & Eliot w

_____
__________ _____________
___________________
on briefs for appellant Darryl Whiting.
John H. LaChance, by Appointment of the Court, with whom LaCha
________________
_____
and Whatley was on briefs for appellant Sean Dixon.
___________
John C. Doherty, by Appointment of the Court, for appell
_________________
Renaldo Pledger.
Janet L. Sanders with whom Zalkind, Rodriguez, Lunt & Duncan
________________
__________________________________
on briefs for appellant Steven Wadlington.
Lois Lewis, by Appointment of the Court, for appellant Ed
___________
Carmichael.
John P. Slattery, by Appointment of the Court, with whom Wyso
________________
____
and Slattery was on brief for appellant Kenneth Bartlett.
____________
Paul A. Dinsmore, by Appointment of the Court, for appell
_________________
William Bowie.
Robert W. Iuliano, Assistant United States Attorney, Paul
__________________
_____
Kelly, Assistant United States Attorney, (for IAD issue), and Tho
_____
___
C. Frongillo with whom Donald K. Stern, United States Attorney, was
____________
_______________
briefs for the United States.

____________________
July 6, 1994
____________________

BOUDIN,
extensive
the

Circuit Judge.
______________

undercover law

"New York

Boys," a

These cases

arise out

enforcement operation
large-scale drug

of an

targeted at

distribution ring

operating out of the Orchard Park Housing Project in Roxbury,

Massachusetts.

The

seven defendants

currently

before the

court appeal their convictions, their sentences, or both.

We

affirm the district court's rulings on all but one point.1

I.
On
Darryl

December 11,
Whiting,

Carmichael,

and

1990,

Sean

a federal

Dixon,

Steven

grand jury

Renaldo

Wadlington--as

indicted

Pledger,
well

as

Edwin
26

co-

defendants--for conspiracy to distribute cocaine in violation

of 21 U.S.C.
April 11,
defendants,

846.

A superseding

1991, expanded the case

including Kenneth

The individual

defendants

indictment returned
to include a total

Bartlett

were also

and William

charged

with

on

of 50
Bowie.
various

combinations of substantive cocaine distribution, 21 U.S.C.

841(a)(1), firearms
U.S.C.

5861(d),

offenses,
or

1956(2)(1), and Whiting

18

money

U.S.C.

922(g)(1);

laundering,

was alleged to be the

18

26

U.S.C.

organizer and

____________________
1The published version of this opinion includes only the
statement of facts (part I) and the discussion of those
issues that may be of general interest (parts II and III).
The remaining portions of the opinion as filed (parts IV-VI)
address issues that do not appear to have precedential
importance. See First Cir. R. 36.2.
___
-8-8-

supervisor of a
of 21 U.S.C.
Rather
court

violation

848.
than try

50

defendants at

severed the case into

defendants
placed

continuing criminal enterprise in

named above

once, the

smaller cases.

("the first-trial

district

The first five

defendants") were

in the initial trial group, along with a sixth defen-

dant (David Waight)

who has

not appealed.

Trial began

on

June 17, 1991, and continued for 18 days spread over the next
four

weeks.

The

evidence

consisted

primarily

of

the

testimony of undercover agents and cooperating co-defendants.

Taken in the

light most favorable to the

government, United
______

States v. Gonzalez-Torres, 980 F.2d 788, 789 (1st Cir. 1992),

______
_______________
the evidence showed the following:
The first-trial

defendants,

together with

many

other

individuals, were members of or associated with the "New York

Boys," a street gang
the Orchard

headed by Whiting and operating

Park Housing Project

out of

in Roxbury, Massachusetts.

The gang was so named because many of its members hailed from
Queens,
New

New York.

During the period

Boys

into

York

organization

evolved

that employed

up to

from 1986 to 1990, the

large,

highly

structured

100 different

people and

sold cocaine and cocaine base ("crack" cocaine) in shifts

24

hours a day.
The Whiting
York City.

organization received its

A number

cocaine from New

of couriers transported

-9-9-

the drugs

to

Boston on airline shuttles.

"cut" with

dilutants

The

drugs were then processed--

and divided

into individual

bags--at

several different apartments located outside the Orchard Park

Project.

Finally, the

cocaine

was sold

through an elaborate network of personnel:

customers

and

took

"worked the pack"

distributing
and a

those

money;

it to

"runners" who met

other

incoming runners
who held

larger

more secure locations

"working

Orchard Park

individuals

who

by holding small quantities of cocaine and

third group

packs in

their

at

the pack."

in exchange

for cash;

inventories of

and periodically
Additional

cocaine

resupplied

workers served

as

lookouts for police or provided security against rival gangs.

During

the organization's

most prosperous

period, the

New

York Boys sold as much as five kilograms of cocaine per week,

grossing up to $100,000 in a single half-day shift.
The organization sent substantial sums out of Boston via
Western

Union,

giving

against

Whiting and

paid up to $1,000
consistently.
businesses,
Crown

charges

workers were

per week for their services,

although not

invested

including a

distribution

money-laundering
Many of the

Whiting

center,

to

Carmichael.

Social Hall.

community

rise

activities

proceeds of drug sales.

in various

Roxbury

video store,

and the

hall functioned

as

barber shop,

Although
it

funds

also
and

this

served
a

as

means

a
of

front

for

drug

laundering

the

Whiting also sponsored rap concerts,

-10-10-

barbecues,

and other

social events,

and provided

gifts of

clothing and money to youth in the Roxbury community.

The

government's

witnesses

testified

about

numerous

weapons possessed by defendants and acts of violence done

to

maintain discipline within the organization and security visa-vis

rival gangs.

members

Security measures

were equipped

were elaborate:

with binoculars,

gang

walkie-talkies, and

headphones and had ready access to firearms ranging from riot

pump

shotguns to

evidence
members

of
of

Uzi

machine guns.

beatings and

other

the organization

attempted to sell drugs on

who

acts
stole

There was

extensive

of violence

against

money or

cocaine,

their own, or otherwise disobeyed

orders.
The first-trial defendants mounted a
primarily of
witnesses.
the

attacks on the credibility

Defense

of the government's

counsel attacked the testimony of one of

government's two primary

Coy, by

defense consisting

emphasizing instances

undercover operatives, Jeffrey

in which

Coy

had failed

to

follow proper police procedures

and by showing that

Coy had

suffered serious psychological and emotional

problems during

and

also sought

to

Maurice Dawkins,

by

after

the investigation.

undermine the second

way of
not

undercover agent,

testimony from a

"a man of truth."

that many of the

Defendants

former supervisor that

Defense counsel

Dawkins was

also won admissions

cooperating co-defendants who testified had

-11-11-

drug

problems,

and that

some would

further their own interests.

he was not involved in drug

be

willing to

lie to

Whiting himself testified that

dealing and that his income came

from legitimate business activities.

On
count

July 24,

1991, the

of engaging

counts of

in a

jury convicted

Whiting of

continuing criminal

distribution of

cocaine, and

one

enterprise, 21

one count of

money

laundering; he was acquitted of two counts of distribution of

cocaine.2

Dixon,

convicted

of conspiracy

substantive distribution

runner
to

and

security

distribute cocaine

count,

but

was

worker,

was

and of

one

acquitted

on

an

additional

distribution count.

worker, was
count of

convicted on

being a felon

Carmichael,

who

had a

convicted

Steven

managerial

Wadlington,

he

of cocaine

role,

on two

and on

one
Edwin

was convicted
one count of

security

and of one

and possession

was acquitted

security

of a firearm.

cocaine and of

on the conspiracy count

distribution
firearm;

conspiracy count

in possession

conspiracy to distribute
laundering.

the

Pledger, another

of

worker,

of

money
was

count each of
an unregistered

additional distribution

counts.

