UNITED STATES оf America, Appellee, v. Darryl DOWDELL, Defendant, Appellant.
No. 08-1855.
United States Court of Appeals, First Circuit.
Heard Sept. 15, 2009. Decided Feb. 12, 2010.
The sockdolager is that the record contains no evidence that the appellant and any codefendant were fair congeners. Among other things, the codefendant pleaded guilty in accordance with a negotiated plea agreement and, therefore, was not in that respect situated similarly to the appellant. See Rodríguez-Lozada, 558 F.3d at 45.
We need go no further. For the reasons elucidated above, we conclude that the sentencing in this case was free from error, plain or otherwise.
Affirmed.
Before TORRUELLA, SELYA and HOWARD, Circuit Judges.
HOWARD, Circuit Judge.
Following a three-day jury trial, Defendant Darryl Dowdell was convicted of distribution of cocaine base and sentenced as a career offender to 198 months’ imprisonment. Dowdell appeals the conviction, alleging three defects: that the delay between his indictment by state authorities and his ultimate trial in federal court violated his Sixth Amendment speedy trial rights as well as the Interstate Agreement on Detainers; that the district court‘s amendment of the indictment from “cocaine” to “cocaine base” violated the presentment clause of the Fifth Amendment; and that the trial court abused its discretion on various evidentiary rulings. He also challenges the sentence imposed, arguing that the government‘s recommended sentence of 262 months violated a promise not to seek a term of imprisonment longer than 20 years. For the reasons that follow, we affirm both the conviction and the sentence.
I. Background and Travel
While the facts surrounding the underlying offense are not complicated, the pretrial procedural history of this case presents a maze of overlapping federal and state activity, a flurry of continuances, and a revolving door of withdrawn and newly appointed defense counsel.
A. The Subject Offense
The following facts were elicited at Dowdell‘s federal trial.
In the summer of 2001, several Massachusetts authorities launched a coordinated effort with the federal Drug Enforcement Administration (DEA) to investigate drug trafficking in the area of a housing project in Roxbury. The investigation involved a task force of undercover officers who made controlled purchases of cocaine and crack cocaine from dealers operating in the project. One of these officers was Boston Housing Authority investigator Joao Monteiro. Posing as a construction worker, Monteiro drove an unmarked car with a concealed audio transmitter and a video camera that focused on the automobile‘s interior passenger compartment.
On July 6, 2001, Monteiro observed Dowdell standing on the sidewalk with a man named Robert White, whom Monteiro recognized from previous encounters. Dowdell was wearing dark pants and a black shirt. He and White were counting cash. Monteiro signaled to White that he wished to purchase crack cocaine, and White went to talk to Dowdell. White then approached Monteiro‘s car and got into the passenger seat. White told Monteiro that Dowdell, at this point identified only as “the dark-skinned brother” in the dark shirt, was a trustworthy dealer. After purchasing 1.1 grams of crack cocaine for $230, Monteiro asked White whether “the dude in black” was the person to see for future purchases if White were unavailable. White replied affirmatively and informed Monteiro that Dowdell went by the name “Smoke.” Monteiro departed, after informing White that he would be returning in a short while to make another purchase.
Some 45 minutes later, Monteiro returned to the project and saw Dowdell on a bicycle. Monteiro approached Dowdell, who asked Monteiro if he wanted anything. Monteiro responded that he was looking for White, and Dowdell then biked over to
Monteiro returned for a third buy on July 16, ten days after the first two. When he arrived, he saw Dowdell standing in a small group, wearing blue jeans and a blue checkered shirt. Monteiro again asked for White, who was unavailable. Monteiro asked fоr directions and drove away, making it appear that he was going off to search for White. After waiting long enough to give the impression that the search was unsuccessful, he returned to the project looking for Dowdell. He found Dowdell on the sidewalk, still wearing a blue checkered shirt. Monteiro called out “Yo, Smoke, can I holler at you.” Dowdell approached Monteiro‘s car, and the two of them proceeded to have a conversation through the passenger-side window. Continuing to address Dowdell as “Smoke,” Monteiro asked for about $200 worth of crack cocaine. Dowdell left briefly to meet with another individual and then returned with six bags of crack cocaine, worth approximately $100. Seven more bags would eventually follow. The total weight of the thirteen bags was approximately 2.3 grams. During this whole encounter, Dowdell was only partially visible on the video that Monteiro‘s surveillance camera recorded.
Driving away, Monteiro narrated a description of Dowdell for the surveillance recording. He stated, “Smoke is the same kid as the last time. [sic] he‘s got on a checkered shirt blue ... blue checkered shirt umm and he was riding a bicycle.”
Later that day, Dowdell was arrested on an outstanding warrant unrelated to his transactions with Monteiro. He was brought to a Boston police station where a booking photo was taken. In the photo, Dowdell was wearing a blue checkered shirt, as Monteiro had described earlier in the day. Later, around four hours after completing the buy from Dowdell, Monteiro was shown the phоtograph and identified the depicted individual as “Smoke.” Monteiro reported that the individual in the photograph was the same person from whom he had purchased drugs that day and whom he had seen standing on the corner with White ten days beforehand.
B. Pre-Trial Procedural History
Because the timing of particular pre-trial events is important to our legal analysis, we must delve into some detail in retracing the path on which this case traveled before it reached the jury.
