USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 95-1291

UNITED STATES,
Appellee,

v.

ROBERT WIHBEY,
Defendant, Appellant.

No. 95-1394

UNITED STATES,
Appellee,

v.

CLAUDE WHITMAN,
Defendant, Appellant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
__________________________

____________________

Before
Cyr, Boudin, and Stahl,
Circuit Judges.
______________

____________________

Jack St. Clair with

_______________

whom Barbara J. Sweeney was

____________________

on brief

appellant Wihbey.
Vincent A. Bongiorni for appellant Whitman.
____________________
Dina Michael Chaitowitz, Assistant United
________________________

States Attorney,

whom

Donald K. Stern, United

_________________

States

Attorney,

was

on brief

appellee.

____________________

February 6, 1996
____________________

STAHL, Circuit Judge.

STAHL, Circuit Judge.

Robert

Wihbey

and

Claude

_____________

Whitman were tried by

a jury and convicted of

distribute

marijuana.

possession

of marijuana

The

jury also

with

conspiracy to

convicted Wihbey

intent to

distribute.

of

Both

Wihbey and Whitman challenge their convictions on the grounds

that

the

prosecutor

argument,

and

conspiracies,

indictment.

made

that

not

improper

the

the

government

single

conspiracy

proved

charged

closing

multiple

in

the

circumstances and that the

against him does not support the drug quantity used

to calculate his sentence under the guidelines.

challenges

in

Wihbey argues that the warrantless entry of his

home was not justified by exigent

evidence

remarks

his sentence,

leadership role in the

asserting that he

Whitman also

did not

play a

conspiracy that justified an increase

in

offense

level.

Finding

no

error,

we

affirm

the

convictions and the resulting sentences.

I.
I.
__

FACTUAL OVERVIEW
FACTUAL OVERVIEW
________________

The evidence, taken in

the light most favorable to

the

verdict, permitted the jury to find the following facts.

See
___

United States v. Twitty, No. 95-1056, slip op. at 2 (1st

_____________
______

Cir.

Britt

December 28,

and

marijuana.

Thomas

1995).

In the

Rohan

agreed to

spring of

work

Initially, they intended their

1991, Richard

together

dealing

source of supply

to be appellant Claude Whitman and one Frank Camyre, but when

-22

Camyre and Whitman repeatedly

failed to produce as promised,

Rohan cultivated another supplier, Robert Wihbey.

Meanwhile,

an informant for the Drug Enforcement Administration ("DEA"),

David DeCastro, had convinced Britt and Rohan that he had the

desire and ability

(about

to buy

$500,000 worth).

250 pounds or

more of

marijuana

Britt and Rohan, eager to recoup an

earlier loss in

a failed

marijuana deal, agreed

middlemen in a large

sale to informant DeCastro.

Rohan

of their

informed both

buyer on

sources

the hook.

or

about November

independently obtained

November

conduct

On

sources that

23,

1991,

controlled

DEA

following

Wihbey source and the Whitman/Camyre source.

were arrested

Weiner, who

to

during a buy from

where they

Weiner led

a big

22, 1991,

both

On

DeCastro

from both

to

the

Britt and Rohan

Wihbey's associate, Michael

was also arrested; all

cooperate.

they had

for

day

as

Britt and

shipments of marijuana.

agents arranged

buys the

to act

three immediately agreed

the DEA agents

to Wihbey's home,

arrested Wihbey and searched the premises.

Later

that day, Britt and Rohan cooperated with the DEA on a second

controlled buy,

the

arrest of

Brandt.

from the

Whitman/Camyre source,

Whitman, Camyre

and Whitman's

Further factual details will be

to analyze the several issues presented.

-33

leading to

source, Roger

provided as needed

II.
II.
___

PROCEDURAL BACKGROUND
PROCEDURAL BACKGROUND
_____________________

In

March 1993,

four-count indictment

May

1991 through

21

U.S.C.

Camyre

November 23,

1991, Britt,

846; in

Count Two,

marijuana

violation of 21 U.S.C.

November 22, 1991, Wihbey

in violation

One, that from

Rohan, Wihbey,

conspired to possess with intent

and to distribute, marijuana

possessed

distribute

jury returned

that charged: in Count

Weiner, Whitman, and Camyre

to distribute,

federal grand

that on

with

intent

in violation of

October

4, 1991,

to distribute

841(a)(1); in Count Three,

in

that on

possessed marijuana with intent to

of 21

U.S.C.

841(a)(1); and

in

Count Four, that on

during

and in

November 23, 1991, Wihbey used

relation

violation of 21 U.S.C.

to a

drug

a pistol

trafficking offense

in

924(c).

Wihbey filed a motion to suppress physical evidence

and

a statement

arrest

obtained

and search

at his

after an evidentiary

defendants

agreed to

except

to

pleaded

government.

count and Wihbey guilty

distribute

acquitted Wihbey on

count.

the firearm count.

was denied

all of

the

guilty

and

After

the jury found Wihbey and

of the conspiracy

warrantless

the motion

Prior to trial,

and Whitman

cooperate with the

intent

during the

home, but

hearing.

Wihbey

trial in May 1994,

with

from him

a five-day

Whitman guilty

of the possession

The

jury,

Wihbey and

however,

Whitman

-44

were sentenced in November 1994 and promptly filed notices of

appeal.

III.
III.
____

DISCUSSION
DISCUSSION
__________

A. Warrantless Entry of Wihbey's Home

A. Warrantless Entry of Wihbey's Home
______________________________________

1.

Facts
_____

The magistrate

judge found the following

facts at

the suppression hearing.

The

DEA investigation that led

to

the arrests in this case

was focused on a controlled buy

of

marijuana by the informant

DeCastro from Whitman and Camyre,

with Britt

and Rohan acting as

day before

the scheduled Whitman/Camyre buy

learned that

middlemen.

It was

Rohan had another source, Robert

only one

that DEA agents

Wihbey.

Late

in the afternoon of Friday, November 22, 1991, Rohan told the

informant

DeCastro that he had an

deliver 250 pounds of marijuana.

interest in

purchasing

from both

unnamed source that could

When DeCastro expressed his

this new

source and

the

Whitman/Camyre source, Britt and

Beekman

Place

condominiums

Rohan drove DeCastro to the

in

Agawam,

Massachusetts.

DeCastro wore a

transmitter, and was under audio

surveillance by

DEA special

agents.

thereafter

approval.

agent Sean McDonough

and visual

and other

Rohan parked the car, got out, and returned shortly

with

sample

of

marijuana

The agents were unable to discern,

condominium unit Rohan

had entered, nor

-55

for

DeCastro's

however, which

did they learn

the

name of the new source.

DeCastro approved the

sample and he

and Rohan scheduled a 250 pound deal to take place at Rohan's

residence later that night.

Early

that

evening,

confirm the arrangements, but

would

have to

morning,

Britt

be

Rohan met

in

DeCastro and

Springfield,

8:00 a.m.

23, 1991.

(owned by Wihbey, but not used as his

Street

called

Britt

to

Britt stated that the delivery

postponed until

Saturday, November

and

DeCastro

The

brought

the following

following day,

him to

a house

residence) at 30 Arden

Massachusetts.

There,

DeCastro

examined

ten pounds of

marijuana, and was

told by Wihbey's

associate, Michael Weiner, that there were thirty more pounds

in Weiner's

car.

Weiner advised the buyers that the rest of

the marijuana would be produced

for

the first

forty

DeCastro said he

in increments after the cash

pounds was

delivered

to the

source.

had to get his "money man," but he returned

instead with special agent McDonough, followed by a number of

DEA agents.

Britt, Rohan,

and Weiner were

arrested inside

the Arden Street house at about 11:00 a.m.; the DEA still had

not learned the identity

of the source (Wihbey) or

his unit

number at Beekman Place.

Britt,

cooperate with

Rohan,

and

the DEA agents,

Weiner

promptly

and by 11:15 one

agreed

to

or more of

them had disclosed

lived

at

that Wihbey

33 Beekman.

At

was the source

the

hearing,

and that

he

agent

McDonough

point he had probable cause

to arrest

-66

conceded that at this

Wihbey

and search

doubts

about

33 Beekman.

the credibility

Nonetheless,

of

the

McDonough had

three arrestees

and

decided to interview

these

interviews

McDonough

them individually at

began

at

determined that

11:30

the

that

DEA headquarters;

morning.