____________________
2Whiting was also convicted of conspiracy to distribute
cocaine; the district court, however, vacated that count on
the ground that it was a lesser included offense subsumed
within the continuing criminal enterprise conviction.
-12-12-

Sentences were imposed on

and

October 7, 21, and

22, 1991,

the five defendants filed timely notices of appeal.

specific sentences imposed were as follows:

The

Darryl Whiting

Life without parole on the continuing

criminal enterprise count; 240 months
imprisonment for each of 21 distribution
counts and one money laundering count, to
be served concurrently; and
a $1200
special assessment.

Sean Dixon

188 months imprisonment and 60 months

supervised release
on the conspiracy
count;
60
months
imprisonment
for
distribution count, to run concurrently;
and a $100 special assessment.

Renaldo Pledger

235 months imprisonment and 60 months

supervised release; and a $100 special
assessment.

Edwin Carmichael

262 months imprisonment and 60 months

supervised release; and a $100 special
assessment.

Steven Wadlington

360 months imprisonment on the conspiracy

count and 60 months supervised release;
240 months imprisonment on distribution
count; 120 months imprisonment on the
firearms count, all sentences to run
concurrently;
and
a
$150
special
assessment.

Bartlett and Bowie

for

were among six co-defendants

slated

trial in the second group created by the district court.

Both Bartlett

and

security workers.

Bowie
Bowie,

the chief of security

bodyguard.

were alleged

have

the government claimed,

for the organization and as

The second trial commenced

On the sixth day

to

served

as

acted as
Whiting's

on November 19, 1991.

of trial, Bartlett and Bowie pled guilty to

conspiracy to distribute cocaine.

-13-13-

Bowie was sentenced on February 10,

imprisonment and 60

months supervised release, as well

$50 special assessment.

1992,

to an

district

consecutively to
second

Bartlett

degree

Bartlett have

ordered

that

his case,

the

however, the

sentence

two previously imposed state

murder

and

as a

was sentenced on March 11,

identical sentence; in

court

1992, to 262 months

firearms

be

sentences for

charges.

each appealed from their

served

Bowie

and

sentences, and Bowie

has challenged the validity of his guilty plea as well.

II.
We consider first several arguments jointly presented by
the

first-trial

Carmichael, and

defendants:
Wadlington.

court erred in refusing to

undermining

the

Whiting,
Each asserts

credibility

of

one

in

allegedly inflammatory

remarks to the

on the

calculating the
were

that the district

of

allowing the

definition of
amount of

Pledger,

permit certain testimony aimed at

undercover operatives;

the jury

Dixon,

the

prosecutor to
jury; in

"reasonable

cocaine for which

held accountable at sentencing.

government's
make

mischarging

doubt"; and

in

the defendants

Although none of these

arguments is frivolous, we do not find any of them ultimately

persuasive.

A.

Impeachment of Anthony Hewitt

_____________________________
A key

government witness at trial

an undercover operative who

was Maurice Dawkins,

made a total of 11

purchases of

-14-14-

cocaine
Many

from

of

various members

Dawkins'

recordings or

dealings

of the
were

uncorroborated

other witnesses; as a

became a central issue at trial.

Whiting organization.
by

tape

result, his credibility

In an attempt

to undermine

Dawkins, the defendants called as a witness Anthony Hewitt, a

deputy

superintendent

Dawkins' former

of

the

Jamaican

commanding officer.

Constabulary

Hewitt

and

testified that,

in his opinion, Dawkins was not a truthful individual and had

a reputation for untruthfulness in Jamaica.
Fed. R. Evid. 608(b) provides that "[s]pecific instances
of the conduct of a witness,
supporting
by

the witness' credibility, . . . may not be proved

extrinsic

confined

for the purpose of attacking or

evidence."

themselves to

Accordingly,
eliciting

from

defense

counsel

Hewitt his

general

opinion of Dawkins'
for

truthfulness and the general

truthfulness that

Dawkins had

Jamaica. See Fed. R. Evid.

___
Hewitt, the government
instances of

among his

608(a).

reputation

co-workers in

On cross-examination

of

elicited testimony regarding specific

Dawkins' good

conduct:

in

particular, Hewitt

was led to acknowledge various commendations that Dawkins had

received while on

the Jamaican

force, as well

as the

fact

that Dawkins had been injured in the line of duty.

On redirect examination, the defense sought
Hewitt

about specific

members of the

instances in

which Hewitt

to question
and other

Jamaican Constabulary had found Dawkins to be

-15-15-

not credible.3

Defense

counsel argued that

the government

had "opened the door" by eliciting testimony of specific acts

of good

character on cross-examination, but

the trial judge

refused to permit such testimony in light of Rule 608(b).

this court defendants repeat their

In

claim under the rubric of

"curative admissibility," which holds that "a trial judge, in

his discretion, [may]

admit otherwise inadmissible

evidence

in order to rebut prejudicial evidence which has already been

erroneously admitted."

United States v. Nardi, 633 F.2d 972,

_____________
_____

977 (1st Cir. 1980) (citations omitted).

The

defendants

government's

evidence

erroneously admitted.
evidence

(of

are

mistaken

of

Dawkins'

in

assuming
good

Dawkins' courage

episodes related only to

and

good

does

character

was

conduct) was

not

to accredit Dawkins because the

Dawkins' general good character and

not to his character for truthfulness.

is

the

It is quite true that the government's

admissible under Rule 608(b)

Rule 608(b)

that

imposes its restriction only

offered for the purpose

________________

But by its own terms

upon evidence that

of buttressing

credibility; it

not forbid evidence that happens to show good character

____________________
3Specifically, the defense sought to introduce through
Hewitt evidence that Dawkins had falsely reported that he was
the victim of a shoot-out in 1987, and that Dawkins had been
the subject of at least four civilian complaints of abuse and
assault which
he had
denied but which
the Jamaican
Constabulary had deemed credible.
-16-16-

but is offered

for another legitimate purpose.

_______________________________

See
___

United
______

States v. Abel, 469 U.S. 45, 55-56 (1984).

______
____
Here,

the government's

served two

exploration of

quite different purposes.

Dawkins' record

First, the prosecutor

sought to test Hewitt's familiarity with Dawkins' record, the

inference
to

being that Hewitt's own opinion

Dawkins'

Hewitt

knew

States,
______

reputation
little

335 U.S.

Dawkins'

were

about

469,

480

exemplary record,

doubts

about Hewitt's

fellow

officer

own

with

prejudice to Hewitt.

themselves

and his report as

untrustworthy

Dawkins.

Michelson
_________

(1948).

Second,

the

v.
by

prosecutor aimed

motive in

United
______
showing

to

raise

testifying against

good record,

and

thus

if

to

impute

See Abel, 469 U.S. at 51.

___ ____

In some instances, the permissible inferences might be

offered merely as pretext to smuggle in an impermissible one.
But

in this

ample and

the

case, the

government's first

second, if

thinner, is

justification is

at least

plausible.

Defendants would have been

entitled, had they asked for

to an instruction limiting

the jury's use of

evidence
that

to these lines

it was

not entitled

truthfulness from his

of inference and
to infer

it,

the government

advising the jury

Dawkins' character

general good character.

for

Accordingly,

the doctrine

of curative admissibility

has no role

in this

case because there was no error to be cured.

