
USCA1 Opinion

	




          April 22, 1993    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1459                              UNITED STATES OF AMERICA,                                      Appellee,                                         v.                                     JOHN L. TRACY,                                Defendant, Appellant.                                 ____________________          No. 92-1461                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    JOHN L. TRACY,                                Defendant, Appellant.                                 ____________________          No. 92-1554                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                                    JOHN L. TRACY,                                 Defendant, Appellee.                                 ____________________                                     ERRATA SHEET               The  opinion  of this  Court issued  on  March 29,  1993, is          amended as follows:               On  page 15,  line 1,  continued to  line 3, place  a period          after  "counsel".   Delete "and  to follow  the federal  rules of          civil  procedure.   See  Fed.  R.  Civ. P.  11  (motions  must be                              ___          signed).".          March 29, 1993    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1459                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    JOHN L. TRACY,                                Defendant, Appellant.                                 ____________________        No. 92-1461                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    JOHN L. TRACY,                                Defendant, Appellant.                                 ____________________        No. 92-1554                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                                    JOHN L. TRACY,                                 Defendant, Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            J.  Michael McGuinness,  by  Appointment of  the Court,  with whom            ______________________        McGuinness  & Parlagreco and  John L. Tracy  pro se were  on brief for        ________________________      _____________        defendant.            F.  Mark Terison,  Assistant  United States  Attorney,  with  whom            ________________        Richard S.  Cohen, United States Attorney, was on brief for the United        _________________        States.                                 ____________________                                    March 29, 1993                                ____________________                        CAMPBELL,        Senior        Circuit       Judge.                                       _________________________________            Defendant/appellant, John  L.  Tracy, was  convicted  in  the            United States  District Court  for the  District of  Maine of            three  counts of  distribution and attempted  distribution of            lysergic acid diethylamide ("LSD")  in violation of 21 U.S.C.              841(a)(1) and    846. Tracy also separately pled  guilty to            one count of failure  to appear as  ordered by the court,  18            U.S.C.   3146(a)(4).  Tracy was sentenced to 97 months on the            distribution  counts and a  24-month consecutive  sentence on            the  failure  to appear  count.   In a  scattershot approach,            Tracy  raises  a   plethora  of  arguments   challenging  his            conviction and the resulting sentence.  Pursuant to 18 U.S.C.              3742(b),  the government appeals from  the district court's            refusal  to  enhance  Tracy's  sentence  for  obstruction  of            justice  under   U.S.S.G.      3C1.1.    We   affirm  Tracy's            conviction,  but vacate and remand  for the district court to            reconsider  whether   an  enhancement  of   his  sentence  is            warranted under   3C1.1.                                          I.                                          I.                      Tracy  was initially  indicted in  the District  of            Maine, in an indictment that was unsealed on October 4, 1990,            for distribution  of LSD in  July 1989  and August 1990.   On            January  15,  1991,  the  district court  empaneled  a  jury.            However,  the trial was continued on  January 28, 1991, prior            to the  swearing of  the jury,  when Tracy's attorney  became                                         -3-            aware of  a conflict  involving a potential  defense witness.            One of the government's  witness statements included the name            of  a present  client of  Tracy's attorney.   Because  of the            potential conflict between the two clients, the court granted            defense counsel's motion to withdraw.  The court also granted            Tracy  a continuance of two  weeks to decide  whether to hire            new private  counsel or  to accept a  court-appointed lawyer.            The  court reminded Tracy  that his speedy  trial rights were            waived during  the period  of continuance.    On February  6,            1991, Tracy requested court-appointed counsel.                      A superseding indictment, which changed the date of            one  of  the  LSD sales,  was  filed  on  February 26,  1991.            Tracy's case was placed  on the trial calendar for  March 25.            However, on March  12, Tracy moved for  a continuance because            he had not yet met with  his new attorney.  The court granted            the  continuance and later rescheduled  the trial to begin on            May 20, 1991.                      A  second superseding indictment, which added a new            count charging Tracy with attempted sale of LSD on August 22,            1990, was returned in five counts on April 24, 1991.  Another            jury was empaneled on May  20, but it was not sworn.   On the            day  the trial  was  to  begin,  Tracy's attorney  asked  for            another  continuance because  Tracy  had broken  his leg  and            wanted a  new attorney.   After determining that  the lawyer-            client  relationship had disintegrated, the court granted the                                         -4-            attorney's  motion   to  withdraw   and  the  motion   for  a            continuance.   The court  again explained to  Tracy that  his            motion for a continuance stopped the speedy trial clock.                      Tracy's  trial was rescheduled for August 14, 1991.            Tracy, however, failed to report by telephone to his pretrial            services officer on August 12, and failed to appear for trial            on August 14.   When Tracy was arrested  in Florida on August            28, he was carrying false identification and  pretended to be            someone else.   Authorities returned Tracy to the District of            Maine,  and  the district  court rescheduled  his trial.   On            September  17, the  grand  jury issued  an additional  single            count indictment  against Tracy charging him  with failure to            appear for trial.                       