USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1595
MATTHEW SABETTI,
Petitioner, Appellant,
v.
PAUL DIPAOLO,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Boudin and Stahl, Circuit Judges.
______________
____________________
Carol A. Donovan with whom

Committee for Public

Counsel Servi

________________
___________________________________
was on brief for appellant.
Nancy W. Geary, Assistant Attorney General, Criminal Bureau, w
______________
whom Scott Harshbarger, Attorney General, was on brief for appellee
_________________
____________________
February 10, 1994
____________________

BREYER,

Chief Judge.
____________

State

policemen

found

petitioner, Matthew Sabetti, and another person sitting in a

parked car that
floor

and, on

cocaine sticking

contained drug paraphernalia strewn

the back
out of

determined that the

pure

mixture.

seat,

two small

a larger

gym bag.

plastic bags
It was

cocaine amounted to 38 grams

The

Commonwealth

charged

on the
of

later

of a very

Sabetti

with

violating a statute that, at the time, prohibited "knowingly

_________
possessing with intent

to distribute twenty-eight

grams or

more of cocaine."
(West

Mass. Gen. Laws

1984) (ellipses

reprinted in appendix).
that

32E(b)

(emphasis added)

(statute

The trial judge instructed the jury

to convict Sabetti it must find, in effect, 1) that he

knowingly
the

omitted)

Ann. ch. 94C,

possessed the two bags (with intent to distribute

cocaine) and
___

contained

2) that

at least 28

he actually

grams of

The jury found Sabetti guilty.

knew that
____

cocaine (i.e.,

the bags
an ounce).

The trial court, finding the

evidence insufficient to show specific knowledge of 28 grams

or more, set

aside the verdict.

But,

the Supreme Judicial

Court reinstated the verdict, on the ground that the statute

does not

require the

government to

prove the

defendant's

actual knowledge of amount -- though, we add, the facts here

indicate that the amount was reasonably foreseeable.
-22

Sabetti

now

seeks

federal

habeas

corpus.

He

argues

that

requirement
Clause.

his
of

conviction
the

federal

violates

the

Constitution's

"fair

notice"

Due

Process

See, e.g., United States v. Batchelder,

___ ____ ______________
__________

442 U.S.

114, 123 (1979); United States v. Harriss, 347 U.S. 612, 617
_____________
_______
(1954); Lanzetta v.
________
Connally
________
(1926);
Cir.),

New Jersey, 306

__________

U.S. 451, 453

v. General Construction Co.,

_________________________
United States
_____________
cert.
_____

269

v. Colon-Ortiz,
___________

denied, 490
______

U.S. 1051

sides agree,

due process requires that

on

sufficient

conduct

notice

as

is prohibited."

(citations omitted).

(1989).

"[i]t is

ordinary

391

8 (1st

The federal

And, so do we.
well-settled that

criminal statutes put individuals

to

whether

their

See Colon-Ortiz,
___ ___________

As both

intelligence,"

contemplated
866 F.2d

sides also seem to

criminal statute fails to provide

_____
of

U.S. 385,

866 F.2d 6,

district court rejected Sabetti's argument.

As both

(1939);

fair notice if a

Harriss,
_______

347

U.S.

at 8

agree, a
"person
at

617,

"examining [only] the language of the statute," Colon-Ortiz,

___________
866

F.2d at

9, would

be

in some

prohibited the conduct in question.

have explained, for
apparent

elsewhere,"
_________

legislative history

way

surprised that

"It is not enough," we

the true meaning of the

in

it

statute "to be

extra-textual materials

or analogous statutes.

such

as

Id. (emphasis

__
-33

added).
conform

The idea

is that ordinary

their conduct

to law

should be able

reading the face of a statute -____

outside legal

materials.

individuals trying

At

to do

to

so by

not by having to appeal to

the same time, the

person of

ordinary intelligence is also a person of common sense, with

knowledge of "common understanding[s] and practices," Jordan
______
v. De George, 341 U.S.
_________

223, 232 (1951) (citation

which he brings fully to

omitted),

bear in "examining the language of

the statute."
In
ordinary
learn that

this

case, we

do

intelligence would be
the pertinent

possessing with intent

not

think

the least bit

statutory language

the person

of

surprised to
-- "knowingly

to distribute twenty-eight grams

or

more of cocaine"
for which
intent

-- was construed to

Sabetti was convicted:

to distribute an

reasonably

knowingly possessing with

amount of

foresee would

prohibit the conduct

amount to

cocaine that

one might

at least 28

grams but

which the defendant did not actually know weighed that much.
________
We acknowledge that,
one

might think

if one reads the statute

the word

"knowingly" could

in a vacuum,
___________
as easily

be

construed to apply to the words "twenty-eight grams" as not.