Agent

cooperating defendants

were

credible, and based on information they provided, that Wihbey

would grow suspicious if Weiner did not

$68,000 or call to explain the delay.

return promptly with

At

about

the

same

time, roughly noon, McDonough was also concerned with setting

up the

controlled buy

from Whitman and

Camyre.

directed Britt to

contact Whitman or Camyre,

deal

for

was set

McDonough was

Whitman/Camyre

up

3:00

involved to

that

same

some extent

McDonough

and the second

afternoon.

Thus,

with setting

up the

buy at the same time that he was preparing to

arrest Wihbey.

Because

it was

Saturday, McDonough

believed that

application

take

as long

necessary

him

for a warrant to arrest Wihbey in his home might

as several

hours, and

because Wihbey's growing

to flee

or destroy

evidence.

that quick

action was

suspicion might motivate

At approximately

12:45

p.m., the DEA established surveillance of Wihbey's condo, and

at 1:00

p.m. Weiner and

Rohan entered, followed

by special

agent McDonough and other agents who "secured the apartment."

-77

Wihbey

was found lying on

the basement floor

behind a pool

table, with a loaded pistol a few feet away.

Agent

McDonough

advised him of his

placed

rights.

McDonough then told

they had no search warrant, but

asked

Wihbey to show the

guns.

Wihbey agreed,

Wihbey under

during the

and

Wihbey that

would get one if needed;

agents where he

and

arrest

he

had marijuana and

ensuing

search the

agents found 1200 grams of marijuana (about 2.7 pounds, which

McDonough characterized as "personal use" marijuana) and some

marijuana

paraphernalia.

Agent

McDonough

sought Wihbey's

cooperation, asking him to name his source.

he would

not give McDonough

because he

of the

Wihbey said that

the name of the

"guy above me"

was a personal friend, but he would give the name

"guy above him."

Agent McDonough

declined Wihbey's

offer of partial cooperation.

2.

Analysis
________

The

Constitution

obtain a warrant before

arrest.

requires

says,

police

however,

seizure,

an

exigency

that

the test

justifies

is "whether

make an

U.S. 573, 590 (1980).

in

this

circumstances" excused the warrantless entry.

whether

normally

entering a person's home to

Payton v. New York, 445

______
________

government

that

case

"exigent

In determining

warrantless

there is

The

such a

search

and

compelling

necessity for immediate action as will not brook the delay of

obtaining

a warrant."

United States v. Wilson, 36 F.3d 205,

_____________
______

-88

209 (1st Cir. 1994) (quoting United States v. Adams, 621 F.2d
_____________
_____

41,

44

(1st

Cir.

1980)).

Exigency

determinations

are

generally fact-intensive and thus must

case basis.

See United States

___ _____________

(1st Cir. 1992), in

have commonly

be made on a case-by-

v. Donlin, 982
______

F.2d 31,

34

our past holdings, exigent circumstances

included: (1) "hot

pursuit" of

a felon;

(2)

threatened destruction of evidence; (3) risk that the suspect

may

flee undetected;

public or the police.

and (4)

danger to

the safety

See United States v. Tibolt, No.

___ _____________
______

2221, slip op. at 8 (1st Cir. Dec. 29, 1995).

be

assessed in light

United States v.
______________

of the

of the totality

Veillette,
_________

778 F.2d

94-

Exigency must

of the circumstances.

899,

902 (1st

Cir.

1985), cert. denied, 476 U.S. 1115 (1986).

_____ ______

We defer

underlying

facts

to the

district court's findings

unless clearly

erroneous,

but

of the

we afford

plenary

review to

the district

ultimate conclusion.

v. Curzi,
_____

error

court's legal

Tibolt, slip op. at

______

867 F.2d 36,

42 (1st Cir.

analysis and

8-9; United States

_____________

1989).

We

find clear

only if, after reviewing all the evidence, we are left

with "the

definite and

been committed."

firm conviction that

a mistake

had

United States v. Rust, 976 F.2d 55, 57 (1st

_____________
____

Cir. 1992).

The magistrate judge who conducted

hearing

characterized

nonetheless denied

this

as

the motion

-99

the suppression

"borderline

to suppress.

case,"

but

The magistrate

judge

found that

condominium

issue

was

Wihbey had

after he had

whether the

consented to

been arrested.

entry

to

a search

of his

Thus the critical

arrest was

justified

by

exigent circumstances.

The magistrate judge determined

that circumstances

were exigent based upon the following five "factors."

First,

it was reasonable for the DEA agents to choose not to prepare

part

or all of

a warrant on

the day before

the arrest, as

they did not know whom they were to arrest or, with requisite

particularity, where

have

taken "substantially more

warrant

at

the relevant

afternoon.

bring

Britt,

action.

Rohan,

based on

for a

than two hours"

time,

and

Second,

Saturday

Weiner to

it would

to obtain a

morning or

early

agent McDonough to

DEA

headquarters

before seeking a warrant

for

or taking other

Fourth, it was reasonable for the agents to conclude

that there

was a compelling necessity

for immediate action,

the likelihood that Wihbey would grow suspicious of

delay

conceal

lived.

Third, it was reasonable for

further debriefing

the

the arrestee

in Weiner's

return,

or destroy evidence.

second controlled

causing Wihbey

Fifth, the

buy from

to

flee or

DEA agents' plans

Camyre and

Whitman later

that

afternoon did

not precipitate

Wihbey without a warrant.

judge's

report and

the decision

to arrest

Wihbey objected to the magistrate

recommendation,

but the

district court

adopted the report and denied the motion to suppress.

-1010

Before reviewing the

issues

because

Amendment

Wihbey

arguments

below.1

Wihbey's

by

has

ruling below,

forfeited some

failing

challenge

to

press

to the

we narrow

of

his

his

the

Fourth

objections

suppression ruling

is

therefore limited to those issues that he specifically raised

in

his

objection

recommendation.

object" to

to

We

the

the

magistrate

ignore Wihbey's

magistrate judge's

judge's

report

attempt to

report, as

and

"generally

well as

his

attempt to incorporate by reference the arguments made in his

pre-hearing

memorandum.

sufficient specificity:

determining that

preparing for

when

(1) the

made two

magistrate

it was reasonable

a warrant

they learned

Wihbey

judge erred

for the agents

application until

Wihbey's name

objections

with

in

to delay

Saturday morning

and address,

and (2)

the

magistrate

compelling

judge

erred

necessity

in

determining that

for

immediate

exigency was

created by the

We note that

Wihbey did not object to

judge's proposed

there

action,

was

because

the

agents' investigative strategy.

any of the magistrate

findings of the underlying

facts, but only

____________________

1.
the

Rule 3(b) of
United

the Rules for United States

States

District

Massachusetts requires

Court

a party

for

Magistrates in

the

who objects to

District

of

a magistrate

judge's findings and recommendations to identify specifically

the objectionable
recommendations and
magistrate
this

rule,

portions

of

the

to state the

judge's report
advising Wihbey

proposed

basis for objection.

contained a
that

preclude appellate review, citing

findings

clear

failure

and
The

warning about

to comply

would

United States v. Valencia_____________

_________

Copete, 792 F.2d 4, 6 (1st Cir. 1986) (approving such a local

______
rule).

See also 28 U.S.C.

___ ____

636(b)(1).

-1111

to the reasonableness of the agents'

facts

constituted

exigent

actions and whether the

circumstances.

In particular,

Wihbey did not object to the finding that Wihbey consented to

the search after he was arrested; thus the issue before us is

whether

the warrantless

circumstances.

In any

arrest

event,

was

we find

justified

no error,

by

exigent

let alone

clear error,

in the

underlying facts.

magistrate judge's

As to the forfeited

findings as to

the

arguments that Wihbey

now raises, we find that none of the asserted errors rises to

the level of plain

error which might justify reversal.

See
___

United States v. Olano, 113 S. Ct. 1770, 1776-1779 (1993).