Trial began in the LSD  case on October 15, 1991.1            At  the outset, the court instructed the jury to consider the            five alleged offenses separately.   The government's case was            based  primarily on  the testimony  of undercover  agents and            informants,  as well  as several tape  recorded conversations            with Tracy.   The testimony and  recordings revealed that  on            August 18,  1990,  a  cooperating  individual  named  Russell            Wright  purchased 20 doses of LSD from Tracy at his cabin for            $80.   On  August 20,  Wright returned  to Tracy's  cabin and            purchased  50 doses  of  LSD from  Tracy for  $150.   The LSD                                            ____________________            1.  A judge  different from those who  had previously handled            Tracy's case took over on the day that the trial began.                                         -5-            purchased  on both  August 18  and 20  was on  yellow blotter            paper with black airplanes.                      On August 22, Wright  attempted a third purchase of            LSD from Tracy  at his  cabin.  Several  agents from  Maine's            Bureau   of   Intergovernmental  Drug   Enforcement  ("BIDE")            testified that the purpose  of this attempt was to  flush out            the  source of Tracy's LSD by requesting a high enough number            of doses  that Tracy  would not  have them  on hand.   Wright            therefore requested  200 doses.   When Tracy replied  that he            had  only 100, a BIDE agent instructed Wright not to complete            the purchase.  Wright,  however, testified that he did  get a            look at  the LSD and noticed  that it was on  the same yellow            blotter paper with black airplanes.                      Another   cooperating  informant,   Curtis  Elwell,            testified  about Tracy's  alleged offenses  in 1989.   Elwell            testified  that Tracy supplied him  with LSD, which Elwell in            turn  sold to a  confidential informant  on two  occasions in            July  1989.  Elwell admitted  that he was  arrested for these            sales and that his  sentence was reduced from 60 months to 42            months  for his cooperation  with the government.   The court            did not allow  Tracy to impeach Elwell  with a fourteen-year-            old drug conviction.                      The  government  closed  its  case   with  evidence            concerning Tracy's  flight to Florida.   This was  offered to            show consciousness  of guilt.   Over Tracy's  objection, Eric                                         -6-            Thompson,  a  United  States  Deputy  Marshal  from  Florida,            testified to Tracy's  attempt to conceal his identity  at the            time  of his  arrest  in  Florida.    At  the  conclusion  of            Thompson's testimony,  the government rested.   Tracy did not            then move for acquittal.                      Tracy took  the  stand  in  his own  defense.    He            testified  to  his drug  use,  to the  availability  of drugs            during  his  youth,  and  to the  availability  of  LSD among            Grateful Dead followers.  Contrary to a tape recording of his            conversation with Wright in which Tracy purportedly said that            he had  to  "make  something"  for  his  LSD  dealing,  Tracy            testified that he "was willing to just get [his] money back."            Tracy further testified that he and his family were afraid of            Wright because he seemed aggressive.   According to Tracy and            his step-daughter, who also  testified, the family decided to            sell Wright  artificial LSD  if he  returned, in an  apparent            belief  that  Wright  would  then leave  them  alone.   Tracy            testified  that on August 22, 1990, the LSD that he attempted            to sell to  Wright was  fake and was  on blue blotter  paper.            Tracy made no motion for acquittal after resting his case.                      After the  close of  the evidence, the  court again            instructed  the  jury   to  consider  each  alleged   offense            separately.  Thereafter,  the jury found Tracy  guilty of the            three  August 1990 LSD offenses, but acquitted him on the two            July 1989 charges.                                         -7-                      Following   the   above  convictions,   but  before            sentencing, Tracy,  on November  7, 1991, entered  a plea  of            guilty to the separate charge of failure to appear.                                         II.                                         II.                 A.  Pretrial and Trial Issues                 A.  Pretrial and Trial Issues                     _________________________                 1.  Joinder of Counts                 1.  Joinder of Counts                     _________________                      Tracy contends  that the district court  abused its            discretion when it refused to  order separate trials for  the            1989  and  1990 LSD  distribution charges.    Rule 14  of the            Federal Rules of Criminal Procedure, which governs motions to            sever, provides  in  relevant part  the  following:   "If  it            appears that a defendant . .  . is prejudiced by a joinder of            offenses .  . . the court  may order an  election or separate            trials  of counts,  . .  . or  provide whatever  other relief            justice requires."  A district court's denial of a motion for            relief from  prejudicial joinder brought pursuant  to Fed. R.            Crim. P. 14 is reviewed only for  abuse of discretion.  E.g.,                                                                    ____            United States  v. Chambers,  964 F.2d  1250,  1251 (1st  Cir.            _____________     ________            1992).    Such  a denial  will  not  be  reversed unless  the            challenger  makes "a  strong showing  of prejudice."   United                                                                   ______            States  v.  Gray, 958  F.2d 9,  14  (1st Cir.  1992) (quoting            ______      ____            United States  v. Font-Ramirez,  944  F.2d 42,  45 (1st  Cir.            _____________     ____________            1991), cert. denied, 112 S. Ct. 954 (1992)).                   ____________                      Tracy contends that he  was prejudiced in two ways.            First,  Tracy  maintains that  he  was put  in  the untenable                                         -8-            position of wishing  to testify  on the  1989 offenses  while            wanting  to remain silent on  the 1990 offenses.   See United                                                               ___ ______            States v.  Bronco, 597  F.2d 1300,  1302-03 (9th  Cir. 1979).            ______     ______            However, as  the magistrate  noted in recommending  denial of            the motion  to sever below, Tracy's  allegations of prejudice            were conclusory; they did not show with any particularity the            nature  of  the claimed  prejudice.   