Elwell v. United States

• Court: Court of Appeals for the First Circuit
• Decided: September 12, 1996
• Docket: 95-2360
• Status: Published

Opinion

USCA1 Opinion

                                [NOT FOR PUBLICATION]


UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 95-2360



                                    DAVID ELWELL,



                                Petitioner-Appellant,



                                          v.



                              UNITED STATES OF AMERICA,



                                 Respondent-Appellee.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. A. David Mazzone, U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                                 Stahl, Circuit Judge,
                                        _____________



                           Campbell, Senior Circuit Judge,
                                     ____________________



                              and Lynch, Circuit Judge.
                                         _____________



                                 ____________________



            Joseph K. Kenyon with whom Stephen Weymouth was on brief for
            ________________           ________________

        appellant.

            George W. Vien, Assistant U.S. Attorney, and Donald K. Stern,
            ______________                               _______________

        United States Attorney, U.S. Department of Justice, was on brief for

        appellee.



                                 ____________________



                                  September 9, 1996

                                 ____________________



CAMPBELL, Senior Circuit Judge.  David Elwell
                                ____________________



            appeals from the denial by the district court of his motion



            under 28 U.S.C.   2255 to vacate, set aside or correct the



            sentence it imposed following his conviction for drug-related



            offenses.  Elwell contends, inter alia, that the court made



            errors in determining the amount of cocaine to attribute to



            him for sentencing purposes.  


I.  Procedural and Factual History
                          I.  Procedural and Factual History



                      After a jury trial in the district court, Elwell



            was convicted on February 15, 1991, of one count of



            conspiracy to distribute cocaine, in violation of 21 U.S.C.  



            846; two substantive counts of possession of cocaine with



            intent to distribute, in violation of 21 U.S.C.   841(a)(1);



            and one count of willfully subscribing to a false income tax



            return, in violation of 21 U.S.C.   7206(1).  He was



            sentenced to 78 months imprisonment concurrently on each of



            the drug counts, and 36 months on the tax count, to be served



            concurrently.  Elwell took a direct appeal to this court,



            which affirmed the judgment of the district court.  United
                                                                ______



            States v. Elwell, 984 F.2d 1289 (1st Cir. 1993), cert denied,
            ______    ______                                 ___________



            113 S. Ct. 2429 (1993).  He then brought the present motion



            under 28 U.S.C.   2255.  This was denied in a comprehensive



opinion by the same judge who had sentenced him.  Elwell now



            appeals.  



                      The primary witness against Elwell at his criminal



            trial was Mark Polito, a cocaine addict turned government



            informant.  Polito testified to having purchased "an ounce--



            two ounces" from Richard Moretto every other week or so over



            a period of four to five months in the spring of 1988.  When



            Moretto had to report to prison in or around April 1988, he



            introduced Polito to his distributor, Hobart Willis.  Willis,



            in turn, put Polito in touch with Elwell, who managed Willis'



            "northern territory."  Elwell supplied Polito's cocaine needs



            throughout the summer of 1988.  Polito eventually fell into



            debt to Elwell because of his cocaine habit and, under



            pressure for payment, began to cooperate with law enforcement



            authorities.  While cooperating, Polito made two more cocaine



            purchases from Elwell, on November 17, 1988, and December 19,



            1988.  In a tape recorded statement, Elwell stated that



            Polito owed him "twenty-four somethin'."



                      Elwell's conviction was for the final two



            purchases, which amounted to a total of three ounces of



            cocaine.  At sentencing, the district court found that Elwell



            had also distributed an additional 20 ounces of cocaine to



            Polito during the course of the previous summer of 1988.  The



            court, therefore, attributed sales of over 500 grams to him


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for purposes of determining the Base Offense Level.1  Polito



            testified at trial that he had purchased "18, maybe 20"



            ounces of cocaine from Elwell during the summer.  At



            sentencing, the judge stated, among other remarks,


What that [the rule allowing the

                      court to consider relevant information

                      without regard to its admissibility under

                      the rules of evidence] means to me is

                      that I can review all of the material I

                      have.  I can assess the credibility of

                      Mr. Polito, the evidence which tended to

                      corroborate Mr. Polito or contradict him,

                      the testimony of other participants, such

                      as Mr. Willis--not of the testimony, but

                      of the evidence that pertained to Mr.