On March 25, 2002, eight months after the July 2001 encounters at the housing project, a Suffolk County grand jury indicted Dowdell, based on those events, for distributing a controlled substance in the vicinity of school property. At his arraignment, he pled not guilty and was released on bail, which was subsequently revoked in October 2003 due to a charge on an unrelated crime. On April 12, 2004, Dowdell‘s appointed counsel withdrew his representation and was replaced. That replacement would in turn withdraw in August of that year, and the court appointed a third attorney.
On November 17, 2004, the federal government filed a criminal complaint against Dowdell based on the July 2001 events, charging him with distribution of crack cocaine in violation of
On February 4, 2005, then unrepresented by counsel, Dowdell wrote a letter to a clerk for the magistrate judge overseeing the pre-trial proceedings in his federal case. The letter invoked his speedy trial rights under
During the initial appearance, the prosecutor acknowledged that Dowdell‘s transfer into federal custody was pursuant to a writ “based on the defendant‘s request under the interstate agreement on detainers.” He proceeded to explain that Dowdell had no intention of waiving his IAD rights, which Dowdell‘s counsel confirmed. By preserving his rights under the IAD, Dowdell was to remain in federal custody and receive credit toward the fulfillment of his term of incarceration for the unrelated charge in the state-court system, but receive no credit toward any eventual federal sentence for the distribution offense until the state-court sentence had fully elapsed.
The next day, March 23, a federal grand jury indicted Dowdell, charging him with one count of “knowingly and intentionally possess[ing] with intent to distribute and distribut[ing] a quantity of cocaine” in violation of
Dowdell filed a motion to dismiss the indictment at the new July 8 deadline, claiming a violation of the Speedy Trial Act,
The docket then lay dormant for four months. Although the government was required by rule to file its opposition to the motion to dismiss within two weeks, see D. Mass. R. 7.1(b)(2), it was not until November 7, 2005 that the government sought leave to file a late opposition. Apparently, the government had actually prepared the memorandum of law in July and assumed that it had been timely submitted. The motion for leave to file explained the delay as a simple error in performing the electronic submission. The district court granted this request, finding no evidence of bad faith on the part of the government. The next day, the government filed its opposition.
On December 17, 2005, before the court had taken any action on the pending motion to dismiss, Dowdell moved to withdraw his appointed counsel—as he had done twice before in state court—claiming a breakdown in communication. The court held an ex parte hearing on February 14, 2006. It explained to Dowdell that appointing new counsel would further delay his case. Dowdell expressed that he would ideally like to resolve the case as soon as possible with his current counsel, but “we seem to not be seeing eye to eye with each other, so I thought I had no choice but to do that.... I don‘t want to put it off anymore. I‘ve told him that. But I just felt that my life is on the line here, and I just felt that I need a new attorney.” The court granted Dowdell‘s request and allowed his attorney to withdraw. Dowdell and the government agreed that any time that elapsed between the withdrawal and an eventual ruling on the motion to dismiss would be excluded from the speedy trial calculation.
On March 2, 2006, the court appointed new counsel, Victoria Bonilla. On June 16, 2006, after Bonilla had time to acquaint herself with the case, Dowdell moved to supplement the motion to dismiss. The court held a nоn-evidentiary hearing on the matter and, after setting a trial date of July 31, 2006, granted the motion to supplement. On June 30, Dowdell filed the supplemental memorandum, alleging, inter alia, infringement of Dowdell‘s due process rights.3 Neither the original motion nor the supplemental memorandum mentioned the IAD.
The government filed its response on July 11, 2006. The response erroneously asserted that Dowdell had in fact waived his IAD rights at his initial appearance, “rendering it inapplicable for purposes of the motion to dismiss.” Regardless, the government claimed, no IAD violation had occurred.
The court held a hearing on the motion on July 14, 2006. Bonilla, who had not been involved in the case when Dowdell first appeared, did not mention the IAD or contest the alleged waiver. As indicated in the following colloquy between Bonilla and the court, Dowdell‘s sole grounds for dismissal concerned the period prior to the federal indictment, rather than any post-indictment developments:
THE COURT: Okay. All right. Now, turning more directly to your motion, the supplemental motion for to dismiss, do I understand, Ms. Bonilla, that the defendant is not contesting the time between the indictment, the federal indictment, in March of 2005, and today‘s
date but that what you are concentrating on is the time between the November or December notice, December of 2004, and the indictment in March of 2005, as exceeding 30 days in violation of the statute? Is that— MS. BONILLA: That‘s fair to say, your Honor.
THE COURT: That‘s fair to say. So we‘re not concerned with anything that happened between March and the—March of 2005 and the filing of the original motion to dismiss in July of 2005, and the snafu of the government in not responding to that motion until November of 2005, is that correсt?
MS. BONILLA: Yes, your Honor. My motion focuses on what happens before.