To  make  the requisite            strong showing of prejudice, a defendant must "present enough            information      regarding  the nature  of  the testimony  he            wishes to give on  one count and his reasons  for not wishing            to testify  on the  other     to satisfy  the court  that the            claim of prejudice is genuine  and to enable it intelligently            to  weigh the  considerations of  'economy and  expedition in            judicial administration' against the defendant's  interest in            having a free choice  with respect to testifying."   Baker v.                                                                 _____            United States, 401  F.2d 958, 977  (D.C. Cir. 1968);  Bronco,            _____________                                         ______            597 F.2d  at  1303 ("[a]n  accused should  show the  specific            testimony he will present about one offense, and his specific            reasons  for   not  testifying   about  others,  to   justify            severance.").    Because  Tracy's claims  of  prejudice  were            conclusory, the district court had  no factual basis on which            to determine whether Tracy's  claim of prejudice was genuine.                                         -9-            Tracy's claims of prejudice on appeal remain no more concrete            than formerly.2                        Second, Tracy suggests that he was prejudiced  when            evidence of both the 1989 and 1990 distributions was heard by            the jury.  As a result, Tracy claims, the government was able            to  "bootstrap" the credibility of Curtis  Elwell.  The jury,            however, acquitted Tracy of  the counts dependent on Elwell's            testimony.   Thus, Tracy's defense to  the 1989 distributions            was not prejudiced by any bolstering of Elwell's credibility.                      The district court carefully instructed the jury at            both the beginning and end of  the case that it must consider            each charge  separately and make a  separate determination on            each  count  without  regard  to  the  others.    See,  e.g.,                                                              ___   ____            Chambers,  964 F.2d  at  1251;  Gray, 958  F.2d  at  15.   By            ________                        ____            repeatedly  instructing  the  jury  to consider  each  charge            separately,   the  district  court  "minimized  any  possible            prejudice" from the joinder  of offenses.   United  States v.                                                        ______________            Natanel, 938 F.2d 302, 308 (1st Cir. 1991), cert. denied, 112            _______                                     ____________            S.  Ct. 986 (1992).  The jury,  apparently taking heed of the            district court's  clear instructions, acquitted Tracy  of the            charged 1989 LSD distributions and  convicted him on the 1990                                            ____________________            2.  At oral  argument  before  this  court,  Tracy's  counsel            suggested for the first time that Tracy was prejudiced by the            admission of  prior convictions  to impeach his  credibility.            As this argument  was not  presented below  nor mentioned  in            Tracy's  brief, it was waived.   See, e.g.,  United States v.                                             ___  ____   _____________            Zannino,  895 F.2d 1, 17  (1st Cir.), cert.  denied, 494 U.S.            _______                               _____________            1082 (1990).                                         -10-            distributions.  See Natanel,  938 F.2d at 308;  United States                            ___ _______                     _____________            v. Tashjian, 660 F.2d  829, 834 (1st Cir.), cert.  denied sub               ________                                 _________________            nom.  Campbell v. United States,  454 U.S. 1102  (1981).  The            ____  ________    _____________            jury's selectivity in  its verdicts affords  "reasonably good            assurance"  that spillover  prejudice  did  not  result  from            joinder of offenses.  See Natanel, 938 F.2d at 308.                                  ___ _______                      The district court did  not abuse its discretion in            denying Tracy's motion to sever.                  2.  Prosecutorial Misconduct                 2.  Prosecutorial Misconduct                     ________________________                      Tracy next contends that the district court  should            have  dismissed  the indictment  in  January  1991, when  the            government revealed its intent to call a witness who was also            a  client  of  Tracy's  then-attorney,  thereby  forcing  his            attorney to  withdraw.  Because  the government did  not call            the witness  when the case  eventually went  to trial,  Tracy            asserts prosecutorial misconduct.                      As the  government points out,  the record  refutes            the factual  basis for Tracy's contention.   Tracy's original            attorney withdrew because she learned that another client was            a  potential witness for the defense, not for the government.            The week  before Tracy's  originally scheduled  January trial            date, the government had disclosed the recorded statements of            its   witnesses,  including  the   grand  jury  testimony  of            Detective  Ron Gastia.   Detective  Gastia had  mentioned the            name of a  confidential informant  who was also  a client  of                                         -11-            Tracy's attorney.   Believing  the informant was  a potential            witness for  Tracy, but that such a role would be against the            informant's interest,  Tracy's attorney discerned  a conflict            and  withdrew.   Nothing  in  the record  indicates  that the            government  was  aware  of the  relationship  between Tracy's            attorney  and   the  confidential  informant,  or   that  the            government  acted in  any way  but responsibly  in disclosing            Detective  Gastia's  grand  jury  testimony.    The  district            court's  denial of Tracy's motion to dismiss was not an abuse            of discretion.                 3.  Evidentiary Rulings                 3.  Evidentiary Rulings                     ___________________                 a.  Evidence of Fear                 a.  Evidence of Fear                     ________________                      Tracy  argues  that  the district  court  erred  in            admitting evidence of Wright's fear of Tracy.  Tracy contends            that  this  testimony was  irrelevant and  unduly prejudicial            under Rule 403  of the  Federal Rules of  Evidence.   Because            Tracy did not object  to this testimony at trial,  our review            is  for  plain  error only.    See,  e.g.,  United States  v.                                           ___   ____   _____________            Arboleda,  929 F.2d  858, 870  (1st Cir.  1991).   Under this            ________            standard, we  will  reverse a  conviction  only if  an  error            affects  the  "fundamental fairness  of  the  trial."   E.g.,                                                                    ____            United  States v. Vest, 842  F.2d 1319, 1326  n.4 (1st Cir.),            ______________    ____            cert. denied, 488 U.S. 965 (1988).            ____________                      Tracy cannot meet this  high standard.  Wright said            only  a few  words about  his concerns  for his  safety while                                         -12-            cooperating with the  government.  Such  evidence of fear  in            the context of drug deals is not unusual as the drug trade is            not  a safe  business.   In fact,  both Tracy  and his  step-            daughter testified of their own fear of Wright.  Admission of            Wright's concerns  for his  safety plainly did  not undermine            the "fundamental fairness of the trial."                 b.  Drug Culture                 b.  Drug Culture                     ____________                      Tracy  contends  that the  district court  erred in            refusing to allow him to testify about the effects LSD had on            him.   According to Tracy, the testimony would be relevant to            show that  he was a user, and  not a dealer of  LSD.  We will            reverse  a trial  court's Rule  403  relevance determinations            only  for an  abuse of  discretion.   E.g., United  States v.                                                  ____  ______________            Rodriguez  Cortes,  949 F.2d  532,  540-41  (1st Cir.  1991);            _________________            United States v. Green, 887 F.2d 25, 27 (1st Cir. 1989).            _____________    _____                      The  district court's Rule  403 ruling  was clearly            not an  abuse of discretion.  We fail to see how testimony of            the physical  and psychological effects  of LSD on  Tracy was            relevant to whether  Tracy was  or was not  a dealer of  LSD.            Even  accepting the dubious  argument that being  a user cuts            against being a dealer,  ample evidence of use went  in.  The            court let Tracy testify that today's LSD just made him giggly            and did not  produce hallucinations.   He spoke  of his  drug            use, the availability and widespread use of drugs  during his            youth, the availability  of LSD among  followers of the  rock                                         -13-            group Grateful Dead, and the nonprofit sharing of drugs among            the  "rainbow community" to  which Tracy apparently belonged.            The jury could have had few illusions.                 c.  Evidence of Flight                 c.  Evidence of Flight                     __________________                      Tracy  contends that  the district  court  erred in            admitting, to  show consciousness  of guilt, evidence  of his            flight  to Florida and of his attempt to conceal his identity            when  he  was  arrested  there.    According to  Tracy,  this            evidence  was irrelevant and  grossly prejudicial, and should            have been excluded  under Rules  401 and 403  of the  Federal            Rules of Evidence.   Contrary to Tracy's assertions, evidence            of a  defendant's flight and  attempts to conceal  or falsify            identity  may be presented at trial as probative of a "guilty            mind" if "there is an  adequate factual predicate creating an            inference of guilt of  the crime charged."  United  States v.                                                        ______________            Camilo Montoya, 917  F.2d 680, 683  (1st Cir. 1990)  (quoting            ______________            United  States v.  Hernandez-Bermudez, 857  F.2d 50,  52 (1st            ______________     __________________            Cir. 1988));  United States v.  Grandmont, 680 F.2d  867, 869                          _____________     _________            (1st  Cir. 1982).   In  the present  case, before  the deputy            marshal  from Florida  testified, the  government established            that  Tracy had been scheduled  for trial in  August 1991 and            had failed to appear.  Other independent evidence established            his drug dealings.  There  was a sufficient factual predicate            to  justify  the  admission  of the  flight  and  concealment                                         -14-            evidence  and no abuse of  discretion for the  court to admit            it.                 4.  Pro Se Motions                 4.  Pro Se Motions                     ______________                      Tracy contends  that the  district  court erred  in            refusing  to  consider  several  pro se  motions  which  were                                             ______            unsigned  and which were filed in March and April, 1992, when            Tracy was represented  by counsel.   A district court  enjoys            wide  latitude  in  managing   its  docket  and  can  require            represented parties to present  motions through counsel.  The            district court did  not abuse its  discretion in refusing  to            consider Tracy's unsigned, pro se motions.3                                       ______                 5.  Waiver                 5.  Waiver                     ______                      Tracy raises a host of other conclusory contentions            for which  Tracy has  provided virtually  no argument  and no            citation  to  authorities.     Included   among  these   bare            allegations are Tracy's "arguments"  that the January and May            1991 jury empanelments subjected him to double jeopardy; that            his  speedy trial  rights  were violated;  that the  district            court erred in refusing to allow him to impeach Curtis Elwell            with  a fourteen-year-old  conviction; that  his due  process            rights were  violated because Elwell received  a reduction in            sentence for cooperating with  the government; and that there                                            ____________________            3.  Tracy also suggests that his convictions must be reversed            because  of the  cumulative  prejudicial  effect of  district            court  errors.  Because we  find that the  district court did            not err, we reject this argument.                                         -15-            was  insufficient  evidence  to  support  the  jury's  guilty            verdicts.                        It is  well settled  that issues are  deemed waived            when "adverted  to in a perfunctory  manner, unaccompanied by            some effort  at developed argumentation."   See United States                                                        ___ _____________            v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S.               _______                             ____________            1082  (1990); United States v.  