United States v. Nunez

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-1411



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                          CHARLES NUNEZ,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



       [Hon. Frank H. Freedman, Senior U.S. District Judge]


Before



                      Selya, Circuit Judge,

                                

            Campbell and Cyr, Senior Circuit Judges.


Ronald Nacamuli, by appointment of the court, for appellant.

     Jennifer Zacks, Assistant United States Attorney, with whom

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

United States.


June 25, 1998


SELYA, Circuit Judge.  Defendant-appellant Charles Nunez

asserts that we should set aside his conviction for, inter alia,

trafficking in destructive devices (in this case, pipe bombs)

because the government behaved badly.  Secondarily, he mounts

claims of trial and sentencing error.  Because Nunez's arguments

are unpersuasive, we affirm.

I.  BACKGROUND

  While conducting an ongoing investigation into gang

activity in western Massachusetts, the authorities learned of a

person called "the Mexican," who had a reputation for building and

distributing pipe bombs in exchange for drugs or money.  The

government concluded that Nunez was this individual and focused its

probe accordingly.

  At the authorities' instigation, a cooperating drug

dealer, Jose Colon, approached Nunez and told him that he "needed

[some pipe bombs] to blow up [a rival gang]."  Nunez acquiesced,

but said that the task required raw materials.  Colon, Nunez, and

an undercover officer thereafter drove to Connecticut and filled

Nunez's shopping list at government expense.

  Nunez constructed the pipe bombs and Colon purchased nine

of them for cash.  Nunez, literally and figuratively, was hoist by

his own petard.  After he had been arrested and advised of his

rights, he proclaimed that, although "he didn't mean to hurt

anyone,"  the pipe bombs were intended "for the gangs" because he

"didn't like the gangs and wanted to hurt gangs."

  The government's case at trial was compelling.  It

featured Colon's testimony and tape-recordings of certain

conversations.  It also included the testimony of an FBI explosives

expert to the effect that all nine pipe bombs were "destructive

device[s]" as defined in 26 U.S.C.  5845(f).  The jury convicted

Nunez of possessing unregistered destructive devices, transferring

such devices, and being a felon in possession of a firearm.  See 26

U.S.C.  5861(d) & (e) (1994); 18 U.S.C.  922(g)(1) (1994).  At

the disposition hearing, Judge Freedman sentenced Nunez to a 120-

month prison term.  This appeal followed.

II.  DISCUSSION

  The appellant advances three separate and distinct

assignments of error.  We deal with each of them in turn.

                    A.  Government Misconduct.

  The appellant's flagship argument targets the district

court's denial of his pretrial motion to dismiss the indictment on

the ground of egregious government misconduct.  The question of

whether the government committed misconduct so outrageous as to

warrant the dismissal of charges is a question of law which we

review de novo.  See United States v. Hudson, 982 F.2d 160, 163

(5th Cir. 1993).

  To the extent that it survives at all, the legal doctrine

on which the appellant's argument hinges is of extremely limited

application.  The doctrine holds that the government commits

outrageous misconduct when it behaves in a manner that violates

"fundamental fairness" and "shock[s] . . . the universal sense of

justice."  United States v. Santana, 6 F.3d 1, 4 (1st Cir. 1993)

(citations and internal quotation marks omitted).  Courts

occasionally have applied (or talked about applying) the doctrine

in instances in which the government subjects a suspect to

intolerable abuses and those in which "law enforcement personnel

become so overinvolved in a felonious venture that they can fairly

be said either to have created the crime or to have coerced the

defendant's participation in it."  Id. at 4-5 (citations and

internal quotation marks omitted).  The appellant depicts his case

as involving both prototypes.

  There is no tidy test to determine whether government

conduct qualifies as outrageous.  Thus, we have acknowledged that

"outrageousness, by its nature, requires an ad hoc determination." 

Id. at 6.  Here, however, the appellant's trial counsel raised the

point only in a pretrial motion, bereft of any particularized

evidentiary submissions and unaccompanied by a request for a voir

dire or other evidentiary hearing.  Consequently, the motion lacked

a sufficient factual predicate, and the district court's denial of

it hardly can be faulted.  See id. (explaining that "[t]he calculus

[for determining the legitimacy of a claim of outrageous government

misconduct] must be rooted in the record").