-17-17-

One could defend the

evidence

in question by

used evidence
motive,

admissibility of the bad character

saying that just

of Dawkins' good character

evidence of

Dawkins'

about Hewitt's readiness to

former fellow

officer.

this ground, and

which disputed

evidence is

12 (1st

judge trying to make

for

required to

Tate v. Robbins & Myers, Inc.,

____
_____________________
A general

is hardly much help to

reference to
a district

on-the-spot rulings in the middle

hectic trial.4
B.

evidence was

explaining the purpose

Cir. 1986).

"fighting fire with fire"

to

testify against a

offered is normally

preserve the issue on appeal.

F.2d 10,

would tend

the bad character

not offered on

790

to impugn Hewitt's

bad character

lessen doubts

But

as the government

Prosecutor's Rebuttal Argument

of a

______________________________
Defendants' second set of arguments revolves around four
remarks made by
the

jury

at

allegations of

the prosecutor in
the

close

of

his rebuttal argument

the

trial.

We

such prosecutorial overreaching

have

to

taken

seriously in

this circuit, e.g., Arrieta-Agressot v. United States, 3 F.3d

____ ________________
_____________
525 (1st

Cir. 1993);

United States v.
_____________

Santana-Camacho, 833
_______________

____________________
4There was no miscarriage of justice on this point. The
inference that Hewitt was biased is not a very strong one.
Similarly, evidence of Dawkins' bad character to refute the
bad-motive inference is not very telling; indeed, such
evidence could help to establish Hewitt's bias as well as to
refute it.
-18-18-

F.2d

371 (1st

Cir.

1987), but

in

this case

none of

the

remarks warrants reversal of appellants' convictions.

The
statement

first remark
that "[Darryl

complained

of was

Whiting] also

the

prosecutor s

brought the

kids of

Roxbury the

guns, the drugs,

exhortation

to the jurors not to "let other kids be succored

[sic] in by

that flash,

statement
sought

was

the violence," followed

that cash, that

prejudicial,

to deflect

deception."

defendants

[the jurors ]

argue,

the

jury

responsibility

consequences of a
"other kids"
should

not guilty

reference was

the issues

attempted to foist
the

verdict."

extra-judicial

We

improper, for

refrain from arguments

of the jury's

for

This

because "it

attention from

that they were sworn to decide, . . . and

onto

by an

agree that

the

"[t]he prosecutor

[predicting] the consequences

verdict." American Bar Association,

Standards
_________

Relating to the Administration of Criminal Justice 3-5.8(d).

__________________________________________________
In
time

this case defense

the allegedly

review only for

528.

counsel failed

prejudicial

plain error.

Courts are

to object

statement was

made, so

we

3 F.3d

at

Arrieta-Agressot,
________________

reluctant to

find

at the

such error

where the

prosecutor s remarks were isolated and made to rebut specific

statements by defense counsel.
879 F.2d 945,
1081 (1990).
defense

956 (1st

See United States v.

___ _____________

Machor,
______

Cir. 1989), cert. denied, 493

_____________

Here, the prosecutor was clearly

counsel's portrayal

of Whiting as

-19-19-

U.S.

responding to

a philanthropist

and

benefactor of

point

Roxbury's

youth, and

to other like instances

not believe

that the

defendants do

of rhetorical excess.

prosecutor's remarks "so

not
We do

poisoned the

well that the trial s outcome was likely affected."

Arrieta________

Agressot, 3 F.3d at 528.

________
Defendants
that

next object

defendants

closing

to

the prosecutor's

arguments

were

assertion

"smoke

screens

floated your way by defense counsel . . . [who are] very able

people here."

This statement, defendants

convince the jury that the arguments

. . . manufactured by able
from the jury."
focused

on the

We

than their source.

to

the statement

holding

of defense counsel were

lawyers seeking to hide the truth

agree that the

merits of

argue, "sought to

prosecutor should

have

the defendants'

arguments rather

Again, defense counsel

failed to object

at trial,

and we

have little

trouble in

that this isolated misstep did not rise to the level

of plain error.
Defendants did object
statement, arguing

to the third

allegedly offensive

that the prosecutor improperly placed his

own character at issue when

he said that "[a]n attack on

me

and my colleagues
case not only
screen."

and our

ethics and our

approach to

[is] an affront to me personally,

Although a

prosecutor

may

this

but a smoke

not pledge

his

own

character as a basis for inferring the defendant s guilt, see

___
United States v.
_____________

Garza, 608
_____

F.2d 659 (5th

Cir. 1979),

the

-20-20-

statement in
of its

this case referred to

investigation,

defendants.
far harsher
had

guilt

or innocence

The prosecutor's isolated

remarks of

suborned perjury.

instructed the
that he felt
F.2d

not the

the government's conduct

jury to disregard the

affronted.

943, 948

(1st

the

remark responded

defense counsel that

Finally, the

of

to

the government

trial judge

properly

prosecutor's statement

See United States

___ _____________

Cir.), cert. denied,

_____________

v. Moreno,
______
114 S.

Ct.

991
457

(1993).
Defendants'
showing

final claim

the organizational

concerns
structure of

government
the New

chart

York Boys

and, specifically, listing Dixon

of cocaine.
and, when

The evidence showed Dixon instead to be a runner

Dixon's counsel seized

closing argument,
that the

as a processor and packager

the prosecutor

reference on

the chart

on the discrepancy
in rebuttal told

name.

Defendants'

judicial

testimony"

correct,

but the

by

the jury

was a typographical

arising from the presence of another defendant

last

in his

objection that
the prosecutor

prosecutor's misstep

error

with the same

this

was

"extra

may

be technically

was a

trivial one--

serving in part to correct an overstatement of Dixon's role-and it certainly did not cause substantial prejudice.
C.

Reasonable Doubt
________________

-21-21-

Defendants objected to the trial

the jury on the

court's instruction to

meaning of reasonable doubt, whose

the following paragraph:

core was

Now, reasonable doubt is not a fanciful doubt, nor

a whimsical doubt, nor a doubt based on conjecture,
but is a doubt based on reason, as the name
implies.
The government is not
required to
establish guilt to a mathematical certainty or to a
scientific certainty.
The government
is not
required to exclude every other remote possibility.
This
district

circuit
courts

instructions
Littlefield,
___________
U.S.

to

to

repeatedly

define

the

refused to

"reasonable

jury.

E.g.,
____

require

doubt"

in

the
their

United
States
_______________

v.

840 F.2d 143, 146 (1st Cir.), cert. denied, 488

____________

860 (1988).

term, we

has

Where

the district court

have suggested that "attempts

does define the

at definition should

not stray far from the consistently approved stock of charges

on reasonable doubt." Id. at 646.
___
judge,

however,

alternatives."

"the

choice

We have left to the trial

among

acceptable

linguistic

Tsoumas v. State of New Hampshire, 611

_______
_______________________

F.2d

412, 414 (1st Cir. 1980).

The phrases
stock phrases

employed in the paragraph

and the

them individually.
doubt "a doubt
Court's

defendants do not

They do

that

articulable or even logical

sense.

challenge most

assert that to

based on reason" is at odds

postulate

quoted above are

reasonable

call reasonable
with the Supreme

doubt

need

so long as it appeals

See Harris v. Rivera, 454

___ ______
______

-22-22-

of

not

be

to common

U.S. 339, 347 (1981).

