United States v. Ellis

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1482



                          UNITED STATES,



                            Appellee,



                                v.



                        BOYD VANCE ELLIS,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



           [Hon. Morton A. Brody, U.S. District Judge]


Before



                      Selya, Circuit Judge,

                 Cudahy,* Senior Circuit Judge,

                   and Stahl, Circuit Judge.


Jeffrey M. Silverstein with whom Billings & Silverstein was on

brief for appellant.

     Margaret D. McGaughey, Assistant United States Attorney, with

whom Jay P. McCloskey, United States Attorney, and Michael Love,

Assistant United States Attorney, were on brief for appellee.


February 26, 1999


_____________________

*Of the Seventh Circuit, sitting by designation.  STAHL, Circuit Judge.  Defendant-appellant Boyd Ellis

challenges certain aspects of his trial and sentencing after his

conviction on firearms possession and marijuana cultivation

charges.  We affirm Ellis's conviction, but vacate the sentence and

remand to the district court for resentencing.

                            I. Facts

  Acting on information supplied by various confidential

informants, as well as on limited corroborative police

investigation, state and federal agents obtained a search warrant

for Ellis's home and attached property.  The agents located

approximately sixty-five marijuana plants in a secret compartment

in a detached garage.  From various locations on the property, the

agents also recovered ammunition of various types, some of which

did not fit any of the weapons found on the premises.  The search

also discovered a shotgun and a handgun hidden in a bureau in

Ellis's bedroom.  Two additional weapons were recovered from the

kitchen and garage, but Ellis was not charged with their

possession.

  Ellis was indicted for (1) knowing possession of an

unregistered shotgun, see 26 U.S.C.  5861(d), 5871; (2) being a

felon in knowing possession of the shotgun, the revolver, or the

ammunition, see 18 U.S.C.  922(g)(1); and (3) cultivating

marijuana, see 21 U.S.C.  841(a)(1), 841(b)(1)(C).  

  At a jury trial, Ellis admitted his role in the marijuana

cultivation in opening argument and again during his own testimony. 

Ellis contested only the intent element of his firearms

convictions.  He sought to introduce evidence that in 1991, during

a prior search of his property by agents of the Maine Bureau of

Intergovernmental Drug Enforcement (BIDE), Ellis, a prior convicted

felon, had inquired about the legality of the ammunition he then

possessed.  Ellis testified that a BIDE officer told him he would

get back to him about the issue.  No one ever did.  Ellis sought to

testify that, on the basis of this failure to get back to him, he

reasonably concluded that the possession of the ammunition was

legal, notwithstanding his status as a convicted felon.  The court

refused to admit this evidence of -- or to instruct the jury on --

the defense of entrapment by estoppel.  Although Ellis requested

such an instruction at a charge conference, he failed to object

after the instructions were given.

  Also at trial, Ellis requested that a special verdict

form be used in Count II, in order to determine which items

(shotgun, revolver, or ammunition), if any, the jury agreed that he

had knowingly possessed.  The government did not oppose the

request, but the district court nevertheless denied it.  The jury

convicted Ellis on Counts II and III, but acquitted on Count I.

  At sentencing, the court explicitly found that Ellis had

knowingly possessed the revolver, as well as the uncharged weapons. 

On the basis of prior convictions dating from 1975-1983, and on its

findings regarding the weapons, the district court increased the

base offense level pursuant to the sentencing guidelines provisions

associated with being an armed career criminal, see U.S.S.G. 

4B1.4, which in this case trumped the normal guidelines

calculations.  Finally, the court chose the higher of two

potentially applicable armed career criminal base offense levels. 

See U.S.S.G.  4B1.4(b)(3)(A).  The level the court selected was

applicable to defendants found to have been in possession of

firearms "in connection with another felony."  Id. Ellis was

sentenced to, inter alia, 262 months' imprisonment.  

                           II. Trial

  On appeal, Ellis challenges various aspects of his trial

and sentencing.  We begin with the trial challenges.  First,

Ellis claims the district court erred by excluding evidence of the

1991 search and by refusing to instruct the jury on the defense of

entrapment by estoppel.  Second, he contends that the district

court should have granted his request for a special verdict form

for the jury.  Neither of these arguments is persuasive.