  Even were we disposed to accept the belated factual

proffer contained in Nunez's appellate brief   a proffer which

loosely incorporates the trial evidence, but laces that evidence

with considerable conjecture   the result would be the same.  The

appellant complains that the government's pursuit of him involved

the decision to use a drug dealer to negotiate with a drug addict,

and that the relationship between dealer and addict is so one-sided

as to undermine the independence of his decision to fill Colon's

request for pipe bombs.  Passing the fact that Colon was at most an

occasional supplier of drugs to Nunez (who had other, more reliable

sources), this version of an addiction defense cannot stand.  See,

e.g., United States v. Harris, 997 F.2d 812, 817-18 (10th Cir.

1993); United States v. Lyons, 731 F.2d 243, 245 (5th Cir. 1984)

(en banc); United States v. Moore, 486 F.2d 1139, 1146 (D.C. Cir.

1973) (en banc); cf. United States v. Ford, 918 F.2d 1343, 1348-50

(8th Cir. 1990).  To put matters bluntly, the appellant cannot

strip himself of all moral agency by virtue of his drug addiction.

  Nunez also maintains that the government acted

outrageously by becoming overinvolved in the conception and

commission of the crime.  This asseveration rests on facts such as

Colon's request for the pipe bombs, the escort afforded to Nunez

when he purchased the raw materials, and the fact that the

government fronted the cost.  The record does not bear out the

claim that this conduct crossed the line of impropriety.

  The government had information from multiple sources that

Nunez previously had sold pipe bombs to gang members.  The

government therefore did not create the crime, but, rather,

conducted a conventional undercover "sting" operation in an attempt

to confirm or refute this information.  See, e.g., United States v.

Matiz, 14 F.3d 79 (1st Cir. 1994); United States v. Panitz, 907

F.2d 1267 (1st Cir. 1990); United States v. Porter, 764 F.2d 1 (1st

Cir. 1985).  The jury rejected Nunez's entrapment defense at trial,

and there is simply no credible evidence either that Nunez was an

unready participant or that the government coerced him in any way.

  We summarize succinctly.  Although an occasional early

case espoused the doctrine of outrageous government misconduct, we

recently described it as "moribund" and predicted that a defense

premised upon it will rarely, if ever, bear fruit.  Santana, 6 F.3d

at 4 (reviewing the doctrine's history and concluding that "[t]he

banner of outrageous misconduct is often raised but seldom

saluted").  The instant case discloses no significant evidence of

government misconduct and clearly falls within this general rule,

not within the long-odds exception to it.  Thus, the appellant's

claim fails on the merits.


B.  The Prosecutor's Summation.

  The appellant next posits that the prosecutor's summation

exceeded the bounds of permissible argument and thus violated due

process.  He cites twenty-two allegedly improper remarks.  As his

trial counsel did not object contemporaneously to any of these

statements, our review is for plain error.  See United States v.

Mejia-Lozano, 829 F.2d 268, 272 (1st Cir. 1987); see also Fed. R.

Crim. P. 52(b).  Plain-error analysis discourages quibbles.  Under

it, we will consider only those errors that "seriously affect the

fundamental fairness and basic integrity of the proceedings

conducted below."  United States v. Griffin, 818 F.2d 97, 100 (1st

Cir. 1987) (citations and internal quotation marks omitted).

  We have scrutinized the prosecutor's summation in light

of the transcript as a whole and have paid special attention to the

twenty-two specific instances spotlighted by Nunez's appellate

counsel.  We see no need to recount book and verse.  The

appellant's claims cover an array of supposed peccadilloes   for

example, vouching for witnesses, mischaracterizing evidence, and

invading the jury's province   but none of them are substantial. 

The prosecutor gave a vigorous summation, not an unfair one.  It is

entirely proper for prosecutors to argue their cases zealously as

long as they do not stray into forbidden terrain   and the

prosecutor's remarks in this case, taken in context, reflect no

more than acceptable zeal.  In the last analysis, the  appellant

confuses hard blows (which are permitted to a prosecutor) with foul

blows (which are proscribed).