_____________
_____

a.

Should the agents have started a warrant

_________________________________________

application earlier?
____________________

Contrary to his assertion on appeal, Wihbey's right

to be

free from unreasonable

impose a duty

for

warrant

searches and seizures

on the investigating agents to begin preparing

prior

to the

arrest

and

Weiner, Britt, and Rohan on Saturday morning.

did

not

did not

learn Wihbey's

name or

interrogation of

The DEA agents

which condominium

unit he

lived in until Saturday morning.

arrest,

Moreover, prior to Weiner's

the agents could not be sure whether Wihbey would be

at his condo or some other place, nor was there any assurance

that the suspects to be

that crucial information.

arrested would cooperate and provide

The DEA agents were

not obligated

to prepare a warrant application in advance merely because it

-1212

might have

been foreseeable that the

contemplated arrest of

Britt and

Rohan would lead the

agents to the

source of the

marijuana.

See United States

___ _____________

v. Cresta, 825
______

F.2d 538, 553

(1st Cir.

prior

1987) ("Although probable cause

to the

exigent

arrests,

factors.";

recognized

as

exception .

an

this does

not

negate the

"Unforeseeability

element

of

the

existed some time

has

exigent

rise

never

of

been

circumstances

. . ."), cert. denied, 486 U.S. 1042 (1988).

_____ ______

We

therefore reject Wihbey's first basis for objection.

b.

The

Were the circumstances exigent?

______________________________

magistrate

judge

credited agent

McDonough's

statement that he had doubts

Rohan, and Weiner,

them

in further

about the credibility of Britt,

and that it

detail

before

was reasonable to

interview

proceeding against

Wihbey.

Therefore, it was only sometime after 11:30 a.m., about three

hours after the marijuana buy had begun, that McDonough faced

the crucial decision whether he had time to obtain a warrant.

The magistrate judge also

relied on McDonough's testimony in

finding that (1) it would take

hours to obtain

to

substantially longer than two

a warrant and (2) that

McDonough's decision

forego a warrant was not motivated by his desire to press

ahead with

the investigation of Whitman and

Wihbey

did

not specifically object

and

even if he had, those findings are not clearly erroneous

in light of

to those

Camyre.

all the circumstances.

recommended findings,

Because of

the delay in

-1313

Weiner's return to Wihbey, and Weiner's statement that Wihbey

would

be growing

judge

and

feared

that

suspicious, we

the district

Wihbey

court

would

agree with

that

flee,

the magistrate

the agents

or

conceal

reasonably

or

destroy

marijuana evidence before a warrant could be obtained.

It is well established

act reasonably, based on

the objective facts available, when

deciding that a warrantless

basis for

such authority

factual question

expected

Amendment

Illinois
________

with

to

that government agents must

entry is justified: "Whether the

exists is

the

sort of

to which law enforcement

apply

requires

their

is

that

judgment;

they

v. Rodriguez, 497 U.S.

_________

and

answer

recurring

officials must be

all

it

the

Fourth

reasonably."

177, 186 (1990).

We agree

the magistrate judge and the district court that it was

reasonable

for

the

agents

in

this

case

to

judge

the

circumstances exigent and to take action accordingly.

Although

Wihbey now

he

did

not

raise

the

argument below,

argues that his suspicion could have been allayed

-- and the exigency

averted -- by a

assuring him that all was

does

not alter

our

well.

phone call from

While that may be

conclusion.

It

reasonable professional judgment of

was well

Weiner

true, it

within

the

the agents to choose not

to jeopardize a continuing investigation by

taking measures,

such as a phone call, that might (or might not) alleviate the

exigency.

The telephone

call might

-1414

have had the

opposite

effect, heightening Wihbey's

suspicion, and inducing him

to

immediately flee, or destroy or conceal evidence.

We also reject Wihbey's argument that the

was created

need for

by the DEA agents' investigative

quick action

arose upon the

exigency

strategy.

The

agents' determination

that arrestees Rohan, Britt, and Weiner had provided reliable

information

about Wihbey

and

that he

delay in

would be

because of

any further

accept the

magistrate judge's finding that the timing of the

second controlled buy did

forego a

warrant.

And, as

getting back

suspicious

not drive the agents'

we have said, the

to him.

We

decision to

agents had no

duty to

Rohan and

prepare a warrant

application before the

Weiner nor to attempt to

with a phone call.

Wihbey

established surveillance

arrest of

allay Wihbey's suspicion

argues that the agents could have

of his condominium,

without entry,

to prevent Wihbey's flight, but that would not have prevented

the destruction of evidence within.

agent's

investigative strategy

We see nothing about the

that

created the

exigency.

This is not a situation where the agents deliberately created

the exigent circumstances.

The agents had no choice

but to

respond promptly

learned that

at his

once they

Wihbey was

condominium, undoubtedly growing suspicious as he awaited the

overdue

proceeds

of the

busted

States v. Cresta, 825 F.2d at 553.

______
______

transaction.

See
___

United
______

-1515

For the foregoing reasons,

Wihbey's motion to suppress.

we affirm the denial of

-1616

B. Improper Arguments by the Prosecutor

B. Improper Arguments by the Prosecutor
________________________________________

Wihbey and

claim,

the prosecutor

their failure

Whitman seek a new

in

to testify,

trial because, they

closing argument

shifted

commented

the burden

of proof

upon

to

them, and vouched for the government's witnesses.

1.

Comment on Failure to Testify and Attempt to

______________________________________________

Shift the Burden of Proof

_________________________

Wihbey

remark

and

(hereafter

Whitman

contend

"Comment

One"),

that

made

the

following

during

the

government's

summation, was

an

improper comment

on

their

failure to testify:

What I would like to do, however, is

talk to

you for a few

minutes about the

three specific charges that are contained

in the indictment . . . .
The
to you

first one, and

the most

conspiracy
count

I would suggest

important

count

and

lists, as you

that

one, is

the

conspiracy

know, six different

persons -- four of them you heard from -Mr.

Britt, Mr.

Wihbey

and Mr.

Rohan,

Mr. Weiner,

Whitman and

Mr.

Mr. Camyre.

You've heard from all of those witnesses

_________________________________________
except for obviously the two Defendants
_________________________________________
who have now been charged.
__________________________

(emphasis added).

Wihbey asserts that a second remark ("Comment Two")

was also an

improper comment

well as an attempt

on his failure

to testify

to shift the burden of proof to him.

as

The

prosecutor

recounted Wihbey's

special agent

McDonough that

post-arrest statement

Wihbey would not

to DEA

turn in

his

-1717

source because he was Wihbey's friend, but that he would give

the name of the friend's source.

Then the prosecutor said:

Now,

if

lawyer] can

Mr.

St.

stand

Clair

up and
_

[Wihbey's

explain

away

that conversation to you, then you should

let Bob

Wihbey walk

verdict of

out of here

acquittal.

But he can't

that, ladies and gentlemen,

is
man,

not a

been falsely

do

because that

conversation that

who's

with a

an innocent

accused, would

have under those circumstances.

There's

just

no other

except the one that's been

the

explanation
provided from

witness stand by the eight witnesses

called by the government.

(emphasis added).

At

which

lawyer

the end

the prosecutor

asked

made

to approach

ordered him instead

lawyer

of the prosecutor's

therefore

Comments One

the

summation, during

and Two,

bench, but

the

to "move on with it for

proceeded

with

his

trial judge

now."

closing

Wihbey's

Wihbey's

argument;

Whitman's lawyer followed.

After the

Wihbey and Whitman both moved for a

One as an improper

citing

prosecutor's rebuttal,

mistrial, citing Comment

comment on their failure to

as improper a third comment.

defense counsel's attempt to

testify, and

We assume arguendo that

________

approach, coupled with specific

mention in the mistrial motion, was a sufficient objection to

Comment

One to preserve the

Wihbey's failure

to mention

issue for appeal.

Comment Two

in the

We consider

motion for

mistrial, however, as a failure to object; therefore if there

was an error

in Comment Two, the error was

-1818

forfeited and is

reviewed for

plain error only.

See
___

Olano, 113
_____

S. Ct.

at

1776-1779.

