United States v. Goldman

• Court: Court of Appeals for the First Circuit
• Decided: December 9, 1994
• Docket: 93-1727
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 93-1727

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                 FRANKLIN M. GOLDMAN,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

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

                                 ____________________

                                        Before

                                Cyr, Boudin and Stahl,

                                   Circuit Judges.
                                   ______________

                                 ____________________

            Dana A. Curhan, by Appointment of the Court, for appellant.
            ______________
            Geoffrey E.  Hobart, Assistant United  States Attorney, with  whom
            ___________________
        Donald K. Stern, United States  Attorney, was on brief for  the United
        _______________
        States.

____________________

                                   December 9, 1994
                                 ____________________



BOUDIN, Circuit Judge.  Franklin Goldman was arrested on
                         _____________

            July 17, 1992, and charged, in a superseding indictment, with

            conspiring to  possess cocaine  with intent to  distribute it

            and   with  actually   possessing  cocaine  with   intent  to

            distribute.   Also  indicted were  David St.  Peter, who  had

            acted  as an  intermediary and  Robert Sungy,  who apparently

            played the role  of lookout.  In October  1992, St. Peter and

            Sungy  pled guilty.  Goldman was tried  by a jury in December

            1992.

                 We  describe  the  trial  evidence  in  condensed   form

            because,  while  the  sufficiency  of  the  evidence  is  not

            challenged, some  understanding of  the facts is  relevant to

            the appeal.   At  Goldman's trial, the  government's evidence

            showed  that  a  confidential   informant  acting  under  the

            direction  of  Drug  Enforcement  Administration  agents  had

            purchased  small  quantities of  cocaine  from  St. Peter  in

            February  1992.  The informant then began to discuss with St.

            Peter the possibility of making large scale purchases.

                 In May  1992, in  Peabody, Massachusetts, the  informant

            introduced  St. Peter to DEA Special Agent Pamela Mersky, who

            purported  to  be the  girlfriend  of  a cocaine  trafficker.

            Mersky asked  to purchase multiple kilograms  of cocaine from

            St.   Peter.    St.  Peter  asserted  that  he  had  a  local

            Massachusetts  source  for  cocaine  and would  talk  to  him

            shortly about price.  On July  13, 1992, Mersky and St. Peter

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met again.  St. Peter advised Mersky that the  price would be

            $29,000  per  kilogram.     Mersky  asked  to  purchase  five

            kilograms.  St. Peter met the next day with Goldman, who said

            that a transaction  of one to  five kilograms would not  be a

            problem.

                 On  July 17, 1992, St. Peter and Mersky met and arranged

            for the sale to her of four kilograms in two installments  of

            two  kilograms each.  St. Peter then  went alone to the Royal

            Sonesta  Hotel in  Cambridge where  he was seen  meeting with

            Goldman and the  transaction was discussed.   St. Peter  then

            met twice with  Mersky and assured her that  the arrangements

            were  proceeding.   Subsequently, Goldman  and St.  Peter met

            again  near  the  hotel  to  discuss  the  mechanics  of  the

            transaction.   Ultimately,  after  a rendezvous  at a  nearby

            garage, both St. Peter and Goldman proceeded in separate cars

            to a restaurant parking lot in Saugus.

                 At the parking lot, government agents saw  St. Peter and

            Goldman  meet  at  the rear  of  Goldman's  car.   The  trunk

            contained  a brown paper bag, Goldman told St. Peter to "take

            one," and St. Peter looked  in the bag and saw what  appeared

            to  be  three  kilograms of  cocaine.    St.  Peter took  one

            kilogram,  and Goldman advised him to take it, bring back the

            money, and then the transaction would be repeated.  St. Peter

            then  drove alone  to  a nearby  Sears  parking lot  and  met

            Mersky.   When St. Peter  showed her the  kilogram, she asked

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where the other kilogram was located, and St. Peter said that

            it was nearby.  Shortly thereafter, St. Peter was arrested.

                 After  St.  Peter  left  Goldman,  Goldman  drove   some

            distance  away, reversed direction, and ultimately parked his

            car in a K-Mart parking  lot.  He then left the  car, crossed

            the road, and climbed a bridge that  gave him a vantage point

            to see the parking lot of the Sears store where St. Peter and

            Mersky  were  meeting.    As  Goldman  was  looking  in  this

            direction,  he was  approached by  a state trooper,  began to

            run, apparently  abandoned his  car keys, and  was ultimately

            apprehended.  After Goldman was arrested, agents took his car

            to a  nearby state police  barracks.  There  a search  of the

            trunk revealed the two  kilograms of cocaine in a  paper bag,

            as well as over $5,000 in cash and a cellular phone.

