United States v. Conley

• Court: Court of Appeals for the First Circuit
• Decided: September 14, 1998
• Docket: 97-1425
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                      For the First Circuit


No. 97-1425



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                          KEVIN CONLEY,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



         [Hon. Douglas P. Woodlock, U.S. District Judge]


Before



                     Torruella, Chief Judge,

                Wellford,* Senior Circuit Judge,

                   and Selya, Circuit Judge.


J. Bradford Coffey, with whom Farrell, Rosenblatt & Russellwas on brief, for appellant.

     Jennifer Zacks, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief, for the

United States.


September 11, 1998


_______________

*Of the Sixth Circuit, sitting by designation.  SELYA, Circuit Judge.  In this criminal appeal,

defendant-appellant Kevin Conley asks us to set aside his

conviction for conspiring to possess marijuana with intent to

distribute, see 21 U.S.C.  841(a)(1), 846 (1994), on the ground

that the admission into evidence of certain statements which he

made at the time of his arrest violated his Fifth Amendment rights. 

We reject the appellant's Fifth Amendment construct, as well as his

claim that the lower court erred when imposing sentence. 

Consequently, we affirm the judgment below.

I.  BACKGROUND

  During the summer of 1995, postal inspectors received

information that sizable quantities of marijuana were being shipped

from San Diego, California, to central Massachusetts.  When the

postal inspectors launched an investigation, a series of packages

addressed to one Richard Simms at 5 Valley St., Webster,

Massachusetts, aroused their suspicions; Simms did not live at 5

Valley St. and the packages bore apocryphal return addresses.  To

further their probe, the postal inspectors monitored the delivery

of one such package to the Valley St. address.  An individual named

Jeffry Taberski signed for it on October 19, 1995.

  In November 1995, a narcotics-sniffing dog detected drugs

in another parcel headed for 5 Valley St.  The postal inspectors

obtained a warrant authorizing them to intercept and open that

package.  Upon finding that it contained marijuana, the inspectors

resealed it and effected a controlled delivery.  When Taberski

signed for this parcel, the postal inspectors immediately arrested

him.

  Taberski told the lawmen that he worked for "Kevin C." as

a receiver of shipments.  He also informed them that, shortly

before his arrest, he had advised "Kevin" of the package's imminent

arrival and had been told that "Kevin" would retrieve it the next

day (November 8, 1995).

  Postal inspectors Michael Blanchard and William Kezer

returned to 5 Valley St. on November 8.  At around 8:30 a.m., the

appellant arrived.  Blanchard confronted him at the door to the

apartment.  When the appellant identified himself as Kevin Conley,

Blanchard asked him to step inside and proceeded to arrest him.  A

brief exchange followed, during which Blanchard searched the

appellant, unearthing $500 in cash.  The appellant identified the

cash as his and asked Blanchard why he had been detained. 

Blanchard replied that he had been arrested for drug trafficking. 

After this colloquy, Blanchard read the appellant his Mirandarights.  See Miranda v. Arizona, 384 U.S. 436 (1966).

  The appellant became increasingly nervous and openly

pondered calling an attorney.  At that point, Inspector Kezer

reentered the apartment.  He and Blanchard discussed searching

Conley's home, but decided to wait for a warrant.  Without

prompting, the appellant consented to the search and stated that

the postal inspectors might find some cash and a small amount of

marijuana.  Blanchard and Kezer told Conley that they would await

a warrant.

  Soon thereafter, the appellant spontaneously exclaimed: 

"Well, geez, you know, maybe I think I should get an attorney." 