The court ultimately denied the motion in its entirety, including Dowdell‘s constitutional speedy trial argument, and prepared to move onward to the July 31 trial date. Dowdell, however, once again requested a continuance, this time because of the possibility that a prior state conviction might be expunged from his record in the interim (an occurrence that could affect plea negotiations). Michael Bourbeau, one of Bonilla‘s partners who was also representing Dowdell at the hearing, explained that “we‘ve talked about Mr. Dowdell‘s Speedy Trial rights. But the ramifications of this, I think, this prior [state conviction]—the determination that can be made on that prior is, I think, very significant as to whether this case needs to go forward to trial.” The government agreed with this representation. At that point, the court took pains to ensure that Dowdell understood the ramifications of any postponement:
THE COURT: The Court‘s schedule is such that it couldn‘t be for probably three months.
MR. BOURBEAU: We understand the Court‘s concern. We‘ve had discussion with Mr. Dowdell.
THE COURT: Yeah, I mean, this is the oldest case, I think, on my docket, maybe not in the docket number but with respect to the date of the alleged crime. It needs to be resolved. Your request, of course, is made on behalf of the defendant now who needs to have his rights—
MR. BOURBEAU: Yes.
THE COURT:---pursued and resolved. . . .
THE COURT: All right. The Court will allow the defendant‘s motion to continue the trial until September 18th on the extraordinary circumstance that we all find ourselves in this case. It is something that is very much of concern to the Court that this matter be resolved sooner rather than later, but I understand the import of what Mr. Bourbeau is suggesting and that it may well inure to the benefit of not only counsel but of the Court in terms of judicial economy or economy of the Court‘s expenditure of time. So I‘m going to allow that motion for continuance.
Thus, at Dowdell‘s own behest, the trial was pushed back an additional month and a half.
The September 18th trial date met the same fate as the preceding July 31st date—postponement. For the second time since his federal indictment, and for the fourth time overall, Dowdell‘s attorney moved to withdraw representation. In a motion dated August 8, 2006, Bonilla informed the court that Dowdell believed there to have been an irreparable breakdown in communications. The court held an ex parte hearing on August 16, 2006, after which it denied the motion. But on September 8, Dowdell sent the court a pro se, handwritten motion to reconsider its
As with his predecessors, Shea‘s tenure as Dowdell‘s counsel would terminate prematurely, though this time not at Dowdell‘s request. On November 28, 2006, Shea informed the court that he had a conflict of interest that compelled withdrawal. The court allowed another change in representation. The trial date was rescheduled for February 27, 2007.
Dowdell‘s new attorney (now his fourth since the federal indictment and seventh overall) was granted a requested continuance on December 18, 2006 in order to acquaint himself better with the case. Trial was set for April 9, 2007. On March 15, 2007, Dowdell‘s attorney once again requested a continuance, this time both in order to ensure effective assistance and because of a personal conflict. The court granted this final continuance. The trial commenced on May 29, 2007—nearly six years from the date of the offense.
C. Modifying the Indictment
We briefly depart from our chronological march through the events and take several steps back to August 2006, when the trial was still scheduled for the following month. On August 30, the government filed a motion to advise the court of a potential variance between the text of the indictment and the proof to be adduced at trial. The indictment did not refer to “cocaine base” or “crack cocaine,” as had the federal complaint and accompanying affidavit, the petition for habeas corpus ad prosequendum, the testimony before the grand jury, the magistrate judge‘s colloquy with Dowdell at his initial appearance, and various discovery documents that Dowdell had previously been provided. Instead, it simply read “cocaine,” potentially suggesting the powder form of the substance. Arguing that modifying the text from “cocaine” to “cocaine base” would not constitute a material change requiring a superseding indictment, the government asked the court to declare the original indictment suitable for trial. The government prоfessed an inability to explain why the indictment did not specifically allege distribution of cocaine base, but sought to clarify the matter prior to trial and avoid unnecessary jury confusion over the controlled substance allegedly distributed.
Recognizing that a variance, by definition, can only be determined after the presentation of evidence, the court chose to treat the government‘s pre-trial motion as one to amend the indictment.4 It then analyzed whether the proposed correction would rise to the level of a constitutional violation. The court granted the government‘s motion, reasoning that Dowdell had been well apprised all along of the fact that he was charged with distribution of cocaine base and not cocaine powder. It further noted that the particular drug type alleged (whether cocaine base or cocaine
D. Evidence Presented at Trial
At trial, Dowdell‘s primary argument was misidentification. He claimed that he was not the “Smoke” referred to in surveillance recordings and that the video footage was inconclusive as to whether a man with a blue checkered shirt was actually involved. In order to corroborate Monteiro‘s identification of Dowdell as Smoke, the government introduced, inter alia, two items that Dowdell had unsuccessfully attempted to exclude through pre-trial motiоns in limine: the booking sheet from the July 16 arrest and several of White‘s July 6 statements captured on videotape.
1. The Booking Sheet
The booking sheet contained both the photograph of Dowdell in the blue checkered shirt on which Monteiro had based his identification, as well as a textual description of Dowdell‘s clothing as including a “blue plaid shirt.” Dowdell argued that the document was inadmissible because a provision of
At trial, the government proffered an edited version of the booking sheet. All information relating to the charges against Dowdell was redacted, while the sections describing clothing and appearance remained. In addition, the government introduced the photograph separately, unaccomрanied by the booking sheet. It was on the basis of this photograph, rather than the booking sheet, that Monteiro would testify he had made his identification of Dowdell as Smoke.