We

think

that this argument rests on too fine a distinction and

that a

"doubt based

circuit

on a

number of

DeVincent, 632 F.2d

_________
U.S.

on reason"--a phrase

approved by

occasions, e.g.,
____

147, 152 (1st

this

United States
_____________

Cir.), cert. denied,

____________

v.
449

986 (1980)--is not a bar against using common sense but

merely

contrasts

"reason"

with

"fancy,"

"whim,"

or

"conjecture."
Defendants' main objection is that
emphasis on what is
its

not a reasonable doubt so

statement of what is

of

defendant

proof
a

"beyond

substantial

counsel so often

far outweighs

a reasonable doubt

jury to concentrate overmuch

concept

the district court's

on the former.

as to lead the
By

a reasonable

doubt"

advantage, which

is

repeat those words in

itself, the
gives
why

summation.

the

defense
Although

the advantage is a legitimate one, it does not seem to us one

that is likely to be undermined by an instruction that with a
few general

phrases

indicates that

not

every doubt

is

reasonable one.
In

any event, elsewhere in the charge the court in this

case reminded the jury, in connection with the presumption of

innocence,

that a defendant is never to be convicted "on the

basis of mere

conjecture, surmise or

guesswork."

In

other

words, the jury was told that just as a fanciful doubt should
not stand in the way of conviction, so too a reasonable doubt
could

not

be

papered

over

by

conjecture,

surmise

or

-23-23-

guesswork.
context
141,

Taking the reasonable doubt

of the overall

146-47

(1973),

charge," Cupp v.
____
we

think that

the

instruction "in the

Naughten, 414 U.S.
________
charge

here

was

adequately balanced.
D.

Calculation of Drug Quantity

____________________________
Because

defendants

were

distribute cocaine, they were

convicted

of

conspiracy

to

held responsible at sentencing

for "drugs [they] personally handled or anticipated handling,

and, under the relevant conduct rubric, for drugs involved in
additional acts

that were reasonably

foreseeable by

[them]

and were committed in furtherance of the conspiracy."

United
______

States
______

1993),

v. Sepulveda,
_________

15 F.3d

1161, 1197

(1st Cir.

cert. denied, 1994 U.S. Lexis 4738 (June 20, 1994).

____________
the

government's

estimated

that

evidence
the

Whiting

kilograms of cocaine per

Defendants now

at

trial,

the

organization

district

court

distributed

week over a period of

challenge this calculation,

district court based its

Based on

two

three years.

arguing that the

estimate on unreliable evidence and

improper extrapolation.
We review factual findings by the sentencing court as to
drug
1196.

quantity only for clear

"[T]he

sentencing

error.
court has

Sepulveda,
_________
broad

15 F.3d at

discretion

to

determine what data is, or is not, sufficiently dependable to

be used in imposing sentence," United States v.
_____________
F.2d

1283, 1287

(1st

Cir.

1992),

-24-24-

and

we

Tardiff, 969
_______
defer

to

any

credibility determinations by
States
______

v. Brewster,
________

burden

is

on the

preponderance of

1 F.3d

51, 54

government to
the evidence.

Lucena, 988 F.2d 228, 232 (1st

______
impact

of quantity on the

that in resolving

the sentencing court.

(1st

prove

the side of caution."

Cir. 1993).

The

drug quantity

by a

United States
_____________
Cir. 1993).5

v. Valencia_________

Because of

length of sentence,

doubts the sentencing

United
______

the

we have said

court must "err

on

United States v. Sklar, 920 F.2d 107,

_____________
_____

113 (1st Cir. 1990).

The

district court

distributed an average
over the
was

primarily

the conspiracy.

upon

general

estimating average

handled at

New York

that particular

per week

by

various

business.

These

reports from cooperating

quantities

particular times, controlled

undercover operatives, and

Boys

This estimate

comments

volumes of

estimates were then corroborated by

co-defendants

that the

of two kilograms of cocaine

three-year life of

based

defendants

estimated

of

cocaine

buys by

evidence indicating the

were

government
size and

scope of the organization itself.

____________________
5Defendants argue that, due to the critical impact of
drug quantity on a defendant's sentence, due process requires
proof of such quantities by clear and convincing evidence,
rather than a mere preponderance.
This argument was not
raised below and, in any event, is foreclosed by circuit
precedent. See, e.g. United States v. Lowden, 955 F.2d 128,

_________ ______________
______
130 (1st Cir. 1992). See also McMillan v. Pennsylvania, 477
________ ________
____________
U.S. 79, 91-93 (1986) (holding that a "preponderance standard
satisfies due process" at sentencing).
-25-25-

Thus, Dawkins
had
asked

with Steven

testified at
Wadlington on

November

conversation he

6, 1990.

Dawkins

Wadlington how much cocaine the New York Boys sold per

week, to which

Wadlington replied:

sell two and a half kilos.

We do

trial to a

this a

we

A second

estimate was

made by

gang member who was allegedly responsible for

processing the cocaine.

Adams

September of 1990 (the year

conspiracy), the

testified that in August

and

in which he was involved in

the

Whiting organization sold

three

kilograms of cocaine

that

Jon

supervisors,

slow week,

In a fast week, four kilos. . . .

long time."6

Ansur Adams, a

"[i]n a

James,

one

per week.
of

told him that the

the

between two

and

Adams also testified

organization's

New York Boys

alleged

"used to move

five ki's [sic] a week before [Adams] came."

These broad estimates
quantities

handled by

were consistent

various gang

with reports

members.

of

For example,

Tony Samuels testified that

of ten

$40 bags and seven

shift.

There

was

approximately 1.5

the organization sold an average

$60 bags of cocaine

testimony

grams

that

of cocaine;

$60

in a 12-hour
bag

contained

accordingly,

Samuels'

____________________
6Defendants complain that much of Dawkins' testimony was
hearsay.
The guidelines
provide, however, that "[a]t
sentencing, the district
court may consider
`relevant
information without regard to its admissibility under the
rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support
its probable accuracy.'" United States v. Valencia-Lucena,
_____________
_______________
988 F.2d 228, 232 (1st Cir. 1993) (quoting U.S.S.G.
6A1.3(a)).
-26-26-

testimony indicates sales of roughly 410

up to
that

5.74 kilograms

per week.

each apartment used as

grams per shift and

Rochelle Burden

a base of

testified

sales operations was

able to sell a pack of twenty $60 bags every two hours, which
supports

figure

of

360

grams

of

cocaine

day

and

approximately 2.52 kilograms per

week per apartment (several

apartments

given

were in

use

at any

time).

Wayne

Ruff

testified that, when running money during a typical shift, he

generally delivered the proceeds of five packs of $60 bags to
his supervisor; at 30 grams per
into

300 grams

per

day or

pack, this figure translates

2.1 kilograms

per

week.

The

government notes, moreover, that it is unlikely that Ruff was

the only runner.
In

magnitude these

generally in

accord

with one another

(the only divergent testimony--from

Lonnie

Avant--suggested

an

estimates

are

also

estimates are

even

larger

average

buttressed

by

organization's impressive scope:

employed

at

sometimes
between 125

least eight

made multiple

activities were
week, that eleven
store

cocaine,

testimony

trips per

women

week, carrying

that

hours

50

-27-27-

the

per day,

to

100

who

anywhere

that selling
seven days

different apartments were used

and

about

as couriers

kilogram each trip,

conducted 24

The

there was evidence that it

different

grams and one

figure).

to sell or

different

people

participated in distribution

activities over

the course

of

the conspiracy.
Defendants assert
court

upon which

the

relied was inherently unreliable for various reasons--

principally

that

defendants who
their

that the information

much

of

it

came

admitted they would

own

interests,

and

that

undercover

operatives

could

"puffing."