                      Willis and Mr. Willis's connection with

                      Mr. Elwell, and make a decision as to the

                      disputed findings of fact.  I heard that

                      evidence.

                           Mr. Polito testified, in summary,

                      that he bought one or two ounces, one or

                      two ounces every week or every two weeks

                      from Mr. Moretto over a period of four to

                      five months.  I calculated that had to be

                      about 14 purchases, not every week but

                      for a period of 14 weeks, not 20 weeks

                      but 14 weeks of one to two ounces.  I

                      took the one to two ounces to be one and

                      a half ounces, and I added 14 purchases

                      to one and and [sic] a half ounces to 20

                      ounces.  That's a conclusion, a factual

                      conclusion I made.



                                
            ____________________



            1.  United States Sentencing Guidelines   1B1.3(a)(2)

            provides that in determining the Base Offense Level, the

            court shall include acts and omissions committed by the

            defendant as part of the same course of conduct or common

            scheme or plan as the offense of conviction when, inter alia,

            the offense level is determined largely on the basis of the

            total quantity of a substance involved.  See U.S.S.G.   
                                                     ___

            3D1.2(d).  U.S.S.G.   2D1.1(c)(7) provides for a Base Offense

            Level of 26 for unlawfully selling between 500 grams and two

            kilograms of cocaine in a continuing criminal enterprise.



                                         -4-



Appellant relies on the second paragraph of the



            judge's above statement to argue (1) that the judge



            improperly included cocaine sold by a co-conspirator before



            Elwell joined the conspiracy to arrive at the 23-ounce



            figure; and (2) that the judge improperly used averages to



            calculate the amount of cocaine sold by Elwell in purported



            violation of new case law, entitling Elwell to reopen this



            court's previous affirmance on direct appeal of his sentence. 



            Appellant further contends that the district court should



            have scrutinized more closely Polito's drug quantity



            estimates because of Polito's status as an addict-informant,



            and that appellant should receive reductions in his sentence



            for being a "minor participant" in the criminal activity in



            which he was involved and for "acceptance of responsibility"



            under U.S.S.G.    3B1.2(b) and 3E1.1.2


II.
                                         II.



            A.   Inclusion of Cocaine Sold by a Co-conspirator
                 _____________________________________________



                      In arguing that the judge improperly enlarged



            Elwell's offense level by counting cocaine sold earlier by a



            co-conspirator, appellant relies upon a November 1, 1994



                                
            ____________________



            2.  The United States Sentencing Guidelines provide for a

            two-level decrease in the defendant's Base Offense Level if

            he or she was a minor participant in the criminal activity. 

            The Guidelines also provide for a two-level decrease if the

            defendant clearly demonstrates acceptance of responsibility

            for his or her offense.



                                         -5-



amendment to the Application Notes of U.S.S.G.   1B1.3 which



            states, "A defendant's relevant conduct does not include the



            conduct of members of a conspiracy prior to the defendant



            joining the conspiracy, even if the defendant knows of that



            conduct. . . "  U.S.S.G.   1B1.3, comment. (n.2).     



                      The government correctly points out, however, that



            the total amount of cocaine counted by the district court as



            relevant conduct for sentencing purposes did not include



            amounts sold earlier to Polito by Moretto.  Rather the court



            arrived at its finding that Elwell had sold 20 ounces in



            addition to the three ounces underlying his conviction from



            Polito's sworn testimony of having purchased "18, maybe 20"



            ounces of cocaine from Elwell in the summer of 1988.3  Hence



            there is no occasion to consider the law relative to a co-



            conspirator's drug sales.  



