Sabetti v. DiPaolo

• Court: Court of Appeals for the First Circuit
• Decided: February 10, 1994
• Docket: 93-1595
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 93-1595

                                   MATTHEW SABETTI,

                                Petitioner, Appellant,

                                          v.

                                    PAUL DIPAOLO,

                                Respondent, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

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

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                          Boudin and Stahl, Circuit Judges.
                                            ______________

                                 ____________________

            Carol A. Donovan with whom  Committee for Public  Counsel Services
            ________________            ______________________________________
        was on brief for appellant.
            Nancy W. Geary, Assistant Attorney  General, Criminal Bureau, with
            ______________
        whom Scott Harshbarger, Attorney General, was on brief for appellee.
             _________________

____________________

                                  February 10, 1994
                                 ____________________

BREYER,  Chief  Judge.     State  policemen  found
                                ____________

             petitioner, Matthew Sabetti, and another person sitting in a

             parked car that  contained drug paraphernalia strewn  on the

             floor  and, on  the back  seat,  two small  plastic bags  of

             cocaine sticking  out of  a larger  gym bag.   It was  later

             determined that the  cocaine amounted to 38 grams  of a very

             pure  mixture.    The  Commonwealth  charged   Sabetti  with

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

             possessing with intent  to distribute twenty-eight  grams or

             more of cocaine."   Mass. Gen. Laws  Ann. ch. 94C,    32E(b)

             (West  1984) (ellipses  omitted)  (emphasis added)  (statute

             reprinted in appendix).  The trial judge instructed the jury

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

             knowingly  possessed the two bags (with intent to distribute

             the  cocaine) and  2) that  he actually  knew that  the bags
                           ___                        ____

             contained  at least 28  grams of  cocaine (i.e.,  an ounce).

             The jury found Sabetti guilty.  The trial court, finding the

             evidence insufficient to show specific knowledge of 28 grams

             or more, set  aside the verdict.  But,  the Supreme Judicial

             Court reinstated the verdict, on the ground that the statute

             does not  require the  government to  prove the  defendant's

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

             indicate that the amount was reasonably foreseeable.

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Sabetti  now  seeks  federal  habeas  corpus.   He

             argues  that  his  conviction  violates  the  "fair  notice"

             requirement  of  the  federal   Constitution's  Due  Process

             Clause.   See, e.g., United  States v. Batchelder,  442 U.S.
                       ___  ____  ______________    __________

             114, 123 (1979); United States v. Harriss, 347 U.S. 612, 617
                              _____________    _______

             (1954); Lanzetta v.  New Jersey, 306  U.S. 451, 453  (1939);
                     ________     __________

             Connally  v. General  Construction Co.,  269  U.S. 385,  391
             ________     _________________________

             (1926);  United States  v. Colon-Ortiz,  866 F.2d 6,  8 (1st
                      _____________     ___________

             Cir.),  cert.  denied, 490  U.S. 1051  (1989).   The federal
                     _____  ______

             district court rejected Sabetti's argument.  And, so do we.

                       As both  sides agree,  "[i]t is  well-settled that

             due process requires that  criminal statutes put individuals

             on  sufficient  notice  as  to  whether  their  contemplated

             conduct  is prohibited."    See Colon-Ortiz,  866 F.2d  at 8
                                         ___ ___________

             (citations omitted).   As both  sides also seem to  agree, a

             criminal statute fails to provide  fair notice if a  "person
                              _____

             of  ordinary   intelligence,"  Harriss,  347  U.S.  at  617,
                                            _______

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

             866  F.2d at  9, would  be  in some  way  surprised that  it

             prohibited the conduct in question.   "It is not enough," we

             have explained, for  the true meaning of the  statute "to be

             apparent  elsewhere,"  in  extra-textual materials  such  as
                       _________

             legislative history   or analogous statutes.   Id. (emphasis
                                                            __

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added).   The idea  is that ordinary  individuals trying  to

             conform  their conduct  to law  should be able  to do  so by

             reading the face of a statute --  not by having to appeal to
                         ____

             outside legal  materials.  At  the same time, the  person of

             ordinary intelligence is also a person of common sense, with

             knowledge of "common understanding[s] and practices," Jordan
                                                                   ______

             v. De George, 341 U.S.  223, 232 (1951) (citation  omitted),
                _________

             which he brings fully to  bear in "examining the language of

             the statute."