     A. Entrapment by Estoppel

     We review a district court's decision to exclude evidence

for abuse of discretion.  See United States v. Tierney, 760 F.2d

382, 387 (1st Cir. 1985).  We review de novo whether a defense is

established as a matter of law.  United States v. Caron, 64 F.3d

713, 715 (1st Cir. 1995).  We review for plain error a district

court's failure to instruct the jury on a defense, where the

instructions were not the subject of a proper objection at trial.

See Johnson v. United States, 520 U.S. 461, 466 (1997).

     Entrapment by estoppel requires Ellis to establish (1)

that a government official told him the act was legal; (2) that he

relied on the advice; (3) that the reliance was reasonable; and (4)

that, given the reliance, prosecution would be unfair.  See United

States v. Smith, 940 F.2d 710, 715 (1st Cir. 1991).  

     We agree with the district court that the evidence Ellis

sought to introduce to establish entrapment by estoppel was

insufficient as a matter of law to permit the jury to find for him

on this point.  Ellis's evidence consisted of testimony that in

1991, during a search of his property by BIDE, he inquired about

the legality of the ammunition he possessed.  One official

allegedly told Ellis that the official would get back to him.  No

one ever did.  Ellis testified that he relied on this failure to

get back to him, thus reasonably concluding that the possession of

the ammunition was legal. 

     Ellis failed to show, as required, that anyone with

official status made an affirmative representation that possession

of the ammunition was legal.  See id.  Because the proffered

evidence was insufficient, the district court was well within its

discretion in excluding the evidence.  Obviously, in such

circumstances, there was no plain error in refusing to instruct the

jury on the defense.

     B. Special Verdict Form

     Ellis contends that the district court erred in not

giving the jury a special verdict form regarding Count II.  Such a

form would have enabled the district court to determine which, if

any, of the firearms and ammunition the jury found Ellis to have

knowingly possessed.  In denying the request, the district court

expressed worry that such a form would encourage the jury to return

with a compromise verdict.  According to Ellis, this alleged error

became critical at sentencing, when the district court did not have

the jury's guidance on which, if any, of the charged items it had

found Ellis knowingly possessed.

     This court has not adopted a standard of review on this

issue.  At least one other circuit has reviewed the failure to use

a special verdict form for abuse of discretion.  See, e.g., United

States v. Reed, 147 F.3d 1178, 1180 (9th Cir. 1998).  Noting that

special verdicts in criminal cases are generally disfavored, seeUnited States v. Spock, 416 F.2d 165, 180-83 (1st Cir. 1969), and

following the Ninth Circuit's lead, see Reed, 147 F.3d at 1180, we

adopt this standard.  Cf. United States v. Melvin, 27 F.3d 710, 716

(1st Cir. 1994) (holding that trial court may use a special verdict

in cases similar to the one at bar).

     Ellis has not explained how knowing precisely what the

jury found beyond a reasonable doubt would have aided his cause

before the district court at sentencing, where a lower burden of

proof applies, see McMillan v. Pennsylvania, 477 U.S. 79, 91

(1986).  In these circumstances, the district court is not bound by

the jury's conclusions (even if they were knowable with the

certainty Ellis ascribes to them).  See United States v. Mocciola,

891 F.2d 13, 17 (1st Cir. 1989).  In addition, we share the

district court's concern that the special verdict form sought here

might have encouraged a compromise verdict.  Cf. Spock, 416 F.2d at

182 (noting danger that juror who may otherwise have wished to

acquit will be led to convict on account of special verdict form). 

Accordingly, we discern no abuse of discretion in the district

court's failing to have used a special verdict form for Count II.

                        III. Sentencing

     Ellis raises four arguments in his sentencing appeal. 

First, he claims that the district court made conflicting factual

findings that were not supported by the evidence.  Second, he

protests the use of "ancient" convictions to trigger the armed

career criminal enhancement.  Third, he contends that the district

court erred by increasing his base offense level for possession of

firearms "in connection with another felony."  Finally, he argues

that he was entitled to a base offense level reduction for

acceptance of responsibility.  We address these points seriatim.

     A. Factual Findings Regarding the Possession of Firearms

     In order to invoke the guidelines associated with armed

career criminals, the district court found by a preponderance of

the evidence that Ellis knowingly possessed the handgun,

ammunition, and two other uncharged weapons.  We review a district

court's factual findings for clear error.  See Fed. R. Civ. P.

52(a).  Ellis argues that because the shotgun and the handgun were

both found in the same place, logic requires that the district

court find either that Ellis knowingly possessed both, or that he

knowingly possessed neither.  Because the district court found only

knowing possession of the handgun, Ellis invites this court to find

clear error.  We decline the invitation.  