The district

be

from

cooperating

lie in order
the

to advance

statements

construed

as

co-

made

to

exaggerated

court, however, has wide discretion

in determining what evidence

is sufficiently reliable to use

at sentencing, see Tardiff, 969 F.2d at 1287, and we will not

___ _______
disturb the court's finding
were

credible.

that the government's

Brewster,
________

estimates were

F.3d

at

54.

largely consistent and, as

witnesses

Further,

the

we explain below,

the district court's ultimate finding was quite conservative.

Defendants' more serious contention is that the evidence
produced by the government and relied upon

by the sentencing

court focused mainly upon the last year of conspiracy.

It is

inherently speculative, defendants argue, to derive from this

evidence

estimates of the total amount of cocaine handled by

the conspiracy over its three-year

special care may
one period is
other

extrapolated to

periods.

varied over

be needed where

time,

But

while

there

existence.

evidence of quantities

fill gaps in
the

was at

We agree that

evidence as

organization's sales
least

some

evidence

in
to
here
for

-28-28-

earlier periods and the

court's conservative estimate left a

fair margin of safety.

First, some of
prior

to 1990,

reported

the evidence here did

the

last year

that, according

to

of
Jon

deal with periods

the conspiracy.
James,

the

Adams

organization

distributed five kilograms of cocaine per week prior to 1990.

Much of the corroborating

anecdotal testimony came from gang

members--Burden, Ruff, Avant, and Michael

the conspiracy
summarized,

in 1987

was

not

or 1988.
limited

Wilson--who joined

Their evidence,

to

the

final

year

already
of

the

conspiracy.
Second, following our

directive to "err on

the side of

caution," Sklar, 920 F.2d at 113, the district court held the
_____
organization

accountable for

two kilograms

of cocaine

per

week over the life of the conspiracy--still an impressive sum

but
in

less than Wadlington told Dawkins the New York Boys sold
a

"slow week"

reported selling

in

1990 and

prior to that

less than
year.

half

what James

Moreover,

because of

the breadth

of the

relevant sentencing categories,

we need

only find that the evidence supported a 1.5 kilogram per week
figure
case.7

in order

to

uphold all

United States v.
______________

of

the sentences

Bradley, 917
_______

F.2d 601,

in

this

604 (1st

____________________
7This is so of Dixon, who was involved for approximately
104 weeks and was sentenced at level 38, which has a 150
kilogram threshold. U.S.S.G.
2D1.1(c)(3). In the case of
Whiting, Carmichael, Wadlington and Pledger, one kilogram per
week would be adequate for their respective sentencing
-29-29-

Cir.

1990).

All of the

well

as the corroborating testimony as to amounts handled at

particular times, refer

general estimates in the record, as

to quantities well in

excess of one

kilogram per week.

III.
In addition to the arguments raised jointly by the trial
defendants, each of the seven defendants who have appealed in
this case has advanced
his individual case.

one or more claims of error unique to

Although

we have dealt

with most

of

these contentions in the unpublished portion of this opinion,

a

few

are

of

sufficient

general

interest

to

warrant

discussion here.
A.

Darryl Whiting
______________
Whiting,

the

organization, was
continuing

ringleader

the

convicted on one

criminal

enterprise,

distribution, and on one

time of

of

count of

engaging in

count of money laundering.

At the

use of

21

Boys"

cocaine

sentence in Massachusetts.

on

York

counts of

his indictment, Whiting

was secured through

"New

was serving a

state prison

His presence at his federal trial

the IAD, which

with charges outstanding against

permits a

state

a prisoner of another state

____________________
thresholds.

Id. at
2D1.1(c)(3), (4)-(5).
Because the
___
first-trial defendants were all sentenced in October of 1991,
we apply the 1990 version of the guidelines.
Isabel v.
______
United States, 980 F.2d 60, 62 (1st Cir. 1992).
Although
_____________
Bowie was sentenced later and was subject to the 1991
guidelines, the relevant provisions were not altered in the
later edition.
-30-30-

to take custody of
trial.8

that prisoner for the time

His principal

necessary for

argument on appeal is that

delays in

bringing him to trial violated his rights under the IAD.

The

IAD requires

initiated by

that

the receiving

where the

detainer process

state rather than

is

the prisoner,

trial must begin within 120 days of the prisoner's arrival in

the

receiving

exceptions

state.

IAD

to this rule.

art.

the prisoner is

VI(a).

In

cause

There

are

two

Article VI provides that the IAD's

speedy trial provisions will

long as

IV(c).

be tolled "whenever and for

unable to stand

addition, Article

shown in open court,

IV(c)

trial."

allows that

. . . the court

IAD

as
art.

"for good

. . . may grant

any necessary or reasonable continuance."

The
speedy

parties appear to agree that in this case the IAD's

trial clock began to

run on December

21, 1990, when

Whiting made his initial appearance in federal court, and for

purposes of this
second hearing

case we adopt
on December

this starting

27, Whiting (now

point.

At

accompanied by

counsel) refused to waive his rights under the IAD.

On April

3, 1991, shortly before the 120 day period was to expire, the

____________________
8The IAD is the Interstate Agreement on Detainers, 18
U.S.C. App. II.
The federal jurisdiction of the United
States is considered to be another "state" for IAD purposes.
IAD art. II. Because the IAD is a congressionally-sanctioned
compact within the Compact Clause, U.S. Const. Art. I,
10,
cl. 3, its construction is exclusively a matter of federal
law. Carchman v. Nash, 473 U.S. 716, 719 (1985); Cuyler v.
________
____
______

Adams, 449 U.S. 433, 438-42 (1981).

_____
-31-31-

government

moved for a continuance as well as a finding that

the IAD had been

trial motions.

tolled by Whiting's filing of

After a

the government's
trial period would
earliest.

various pre-

hearing, the district court accepted

tolling argument and found

not expire

until June 12,

that the speedy

1991, at

the

In the alternative, the court found that there was

good cause for a continuance.

On

June 13, 1991,

Whiting moved

for dismissal

of the

federal indictment for violation of his rights under the IAD.

The district court orally denied this motion on the first day
of

trial--June 17, 1991--finding that an additional pretrial

motion
34 days.

filed by Whiting had tolled the IAD clock for another

Whiting

of his motion

now appeals from the trial

to dismiss.

hold that (1) the IAD clock

We affirm the

court's denial

district court and

was stopped and (2) in any event

there was good cause for a continuance.

1.

The courts of appeals are divided as

to the proper

construction of
Whiting

the

urges

which have

IAD's

us to

Article

follow the

construed that

VI

tolling

Fifth and

provision.

Sixth Circuits,

provision narrowly and

held that

the phrase "unable to stand trial" refers only to physical or

mental

incapacity.

1340-41 (5th Cir.

See Birdwell v.
___ ________

Skeen, 983
_____

1993); Stroble v. Anderson,

_______
________

F.2d 1332,

587 F.2d 830,

838 (6th Cir. 1978), cert. denied, 440 U.S. 940 (1979).
_____________
are precluded

from adopting the narrow

We

reading advocated by

-32-32-

Whiting

by

our

Walker,
______

924 F.2d

1 (1st

Taylor,
______

861 F.2d

316

consistent with
generally

own prior

decisions
Cir. 1991),

(1st Cir.

the predominant

that "a

during the time it

in

United States
_____________

and United States v.

