
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                                         -2-                                         -2-            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                                         -3-                                         -3-            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.                                         -4-                                         -4-                 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                                         -5-                                         -5-            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.                                         -6-                                         -6-                 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                                         -7-                                         -7-            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."                                         -8-                                         -8-                 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.                                                                      ___                                         -9-                                         -9-            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                                         -10-                                         -10-            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                                         -11-                                         -11-            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                                         -12-                                         -12-            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.                 ________                                         -13-                                         -13-