Comment by a prosecutor on a defendant's failure to

testify

violates the Fifth Amendment guarantee against self-

incrimination.

Griffin
_______

v.

California, 380
__________

U.S. 609,

615

(1965).

A court determines if a prosecutor's remarks violate

Griffin
_______

by

asking "whether,

in

the

circumstances of

the

particular case, the language used was manifestly intended or

was of such

a character

necessarily take

accused

that the jury

it to be

to testify."

a comment on

United States
______________

1105, 1111 (1st Cir. 1993)

810

F.2d 316,

(1987)).

322 (1st

and

the failure of

the

v. Akinola,
_______

985 F.2d

(quoting United States v. Glantz,

_____________
______

Cir.), cert.
_____

denied, 482
______

U.S. 929

If we find that a prosecutor has violated Griffin,

_______

we then review for harmless error.

461 U.S.

would naturally

499,

508-12 (1983)

United States v. Hasting,

_____________
_______

(applying

the

constitutional

harmless error analysis established in Chapman v. California,

_______
__________

386

U.S.

18, 24

stated that a

(1967)).

In

Chapman, the
_______

prosecutorial comment

on the

Supreme Court

failure of

the

accused

could

to testify would

show

"beyond

complained of

386

U.S. at

constitutional

did not

24.

reasonable

doubt

contribute to the

The Supreme

harmless

Louisiana, 113 S.
_________

not require reversal

error

that

the

error

verdict obtained."

Court clarified

standard

if the State

in

the Chapman
_______

Sullivan
________

v.

Ct. 2078, 2081 (1993), explaining that the

-1919

inquiry is "not

error,

a trial

that occurred

without

a guilty verdict surely would have been rendered, but

whether the

was

whether, in

surely

guilty verdict

actually rendered in

unattributable

to

the

error."

this trial
____

(emphasis

in

original).

A very

forfeits

an

different standard is applied

error

objection, as Wihbey

that

by

failing to

did with

make

when a party

contemporaneous

respect to Comment

Two.

In

case, we have the discretion to reverse only for "plain

error," i.e., error

was "prejudicial" to

that is "clear"

and "obvious" and

the defendant in that it

that

"affected the

outcome of the

District Court proceedings."2

Ct. at 1777-78.

plain

Olano, 113 S.
_____

And, we exercise that discretion only if the

forfeited

error

integrity, or public

seriously

affects

the

fairness,

reputation of judicial proceedings;

an

example of such an error is one that causes the conviction of

an actually innocent defendant.

As

prosecutor

to

Comment

One,

did not

"manifestly

defendants' failure

to testify.

Id. at 1779.
___

we

find,

first,

intend" to

that

the

comment on

the

See Akinola,
___ _______

985 F.2d

at

____________________

2.

After stating

that a forfeited error

was prejudicial if

it affected the outcome of the proceedings, the Supreme Court

in

Olano
_____

stated:

forfeited errors

"There
that can

may

be

special

category

be corrected regardless

of

of their

effect

on the

outcome . .

without specificity,

. ."

to a class

presumed prejudicial if the

showing of prejudice."

The

Court also adverted,

of errors

"that should

be

defendant cannot make a specific

113 S. Ct. at 1778.

-2020

1111.

The

prosecutor

context

of

the

intended to list

conspiracy count and to

comment

indicates

the six persons

that

the

charged in the

remind the jury that they

had heard

from four

of the six.

But,

apparently by mistake, he named

Wihbey and Whitman among those who testified.

comment appears

mistake,

by

to be an

reminding

unartful attempt

the

defendants did not testify.

find that

jury

that

The challenged

to correct

"of

course"

that

the

Second, based on the context, we

the jury would not "naturally and necessarily take

[the remark] to be a comment on the failure of the accused to

testify."

See id.
___ ___

comment the same

of the

tongue.

We think it likely that the jury took the

way we do, as an attempt

By saying "of course [the defendants did not

testify]," the prosecutor just

as plausibly has reminded the

jury

that the defendants' silence was

that

it is

natural for

Amendment right.

to clarify a slip

a defendant

The remark does not

to be expected, i.e.,

to exercise

his Fifth

necessarily imply that

the jury

to

should draw any negative inference from the failure

testify.

prosecutor

damaging

"A court

intends

meaning or

should

not

an ambiguous

that

a jury,

lightly

remark

to

infer that

have its

sitting through

most

lengthy

exhortation, will draw that meaning from the plethora of less

damaging interpretations."

300, 307 (1st Cir.

United States v. Lilly, 983 F.2d

______________
_____

1992) (quoting Donnelly v. DeChristoforo,

________
_____________

-2121

416 U.S. 637, 647 (1974)).

Accordingly, we hold that Comment

One was not a Griffin violation.

_______

In contrast to Comment One,

we find Comment Two to

be effectively a comment on Wihbey's failure to testify,

that

the

jury likely

comment impermissibly

of proof.

(1st

understood it

that

way.

Also, the

suggested that Wihbey bore

the burden

See United States v. Skandier, 758 F.2d 43,

___ _____________
________

Cir. 1985)

and

(holding that

45-46

a "how-does-counsel-explain"

argument is a Griffin violation and an impermissible shift of

_______

burden of proof).

Wihbey, however, forfeited this

failing to

or raise

object

it

as grounds

for

Although

it was improper, Comment

Two does not

level of

"plain error" under the Olano standard.

_____

error by

mistrial.3

rise to the

113 S. Ct.

at 1776-79.

In

believe that

light

of

all

the circumstances,

the comment affected the

affected

the fairness,

judicial

proceedings."4

integrity,

do

not

outcome or "seriously

or public

Id. at 1779.
___

we

reputation of

First, the judge gave

____________________

3.

We

recognize that,

after

the

prosecutor's

Wihbey's lawyer

asked "Your honor, may

We

he intended

must assume

remarks.

to

I approach sidebar?"

object to

The judge told counsel to

summation,

the prosecutor's

move on with his closing

argument.

Upon

being rebuffed,

objection or press further

event, counsel had
grounds for

counsel did

the request to approach.

the opportunity to

mistrial, but

not state

In any

raise Comment Two

specified only Comments

an

as

One (and

Comment Three, which we discuss further on).

4.

This

improper remark

by

the prosecutor

is not

in the

class of forfeited errors adverted to in Olano, 113 S. Ct. at

_____
1778, which are

presumed to be prejudicial without regard to

-2222

a strong instruction on the defendants'

right not to testify

and the

government's burden

of proof.5

Second, there

was

____________________

their

affect on the outcome.

and preserved
error

the

error, it

Indeed, if Wihbey had objected

would be

review, which of course

error on the outcome.

subject to

focuses on the

harmless

effect of the

See United States v. Hasting, 461 U.S.

___ _____________
_______

499, 508-12 (1983).

5.

The relevant portions of the jury instruction follow:

The

law presumes a

innocent of a crime.

defendant to be

Thus, a

defendant,

although accused, begins the trial with a

clean

slate,

with

no evidence

against

him.
. . . .
The

presumption of

innocence alone

is sufficient to acquit a defendant . . .

.
. . . .
The

burden

prosecution

to

is

always

prove

guilt

upon
beyond

the
a

reasonable doubt.
Now

I told you

two or

three times

during
have

this
a

trial

that the

constitutional

testify

or offer

behalf.

If

any

Defendants

right

not

any evidence

to

on their

counsel stated

during

final argument that the Defendant did not

testify

in an

wrong and

attempt to

impugn that's

something might be

wrong with

them, I urge you now to completely ignore

it and disregard it.
The law

is clear a

defendant never

has the burden of proving

for

the

law

never

his innocence,

imposes

defendant in

a criminal case

or

calling

duty

of

any

producing any evidence.

upon

the burden

witnesses

The

or

Government

has the burden of proving to you beyond a

reasonable doubt that the
guilty

of

the

crimes

Defendants are
charged.