Bell, 936 F.2d  337, 343 (7th                          _____________     ____            Cir.  1991.  Notice  pleadings do  not suffice  for appellate            briefs.  See Fed.  R. App. P. 28(a)(5) (appellant's  argument                     ___            shall "contain the contentions  of the appellant with respect            to  the  issues presented,  and  the  reasons therefor,  with            citations  to  the authorities,  statutes  and  parts of  the            record relied on.").  Because Tracy has completely failed  to            develop  the  arguments  mentioned  above,  they  are  deemed            waived.    Nevertheless,  we  have examined  all  of  Tracy's            abandoned arguments and are independently satisfied that they            are without merit.                 B.  Sentencing                 B.  Sentencing                     __________                 1.  Amount of LSD                 1.  Amount of LSD                     _____________                      Tracy disputes the computation of the amount of LSD            involved  in  the attempted  sale on  August  22, 1990.   The            district court assigned a  weight to the LSD offered  but not            sold on August 22 by extrapolating from the weight of the LSD            Tracy actually  sold  to  Russell  Wright on  the  two  prior            occasions.   The first sale  on August 18  involved 20 doses,                                         -16-            which  weighed a total of  .11 grams (.0055  grams per dose).            The second sale on August 20 involved 50 doses, which weighed            a total of  .32 grams (.0064 grams per unit).   Based on this            information, the court determined an average weight of .00595            grams per dose.  The court  then calculated a weight of  .595            grams for the 100 doses involved in the third attempted sale.            This  calculation  produced  a  total weight  for  all  three            offenses of  1.025 grams  (.110 +  .320 +  .595), and a  base            offense level  of 26.  Combined with Tracy's criminal history            category III, the calculation yielded a guideline range of 78            to 97 months.                      Tracy contends  that the district court  erred as a            matter of law by failing to apply the Typical Weight Per Unit            Table  found at  application  note 11  of  the commentary  to            U.S.S.G.    2D1.1.4  That  table indicates  that the  typical            weight per  unit for  LSD is  .05 milligrams (.00005  grams).            Applying this table, the total weight for  all three offenses            would have  been  .435 grams  (.110  + .320  +  .005).   This                                            ____________________            4.  Tracy also contends that the district court's calculation            violates the due process clause of the Fifth Amendment, which            provides  a  defendant  with  the right  to  be  sentenced in            accordance with  accurate evidence.   See Townsend  v. Burke,                                                  ___ ________     _____            334 U.S. 736, 741  (1948).  As discussed  below, we find  the            district court's extrapolation from the previous two sales to            provide  a  more  accurate  estimate  of the  amount  of  LSD            involved  in the third attempted  sale than would  the use of            the Typical  Weight  Per Unit  Table.   We  therefore  reject            Tracy's due process argument.                                         -17-            computation would produce an offense level of 20, rather than            26, and a guideline range of 41 to 51 months.5                      Application note  11 of U.S.S.G.    2D1.1 instructs            courts  to use  its Typical  Weight Per  Unit Table  when the            number  of doses, pills or capsules are known, but the weight            of the controlled substance is not known.  The table displays            the  typical weight  per dose,  pill or  capsule  for certain            controlled substances, including  LSD.  Application note  11,            however, specifically cautions courts not to use the table if            a more reliable estimate of the weight is available:                                            ____________________            5.  As an alternative, Tracy suggests that the district court            should at  least  have  used the  lightest  known  sample  to            extrapolate  the weight  of the  LSD in  the third  attempted            sale.   See United  States v. Martz,  964 F.2d  787, 790 (8th                    ___ ______________    _____            Cir.), (approving  district  court's use  of  lightest  known            sample), cert. denied, 113  S. Ct. 823 (1992); United  States                     ____________                          ______________            v. Bishop, 894 F.2d 981, 987 (8th Cir.), cert. denied, 111 S.               ______                                ____________            Ct.  106  (1990) (same).    Applying that  method,  the total            weight  for all  three  offenses would  have been  .980 grams            (.110 + .320 + .550).   The base offense level would  then be            24, and the guideline range would be 63 to 78 months.                 We  have said in the past that "'when choosing between a            number of plausible estimates  of drug quantity . . . a court            must err on  the side of caution.'"  United  States v. Sklar,                                                 ______________    _____            920 F.2d 107, 113  (1st Cir. 1990) (quoting United  States v.                                                        ______________            Walton,  908 F.2d 1289, 1301 (6th Cir.), cert. denied, 111 S.            ______                                   ____________            Ct.  532 (1990)).  Here,  Tracy sold more  than twice as many            doses of LSD at the higher  weight (.0064 grams) than at  the            lower weight (.0055 grams).  Thus, the district court did err            on the  side  of  caution because,  had  the  district  court            accounted  for the greater number of doses sold at the higher            weight, the average weight per dose would  have equaled .0061            grams  ([.11 +  .32] divided by  70).  Given  these facts, we            think the district court's averaging  method was conservative            and   that  it   could  permissibly   conclude  in   all  the            circumstances of this case  that this method produced  a more            reliable  estimate of the amount of LSD involved in the third            attempted  sale than  would  extrapolating from  the lightest            known sample.                                         -18-                      The  Typical  Weight   Per  Unit   Table,                      prepared from information provided by the                      Drug Enforcement Administration, displays                      the  typical  weight per  dose,  pill, or                      capsule for  certain substances.   