     First, the court need not have made any finding regarding

the handgun.  As Ellis admitted in a presentencing conference, the

armed career criminal guideline to which this finding was relevant

is satisfied by either a firearm or ammunition.  See U.S.S.G. 

4B1.4(b)(3)(A).  It is uncontested that Ellis knowingly possessed

ammunition.  Second, we point out that the district court made no

finding at all regarding the shotgun; rather, the court simply

declined to consider it.  Thus, the inconsistency to which Ellis

points does not exist.  Finally, even if we were to treat the

district court's failure to consider the shotgun as an implicit

finding that Ellis did not knowingly possess it, a decision to

treat the shotgun and the handgun differently is amply supported by

the evidence.  Although both the shotgun and the handgun were

recovered from the bureau, the shotgun was dusty, while the handgun

was clean.  The shotgun was old, while the handgun was newer.  The

handgun, as opposed to the shotgun, was well-maintained.  The

shotgun was in a holster and the handgun was not.  In fact, a

holster into which the handgun fit was found in a more accessible

drawer.  Most importantly, there was testimony that a shell found

on the premises had actually been fired from the handgun.  Based on

these relevant differences, there is no clear error.

     B. Armed Career Criminal Status

     Ellis argues that his prior convictions are too old to

trigger enhancements under the guidelines associated with armed

career criminals.  However, he acknowledges that this court has

ruled that the age of such convictions is irrelevant for this

purpose.  See United States v. Daniels, 3 F.3d 25, 28 (1st Cir.

1993).  Absent circumstances not present here, this panel does not

have the power to overturn that ruling, see Willimas v. Ashland

Engineering Co., 45 F.3d 588, 592 (1st Cir. 1995).

     C. "In Connection With"

     We review the district court's application of a

particular sentencing guideline de novo, see United States v.

Thompson, 32 F.3d 1, 4 (1st Cir. 1994), although factual findings

underlying the application are reviewed only for clear error, seeid.

     Ellis argues that there was an insufficient nexus between

the possession of the firearms and the marijuana cultivation.  For

this reason, he argues that the district court erred in using

U.S.S.G.  4B1.4(b)(3)(A) to enhance his offense level for

possession of firearms "in connection with" a controlled substance

offense.

     In this case, the guideline relevant to armed career

criminals controls.  See U.S.S.G.  4B1.4(b).  In relevant part, it

provides for a base offense level of 34 "if the defendant used or

possessed the firearm or ammunition in connection with a . . .

controlled substance offense."  U.S.S.G.  4B1.4(b)(3)(A) (emphasis

added).  If not, the applicable level is 33.  See U.S.S.G. 

4B1.4(b)(3)(B).  In addition, the "in connection with" finding

raises Ellis's criminal history category from I to VI.  SeeU.S.S.G.  4B1.4(c)(2).  Here, the district court used the 34 base

level and category VI, apparently because it found the requisite

"connection."  The district court did not, however, make any

explicit findings on this issue.

     Although the phrase "in connection with" should be

construed broadly, there must exist a causal or logical relation or

sequence between the possession and the related offense.  SeeThompson, 32 F.3d at 5.  Mere coincidental possession does not

establish the required connection.  See id. at 6.  However, if the

possession has "the potential to aid or facilitate" the other

crime, that is sufficient.  Id.

     Here, the two charged weapons were located in a building

separate from the marijuana operation.  They were under a bureau,

in a small room in which, by the government's own admission, it was

difficult to shift furniture.  In short, they were largely

inaccessible, which weighs against finding a "connection."

     Nevertheless, the government makes two sets of arguments

  one in its brief and one at oral argument -- which it says would

permit us to affirm the district court's implicit finding of a

"connection."  In its brief, the government points to the following

evidence as supporting the district court's conclusion that there

was sufficient evidence to find such a nexus: (1) the fact that 80%

of drug crimes in Maine also involve firearms violations; (2) the

fact that Ellis cultivated his crop hidden from plain view; (3) the

fact that marijuana is worth $2,000 per pound on the street.  At

oral argument, the government suggested that the two additional

uncharged weapons found in the garage and kitchen respectively

could support an "in connection with" finding.  It also suggested

that the sheer number of weapons on the property (four) supports an

inference of a connection.   