This

burden of proof rests upon the Government

and it never shifts to the Defendants.
. . . .
As
the

I told

burden

Defendant

you, the

of

proving

beyond

-2323

Government has
guilt

reasonable

of

the

doubt.

significant

Wihbey's

(but

admittedly not

guilt, enough

negative inference

the

scale from

against

surveillance

guilty"

included

of

find

to

that any

to testify tipped

"guilty."

co-conspirator

pre-transaction

evidence of

it unlikely

drawn from his failure

"not

Wihbey

that we

overwhelming)

The

testimony,

marijuana

evidence

police

sampling

at

Wihbey's condo complex, Wihbey's ownership of the house where

the

forty-pound

transaction

paraphernalia

seized

incriminating

post-arrest statement.

instruction and the

from

took

place,

Wihbey's

marijuana

and

condo,

and

Wihbey's

Given

the

curative

evidence of guilt, we are

not convinced

that the improper remark constituted plain error.

2.

Witness Vouching
________________

Wihbey and Whitman contend

that the prosecutor, in

his rebuttal, improperly vouched for the accomplice witnesses

who testified

under their

plea agreements.

The prosecutor

____________________

That burden remains

throughout

the

with the

entire

Government

trial and

never

shifts to the Defendant.

Accordingly,
Defendants

has

if
not

either

of

the

testified

in

this

case, and neither have testified

case,

you

are

not

significance

to this

not

way

in

any

to

in this

attach

fact, and

consider

any

you may

this against

eitheroftheDefendantsinyourdeliberations.
. . . .
And further, you should bear in mind
that

the

law

never

imposes

defendant in

a criminal case

or

calling

duty

of

producing any evidence.

-2424

any

upon

the burden

witnesses

or

analogized the trial evidence

"tiles"

that

were

to a "mosaic" made up

individually

imperfect

if

of many

closely

scrutinized, but which nonetheless would give a clear picture

if

viewed

as

a whole.

After

making

that analogy,

the

prosecutor made the challenged comment ("Comment Three"):

None

of

these

witnesses

are

perfect.

None of them have perfect memories.

But what they have done is testified
________________________________
to you truthfully about what they knew,
_________________________________________
and despite the fact that

there are some

imperfections in their testimony,

take

a step

tile, you

back

from that

individual

that the

Britt tile

will see

[government
[government

if you

witness]
witness]

and
tile

the
go

Rohan
hand

in

hand.

(emphasis added).

There was no immediate objection.

But two

sentences later, the prosecutor ended his rebuttal, the judge

excused

the jury for lunch,

mistrial,

arguing

vouching.

The

preserved

the issue for

Sepulveda,
_________

15

defendant

did

argument

until

summations,

and the defendants

that this

cert.
_____

States
______

v.

was

improper witness

question is close whether the defendants have

appeal.

F.3d 1161,

not

object or

motion

denied 114
______

Mandelbaum,
__________

Compare United States v.

_______ ______________

1186-87

for

error forfeited

only),

comment

moved for a

S.

803

(objection made after closing

(1st

raise

mistrial

and

Cir. 1993)

improper prosecutorial

after

reviewed

Ct. 2714

F.2d 42,

(where

conclusion

for plain

(1994),

43

(1st

of

error

with United
____ ______

Cir.

1986)

arguments was timely enough to

preserve error for appeal, although it "should have been made

-2525

earlier)

1008

and United States v.

___ ______________

n.6

sufficient

agreed

(1st

to preserve

not to

argument,

Cir.

1995)

Levy-Cordero, 67
____________

(objection

issue for

object during

after

appeal where

arguments).

F.3d 1002,

arguments

parties had

For the

sake of

we will treat the issue as preserved for appeal as

if a contemporaneous objection had been lodged.

An

improper argument

implicate a defendant's

witness vouching

error

only

the jury

and

that does

not

such as

the

constitutional rights,

that occurred here,

where

inappropriate

to

the

constitutes reversible

prosecutor's

harmful.

See
___

id.
___

remarks

at

were

1008.

both

Improper

statements during closing argument are considered harmful if,

given the

have

totality of the circumstances, they

affected

the trial's

outcome.6

are likely to

Id. (citing
___

United
______

____________________

6.

Prosecutorial arguments that

right of

the accused

than arguments that are

implicate a

are reviewed under

improper, but not

constitutional

a higher

standard

unconstitutional.

See Steven A Childress and Martha S. Davis, Federal Standards

___
_________________

of Review
_________
that

11.23 (2d

an "inappropriate"

unless

it

trial.

See,
___

70

ed. 1992).

is likely

comment is

to have

713 (1st

not a

affected

e.g., United States

____ _____________

F.3d 706,

We have repeatedly

held

reversible error

the outcome

of the

v. Cartagena-Carrasquillo,
______________________

Cir. 1995);

United States
_____________

v. Levy_____

Cordero, 67 F.3d 1002, 1008 (1st Cir. 1995); United States v.

_______
_____________
Ovalle-M rquez,
______________

36

denied, 115 S. Ct.

______

F.3d 212,

220

(1st

Cir. 1994),

947 (1995); United States v.

_____________

cert.
_____

Manning, 23
_______

F.3d 570, 574 (1st Cir. 1994).

The Supreme Court, however, has held that a comment
on

the failure of the accused to testify is a constitutional

violation, without inquiry as

Griffin v. California, 380
_______
__________
Griffin comment
_______

to its affect on the

U.S. 609, 615 (1965).

is a reversible error

not affect the outcome.

___

461 U.S. 499,

Indeed, a

unless the government

__________

can persuade the appellate court that it was

did

outcome.

harmless, i.e.,
________

See United States v. Hasting,

___ ______________
_______

507-09 (1982); Chapman v. California, 386 U.S.

_______
__________

-2626

States v.
______

making

the

Manning, 23 F.3d
_______

570, 574 (1st

that determination, we

prosecutor's

misconduct,

deliberate

or

accidental;

misconduct

occurred;

(3)

instructions and the likely

(2)

Cir. 1994)).

focus on (1)

including

the severity of

whether

the context

whether the

In

judge

in

it

was

which

the

gave curative

effect of such instructions; and

(4) the strength of the evidence against the defendants.

Id.
___

Although the prosecutor's statement that "what they

have

done

is

testify

truthfully"

consideration of these factors

was not harmful.

on

First,

balance, severe.

personal opinion

States v.
______

was inappropriate,

leads us to conclude

our

that it

the witness vouching here was not,

The prosecutor

about the

did

not express

witnesses' veracity,

Mejia-Lozano, 829 F.2d

____________

268, 273 (1st

his

see United
___ ______

Cir. 1987);

____________________

18, 26 (1967).
It appears that this
Griffin
_______

comments like

convictions

where

the

other
panel

comments affected the outcome.

Glantz,
______

court has on occasion treated

improper
found it

comments,
unlikely

affirming
that

See, e.g., United States

___ ____ _____________

the
v.

810 F.2d 316, 320 (1st Cir.), cert. denied, 482 U.S.
_____ ______

929 (1987); United States v. Cox, 752 F.2d 741, 744 (1st Cir.
_____________
___
1985).

These

cases may overstate the

defendant's burden in

demonstrating a Griffin violation.

_______
It
accused

is clear that a

comment on the

failure of the

to testify is a constitutional error, and the burden

rests with the government to show the error harmless beyond a

reasonable doubt, not with the
was

harmful.

See,
___

e.g.,
____

defendant to show the comment

Hasting,
_______

461 U.S.

at

507-09;

Chapman, 386 U.S. at 26.

_______
On the
challenged
burden

other hand, in cases

non-constitutional

inappropriate

comments,

the

rests with the defendant to show that the comment was

harmful, i.e., that "under

they

where defendants have

affected

the

the totality of the circumstances

trial's

outcome."

See
___

Cartagena__________

Carrasquillo, 70 F.3d at 713; Levy-Cordero, 67 F.3d at 1008.

____________
____________

-2727

nor did the prosecutor suggest that

about

the

witnesses'

he had special knowledge

credibility,

or

that

special

circumstances such as an oath or a plea agreement ensured the

witnesses'

honesty, see Manning, 23

___ _______

purpose of the "mosaic" analogy

F.3d at 572,

575.

The

and the vouching comment was

to concede the existence of imperfections and inconsistencies

in

the

accomplices'

inconsistencies

testimony,

did not indicate

and to

argue

that

those

dishonesty or fabrication.