______________

1988).
view

defendant waives

v.

These

decisions,

among circuits,
the

held

120-day limitation

takes to resolve matters raised

Taylor, 861 F.2d at 321 (citation omitted).9

Taylor

by him."
held

______
out

______

the possibility that the time involved in disposing of a

motion might not all

advised

the

be excluded where the defendant

district

protection of the IAD

court

that

he or

she

Whiting
second

did

formally invoke

hearing,

but

claimed

and the district court then

___

time than was necessary to resolve the motion.

the

the

IAD's

district court

timely
the

took more

In this case,

protection at
also

found

his
that

Whiting and his counsel made a "tactical decision" thereafter

to ignore the issue.
In

all events

Whiting offers

no specifics

that would

lead us to conclude, in this extremely complex and burdensome

case,

that

the district

defense motions.

court

was slothful

in

acting on

Further, based on the rationale

of Taylor
______

____________________
9The Second, Fourth, Seventh, and Ninth Circuits are in
accord.
United States v. Scheer, 729 F.2d 164, 168 (2d Cir.
_____________
______
1984); United States v. Hines, 717 F.2d 1481, 1486-87 (4th
______________
_____
Cir. 1983), cert. denied, 467 U.S. 1214, 1219 (1984); United
____________
______
States v. Nesbitt, 852 F.2d 1502, 1516 (7th Cir. 1988), cert.
______
_______
_____
denied, 488 U.S. 1015 (1989); United States v. Johnson, 953
______
______________
_______
F.2d 1167, 1172 (9th Cir.), cert. denied, 113 S. Ct. 226
____________
(1992).
-33-33-

we

hold

that the

granted to
See
___

time

includes time

Whiting for the preparation

Nesbitt, 852 F.2d at

_______

Trial Act).

Finally,

that

spent

time

discovery

and

on

delay trial

explicitly

of pretrial motions.

1514 (so holding

under the Speedy

we reject Whiting's fall-back position

non-dispositive

exculpatory

differently than
to

excluded

evidence)

motions

(here,

should

be

dispositive motions; both types

and both

should be

for

treated

are likely

treated the

same under

Taylor.10
______
2.

Alternatively, we find that there was good cause in

this case for a

We

have held

Trial Act--a

continuance under Article IV(c) of

that a

continuance granted

statute that is, if

the IAD.

under the

Speedy

anything, more restrictive

of ad hoc continuances--will be reversed only for an abuse of

______
discretion.

United States v. Pringle, 751 F.2d 419, 429 (1st

_____________
_______

Cir. 1984).

In

its

finding of

the present case, the district

good cause

on three

court rested

primary grounds:

the

"inherent complexity of this case, [and] the existence of codefendants and their pending motions," and the fact that some

of Whiting's co-defendants remained at large.

These reasons are ones that
continuance

in the

Speedy

are recognized as bases for

Trial Act.

See 18

U.S.C.

____________________
10Neither Taylor nor Walker concerned motions that were
______
______
formally dispositive, nor does the distinction urged comport
with the statutory criterion ("unable to stand trial") that
is construed in Taylor and Walker.
______
______
-34-34-

3161(h)(7) (joinder with codefendant whose time has not run),

3161(h)(8)(B)(ii) (complexity; number of defendants).

Here,

the court was confronted with a case initially embracing over

50 defendants--some still at

large--and a range of different

charges and issues.

To move Whiting's case (and that of five

co-defendants) from

the assumed

starting point to

trial in

just under six months was no mean feat.

Further, even if we followed the Fifth and Sixth Circuit
approach

and held

that Whiting's

automatically toll the running

pretrial motions

of the time period,

did not
we would

hardly ignore them in deciding whether a continuance of about

58

days was

pretrial

reasonable.

motions,

defendants;
district

as

and, as

court

Here,

did
noted,

Whiting

other

of

there is

unreasonably delayed

Whatever the limitations on

did file

various

the

first-trial

co-

no

showing that

the

in

acting

upon them.

delaying a trial, Whiting's case

does not even arguably test them.

B.

Steven Wadlington
_________________

Wadlington was an employee

club owned
and, the

that

count

Wadlington's

the organization.
of

conspiracy

to

role

center

drug distribution

At trial,

primary

Hall, a

a community

a center of

laundering activities.

security for
one

that operated as

government alleged,

and money
alleged

by Whiting

of the Crown Social

the government

was

Wadlington
distribute

to

provide

was convicted of
cocaine,

one

-35-35-

substantive distribution count,

of an unregistered

firearm.

and one count of

His primary argument

possession
on appeal

is a challenge to his firearms conviction.

Wadlington was charged under
makes it unlawful

for any

firearm which

not

Firearms

is

but also proof

registered

under

the statute.

under

26 U.S.C.

The

to him

or possess

in

Transfer Record."

proof of

that the

5861(d), which

person "to receive

Registration and

requires not only

26 U.S.C.

possession and

weapon in question

the

National

This

offense

nonregistration,
is a

statutory definition

"firearm"

of "firearm"

5845 is somewhat narrower than that term's

commonly understood meaning, see United States v. De Bartolo,

___ _____________
__________
482 F.2d 312 (1st
of possessing
proof that the
less than

Cir. 1973), and as Wadlington

an unregistered shotgun, the

shotgun in

18 inches,

question had a

or an overall

was accused

statute required
barrel length

length of less

of

than 24

inches, and could fire (or could be restored to fire) shotgun

shells.

26 U.S.C.

5845(c), (d).

The trial court's charge to the jury on the firearms

count, however, omitted this element.
The court instructed
the jury as follows:
Steven Wadlington . . . [is] indicted for conspiracy and
three counts of distribution.
And Count 32, possession
of an unregistered firearm.
That is this sawed off
shotgun, and it doesn't matter who you are or what
otherwise you are doing, it is a violation of the law to
possess such an item unless it has been duly registered
as described by the witness, and there is evidence that
this firearm [has] not been so registered.
So the
government doesn't have to prove he is a felon, a user,
-36-36-

or anything else, he could be a college president or an

archbishop, but he must not possess that firearm.
At no time

did the

court define "firearm"

jury that it was their

or instruct

the

responsibility to determine that

the

shotgun

in question was one

having a barrel

than 18

inches or an overall

length of less

length of less than

24 inches

and either operable or capable of being made operable.11

On

appeal, the government concedes--as it must--that it

was error to omit the applicable definition of "firearm," and

submit the issue to the jury.
the

district

judge's

Wadlington failed to object to

jury

instruction

at

accordingly, we review only for "plain error."

P. 30, 52(b).
latter
be

The

Supreme Court has

rule by stating that there must

"clear" or

"obvious,"

and it

rights."

United States v.
_____________

(1993).

If these criteria are

trial

and

Fed. R. Crim.

recently glossed

the

be an error, it must

must affect

Olano, 113 S.
_____

"substantial

Ct. 1770, 1777-78

met, the court of appeal "has

authority to order correction, but is not required to do so,"

id. at 1778, and should exercise its remedial discretion only
___
"in
would

those circumstances
otherwise

result,"

in which
or

a miscarriage

where

the

error

of justice
"seriously

____________________
11We focus upon the length and operability, as the
parties do in the briefs, because there is repeated reference
in the testimony to the weapon as a "shotgun," the weapon was
actually shown to the jury, and there is virtually no dispute
that it was in fact a shotgun. For this reason, the district
court's reference to "this sawed off shotgun"--which might in
other circumstances look like a court determination of the
issue--is patently harmless.
-37-37-

affect[s]

the

fairness, integrity

judicial proceedings."