                      It is true, as earlier mentioned, that the court



            also referred to Polito's testimony about cocaine purchases



            from Moretto earlier that spring, over a four to five month



            period.  But the judge's language in doing so suggests that



            the court was discussing the prior transactions simply as



            part of its assessment of the overall credibility of Polito's


____________________



            3.  As this court pointed out on direct appeal, since even

            the low-end figure of 18 ounces is 504 grams, exceeding the

            Guidelines' 500 gram minimum for the sentence in issue, the

            court's finding of 20 ounces rather than 18 is of no

            consequence.  Elwell, 984 F.2d at 1297.  Elwell makes no
                          ______

            argument based on the two-ounce difference.



                                         -6-



testimony, comparing the amounts earlier purchased from



            Moretto with the "18, maybe 20" ounces Polito claimed to have



            bought from Elwell within a comparable time frame.  This



            interpretation dove-tails with the district court's finding



            at sentencing, "I conclude that Mr. Elwell distributed at
                                            __________



            least 20 ounces of cocaine to the witness . . . during the
                                                            __________



            summer of 1988 . . . "  (Emphasis supplied).  Had the court
            ______________



            meant that some or all of the 20 ounces came from Moretto, it



            would not have said that "Mr. Elwell distributed at least 20
                                      __________



            ounces . . .", nor would it have referred to sales in the



            summer, rather than the spring, of 1988.  



                      That this was what the court meant was confirmed by



            the trial judge himself in his opinion disposing of Elwell's



            motion under   2255.  The judge flatly stated, "I was



            referring to the twenty ounces which Elwell sold directly to



            Polito."  This court earlier reached the same conclusion when



            deciding Elwell's direct appeal, i.e. we stated that the



            district court's findings were based upon cocaine Elwell sold
                                                              ______



            during the summer of 1988.  Elwell, 984 F.2d at 1297-98.  
            _________________________   ______



                      As the district court rested its finding of 23



            ounces on amounts sold by Elwell in the summer and fall, not



            amounts sold earlier to Polito by another supplier, we see no



            merit in appellant's contention that the district court



            violated the November 1, 1994 amendment to the Application



            Notes of U.S.S.G.   1B1.3.


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Appellant also seems to argue that the events which



            occurred before he personally sold drugs to Polito may not be



            considered even for background corroborative and credibility



            purposes.  We disagree.  United States Sentencing Guidelines



              6A1.3(a) provides, in part, "In resolving any reasonable



            dispute concerning a factor important to the sentencing



            determination, the 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."  While the Moretto sales, standing alone, would be



            inadequate to establish the amounts Elwell later sold, they



            have some general relevance to Polito's testimony of the



            specific amounts he purchased from Elwell, since they help



            show the pattern of Polito's purchases during the year.



                      It is commonplace that a conspiracy's past



            activities may be considered at sentencing for various



            purposes, e.g., to determine the volume of drugs a late-



            joining co-conspirator reasonably foresaw would be sold by



            the conspiracy in the future.  United States v. O'Campo, 973
                                           _____________    _______



            F.2d 1015, 1025-26 & 1024-25 n.9 (1st Cir. 1992).  See also
                                                               ________



            United States v. Carreon, 11 F.3d 1225, 1236 (5th Cir. 1994);
            _____________    _______



            United States v. Madkins, 14 F.3d 277, 279 n.10 (5th Cir.
            _____________    _______



            1994); United States v. Patriarca, 912 F. Supp. 596, 606, 610
                   _____________    _________



            (D. Mass. 1995).  Here, the frequency and quantity of drugs


-8-



previously purchased by Polito, before Elwell began to supply



            him, helped verify the amounts later said to have been



            furnished by Elwell, since it might be thought that Polito's



            requirements and habits would remain somewhat consistent over



            time.



            B.   The Use of Averages to Calculate Amounts
                 ________________________________________



                      Elwell complains that the district court wrongly



            used "averaging" in holding him responsible for the sale of



            23 ounces. He bases this argument on the district court's



            quoted review of the sales by Moretto to Polito in which the



            judge indicated that the amounts sold each time averaged out



            to one and one-half ounces.  Elwell also finds fault with the



            court's estimates of the frequency of Moretto's sales.  