Blanchard and Kezer decided to treat this rumination as a request

for counsel and told the appellant that they would not question him

until he had secured legal representation.  The postal inspectors

attempted to locate a telephone book to assist the appellant in

selecting a lawyer, but they were unable to find one.  Kezer again

left the apartment, but the appellant renewed his inquiries,

beseeching Blanchard to tell him "what is going on" and "what have

you guys got on me, what's this all about?"  Blanchard reminded the

appellant that he had requested an attorney and that this

circumstance prevented the postal inspectors from entering into a

dialogue with him.  When Conley nonetheless persisted, Blanchard

stated that if he (Blanchard) were to speak further, the appellant

could not reply.  Conley readily agreed to this condition.

  Blanchard then limned the facts, mentioning other

packages sent to other addresses.  When he stated that a "Mr.

Kubiak" had received some of these bundles, the appellant blurted

out that he had used Kubiak in marijuana deals.  Blanchard

continued his recital, remarking that the postal inspectors knew

the marijuana originated from the San Diego area but did not know

the source.  The appellant again interjected, this time recounting

that he had lived in southern California for a spell and that it

was quite easy to obtain marijuana there.

  In due season, a federal grand jury indicted the

appellant for possession with intent to distribute marijuana on

nine separate occasions and conspiracy to commit that substantive

offense.  In advance of trial, the appellant moved to suppress in

gross the incriminating statements that he had made at the time of

his arrest.  Judge Woodlock heard evidence and took the motion

under advisement.  He later refused to suppress the challenged

statements and the government introduced some of them at trial

(over the appellant's renewed objection).

  The prosecution's case against the appellant was very

strong, consisting of the inculpatory statements, the postal

inspectors' observations, testimony from Taberski and Kellie Wright

(who swore that her boyfriend, John Womack, had sent marijuana

through the mail from San Diego to names and addresses in

Massachusetts specified by the appellant), and considerable

documentary evidence (e.g., mail tracking slips, telephone bills,

and records of money transfers that Conley had made by wire to

Womack and Taberski).  Conley's defense centered around his claim

that he was an innocent dupe who had done nothing more than allow

Kubiak and Taberski to use his telephone.  The jury returned a

split decision, finding the appellant guilty on the conspiracy

count but acquitting him on the nine substantive counts.

  At the disposition hearing, Judge Woodlock adjusted the

appellant's guideline sentencing range (GSR) upward  for, interalia, drug quantity and role in the offense.  He then imposed a

ninety-six month incarcerative sentence, a fine, and a four year

period of supervised release.  This appeal followed.

II.  THE SUPPRESSION MOTION

  In the appellant's view, the lower court should have

suppressed his incriminating statements because those statements

were obtained without proper deference to his request for counsel. 

This argument draws its essence from Edwards v. Arizona, 451 U.S.

477 (1981), a landmark decision in which the Supreme Court held

that, once a suspect who is in custody invokes his right to confer

with an attorney, continuing to interrogate him offends the

Constitution.  See id. at 484-85.  The government replies that no

Edwards violation occurred for two reasons:  first, the inspectors

did not interrogate the appellant after he invoked his right to

counsel, and, moreover, the appellant himself initiated the pivotal

conversations.  In sifting through these contentions, we review

the district court's findings of fact for clear error, while

affording de novo review to the court's ultimate legal and

constitutional conclusions.  See United States v. Schaefer, 87 F.3d

562, 565 (1st Cir. 1996); United States v. Zapata, 18 F.3d 971, 975

(1st Cir. 1994).

     We begin with constitutional bedrock.  Absent special

advisories by the police   including advice about the right to

remain silent and the right to consult with counsel   the Fifth

Amendment renders inadmissable most statements obtained by law

enforcement officers during custodial interrogation.  See Miranda,

384 U.S. at 478-79.  An arrest is the classic example of Miranda's

conception of custody, see id. at 444, and the appellant's arrest

is not disputed here.  The critical question, then, is whether the

challenged statements were the product of interrogation, as that

word is understood in constitutional jurisprudence.  If not, no

constitutional violation occurred; but if so, we must consider

whether such interrogation transpired only after the appellant

reinitiated the discussion.  See Edwards, 451 U.S. at 484-85

(stating that once an accused "expresse[s] his desire to deal with

the police only through counsel, [he] is not subject to further

interrogation by the authorities until counsel has been made

available to him, unless the accused himself initiates further

conversations with the police") (emphasis supplied).