Although the witness vouching seems to have been intentional,

in

that it

fairly

was part

of a clearly

planned oration,

it was

mild and barely crossed the line of impropriety.

See
___

United States v.
______________

Oreto, 37
_____

F.3d 739,

746 (1st

Cir. 1994)

(prosecutor's argument that "nobody lied" was "mild vouching,

essentially harmless"), cert. denied, 115 S. Ct. 1161 (1995);

_____ ______

United States
_____________

v. Innamorati, 996
__________

F.2d 456,

483 (1st

Cir.)

(stating that the line between proper argument that a witness

is

credible and

improper vouching

denied, 114 S. Ct. 409 (1993). The

______

vouching occurred has aspects

is "often

context

which

the

that suggest harmfulness,

and

aspects that cut the other

way.

lines of

rebuttal are

the prosecutor's

lasting impression on the jury.

On the

other hand, the

hazy"), cert.
_____

in

On the one hand,

the final

thought to

leave a

See Manning, 23 F.3d at 575.

___ _______

vouching was to

some extent

a fair

response

to

the

thrust

of the

defense

summation,

which

emphasized that the accomplices were liars and that they were

-2828

exaggerating,

coloring

government what they

their

testimony,

wanted to hear.

See
___

and

telling

the

Mejia-Lozano, 829
____________

F.2d

at 268,

274 (prosecutor

vouching was "in

given "greater

response to defense

leeway" where

counsel's inflammatory

statements").

The

judge

gave

a strong

and

specific

curative

instruction.

Statements and

arguments of counsel

are not evidence in the case . . . .

If
closing

any

attorney

in

the

arguments stated to

clients or my
ignore it.

in

you that my

witnesses told the

It's

the witnesses

case

truth,

what you determine from

and

the evidence

in

the

case, from the point of

view of deciding

facts, that will control

the credibility

of all witnesses; it

will be for you and

only for you to determine.

Although

the

after

the curative

instruction was

defendants did not object to

the prosecutor finished his

not contemporaneous,

the witness vouching until

rebuttal and the jury was

excused for lunch.

give

The earliest opportunity for the judge to

a curative instruction was during the final charge.

normally presume that

a jury will

follow an instruction

disregard inadmissible evidence or an improper argument.

Greer v.
_____

Miller, 483 U.S. 756,

______

766 n.8 (1987).

We

to

See
___

We find it

likely that this forceful instruction effectively neutralized

the vouching that occurred here.

Finally,

the evidence

against Wihbey

and Whitman

was sufficiently strong for us to conclude, after considering

-2929

the totality of circumstances, that the vouching was unlikely

to affect

analysis

the outcome of the trial.

of Comment

substantial.

it included

Camyre,

where

role in

Two,

As noted in our earlier

the evidence

against Wihbey

was

The evidence against Whitman was even stronger;

the testimony

and Brandt,

Whitman's

of his accomplices

pre-arrest tape

recorded conversations

accomplices explicitly

the marijuana

Britt, Rohan,

discussed Whitman's

distribution plans, and

testimony by

DEA

agents

statements

about

that

transaction

Whitman's

made

his

rather clear.

post-arrest

role

We

in

cooperation

planned

and

marijuana

therefore conclude

that the

vouching in this case did not constitute reversible error.

3.

Motions for Mistrial and New Trial

__________________________________

We

recognize

prosecutorial

that

misconduct,

constitute grounds

for

none

several

of which

mistrial, could

impact on the jury sufficient to affect

incidents

would

have

separately

cumulative

the trial's outcome.

We review a trial judge's ruling on a motion for a

or for a

new trial,

only for abuse

of discretion.

States v. Barbioni, 62 F.3d 5, 7 (1st

______
________

mistrial);

Glantz, 810
______

F.2d at

320 &

of

mistrial,

United
______

Cir. 1995) (motion for

n.2 (motion

for new

trial because of improper

argument).

United States Attorney in

this case exceeded the permissible

limits

Although the Assistant

of proper argument, we cannot say that his action was

deliberate and we

do not believe that the closing arguments,

-3030

viewed collectively, affected the

outcome or the fairness of

this trial.

For the

challenged comments,

reasons set forth in our review

we hold

that the

trial judge

of the

did not

abuse his discretion in denying the defendants' motions for a

mistrial and for a new trial.

-3131

C. Single Conspiracy vs. Multiple Conspiracies

C. Single Conspiracy vs. Multiple Conspiracies
_______________________________________________

The

Count I of

jury convicted both

Wihbey and

the indictment, which charged

Whitman under

a single marijuana

distribution conspiracy among six persons (the two defendants

along with

Britt, Rohan,

Weiner, and

Camyre).

Wihbey and

Whitman argue that the evidence was insufficient to allow the

jury

to

find a

single

conspiracy, and

that

the evidence

showed instead two separate conspiracies.

The framework for analyzing when a variance between

the conspiracy charged and the conspiracy proven

constitutes

reversible error was set forth in United States v. Glenn:

_____________
_____

(1) Is the

evidence sufficient to permit

a jury

find the

to

agreement

that

(2) If not, is

(express or

the indictment

tacit)
charges?

it sufficient to permit a

jury, under a proper set of instructions,

to

convict the

defendant of

similar conspiracy?
answer to

a related,

(3) If so [i.e., the

(2) is yes], does the variance

affect the defendant's substantial rights

or

does

charged

the

difference

conspiracy

and

between
the

the

conspiracy

proved amount to "harmless error?"

828

F.2d 855, 858 (1st

long as

Cir. 1987).

the statutory violation

can convict

even if

the facts

Put differently, "[s]o

remains the same,

the jury

are somewhat different

than

charged

-- so long as

prejudice."

at 3

the difference does

United States
_____________

(1st Cir.

not cause unfair

v. Twitty, No. 95-1056, slip

______

Dec. 28, 1995)

858).

-3232

(citing Glenn,
_____

828 F.2d

op.

at

This court

which such

has recognized

at least three

a variance might "affect

of the accused.

ways in

the substantial rights"

United States v. Sutherland, 929

_____________
__________

F.2d 765,

772-73 (1st Cir.), cert. denied, 503 U.S. 822 (1991).

_____ ______

First,

charge

defendant

may receive

against him and

Second,

thus be

inadequate

taken by

a defendant may be

the same offense.

Id.
___

notice

of the

surprise at

trial.

Id.
___

twice subject to prosecution for

Third, a defendant may be prejudiced

by "evidentiary spillover": the

"transference of guilt" to a

defendant

conspiracy

involved

in

incriminating defendants in

one

from

evidence

another conspiracy in

which the

particular defendant was not involved.

Id.
___

The question

whether a

indicative of a single

given body of

evidence is

conspiracy, multiple conspiracies, or

no conspiracy at all is ordinarily a matter of fact; a jury's

determination in that

regard is subject

evidentiary sufficiency.

722,

732 (1st Cir.), cert.

_____

al..
___

In reviewing

to review only

United States v. David,

______________
_____

denied, 502 U.S.

______

940 F.2d

989 (1991), et
__

the sufficiency of the evidence,

we take

the evidence in the light most favorable to the verdict.

at

730.

We review

de novo the
__ ____

affected a defendant's substantial

for

Id.
___

question whether a variance

rights.

Arcadipane, 41 F.3d 1, 6 (1st Cir. 1994).

__________

United States v.
_____________

Wihbey

insufficient

and Whitman

assert

"to demonstrate

that

that the

evidence was

all of

the alleged

co-

efforts

towards

the

-3333

conspirators

directed

accomplishment of

States v.
______

a common

their

goal or overall

Drougas, 748 F.2d 8,

_______

plan."

United
______

17 (1st Cir. 1984).

But we

find

it unnecessary

to engage in

shall assume for the

insufficient

to

charged single

convict either

similar,

Wihbey

or

evidence was

Whitman of

conspiracy, satisfying the first

Whitman properly

to

inquiry; we

sake of argument that the

tripartite Glenn framework.

_____

sufficient

that factual

concede,

prove that

but smaller,

part of the

See 828 F.2d at 858.

___

however, that

each

the

conspiracy, and their

Wihbey and

evidence

participated

the

in a

was

related

arguments jump

directly from the first prong to the third (prejudice) prong.