2. Video Evidence
Dowdell had also objected in limine to the introduction of White‘s videotaped statements from the two transactions on July 6, 2001. There were two tapes at issue, one from each transaction. The first showed White telling Monteiro who “Smoke” was and confirming that he was reliable. The second showed Monteiro approaching Dowdell and asking him to summon White, which Dowdell then did.
Dowdell challenged the admissibility of the statements on two distinct grounds. First, he argued that the statements constituted proof of prior bad acts that would be barred by
The district court rejected bоth of Dowdell‘s objections during the final pre-trial conference. With respect to the
During the course of the pre-trial conference, Dowdell argued that even if a transcript of the statements would be admissible, the videotape itself would be unfairly prejudicial. The government insisted that it was entitled to use the video to prove its case, as only the video showed what sort of opportunity Monteiro had to actually see Dowdell from the car. Again, the district court rejected Dowdell‘s argument, finding that the videotape was the best evidence. Though ordering two minor edits to the video and the corresponding transcript,5 the court ruled that the videotaped statements were otherwise admissible in their original form.
E. Sentencing
On May 31, 2007, after three days of trial, the jury returned a guilty verdict. Under
Nevertheless, in April 2007, the government filed an information to establish a prior conviction under
II. Discussion
A. Speedy Trial Rights
Dowdell first contends that the district court erred in denying his motion to dismiss on constitutional speedy trial grounds. The district court noted, but never resolved, whether the appropriate starting point for the speedy trial clock
The
The threshold inquiry concerns the first of these four, as the sheer brevity of pre-trial delay may obviate the need for further analysis. See id. (“Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.“). Should there be a lengthier delay, however, we must engage in the “difficult and sensitive balancing process” of placing each of the other factors on the scale. Id. at 533. Thus, “the length of the delay is both the trigger for analysis and one of the factors to be considered.” United States v. Colombo, 852 F.2d 19, 24 (1st Cir.1988); see also Doggett v. United States, 505 U.S. 647, 651 (1992) (referring to the length-of-delay factor as a “double enquiry“). Once it is determined that balancing is necessary, none of the four factors has any talismanic power. Rather, “we must still weigh all of the factors collectively before deciding whether a defendant‘s right to a speedy trial has been violated.” Colombo, 852 F.2d at 23.
It is not clear to us whether the district court may have glossed over this multi-part analysis by disposing of the issue on the question of prejudice alone. In any event, a violation of the Speedy Trial Clause may occur even absent any affirmative demonstration of prejudice to the accused. Moore v. Arizona, 414 U.S. 25, 26 (1973) (per curiam) (holding that because Barker “expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial,” the state court was “in fundamental error” for requiring a showing of prejudice to the defense at trial). If indeed a lengthy delay is present, a single factor in isolation cannot dispose of an issue as “amorphous, slippery, and necessarily relаtive” as the right to a speedy trial. Vermont v. Brillon, 556 U.S. 81, 89 (2009) (internal quotation marks omitted).6
Our analysis will instead begin, as the King admonished the White Rabbit, at the beginning: the length of the delay. There is no bright-line time limit dividing the lengths that trigger further Barker inquiry from those that do not. Whether a particular delay will warrant further speedy trial scrutiny “is necessarily dependent upon the peculiar circumstances of the case.” Barker, 407 U.S. at 530-31.
The difficulty in this case is determining just when the speedy trial clock ought to start running. The Sixth Amendment right to a speedy trial attaches upon formal accusation. United States v. MacDonald, 456 U.S. 1, 6-7 (102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). In the typical case, this means either arrest or indictment, whichever comes first. United States v. Casas, 425 F.3d 23, 33 (1st Cir.2005). For Dowdell, who did not face any pre-indictment detention on his federal charge, the starting point would ordinarily be the date of his federal indictment, March 23, 2005. Dowdell, however, does not challenge any length of time that elapsed after this date.7 Instead, he focuses on the time frame preceding it, arguing that his speedy trial rights in fact accrued with his state indictment on March 25, 2002. Were that the case, it would yield a presumptively prejudicial delay of nearly three years before the federal indictment was returned.
Addressing this argument requires us to consider the speedy trial implications of the dual sovereignty doctrine. Under this doctrine, “the federal government is not bound by the actions of state authorities and ... successive state and federal prosecutions are constitutionally permissible.” United States v. Mejias, 552 F.2d 435, 441-42 (2d Cir.1977). Though perhaps most recognizable from the double jeopardy context, see, e.g., Abbate v. United States, 359 U.S. 187 (1959), dual sovereignty considerations animate our constitutional speedy trial jurisprudence, as well. In MacDonald, 456 U.S. at 10 n. 11, the Supreme Court briefly noted that “an arrest or indictment by one sovereign would not cause the speedy trial guarantees to become engaged as to possible subsequent indictments by another sovereign.” Following MacDonald‘s lead, we observed in United States v. Marler, 756 F.2d 206, 211 (1st Cir.1985), that “a ruling that a defendant‘s right to a speedy federal trial attaches upon his state indictment would implicate the very concerns that led the Court to formulate the dual sovereignty doctrine in the double jeopardy area.” We further elaborated the policy arguments that bolster the case for a robust dual sovereignty doctrine in the speedy trial context:
Were we to hold that Marler‘s state court indictment triggered his speedy trial right, we would in effect be requiring the federal government to keep continually abreast of all state criminal investigations that may present the possibility of federal prosecution and to pursue their own investigations, arrests, indictments, and trials so as to conform with state-dictated timing. This is obviously counter to the dual sovereignty doctrine as well as to effective, responsible law enforcement.... Thus, whatever the weaknesses in our dual system of justice, these could only be exacer-
bated by the proposed expansion of the sixth amendment speedy trial right.