                      As already pointed out, however, the district



            court's finding of 23 ounces does not rest upon Moretto's



            previous sales to Polito but rather is based on Polito's



            testimony that he had purchased "18, maybe 20" ounces of



            cocaine from Elwell in the summer of 1988 (and, in addition,



            on evidence of the three ounces sold by Elwell to Polito in



            November and December of that year).  This evidence of summer



            sales was not the product of averaging nor did it call for



            averaging.  It is true that the court also made certain



            inferences about the earlier transactions with Moretto, 



            including the average quantities purchased, but as we have



            indicated, the court did so merely to assist in its overall


-9-



evaluation of Polito's testimony concerning Elwell's own



            sales to him, upon which the finding of 23 ounces was based.



                      Elwell argues also that the deductions the court



            drew from the Moretto evidence were flawed, leading it to



            attribute too much cocaine to this earlier period, and to err



            in believing that these previous sales corroborated the



            quantities attributed to Elwell in the latter period.  The



            short answer to this argument is that Elwell is not entitled



            on collateral review to relitigate issues raised on direct



            appeal, absent an intervening change in the law.  Davis v.
                                                              _____



            United States, 417 U.S. 333, 342 (1974) (holding that a  
            _____________



            2255 hearing is permitted on an issue previously addressed on



            direct appeal when there has been an intervening change in



            the law).  Cf. Singleton v. United States, 26 F.3d 233, 240
                       ___ _________    _____________



            (1st Cir. 1993) ("'[I]ssues disposed of in a prior appeal



            will not be reviewed again by way of a 28 U.S.C.   2255



            motion.'" (quoting Dirring v. United States, 370 F.2d 862,
                               _______    _____________



            864 (1st Cir. 1967))), cert. denied, 115 S. Ct. 517 (1994);
                                   ____________



            United States v. Michaud, 901 F.2d 5, 6 (1st Cir. 1990) ("We
            _____________    _______



            note that certain other claims raised in the   2255 motion



            were decided on direct appeal and may not be relitigated



            under a different label on collateral review.").  Likewise,



            Elwell is not entitled to relitigate issues that could have



            been raised on direct appeal, but were not, absent a showing



            of cause excusing the default and actual prejudice resulting


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from the error of which he complains.  See United States v.
                                                   ___ _____________



            Frady, 456 U.S. 152, 167-68 (1982); Suveges v. United States,
            _____                               _______    _____________



            7 F.3d 6, 10 (1st Cir. 1993) (holding that a party must show



            cause and prejudice to raise an objection not argued on



            direct appeal in a   2255 motion (citing Frady)).  Elwell
                                                     _____



            vigorously argued on direct appeal that the 20 ounces



            attributed to him was unsupported and too high; this court



            considered those arguments expressly, and to the extent he



            now seeks to repeat and embellish these contentions, he has



            failed to show cause for being allowed to do so.



                      In particular, there is nothing to Elwell's



            argument that two cases decided by this court, United States
                                                           _____________



            v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993), cert. denied, 114
               _________                                ____________



            S. Ct. 2714 (1994) and United States v. Welch, 15 F.3d 1202
                                   _____________    _____



            (1st Cir. 1993), cert. denied, 114 S. Ct. 1161 and 114 S. Ct.
                             ____________



            1863, have so changed the law since Elwell's direct appeal as



            to warrant the reopening of our earlier affirmance of



            Elwell's sentence on direct appeal.    



                      This court did not rule in Sepulveda and Welch that
                                                 _________     _____



            averaging was no longer permissible.  We merely held in the



            circumstances of those cases that the particular calculations



            used, based on very broadly based averages, were



            insufficiently precise to determine the amount of drugs used. 