Id. at
___

or public

1779

reputation of

(internal

quotations

omitted).
Although

it is easy to see how the district judge could

have overlooked a relatively

this massive
that

the

case, we
error

definition
"obvious."

of

in

have little difficulty

omitting

the weapon--of
Whether

"substantial

rights" is

Olano,
_____

most

"in

minor and undisputed element in

cases

that

the
error

a more
it

in concluding

statutory
offense

element--the

was "clear"

affected

Wadlington's

difficult question.

[the

error]

must

or

have

Under
been

prejudicial:

It must

have

affected

District Court proceedings."

plain

error

Government

context,

that

defendant

Further, in

rather

than

the
a
the

Id.
___

the test of prejudice

whether the jury

result

"the

at 1778.

of

. . . bears the burden of persuasion with respect

to prejudice."
If

Id.
___

the outcome

that applies in

on this record would have

this case is

come to the same

under a proper instruction, we think that it is clear

the jury would

readily have convicted.

Starting with

the issue of length, there was testimony that the shotgun had
originally been a long-barrelled weapon and that a member
the organization
and

stock.

had sawed off

portions of both

of

the barrel

Dawkins testified that when he bought the weapon

from the organization for $850, it was "sawed off."

Finally,

-38-38-

a government

firearms expert testified at

trial that "based

upon measurement" of the exhibit, it was a weapon that cannot

be possessed without being registered.

As to

capacity of

operable, the evidence

showed that

then

been

to be

troubled to

in security,

Dawkins--a

cut down

$850.

suggestion

implicitly testifying as to
strongly suggests

the

question

the

we

its

firearms

expert

operability, the other

that the shotgun

functioning weapon by those with

it had

customer of

Although
that

the

two members

and that

continuing

made

the government

had then been possessed by

sold to

government's

fire or

is a trifle thinner:

the organization involved

organization--for

very

weapon to

the organization had

weapon, that the gun

of

the

was

evidence

was regarded

as a

reason to know, and defense

counsel never contested operability.

All this may
read

not be enough.

recent Supreme Court

incorrect instruction

decisions to

is given, it

the government to show that the

a reasonable jury under
the disputed element
may

be the

finding

the

might not,

mean that

may not be

where an

adequate for

record evidence assured that

proper instructions would have found

in favor of the

law that the

despite

One might, or

jury must

erroneous

government; rather, it
in fact

have made this

instruction.12

Such

____________________
12See, e.g., Sullivan v. Louisiana, 113 S. Ct. 2078,
___
____ ________
_________
2081-82 (1993); Yates v. Evatt, 111 S. Ct. 1884, 1893-94
_____
_____
(1991); Carella v. California, 491 U.S. 263, 269-71 (1989)
_______
__________
-39-39-

showing
was

would be difficult to make in this case (since there

no instruction on length or operability); but whether it

is necessary is unclear.
The

question need

assume in
rights,"

not be

this case that

we

do

not

"miscarriage

of

justice"

fairness,

integrity

proceedings."
evidence
all as

answered here.

the error did

think

or

that
or

if we

"affect substantial

this

error

"seriously

public

Even

reputation

Olano, 113 S. Ct. at 1778-79.

_____

caused

affect[s]
of

a
the

judicial

The undisputed

showed that this was a sawed off shotgun treated by

a working weapon.

omission of

There

is thus no

the length and operability

the conviction of an

innocent man.

risk that

the

elements resulted in

Cf. Singleton
___ _________

v. United
______

States, No. 92-1647, 1994 WL 242519 (1st Cir. June 10, 1994).
______
Further,

there

ever sought to
of

the

is no

indication that

defense counsel

litigate or dispute the length or operability

weapon.

government to its

Although

not

guilty

proof on all elements (and

not to instruct on all), in

plea

puts

the

so it is error

practice defendants often choose

to

fight on

default.

their strongest

Finally,

let others

counsel's failure to argue

summation or to object
implies that

grounds and

the issues in

to the patent omission in

the issues in

go by

question were not

the charge

thought worth

____________________
(Scalia,

J., concurring in

the judgment).

Compare Pope v.
_______ ____

Illinois, 481 U.S. 497, 503 (1987).

________
-40-40-

contesting; and to reverse

opportunities
all

of

these

Olano's fourth
_____

for "sandbagging" the

considerations
and

"forfeited error."
C.

on this ground would

district judge.

together,

discretionary

enhance the

prong

Taking

we

decline

under

to

"notice"

this

Olano, 113 S. Ct. at 1778.

_____

Kenneth Bartlett
________________
Bartlett,

who was alleged to

worker and enforcer in the

have served as a security

Whiting organization, was in

the

second group of defendants that went to trial on November 19,

1991.

On the sixth day of trial, Bartlett pled guilty to one

charge of conspiracy to distribute cocaine.

quantity of cocaine involved
court
327

Based

on

the

in the conspiracy, the district

determined a guideline range for the offense of 262 to

months

sentenced
with a

and,

on

recommendation

Bartlett to

caveat that

state sentences

of

the guideline

this sentence

the

minimum of

government,
262 months

run consecutively to

for second degree murder

two

which Bartlett was

already serving.
Bartlett's

argument on

required that his federal

state

sentences.

plain

error.

discussed,
satisfied

We agree

Bartlett must
that the

that

the guidelines

sentence run concurrently with his

Since

consecutive sentence at

appeal is

he

failed

the time, our

that under
be

to

-41-41-

to

review is limited
the Olano
_____

resentenced.

requisites

object

for plain

the
to

test already

Because we

are

error review

are

present, we do

not reach

Bartlett's contention--raised

for

the first time on appeal--that his trial counsel's failure to

object

to

the

consecutive

sentence

violated

the

Sixth

Amendment.13
In this

case, after

the district court

determined the

guideline range for the conspiracy charge, it then considered

whether

to

make

concurrent to

the

the

federal

sentence

state sentences.

although Bartlett

The

consecutive
court found

supported

Concluding

that

had been allowed to plead guilty to second

degree murder, the conduct underlying both convictions

have

or

convictions

that under

eligible for parole

for

first

Massachusetts law

in 16

years and would

would

degree

murder.

Bartlett

would be

probably not

be

held past that date, the court concluded the federal sentence
should run consecutively rather than concurrently.
The governing

statute

confers broad

authority on

the

district court to determine whether a sentence is consecutive

or concurrent.

See 18 U.S.C.
___

3553(a), 3584(a), (b).

That

discretion, however, is confined by guideline provisions that

govern this choice
who

is "subject

where sentence is imposed on

to an

undischarged term

a defendant

of imprisonment."

____________________
13Normally, the reasons for a counsel's action are
pertinent and a Sixth Amendment claim cannot usually be
determined in the first instance by an appellate court.
United States v. Sanchez, 917 F.2d 607, 613 (1st Cir. 1990),
______________
_______
cert. denied, 499 U.S. 977 (1991).
____________

-42-42-

U.S.S.G.