Dowdell does not contest the truth of any of this as a general mattеr, but he nevertheless insists that his case falls within a recognized exception. He principally relies on United States v. Cabral, 475 F.2d 715 (1st Cir.1973). In Cabral, state police officers investigating the defendant for sale of stolen property arrested him for possessing a sawed-off shotgun. The state turned the weapon over to federal authorities three days after the arrest. Cabral was indicted in state court for the stolen property offense and then, fifteen months later, in federal court for the weapons offense. In considering Cabral‘s speedy trial claim, we held that his constitutional right “crystallized at the time of his initial [state] arrest” because it was for the same offense as his ultimate federal indictment, and “[t]he [federal] government‘s prosecution of this charge was initiated only three days later when ... state authorities turned over this weapon to a federal officer.” Id. at 718. Thus, Dowdell argues, Cabral instructs us to attribute a state-court indictment to the federal government where a subsequent federal indictment was essentially a continuation of the state proceedings. Because his state charges arose out of a federal investigation, were for the same offense as his federal charges, and were allegedly dismissed following a coordinated effort with the federal government, Dowdell would have us apply this Cabral exception in our speedy trial analysis here.
Cabral, however, predates the Supreme Court‘s development of the dual sovereignty doctrine in MacDonald. For this reason, the Marler court questioned, although it did not decide, whether Cabral remained good law. 756 F.2d at 212. Other courts have not been so hesitant. See, e.g., United States v. Garner, 32 F.3d 1305, 1309 (8th Cir.1994) (rejecting Cabral‘s rationale and finding it “in conflict with subsequent statements made by the Supreme Court“); United States v. Collamore, 751 F.Supp. 1012, 1025 n. 13 (D.Me.1990) (recognizing that Marler had left the Cabral exception “an open question” and then definitively holding that “there is no such exception“). Dowdell labors to convince us of Cabral‘s continued vitality, pointing to some courts’ careful efforts to distinguish it on the facts rather than reject it outright. But if Cabral has managed to survive until this point, it has only been through the force of its own obsolescence. Dowdell has not identified a single post-MacDonald case from this or any other jurisdiction to have relied on the exception he urges us to rely on here.
A quarter-century of consistent authority impels us to answer Marler‘s question and hold that Supreme Court precedent has abrogated Cabral.8 The speed of a federal trial is measured from the federal accusation on which it is based; one sovereign‘s enforcement of its own criminal laws is not attributable to another sovereign merely because of the presence of investigatory assistance, prosecutorial collaboration, or overlap among charges.
In his reply brief, Dowdell relatedly argues that this case falls within an excep-
We discern no evidence of improper collusion. Although the Bartkus exception may apply to some speedy trial cases, this is not one of them. Consequently, we conclude that Dowdell‘s speedy trial right attached on the date of his federal indictment. There was no presumptively prejudicial delay, and analysis of the other Barker factors is therefore unnecessary.
B. Interstate Agreement on Detainers
Even if the pre-trial delay does not offend the Sixth Amendment, it may still violate the IAD,
At issue here are the speedy trial provisions that the IAD imposes on the receiving state. If the receiving state initiates the transfer through a written request for temporary custody, it must bring the prisoner to trial within 120 days of his arrival in that jurisdiction.
Dowdell avers for the first time on appeal that dismissal is necessary because the IAD clock had expired before he was ever brought to trial.11 At no point before filing his appellate brief did Dowdell so much as mention the speedy trial provisions of the IAD, despite ample opportunities. Had he done so, we have little doubt that the trial judge, who consistently demonstrated a conscientious concern for Dowdell‘s speedy trial rights, would have made an effort to comply.
We do not look favorably on IAD arguments that are not raised until the trial judge is no longer in a position to avoid a violation. Addressing a similar scenario arising on habeas review, the Supreme Court endorsed the lower court‘s observation that “[i]t would not have been difficult for the judge to advance the date of the trial or make a finding on the record of good cause, either of which would have satisfied Art. IV(c). Because the subject never came up, however, the trial judge overlooked the problem.” Reed v. Farley, 512 U.S. 339, 351 (1994) (quoting Reed v. Clark, 984 F.2d 209, 213 (7th Cir.1993)). The Court concluded that “[w]hen a defendant obscures Article IV(c)‘s time prescription and avoids clear objection until the clock has run, cause for collateral review scarcely exists.” Id. at 349. The same is true on direct review. A defendant who does not timely raise his IAD rights in district court forfeits those rights on appeal. United States v. Neal, 36 F.3d 1190, 1209 (1st Cir.1994); United States v. Oldaker, 823 F.2d 778, 781 (4th Cir.1987); United States v. Eaddy, 595 F.2d 341, 346 (6th Cir.1979).