But, bringing common sense to bear, we have little doubt the
average

person

would

be

skeptical

of

the

idea

of

-44

legislature really insisting that a prosecutor prove

actual

knowledge of a precise amount -- often an impossible task -rather than knowledge

plastic bags'
say, an

ounce.

simply of a

worth) that could

small amount (e.g.,

easily turn out

two

to weigh,

After all, most people know that the degree

of

harm

drugs

cause

in

the world

is

related,

not

to

perceived amounts of drugs, but to actual amounts.

_________
______
Our

conclusion is supported

by the fact

that we

have searched the case law and have not found cases in which
a garden-variety,
here

has risen

See, e.g.,
___ ____
(finding,
state

textual ambiguity
to the

level of

Stout v. Dallman,
_____
_______

of the

a due

kind at

issue

process violation.

492 F.2d 992 (6th

Cir. 1974)

on habeas review, no "fair notice" violation when

court

construed

defendant to

be

armed

"armed

robbery

with a

statute

pistol,

knife,

requiring
or other
_________

dangerous weapon" to cover defendant who smacked his victim

_________________
on

the head

with an

unidentified

hard object)

(emphasis

added).
Nor is this surprising.
often

cannot, draft statutes

Stansberry
__________
provision

v. Holmes,
______
need

mathematically

not

Legislators need not, and

with perfect precision.

613 F.2d 1285,

. .

be

cast

See
___

1289 (5th

Cir.) ("A

in

that

terms

are

precise . . . .") (citations omitted), cert.

_____
-55

denied, 449 U.S.

______
ambiguities
court

were
____

could

violate

clarify

for

the

run-of-the-mill statutory
the Constitution,

statutes

first

through

person

against

no

judicial
whom

the

version applied (and likely others as well) could

argue that
process

If

enough to

ever

interpretation,
clarified

886 (1980).

he

was

unfairly surprised

rights were violated.

and

Courts, of

thus

his

due

course, clarify

textual ambiguities all the time.

We have found cases,
____
seem

wary

these

of

cases

conduct

(1983)

run-of-the-mill statutory
tend

that

innocent.
________

to be sure, in

See,
___

(statute

to

the

involve

average

e.g.,
____

Kolender v.
________

restricting

ambiguities,

statutes
person

persons

which courts

that

but

criminalize

generally

considers

Lawson,
______

461 U.S.

352

from

wandering

the

streets without identification); United States v. Anzalone,

______________
________
766 F.2d 676 (1st Cir. 1985) (statute requiring reporting of
currency

transactions over

small degree of

$10,000).

Of

ambiguity, when construed to

course, even

prohibit what

would

otherwise reasonably seem to be innocent conduct, can

cause

significant

surprise.

The

instant

case

is quite

different: no one thinks that cocaine drug dealing, even

in

small amounts, is innocent conduct.

-66

notice"

We have also

found some cases indicating

a "fair

violation in a

statute that criminalizes

(or sets

penalties for) obviously non-innocent

___
dealing.

But, these cases

cannot easily be
v. Colon-Ortiz,
___________
U.S.

866 F.2d

[minimum

drug

tend to involve ambiguities that

called run-of-the-mill.

1051 (1989), for

statute that

conduct such as

6 (1st

example, we

said that violators

In

United States
_____________

Cir.), cert. denied,

_____ ______
faced a

490

(federal) drug

"shall be sentenced

to a

five-year] term of imprisonment, a [limited] fine,

or both."
________

21 U.S.C.

841(b)(1)(B)

(emphasis added) (since amended).

provision to mean
sentence was the

that the only

so,

prison term

however,

interpretation

The court interpreted the

discretionary part of

imposition of a fine; the

minimum five-year
doing

(ellipses omitted)

the

was not

court

person's reading of

imposition of a

discretionary.

recognized

flies directly in

the face of

the phrase "or both" and

the

that

such

In
an

the ordinary
could only be

justified by regarding "or both" as an "inadvertent drafting

error" that should

be "stricken from the statute."

Ortiz, 866 F.2d at 10.

_____

Again,

Colon______

our case is quite different:

as suggested above, the ambiguity at issue here -- whether a

word near the beginning of a sentence ("knowingly") modifies

-77

a phrase near the end ("twenty-eight grams") -- was entirely

ordinary.
Finally, petitioner argues in
that

the

"rule of

lenity"

(i.e.,

his habeas petition

the rule

saying

that

ambiguous criminal statutes should be construed favorably to

defendants) requires a
however,
power

is one of

to apply

Judicial

it

Court,

judgment in his

statutory interpretation.
to
not

a state
this

course,

in the federal

the "fair

the

rule

For

the

of

is

That

rule,

We

have no

for the

Supreme

the

authoritative

And, Sabetti has not pointed

Constitution -- other

notice" guaranty,

held, is satisfied here -to apply

statute,

court,

interpreter of state statutes.

to anything

favor.

which,

than, of

we have

just

that would require a state court

_______

lenity when

interpreting

state

statute.
reasons

stated,

district court is
Affirmed.
________

NOTE:

See Slip Opinion for Appendix.

-88

the

judgment

of

the