
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.                                         -2-                                          2                       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                                                            __                                         -3-                                          3             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                                         -4-                                          4             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.                                                                    _____                                         -5-                                          5             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.                                         -6-                                          6                       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                                         -7-                                          7             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.                                         -8-                                          8