Dowdell now claims that his general invocation of the IAD at his initial appearance should have put the court on notice that the speedy trial provisions were in force. Yet an abstract reference to the compact does not suffice to preserve all potential challenges that might arise under it. One can forfeit a claim under one section of the IAD while preserving a different claim under another. See, e.g., Neal, 36 F.3d at 1209-10; Oldaker, 823 F.2d at 781; Eaddy, 595 F.2d at 346. At his initial appearance, Dowdell referred only to his right to remain in federal custody, not the applicability of the statute‘s speedy trial deadline. This would be the last time that Dowdell referred to the IAD
Undaunted, Dowdell argues that he did not need to spell out the letters of the IAD for the district court because his motion to dismiss for violation of the Sixth Amendment and the Speedy Trial Act effectively accomplished the same thing. He relies on Mauro, in which the Supreme Court ruled that the defendant‘s failure to invoke the IAD “in specific terms” in his speedy trial motions did nоt result in the waiver of an Article IV(c) claim. 436 U.S. at 364. In Mauro, the defendant had “persistently requested” a speedy trial and had “sought the dismissal of his indictment on the ground that the delay in bringing him to trial while the detainer remained lodged against him was causing him to be denied certain privileges at the state prison.” Id. at 364-65. On those bases, the Court found his actions “sufficient to put the Government and the District Court on notice of the substance of his claim.” Id.; accord Eaddy, 595 F.2d at 346 (finding a speedy trial motion sufficient to give notice of an IAD challenge even though it “was not framed in the precise language of the Agreement“).
This case is distinguishable from Mauro in two critical respects. First and foremost, Dowdell did not have a colorable IAD claim at the time he filed the speedy trial motion. Even assuming the most defendant-favorable set of circumstances, the earliest trial deadline under the IAD would have been July 20, 2005.13 Yet Dowdell filed his motion to dismiss nearly two weeks earlier, on July 8. Thus, Dowdell is in substance arguing that the district court ought to have dismissed the indictment based on a ground that not only was absent from the motion to dismiss, but that did not even exist at the time the motion was filed. The fallacy in this position should be clear enough. To have the issue preserved, Dowdell would not need us to infer it from his motion to dismiss so much as to generate it ex nihilo at some later point. This we cannot do.
Second, neither Dowdell‘s motion nor any subsequent communication said anything about the negative effects that the outstanding detainer might be having on his rehabilitation. We think that element critical to the Court‘s holding in Mauro because, as the Court stressed, it was the attempt to ameliorate precisely those effects that prompted the IAD‘s passage. See 436 U.S. at 359-60. We do not read Mauro to mean that every speedy trial claim filed by a detainee necessarily contains an embedded IAD claim. The Court was not propounding free asso-
We therefore conclude that Dowdell at least forfeited any IAD claim by failing to raise it in the district court. He may very well have waived it altogether by requesting continuance after continuance that pushed the trial date to May 2007. See New York v. Hill, 528 U.S. 110, 120 (2000) (holding that defense counsel‘s agreement to a trial date outside the IAD period bars the defendant from then seeking dismissal on the ground that the trial did not occur within that period). Even if the claim is not waived, our review is for plain error only. Neal, 36 F.3d at 1210. Under that standard, we would reverse only if Dowdell could prove “(1) that an error occurred; (2) that the error was clear or obvious; (3) that the error affected his substantial rights; and (4) that the error also seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Gonzalez, 570 F.3d 16, 21 (1st Cir.2009).
Here, if there was any error to begin with, it was not clear or obvious. The clock could not have run out before the motion to dismiss was filed, and wе have never before found circumstances where the IAD clock would continue to run during the pendency of a defendant‘s motion. On the contrary, the clock presumptively stops for the entirety of the pendency, no matter how lengthy. See United States v. Walker, 924 F.2d 1, 5 (1st Cir.1991); cf. United States v. Staula, 80 F.3d 596, 601 (1st Cir.1996) (holding in the Speedy Trial Act context that courts may exclude the time between the filing of the motion and the hearing on that motion, even if the delay is overlong, inexplicable, or unreasonable). Although Dowdell does not address any period of time after the court decided his motion in July 2006, we note that the ensuing ten months of delay were entirely due to his requests for continuances and change of counsel. As a result, Dowdell‘s IAD claim fails.
C. Amendment of the Indictment
Dowdell next challenges the district court‘s modification of the indictment to reflect distribution of “cocaine base” rather than “cocaine.” According to Dowdell, this change constituted a material amendment that deprived him of his right to presentment of charges to a grand jury. As we have explained above, the district court treated the proposed change as a ministerial correction to a clerical error. Our review of this issue is de novo. United States v. Hernandez, 490 F.3d 81, 83 (1st Cir.2007). Before we undertake that review, however, a bit of terminological housecleaning is in order.