     To the extent that the appellant accuses Blanchard and

Kezer of not respecting his request for an attorney, the record

belies his claim.  Although the appellant's comments on the subject

of whether he wanted an attorney were elliptical, the postal

inspectors exercised commendable restraint and chose to treat them

as a request for legal representation.  At that moment, they not

only declined to question Conley further, but also advised him of

their position.  This conduct fully satisfies the strictures of

Miranda and Edwards.

     The appellant next posits that Inspector Blanchard's

comments regarding the facts of the case and the strength of the

evidence constituted proscribed interrogation under the Edwardsregime.  We do not agree.

     Interrogation, properly understood, involves either

"express questioning or its functional equivalent."  Rhode Islandv. Innis, 446 U.S. 291 (1980).  Accordingly, interrogation

encompasses "any words or actions on the part of the police (other

than those normally attendant to arrest and custody) that the

police should know are reasonably likely to elicit an incriminating

response from the suspect."  Id. at 301.  Blanchard's words and

actions do not fit this definition.  To the contrary, he told the

appellant in the most straightforward terms that all interrogation

had to cease due to the request for legal representation.

     The statements that Blanchard made after that disclaimer,

objectively viewed, were not reasonably likely to elicit a response

from the appellant; indeed, Blanchard explicitly told the appellant

not to reply.  A law enforcement officer's mere description of the

evidence and of potential charges against a suspect, in direct

response to the suspect's importuning, hardly can be classified as

interrogatory.  See, e.g., United States v. Trimble, 986 F.2d 394,

401 (10th Cir. 1993); United States v. Payne, 954 F.2d 199, 203

(4th Cir. 1992); United States v. Jackson, 863 F.2d 1168, 1172 (4th

Cir. 1989).  Furthermore, as we read the record, the appellant's

remarks during the course of Blanchard's narrative appear to have

been spontaneous utterances, uncoerced by any vestige either of

artifice or of official interrogation.  Edwards does not bar the

introduction into evidence of spontaneous utterances merely because

the utterances occur subsequent to the accused's invocation of his

right to counsel.  See, e.g., Shedelbower v. Estelle, 885 F.2d 570,

573-74 (9th Cir. 1989); United States v. De La Luz Gallegos, 738

F.2d 378, 381 (10th Cir. 1984).

     If more were needed   and we do not think that it is   no

Edwards violation occurred regardless of how Blanchard's statements

are characterized, inasmuch as the appellant himself prompted

Blanchard's recitation of the facts and the potential charges.  By

repeatedly asking "what's this all about?" after he had requested

a lawyer, the appellant expressed an insatiable desire to reignite

the dialogue   and he persisted in his attempt to do so even after

Blanchard reminded him of his right to an attorney.  In such a

situation, the suspect, having himself initiated the resumed

discussion, cannot later be heard to claim that the officers, by

doing his bidding, abridged his rights.  See Oregon v. Bradshaw,

462 U.S. 1039, 1045-46 (1983); Trimble, 986 F.2d at 401.

     In a rather lame effort to avoid the force of these

precedents, the appellant suggests that another event   the postal

inspectors' discussion about searching Conley's abode   induced the

appellant's questions and subsequent statements.  This is nothing

more than wishful thinking.  A discussion between two law officers

about the prospects for a search incident to an arrest is not so

likely to elicit an incriminating response as to come within the

Innis proscription.

     We need not paint the lily.  The record amply supports a

finding that the appellant was not subjected to any interrogation

after he invoked his right to counsel, and that he, not the postal

inspectors, initiated the discussions which followed that request. 