  If more were needed   and we do not think that it is   we

note that, on plain-error review, the defendant has the burden of

demonstrating that impermissible statements "likely infected the

jury . . . and mere possibilities are not enough."  United Statesv. Procopio, 88 F.3d 21, 31 (1st Cir. 1996).  Nunez has wholly

failed to carry this burden.  Even assuming, arguendo, that the

prosecutor on occasion sailed too close to the wind, the appellant

has presented no chain of logic that proceeds from prosecutorial

comment to likely jury influence.  Absent such a linkage, even

problematic statements would not constitute grounds for reversal.

  To say more on this point would be supererogatory. 

Because the statements made by the prosecutor, whether viewed

singly or in the ensemble, did not threaten the fundamental

fairness of the trial, we reject this assignment of error.

                         C.  Sentencing.

  The appellant's claim of sentencing error focuses on the

district court's conferment of a four-level upward adjustment

pursuant to USSG 2K2.1(b)(5) (1995).  An enhancement under section

2K2.1(b)(5) lies if the defendant possessed a firearm or explosive

"with knowledge, intent, or reason to believe that it would be used

in or possessed in connection with another felony offense."   The

appellant offers a host of reasons to support his claim that the

district court improperly invoked this guideline.  These reasons

boil down to three general contentions, namely, (1) that the

government adduced no evidence to show that Nunez possessed the

requisite guilty knowledge; (2) that there was no possible chance

that the bombs would be used or possessed in connection with a

felony because they were purchased by the government during an

undercover operation; and (3) that the guideline provision requires

a showing that the bombs were to be used to perpetrate a specificcrime (or, if not, the provision is at least ambiguous in this

respect, thus entitling Nunez to the benefit of a "specific crime"

interpretation under the rule of lenity)   and the government made

no such showing.

  We start with the appellant's fact-based contention.  Our

standard of review is familiar:  an appellate court reviews a

district court's factual determinations under the sentencing

guidelines for clear error.  See United States v. Brewster, 1 F.3d

51, 54 (1st Cir. 1993).

  In computing a defendant's guideline sentencing range,

the sentencing judge is entitled to rely on trial testimony.  SeeUnited States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).  In this

case, Colon testified that he told Nunez he wanted the pipe bombs

for use against a rival gang.  The district court apparently

credited Colon's account.  We believe that this testimony  

substantiated by Nunez's post-arrest admission that he had

manufactured the pipe bombs because he "wanted to hurt gangs"  

adequately grounds Judge Freedman's finding that Nunez had "reason

to believe" the bombs would be used for the purpose of committing

another felony.  Thus, the appellant's fact-based challenge

crumbles.

  The appellant's "impossibility" theory fares no better. 

Section 2K2.1(b)(5) focuses on a defendant's state of mind, not on

the feasibility of the venture that he proposes to undertake.  SeeUnited States v. Gilmore, 60 F.3d 392, 393-94 (7th Cir. 1995)

(discussing mental state necessary to trigger section 2K2.1(b)(5)). 

Consequently, the fact that Nunez delivered the bombs as part of a

police-controlled undercover operation is legally irrelevant.

  This leaves us with the appellant's statutory arguments. 

We review a district court's construction of a sentencing guideline

de novo, see United States v. McDonald, 121 F.3d 7, 9 n.1 (1st Cir.

1997), and its application of a sentencing guideline to the facts

in the same manner, see United States v. Muniz, 49 F.3d 36, 41 (1st

Cir. 1995).

  The appellant argues vociferously that the government

must show that the defendant knew, intended, or had reason to

believe that the explosive device would be used in connection with

some specific felony offense.  We do not agree.  The plain language

of the provision encompasses other felonies generally, without the

additional requirement that some specific offense be identified. 

Accord United States v. Cutler, 36 F.3d 406, 408 (4th Cir. 1994). 

Sentencing guidelines, like statutes, should be read as they are

written.  Therefore, we decline to insert into this guideline an

unwritten limitation plucked from thin air.  That ends the matter: 

as USSG 2K2.1(b)(5) is unambiguous, the rule of lenity has no

bearing.  See Cutler, 36 F.3d at 408; see also United States v.

Nippon Paper Indus. Co., 109 F.3d 1, 7 (1st Cir. 1997), cert.denied. 118 S. Ct. 865 (1998).

III.  CONCLUSION

  We need go no further.  The government neither behaved

outrageously nor otherwise committed misconduct requiring dismissal

of the indictment.  Because Nunez was charged appropriately, tried

fairly, and punished lawfully, his conviction and sentence must be



Affirmed.