The district court appears to have viewed its task as explaining why the proposed change was not a “constructive amendment.” This approach treats the word ‘constructive’ as a term of art for ‘impermissible.’ That synonymic treatment may not be quite right, however. A constructive amendment, аs the name suggests, is constructive, that is, having effect in law though not necessarily in fact. Amendments to an indictment can of course be direct rather than merely constructive, and they, too, are subject to the same strict constitutional standards. See, e.g., United States v. Daraio, 445 F.3d 253, 260-61 & n. 8 (3d Cir.2006) (contrasting an alleged constructive amendment with a
In any event, the district court appears to have, understandably, enlisted the nomenclature that we ourselves have used. The common meaning of constructive amendment in our cases, which can be traced back to United States v. Dunn, 758 F.2d 30 (1st Cir.1985), is “when the charging terms of the indictment are altered, either literally or in effect, by prosecution or court after the grand jury has last passed upon them.” Id. at 35 (quoting Gaither v. United States, 413 F.2d 1061, 1071-72 (D.C.Cir.1969)) (emphasis added). The use of the word “literally” suggests that the term encompasses changes that are factually true just as much as those that are legally imputed. Yet the Gaither case quoted in Dunn was not defining “constructive amendment” in particular, but rather all amendments. Returning to the original source yields perhaps a more sensible definition: amendments in general may be literal or in effect (and, of these, it is specifically the latter that we refer to as constructive amendments). In any case, ever since Dunn, we have adhered to our definition of constructive amendments, most likely because they are the amendments that we most often come across. See 1 Wright & Leipold, § 128 (noting that “direct attempts to amend an indictment in any substantive way are rare” and that “[i]nstead, the most common challenge in this area is a claim of ‘constructive amendment‘“). On the rare occasion that we do confront a direct amendment to an indictment, such as here, referring to it as constructive may obfuscate the issue. We will therefore eschew any reference to “constructive” amendment here, where there was an express amending of the indictment.
Returning to our de novo review of the amendment, we start with the basis for the rule against amending an indictment without grand jury involvement. The prohibition is based on the Presentment Clause of the Fifth Amendment, which guarantees in relevant part that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”
Nevertheless, this prohibitiоn does not extend to alterations that are “merely a matter of form.” Russell, 369 U.S. at 770; see also United States v. Winter, 663 F.2d 1120, 1139-40 (1st Cir.1981); cf.
We agree with the district court that this is such a case. Because Dowdell was prosecuted under
Had the government not clarified the matter before trial, and instead proceeded under the original indictment, there would have likely been no grounds for objection whatsoever. Certainly there would have been no constructive amendment. See United States v. Fornia-Castillo, 408 F.3d 52, 66 (1st Cir.2005) (explaining that no constructive amendment present where the difference between the evidence presented and the text of the indictment does not affect any element of the offense). At worst, we might have found a variance, although even that is far from certain. See United States v. Wiley, 29 F.3d 345, 352 (8th Cir.1994) (doubting any variance whatsoever would arise from difference between charge involving “cocaine” and evidence involving cocaine base because cocaine base is merely an isomer of cocaine); United States v. Deisch, 20 F.3d 139, 151 (5th Cir.1994) (holding that “[f]or a section 841(a)(1) offense involving cocaine base[,] the indictment need only allege, and the jury need only find, that the substance was cocaine“). And had we gone so far as to find a variance, it would have been a harmless one, given all the notice that Dowdell had previously received that he was
Dowdell argues that the alteration was nevertheless prohibited based on two premises that are not in fact implicated here. First, he claims that the change to cocaine base effectively exposed him to a harsher sentencing range. Yet even if sentencing amplification were relevant, none occurred here. It is true that under
Second, Dowdell asserts that the difference in chemical composition between cocaine powder аnd cocaine base means that the government would have had to proffer different evidence for each of the substances. Again, even assuming the relevance of the conclusion, its predicate is incorrect. As far as culpability under
In sum, we hold that the district court‘s amendment of the indictment from distribution of “cocaine” to “cocaine base” did not affect the substance of the charges and therefore did not offend the Presentment Clause.
Dowdell next raises two evidentiary challenges, one concerning the admission of the police booking sheet and one concerning admission of the coconspirator‘s videotaped statements. We take up each in turn.
1. Admission of police booking sheet
Dowdell claims that the booking sheet from his July 16, 2001 arrest was inadmissible hearsay. Normally, an otherwise hearsay public record is admissible so long as it sets forth “matters observed pursuant to duty imposed by law as to which matters there was a duty to report.”
We have yet to consider whether the law enforcement exception applies to an ostensibly objective, non-adversarial document such as a booking sheet. On two previous occasions, however, we have at least hinted that it should not. First, in United States v. Union Nacional de Trabajadores, 576 F.2d 388 (1st Cir.1978), we held admissible a copy of a U.S. marshal‘s return despite its genesis at the hands of law enforcement personnel. We reasoned that
[t]here is nothing to indicate that Congress meant to cut back upon the common law rule respecting sheriff‘s returns. A sheriff or marshal reporting the service of process is not reporting in the capacity of a police observer at the scene of a crime, nor is he ordinarily connected with the case in a law enforcement capacity. The “adversarial” circumstances which might render a law enforcement officer‘s observations unreliable are unlikely, therefore, to be present.