                 The  most  damning evidence  at  trial,  apart from  the

            cocaine seized from  Goldman's car, came  from St. Peter  who

            testified against Goldman, described their conversations, and

            identified Goldman  as the source  of cocaine that  St. Peter

            had distributed both in this instance and on prior occasions.

            The  jury  convicted  Goldman  on  both  the  conspiracy  and

            possession counts.   On April  24, 1993, the  court sentenced

            Goldman to  262 months'  imprisonment and, three  days later,

            corrected the sentence and resentenced Goldman to 360 months'

            imprisonment.

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On   this   appeal,   Goldman   first   challenges   the

            admissibility  of the  evidence seized  from  his car.   This

            claim  was preserved  because Goldman  moved to  suppress the

            evidence  prior  to trial.    After argument  but  without an

            evidentiary hearing, the district  court denied the motion to

            suppress based on affidavits  from the law enforcement agents

            describing  the information available to  them at the time of

            the seizure.  We take it that no evidentiary hearing was held

            because there were no disputed facts.

                 The Supreme Court  has ruled that  an automobile may  be

            searched  without a warrant if the police have probable cause

            to  believe that  it  contains contraband  or  evidence of  a

            crime.    United States  v. Ross,  456  U.S. 798  (1982); see
                      _____________     ____                          ___

            United States  v. Infante-Ruiz,  13 F.3d  498, 502  (1st Cir.
            _____________     ____________

            1994).   Applying this standard requires  us to disregard the

            most  potent  evidence  against  Goldman--St.  Peter's  trial

            testimony  and the cocaine  found in  the trunk  of Goldman's

            car--and focus upon  what the  agents knew at  the time  that

            they searched the car.

                 Since what  the agents knew is  apparently not disputed,

            we will treat the application  of the probable cause standard

            to known  facts as a legal  issue subject to de  novo review.
                                                         ________

            See United States  v. 255  Broadway, 9 F.3d  1000, 1004  (1st
            ___ _____________     _____________

            Cir. 1994).  There is no  indication that, at the time of his

            arrest,  Goldman  had been  identified  by St.  Peter  as the

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source of  the cocaine.   What the agents  knew was  that St.

            Peter, claiming  to  have a  local  source, had  agreed  with

            Mersky  to  make  a   multi-kilogram  delivery  on  July  17.

            Thereafter Goldman  was seen  later that day  conferring with

            St.  Peter at the hotel in Cambridge and afterwards St. Peter

            twice assured Mersky that the transaction was proceeding.  

                 This  turn was  followed  by  further observed  meetings

            between Goldman and St. Peter at the Cambridge hotel, then at

            a nearby garage, and finally in the restaurant parking lot in

            Saugus where agents saw St. Peter and Goldman together at the

            rear of Goldman's car with the trunk open.  This was followed

            by  St. Peter's delivery of one kilogram of cocaine to Mersky

            at a nearby site  and St. Peter's explanation that  the other

            kilogram of cocaine was close at hand.

                 Accordingly, at the time Goldman's car was searched, the

            police based on these observations had good reason to believe

            that he was the source of the  cocaine, had supplied from his

            car the kilogram delivered  to Mersky, and had possessed  the

            remaining  kilogram  nearby  the  delivery site.    When  the

            missing kilogram  was not  found on Goldman's  person at  the

            time  of his arrest, there was further reason to believe that

            it was in his car.  This surely gave probable cause to search

            the car  without dwelling upon Goldman's  apparent attempt to

            dispose of his car keys before he was apprehended.

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Goldman's  second  claim of  error  concerns impeachment

            evidence.  Goldman's defense, at least in part, rested on the

            suggestion that  the cocaine  was planted  in his  car trunk,

            probably  by St.  Peter.  During  the trial,  defense counsel

            said that Goldman desired to  testify, apparently in order to

            deny that  the cocaine in the  car trunk was his  or had been

            known  to him.   Counsel asked the  court to rule  in advance

            that  if Goldman  testified, Goldman  could not  be impeached

            based on certain "bad acts" alleged by the government.

                 At  Goldman's request,  the  government had  supplied  a

            four-page  narrative  of "uncharged  prior  bad  acts of  the

            defendant  which   the  government   will  seek  to   use  as

            impeachment should  the defendant  take the witness  stand at

            trial."     These   alleged  bad   acts  included   Goldman's

            involvement  in  prior drug  transactions and  attempted drug

            transactions  during 1990  and  1991.   Also, the  government

            alleged  that Goldman had  twice proposed  to rob  other drug

            dealers  and once  admitted to  firing shots  at the  home of

            someone  who had  failed  to  repay  a  cocaine  debt  to  an

            accomplice  of Goldman.   The district judge  declined to bar

            the proposed impeaching material,  and Goldman then chose not

            to testify.