Specifically, they

for

rational

marijuana

among

concede that the evidence

juror

to find

(1) Wihbey,

agreements

Weiner,

Whitman, Camyre, Britt, and Rohan.

and

was sufficient

to

traffic

Rohan,7 and

in

(2)

Thus, the second prong of

Glenn is satisfied.
_____

however,

for a

new trial

single

conspiracy

proven

was

spillover.

See id.
___ ___

We

to

and

the

them

therefore proceed

making two assumptions.

and

Whitman

because the variance

charged

prejudicial

Wihbey

We assume

multiple

because

of

to Glenn's
_____

argue,

between the

conspiracies

evidentiary

third prong,

first that the

evidence

____________________

7.

Although Britt

was arrested along with

during

the Wihbey-supplied

Street

house, Britt

is

transaction

not included

at
in

Weiner and Rohan

Wihbey's

Arden

this first

group

because we are assuming arguendo that there were two separate

________
conspiracies.

-3434

was insufficient to prove

second,

as

supports,

Wihbey

the defendants

that there

agreeing to

with Weiner

marijuana

were

concede

and

two separate

sell 250 pounds

acting as

Camyre agreeing

of

the single conspiracy charged, and

obtained from

evidence

conspiracies:

of marijuana

Wihbey's agent,

to sell Britt and

as ample

and (2)

(1)

to Rohan,

Whitman and

Rohan thirty-seven pounds

Brandt.

Even

if

the assumed

variance existed between the conspiracy charged and the proof

at

trial, it did not prejudice either Wihbey or Whitman, and

it was therefore

harmless under

Glenn, 828 F.2d at 858.

_____

Wihbey

prejudicial

guilt"

and

reviewing

the

prejudicial

trial

framework.

See
___

We explain.

Whitman

because there

to each of them

the Glenn
_____

was

argue that

"an

we

variance was

improper imputation

from the other's

record,

the

conspiracy.

reject

the

of

After

claim

of

evidentiary spillover for the following reasons.

First,

the

defendants'

briefs

specific instances of evidentiary spillover.

cite

only

two

One instance is

Britt's testimony that Rohan said he had a friend (implicitly

Wihbey)

who

could supply

250

pounds

of marijuana.

But

Rohan's

statements

another

conspiracy in which Wihbey did not take part; on the

contrary, the

with Rohan.

about

Wihbey

do not

evidence clearly showed

spill

over

from

that Wihbey conspired

Therefore, Britt's testimony as to Rohan's out-

-3535

of-court

statement was

admissible against

Wihbey as

a co-

conspirator

statement

under

801(d)(2)(E), thus there

as

to

Whitman,

agreement

proving

Camyre.

evidence

Rohan's

between

Britt

the conspiracy

The

conspirators,

statement

and

Whitman under Fed. R.

is

of

the

thus

of

relevant

Rohan, Whitman,

"spillover"

Whitman

Evidence

Wihbey.

probative

Rohan and

was not

showed that

rendering

Rule

was no "spillover" to

between Britt,

testimony

clearly

Federal

and

statement

Evid. 801(d)(2)(E).

And

the

to

and

because

the

Rohan were

co-

admissible

against

Thus, as

to both

Wihbey and Whitman, the cited statement by Rohan was relevant

and independently

admissible without regard to the existence

of the larger conspiracy (which we are assuming arguendo

________

not proven).

See United States

___ _____________

was

v. O'Bryant, 998 F.2d 21, 26

________

(1st Cir. 1993) (no spillover where evidence was relevant and

independently admissible).

The other cited instance of

was Britt's testimony

separate

that he and Rohan were

deal" together

(implicitly

statement might

be fairly

Wihbey,

our

given

insufficient

conspiracy.

to

tie

evidentiary spillover

Wihbey).

characterized as spillover

assumption

Britt

But, even if

with

"going to do a

to

that

the

the

evidence

That

as to

was

Wihbey-Rohan-Weiner

Wihbey had been

given a separate

trial, the jury would have properly heard testimony about the

arrest of Britt

and Rohan while buying marijuana from Wiener

-3636

in Wihbey's Arden Street house.

there

could

statement

together.

as

to

be

that

any

Thus, it is hard

marginal probative

he and

Rohan had

planned

And, once again, this testimony

Whitman,

against

whom

it

independently

admissible, because

Britt, Rohan,

and Whitman

would

value

to see how

in

to do

Britt's

that deal

is not spillover

be

relevant

the evidence

were co-conspirators.

and

showed that

Thus, the

defendants

have

identified only

evidentiary spillover,

which we

one

specific

instance of

find harmless, and

we will

not hypothesize the existence of other instances.

Second, the

trial judge

gave

a jury

instruction

that cautioned against using spillover evidence:8

In

reaching your

that

guilt

individual.

verdict, keep

is

both

each

personal

Your verdict

solely upon the evidence

Defendant.

in mind
and

must be based
presented about

The case

against each

Defendant stands or falls upon

the proof

or lack of

Defendant

alone.

proof against that

Your verdict

as to one Defendant

should not influence your decision

as to

the other Defendant.

The trial judge gave similar instructions again when charging

the jury on the elements of conspiracy and what evidence they

____________________

8.
the

The judge also gave a multiple conspiracy instruction, to

effect that the jury

must acquit both

found that the single conspiracy charged did

if it found other

conspiracies.

defendants if it
not exist, even

Thus, the jury

verdict can

be seen

as an effective rejection of the multiple conspiracy

theory.

See United States v. Sepulveda, 15 F.3d

___ ______________
_________

(1st

Cir.

1993),

cert. denied,
_____ ______

However,

we have assumed for

evidence

was insufficient

114

S.

the sake of

to support

1161, 1191

Ct. 2714

(1994).

analysis that the

that verdict,

and we

have momentarily embraced the multiple conspiracy theory.

-3737

could consider as proof of a

conspiracy.

These instructions

were aimed at preventing evidentiary spillover, and we do not

readily

assume

Greer, 483
_____

that

jury

U.S. at 766 n.8.

disregards

clear directions.

The defendants did not request

any other instruction as to spillover, nor did they object to

this one.

Third,

Wihbey's

activities

thereof) were quite distinct from

agreed to supply marijuana

(and

the

evidence

Whitman's; each separately

to a middleman (Rohan, at

least,

and perhaps Britt) for resale to the informant DeCastro.

The

question

his

here

is

whether

conspiracy spilled over to

Assuming,

as we

are,

evidence about

Wihbey

and

prejudice Whitman, or vice versa.

two separate

conspiracies, with

the

Wihbey sale

have not

distinct from

explained how the

the Whitman sale,

jury could

the defendants

have found

evidence

from one conspiracy to be particularly probative of the other

conspiracy.

n.24 (1st

unlikely

See United States

___ _____________

Cir. 1988)

(evidence

v. Dworken, 855
_______

F.2d 12, 24

from separate

conspiracies

to have spillover effect).

We see little about the

fact that one of the defendants agreed to

makes

it more likely that the other defendant also agreed to

sell to Rohan.

some

All we are left with is

general, non-specific transference

occurred.

in

sell to Rohan that

the possibility that

of guilt

must have

The appellants have not pressed that argument, and

any event we find

such any such

general transference of

-3838

guilt

in this case to be

harmless under the totality of the

circumstances.

Wihbey

prejudicial

marijuana

also

asserts

in that he was

he agreed

to

pounds actually delivered.

that

the

sentenced for the

sell Rohan

rather

variance

was

250 pounds of

than the

forty

We see no merit in that argument.

Drug quantity is

not considered

by the jury

either the conspiracy or the possession count,

a matter

See
___

for the district

court to consider

an element

of

but is rather

at sentencing.

United States v. Campbell, 61 F.3d 976, 979-80 (1st Cir.

_____________
________

1995) (no specific quantity need be proven at trial; quantity

typically

evidence

relevant

of

only

the 250

at sentencing

pound

stage).

quantity was

derived

Moreover,

from the

smaller conspiracy of which Wihbey was clearly part, thus his

claim that his sentence was affected by the asserted variance

and

some

associated evidentiary

spillover

is particularly

difficult to fathom.