                       In  this  case, we  do  not  think  the person  of

             ordinary  intelligence would be  the least bit  surprised to

             learn that  the pertinent  statutory language  -- "knowingly

             possessing with intent  to distribute twenty-eight grams  or

             more of cocaine"   -- was construed to  prohibit the conduct

             for which  Sabetti was convicted:  knowingly possessing with

             intent  to distribute an  amount of  cocaine that  one might

             reasonably  foresee would  amount to  at least 28  grams but

             which the defendant did not actually know weighed that much.
                                         ________

             We acknowledge that,  if one reads the statute  in a vacuum,
                                                             ___________

             one  might think  the word  "knowingly" could  as easily  be

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

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

             average  person  would  be  skeptical  of  the  idea   of  a

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legislature really insisting that a prosecutor prove  actual

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

             rather than knowledge  simply of a  small amount (e.g.,  two

             plastic bags'  worth) that could  easily turn out  to weigh,

             say, an  ounce.  After all, most people know that the degree

             of  harm  drugs  cause  in  the world  is  related,  not  to

             perceived amounts of drugs, but to actual amounts.
             _________                          ______

                       Our  conclusion is supported  by the fact  that we

             have searched the case law and have not found cases in which

             a garden-variety,  textual ambiguity  of the  kind at  issue

             here  has risen  to the  level of  a due  process violation.

             See, e.g.,  Stout v. Dallman,  492 F.2d 992 (6th  Cir. 1974)
             ___  ____   _____    _______

             (finding,  on habeas review, no "fair notice" violation when

             state  court  construed  armed  robbery  statute   requiring

             defendant to  be  "armed  with a  pistol,  knife,  or  other
                                                                _________

             dangerous  weapon" to cover defendant who smacked his victim
             _________________

             on  the head  with an  unidentified  hard object)  (emphasis

             added).

                       Nor is this surprising.  Legislators need not, and

             often  cannot, draft statutes  with perfect precision.   See
                                                                      ___

             Stansberry  v. Holmes,  613 F.2d 1285,  1289 (5th  Cir.) ("A
             __________     ______

             provision  need  not  . .  .  be  cast  in  terms  that  are

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

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denied, 449 U.S.  886 (1980).  If  run-of-the-mill statutory
             ______

             ambiguities  were  enough to  violate  the Constitution,  no
                          ____

             court   could   ever  clarify   statutes   through  judicial

             interpretation,  for  the  first  person  against  whom  the

             clarified  version applied (and likely others as well) could

             argue that  he  was  unfairly surprised  and  thus  his  due

             process  rights were violated.   Courts, of  course, clarify

             textual ambiguities all the time.

                       We have found cases,  to be sure, in  which courts
                          ____

             seem  wary  of  run-of-the-mill statutory  ambiguities,  but

             these  cases  tend  to  involve  statutes  that  criminalize

             conduct  that   the  average   person  generally   considers

             innocent.   See,  e.g.,  Kolender v.  Lawson,  461 U.S.  352
             ________    ___   ____   ________     ______

             (1983)  (statute  restricting  persons  from  wandering  the

             streets without identification); United  States v. Anzalone,
                                              ______________    ________

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

             currency  transactions over  $10,000).   Of  course, even  a

             small degree of  ambiguity, when construed to  prohibit what

             would  otherwise reasonably seem to be innocent conduct, can

             cause  significant  surprise.   The  instant  case  is quite

             different: no one thinks that cocaine drug dealing, even  in

             small amounts, is innocent conduct.

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We have also  found some cases indicating  a "fair

             notice"  violation in a  statute that criminalizes  (or sets

             penalties for) obviously non-innocent  conduct such as  drug
                                      ___

             dealing.  But, these cases  tend to involve ambiguities that

             cannot easily be  called run-of-the-mill.  In  United States
                                                            _____________

             v. Colon-Ortiz,  866 F.2d  6 (1st  Cir.), cert. denied,  490
                ___________                            _____ ______

             U.S.  1051 (1989), for  example, we  faced a  (federal) drug

             statute that  said that violators  "shall be sentenced  to a

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

             or  both."    21 U.S.C.     841(b)(1)(B)  (ellipses omitted)
             ________

             (emphasis added) (since amended).  The court interpreted the

             provision to mean  that the only  discretionary part of  the

             sentence was the  imposition of a fine; the  imposition of a

             minimum five-year  prison term  was not  discretionary.   In

             doing  so,  however,  the  court  recognized  that  such  an

             interpretation  flies directly in  the face of  the ordinary

             person's reading of  the phrase "or both" and  could only be

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

             error" that should  be "stricken from the statute."   Colon-
                                                                   ______

             Ortiz, 866 F.2d at 10.  Again,  our case is quite different:
             _____

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

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

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

             ordinary. 

                       Finally, petitioner argues in  his habeas petition

             that  the  "rule of  lenity"  (i.e.,  the rule  saying  that

             ambiguous criminal statutes should be construed favorably to

             defendants) requires a  judgment in his  favor.  That  rule,

             however,  is one of  statutory interpretation.   We  have no

             power  to apply  it  to  a state  statute,  for the  Supreme

             Judicial   Court,  not  this  court,  is  the  authoritative

             interpreter of state statutes.  And, Sabetti has not pointed

             to anything  in the federal  Constitution -- other  than, of

             course,  the "fair  notice" guaranty,  which,  we have  just

             held, is satisfied here --  that would require a state court
                                                    _______

             to apply  the  rule  of  lenity when  interpreting  a  state

             statute.

                       For  the  reasons  stated,  the  judgment  of  the

             district court is 

                       Affirmed.
                       ________

NOTE:  See Slip Opinion for Appendix.

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