     Combined with the fact that the charged guns and random

ammunition were both inaccessible and nowhere near the marijuana

alleged to be protected by them, the three items of "evidence" to

which the government alludes in its appellate brief are not

sufficient for us to affirm the district court's implicit finding

of a "connection."  The first item has nothing to do with Ellis

and, in any event, would always apply, whether possession was

coincidental or not, in derogation of Thompson.  The second item

only reflects the fact that marijuana is illegal; it is unclear

what relevance the marijuana's being hidden has to the guns.  In

regard to the third item, the government's recitation of the street

value of marijuana adds nothing to the analysis; again, drugs have

significant value on the street even when the firearms possession

is merely coincidental to the drug operation.  The third point is

particularly unpersuasive on the facts before us, where the total

amount of marijuana recovered from the cultivation operation --

thirty-six-and-one-half grams -- was worth approximately $160,

using the government's estimate (.0365g X 2.2 lbs./kg X $2000/lb.). 

     The government's suggested "connections" at oral argument

are perhaps marginally more persuasive.  In the absence of any

explicit findings by the district court to support the government's

position, however, and in light of the fact that at sentencing the

government specifically declined to provide any evidence with

regard to the additional uncharged weapons, we vacate Ellis's

sentence and remand for resentencing consistent with this opinion.

     D. Acceptance of Responsibility

     Ellis also argues that he was entitled to a two-level

reduction for acceptance of responsibility pursuant to U.S.S.G.

 3E1.1.  His acceptance purportedly consisted of his counsel's

admission of Ellis's guilt on the marijuana charge in opening

argument, his own testimony to the same effect, and the fact that

he challenged only the intent element of the firearms charges.  The

district court declined to award the reduction.  The district

court's reasoning is not entirely clear; it relied on Application

Note 2 to U.S.S.G.  3E1.1.  This Note gives, inter alia, examples

of cases where a defendant may elect to go to trial and yet still

receive a reduction for acceptance of responsibility.  The

sentencing transcript suggests that it is possible the district

court believed that because Ellis's trial issues were not related

to jurisdiction or constitutionality, the latter of which is an

example offered in Application Note 2, Ellis was not eligible for

the reduction.

     In "rare situations", a defendant may elect to exercise

his right to trial and still be eligible for a reduction under

U.S.S.G.  3E1.1.  See Application Note 2.  These rare situations

are not limited, however, to jurisdictional and constitutional

matters.  See, e.g., U.S.S.G.  3E1.1 Application Note 2 (offering

example of defendant who challenges applicability of a statute to

his conduct); Isabel v. United States, 980 F.2d 60, 65 (1st Cir.

1992) (acknowledging that where a defendant admits his conduct and

denies only that it constitutes money laundering under the relevant

statute, he may be eligible for an acceptance of responsibility

reduction) (dicta); United States v. Barris, 46 F.3d 33, 35 (8th

Cir. 1995) (assertion of insanity defense at trial not an automatic

bar to reduction for acceptance of responsibility).  In some cases,

defenses relating to intent may yet qualify for the acceptance of

responsibility reduction.  See, e.g., United States v. Fleener, 900

F.2d 914, 918 (6th Cir. 1990) (defendant's going to trial to raise

entrapment defense does not preclude award of reduction for

acceptance of responsibility); but see United States v. Kirkland,

104 F.3d 1403, 1405 (D.C. Cir. 1997) (sharply criticizing Fleenerand holding that intent-based defenses are contests over factual

guilt and thus not qualified for the reduction).  In all cases, "a

determination that a defendant has accepted responsibility will be

based primarily upon pre-trial statements and conduct."  U.S.S.G.

 3E1.1 Application Note 2 (emphasis added).  

     Although this record indicates that Ellis has an uphill

battle in showing his eligibility for the acceptance of

responsibility credit, cf. United States v. Crass, 50 F.3d 81, 84

(1st Cir. 1995) ("[I]ntent, like any other element of the crime

charged, may not be contested by the defendant without jeopardizing

a downward adjustment for 'acceptance of responsibility'.")

(emphasis in original); United States v. Bennett, 37 F.3d 687, 697

(1st Cir. 1994) (defendant who contested the issue of intent at

trial and only expressed remorse after trial is not eligible for a

reduction for acceptance of responsibility), nonetheless the

district court should determine the matter in the first instance or

at least clarify its prior reasoning for denying the reduction, if

it has occasion to address the issue on resentencing. 

                         IV. Conclusion

     Ellis's conviction is affirmed.  His sentence is vacated,

and the case remanded to the district court for resentencing.