Do not                                                         ______                      use  this  table  if  any  more  reliable                      _________________________________________                      estimate of the total weight is available                      _________________________________________                      from case-specific information.                      ______________________________            (emphasis added).  Application note 11 further warns that the            table  provides a  very conservative  estimate of  weight for            certain  substances,  including   LSD,  because  the  weights            displayed  in  the table  do not  include  the weight  of the            mixture or substance containing the drugs:                       * For controlled substances  marked with                      an asterisk, the weight per unit shown is                      the  weight  of  the   actual  controlled                      substance, and not  generally the  weight                      of  the  mixture or  substance containing                      the controlled substance.  Therefore, use                      of   this   table    provides   a    very                      conservative   estimate   of  the   total                      weight.            LSD is marked with an asterisk.                      A district  court's finding of the  amount of drugs            involved in an offense will be overturned on appeal only upon            a showing of clear  error.  E.g., United States  v. McCarthy,                                        ____  _____________     ________            961 F.2d 972, 978  (1st Cir. 1992); United States  v. Zuleta-                                                _____________     _______            Alvarez, 922 F.2d 33,  37 (1st Cir. 1990), cert.  denied, 111            _______                                    _____________            S. Ct. 2039  (1991).  In the present case, the district court            did not err in refusing to apply  the Typical Weight Per Unit            Table.  The district  court's finding of the quantity  of LSD            involved  in the third attempted sale was based on the weight            of  the actual  doses (on  the same  yellow paper  with black                                         -19-            airplanes), that Tracy  had sold just  days before the  third            attempted  sale.  Where  this "case-specific information" was            available, the court was warranted under note 11 in using the            former in preference  to the Typical  Weight Per Unit  Table.            See U.S.S.G.    2D1.1, application note 11;  United States v.            ___                                          _____________            Bishop,  894 F.2d 981, 987  (8th Cir.), cert.  denied, 111 S.            ______                                  _____________            Ct. 106  (1990).   The table produces  conservative estimates            that,  among other things, do  not account for  the weight of            the "mixture or substance" containing the LSD.  As the weight            of LSD blotter paper  is considered a "mixture  or substance"            that  should be included in calculating the amount of LSD for            sentencing, Chapman v.  United States, 111 S.  Ct. 1919, 1925                        _______     _____________            (1991),  the  district  court properly  employed  the  higher            average weight extrapolated from the  two prior sales of LSD-            infused   yellow   blotter  paper,   rather  than   the  more            conservative estimate  derived  from the  Typical Weight  Per            Unit Table.   See United  States v. Shabazz,  933 F.2d  1029,                          ___ ______________    _______            1034  (D.C. Cir.)  (Thomas,  J.) ("note  11  was designed  to            address  problems   of  uncertainty,  not  to  undermine  the            preference  that sentences  be  determined  according to  the            weight  of the  mixture  or substance  if possible."),  cert.                                                                    _____            denied  sub  nom. McNeil  v. United  States,  112 S.  Ct. 431            _________________ ______     ______________            (1991).                 2.  Acceptance of Responsibility                 2.  Acceptance of Responsibility                     ____________________________                                         -20-                      Tracy argues that the district  court clearly erred            in refusing to adjust  his base offense level on  the failure            to appear count for  acceptance of responsibility pursuant to            U.S.S.G.    3E1.1.  According to Tracy,  he has been open and            remorseful with the court since the inception of that charge.            He notes that he confessed his failure  to appear when he was            first brought back  from Florida, and that he eventually pled            guilty to  that charge.  He  quotes a letter that  he sent to            the district  court, which  stated "I  have  clearly made  it            known that  I accept  responsibility for [failing  to appear]            and truly  regret making that decision.   At that time  I was            worried  about the child that I thought my wife was carrying,            and  was a  very confused and  scared man.   But  I regret my            actions and have apologized to this court for them."                      A  defendant  is entitled  to a  two-level downward            adjustment for acceptance of responsibility if  the defendant            "clearly   demonstrates   a   recognition   and   affirmative            acceptance  of  personal   responsibility  for  his  criminal            conduct."   U.S.S.G.   3E1.1(a).   Although a  guilty plea is            "significant  evidence" of  acceptance of  responsibility, it            does  not, by  itself,  compel a  downward adjustment,  since            "this evidence may be outweighed by conduct of the  defendant            that is inconsistent with such acceptance of responsibility."            U.S.S.G.   3E1.1, application note 3, United States v. Pavao,                                                  _____________    _____            948  F.2d 74,  79  (1st Cir.  1991).   A  sentencing  judge's                                         -21-            determination concerning acceptance of responsibility will be            overturned only if clearly erroneous.  E.g., United States v.                                                   ____  _____________            Royer, 895 F.2d 28, 29 (1st Cir. 1990).              _____                      The district court's  determination that Tracy  did            not genuinely accept responsibility for his failure to appear            is  amply  supported  by  the  record.    Tracy   used  false            identification  in an  attempt to  conceal his  identity even            after Florida authorities confronted  him.  See United States                                                        ___ _____________            v. Yeo, 936 F.2d 628, 629  (1st Cir. 1991) (use of false name               ___            supported  denial of  downward  adjustment for  acceptance of            responsibility).  