"To prevail on a

defendant

`must

prove

claim of prejudicial spillover, a

prejudice

so

pervasive

that

miscarriage

of

Cordero, 67 F.3d
_______

States v. Pierro,
______
______

justice looms.'"

1002, 1008 (1st Cir.

32 F.3d

denied, 115 S. Ct. 919

______

Wihbey and Whitman have

we conclude

United States v.
______________

1995) (quoting United

______

611, 615 (1st

Cir. 1994),

(1995)) (citations omitted).

fallen far short of such

that any variance between

-3939

Levy_____

cert.
_____

Because

a showing,

the single conspiracy

charged and

was

the conspiracy

or conspiracies proven

at trial

not prejudicial to the defendants and is not grounds for

reversal.

D. Sentencing Issues
D. Sentencing Issues
_____________________

Wihbey and Whitman both contend that the sentencing

judge

made

erroneous

sentencing

under the

sentencing

purposes,

factual findings

federal

the

sentencing

government

material

guidelines.

must

quantities by a preponderance of the evidence.

v.

to

prove

their

For

drug

United States
_____________

Sepulveda, 15 F.3d 1161, 1198 (1st Cir. 1993).

_________

We review

the sentencing

court's factfinding

for clear error,

id. at
___

1196, reversing only if, after reviewing all of the evidence,

we

are left

with the

mistake has been

definite and

made.

firm conviction

United States v. Rust,

_____________
____

that a

976 F.2d 55,

57 (1st Cir. 1992).

1.

Wihbey's Sentence: Drug Quantity

_________________________________

Wihbey asserts that the sentencing

clear error

sentencing

in determining

purposes.

The

judge committed

the drug quantity

commentary

to

for guideline

the

applicable

guideline provides:

In

an

offense involving

traffic
weight

in

a controlled

under

negotiation to
substance, the

negotiation

in

an

uncompleted distribution shall be used to

calculate

the

However, where the

applicable

amount.

court finds that

the

defendant did

not intend to

was not reasonably

the

negotiated

exclude

from

produce and

capable of

producing

amount, the

court shall

the guideline

calculation

-4040

the

amount that

it finds

did

not intend

to produce

the defendant
and

was not

reasonably capable of producing.

United

States Sentencing

Commission,

Guidelines Manual,
_________________

2D1.1, comment. (n.12) (Nov.

1, 1994).

The judge

found the

applicable quantity of marijuana to be 250 pounds, the amount

Wihbey had agreed to sell to Rohan according to the testimony

of

Wihbey's co-conspirators.

forty

than

pounds changed hands

three

condominium.

more

pounds

As the

Wihbey

in the

were

points out

controlled buy

found

later

in

that only

and less

Wihbey's

guideline commentary suggests, we first

examine the evidentiary basis for determining that 250 pounds

was the negotiated

applicable

amount, which

quantity,

and

then

as a general

rule is

the

we

whether

the

examine

exception to the general rule should have been applied.

The sentencing judge

and observed

the testimony

presided at

of all

trial and

heard

the witnesses, which

we

find sufficient

our

to support

deferential standard

Wihbey agreed

Rohan

that the deal was "for

their tape-recorded

that Rohan said his

finding under

testified that

in fifty-pound increments.

Rohan, Britt, and DeCastro

pound purchase in

testified

of review.

to sell 250 pounds

Weiner also testified

250 pounds."

his drug quantity

something like

discussed the 250-

conversation.

source had 200

Britt

to 250 pounds

available, and the deal would go forward in fifty-pound lots.

-4141

Wihbey

argues

that

the

testimony

cooperating co-conspirators was unreliable.

of

Our observations

in United States v. Zuleta-Alvarez are applicable here:

_____________
______________

In

this

case, there

existed sufficient

indicia of reliability to
for clear
.

error.

. relied upon

avoid reversal

First, the testimony .

by the sentencing judge

was all provided under oath . . . and was

corroborated
testified

by
.

the many
.

sentencing judge was

witnesses who

Moreover,
also the

the sentencing judge had

to

observe

the

Thus

the opportunity

testimony

examination of the various

the

presiding

judge during the prior proceedings.

and

these

cross-

witnesses and

could

thereby

make

an

independent

assessment of their credibility.

922

F.2d 33, 36-37 (1st

927 (1991).

Based on

Cir. 1990), cert.

_____

the testimony at

denied, 500 U.S.

______

trial, the

judge's

factual finding that the negotiated amount was 250 pounds was

not clearly erroneous.

In addition to challenging the

for the

Wihbey

finding that the

argues that

intention and

argument

misreading

negotiated amount was

there was

the

mark;

250 pounds,

insufficient evidence

capability to deliver

misses

evidentiary support

it

that amount.

seems

to

be

of the guidelines.

application note

But that

based

of the directive of commentary note 12 to

We have interpreted

of his

12

on

2D1.1

as directing

that

the amount

under negotiation must

determining
minimum

the

penalty

of

unless

court supportably
defendant

drugs

be considered

applicability

mandatory

sentencing
that

the

of

did not

in
a
the

finds both
____
intend

to

-4242

produce
narcotics,

the

additional
and
___

capacity to do so.

that

he

quantity

of

lacked

the

United

States v.

(emphasis

in

language of

Muniz,
_____

49 F.3d

original).

In

the guideline

amount applies

unless the

that the defendant

36,

42 (1st

other

words,

Cir.

as

1995)

the plain

comment dictates, the

negotiated

sentencing judge makes

a finding

lacked the intent

and the capability

to

deliver.

Wihbey

argued

at

because only forty pounds

no

prior record

of

the

drug-dealing, he

intent

hearing

were delivered and because

capability

and

sentencing

judge rejected

found that

Wihbey was capable

the

disposition

to

deliver 250

that

he had

therefore lacked

pounds.

Wihbey's argument,

of producing the

But

the

the

and expressly

250 pounds;

judge did not state the basis for that finding, however.

In our

view, the co-conspirator testimony

the 250-pound

deal is somewhat probative

and capability to produce that amount.

did not find the

does

of Wihbey's intent

The fact that the DEA

remaining marijuana in Wihbey's condominium

not prove that

deliver; obviously,

kept elsewhere, to be

progressed.

noted above about

Wihbey was unable or

he may have

did not intend to

arranged to have

delivered to Arden Street as

the drugs

the deal

Consistent with the clear language of note 12 to

section 2D1.1 of the guidelines, the negotiated amount is the

applicable quantity

unless Wihbey can show

-4343

both "no intent"

and "no capacity"

to produce

that amount.

The

sentencing

judge found that Wihbey failed to make that showing, and that

finding was not clearly erroneous.

2.

Whitman's Sentence: Leadership Role

____________________________________

Whitman

clear error in

finding that

Camyre justifying

His

argument

urges that the

is

sentencing judge committed

he had a

leadership role

an enhancement under U.S.S.G.

twofold:

(1)

the

trial

over

3B1.1(c).

evidence

was

insufficient

to

support

the

leadership

finding, and

(2)

Whitman's youth relative to Camyre and the other conspirators

indicates

leader.

that

Whitman was

The second

at

most

argument is easily

"co-equal," not

dismissed: although

age often correlates with one's organizational status, common

experience

provides enough counterexamples

there is little probative

the

first

argument,

suggests

that

excerpts

of

brief show

Whitman

value in that correlation.

the

did

evidence in

play a

Camyre's testimony

that Camyre

Whitman set the

Camyre expected a

to indicate that

this

case

leadership

cited

As to

strongly

role.

The

in the

government's

responded to Whitman's

orders, that

timing of the planned transaction,

smaller share of the

and that

profit than Whitman.

Whitman points to no

role,

other than

conspirators.

sentencing

is

The

evidence that suggests a non-leadership

his

age

judge

in the

relative

who

best

to

presided

position to

that

at

make

of

trial

his

and

co-

at

this factual

-4444

finding.

Our review of the

record finds significant support

for

the judge's

finding, and

there

is certainly

no clear

the judgments

and the

error.

IV.
IV.
___

CONCLUSION
CONCLUSION
__________

For the

foregoing reasons,

sentences are affirmed.

affirmed
________

-45-

45