Id. at 391. Then, in United States v. Trenkler, 61 F.3d 45 (1st Cir.1995), we cited United States v. Brown, 9 F.3d 907, 911–12 (11th Cir.1993), in dicta for the proposition that ”
Drawing a line at routine, non-adversarial documents would best comport with the purpose for which Congress originally approved the exception. The Rule‘s enactment history indicates that “the reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases.” S.Rep. No. 1277, 93d Con., 2d Sess., reprinted in (1974) U.S.C.C.A.N. 7051, 7064. Congress was generally “concerned about prosecutors attempting to prove their cases in chief simply by putting
Recognizing this intent, those circuits to have considered the issue have all found that the limitation in
Dowdell argues that this construction violates the Rule‘s plain language, which seems to bar categorically the prosecution‘s introduction of any and all documents prepared by the police. This much may be true. Yet, the alternative would violate the rule‘s plain purpose, and “[i]t is a well-established canon of statutory construction that a court should go beyond the literal language of a statute if reliance on that language would dеfeat the plain purpose of the statute.” Bob Jones Univ. v. United States, 461 U.S. 574, 586 (1983). Given the clear intent that undergirded the passage of
With this interpretation of
Dowdell аsserts that, even if this much may be true in the abstract, the particular booking sheet admitted in his trial may have been prepared with an eye toward proving his identity and as such was excludable as “indicat[ing] lack of trustworthiness.”
2. Admission of videotapes
Dowdell‘s second evidentiary challenge, that the court erred in admitting White‘s videotaped comments to Monteiro,
Finding such a preponderance here, the district court admitted White‘s statements. Dowdell now argues that the prosecution‘s evidence established nothing more than friendship and proximity with the declarant, rather than a joint venture to sell controlled substances. Assuming this argument was properly preserved, we must still accept the district court‘s findings of fact unless they were clearly erroneous.19 See United States v. Thompson, 449 F.3d 267, 273 (1st Cir.2006). This heavy burden is carried only when “although there is evidence to support [the finding], the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Where the evidence is susceptible of two plausible interpretations, the trier of fact‘s choice between them cannot be clearly erroneous.” United States v. Newton, 326 F.3d 253, 257 (1st Cir.2003). A heavier burden still awaits those attempting unpreserved challenges, which are reviewed only for plain error. United States v. Aviles-Colon, 536 F.3d 1, 14 (1st Cir.2008). Though the parties disagree as to whether Dowdell successfully preserved his challenge by renewing his objection at the close of all the evidence, the dispute is ultimately irrelevant. Even adopting the less deferential standard, we would still affirm the district court‘s ruling.
Dowdell further maintains that even if the statements themselves were admissible, introducing them on video nevertheless violated
In this case, in which the reliability of Monteiro‘s identification of Dowdell as Smoke was hotly contested, any contextual inferences available from a visual record would be highly probative. Whatever minimal unfair prejudice might have resulted from seeing White‘s physical appearance, it did not overcome this probative value. In any event, it was Dowdell, not the government, who chose to associate himself with White. We discern no abuse of discretion.
E. Sentencing
This brings us to the last of Dowdell‘s litany of arguments. He asks us to vacate his 198-month sentence because the government allegedly reneged on a promise not to seek a sentence greater than 20 years. A sentence of 198 months is, of course, itself less than 20 years. Dowdell‘s theory is that the sentence was nevertheless voidable because the government‘s filing of an information of prior conviction, which increased the minimum guideline sentence from 210 to 262 months, raised the baseline from which the trial court would have varied downward. Because this issue was not raised at sentencing, we
Dowdell does not make clear what prudential basis would merit vacating a sentence in this context. He directs our attention to Santobello v. New York, 404 U.S. 257 (1971), United States v. Gonczy, 357 F.3d 50, 53 (1st Cir.2004), United States v. Rexach, 896 F.2d 710, 714 (2d Cir.1990), and United States v. Giorgi, 840 F.2d 1022, 1026 (1st Cir.1988), but none is on point. Those cases all deal with a prosecutor‘s breach of an assurance made during a plea agreement, not an isolated commеnt made during a pre-trial hearing in a case in which the defendant received his full panoply of constitutional trial rights. Cf. Gonczy, 357 F.3d at 53 (explaining that the “meticulous standards of both promise and performance” that govern prosecutors in plea agreements stem from the defendant‘s waiver of fundamental constitutional rights that would otherwise be present in a jury trial).
Instead, we understand Dowdell to be advancing a theory of estoppel. The lack of any briefing on this issue renders the issue waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990). Even if not waived, the argument is not supported by the record. The government did not, as Dowdell argues, affirmatively commit itself to the original 20-year statutory maximum. Rather, it offered a descriptive (and accurate) statement of sentencing law. The government explained to the court that the proposed change to the indictment would not violate Apprendi in that the statutory maximum would remain the same irrespective of the controlled substance alleged in the indictment. See Apprendi v. New Jersey, 530 U.S. 466, 120 (2000). At the time, that statutory maximum was 20 years. Upon the filing of the information, it became 30 years. Although the number changed, the substance of the government‘s remark—that drug identity would have no impact on the statutory maximum—remained just as applicable. Thus we disagree with Dowdell‘s assertion that the government bound itself to any particular sentencing recommendation to begin with. Moreover, even had such a promise existed, there is no evidence in the record to suggest that the court gave any weight whatsoever to the government recommendation at sentencing. Dowdell thus fails to show a reаsonable probability that he would have received a more lenient sentence but for the alleged error. See Matos, 531 F.3d at 122-23. For all of these reasons, we find no flaw in Dowdell‘s sentence.
III. Conclusion
The appellant‘s conviction and sentence are AFFIRMED.