                 In this court, Goldman asserts that the evidence was not

            proper impeachment evidence under  Fed. R. Evid. 404(b); that

            any  probative value  it  had would  have been  substantially

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outweighed by its prejudicial effect and so barred by Fed. R.

            Evid. 403;  and  that the  court's  failure to  disallow  the

            impeachment  evidence  impaired   Goldman's  opportunity   to

            testify  and  violated his  constitutional  right to  present

            evidence in his own defense.  We think that a limited portion

            of the impeachment evidence  might have been excludible under

            Rule  403 but conclude that  Goldman cannot raise such issues

            here because he did not testify.

                 In  all likelihood, the  government intended to question

            Goldman  about  his prior  drug dealings  on the  theory that

            those  dealings, if admitted, made it more likely that he was

            lying when he  expressed ignorance  of the drugs  in his  car

            trunk.  There is  case law that supports this  general theory

            of impeachment, see, e.g., United  States v. Fortes, 619 F.2d
                            ___  ____  ______________    ______

            108 (1st Cir. 1980), which (like several impeachment devices)

            is  not   expressly  described   in  the  Federal   Rules  of

            Evidence.1   At  least where  knowledge is  in dispute,  such

            evidence  of prior  similar  crimes might  well have  greater

            logical  relevance  than  mere character/propensity  evidence

            excluded under  Rule  404(a).    See  Fed.  R.  Evid.  404(b)
                                             ___

            (exception  for  crimes or  wrongs  offered  to show  motive,

            knowledge, absence of mistake).

                                
            ____________________

                 1Fed.  R.  Evid.  608(b)   permits  the  witness  to  be
            questioned about prior bad acts for  the purpose of attacking
            the witness' character for veracity, but this theory  was not
            available  here because under Rule 608(b) the "bad acts" must
            be "probative of . . . untruthfulness."

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Of  course,  even   if  otherwise  admissible  on   this

            impeachment theory,  the  questioning of  Goldman about  such

            prior bad acts (the government  apparently did not propose to

            use extrinsic  evidence) would still have to  be tested under

            Rule  403's  prejudice  standard.    Without  belittling  the

            possibility of constitutional objection  as well, see Fed. R.
                                                              ___

            Evid.  608(b) advisory  committee's note,  we think  that any

            impeachment so unreasonable  as to  threaten the  defendant's

            constitutional right  to  present evidence  would already  be

            precluded  under the Rule 403 balancing test.  In all events,

            the government's proposed questioning about prior violence or

            threats of violence by  Goldman might raise serious questions

            under  Rule  403's balancing  test even  if  the rest  of the

            testimony were admissible.

                 We need not resolve any of these questions,  because the

            Supreme Court  has ruled unequivocally that  a defendant does

            not preserve  such objections to  impeaching evidence  unless

            the  defendant chooses to testify at trial and the court then

            allows the impeachment over  the defendant's objection.  Luce
                                                                     ____

            v. United States, 469 U.S. 38 (1984).  Although Luce involved
               _____________                                ____

            impeachment by  conviction under Rule 609,  the reasons given

            by the  Supreme Court for requiring the  defendant to testify

            apply  with full  force  to the  kind  of  Rule 403  and  404

            objections  that are advanced by  Goldman in this  case.  Cf.
                                                                      ___

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United  States  v. Griffin,  818  F.2d 97  (1st  Cir.), cert.
            ______________     _______                              _____

            denied, 484 U.S. 844 (1987).
            ______

                 The Supreme  Court's reasons  in Luce were  multiple and
                                                  ____

            its  ruling was  unanimous.  Luce  may seem  to some  to be a
                                         ____

            tough  rule as  applied  to  so  vital  an  interest  as  the

            defendant's opportunity to testify in his own defense.   Yet,

            the Supreme  Court's concerns  in Luce are  also substantial:
                                              ____

            having a fully developed  record of the defendant's testimony

            to  judge the  need  for  and  relevance  of  the  impeaching

            questions; a  set of  impeaching questions actually  asked by

            the prosecutor; and  a final, fully informed decision  by the

            district  judge as to which  questions to allow.   Indeed, we

            have some doubt whether the district court would have allowed

            impeachment based  on Goldman's threats or  acts of violence,

            especially when his prior drug transactions were available to

            show knowledge.  In any event, Luce is binding upon us.  
                                           ____