            In later cases, where averages were taken from ranges with



            tighter margins, we accepted their use.  See, e.g., United
                                                     ___  ____  ______


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States v. Webster, 54 F.3d 1, 5-6 (1st Cir. 1995).  In the
            ______    _______



            present case, unlike Sepulveda and Welch, the main evidence
                                 _________     _____



            upon which the court relied    Polito's testimony as to the



            amounts Elwell sold him in the summer of 1988    did not



            involve averaging at all.  The averaging employed related



            merely to Moretto's earlier sales, discussed for purposes of



            analogy only.  The one and a half ounce average, moreover,



            fell arguably within tight margins, although we need not get



            into this in order to conclude that Sepulveda and Welch did
                                                _________     _____



            not alter the law applicable on direct appeal.  This being



            so, Elwell may not relitigate collaterally his challenge to



            the sufficiency of the evidence on which his Base Offense



            Level rests.  See Singleton, 26 F.3d at 240.  
                          ___ _________



            C.   Reliance on Addict-Informant Witnesses
                 ______________________________________



                      In his third claim of error, Elwell contends that



            the district court should have more carefully scrutinized



            Polito's testimony because of his status as an addict-



            informant.



                      This argument was litigated and rejected in



            Polito's direct appeal.  Elwell, 984 F.2d at 1297-98.  As
                                     ______



            explained in Part B, above, relitigation of the issue is thus



            barred unless there has been an intervening change in the



            law.  See Singleton, 26 F.3d at 240.
                  ___ _________



                      In support of his contention that there has been



            such a change, Elwell points to several recent decisions in


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other circuits which have imposed a "heightened standard of



            scrutiny" on testimony by drug addicts who are cooperating



            with the government.  See United States v. Beler, 20 F.3d
                                  ___ _____________    _____



            1428, 1435 (7th Cir. 1994); Miele, 989 F.2d at 666-68; United
                                        _____                      ______



            States v. Simmons, 964 F.2d 763, 776 (8th Cir. 1992), cert.
            ______    _______                                     _____



            denied, 506 U.S. 1011 (1992); United States v. Robison, 904
            ______                        _____________    _______



            F.2d 365, 371-72 (6th Cir. 1990), cert. denied, 498 U.S. 946
                                              ____________



            (1990).  See also United States v. Richards, 27 F.3d 465, 469
                     ________ _____________    ________



            n.2 (10th Cir. 1994) (noting this line of cases but



            expressing neither agreement nor disagreement).  But see
                                                             _______



            United States v. Browning, 61 F.3d 752, 755 n.2 (10th Cir.
            _____________    ________



            1995) (distinguishing the Simmons line of cases on their
                                      _______



            facts as dealing only with addict-informants whose testimony



            contradicted itself and/or who admitted to hazy memories).  



                      Whether or not the law can be said to have changed



            in other circuits, this circuit has not adopted such a rule



            of heightened scrutiny, nor are we aware of any recent



            congressional enactments or pronouncements by the Supreme



            Court making an alteration in the law in such instances.  In



            Webster, we allowed the district court to base its sentence
            _______



            on the testimony of a witness who was "an admitted perjurer,



            a drug user, and a turncoat who received a substantially



            reduced sentence for implicating others."  Webster, 54 F.3d
                                                       _______


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at 5.  We concluded that the trial judge was able to make the



            requisite credibility assessments concerning that witness.4  



            D.   Minor Participant and Acceptance of Responsibility
                 __________________________________________________

                 Reductions
                 __________



                      In appellant's fourth point of error, he argues



            that, should he prevail on any of his previous three points



            of error, he should receive a reduction in his sentence for



            being a minor participant in the conspiracy and for accepting



            responsibility for the amount of cocaine he distributed.  We



            find little merit in these arguments on their face, but since



            we reject Elwell's first three points of error, they are in



            any case moot.



                      Affirmed.
                      ________


____________________



            4.   We add that the mere movement of one or more other

            circuits towards heightened scrutiny in certain cases would

            not amount to intervening new law which would allow Elwell to

            relitigate an issue already decided by this court on direct

            appeal.  Both Simmons and Robison, upon which Elwell in part
                          _______     _______

            relies, were, moreover, decided before the direct appeal in

            this case was argued.



                                         -14-