That being so, the district court properly admitted the challenged

statements into evidence.  See Shedelbower, 885 F.2d at 573-74; De

La Luz Gallegos, 738 F.2d at 381.

     As a last gasp, the appellant argues that, even if there

is no Edwards violation, there is a Miranda violation because

Blanchard interrogated him before the postal inspectors

administered the requisite warnings.  To be specific, he

asseverates that the question concerning the ownership of the money

found in his wallet was asked in violation of Miranda and thus

tainted all subsequent admissions.  In this respect, the appellant

relies on Pope v. Zenon, 69 F.3d 1018 (9th Cir. 1995), in which the

defendant, who had not yet received Miranda warnings, identified

his signature, thus incriminating himself and opening the door to

further queries regarding the crimes at issue.  See id. at 1021.

     The appellant's attempted analogy between the

authorities' question regarding the cash found on his person during

the arrest and the officers' inquiries about the signature in Popeis flawed.  In Pope, the document bearing the accused's signature

came from the scene of the crime and immediately implicated the

writer.  See id. at 1023.  Here, however, no such implication

attaches to Conley's ownership of the money (which turned out to be

a non-issue at trial).  Moreover, Blanchard's question in this case

was much more of an informational inquiry incident to the arrest,

as opposed to a query designed to induce an inculpatory remark.

     To clinch matters, even if the appellant's affirmative

response to the inspector's question about the cash amounted to

self-incrimination, the mere fact that unwarned custodial

questioning has occurred does not, by itself, taint all subsequent

admissions.  Oregon v. Elstad, 470 U.S. 298 (1985), stands squarely

for the proposition that, although the accused's direct response to

unwarned interrogation must be suppressed, the admissibility of any

admission made after Miranda warnings are administered "should turn

. . . solely on whether [such statement] is knowingly and

voluntarily made."  Id. at 309.  We find no indication here that

the appellant's answer to this single question, or the

circumstances in which it was posed, had an impermissibly coercive

effect.  Indeed, the record reveals quite clearly that the

appellant's subsequent statements about his involvement in the

marijuana enterprise were entirely voluntary.  Thus, this

assignment of error falters.  See id. at 314-16.

III.  THE SENTENCE

     The appellant protests two upward adjustments fashioned

by the district court in shaping the GSR.  We address the two

adjustments separately, mindful that appellate tribunals review a

sentencing court's factual determinations under a deferential

standard and uphold those determinations unless they are clearly

erroneous.  See United States v. St. Cyr, 977 F.2d 698, 701 (1st

Cir. 1992).  Questions of law, of course, engender plenary review. 

See id.

                        A.  Drug Quantity.

     Under the sentencing guidelines, drug quantity bears a

direct correlation to the GSR (and, therefore, to the length of a

defendant's sentence).  See United States v. Sepulveda, 15 F.3d

1161, 1196-97 (1st Cir. 1993).  Here, Judge Woodlock credited

statements made by the appellant's supplier, Womack, and included

as part of the appellant's relevant conduct, USSG 1B1.3 (1995),

the quantities of marijuana contained in thirteen packages shipped

by Womack at the appellant's express instruction (eight of which

were mailed to the 5 Valley St. address).  The judge then added the

amounts of marijuana contained in two parcels that had been sent to

Kubiak.  On this basis, the judge held the appellant responsible

for 91.3 kilograms of marijuana.

     The appellant's greatest grievance with this computation

is that it includes amounts of marijuana involved in counts on

which the jury declined to convict.  This grievance is bootless. 

It is perfectly clear that a sentencing court can premise

sentencing determinations on "acquitted conduct" so long as the

court supportably finds, by a preponderance of the evidence, that

the defendant committed the acts in question.  See United States v.