Further, after observing  Tracy's demeanor,            the district  court concluded  that he was  opportunistic and            would  say anything  to minimize his  sentence.   Under these            circumstances, we cannot say  that the district court clearly            erred in  refusing to adjust  Tracy's base offense  level for            acceptance of responsibility.                 3.  Obstruction of Justice                 3.  Obstruction of Justice                     ______________________                      Pursuant to  18 U.S.C.     3742(b), the  government            appeals from the district  court's refusal to enhance Tracy's            sentence for  obstruction of justice under  U.S.S.G.   3C1.1.            The government  argues that Tracy knowingly  perjured himself            when testifying  about the  August 22, 1990  attempted sale,6                                            ____________________            6.  The alleged perjury consisted  of Tracy's testimony  that            the  third attempted  sale  involved artificial  LSD on  blue            blotter  paper.   This  testimony  was  directly contrary  to            Wright's  testimony that  he saw  the 100  doses of  LSD that            Tracy attempted to sell on August 22, and these doses were on                                         -22-            and  that,  therefore,  an  enhancement  for  obstruction  of            justice was mandatory.                      U.S.S.G.   3C1.1 provides the following:                      If the defendant willfully  obstructed or                      impeded,  or  attempted  to  obstruct  or                      impede,  the  administration  of  justice                      during the investigation, prosecution, or                      sentencing   of   the  instant   offense,                      increase the offense level by 2 levels.            Application note 3(b)  specifically identifies the commission            of perjury as the  kind of conduct to which  this enhancement            applies.  U.S.S.G   3C1.1, application note 3(b).                      The Supreme Court has recently provided guidance on            the application  of U.S.S.G.    3C1.1 to  perjured testimony.            See  United  States  v.  Dunnigan,  61  U.S.L.W.  4180  (U.S.            ___  ______________      ________            February  23, 1993).   In  Dunnigan, the Supreme  Court ruled                                       ________            that  once  a  district  court  finds that  a  defendant  has            committed  perjury, the  court must  enhance  the defendant's            base offense level by two  points for obstruction of justice.            Id. at 4184; see United States v. Austin, 948  F.2d 783, 788-            ___          ___ _____________    ______            89 (1st Cir. 1991).  In determining what constitutes perjury,            the  Court  told sentencing  courts  to  apply the  generally            accepted  definition  of  perjury  in  the  federal  criminal            perjury  statute, 18 U.S.C.   1621.7  61 U.S.L.W. at 4182-83.                                            ____________________            the same yellow blotter paper with black airplanes that Tracy            had sold on the two prior occasions.            7.  18 U.S.C.   1621 provides in relevant part the following:                      Whoever                                             -23-            Under  that definition,  a witness  testifying under  oath or            affirmation  commits  perjury  if  he  or  she  "gives  false                                                                    _____            testimony  concerning  a  material  matter  with  the willful                                      ________________            _______            intent to provide false testimony, rather than as a result of            ______            confusion,mistake orfaultymemory." Id.at 4183(emphasisadded).                                               ___                      The Court  in Dunnigan  stressed that, in  order to                                    ________            impose  a   3C1.1 enhancement,  a sentencing court "must make            independent   findings  necessary  to   establish  a  willful            impediment  to or obstruction of justice, or an attempt to do            the  same,  under  the  perjury  definition,"      i.e.,  the            sentencing  court  "must make  findings  to  support all  the            elements of a perjury  violation in the specific case."   Id.                                                                      ___            The Court  further preferred that sentencing  courts "address            each element of the  alleged perjury in a separate  and clear            finding."   Id.    Such express  findings,  according to  the                        ___            Court, help to ensure that sentences will not be enhanced "as                                            ____________________                           (1) having taken  an oath  before a  competent                      tribunal, officer, or person,  in any case in which                      a law of the United States authorizes an oath to be                      administered,  that  he   will  testify,   declare,                      depose,  or  certify  truly,  or  that  any written                      testimony, declaration,  deposition, or certificate                      by  him subscribed, is true, willfully and contrary                      to  such  oath states  or  subscribes  any material                      matter which he does not believe to be true . . .                                   is guilty of perjury . . . .            18 U.S.C.   1621(1).                                         -24-            a matter of course  whenever the accused takes the  stand and            is found guilty."  Id.8                               ___                      In   refusing   to   apply  the   enhancement   for            obstruction  of justice  in  the present  case, the  district            court said,                      [It]  is  a  very  close  call.    It  is                      apparent  to  the  Court  that  the  jury                      rejected   the    credibility   of   this                      defendant and of  his testimony at trial.                      This Court was  present at that time  and                      heard that testimony.   This Court,  too,                      disbelieved    the   accuracy    of   his                      testimony.                           Nevertheless, there  are many policy                      considerations that surround the question                      of enhancing a  base offense level  which                      increases  potential  punishment  on  the                      basis  of  the  Court's  conclusion  that                      perjury  has been  committed.    And  the                      Court  simply is  not comfortable  in its                                            ____________________            8.  The Supreme Court in Dunnigan also emphatically rejected,                                     ________            as has  virtually every circuit  court, the argument  that an            enhanced sentence for perjury undermines  a defendant's right            to testify.  