5G1.3.14

315, 316-17 (1st

See United States v. Flowers,

___ _____________
_______

Cir. 1993).

provides that--with
sentence for

two exceptions not

the instant

offense

consecutively to the prior

the

The guideline

extent necessary

to

commentary
the

achieve

court

incremental

punishment"

results in

a combined

punishment

that

would

now relevant15--"the
imposed to

run

unexpired term of imprisonment to

then

practicable

applicable here

shall be

a reasonable

punishment for the instant offense."

The

995 F.2d

provides
should
by

U.S.S.G.
that

determining

5G1.3(c).

to

determine

incremental

the

the
a

"reasonable

sentence

sentence that approximates

have

been

imposed

extent

"that

the total

under

5G1.2

(Sentencing on Multiple Counts of Conviction) had all of

the

offenses been federal offenses for which sentences were being

imposed at the same time."

U.S.S.G.

5G1.3, comment. (n.4).

Section 5G1.2, so far as pertinent here, directs the court to

(1)

determine the

total punishment

for multiple

counts in

____________________
14Bartlett was sentenced on March 11, 1992, and
accordingly apply the 1991 version of the guidelines.

we

15The first exception requires a consecutive sentence in

certain instances (e.g., where
the second offense was
____
committed while the defendant was actually serving his first
sentence) and the second exception
requires concurrent
sentences where the
undischarged term of
imprisonment
resulted from an offense or offenses "that have been fully
taken into account" in determining the offense level for the
instant offense. Id.
5G1.3(a), (b). Here, the district
___
court did not consider the murders in setting either the
offense level or the criminal history category for the drug
conspiracy offense.
-43-43-

accordance

with the

guideline grouping

make the sentences for

rules and

(2) then

the multiple counts run consecutively

"only to the extent necessary

to produce a combined sentence

equal to the total

punishment" determined under the grouping

rules.

5G1.2(d).

U.S.S.G.

Hernandez-Coplin, No.
________________
March 31, 1994).

See generally United States v.

_____________ _____________

92-2228, slip. op. at

17-19 (1st Cir.

Section

5G1.2(c)

counts shall

provides that

sentences

on all

run concurrently if the sentence imposed on the

count carrying

the highest statutory maximum

achieve the

total punishment.

his

sentences

state

the

were

is adequate to

Bartlett urges
for

life

that because

imprisonment,

those

sentences were automatically sufficient to satisfy subsection

(c).

We believe that this

effective

sentence--not to a nominal one.

the primary goals

sentencing,"
sentence

guideline refers to the

of the federal

whereby "the

the offender

Federal Sentencing

real or

After all, one of

guidelines is "honesty

in

sentence the

judge gives

serve."

Stephen Breyer,

"The

the Key Compromises

Upon

will

Guidelines and

Which They Rest," 17 Hofstra L. Rev. 1, 4 (1988).

________________

is the

Bartlett

does not here dispute the finding that the state sentence was
effectively one for 16 years.
Accordingly,
tortuous
determined

had

path prescribed

the

district

by the

court

followed

guidelines, it

the

would have

the approximate "total punishment" as if Bartlett

-44-44-

was

being

federal

sentenced on

both state

drug conspiracy charge

court.

murder charges

at the same

and the

time in federal

The grouping rules forbid treating murders as closely

related counts with

3D1.2,

and

offense

the

second-degree

level of

33.

government points
underlying
murder,

each other or

conduct
a

murders each

U.S.S.G.

to the

2A1.2(a).

convictions for

court

under

determine the applicable guideline

of which

the

carry

offender was

the

base

Although the

district court's finding

supported

sentencing

other crimes, U.S.S.G.

that the

first-degree

guidelines

must

"by looking to the charge

convicted."

United States
______________

v.

Blanco, 888 F.2d 907, 910 (1st Cir. 1989).

______
Under
these

the "combined

three

offense

offense level"

levels--36

for

formula, combining
the

federal

drug

conspiracy and 33 each for the two murders--produces

a total

offense

level of

offense

level

history

category of

months to life.
In exercising

39.

of

U.S.S.G.

39,

combined

four, yields

3D1.4(a).16
with

Bartlett's

a guideline range

base

criminal
of 360

See U.S.S.G. Ch. 5 Pt. A (Sentencing Table).

___
its discretion, the district

chosen any figure within this

court could have

range as the appropriate total

____________________
16This formula is intricate but mechanical. One starts
with the highest offense level (here 36) and increases it by
a number of levels based on a table of "units."
Here, the

number of units was three--one for the drug conspiracy and

one each for the murders--and three units is equal under the
table to an increase of three levels. U.S.S.G.
3D1.4.
-45-45-

punishment

for

the drug

murder convictions.

and

two second-degree

Then, given its estimate that the murder

convictions represented
should have imposed
had it

conspiracy

192 months

(12 times 16

a sentence for

run consecutively "only

years), it

the drug conspiracy

to the extent

and

necessary" to

make the resulting total period of incarceration equal to the

total

punishment that would have

been imposed had all three

crimes been sentenced at the same time.

While one gulps at
face of this morass

U.S.S.G.

5G1.2.

using the term "plain" error

of rules, the district

in the

court's approach

stands the guideline process

on its head.

calculating the proper total

punishment for all three crimes

and then
the

making the

extent

needed

Here,

actual federal sentence

to

produce a

instead of

consecutive to

comparable

outcome,

the

district court computed a sentence for the drug offense alone

and

then made

concurrent and

a single
a

yes-or-no choice

wholly consecutive

between

sentence.

a wholly
This is

fundamental departure

from

the

structure

imposed

by

the

guidelines.
We

also have no hesitation in concluding that the error

probably affected the sentence.

might

(as a matter of

Although the district court

mathematics) have arrived

in a total

punishment identical to that prescribed--namely, an effective

estimated sentence
offenses plus

of 454 months

(192 months for

262 months for the

the state

federal offense)--the odds

-46-46-

of this happening seem to us remote.

-either

to make the

Here the binary choice-

sentence consecutive

or concurrent--is

quite likely to have constrained the district court's choice,

and (as it proved) not to the defendant's advantage.
The Supreme Court has
shown

to

retains
See
___

have affected

said that even if plain

the

constrained discretion

Olano, 113 S.
_____

outcome,

the reviewing

whether or

Ct. at 1778-79.

error is

In this

not to

court

reverse.

case, we think

that that discretion should be exercised in favor of a remand

for resentencing,
not in

fully recognizing that

the end profit from

that this

error "affects

this effort.

the defendant
Our

reason is not

the fairness, integrity

reputation of judicial proceedings."

may

or public

Rather, in this case we

think it is very likely that the resentencing could produce a

different

and

more

favorable

sentence.17

situation

corresponds mutatis mutandis

_________________

If

to one

so,

in which

the
a

forfeited error may have caused the conviction of an innocent

person, the
error should
1779.

other rubric under which a plain and prejudicial

be noticed

on appeal.

Olano,
_____

113 S. Ct.

at

We add that the burden in resentencing is light.

CONCLUSION
__________

____________________
17If the district court had desired to give a longer
sentence, it could easily have chosen a federal term greater
than the guideline minimum. Thus, if the district court did
feel constrained by the binary choice, it was in the
direction of imposing a sentence greater than it would have
preferred.
-47-47-

The convictions and

Dixon,
and

Renaldo Pledger, Edwin

William Bowie

Bartlett

sentences of

is

resentencing.

and

Sean

Carmichael, Steven Wadlington

are affirmed.
________

vacated
_______

Darryl Whiting,

the

The
matter

sentence of
is

Kenneth

remanded
________

for

-48-48-