                 Goldman's third  independent claim of  error relates  to

            sentencing and requires less discussion.  Goldman, as counsel

            sensibly concedes, was subject to sentencing under the career

            offender guideline, U.S.S.G.   4B1.1, because he was at least

            18 years old at the time of the offense, the offense involved

            a controlled substance,  and Goldman had  at least two  prior

            felony  convictions  for either  a  crime  of violence  or  a

            controlled substance offense.  These characteristics place  a

            defendant   in  criminal  history  category  VI  and  provide

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increased  base  offense levels,  depending on  the statutory

            maximum  applicable  to  the  offense  of  conviction.    Id.
                                                                      ___

            Pertinently, under  this guideline a statutory  maximum of 25

            years  or more  gives rise to  an offense  level of  34 and a

            statutory maximum of life corresponds  to an offense level of

            37.  Id.
                 ___

                 In  this  instance, based  on  the  quantity of  cocaine

            attributed to Goldman,  the prosecutor  advised the  district

            court at  sentencing that  the statutory maximum  for Goldman

            was  40 years.  See 21 U.S.C.   841(b)(1)(B) (40 year maximum
                            ___

            for  basic offense).    The applicable  sentencing range  was

            therefore 262 to 327 months, and the district court sentenced

            Goldman  to  262  months'  imprisonment.   In  fact,  because

            Goldman had  a prior  drug conviction, the  statutory maximum

            properly  applicable in his case was  life imprisonment.  See
                                                                      ___

            id. (maximum of life if prior drug felony).
            ___

                 Later  in  the same  day,  the  prosecutor realized  his

            mistake and filed a motion pursuant to Fed. R. Crim. P. 35(c)

            so  advising the court.   Rule 35(c) provides  that the court

            within seven  days after  imposing a sentence  may correct  a

            sentence  wrongly  imposed  "as  a  result  of  arithmetical,

            technical, or other  clear error."   Within three days  after

            the  original sentence,  the district  court conducted  a new

            sentencing  hearing,  found  that  the  prior  sentence   had

            constituted  clear  error  based  on  a  mistake  as  to  the

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applicable statutory maximum, and resentenced  Goldman to the

            minimum sentence applicable to him under the new calculation,

            namely, 360 months' imprisonment.  

                 On appeal,  Goldman's counsel concedes that,  as we have

            earlier held,  "[t]he Constitution  contains no general  rule

            that prohibits  a court  from increasing an  earlier sentence

            where the court finds that it was erroneous and that a higher

            sentence  was required by law."  DeWitt v. Ventetoulo, 6 F.3d
                                             ______    __________

            32, 34 (1st Cir. 1993), cert. denied, 114 S. Ct. 1542 (1994).
                                    ____________

            We  there held that the right to correct an unlawful sentence

            was  not without  limits, but  we  were concerned  there with

            extreme facts:  a long delay, actual release of the defendant

            from custody  based on the shorter sentence,  singling out of

            the defendant  for a  belated increase apparently  because of

            his commission of another offense for which parole revocation

            would    have   been    available,   and    other   troubling

            characteristics.  Id.  at 35-36.   There is  nothing of  that
                              ___

            sort in this case.  

                 Goldman  suggests  that  because  the  district  court's

            original   miscalculation  was  based   on  the  government's

            mistaken reading  of the statute, it  is fundamentally unfair

            to impose a higher sentence.  United States v. Harvey, 2 F.3d
                                          _____________    ______

            1318,  1330 (3d Cir. 1993), is cited for this proposition but

            does not bear it out.  Harvey involved the question whether a
                                   ______

            sentencing error  in favor  of the  defendant could be  fully

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corrected where the defendant  appealed the sentence on other

            grounds  but the government chose  not to appeal  an error in

            the defendant's favor.  Harvey was thus concerned solely with
                                    ______

            the consequence of the government's decision not to appeal.

                 As  for fundamental  fairness,  it is  difficult to  see

            anything  unfair  about  the  district  court's  decision  to

            correct a clear error  in a sentence where the  error relates

            solely to the precise length of a lengthy prison term and the

            correction is made with  great promptness.  Goldman does  not

            claim to have  relied detrimentally on  the mistake, and  its

            correction is surely what  the drafters of Rule 35(c)  had in

            mind.  Given the complexity  of the guidelines, the seven-day

            window  is  a  well-advised  precaution and  may  operate  as

            readily in favor  of the  defendant as against  him.   United
                                                                   ______

            States v. Fahm, 13 F.3d 447, 453-54 (1st Cir. 1994).  
            ______    ____

                 Affirmed.
                 ________

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