61  U.S.L.W. at 4183; United States  v. Batista-                                               _____________     ________            Polanco,  927 F.2d 14, 22  (1st Cir. 1991);  United States v.            _______                                      _____________            Matos, 907 F.2d  274, 276  (2d Cir. 1990);  United States  v.            _____                                       _____________            Wallace,  904  F.2d  603,  604-05  (11th  Cir.  1990).   "[A]            _______            defendant's right  to testify  does not  include  a right  to            commit perjury."  Dunnigan,  61 U.S.L.W. at 4183.   We reject                              ________            Tracy's argument to the contrary.                 We also  find no merit  in the  related contention  that            Tracy's denial of  guilt under  oath at trial  cannot be  the            basis of  an  enhancement  under U.S.S.G.     3C1.1.    While            application note 1 to   3C1.1 does provide that a defendant's            denial of guilt  is not a basis for  an enhancement, the note            expressly excludes  from this prohibition "a  denial of guilt            under  oath that  constitutes  perjury."   U.S.S.G.    3C1.1,            application note  1.  As  we have  stated in the  past, "'the            authorized  procedure for asserting  innocence in  a criminal            proceeding  is the tender of an  unsworn 'not guilty' plea.'"            United  States v.  Brum, 948  F.2d 817,  820 (1st  Cir. 1991)            ______________     ____            (quoting Batista-Polanco, 927 F.2d at 22).                     _______________                                         -25-                      own mind in  concluding that the  conduct                      amounts   to    perjury   of   sufficient                      significance    to   justify    such   an                      enhancement.                      The government contends that as the district court,            in  the  above-quoted  passage,  found that  Tracy  committed            perjury, the two-level enhancement for obstruction of justice            was  mandated.  Quoting the very same passage, Tracy contends            that  the  district court  did  not  find perjury,  and  more            particularly that the district court did not make a  specific            finding that Tracy had willfully lied.                        We agree with Tracy  that it is not clear  from the            district court's discussion of obstruction of justice whether            the  court  found  that  all  the  elements of  perjury  were            satisfied.  While the district court expressly stated that it            "disbelieved the  accuracy of  [Tracy's]  testimony," we  are            unable to  determine whether  the court also  found that  the            testimony  concerned   a  material  matter,  or   that  Tracy            intentionally  provided the  false  testimony.9   It is  also                                            ____________________            9.  The  government  suggests  that  we can  imply  from  the            district court's discussion in  connection with its ruling on            the issue of acceptance  of responsibility, that the district            court believed that Tracy had knowingly not told the truth in            his  trial testimony.  We decline the invitation.  To "imply"            a finding of willful intent to commit perjury on the basis of            a district  court's general  comments not made  in connection            with the  court's perjury  discussion would stretch  too far,            especially  in a case where the court itself declined to find            obstruction.  We  note also the Supreme  Court's direction in            Dunnigan that district courts "must make independent findings            ________            to  establish  a  willful  impediment to  or  obstruction  of            justice,  or an  attempt to  do the  same, under  the perjury            definition."  61 U.S.L.W. at 4183.                                         -26-            possible  to  interpret the  district  court's  statements as            finding perjury,  but  requiring something  more  than  basic            perjury to justify an enhancement for obstruction of justice.                      We   think  the   proper   resolution,   in   these            circumstances, is  to vacate the  sentence and remand  to the            district court "to make findings to support all  the elements            of  a  perjury  violation,"  or  to  articulate  clearly  the            elements it believes have not been satisfied.   See Dunnigan,                                                            ___ ________            61  U.S.L.W. at  4183.   In  making  this determination,  the            district court, inter alia,  should be guided by  the Supreme                            __________            Court's opinion  in Dunnigan,  the definition of  perjury set                                ________            forth in  the federal criminal  perjury statute, 18  U.S.C.              1621, and  case law interpreting that  definition, see, e.g.,                                                               ___  ____            United States v. Moreno Morales, 815 F.2d 725, 747 (1st Cir.)            _____________    ______________            ("A statement  is material if  it is 'capable  of influencing            the tribunal on the issue before it.'" (quoting United States                                                            _____________            v.  Scivola,  766  F.2d  37, 44  (1st  Cir.  1985) (citations                _______            omitted))),  cert. denied,  484 U.S.  966 (1987).   If, after                         ____________            reviewing the testimony, the  district court is of  the "firm            conviction" that  Tracy committed perjury, then  the district            court must impose a  two-level enhancement for obstruction of            justice.  See, e.g.,  United States v. Torres, 960  F.2d 226,                      ___  ____   _____________    ______            228 (1st Cir. 1992); United States v. Brum, 948 F.2d 817, 819                                 _____________    ____            (1st Cir. 1991); United States v. Rojo-Alvarez, 944 F.2d 959,                             _____________    ____________            969 (1st  Cir. 1991);  United States v.  Batista-Polanco, 927                                   _____________     _______________                                         -27-            F.2d  14, 22 (1st Cir.  1991); United States  v. Akitoye, 923                                           _____________     _______            F.2d 221, 228 (1st Cir. 1991).                      Tracy's conviction  is affirmed.   His sentence  is                                             ________            vacated and remanded for resentencing in accordance with this            ____________________            opinion.                      So ordered.                       __________                                         -28-