Watts, 117 S. Ct. 633, 637 (1997) (per curiam) (explaining that

"[a]n acquittal is not a finding of fact" and therefore "does not

preclude the government from relitigating the issue when it is

presented in a subsequent action governed by a lower standard of

proof") (citations and internal quotation marks omitted); United

States v. Berrios, 132 F.3d 834, 839 (1st Cir. 1998); United Statesv. Meade, 110 F.3d 190, 203 (1st Cir. 1997).  That is precisely the

situation that confronts us here.

     The appellant makes two related arguments, but neither of

them need occupy us for long.  First, he claims that he should not

be brought to book for a number of the transactions because he was

not the prime mover in this transcontinental marijuana-by-mail

scheme and had no involvement in most of its iterations.  This

claim boils down to a credibility call, pure and simple.  It is

settled beyond cavil that, in the sentencing phase of a criminal

case, credibility choices are within the exclusive province of the

district judge.  See, e.g.,  Sepulveda, 15 F.3d at 1198; St. Cyr,

977 F.2d at 706.  Here, Judge Woodlock certainly did not exceed his

authority in finding the appellant to be less believable than

Taberski, Womack, and Wright, and concluding that the appellant

bore responsibility for a broad array of misconduct.

     The appellant's second point is no more convincing.  The

guidelines authorize inclusion in sentencing determinations of all

"reasonably forseeable acts and omissions of others in furtherance

of jointly undertaken criminal activity."  USSG 1B1.3 (1995). 

Seizing on this language, the appellant questions whether the drug

quantity tabulated by the sentencing court squares with this

foreseeability requirement.  This requirement exists, see, e.g.,

United States v. Garcia, 954 F.2d 12, 15 (1st Cir. 1992), but it

has no bearing here.  A defendant simply cannot be heard to

complain that he could not reasonably foresee acts that he himself

engineered.

                     B.  Role in the Offense.     The sentencing guidelines direct the enhancement of a

defendant's offense level by three levels if he serves as a manager

or supervisor of a criminal enterprise that either numbers five or

more participants (including the defendant) or is "otherwise

extensive."  USSG 3B1.1(b) (1995).  Apparently believing in the

venerable adage that the best defense is a good offense, the

appellant claims that the lower court erred not only in boosting

his offense level under this guideline, but also in failing to

decrease his offense level commensurate with his minor role in the

conspiracy.  See USSG 3B1.2(b) (1995).

     The appellant's arguments on this point are close to

whimsical.  We have declared, with a regularity bordering on the

echolalic, that barring a mistake of law   and there is no hint of

any such mistake here   "battles over a defendant's status . . .

will almost always be won or lost in the district court."  United

States v. Graciani, 61 F.3d 70, 75 (1st Cir. 1995).  Here, as in

most such cases, the assessment of the appellant's role in the

offense of conviction is factbound, and the facts solidly confirm

Judge Woodlock's conclusion that the appellant supervised a scheme

involving at least five participants.  After all, the record

supports serial findings that Conley supplied addresses to Wright

and Womack, recruited Kubiak and Taberski as receivers for the

falsely addressed packages, and supervised their efforts.  No more

is exigible for the three-level enhancement that the district court

imposed.  See, e.g., United States v. Joyce, 70 F.3d 679, 683 (1st

Cir. 1995); United States v. Savoie, 985 F.2d 612, 616 (1st Cir.

1993).  Moreover, because we uphold the enhancement for Conley's

managerial role, it follows inexorably that his participation in

the offense of conviction was not "substantially less culpable than

the average participant."  USSG 3B1.2, comment. (backg'd). 

Because an upward adjustment for a managerial role is fundamentally

inconsistent with according the same individual, in respect to the

same offense, a downward adjustment for a minor or minimal role,

the district court did not err in failing to grant the appellant's

motion for reduction.

IV.  CONCLUSION

     We need go no further.  The record reveals, without

serious question, that the appellant was fairly tried and lawfully

convicted, based in part on incriminating (but voluntary)

statements that he made at the time of his arrest.  He was then

sentenced in full accord with the applicable guidelines.



Affirmed.